Petition for Writ of Certiorari — Whole Woman's Health, et al., Petitioners v. Texas Catholic Conference of Bishops, et al.

No. _________

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------WHOLE WOMAN’S HEALTH; et al.,

Petitioners,

v.

TEXAS CATHOLIC CONFERENCE OF BISHOPS,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fifth Circuit

-----------------------------------------------------------------PETITION FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------MOLLY DUANE

AUTUMN KATZ

CAROLINE SACERDOTE

CENTER FOR

REPRODUCTIVE RIGHTS

199 Water Street, 22nd Floor

New York, NY 10038

PATRICK J. O’CONNELL

LAW OFFICES OF PATRICK J.

O’CONNELL PLLC

2525 Wallingwood Drive,

Bldg. 14

Austin, TX 78746

STEPHANIE TOTI

Counsel of Record

DAVID BROWN

LAWYERING PROJECT

25 Broadway, 9th Floor

New York, NY 10004

(646) 490-1083

stoti@lawyeringproject.org

J. ALEXANDER LAWRENCE

MORRISON & FOERSTER LLP

250 W. 55th Street

New York, NY 10019

Attorneys for Petitioners

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

(1) Whether the court of appeals’ decision to exercise

jurisdiction over an interlocutory appeal from a

discovery order rejecting a claim of privilege conflicts with this Court’s decision in Mohawk Industries, Inc. v. Carpenter, 558 U.S. 100 (2009).

(2) Whether this Court should exercise its supervisory power to vacate the court of appeals’ decision

given that it contains significant legal errors;

opines at length about constitutional issues that

do not form the basis of its decision; comments on

the merits of Plaintiffs’ underlying claims, which

were still being litigated in the district court; and

makes unfounded allegations of religious bias and

witness intimidation against the district judge

and Plaintiffs’ counsel.

ii

PARTIES TO THE PROCEEDING AND

CORPORATE DISCLOSURE STATEMENT

The parties to the proceeding in the court of appeals were Plaintiff-Appellees Whole Woman’s Health;

Brookside Women’s Medical Center, P.A., doing business as Brookside Women’s Medical Center and Austin

Women’s Health Center; Lendol L. Davis, M.D.; Alamo

City Surgery Center, P.L.L.C., doing business as Alamo

Women’s Reproductive Services; Whole Woman’s

Health Alliance; and Bhavik Kumar, M.D.; MovantAppellant Texas Catholic Conference of Bishops; and

Defendant-Appellee Charles Smith, Executive Commissioner of the Texas Health and Human Services

Commission, in his official capacity.

None of the parties are publicly held corporations,

none have parent corporations, and none issue stock.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

PARTIES TO THE PROCEEDING AND CORPORATE DISCLOSURE STATEMENT ...........

ii

TABLE OF AUTHORITIES .................................

v

OPINIONS BELOW.............................................

1

JURISDICTION ...................................................

1

PROVISIONS OF LAW INVOLVED ...................

1

INTRODUCTION ................................................

2

STATEMENT OF THE CASE..............................

4

I.

Underlying Case History ...........................

4

II.

Plaintiffs’ Subpoena and TCCB’s Motion

to Quash.....................................................

4

III.

Proceedings in the Court of Appeals .........

8

IV.

Disposition of the Underlying Case .......... 18

V.

The District Judge ..................................... 19

REASONS FOR GRANTING THE PETITION ... 20

I.

The Court of Appeals’ Decision to Exercise

Jurisdiction Conflicts with This Court’s

Decision in Mohawk .................................. 20

A. Review Mechanisms Other Than Collateral Order Appeal Suffice to Protect

the Rights of Litigants Asserting First

Amendment Privilege .......................... 20

iv

TABLE OF CONTENTS – Continued

Page

B. TCCB’s Nonparty Status Does Not

Justify the Court of Appeals’ Decision

to Exercise Jurisdiction ....................... 25

II.

The Court of Appeals’ Decision Embodies

Errors and Departures from the Norms of

Judicial Conduct That Warrant Exercise

of This Court’s Supervisory Power ............ 28

III.

This Matter Is Not Moot ............................ 35

CONCLUSION..................................................... 36

APPENDIX

Opinion, United States Court of Appeals for the

Fifth Circuit (July 15, 2018) ...................................1a

Judgment, United States Court of Appeals for

the Fifth Circuit (July 15, 2018) ...........................45a

Order, United States Court of Appeals for the

Fifth Circuit (July 13, 2018) .................................47a

Order, United States Court of Appeals for the

Fifth Circuit (June 18, 2018) ................................49a

Order, United States District Court for the

Western District of Texas, Austin Division

(June 17, 2018) ......................................................51a

Order, United States District Court for the

Western District of Texas, Austin Division

(June 13, 2018) ......................................................74a

Denial of Rehearing, United States Court of Appeals for the Fifth Circuit (August 16, 2018) .......82a

Fed. R. Civ. P. Rule 45 ...............................................84a

v

TABLE OF AUTHORITIES

Page

CASES

A-Mark Auction Galleries, Inc. v. Am. Numismatic Ass’n, 233 F.3d 895 (5th Cir. 2000) ......... 26, 29

Alexander v. United States, 201 U.S. 117 (1906) .... 2, 26

Azar v. Garza, __ U.S. __, 138 S. Ct. 1790 (2018) .......36

Chafin v. Chafin, 568 U.S. 165 (2013) ........................35

Church of Scientology v. United States, 506 U.S.

9 (1992) ....................................................................27

Cobbledick v. United States, 309 U.S. 323 (1940)..... 25, 27

Cohen v. Beneficial Indus. Loan Corp., 337 U.S.

541 (1949) ................................................................21

Diamond v. Charles, 476 U.S. 54 (1986) .....................24

Honig v. E.I. du Pont de Nemours & Co., Inc., 404

F.2d 410 (5th Cir. 1968) ..................................... 26, 29

In re Hearst Newspapers, L.L.C., 641 F.3d 168

(5th Cir. 2011)..........................................................12

In re Motor Fuel Temp. Sales Practices Litig.,

641 F.3d 470 (10th Cir. 2011) ................ 12, 13, 23, 29

Marceaux v. Lafayette City-Par. Consol. Gov’t,

731 F.3d 488 (5th Cir. 2013) ....................................12

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights

Comm’n, __ U.S. __, 138 S. Ct. 1719 (2018) ............34

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100

(2009) ............................................................... passim

Perlman v. United States, 247 U.S. 7 (1918) ........ 27, 28

vi

TABLE OF AUTHORITIES – Continued

Page

Perry v. Schwarzenegger, 591 F.3d 1147 (9th Cir.

2010) .................................................................. 12, 23

Swint v. Chambers Cty. Comm’n, 514 U.S. 35 (1995) ......21

Texaco Inc. v. La. Land & Expl. Co., 995 F.2d 43

(5th Cir. 1993).................................................... 26, 29

U.S. Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72 (1988) ..........................24

United States v. Munsingwear, Inc., 340 U.S. 36

(1950) .......................................................................36

United States v. Ryan, 402 U.S. 530 (1971) .... 21, 27, 28

Whole Woman’s Health v. Hellerstedt, 231

F. Supp. 3d 218 (W.D. Tex. 2017)...............................4

Whole Woman’s Health v. Smith, ___ F. Supp. 3d

___, No. A-16-CV-01300-DAE, 2018 WL

4225048 (W.D. Tex. Sept. 5, 2018), appeal docketed, No. 18-50730 (5th Cir. Sept. 7, 2018) ........... 4, 19

Whole Woman’s Health v. Smith, 896 F.3d 362

(5th Cir. 2018).................................................. passim

Will v. Hallock, 546 U.S. 345 (2006) ...........................21

Willy v. Admin. Review Bd., 423 F.3d 483 (5th

Cir. 2005) ........................................................... 15, 33

STATUTES

28 U.S.C. § 1254 ............................................................1

28 U.S.C. § 1291 .................................................. passim

28 U.S.C. § 1292 ............................................ 8, 9, 21, 22

vii

TABLE OF AUTHORITIES – Continued

Page

Rules Enabling Act, 28 U.S.C. §§ 2071-77............ 21, 22

Religious Freedom Restoration Act, 42 U.S.C.

