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United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 17, 2025
No. 25-30088 Lyle W. Cayce
____________ Clerk
In re Gary Westcott, Secretary, Louisiana Department of Public Safety
and Corrections; Darrel Vannoy, Warden, Louisiana State Penitentiary,
In His Official Capacity,
Petitioners.
______________________________
Petition for a Writ of Mandamus
to the United States District Court
for the Middle District of Louisiana
USDC No. 3:12-CV-796
______________________________
PUBLISHED ORDER
Before Haynes, Ho, and Oldham, Circuit Judges.
James C. Ho, Circuit Judge:
Thirteen years ago, a group of Louisiana death row inmates filed suit
challenging the State’s use of lethal injection as a method of execution. The
district court dismissed the suit as moot three years ago, because Louisiana
no longer had the drugs it needed to perform lethal injection.
That suit remains moot today. But on Friday, February 21, 2025—
just a few weeks before Jessie Hoffman’s March 18, 2025, execution date—
the district court reopened the suit under Federal Rule of Civil Procedure
60(b)(6). It did so, not because Hoffman sought to challenge the obsolete
lethal injection protocol, but because he now sought to challenge the nitrogen
hypoxia protocol that the State adopted last year.
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In response, Louisiana officials filed this emergency petition for a writ
of mandamus, asking this court to vacate the district court’s February 21
order as an improper and unauthorized use of Rule 60(b)(6) to re-open a
demonstrably moot case. We granted a temporary administrative stay of the
order the very next day.
Two days later, Hoffman filed a new suit to challenge the nitrogen
hypoxia protocol. That suit was assigned to the same district judge that re-opened the thirteen-year-old lethal injection suit.
The next day, we issued an order holding the mandamus petition in
abeyance for one week. In doing so, we specifically noted that, “[i]n light of
the new complaint, we anticipate that the district court will vacate its
February 21, 2025 order.” The district court declined to do so.
We now grant writ of mandamus and direct the district court to vacate
its February 21, 2025 order.
I.
In 2012, Hoffman challenged Louisiana’s lethal injection protocol as
cruel and unusual punishment. Over the ensuing decade of litigation,
including the intervention of nine other death row inmates as co-plaintiffs,
this suit focused exclusively on the State’s lethal injection protocol.
This litigation ended in 2022 when the district court dismissed this
suit as moot because Louisiana was no longer able to obtain the drugs
necessary to carry out executions under the challenged protocol. See
Hoffman v. Jindal, 2022 WL 969050, *12 (M.D. La. Mar. 30, 2022). The
plaintiffs there moved for reconsideration. The court denied the motion.
Hoffman v. Jindal,
2022 WL 16571312 (M.D. La. Nov. 1, 2022).
Moreover, the district court emphasized that, if Louisiana were to
select “an alternative means of execution” “in the future,” Hoffman would
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have “an entirely different execution protocol over which to litigate.” Id. at *2
(emphasis added).
In March 2024, Louisiana adopted nitrogen hypoxia as an alternative
method of execution. See La. Rev. Stat. § 15:569 (effective July 1, 2024).
But instead of filing a new suit to challenge the new protocol, the
plaintiffs filed a motion for relief from the judgment under Rule 60(b)(6) two
months later.
The district court left that motion untouched from June 2024 to
February 2025. On February 21—shortly after the State scheduled
Hoffman’s execution for March 18, 2025—the court granted the motion to
reopen the suit.
Petitioners filed an emergency petition for a writ of mandamus,
directing the district court to vacate its February 21 ruling. We granted a
temporary administrative stay the following day.
Two days later, Hoffman filed a separate suit challenging the State’s
nitrogen hypoxia protocol. That suit was assigned to the same district judge
that re-opened the lethal injection suit.
So we held the mandamus petition in abeyance, noting that “we
anticipate that the district court will vacate its February 21, 2025 order.”
The district court did not do so, so we now turn to the petition.
The mandamus petition is not mooted by Hoffman’s execution on
March 18, 2025. The matter before us remains a live controversy between
Petitioners here and the remaining plaintiffs in the re-opened suit.
II.
The Supreme Court has set forth the three conditions that must be
satisfied before a writ of mandamus may issue. See Cheney v. U.S. Dist. Court
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for D.C., 542 U.S. 367, 380 (2004) (citing Kerr v. United States Dist. Court for
Northern Dist. of Cal.,
426 U.S. 394, 403 (1976)). “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.” Cheney, 542 U.S. at 380–81
(cleaned up). “Second, the petitioner must satisfy the burden of showing
that his right to issuance of the writ is clear and indisputable.” Id. at 381
(cleaned up). “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.
Petitioners meet all of these requirements.
A.
First, Petitioners have “no other adequate means to attain . . . relief.”
Id. at 380.
We have long recognized that the indignity of being forced to litigate
in the wrong proceeding cannot be remedied through “the regular appeals
process.” In re Volkswagen of Am., 545 F.3d 304, 311 (5th Cir. 2008) (en banc)
(quoting Cheney,
542 U.S. at 381). As we’ve explained, the harm from
litigating in the wrong proceeding “will already have been done by the time
the case is tried and appealed, and the prejudice suffered cannot be put back
in the bottle.” Id. at 319.
Our decision in Volkswagen involved a defect in venue. But we see no
reason why the result should be any different for a jurisdictional defect such
as mootness. Indeed, Volkswagen itself makes clear that “mandamus is
appropriate ‘to confine an inferior court to a lawful exercise of its prescribed
jurisdiction.’” Id. at 310 n.5 (quoting In re Estelle, 516 F.2d 480, 483 (5th Cir.
