New opinions — three new opinions, including a housing blockbuster and a big consumer class-action win, both with dissents

Hayes v. Harvey — housing — affirmance — Fisher

In a significant public-housing opinion that I think has a realistic shot at en banc rehearing, a split Third Circuit panel today held that public housing residents have no right to remain in their homes despite statutory language that they “may elect to remain.”

Judge Greenaway’s dissent is blistering. It begins:

The Hayes family has lived at 538B Pine Street for 35 years, and a federal statute provides that they “may elect to remain” in their home. 42 U.S.C. § 1437f(t)(B). They elected to remain in their home. They were model tenants, according to their landlord. And yet, they now will find themselves evicted. The majority has struck their Congressionally provided right from the statute, leaving nothing in its place.

According to the majority, a family “may elect to remain” in their home, but their landlord need not heed that election: he can still evict them without cause. It concludes that tenants’ rights are empty words unless a statute is also expressly phrased in terms of a property owner’s obligation. This renders tenants’ statutory entitlement to choose to remain the most evanescent of rights: good only until the moment it is required. This is not what Congress intended and it is not what Congress enacted.

Indeed, the majority’s interpretation is at odds not only with the statutory text, but with the interpretations of the other two branches of government as well. HUD—the expert agency tasked with administering this statute—has found a right to remain. Every court to interpret this statute, until this litigation, has found a right to remain. There is complete consensus on what this statute means: landlords may not evict enhanced voucher-holders without cause. The majority all but ignores these cases and administrative interpretations, even as it instead battles the strawman of perpetual tenancies that can never be ended—an interpretation that no one advances: not the Hayes family, not HUD, and not other courts. As a result, this Court is left standing alone. I must dissent.

Joining Fisher was Hardiman; Greenaway dissented. Arguing counsel were Rachel Garland of Community Legal Services for the tenants and Susanna Randazzo of Kolber & Randazzo for the landlords.


Cottrell v. Alcon Labs — class action — reversal — Restrepo

A divided Third Circuit panel today revived a consumer class-action suit alleging that prescription eyedrop sellers knowingly designed their dispensers in a way that forced consumers to waste it. Basically, if the drops out of the dropper are too big, the excess just runs down your cheek, and here the drops were allegedly two to three times too big. The district court dismissed on injury-in-fact standing grounds, but today’s panel majority reversed, separately analyzing each component of the injury-in-fact standard. The court split with the Seventh Circuit, so this case clearly isn’t over.

Joining Restrepo was Chagares; Roth dissented, arguing that the majority erodes standing by allowing the plaintiffs to proceed with a speculative injury. Arguing counsel were Leah Nicholls of Public Justice for the consumers and Robyn Bladow of Kirkland and Ellis for the sellers.


In re: Bressman — bankruptcy — affirmance — Roth

The Third Circuit today upheld a district court ruling vacating a prior default judgment due to counsel’s fraud on the court. The court once again came down hard on the lawyer (Max Folkenflik of New York), naming him in the opening sentence of the opinion and throughout.

Joining Roth were Ambro and Jordan. Arguing counsel were Folkenflik for the appellants and Michael Sirota of Cole Shotz for the appellee.