§§ 2000bb – 2000bb-4 ................................................9

RULES AND REGULATIONS

Fed. R. App. P. 8 ............................................................8

Fed. R. App. P. 29 ........................................................24

Fed. R. Civ. P. 24 ..........................................................24

Fed. R. Civ. P. 26 ............................................................5

Fed. R. Civ. P. 45 .................................................. passim

W.D. Tex. R. CV-7 ..........................................................6

OTHER AUTHORITIES

8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2016.6 (3d ed.

2002) ........................................................................32

15B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3914.23 (2d

ed. 1992) ..................................................................22

1

OPINIONS BELOW

The court of appeals’ opinion is reported at 896

F.3d 362 and reprinted in the Appendix to the Petition

(“App.”) at 1a. The court of appeals’ unpublished order

announcing its decision is reprinted at App. 47a. The

court of appeals’ unpublished order granting an emergency stay of the district court’s order and setting an

expedited briefing schedule is reprinted at App. 49a.

The district court’s unpublished order affirming the

magistrate judge’s denial of Respondent’s motion to

quash is reprinted at App. 51a. The magistrate judge’s

unpublished order denying Respondent’s motion to

quash is reprinted at App. 74a.

------------------------------------------------------------------

JURISDICTION

The court of appeals entered judgment on July 15,

2018, App. 45a, and it denied Plaintiffs’ petition for rehearing en banc on August 16, 2018, App. 82a. This

Court has jurisdiction under 28 U.S.C. § 1254(1). The

jurisdiction of the court of appeals is disputed.

------------------------------------------------------------------

PROVISIONS OF LAW INVOLVED

28 U.S.C. § 1291 provides:

The courts of appeals (other than the United

States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from

all final decisions of the district courts of the

United States, the United States District

2

Court for the District of the Canal Zone, the

District Court of Guam, and the District

Court of the Virgin Islands, except where a direct review may be had in the Supreme Court.

The jurisdiction of the United States Court of

Appeals for the Federal Circuit shall be limited to the jurisdiction described in sections

1292(c) and (d) and 1295 of this title.

Federal Rule of Civil Procedure 45 is reprinted at

App. 84a.

------------------------------------------------------------------

INTRODUCTION

The court of appeals’ decision should be summarily reversed because it contravenes more than one hundred years of settled precedent holding that a litigant

may not take an immediate appeal from an order compelling discovery. See, e.g., Alexander v. United States,

201 U.S. 117, 121-22 (1906). That precedent was reaffirmed most recently in Mohawk, where this Court

held that discovery orders adverse to the attorney-client privilege do not warrant an exception to the

longstanding rule that pretrial discovery orders are

not immediately appealable under the collateral order

doctrine. See 558 U.S. at 109-11.

This matter arose from a challenge to Texas laws

(the “Challenged Laws”) that would prevent many

women who have abortions or miscarriages from disposing of embryonic and fetal tissue in accordance with

their religious beliefs and personal values. The Texas

Catholic Conference of Bishops (“TCCB”) moved to

3

quash a discovery subpoena that Plaintiffs served on it

after Defendant identified TCCB’s Executive Director

as a person likely to have discoverable information.

The district court denied the motion, and TCCB appealed. The court of appeals exercised jurisdiction,

over Plaintiffs’ objection, pursuant to the collateral order doctrine.

Other mechanisms for seeking relief from the district court’s order were available to TCCB, including

mandamus petition and noncompliance followed by appeal of any court-imposed sanctions. By accepting a

direct appeal, the court of appeals exceeded the jurisdiction granted to it by Congress and trampled on a

century-old rule of law. Because the court of appeals’

decision directly conflicts with this Court’s controlling

precedents concerning appellate jurisdiction, it should

be summarily reversed.

Alternatively, the court of appeals’ decision should

be vacated and remanded for reconsideration because

it contains significant legal errors and flagrant departures from judicial norms. These departures include

commenting on the merits of Plaintiffs’ claims in the

underlying lawsuit, which had yet to go to trial, and

making unfounded allegations of religious bias and

witness intimidation against the district judge and

Plaintiffs’ counsel.

------------------------------------------------------------------

4

STATEMENT OF THE CASE

I.

Underlying Case History.

The principal lawsuit, filed on December 12, 2016,

challenged revisions to Texas regulations governing

the disposal of biohazardous materials, including embryonic and fetal tissue. Whole Woman’s Health v. Hellerstedt, 231 F. Supp. 3d 218, 225 (W.D. Tex. 2017).

Following an evidentiary hearing, the district court

preliminarily enjoined enforcement of the revised regulations on January 27, 2017. Id. at 233. Defendant appealed the preliminary injunction, and at his request,

the district court stayed further proceedings pending

disposition of the appeal. Whole Woman’s Health v.

Smith, ___ F. Supp. 3d ___, No. A-16-CV-01300-DAE,

2018 WL 4225048, at *3 (W.D. Tex. Sept. 5, 2018), appeal docketed, No. 18-50730 (5th Cir. Sept. 7, 2018).

While the appeal was pending, Texas enacted a statute

that superseded the revised regulations, and it subsequently adopted implementing regulations. Id. at *3-4.

As a result, the court of appeals dismissed the appeal,

the district court lifted the stay, and Plaintiffs

amended their complaint to challenge the newly enacted laws. Id. at *4. The district court issued a second

preliminary injunction on January 29, 2018, enjoining

enforcement of all Challenged Laws. Id.

II.

Plaintiffs’ Subpoena and TCCB’s Motion to

Quash.

On February 7, 2018, the magistrate judge entered

an expedited scheduling order that directed the parties

5

to serve any amendments to their initial disclosures by

March 1, 2018; and to complete discovery by June 15,

2018. Fifth Cir. R. on Appeal (18-50484) (“ROA-1”) at

1931. The order set the case for trial beginning on July

16, 2018, and set a final pretrial conference for July 13,

2018. ROA-1 at 1932.

On March 1, 2018, Defendant served amended initial disclosures, identifying three individuals from

TCCB, including its Executive Director, Jennifer Carr

Allmon,1 as people likely to have discoverable information. ROA-1 at 2237; see Fed. R. Civ. P. 26(a)(1) (prescribing the contents of initial disclosures). Altogether,

Defendant’s amended initial disclosures identified people from twenty-two entities that were neither parties

nor experts as likely to have discoverable information.

ROA-1 at 2235-42. Plaintiffs served discovery subpoenas on all of them. The subpoenas were served in three

batches, based on the geographic location of the recipient. Subpoenas returnable to Austin were served on

March 20, 2018; subpoenas returnable to Dallas, Houston, or Chicago were served on March 27, 2018; and

subpoenas returnable to Laredo, Victoria, or San

1

Ms. Allmon had previously testified in support of Defendant

at the preliminary injunction hearing. ROA-1 at 2712-56. Defendant’s amended initial disclosures described the subject matter

of the discoverable information Ms. Allmon was likely to have

as follows: “Please see Ms. Allmon’s testimony from the previous

preliminary injunction hearing in this lawsuit. She . . . [has]

knowledge regarding the offer of the Texas Catholic Conference of

Bishops to inter fetal remains statewide at no cost to healthcare

facilities for such interment.” ROA-1 at 2237. Defendant subsequently identified Ms. Allmon as a witness that he intended to

call at trial. ROA-1 at 2031.

