United States Court of Appeals

for the Fifth Circuit

No. 22-30425

June Medical Services, L.L.C., on behalf of its patients, 

physicians, and staff, doing business as Hope Medical 

Group for Women; Bossier City Medical Suite, on 

behalf of its patients, physicians, and staff; Choice 

Incorporated of Texas, on behalf of its patients, 

physicians, and staff, doing business as Causeway 

Medical Clinic; John Doe 1; John Doe 2, 

Plaintiffs—Appellees,

versus

Courtney N. Phillips, Doctor, in her official capacity 

as Secretary of the Louisiana Department of Health, 

Defendant—Appellant.

Appeal from the United States District Court 

for the Middle District of Louisiana 

USDC No. 3:14-CV-525

Before Jolly, Dennis, and Higginson, Circuit Judges.

United States Court of Appeals

Fifth Circuit

FILED

September 21, 2022

Lyle W. Cayce

Clerk

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E. Grady Jolly, Circuit Judge: 

This case concerns two orders. Following Dobbs v. Jackson Women’s 

Health Org., 142 S. Ct. 2228 (2022), the State of Louisiana filed an

“emergency Rule 60(b) motion to vacate permanent injunction” concerning 

the enforcement of Act 620, which requires physicians performing abortions 

to have “active admitting privileges” within thirty miles of the facility at 

which the abortions are performed. La. R.S. 40:1299.35.2(A)(2). It requested 

relief forthwith or, alternatively, relief within two days of filing its motion. 

Two days later, the district court denied the State’s motion. The State

immediately filed an “emergency motion for reconsideration” and requested 

a ruling by the next day. The district court again denied the State’s motion.

The State has appealed the two orders, but because this court lacks appellate 

jurisdiction, we DISMISS. 

The question before us is whether this court has jurisdiction over this 

appeal. To address this question, we must look to the scope of the district 

court’s orders. 

The State first contends that we have jurisdiction under 28 U.S.C. 

§ 1292(a)(1), which gives this court jurisdiction over interlocutory orders 

“continuing . . . or refusing to dissolve or modify injunctions.” We disagree. 

“An order by a federal court that relates only to the conduct or progress of 

litigation before that court . . . is not appealable under § 1292(a)(1).” 

Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 279 (1988) 

(citing Switzerland Cheese Ass’n. v. E. Horne’s Mkt., Inc., 385 U.S. 23, 25 

(1966)). We read the district court’s orders as such.

In the first order, the district court stated that it would not grant the 

State the requested relief but would “take up [this] issue after full briefing . . . 

in compliance with and within the deadlines established.” In our view, this 

order constitutes “an administrative decision by the district court to manage 

its docket.” Int’l Ass’n of Machinists & Aerospace Workers Loc. Lodge 2121 

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AFL–CIO v. Goodrich Corp., 410 F.3d 204, 210 (5th Cir. 2005) (holding that 

this court lacked jurisdiction over orders staying cases pending arbitration).

Our reading is only bolstered by the district court’s clarification in its second 

order, in which it specifically stated that it “did not deny [the State] the 

underlying relief it sought” and would not grant the State relief until both 

sides had “an opportunity for full briefing.” We do not construe either of 

these orders, together or separately, to deny the State’s request for vacatur 

on the merits. Instead, we construe the orders as denying only expedited relief. 

See e.g., Shanks v. City of Dallas, 752 F.2d 1092, 1095 (5th Cir. 1981) 

(distinguishing “between those orders that dispose of the claim for relief on 

the merits or on jurisdictional grounds and those that relate only to pretrial 

procedures,” since the § 1292(a)(1) exception does not apply to the latter).

It is true that the district court stated that it denied without prejudice 

the State’s motion to dissolve the permanent injunction. But to interpret this 

as a denial of the State’s motion on the merits requires a selective reading of 

both orders, which this court has previously cautioned against. E.E.O.C. v. 

