169 F.3d 973 (5th Cir. 1999), 97-11083, Walker v. City of Mesquite

Docket Nº:97-11083.
Citation:169 F.3d 973
Party Name:Debra WALKER, et al., Plaintiffs, Debra Walker; Jeanette Washington; Hazel Williams; Zelma Lang; Renita Brown; Lillie Thompson, Plaintiffs-Appellees, Tracey Smith, Intervenor Plaintiff-Appellee, v. CITY OF MESQUITE, TX, et al., Defendants, Department of Housing & Urban Development, Defendant-Appellee. Highlands of McKamy IV and V Community Improvem
Case Date:March 16, 1999
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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169 F.3d 973 (5th Cir. 1999)

Debra WALKER, et al., Plaintiffs,

Debra Walker; Jeanette Washington; Hazel Williams; Zelma

Lang; Renita Brown; Lillie Thompson, Plaintiffs-Appellees,

Tracey Smith, Intervenor Plaintiff-Appellee,


CITY OF MESQUITE, TX, et al., Defendants,

Department of Housing & Urban Development, Defendant-Appellee.

Highlands of McKamy IV and V Community Improvement

Association; Ginger Lee; Preston Highlands

Homeowners' Association, Incorporated;

David Beer, Plaintiffs-Appellants,


The Housing Authority of the City of Dallas, Defendant-Appellee.

No. 97-11083.

United States Court of Appeals, Fifth Circuit

March 16, 1999

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[Copyrighted Material Omitted]

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Michael M. Daniel, Laura Beth Beshara, Dallas, TX, for Plaintiffs-Appellees and Intervenor Plaintiff-Appellee.

Linda Frances Thome, U.S. Department of Justice, Appellate Section, Civil Rights Division, David Kevin Flynn, U.S. Department of Justice, Washington, DC, for Department of Housing & Urban Development.

Robert E. Goodfriend, Michael P. Lynn, Thomas M. Melsheimer, Eric Wolf Pinker, Lynn, Stodghill, Melsheimer & Tillotson, Dallas, TX, for Plaintiffs-Appellants.

Joseph G. Werner, Melissa Ann Miles, Haynes & Boone, Dallas, TX, for The Housing Authority of the City of Dallas.

Appeal from the United States District Court for the Northern District of Texas.

Before JONES and SMITH, Circuit Judges, and SHAW [*], District Judge.

EDITH H. JONES, Circuit Judge:

The Dallas Housing Authority (DHA), the United States Department of Housing and Urban Development (HUD), and the City of Dallas were found liable several years ago for unconstitutional racial discrimination and segregation within Dallas's public housing programs. The primary issue on this appeal is the constitutionality of the provision of the district court's most recent remedial order that directs newly constructed units of public housing to be located in "predominantly white" Dallas neighborhoods.

Specifically, this is an appeal from a final judgment in two actions that were consolidated for trial. In the first action, two homeowners and their homeowners' associations ("Homeowners") sought declaratory and injunctive relief against DHA's construction of two new public housing projects adjacent to their neighborhoods. 1 The Homeowners challenged the remedial order's provisions for new public housing construction and race-conscious site selection alleging that these

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were not narrowly tailored to remedy the vestiges of past discrimination and segregation. In the second action, the original class plaintiffs, tenants in the public housing programs, sought declaratory relief that the remedial order provisions are constitutional. The district court entered judgment against the Homeowners in the first action and for the class plaintiffs in the second action. The Homeowners appealed. We essentially vacate and remand for further consideration by the district court.


Part of the convoluted history of this case is concisely recounted in Walker v. HUD, 912 F.2d 819, 821-25 (5th Cir.1990) [hereinafter Walker IV ]. We will not repeat that history here, but some important procedural and substantive gaps in this court's prior opinion, which addressed different issues, should be filled in.