6

Angelo were served on March 30, 2018.2 The TCCB

subpoena was in the first batch.

On April 2, 2018, TCCB moved to quash the subpoena without first seeking to confer with Plaintiffs’

counsel as required by the local rules of the district

court and the scheduling order. See ROA-1 at 1931-32,

1944-53; W.D. Tex. R. CV-7(i). On April 3, 2018, the

magistrate judge denied TCCB’s motion without prejudice based on TCCB’s failure to confer. ROA-1 at

2019. Subsequently, counsel for Plaintiffs and TCCB

conferred, and Plaintiffs agreed to narrow the scope of

the subpoena in response to TCCB’s concerns about

the volume of responsive documents.3 TCCB made successive requests for extensions of time to respond to

the subpoena as narrowed, and Plaintiffs accommodated each request.

On June 1, 2018, TCCB produced a subset of responsive documents comprised of ninety-one emails

between Ms. Allmon and individuals external to TCCB.

Pursuant to the Protective Order entered on December

29, 2016, ROA-1 at 467-77, TCCB designated its entire

production as “confidential,” which shielded the

2

Pursuant to Federal Rule of Civil Procedure 45(c)(2)(A), a

discovery subpoena may only command the production of documents “at a place within 100 miles of where the [recipient] resides,

is employed, or regularly transacts business in person.”

3

Plaintiffs limited the subpoena to emails (1) sent to or from

Ms. Allmon, (2) during a thirty-month period, (3) that included at

least one of eleven search terms, and (4) related to the burial, cremation, or disposition of embryonic or fetal tissue. ROA-1 at 235051.

7

documents from public disclosure. Plaintiffs did not

contest this designation.

TCCB withheld 298 responsive emails between

Ms. Allmon and individuals within TCCB, asserting a

First Amendment privilege. ROA-1 at 2258-67. These

emails included communications between Ms. Allmon

and her staff about TCCB’s offer to provide embryonic

and fetal burial services to Texas healthcare providers.

Following an informal mediation with the magistrate

judge, TCCB again filed a motion to quash Plaintiffs’

subpoena on June 11, 2018, nearly three months after

service of the subpoena and four days prior to the close

of discovery. ROA-1 at 2065-79.

The magistrate judge held a hearing on the motion

on June 13, 2018. At the hearing, TCCB requested that

the magistrate judge conduct an in camera review of a

sample of the documents it was withholding. ROA-1 at

2987-88. Plaintiffs consented to this procedure, and the

magistrate judge accepted the documents for review.

ROA-1 at 2989-90. While the motion was pending with

the magistrate judge, the district judge set an expedited briefing schedule for any appeal of the magistrate judge’s order to him, given “the expedited

scheduling order in place, and the imminent trial in

this case.” ROA-1 at 2277. It directed that any appeal

to the district judge be filed by noon on June 14, 2018,

and any response be filed by 11:59 p.m. on June 14,

2018. ROA-1 at 2277. At approximately 4:30 p.m. on

June 13, 2018, the magistrate judge denied TCCB’s

motion to quash. ROA-1 at 2280-85. TCCB filed a

8

timely appeal with the district judge. ROA-1 at 22952323. At approximately noon on Sunday, June 17, 2018,

the district judge affirmed the magistrate judge’s ruling and directed TCCB to produce the documents that

it had withheld from its prior productions within

twenty-four hours. ROA-1 at 2362-63.

III. Proceedings in the Court of Appeals.

TCCB immediately filed a Notice of Appeal, ROA1 at 2364-66, and emergency motions for a stay pending appeal in the district court, ROA-1 at 2367-85, and

the court of appeals, Emergency Mot. of Movant-Appellant TCCB for Fed. R. App. P. 8 Stay Pending Appeal

(5th Cir. Doc. No. 00514515540). The district court

granted a seventy-two hour stay of its order, ROA-1 at

2394, and the court of appeals granted a stay of indefinite duration, Ct. Order (5th Cir. Doc. No.

00514517246). The court of appeals also directed

Plaintiffs and TCCB to file simultaneous merits briefs

within seven days. Id.

On June 19, 2018, Plaintiffs moved to dismiss the

appeal and vacate the stay for lack of appellate jurisdiction, arguing that the order appealed from did not

satisfy the criteria set forth in 28 U.S.C. § 1292 and

was not reviewable under the collateral order doctrine.

Appellees’ Mot. to Dismiss the Appeal and Vacate the

Stay Pending Appeal (5th Cir. Doc. No. 00514518550).

TCCB responded on June 29, 2018, arguing that 28

U.S.C. § 1291 conferred jurisdiction on the court of appeals pursuant to the collateral order doctrine.

9

Movant-Appellant TCCB’s Resp. in Opp’n to Pl.-Appellees’

Mot. to Dismiss (5th Cir. Doc. No. 00514536244) at 113. TCCB distinguished Mohawk on the ground that,

unlike the party asserting a claim of privilege in that

case, TCCB enjoys immunity from discovery because

it is a religious organization. See id. at 9 (“Mohawk

turned on the conclusion that attorney-client privilege

claims can be tested via contempt proceedings without sacrificing any element of the privilege. That

conclusion . . . does not apply to privileges or immunities that protect from the burdens of discovery itself.”).4

Pursuant to the court of appeals’ directive, TCCB

and Plaintiffs both filed merits briefs on June 25, 2018.

TCCB argued that Plaintiffs’ subpoena exceeded the

scope of permissible discovery under Federal Rule of

Civil Procedure 45, Opening Br. of Movant-Appellant

TCCB (5th Cir. Doc. No. 00514528152) (“Appellant’s

Br.”) at 28-42; that enforcing Plaintiffs’ subpoena

would violate the Religious Freedom Restoration Act

(“RFRA”), 42 U.S.C. §§ 2000bb – 2000bb-4, Appellant’s

Br. at 42-47; and that enforcing Plaintiffs’ subpoena

would violate the First Amendment “by limiting the

Conference’s freedoms of assembly, association, and

petition; intruding into internal church affairs; and entangling church and state,” id. at 47-66.

4

TCCB also argued that the court of appeals had jurisdiction

under 28 U.S.C. § 1292 because the district court’s order compelling the production of documents was akin to an injunction. See

id. at 13-17.

10

In their merits brief, Plaintiffs renewed their challenge to the court of appeals’ jurisdiction. Appellees’ Br.

(5th Cir. Doc. No. 00514528094) at 15-18. They further

argued that the subpoena’s requests for production

were relevant and not unduly burdensome, id. at 1920; that the sword and shield doctrine prevented TCCB

from shielding communications directly related to the

substance of its Executive Director’s trial testimony,

id. at 20-21; that the documents sought by Plaintiffs’

subpoena were not privileged under the First Amendment, id. at 21-31; and that TCCB had waived its

RFRA arguments by failing to preserve them in the

district court, id. at 31 n.7.

On Friday, July 13, 2018, during the final pretrial

conference, a divided panel of the court of appeals issued an order announcing its decision to reverse the

district court’s order denying TCCB’s motion to quash.

