Texas v. Equal Employment Opportunity Commission

Case: 14-10949 Document: 00513690843 Page: 1 Date Filed: 09/23/2016
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 14-10949 FILED
September 23, 2016
STATE OF TEXAS, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; JENNY R. YANG,
in her official capacity as Chair of the Equal Employment Opportunity
Commission; LORETTA LYNCH, U. S. ATTORNEY GENERAL,
Defendants - Appellees
Appeal from the United States District Court
for the Northern District of Texas
ON PETITION FOR REHEARING AND REHEARING EN BANC
(Opinion 06/27/16, 5th Cir., _____ F.3d ______)
Before JOLLY, HIGGINBOTHAM, and DAVIS, Circuit Judges.
PER CURIAM:
As we noted in our opinion, Texas v. EEOC, No. 14-10949, 2016 WL
3524242, at *7 (5th Cir. June 27, 2016), shortly before the opinion’s issuance
the Supreme Court decided U.S. Army Corps of Eng’rs v. Hawkes Co., 136 S.
Ct. 1807 (2016), which held in the context of the Clean Water Act that a
jurisdictional determination (“JD”) is a final agency action that is subject to
Case: 14-10949 Document: 00513690843 Page: 2 Date Filed: 09/23/2016
No. 14-10949
judicial review under the Administrative Procedure Act, 5 U.S.C. § 704.
Hawkes, 136 S. Ct. at 1816.
In Belle Co., L.L.C. v. U.S. Army Corps of Eng’rs, 761 F.3d 383 (5th Cir.
2014), also cited in our opinion, our court had held that the JD in that case was
not a final decision. Belle Co. petitioned for certiorari, which the Supreme
Court granted. In the light of its opinion in Hawkes, the Court vacated the
judgment and remanded Belle Co. to our court. 136 S. Ct. 2427 (2016) (mem.).
The panel then remanded the case to the district court for further proceedings
consistent with the Supreme Court’s decision in Hawkes. Belle Co., L.L.C. v.
U.S. Army Corps of Eng’rs, No. 13-30262, 2016 WL 4073301, at *1 (5th Cir.
July 29, 2016).
Both Belle Co. and the instant case relate closely to the issue that the
Supreme Court decided in Hawkes. Given this similarity, and given that the
district court has not had the opportunity to apply Hawkes to the facts of this
case, we conclude that the importance of the issue and the interest of
uniformity of our precedent require that we, like the Belle Co. panel, remand
this case for further consideration in the light of Hawkes. We recognize that
Hawkes may or may not affect other issues raised in this appeal, and we leave
it to the district court in the first instance to reconsider this case, and its
opinion, in its entirety and to address the implications of Hawkes for this case.
Accordingly, we WITHDRAW our prior opinion, VACATE the district
court’s judgment dismissing the complaint, and REMAND this case to the
district court for such further proceedings as, in its discretion, are required.
PETITION GRANTED; OPINION WITHDRAWN; JUDGMENT
VACATED, AND CASE REMANDED.
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