Bryan v. Cano ( 2022 )

Case: 22-50035 Document: 00516537981 Page: 1 Date Filed: 11/08/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 8, 2022
No. 22-50035 Lyle W. Cayce
Clerk
J. P. Bryan; Mary Jon Bryan; Gage Properties, Inc.;
Gage Hotel, L.P.,
Plaintiffs—Appellants,
versus
County Judge Eleazar R. Cano,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 4:20-CV-25
Before Jones, Southwick, and Ho, Circuit Judges.
Per Curiam:*
Appellants, owners of the Gage Hotel in Marathon, Texas, sued
County Judge Eleazar Cano in his official capacity for shutting down their
hotel for over a month during the Covid-19 pandemic. The district court
granted summary judgment in favor of Judge Cano. We affirm.
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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I. BACKGROUND
Appellants own and operate the historic Gage Hotel in Brewster
County, Texas, home of Big Bend National Park. Eleazar Cano is the county
judge of Brewster County, and, as such, serves as the presiding officer of the
county’s governing body. See Tex. Loc. Gov’t Code § 81.001.
By March 2020, Covid-19 had spread to Texas. In response,
Governor Greg Abbott declared “a state of disaster for all counties” on
March 13. Four days later, Judge Cano declared a local state of disaster for
Brewster County, although no Covid-19 cases had been reported in the
county or in any adjacent county. Both Governor Abbott and Judge Cano
acted pursuant to their respective powers under the Texas Disaster Act of
1975. See Tex. Gov’t Code Ann. §§ 418.014, 418.108.
On March 20, 2020, Judge Cano amended his declaration to order all
hotels, motels, short-term rentals, RV parks, and campgrounds to vacate any
guest not using the room or site as a primary residence. He soon amended
his declaration again to allow active-duty military, law enforcement, national
guard, emergency service personnel, and healthcare professionals to use
county hotels, motels, and short-term rentals. Lodging businesses remained
closed to all “recreational travelers.” On March 25, Judge Cano declared
another local state of disaster and maintained the restrictions on hotels,
motels, and the like. On March 31, Governor Abbott issued an executive
order prohibiting, in relevant part, local officials from restricting essential
services as defined by the Department of Homeland Security. The order did
not mention hotels or similar businesses. By a series of supplemental orders
beginning April 1, Judge Cano extended the hotel restrictions through
April 30, 2020. Brewster County’s first confirmed Covid-19 case appeared
on April 25.
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On April 10, 2020, J.P. Bryan, an owner of the Gage Hotel, brought
suit under 42 U.S.C. § 1983 seeking declaratory relief against Judge Cano for
allegedly violating his constitutional rights. Bryan then amended his
complaint twice to add the remaining owners of the Gage Hotel as plaintiffs,
specify that Judge Cano was sued in his official capacity as county judge,
request money damages in addition to declaratory relief, and refine his
claims.
The district court granted summary judgment for Judge Cano on all
counts. The Gage Hotel owners appeal the judgment and the court’s
exclusion of their expert witness’s affidavit.
II. DISCUSSION
“This court reviews the district court’s grant of summary judgment
de novo, applying the same standards as the district court.” DePree v.
Saunders, 588 F.3d 282, 286 (5th Cir. 2009). A party is entitled to summary
judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56. See also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct.
2548, 2552 (1986). We review the exclusion of expert testimony for abuse of
discretion. Sims v. Kia Motors of Am., Inc., 839 F.3d 393, 400 (5th Cir. 2016).
Appellants raise six arguments on appeal. The first three relate to
Appellants’ equal protection, due process, and unreasonable seizure claims.
Appellants’ fourth argument is presented on appeal as an ultra vires claim,
that is, that Judge Cano’s orders exceeded his statutory authority, but below
it was framed as another due process violation. Appellants’ fifth argument
contests the district court’s judgment to the extent it dismissed any of their
claims on sovereign immunity grounds. We assume arguendo that
Judge Cano acted as county official and, as such, does not enjoy the state’s
immunity. See Danos v. Jones, 652 F.3d 577, 582 (5th Cir. 2011) (assuming
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that defendants were not immune from suit and proceeding to rule for the
defendants on the merits). Finally, appellants challenge the expert witness
affidavit’s exclusion.
A. Equal Protection & Due Process
Appellants contend that Judge Cano violated their rights to equal
protection and due process by arbitrarily and irrationally ordering the near
closure of all hotels in Brewster County. The district court held that
Appellants failed to refute Judge Cano’s proffered reasons for his orders,
supported by evidence, which bore a rational relationship to a legitimate
governmental purpose.
