23 F.4th 380
5th Cir.2022Background
- Plaintiffs (abortion providers and allied organizations) brought a pre-enforcement federal challenge to Texas’s S.B. 8 (the "Heartbeat Act").
- The U.S. Supreme Court held that the suit may proceed past the motion-to-dismiss stage against four Texas licensing officials under Ex parte Young, but stressed uncertainty about how Texas law actually allocates enforcement authority and said state courts are final arbiters of Texas law.
- On remand, the remaining Texas Licensing Officials moved for certification to the Texas Supreme Court of whether state law authorizes those agencies/officers to (directly or indirectly) take disciplinary/adverse action to enforce S.B. 8; plaintiffs opposed certification as inconsistent with the Supreme Court’s mandate.
- The Fifth Circuit majority ordered certification, concluding the state-law questions are dispositive, Pullman/Erie principles counsel deference to the Texas Supreme Court, and the Supreme Court’s remand did not bar certification.
- Judge Higginson dissented: he viewed certification as untimely, inconsistent with the Supreme Court’s mandate and the law-of-the-case, and as an improper relitigation of issues the Supreme Court already resolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fifth Circuit should certify state-law questions about licensing officials’ authority to enforce S.B. 8 | Remand from the Supreme Court forecloses certification; court should promptly remand to district court | Certification is proper and necessary to resolve dispositive state-law issues under Texas law | Majority: grant certification to Texas Supreme Court; Dissent: certification improper and exceeds mandate |
| Whether the Supreme Court’s remand prohibited certification | Remand = mandate to proceed in district court; no further relitigation of state-law allocation | The remand order did not expressly prohibit certification and left room for the court of appeals to act | Court: remand did not foreclose certification |
| Whether Pullman/Erie abstention/certification is required because federal resolution might rest on an unclear state-law predicate | Plaintiffs: federal proceeding may continue — Supreme Court already allowed motion-to-dismiss survival | Defendants: state-law resolution could avoid or narrow federal constitutional issues; certification promotes comity and efficiency | Court: state-law questions are dispositive and certification is appropriate under Pullman/Erie principles |
| Timeliness and law-of-the-case (relitigation) objection | Certification is untimely and improperly relitigates issues the Supreme Court resolved; gives losing party a second bite | Timing is immaterial; either this court or Texas Supreme Court can supply authoritative state-law answers | Majority: timing is not a bar; dissent: certification violates law-of-the-case and delays relief |
Key Cases Cited
- Whole Woman’s Health v. Jackson, 142 S. Ct. 522 (2021) (Supreme Court holding plaintiffs’ suit may proceed past motion to dismiss against specified licensing officials but noting uncertainty as to Texas law)
- Railroad Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941) (federal courts should abstain or seek state-court construction of uncertain state law that could moot federal constitutional questions)
- Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144 (2017) (federal courts should defer constitutional adjudication when a controlling state-law interpretation might avoid it)
- Est. of Thornton v. Caldor, Inc., 472 U.S. 703 (1985) (federal courts bound by authoritative determinations of state law)
- Bellotti v. Baird, 428 U.S. 132 (1976) (certification appropriate where state-court construction may avoid federal constitutional adjudication)
- Demahy v. Schwarz Pharma, Inc., 702 F.3d 177 (5th Cir. 2012) (lower courts on remand must implement the appellate court’s mandate and may not disregard its explicit directives)
- Lehman Bros. v. Schein, 416 U.S. 386 (1974) (lower courts that can resolve state-law issues with available materials should do so but certification remains an option)