Case: 23-30642 Document: 00516912407 Page: 1 Date Filed: 09/28/2023
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
____________ FILED
September 28, 2023
No. 23-30642 Lyle W. Cayce
____________ Clerk
In re Jeff Landry, In his official capacity as the Louisiana Attorney
General; Kyle R. Ardoin, in his official capacity as Louisiana Secretary of
State,
Petitioners.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC Nos. 3:22-CV-211, 3:22-CV-214
______________________________
Before Jones, Higginson, and Ho, Circuit Judges.
By Edith H. Jones, Circuit Judge:
Louisiana’s Attorney General has filed this request for mandamus
relief seeking to vacate the district court’s hearing scheduled to begin on
October 3 and require the district court to promptly convene trial on the
merits in this congressional redistricting case. We GRANT IN PART,
ORDERING the District Court to VACATE the October Hearing.
The reasons for this grant of relief are as follows:
Redistricting based on section 2 of the Voting Rights Act,
52 U.S.C. § 10301, is complex, historically evolving, and sometimes
undertaken with looming electoral deadlines. But it is not a game of ambush.
Since 1966, the Supreme Court has repeatedly reminded lower federal
courts that if legislative districts are found to be unconstitutional, the elected
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body must usually be afforded an adequate opportunity to enact revised
districts before the federal court steps in to assume that authority. In
Reynolds v. Sims, the Court stated that “legislative reapportionment is
primarily a matter for legislative consideration and determination.”1 In
subsequent cases,
[t]he Court has repeatedly held that redistricting and
reapportioning legislative bodies is a legislative task which the
courts should make every effort not to preempt. When a
federal court declares an existing apportionment scheme
unconstitutional, it is therefore, appropriate, whenever
practicable, to afford a reasonable opportunity for the
legislature to meet constitutional requirements by adopting a
substitute measure rather than for the federal court to devise
and order into effect its own plan.
Wise v. Lipscomb, 437 U.S. 535, 540,
98 S. Ct. 2493, 2497 (1978) (citations
omitted). This is the law today as it was forty-five years ago.2
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1
377 U.S. 533, 586,
84 S. Ct. 1362, 1394 (1964).
2
See North Carolina v. Covington, 138 S. Ct. 2548, 2554 (2018) (“[S]tate
legislatures have primary jurisdiction over legislative reapportionment[.]”) (quotation
marks and citation omitted); McDaniel v. Sanchez,
452 U.S. 130, 150 n.30,
101 S. Ct. 2224,
2236 (1981) (“Moreover, even after a federal court has found a districting plan
unconstitutional, redistricting and reapportioning legislative bodies is a legislative task
which the federal courts should make every effort not to preempt.”) (quotation marks and
citation omitted); Wise v. Lipscomb,
437 U.S. at 540; Connor v. Finch,
431 U.S. 407, 414-15,
97 S. Ct. 1828, 1833-34 (1977) (“[A] state legislature is the institution that is by far the best
situated to identify and then reconcile traditional state policies within the constitutionallymandated framework. . .. The federal courts by contrast possess no distinctive mandate to
compromise sometimes conflicting state apportionment policies in the people’s name.”);
Chapman v. Meier,
420 U.S. 1, 27,
95 S. Ct. 751, 766 (1975) (“We say once again what has
been said on many occasions: reapportionment is primarily the duty and responsibility of
the State through hits legislature or other body, rather than of a federal court.”); Gaffney
v. Cummings,
412 U.S. 735, 749,
93 S. Ct. 2321, 2329 (1973) (“Nor is the goal of fair and
effective representation furthered by making the standards of reapportionment so difficult
to satisfy that the reapportionment task is recurringly removed from legislative hands and
2
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The district court did not follow the law of the Supreme Court or this
court. Its action in rushing redistricting via a court-ordered map is a clear
abuse of discretion for which there is no alternative means of appeal.3
Issuance of the writ is justified “under the circumstances” in light of multiple
precedents contradicting the district court’s procedure here.
