October 13-14, 2021 opinions

Posted on by tadbartlett

Designated for publication

  • Hawkins v. U.S. Department of Housing and Urban Development, 20-20281, appeal from S.D. Tex.
    • Wiener, J. (Wiener, Dennis, Duncan), Duncan, J., dissenting; Administrative Procedure Act, Fair Housing Act
    • Reversing district court’s dismissal of plaintiffs’ APA and FHA claims against HUD, holding that HUD is bound by its prior self-imposed obligation to provide relocation vouchers as a remedy to Section 8 tenants when a Section 8 landlord fails to correct deficiencies in its housing units; affirming district court’s dismissal of 5th Amendment equal protection claims; and remanding for further proceedings.
    • Plaintiffs brought suit against HUD for failure to issue relocation vouchers after the landlord of the Section 8 apartment complex they lived in in Houston failed to correct numerous deficiencies. Plaintiffs claimed that HUD’s inaction “was arbitrary and capricious under the APA. Plaintiffs further alleged that HUD’s inaction amounted to race-based discrimination in violation of the FHA and the equal protection component of the Fifth Amendment. Contrasting Coppertree with Section 8 properties elsewhere in Houston, Plaintiffs alleged that HUD’s failure to provide vouchers was done with the discriminatory motive of ‘maintain[ing] racial segregation and … disadvantag[ing] a group of minority households.'”
    • The Court held that, under 24 C.F.R. § 886.3239(e), “the mandatory language—'[i]f, however, the family wishes to be rehoused in another dwelling unit, HUD shall provide assistance in finding such a unit for the family’—is not a continuation or even a reference to HUD’s discretion to exercise abatement of the housing assistance payments. Rather, that language marks a contrast between the mandatory ‘shall’ in this sentence and the permissive ‘may’ in the preceding sentence. If HUD had wished to predicate its obligation to provide relocation vouchers to tenants on its exercise of abatement remedies, it could have and should have so specified in its regulation.”
    • Addressing the dissent, the Court noted, “Despite the contentions of our esteemed colleague in dissent, we are not creating a ‘judge-made system.’ We are merely enforcing—as we are bound to do—the plain language of HUD’s own regulations. Agency discretion is often expansive, but not without limits. This is especially true when discretion is expressly limited by a regulation that the agency itself wrote.”
    • The Court also held that the agency’s inaction here constituted “final agency action” for purposes of APA review.
    • As to the 5th Amendment claim, the Court held that, “at most[,] … HUD is aware of varying conditions in the numerous housing projects that it subsidizes in the Houston area. In no way, however, do these allegations support an inference that HUD has made any decision ‘because of,’ not merely ‘in spite of,’ different conditions.”
    • Judge Duncan dissented. He “would instead affirm the district court’s dismissal of Plaintiffs’ APA claims, either because HUD’s enforcement decisions here are committed to its discretion by law or because Plaintiffs have entirely failed to identify any final agency action with respect to issuing vouchers.”

