United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-30642 

____________ 

In re Jeff Landry, In his official capacity as the Louisiana Attorney 

General; Kyle R. Ardoin, in his official capacity as Louisiana Secretary of 

State, 

Petitioners. 

______________________________ 

Appeal from the United States District Court 

for the Middle District of Louisiana 

USDC Nos. 3:22-CV-211, 3:22-CV-214 

______________________________ 

Before Jones, Higginson, and Ho, Circuit Judges.

By Edith H. Jones, Circuit Judge: 

Louisiana’s Attorney General has filed this request for mandamus 

relief seeking to vacate the district court’s hearing scheduled to begin on 

October 3 and require the district court to promptly convene trial on the 

merits in this congressional redistricting case. We GRANT IN PART, 

ORDERING the District Court to VACATE the October Hearing. 

The reasons for this grant of relief are as follows: 

Redistricting based on section 2 of the Voting Rights Act, 

52 U.S.C. § 10301, is complex, historically evolving, and sometimes 

undertaken with looming electoral deadlines. But it is not a game of ambush. 

Since 1966, the Supreme Court has repeatedly reminded lower federal 

courts that if legislative districts are found to be unconstitutional, the elected 

United States Court of Appeals 

Fifth Circuit 

FILED 

September 28, 2023 

Lyle W. Cayce 

Clerk 

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2 

body must usually be afforded an adequate opportunity to enact revised 

districts before the federal court steps in to assume that authority. In 

Reynolds v. Sims, the Court stated that “legislative reapportionment is 

primarily a matter for legislative consideration and determination.”1

 In 

subsequent cases, 

[t]he Court has repeatedly held that redistricting and 

reapportioning legislative bodies is a legislative task which the 

courts should make every effort not to preempt. When a 

federal court declares an existing apportionment scheme 

unconstitutional, it is therefore, appropriate, whenever 

practicable, to afford a reasonable opportunity for the 

legislature to meet constitutional requirements by adopting a 

substitute measure rather than for the federal court to devise 

and order into effect its own plan. 

Wise v. Lipscomb, 437 U.S. 535, 540, 98 S. Ct. 2493, 2497 (1978) (citations 

omitted). This is the law today as it was forty-five years ago.2

_____________________ 

1

 377 U.S. 533, 586, 84 S. Ct. 1362, 1394 (1964). 

2 See North Carolina v. Covington, 138 S. Ct. 2548, 2554 (2018) (“[S]tate 

legislatures have primary jurisdiction over legislative reapportionment[.]”) (quotation 

marks and citation omitted); McDaniel v. Sanchez, 452 U.S. 130, 150 n.30, 101 S. Ct. 2224, 

2236 (1981) (“Moreover, even after a federal court has found a districting plan 

unconstitutional, redistricting and reapportioning legislative bodies is a legislative task 

which the federal courts should make every effort not to preempt.”) (quotation marks and 

citation omitted); Wise v. Lipscomb, 437 U.S. at 540; Connor v. Finch, 431 U.S. 407, 414-15, 

97 S. Ct. 1828, 1833-34 (1977) (“[A] state legislature is the institution that is by far the best 

situated to identify and then reconcile traditional state policies within the constitutionallymandated framework. . .. The federal courts by contrast possess no distinctive mandate to 

compromise sometimes conflicting state apportionment policies in the people’s name.”); 

Chapman v. Meier, 420 U.S. 1, 27, 95 S. Ct. 751, 766 (1975) (“We say once again what has 

been said on many occasions: reapportionment is primarily the duty and responsibility of 

the State through hits legislature or other body, rather than of a federal court.”); Gaffney 

v. Cummings, 412 U.S. 735, 749, 93 S. Ct. 2321, 2329 (1973) (“Nor is the goal of fair and 

effective representation furthered by making the standards of reapportionment so difficult 

to satisfy that the reapportionment task is recurringly removed from legislative hands and 

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3 

 The district court did not follow the law of the Supreme Court or this 

court. Its action in rushing redistricting via a court-ordered map is a clear 

abuse of discretion for which there is no alternative means of appeal.3

 

Issuance of the writ is justified “under the circumstances” in light of multiple 

precedents contradicting the district court’s procedure here. 

