Samuel R. Pierce, Jr., Secretary of the United States Department of Housing and Urban Development v. Dr. Eugene Winograd
757 F.2d 714
5th Cir.
1985
Check Treatment

*1 III.

CONCLUSION above, the

For the reasons set forth sum-

mary and the judgment is reversed case is proceedings consistent

remanded opinion. shall bear the Defendants appeal.

costs of this

REVERSED and REMANDED. PIERCE, Jr., Secretary

Samuel R. Department

United States Development, Plaintiff-Ap-

and Urban

pellee, WINOGRAD, al., Eugene

Dr. et

Defendants-Appellants.

No. 83-2640. Appeals, States Court of

Fifth Circuit.

April

715 During investigation of the com- subpoenas plaints, ordering HUD issued Winograd testify produce and records. petitioned then He refused. HUD the dis- subpoenas. trict court to enforce the The granted petition, district court HUD’s and Winograd appealed. stayed pend-

The district court its order ing Winograd’s appeal. A Fifth Circuit stay panel vacated the district court’s order Kirklin, Joseph, M. Boudreaux & Glen response in to a motion HUD. Boudreaux, Leonard, Bruce K. Wat- Tim S. district court scheduled a show cause hear- kins, Houston, Tex., for defendants-appel- ing contempt. panel for The Fifth Circuit lants. Winograd’s request denied second for a Atty., Hedges, Daniel K. U.S. R.W. Rod- stay. Winograd appeared response then in Calnan, (Neil) Gough, R. rigues, James C.J. testified, subpoenas, produced to the Attys., Hous- Cipriani, Linda M. Asst. U.S. requested records. Tex., ton, plaintiff-appellee. II Winograd’s appeal HUD maintains that should be dismissed as moot because Wino- grad already complied subpoe- has with the CLARK, WISDOM, Judge, Before Chief sought Winograd nas HUD to enforce. HIGGINBOTHAM, Judges. Circuit appeal that the is not contends moot. Win- ograd argues standing that he has and an CLARK, Judge: Chief in interest the outcome of the be- challenges district Eugene Winograd cause he owns a substantial number of subpoenas issued court’s enforcement apartments subject to future and is Department and Urban argues HUD. He also that the issue of (HUD). Development Winograd contends authority subpoenas HUD’s to issue the authority to issue the that HUD lacked repetition evading capable of but review argues that the existence subpoenas. He appel- because he will be unable to obtain housing ordinance substan- of a local fair being compelled to com- late review before Fair tially equivalent to the federal Hous- ply- delay required Act HUD to its investi- housing agency fair gation until the local Although may appear a case to be to conduct its own in- opportunity had an mooted, technically continuing controver rejected vestigation. The district court problem likely to recur sy exists equiva- Winograd’s premise of substantial yet Ogilvie, evade review. Moore v. lency. We affirm. 814, 816, 1493, 1494, 89 S.Ct. U.S. (1984); L.Ed.2d 1 Termi Southern Pacific I ICC, 498, 515, 31 nal v. 219 U.S. S.Ct. Co. 279, 283, (1911). L.Ed. 310 For a case (collectively referred to as Appellants category, requirements operate apart- fall within this two “Winograd”) own and Houston, (1) must be met: the duration of the chal complex in Texas. Janice ment sought lenged to rent action must be too short to allow Regina Cooper Clay and (2) complex. litigation; expecta full a reasonable within the After be- apartments that the same apartments, housing each filed tion must exist be ing denied again. subjected to the same action complaints with the Houston Wein discrimination 147, 149, They Bradford, also filed stein v. 423 U.S. Housing Division. Fair 347, 349, (1975) (per S.Ct. complaints with HUD. curiam); Iowa, Winograd’s compliance Sosna 400- with the juris 558-59, HUD raises a 42 L.Ed.2d 532 substantial question. opportu dictional We decline nity Instead, it. resolve Winograd HUD denies that can reason the mootness issue because we conclude ably expect to be to the same that Winograd’s appeal lacks substantive *3 action in the future. HUD Before can initi Hyde merit. Koehring Co. v. Con Cf. investigation, ate an it receive must a hous Co., (5th 295, 324 struction F.2d 296 Cir. complaint discrimination from a third 1963) (pretermitting jurisdictional ques § 3610(a). party. 