Best Supp - Appellants' Reply Brief - Best Supplement

Case: 20-17362, 09/01/2021, ID: 12217655, DktEntry: 33, Page 1 of 19
No. 20-17362
__________________________________________________________________
IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
BEST SUPPLEMENT GUIDE LLC and SEAN COVELL
Plaintiffs-Appellants,
v.
GAVIN NEWSOM, XAVIER BECERRA, SONIA Y. ANGELL,

COUNTY OF SAN JOAQUIN, CITY OF LODI, MAGGIE PARK
Defendants-Appellees.
On Appeal from the United States District Court

for the Eastern District of California
No. 2:20-cv-00965-JAM-CKD
Hon. John A. Mendez
APPELLANTS’ REPLY BRIEF

__________________________________________________________________
James M. Henderson, Sr. Brian Ricardo Chavez-Ochoa

James Henderson Law Office Chavez-Ochoa Law Offices, Inc.
3125 Burgaw Hwy Lot 3 4 Jean Street, Suite 4
Jacksonville, NC 28540 Valley Springs, CA 95252
910-381-0317 209-772-3013
Email: jmhenderson58@gmail.com Fax: 209- 772-3090
Email: brianr@chavezochoalaw.com
Counsel of Record
Attorneys for Appellants Best Supplement Guide LLC and Sean Covell
1
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES .......................................................................................................... 3
REPLY ARGUMENT .................................................................................................................... 5
CONCLUSION ............................................................................................................................. 17
CERTIFICATE OF COMPLIANCE FOR BRIEF ....................................................................... 18
CERTIFICATE OF SERVICE ..................................................................................................... 19
2
TABLE OF AUTHORITIES
Page(s)
Cases
Allied Structural Steel Co. v. Spannaus (1978)
438 U.S. 234 ......................................................................................................16
Baldwin v. Montana Fish and Game Comm'n,
supra, at 387 ......................................................................................................11
Fikre v. FBI (9th Cir. 2018)
904 F.3d 1033 ......................................................................................................6
Hicklin v. Orbeck (1978)
437 U.S. 518 ......................................................................................................11
Int'l Franchise Ass'n v. City of Seattle (9th Cir. 2015)
803 F.3d 389 ......................................................................................................13
Karuk Tribe of Cal. v. U.S. Forest Serv. (9th Cir. 2012)
681 F.3d 1006 ..................................................................................................7, 8
Manigault v. Springs (1905)
199 U.S. 473 ......................................................................................................16
Marilley v. Bonham (9th Cir. 2016)
844 F.3d 841 ......................................................................................................10
McBurney v. Young (2013)
569 U.S. 221 ......................................................................................................11
Sackett v. EPA (9th Cir. 2021)
No. 19-35469, slip op. .........................................................................................6
Shell Offshore, Inc. v. Greenpeace, Inc. (9th Cir. 2013)
709 F.3d 1281 ......................................................................................................7
Slidewaters LLC v. Wash. State Dep’t of Labor (9th Cir. July 8, 2021)
___ F.4th ____, No. 20-35634, slip op. ...................................................... 10, 12
Supreme Court of New Hampshire v. Piper (1985)
470 U.S. 274 ......................................................................................................11
United Building & Construction Trades Council of Camden County and Vicinity v.
Mayor and Council of the City of Camden (1984)
465 U.S. 208 ............................................................................................... 10, 11
United States Trust Co. v. New Jersey (1977)
431 U.S. 1 ..........................................................................................................17
United States v. Tanoue (9th Cir. 1996)
94 F.3d 1342 ........................................................................................................6
Wildwest Inst. v. Kurth (9th Cir. 2017)
855 F.3d 995 ...........................................................................................................7
3
Rules
Federal Rules of Appellate Procedure Rule 32(f)....................................................18
Ninth Circuit Rule 32-1 ...........................................................................................18
Constitutions
U.S. Constitution, Article III, § 1, Clause 1...............................................................9
4
Best Supplement Guide LLC and Sean Covell, the Plaintiffs-Appellants
(hereinafter collectively, "Fitness Systems"), submit the instant Reply Brief in
further support of their appeal of the final judgment and decision in the instant
matter.
REPLY ARGUMENT
1. Fitness System's Takings Clauses Claims for just compensation under
the Constitutions of the United States and California have not been mooted by
the voluntary cessation of the Defendants-Appellees unlawful, uncompensated
takings. In the Third Amended Complaint (hereinafter "TAC"), Fitness Systems
asserted claims arising from the regulatory taking of its property and business
under the guise of the complained of Public Health Orders. See TAC ¶¶ 277-287
(Count Two--The Takings Clause of the Fifth Amendment); id. at ¶¶ 384-389
(Count Nine--The Takings Clause of the California Constitution). Those claims for
just compensation, as well as each of Fitness Systems' claims for money damages,
are not rendered moot by the voluntary cessation of the Local Defendants'-
Appellees' Public Health Orders. And, because those claims certainly remain a live
controversy, this appeal has not been rendered moot.
2. The State Defendants'-Appellees' voluntary cessation does not moot the
case or controversy between the parties. The State Defendants-Appellees would
have this Court credit their voluntary cessation of the complained of Public Health
Orders. See Answering Brief of State Defendants-Appellees at 1 (hereinafter "State