 This case was remanded after the Supreme Court stayed lower court 

proceedings to decide Alabama v Milligan, 143 S. Ct. 1487 (2023). Ardoin v. 

Robinson, 142 S. Ct. 2892 (2022) (cert. dismissed as improvidently granted 

and stay vacated by 143 S. Ct. 2654 (2023)). The district court here had held, 

in June 2022, after an expedited preliminary injunction proceeding, that 

Louisiana’s congressional districts violate section 2, requiring an additional 

majority black congressional district. Robinson v. Ardoin, 605 F. Supp. 3d 759, 

766 (M.D. La. 2022). The district court then ordered the state legislature to 

reconfigure such an additional district within five legislative days. Robinson 

v. Ardoin, 37 F.4th 208, 232 (5th Cir. 2022). Landry pursued an immediate 

appeal and a motion to stay in this court. This court denied a stay, id., but 

_____________________ 

performed by federal courts which themselves must make the political decisions necessary 

to formulate a plan or accept those made by reapportionment plaintiffs who may have 

wholly different goals from those embodied in the official plan. From the very outset, we 

recognized that the apportionment task, dealing as it must with fundamental choices about 

the nature of representation. . . is primarily a political and legislative process.”) (citation 

omitted); Burns v. Richardson, 384 U.S. 73, 85, 86 S. Ct. 1286,1293 (1966) (“[J]udicial relief 

becomes appropriate only when a legislature fails to reapportion according to federal 

constitutional requisites in a timely fashion after having an adequate opportunity to do 

so.”) (quotation marks and citation omitted). 

3

 The dissent contends that the ordinary appellate process suffices. But the dissent 

does not challenge the notion that if the remedial hearing goes forward, the merits of the 

preliminary injunction will be on a separate appellate track from the remedy order. Nor 

does the dissent explain how the panel that will hear the merits of the preliminary injunction 

would have jurisdiction to order relief to the state on the scheduling of the fifteen-monthlater separately litigated remedy hearing, as no Rule 28(j) letter can manufacture appellate 

jurisdiction under 28 U.S.C. § 1291 over the non-final trial setting order. 

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expedited the appeal—until the Supreme Court entered its stay. Ardoin v. 

Robinson, 142 S. Ct. at 2892. 

 A year later, the Supreme Court’s stay was lifted, Ardoin v. Robinson, 

143 S. Ct. at 2654, and the parties completed briefing the merits of the 

preliminary injunction, which another panel of this court will hear in oral 

argument on October 6. 

 Undeterred by the pendency of appeal on the merits, the district court 

opted to go ahead on October 3-5 with an expedited hearing to determine a 

court-ordered redistricting map. But the court provided merely five weeks 

for the state’s preparation. No mention was made about the state 

legislature’s entitlement to attempt to conform the districts to the court’s 

preliminary injunction determinations. 

 This post-merits activity prompted the state to seek a writ of 

mandamus from this court pursuant to 28 U.S.C. § 1651. In this court, 

“mandamus will be granted upon a determination that there has been a clear 

abuse of discretion.” In re Volkswagen of Am., Inc., 545 F.3d 304, 309 (5th 

Cir. 2008) (en banc). As “one of the most potent weapons in the judicial 

arsenal, three conditions must be satisfied” before mandamus may be issued. 

In re Gee, 941 F.3d 153, 157 (5th Cir. 2019) (quoting Cheney v. U.S. Dist. Court 

for D.C., 542 U.S. 367, 380, 124 S. Ct. 2576, 2587 (2004)). The Supreme 

Court has elaborated that: 

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First, the party seeking issuance of the writ [must] have no 

other adequate means to attain the relief he desires—a 

condition designed to ensure that the writ will not be used as a 

substitute for the regular appeals process. Second, the 

petitioner must satisfy the burden of showing that [his] right to 

issuance of the writ is clear and indisputable. Third, even if the 

first two prerequisites have been met, the issuing court, in the 

exercise of its discretion, must be satisfied that the writ is 

appropriate under the circumstances. 

