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
OWEN, Chief Judge, and WILLETT and OLDHAM, Circuit Judges.
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
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
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.
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.
petitioned this Court for a writ of mandamus. 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.
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
Id. at 380-81 (alterations in original) (quotations
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
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"). 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
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).
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
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").
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).
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
conclusion is reinforced by the obvious standing problems
associated with some of Plaintiffs' challenges.
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
[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
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
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
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.
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.
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. It did not do so. That's especially