Ct. Order (5th Cir. Doc. No. 00514553422). On Sunday,

July 15, 2018, the day before the trial began, the panel

issued a set of opinions explaining its order, which included a majority opinion authored by Judge Jones, in

which Judge Ho joined; a concurring opinion by Judge

Ho; and a dissenting opinion by Judge Costa.5 Whole

Woman’s Health v. Smith, 896 F.3d 362 (5th Cir. 2018).

The majority held that the court of appeals had jurisdiction over TCCB’s appeal pursuant to 28 U.S.C.

§ 1291 because “[t]he standards of the collateral order

doctrine are met here.” Whole Woman’s Health, 896

5

The court of appeals issued a revised opinion, containing

non-substantive revisions, on July 17, 2018.

11

F.3d at 367. It distinguished this Court’s decision in

Mohawk on two bases. First, it reasoned that the litigant asserting a claim of privilege in Mohawk was a

party to the proceedings whereas TCCB is a nonparty.

See id. at 367-68. “In Mohawk,” the majority stated,

“the Court reasoned that as between parties, the appellate court can remedy erroneously ordered discovery by remanding the case for a new trial. . . . This case

is distinguishable: a new trial order can hardly avail a

third-party witness who cannot benefit directly from

such relief.” Id. The majority did not address the portion of Mohawk explaining that “litigants confronted

with a particularly injurious or novel privilege ruling

have several potential avenues of review apart from

collateral order appeal,” including petitioning for a

writ of mandamus, and noncompliance followed by appeal of any court-imposed sanctions. Mohawk, 558 U.S.

at 110-11.

Second, the majority reasoned that the nature of

the privileges claimed by TCCB distinguished this case

from Mohawk. See Whole Woman’s Health, 896 F.3d at

368. It stopped short of adopting TCCB’s immunity

theory, but it expressed the view that, while courts are

generally competent to assess claims of attorney-client

privilege, courts are not competent to assess claims of

privilege concerning religious liberty. In particular, the

majority stated that: “TCCB’s claimed privileges . . . go

to the heart of the constitutional protection of religious

belief and practice as well as citizens’ right to advocate

sensitive policies in the public square, a square that

embraces both the legislature and the courthouse.” Id.

12

at 368. “Further, the courts have limited ability to assess the strength of religious groups’ claims about

their internal deliberations for purposes of monitoring

discovery. . . . [A]ny such judicial attempt risks tension

with the repeated judicial admonitions that courts stay

out of the business of weighing the sincerity of religious beliefs and practices.” Id. The majority did not

address why this lack of judicial competence would

render mandamus petition or noncompliance ineffective means of obtaining appellate review of a district

court’s order.

The majority also noted that, “on two occasions following Mohawk, this court has reaffirmed its precedent holding that interlocutory court orders bearing on

First Amendment rights remain subject to appeal pursuant to the collateral order doctrine.” Id. (citing Marceaux v. Lafayette City-Par. Consol. Gov’t, 731 F.3d 488

(5th Cir. 2013) and In re Hearst Newspapers, L.L.C.,

641 F.3d 168 (5th Cir. 2011)). Neither of those cases

concerned appeals from an order compelling discovery,

however. See Marceaux, 731 F.3d at 490 (appeal from

pretrial order directing the plaintiffs to suspend a website critical of the police department); In re Hearst

Newspapers, 641 F.3d at 174 (appeal from order barring the press and general public from a sentencing

hearing). Additionally, the majority distinguished a

pair of conflicting cases from the Ninth and Tenth Circuits on the ground that neither case “involved discovery against a third party.” Whole Woman’s Health, 896

F.3d at 368 (discussing In re Motor Fuel Temp. Sales

Practices Litig., 641 F.3d 470 (10th Cir. 2011) and Perry

13

v. Schwarzenegger, 591 F.3d 1147 (9th Cir. 2010)). The

Tenth Circuit case did, however, involve discovery

against a nonparty. See In re Motor Fuel, 641 F.3d at

476 (“The appellants, who include . . . non-party, retail

motor fuel trade associations . . . seek reversal of the

district court’s discovery order directing them to disclose information that they claim is privileged under

the First Amendment.”).

On the merits, the majority held that the doctrine

of constitutional avoidance weighed against resolving

TCCB’s First Amendment and RFRA claims. See Whole

Woman’s Health, 896 F.3d at 374 (“The rule of constitutional avoidance . . . forcefully counsels restraint in

this case, where the issues are both novel and farreaching and time is woefully short for thorough

consideration.”). It nevertheless engaged in a lengthy

discussion of those issues. The majority criticized the

district court for treating this matter “like a garden variety dispute over the necessity of discovery from a corporate representative designated as a trial witness.”

Id. at 369. It suggested that RFRA supersedes generally-applicable rules concerning civil procedure, such

that a federal court must engage in a least restrictive

means analysis before applying the Federal Rules of

Civil Procedure or principles of federal common law to

a litigant who asserts a religious objection. See id. at

371 (“As for the government’s (i.e., the court’s or litigant’s using the court) compelling need and least restrictive means, they are not satisfied merely because

the Federal Rules ordinarily authorize broad discovery.”).

14

The majority further stated that the district court

erred in assuming that federal courts are competent to

assess claims of privilege made by religious organizations. See id. at 372 (“[O]n what basis is the judiciary

institutionally competent to discern which communications merely bear on the ‘facts’ and which communications interfere with a religious body’s free exercise?

The district court assumed such competence exists.”).

Additionally, the majority stated that the district

court erred in rejecting the First Amendment privileges asserted by TCCB. See id. at 372. “As for the free

speech, free association, and petition claims under the

First Amendment,” the majority stated that “the district court failed to afford sufficient scope to rights that

should protect the inner workings of TCCB when it engages in activity in the public square.” Id. With respect

to TCCB’s claims under the Religion Clauses, the majority stated that “[b]oth free exercise and establishment clause problems seem inherent in the court’s

discovery order.” Id. at 373. “That internal communications are to be revealed,” the majority reasoned, “not

only interferes with TCCB’s decision-making processes

on a matter of intense doctrinal concern but also exposes those processes to an opponent and will induce

similar ongoing intrusions against religious bodies’

self-government.” Id. “Moreover, courts’ involvement

in attempting to parse the internal communications

and discern which are ‘facts’ and which are ‘religious’

seems tantamount to judicially creating an ecclesiastical test in violation of the Establishment Clause.” Id.

15

After concluding its discussion of the constitutional and RFRA issues, the majority rested its decision reversing the district court’s order on Federal

Rule of Civil Procedure 45(d), holding that the district

court abused its discretion in concluding that Plaintiffs’ subpoena did not impose an undue burden on

TCCB. See id. at 375. In conducting the balancing of

interests required by Rule 45(d), the majority held that

the district court failed to give adequate weight to

TCCB’s constitutional interests in avoiding discovery.

See id. at 375 (“This burden on TCCB’s constitutional

right to advocate in the public square cannot be ignored. . . .”); id. at 376 (“[R]ather than reject all of

TCCB’s privilege claims, the district court should have

acknowledged their novelty and far-reaching implications. . . .”); id. (“The [district] court was too quick to

reject TCCB’s privilege claims.”).

