House the Homeless, Inc. v. Widnall

• Decision Date: 21 August 1996
• Docket Number: 96-50265,Nos. 96-50065,s. 96-50065
• Citation: 94 F.3d 176
• Parties: HOUSE THE HOMELESS, INC., A Non-Profit Organization; Richard R. Troxell, President; Chris Lyne, Plaintiffs-Appellants, v. Sheila E. WIDNALL, Sec. Air Force, in her official capacity as Secretary of the United States Air Force, et al., Defendants. Jesus Garza, In His Official Capacity as City Manager of the City of Austin, Defendant-Appellee. HOUSE THE HOMELESS, INC., A Non-Profit Organization; Richard R. Troxell, President; Chris Lyne, Plaintiffs-Appellants, v. Sheila E. WIDNALL, Sec. Air Force, in her official capacity as Secretary of the United States Air Force; William J. Perry, Honorable, In His Official Capacity as Secretary of the Department of Defense; Jesus Garza, In His Official Capacity as City Manager of the City of Austin, Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 176

94 F.3d 176

HOUSE THE HOMELESS, INC., A Non-Profit Organization;

Richard R. Troxell, President; Chris Lyne, Plaintiffs-Appellants, v. Sheila E. WIDNALL, Sec. Air Force, in her official capacity

as Secretary of the United States Air Force, et

al., Defendants.

Jesus Garza, In His Official Capacity as City Manager of the

City of Austin, Defendant-Appellee.

HOUSE THE HOMELESS, INC., A Non-Profit Organization;

Richard R. Troxell, President; Chris Lyne, Plaintiffs-Appellants, v. Sheila E. WIDNALL, Sec. Air Force, in her official capacity

as Secretary of the United States Air Force; William J.

Perry, Honorable, In His Official Capacity as Secretary of

the Department of Defense; Jesus Garza, In His Official

Capacity as City Manager of the City of Austin, Defendants-Appellees.

Nos. 96-50065, 96-50265.

United States Court of Appeals, Fifth Circuit.

Aug. 21, 1996.

Cecilia M. Wood, Austin, TX, for House The Homeless, Inc., Richard R. Troxell, Chris Lyne.

William T. Deane, Patrick G. Rehmet, Andrew Martin, Austin, TX, for Jesus Garza.

Robert S. Greenspan, U.S. Department of Justice, Civil Division, Washington, DC, Edward Himmelfarb, United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, William T. Deane, Patrick G. Rehmet, Andrew Martin, Austin, TX, for Sheila E. Widnall, William J. Perry.

Appeals from the United States District Court for the Western District of Texas.

Before BENAVIDES, STEWART and DENNIS, Circuit Judges.

BENAVIDES, Circuit Judge:

Plaintiffs-Appellants appeal the district court's order and partial judgment denying Plaintiffs-Appellants' request for a temporary restraining order and preliminary injunction and dismissing Plaintiffs-Appellants' claims against Defendant-Appellee City of Austin, and the district court's order and final judgment dismissing Plaintiffs-Appellants' claims against all remaining Defendants-Appellees. We affirm.

BACKGROUND

In 1942, the Air Force ¹ and the City of Austin ("City") negotiated an agreement whereby the Air Force used $466,000 supplied by the City to purchase 2,892 acres for a military air base, which became Bergstrom Air Force Base ("Bergstrom"). The terms of the agreement, set forth in a "night letter," included the following:

TITLE TO VEST IN THE UNITED STATES AND TO BE CONVEYED TO CITY OF AUSTIN WHEN NO LONGER NEEDED BY GOVERNMENT AFTER PRESENT WAR SUBJECT TO RIGHT OF RECAPTURE OF USE IN ANY FURTHER FUTURE EMERGENCY

ANY STRUCTURES ERECTED BY GOVERNMENT WILL REMAIN PROPERTY OF UNITED STATES

RUNWAYS[,] ROADS[,] ETC WHICH ARE NOT SALVAGEABLE WILL REMAIN IN PLACE

LANDS WILL BE TURNED OVER TO CITY IN PRESENT CONDITION EXCEPT AS TO EXISTING BUILDINGS WHICH ARE TO BE DEMOLISHED

GOVERNMENT TO HAVE OPTION OF LEAVING OF LANDS PART OR ALL STRUCTURES TO BE ERECTED IN LIEU OF RESTORATION.

Then on February 27, 1947, the Austin City Council passed a resolution declaring that the City wanted the Air Force to continue using Bergstrom as an air base, stating that "only upon abandonment of Bergstrom Field as a permanent Army [Air Force] Air Base should the City of Austin request or demand that full legal and equitable title to said lands, together with all improvements ... revert to and vest in the City of Austin." ²

In April 1991, Bergstrom was recommended for closure on September 30, 1993. Prior to the closure, the Air Force submitted virtually all of the after acquired property, i.e. 324 acres of land that was purchased with federal funds after the 1942 land purchase and all improvements on the total land acreage, to the Department of Housing and Urban Development ("HUD") for evaluation under the McKinney Act. ³ HUD determined that this property was unsuitable for use by the homeless, publishing its findings. See 58 Fed.Reg. 9208, 9215 (1993); 58 Fed.Reg. 15158 (1993); 58 Fed.Reg. 45353 (1993).

