Case: 21-40157 Document: 00516142688 Page: 1 Date Filed: 12/22/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 22, 2021
No. 21-40157 Lyle W. Cayce
Clerk
Walmart Inc.,
Plaintiff—Appellant,
versus
U.S. Department of Justice;
U.S. Drug Enforcement Administration;
Acting Administrator D. Christopher Evans;
Merrick Garland, U.S. Attorney General,
Defendants—Appellees.
Appeal from the United States District Court
for the Eastern District of Texas
No. 4:20-CV-817
Before Higginbotham, Smith, and Ho, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Walmart challenges the government’s interpretation of the Controlled Substances Act, 21 U.S.C. § 801 et seq. (“CSA”), as it applies to pharmacists who dispense prescription opioids. Or at least, Walmart questions
what it says are the government’s interpretations of the CSA—it points to no
rule, guidance, or other public document setting forth the positions it seeks
to contest. Because it identifies no agency action, as that term is used in the
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Administrative Procedure Act (“APA”), the suit is barred by sovereign
immunity. And even if it were not, Walmart’s failure to contradict a definite
government position means that it has not demonstrated the existence of a
ripe case or controversy, as required by Article III. For both reasons, we
affirm the judgment dismissing for want of subject-matter jurisdiction.
I.
This case arises from the government’s ongoing efforts to combat the
epidemic of opioid abuse. Opioids, legal and illegal, are regulated under the
CSA, which is administered by the Drug Enforcement Administration
(“DEA”). Though opioids are prescribed by doctors, those prescriptions
must be filled by pharmacists, who may refuse to fill prescriptions that they
deem suspicious, such as prescriptions by disreputable doctors or those
involving certain drug combinations. Walmart dispenses prescription opioids through its pharmacies; from 2002 to 2018, it also acted as a distributor,
shipping opioids from a distribution center to its own pharmacies.
Walmart maintains that it has consistently taken appropriate steps to
comply with the CSA and keep its pharmacists from dispensing opioids to
those who should not receive them. Walmart has long allowed its pharmacists to refuse to fill individual prescriptions that they believed were not legitimate; it now has policies allowing pharmacists or Walmart itself categorically to refuse to fill prescriptions by individual doctors. Those policies are
sufficiently stringent that they have provoked resistance, including administrative investigations and warnings from state regulators as well as complaints by private-sector medical associations. Those groups generally maintain that Walmart’s pharmacists are unduly intervening in the doctor-patient
relationship and tarnishing the reputations of individual doctors, some of
whom have filed defamation suits.
At the same time, the Department of Justice (“DOJ”) has investi-
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gated Walmart for violations of the CSA. Despite abandoning an effort to
bring criminal charges against Walmart, DOJ formed a working group to
investigate Walmart for civil liability.
Walmart thus found itself “between a rock and a hard place”—
stringent restrictions on opioid distribution expose it to suit from state and
private-sector actors, while lax restrictions expose it to suit from the federal
government. To resolve this dilemma, Walmart sued under the Declaratory
Judgment Act, 28 U.S.C. § 2201 (“DJA”), in October 2020, requesting that
the court make several declarations about the precise limits of pharmacists’
obligations under the CSA. Those requested declarations are as follow:
A. Pharmacists may be liable under the CSA and its regulations only
when they fill a prescription that they know was not issued for a legitimate medical purpose by a prescriber acting in the usual course of the
prescriber’s professional practice or when pharmacists knowingly
abandon all professional norms;
B. The CSA does not require pharmacists to second-guess a registered
and licensed doctor’s decision that a prescription serves a legitimate
medical purpose;
C. The CSA and its regulations do not require pharmacists to refuse
to fill entire categories of prescriptions without regard to individual
facts and circumstances;
D. The CSA and its regulations do not require pharmacists to document in writing why filling a prescription was appropriate;
E. Pharmacies do not have an affirmative obligation under the CSA
and its regulations to analyze and share aggregate prescription data
across its stores and with line pharmacists;
F. Pharmacies do not have an affirmative obligation under the CSA
and its regulations to impose corporation-wide refusals-to-fill for
particular doctors;
G. The CSA and its regulations do not require distributors not to ship
suspicious orders after reporting them;
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H. The CSA and its regulations did not impose monetary penalties for
failure to report suspicious orders to DEA during the time Walmart
self-distributed; and
I. Defendants must follow their own regulations and may not base any
enforceable legal positions on the alleged violation of agency guidance
rather than obligations found in a statute or duly promulgated rule or
regulation.
