City of Schertz v. AGRI ( 2021 )

Case: 19-51056 Document: 00515739178 Page: 1 Date Filed: 02/09/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 9, 2021
No. 19-51056 Lyle W. Cayce
Clerk
City of Schertz,
Plaintiff—Appellant,
versus
United States Department of Agriculture, acting by and
through Kevin Shea, Acting Secretary of Agriculture; Rural
Utilities Service, acting by and through Daniel Torres, Acting
State Director; Green Valley Special Utility District,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:18-CV-1112
Before Haynes, Duncan, and Engelhardt, Circuit Judges.
Per Curiam:*
Green Valley Special Utility District (“GVSUD”) obtained a federal
loan in 2003 to provide water within its South Texas service territory. Under
7 U.S.C. § 1926(b), that loan triggered monopoly protection for “[t]he
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 19-51056 Document: 00515739178 Page: 2 Date Filed: 02/09/2021
No. 19-51056
service provided or made available” by GVSUD. See Green Valley Special
Util. Dist. v. City of Schertz (“Green Valley”), 969 F.3d 460, 475, 477 (2020)
(en banc). Years of litigation ensued between GVSUD and various
municipalities that sought to provide utility services themselves. In 2017, we
held the 2003 water loan protected GVSUD’s exclusive provision of both
water and wastewater services. Green Valley Special Util. Dist. v. City of Cibolo
(“Cibolo”), 866 F.3d 339, 341–43 (5th Cir. 2017) (concluding “[t]he service”
means “any service made available by a federally indebted utility”). Now,
GVSUD seeks a new federal loan, this time to fund wastewater services. The
City of Schertz sued to enjoin the closing of the loan, arguing the
accompanying monopoly would prevent the City from providing wastewater
services to its residents and stifle its plans for growth. The district court
dismissed for lack of standing. It concluded that, under our Cibolo decision,
the 2003 loan already insulates GVSUD from competition in providing
wastewater services such that the new loan could not cause the City any
cognizable Article III injury.
On appeal, the City concedes it lacks standing to challenge the new
loan if Cibolo’s interpretation of “[t]he service” in § 1926(b) remains
binding. It does. In Green Valley, our en banc Court declined to overrule that
part of Cibolo, though a dissenting minority would have done so. See Green
Valley, 969 F.3d at 478 n.39; see also id. at 479 (Owen, C.J., concurring in part
and dissenting in part). We are unpersuaded by the City’s arguments that
recent Supreme Court cases interpreting the word “the” have somehow
fatally undermined Cibolo’s interpretation of § 1926(b), such that we need
not follow it. See, e.g., Nielsen v. Preap, 139 S. Ct. 954, 965 (2019) (explaining
that “the” “indicat[es] that a following noun . . . is definite or has been
previously specified by context” (citation omitted)). The rule of orderliness
therefore compels this panel adhere to Cibolo. See Planned Parenthood v.
2
Case: 19-51056 Document: 00515739178 Page: 3 Date Filed: 02/09/2021
No. 19-51056
Kauffman, 981 F.3d 347, 369 (5th Cir. 2020) (en banc) (quoting Jacobs v.
Nat’l Drug Intel. Ctr., 548 F.3d 375, 378 (5th Cir. 2008)).
AFFIRMED.
3