In the course of its discussion, the majority called

attention to “two strange circumstances” that it said

“suggest[ed] at least religious insensitivity.” Id. at 370

n.8. The first was “that the plaintiffs chose to time

their original subpoena, and the return date, to coincide with Holy Week,” id., and the second was “that the

district court chose to issue its decision rejecting the

motion to quash on a Sunday morning when TCCB’s

members and employees were almost surely in

church,” id. The majority also said that Plaintiffs’ invocation of the sword and shield doctrine, which provides that a person who uses privileged information

affirmatively waives the right to shield it from disclosure, see, e.g., Willy v. Admin. Review Bd., 423 F.3d 483,

16

497 (5th Cir. 2005), appeared to be an act of witness

intimidation. See Whole Woman’s Health, 896 F.3d at

375 (“TCCB has been challenged by the plaintiffs to either produce internal communication documents or

withdraw its witness. This looks like an act of intimidation. The demand places on TCCB the ‘Hobson’s

choice’ of retreating from the public square or defending its position while creating a precedent (for the first

time) that may open its internal deliberations to public

scrutiny, or at least, ill-informed judicial scrutiny.”).

The concurring opinion reiterated those points using even more forceful language. It stated that the

“proceedings . . . chronicled in Judge Jones’s comprehensive opinion . . . leave this Court to wonder why

the district court saw the need to impose a 24-hour

mandate on the Bishops on a Sunday (Father’s Day,

no less), if not in an effort to either evade appellate

review—or to tax the Bishops and their counsel for

seeking review.” Id. at 376 (Ho, J., concurring). The concurring opinion further “wonder[ed] if this discovery is

sought, inter alia, to retaliate against people of faith

for not only believing in the sanctity of life—but also

for wanting to do something about it.” Id.

Both the majority and concurring opinions commented on the merits of the underlying case, concerning the constitutionality of the Challenged Laws. The

majority opinion characterized those laws as “specifying legitimate methods for disposing of fetal remains,” id. at 365 (emphasis added), requiring “humane

(and ‘human’) treatment,” id. at 371. The concurring

opinion stated that “nothing in the text or original

17

understanding of the Constitution prevents a state

from requiring the proper burial of fetal remains.” Id.

at 376 (Ho, J., concurring).

The dissenting opinion criticized the majority

opinion in several respects. First, the dissent asserted

that the majority invoked the doctrine of constitutional

avoidance but did not actually adhere to it. See id. at

377 (Costa, J., dissenting) (“True avoidance of difficult

First Amendment questions would be to not opine on

them when they are not properly before the court.”).

The dissent argued that TCCB’s constitutional claims

could have been resolved on a narrow ground—that

TCCB forfeited any right to immunity from judicial

consideration of its discovery objections by voluntarily

providing a sample of the documents over which it

claimed a privilege for in camera review. See id. at 377,

378-79 (“The Conference’s privilege claim does not present a substantial First Amendment concern for the

reason mentioned at the outset: it did not argue in the

trial court that the First Amendment barred in camera

inspection of its records, so it cannot do so now.”).

Second, the dissent argued that there were major

flaws in the majority’s jurisdictional holding. These include that it “assume[d] that the collateral order doctrine is the only route to stopping a production before

it happens” even though “a mandamus petition, which

is just as available to a third party as to a litigant, is

the typical way to protect a privilege when its piercing

will cause irreparable harm.” Id. at 378. The dissent

also criticized the majority for predicating the court of

appeals’ jurisdiction on the presence of a First

18

Amendment issue and then promptly holding that the

court was precluded from reaching that issue. See id.

Third, the dissent argued that the majority’s accusations of religious bias and witness intimidation were

unfounded and inappropriate. See id. at 381-82; id. at

382 (“[T]here is no basis to view the discovery request

(the scope of which the plaintiff and Conference

worked to greatly narrow) and its timing as anything

more than lawyers trying to fulfill their duty of zealous

advocacy. The unusual behavior would be if a party did

not seek documents from a witness it plans to cross examine at trial.”); id. (“Among the exemplary group of

trial judges who serve our circuit, the one handling this

case stands out: with over three decades of service, he

is now essentially working for free as a senior judge,

and volunteering to travel thousands of miles outside

the district of his appointment to help with the heavy

docket in the Western District of Texas. Speculating

that malice is behind his decisions seeking to expedite

a high profile case with a rapidly approaching trial

date is not the award he is due.”).

Plaintiffs filed a petition for rehearing en banc on

July 30, 2018. See Pet. for Reh’g En Banc (5th Cir. Doc.

No. 00514577396). It was denied on August 16, 2018.

See Ct. Order (5th Cir. Doc. No. 00514603516).

IV. Disposition of the Underlying Case.

Ms. Allmon testified at trial, which began on July

16, 2018, and concluded on July 20, 2018. Her testimony relied on and referred to internal TCCB

19

communications. See, e.g., Fifth Cir. R. on Appeal (1850730) (“ROA-2”) at 4738 (direct examination) (“Q. . . .

At your direction, did your staff compile numbers or

data regarding capacity?/ A. Yes./ Q. And did they do

that in the normal course of the business of the Texas

Conference of Catholic Bishops?/ A. Yes./ Q. And did

you as the executive director rely upon what your staff

did in making a determination about the capacity of

diocesan-controlled cemeteries?/ A. Yes.”).

The district court entered final judgment for

Plaintiffs on September 5, 2018, permanently enjoining enforcement of the Challenged Laws. Whole

Woman’s Health, 2018 WL 4225048 at *27. Defendant

filed an appeal on September 5, 2018, ROA-2 at 333133, which remains pending at the court of appeals.

V.

The District Judge.

This case was originally assigned to the Hon. Sam

Sparks. Following the stay of proceedings in the district court, it was transferred to the Hon. David A.

Ezra.

Judge Ezra was appointed to the United States

District Court for the District of Hawaii by President

Ronald Regan in 1988. Senior District Judge David A.

Ezra (Biographical Information), United States District Court for the Western District of Texas, https://

www.txwd.uscourts.gov/court-staff/senior-u-s-districtjudge-david-a-ezra/ (last visited Nov. 12, 2018). He

served as Chief Judge of that District from 1999-2005.

Id. He assumed senior status in 2012. Id. In 2013, he

20

was designated to the Western District of Texas, where

he continues to serve. Id. Judge Ezra has an extensive

history of community service, including as a member

of the Judicial Conference of the United States. Id. He

graduated first in his class from St. Mary’s University

School of Law in 1972, and he served as a commissioned officer in the U.S. Army from 1971 to 1977. Id.

After the court of appeals issued its decision,

Judge Ezra met with counsel for the parties to the underlying litigation in his chambers. He informed counsel that he is a devout Roman Catholic, but he does not

allow his personal religious beliefs to affect his responsibilities as a judge. ROA-2 at 3925-26. He gave counsel the opportunity to make a motion for his recusal,

and all counsel declined. ROA-2 at 3924-25, 3929.

------------------------------------------------------------------

REASONS FOR GRANTING THE PETITION

I.

The Court of Appeals’ Decision to Exercise

Jurisdiction Conflicts with This Court’s

Decision in Mohawk.

A. Review Mechanisms Other Than Collateral Order Appeal Suffice to Protect

the Rights of Litigants Asserting First

Amendment Privilege.

Section 1291 of the Judicial Code provides, in relevant part, that “[t]he courts of appeals . . . shall have

jurisdiction of appeals from all final decisions of the

district courts of the United States . . . except where a

21

direct review may be had in the Supreme Court.”6 28

U.S.C. § 1291. This Court has held that the statute encompasses not only judgments that “terminate an action,” but also a “small class” of collateral rulings that

are appropriately deemed “final” even though they do

not end the proceedings in the district court. Mohawk,

558 U.S. at 106 (quoting Cohen v. Beneficial Indus.

Loan Corp., 337 U.S. 541, 545-46 (1949)). “That small

category includes only decisions that are conclusive,

that resolve important questions separate from the

merits, and that are effectively unreviewable on appeal

from the final judgment in the underlying action.” Id.