This case was remanded after the Supreme Court stayed lower court
proceedings to decide Alabama v Milligan, 143 S. Ct. 1487 (2023). Ardoin v.
Robinson,
142 S. Ct. 2892 (2022) (cert. dismissed as improvidently granted
and stay vacated by
143 S. Ct. 2654 (2023)). The district court here had held,
in June 2022, after an expedited preliminary injunction proceeding, that
Louisiana’s congressional districts violate section 2, requiring an additional
majority black congressional district. Robinson v. Ardoin,
605 F. Supp. 3d 759,
766 (M.D. La. 2022). The district court then ordered the state legislature to
reconfigure such an additional district within five legislative days. Robinson
v. Ardoin,
37 F.4th 208, 232 (5th Cir. 2022). Landry pursued an immediate
appeal and a motion to stay in this court. This court denied a stay,
id., but
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performed by federal courts which themselves must make the political decisions necessary
to formulate a plan or accept those made by reapportionment plaintiffs who may have
wholly different goals from those embodied in the official plan. From the very outset, we
recognized that the apportionment task, dealing as it must with fundamental choices about
the nature of representation. . . is primarily a political and legislative process.”) (citation
omitted); Burns v. Richardson, 384 U.S. 73, 85,
86 S. Ct. 1286,1293 (1966) (“[J]udicial relief
becomes appropriate only when a legislature fails to reapportion according to federal
constitutional requisites in a timely fashion after having an adequate opportunity to do
so.”) (quotation marks and citation omitted).
3
The dissent contends that the ordinary appellate process suffices. But the dissent
does not challenge the notion that if the remedial hearing goes forward, the merits of the
preliminary injunction will be on a separate appellate track from the remedy order. Nor
does the dissent explain how the panel that will hear the merits of the preliminary injunction
would have jurisdiction to order relief to the state on the scheduling of the fifteen-monthlater separately litigated remedy hearing, as no Rule 28(j) letter can manufacture appellate
jurisdiction under 28 U.S.C. § 1291 over the non-final trial setting order.
3
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expedited the appeal—until the Supreme Court entered its stay. Ardoin v.
Robinson, 142 S. Ct. at 2892.
A year later, the Supreme Court’s stay was lifted, Ardoin v. Robinson,
143 S. Ct. at 2654, and the parties completed briefing the merits of the
preliminary injunction, which another panel of this court will hear in oral
argument on October 6.
Undeterred by the pendency of appeal on the merits, the district court
opted to go ahead on October 3-5 with an expedited hearing to determine a
court-ordered redistricting map. But the court provided merely five weeks
for the state’s preparation. No mention was made about the state
legislature’s entitlement to attempt to conform the districts to the court’s
preliminary injunction determinations.
This post-merits activity prompted the state to seek a writ of
mandamus from this court pursuant to 28 U.S.C. § 1651. In this court,
“mandamus will be granted upon a determination that there has been a clear
abuse of discretion.” In re Volkswagen of Am., Inc.,
545 F.3d 304, 309 (5th
Cir. 2008) (en banc). As “one of the most potent weapons in the judicial
arsenal, three conditions must be satisfied” before mandamus may be issued.
In re Gee,
941 F.3d 153, 157 (5th Cir. 2019) (quoting Cheney v. U.S. Dist. Court
for D.C.,
542 U.S. 367, 380,
124 S. Ct. 2576, 2587 (2004)). The Supreme
Court has elaborated that:
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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.
Cheney, 542 U.S. at 380-81 (quotation marks and citations omitted).
After reviewing the mandamus factors, we conclude that the state is
entitled to partial mandamus relief.
1. The state has no other means of relief and is not seeking to use mandamus
as a substitute for appeal.
