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Planned Parenthood Association of Utah v. Herbert

United States Court of Appeals, Tenth Circuit

October 28, 2016

PLANNED PARENTHOOD ASSOCIATION OF UTAH, Plaintiff - Appellant,
v.
GARY R. HERBERT, in his official capacity as Governor of the State of Utah; JOSEPH K. MINER, M.D., in his official capacity as Executive Director of the Utah Department of Health, Defendants-Appellees.

         (D.C. No. 2:15-CV-00693-CW) (D. Utah)

          Before TYMKOVICH, Chief Judge, KELLY, BRISCOE, LUCERO, HARTZ, GORSUCH, HOLMES, BACHARACH, PHILLIPS, and MORITZ, Circuit Judges.[*]

          ORDER

         On July 12, 2016, the original panel opinion issued in this matter. Subsequent to that issuance, a poll was called, sua sponte, to consider en banc rehearing. Upon that consideration, a majority of the active available judges of the court voted to deny. See Fed. R. App. P. 35(a). Chief Judge Tymkovich, as well as Judges Hartz, Gorsuch, and Holmes voted to grant en banc rehearing.

         Judge Briscoe has written separately in concurrence to the denial of en banc rehearing, as has Judge Bacharach. Judge Gorsuch has written separately in dissent. Judges Tymkovich, Hartz and Holmes join in that dissent.

         A copy of this order shall stand as a supplement to the mandate issued on August 8, 2016.

          BRISCOE, Circuit Judge, concurring in the denial of rehearing en banc.

         I write in support of the denial of rehearing en banc for two reasons: to comment on the unusual procedural step this court has taken in this untimely sua sponte request for an en banc poll, and to set the record straight regarding the merits of the panel decision.

         I

         From a procedural perspective, our consideration and denial of rehearing en banc will surely come as a surprise to the parties, who have clearly moved on. The parties intentionally bypassed further review by the panel or the full court, and instead returned to the district court. And the parties have since stipulated to the entry of a preliminary injunction in favor of plaintiff Planned Parenthood Association of Utah (PPAU).

         As our docket reflects, both the panel opinion and the judgment in this case issued on July 12, 2016. The July 26, 2016 deadline for filing a petition for rehearing en banc subsequently passed without the parties taking any action. See Fed. R. App. P. 35(c) ("A petition for rehearing en banc must be filed within the time prescribed by Rule 40 for filing a petition for rehearing."); Fed. R. App. P. 40(a)(1) ("Unless the time is shortened or extended by order or local rule, a petition for panel rehearing may be filed within 14 days after entry of judgment."); see also Fed. R. App. P. 26(a)(1) (outlining how time is computed under the Federal Rules of Appellate Procedure "[w]hen the period is stated in days"). Under the Federal Rules of Appellate Procedure and our own Tenth Circuit Rules, that left only the mandate to issue.

         On August 1, 2016, however, a member of this court, acting despite the absence of a timely filed petition for rehearing by any party, called for a poll. The poll ultimately failed by a vote of 6 to 4, with two judges recusing. The mandate issued on August 8, 2016, prior to the completion of voting, but after it was clear that the poll would fail. According to the district court's docket, the parties, unaware of our untimely sua sponte activities, stipulated to the entry of a preliminary injunction in favor of PPAU on August 31, 2016, and have moved on with this litigation in district court.

         In my view, we should be extraordinarily cautious in exercising our inherent authority to sua sponte rehear a case when the parties themselves have chosen not to seek en banc review. And, presumably, our inherent authority in that regard is, at an absolute minimum, bounded by the standards outlined in Fed. R. App. P. 35 and 10th Cir. R. 35. Although the dissent cites to the standard for en banc review outlined in Fed. R. App. 35(a) and asserts that "the panel acted inconsistently with this court's previously uniform practice when it comes to questions concerning our standard of review and the burden of proof, " Dissent at 2, there is simply no substance to that assertion, and thus no justification for the unusual procedure that has been invoked.

         II

         Turning to the merits, the dissent mischaracterizes this litigation and the panel opinion at several turns. To begin with, the dissent incorrectly states that "the preliminary injunction motion turned in significant measure on the question whether [PPAU] could show that it was likely to succeed at trial on its unconstitutional conditions claim." Dissent at 1. As a matter of fact, PPAU asserted three claims-an equal protection claim and two unconstitutional conditions claims-and a substantial portion of the panel opinion was devoted to analyzing whether PPAU had established a substantial likelihood of success on the merits of its equal protection claim (the panel agreed with the district court that PPAU failed in this regard).