Walmart alleges that the government takes the contrary view on all these
proposed declarations, but it does not point to any regulations or guidance
documents setting forth the government’s position. Indeed, Walmart avers
that many of the positions that it challenges “contradict DEA’s own previously expressed views.”
Just a few weeks after the filing of this action, before the court could
rule on Walmart’s request, the government brought a civil enforcement
action against Walmart in the District of Delaware. 1 DOJ did in fact take versions of the positions that Walmart challenges in this action, but Walmart
stresses that “the issues in the two suits do not completely overlap.”2
Meanwhile, the government moved to dismiss the present case for
1
United States v. Walmart Inc., No. 20-cv-1744 (D. Del. Dec. 22, 2020).
2
There is a second pending action that has some bearing on this one. A multidistrict litigation case has been ongoing in the Northern District of Ohio since 2017. See In
re Nat’l Prescription, Opiate Litig., No. 17-md-2804 (N.D. Ohio). Plaintiffs, mostly government agencies, accuse numerous defendants, including Walmart, of misconduct in dispensing opioids. The Plaintiffs’ Executive Committee moved to have the present case
transferred to that case if it is not dismissed. Because it dismissed the present case, the
district court did not rule on the motion to transfer, and that motion is not before this court.
We take judicial notice of the fact that on November 23, 2021, the jury returned a large
verdict against Walmart and others. See CVS, Walmart and Walgreens Fueled Opioid Crisis,
US jury finds, The Guardian (Nov, 23, 2021 3:19 PM,
https://www.theguardian.com/us-news/2021/nov/23/ohio-cvs-walmart-and-walgreensopioid-crisis.
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want of subject-matter jurisdiction. The government maintained, inter alia,
that Walmart’s suit was barred by sovereign immunity and that it had failed
to identify a ripe case or controversy. After further briefing and oral argument, the court dismissed the suit as barred by sovereign immunity. The
court observed that to overcome sovereign immunity in this context, a plaintiff must have been aggrieved by agency actions. Walmart pointed only to
positions taken by the government during settlement negotiations, which
were not “agency action” as that term is used in the APA, and thus its suit
was barred. Walmart appeals.
II.
We review a dismissal for want of subject-matter jurisdiction de novo.
Hinojosa v. Horn, 896 F.3d 305, 309 (5th Cir. 2018). “A case is properly
dismissed for lack of subject matter jurisdiction when the court lacks the statutory or constitutional power to adjudicate the case.” Home Builders Ass’n
v. City of Madison,
143 F.3d 1006, 1010 (5th Cir. 1998) (citation omitted).
Though the district court relied exclusively on sovereign immunity, this
court may affirm dismissal for any reason supported by the record. Ballew v.
Cont’l Airlines, Inc.,
668 F.3d 777, 781 (5th Cir. 2012).
III.
A.
To bring a claim against a sovereign, a party must first show that that
sovereign has waived its immunity from suit. The waiver at issue is contained
in Section 702 of the APA. It reads in relevant part,
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the
meaning of a relevant statute, is entitled to judicial review
thereof. An action in a court of the United States seeking relief
other than money damages and stating a claim that an agency
or an officer or employee thereof acted or failed to act in an
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official capacity or under color of legal authority shall not be
dismissed nor relief therein be denied on the ground that it is
against the United States or that the United States is an
indispensable party.
5 U.S.C. § 702. Most circuits that have considered the issue read the second
sentence independently of the first, meaning that sovereign immunity is
waived in all suits seeking equitable, nonmonetary relief against an agency. 3
But in Alabama-Coushatta Tribe of Texas v. United States,
757 F.3d 484 (5th
Cir. 2014), we construed the waiver in Section 702’s second sentence as
cabined by its first sentence.4 Thus, in this circuit, a plaintiff suing a federal
agency must “identify some ‘agency action’ affecting him in a specific way”
and must show that he has suffered legal wrong because of it.
Id. at 489.
Walmart points to two types of agency action: rules and sanctions.
The actions it challenges do not fit neatly into either definition. We first
address Walmart’s alleged rules, then turn to its alleged sanctions. We conclude that the challenged agency conduct does not satisfy either definition,
and so the suit is barred by sovereign immunity. Because Walmart has identified no agency action, we do not reach the question whether it has suffered
legal wrong because of those actions.