The only issue before this panel is the scheduling of the remedial
hearing and potential scheduling for trial on the merits. The events leading
to this writ application post-date the merits-only preliminary injunction by
fifteen months. In ruling on this application, we do not discuss the merits.
Likewise, the decision on the merits of a Section 2 violation of the Voting
Rights Act has no direct relationship with nor factual nor legal overlap with
the scheduling issues this panel confronts.
That this application presents an unusual posture for mandamus is not
a contrivance of Landry or this panel but the result of the district court’s
unique rush to remedy when circumstances did not require it. Moreover,
because this application is wholly different from the merits of the appeal, the
state has no adequate remedy by way of appeal.
The plaintiffs respond that the state may adequately appeal following
the decision formulating a court-ordered redistricting plan. That outcome
would embarrass the federal judiciary and thwart rational procedures.
Denying mandamus effectively means a two-track set of appeals on the merits
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and the court-ordered plan. No matter the outcome—or timing—of this
court’s merits panel determination, one side will seek relief in the Supreme
Court. Similarly, the anticipated court-ordered redistricting plan will be
appealed to this court and likely to the Supreme Court. And all of this will
persist well into the 2024 election year. The likelihood of conflicting courts’
scheduling and determinations will create uncertainty for the state and, more
important, the candidates and electorate who may be placed into new
congressional districts. In sum, while there is on paper a right to appeal
whatever decision the district court renders on drawing its own redistricting
maps, the paper right is a precursor to legal chaos.
2. Clear and Indisputable Right
The state contends that it has a clear right to relief because the court’s
remedial redistricting plan should not be ordered before it has a fulsome
opportunity to defend itself on the merits of plaintiffs’ section 2 claim.4 That
the state lacked a full opportunity to mount a defense on the merits is likely
accurate. Plaintiffs’ testimony showed that they had been planning a lawsuit
for months before the legislature effectuated its 2022 redistricting. But under
the district court’s expedited scheduling, the state had less than four weeks
to prepare for what became a five-day evidentiary hearing.5
This court’s order denying a stay pending appeal repeatedly noted
that the panel’s conclusions were only tentative and the plaintiffs’ case had
clear weaknesses. The court referenced the importance of final adjudication.
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4
The state also argues that the plaintiffs’ case became moot after the 2022 election
cycle ended. This is incorrect, because the district court enjoined all future elections
pursuant to the allegedly violative state plan, and this reflected the scope of the plaintiffs’
demand for relief.
5
The state says it had only two weeks before the preliminary injunction hearing to
prepare expert witness reports, which are critical in legislative redistricting cases.
6
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Robinson, 37 F.4th at 222 (“[T]he plaintiffs have much to prove when the
merits are ultimately decided.”).6 Of course, an order denying stay pending
appeal cannot be a “merits” ruling and is subject to reconsideration by this
court, either in the upcoming oral argument or on review of a final judgment.
Id. at 232 (“Our ruling here concerns only the motion for stay pending
appeal; our determinations are for that purpose only and do not bind the
merits panel[.]”) (quotation marks and citations omitted). But the point is
that this court recognized the hasty and tentative nature of the district court’s
decision and, at least implicitly, the need for further development of factual
and legal aspects.
Id. (“[N]either the plaintiffs’ arguments nor the district
court’s analysis is entirely watertight[.]”).
The progress of the Alabama redistricting litigation in some ways
parallels this case but is instructive as to full and fair procedures not accorded
here. First, while that case progressed to a seven-day preliminary injunction
hearing within about two months after the legislature finalized congressional
districts, Alabama has never contended that its defense was unduly
truncated. Allen v. Milligan, 143 S. Ct. 1487, 1502 (2023) (noting that the
three-judge district court’s preliminary injunction hearing lasted seven days,
during which it received live testimony from 17 witnesses, reviewed more
than 1000 pages of briefing and upwards of 350 exhibits while considering
arguments from 43 different lawyers); Singleton v. Allen, No. 2:21-CV-1291-
AMM,
2023 WL 5691156, at *10 (N.D. Ala. Sept. 5, 2023) (noting that at the
Alabama remedial hearing, the parties agreed that the Alabama three-judge
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6
This court also said the state put all its eggs in one basket, litigating essentially
that only with race-predominant considerations could the plaintiffs justify a second
majority-black congressional district. Robinson, 37 F.4th at 217. No litigant, however, is
bound at trial on the merits to a defense strategy that failed to succeed on a preliminary
injunction.