1. Equal Protection
To establish their equal protection claim, Appellants must first show
that “two or more classifications of similarly situated persons were treated
differently” under Judge Cano’s orders. Big Tyme Invs., L.L.C. v. Edwards,
985 F.3d 456, 468 (5th Cir. 2021) (internal quotation omitted). The district
court found that the orders arguably treated similar categories of guests,
businesses, and employment classifications differently. Appellants concede
that their equal protection challenge, implicating neither a suspect class nor
a fundamental right, is reviewed according to the rational basis test. 1 Under
this standard, a governmental classification “will be upheld ‘if there is a
1
When reviewing the constitutionality of Judge Cano’s orders, the district court
purported to apply the Jacobson test, which asks whether an emergency order “has no real
or substantial relation” to public health “or is, beyond all question, a plain, palpable
invasion of rights secured by the fundamental law.” Jacobson v. Massachusetts, 197 U.S. 11,
31, 25 S. Ct. 358, 363 (1905). But when doing its work, the court properly employed the
traditional rational basis standard of review. See Big Tyme Invs., L.L.C. v. Edwards, 985 F.3d
456, 467–68 (5th Cir. 2021) (introducing Jacobson and then analyzing the equal protection
claim under rational basis); see also id. at 471 (Willett, J., concurring) (The Jacobson test “is
just a roundabout way of conducting a conventional constitutional analysis.”).
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rational relationship between the disparity of treatment and some legitimate
governmental purpose.’” Greater Houston Small Taxicab Co. Owners Ass’n
v. City of Houston, 660 F.3d 235, 239 (5th Cir. 2011) (quoting Heller v. Doe,
509 U.S. 312, 320, 113 S. Ct. 2637, 2642 (1993)). But a “necessary corollary
to and implication of rationality as a test is that there will be situations where
proffered reasons are not rational.” Id. (internal quotation omitted). For
example, the government “may not rely on a classification whose
relationship to an asserted goal is so attenuated as to render the distinction
arbitrary.” City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 446,
105 S. Ct. 3249, 3258 (1985).
Appellants do not dispute that Judge Cano’s stated purpose for his
orders—the public health of Brewster County—is legitimate. Rather,
Appellants argue that closing hotels to recreational guests but permitting
other businesses to serve the same clientele was arbitrary and irrational.
Further, Appellants criticize as particularly arbitrary the distinction drawn
between J.P. Bryan and other property owners, whereby Bryan was
prohibited from using his secondary residence in the Gage Hotel, but others
could occupy secondary residences, so long as they were not in a hotel.2
One rationale for treating hotels differently from other businesses was
to limit the concentrated presence of visitors and tourists in the county.
Judge Cano and his advisers considered that an important means to the end
of public health for several reasons: March and April are popular months for
tourism in Brewster County; visitors were retreating to Texas’s rural areas
to escape big city quarantines; the county had limited means to test residents
or visitors for Covid-19; and the county’s regional medical center did not
2
When questioned about this restriction at oral argument, counsel for Judge Cano
asserted that the orders applied only to “guests.” Thus, they did not reach J.P. Bryan and
other non-guest owners. Judge Cano did not render this opinion earlier in the dispute.
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have the capacity to care for the anticipated numbers of critically ill patients.
Further, a rationale for restricting the class of guests permitted to stay at
hotels was to keep recreational guests away while giving emergency service
personnel a place to stay. And presumably, the exception for guests whose
hotel room was their primary residence existed to avoid evicting people from
their homes.
Limiting restrictions to hotels and similar businesses, where guests are
more likely to stay for a period of days, during the first weeks of a global
pandemic, is not so attenuated from the asserted goal of public health as to
render the classification irrational. See City of Cleburne, 473 U.S. at 446,
105 S. Ct. at 3258. To be sure, these restrictions were overinclusive in some
ways and underinclusive in others. Not every guest turned away from a hotel
was a tourist or big city refugee. Nor were visitors prohibited entirely from
staying in the county. And prohibiting owners from staying as guests in their
own hotel, if that is what happened, may have been a bit overinclusive. But
these imperfections do not render Judge Cano’s orders arbitrary and
irrational. See Vance v. Bradley, 440 U.S. 93, 108, 99 S. Ct. 939, 948 (1979)
(noting “perfection is by no means required” and that over and
underinclusive classifications are permissible).
