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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_________________
No. 16- UNITED STATES OF AMERICA, Plaintiff-Appellee v. STATE OF LOUISIANA, et al. , Defendants-Appellants
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA
UNITED STATES’ MOTION TO DISMISS
Pursuant to Federal Rule of Appellate Procedure 27, the United States respectfully moves to dismiss each of the notices of appeal filed in this case for lack of jurisdiction. The district court decision at issue is not a final judgment under 28 U.S.C. 1291. Moreover, the district court properly denied a request to certify its interlocutory ruling for immediate appeal under 28 U.S.C. 1292(b). This Court thus lacks jurisdiction to decide these appeals under either 28 U.S.C. 1291 or 28 U.S.C. 1292. And contrary to defendants’ position, characterizing the district court’s liability determination as a declaratory judgment does not transform a non-
final order into a final judgment, nor does the Declaratory Judgment Act, 28 U.S.C. 2201, grant this Court jurisdiction to decide a premature appeal. PROCEDURAL BACKGROUND
- On July 12, 2011, the United States filed a complaint in the United States District Court for the Middle District of Louisiana against the State of Louisiana, the Louisiana Secretary of State, the Louisiana Department of Health and Hospitals (DHH) and its Secretary, and the Louisiana Department of Children and Family Services and its Secretary (DCFS), for violation of Section 7 of the National Voter Registration Act (NVRA), 52 U.S.C. 20506. Section 7 of the NVRA requires States and state agencies to provide certain voter registration opportunities to applicants for public assistance and disabilities services. 52 U.S.C. 20506(a)(6). Although the United States’ complaint alleges that defendants have violated their NVRA obligations in multiple ways, all of the alleged violations are part of a single cause of action against each defendant for violation of Section 7 of the NVRA. Doc. 1, at 3.^1 The complaint seeks the imposition of a range of declaratory and injunctive relief, including an injunction enjoining defendants from further violating their Section 7 responsibilities and imposing a court-monitored remedial plan to ensure defendants’ future compliance. Doc. 1, at 8-9. The United (^1) “Doc. __, at __” refers to the docket entry and relevant page number(s) filed in United States v. Louisiana , No. 3:11-cv-470 (M.D. La.).
by phone, internet, telephone and mail. Schedler had argued that Louisiana’s public assistance and disability services agencies could lawfully refuse to offer voter registration opportunities to persons who apply for services and assistance by phone, internet, telephone or mail. The district court rejected Schedler’s reading of the statute and held instead that Section 7(a)(6) of the NVRA “must be read to encompass remote transactions” Doc. 456, at 8.
2c. Third, the district court granted in part and denied in part the United States’ motion for summary judgment. See Doc. 456, at 98-107, 111 (addressing United States motion for summary judgment filed at Doc. 346). The district court held that defendants have “violated Section 7 of the NVRA, but the nature and extent of those violatio[ns] remain issues to be tried.” Doc. 456, at 111. Thus, while the district court found certain violations of Section 7, including based upon facts adjudicated in the Scott litigation, the district court concluded that, post- Scott , “the degree of [defendants’] noncompliance remains disputed,” and that further proceedings would be required in order to fully resolve the litigation and craft an appropriate remedy. Doc 456, at 113.
2d. Finally, the district court ordered the parties to submit further briefing “regarding the remedies that they propose and how they propose to adjudicate any and all remaining issues.” See Doc 456, at 111. The district court also required the parties to submit “a single joint document specifically listing and succinctly
describing every alleged violation of the NVRA that either post-dates [the litigation in] Scott or was not adjudicated by [] Scott. ” Doc. 456, at 111.
- The additional briefing ordered by the district court was filed on September 30, 2016. See Doc. 473 (Chart of Alleged NVRA Violations); Docs. 472, 474-476 (parties’ briefs on proposed remedies and further proceedings). The district court has not yet acted on this briefing, either by making supplemental legal determinations, as requested by the United States, or by setting the remaining issues for trial, as requested by defendants. A telephone status conference before the district court is scheduled for October 26, 2016. Doc. 467.
