Case: 20-50440 Document: 00515945142 Page: 1 Date Filed: 07/20/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 20, 2021
No. 20-50440
Lyle W. Cayce
Clerk
Etta Fanning,
Plaintiff—Appellant,
versus
City of Shavano Park, Texas,
Defendant—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:18-CV-803
Before Clement, Haynes, and Wilson, Circuit Judges.
Per Curiam:*
Etta Fanning sued the City of Shavano Park for violating her First and
Fourteenth Amendment rights via the City’s restrictions on yard signs and
banners in Chapter 24 of the City’s Code of Ordinances (“Original Sign
Code”). The Original Sign Code restricted the use of yard signs to one sign
per yard and the use of banners to one week of the year (the same week as the
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50440 Document: 00515945142 Page: 2 Date Filed: 07/20/2021
No. 20-50440
“National Night Out” event), among other restrictions. The district court
concluded that Fanning lacked standing on the one-sign issue but that she did
have standing on the banner challenge. As to that challenge, it concluded
that the Original Sign Code’s restrictions met the strict scrutiny
requirements, determining that the limits were narrowly tailored and that the
City had a compelling interest in aesthetics. It thus granted summary
judgment to the City. After the district court’s ruling, the City amended the
relevant ordinance, banning all banners (but allowing flags). As those
amendments followed its summary judgment order, the district court did not
have the opportunity to address them.
In addition to this key event (which, of course, does not alter the past
but could alter prospective relief), a critical case from this court was decided
while the appeal in this case was pending: Reagan National Advertising of
Austin, Inc. v. City of Austin, 972 F.3d 696 (5th Cir. 2020), cert. granted, No.
20-1029, 2021 WL 2637836 (U.S. June 28, 2021). The district court did not
have the benefit of considering Reagan, which addresses a number of points
relevant to this case. While, of course, we have the ability to apply
subsequent precedent to cases before us, this case is one where our general
conclusion that we are a “court of review, not of first view,” applies.
Compare Concerned Citizens of Vicksburg v. Sills, 567 F.2d 646, 649–50 (5th
Cir. 1978) (noting that, when material changes of fact or law have occurred
during the pendency of an appeal, it is our “preferred procedure” to remand
and “give the district court an opportunity to pass on the changed
circumstances” (quotations omitted)), with Montano v. Texas, 867 F.3d 540,
546–47 (5th Cir. 2017) (noting that we are a “court of review, not of first
view” and remanding a matter not addressed by the district court for
examination in the first instance (quotation omitted)). Accordingly, having
fully considered the briefing and arguments of counsel as well as the pertinent
2
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No. 20-50440
portions of the record, we VACATE the decision of the district court and
REMAND for reconsideration in the first instance in light of Reagan. 1
1
Given that the Supreme Court has now granted certiorari in Reagan, it would be
acceptable if the district court concludes that it should stay the proceedings on remand until
such time as the Court issues its opinion.
3