1975). See also Will v. United States,
389 U.S. 90, 95 (1967) (“The
peremptory writ of mandamus has traditionally been used in the federal
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courts . . . to confine an inferior court to a lawful exercise of its prescribed
jurisdiction”) (quotations omitted). And Respondents do not contend
otherwise.
B.
Second, Petitioners’ right to the writ is “clear and indisputable.”
Cheney, 542 U.S. at 381 (citation omitted). To be sure, it is not enough to
show that the district court erred or abused its discretion. See, e.g., In re A&D
Interests, Incorp.,
33 F.4th 254, 257 (5th Cir. 2022). But a writ is appropriate
where “there has been a usurpation of judicial power.” In re JPMorgan Chase
& Co.,
916 F.3d 494, 500 (5th Cir. 2019) (citation omitted). See also Will,
389
U.S. at 95 (“exceptional circumstances amounting to a judicial ‘usurpation
of power’ will justify the invocation of this extraordinary remedy” of
mandamus).
The district court usurped judicial power when it invoked Rule 60(b)
to re-open a moot case. As the Supreme Court has reminded us, it is “by
very definition” an “ultra vires” act “[f]or a court to pronounce upon the
meaning or the constitutionality of a state or federal law when it has no
jurisdiction to do so.” Steel Co. v. Citizens for a Better Environment, 523 U.S.
83, 101–02 (1998).
It’s well established, of course, that “[a]t all stages of litigation, a
plaintiff must maintain a personal interest in the dispute.” Uzuegbunam v.
Preczewski, 592 U.S. 279, 282 (2021). “[I]f in the course of litigation a court
finds that it can no longer provide a plaintiff with any effectual relief, the case
generally is moot.”
Id.
And that’s precisely the problem here. The district court properly
dismissed this suit as moot in 2022. See Hoffman, 2022 WL 969050, *12.
Moreover, the district court itself observed that, in the event that Louisiana
was to authorize “an alternative means of execution” at some point “in the
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future,” that would be “an entirely different execution protocol over which to
litigate.” Hoffman, 2022 WL 16571312, *2 (emphasis added).
We see nothing in Rule 60(b) that permits a district court to re-open a
suit that that court itself previously (and correctly) dismissed as moot. And
Respondents cite no authority to the contrary.
At bottom, Respondents’ theory of the case is that they must have an
opportunity to challenge the State’s new method of execution. But it should
go without saying that the proper way to challenge an “entirely different”
and new execution protocol is to bring a new suit challenging that protocol—
not to revive an old, moot suit challenging an obsolete protocol.
C.
Finally, mandamus is plainly “appropriate under the circumstances.”
Cheney, 542 U.S. at 381.
The Supreme Court has instructed that mandamus relief is
appropriate in cases of “public importance and exceptional character.” Ex
parte Peru, 318 U.S. 578, 586 (1943). See also United States v. Abbott,
92 F.4th
570, 577–78 (5th Cir. 2024) (Ho, J., dissenting) (collecting cases).
Most relevant here, mandamus is available “to restrain a lower court
when its actions would . . . result in the ‘intrusion by the federal judiciary on
a delicate area of federal-state relations.’” Cheney, 542 U.S. at 381 (citation
omitted).
Of course, that’s precisely this case. Indeed, it’s hard to imagine an
area of greater state interest than the administration of its criminal justice
system. See, e.g., Kelly v. Robinson, 479 U.S. 36, 49 (1986) (“the States’
interest in administering their criminal justice systems free from federal
interference is one of the most powerful of the considerations that should
influence a court considering equitable types of relief”); see also Bucklew v.
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Precythe, 587 U.S. 119, 134 (2019) (“[T]he Constitution affords a measure of
deference to a State’s choice of execution procedures and does not authorize
courts to serve as boards of inquiry charged with determining ‘best practices’
for executions.”) (citation omitted).
III.
The dissent reaches a different conclusion, but it errs at every step of
its analysis.
First, the dissent claims that mandamus is improper because “there
are other adequate means of relief”—namely, “[t]he typical appellate
process.” Post, at _ (Haynes, J., dissenting).
But all the dissent is able to come up with are two cases that
purportedly show that “we frequently address mootness and the viability of
a Rule 60(b) order on appeal from a final judgment.” Post, at _ (Haynes, J.,
dissenting) (citing Env’t Conservation Org. v. City of Dall., 529 F.3d 519 (5th
Cir. 2008), and Yesh Music v. Lakewood Church,
727 F.3d 356 (5th Cir. 2013)).
The question before us, however, is not whether “the typical appellate
process” is available—it’s whether the typical appellate process is adequate
for purposes of mandamus analysis. Tellingly, the cases cited by the dissent
do not analyze (or even mention) mandamus (or adequacy) at all—let alone
mandamus (or adequacy) in extraordinary cases like this one.
Moreover, the dissent concedes that mandamus is available to protect
litigants from being forced to litigate in the wrong proceeding—at least when
it comes to defects in venue. See post, at _ (Haynes, J., dissenting) (discussing
In re Volkswagen). That concession destroys the dissent’s entire theory,
considering that “the typical appellate process” is available for defects in
venue. See, e.g., Action Indus., Inc. v. U.S. Fid. & Guar. Corp., 358 F.3d 337,
340 (5th Cir. 2004) (reviewing venue after final judgment). Moreover, the
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concession is further fatal to the dissent for yet another reason: This case
involves the same kind of manipulation that animated Volkswagen—a district
judge misapplying the rules in order to take over a dispute that rightfully
belongs in another court.