Cheney, 542 U.S. at 380-81 (quotation marks and citations omitted). 

After reviewing the mandamus factors, we conclude that the state is 

entitled to partial mandamus relief. 

1. The state has no other means of relief and is not seeking to use mandamus 

as a substitute for appeal. 

 The only issue before this panel is the scheduling of the remedial 

hearing and potential scheduling for trial on the merits. The events leading 

to this writ application post-date the merits-only preliminary injunction by 

fifteen months. In ruling on this application, we do not discuss the merits. 

Likewise, the decision on the merits of a Section 2 violation of the Voting 

Rights Act has no direct relationship with nor factual nor legal overlap with 

the scheduling issues this panel confronts. 

 That this application presents an unusual posture for mandamus is not 

a contrivance of Landry or this panel but the result of the district court’s 

unique rush to remedy when circumstances did not require it. Moreover, 

because this application is wholly different from the merits of the appeal, the 

state has no adequate remedy by way of appeal. 

 The plaintiffs respond that the state may adequately appeal following 

the decision formulating a court-ordered redistricting plan. That outcome 

would embarrass the federal judiciary and thwart rational procedures. 

Denying mandamus effectively means a two-track set of appeals on the merits 

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6 

and the court-ordered plan. No matter the outcome—or timing—of this 

court’s merits panel determination, one side will seek relief in the Supreme 

Court. Similarly, the anticipated court-ordered redistricting plan will be 

appealed to this court and likely to the Supreme Court. And all of this will 

persist well into the 2024 election year. The likelihood of conflicting courts’ 

scheduling and determinations will create uncertainty for the state and, more 

important, the candidates and electorate who may be placed into new 

congressional districts. In sum, while there is on paper a right to appeal 

whatever decision the district court renders on drawing its own redistricting 

maps, the paper right is a precursor to legal chaos. 

 2. Clear and Indisputable Right

The state contends that it has a clear right to relief because the court’s 

remedial redistricting plan should not be ordered before it has a fulsome 

opportunity to defend itself on the merits of plaintiffs’ section 2 claim.4

 That 

the state lacked a full opportunity to mount a defense on the merits is likely 

accurate. Plaintiffs’ testimony showed that they had been planning a lawsuit 

for months before the legislature effectuated its 2022 redistricting. But under 

the district court’s expedited scheduling, the state had less than four weeks 

to prepare for what became a five-day evidentiary hearing.5

 

 This court’s order denying a stay pending appeal repeatedly noted 

that the panel’s conclusions were only tentative and the plaintiffs’ case had 

clear weaknesses. The court referenced the importance of final adjudication. 

_____________________ 

4

 The state also argues that the plaintiffs’ case became moot after the 2022 election 

cycle ended. This is incorrect, because the district court enjoined all future elections 

pursuant to the allegedly violative state plan, and this reflected the scope of the plaintiffs’ 

demand for relief. 

5

 The state says it had only two weeks before the preliminary injunction hearing to 

prepare expert witness reports, which are critical in legislative redistricting cases. 

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Robinson, 37 F.4th at 222 (“[T]he plaintiffs have much to prove when the 

merits are ultimately decided.”).6 Of course, an order denying stay pending 

appeal cannot be a “merits” ruling and is subject to reconsideration by this 

court, either in the upcoming oral argument or on review of a final judgment. 

Id. at 232 (“Our ruling here concerns only the motion for stay pending 

appeal; our determinations are for that purpose only and do not bind the 

merits panel[.]”) (quotation marks and citations omitted). But the point is 

that this court recognized the hasty and tentative nature of the district court’s 

decision and, at least implicitly, the need for further development of factual 

and legal aspects. Id. (“[N]either the plaintiffs’ arguments nor the district 

court’s analysis is entirely watertight[.]”). 

