Mandamus denied; guidance given.

Originally published by David Coale.

The Fifth Circuit will not ordinarily grant a writ of mandamus about the erroneous denial of a motion to dismiss for lack of subject matter jurisdiction. But in In re Gee, a sweeping challenge to Louisiana’s abortion laws, the Court observed:

“Here, the combination of five federalism concerns makes this a special circumstance and distinguishes it from an ordinary case: (1) A sovereign State is requesting the writ; (2) Plaintiffs seek sweeping review of an entire body of state law; (3) Plaintiffs seek structural injunctions that would give the district court de facto control of state law; (4) the type of discovery waiting on the other side of Louisiana’s motion to dismiss is categorically different than what awaits an ordinary civil litigant; and (5) the ordinary civil litigant cannot demand attorneys’ fees from the State’s taxpayers.”

The Court declined to grant the writ at this stage and after its detailed analysis of the relevant issues, observing

“. . . two reasons. First, it’s not clear from the district court’s order how it would resolve the State’s jurisdictional challenge. And second, much of the State’s argument in its mandamus petition goes beyond jurisdiction. In particular, the State argues that Plaintiffs’ “cumulative-effects challenge” is not cognizable. But that challenge might change after the district court conducts its claim-by-claim analysis of Plaintiffs’ standing. So in our view, resolution of whether that challenge is cognizable should await the district court’s jurisdictional analysis.”

No. 19-30353 (Oct. 18, 2019).

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