The dissent further errs when it claims that mandamus is available
when a court lacks venue, but not when it lacks jurisdiction. See post, at _
(Haynes, J., dissenting). That simply ignores governing Supreme Court and
circuit precedent authorizing the use of mandamus “to confine an inferior
court to a lawful exercise of its prescribed jurisdiction.” See, e.g., Will, 389
U.S. at 95; In re Volkswagen,
545 F.3d at 310 n.5 (quoting Estelle,
516 F.2d at
483). In fact, the Supreme Court has specifically endorsed the use of
mandamus to prevent a federal court from exceeding its jurisdiction in a
manner that intrudes on a state criminal prosecution. See, e.g., Maryland v.
Soper,
270 U.S. 9, 29 (1926) (“there should be a more liberal use of
mandamus” when it comes to “state prosecutions”).
Second, the dissent insists that Petitioners lack “a clear and
indisputable right to the writ” because this case is not moot. Post, at _
(Haynes, J., dissenting). The dissent theorizes that the decade-old suit is not
moot—so no new or amended complaint is needed—because the old suit
already challenges every possible method of execution. See id. at _.
But even the district court does not believe that. The district court
admitted that it granted Rule 60(b) relief “to enable amending this lawsuit to
challenge the current protocol.” Hoffman v. Jindal, 2025 WL 582492, *4
(M.D. La. Feb. 21, 2025) (emphasis added). And for good reason: The
operative complaint challenges execution protocols that involve “the use of
expired and/or illegally-obtained drugs”—an obvious reference to the drugs
used in lethal injection, as opposed to the use of nitrogen gas. See, e.g.,
Bucklew, 587 U.S. at 142 n.1 (discussing State’s use of nitrogen gas “due to
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the unavailability of lethal injection drugs”); Glossip v. Gross, 576 U.S. 863,
880–81 (2015) (contrasting lethal injection drugs from lethal gas).
That admission is fatal to the dissent, because it cites no authority that
allows the use of Rule 60(b) to revive a previously (and properly) mooted suit
in order to amend it. The dissent simply says that district courts “frequently
allow amendment.” Post, at _ n.3 (Haynes, J., dissenting). But that’s not to
so much an argument as it is an admission that the suit is moot absent
amendment.
The dissent attempts to bolster its position by describing Rule
60(b)(6) as a “grand reservoir of equitable power to do justice.” Post, at __
(Haynes, J., dissenting) (quoting Batts v. Tow–Motor Forklift Co., 66 F.3d 743,
747 (5th Cir. 1995)).
But notwithstanding the grandiose metaphor of a “grand reservoir,”
the reality is that “we have also narrowly circumscribed its availability,
holding that Rule 60(b)(6) relief ‘will be granted only if extraordinary
circumstances are present.’” Batts, 66 F.3d at 747 (quoting Bailey v. Ryan
Stevedoring Co.,
894 F.2d 157, 160 (5th Cir. 1990) (emphasis added). See also,
e.g., Yesh Music,
727 F.3d at 363 (same).
This case falls short of the 60(b)(6) extraordinary circumstances
standard, as a closer reading of our precedents make amply clear. Our
precedents require a Rule 60(b)(6) movant to demonstrate how “the initial
judgment” was “manifestly unjust.” Edward H. Bohlin Co. v. Banning Co., 6
F.3d 350, 357 (5th Cir. 1993). We do not see how the “initial judgment” here
could possibly be “manifestly unjust,” considering that the judgment here
was indisputably correct, based on the law and facts present at the time.
To the contrary, we’ve repeatedly observed—including in Batts—
that “[c]hanges in decisional law based on constitutional principles are not of
themselves extraordinary circumstances sufficient to justify Rule 60(b)(6)
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relief.” Batts, 66 F.3d at 749 (emphasis added). We do not grant relief based
on subsequent developments in the law for one simple reason: our “even
stronger interest in finality [of judgments].” Priester v. JP Morgan Chase
Bank, N.A.,
927 F.3d 912, 913 (5th Cir. 2019). See also
id. (emphasizing “the
great desirability of preserving the principle of the finality of judgments”)
(quoting Seven Elves, Inc. v. Eskenazi,
635 F.2d 396, 402 (5th Cir. 1981)).
After all, “[c]onsider the implications if a ‘change in law’ automatically
allowed cases to be reopened. If that were the law, then anytime the Supreme
Court resolved a circuit split courts that had taken the rejected position
would have to restart long-resolved cases.”
Id. And the same logic should
readily apply whether the change in law comes from the judiciary or the
legislative branch.
The only case the dissent cites in response is Buck v. Davis, 580 U.S.
100 (2017). See post, at _ (Haynes, J., dissenting). But Buck did not grant
60(b)(6) relief based on a change in law after final judgment. It granted
60(b)(6) relief based on what the State did at trial—it focused on the “one
thing [that] would never change: the color of Buck’s skin.” 580 U.S. at 121
(emphasis added). Buck holds that racial discrimination, not a change in law,
constitutes an extraordinary circumstance under Rule 60(b)(6). After all,
“[r]elying on race to impose a criminal sanction poisons public confidence in
the judicial process.” Id. at 124. “Such concerns are precisely among those
we have identified as supporting relief under Rule 60(b)(6).” Id. See also id.
at 125 (noting “the express recognition by a Texas attorney general that the
relevant testimony was inappropriately race charged” and that “these were .
. . ‘extraordinary’ cases”).
Finally, the dissent suggests that our faithful application of our
mandamus precedents and Rule 60(b)(6) standards is somehow unfair
because it will leave death row inmates with “little time” to litigate their
claims. Post, at _ (Haynes, J., dissenting). But that’s belied by the record—
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Hoffman’s new suit was not only heard by the district court, but also this
court and the Supreme Court, all prior to his execution. See Hoffman v.
Westcott, 2025 WL 763945 (W.D. La. Mar. 11, 2025), rev’d, Hoffman v.