         As for the unconstitutional conditions claims, it is true that PPAU's likelihood of success ultimately turned on the assessment of evidence concerning Governor Herbert's motive for issuing the August 14, 2015 directive. See Planned Parenthood Ass'n of Utah v. Herbert, ___ F.3d ___, 2016 WL 3742008 at *12 (10th Cir. July 12, 2016) ("[T]hat leaves the question of whether PPAU can establish that Herbert issued the Directive in retaliation for PPAU's exercise of those [constitutional] rights."). But the dissent again mischaracterizes how both the district court and the panel performed this assessment. To begin with, the dissent incorrectly states that "the district court found that the Governor's stated intention appeared to be his true intention" in suspending PPAU's funding. Dissent at 2. In other words, the dissent states that the district court made an express finding of fact "that the Governor 'did not retaliate against Plaintiff.'" Id. at 4 (quoting Planned Parenthood Ass'n of Utah v. Herbert, No. 2:15-CV-693, 2015 WL 9412539, at *6 (D. Utah Dec. 22, 2015)). The dissent in turn asserts that the panel proceeded to review that factual finding de novo. Id.

         What in truth occurred is that the panel, after carefully considering the district court's opinion, concluded that the district court did not make a factual finding regarding the Governor's motive for issuing the directive, but rather made a legal determination regarding whether the limited evidence before it would be sufficient to allow a factfinder to find in favor of PPAU on the motive issue. Planned Parenthood, ___ F.3d ___, 2016 WL 3742008 at *12, n.6 ("As we read the above-quoted language, the district court was merely assessing the limited evidence presented by the parties and determining, as a matter of law, whether PPAU had established a likelihood of succeeding on its unconstitutional conditions claim."). Indeed, the panel remarked that "it would have been unusual for the district court to make a factual finding on this key issue, given the procedural posture of the case, the fact that no witnesses testified at the preliminary injunction hearing, and the fact that Herbert ha[d] not been deposed yet." Id. And the panel in turn reviewed the district court's legal determination de novo. In a related footnote, the panel also stated that, "even assuming that the district court intended to make a factual finding on this issue, we conclude that such finding was clearly erroneous." Id. That is because the district court failed to consider at all the admissions made by Governor Herbert in responding to PPAU's motion for preliminary injunction.

         Dissatisfied with the panel's analysis, the dissent asserts that Rule 52(a)(2) imposed an obligation on the district court "to offer a finding on the only and hotly disputed question in this case, " i.e., Governor Herbert's motive for issuing the directive, and that "the proper course for [the panel] would have been to remand the matter for the district court to discharge its fact-finding function, not to attempt [its] own de novo assessment of the record on appeal." Dissent at 5.

         The problem with this assertion is two-fold. First, the dissent misreads Rule 52(a)(2). That rule states: "In granting or refusing an interlocutory injunction, the court must . . . state the findings and conclusions that support its action." Fed.R.Civ.P. 52(a)(2). In other words, Rule 52(a)(2) generally "requires [a district] court to make findings of fact and conclusions of law if it grants or refuses a preliminary injunction." 9C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2576 at 283 (3d ed. 2008). But the Rule obviously affords a district court with discretion in how it goes about resolving the unique issues presented in each case. Thus, although the district court in this case could have made a preliminary factual finding regarding Governor Herbert's motive, it did not, in the panel's view, do so, and there was no requirement under Rule 52(a)(2) that the panel remand the case to the district court to make a factual finding on this issue. Second, the panel did not, as the dissent implies, make its own factual findings, but instead properly conducted a de novo review of what it deemed to be the district court's legal determination.

         The dissent also takes issue with the panel's alternative conclusion that, even assuming the district court intended to make a factual finding regarding Governor Herbert's motive, the district court clearly erred in doing so. To begin with, the dissent complains that "the panel never proceeded to explain why the district court's finding qualified as 'plainly implausible, ' 'irrational, ' or enjoyed 'no support' in the record." Dissent at 6. In turn, the dissent asserts that the panel could not "have found the district court's finding reversible under the correct standard of review had it tried" because ...


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