B.
Agencies make rules when they announce principles of general applicability and future effect.5 United States v. Fla. E. Coast Ry., 410 U.S. 224,
3
See, e.g., Trudeau v. FTC, 456 F.3d 178, 187 (D.C. Cir. 2006); Presbyterian Church
(U.S.A.) v. United States,
870 F.2d 518, 525 (9th Cir. 1989); Black Hills Inst. of Geological
Rsch. v. S.D. Sch. of Mines & Tech.,
12 F.3d 737, 740 (8th Cir. 1994).
4
This circuit is not alone on its side of the split. See City of New York v. United
States Dep’t of Def., 913 F.3d 423, 430 (4th Cir. 2019); SEC v. Credit Bancorp, Ltd.,
297 F.3d
127, 141 (2d Cir. 2002).
5
The APA provides a longer, if sometimes unhelpful, definition of “rule”:
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244-45 (1973). Rules can be divided into substantive and non-substantive
varieties. Substantive rules have the force of law, meaning that they bind the
regulated public. See Texas v. United States, 809 F.3d 134, 171 (5th Cir. 2015),
aff’d by an equally divided court,
136 S. Ct. 906 (2016). The APA requires that
they be preceded by notice and comment. Id.;
5 U.S.C. § 553. Non-substantive rules are those exempted from the notice-and-comment requirement because they lack the force of law. They include rules governing internal agency organization or procedures; non-binding agency policy statements; and guidance documents interpreting existing rules. See
5 U.S.C.
§ 553(b)(3)(A).
Walmart cites several “rules,” but most of them derive not from official publications but from positions allegedly taken by the government in settlement negotiations with Walmart. Though there is room for disagreement
about precisely what satisfies the definition of “rule,” it surely does not
include negotiating positions.
As Walmart does not contest, negotiating positions are not binding on
the regulated public and need not be preceded by notice-and-comment rulemaking, and so they cannot be substantive rules. That conclusion comports
with Shell Offshore Inc. v. Babbit, 238 F.3d 622 (5th Cir. 2001), and W&T
Offshore, Inc. v. Bernhardt,
946 F.3d 227 (5th Cir. 2019). In both cases, the
[T]he whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe
law or policy or describing the organization, procedure, or practice requirements of an agency and includes the approval or prescription for the future
of rates, wages, corporate or financial structures or reorganizations
thereof, prices, facilities, appliances, services or allowances therefor or of
valuations, costs, or accounting, or practices bearing on any of the
foregoing . . . .
5 U.S.C. § 551(4).
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Department of the Interior effected a policy change that, though never
announced as a rule, “controlled” the outcome of adjudications conducted
by the agency. Shell Offshore, 238 F.3d at 628; accord W&T Offshore,
946 F.3d
at 238. We concluded that those policy changes were effectively rules, but
that conclusion stemmed from the specific context in which an internal
agency position dictated the result in a category of adjudications conducted
by that same agency. See Shell Offshore,
238 F.3d at 628; W&T Offshore,
946 F.3d at 238–39. In this case, however, the negotiating positions taken by
DOJ are mere legal theories that would succeed or fail in court based on their
own merits. We thus agree with the parties that those positions are not substantive rules.
Nor can negotiating positions be thought of as non-substantive rules.
Positions about the obligations of pharmacists are not rules of agency organization, procedure, or practice. 5 U.S.C. § 553(A). And because the positions
Walmart challenges were expressed behind closed doors, they are not general
policy statements or interpretive rules, both of which announce agency views
to the public.6 Indeed, if Walmart is correct that negotiating positions are
rules—despite their being not just devoid of legal force but also unwritten
and nonpublic—it is unclear when a statement of legal opinion by a government agent would ever not be a rule. We reject that expansive reading of the
definition of “rule.”
Walmart also points to a few more definite agency statements that it
claims are “rules,” but those statements have shortcomings of their own.