Westcott,
131 F.4th 332 (5th Cir. 2025), stay denied, _U.S. _ (2025). 1
…
If a district judge manipulates the legal process in order to claim
jurisdiction over an issue of great public interest that properly belongs in
another court—and ultimately to the people and their elected
representatives—it falls on the appellate courts to restore the constitutional
balance. “When district courts overstep their bounds and exercise powers
that properly belong in another branch of government, it is incumbent on
federal appellate courts to right the ship and ensure that the judiciary does
_____________________
1
The dissent intimates that these multiple appeals were not enough, because they
were processed too quickly. Post, at _ n.5 (Haynes, J., dissenting). So the dissent would
have postponed the execution. See also Hoffman, 131 F.4th at 337 (Haynes, J., dissenting).
But the Supreme Court declined to do so. _ U.S. at _. And for multiple good reasons. To
begin with, the dissent’s plea for delay ignores the fact that the claims are so plainly devoid
of merit. See Hoffman, 131 F.4th at 333 (“[Hoffman’s constitutional challenge] is not just
wrong. It gets the Constitution backwards, because it’s premised on the odd notion that
the Eighth Amendment somehow requires Louisiana to use an admittedly more painful
method of execution—namely, execution by firing squad rather than by nitrogen hypoxia.
That can’t be right. Indeed, it contravenes Supreme Court precedent.”). The plea for
delay also ignores the “important interest” of “[b]oth the State and the victims of crime .
. . in the timely enforcement of a sentence.” Bucklew, 587 U.S. at 149. Excess delay
prolongs the suffering of the victim’s family, “frustrates the purpose of retribution,” and
makes a “mockery of our criminal justice system.” Coleman v. Balkcom, 451 U.S. 949, 958,
960 (1981) (Rehnquist, J., dissenting). See also, e.g., Ramirez v. Collier,
595 U.S. 411, 456–
57 (2022) (Thomas, J., dissenting) (“[B]y evading his sentence, Ramirez has inflicted
recurrent emotional injuries on the victims of his crime. . . . These four siblings ask that
their father ‘finally have his justice’ so that ‘this nightmare can be over.’”) (quoting amicus
brief of victim’s family); Murphy v. Collier,
139 S. Ct. 1475, 1481 (2019) (Alito, J., dissenting
from grant of application for stay) (delay “inflict[s] further emotional trauma on the family
of the murder victim”).
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not exceed its authority under Article III of the Constitution.” Hoffman, 131
F.4th at 336.
We grant writ of mandamus, and direct the district court to vacate its
February 21, 2025, order and deny the Rule 60(b) motion.
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James C. Ho, Circuit Judge, concurring:
This is not the first time our court has had to step in because a district
court abused its powers. When a district court exceeds its limited role under
our Constitution and violates our Founders’ commitment to self-government
and popular sovereignty, it threatens the credibility of the federal judiciary—
and demands the active and aggressive intervention of the appellate courts. 1
I.
It’s often said that the judiciary is a “co-equal” branch of
government. 2 But that’s wrong. 3
The judiciary has an important role in our constitutional republic. But
it’s a limited one. Judges don’t write the law. Nor do judges execute the law.
_____________________
1
See, e.g., Pierre v. Vannoy, 891 F.3d 224, 229 (5th Cir. 2018) (“The district court’s
failure to even mention [governing precedent] is particularly troubling.”);
id. at 230, 232
(Ho, J., concurring) (“[T]he district court failed to demonstrate the respect for States . . .
[W]e do not countenance people taking the law into their own hands. This principle binds
federal judges as well.”); Whole Woman’s Health v. Smith,
896 F.3d 362, 373–76 (5th Cir.
2018) (reversing “disturbing” and “ill-informed” district court order that “looks like an
act of intimidation” issued “in unnecessary haste”);
id. at 376 (Ho, J., concurring) (“[T]he
proceedings below . . . are troubling. They leave this Court to wonder [if the district court
was engaged] in an effort to . . . evade appellate review.”); Wittmer v. Phillips 66,
915 F.3d
328, 330 (5th Cir. 2019) (“[T]he district court did not mention, let alone distinguish,
[governing precedent].”);
id. at 341 (Ho, J., concurring) (“our courts are giving the people
reason” to “los[e] faith in their institutions”). See also M.D. v. Abbott,
977 F.3d 479, 481,
483 (5th Cir. 2020) (“District courts do not have discretion to ignore mandates issued by
this court. . . . [That] would replace judicial hierarchy with judicial anarchy.”); United
States v. Abbott,
92 F.4th 570, 576 (5th Cir. 2024) (Ho, J., dissenting) (noting district
court’s “obvious and transparent attempt to thwart our en banc proceedings”).
2
See, e.g., United States v. Cowan, 524 F.2d 504, 507 (5th Cir. 1975); Collins v.
Mnuchin,
938 F.3d 553, 594 (5th Cir. 2019).
3
See, e.g., The Federalist No. 48, at 334 (James Madison) (J. Cooke ed. 1961)
(noting the “superiority” of the legislative branch as compared to the judiciary);
Metropolitan Wash. Airports Auth. v. Citizens for Abatement of Aircraft Noise, Inc., 501 U.S.
252, 273 (1991) (same).
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As Americans, we believe that we should be governed by the people—not by
judges with life tenure. Our Founders didn’t fight a Revolutionary War to
replace one king in royal garb with hundreds of kings in judicial robes.
Judges are only supposed to interpret and apply the law to whatever
disputes are brought before us. So we’re not an active branch—we’re a
passive branch. And under the Constitution of our Founders, the judiciary is
the least powerful branch. We have the power to issue judgments—but we
lack the power to enforce them. We hold neither the sword nor the purse.
All we have is our voice.
