Jackson v. Okaloosa County, Fla.

Decision Date08 June 1994
Docket NumberNo. 92-2991,92-2991
Citation21 F.3d 1531
PartiesAngelique JACKSON and Ethel Musgrove, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. OKALOOSA COUNTY, FLORIDA; Don Ware, Bill Peebles, Mike Mitchell, Kathie O'Dell, Ferrin Campbell, Jr., in their official capacity as the Board of Commissioners for Okaloosa County; James Robbins, Sr., Patrick Carpenter, Ruby Youngblood, Claudia Brown King, Pat Thornber, James Hughes, Lee Terrell, in their official capacity as the Fort Walton Beach Housing Authority; James Brewer, in his official capacity as the Executive Director of the Ft. Walton Beach Housing Authority; United States Department of Housing and Urban Development; Jack Kemp, as Secretary of the U.S. Department of Housing and Urban Development, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Kristine Knab, Jack L. McLean, Edward J. Grunewald, and Ann Pickett Perko, Legal Services of North Florida, Inc., Tallahassee, FL, for plaintiffs-appellants.

Patricia Guilday, Pensacola, FL, Gregory T. Stewart, Thomas H. Duffy, and D. Lloyd Monroe, IV, Tallahassee, FL, for defendants-appellees.

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

Before ANDERSON and DUBINA, Circuit Judges, and GODBOLD, Senior Circuit Judge.

ANDERSON, Circuit Judge:

Appellants Jackson and Musgrove appeal the dismissal of their class action complaint against Okaloosa County, Florida and its Commissioners, (the "County"), and the Fort Walton Beach Housing Authority and its members, (the "Authority"), regarding the siting process for a new public housing project. All defendants were sued under the Fair Housing Act, 42 U.S.C. Secs. 3601 et seq., and the County was also sued under 42 U.S.C. Secs. 1982 and 1983. Both defendants made motions to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) that were granted. For the following reasons we reverse the decision of the district court and remand for further proceedings.

At the outset we note that in reviewing motions to dismiss we accept as true the facts stated in the complaint and all reasonable inferences therefrom. Stephens v. Dept. of Health and Human Services, 901 F.2d 1571, 1573 (11th Cir.1990). Moreover, we may only affirm the dismissal of the complaint if it is clear that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59 (1984) (emphasis added).

I. FACTS AND PROCEEDINGS BELOW

For the purposes of this appeal we accept the facts that follow as true. Plaintiff Jackson is an African-American woman who receives public benefits, lives in a racially impacted 1 area of Fort Walton Beach, Florida, is eligible for public housing, and whose name is on the Authority's wait-list for public housing. She expects to move into a new project that will be built by the Authority, and she wants this facility to be located in an area without a concentrated minority population. Plaintiff Musgrove presently resides in public housing provided by the Authority, in the facility located at Third Street and Methodist Avenue. The census tract containing this unit is 38% African-American, the highest proportion within the territorial limit of the Authority. Because she does not want her racially impacted neighborhood to become further segregated, Musgrove does not want the new housing project to be constructed in her neighborhood. These two plaintiffs filed a class action against the defendants on behalf of themselves and all others similarly situated. The class has not yet been certified under Fed.R.Civ.P. Sec. 23(c).

The Authority was established under Fla.Stat. Sec. 421.04 to provide public low-income housing and housing assistance. It operates all public housing in the Fort Walton Beach area, which is a city with a population under 25,000. Current public housing facilities, which contain a total of 186 units, are located at Third Street and Methodist Avenue, and on Ed Brown Street. Under Florida law, the territorial area of operation of housing authorities in cities having a population of less than 25,000 includes the area within 5 miles of the territorial boundaries of that city. Fla.Stat. Sec. 421.03(6)(a). The area within five miles of Fort Walton Beach, Florida, includes areas that are unincorporated and lie within the boundaries of Okaloosa County. Hereafter in this opinion, we will refer to two geographic areas: (1) the racially impacted census tract, an area that lies wholly within the boundaries of the town of Fort Walton Beach, is 38% African-American, and in which is located all existing public housing; and (2) the unincorporated five-mile area, lying within both the territorial jurisdiction of the Authority and the County, which has a population that is 8% African-American and 88% white.

