In re United States ex rel. Drummond

• Decision Date: 23 March 2018
• Docket Number: No. 17-20618,17-20618
• Citation: 886 F.3d 448
• Parties: IN RE: UNITED STATES of America, EX REL.; Richard DRUMMOND, Petitioner
• Court: U.S. Court of Appeals — Fifth Circuit

886 F.3d 448

IN RE: UNITED STATES of America, EX REL.; Richard DRUMMOND, Petitioner

No. 17-20618

United States Court of Appeals, Fifth Circuit.

Filed March 23, 2018

Mitchell Reed Kreindler, Kreindler & Associates, Houston, TX, for Petitioner

George William Vie, III, Mills Shirley, L.L.P., Galveston, TX, Eric J. R. Nichols, Beck Redden, L.L.P., Austin, TX, John M. Zavitsanos, Esq., Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, P.C., Houston, TX, for Respondent Bestcare Laboratory Services, L.L.C.

George William Vie, III, Mills Shirley, L.L.P., Galveston, TX, John M. Zavitsanos, Esq., Ahmad, Zavitsanos, Anaipakos, Alavi & Mensing, P.C., Houston, TX, for Respondent Karim A. Maghareh

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 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 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, 98 S.Ct. 2552, 57 L.Ed.2d 504 (1978) (quoting Ins. Co. v. Comstock , 83 U.S. 258, 16 Wall. 258, 270, 21 L.Ed. 493 (187...