(quoting Swint v. Chambers Cty. Comm’n, 514 U.S. 35,

42 (1995)).

In Mohawk, this Court made clear that expansion

of appellate jurisdiction through the collateral order

doctrine is disfavored. It “reiterate[d] that the class of

collaterally appealable orders must remain ‘narrow

and selective in its membership.’ ” Mohawk, 558 U.S. at

113 (quoting Will v. Hallock, 546 U.S. 345, 350 (2006)).

Citing the Rules Enabling Act, 28 U.S.C. §§ 2071-77,

the Court cautioned that “rulemaking” rather than

6

Although the court of appeals did not address TCCB’s argument that the district court’s order denying its motion to quash

was appealable under 28 U.S.C. § 1292 as an injunction, this

Court has rejected similar arguments. See United States v. Ryan,

402 U.S. 530, 534 (1971) (“[W]e do not think that the District

Court’s order was rendered a temporary injunction appealable

under 28 U.S.C. § 1292(a)(1) by its inclusion of a provision requiring respondent to seek permission from the Kenyan authorities to

remove some of the documents from that country, and in the event

that permission was denied to permit Government officials access

to the documents in Kenya.”).

22

“expansion by court decision” is the means preferred

by Congress “for determining whether and when prejudgment orders should be immediately appealable.”

Mohawk, 558 U.S. at 113; see also id. at 115 (“The scope

of federal appellate jurisdiction is a matter the Constitution expressly commits to Congress, and that Congress has addressed not only in 28 U.S.C. §§ 1291 and

1292, but also in the Rules Enabling Act amendments to which the Court refers.” (citations omitted))

(Thomas, J., concurring in part and in the judgment).

Pretrial discovery orders are generally not reviewable under the collateral order doctrine. See id. at 108

(citing 15B Charles Alan Wright & Arthur R. Miller,

Federal Practice and Procedure § 3914.23 (2d ed. 1992);

see also infra at 25-26. Mohawk reaffirmed this wellsettled rule and held that disclosure orders adverse to

the attorney-client privilege do not warrant an exception to it. In particular, it held that, while such orders

may satisfy the first two conditions of the collateral order doctrine—conclusiveness and separateness—they

fail to satisfy the third—effective unreviewability. Id.

at 109. The Court explained that: “In making this determination, we do not engage in an individualized jurisdictional inquiry. Rather, our focus is on the entire

category to which a claim belongs.” Id. at 107 (citations

and internal quotation marks omitted). “As long as the

class of claims, taken as a whole, can be adequately

vindicated by other means, the chance that the litigation at hand might be speeded, or a particular injustice

averted, does not provide a basis for jurisdiction under

23

§ 1291.” Id. (internal quotation marks and alterations

omitted).

The Court concluded that collateral order appeal

is not necessary to ensure effective review of disclosure

orders adverse to the attorney-client privilege because

other review mechanisms are available to litigants. See

id. at 109-11. Those most relevant here are: (1) petitioning for a writ of mandamus, id. at 111 (“[I]n extraordinary circumstances—i.e., when a disclosure

order amounts to a judicial usurpation of power or a

clear abuse of discretion, or otherwise works a manifest injustice—a party may petition the court of appeals for a writ of mandamus.” (internal quotation

marks and alterations omitted)); and (2) noncompliance, id. (“Another long-recognized option is for a party

to defy a disclosure order and incur court-imposed

sanctions.”). The court of appeals failed to acknowledge

these mechanisms or identify any reason why they

would be unavailable to a litigant asserting a First

Amendment privilege against disclosure.

A mandamus petition is certainly available to litigants asserting a First Amendment privilege. Indeed,

other courts of appeals have assessed claims of First

Amendment privilege via mandamus petition after declining to exercise jurisdiction under the collateral order doctrine. See In re Motor Fuel, 641 F.3d at 487

(“Given the circumstances of this case, we conclude

that the disclosure satisfies the[ ] initial prerequisites

[for mandamus review].”); Perry, 591 F.3d at 1156

(“[W]e rely on mandamus to hear this exceptionally

important case. . . .”).

24

Likewise, litigants seeking review of a disclosure

order adverse to a claimed First Amendment privilege

have the option of noncompliance. Had TCCB elected

noncompliance here, the most likely sanction would

have been an order limiting the scope of Ms. Allmon’s

trial testimony, which Defendant could have challenged

in a post-judgment appeal.7 Had the district court instead held TCCB in contempt, the contempt order would

have been immediately appealable. See U.S. Catholic

Conference v. Abortion Rights Mobilization, Inc., 487

U.S. 72, 76 (1988) (“The right of a nonparty to appeal

an adjudication of contempt cannot be questioned. The

order finding a nonparty witness in contempt is appealable notwithstanding the absence of a final judgment in the underlying action.”); infra at 25-26.

The court of appeals failed to consider the efficacy

of mandamus and noncompliance as alternate pathways to appellate review of the district court’s discovery order, and it ignored this Court’s admonition

to avoid unnecessarily expanding the universe of

orders eligible for collateral order appeal. Because

7

The court of appeals suggested that Ms. Allmon had a right

to testify at trial—independent of Defendant’s interest in the litigation—as part of TCCB’s advocacy “in the public square.” Whole

Woman’s Health, 896 F.3d at 368. This premise is incorrect. The

procedural rules governing civil litigation provide certain mechanisms for nonparty stakeholders to participate in the proceedings,

including intervention, see Fed. R. Civ. P. 24, and the filing of amicus curiae briefs, see Fed. R. App. P. 29. Nonparties have no general right, however, to participate in a given matter. An Article III

case or controversy is not a public forum. See, e.g., Diamond v.

Charles, 476 U.S. 54, 66 (1986) (“Article III requires more than a

desire to vindicate value interests.”).

25

mechanisms other than collateral order appeal suffice

to protect the rights of litigants asserting First Amendment privilege, the court of appeals’ decision is in direct conflict with Mohawk, and this Court should

summarily reverse it.

B. TCCB’s Nonparty Status Does Not Justify the Court of Appeals’ Decision to

Exercise Jurisdiction.

This Court has declined to recognize a nonparty

exception to the rule that orders compelling discovery

are not immediately appealable under the collateral

order doctrine. See Cobbledick v. United States, 309

U.S. 323, 326 (1940) (“[T]he requirement of finality will

be enforced not only against a party to the litigation

but against a witness who is a stranger to the main

proceeding.”). In Cobbledick, the Court held that “[n]either a party nor a non-party witness” may immediately

appeal a district court order denying a motion to quash

a subpoena because such piecemeal review would frustrate the intent of Congress, which has generally limited the jurisdiction of the courts of appeals to final

judgments. Id. at 326 (“This is so despite the fact that

a witness who is a stranger to the litigation could not

be party to an appeal taken at the conclusion of the

main cause.”). The Court held that an appeal may nevertheless be taken from an order holding a witness in

contempt of an order compelling discovery. Id. at 327

(“Let the court go farther, and punish the witness for

contempt of its order,—then arrives a right of review;

and this is adequate for his protection without unduly

26

impeding the progress of the case.” (quoting Alexander,

201 U.S. at 121)).

Prior to the instant case, the court of appeals faithfully applied this Court’s precedents to decline jurisdiction in nonparty appeals from orders compelling

discovery. In Honig v. E.I. du Pont de Nemours & Co.,

Inc., 404 F.2d 410, 410 (5th Cir. 1968), for example, the

court of appeals considered “an appeal by a witness not

a party to the principal lawsuit, from an order of the

trial court requiring him to submit to further examination by deposition.” It “conclude[d] that this appeal

must be dismissed under the general rule that a discovery order incident to a pending action is not subject

to appeal.” Id.; accord Texaco Inc. v. La. Land & Expl.