This case began in 1985 and initially resulted in a consent decree, which was approved by the district court in 1987. See Walker v. HUD, 734 F.Supp. 1231, 1247-72 (N.D.Tex.1989) [hereinafter Walker I ] (reprinting the district court's 1987 consent decree and its "Findings of Fact & Conclusions of Law Approving the Proposed Consent Decree"). The consent decree addressed the plaintiff class's 2 challenge under the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 to the purposeful racial discrimination and segregation within DHA's public housing programs. The defendants were DHA and HUD. The City of Dallas was joined as both a defendant to the lawsuit and a party to the consent decree in 1989. See Walker v. HUD, 734 F.Supp. 1289 (N.D.Tex.1989) [hereinafter Walker III ]. The history of public housing in Dallas is a sordid tale of overt and covert racial discrimination and segregation. See generally Walker III, 734 F.Supp. at 1293-1312 (recounting in detail the history of public housing in Dallas). Virtually all non-elderly public housing units 3 were constructed in minority areas of Dallas. 4 No new public housing units were built between 1955 and 1989 at least in part for fear that they might be located in white areas. Tenant selection and assignment procedures for public housing units were crafted and administered to maintain racially segregated projects. DHA's Section 8 housing programs were operated to discourage blacks from moving into white areas of metropolitan Dallas. See id. Blacks were purposefully segregated for decades into either Section 8 housing in minority areas of Dallas or predominantly black housing projects in minority areas of Dallas.

The 1987 consent decree required the demolition of approximately 2,600 units of public housing in DHA's West Dallas project, a public housing development located in a predominantly black area of the city and referred to by this court as "one of Dallas's worst slums." 5 Walker IV, 912 F.2d at 821. These units were to be replaced on a one-for-

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one basis with additional public housing units and Section 8 certificates and vouchers. See id. at 822. The decree also required that one hundred newly constructed replacement units be built in a predominantly white area of Dallas, that a nondiscriminatory tenant selection and assignment plan be implemented, and that a Section 8 mobility plan be established to assist black families joining the Section 8 program in finding housing in white areas of Dallas. 6

DHA repeatedly violated the 1987 consent decree. First, it resisted the construction of the 100 units of new public housing in a predominantly white area. See Walker I, 734 F.Supp. at 1243-45. Site selection for and construction of the 100 units was eventually completed, but only by court order. See id. Second, DHA violated the tenant selection and assignment and mobility provisions of the decree. See id. at 1235-42. DHA failed to establish and fund the required Section 8 mobility program, failed to timely obtain fair market exception rents, 7 delayed implementing a nondiscriminatory tenant selection and assignment program, failed to include in Section 8 housing information a full list of all Section 8 units available in non-minority areas, and failed to use all of the Section 8 certificates and vouchers allocated by HUD to DHA. See id.

In March 1992, the district court vacated the 1987 consent decree on the grounds that its terms were not implemented and that the vestiges of purposeful segregation persisted. Subsequently, the district court granted the Walker plaintiffs' uncontested motion for summary judgment on the issue of liability. In September 1994, the district court held a trial on the issue of a remedy. The district court entered its remedial order affecting DHA in February 1995 and its remedial order affecting HUD in April 1996.

The remedial order affecting DHA requires DHA (1) to demolish at least 2,630 units of its West Dallas project, (2) to develop 2,807 replacement units for the demolished West Dallas units through both new construction and Section 8 vouchers and certificates, 8 (3) to develop, either through construction or acquisition, an additional 3,205 new units of public housing in predominantly white areas of metropolitan Dallas in which the poverty rate does not exceed 13%, and (4) to develop all new public housing units in predominantly white areas until there are as many units in predominantly white areas as there are in minority areas. 9 A "predominantly

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white area" is defined as less than 37% Hispanic, black, or other minority. The required 3,205 new units may be satisfied by the use of Section 8 certificates or vouchers, but only after court approval. 10 The construction costs for 674 of the 2,807 new replacement units have been previously allocated to DHA by HUD, 11 although only 75 of these units are currently under construction or completed. 12

The Homeowners filed this suit against DHA and HUD to enjoin the construction of two new 40-unit public housing projects on sites adjacent to their neighborhoods. 13 The Homeowners allege that the remedy of new construction is not narrowly tailored because it requires that the new units be constructed in predominantly white areas. The Homeowners do not contest either the remedial order's poverty site-selection criterion or HUD's site-selection standards set forth in 24 C.F.R. § 941.202.

In response to the Homeowners' action, the Walker plaintiffs sought declaratory relief that the remedial order was constitutional. The Homeowners' request for an injunction and the Walker plaintiffs' declaratory judgment action were tried together in October 1996. The district court denied the Homeowners' injunctive relief and granted the Walker plaintiffs declaratory relief. The district court gave an oral opinion on August 25, 1997, entered final judgment on September 18, 1997, and issued its written opinion on October 6, 1997. 14


As an initial matter, DHA and HUD challenge the Homeowners' standing to bring their suit. The burden of establishing standing rests with the party seeking to invoke federal jurisdiction (i.e., the Homeowners). See United States v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995); Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). In a case that has proceeded to final judgment...

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