Anderson v. Jackson

• Citation: 556 F.3d 351
• Decision Date: 26 January 2009
• Docket Number: No. 07-31138.,07-31138.
• Parties: Yolanda ANDERSON; Gilda Burbank; Allen Harris; Odessia Lewis; Emelda May; Sylvia Moten; Hilda Johnson; Cynthia Bell; Judith Watson; Gloria Williams; Mary Ann Wright; Linda Degruy, Plaintiffs-Appellants, v. Alphonso JACKSON, Secretary, United States Department of Housing and Urban Development; United States Department of Housing and Urban Development; Housing Authority of New Orleans; C. Donald Babers, Board of Commissioners, Housing Authority of New Orleans; William C. Thorson, Executive Administrator Appointing Authority Housing Authority of New Orleans and each individual defendant in his official capacity, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

556 F.3d 351

Yolanda ANDERSON; Gilda Burbank; Allen Harris; Odessia Lewis; Emelda May; Sylvia Moten; Hilda Johnson; Cynthia Bell; Judith Watson; Gloria Williams; Mary Ann Wright; Linda Degruy, Plaintiffs-Appellants, v. Alphonso JACKSON, Secretary, United States Department of Housing and Urban Development; United States Department of Housing and Urban Development; Housing Authority of New Orleans; C. Donald Babers, Board of Commissioners, Housing Authority of New Orleans; William C. Thorson, Executive Administrator Appointing Authority Housing Authority of New Orleans and each individual defendant in his official capacity, Defendants-Appellees.

No. 07-31138.

United States Court of Appeals, Fifth Circuit.

January 26, 2009.

Ross Benjamin Bricker, John Fee Ward, Jr., Jenner & Block, Chicago, IL, William P. Quigley, Loyola University Law Clinic, New Orleans, LA, Anita Sinha (argued), Advancement Project, Washington, DC, for Plaintiffs-Appellants.

Kelsi Brown Corkran (argued), Office of Sol. Gen., Mark Bernard Stern, U.S. Dept. of Justice, Civ. Div., Washington, DC, for Jackson and U.S. Dept. of HUD.

Rachel Wendt Wisdom (argued), Ashlee Megan Robinson, Heather Shauri Lonian, Stone, Pigman, Walther & Wittmann, New Orleans, LA for Housing Auth. of New Orleans, Babers and Thorson.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before WIENER, GARZA, and DeMOSS, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Plaintiff-appellants, a group of displaced New Orleans public housing residents (the "Residents"), appeal the district court's dismissal of their claims arising under 42 U.S.C. § 1437p and denial of their motion for a preliminary injunction. Finding no error, we affirm.

I

Prior to Hurricane Katrina, the Housing Authority of New Orleans ("HANO") planned to demolish and redevelop four deteriorated public housing developments: B.W. Cooper, C.J. Peete, St. Bernard, and Lafitte (collectively, "the Big Four"). After the Big Four suffered severe damage from Katrina, HANO proceeded with the plan for eventual demolition. As required by the U.S. Housing Act of 1937, 42 U.S.C. § 1437p, HANO submitted an application to the U.S. Department of Housing and Urban Development ("HUD") showing that the demolition plan met the statutory criteria.¹ HANO certified that it would provide comparable housing to the affected residents and would also cover relocation expenses and counseling. To alert residents to the demolition and redevelopment plans, HANO mailed two notice letters to each affected resident. HANO published informational ads regarding the proposed demolition in several newspapers in Texas and Louisiana. Numerous meetings were held, which the residents were invited to attend in order to receive information, ask questions, and offer comments. Comments from residents were also solicited through the mail and via the HANO website. Over 200 people, including at least 116 displaced residents, attended the resident consultation meetings in November and December of 2006, and around 500 people attended outreach meetings in areas outside of New Orleans in March 2007.

In September 2007 HUD approved HANO's application, finding that all of the statutory requirements were met. The Big Four had numerous storm-related and pre-existing conditions rendering the developments obsolete, dilapidated, and unsuitable for housing purposes, including: damaged and unsafe utility distribution networks, water leakages, windows that failed to meet hurricane-resistant design standards, building code violations, pipe corrosion, mold and water damage, exterior shell damage, and ruined flooring. The costs for rehabilitating the properties substantially exceeded the amount required to justify demolition. HUD detailed its reasons for approving the application in a 31-page opinion.