42 See U.S.C. Even if a tion). standpoint logical From purely a of complaint, might third filed a HUD application legal principles, Judge of basic might decide not to resolve it or conduct an Higginbotham’s point dissent on this is well investigation issuing subpoena without a to choice, considered. Our deliberate how If Winograd. Winograd cooperated with ever, is dispose finally to of the the investigation, subpoena no would be jurisdic its merits and a difficult necessary. Finally, even if HUD issued a which, tional issue if Judge resolved as subpoena, Winograd would have to decide Higginbotham suggests, would leave the comply not to before he would be clearly basic meritless issue undecided. proceeding. to another enforcement HUD prerogative by is authorized U.S.C. contends that chain of events is too § authority, may 2106. Under its enter satisfy requirement tenuous a to of reason orders that best accommodate the in expectation, Winograd’s able and that as terests of justice. present controversy sertion that the is ca pable repetition merely speculative. of Ill Hunt, 478, 482, 102 Murphy v. 455 U.S. Cf. 810(c) Housing Section of the Fair 1181, 1183-84, (1975) S.Ct. L.Ed.2d § Act, 3610(c), prohibits U.S.C. HUD curiam) (“mere (per physical or theoretical from investigating housing a discrimination insufficient). possibility” complaint housing if local pro fair law substantially vides equivalent rights and argues HUD authority also that its remedies. The district court held that subpoenas issue need not evade review be- prohibited HUD was not from investigating cause Winograd authority can test HUD’s complaints the Clay filed Janice refusing comply the with district Regina Cooper because rights the and rem Winograd court’s enforcement order. con- provided by edies Housing Houston’s Fair tends that he should not have to risk con- §§ Houston, Ordinance, Tex., Code 15V2-11 tempt support position. his HUD’s ar- (1975), substantially to -23 not equiv were gument support from derives alent provided by to those Fair Housing the Ryan, States v. 91 S.Ct. §§ Act, 42 U.S.C. 3601-3631. (1971). In Ryan, the United Winograd rights Supreme contends that the recipi- States Court held that the provided by remedies the subpoena two laws are obey ent of a “must either equivalent. substantially He maintains refuse command or to do so and contest the that the district court erred deferring to validity subpoena he is subse- HUD’s determination that substantial quently contempt cited for on account of equivalency lacking. argues was He that obey.” his failure to Id. at at make independent court must deter- good 1581-82. A faith of the test court’s equivalency. mination of substantial through contempt implied order have would Rather, disrespect toward the court. We need decide not whether the district such a test of the court’s order is consist- court properly rely could on HUD’s deter- highest ent legal standards mination that equivalency substantial was profession. Model Code of lacking See Profession- because we conclude that the court Responsibility al 7-22 independent EC also made an determination. The court did state in its enforcement order IV it deferring interpreta- that was to HUD’s Winograd’s findWe no merit to con Housing tion of the Pair Act. As the order tention that HUD’s violated his clear, however, makes protection that deference was fourth amendment from unrea sonable searches and seizures. district independent on the based court’s examina- properly subpoe court concluded that laws, tion of the two and its conclusion that upon nas prob were based the existence of provided by the remedies the local ordi- able cause to believe that violations of the nance and the federal statute revealed sev- Fair Act had occurred. The sub significant eral differences. poenas sought necessary evidence that was holding The district court’s on the issue investigation and relevant to HUD’s equivalency factually of substantial complaints. legally Comparison correct. of the two reject Winograd’s We also contention *4 exemptions laws demonstrates that the and that the district court committed reversable in exclusions the local ordinance are broad- by requiring error prove him to that the in the federal statute. Com- er than those substantially equivalent. two laws were § 15y2-15(A), (D) pare Houston Code with The laws were the legal before court. A §§ 3603(b), 42 U.S.C. 3607. The local ordi- comparison of the local ordinance and the fines; injunctive nance allows relief and federal statute a lack reveals of substantial equivalency puni- rights between the and the federal statute allows actual and reme- provided by Thus, dies the two laws. we damages, injunctive in addition re- tive to need party might not decide which have to § 15V2-23; 42 lief. See Houston Code in bear burden another context. There § 3612(c). The local ordinance re- U.S.C. was no error in this case. complaining party quires the to file a com- Accordingly, the order of the district plaint days alleged of an within 60 viola- court is tion; provides days the federal statute See complaint. to file a Hous-

