Take the Fifth

Designated for publication

• Devillier v. State of Texas, 21-40750, appeal from S.D. Tex.
  • per curiam (denial of en banc rehearing; voting against rehearing were Richman, Jones, Stewart, Southwick, Haynes, Graves, Higginson, Willett, Ho, Duncan, Douglas, JJ.; voting for rehearing were Smith, Elrod, Engelhardt, Oldham, Wilson, JJ.); Higginbotham, J., concurring in denial of rehearing; Higginson, J., concurring in denial of rehearing; Oldham, J., dissenting from denial of rehearing (joined by Smith, Elrod, Engelhardt, Wilson, JJ.); taking
  • Denying rehearing en banc, leaving undisturbed the panel’s decision that Texas property owners could not advance their taking claims, alleging flooding of their property by the State of Texas, against a state directly under the Takings Clause, and remanding to the district court for remand to the state court. In a decision issued on November 23, 2022, and revised on January 10, 2023, the panel had vacated the district court’s decision that plaintiffs’ federal Takings Clause claim against the state may proceed in federal court, on holding that “the Fifth Amendment Takings Clause as applied to the states through the Fourteenth Amendment does not provide a right of action for takings claims against a state,” and had remanded with instructions to return the case to state court.
  • Judge Higginbotham concurred in the denial of rehearing, emphasizing the historical and doctrinal roots of the requirement that taking claims against a state (as opposed to such claims against a municipality) be overseen by state courts with review by state supreme courts and the U.S. Supreme Court. “The en banc court rejected the contention that the ‘self-executing’ character of the Takings Clause grants direct access to federal courts, and for good reason. It is plain that ‘self-executing’ speaks only to the completeness of the claim itself, the point at which a takings claim is ready for a court.” He noted, “There simply is no rational reason to disturb the procedural paths of this genre of cases. It is in place and working effectively, as it has throughout our history. To do so would upset the structures of all but one of the states in the union, a pristine exemplar of federalism—not just a political slogan, but the heart of our splitting of the atom of sovereignty.”
  • Judge Higginson also concurred in the denial of rehearing. Examining the issue as an incorporation problem, whether an implied action against states for a taking under the Fifth Amendment was incorporated through the Fourteenth Amendment’s Due Process clause, Judge Higginson opined, “[I]t is not obvious why a cause of action fashioned by judges—not the Constitution—would be coextensive with a substantive constitutional right such that incorporation of one would incorporate the other. Nor is it obvious that a judicially created cause of action is always or ever a constitutional right that can be incorporated through the Fourteenth Amendment.” Judge Higginson noted that authority to the contrary cited by the dissent involved either pre-incorporation cases or post-incorporation cases against municipalities rather than states.
  • Judge Oldham dissented. He opined that the panel decision “breaks with centuries of precedent,” and that the plaintiffs would be precluded by the panel opinion from litigating their claims in state court after remand. “If this case is not enbancworthy, then it’s unclear how any case ever will be.”

• Feds for Medical Freedom v. Biden, 22-40043, appeal from S.D. Tex.
  • Oldham, J. (joined by Jones, Smith, Barksdale, Elrod, Willett, Ho, Duncan, Engelhardt, Wilson, JJ.); Ho, J., concurring (joined by Jones, J.); Haynes, J., dissenting in part; Higginson, J., dissenting in part (joined by Southwick, J.); Stewart, J., dissenting (joined by Richman, Dennis, Graves, JJ.); COVID-19, separation of powers, Administrative Procedure Act
  • Affirming district court’s nationwide injunction of administration’s mandate of COVID-19 vaccination for all federal employees.
  • Holding that the Civil Service Reform Act does not displace federal question jurisdiction over federal employees’ claims challenging the vaccine mandate for all federal employees, because the vaccine mandate does not implicate CSRA-covered personnel actions.
  • The majority was not phased by the nationwide scope of the injunction of the vaccine mandate, as the mandate was upheld and injunctive relief denied in other circuits without reaching the merits. “We hasten to emphasize that this case only involves a preliminary injunction. The preliminary injunction’s purpose is to maintain the status quo until the parties have the chance to adjudicate the merits. … When the parties proceed to the merits in the district court, the plaintiffs will have to prove that whatever injunction they request is broad enough to protect against their proven injuries and no broader. And the Government will have another chance to show that any permanent injunction should be narrower than the preliminary one. And both sides will have to grapple with the White House’s announcement that the COVID emergency will finally end on May 11, 2023.”
  • Judge Ho concurred, primarily to opine about an issue he acknowledges is not before the Court–the constitutionality of the CSRA and its protections of civil service employees from presidential removal in light of Article II.
  • Judge Haynes dissented in part. While concurring in the holding that the Court has jurisdiction and in upholding the preliminary injunction, she dissents from the upholding of the nationwide scope of the preliminary injunction.
  • Judge Higginson dissented in part. Also agreeing with the majority’s jurisdictional analysis, he nevertheless dissented from the upholding of the preliminary injunction. “For the wrong reasons, our court correctly concludes that we do have jurisdiction. But contrary to a dozen federal courts—and having left a government motion to stay the district court’s injunction pending for more than a year—our court still refuses to say why the President does not have the power to regulate workplace safety for his employees.”
  • Judge Stewart dissented on the basis that the CSRA precluded judicial review of the executive order containing the vaccine mandate.

• R.J. Reynolds Vapor Co. v. U.S. Food & Drug Administration, 23-60037, c/w 23-60128, appeal from FDA orders
  • Jones, J. (King, Jones, Smith), Administrative Procedure Act
  • Granting stay of FDA’s order denying premarket tobacco product application (“PMTA”) for menthol-flavored e-cigarettes.
  • The Court held that the petitioner showed a likelihood of success on the merits of its APA challenge to the denial order as arbitrary and capricious. “Specifically, RJRV demonstrates that the FDA failed to reasonably consider the company’s legitimate reliance interests concerning the need for longitudinal studies and marketing plans; failed to consider relevant evidence, inter alia, that youthful users do not like menthol-flavored e-cigarettes; and has created a de facto rule banning all non-tobacco-flavored e-cigarettes without following APA notice and comment requirements.”

Unpublished

• B.S. v. Waxahatchie Independent School District, 22-10443, appeal from N.D. Tex.
  • per curiam (Davis, Haynes, Graves), Individuals with Disabilities Education Act
  • Affirming district court’s affirmance of hearing officer’s determination that school district had complied with the IDEA, and affirming summary judgment dismissal of discrimination and ADA claims.

• Gilliam v. U.S., 22-10993, appeal from N.D. Tex.
  • per curiam (Davis, Smith, Douglas), tax
  • Affirming dismissal of plaintiff’s claims for unlawful tax collection, on grounds of failure to exhaust administrative remedies.

• Eubanks v. Endeavor Energy Resources, L.P., 22-50737, appeal from W.D. Tex.
  • per curiam (King, Higginson, Willett), Americans with Disabilities Act
  • Affirming summary judgment dismissal of plaintiff’s ADA retaliation claim.

• U.S. v. Armenta-Lopez, 22-50874, c/w 22-50890, appeal from W.D. Tex.
  • per curiam (Davis, Smith, Douglas), criminal, sentencing
  • Affirming conviction and sentence for illegal reentry.

• Erazo-Flores v. Garland, 22-60177, petition for review of BIA order
  • per curiam (King, Higginson, Willett), immigration
  • Denying Honduran citizen’s petition for review of BIA order denying him asylum, withholding of removal, and protection under the CAT.