The progress of the Alabama redistricting litigation in some ways 

parallels this case but is instructive as to full and fair procedures not accorded 

here. First, while that case progressed to a seven-day preliminary injunction 

hearing within about two months after the legislature finalized congressional 

districts, Alabama has never contended that its defense was unduly 

truncated. Allen v. Milligan, 143 S. Ct. 1487, 1502 (2023) (noting that the 

three-judge district court’s preliminary injunction hearing lasted seven days, 

during which it received live testimony from 17 witnesses, reviewed more 

than 1000 pages of briefing and upwards of 350 exhibits while considering 

arguments from 43 different lawyers); Singleton v. Allen, No. 2:21-CV-1291-

AMM, 2023 WL 5691156, at *10 (N.D. Ala. Sept. 5, 2023) (noting that at the 

Alabama remedial hearing, the parties agreed that the Alabama three-judge 

_____________________ 

6

 This court also said the state put all its eggs in one basket, litigating essentially 

that only with race-predominant considerations could the plaintiffs justify a second 

majority-black congressional district. Robinson, 37 F.4th at 217. No litigant, however, is 

bound at trial on the merits to a defense strategy that failed to succeed on a preliminary 

injunction. 

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8 

district court would consider all evidence admitted during the preliminary 

injunction hearing unless counsel raised a specific objection). 

Second, and also pertinent, in the Alabama case on remand from the 

Supreme Court, the three-judge panel afforded the state legislature six weeks 

to propose a new districting plan. See contra Singleton, 2023 WL 5691156 at 

*6-*7 (noting that the Alabama three-judge district court delayed remedial 

proceedings for six weeks after remand from the Supreme Court to allow the 

legislature to pass a new congressional redistricting plan). Last year, with the 

2022 elections fast approaching, the district court prescribed an impossibly 

short timetable for state legislative action amounting to only five legislative 

days. Whatever the propriety of that timetable (about which we express no 

opinion) at that time, there is no warrant for the court’s rushed remedial 

hearing by the first week of October 2023, months in advance of deadlines for 

districting, candidate filing, and all the minutiae of the 2024 elections. Even 

more significant, the Alabama court on remand from the Supreme Court 

afforded the state an adequate opportunity to accomplish a redistricting 

compliant with final judgment. Here, of course, there is no final judgment on 

the merits. But the district court acted ultra vires in rushing to prescribe its 

own maps. 

 As demonstrated above, a court must afford the legislative body that 

becomes liable for a Section 2 violation the first opportunity to accomplish 

the difficult and politically fraught task of redistricting. That is required for 

redistricting litigation to proceed according to its “ordinary course and in 

advance of the 2024 congressional elections in Louisiana”—as the Supreme 

Court’s remand in this case mandated. Ardoin v. Robinson, 143 S. Ct. at 2654. 

Not only has the Supreme Court serially reinforced this duty of lower courts, 

but this court has carefully adhered to these rulings. Nearly forty years ago, 

this court criticized a district court’s rushed, court-ordered redistricting plan 

less than a month and a half following final judgment. Jones v. City of Lubbock, 

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727 F.2d 364, 387 (5th Cir. 1984). We admonished that the court’s 

procedures 

if challenged, would have required that we vacate this order. For 

the sake of future parties, we reiterate briefly some of the 

principles that the district court should bear in mind. 

Apportionment is principally a legislative responsibility. . .. A 

district court should, accordingly, afford to the government 

body a reasonable opportunity to produce a constitutionally 

permissible plan. . .. 

Id. (internal citations omitted) (emphasis added).7

 The district court here 

had no warrant to undertake redistricting (A) through a court-ordered plan 

(B) with no elections impending, (C) on a severely limited pretrial schedule, 

and (D) without having afforded the Louisiana legislature the first 

opportunity to comply with its ruling. 

 “A district court abuses its discretion if it: (1) relies on clearly 

erroneous factual findings; (2) relies on erroneous conclusions of law; or 

(3) misapplies the law to the facts. On mandamus review, we review for these 

_____________________ 

7 See also United States v. Brown, 561 F.3d 420. 435 (5th Cir. 2009) (“[A]t least in 

redistricting cases, district courts must offer governing bodies the first pass at devising a 

remedy[.]”); Rodriguez v. Bexar County, 385 F.3d 853, 869-70 (5th Cir. 2004) (“[D]istrict 

courts should use a great deal of caution in invalidating the results of a duly held election 