The Appellants’ equal protection claim fails as a matter of law.
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2. Due Process
Appellants’ due process claim fares no better under rational basis
review.3 To show that they were arbitrarily deprived of their liberty interests
in operating their hotel at full capacity, Appellants must “negative every
conceivable basis which might support” Judge Cano’s orders. F.C.C. v.
Beach Comm’s, Inc., 508 U.S. 307, 315, 113 S. Ct. 2096, 2102 (1993) (internal
quotation omitted).
As an initial matter, counts I and III of Appellants’ third amended
complaint allege that Judge Cano acted ultra vires and thus trampled on
Appellants’ due process rights. On appeal, Appellants insist that Judge
Cano’s orders were arbitrary, capricious, and unlawful because no disaster,
as defined by the Texas Disaster Act, existed at the time. In other words,
declaring a local state of disaster where none existed was “per se arbitrary
and irrational, and, as such, a violation of substantive due process.” Smith v.
City of Picayune, 795 F.2d 482, 488 (5th Cir. 1986). In the same vein, they
label Judge Cano’s April declarations as irrational on the ground that they
contradicted Governor Abbott’s March 31 executive order, which prohibited
local authorities from restricting access to essential services.
These arguments fail as a matter of law. Allegations that Judge Cano
violated state law are “alone insufficient to state a constitutional claim under
the Fourteenth Amendment.” FM Props. Operating Co. v. City of Austin,
93 F.3d 167, 174 (5th Cir. 1996). To hold otherwise would “improperly
bootstrap state law into the Constitution.” Stern v. Tarrant Cnty. Hosp. Dist.,
3
Appellants allege violations of their economic liberty interests, to which rational
basis review applies. See Stop the Beach Renourishment, Inc. v. Fla. Dep’t of Env’t Prot.,
560 U.S. 702, 721, 130 S. Ct. 2592, 2606 (2010).
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778 F.2d 1052, 1056 (5th Cir. 1985) (en banc); see also Lindquist v. City of
Pasadena, 669 F.3d 225, 235 (5th Cir. 2012) (same).4
Appellants also attempt to demonstrate irrationality and arbitrariness
by submitting evidence that no cases of Covid-19 were reported in Brewster
County or in any adjacent county at the time of Judge Cano’s orders. They
posit that there can be no reason for imposing restrictions on local businesses
without scientific data proving that the virus was on the county’s doorstep.
Appellants contend further that permitting healthcare workers and active-
duty military members to stay at hotels but not recreational guests was
arbitrary.5
At its heart, Appellants’ argument is that Judge Cano’s declarations
“were based on fear, not facts.” True, Judge Cano’s declarations would not
survive rational basis review if propped up by fantastic or nonsensical
4
Contrast this case with Stem v. Gomez, 813 F.3d 205 (5th Cir. 2016), where this
court considered the appellant’s state law claim brought under the ultra vires exception to
sovereign immunity because it was a state law claim, not a due process claim. Here,
Appellants have not raised state law claims, as their counsel confirmed at oral argument.
The separate due process claim presented in Stem implicated state law only to the extent it
defined the appellant’s constitutionally protected property interest. Id. at 210–11.
5
Appellants cite in support two district court cases from other circuits: League of
Indep. Fitness Facilities & Trainers v. Whitmer, 468 F. Supp. 3d 940, 950–51 (W.D. Mich.
2020), and County of Butler v. Wolf, 486 F. Supp. 3d 883 (W.D. Pa. 2020). These cases
misplaced the burden of production. In the first, the governor’s classification of gyms as
dangerous failed rational basis review because she could not muster “a single supporting
fact, to uphold their continued closure.” League of Indep. Fitness Facilities & Trainers,
468 F. Supp. 3d at 950. In the second, the state’s closure of “non-life-sustaining”
businesses failed rational basis scrutiny because the state “pick[ed] winners” without any
“objective definitions and measurable criteria.” Cnty. of Butler, 486 F. Supp. 3d at 927.
During rational basis review, it is the plaintiff who has the “burden to negative every
conceivable basis which might support” “the rationality of the legislative classification.”
Beach Comm’s, Inc., 508 U.S. at 315, 113 S. Ct. at 2102 (internal quotations omitted)
(emphasizing that “we never require a legislature to articulate its reasons for enacting a
statute”). For that reason, if for no other, these cases serve as poor legal support.
