Whether a pro se litigant's notice of constitutional challenge can independently trigger statutory certification requirements under 28 U.S.C. § 2403(b) and Federal Rule of Civil Procedure 5.1(b) in the absence of an existing federal court proceeding

No question identified. : dA rm Avorary. dies. ah Handi dai uuels ag st 1, , co | QOBS, AM Likes Lor. ee ekg GD) das —. — _ En suepect. oC Ves. Reg Ht cpl ——. essere A ee IAD. ate ttc — Oo Was clas Petitioner in Ceseaccning mow ching an Dadar, tinct saliabies tna Couch —— ime, ke assure Mack is Pettion For Weak of arocact mers Whe Wier ssleacicle of Nac Cah oe 4 Pett ec Kespectfullsy asks Wats Memecale Oo > Guc.aclachiros, August tt, 3038; Gc Dakieaer oo Wile tis Pein EO Nek ok Cobian Wek © Wane. srr abe oe \ Nine contents of re. etchan Mek of Comedy dak ect uusheca! pMAd =|lua" — set Gah are Aue. tind. eoxccent As a USCA11 Case: 25-10799 Document: 6-2 Date Filed: 06/03/2025 Page: 1 of 3 In the United States Court of Appeals Hor the Eleventh Circuit No. 25-10799 In re: KENNETH J. O'BRIEN, Petitioner. On Petition for Writ of Mandamus to the United States District Court for the Northern District of Florida D.C. Docket No. Before NEWSOM, GRANT and BRASHER, Circuit Judges. BY THE COURT: USCA11 Case: 25-10799 Document: 6-2 Date Filed: 06/03/2025 Page: 2 of 3 2 Order of the Court 25-10799 Kenneth J. O’Brien petitions this Court for a writ of mandamus directing the district court to certify to the Florida Attorney General that he has challenged the constitutionality of state statutes. See 28 U.S.C. § 2403(b); Fed. R. Civ. P. 5.1(b). Mandamus is available “only in drastic situations, when no other adequate means are available to remedy a clear usurpation of power or abuse of discretion.” Jackson v. Motel 6 Multipurpose, Inc., 130 F.3d 999, 1004 (11th Cir. 1997) (citation omitted); see United States v. Shalhoub, 855 F.3d 1255, 1259 (11th Cir. 2017). The petitioner has the burden of showing that he has no other avenue of relief, and that his right to relief is clear and indisputable. Mallard v. United States Dist. Court, 490 U.S. 296, 309 (1989). And we “must be satisfied that the writ is appropriate under the circumstances.” Shalhoub, 855 F.3d at 1259. Here, O’Brien has not shown a clear usurpation of power or abuse of discretion by the district court, or that he has a clear and indisputable right to the relief he requests. His arguments are hard to follow, but he appears to contend that the district court erred by treating his filing labeled “Notice of Constitutional Question of Law” as a civil rights complaint. He argues that his “notice” required the district court to certify to the state attorney general the existence of a constitutional challenge pursuant to 28 U.S.C. § 2403(b) and Rule 5.1(b) of the Federal Rules of Civil Procedure. But § 2403 and Rule 5.1 both presuppose an existing proceeding in the district court in which one party’s filing calls into question the constitutionality of a statute—neither creates a USCA11 Case: 25-10799 Document: 6-2 Date Filed: 06/03/2025 Page: 3 of 3 25-10799 Order of the Court 3 freestanding cause of action. See 28 U.S.C. § 2403 (requiring certification in an “action, suit, or proceeding in a court of the United States” in which the constitutionality of a statute is questioned); Fed. R. Civ. P. 5.1(b) (requiring certification “under 28 U.S.C. § 2403” when a party files notice ofa constitutional challenge). And contrary to O’Brien’s argument, the district court did not err by failing to consider his “notice” as part of his Florida habeas corpus proceeding because that was a state court action—not a “proceeding in a court of the United States”—and it was never pending before the district court. 28 U.S.C. § 2403(b). The mandamus petition is DENIED, and O’Brien’s motion for leave to proceed, construed from his consent form, is DENIED as moot.