and ordering the implementation of its own alternative districting plan. The primary 

responsibility for correcting Voting Rights Act deficiencies rests with the relevant 

legislative body. . .. Both the Supreme Court and this court have admonished district 

courts to afford local governments a reasonable opportunity to propose a constitutionally 

permissible plan and not haphazardly to order injunctive relief.”) (citations and footnote 

omitted); Chisom v. Roemer, 853 F.2d 1186, 1192 (5th Cir. 1988) (“[R]esponsible state or 

local authorities must be first given an opportunity to correct any constitutional or statutory 

defect before the court attempts to draft a remedial plan. In the case at bar, that means that 

should the court rule on the merits that a statutory or constitutional violation exists the 

Louisiana Legislature should be allowed a reasonable opportunity to address the problem. 

We have no reason whatsoever to doubt that the governor and legislature will respond 

promptly.”). 

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types of errors, but we only will grant mandamus relief when such errors 

produce a patently erroneous result.” In re Volkswagen of Am., 545 F.3d at 

310 (citing McClure v. Ashcroft, 335 F.3d 404, 408 (5th Cir.2003)). Here, we 

find that the district court’s errors produced a patently erroneous result. 

 3. Appropriate under the circumstances 

 If this were ordinary litigation, this court would be most unlikely to 

intervene in a remedial proceeding for a preliminary injunction. Redistricting 

litigation, however, is not ordinary litigation. Of course, the law as set forth 

by the Supreme Court’s interpretation of the Constitution and section 2 must 

be vindicated. But the remedy necessarily involves the exercise of discretion 

by federal courts whose judgments will interfere with a primary 

constitutional structural device of self-government: making decennial 

districting choices about representation in legislative bodies. Ever since its 

initial forays into legislative districting, the Supreme Court has explained the 

proper procedure to implement federal court judgments while 

accommodating to the greatest extent the legislatures’ ability to confect their 

own remedial plans. The district court here forsook its duty and placed the 

state at an intolerable disadvantage legally and tactically. 

 Accordingly, we VACATE the remedial order hearing. Further 

scheduling in the case must be done by the district court pursuant to the 

principles enunciated herein.

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James C. Ho, Circuit Judge, concurring: 

I concur. I write to respond to my distinguished dissenting colleague. 

I agree that mandamus is not ordinarily a substitute for appeal. I also 

agree that whatever the district court might have done pursuant to its 

October 3 hearing would eventually be subject to appeal. 

But that does not end the analysis. “[E]xceptional circumstances, 

amounting to a judicial usurpation of power, will justify the invocation of this 

extraordinary remedy.” Allied Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 35 

(1980) (per curiam). So it doesn’t matter that “uncorrectable damage may 

not result if petitioners are forced to wait for a remedy on direct appeal”—

“the clearly erroneous nature of the district court’s order [may] call[] for a 

more immediate remedy.” In re Impact Absorbent Techs., Inc., 106 F.3d 400, 

1996 WL 765327, *3 (6th Cir. 1996) (unpublished table decision) (granting 

mandamus relief to compel dismissal of case). See also, e.g., Holub Indus., Inc. 

v. Wyche, 290 F.2d 852, 856 (4th Cir. 1961). 

Moreover, mandamus relief may be especially warranted where the 

stakes of the litigation are unusually significant. See, e.g., Abelesz v. OTP 

Bank, 692 F.3d 638, 651 (7th Cir. 2012) (granting mandamus relief to compel 

dismissal of case involving “appreciable foreign policy consequences” and 

“astronomical” “financial stakes”). 

Consider, for example, In re Trinity Industries, Inc., No. 14-41067 (5th 

Cir. Oct. 10, 2014). It was asserted there (as here) that the district court had 

no legal basis to hold a particular proceeding (there, it was a trial under the 

False Claims Act). It was further argued that “the litigation stakes . . . are 

unusually high”—namely, the risk of a $1 billion adverse judgment. Id.

Notably, the mandamus panel did not deem the matter beyond the 

scope of the writ—even though any damages award can obviously be 

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reversed later on appeal (as indeed later occurred in that case). To the 

contrary, the mandamus panel acknowledged that “this is a close case.” Id. 