Co., 995 F.2d 43, 44 (5th Cir. 1993) (holding that Honig

“is the controlling precedent in this circuit” and that

any conflicting panel decisions have no precedential

value). Likewise, in A-Mark Auction Galleries, Inc. v.

American Numismatic Association, 233 F.3d 895, 89899 (5th Cir. 2000), the court of appeals dismissed a nonparty appeal from a discovery order compelling the

production of documents. Even though the discovery

order had been entered by the Northern District of

Texas while the underlying action was pending in the

District of Colorado, the court of appeals held that it

was not effectively unreviewable absent an immediate

appeal. Id. It explained that, at a minimum, the nonparty resisting discovery could refuse to comply with

the discovery order, be cited for contempt, and then appeal the contempt citation. Id.

27

This Court has permitted immediate nonparty appeals from orders compelling discovery “[o]nly in the

limited class of cases where denial of immediate review

would render impossible any review whatsoever of an

individual’s claims.” Ryan, 402 U.S. at 533. The paradigmatic example is Perlman v. United States, 247 U.S.

7 (1918). There, the target of a grand jury subpoena—

Mr. Perlman—sought to appeal an order directing the

clerk of the district court to produce to the grand jury

certain documents that were part of a sealed district

court record. Id. at 8-10. The Court held that the order

was final and appealable. Id. at 13. It later described

the rationale for this ruling as follows:

Perlman’s exhibits were already in the court’s

possession. If their production before the

grand jury violated Perlman’s constitutional

right then he could protect that right only by

a separate proceeding to prohibit the forbidden use. To have denied him opportunity for

review on the theory that the district court’s

order was interlocutory would have made the

doctrine of finality a means of denying Perlman any appellate review of his constitutional

claim.

Cobbledick, 309 U.S. at 328-29; accord Church of Scientology v. United States, 506 U.S. 9, 18 n.11 (1992)

(“[U]nder the so-called Perlman doctrine, a discovery

order directed at a disinterested third party is treated

as an immediately appealable final order because the

third party presumably lacks a sufficient stake in the

proceeding to risk contempt by refusing compliance.”

(citations omitted)); Ryan, 402 U.S. at 533 (“To have

28

denied review would have left Perlman powerless to

avert the mischief of the order for the custodian could

hardly have been expected to risk a citation for contempt in order to secure Perlman an opportunity for

judicial review.” (citations and internal quotation

marks omitted)).

This case is distinguishable from Perlman because

the documents that TCCB claims are privileged are not

in the possession of a disinterested third-party; rather,

they are in the possession of TCCB itself. Thus, TCCB

“is free to refuse compliance and . . . in such event [it]

may obtain full review of [its] claims before undertaking any burden of compliance with the subpoena.”

Ryan, 402 U.S. at 533-34 (“Perlman, therefore, has no

application in the situation before us.”).

The facts of this case do not warrant a departure

from this Court’s well-settled precedent concerning the

appealability of orders compelling nonparty discovery.

The court of appeals’ unauthorized exercise of jurisdiction should therefore be summarily reversed.

II.

The Court of Appeals’ Decision Embodies

Errors and Departures from the Norms of

Judicial Conduct That Warrant Exercise

of This Court’s Supervisory Power.

Alternatively, the Court should exercise its supervisory power to vacate the court of appeals’ decision

and remand the matter for reconsideration because

the decision contains both legal errors and flagrant departures from the norms of judicial conduct.

29

The legal errors are troubling. First, the court of

appeals’ decision is in direct conflict with its own controlling precedent on the jurisdictional issue. See supra

at 26 (citing A-Mark Auction Galleries, 233 F.3d at 89899; Honig, 404 F.2d at 410). Its precedential value is

thus uncertain, and it will sow confusion among litigants, district courts, and future appellate panels in

the Fifth Circuit. See Texaco, 995 F.2d at 44 (“In the

event of conflicting panel opinions from this court, the

earlier one controls, as one panel of this court may not

overrule another.”).

Second, the court of appeals misconstrued a key

fact in In re Motor Fuel, attempting to distinguish the

Tenth Circuit’s conflicting decision on the erroneous

ground that it did not concern the rights of a nonparty.

Compare Whole Woman’s Health, 896 F.3d at 368

(“[N]either Perry nor In re Motor Fuel Sales Practices

involved discovery against a third party.”), with In re

Motor Fuel, 641 F.3d at 476 (“The appellants, who include . . . non-party, retail motor fuel trade associations

. . . seek reversal of the district court’s discovery order

directing them to disclose information that they claim

is privileged under the First Amendment.”). As a result, the court of appeals inadvertently created a circuit split on an important jurisdictional issue.

Third, the court of appeals exceeded its authority

in applying the highly deferential abuse-of-discretion

standard to the district court’s application of Rule

45(d). The court of appeals held that the district court

improperly balanced the litigants’ respective interests

by, among other things, failing to give sufficient weight

30

to the “burden on TCCB’s constitutional right to advocate in the public square,” Whole Woman’s Health, 896

F.3d at 375, by which it meant the courtroom, see id. at

368.8 But the court of appeals had already acknowledged that the scope of this alleged right was not established by precedent, and it declined to reach the

issue itself. See id. at 374 (“We need not and do not finally resolve whether the order enforcing discovery of

the internal emails violated TCCB’s constitutional

rights. . . .”). In essence, the court of appeals held that

the district court abused its discretion by failing to give

sufficient weight to a claimed right that has never been

recognized by the courts, and that the court of appeals

itself declined to recognize. It also accepted all of

TCCB’s factual contentions as true, disregarding the

district court’s contrary conclusions. See, e.g., id. at

375-76 (holding that it could not ignore “the burdens

TCCB has shown were created by this intrusive discovery request: relations with other parties in the faith

impaired, internal modes of discussion upended, and

participation by some Catholic cemeteries deterred”).

8

The court of appeals also held that the district court gave

too much weight to Plaintiffs’ interest in obtaining the disputed

documents because, in its view, they would be cumulative of other

discovery, in particular Ms. Allmon’s deposition testimony. See

Whole Woman’s Health, 896 F.3d at 375 (“Her recent deposition is

125 pages long. Further document discovery of any kind would,

without further explanation, be cumulative.”). The court of appeals overlooked that the purpose of Plaintiffs’ subpoena was to

obtain impeachment material—documents that would contradict

or undermine the basis of the witness’ testimony.

31

The court of appeals’ departures from the norms

of judicial conduct are even more troubling. First, both

the majority opinion and the concurrence commented

on the merits of Plaintiffs’ underlying constitutional

claims, even though they were not relevant to the issues before the panel and the case had not yet gone to

trial. The majority opinion described the statute Plaintiffs were challenging as “a law specifying legitimate

methods for disposing of fetal remains.” See id. at 365.

But whether the disposition methods mandated by the

statute are legitimate—and other methods illegitimate—is a contested issue. The concurrence went further. After describing abortion as a “moral tragedy,” it

asserted that “nothing in the text or original understanding of the Constitution prevents a state from requiring the proper burial of fetal remains.” Id. at 376.

Plainly, the concurring judge made up his mind about

the constitutionality of the Challenged Laws before the

parties had the opportunity to present their evidence

and arguments at trial.

