470 F. App'x 389

In re TIME WARNER CABLE, INCORPORATED; Texas Cable Association, Petitioners.

No. 12-50332.

United States Court of Appeals, Fifth Circuit.

May 18, 2012.

Henk Brands, Washington, DC, Roger James George, Jr., Trial Attorney, George & Brothers, L.L.P., Austin, TX, for Petitioners.

Before REAVLEY, ELROD, and GRAVES, Circuit Judges.*

PER CURIAM: **

This lawsuit began nearly seven years ago.1 In January of this year, we held under well-settled precedent that the provisions excluding only certain incumbents from a statewide franchise violated the First Amendment. Time Warner Cable Inc. v. Hudson, 667 F.3d 630, 642 (5th Cir.2012). Furthermore, we urged the district court to handle the remand “expeditiously,” given the plaintiffs’ long wait to validate time-sensitive rights. Id. On remand, the plaintiffs moved for an order enjoining the defendants from enforcing the unconstitutional exclusion. After more than thirty days with no response from the district court, the plaintiffs applied for a statewide franchise, but the Public Utility Commission (PUC) denied the franchise because of the district court’s failure to act.2 Finally, over one hundred days after our judgment, the district court denied the plaintiffs’ motion and entered a stay of the proceedings pending the resolution of the *390defendants’ petition for certiorari before the Supreme Court.

We have serious concerns that the district court’s continued delay deviates from our mandate. See United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004) (“[A] lower court on remand must implement both the letter and the spirit of the appellate court’s mandate and may not disregard the explicit directives of that court.”).3 Moreover, “[i]t is well established that an inferi- or court has no power or authority to deviate from the mandate issued by an appellate court.” League of United Latin Am. Citizens, Dist. 19 v. City of Boerne, 659 F.3d 421, 438 (5th Cir.2011) (quoting Briggs v. Penn. R.R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948)). We are also mindful that Congress has only authorized the court of appeals or a Justice of the Supreme Court to stay the execution or enforcement of the court of appeals’ judgment pending a petition for certiorari. 28 U.S.C. § 2101(f); Byrne v. Roemer, 847 F.2d 1130, 1134 (5th Cir.1988).

Nevertheless, mandamus is an extraordinary remedy available only when, inter alia, there is no other adequate means to attain relief. In re Volkswagen of Am., Inc., 545 F.3d 304, 311 (5th Cir.2008) (en banc). Therefore, we decline to issue the writ of mandamus here where the district court’s denial of the requested injunction is immediately appealable, and plaintiffs may file an expedited appeal pursuant to 28 U.S.C. § 1292(a)(1) and Rule 2 of the Federal Rules of Appellate Procedure. In re Morton, 460 Fed.Appx. 385 (5th Cir.2012) (unpublished).

Any further appeal or interim motions will be heard by this panel. See League of United Latin Am. Citizens, 659 F.3d at 440; Tex. Med. Providers Performing Abortion Servs. v. Lakey, 667 F.3d 570, 572 (5th Cir.2012).

It is ORDERED that the petition for writ of mandamus is DENIED.

In re Time Warner Cable, Inc.
470 F. App'x 389

Case Details

Name
In re Time Warner Cable, Inc.
Decision Date
May 18, 2012
Citations

470 F. App'x 389

Jurisdiction
United States

References

Referencing

Nothing yet... Still searching!

Referenced By

Nothing yet... Still searching!