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rationales or “betrayed by the undisputed facts.” St. Joseph Abbey v. Castille,
712 F.3d 215, 223 (5th Cir. 2013); see also Simi Inv. Co. v. Harris Cnty.,
236 F.3d 240, 253 (5th Cir. 2000) (“a nonexistent park used by County
officials to interfere with private property interests is clearly arbitrary”). But
Judge Cano’s declarations are “not subject to courtroom fact-finding and
may be based on rational speculation unsupported by evidence or empirical
data.” Beach Comm’s, Inc., 508 U.S. at 315, 133 S. Ct. at 2102. As discussed
above, restricting the operations of key players in the travel industry like
hotels in order to limit the presence of out-of-county visitors bore a rational
relationship to slowing the spread of Covid-19 at the pandemic’s outset.
Appellants have not negated this conceivable basis for the order.
B. Fourth & Fourteenth Amendment Seizure
The district court reasoned that Appellants failed “to present any
legal analysis or factual allegations in support” of their Fourth and
Fourteenth Amendment claims. Appellants respond that summary
judgment may not be granted by default based only on a deficient response,
and in any event, their response was not deficient.
Certain principles are settled. A “motion for summary judgment
cannot be granted simply because there is no opposition.” Hibernia Nat.
Bank v. Administracion Cent. Sociedad Anonima, 776 F.2d 1277, 1279 (5th Cir.
1985). But “a court may grant an unopposed summary judgment motion if
the undisputed facts show that the movant is entitled to judgment as a matter
of law.” Day v. Wells Fargo Bank Nat. Ass’n, 768 F.3d 435, 435 (5th Cir.
2014). Also, the party opposing summary judgment “cannot discharge its
burden by alleging legal conclusions.” 10A CHARLES ALAN WRIGHT &
ALAN R. MILLER, FED. PRAC. & PROC. § 2727.2 (4th ed. Apr. 2022
update). Indeed, “unsupported allegations or affidavits setting forth
‘ultimate or conclusory facts and conclusions of law’ are insufficient to either
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support or defeat a motion for summary judgment.” Galindo v. Precision Am.
Corp., 754 F.2d 1212, 1216 (5th Cir. 1985) (quoting WRIGHT & MILLER,
§ 2738).
In this case, the district court did not grant summary judgment by
default, because it reasonably concluded that the movant Cano carried his
burden while the nonmovants failed to demonstrate a material fact dispute.
Under the Fourth Amendment, “[a] seizure of property occurs when
there is some meaningful interference with an individual’s possessory
interests in that property.” Severance v. Patterson, 566 F.3d 490, 501 (5th Cir.
2009) (internal quotation omitted). And “by its express text, the amendment
prohibits only those searches and seizures that are unreasonable in the
particular circumstances in which they are performed.” United States v.
York, 895 F.2d 1026, 1028 (5th Cir. 1990).
Even assuming a seizure occurred, the same summary judgment
evidence submitted by Judge Cano to show that his restrictions on hotel use
bore a rational relationship to public health also shows that the restrictions
were reasonable given the circumstances. The only additional evidence
Appellants submit in opposition is the declaration of J.P. Bryan, which asserts
that Judge Cano’s “arbitrary orders” “constituted an unreasonable
interference with and deprivation of” his property. These conclusory
statements are insufficient to create a material fact dispute.
C. Expert Witness Exclusion
The district court held that Appellants’ expert Dr. Alozie opined
about a pure question of law: whether a statutory disaster existed in Brewster
County. Indeed, Federal Rule of Evidence 704 is not “intended to allow a
witness to give legal conclusions.” Owen v. Kerr-McGee Corp., 698 F.2d 236,
240 (5th Cir. 1983); see also Snap-Drape, Inc. v. C.I.R., 98 F.3d 194, 198 (5th
Cir. 1996); Alldread v. City of Grenada, 988 F.2d 1425, 1436–37 (5th Cir.
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1993). Although he has excellent professional credentials, Dr. Alozie stated
in his two-sentence opinion only that “a statutory disaster did not exist . . .
because there were no reported cases of COVID-19 in Brewster County [or
in any of the surrounding counties] and no imminent threat of a COVID-19
epidemic in Brewster County.” This certainly reads as a legal conclusion
concerning Texas law notwithstanding Appellants’ effort to characterize it
as a statement of fact. At the very least, the district court did not abuse its
discretion in holding as much.
For the foregoing reasons, the district court’s judgment is
AFFIRMED.
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