5
Br."). Yet the State Defendants-Appellees omit any concession regarding their
well-established pattern of promulgating Orders in the face of the pandemic. Cf.
Fikre v. FBI, 904 F.3d 1033, 1037 (9th Cir. 2018) (explaining that, when asserting
mootness due to voluntary cessation, the government must "demonstrate that the
change in its behavior is 'entrenched' or 'permanent'" (citation omitted); Sackett v.
EPA, No. 19-35469, slip op. (9th Cir. 2021)). As this Court recently observed in
Sackett, "the core of this dispute is alive and well." And, as in Sackett, "nothing
prevents the [Defendants-Appellees] from reinstating the [complained of Public
Health Orders]," "issuing" "new one[s], or possibly even pursuing another avenue
of enforcement available to it ...." Sackett, slip op. at 15.
Consequently, as in Sackett, the Defendants-Appellees' "[w]ithdrawal of the
Public Health] order[s]," does not afford to Fitness Systems any relief, let alone
full relief. Id. (citing United States v. Tanoue, 94 F.3d 1342, 1344 (9th Cir. 1996)).
3. The present case exactly embodies the requisites for "capable of
repetition yet evading review." Arguing that this case is moot, the State
Appellees incorrectly focus on the undisputed fact that they have voluntarily
withdrawn the complained of Public Health Orders. See State Br. at 1, 19-20, 21-
30. That fact does not bar judicial review here.
Regardless of the withdrawal of the complained of Public Health Orders,
this case is not moot because it falls within the exception to the mootness doctrine
6
for disputes “capable of repetition, yet evading review.” Wildwest Inst. v. Kurth,
855 F.3d 995, 1002 (9th Cir. 2017); Shell Offshore, Inc. v. Greenpeace, Inc., 709
F.3d 1281, 1287 (9th Cir. 2013). Cases such as this one are capable of repetition,
yet evade review because “the duration of the challenged action is too short to
allow full litigation before it ceases or expires," and "there is a reasonable
expectation that the plaintiffs will be subjected to the challenged action again.”
Wildwest Inst. 855 F.3d at 1003-04 (quoting Karuk Tribe of Cal. v. U.S. Forest
Serv., 681 F.3d 1006, 1018 (9th Cir. 2012)).
The complained of Public Health Orders meet these two criteria.
The peripatetic nature of the Orders, the frequency of issuance and
amendment, modification, and updating—all were presented in a timeframe that, in
fact, did not permit full judicial review. Moreover, the proven record of the
Defendants-Appellees confirms the reasonable likelihood that they will again
resort to the issuance of executive actions as a first line of defense in any further
eruptions of the COVID-19 pandemic. Nor do the Defendants-Appellees represent
to this Court that they would not resort to the complained of Public Health Orders
or others of their sort when, in their mercurial judgments, they decide to do so.
An action is “fully litigated if it is reviewed by this Court and the Supreme
Court.” Shell Offshore, 709 F.3d at 1287 (internal quotations omitted). The period
between issuance and abrogation of the complained of Public Health Orders has
7
been too brief to allow for full review. Such short timeframes as evidenced here are
well within the periods this Court has held insufficient to assure full review. See,
e.g., Karuk Tribe, 681 F.3d at 1018 (“We have repeatedly held that similar actions
lasting only one or two years evade review”) (emphasis added).
As to whether Fitness Systems satisfies the second prong of the "capable of
repetition yet evading review" test, Plaintiffs-Appellants quite reasonably expect to
be subjected again to the Defendants-Appellees' resort to executive actions in
answer to any further blooming of the morbidity and mortality numbers associated
with the Covid-19 pandemic in California. The history of this pandemic is
scribbled over with iterations and permutations of Public Health Orders, initial,
amended, revoked, and re-imposed, each of which issued without resort to normal
rule-making processes or legislation, virtually each of which contained no
expiration date or limited period of operation.
The Defendants'-Appellees' pattern -- throwing Public Health Orders against
the pandemic -- is so well, so clearly, and so thoroughly established on this record
that there is no reason to expect it to change. Moreover, the State Defendants-
Appellees have not stated that, even if they conclude that such orders become
necessary, they would not impose these or other, similar ones.
4. Appellees impliedly concede that application of a heightened pleading
standard at the motion to dismiss stage is inappropriate. Before this Court,
8
none of the Defendants-Appellees argue that the District Court should have
employed a heightened standard of scrutiny beyond notice pleading in reaching its
decision to dismiss the Third Amended Complaint ("TAC"). See generally State
Br.; Local Br. They only dispute whether the District Court, in fact, employed such
a prohibited heightened pleading standard. State Br. at 19-20; Local Br. at 15.
Fitness Systems demonstrated that the District Court did, in fact, apply an
inappropriate and unauthorized heightened standard of scrutiny. Opening Br. at 35-
43. This Court, of course, can, and should, determine for itself whether the
decision below is the product of the District Court's error in subjecting the TAC to
such heightened scrutiny. When it concludes that the District Court did so, it
should vacate the judgment and remand the matter for further proceedings.
5. Defendants'-Appellees reliance on Slidewaters LLC V. Washington State
Dep't Of Labor And Industry is inapt as that decision of an inferior court of the
United States could not overrule the United States Supreme Court decisions
interpreting the privileges or immunities of United States citizenship to
protect as fundamental the right to engage in a common calling. To conclude
otherwise is to cast aspersions on, and reject the teaching of, Article III, Section 1,
Clause 1, of the United States Constitution:
The judicial Power of the United States, shall be vested in one

supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish.
9
(Emphases added.) Occasionally, it is well to remind we litigants that there are
binding rules and principles. One of those rules makes the decisions of the
Supreme Court binding precedent superior in constitutional effect over contrary
decisions of inferior courts such as the courts of appeal.
The Defendants-Appellees understandably seek the cover of the recent panel
decision in Slidewaters LLC v. Wash. State Dep’t of Labor, ___ F.4th ____, No.
20-35634, slip op. (9th Cir. July 8, 2021), which affirmed dismissal of claims
asserted by a Washington state business that had complained of the impact of that
State's Covid-19 public health orders. See, e.g., State Br. at 20; Local Br. at 21-22.
For reasons left unexplained by the panel, the Slidewaters LLC decision effectively
rejected sub silentio an unbroken line precedent of the United States Supreme
Court construing, interpreting, and applying the Privileges or Immunities Clauses
to protect, as a privilege of United States citizenship, the right to pursue a common
calling. Slidewaters LLC, slip op. at 17 ("The right to pursue a common calling is
not considered a fundamental right. Marilley v. Bonham, 844 F.3d 841, 854 (9th
Cir. 2016) (en banc) (collecting cases)"). In fact, the panel holding in Slidewaters
LLC must give way to the superior judgment of the Supreme Court of the United
States in:
• United Building & Construction Trades Council of Camden County and
Vicinity v. Mayor and Council of the City of Camden, 465 U.S. 208 (1984)
10
("Certainly, the pursuit of a common calling is one of the most fundamental of
those privileges protected by the Clause. Baldwin v. Montana Fish and Game
Comm'n, supra, at 387. Many, if not most, of our cases expounding the Privileges
and Immunities Clause have dealt with this basic and essential activity'") (citation
omitted, emphasis added));
• Hicklin v. Orbeck , 437 U.S. 518 (1978) ("Appellants' appeal to the
protection of the Clause is strongly supported by this Court's decisions holding
violative of the Clause state discrimination against nonresidents seeking to ply
their trade, practice their occupation, or pursue a common calling within the
State");
• Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 280 n.9 (1985)
("In United Building & Construction Trades Council v. Mayor & Council of
Camden, 465 U.S. 208 (1984), we stated that 'the pursuit of a common calling is
one of the most fundamental of those privileges protected by the Clause.' Id., at
219. We noted that '[m]any, if not most, of our cases expounding the Privileges and
Immunities Clause have dealt with this basic and essential activity." Ibid");
• McBurney v. Young, 569 U.S. 221, 227 (2013) ("the Privileges and
Immunities Clause protects the right of citizens to "ply their trade, practice their
occupation, or pursue a common calling").
11
Defendants-Appellees would prefer that this Court take its lead from
Slidewaters LLC, and it certainly could do so, but Defendants-Appellees omitted to
explain to the Court how to do so without openly disregarding the BINDING
precedents of the Supreme Court that declare without cabin or limit that the right to
pursue a "common calling" is a fundamental right. Of course, because a
fundamental right is at stake, it was an abuse of discretion for the district court to
apply anything other than strict scrutiny in assaying the complained of Public
Health Orders.
6. The TAC states claims for relief under governing analysis. Fitness
Systems did, in fact, plead adequate facts to establish their claims as against a
motion to dismiss. See Opening Br. at 43-59. The Defendants'-Appellees'
contentions to the contrary, as the decision below, are erroneous.
7. To conclude that no speech or associational rights are implicated by the
complained of Public Health Orders required the district court, at the urging
of the Defendants-Appellees, to ignore well pled facts establishing the exercise
of just such rights in the context of this dispute. The State Defendants-
Appellees, see State Br. at 35-41, and the Local Defendants-Appellees, see Local
Br. at 23-27, contend that did not allege the exercise of First Amendment rights of
freedom of speech and association. This assertion is patently false. See TAC, ¶¶
40-47. As these allegations satisfy the requirements of notice pleading under the
12
Federal Rules, it was an abuse of discretion for the District Court to conclude
otherwise at the urging of the Defendants-Appellees.
Local Defendants-Appellees invoke Int'l Franchise Ass'n v. City of Seattle,
803 F.3d 389 (9th Cir. 2015). Merely citing to that case, however, does not explain
away the exercises of First Amendment speech and association rights, which the