7
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district court would consider all evidence admitted during the preliminary
injunction hearing unless counsel raised a specific objection).
Second, and also pertinent, in the Alabama case on remand from the
Supreme Court, the three-judge panel afforded the state legislature six weeks
to propose a new districting plan. See contra Singleton, 2023 WL 5691156 at
*6-*7 (noting that the Alabama three-judge district court delayed remedial
proceedings for six weeks after remand from the Supreme Court to allow the
legislature to pass a new congressional redistricting plan). Last year, with the
2022 elections fast approaching, the district court prescribed an impossibly
short timetable for state legislative action amounting to only five legislative
days. Whatever the propriety of that timetable (about which we express no
opinion) at that time, there is no warrant for the court’s rushed remedial
hearing by the first week of October 2023, months in advance of deadlines for
districting, candidate filing, and all the minutiae of the 2024 elections. Even
more significant, the Alabama court on remand from the Supreme Court
afforded the state an adequate opportunity to accomplish a redistricting
compliant with final judgment. Here, of course, there is no final judgment on
the merits. But the district court acted ultra vires in rushing to prescribe its
own maps.
As demonstrated above, a court must afford the legislative body that
becomes liable for a Section 2 violation the first opportunity to accomplish
the difficult and politically fraught task of redistricting. That is required for
redistricting litigation to proceed according to its “ordinary course and in
advance of the 2024 congressional elections in Louisiana”—as the Supreme
Court’s remand in this case mandated. Ardoin v. Robinson, 143 S. Ct. at 2654.
Not only has the Supreme Court serially reinforced this duty of lower courts,
but this court has carefully adhered to these rulings. Nearly forty years ago,
this court criticized a district court’s rushed, court-ordered redistricting plan
less than a month and a half following final judgment. Jones v. City of Lubbock,
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727 F.2d 364, 387 (5th Cir. 1984). We admonished that the court’s
procedures
if challenged, would have required that we vacate this order. For
the sake of future parties, we reiterate briefly some of the
principles that the district court should bear in mind.
Apportionment is principally a legislative responsibility. . .. A
district court should, accordingly, afford to the government
body a reasonable opportunity to produce a constitutionally
permissible plan. . ..
Id. (internal citations omitted) (emphasis added).7 The district court here
had no warrant to undertake redistricting (A) through a court-ordered plan
(B) with no elections impending, (C) on a severely limited pretrial schedule,
and (D) without having afforded the Louisiana legislature the first
opportunity to comply with its ruling.
“A district court abuses its discretion if it: (1) relies on clearly
erroneous factual findings; (2) relies on erroneous conclusions of law; or
(3) misapplies the law to the facts. On mandamus review, we review for these
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7
See also United States v. Brown, 561 F.3d 420. 435 (5th Cir. 2009) (“[A]t least in
redistricting cases, district courts must offer governing bodies the first pass at devising a
remedy[.]”); Rodriguez v. Bexar County,
385 F.3d 853, 869-70 (5th Cir. 2004) (“[D]istrict
courts should use a great deal of caution in invalidating the results of a duly held election
and ordering the implementation of its own alternative districting plan. The primary
responsibility for correcting Voting Rights Act deficiencies rests with the relevant
legislative body. . .. Both the Supreme Court and this court have admonished district
courts to afford local governments a reasonable opportunity to propose a constitutionally
permissible plan and not haphazardly to order injunctive relief.”) (citations and footnote
omitted); Chisom v. Roemer,
853 F.2d 1186, 1192 (5th Cir. 1988) (“[R]esponsible state or
local authorities must be first given an opportunity to correct any constitutional or statutory
defect before the court attempts to draft a remedial plan. In the case at bar, that means that
should the court rule on the merits that a statutory or constitutional violation exists the
Louisiana Legislature should be allowed a reasonable opportunity to address the problem.