Kerrville Bus Co., 925 F.2d 129, 132 (5th Cir. 1991) (“[T]here must be some 

additional, substantial indication—whether from the language of the order, 

or the grounds on which it rests, or the circumstances in which it was 

entered—that the district court was acting specifically to deny injunctive 

relief.”). In context, the district court’s words do not constitute an 

appealable order. The first order indicates that the district court would defer 

ruling on the State’s underlying motion until after full briefing by both 

parties.1 The district court goes even further in its second order by explicitly 

1 The district court’s first order states in relevant part: 

That part of Defendant’s motion seeking expedited relief is denied. The subject 

of this motion is a matter of considerable importance to the State and its citizens and 

involves complicated issues of procedural and substantive law. The Court finds that 

granting this motion with only two days consideration is unreasonable and unwarranted.

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clarifying that its first order did not deny “the underlying relief sought.”2

The district court’s orders cannot be read to have denied the underlying 

request for relief when the district court implicitly and explicitly stated its 

intent to defer a ruling on the matter.3

Alternatively, the State urges jurisdiction because the district court’s 

orders have the “practical effect” of refusing to dissolve an injunction, which 

continues to cause irreparable harm that can only be effectively challenged by 

immediate appeal. We cannot agree.

To have the “practical effect” of refusing to dissolve an injunction, 

the State must show that the orders have a “direct impact on the merits of 

the controversy.” See Shanks, 752 F.2d at 1095. We again note that the 

district court’s orders did not touch the merits of the State’s underlying 

request for relief but, for the same reasons stated earlier, acted as the 

functional equivalent of a scheduling order. See Switzerland Cheese Ass’n, Inc. 

v. E. Horne’s Market, Inc., 385 U.S. 23, 25 (1966) (“Orders that in no way 

touch on the merits of the claim but only relate to pretrial procedures are not 

in our view ‘interlocutory’ within the meaning of § 1292(a)(1).”).

However, Defendant’s motion to dissolve the permanent injunction in this matter is denied 

without prejudice. The Court will take up this issue after full briefing is submitted by the 

parties in compliance with and within the deadlines established by this Courts local rules.

2 The relevant text in the second order reads: “The Court did not deny Defendant 

the underlying relief it sought; it merely found that, considering the importance of this 

matter and the procedural issues involved with Rule 60(b), the Court would not grant 

Defendant relief without an opportunity for full briefing, by both sides.”

3 To the extent the district court did address the merits of the State’s request for 

relief, it noted that “Plaintiffs appear to have an uphill battle,” as recent cases “severely 

undercut” the law on which the injunction stood. Nevertheless, the district court said this 

was “a question for another day.”

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Lastly, we hold that the State has not shown it is entitled to 

mandamus.4 “Only a showing of exceptional circumstances amounting to a 

judicial usurpation of power or a clear abuse of discretion will justify granting 

a mandamus petition.” In re Depuy Orthopaedics, Inc., 870 F.3d 345, 350 (5th 

Cir. 2017) (cleaned up) (listing permissible scenarios warranting mandamus).

Even if the district court’s initial order and its reconsideration denial are not 

the functional equivalent of a scheduling order, the district court did not 

abuse its discretion denying the only motion presented to it—one to vacate 

forthwith or within two days. A district court “has broad discretion and 

inherent authority to manage its docket.” In re Deepwater Horizon, 988 F.3d 

192, 197 (5th Cir. 2021) (per curiam). This district court acted prudently, 

with no evident dilatory purpose. The State has not persuaded this court that 

the district court abused its discretion when the district court refused to rule 

on the State’s motion in the expedited fashion requested. 

For the reasons stated above, we dismiss this appeal for lack of 

appellate jurisdiction and deny the State’s alternative petition for 

mandamus.5 To be sure, however, we respectfully direct the district court to 

expeditiously address any merits claims that may be submitted by the 

respective parties and to enter an order accordingly. 

APPEAL DISMISSED; MANDAMUS DENIED. 

4 This court has already considered and denied the State’s mandamus petition. The 

State has again presented this issue as an alternative request to its appeal. 

5 The motion of June Medical to dismiss this appeal is denied as moot. 

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