IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 12-50332

In re: TIME WARNER CABLE, INCORPORATED; TEXAS CABLE

ASSOCIATION, 

 Petitioners

Petition for Writ of Mandamus

to the United States District Court

for the Western District of Texas

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.*

PER CURIAM:**

This lawsuit began nearly seven years ago. In January of this year, we 1

held under well-settled precedent that the provisions excluding only certain

incumbents from a statewide franchise violated the First Amendment. Time

Warner Cable Inc. v. Hudson, 667 F.3d 630, 642 (5th Cir. 2012). Furthermore,

United States Court of Appeals

Fifth Circuit

F I L E D

May 18, 2012

Lyle W. Cayce

Clerk

 Thomas M. Reavley, Circuit Judge, concurs in the judgment only. *

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.

The district court initially dismissed the complaint under Federal Rule of Civil 1

Procedure 12(b)(6) for lack of standing and ripeness, but this court reversed and remanded.

Tex. Cable & Telecomms. Ass’n v. Hudson, 265 F. App’x 210, 219 (5th Cir. 2008). The parties

filed competing motions for summary judgment on remand. After the motions were fully

briefed, however, the district court took no action for two years despite repeated requests for

action. The district court ultimately denied the plaintiffs’ motion and granted the defendants’

motion for summary judgment, but this court again reversed and remanded. Time Warner

Cable Inc. v. Hudson, 667 F.3d 630, 642 (5th Cir. 2012). 

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we urged the district court to handle the remand “expeditiously,” given the

plaintiffs’ long wait to validate time-sensitive rights. Id. On remand, the

plaintiffs moved for an order enjoining the defendants from enforcing the

unconstitutional exclusion. After more than thirty days with no response from

the district court, the plaintiffs applied for a statewide franchise, but the Public

Utility Commission (PUC) denied the franchise because of the district court’s

failure to act. Finally, over one hundred days after our judgment, the district 2

court denied the plaintiffs’ motion and entered a stay of the proceedings pending

the resolution of the defendants’ petition for certiorari before theSupreme Court. 

We have serious concerns that the district court’s continued delay deviates

from our mandate. See United States v. Lee, 358 F.3d 315, 321 (5th Cir. 2004)

(“[A] lower court on remand must implement both the letter and the spirit of the

appellate court’s mandate and may not disregard the explicit directives of that

court.”). Moreover, “[i]t is well established that an inferior court has no power 3

or authority to deviate from the mandate issued by an appellate court.” League

of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438 (5th

Cir. 2012) (quoting Briggs v. Penn. R.R. Co., 334 U.S. 304, 306 (1948)). We are

also mindful that Congress has only authorized the court of appeals or a Justice

of the Supreme Court to stay the execution or enforcement of the court of

The defendants opposed the plaintiffs’ application because the district court had not 2

yet acted on remand. The PUC denied Time Warner’s application. Although it acknowledged

that this court held the exclusions unconstitutional, the agency wrote that “the Fifth Circuit

and the district court have yet to enjoin or otherwise alter the operation” of the exclusion, and

it therefore “remains unchanged for now.” It is unfortunate that the PUC has taken the

position that it will not change an operation deemed unconstitutional.

Our review of the defendants’ arguments to the district court indicate that they seek 3

to relitigate issues that this court has already decided, such as whether the amended statute’s

exclusion of only certain incumbents violates the First Amendment. “A litigant who . . . has

obtained judgment in this Court after a lengthy process of litigation, involving several layers

of courts, should not be required to go through that entire process again to obtain execution

of the judgment of this Court.” Gen. Atomic Co. v. Felter, 436 U.S. 493, 497 (1976). Here, the

mandate requires no additional fact finding. The unconstitutional portions of the statute may

not be used to exclude only certain incumbents from a statewide franchise.

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appeals’ judgment pending a petition for certiorari. 28 U.S.C. § 2101(f); Byrne

v. Roemer, 847 F.2d 1130, 1134 (5th Cir. 1988). 

Nevertheless, mandamus is an extraordinary remedy available only when,

inter alia, there is no other adequate means to attain relief. In re Volkswagen

of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc). Therefore, we decline

to issue the writ of mandamus here where the district court’s denial of the

requested injunction is immediately appealable, and plaintiffs may file an

expedited appeal pursuant to 28 U.S.C. § 1292(a)(1) and Rule 2 of the Federal

Rules of Appellate Procedure. In re Morton, 2012 WL 470177 (5th Cir. 2012)

(unpublished).

Any further appeal or interim motions will be heard by this panel. See

League of United Latin Am. Citizens, 847 F.3d at 440; Tex. Med. Providers

Performing Abortion Servs. v. Lakey, 667 F.3d 570, 572 (5th Cir. 2012). 

It is ORDERED that the petition for writ of mandamus is DENIED.

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