In re: Greg Abbott ( 2020 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
April 11, 2020
No. 20-50296
Lyle W. Cayce
Clerk
In re: GREG ABBOTT, in his official capacity as Governor of Texas; KEN
PAXTON, in his official capacity as Attorney General of Texas; PHIL
WILSON, in his official capacity as Acting Executive Commissioner of the
Texas Health and Human Services Commission; STEPHEN BRINT
CARLTON, in his official capacity as Executive Director of the Texas Medical
Board; KATHERINE A. THOMAS, in her official capacity as the Executive
Director of the Texas Board of Nursing,
Petitioners
On Petition for Writ of Mandamus to
the United States District Court
for the Western District of Texas
Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM:
On April 10, 2020, we entered a partial administrative stay of the district
court’s April 9 temporary restraining order (“TRO”) against the Texas
Governor’s emergency executive order, GA-09. In our previous mandamus
opinion, we explained that GA-09 seeks to preserve critical medical resources
and slow the spread of the COVID-19 pandemic by postponing certain non-
essential medical procedures for three weeks until April 21, 2020. In re Abbott,
--- F.3d ---, 2020 WL 1685929, at *1 (5th Cir. Apr. 7, 2020). We further
explained that GA-09 “is a concededly valid public health measure that applies
to all ‘surgeries and procedures,’ does not single out abortion, and . . . has an
No. 20-50296
exemption for serious medical conditions.” Id. at *1. The district court’s April
9 TRO restrains operation of GA-09 as to three specific categories of abortion
procedures: (1) medication abortions; (2) abortions for women who would be
more that 18 weeks LMP [“last menstrual period”] on April 22, 2020; and
(3) abortions for women who would be past the legal limit for an abortion in
Texas—22 weeks LMP—on April 22, 2020. Doc. 63. On April 10, Texas officials
sought mandamus relief in our court, as well as filing motions for emergency
stay of the TRO and for a temporary administrative stay of the TRO pending
our consideration of the mandamus petition and emergency stay motion. Later
that same day, we granted a partial administrative stay of the April 9 TRO.
Our stay expressly does not apply to the third category of abortions in the
TRO—namely, abortions for women who would on April 22 be past the legal
limit for abortions in Texas. See In re Abbott, No. 20-50296, ECF 12 at 4 (5th
Cir. Apr. 10, 2020). We simultaneously ordered expedited briefing on the
emergency stay motion to be completed by Monday, April 13 at noon, and
expedited briefing on the mandamus petition to be completed by Wednesday,
April 15 at 2:00 pm. Id.
Our dissenting colleague insists there is something untoward in our
entering a temporary administrative stay here. That is incorrect. Entering
temporary administrative stays so that a panel may consider expedited
briefing in emergency cases is a routine practice in our court. See, e.g., M.D. by
Stukenberg v. Abbott, No. 18-40057, ECF 12 (5th Cir. Jan. 19, 2018) (granting
“temporary, administrative stay . . . to provide sufficient time to receive any
opposition and fairly consider whether a formal stay pending appeal should
issue or whether this temporary stay should be dissolved”) (Dennis, Southwick,
and Higginson, JJ.). This routine action falls within the “power inherent in
every court to control the disposition of the causes on its docket with economy
of time and effort for itself, for counsel, and for litigants.” Landis v. N. Am. Co.,
2
No. 20-50296
299 U.S. 248, 254 (1936). Moreover, as we have explained, the panel has
ordered expedited briefing on the underlying stay motion and mandamus
petitions that will be completed by Monday and Wednesday of next week,
respectively. The merits issues discussed by the dissenting opinion will be more
appropriately addressed in the context of those expedited proceedings.
IT IS ORDERED that respondents’ emergency motion to lift the partial
administrative stay entered by this Court on April 10, 2020, is DENIED.
JAMES L. DENNIS, Circuit Judge, dissenting.
I would grant the motion to lift the administrative stay. As the
petitioners note, the authority to administratively stay a lower court order
while this court considers a matter is within our inherent discretionary powers,
and the standard for its use is only that it is warranted in our reasoned
judgment. See Landis v. N. Am. Co., 299 U.S. 248, 254 (1936). So too then is
the power to lift such a stay, and I believe doing so is warranted here.
The district court in this case reviewed the evidence and made detailed
factual findings as to why applying the Executive Order to the classes of
abortion at issue here would not preserve personal protective equipment or
hospital capacity. Indeed, the district court found that doing so would have a
net negative effect on the conservation of both resources and on the overall
effort to combat the COVID-19 pandemic. By contrast, the district court found
that temporarily barring the respondents from performing these procedures
would permanently deny many people the fundamental bodily autonomy to
which they are constitutionally entitled and subject many more to greatly
increased financial costs and elevated risk to their health, safety, and general
well-being. Based on my preliminary review, these findings are not clearly
erroneous—the record is replete with accounts of the devastating effect the
Executive Order has already had on these people’s lives, many of whom were
3
No. 20-50296
already experiencing great personal and economic hardship as a result of the
pandemic.
Thus, the administrative stay does not operate simply to preserve the
status quo to facilitate our review of the lower court decision. Instead, the risk
that it will inflict—and is currently inflicting—real, tangible harm far
outweighs the risk that harm may result from leaving the district court’s order
in effect while we decide the petitioners’ emergency motion for a stay on the
merits. I therefore respectfully dissent.
4