It ultimately denied relief. But the panel went out of its way to caution the 

district court not to proceed. It said that “[t]his court is concerned” about 

the impending proceedings, and warned that the petitioner had presented a 

“strong argument” that the case should not go to trial. Id. The district court 

nevertheless proceeded to trial. So this court subsequently reversed. In 

doing so, this court specifically noted that the district court went to trial 

“despite . . . a caution from this court that the case ought not proceed.” 

United States ex rel. Harman v. Trinity Indus., Inc., 872 F.3d 645, 647 (5th Cir. 

2017).1

As with Trinity Industries, this case presents “unusually high” stakes. 

It doesn’t just delineate how Louisiana voters may exercise their right to vote 

for their elected representatives in the House. It could also impact the course 

of national policy decisions made by Congress—after all, every member of 

Congress has a voice, and a vote, in those deliberations. Whatever the final 

outcome of Louisiana’s redistricting process may be, the people of Louisiana, 

and the country, are entitled to an orderly process that they can trust. 

As the majority explains, it would fly in the face of decades of Supreme 

Court precedent for a district court to usurp the prerogative of the state 

Legislature to take the first crack at drawing a remedial map. Yet that appears 

_____________________ 

1

 I suppose that this mandamus panel could have followed the example in Trinity 

Industries by sounding a similar firm note of warning to the district court here, while 

ultimately denying rather than granting mandamus relief. See, e.g., In re Depuy 

Orthopaedics, Inc., 870 F.3d 345, 347 n.4 (5th Cir. 2017) (noting that “this court has 

routinely held, sometimes in published opinions, that a district court erred, despite 

stopping short of issuing a writ of mandamus”) (collecting cases). But that’s a matter of 

discretion, not restriction. Moreover, if our court’s experience in Trinity Industries teaches 

us anything, it’s that sometimes you need a writ, not a warning. 

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to be what is being contemplated here. As the majority notes, the district 

court gave the State only five legislative days to produce a remedial map. 

The dissent responds that that was a year ago, and suggests that “this 

yearlong process” should have given the State ample time to work. But that 

doesn’t strike me as a realistic understanding of the legislative process. This 

matter has been pending on appeal throughout this period of time—not to 

mention subject to an extended stay by the Supreme Court. And naturally, 

the whole point of any appeal is that the district court ruling could be set 

aside—thereby obviating the need for any remedial effort by the Legislature. 

It seems impractical, to say the least, to expect busy elected officials 

and their staffs to set aside all of the other responsibilities of public office, just 

to focus all of their attention on negotiating a hypothetical remedial plan that 

the courts have not yet even resolved is necessary. And not only impractical, 

but unfair to the citizens of Louisiana, who no doubt seek the attention of 

their elected representatives on countless other pressing matters of 

importance to their communities. 

* * * 

I concur in the grant of mandamus relief.2

_____________________ 

2

 The dissent observes in passing that this mandamus proceeding could have been 

assigned to the pending appeal panel in No. 22-30333. I certainly agree that judges should 

work collaboratively and in a spirit of comity when it comes to the assignment and transfer 

of cases. I’m reminded of our court’s experience in Defense Distributed v. Platkin, 55 F.4th 

486 (5th Cir. 2022), and Defense Distributed v. Platkin, 48 F.4th 607 (5th Cir. 2022), 

involving the unfortunate refusal of a federal district court in New Jersey to heed a request 

to transfer a Texas case back to the relevant district court within our circuit. Had the panel 

in No. 22-30333 requested transfer of this mandamus proceeding to its current docket, I 

imagine I would’ve agreed. But no such request was made. 

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STEPHEN A. HIGGINSON, Circuit Judge, dissenting: 

The Supreme Court has been clear, cautioning long ago that 

mandamus is a “drastic and extraordinary remed[y] . . . reserved for really 

extraordinary causes.” Ex parte Fahey, 332 U.S. 258, 259-60 (1947). Thus, 

settled caselaw confirms that mandamus is not a tool to manage a district 

court’s docket; nor can mandamus substitute for appeal. Yet review of this 

matter’s procedural history shows that mandamus here improperly does 

both. 

