In re: Michael Morton

Filing

UNPUBLISHED OPINION ORDER filed denying petition for writ of mandamus [7010721-2]. IT IS FURTHER ORDERED that the motion of the petitioner to stay the district court order of February 3, 2012, pending disposition of the petition is DENIED as MOOT [7010726-2]. (IN DETAIL) Judge: JLD, Judge: EBC, Judge: PRO [12-50111]

Case: 12-50111

Document: 00511757351

Page: 1

Date Filed: 02/13/2012

IN THE UNITED STATES COURT OF APPEALS
United States Court of Appeals
Fifth Circuit

FOR THE FIFTH CIRCUIT
_____________________

FILED
February 13, 2012

No. 12-50111
_____________________

Lyle W. Cayce
Clerk

In re: MICHAEL R. MORTON,
Petitioner.
__________________________
Petition for a Writ of Mandamus
to the Western District of Texas
No. 5:96-CV-808
__________________________
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
Because an expedited appeal pursuant to 28 U.S.C. § 1292(a)(1) and Rule
2 of the Federal Rules of Appellate Procedure is available, Petitioner Michael R.
Morton cannot make the requisite showing for issuance of a writ of mandamus.
Accordingly, we deny Morton’s petition.
I
A consent decree entered more than fifteen years ago requires the city of
Boerne, Texas (the City) to employ an at-large cumulative voting method in
selecting members of the city council. Previously, the district court modified that
decree to provide for single-member voting districts. On appeal, another panel
of this court reversed and remanded, holding that there was insufficient

*

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Date Filed: 02/13/2012

No. 12-50111
evidence before the district court to support the modification.1 On remand, the
district court entered a temporary order, once again ordering that the upcoming
May 2012 city council elections be based on single-member districts. Morton has
petitioned this court for a writ of mandamus and moved for a stay of the district
court’s temporary order.
II
“[T]he Supreme Court has established three requirements that must be
met before a writ may issue: (1) ‘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’; (2) ‘the petitioner must satisfy the burden of showing that [his]
right to issuance of the writ is clear and indisputable’; and (3) ‘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.’”2
Morton’s petition fails because he has other adequate means to attain the
relief he desires. This court has jurisdiction of appeals from interlocutory orders
“granting, continuing, modifying, refusing or dissolving injunctions, or refusing
to dissolve or modify injunctions” as well as orders “hav[ing] the practical effect
of granting or denying [an] injunction[]” if the order threatens “‘serious, perhaps
irreparable, consequence,’ and . . . can be ‘effectually challenged’ only by
immediate appeal.”3 The 1996 consent decree granted injunctive relief. The
1

League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438-40
(5th Cir. 2011).
2

In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir. 2008) (en banc) (alteration
in original) (quoting Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380-81 (2004)).
3

28 U.S.C. § 1292(a)(1); Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271,
287-88 (1988); Carson v. Am. Brands, Inc., 450 U.S. 79, 84 (1981) (quoting Balt. Contractors,
Inc. v. Bodinger, 348 U.S. 176, 181 (1955)); see also McLaughlin v. Miss. Power Co., 376 F.3d

2

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No. 12-50111
district court’s February 3, 2012 temporary order at issue in Morton’s petition
is an order modifying the 1996 injunction. It is not a temporary restraining
order. It falls within 28 U.S.C. § 1292(a)(1).
Although Morton argues that it would be impossible to obtain meaningful
appellate relief pursuant to the normal appeals process due to the impending
May 12, 2012 elections, Rule 2 of the Federal Rules of Appellate Procedure
permits this court “to suspend any provision of [the Federal Rules of Appellate
Procedure] in a particular case and order proceedings as it directs” in order “to
expedite its decision or for other good cause.”4

Accordingly, 28 U.S.C.

§ 1292(a)(1) and Rule 2 provide Morton with other adequate means to attain
review of the district court’s temporary order, including the immediate filing of
an interlocutory appeal.
*

*

*

IT IS ORDERED that the petition for writ of mandamus is DENIED.
IT IS FURTHER ORDERED that the motion of the petitioner to stay
the district court order of February 3, 2012, pending disposition of the petition
is DENIED as MOOT.

344, 352 (5th Cir. 2004).
4

FED. R. APP. P. 2.

3