August 22, 2022, opinions

Posted on by tadbartlett

Designated for publication

  • Hignell-Stark v. City of New Orleans, 21-30643, appeal from E.D. La.
    • Smith, J. (Smith, Wiener, Southwick), § 1983, takings, Commerce Clause, First Amendment
    • Affirming in part and vacating in part summary judgment dismissing two of three constitutional challenges by owners of short-term rentals (STRs) against the City of New Orleans in relation to 2019 revisions to its STR-licensing scheme; and dismissing the City’s cross-appeal for lack of jurisdiction.
    • The STR-owner plaintiffs challenged the City’s new requirements, arguing (1) failure to renew STR licenses procured under the 2016 regulations violated the Takings Clause because they had a property interest in license renewal; (2) the 2019 regulations’ requirement that an STR in a residential neighborhood must also be the STR-owner’s primary residence violated the formant Commerce Clause because it discriminated against interstate commerce; and (3) restrictions on advertising STRs at greater than the capacity allowed by the regulations and that advertised otherwise illegal STRs was a prior restraint that violated the First Amendment. The district court dismissed the takings and dormant Commerce Clause claims on summary judgment, but found that the First Amendment claim was viable.
    • The Court held that the STR owners had no property interest in the renewal of their licenses. The Court held that, even if the interest in renewal was a sufficient property interest to trigger due process requirements, it was not a sufficient property interest to trigger just compensation under a takings analysis. “Because property interests under the Due Process Clause and the Takings Clause are not the same, that test is not the same as the one for determining whether an interest qualifies as property for procedural due process. Instead, a property interest must be so deeply rooted in custom that ‘just compensation’ for appropriating necessarily includes money damages. U.S. Const. amend. V. Surmounting that hurdle should be quite difficult. And when we analyze the facts of this case, we have no difficulty in concluding that the plaintiffs had no property interest in the renewal of their STR licenses.”
    • The Court held, however, that the STR owners’ claim that the residency requirement violates the formant Commerce Clause was correct, in that it discriminates against interstate commerce. “The district court held that the residency requirement discriminated against interstate commerce. That was the right call. But the court then applied the Pike test to uphold the law. That was a mistake; it should have asked whether the City had reasonable nondiscriminatory alternatives to achieve its policy goals. Because there are many such alternatives, the residency requirement is unconstitutional under the dormant Commerce Clause.”
    • The Court then dismissed the City’s cross-appeal regarding the district court’s holding that the First Amendment claim was viable, as that holding was not a final judgment.

Unpublished

  • Zamora v. Garland, 18-60888, petition for review of BIA order
    • per curiam (Wiener, Elrod, Engelhardt), immigration
    • Denying Mexican citizens’ petition for review of BIA order dismissing their appeal from an order of the Immigration Judge (IJ) denying their applications for asylum and withholding of removal.
  • Castellanos-Ulloa v. Garland, 20-60916, petition for review of BIA order
    • per curiam (Jolly, Willett, Engelhardt), immigration
    • Denying in part and dismissing in part Honduran citizens’ petition for review of BIA order vacating the Immigration Judge’s (IJ) pretermission of their applications for asylum based upon 8 C.F.R. § 1208.13(c)(4) and dismissing the appeal and adopting and affirming the IJ’s denial of asylum, withholding of removal, and Convention Against Torture (CAT) relief on the merits.
  • U.S. v. Romero, 21-50485, appeal from W.D. Tex.
    • per curiam (Jones, Ho, Wilson), criminal, sentencing
    • Vacating 115-month sentence on conviction for possession of a firearm by a felon, and remanding for resentencing.
  • Yin v. Garland, 21-60364, petition for review of BIA order
    • per curiam (Higginbotham, Graves, Ho), immigration
    • Denying Cambodian citizen’s petition for review of BIA order dismissing her appeal of the immigration judge’s (IJ) denial of her petition to remove conditions on her permanent resident status.
  • Stanton-Black v. Garland, 21-60782, petition for review of BIA order
    • per curiam (Davis, Duncan, Engelhardt), immigration
    • Denying in part and dismissing in part Jamaican citizen’s petition for review of BIA order dismissing his appeal and adopting and affirming the Immigration Judge’s (IJ) denial of his application for Convention Against Torture (CAT) relief.