- In the meantime, on August 2, 2016, Secretary Schedler filed a motion requesting that the district court certify “a discrete legal claim” from its July 26, 2016, ruling (Doc. 456) as a final and appealable order pursuant to 28 U.S.C. 1292(b). See Doc. 457. Secretary Schedler requested that the district court certify for immediate appeal the question of whether Section 7 imposes voter registration obligations in connection with remote transactions by public assistance and disability services agencies. On August 29, 2016, the district court denied the request for certification. See Doc. 465. The district court held that the issue, which Schedler had raised in his unsuccessful motion for partial summary judgment, did not present a controlling question of law, that there was not a substantial basis for a difference of opinion on this issue, and that immediate
‘ Order and Ruling on the Motions To Dismiss Filed by Defendants and the Motions for Summary Judgment Filed by the Secretary of State and the United States of America ’ (R. Doc 456), declaring that Defendants have violated the NVRA.” Docs. 469, 470.
ARGUMENT
- The district court has not yet issued a final appealable order in this case. Thus, this court lacks jurisdiction over these appeals. Section 1291 provides for jurisdiction for appeal to the courts of appeals only from “final decisions of the district courts of the United States.” 28 U.S.C. 1291. Under Section 1291, a final judgment is generally regarded as “a decision by the district court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Midland Asphalt Corp. v. United States , 489 U.S. 794, 798 (1989) (citations omitted). No appeal lies from “tentative, informal or incomplete” decisions and decisions that are “but steps towards final judgment in which they will merge.” Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949).
- The district court’s July 26, 2016, order neither ended this litigation on the merits nor “le[ft] nothing for the court to do but execute the judgment.” Midland , 489 U.S. at 798 (citations omitted). In briefing still pending before the district court, the parties dispute what remedies may be warranted, and indeed, whether certain conduct that the United States alleges to violate the NVRA is in
fact prohibited at all by the statute. Thus for example, in their post-summary judgment briefing, DHH and DCFS maintain that some allegations that the United States relies on to demonstrate its entitlement to further injunctive relief are “not *
- NVRA violation[s].” See Doc. 475, at 3. These ongoing disputes are consistent with the district court’s recognition in its July 26, 2016, order that it has yet to fully rule on the nature and scope of defendants’ NVRA violations based on the record already before it.
- That the district court declared in its July 26, 2016, opinion that defendants “have violated Section 7 of the NVRA,” (Doc. 456, at 111), does not convert the opinion into a final judgment. Again, in the same sentence, the district court states that further proceedings would be needed in order to determine “the nature and extent of those violatio[ns].” Doc. 456, at 111. Among the district court’s remaining tasks is to determine the appropriate remedy in this case. It is well-established that orders granting summary judgment on liability, but not fully deciding the question of remedy, are not final orders for purposes of appellate jurisdiction. See Liberty Mut. Ins. Co. v. Wetzel , 424 U.S. 737, 744 (1976) (“[W]here assessment of damages or awarding of other relief remains to be resolved,” judgments “have never been considered to be ‘final’ within the meaning of 28 U.S.C.[] 1291.”); Marshak v. Treadwell , 240 F.3d 184, 190 (3d Cir. 2001)
v. New Horizons Ranch & Ctr., Inc ., 174 F.3d 629, 633 (5th Cir. 1999). Secretary Schedler recognized as much insofar as he sought and was denied a certificate of appealability for this interlocutory ruling. Under Section 1292(b), Schedler had ten days to seek written permission from this Court to proceed after the district court denied his certification motion. He did not do so. As such, there is no appellate jurisdiction under either Section 1291 or Section 1292.
- Counsel for the United States contacted Ms. Celia Cangelosi, counsel for Secretary Schedler, and Mr. Harry J. “Skip” Philips, Jr., counsel for DHH and DCFS. Ms. Cangelosi and Mr. Philips indicated that their clients oppose this motion and that they will be filing oppositions.
- Counsel for the United States attempted to contact counsel for the State of Louisiana, Ms. Angelique Freel. Counsel was unable to speak with Ms. Freel but given the nature of this motion, counsel for the United States assumes that Ms. Freel’s client will oppose this motion.
Respectfully submitted,
VANITA GUPTA Principal Deputy Assistant Attorney General s/ Anna M. Baldwin DIANA K. FLYNN SHARON M. MCGOWAN ANNA M. BALDWIN Attorneys for the United States U.S. Department of Justice Civil Rights Division Appellate Section Ben Franklin Station P.O. Box 14403 Washington, D.C. 20044- (202) 305-