TAC alleges were abridged by the complained of Public Health Orders. See TAC
¶¶ 40-47; id. at ¶¶ 258-276 . It is as if the District Court (at Defendants-Appellees'
urging) concluded that certain speech and associational activities -- because they
relate "merely" to an interest in, instruction in, and training in physical health,
fitness, conditioning, and emotional and social well-being -- are without recourse
to the succor of the First Amendment.
7. The Local Defendants-Appellees falsely assert that Fitness Systemsdid
not preserve for appellate review the question of whether a federal right to
intrastate travel is protected under the United States Constitution. See Local
Br. at 32 n.6. The claim that a federal right to intrastate travel exists and was
violated is preserved for review. See ER-93 - ER-95 (TAC ¶¶ 288-301).
8. That a Public Health Order constitutes a legitimate exercise of police
power does not answer whether -- by its effect -- such a Public Health Order
works a regulatory taking. The Local Defendants-Appellees assert that "even if
Appellants could or did properly plead a regulatory takings claim in the alternative,
13
their claims for just compensation are still infirm because the Public Health Orders
are a legitimate exercise of police power." Local Br. at 34.
Simply put, the Local Defendants' argument depends on a non sequitur of
law and logic, namely that incidents triggering the just compensation requirement
of the Takings Clauses of the United States and California Constitutions cannot per
force also constitute legitimate exercises of the police power. Confusion might be
engendered as a result of the Local Defendants'-Appellees' assertion. There is a
difference between the eminent domain power, the exercise of which triggers the
obligation of just compensation and the police power of the government, which,
when properly exercised does not trigger any just compensation obligation. As the
Local Defendants concede at least the possibility that Fitness Systemshad
adequately asserted a just compensation claim, the judgment below must be
vacated and the case remanded for further proceedings on Fitness System's federal
and California Takings claims.
9. Contrary to the Local Defendants-Appellees' assertion, Fitness
Systemsalleged substantial impairment of contract. The Local Defendants-
Appellees assert that Fitness Systemsdid not adequately plead a Contracts Clause
claim. See Local Br. at 37 ("Here, Appellants failed to state a claim under the
Contracts Clause for the simple reason that the allegations of the Third Amended
Complaint belie any claim of substantial impairment of any contracts") (emphasis
14
added). Yet, there it is, the Sixth Cause of Action, TAC ¶¶ 340-356, asserting that,
in fact, the complained of Public Health Orders impaired the obligations of
contract of which Fitness Systemswas a direct party, a contract beneficiary, and a
contract obligor (in providing facilities, equipment, and instruction to its contracted
clients). Moreover, the TAC expressly alleges that complete abrogation worked by
the Public Health Orders and that abrogation was a substantial impairment. Id. In
concluding to the contrary, that no Contracts Clause claim was stated, the district
court abused its discretion. This Court should vacate the judgment and remand for
further proceedings.
10. Contrary to the Local Defendants-Appellees' assertion, that the acts
complained of constitute an exercise of police powers does not end the inquiry
under the Contracts Clause. The Local Defendants-Appellees assert, as the
complained of Public Health Orders constituted exercise of the police power, no
claim arises under the Contracts Clause. See Local Br. at 38 ("even assuming
arguendo that the Public Health Orders were a substantial impairment to
Appellants’ contracts with their clients, such does not suffice to state a claim under
the Contracts Clause as the County (and State) had a significant and legitimate
public purpose behind the enactment of these measures, namely to protect their
communities from the COVID-19 pandemic"). But the Court described in the
Constitution as "Supreme" has taken a position at odds with the Local Defendants'-
15
Appellees' assertion. The Local Defendants-Appellees, see Local Br. at 38, invoke
an indisputable truism that it is "accepted as a commonplace that the Contract
Clause does not operate to obliterate the police power of the States." Allied
Structural Steel Co. v. Spannaus, 438 U.S. 234, 241 (1978); see also Manigault v.
Springs, 199 U.S. 473, 480 (1905).
Though it is disagreeable to them -- and at apparent odds with the decision
of the District Court -- the Supreme Court has cautioned:
If the Contract Clause is to retain any meaning at all, however, it must

