IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-20618

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.

United States Court of Appeals

Fifth Circuit

FILED

March 23, 2018

Lyle W. Cayce

Clerk

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No. 17-20618

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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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