We have no reason whatsoever to doubt that the governor and legislature will respond
promptly.”).
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types of errors, but we only will grant mandamus relief when such errors
produce a patently erroneous result.” In re Volkswagen of Am., 545 F.3d at
310 (citing McClure v. Ashcroft,
335 F.3d 404, 408 (5th Cir.2003)). Here, we
find that the district court’s errors produced a patently erroneous result.
3. Appropriate under the circumstances
If this were ordinary litigation, this court would be most unlikely to
intervene in a remedial proceeding for a preliminary injunction. Redistricting
litigation, however, is not ordinary litigation. Of course, the law as set forth
by the Supreme Court’s interpretation of the Constitution and section 2 must
be vindicated. But the remedy necessarily involves the exercise of discretion
by federal courts whose judgments will interfere with a primary
constitutional structural device of self-government: making decennial
districting choices about representation in legislative bodies. Ever since its
initial forays into legislative districting, the Supreme Court has explained the
proper procedure to implement federal court judgments while
accommodating to the greatest extent the legislatures’ ability to confect their
own remedial plans. The district court here forsook its duty and placed the
state at an intolerable disadvantage legally and tactically.
Accordingly, we VACATE the remedial order hearing. Further
scheduling in the case must be done by the district court pursuant to the
principles enunciated herein.
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James C. Ho, Circuit Judge, concurring:
I concur. I write to respond to my distinguished dissenting colleague.
I agree that mandamus is not ordinarily a substitute for appeal. I also
agree that whatever the district court might have done pursuant to its
October 3 hearing would eventually be subject to appeal.
But that does not end the analysis. “[E]xceptional circumstances,
amounting to a judicial usurpation of power, will justify the invocation of this
extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35
(1980) (per curiam). So it doesn’t matter that “uncorrectable damage may
not result if petitioners are forced to wait for a remedy on direct appeal”—
“the clearly erroneous nature of the district court’s order [may] call[] for a
more immediate remedy.” In re Impact Absorbent Techs., Inc.,
106 F.3d 400,
1996 WL 765327, *3 (6th Cir. 1996) (unpublished table decision) (granting
mandamus relief to compel dismissal of case). See also, e.g., Holub Indus., Inc.
v. Wyche,
290 F.2d 852, 856 (4th Cir. 1961).
Moreover, mandamus relief may be especially warranted where the
stakes of the litigation are unusually significant. See, e.g., Abelesz v. OTP
Bank, 692 F.3d 638, 651 (7th Cir. 2012) (granting mandamus relief to compel
dismissal of case involving “appreciable foreign policy consequences” and
“astronomical” “financial stakes”).
Consider, for example, In re Trinity Industries, Inc., No. 14-41067 (5th
Cir. Oct. 10, 2014). It was asserted there (as here) that the district court had
no legal basis to hold a particular proceeding (there, it was a trial under the
False Claims Act). It was further argued that “the litigation stakes . . . are
unusually high”—namely, the risk of a $1 billion adverse judgment. Id.
Notably, the mandamus panel did not deem the matter beyond the
scope of the writ—even though any damages award can obviously be
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reversed later on appeal (as indeed later occurred in that case). To the
contrary, the mandamus panel acknowledged that “this is a close case.” Id.
It ultimately denied relief. But the panel went out of its way to caution the
district court not to proceed. It said that “[t]his court is concerned” about
the impending proceedings, and warned that the petitioner had presented a
“strong argument” that the case should not go to trial.