So we must earn the respect of the other branches. We must
demonstrate that our rulings are based on what the law is—not our personal
views on what the law should be. 4
The American people don’t believe in judicial independence so that
judges can be imperial—the people believe in judicial independence so that
judges will be impartial. If we lose their trust, that will be fatal to the rule of
law. And it will be entirely our fault. 5
_____________________
4
See, e.g., The Federalist No. 78, at 523 (Alexander Hamilton) (“[T]he
judiciary, from the nature of its functions, will always be the least dangerous to the political
rights of the Constitution; because it will be least in a capacity to annoy or injure them. . . .
The judiciary . . . has no influence over either the sword or the purse; no direction either of
the strength or of the wealth of the society; and can take no active resolution whatever. It
may truly be said to have neither FORCE nor WILL, but merely judgment; and must
ultimately depend upon the aid of the executive arm even for the efficacy of its
judgments.”); Young v. U.S. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 818 (1987) (Scalia, J.,
concurring in the judgment) (same).
5
See, e.g., G. Barry Anderson, Preserving the Independence of the Judiciary,
Litigation 3 (Winter 2009) (“When told about the importance of judicial
independence, the public’s first reaction is to ask, ‘Independent from what?’ The fear is
that ‘independent’ translates into ‘unaccountable’ and perhaps even ‘arrogant.’ I have
found that focusing on judicial ‘impartiality’ is far more effective, and perhaps more
accurate.”).
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II.
Every level of the judiciary risks losing its credibility if judges fail to
live up to these principles. But appellate courts have at least one built-in
check: No appellate judge can act alone. Appellate courts act only through
multi-member panels. So appellate judges must convince their colleagues
before they can exercise the judicial power of the United States.
District court decisions, by contrast, are (with rare exception) made
by just one judge. District judges are the only members of the judiciary who
can exercise the judicial power of the United States without anyone’s consent
but their own. 6
With unilateral power, there’s unique danger that some district courts
may get off track. So it’s vital that district judges exercise their powers
carefully and with integrity—and critical that appellate judges be ready to
intervene when district courts refuse to stay in their lane.
Appellate courts even have the power to remove a district judge from
a case altogether. See, e.g., M.D. by Stukenberg v. Abbott, 119 F.4th 373, 386–
95 (5th Cir. 2024); Pulse Network, L.L.C. v. Visa, Inc.,
30 F.4th 480, 497 &
n.28 (5th Cir. 2022).
_____________________
6
Indeed, it’s precisely because of concern with the unilateral authority of district
judges that there are proposals to limit certain district court actions, such as universal
injunctions, to three-judge panels. As a respected former member of this court has
observed, when litigants “need find only a single district judge who agrees with them,”
“[t]hat lone judge issuing a nationwide injunction effectively overrules numerous judges
who may have already rejected the same claim.” Gregg Costa, An Old Solution to the
Nationwide Injunction Problem, Harv. L. Rev. Blog (Jan. 25, 2018). “It also subverts
our judicial hierarchy as a nationwide injunction issued by a single district judge has greater
effect than a court of appeals’ decision on the same issue in a noninjunction posture (that
decision would only be binding within the circuit).” Id.
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In particular, an appellate court can remove a district judge who
appears to be manipulating the process to ensure the assignment of certain
cases that that judge favors. In Ligon v. City of New York, 736 F.3d 118 (2nd
Cir. 2013), the Second Circuit sua sponte removed a district judge from
several cases because she coached litigants to bring suits that she could
“accept . . . as a related case” under the district’s related case rule.
Id. at
125. See generally
id. at 124–29.
If appellate courts can remove a district judge for manipulating the
process to secure certain case assignments, then we should likewise have the
power to mandamus a district judge to prevent such docket manipulation in
the first place. See ante, at 2, 10–11.
III.
Our dissenting colleague asks: What’s the rush? Even assuming that
the district court erred, the dissent contends that there’s no need for
immediate relief—just let things play out through “[t]he typical appellate
process.” Post, at _ (Haynes, J., dissenting).
But that’s cold comfort to the millions of voters who took the time to
participate in the democratic process, only to see their legitimate efforts
unlawfully undone by a single district judge.
If a district judge abuses the legal process in a hurried effort to thwart
the lawful political choices of the electorate, appellate courts are well within
their right to intervene and grant emergency relief.
The Supreme Court did just that last week in Trump v. J.G.G., _ U.S.
_ (2025). There (as here), a district court presumed to seize control over a
case of profound public interest that it had no lawful business deciding,
because it belonged in another court. So the Supreme Court intervened and
took the case away from the district court. See id. at _ (“Challenges to
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No. 25-30088
removal under the [Alien Enemies Act] . . . must be brought in habeas. . . .
[J]urisdiction [in habeas cases] lies in only one district: the district of
confinement. The detainees are confined in Texas, so venue is improper in
the District of Columbia.”) (cleaned up).
Like our dissenting colleague here, the dissenting Justices in J.G.G.
urged delay. The dissent agreed with the majority that the only thing at stake
was deciding which district court had the authority to decide the case. See id.
at _ (Sotomayor, J., dissenting) (noting that the dispute merely concerned
“which procedural vehicle is best situated for the Plaintiffs’ injunctive and
declaratory claims”). But the dissent maintained that there was no need for
appellate courts to “rush” in and “decide the issue now”—just wait for an
appeal in the “ordinary course.”
Id. at _ (Sotomayor, J., dissenting).
The Supreme Court rejected the dissent’s plea for delay. The
majority understood that waiting for an appeal in the “ordinary course”
would inadequately protect the government from the indignity of litigating in
the wrong proceeding—not to mention unduly delay the expressed will of the
people. As the Court put it, “[w]e see no benefit in such wasteful delay.” Id.
at _.
