In re Paxton

• Decision Date: 14 November 2022
• Docket Number: 22-50882
• Citation: 53 F.4th 303
• Parties: IN RE Ken PAXTON, Petitioner.
• Court: U.S. Court of Appeals — Fifth Circuit

53 F.4th 303

IN RE Ken PAXTON, Petitioner.

No. 22-50882

United States Court of Appeals, Fifth Circuit.

Filed November 14, 2022

Natalie Deyo Thompson, Office of the Attorney General of Texas, Office of the Solicitor General, Austin, TX, Beth Ellen Klusmann, Esq., Office of the Texas Attorney General, Austin, TX, for Petitioner.

Alexandra Wilson Albright, Attorney, Alexander Dubose & Jefferson, L.L.P., Austin, TX, Kirsten Marisol Castaneda, Alexander Dubose & Jefferson, L.L.P., Dallas, TX, Kevin Hampton Dubose, Alexander Dubose & Jefferson, L.L.P., Houston, TX, Jennifer R. Ecklund, Esq., Elizabeth Myers, Thompson Coburn, L.L.P., Dallas, TX, for Respondents North Texas Equal Access Fund, Lilith Fund for Reproductive Equity, Frontera Fund, Afiya Center, West Fund, Jane's Due Process, Clinic Access Support Network, Ghazaleh Moayedi, Fund Texas Choice.

Before Higginbotham, Duncan, and Wilson, Circuit Judges.

Stuart Kyle Duncan, Circuit Judge:

Believing Texas intends to enforce its abortion laws to penalize their out-of-state actions, Plaintiffs sued Texas Attorney General Ken Paxton. Paxton moved to dismiss the suit for lack of subject matter jurisdiction. Plaintiffs then issued subpoenas to obtain Paxton's testimony. Paxton moved to quash the subpoenas, which the district court initially granted. On reconsideration, however, the district court changed course, denied the motion, and ordered Paxton to testify either at a deposition or evidentiary hearing. Paxton petitioned our court for a writ of mandamus to shield him from the district court's order. We conclude the district court clearly erred by not first ensuring its own jurisdiction and also by declining to quash the subpoenas. We therefore grant the writ.

I.

Plaintiffs are organizations that pay for abortions and an abortion provider (collectively, "Plaintiffs"). They sued Paxton and other officials, claiming the anticipated enforcement of Texas's abortion laws violates their First Amendment rights and their right to interstate travel.¹ Primarily, they seek to enjoin the enforcement of these laws "for any behavior undertaken by Plaintiffs in connection with any abortion that occurs outside the state of Texas[.]" Paxton promptly moved to dismiss the suit for lack of subject matter jurisdiction, arguing that he is entitled to sovereign immunity and that Plaintiffs lack standing.

Before the district court ruled on Paxton's motion to dismiss, Plaintiffs separately subpoenaed Paxton in his official and individual capacities. They contended they were entitled to examine Paxton personally to clarify his power to enforce the challenged laws because his public statements—including official advisories, campaign statements, and tweets—allegedly contradicted his court filings on that point. Paxton moved to quash the subpoenas, and the district court granted the motion. Plaintiffs then moved for reconsideration.

On reconsideration, the district court changed course and ruled Plaintiffs had shown the "exceptional circumstances" necessary to subpoena a high-level official like Paxton. The court thought Paxton's testimony was necessary because he "possesses unique, first-hand knowledge" about his intentions to enforce the challenged laws. His intentions were relevant, the court continued, because Paxton had simultaneously publicly promised to enforce the laws while arguing in court that he lacked the authority to do so. Having "inserted himself into this dispute by repeatedly tweeting and giving interviews about [the challenged laws]," the court concluded that "Paxton alone is capable of explaining his thoughts and statements."

The court also determined that testifying would not unduly burden Paxton. While recognizing that high-level officials have significant duties, the court stated: "It is challenging to square the idea that Paxton has time to give interviews threatening prosecutions but would be unduly burdened by explaining what he means to the very parties affected by his statements." Paxton's "many public statements and interviews," the court thought, belied the notion that testifying would burden his time.

Accordingly, the district court reversed its initial decision, denied the motion to quash, and ordered Paxton "to meaningfully confer on or before October 11, 2022 to agree on the particulars of Paxton's testimony, whether by deposition or evidentiary hearing." The court also stayed Plaintiffs' deadline to respond to Paxton's motion to dismiss "pending Paxton's testimony." That motion remains pending.

Paxton then petitioned us for a writ of mandamus and a stay of the district court's order. He separately filed an interlocutory appeal, arguing that the order constructively denied him sovereign immunity. We granted a temporary administrative stay to consider the petition. We now grant it.

II.