Id. The district court
nevertheless proceeded to trial. So this court subsequently reversed. In
doing so, this court specifically noted that the district court went to trial
“despite . . . a caution from this court that the case ought not proceed.”
United States ex rel. Harman v. Trinity Indus., Inc.,
872 F.3d 645, 647 (5th Cir.
2017).1
As with Trinity Industries, this case presents “unusually high” stakes.
It doesn’t just delineate how Louisiana voters may exercise their right to vote
for their elected representatives in the House. It could also impact the course
of national policy decisions made by Congress—after all, every member of
Congress has a voice, and a vote, in those deliberations. Whatever the final
outcome of Louisiana’s redistricting process may be, the people of Louisiana,
and the country, are entitled to an orderly process that they can trust.
As the majority explains, it would fly in the face of decades of Supreme
Court precedent for a district court to usurp the prerogative of the state
Legislature to take the first crack at drawing a remedial map. Yet that appears
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1
I suppose that this mandamus panel could have followed the example in Trinity
Industries by sounding a similar firm note of warning to the district court here, while
ultimately denying rather than granting mandamus relief. See, e.g., In re Depuy
Orthopaedics, Inc., 870 F.3d 345, 347 n.4 (5th Cir. 2017) (noting that “this court has
routinely held, sometimes in published opinions, that a district court erred, despite
stopping short of issuing a writ of mandamus”) (collecting cases). But that’s a matter of
discretion, not restriction. Moreover, if our court’s experience in Trinity Industries teaches
us anything, it’s that sometimes you need a writ, not a warning.
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to be what is being contemplated here. As the majority notes, the district
court gave the State only five legislative days to produce a remedial map.
The dissent responds that that was a year ago, and suggests that “this
yearlong process” should have given the State ample time to work. But that
doesn’t strike me as a realistic understanding of the legislative process. This
matter has been pending on appeal throughout this period of time—not to
mention subject to an extended stay by the Supreme Court. And naturally,
the whole point of any appeal is that the district court ruling could be set
aside—thereby obviating the need for any remedial effort by the Legislature.
It seems impractical, to say the least, to expect busy elected officials
and their staffs to set aside all of the other responsibilities of public office, just
to focus all of their attention on negotiating a hypothetical remedial plan that
the courts have not yet even resolved is necessary. And not only impractical,
but unfair to the citizens of Louisiana, who no doubt seek the attention of
their elected representatives on countless other pressing matters of
importance to their communities.
…
I concur in the grant of mandamus relief.2
_____________________
2
The dissent observes in passing that this mandamus proceeding could have been
assigned to the pending appeal panel in No. 22-30333. I certainly agree that judges should
work collaboratively and in a spirit of comity when it comes to the assignment and transfer
of cases. I’m reminded of our court’s experience in Defense Distributed v. Platkin, 55 F.4th
486 (5th Cir. 2022), and Defense Distributed v. Platkin,
48 F.4th 607 (5th Cir. 2022),
involving the unfortunate refusal of a federal district court in New Jersey to heed a request
to transfer a Texas case back to the relevant district court within our circuit. Had the panel
in No. 22-30333 requested transfer of this mandamus proceeding to its current docket, I
imagine I would’ve agreed. But no such request was made.
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STEPHEN A. HIGGINSON, Circuit Judge, dissenting:
The Supreme Court has been clear, cautioning long ago that
mandamus is a “drastic and extraordinary remed[y] . . . reserved for really
extraordinary causes.” Ex parte Fahey, 332 U.S. 258, 259-60 (1947). Thus,
settled caselaw confirms that mandamus is not a tool to manage a district
court’s docket; nor can mandamus substitute for appeal. Yet review of this
matter’s procedural history shows that mandamus here improperly does
both.
