Kennedy v. Biden

Case: 24-30252 Document: 166-1 Page: 1 Date Filed: 01/30/2025

United States Court of Appeals for the Fifth Circuit ____________

United States Court of Appeals Fifth Circuit No. 24-30252 ____________ FILED January 30, 2025 State of Missouri Lyle W. Cayce Clerk Plaintiff, versus

Joseph R. Biden, Jr.

Defendant, ______________________________

Robert F. Kennedy, Jr.; Childrens Health Defense;

Connie Sampognaro,

Plaintiffs—Appellees, versus

Joseph R. Biden, Jr.; Karine Jean-Pierre; Vivek H.

Murthy; Xavier Becerra; United States Department of

Health and Human Services, Et al.,

Defendants—Appellants. ______________________________

Appeal from the United States District Court for the Western District of Louisiana USDC Nos. 3:22-CV-1213, 3:23-CV-381 ______________________________ Case: 24-30252 Document: 166-1 Page: 2 Date Filed: 01/30/2025

ON PETITION FOR REHEARING EN BANC Before Higginbotham, Stewart, and Haynes, Circuit Judges.

Per Curiam: *

Treating the petition for rehearing en banc as a petition for panel rehearing, we GRANT the petition in part and DENY it in part. 1 In light of the change in administrations and the January 20, 2025 executive order titled “Restoring Freedom of Speech and Ending Federal Censorship,” 2 we VACATE our prior opinion and ORDER a LIMITED REMAND for the district court to consider mootness in the first instance. Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987) (“Whether an appeal is moot is a jurisdictional matter, since it implicates the Article III requirement that there be a live case or controversy. In the absence of its being raised by a party, this court is obligated to raise the subject of mootness sua sponte.” (italics omitted)). We otherwise deny the petition for panel rehearing and note that our decision to vacate the opinion is not an endorsement of any arguments raised in that petition.

After the district court rules on mootness (obviously, if the district court concludes the case is moot, the preliminary injunction should be withdrawn and the case dismissed according to the district court although we will review it), the clerk of the district court shall promptly supplement the appellate record with copies of the new filings below and the district court’s Case: 24-30252 Document: 166-1 Page: 3 Date Filed: 01/30/2025

No. 24-30252 opinion on mootness and forward the supplemental record to this court. The district court’s ruling in this case will be returned to this panel for further proceedings, and we retain jurisdiction over the entire case as this is a limited remand.