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June Medical Services, LLC v. Gee

United States District Court, M.D. Louisiana

June 4, 2018

JUNE MEDICAL SERVICES, LLC, ET AL.
v.
REBEKAH GEE, ET AL.

          RULING AND ORDER

          BRIAN A. JACKSON, CHIEF JUDGE.

         Before the Court is the Plaintiffs' Motion to Rescind 28 U.S.C. § 1292(b) Certification (Doc. 79), which requests that the Court revoke its order certifying its ruling on the motion to dismiss (Doc. 60) for interlocutory appeal. For the reasons that follow, the motion is GRANTED.

         I. BACKGROUND

         Plaintiffs, Louisiana doctors and abortion providers, bring an as-applied challenge to numerous Louisiana abortion laws. (Doc. 1 at ¶¶ 13-17). Specifically, Plaintiffs challenge Louisiana's Outpatient Abortion Facility Licensing Laws ("OAFLL"), [1] which governs the personnel, internal policies, facility, reporting, recordkeeping, and licensing of clinics that provide abortion services. (Id. at ¶¶ 4, 50). Additionally, Plaintiffs challenge several enumerated statutes that govern the standards and practices of doctors who perform abortions. (Id. at ¶ 26). Plaintiffs, citing the recent Supreme Court decision Whole Woman's Health v. Hellerstedt, ___ U.S. ___, 136 S.Ct. 2292, 2309 (2016), claim that the cumulative effect of the laws place an undue burden on access to abortion in Louisiana. (Id. at ¶¶ 1-3, 220-22). Plaintiffs further allege procedural due process and Fourth Amendment violations. (Id. at ¶¶ 224-28). The Court allowed Plaintiffs' cumulative effects and Fourth Amendment claims to proceed, but found that Plaintiffs procedural due process claim was not ripe for adjudication. (Doc. 60 at p. 18).

         Finding that Plaintiffs' cumulative effects challenge met the statutory requirements to certify an interlocutory appeal pursuant to 28 U.S.C. § 1292(b), the Court certified its ruling to the United States Court of Appeal for the Fifth Circuit. (Doc. 76). Plaintiffs now request that the Court rescind that order and allow them to amend their complaint. (Doc. 79).

         II. LEGAL STANDARD

         "As long as a district (or an appellate) court has jurisdiction over the case, then (in absence of prohibition by statute or rule), it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory order for cause seen by it to be sufficient." Melancon v. Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981).

         The filing of a notice of appeal for an interlocutory order divests the district court of jurisdiction of any matter that is the subject of the appeal. Alice L. v. Dusek, 492 F.3d 563, 564 (5th Cir. 2007)(per curiam). For a permissive appeal, "[t]he date when the order granting permission to appeal is entered serves as the date of the notice of appeal." Fed. R. App. P. 5(d)(2). Therefore, until the court of appeals grants permission to appeal, the district court retains the authority to reconsider or rescind certification of an order for interlocutory review. See Melancon, 659 F.2d at 553; accord City of Los Angeles, Harbor Div. u. Santa Monica Baykeeper, 254 F.3d 882, 886 (9th Cir. 2001).

         III. DISCUSION

         Defendants' brief raises two issues on appeal:

1. Can Plaintiffs challenge the cumulative effects of Louisiana statutes, regulations, and administrative acts related to licensing of outpatient abortion facilities without challenging them individually1?
2. Can Plaintiffs challenge the cumulative effects of Louisiana statutes, regulations, and administrative acts without specifically identifying them or pleading their standing to challenge them individually?

(Doc. 79-2 at p. 10). Plaintiff argues that these two issues can be resolved by "more granular pleadings regarding Plaintiffs' substantive due process claims, particularly as to OAFLL and its regulations." (Doc. 79-1 at p. 4). Plaintiffs propose, to avoid the potential cost and time of an interlocutory appeal, that the Court should revoke its certification of appeal and provide Plaintiffs until June 11, 2018 to amend their complaint. (Id. at pp. 1, 7).

         Defendants argue that Plaintiffs' amendments are hypothetical and that without a copy of the proposed amended pleadings, the Court should not rescind its earlier order. (Doc. 82 at pp. 1-2). Further, Defendants assert that Plaintiffs have repeatedly declined to amend their complaint or clarify their claims. (Id. at pp. 3-4). Defendants also note that, even if the interlocutory ...


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