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In re Gee

United States Court of Appeals, Fifth Circuit

October 18, 2019

In re: REBEKAH GEE, in her official capacity as Secretary of the Louisiana Department of Health; JAMES E. STEWART, SR., in his official capacity as District Attorney for Caddo Parish, Petitioners.

          Petition for a Writ of Mandamus to the United States District Court for the Middle District of Louisiana

          Before OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.

          PER CURIAM

         This is an extraordinary case. An abortion clinic and two of its doctors seek a federal injunction against virtually all of Louisiana's legal framework for regulating abortion. As part of this effort, Plaintiffs challenge legal provisions that do not injure them now and could not ever injure them. The district court, however, concluded it would be "untenable" to make Plaintiffs establish their standing because doing so would make it more difficult for them to succeed on the merits. That was obvious error. Still, we exercise our discretion not to grant Defendants' mandamus petition at this time because we are confident it is unnecessary.


         Plaintiffs brought a "cumulative-effects challenge" to Louisiana's laws regulating abortion. They argued the provisions taken as a whole were unconstitutional, even if the individual provisions were not. Louisiana moved to dismiss on jurisdictional grounds and because Plaintiffs' theory is foreclosed by precedent. The district court denied the motion to dismiss but certified its order for interlocutory appeal under 28 U.S.C. § 1292(b). The court explained the cumulative-effects issue is one "of first impression that requires the interpretation of recent Supreme Court precedent without the benefit of clarification from the [Fifth Circuit]." May 15, 2018 Order, Doc. 76 at 3.

         Plaintiffs then persuaded the district court to rescind the certification so they could amend their complaint to add individual-effect challenges to some of the provisions. After Plaintiffs amended their complaint, Louisiana again moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. The district court again denied the motion. But this time, the district court did not certify its decision for interlocutory appeal. It's difficult to understand why because the court found that the Amended Complaint still contained a "cumulative effects cause of action" and that "[w]ith respect to the applicable law which guides this Court, nothing has appreciably changed." March 29, 2019 Order, Doc. 103 at 13, 20. Without explaining its change of heart, the district court concluded "this is not a case of first impression." Id. at 20.

         Stranger still, the district court refused to consider Louisiana's jurisdictional arguments because doing so might make it difficult for Plaintiffs to prevail on the merits. Id. at 15. The court acknowledged Louisiana's argument that Plaintiffs' challenges to certain provisions "could not possibly be justiciable" and said that argument "appear[ed] persuasive" "[i]n a vacuum." Id. at 14; see also id. at 11 ("Defendants also claim that the Court lacks Article III jurisdiction to consider a challenge to many of the individual laws included in Plaintiffs' cumulative effects challenge."). The court nonetheless refused to analyze Plaintiffs' standing to challenge each provision included in their cumulative-effects challenge: "[T]o take on each regulation, individually and separately," would place Plaintiffs "in an untenable position where they are forced to individually challenge many facially valid regulations, despite the fact that, taken together, such provisions may violate the directives of both Planned Parenthood and Casey [sic]." Id. at 14-15.

         Louisiana petitioned this Court for a writ of mandamus.[1] With Mississippi and Texas both supporting the petition as amici, all three States in our Circuit have asked us to intervene. Louisiana asks us, among other things, to use the writ of mandamus to dismiss two counts in the Amended Complaint.


         Under the All Writs Act, federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651(a). That includes the writ of mandamus requested here. See, e.g., Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367, 380 (2004). But because mandamus "is one of the most potent weapons in the judicial arsenal, three conditions must be satisfied before it may issue." Ibid. (quotation omitted). The Supreme Court has explained:

First, the party seeking issuance of the writ [must] have no other adequate means to attain the relief he desires-a condition designed to ensure that the writ will not be used as a substitute for the regular appeals process. Second, the petitioner must satisfy the burden of showing that [his] right to issuance of the writ is clear and indisputable. Third, even if the first two prerequisites have been met, the issuing court, in the exercise of its discretion, must be satisfied that the writ is appropriate under the circumstances.

Id. at 380-81 (alterations in original) (quotations omitted).

         "These hurdles, however demanding, are not insuperable." Id. at 381. They simply reserve the writ "for really extraordinary causes." Id. at 380 (quoting Ex parte Fahey, 332 U.S. 258, 259-60 (1947)). And in extraordinary cases, mandamus petitions "serve as useful 'safety valve[s]' for promptly correcting serious errors." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 111 (2009) (alteration in original).

