In Re United States Ex Rel. Drummond

Case: 17-20618 Document: 00514399540 Page: 1 Date Filed: 03/23/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 23, 2018
No. 17-20618
Lyle W. Cayce
Clerk
In re: UNITED STATES OF AMERICA, ex rel; RICHARD DRUMMOND,
Petitioner
Petition for Writ of Mandamus to
the United States District Court
for the Southern District of Texas
USDC No. 4:08-CV-2441
Before PRADO, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
On October 3, 2017, relator Richard Drummond petitioned this Court for
a writ of mandamus directing the United States District Court for the Southern
District of Texas to resolve this False Claims Act case, which has been pending
before District Judge Lynn N. Hughes for over nine years. Specifically,
Drummond sought resolution of several motions which have been pending for
years, specifically: (1) a motion for partial summary judgment (Dkt. # 96, filed
on March 18, 2014), (2) a supplemental motion for summary judgment (Dkt.
# 102, filed on April 25, 2014), and (3) a motion for partial summary judgment
(Dkt. # 160, filed on May 20, 2016).
We requested Judge Hughes file a response to the petition with the Fifth
Circuit’s Clerk’s Office. No response was ever received. Judge Hughes did file
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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No. 17-20618
a response, however, on the district court’s docket indicating that “[t]his case
will come to an end – soon.” Over two months later, on December 28, 2017, the
district court issued an opinion and order (Dkts. ## 206, 207) resolving only
one of the three motions: the latest motion for partial summary judgment (Dkt.
# 160).
On March 12, 2018, we requested letter briefs from the parties
addressing whether the petition had been mooted by the district court’s
December 28 order. The parties timely filed letters indicating that the two
other motions identified in Drummond’s petition had not been resolved and
that the petition was “far from moot.” Since the district court entered its
December 28 order, no other orders of any kind have been entered, no hearings
have been held, and no other update has issued.
Under the All Writs Act, “[t]he Supreme Court and all courts established
by Act of Congress may issue all writs necessary or appropriate in aid of their
respective jurisdictions and agreeable to the usages and principles of law.” 28
U.S.C. § 1651(a). Mandamus “is an extraordinary remedy for extraordinary
causes.” United States v. Denson, 603 F.2d 1143, 1146 (5th Cir. 1979) (en banc).
“A writ of mandamus may issue only if (1) the petitioner has ‘no other adequate
means’ to attain the desired relief; (2) the petitioner has demonstrated a right
to the issuance of a writ that is ‘clear and indisputable;’ and (3) the issuing
court, in the exercise of its discretion, is satisfied that the writ is ‘appropriate
under the circumstances.’” In re Dean, 527 F.3d 391, 394 (5th Cir. 2008)
(quoting In re United States, 397 F.3d 274, 282 (5th Cir. 2005)).
In this case, all three requirements are easily met. This case has been
pending on the district court’s docket for over nine years. Moreover, the two
motions identified in the petition have been pending for approximately four
years. We recognize that this is a complex matter and district court judges have
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broad discretion in managing their dockets. Sims v. ANR Freight Sys., Inc., 77
F.3d 846, 849 (5th Cir. 1996). “However, discretion has its limits.” Id.
The Supreme Court has recognized that “where a district court
persistently and without reason refuses to adjudicate a case properly before it,
the court of appeals may issue the writ ‘in order that [it] may exercise the
jurisdiction of review given by law.’” Will v. Calvert Fire Ins. Co., 437 U.S. 655,
662–63 (1978) (quoting Ins. Co. v. Comstock, 16 Wall. 258, 270 (1873)). Indeed,
this Court is not alone in recognizing that a writ may be appropriate to address
a district court’s undue delay in adjudicating a case properly before it. See In
re Hood, 135 F. App’x 709, 711 (5th Cir. 2005) (holding writ of mandamus was
appropriate to address district court’s seven month delay in entering
judgment); Madden v. Myers, 102 F.3d 74, 79 (3d Cir. 1996) (“[A]n appellate
court may issue a writ of mandamus on the ground that undue delay is
tantamount to a failure to exercise jurisdiction.”); Johnson v. Rogers, 917 F.2d
1283, 1285 (10th Cir. 1990) (granting writ of mandamus where district court
failed to rule on a petition for writ of habeas which had been pending for
fourteen months); McClellan v. Young, 421 F.2d 690, 691 (6th Cir. 1970)
(granting writ of mandamus to address delay in ruling on pending petition for
writ of habeas). Here, the district judge has had ample time to consider the
pending motions—including the nearly six months since Drummond filed his
petition for a writ of mandamus. As the Tenth Circuit aptly put it, “justice
delayed is justice denied.” Johnson, 917 F.2d at 1285. The district court’s delay
in adjudicating this case is simply inexcusable, and this Court is left with no
other option but to grant mandamus relief.
IT IS ORDERED that the petition for writ of mandamus is GRANTED.
District Judge Lynn N. Hughes is ordered to hear and adjudicate the two
pending motions for summary judgment (Dkts. ## 96 and 102) within thirty
days.
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