I. Procedural History
This petition, filed by Louisiana Attorney General Jeff Landry and
Louisiana Secretary of State Kyle Ardoin (“the State”), concerns ongoing
litigation over Louisiana’s congressional maps. On June 6, 2022, the district
court preliminarily enjoined the State from conducting any congressional
elections under the map enacted by the Legislature and ordered the
Legislature to enact a remedial plan on or by June 20, 2022, at which point
the district court would otherwise issue additional orders to enact a remedial
plan. Robinson v. Ardoin, 605 F. Supp. 3d 759, 766-67 (M.D. La. 2022). The
district court even invited the State to seek more time should it need it,
explaining that “[i]f Defendants need more time to accomplish a remedy for
the Voting Rights Act violation, the Court will favorably consider a [m]otion
to extend the time to allow the Legislature to complete its work.” Robinson
v. Ardoin, No. 22-00211, ECF No. 182 (M.D. La. June 9, 2022).
The preliminary injunction was appealed to this court, which
administratively stayed the injunction, then vacated that stay and denied a
stay pending appeal, while expediting No. 22-30333. Robinson v. Ardoin, 37
F.4th 208, 215 (5th Cir. 2022).1 On the eve of the district court’s remedial
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1
Briefing now is complete and our court will hear argument next week.
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plan hearing, however, the Supreme Court stayed the injunction and held the
case in abeyance pending resolution of (the then-styled) Merrill v. Milligan
(No. 21-1086 and No. 21-1087). Ardoin v. Robinson, 142 S. Ct. 2892 (2022).
When Milligan issued one year later, the Supreme Court instructed in
the instant matter as follows: The “[s]tay heretofore entered by the Court on
June 28, 2022 [is] vacated. This will allow the matter to proceed before the
Court of Appeals for the Fifth Circuit for review in the ordinary course and
in advance of the 2024 congressional elections in Louisiana.” Ardoin v.
Robinson, 143 S. Ct. 2654 (2023).
Correspondingly, this court in No. 22-30333, promptly ordered
briefing “addressing [Milligan] and any other developments or caselaw that
would have been appropriate for Rule 28(j) letters over the past year had the
case not been in abeyance.” Mem. to Counsel at 1, Robinson v. Ardoin, No.
22-30333, ECF No. 242 (5th Cir. June 28, 2023). In response, the State urged
this court to vacate the injunction, remand, and “direct the district court to
conduct a trial on the merits and reach a final judgment in advance of the
2024 congressional elections in Louisiana.” Letter at 2, Robinson v. Ardoin,
No. 22-30333, ECF No. 246 (5th Cir. July 6, 2023). On July 17, 2023, the
district court rescheduled the remedial plan hearing that was supposed to
have taken place the previous year—and for which the State had presumably
fully prepared for given the original hearing was only cancelled the day before
it was supposed to occur—for approximately eleven weeks later on October
3-5, 2023, consistent with the Supreme Court’s vacatur of its stay of the
district court’s injunction. Robinson v. Ardoin, Nos. 22-cv-211 and 22-cv-214,
ECF No. 250 (M.D. La. July 17, 2023).
The State then, on July 21, submitted more letter argument, still in No.
22-30333, reiterating its arguments as to both the hearing and also the
unscheduled trial, to “request[] the remedies outlined in [its] July 6, 2023
Letter Brief.” Letter at 1, Robinson v. Ardoin, No. 22-30333 (5th Cir. July 21,
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No. 23-30642
2023). The State argued on August 19, in its reply brief to this court in No.
22-30333, that the hearing and lack of trial date “make[] little sense when the
district court could bring the case to final judgment in time for the 2024
election cycle,” Reply Br. at 2-3 n.2, and sought dismissal of the appeal and
vacatur of the preliminary injunction, id. at 2.
Next, the State moved in the district court to cancel the remedial plan
hearing. Mot., Robinson v. Ardoin, Nos. 22-cv-211 and 22-cv-214, ECF No.
