The Supreme Court’s decision in Trump v. CASA left the legal world grappling with a number of questions about the scope of relief available to plaintiff—some new, some old.  One old question at the heart of the debate between Justices Barrett and Jackson:  to what extent is a plaintiff who alleges her rights have been violated entitled to federal relief in federal court?  Three of the Fifth Circuit’s recently decided cases relate to that question.

First, Texas v. Nuclear Regulatory Commission.  This is a two-page per curiam opinion joined by Judges Jones, Ho, and Wilson.  It concerns a remand from the Supreme Court.  As the panel explained, “Texas state officials,” had concluded that a proposed NRC license “would not only violate federal law, but also wreak environmental havoc in West Texas and endanger the nation’s energy security.”  So, “Texas challenged the NRC’s issuance of the license,” relying on Fifth Circuit precedent allowing states to challenge ultra vires agency actions under the Hobbs Act.  The Fifth Circuit initially allowed Texas to seek that review, but the Supreme Court reversed, holding that ultra vires review is unavailable where “a ‘statutory review scheme provides aggrieved persons with a meaningful and adequate opportunity for judicial review’ or where an ‘alternative path to judicial review’ exists.” 

On remand, the panel therefore dismissed for lack of jurisdiction.  But it went out of its way to state that its earlier decision had “faithfully applied circuit precedent.”  That is similar to what Judge Ho said after the Court remanded United States v. Rahimi.  The panel’s earlier decision, Judge Ho wrote, “faithfully applied the Court’s decision in  .   .   .  Bruen.”  In his view, it was the Supreme Court that had “modified Bruen”—not the Fifth Circuit.  To be sure, the Texas v. NRC panel purported to label its previous decision as correct only as a matter of Fifth Circuit—and not Supreme Court—precedent.  That distinction aside, the statement could be read as defensive:  perhaps because of the Court’s increased review and reversal of Fifth Circuit decisions, or perhaps because the panel was reticent to limit Texas’s access to judicial review.  

Second, Moats v. National Credit Union Administration Board.  In this case, by contrast, Judges Weiner, Douglas, and Ramirez were not reticent to limit a plaintiff’s access to judicial review, finding that Congress affirmatively precluded it.  The plaintiff had brought a constitutional challenge against the NCUA.  The district court dismissed that challenge for lack of subject matter jurisdiction.  In doing so, the court relied on 12 U.S.C. 1786(k)(1), which says that “no court shall have jurisdiction to affect by injunction or otherwise the issuance or enforcement of any notice or order under this section.” 

The Fifth Circuit affirmed.  On appeal, the plaintiff had argued that Section 1786(k)(1) did not preclude jurisdiction, and that even if it did, the statute would be “unconstitutional as applied to him because ‘[t]he Constitution cannot be read to deny a remedy where there is a right.’ ”  The panel relied on the Fifth Circuit’s decision in Burgess v. Whang, recently highlighted by my friend Damonta Morgan, to reject the plaintiff’s first argument.  As to the second:  nothing more was required “to preclude constitutional claims from a district court’s jurisdiction.” 

Third, Mesquite Asset Recovery Group, L.L.C. v. City of Mesquite.  So too, here, Judges Higginson, Willett, and Engelhardt concluded that plaintiffs were not entitled to pursue a federal constitutional claim against officials—this time, municipal ones—in federal court.  The plaintiffs, a set of development groups, brought takings and breach-of-contract claims against the City of Mesquite, Texas.  The district court dismissed the takings claim and remanded the plaintiffs’ state-law claims to state court, reasoning that the plaintiffs had not “sufficiently alleged that the City acted in its sovereign, rather than its commercial, capacity.”  The Fifth Circuit agreed.  In the panel’s view, “[a] government acting ‘in its commercial or proprietary capacity in entering contracts, rather than in its sovereign  capacity,’ is treated just as any other party to a contract.”  Because the plaintiffs’ allegations “sound[ed] in contract,” contract law provided “the proper recourse for any wrongdoing.”  

Mikaela Milligan (née Schulz) is an associate at a law firm in Washington, D.C.