         "The clearest traditional office of mandamus and prohibition has been to control jurisdictional excesses, whether the lower court has acted without power or has refused to act when it had no power to refuse." 16 Charles Alan Wright et al., Federal Practice and Procedure § 3933.1 (3d ed.) [hereinafter Wright & Miller]. That was true at common law. See 3 William Blackstone, Commentaries *112 (explaining the writ of prohibition issued to "any inferior court, commanding them to cease" a case that did "not belong to that jurisdiction").[2] And it's true today. "The traditional use of the writ in aid of appellate jurisdiction both at common law and in the federal courts has been to confine [the court against which mandamus is sought] to a lawful exercise of its prescribed jurisdiction." Cheney, 542 U.S. at 380 (quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)); see also 16 Wright & Miller § 3932 ("The most common traditional statement is that the extraordinary writs are available to a court of appeals to prevent a district court from acting beyond its jurisdiction, or to compel it to take action that it lacks power to withhold.").

         That's not to say mandamus was or is limited to jurisdictional issues. Although it issued "in theory to prevent [a judge] from exceeding his jurisdiction or to require him to exercise it," it issued "[i]n practice" for "all manner of errors." Pulliam v. Allen, 466 U.S. 522, 532-33 (1984). But even as the use of mandamus expanded, the jurisdictional core remained. That's why mandamus is described as "an expeditious and effective means of confining the inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so." Ex parte Republic of Peru, 318 U.S. 578, 583 (1943).


         In keeping with the traditional office of the writ of mandamus, we start with the jurisdictional errors below. And we consider whether, in the extraordinary circumstances presented here, those jurisdictional errors give the State a right to the writ. It's a close question, even in these extraordinary circumstances. But in our view, the State has carried its burden on the first prong of the mandamus standard.


         Our mandamus precedent has long distinguished between discretionary decisions and non-discretionary duties. If the issue "is one committed to the discretion of the trial court, a clear and indisputable right to the issuance of the writ of mandamus will arise only if the district court has clearly abused its discretion, such that it amounts to a judicial usurpation of power." In re First S. Sav. Ass'n, 820 F.2d 700, 707 (5th Cir. 1987). But if the district court has violated a non-discretionary duty, the petitioner necessarily has a clear and indisputable right to relief. See United States ex rel. Bernardin v. Duell, 172 U.S. 576, 582 (1899) (holding "the writ of mandamus will not ordinarily be granted . . . unless the duty sought to be enforced is clear and indisputable"); In re Digicon Marine, Inc., 966 F.2d 158, 160 (5th Cir. 1992) (granting mandamus because "the district court had no discretion" (quotation omitted)); In re Estelle, 516 F.2d 480, 483 (5th Cir. 1975) ("[A]n extraordinary Writ may be appropriate to prevent a trial court from making a discretionary decision where a statute effectively removes the decision from the realm of discretion."); SEC v. Krentzman, 397 F.2d 55, 59 (5th Cir. 1968) (holding mandamus was appropriate because the district court "exercised what he thought to be a discretionary power which he did not possess").

         A district court's obligation to consider a challenge to its jurisdiction is non-discretionary. When the defendant "challenge[s] the jurisdiction of the district court in an appropriate manner," that court has a "duty of making further inquiry as to its own jurisdiction." Opelika Nursing Home, Inc. v. Richardson, 448 F.2d 658, 666 (5th Cir. 1971). "[F]ederal courts are under an independent obligation to examine their own jurisdiction, and standing 'is perhaps the most important of [the jurisdictional] doctrines.'" FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990) (quoting Allen v. Wright, 468 U.S. 737, 750 (1984)); see also United States v. Hays, 515 U.S. 737, 742 (1995). This obligation applies to each statute being challenged. See, e.g., Lewis v. Casey, 518 U.S. 343, 358 & n.6 (1996).

         We hasten to emphasize, however, that a district court's failure to consider jurisdiction does not always create a right to the writ. That failure is extraordinary here for four reasons. First, Louisiana raised forceful objections to the district court's jurisdiction. The State filed a motion to dismiss the first complaint and another jurisdictional challenge to the Amended Complaint. Second, the district court recognized the defendants' jurisdictional objections and even said they appeared "persuasive." Third, the court nonetheless found it "untenable" to make Plaintiffs establish standing because doing so would make it harder for them to succeed on the merits. March 29, 2019 Order, Doc. 103 at 15. Fourth, as we explain in Part III.B below, at least some of the State's jurisdictional arguments appear meritorious. This case is thus not about a mere jurisdictional error. Nor is it about a mere failure to spot a jurisdictional issue. It is closer to a "refusal to be guided by established doctrines governing jurisdiction." Belcher v. Grooms, 406 F.2d 14, 16 (5th Cir. 1968). And as we explain in Part IV below, the failure to rule on these standing issues now- statute-by-statute and regulation-by-regulation-could result in significant discovery costs borne by the State's taxpayers. In these circumstances, the failure to perform a non-discretionary jurisdictional inquiry satisfies the first prong of the mandamus standard.


         Our conclusion is reinforced by the obvious standing problems associated with some of Plaintiffs' challenges.