Federal courts "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). One such writ is mandamus, an extraordinary remedy used to correct "a judicial usurpation of power" or a "clear abuse of discretion." Cheney v. U.S. Dist. Ct. for D.C. , 542 U.S. 367, 380, 124 S.Ct. 2576, 159 L.Ed.2d 459 (2004) (citations and internal quotation marks omitted). Typically, the writ serves as a means of "confining the inferior court to a lawful exercise of its prescribed jurisdiction, or of compelling it to exercise its authority when it is its duty to do so." In re Gee , 941 F.3d 153, 158 (5th Cir. 2019) (per curiam) (quoting Ex parte Republic of Peru , 318 U.S. 578, 583, 63 S.Ct. 793, 87 L.Ed. 1014 (1943) ).

Before the writ can issue, three conditions must be met: (1) the petitioner must show his right to the writ is clear and indisputable; (2) the petitioner must have no other adequate means of obtaining relief; and (3) the issuing court must be satisfied in its own discretion that the writ is appropriate under the circumstances. Cheney , 542 U.S. at 380–81, 124 S.Ct. 2576 ; In re Gee , 941 F.3d at 157. Those stringent standards are satisfied here.

A.

We turn first to Paxton's asserted right to relief from the order to testify. Our mandamus cases distinguish a court's discretionary and non-discretionary duties. In re Gee , 941 F.3d at 158. For discretionary duties, "a clear and indisputable right to the issuance of the writ of mandamus will arise only if the district court has clearly abused its discretion, such that it amounts to a judicial usurpation of power." Id. at 158–59 (quoting In re First S. Sav. Ass'n , 820 F.2d 700, 707 (5th Cir. 1987) ). By contrast, violating a non-discretionary duty necessarily creates a clear right to relief because the court lacked authority to deviate from that duty. Ibid.

Paxton argues he has a right to relief under each basis. He contends the district court violated a non-discretionary duty to ensure its own jurisdiction by failing to rule first on his motion to dismiss. Paxton also argues the court abused its discretion by denying his motion to quash. We address argument each in turn.

1.

"A district court's obligation to consider a challenge to its jurisdiction is non-discretionary." In re Gee , 941 F.3d at 159. An appropriate jurisdictional challenge triggers a "duty of making further inquiry as to [the court's] own jurisdiction." Ibid. (quoting Opelika Nursing Home, Inc. v. Richardson , 448 F.2d 658, 666 (5th Cir. 1971) ). Paxton raised such a challenge by moving to dismiss for lack of jurisdiction on both standing and sovereign immunity grounds, well before Plaintiffs subpoenaed him. The district court failed to rule on that motion before refusing to quash the subpoenas. Indeed, in the same order compelling Paxton to testify, the court stayed Plaintiffs' deadline to respond to the motion to dismiss "pending Paxton's testimony."

A court has a fundamental duty to examine its jurisdiction. The district court's failure to do so here extends beyond a "mere jurisdictional error" or "mere failure to spot a jurisdictional issue." Id. at 159. Indeed, the district court's order explicitly postpones Paxton's assertion of sovereign immunity pending his deposition. But sovereign immunity provides immunity from suit, not mere immunity from damages. Russell v. Jones , 49 F.4th 507, 512 (5th Cir. 2022) ; see also Ex Parte Ayers , 123 U.S. 443, 505, 8 S.Ct. 164, 31 L.Ed. 216 (1887) ("The very object and purpose of the eleventh amendment were to prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties."). As such, we have vacated the perfunctory denial of a motion to dismiss predicated on sovereign immunity and remanded for consideration of the motion before any further litigation, even though the district court preferred to put off the motion until "other legal issues were resolved and further discovery was conducted." Texas v. Caremark, Inc. , 584 F.3d 655, 657 (5th Cir. 2009) ; see also Russell , 49 F.4th at 514 ("Where sovereign immunity applies, it applies totally. Plaintiffs stop at the Rule 12(b)(1) stage and don't get discovery. They don't pass go.").

Our recent decision in Carswell v. Camp , 37 F.4th 1062 (5th Cir. 2022), confirms the district court should have first ruled on Paxton's assertion of immunity.² There, the plaintiff sought to depose defendants who had asserted qualified immunity, relying on the district court's scheduling order that allowed limited discovery "if the plaintiff believes discovery is necessary to resolve the [qualified immunity] defense" or if discovery was in the defendant's capacity as a "witness." Id. at 1064–65. While some of our cases had previously allowed "narrow" and "careful" discovery prior to ruling on immunity "if further factual development is necessary to ascertain the availability of [the] defense," Carswell overruled those precedents. Id. at 1066 (citations and internal quotation marks omitted). We explained that "[t]he Supreme Court has now made clear that a...