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Roger Hawes v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division, et al.

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 19-40341 · judgment July 9, 2020

Certiorari denied · March 1, 2021

Pre-decision estimate: 3% cert probability

Before the decision, well below the 4.1% base rate, with no standout signals pointing toward a grant.

Question presented

The Fifth Circuit held that veterans’ disability benefits deposited in Petitioner’s inmate trust fund (ITF) account are not protected from being used for a state-mandated $100 co-payment charged for medical care under 38 U.S.C. § 5301, which prohibits any legal or equitable process whatever from allowing attachment, seizure, levy or garnishment before or after their receipt when due or to become due. The Fifth Circuit reasoned that because the federal disability benefits protected by this provision were comingled with other funds in Petitioner’s ITF they lost their protected status under this provision. The Fifth Circuit therefore affirmed the District Court’s decision that Petitioner could not state a claim under 42 U.S.C. § 1983 because there had been no violation of 38 U.S.C. § 5301. Both the Third Circuit and Ninth Circuit have held that 38 U.S.C. § 5301 preempts state statutes allowing similar seizures of veterans’ benefits and that because the statute protects veterans’ benefits at all times, a cognizable § 1983 claim can be brought for an unlawful state invasion of these funds. Did the Fifth Circuit err in holding Petitioner’s federal disability benefits were not protected by 38 U.S.C. § 5301 where they were deposited into his ITF and in further holding that he was precluded from suing Respondent state actors under 42 U.S.C. § 1983 when the state applied funds in his account to satisfy the state-mandated co-payment requirement?

For petitioner
Carson J. Tucker
Lex Fori, PLLC

For respondent
Christopher Lee Lindsey
Attorney General of Texas

Conference history
Distributed for 1 conference

Mar 01 2021
Petition DENIED.
Feb 10 2021
DISTRIBUTED for Conference of 2/26/2021.
Dec 07 2020
Petition for a writ of certiorari filed. (Response due January 27, 2021)