I most certainly concur. When a district judge acts hastily, yet
appellate courts are told not to “rush in,” that’s not a plea for judicial
sobriety—it’s a recipe for district judge supremacy.
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Haynes, Circuit Judge, dissenting:
I respectfully dissent from granting mandamus. As the order explains,
we may issue a writ of mandamus only if (1) there are no other adequate
means of relief, (2) the petitioner has demonstrated a clear and indisputable
right to the writ, and (3) our exercise of discretion to issue the writ is
appropriate under the circumstances. Cheney v. U.S. Dist. Ct. for D.C., 542
U.S. 367, 380–81 (2004). None of these conditions are satisfied.
I. Other adequate means of relief
First, there are other adequate means of relief. The typical appellate
process provides an adequate remedy. “Mandamus, it must be remembered,
does not run the gauntlet of reversible errors.” Will v. United States, 389 U.S.
90, 104 (1967) (internal quotation marks and citation omitted). Indeed, we
frequently address mootness and the viability of a Rule 60(b) order on appeal
from a final judgment. See e.g., Env’t Conservation Org. v. City of Dall.,
529
F.3d 519 (5th Cir. 2008); Yesh Music v. Lakewood Church,
727 F.3d 356 (5th
Cir. 2013). 1
The mandamus order states, “As we’ve explained, the harm from
litigating in the wrong proceeding ‘will already have been done by the time
the case is tried and appealed, and the prejudice suffered cannot be put back
in the bottle.’” (quoting In re Volkswagen of Am., Inc., 545 F.3d 304, 319 (5th
Cir. 2008) (en banc)). However, In re Volkswagen is not about “litigating in
the wrong proceeding” generally, id.; it is about venue that was clearly and
indisputably improper—it certainly did not hold that all venue issues are
_____________________
1
The mandamus order fails to cite a case concluding that (1) mandamus is available
for mootness or Rule 60(b)(6) motions, (2) a district court abuses its discretion in reopening
a case that is not moot, much less a case holding that such an abuse is “clear and
indisputable,” or (3) legislative changes are decisional law that cannot provide the basis to
reopen a case under Rule 60(b)(6).
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No. 25-30088
subject to mandamus. There are at least two reasons to treat a motion to
change venue differently from a Rule 60(b) motion.
First, post-judgment reversal for improper venue requires that the
party show it would have won in the desired forum. See In re Rolls Royce Corp.,
775 F.3d 671, 676 (5th Cir. 2014). This requirement makes it exceedingly
challenging to win the issue on appeal of a final judgment. 17 James Wm.
Moore et al., Moore’s Federal Practice § 111.63 (3d ed. 2025)
(explaining that it is difficult to succeed in an appeal of transfer motions in
part because of this requirement). Accordingly, as we have held, this
requirement renders post-judgment review inadequate. In re Rolls Royce
Corp.,
775 F.3d at 676; In re Volkswagen,
545 F.3d at 319. Reversing a
Rule 60(b) order, meanwhile, does not require a similar showing of prejudice.
Unlike our review of venue, for Rule 60(b) orders we apply the same standard
post-judgment as the mandamus order applies here. See Edwards v. 4JLJ,
L.L.C., No. 23-40189,
2024 WL 983657, at *2 (5th Cir. Mar. 7, 2024) (per
curiam) (applying the same standard as the mandamus order for reversing a
Rule 60(b)(6) motion on appeal from final judgment).
Second, In re Volkswagen’s analysis relied on the harm from litigating
in an improper venue—“inconvenience to witnesses, parties and other[s].”
In re Volkswagen, 545 F.3d at 319. However, that harm is certainly not present
here. No one disputes that venue is proper here. Parties will have to litigate
these claims in Louisiana regardless, even if Plaintiffs refile, which would lead
to appeals if necessary.
Rather than discussing whether the rationale for granting mandamus
in venue cases applies in this context, the mandamus order simply states that
it sees “no reason why the result should be any different.” However,
mandamus is an extraordinary remedy for good reason, and I would not
dispense of its requirements so quickly. See Kerr v. U.S. Dist. Ct. for N. Dist.
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of Cal., 426 U.S. 394, 403 (1976) (“A judicial readiness to issue the writ of
mandamus in anything less than an extraordinary situation would run the real
risk of defeating the very policies sought to be furthered by th[e] judgment of
Congress [in creating the final-judgment rule].”). In sum, the idea that
Petitioners have “no other adequate means to attain the relief” is simply not
accurate. Cheney,
542 U.S. at 380 (quotation omitted). 2
II. Clear and indisputable right to the writ
Turning to the next requirement, Petitioners have not demonstrated
a clear and indisputable right to the writ. To start, the mandamus order
incorrectly concludes that this case is still moot. Indeed, this case presents a
live controversy. The latest operative complaint contests Louisiana’s
execution protocols generally, “whether performed pursuant to the latest
protocol . . . or performed pursuant to a newly amended protocol with insufficient
time for review and evaluation” (emphasis added). 3 As the district court
explained, “[t]his case has always been about Louisiana’s execution protocol.
It is still about Louisiana’s execution protocol. And now that the protocol
appears viable, there is an actionable case and controversy.” Hoffman v.
Jindal, 3:12-cv-796-SDD-EWD, 2025 WL 582492, at *4 (M.D. La. Feb. 21,
_____________________
2
The mandamus order characterizes my position as saying that mandamus is
available when a court lacks venue but not when it lacks jurisdiction. Its characterization is
wrong. Mandamus is only available when the petitioner shows no other adequate means of
relief, a clear and indisputable right to the writ, and the appropriateness of the writ under
the circumstances. Petitioner has not done so here.