Specifically, Walmart points to a 2007 DEA guidance letter recommending
that opioid distributors report suspicious orders, a statement in the DEA
6
See Brown Express, Inc. v. United States, 607 F.2d 695, 700–01 (5th Cir. 1979);
Phillips Petroleum Co. v. Johnson,
22 F.3d 616, 619–20 (5th Cir. 1994).
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Pharmacist’s Manual that pharmacists need not fill “doubtful, questionable,
or suspicious” prescriptions, and a criminal complaint filed by DOJ arguing
that the simultaneous prescription of certain drug combinations is never
medically necessary. A suit based on a 2007 rule would be time-barred,
28 U.S.C. § 2401(a), and because the guidance letter addresses only distributors’ obligations, it would, in any case, be challenged only by Declarations
G and H. Meanwhile, a recommendation that pharmacists not fill suspicious
orders is far too vague to be challenged by any of Walmart’s proposed declarations. And a criminal complaint does not create rights or obligations, nor
does it have “future effect.”7
Even if there is substance to some of those “rules,” that is not enough
to save Walmart’s claim under Alabama-Coushatta. In that case, the plaintiff
did point to various permits and leases issued by the federal government.
Alabama-Coushatta, 757 F.3d at 491. But even a few specific actions were not
enough to sustain a challenge “directed at the federal agencies’ broad policies and practices.”
Id. Walmart’s challenge is similarly broad, and, once we
discount the argument that a theory expressed in a settlement negotiation is
a “rule,” the remaining rules, even if they are treated as such, are not enough
to allow Walmart to overcome sovereign immunity. Walmart has identified
no “rules” sufficient to meet its burden under Alabama-Coushatta.
C.
The APA’s definition of “sanction” reads,
[T]he whole or a part of an agency—
(A) prohibition, requirement, limitation, or other condition
7
See City of Arlington v. FCC, 668 F.3d 229, 242 (5th Cir. 2012) (quoting Yesler
Terrace Cmty. Council v. Cisneros,
37 F.3d 442, 448 (9th Cir. 1994)); cf. Bowen v. Georgetown
Univ. Hosp.,
488 U.S. 204, 216 (1988) (Scalia, J., concurring) (stressing the importance of
rules’ prospective nature).
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affecting the freedom of a person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution, compensation, costs, charges, or fees;
(F) requirement, revocation, or suspension of a license; or
(G) taking other compulsory or restrictive action . . . .
5 U.S.C. § 551(10).
Walmart contends that “[t]hreats designed to compel compliance”8
qualify as sanctions because they constitute “compulsory or restrictive
action.” Applying the canon of ejusdem generis, we instead read that saving
clause as limited to concrete actions and omissions, rather than action that is
merely threatened.
Ejusdem generis is a standard rule of statutory interpretation. Applying
it, we do not read “other compulsory or restrictive action” literally but
instead as impliedly limited to actions like the enumerated ones. We agree
with the district court that that canon excludes contingent actions like threats
that are distinct from the concrete actions listed.
Walmart asks us not to apply ejusdem generis but instead to read the
saving clause “exhaustively.”9 That alternative is unsatisfying because,
8
Notably, these threats overlap with the negotiating positions that Walmart characterizes as rules. Thus, under Walmart’s theory, when a government agent threatens to
sue a regulated party under a particular legal interpretation, he promulgates a rule and
issues a sanction. That non-distinction underscores just how far Walmart stretches the
definition of “rule” and “sanction”—it construes both terms so generally that they
encompass the same conduct.
9
The sole binding authority relied on by Walmart for that proposition is Ali v. Federal Bureau of Prisons, 552 U.S. 214 (2008). The Court read the phrase “any other law
enforcement officer” literally—but it relied on the presence of the word “any,” which is
absent here. See
id. at 218–19.
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without the limiting context, “compulsory or restrictive action” could include almost anything. For instance, the passage of a statute can compel or
restrict, but statutes can hardly be thought of as “sanctions.” Moreover,
rules, orders, adjudication, licensing, grants of relief, and failure to act can all
compel or restrict, meaning that “sanction” would subsume every other type
of agency action. See 5 U.S.C. § 551(13).
Contrary to Walmart’s protestations, our precedents do not favor
such a broad reading of the definition’s saving clause. In Doe v. United States,
853 F.3d 792 (5th Cir. 2017), we did in fact read agency action broadly, doing
so to include failure to provide the plaintiff with a means to respond to accusations against him,
id. at 800. But we reached that result by interpreting an
enumerated sanction, “withholding of relief,” along with two other types of
agency action—“failure to act” and failure to grant a remedy.
Id. at 799–
800. Meanwhile, Alexander v. Trump,
753 F. App’x 201 (5th Cir. 2018),
rested entirely on failure to act—it did not mention sanctions,
id. at 206.