260 (M.D. La. Aug. 25, 2023). That motion was denied, Order, Robinson v.
Ardoin, Nos. 22-cv-211 and 22-cv-214, ECF No. 267 (M.D. La. Aug. 29,
2023), and the State neither appealed the denial nor moved to expedite its
appeal of the preliminary injunction in pursuance of which the hearing is
scheduled.
Despite this procedural history, the State instead separately filed a
mandamus petition seeking to vacate the scheduled district court hearing and
to set a district court trial date. Pet. at 4, In re Landry, No. 23-30642 (5th Cir.
Sept. 15, 2023). On receipt of the petition, I would have consolidated with
No. 22-30333 and reassigned for consideration by that panel, respectful of the
long-pending appeal as well as that panel’s explicit invitation to the parties to
submit argument—which, months before this petition, they did, presenting
the same issues and requesting the same relief. In re Landry, No. 23-30642
(5th Cir. Sept. 17, 2023) (Higginson, J. dissenting from order requesting
responsive briefing).
II. Analysis
Until today, mandamus has been ordered only when a petitioner has
“no other adequate means to attain the relief [it] desires”—thus,
specifically, mandamus “is not a substitute for appeal.” In re Depuy
Orthopaedics, Inc., 870 F.3d 345, 350 (5th Cir. 2017) (citations and internal
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No. 23-30642
quotation marks omitted) (alteration in original).2 While the majority
acknowledges this principle, it factually errs in describing this matter as
“wholly different from the merits appeal.” There could be no more
conclusive proof of the availability of appellate relief than this circumstance,
where the petitioner is already an appellant pressing the same issues and
seeking the same relief, challenging the same injunction in pursuance of which
this hearing was scheduled. There is no support for the assertion that the
hearing, lasting for three days at the beginning of October, is mutually
exclusive with progression to a full merits trial. The State can also, of course,
appeal any remedial plan that the hearing produces. The panel asserts a
prerogative to ignore this as only a “paper right” based on its prediction that
this litigation will “turn into legal chaos” and eventually reach the Supreme
Court. Needless to say, our court has yet to adopt a rule that mandamus lies
where a matter may reach the Supreme Court.
Furthermore, “we limit mandamus to only ‘clear abuses of discretion
that produce patently erroneous results.’” In re Lloyd’s Register N. Am., Inc.,
780 F.3d 283, 290 (5th Cir. 2015) (quoting In re Volkswagen of Am., Inc.,
545
F.3d 304, 310 (5th Cir. 2008)). Oddly, the majority points to this court’s
order denying the State’s motion for a stay pending appeal as evidence that
the State has made the higher showing that it is entitled to mandamus. No
patent error exists here. Quite the opposite. Until today, we have explicitly
assured district judges that they enjoy “broad discretion and inherent
authority to manage [their] docket.” June Med. Servs., L.L.C. v. Phillips,
2022 WL 4360593 at *2 (5th Cir. 2022) (quoting In re Deepwater Horizon, 988
_____________________
2
Contrary to the assertion that “[d]enying mandamus effectively means a two-track set of appeals,” it is the majority that now invites parties to slice and dice in the hopes
of eleventh-hour success in front of a mandamus panel when an earlier-in-time merits panel
has so far declined to act on the same issues, presumably intending to question counsel
about those issues in oral argument.
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F.3d 192, 197 (5th Cir. 2021) (per curiam)). The district court exercised that
discretion when the Supreme Court lifted its stay after a year. The district
court could, with approximately eleven weeks of notice to parties, reschedule
the hearing that had originally been scheduled for well over a year earlier, a
hearing that parties had prepared for because it was not cancelled until the
day before it was supposed to begin. It is this yearlong process that the
majority inexplicably calls a “game of ambush.”
For these reasons, I dissent and would deny the petition.
A True Copy
Certified order issued Sep 28, 2023
Clerk, U.S. Court of Appeals, Fifth Circuit
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