         It is now beyond cavil that plaintiffs must establish standing for each and every provision they challenge. See, e.g., Gill v. Whitford, 138 S.Ct. 1916, 1934 (2018); DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006); Lewis, 518 U.S. at 358 & n.6; Blum v. Yaretsky, 457 U.S. 991, 999 (1982). Take Lewis v. Casey for example. In that case, 22 prisoners filed a class action against the Arizona Department of Corrections ("ADOC") for violating their constitutional right to access the courts. 518 U.S. at 346. The district court "identified a variety of shortcomings of the ADOC system, in matters ranging from the training of library staff, to the updating of legal materials, to the availability of photocopying services." Ibid. It also found inmates in "lockdown" did not have physical access to the prison library. Id. at 347. And illiterate or non-English-speaking inmates did not have adequate legal assistance. Ibid. So the district court appointed a special master, who conducted an eight-month investigation of the prison system. Ibid. Then, working with the special master, the district court imposed a 25-page injunction on ADOC. Among other things:

[i]t specified in minute detail the times that libraries were to be kept open, the number of hours of library use to which each inmate was entitled (10 per week), the minimal educational requirements for prison librarians (a library science degree, law degree, or paralegal degree), the content of a videotaped legal-research course for inmates (to be prepared by persons appointed by the Special Master but funded by ADOC), and similar matters.

Ibid. The district court said every prison library must contain, "inter alia, the Arizona Digest, the Modern Federal Practice Digest, Corpus Juris Secundum, and a full set of the United States Code Annotated, and . . . provide a 30-40 hour videotaped legal research course covering relevant tort and civil law, including immigration and family issues." Id. at 355 n.5 (quotation omitted).

         That is not how Article III works. In vacating the injunction, the Supreme Court held that plaintiffs can seek judicial review of state laws and regulations only insofar as they show a plaintiff was (or imminently will be) actually injured by a particular legal provision. See id. at 349. It is not enough, the Court held, that the plaintiffs or the district court identified a constitutional problem with the ADOC libraries. See id. at 357. Nor could the plaintiffs identify one injury and then bootstrap it to complain about others. See id. at 358. That's because:

standing is not dispensed in gross. If the right to complain of one administrative deficiency automatically conferred the right to complain of all administrative deficiencies, any citizen aggrieved in one respect could bring the whole structure of state administration before the courts for review. That is of course not the law. As we have said, "[n]or does a plaintiff who has been subject to injurious conduct of one kind possess by virtue of that injury the necessary stake in litigating conduct of another kind, although similar, to which he has not been subject."

Id. at 358 n.6 (emphasis added) (quoting Blum, 457 U.S. at 999). Applying that rule, the Court identified only two plaintiffs who suffered actual injuries: A prisoner named Bartholic needed "special services" to file an action because he was illiterate. Id. at 358. And a prisoner named Harris was unable to file an action because he was a slow reader. Id. at 356. The plaintiffs were entitled to invoke the powers of the federal courts to remedy only those actual injuries.

         All of this makes sense because, "under our constitutional system[, ] courts are not roving commissions assigned to pass judgment on the validity of the Nation's laws." Broadrick v. Oklahoma, 413 U.S. 601, 610-11 (1973). Instead, federal courts are limited to deciding "cases" and "controversies." U.S. Const. art. III, § 2. Indeed, "[n]o principle is more fundamental to the judiciary's proper role in our system of government than the constitutional limitation of federal-court jurisdiction to actual cases or controversies." Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). And "[t]o state a case or controversy under Article III, a plaintiff must establish standing." Ariz. Christian Sch. Tuition Org. v. Winn, 563 U.S. 125, 132 (2011). Therefore, in the absence of standing, the court has no "power to declare the law." Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94 (1998) (quoting Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868)). The distinction between the courts and the political branches "would be obliterated if, to invoke intervention of the courts, no actual or imminent harm were needed, but merely the status of being subject to a governmental institution that was not organized or managed properly." Lewis, 518 U.S. at 350.

         These same principles apply in abortion cases. For example, in K.P. v. LeBlanc, 729 F.3d 427 (5th Cir. 2013), we analyzed abortion providers' standing as it related to each provision they challenged. Id. at 437. We concluded they lacked standing to challenge one of the provisions. Ibid. As a result, we vacated the district court's judgment regarding that provision and "dismiss[ed] that claim for want of jurisdiction." Id. at 443.[3]


         In this case, Plaintiffs have proffered ample allegations to support their contention that the State of Louisiana is not regulating abortion properly. But Article III demands much more. See Lewis, 518 U.S. at 350. To ensure that standing is not dispensed in gross, the district court must analyze Plaintiffs' standing to challenge each provision of law at issue.[4] It did not do so. That's especially problematic, ...

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