Case: 16-30107 Document: 00513899669 Page: 1 Date Filed: 03/06/2017

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
No. 16-30107 March 6, 2017
Lyle W. Cayce
Clerk

MONUMENTAL TASK COMMITTEE, INCORPORATED; LOUISIANA

LANDMARKS SOCIETY; FOUNDATION FOR HISTORICAL LOUISIANA,
INCORPORATED; BEAUREGARD CAMP NO. 130, INCORPORATED,

Plaintiffs - Appellants

v.

ELAINE L. CHAO, in her official capacity as Secretary of Transportation;

MATTHEW WELBES, in his official capacity as Executive Director of the
Federal Transit Administration; FEDERAL TRANSIT ADMINISTRATION, a
Division of the United States Department of Transportation; UNITED
STATES DEPARTMENT OF TRANSPORTATION; NEW ORLEANS
REGIONAL TRANSIT AUTHORITY; MITCHELL J. LANDRIEU, Hon., in
his official capacity as Mayor of the City of New Orleans; CITY OF NEW
ORLEANS,

Defendants - Appellees

Appeal from the United States District Court

for the Eastern District of Louisiana
USDC No. 2:15-CV-6905
 Case: 16-30107 Document: 00513899669 Page: 2 Date Filed: 03/06/2017

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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
 Case: 16-30107 Document: 00513899669 Page: 3 Date Filed: 03/06/2017

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.

_______________________________________________ v. __________________________________________ No. _____________________

The Clerk is requested to tax the following costs against: _________________________________________________________________________________________

COSTS TAXABLE UNDER REQUESTED ALLOW ED

Fed. R. App. P. & 5 th Cir. R. 39 (If different from amount requested)

No. of Copies Pages Per Copy Cost per Page* Total Cost No. of Pages per Cost per Page* Total Cost
Documents Document

Docket Fee ($500.00)

Appendix or Record Excerpts

Appellants Brief

Appellees Brief

Appellants Reply Brief

Other:

Total $ ________________ Costs are taxed in the amount of $ _______________

Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.

LYLE W.CA Y C E , C LERK

State of
County of _________________________________________________ By ____________________________________________
Deputy Clerk

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;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(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.

(d) Bill of costs: Objections; Insertion in Mandate.

(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:

(1) the preparation and transmission of the record;

(2) the reporters transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

 Case: 16-30107 Document: 00513899671 Page: 1 Date Filed: 03/06/2017

United States Court of Appeals

FIFTH CIRCUIT
OFFICE OF THE CLERK
LYLE W. CAYCE TEL. 504-310-7700
CLERK 600 S. MAESTRI PLACE
NEW ORLEANS, LA 70130

March 06, 2017

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW
Regarding: Fifth Circuit Statement on Petitions for Rehearing
or Rehearing En Banc
No. 16-30107 Monumental Task Com, Inc., et al v. Elaine
Chao, et al
USDC No. 2:15-CV-6905
---------------------------------------------------
Enclosed is a copy of the court's decision. The court has entered
judgment under FED R. APP. P. 36. (However, the opinion may yet
contain typographical or printing errors which are subject to
correction.)
FED R. APP. P. 39 through 41, and 5TH Cir. R.s 35, 39, and 41 govern
costs, rehearings, and mandates. 5TH Cir. R.s 35 and 40 require
you to attach to your petition for panel rehearing or rehearing en
banc an unmarked copy of the court's opinion or order. Please
read carefully the Internal Operating Procedures (IOP's) following
FED R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a
rehearing may be appropriate, the legal standards applied and
sanctions which may be imposed if you make a nonmeritorious
petition for rehearing en banc.
Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for
a stay of mandate under FED R. APP. P. 41 will not be granted simply
upon request. The petition must set forth good cause for a stay
or clearly demonstrate that a substantial question will be
presented to the Supreme Court. Otherwise, this court may deny
the motion and issue the mandate immediately.
Pro Se Cases. If you were unsuccessful in the district court
and/or on appeal, and are considering filing a petition for
certiorari in the United States Supreme Court, you do not need to
file a motion for stay of mandate under FED R. APP. P. 41. The
issuance of the mandate does not affect the time, or your right,
to file with the Supreme Court.
Court Appointed Counsel. Court appointed counsel is responsible
for filing petition(s) for rehearing(s) (panel and/or en banc) and
writ(s) of certiorari to the U.S. Supreme Court, unless relieved
of your obligation by court order. If it is your intention to
file a motion to withdraw as counsel, you should notify your client
promptly, and advise them of the time limits for filing for
rehearing and certiorari. Additionally, you MUST confirm that
this information was given to your client, within the body of your
motion to withdraw as counsel.
 Case: 16-30107 Document: 00513899671 Page: 2 Date Filed: 03/06/2017

The judgment entered provides that plaintiffs-appellants pay to

defendants-appellees the costs on appeal.

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