Unpublished

  • English v. Aramark Corp., 19-20412, appeal from S.D. Tex.
    • per curiam (Haynes, Graves, Willett), prisoner suit
    • Affirming dismissal of prisoner’s unfair trade practices and fraud claims against prison commissary vendor.
  • U.S. v. Herrera, 20-10105, appeal from N.D. Tex.
    • per curiam (Smith, Stewart, Graves), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Manjarrez-Guadarrama, 20-10297, appeal from N.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • Barry v. Lowe’s Home Centers, L.L.C., 20-10455, appeal from N.D. Tex.
    • per curiam (Owen, King, Engelhardt), personal tort
    • Affirming summary judgment in favor of defendant on premises liability claim, under Texas’s open-and-obvious-danger doctrine.
  • Butler v. Lumpkin, 20-40151, c/w 20-40631, appeals from E.D. Tex.
    • per curiam (Elrod, Oldham, Wilson), habeas corpus
    • Denying certificate of appealability from district court’s dismissal of § 2254 petition as without merit in part and procedurally defaulted in part.
  • Cobb v. James Construction Group, L.L.C., 20-40342, appeal from E.D. Tex.
    • per curiam (Jolly, Haynes, Oldham), personal tort
    • Affirming summary judgment dismissing plaintiffs’ premises liability claims against highway construction project general contractor.
  • Lampkin v. Lumpkin, 20-40345, appeal from E.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), habeas corpus
    • Affirming dismissal of motion for injunctive relief filed three years after denial of original § 2254 petition.
  • U.S. v. Escobar, 20-40598, appeal from S.D. Tex.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • Alvarenga-Reyes v. Garland, 20-60125, petition for review of BIA orders
    • per curiam (Barksdale, Costa, Oldham), immigration
    • Dismissing in part and denying in part Salvadoran citizens’ petition for review of BIA orders affirming, without opinion, the denial of their applications for: asylum; withholding of removal; and protection under the Convention Against Torture.
  • Da Costa v. Garland, 20-60233, petition for review of BIA order
    • per curiam (Barksdale, Costa, Oldham), immigration
    • Dismissing in part and granting in part Brazilian citizen’s petition for review of BIA order affirming the denial of his motion to reopen proceedings and rescind the in absentia order of removal entered by the immigration judge.
  • U.S. v. Taylor, 21-10193, appeal from N.D. Tex.
    • per curiam ((King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Merchant, 21-10316, appeal from N.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Covington, 21-10417, appeal from N.D. Tex.
    • per curiam (Jones, Duncan, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Simon, 21-30057, appeal from W.D. La.
    • per curiam (Wiener, Dennis, Haynes), criminal, compassionate release
    • Affirming denial of motion for compassionate release.
  • U.S. v. Pineda-Vasquez, 21-40080, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Cruz-Desantiago, 21-40095, appeal from S.D. Tex.
    • per curiam (Jolly, Willett, Engelhardt), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Herrera-Valenzuela, 21-40150, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal, sentencing
    • Affirming 168-month sentence on conviction of importing 500 grams or more of methamphetamine.
  • U.S. v. Zaragoza-Infante, 21-40245, appeal from S.D. Tex.
    • per curiam (Davis, Jones, Elrod), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Alvarado, 21-40348, appeal from S.D. Tex.
    • per curiam (Higginbotham, Higginson, Duncan), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Collins, 21-40363, appeal from S.D. Tex.
    • per curiam (King, Costa, Ho), criminal
    • Granting Anders motion to withdraw, and dismissing appeal.
  • U.S. v. Lara-Hidalgo, 21-50051, appeal from W.D. Tex.
    • per curiam (King, Costa, Ho), criminal, search and seizure
    • Granting summary affirmance of conviction for illegal reentry, rejecting argument regarding denial of motion to suppress.
  • U.S. v. Ramirez-Hidrogo, 21-50217, appeal from W.D. Tex.
    • per curiam (Jolly, Willett, Ho), criminal, sentencing
    • Granting summary affirmance of sentence on conviction of illegal reentry.
  • U.S. v. Martinez-Ceballos, 21-50257, c/w 21-50265, appeals from W.D. Tex.
    • per curiam (Southwick, Oldham, Wilson), criminal, sentencing
    • Granting summary affirmance of sentence on conviction for illegal reentry and affirming revocation of supervised release.
  • U.S. v. State of Texas, 21-50949, appeal from W.D. Tex.
    • per curiam (Stewart, Haynes, Ho), Stewart, J., dissenting; abortion law
    • Granting emergency motion for stay of district court’s preliminary injunction pending appeal, for the reasons stated in Whole Woman’s Health v. Jackson, 13 F.4th 434 (5th Cir. 2021), and Whole Woman’s Health v. Jackson, 141 S. Ct. 2494 (2021); and expediting appeal.
  • U.S. v. Schindler, 21-60111, appeal from N.D. Miss.
    • per curiam (Southwick, Oldham, Wilson), criminal, compassionate release
    • Affirming denial of motion for compassionate release.