Our precedents thus offer no basis to depart from ejusdem generis in
reading the definition of “sanction.” We conclude that that definition does
not extend to threats, and thus Walmart has challenged no “sanctions” as
that term is used in the APA. Because Walmart has not satisfied Alabama-Coushatta’s requirement that it identify agency action, its suit is barred by
sovereign immunity.
IV.
A.
Even if this suit were not barred by sovereign immunity, Walmart
would still have to show the existence of a case or controversy that was ripe
for adjudication. “A declaratory judgment action is ripe for adjudication only
where an ‘actual controversy’ exists.” Orix Credit Alliance, Inc. v. Wolfe,
212 F.3d 891, 896 (5th Cir. 2000).
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Ripeness is a twofold inquiry that requires courts to “evaluate both
the fitness of the issues for judicial decision and the hardship to the parties of
withholding court consideration.” Abbott Labs. v. Gardner, 387 U.S. 136, 149
(1967). Although the issue of fitness for decision is fact-bound and somewhat
abstract, in the context of pre-enforcement agency action there are several
established factors, including “whether the issue presented is a purely legal
one, whether consideration of that issue would benefit from a more concrete
setting, and whether the agency’s action is sufficiently final.” Ciba-Geigy
Corp. v. EPA,
801 F.2d 430, 435 (D.C. Cir. 1986).10 Failure on even one of
the three prongs can render a case unfit for judicial review. See Nat’l Park
Hosp. Ass’n v. DOI,
538 U.S. 803, 812 (2003). In addition to those enumerated elements, courts assessing declaratory judgments often engage in more
open-ended inquiries into the “likelihood” that threatened litigation “will
occur.” Orix,
212 F.3d at 897.
In determining whether Walmart has carried its burden, we are mindful of the pendency of an enforcement action against it in the District of Delaware on theories of liability similar to those Walmart challenges here. The
existence of that litigation demonstrates that this action is not fit for judicial
decision and also reduces any hardship posed to Walmart by abstention in
this court. That litigation also undermines the contention that future enforcement is likely. We therefore conclude that this action presents no ripe
case or controversy.
B.
Walmart fails to show that this case is fit for judicial decision. As
10
Contrary to Walmart’s position, those factors govern pre-enforcement agency
actions regardless of whether suit is brought under the APA. See, e.g., Abbott Labs.,
387 U.S. at 138–39 (applying the factors in a declaratory action).
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noted above, Walmart does not identify any agency action; even if it had, it
concedes that it has identified no final agency action. On the other hand,
Walmart is correct that the declarations it requests present pure legal issues
in that they are predominantly questions of statutory interpretation.11
Finally, the question whether the issue would benefit from more concrete
facts weighs in the government’s favor. For instance, it would be theoretically possible to declare as a matter of law whether pharmacies had any obligation under the CSA to analyze data or reject certain doctors, but the question would be easier if the court knew exactly what obligations pharmacies
were alleged to have and could therefore assess whether those obligations
accorded with the governing regulations.
This case’s lack of fitness for adjudication is made especially evident
by the ongoing action in Delaware. In that action, the government has taken
positions similar to those that Walmart challenges here, but Walmart itself
stresses that there are differences. Walmart points to Declaration D, which
states that pharmacists are not required to “document in writing why filling
a prescription was appropriate.” “[F]or reasons unknown to Walmart,” the
government has advanced no directly contrary position in the Delaware
litigation.12 Even where the government’s theories basically match those
challenged by Walmart, there are subtle differences—for instance, Declaration A states that pharmacists are liable only when they knowingly fill an illegitimate prescription or knowingly “abandon all professional norms.” As it
turns out, the government disagrees with only the second half of the
11
The one outlier, Declaration I, is a statement of administrative law.
12
It is not that the government’s complaint does not reach the issue. The government does allege a documentation requirement by pharmacists who fill prescriptions, but
only where those prescriptions present “red flags.” See Complaint at 25, United States v.
Walmart Inc., No. 20-cv-1744, ECF No. 1.