3
According to the mandamus order, fatal to my dissent is the district court’s
statement that it granted Rule 60(b)(6) relief to allow amendment of the lawsuit to
challenge the new protocol. However, the complaint makes clear that Plaintiffs anticipated
that Louisiana would change the protocol, issue a death warrant, and execute a person in
quick succession, and Plaintiffs wanted their day in court for newly amended protocols.
District courts frequently allow amendment, so it is not correct that the district court’s
invitation to amend impacts the challenges brought in the latest operative complaint.
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No. 25-30088
2025). The mandamus order offers no explanation for why Plaintiffs must
separately file their challenge to the nitrogen hypoxia protocol when the
complaint in this matter addresses more than just the lethal injection protocol.
Rather, the mandamus order simply rests on a principle that “go[es] without
saying”—citing no legal support and failing to refute the district court’s
analysis. Although Hoffman has been executed, several death row inmates
remain Plaintiffs in the case. Those Plaintiffs continue to challenge the
constitutionality of their execution, so the case is not moot. 4
Moreover, Petitioners have not clearly and indisputably demonstrated
that reopening a previously moot case under Rule 60(b)(6) is inappropriate
once the case becomes ripe. When the district court previously dismissed
the Plaintiffs’ case without prejudice, the only potential execution method—
lethal injection—was no longer being used. Hoffman v. Jindal, 3:12-cv-796-
SDD-EWD, 2022 WL 969050, at *12 (M.D. La. Mar. 30, 2022). On
reconsideration of its dismissal order, the district court stated that if
Louisiana authorizes another execution protocol, Plaintiffs could litigate the
new protocol. See Hoffman v. Jindal, 3:12-cv-796-SDD-EWD,
2022 WL
16571312, at *2 (M.D. La. Nov. 1, 2022). The district court never said a new
case (which would require additional time and work) had to be filed. See
id.
Having dismissed without prejudice and having now granted the
_____________________
4
The mandamus order implies that the district court should have vacated its order
reopening the case in light of a new suit that Hoffman filed. But the mandamus order leaves
out important background. We held the mandamus in abeyance in light of the new suit
Hoffman filed. We eventually denied the mandamus as moot in light of Hoffman’s new
suit. Then Louisiana moved for reconsideration, given that Hoffman was not the only
plaintiff in this case. We granted the motion for reconsideration because Louisiana was
correct—Hoffman’s new suit did not moot this case given that plaintiffs include several
other death row inmates aside from Hoffman. Accordingly, our discussion of vacating the
order was only regarding Hoffman’s new suit. That new suit did not moot this one nor
require vacation of the order given that it involves the other parties.
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No. 25-30088
Rule 60(b)(6) motion, the district court clearly intended to consider the case
once it became ripe.
I further disagree with the mandamus order’s narrow reading of
Rule 60(b)(6). The mandamus order concludes that nothing in Rule 60(b)
permits the district court to reopen this suit. However, district courts have
discretion in granting Rule 60(b)(6) motions, Diaz v. Stephens, 731 F.3d 370,
374 (5th Cir. 2013), and Rule 60(b)(6) is “a grand reservoir of equitable
power to do justice in a particular case,” Batts v. Tow–Motor Forklift Co.,
66
F.3d 743, 747 (5th Cir. 1995) (quotation omitted). Granting a Rule 60(b)(6)
motion in the context of “extraordinary circumstances” is not as narrow an
inquiry as the mandamus order asserts: “In determining whether
extraordinary circumstances are present, a court may consider a wide range
of factors,” including “the risk of injustice to the parties and the risk of
undermining the public’s confidence in the judicial process.” Buck v. Davis,
580 U.S. 100, 123 (2017) (internal quotation marks and citation omitted).
Here, the district court faced the difficult task of litigating the merits
of multiple death penalty challenges quickly and efficiently. As the complaint
alleges, Louisiana has “engaged in a pattern of revising the execution
protocol immediately before a scheduled execution date” and has “refus[ed]
to provide access to the protocols.” These allegations proved true in
Hoffman’s execution. Louisiana issued death warrants to two named
Plaintiffs in mid-February, with the executions to occur one month later.
Although Louisiana promulgated the nitrogen hypoxia execution protocol in
early February, Louisiana did not provide the protocol to Plaintiffs until early
March, leaving little time for Plaintiffs with March execution dates to
challenge the constitutionality of their executions. The district court granted
the motion for reconsideration in February, soon after Louisiana issued the
death warrants and only a few weeks before the scheduled execution date.
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No. 25-30088
The circumstances do not get much more extraordinary than a district
court ensuring that inmates with fast-approaching execution dates have
access to the courts for their constitutional challenge to their executions. See
Buck, 580 U.S. at 128 (reversing the Fifth Circuit’s denial of certificate of
appealability because plaintiff demonstrated entitlement to relief under
Rule 60(b)(6) in his challenge asserting that he was sentenced to death based
on race). The district court, acknowledging the importance of “judicial
efficiency and economy” in a case involving the “protection of constitutional
rights in relation to human life,” granted the Rule 60(b)(6) motion. Hoffman,
2025 WL 582492, at *4. I cannot conclude that the district court clearly and
indisputably abused its discretion in granting a Rule 60(b)(6) motion after
concluding that the suit is no longer moot. Indeed, Rule 60(b)(6) has been
used to reopen disputes dismissed for lack of jurisdiction, so long as there is
some basis for jurisdiction upon reopening suit. See Le Blanc v. Cleveland,
248 F.3d 95, 98–101 (2d Cir. 2001) (per curiam) (concluding that the district
court erred by denying Rule 60(b)(6) motion to allow plaintiff to amend
complaint to plead diversity jurisdiction after dismissing for lack of admiralty
jurisdiction); Fairfax Countywide Citizens Ass’n v. County of Fairfax,
571 F.2d
1299, 1303 (4th Cir. 1978) (holding that a district court has authority under
Rule 60(b)(6) to vacate its dismissal and reinstate lawsuit after repudiation of
a settlement agreement, so long as there is a basis for federal jurisdiction).