The Residents filed this lawsuit in June 2006, prior to HUD's approval of the demolition plan. They alleged that HANO and HUD's failure to repair and reopen the Big Four violated the Fair Housing Act (42 U.S.C. § 3608), the HANO lease agreements, the Louisiana Civil Code, and the Fifth and Fourteenth Amendments of the U.S. Constitution. They also alleged that HANO and HUD violated U.S. Housing Act of 1937 (42 U.S.C. § 1437p), enforceable through 42 U.S.C. § 1983 against HANO and through § 702 of the Administrative Procedures Act ("APA") against HUD. The Residents asked the district court to enjoin the demolition, compel repair and re-occupancy of the units, and award them monetary damages for economic loss and emotional distress. The district court denied their first motion for a preliminary injunction in February 2007, finding no irreparable harm because the Residents had an adequate remedy at law. The district court also granted summary judgment for HANO and HUD on the § 1437p claims, finding that § 1437p did not create federal rights enforceable through 42 U.S.C. § 1983 for constructive eviction and that any actual eviction claims were unripe because HUD had not yet approved HANO's application. In July 2007, the district court certified a class to pursue claims related to the administration of the voucher program (which provided housing for displaced residents after Hurricane Katrina and during the demolition process), and dismissed all remaining claims.

Five weeks after HUD approved HANO's application, the Residents again moved for a temporary restraining order and/or preliminary injunction to stop demolition. They also moved to amend their complaint to state an actual eviction claim under § 1437p. The district court granted the Residents' motion to amend their complaint, but denied their request for a temporary restraining order and/or preliminary injunction. In the same order, the district court dismissed the § 1437p actual eviction claims, finding that this provision did not create a private right of action against HANO or HUD. The Residents then moved this Court for temporary injunctive relief pending appeal and to expedite the appeal, both of which we denied. Demolition began in June 2008. As of this writing, three of the Big Four developments have been totally razed, and demolition of the fourth is underway. To provide interim housing during the demolition and redevelopment process, 621 units remain open in Lafitte.

The Residents appeal the dismissal of their § 1437p claims against HANO and HUD, and the denial of a preliminary injunction to halt the demolition.

II

A dismissal of a § 1983 claim for lack of an enforceable federal right is analogous to a dismissal for failure to state a claim pursuant to FED. R. CIV. P. 12(b)(6). See Day v. Apoliona, 496 F.3d 1027, 1030 (9th Cir.2007); see also United States v. Stanley, 483 U.S. 669, 691 n. 7, 107 S.Ct. 3054, 97 L.Ed.2d 550 (1987). Therefore, as with a Rule 12(b)(6) dismissal, we review the district court's dismissal of the § 1437p claims de novo. See Nationwide Bi-Weekly Admin., Inc., v. Belo Corp., 512 F.3d 137, 140 (5th Cir.2007).

We review the district court's decision to grant or deny a preliminary injunction for abuse of discretion, Walgreen Co. v. Hood, 275 F.3d 475, 477 (5th Cir. 2001), but a decision based on erroneous legal principles is reviewed de novo. Speaks v. Kruse, 445 F.3d 396, 399 (5th Cir.2006). Only under "extraordinary circumstances" will we reverse the denial of a preliminary injunction. White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir.1989).

III

A

The Residents assert that the district court erred in dismissing their § 1983 claim against HANO, which alleged violations of § 1437p. They argue that § 1437p grants them a privately enforceable federal right to prevent the demolition of their housing developments.

Section 1983 permits private individuals to sue state actors to enforce constitutional rights as well as rights created by federal statutes. See Johnson v. Housing Auth. of Jefferson Parish, 442 F.3d 356, 359 (5th Cir.2006). However, federal statutes must unambiguously confer substantive rights upon a class of beneficiaries in order to be enforced through § 1983. Id. Whether such rights have been conferred depends on Congressional intent, as indicated by the text and structure of the statute. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285-86, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). The statutory language must create an individual entitlement, with the clear emphasis on the benefitted class rather than on the person or entity regulated. Id. at 287, 122 S.Ct. 2268. We employ a three-part test articulated by the Supreme Court to determine whether Congress intended to create a privately enforceable right: "(1) Congress must have intended that the provision in question benefit the private plaintiff; (2) the right assertedly protected by the statute must not be so `vague and amorphous' that its enforcement would strain judicial competence; and (3) the statute must unambiguously impose a binding obligation on the states, with the asserted right couched in mandatory rather than precatory terms." Johnson, 442 F.3d at 360 (citing Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997)).

The Supreme Court has emphasized the narrowness of this doctrine, rejecting the notion that "anything short of an unambiguously conferred right" will support a cause of action under § 1983. Gonzaga, 536 U.S. at 283, 122 S.Ct. 2268. As we have previously observed, the Court has taken an increasingly restrictive view of whether statutes create federal rights such that "very few statutes are held to confer rights enforceable under § 1983." Johnson, 442 F.3d at 360.

To determine whether § 1437p fits within this narrow doctrine, some background information about this statute is necessary. The U.S. Housing Act of 1937 is a federal grant-in-aid program. See Edwards v. Dist. of Columbia, 821 F.2d 651, 652 (D.C.Cir.1987). To receive federal funds, local public housing agencies are required to comply with various conditions. Id. Section 1437p governs...