Justia U.S. 5th Circuit Court of Appeals Opinion Summaries

The Board appealed the district court's decision granting summary judgment to appellees on the Board's claim that the EPA improperly exercised its power to veto a plan to reduce flooding in Mississippi (the Project). The Board claimed that the EPA was barred from vetoing the Project under section 404(r) of the Clean Water Act, 33 U.S.C. 1344(r). As an initial matter, the court denied the Board's motion to supplement the record on appeal or, in the alternative, for judicial notice. In addition, the court concluded that the EPA waived its argument that the Board did not have prudential standing under the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq. The court affirmed the district court's decision upholding the EPA's veto, as the record did not contain sufficient evidence to overturn the EPA's findings.

This case involved the Corps' dredging of the Mississippi River Gulf Outlet (MRGO), a shipping channel between New Orleans and the Gulf of Mexico, as well as levees alongside the channel and around the city. The Corps' negligence in maintaining the channel, grounded on a failure to appreciate certain hydrological risks, caused levees to fail and aggravated the effects of 2005's Hurricane Katrina on the city and its environs. Claimants filed hundreds of lawsuits and this opinion concerned three groups of bellwether plaintiffs, all suing the United States for flood damages. The district court found that neither the Flood Control Act of 1928 (FCA), 33 U.S.C. 702, nor the discretionary-function exception (DFE) to the Federal Tort Claims Act (FTCA), 28 U.S.C. 2680(a), protected the government from suit; the district court found that three plaintiffs had proven the government's full liability and four had not. Another group of plaintiffs (Anderson plaintiffs) had their cases dismissed on the government's motion, the district court finding both immunities applicable. A different group (Armstrong plaintiffs) were preparing for trial of their own case against the government. The government appealed its losses in Robinson; the losing Robinson plaintiffs cross-appealed. The Anderson plaintiffs also appealed. On the theory that a favorable ruling might moot the pending Armstrong trial, the government petitioned the court for a writ of mandamus to order the district court to stay trial until the court issued an opinion in Robinson and Anderson. The three cases have been consolidated on appeal. The court held that the district court's careful attention to the law and even more cautious scrutiny of complex facts allowed the court to uphold its ruling in full, excepting the court's minor restatement of FCA immunity. Accordingly, the court affirmed the judgments in Robinson and Anderson, denying the government's petition for writ of mandamus to stay the Armstrong trial.

Christopher M. Loften died from a rare disease called Toxic Epidermal Necrolysis (TEN) after taking Motrin. Lofton's wife and children brought suit against defendants asserting that Motrin caused the disease and defendants had failed to warn consumers about the risk of these severe autoimmune allergic reactions. At issue on appeal was whether the district court correctly found that federal law preempted Tex. Civ. Prac. & Rem. Code 82.007(b)(1), which required plaintiffs to assert, in failure to warn cases, that a drug manufacturer withheld or misrepresented material information to the FDA. The court held that section 82.007(b)(1) required a Texas plaintiff to prove fraud-on-the-FDA to recover for failure to warn and this requirement invoked federal law supremacy. Therefore, because the court concluded that section 82.007(b)(1) was a fraud-on-the-FDA provision analogous to the claim considered in Buckman Co. v. Plaintiffs' Legal Comm., the court held that it was preempted by the Food, Drug and Cosmetic Act (FDCA), 21 U.S.C. 301 et seq., unless the FDA itself found fraud. Accordingly, the court affirmed the district court's grant of summary judgment in favor of defendants.

Plaintiff appealed its First Amendment challenge to a newsrack ordinance enacted by the City in 2007. The ordinance required newsracks on the City's rights-of-way to meet certain material size, and placement standards and required publishers using newsracks to pay a permit fee. The court held that plaintiff's appeal was without merit where the City's ordinance's requirement were narrowly tailored to the City's substantial interests in public safety and aesthetics and left open the ample alternative means of distribution; the fees under the newsrack ordinance were consistent with the First Amendment because they defrayed the City's administrative costs; and as a content-neutral time, place, and manner restriction that did not leave enforcing officials with unbridled discretion, the newsrack ordinance need not contain an explicit provision for judicial review. Accordingly, the court rejected plaintiff's First Amendment challenges to the City's newsrack ordinance.

Plaintiff, a terminal and switching railroad operating in the City, brought a declaratory judgment against the City alleging that a federal statute preempted all City ordinances that affected its transloading operations. The railroad wanted to expand its operations and the City opposed the expansion, claiming it violated several municipal ordinances. The court reversed the district court's holding of no preemption as to the standard construction details and road grading ordinance, resting its decision on express preemption under the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. 10101 et seq. The court's express preemption holding only pertained to the road and paving areas used in connection with the TCB-MAALT-Halliburton transloading operation. This preemption rendered the City's appeal from the denial of its request for civil penalties for ordinance violations moot. The court reversed what the court concluded was likely a holding by the district court that there was express preemption as to the older, 20-acre transloading center and remanded for further proceedings. The court affirmed the district court's remaining rulings.