I. Procedural History 

This petition, filed by Louisiana Attorney General Jeff Landry and 

Louisiana Secretary of State Kyle Ardoin (“the State”), concerns ongoing 

litigation over Louisiana’s congressional maps. On June 6, 2022, the district 

court preliminarily enjoined the State from conducting any congressional 

elections under the map enacted by the Legislature and ordered the 

Legislature to enact a remedial plan on or by June 20, 2022, at which point 

the district court would otherwise issue additional orders to enact a remedial 

plan. Robinson v. Ardoin, 605 F. Supp. 3d 759, 766-67 (M.D. La. 2022). The 

district court even invited the State to seek more time should it need it, 

explaining that “[i]f Defendants need more time to accomplish a remedy for 

the Voting Rights Act violation, the Court will favorably consider a [m]otion 

to extend the time to allow the Legislature to complete its work.” Robinson 

v. Ardoin, No. 22-00211, ECF No. 182 (M.D. La. June 9, 2022). 

The preliminary injunction was appealed to this court, which 

administratively stayed the injunction, then vacated that stay and denied a 

stay pending appeal, while expediting No. 22-30333. Robinson v. Ardoin, 37 

F.4th 208, 215 (5th Cir. 2022).1

 On the eve of the district court’s remedial 

_____________________ 

1

 Briefing now is complete and our court will hear argument next week. 

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15 

plan hearing, however, the Supreme Court stayed the injunction and held the 

case in abeyance pending resolution of (the then-styled) Merrill v. Milligan

(No. 21-1086 and No. 21-1087). Ardoin v. Robinson, 142 S. Ct. 2892 (2022). 

When Milligan issued one year later, the Supreme Court instructed in 

the instant matter as follows: The “[s]tay heretofore entered by the Court on 

June 28, 2022 [is] vacated. This will allow the matter to proceed before the 

Court of Appeals for the Fifth Circuit for review in the ordinary course and 

in advance of the 2024 congressional elections in Louisiana.” Ardoin v. 

Robinson, 143 S. Ct. 2654 (2023). 

Correspondingly, this court in No. 22-30333, promptly ordered 

briefing “addressing [Milligan] and any other developments or caselaw that 

would have been appropriate for Rule 28(j) letters over the past year had the 

case not been in abeyance.” Mem. to Counsel at 1, Robinson v. Ardoin, No. 

22-30333, ECF No. 242 (5th Cir. June 28, 2023). In response, the State urged 

this court to vacate the injunction, remand, and “direct the district court to 

conduct a trial on the merits and reach a final judgment in advance of the 

2024 congressional elections in Louisiana.” Letter at 2, Robinson v. Ardoin, 

No. 22-30333, ECF No. 246 (5th Cir. July 6, 2023). On July 17, 2023, the 

district court rescheduled the remedial plan hearing that was supposed to 

have taken place the previous year—and for which the State had presumably 

fully prepared for given the original hearing was only cancelled the day before 

it was supposed to occur—for approximately eleven weeks later on October 

3-5, 2023, consistent with the Supreme Court’s vacatur of its stay of the 

district court’s injunction. Robinson v. Ardoin, Nos. 22-cv-211 and 22-cv-214, 

ECF No. 250 (M.D. La. July 17, 2023). 

The State then, on July 21, submitted more letter argument, still in No. 

22-30333, reiterating its arguments as to both the hearing and also the 

unscheduled trial, to “request[] the remedies outlined in [its] July 6, 2023 

Letter Brief.” Letter at 1, Robinson v. Ardoin, No. 22-30333 (5th Cir. July 21, 

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2023). The State argued on August 19, in its reply brief to this court in No. 

22-30333, that the hearing and lack of trial date “make[] little sense when the 

district court could bring the case to final judgment in time for the 2024 

election cycle,” Reply Br. at 2-3 n.2, and sought dismissal of the appeal and 

vacatur of the preliminary injunction, id. at 2. 

Next, the State moved in the district court to cancel the remedial plan 

hearing. Mot., Robinson v. Ardoin, Nos. 22-cv-211 and 22-cv-214, ECF No. 

