Fifth Circuit Grants En Banc in Farmers Branch Case

In Villas at Parkside Partners v. City of Farmers Branch, the U.S. Court of Appeals for the Fifth Circuit in March affirmed the district court's summary judgment enjoining the City of Farmers Branch, Texas from enforcing an ordinance that required adults in rental housing to obtain an occupancy license that required proof of the occupant's citizenship or lawful immigration status. The court concluded that the ordinance's sole purpose was not to regulate housing but to exclude undocumented immigrants, specifically Latinos, from the City and that it was an impermissible regulation of immigration. The Fifth Circuit held that the ordinance was unconstitutional and presented an obstacle to federal authority on immigration.

The City has until August 15 to file an en banc brief, with the plaintiffs' brief due on August 30.  Oral argument in the case is scheduled for September 19, 2012.  For the Fifth Circuit's en banc order, see Download Farmer's Branch En Banc or click here.

The Fifth Circuit's grant of en banc review is interesting.  The Court could have done nothing or allowed the original panel to amend its original opinion to address the application of the Supreme Court’s decision in Arizona v. United States.   The Fifth Circuit instead decided to rehear the case en banc.

It always is hazardous to try to guess why a circuit court took a case en banc, just as it is difficult to explain why the Supreme Court granted certiorari in a particular case.  For example, when the Court granted cert in the health reform act case,  many observers incorrectly speculated that the Supreme Court was going to strike down the entire law.

Still, it does seem fair to surmise that a majority of active Fifth Circuit judges believed that the issues raised by the Farmers Branch law were important enough to justify en banc review.  A majority also probably thought that the issues were likely to arise again, a reasonable likelihood given that these kind of local immigration ordinances are popping up with regularity.  Importantly, local immigration enforcement ordinances raise slightly different issues than those raised by state immigration enforcement laws like that at issue in Arizona v. United States. 

My instinct is that, besides the issues being important and capable of repitition, the Fifth Circuit wanted to be one of the first courts to address how Arizona v. United States applies to local immigration ordinances like Farmers Branch's.

KJ