Second, the court of appeals opined at length

about constitutional issues that did not form the basis

of its decision. Despite invoking the doctrine of constitutional avoidance, the court of appeals engaged in an

extensive discussion of the First Amendment issues

raised by TCCB, charging the district court with error

in its handling of them. See supra at 13-14, 17. If allowed to stand, the court of appeals’ decision will create confusion in the district courts about the extent to

which they are bound by its constitutional musings.

32

Third, the court of appeals made unfounded allegations of religious bias and witness intimidation

against the district judge and Plaintiffs’ counsel. See

supra at 15-16, 18. The court of appeals cited the timing of Plaintiffs’ subpoena as evidence of “at least religious insensitivity.” Id. at 370 n.8. But Plaintiffs served

the subpoena at their earliest opportunity following

Defendant’s service of his amended initial disclosures,

which is typical in litigation, and they accommodated

each of TCCB’s requests for an extension of time to

comply. See supra at 5-6. Likewise, the court of appeals

found evidence of bias in the timing of the district

court’s order affirming the magistrate judge’s decision

because it was issued on a Sunday, which is the Sabbath Day for Roman Catholics. See Whole Woman’s

Health, 896 F.3d at 370 n.8. But the court of appeals

issued its own opinions on a Sunday, and it issued the

order announcing its decision on a Friday morning,

just hours before the start of the Jewish Sabbath.9 See

supra at 10. By its own logic, the court of appeals’ actions manifested religious bias, but that is plainly not

the case. All involved were acting in good faith to deal

with stringent time constraints.

Additionally, the court of appeals found evidence

of witness intimidation in Plaintiffs’ invocation of the

sword-and-shield doctrine, a common principle of equity. See Whole Woman’s Health, 896 F.3d at 375; see

also 8 Charles Alan Wright & Arthur R. Miller, Federal

9

Plaintiffs’ legal team includes individuals from varied religious backgrounds, including both Roman Catholic and Jewish

lawyers.

33

Practice and Procedure § 2016.6 (3d ed. 2002) (“[M]ost

cases . . . hold[ ] that discovery is permissible of privileged matter to the extent it is contemplated that the

privilege will be waived at trial.”); Willy, 423 F.3d at

497 (“[W]hen a party entitled to claim . . . privilege

uses confidential information against his adversary

(the sword), he implicitly waives its use protectively

(the shield) under that privilege.”). But the court of appeals provided no explanation for why the doctrine

amounted to witness intimidation in this case but not

the myriad other cases in which it has been invoked.

The court of appeals’ allegations of bias reflect a

faulty assumption that the principal lawsuit pits people of faith against nonbelievers. See Whole Woman’s

Health, 896 F.3d at 376 (Ho, J., concurring) (“They

leave this Court to wonder if this discovery is sought

. . . to retaliate against people of faith. . . .”). To the contrary, there are people of faith on both sides of the dispute. Indeed, the lawsuit seeks to protect the religious

liberty of women who have abortions or miscarriages

from encroachment by the State. Undoubtedly, Plaintiffs have a different view of the constitutional issues

at stake than TCCB, but not all disagreements reflect

animus. Plaintiffs’ counsel endeavored to treat TCCB

with courtesy and respect throughout the proceedings,

including by conferring in good faith to narrow the

scope of the subpoena and accommodating each of

TCCB’s requests for an extension of time. And the district judge subjected all of the litigants to tight deadlines in an effort to expedite the proceedings given the

prior entry of a preliminary injunction. See ROA-2 at

34

3921 (“And I’ll tell you why I gave the deadlines that I

did. . . . We have an injunction in place here.”).

It is a sad reality that religious bias does sometimes infect the adjudicative process. See Masterpiece

Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, ___ U.S.

___, 138 S. Ct. 1719, 1729 (2018). But not every act of

zealous advocacy—nor adverse ruling—in a proceeding involving religious actors is a manifestation of bias.

Assuming that anyone who does not share the Bishops’

view that abortion is a “moral tragedy,” Whole Woman’s

Health, 896 F.3d at 376 (Ho, J., concurring), is necessarily hostile to religion comes awfully close to imposing the kind of ecclesiastical test that the court of

appeals decries, see id. at 373. It also has the tenor of

crying wolf. Finding indicia of bias in routine behavior

threatens to desensitize the judicial system to genuine

acts of discrimination.

Further, the court of appeals’ precedential opinion

threatens to impose significant reputational harms on

those accused of bias. Absent concrete evidence of religious bias and witness intimidation, it was wrong for

the court of appeals to make accusations about such

serious forms of misconduct. Those allegations, in and

of themselves, are sufficient to warrant this Court’s intervention. When combined with the court of appeals’

other errors and departures from judicial norms—

which include ignoring and misconstruing precedent to

justify an anomalous exercise of jurisdiction, and commenting on constitutional issues not properly before

the court, including the merits of Plaintiffs’ claims in

35

the principal lawsuit—they call into question the fundamental fairness of the proceedings. Accordingly, the

Court should exercise its supervisory power to vacate

the court of appeals’ decision, remand the case, and instruct the court of appeals both to reconsider its decision in light of precedent and tailor its discussion to

the issues properly before it.

III. This Matter Is Not Moot.

A case becomes moot if the parties no longer have

a legally cognizable interest in the outcome. See Chafin

v. Chafin, 568 U.S. 165, 174 (2013). But “[a]s long as

the parties have a concrete interest, however small, in

the outcome of the litigation, the case is not moot.” Id.

at 172.

This matter is not moot because Plaintiffs continue to have an interest in obtaining the disputed documents from TCCB. Although the district court has

entered a final judgment for Plaintiffs in the principal

lawsuit, Defendant has filed an appeal. See supra at

19. The court of appeals may reverse the district court’s

judgment on a ground to which the documents are relevant, or it may remand the case for further proceedings. Accordingly, until all appeals in this case have

been exhausted, Plaintiffs’ dispute with TCCB is not

moot.

Alternatively, should the Court conclude that the

matter is moot, Plaintiffs request that the Court vacate

the court of appeals’ decision and remand with a direction to dismiss TCCB’s motion to quash as moot. See

36

Azar v. Garza, ___ U.S. ___, 138 S. Ct. 1790, 1793 (2018)

(vacating the court of appeals’ decision and remanding

the case with instructions for the court of appeals to

direct the district court to dismiss the relevant claim

as moot); United States v. Munsingwear, Inc., 340 U.S.

36, 39 (1950) (“The established practice of the Court in

dealing with a civil case from a court in the federal system which has become moot while on its way here or

pending our decision on the merits is to reverse or vacate the judgment below and remand with a direction

to dismiss.”). That course of action would prevent the

court of appeals’ unreviewable decision “from spawning any legal consequences,” and mitigate the reputational harms flowing from its unfounded allegations of

misconduct. Munsingwear, 340 U.S. at 41.

------------------------------------------------------------------

CONCLUSION

The Court should grant this petition and summarily reverse the court of appeals’ decision concerning appellate jurisdiction. Alternatively, the Court should

grant the petition, vacate the court of appeals’ decision,

and remand the case with instructions that the court

of appeals reconsider its decision in light of precedent

and tailor its discussion to the issues properly before

it.

37

If the Court concludes that this matter is moot, it

should vacate the court of appeals’ decision and remand with instructions to dismiss TCCB’s motion to

quash as moot.

Respectfully submitted,

MOLLY DUANE

AUTUMN KATZ

CAROLINE SACERDOTE

CENTER FOR

REPRODUCTIVE RIGHTS

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November 12, 2018

STEPHANIE TOTI

Counsel of Record

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