be understood to impose some limits upon the power of a State to
abridge existing contractual relationships, even in the exercise of its
otherwise legitimate police power.
Allied Structural Steel Co., 438 U.S. at 242. In such circumstances, and in the case
at bar, what was required only was to plead sufficient facts to establish the
elements of the claim. This, as the Opening Brief demonstrates, Opening Br. at 56-
58, Fitness Systems has done. The judgment should be vacated and the matter
remanded for further proceedings. Then, after issue is joined, if the Local
Defendants believe that they are entitled to judgment (at trial or summary), they
can seek from the trial court a decision that does as the Supreme Court has
commanded: apply a balancing test in which the challenged exercise of the police
power, on one side, are balanced against the rights protected by the contract
clauses, on the other, to determine whether the complained of Public Health Orders
16
were "reasonable and necessary to serve an important public purpose." United
States Trust Co. v. New Jersey, 431 U.S. 1, 25 (1977).
CONCLUSION
For the foregoing reasons and as set out in Plaintiffs'-Appellants' Opening
Brief, this Court should reverse the judgment below and remand the case for
consideration on the merits.
DATED: August 31, 2021
/s/ James M. Henderson, Sr. /s/ Brian Ricardo Chavez-Ochoa

James M. Henderson, Sr. Brian Ricardo Chavez-Ochoa
James Henderson Law Office Chavez-Ochoa Law Offices, Inc.
Attorneys for Plaintiffs/Appellants
17
CERTIFICATE OF COMPLIANCE FOR BRIEF
9th Cir. Case Number 20-17362
I am the attorney or self-represented party.
This brief contains 2882 words, excluding the items exempted by Fed. R.
App. P. 32(f).
The brief’s type size and typeface comply with Fed. R. App. P. 32(a)(5) and
(6).
I certify that this brief complies with the word limit of Cir. R. 32-1.
Date: August 31, 2021 Signature: /s/ Brian Ricardo Chavez-Ochoa

Chavez-Ochoa Law Offices, Inc.
18
CERTIFICATE OF SERVICE
All parties to this appeal are registered electronic filers with this Court.
I hereby certify that I electronically filed the foregoing with the Clerk of the
Court for the United States Court of Appeals for the Ninth Circuit by using the
appellate CM/ECF system on September 1, 2021.
Date: September 1, 2021 Signature: /s/ Brian Ricardo Chavez-Ochoa