Bergstrom was closed on September 30, 1993, whereupon the City immediately took physical possession and control of the land. The Air Force was unable to execute a quitclaim deed immediately, however, due to the environmental cleanup requirements under § 120(h) of the Comprehensive Environmental Response, Compensation and Liability Act of 1980 ("CERCLA"). Therefore, the Air Force entered into a lease with the City under which the Air Force reiterated its intent to execute a quitclaim deed upon completion of the CERCLA obligations, reserving Plaintiffs-Appellants approached both the Air Force and the City about its concern over the disposition of the land, the proposed City airport, and funding for a detoxification program for the homeless on the improved land. The Air Force informed Plaintiffs-Appellants that because it no longer owned the land, it could not interfere with the City's ownership and use. In January 1995, the City issued a Request for Proposal to use some of the improvements on the land as interim transitional housing for homeless individuals or families. ⁴ The City received only one response, which was deemed non-responsive. Although Plaintiffs-Appellants wrote to express their support in a proposal submitted by another organization, they did not propose their own plan to use the land improvements.

its right to access the land in order to complete the environmental cleanup.

On December 11, 1995, Plaintiffs-Appellants ⁵ filed suit under Title V of the Stewart B. McKinney Homeless Assistance Act ("McKinney Act"), 42 U.S.C. § 11411, seeking injunctive relief to prevent the removal and/or destruction of housing stock on 2,892 acres of land, which was the former Bergstrom. ⁶ Plaintiffs-Appellants originally filed suit against the United States Air Force and the Department of Defense ("Federal Defendants"), later joining the City as a party defendant.

An evidentiary hearing was held on Plaintiffs-Appellants' Application for Temporary Restraining Order and Preliminary Injunction on December 19, 1995, after which the district court denied both. The court concluded that Plaintiffs-Appellants had failed to show a likelihood of success on the merits of their claim, and that the harm that would befall the City if the preliminary injunction were granted would far outweigh any harm to Plaintiffs-Appellants in denying it. The court found that the City maintained an equitable reversionary interest in the land and its improvements, subject only to a limited lease with the Air Force required under CERCLA to remediate environmental hazards on the land, which the court found did not disrupt the City's reversionary interest. The court also noted that the City could face delay damages of over $73,000,000 if a one-year injunction were granted.

On January 9, 1996, the district court granted the City's motion to dismiss, holding that the McKinney Act did not apply to the City because it was not a federal agency, and that the McKinney Act did not apply to the land because it was subject to reversion. See 24 C.F.R. § 581.2(b)(9). Then on March 20, 1996, the court granted a motion to dismiss filed by the federal defendants, concluding that the land was not "unutilized" or "underutilized" prior to closure of the base, and again holding that the disputed land and improvements were exempted from the McKinney Act as property subject to a reversionary interest. Final judgment was entered the same day. Plaintiffs-Appellants filed an interlocutory appeal of the denial of injunctive relief and the City's dismissal, 96-50065, and later an amended appeal from final judgment, 96-50265. Both appeals have been consolidated. ⁷

THE PRELIMINARY INJUNCTION

A preliminary injunction may be granted only if the movant can establish four requirements:

First, the movant must establish a substantial likelihood of success on the merits. Second, there must be a substantial threat of irreparable injury if the injunction is not granted. Third, the threatened injury to the plaintiff must outweigh the threatened injury to the defendant. Fourth, the granting of the preliminary injunction must not disserve the public interest.

Cherokee Pump & Equipment Inc. v. Aurora Pump, 38 F.3d 246, 249 (5th Cir.1994) (citations omitted). We have frequently cautioned that "[a] preliminary injunction is an extraordinary remedy," and "[t]he decision to grant a preliminary injunction is to be treated as the exception rather than the rule." Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir.1985). "The decision to grant or deny a preliminary injunction lies within the discretion of the district court and will be reversed on appeal only upon a showing of abuse of discretion." DSC Communications Corp. v. DGI Technologies, Inc., 81 F.3d 597, 600 (5th Cir.1996) (citing Blue Bell Bio-Medical v. Cin-Bad, Inc., 864 F.2d 1253, 1256 (5th Cir.1989)).

The district court found that Plaintiffs-Appellants failed to demonstrate a substantial likelihood that they would succeed on the merits, concluding that neither Federal Defendants nor the City were subject to the regulations of the McKinney Act, which specifically exempts "property interest subject to reversion" from coverage. See 24 C.F.R. § 581.2(b)(9). In addition, the court found that Plaintiffs-Appellants failed to show that the threatened injury outweighs the damage that an injunction would cause the City, noting that a delay in the City's construction of the airport would produce damages in excess of $73,000,000. We agree with the district court's conclusions. Plaintiffs-Appellants have not presented any evidence of their ability to propose, implement, or finance a homeless program on any part of the land and/or its improvements. On the other hand, Defendants-Appellants have clearly shown that the City and its taxpayers would incur severe damages if a preliminary injunction were granted. Because the threatened injury to Plaintiffs-Appellants does not outweigh the threatened injury to the City, we find that the district court did not abuse its discretion in denying Plaintiffs-Appellants' motion for a preliminary...