In In re Greg Abbott, No. 24-50620 (5th Cir. Sept. 20, 2024), the Fifth Circuit denies mandamus in a case where Texas unsuccessfully demanded for a jury trial in a suit by the United States to remove a 1000-foot border obstruction. The panel holds that the state has no demonstrated Seventh Amendment right to a jury trial in this proceeding. (Judge Haynes concurs in the result, without filing a separate opinion.)
“In July 2023, Texas installed a 1,000-foot floating barrier in the Rio Grande near Eagle Pass, along the United States’ border with Mexico. The United States then sued, alleging that Texas’s installation of the barrier violated the Rivers and Harbors Act of 1899 (the ‘RHA’). In its complaint, the United States requested various forms of injunctive relief. Namely, it asked the district court to ‘[e]njoin’ Texas ‘from further constructing, installing, placing, or maintaining structures in waters of the United States’ and ‘from creating or maintaining obstructions in or affecting the navigable waters of the United States’ that do not comply with the RHA and other applicable law. It also asked that the court ‘[c]ompel’ Texas ‘to promptly remove the unauthorized obstruction to the navigable capacity of navigable waters of the United States pursuant to the RHA’ and other applicable law.”
The state acknowledged that it had no right to a jury trial for the injunctive relief. But contending that the final demand for relief was analogous to the common law remedy of ejectment, Texas demanded a jury trial on at least that claim, which the district court denied. The state then filed a mandamus petition in the Fifth Circuit.
The Fifth Circuit denies mandamus. It holds, without marching through all the elements of the Cheney test for mandamus (Cheney v. U.S. Dist. Court for D.C., 542 U.S. 367 (2004)), that it can deny relief at the first step because the state lacked a “clear and indisputable” right to a jury trial in this case under the Seventh Amendment. (The panel, in a footnote, declares that it has no occasion to decide – reserving for another day – “whether the Seventh Amendment’s jury-trial right [even] extends to state litigants like Texas” or state governor Abbott in his official capacity.)
First, the panel holds that the RHA claim is not a legal cause of action, integral to whether it is covered by the Seventh Amendment. “Texas contends that the United States’ RHA claim ‘serves the same essential function’ as a historical claim for ejectment at common law, i.e., ‘regain possession” of the portion of the Rio Grande occupied by the floating barrier. “[O]ne ‘essential function’ of an action for ejectment is recovery of possession of land, which is to say that a plaintiff in ejectment must be out of possession . . . . [W]e do not think that Texas has effectively disseised the United States of this section of its border . . . . It has instead simply installed an impediment to free navigation . . . . Texas is therefore incorrect that the United States must ‘regain possession’ in order for a federal court to restrain Texas from obstructing the public’s right of way.”
Pulling the focus out further, the case less resembles an historical case for ejection than “the constitutional allocation of sovereign prerogatives,” a claim alien to common law. “Texas has not addressed this distinction, and we are hesitant to make such a significant jump ourselves. Without resolving the question, we are unpersuaded that Texas has met its burden to show that ejectment can provide an appropriate analogy for such cases.”
If the case were analogous to anything in the common law, it would be an “abatement of a public nuisance or purpresture,” for which there is “a long tradition of equitable suits.”
Second, the mandatory remedy sought by the United States (removal of the barrier) is equitable. The panel rejects the state’s argument that the United States implicitly sought fines (which could be deemed a form of legal relief) through a catch-all prayer in its complaint for all “just and proper” relief. Also, as the panel notes, fines under the RHA may only be recovered through a criminal proceeding under the RHA, while the United States here only filed a civil proceeding here. Finally, under controlling circuit authority, “[i]njunctive relief under the RHA invokes the discretion traditionally associated with equitable relief.”
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