Chavez-Ochoa Law Offices, Inc.
19

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Case: 20-17362, 09/01/2021, ID: 12217655, DktEntry: 33, Page 1 of 19

IN THE UNITED STATES COURT OF APPEALS

BEST SUPPLEMENT GUIDE LLC and SEAN COVELL

GAVIN NEWSOM, XAVIER BECERRA, SONIA Y. ANGELL,

On Appeal from the United States District Court

APPELLANTS’ REPLY BRIEF

James M. Henderson, Sr. Brian Ricardo Chavez-Ochoa

TABLE OF AUTHORITIES .......................................................................................................... 3

REPLY ARGUMENT .................................................................................................................... 5

CERTIFICATE OF COMPLIANCE FOR BRIEF ....................................................................... 18

CERTIFICATE OF SERVICE ..................................................................................................... 19

Best Supplement Guide LLC and Sean Covell, the Plaintiffs-Appellants

(hereinafter collectively, "Fitness Systems"), submit the instant Reply Brief in

the voluntary cessation of the Defendants-Appellees unlawful, uncompensated

takings. In the Third Amended Complaint (hereinafter "TAC"), Fitness Systems

(Count Two--The Takings Clause of the Fifth Amendment); id. at ¶¶ 384-389

controversy, this appeal has not been rendered moot.

2. The State Defendants'-Appellees' voluntary cessation does not moot the

case or controversy between the parties. The State Defendants-Appellees would

Orders. See Answering Brief of State Defendants-Appellees at 1 (hereinafter "State

well-established pattern of promulgating Orders in the face of the pandemic. Cf.

change in its behavior is 'entrenched' or 'permanent'" (citation omitted); Sackett v.

prevents the [Defendants-Appellees] from reinstating the [complained of Public

of enforcement available to it ...." Sackett, slip op. at 15.

Consequently, as in Sackett, the Defendants-Appellees' "[w]ithdrawal of the

3. The present case exactly embodies the requisites for "capable of

30. That fact does not bar judicial review here.

Regardless of the withdrawal of the complained of Public Health Orders,

allow full litigation before it ceases or expires," and "there is a reasonable

Serv., 681 F.3d 1006, 1018 (9th Cir. 2012)).

The complained of Public Health Orders meet these two criteria.

The peripatetic nature of the Orders, the frequency of issuance and

amendment, modification, and updating—all were presented in a timeframe that, in

Defendants-Appellees confirms the reasonable likelihood that they will again

eruptions of the COVID-19 pandemic. Nor do the Defendants-Appellees represent

An action is “fully litigated if it is reviewed by this Court and the Supreme

lasting only one or two years evade review”) (emphasis added).

As to whether Fitness Systems satisfies the second prong of the "capable of

repetition yet evading review" test, Plaintiffs-Appellants quite reasonably expect to

be subjected again to the Defendants-Appellees' resort to executive actions in

with the Covid-19 pandemic in California. The history of this pandemic is

rule-making processes or legislation, virtually each of which contained no

expiration date or limited period of operation.

The Defendants'-Appellees' pattern -- throwing Public Health Orders against

the pandemic -- is so well, so clearly, and so thoroughly established on this record

that there is no reason to expect it to change. Moreover, the State Defendants-

necessary, they would not impose these or other, similar ones.

4. Appellees impliedly concede that application of a heightened pleading

standard at the motion to dismiss stage is inappropriate. Before this Court,

employed a heightened standard of scrutiny beyond notice pleading in reaching its

inappropriate and unauthorized heightened standard of scrutiny. Opening Br. at 35-

5. Defendants'-Appellees reliance on Slidewaters LLC V. Washington State

interpreting the privileges or immunities of United States citizenship to

protect as fundamental the right to engage in a common calling. To conclude

Clause 1, of the United States Constitution:

The judicial Power of the United States, shall be vested in one

(Emphases added.) Occasionally, it is well to remind we litigants that there are

Supreme Court binding precedent superior in constitutional effect over contrary

decisions of inferior courts such as the courts of appeal.

The Defendants-Appellees understandably seek the cover of the recent panel

Court construing, interpreting, and applying the Privileges or Immunities Clauses

to protect, as a privilege of United States citizenship, the right to pursue a common