Monuments Ruling - 3/16/17
Monuments Ruling - 3/16/17
FILED
No. 16-30107 March 6, 2017
Lyle W. Cayce
Clerk
Plaintiffs - Appellants
v.
Defendants - Appellees
No. 16-30107
Before HIGGINBOTHAM, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
The court has carefully considered this appeal in light of the briefs, oral
argument, and pertinent portions of the record. Having done so, we find no
error of law or reversible error of fact. We therefore AFFIRM the district courts
judgment for essentially the same reasons articulated by that court. See
Monumental Task Comm., Inc. v. Foxx, 157 F. Supp. 3d 573 (E.D. La. 2016).
Although we need not reach the question of irreparable harm, as Appellants
have failed to present a prima facie case in support of their legal claims, 1 we
take this opportunity to make four observations.
First, although Appellants asserted twelve causes of action in their
initial complaint, their preliminary injunction application relied solely on two
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 No matter how severe and irreparable an injury one seeking a preliminary
injunction may suffer in its absence, the injunction should never issue if there is no chance
that the movant will eventually prevail on the merits. Texas v. Seatrain Intl, S. A., 518 F.2d
175, 180 (5th Cir. 1975); see also La Union Del Pueblo Entero v. Fed. Emergency Mgmt.
Agency, 608 F.3d 217, 225 (5th Cir. 2010) (Because we have determined that Plaintiffs
cannot show a substantial likelihood of success on the merits, we need not address . . . the
other necessary elements for preliminary injunctive relief.); Daniels Health Scis., L.L.C. v.
Vascular Health Scis., L.L.C., 710 F.3d 579, 582 (5th Cir. 2013) (noting that [t]o show a
likelihood of success, the plaintiff must present a prima facie case); cf. Ruiz v. Estelle, 650
F.2d 555, 565 (5th Cir. 1981) (holding, in the context of a stay of injunction, that although
the movant need not always show a probability of success on the merits, the movant must
present a substantial case on the merits when a serious legal question is involved and show
that the balance of equities weighs heavily in favor of granting a stay). Put another way,
even if the varying strengths and weaknesses of each of the four preliminary injunction
factors may cross-compensate, this relationship has limits; the movant still must always
present a prima facie case. Daniels Health, 710 F.3d at 582. Such a showing is required,
because it is inequitable to temporarily enjoin a party from undertaking activity which [that
party] has a clear right to pursue. Seatrain, 518 F.2d at 180. We find that concern
particularly heightened when a federal court is asked to interfere with a state political
subdivisions activity.
2
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No. 16-30107
legal claims, both of which wholly lack legal viability or support. We therefore
hold only that Appellants have failed to carry their preliminary injunction
burden with respect to the two claims briefed and given to us, namely, their
federal statutory claim and their procedural due process claim based on the
Louisiana doctrine of negotiorum gestio. Indeed, by failing to show a
constitutionally or otherwise legally protected interest in the monuments, they
have also failed to show that any irreparable harm to the monumentseven
assuming such evidencewould constitute harm to Appellants. Second,
although Appellants implied at oral argument that the ownership of the
monuments and land on which they sit may be uncertain, we have exhaustively
reviewed the record and can find no evidence in the record suggesting that any
party other than the City has ownership. 2 Third, like the district court below,
we accept the Citys assurances that it will hire only qualified and highly
skilled crane operators and riggers to relocate the monuments from their
current positions and, further, that the monuments are merely to be relocated,
not destroyed.
Finally, we note the limited scope of our judicial review. We do not pass
on the wisdom of this local legislatures policy determination, nor do we suggest
how states and their respective political subdivisions should or should not
memorialize, preserve, and acknowledge their distinct histories. Wise or
unwise, the ultimate determination made here, by all accounts, followed a
robust democratic process. Appellants here have failed to put forward even a
prima facie showing in support of their two claims that this federal court must
2 In its brief and at oral argument, the City acknowledged that one of the four
monuments, Liberty Place, is subject to a 1992 Consent Order and confirmed that the City
will not take any action with respect to that monument without an order of approval from
the district court.
3
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No. 16-30107
interfere with this local political process, which required consideration of
heated and disagreeing viewpoints.
The district courts judgment is AFFIRMED for essentially the same
reasons articulated by that court, and, accordingly, the injunction pending
appeal is lifted.
4
Case: 16-30107 Document: 00513899670 Page: 1 Date Filed: 03/06/2017 Print Form
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
BILL OF COSTS
NOTE: The Bill of Costs is due in this office within 14 days from the date of the
opinion, See FED . R. APP. P. & 5T H CIR . R. 39. Untimely bills of costs must be
accompanied by a separate motion to file out of time, which the court may deny.
No. of Copies Pages Per Copy Cost per Page* Total Cost No. of Pages per Cost per Page* Total Cost
Documents Document
Appellants Brief
Appellees Brief
Other:
Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.
I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were
incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to
opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________.
_____________________________________________________________________
(Signature)
*SEE REVERSE SIDE FOR RULES
GOVERNING TAXATION OF COSTS Attorney for __________________________________________
Case: 16-30107 Document: 00513899670 Page: 2 Date Filed: 03/06/2017
FIFTH CIRCUIT RULE 39
39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover,
index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5 T H C IR . R. 32.2.3that mandates that briefs must lie reasonably flat when open shall
be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally
available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies
of an appendix or record excerpts, unless the clerk gives advance approval for additional copies.
39.2 Nonrecovery of Mailing and Com m ercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs.
39.3 Tim e for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in F ED . R. A PP . P. 39(D ). See 5 T H C IR . R. 26.1.
F ED . R. A P P . P. 39. COSTS
(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise;
(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;
(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.
(b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law.
) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records
authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerks office is located and should encourage economical methods of
copying.
(1) A party who wants costs taxed must within 14 days after entry of judgment file with the circuit clerk, with proof of service, an itemized and verified bill of costs.
(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.
(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate
issues before costs are finally determined, the district clerk must upon the circuit clerks request add the statement of costs, or any amendment of it, to the mandate.
(e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and
Sincerely,
LYLE W. CAYCE, Clerk
By: _______________________
Debbie T. Graham, Deputy Clerk
Enclosure(s)
Mr. Jason M. Bigelow
Mr. Kevin G. Boitmann
Mrs. Rebecca H. Dietz
Mr. John Bettes Dunlap III
Mr. Norman Sundiata Haley
Mr. Franklin Hardy Jones III
Mr. James Robert Logan IV
Mr. Peter M. Mansfield
Mr. Randy George McKee
Ms. Katharine Paige O'Hale
Mr. Adam Swensek