260 (M.D. La. Aug. 25, 2023). That motion was denied, Order, Robinson v. 

Ardoin, Nos. 22-cv-211 and 22-cv-214, ECF No. 267 (M.D. La. Aug. 29, 

2023), and the State neither appealed the denial nor moved to expedite its 

appeal of the preliminary injunction in pursuance of which the hearing is 

scheduled. 

Despite this procedural history, the State instead separately filed a 

mandamus petition seeking to vacate the scheduled district court hearing and 

to set a district court trial date. Pet. at 4, In re Landry, No. 23-30642 (5th Cir. 

Sept. 15, 2023). On receipt of the petition, I would have consolidated with 

No. 22-30333 and reassigned for consideration by that panel, respectful of the 

long-pending appeal as well as that panel’s explicit invitation to the parties to 

submit argument—which, months before this petition, they did, presenting 

the same issues and requesting the same relief. In re Landry, No. 23-30642 

(5th Cir. Sept. 17, 2023) (Higginson, J. dissenting from order requesting 

responsive briefing). 

II. Analysis 

Until today, mandamus has been ordered only when a petitioner has 

“no other adequate means to attain the relief [it] desires”—thus, 

specifically, mandamus “is not a substitute for appeal.” In re Depuy 

Orthopaedics, Inc., 870 F.3d 345, 350 (5th Cir. 2017) (citations and internal 

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No. 23-30642 

17 

quotation marks omitted) (alteration in original).2 While the majority 

acknowledges this principle, it factually errs in describing this matter as 

“wholly different from the merits appeal.” There could be no more 

conclusive proof of the availability of appellate relief than this circumstance, 

where the petitioner is already an appellant pressing the same issues and 

seeking the same relief, challenging the same injunction in pursuance of which 

this hearing was scheduled. There is no support for the assertion that the 

hearing, lasting for three days at the beginning of October, is mutually 

exclusive with progression to a full merits trial. The State can also, of course, 

appeal any remedial plan that the hearing produces. The panel asserts a 

prerogative to ignore this as only a “paper right” based on its prediction that 

this litigation will “turn into legal chaos” and eventually reach the Supreme 

Court. Needless to say, our court has yet to adopt a rule that mandamus lies 

where a matter may reach the Supreme Court. 

Furthermore, “we limit mandamus to only ‘clear abuses of discretion 

that produce patently erroneous results.’” In re Lloyd’s Register N. Am., Inc., 

780 F.3d 283, 290 (5th Cir. 2015) (quoting In re Volkswagen of Am., Inc., 545 

F.3d 304, 310 (5th Cir. 2008)). Oddly, the majority points to this court’s 

order denying the State’s motion for a stay pending appeal as evidence that 

the State has made the higher showing that it is entitled to mandamus. No 

patent error exists here. Quite the opposite. Until today, we have explicitly 

assured district judges that they enjoy “broad discretion and inherent 

authority to manage [their] docket.” June Med. Servs., L.L.C. v. Phillips, 

2022 WL 4360593 at *2 (5th Cir. 2022) (quoting In re Deepwater Horizon, 988 

_____________________ 

2

 Contrary to the assertion that “[d]enying mandamus effectively means a twotrack set of appeals,” it is the majority that now invites parties to slice and dice in the hopes 

of eleventh-hour success in front of a mandamus panel when an earlier-in-time merits panel 

has so far declined to act on the same issues, presumably intending to question counsel 

about those issues in oral argument. 

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No. 23-30642 

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F.3d 192, 197 (5th Cir. 2021) (per curiam)). The district court exercised that 

discretion when the Supreme Court lifted its stay after a year. The district 

court could, with approximately eleven weeks of notice to parties, reschedule 

the hearing that had originally been scheduled for well over a year earlier, a 

hearing that parties had prepared for because it was not cancelled until the 

day before it was supposed to begin. It is this yearlong process that the 

majority inexplicably calls a “game of ambush.” 

For these reasons, I dissent and would deny the petition. 

Case: 23-30642 Document: 00516912407 Page: 18 Date Filed: 09/28/2023