Plaintiffs-Appellants James and Sandra Lindquist sued the City of Pasadena alleging the City violated their state and federal constitutional rights by exercising "unbridled discretion" in connection with the denial of a zoning waiver. Plaintiffs operated a used-car dealership in Pasadena. In 2003, the Pasadena City Council enacted an ordinance adopting licensing standards for used-car dealers criminalizing the sale of used cars without a license and imposing a number of requirements that dealers must meet as a condition of receiving a license. Two of those requirements were the subject of this appeal: (1) new license locations are required to be a minimum of one-thousand feet from any existing license; and (2) no new licenses could be issued within 150 feet of a residential area. After the ordinance was passed, Plaintiffs considered purchasing two lots to expand their existing dealership. City officials told them that neither lot qualified for a license, but Plaintiffs purchased the lots anyway. Plaintiffs later learned that their competitors purchased a nearby lot, had applied for a license, and were denied for different reasons than those given to Plaintiffs. On appeal, the Fifth Circuit reversed the district court's ruling that Plaintiffs' equal protection claim failed to state a claim for relief. On remand, the district court granted summary judgment to the City after determining Plaintiffs failed to create a genuine issue of fact with respect to their equal protection claim. Upon review, the Fifth Circuit concluded that Plaintiffs could not show that the City Council acted irrationally when it denied their license appeal. Furthermore, the Court found that Plaintiffs failed to preserve their unbridled discretion claim for further review. As such, the Court affirmed the district court's grant of summary judgment in favor of the City.

This was an interlocutory appeal from the denial of a motion to intervene as of right brought by citizens of Houston in regard to litigation between the City and the contractor hired to run a red light camera system that generated millions of dollars annually to the City and the contractor. The court held, that under the totality of the circumstances, including the haste of the litigation, the City's pecuniary motives, the extended opposition to the charter amendment, the agreed order to leave the cameras in place, and the attempt to reinstate them before the suit had concluded, it was sufficient to conclude that the intervenors' interests "may be" inadequately represented. Accordingly, the district court's orders denying intervention and a new trial were reversed and the case remanded for further proceedings.

Plaintiffs, Mississippi and Alabama residents, brought a Federal Tort Claims Act (FTCA), 28 U.S.C. 2671-2680, action against the Government for injuries allegedly related to their exposure to elevated levels of formaldehyde contained in the component materials of the Emergency Housing Units (EHUs) provided to them by the Federal Emergency Management Agency (FEMA) after Hurricanes Katrina and Rita. The district court concluded that the Mississippi and Alabama emergency statutes barred suit against a "private person under similar circumstances" and granted the Government's motion to dismiss. Because the Mississippi and Alabama emergency statutes abrogated the tort liability of a private person who voluntarily, without compensation, allowed his property or premises to be used as a shelter during or in recovery from a natural disaster, the Government's voluntary, cost-free provision of the EHUs to disaster victims, in connection with Hurricanes Katrina and Rita, was also immunized conduct under the FTCA. Accordingly, the court affirmed the district court's judgment dismissing plaintiffs' FTCA claims against the Government for lack of subject-matter jurisdiction and held that plaintiffs' remaining questions did not warrant certification.

Petitioners, the City of Arlington and the City of San Antonio, sought review of a Declaratory Ruling and subsequent Order on Reconsideration that the FCC issued in response to a petition for a declaratory ruling by a trade association of wireless telephone service providers, CTIA. In the proceeding before the FCC, CTIA sought clarification of Sections 253 and 332(c)(7) of the Communications Act, 47 U.S.C. 253, 332(c)(7), regarding local review of wireless facility siting applications. Both cities claimed (1) the FCC lacked statutory authority to establish the 90- and 150-day time frames; (2) the FCC's 90- and 150-day time frames conflicted with the language of section 332(c)(7)(B)(ii) and (v); (3) the FCC's actions were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law; and (4) the FCC violated the Administrative Procedures Act (APA), 5 U.S.C. 500 et seq., because its establishment of the 90- and 150-day time frames constituted a rulemaking subject to the APA's notice-and-comment requirements. Arlington also raised a procedural due process claim. The court denied Arlington's petition for review on the merits. The court dismissed San Antonio's petition for review because the court lacked jurisdiction because San Antonio did not timely file its petition for review.

Plaintiffs, a trade organization representing incumbent cable operators in Texas and an incumbent cable provider, appealed the district court's grant of summary judgment dismissing their claims that Senate State Bill 5 violated the First and Fourth Amendments of the Constitution or was preempted by federal law. SB 5 was aimed at reforming the cable service industry in Texas by creating a new state-level franchising system that obligated the Public Utility Commission (PUC) to grant a franchise for the requested areas if the applicant satisfied basic requirements. New entrants could obtain a single statewide franchise that avoided the expense and inconvenience of separate municipal franchise agreements across the state. Overbuilders could terminate their existing municipal franchise agreements in favor of the convenience of the statewide franchise. Incumbent cable providers, however, could not similarly opt out for the statewide franchise, until after the expiration of the municipal license. The court held that because the statute unjustifiably discriminated against a small number of incumbent cable providers in violation of the First Amendment, the court reversed.