Andrew Willey v. Harris County District Atty ( 2020 )

Case: 20-20495 Document: 00515668340 Page: 1 Date Filed: 12/09/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 9, 2020
No. 20-20495
Lyle W. Cayce
Summary Calendar
Clerk
Andrew Willey,
Plaintiff—Appellant,
versus
Harris County District Attorney,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:20-CV-1736
Before King, Smith, and Wilson, Circuit Judges.
Per Curiam:*
Attorney Andrew Willey brought this civil rights action against the
district attorney, seeking injunctive relief against her enforcement of the
Texas barratry statute, specifically Texas Penal Code § 38.12(d)(2)(B), alleg-
ing an unconstitutional restraint on Willey’s First Amendment rights. The
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this opin-
ion should not be published and is not precedent except under the limited circumstances
set forth in 5th Circuit Rule 47.5.4.
Case: 20-20495 Document: 00515668340 Page: 2 Date Filed: 12/09/2020
No. 20-20495
district court conducted a hearing on August 3, 2020, stating that it might
need additional information. Four days later, Willey both responded to the
court’s request for more information and moved for the judge’s recusal. On
August 28, 2020, Willey filed a supplemental memorandum in support of an
injunction. Although the district court has not yet ruled on the request for
injunction, Willey, on September 21, 2020, filed the instant notice of appeal
“from [the district] Court’s denial of Mr. Willey’s Motion for Preliminary
Injunction, entered in this action on the 18 [sic] day of September, 2020.”
The docket sheet reflects no entry for that or any adjacent date.
In her brief on appeal, the district attorney correctly asserts that we
are without appellate jurisdiction. Willey asserts jurisdiction under
28 U.S.C. § 1292(a)(1), which allows appeals from “[i]nterlocutory orders of
the district courts . . . refusing . . . injunctions . . . .” But the district court
has yet to rule. Willey urges that “the district court’s decision to delay Wil-
ley’s motion for a preliminary injunction is effectively a denial of that motion
under the circumstances of this case.” Willey accurately cites old precedent
from this court saying that, in limited circumstances, a delay in ruling is tan-
tamount to denial. See Gray Line Motor Tours, Inc. v. City of New Orleans,
498 F.2d 293, 296 (5th Cir. 1974); United States v. Lynd, 301 F.2d 818, 822
(5th Cir. 1962).
The general rule is that
[a]ppeal cannot be achieved simply by asserting that the trial
court has failed to act as promptly as wished by a party seeking
an injunction. Adequate time must be allowed for reasoned
consideration and disposition in light of the complexities of the
case, the urgency of preliminary relief as a means of preserving
the opportunity for effective permanent relief, and competing
docket demands. The trial court, moreover, must bear primary
responsibility for managing these problems as matters of dis-
cretion. Jurisdiction should be asserted only on a strong show-
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Case: 20-20495 Document: 00515668340 Page: 3 Date Filed: 12/09/2020
No. 20-20495
ing of apparent need.
16 Charles A. Wright et al., Federal Practice and Proce-
dure § 3924.1, at 181 (3d ed. 2012). That general practice obtains here.
There is nothing untoward about the district court’s plenary consider-
ation of an issue of first impression regarding the constitutionality of a signifi-
cant state statute. We trust that the court will rule as soon as practicable.
Nor, at this stage, has Willey shown exigency. As the district attorney points
out, “[t]he political speech that is being restrained is Willie’s uninvited soli-
citation of criminal defendants who are already represented by counsel.”
(Emphasis in original.)
We express no view on how long the district court can wait to rule
before its delay confers appellate jurisdiction. Nor do we opine or even hint
as to the ultimate merits of Willie’s contentions. We only know that at this
point in the proceedings, appellate jurisdiction is wanting. The appeal is
DISMISSED.
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