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declaration—it concedes in its complaint that the filling of an ineffective prescription must be knowing to be punishable.13
Those discrepancies illustrate the peril of treating Walmart’s requested declarations as constituting a ripe case or controversy. Even courts that
are relatively relaxed in their ripeness analysis stress the importance of an
unequivocally expressed position by the government. See N.H. Hemp Council, Inc. v. Marshall, 203 F.3d 1, 5 (1st Cir. 2000); Monson v. DEA,
589 F.3d
952, 958 (8th Cir. 2009). When this case was brought, the government had
no unequivocal position, but now it has one—and that position is, by Walmart’s own telling, materially different from the one Walmart challenges.
At its core, ripeness is a matter of timing that serves to prevent courts
from entangling themselves in cases prematurely. See, e.g., Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580 (1985). If it was not clear when
the case was brought, it is certain now that the lack of a clear position on the
part of the government rendered the case premature at that time. Because it
challenges a series of positions that the government does not quite take, Walmart fails to show the “actual controversy” that is needed for a declaratory
judgment to be fit for judicial decision. See Orix,
212 F.3d at 896.
C.
Turning to the second half of the ripeness balancing test, the existence
of the Delaware litigation eliminates, or at least greatly reduces, the hardship
that will be placed on Walmart by withholding consideration of this suit.
Walmart alleges that the requirements the government seeks to impose are
far more exacting than those called for by many state governments and
private-sector actors, with the result that complying with the federal require-
13
See Complaint at 26, United States v. Walmart Inc., No. 20-cv-1744, ECF No. 1.
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ments exposes it to liability under state law. That hardship may well have fit
within the pattern recognized by ripeness cases: Walmart could comply with
the alleged federal rules only by exposing itself to enforcement action. 14
Now, however, Walmart has the ability to test the government’s regulatory position in court by raising its theories as defenses in the Delaware
action. Though the proposed declarations here are somewhat broader than
the government’s position in the Delaware litigation, that same discrepancy
indicates the problem with Walmart’s position. Legal theories not accepted
or pursued by the government cannot create cognizable hardship for purposes of ripeness. See Ohio Forestry Ass’n, Inc. v. Sierra Club, 523 U.S. 726,
733 (1998). Walmart may fear that the Delaware litigation will proceed more
slowly than this one would or that the court in that jurisdiction may be less
sympathetic to its position, but those are not the “adverse effects of a strictly
legal kind” that are necessary to show that withholding of consideration by
this court imposes hardship on Walmart.
Id.
In addition to providing Walmart with an avenue to test its theories,
the Delaware suit reduces the likelihood of future prosecution. Cases assessing standing in pre-enforcement cases, which tracks closely with ripeness, see
Susan B. Anthony List v. Driehaus, 573 U.S. 149, 167 (2014), often ask whether
the threat of enforcement is sufficiently “credible,”
id. at 161, or “clear,”
N.H. Hemp,
203 F.3d at 4. The bringing of the Delaware suit proves that,
14
Compare Abbott Labs., 387 U.S. at 152–53 (finding ripeness where compliance and
noncompliance are both potentially costly), with Toilet Goods Ass’n v. Gardner, 387 U.S.
158, 164 (1967) (not finding ripeness where “no advance action is required” to comply with
a regulation). This analysis is limited to Declarations A through F. Declarations G and H
concern the obligations of distributors, whereas Walmart has not distributed opioids since
2018. Declaration I is a truism of administrative law. Even before the Delaware litigation,
Walmart could have safely ignored whatever position the government took on those issues
without exposing itself to new liability.
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when this case was filed, enforcement was indeed impending. When considered from the standpoint of the present, however, the suit’s existence also
suggests that future enforcement is unlikely.15
The government has made its move; it would be unusual for it to bring
a second action against the same defendant on similar theories until after the
current case is decided. There is thus no clear or credible threat of future
prosecution, further undermining the position that withholding review creates hardship for Walmart. Because the case is not fit for judicial review, and
withholding consideration imposes no substantial hardship on Walmart, this
action presents no ripe case or controversy.
The dismissal for want of jurisdiction is AFFIRMED.
15
Cf. Reg’l Rail Reorganization Act Cases, 419 U.S. 102, 140 (1974) (concluding that
the circumstances at the time of decision, not the time of the district court’s decision,
governed ripeness analysis).
16
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Patrick E. Higginbotham, Circuit Judge, concurring:
As addressed in Section IV, the pending litigation in this case answers
concerns of our jurisdiction; Section III is unnecessary and therefore I
respectfully would not offer explanations of why, in Section IV’s absence, the
case would fail. I concur in Sections I, II, and IV, and in the judgment.
17