within which AFFIRMED. § § 15V2-17(D); 3610(b). ton Code U.S.C. HIGGINBOTHAM, PATRICK E. Circuit ability compel compliance HUD’s to with Judge, dissenting: investigations greater its is also than the controversy There is no case or before 811(a) agency’s. the local Section of feder- the court and I dissent from the decision of al statute authorizes HUD to issue adminis- hypothetical question. tempt- It is now subpoenas during investigations. trative case, ing simple to decide merits of this § 3611(a). legal position 42 U.S.C. HUD’s are, they lay as the matter to rest. subpoena superior it after has issued a to question But cannot we of position agency. of the local Section mootness, because is a matter mootness of 811(e) petition en- allows HUD for an power. Article III in forcement order federal court the sub- Appellants complied have with sub- ject subpoena comply. of the refuses to In poenas they im- would have us hold were contrast, gives the local ordinance the local properly they prevailed If issued. had on housing agency independent authority no challenge, the merits of their could have compliance investigation. to secure with its given many them no relief. We have times agency If the local is unable to resolve a compliance an concluded that IRS sub- complaint, it must deliver the matter to the poena seeking production testimony of attorney, then decides city who whether an records renders from enforce- § 15V2-18(E). file suit. See Houston Code Sweet, ment action moot. United States v. noted, agen- the district court the local As (5th Cir.1981); United States 655 F.2d 54 subpoena authority cy’s lack of is a sub- Bank, (5th v. First American 649 F.2d 288 in States, provided Cir.1981); difference the remedies Baldridge v. United stantial (5th Cir.1969); Lawhon v. by the F.2d 526 two laws. (5th 1968). States, F.2d 663 Cir.

ease is no different. MINSKY, Individually Morton L. similarly on of all behalf others suggest Appellants that case falls situated, Plaintiff-Appellant, band within a narrow of controversies v. “capable repetition, yet which are evad- Ordinarily, this doctrine ap- review.” DRIVEAWAY, al., et AUTO challenged is too plies short in when Defendants-Appellees. fully litigated and there is a duration to be No. 82-1972. that the same expectation reasonable Appeals, United States Court of again. to the same action will be Seventh Circuit. 113, See, Wade, e.g., Roe Argued There Dec. 1982. activity pattern regulatory under- April 18, Decided 1984 *. necessarily impli- taken which will by HUD Opinion March appellants. Appel- cate the concerns great of a lants claim be the owners houses, but action apartment

number of only complaint of third

HUD results possibility “capa-

parties. find this as To “capable” in a repetition

ble” of reads too *5 point

speculative There is a at manner. longer controversy. a I

which there is no appellants’ present

draw the line short of

contention.

Finally, a future enforcement

“escape” only appellants again review is, subpoenas.

choose That obey yet escape

conclude that this case would effectively our

review overturns settled

rule that at- such cannot be

tacked persons obeying them. There is exigency reading here to drive our

Article III beyond ap- that created

pellants. Thus this case differs from cases

presenting temporary such a status as residency

pregnancy, requirement, a or stu- enrollment, change

dent where in sta- litigant

tus is procedural not choice inherently

but rather vulnerable to the required judicial

time decisionmaking. * originally unpub- subsequently was decided an decided to issue that decision as April lished order pursuant opinion. Cir- cuit Rule 35. F.2d Court has