Instead of engaging with the district court’s analysis, and without citing legal
support, the mandamus order simply concludes that nothing supports using
Rule 60(b) to reopen this case. 5
_____________________
5
The mandamus order suggests that Hoffman had enough time to litigate his death
penalty challenge because it reached the Supreme Court. By focusing on the number of
courts that heard his challenge, the mandamus order glosses over the expedited timeline—
due to Louisiana’s own delay—under which the courts had to consider Hoffman’s
challenge. The district court issued its preliminary injunction on March 11, 2025, after only
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No. 25-30088
The mandamus order cites Batts for the proposition that changes in
decisional law “are not of themselves extraordinary circumstances sufficient
to justify Rule 60(b)(6) relief.” See 66 F.3d at 749. In Batts, after trial, final
judgment, and appeal, the Mississippi Supreme Court clarified that it had
moved away from the test that governed the claims in Batts, and toward a
different test.
66 F.3d at 746. The district court granted Rule 60(b)(6) relief
because of the change in decisional law, and we reversed because a change in
decisional law alone does not warrant relief from judgment.
Id. at 746–47.
That is not at all the situation here because the original judgment was without
prejudice. It also was not a final judgment on the merits. Further, statutory
law (the nitrogen hypoxia statute), not decisional law, is at play here.
Decisional Law, Black’s Law Dictionary 270 (7th ed. 1999) (caselaw
excludes statutes); see also Caselaw, Black’s Law Dictionary (12th
ed. 2024) (caselaw is “[a]lso termed decisional law.”). A very different
context. 6
Beyond the mandamus order’s narrow reading of Rule 60(b)(6), it
fails to account for the exceptionally high standard that courts of appeals
should use when evaluating if a writ is appropriate. The order states that
Petitioners have a clear and indisputable right to the writ because it may be
_____________________
two weeks of expedited discovery. We ruled on March 14, 2025, and the Supreme Court
ruled on March 18, 2025—exactly one week after the district court entered its preliminary
injunction. So no, my statement that Hoffman had little time to challenge his execution
method is not “belied by the record.”
6
The mandamus order’s reliance on the decisional law principle is further
problematic because a change in law combined with something else (such as a change in
fact) is sufficient to warrant Rule 60(b)(6) relief. See Buck, 580 U.S. at 126, 128 (holding
that petitioner was “entitle[d] to relief under Rule 60(b)(6)” because of a change in law
and developments of fact); Gonzalez v. Crosby, 545 U. S. 524, 531 (2005) (“[A] motion
might contend that a subsequent change in substantive law is a ‘reason justifying relief,’
Fed. Rule Civ. Proc. 60(b)(6), from the previous denial of a claim.”).
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No. 25-30088
used “to confine an inferior court to a lawful exercise of its prescribed
jurisdiction.” (quoting Will, 389 U.S. at 95). But Will made clear that “only
exceptional circumstances amounting to a judicial ‘usurpation of power’ will
justify the invocation of this extraordinary remedy.” Will,
389 U.S. at 95.
Will also offered examples of situations that meet that extremely high bar:
judicial action that threatens to embarrass the executive branch in conducting
foreign relations, judicial intrusion on a delicate area of federal-state
relations, judicial action that is contrary to an appellate court’s mandate, and
persistent disregard for the Federal Rules of Civil Procedure by a district
judge.
Id. at 95–96. These are the types of “usurpations of judicial power”
that the writ is properly reserved for, not close calls over whether a district
court properly exercised its discretion in granting a Rule 60(b)(6) motion.
See In re Estelle,
516 F.2d 480, 483 (5th Cir. 1975) (“[Mandamus is] not to be
used . . . to control the decision of the trial court in discretionary matters.”
(internal quotation marks and citation omitted)). The mandamus order
concludes that this case implicates the “delicate area of federal-state
relations,” but this case does not come close to cases that have previously
been held to implicate that balance. See, e.g., Maryland v. Soper,
270 U.S. 9,
34–35 (1926) (granting mandamus to compel a federal district judge to
remand to state court an indictment for murder). This is especially so
because no one disputes whether a federal court can hear the Plaintiffs’ case;
the only dispute is whether the challenge must be filed separately from the
present case.
In sum, Louisiana has not met the tall task of demonstrating a clear
and indisputable right to the writ.
III. Appropriateness of the writ
Given the situation here, I would not exercise our discretion even if
we reached the third prong. Mandamus is a drastic remedy, “to be invoked
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No. 25-30088
only in extraordinary situations.” Kerr, 426 U.S. at 402. Mandamus “is not
to be used as a substitute for an appeal, or to control the decision of the trial
court in discretionary matters.” Plekowski v. Ralston-Purina Co.,
557 F.2d
1218, 1220 (5th Cir. 1977). District courts can make all kinds of decisions
early in the life of a lawsuit that require reversal after a jury verdict. If that
were enough to grant mandamus, that would lead to a huge number of
mandamus cases in our court. But the writ of mandamus is, understandably,
highly limited to only very few situations. This is simply not one of the few
cases that warrant such extraordinary relief.
…
Finally, the mandamus order accuses the district judge of
“manipulat[ing] the legal process in order to claim jurisdiction over an issue
of great public interest that properly belongs in another court.” It levels this
serious allegation without offering any support and despite neither party
questioning the district judge’s integrity. I would not cast aspersions on the
intentions of the district judge in this case.
Because Petitioners have not met their burden on any element, I
respectfully dissent from the grant of mandamus.
26
