Croskey Street Concerned Citizens v. Romney, 71-2129.

• Decision Date: 25 April 1972
• Docket Number: No. 71-2129.,71-2129.
• Parties: CROSKEY STREET CONCERNED CITIZENS, Lyra Fortune, on her own behalf and on behalf of others similarly situated, Appellants, Resident Advisory Board of Philadelphia, (Intervening Plaintiff), v. George ROMNEY, Secretary of Housing and Urban Development, et al.
• Court: U.S. Court of Appeals — Third Circuit

459 F.2d 109 (1972)

CROSKEY STREET CONCERNED CITIZENS, Lyra Fortune, on her own behalf and on behalf of others similarly situated, Appellants, Resident Advisory Board of Philadelphia, (Intervening Plaintiff), v. George ROMNEY, Secretary of Housing and Urban Development, et al.

No. 71-2129.

United States Court of Appeals, Third Circuit.

Argued March 10, 1972.

Decided April 25, 1972.

Edwin D. Wolf, Lawyers Committee for Civil Rights Under Law, Philadelphia, Pa., for appellants.

Robert J. Sugarman, Dechert, Price & Rhoads, Philadelphia, Pa., for intervening plaintiff.

Walter S. Batty, Jr., Asst. U. S. Atty., Philadelphia, Pa., for Federal appellees.

Joseph Mistrano, Philadelphia, Pa., for appellee, Philadelphia Housing Authority.

Arthur R. Littleton, Morgan, Lewis & Bockius, Philadelphia, Pa., for appellee, Tollin Graboyes Co.

Before McLAUGHLIN, VAN DUSEN and ALDISERT, Circuit Judges.

OPINION OF THE COURT

McLAUGHLIN, Circuit Judge.

In this appeal the sole question now before us is whether the district court, 335 F.Supp. 1251, abused its discretion in refusing to issue a preliminary injunction against the defendants from proceeding with the construction of the Croskey Street North Philadelphia low rent housing project for the elderly and for federal assistance to it. However, along the way there must be some brief exposition so that the result here will be understandable.

Admittedly low rent housing for the elderly is badly needed in the areas involved and in Philadelphia generally. The theory advanced in the contention offered against this new construction is that it will increase the already heavy black population of the Croskey Street neighborhood. Actually in the H.U.D. plan the first four buildings comprise a total of 313 units which will be occupied largely by low income elderly persons and located in an area predominated by blacks. The fifth structure "Washington Square West" will have 360 units in what is predominantly a white or racially mixed area. The approval by H.U.D. of all this related housing is based upon what H.U.D. contends is a carefully balanced program fair to all of the Philadelphia citizens concerned, with H.U.D. recognizing the importance of the whole project to those people. H.U.D argues and represents that it has been and is a fundamental H.U.D. policy to make sure that this practice is fully performed by the Philadelphia Housing Authority and that through meticulous checking and rechecking, H.U.D. is satisfied that Philadelphia will live up to its commitment in this instance. Were it otherwise H. U.D.'s policy would be to cut off all further funds until an acceptable balancing project is built.

It should be noted here that H.U.D. says plainly that it accepts and is in full accord as far as it is relevant with the decision of this court in Shannon v. H. U.D., 436 F.2d 809 (1970). H.U.D. submits that its judgment in this litigation shows itself to be an informed one and that it thoroughly understands the area needs of low cost housing for the elderly. It realizes that the prime necessity for that might ordinarily outweigh the disadvantage of increasing racial concentration. But even so, it has lived up to its own regulations in insisting that the housing before us provides a balanced racial distribution.

H.U.D. clearly states that it recognizes the importance of this housing to the people affected. We need not pass on the merits of these assertions at this preliminary stage.

In this case the main plaintiff, Mrs. Fortune, is a fine neighborhood leader who is entitled to and is receiving the highest consideration for herself and all of the people she represents. As a witness she denied that their objection to the project had any racial implications. She properly and very clearly stated that she did not feel that there were too many black people and not enough white people living in her area. She did testify that her objection to the project was because "I think that it is too many of the same income bracket in the area, wherein we could have some with a higher income." The two sites that Mrs. Fortune likes are also in the North Philadelphia zone (where the Croskey building will be situated) which her attorney considers to be 95% black.

The Resident Advisory Board of Philadelphia, representing the public housing Philadelphia tenants and prospective tenants, was allowed by the district court to intervene as plaintiff. It has not appealed from the decision of the district court denying application of the other appellants to preliminarily enjoin the construction of the North Croskey Street housing.

It is self evident that the appellants asking for a preliminary injunction have completely failed to show that they will be irreparably harmed by the erection and stated use of the said building. They have not shown that the more than two thousand elderly persons waiting patiently for low income housing would not be grievously injured by the lack of the availability of this project. Up to now at least the effort to discard the H.U.D. plan to alleviate the shortage of low income elderly housing in Philadelphia is patently against the public interest.

Finally, we are not persuaded that appellants, on the basis of the preliminary record, have made a strong showing that they are likely to prevail on the merits at final hearing. Only very persuasive countervailing considerations should interfere with this H.U.D. attempt to help obtain decent low rent homes for a goodly number of Philadelphia's elderly who need them badly.

The judgment of the district court will be affirmed.

ALDISERT, Circuit Judge (concurring).

While I join in the opinion of the court, I offer these additional observations. Today this court limits its decision to the extremely narrow issue of whether the district court abused its discretion in refusing the request for a preliminary injunction.

Ours is an appellate, not a trial, court. And an appellate court has no authority to grant or to refuse a preliminary injunction. "It is to the discretion of the trial court and not to the appellate court, that the law has intrusted the power * * * to grant or dissolve an injunction, and the only question for an appellate court is: Does the proof clearly establish an abuse of that discretion by the trial court * * * for unless such abuse is clearly established, or an obvious error has occurred in the application of the law, or a serious and important mistake has been made in the consideration of the proof, the judgment of the trial court must be taken as presumptively correct." Stokes v. Williams, 226 F. 148 (3 Cir. 1915), cert. denied 241 U.S. 681, 36 S.Ct. 728, 60 L.Ed. 1234.

Allis-Chalmers Mfg. Co. v. White Consolidated Indus., Inc., 414 F.2d 506, 527 (3d Cir. 1969) (Dissenting Opinion). "This limited review is necessitated because the grant or denial of a preliminary injunction is almost always based on an abbreviated set of facts, requiring a delicate balancing of the probabilities of ultimate success at final hearing with the consequences of immediate irreparable injury which could possibly flow from the denial of preliminary relief. Weighing these considerations is the responsibility of the district judge; only a clear abuse of his discretion will justify appellate reversal." United States Steel Corp. v. Fraternal Ass'n of Steelhaulers, 431 F.2d 1046, 1048 (3d Cir. 1970); United States v. Ingersoll-Rand Co., 320 F.2d 509, 523 (3rd Cir. 1963).

The leading case of Virginia Petroleum Jobbers Ass'n v. Federal Power Commission, 104 U.S.App.D.C. 106, 259 F.2d 921 (1958), sets forth standards, which though promulgated for guidance in considering an application for a stay pending an appeal, constitute, in my view, practical guidelines for use by an appellate court in reviewing a denial of a preliminary injunction request of this nature:

1. Did the plaintiff make a strong showing that it is likely to prevail on the merits?

2. Did the plaintiff show that without such relief, it will be irreparably injured?

3. Would the grant of a preliminary injunction substantially have harmed other parties interested in the proceedings?

4. Where lies the public interest?

The best case made by the appellant in the district court was the argument that although H.U.D. had allegedly considered the project's impact upon the racial concentration in the area...