The plaintiffs allege that the defendants have maintained racially segregated public housing in the Fort Walton Beach area. Although the Okaloosa County population is 8% African-American, all of the public housing units built within the Authority's territory have been built in one predominantly African-American neighborhood, within the city limits of Fort Walton Beach; and this neighborhood lies within the racially impacted census tract. Ninety-two percent of the residents in the Authority's existing housing are African-American, and eighty-six percent of the persons on the Authority's waiting list are African-American.

In July 1988, the Authority applied to HUD for $2,500,000 to construct 50 units of multi-family housing. In its application, the Authority identified a site on Bass Street that is adjacent to existing public housing as the proposed construction site, although there were several sites within the Authority's territorial limit that met HUD's selection criteria and were not in areas impacted by race. 2 This proposed site also was located in the racially impacted census tract. HUD approved the Authority's application for the construction funds in September 1988.

HUD rules require a housing authority to obtain a cooperation agreement with pertinent local governments to build housing. Therefore, the Authority sought permission to build public housing in the unincorporated five-mile area from the Okaloosa County Board of County Commissioners. HUD procedure requires a housing authority to identify a potential site within the local government's jurisdiction when the authority seeks a cooperation agreement with that government. Thus, the Authority identified for discussion purposes a potential construction site within the unincorporated five-mile area when it approached the County. Several white residents living near this potential site expressed objections to the Authority's request. The County initially rejected the Authority's request. Later, the County agreed, in theory, to cooperate with the Authority. However, the County unilaterally enacted a policy (the "Policy") pursuant to which the County would permit the construction of public housing. The County tendered the Policy to the Authority in a unilaterally designated "Cooperative Agreement."

The Policy adopts several requirements for the approval of a site for public housing. No project can be sited in the unincorporated five-mile area unless approved by a majority vote of the Board of County Commissioners. Actual notice of the scheduled vote must be given to property owners in the affected area of the project. If the vote of the Board fails, project sponsors can only obtain approval by majority vote in a referendum of the residents in the voting precinct where the project would be located. The Policy also requires the Authority to pay the cost of notice to property owners of upcoming votes and referendums.

In January 1992, the Authority solicited bids for proposed sites for the construction of its 50 unit project. Although the Authority had proposed the Bass Street site, the bidding was open to other sites. However, the bidding procedure required that any site in the unincorporated five-mile area have site-specific approval of the County, thus in effect incorporating the requirement's of the County's Policy. One bidder submitted a site zoned for multi-family housing in the unincorporated five-mile area. 3 That bidder sought site-specific approval of this site from the County, but requested that the site be approved without the procedural requirements of the Policy. The County informed the bidder that it would maintain adherence to the Policy, and the bidder did not complete the process for approval mandated by the Policy.

On February 26, 1992, the Authority ranked the bids for the project, but it did not consider the bid submitted in the unincorporated five-mile area, because that bidder had not obtained site-specific approval. The bid submitted for the unincorporated five-mile area was the only bid submitted that would have allowed the new facility to be sited in an area that was not racially impacted. The Authority ranked first a bid site submitted by Barber Construction, Inc. This site, located at Third Street and Shell Avenue, is located within the racially impacted census tract and is immediately adjacent to existing public housing, where 92% of the residents are African-American, including plaintiff Musgrove. HUD had not given final approval to the site at the time the plaintiffs filed their complaint.

On May 22, 1992, the appellants filed their complaint in the district court. The complaint claimed that the Authority had violated the Fair Housing Act by incorporating the Policy in the bidding process and maintaining a pattern of segregated residential public housing within the territorial limit of the Authority. The appellants made the same segregation claim against the County and alleged that by enacting the Policy the County had violated the Fair Housing Act, through intent and effect, by excluding...

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