Galveston Open Gov't Project v. U.S. Dep't of Hous. & Urban Dev., Civil Action No. 3:13–CV–00439.

CourtUnited States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
Writing for the CourtGREGG COSTA, District Judge.
Citation17 F.Supp.3d 599
Decision Date30 April 2014
Docket NumberCivil Action No. 3:13–CV–00439.

17 F.Supp.3d 599


Civil Action No. 3:13–CV–00439.

United States District Court, S.D. Texas, Galveston Division.

Signed April 30, 2014.

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Emily Foster, Lori Laird, Shari Goldsberry, Goldsberry & Associates PLLC, League City, TX, for Plaintiffs.

Lesley R. Farby, U.S. Dept of Justice, Washington, DC, Benjamin Lindberg Dower, Nancy K. Juren, Office of the Texas Attorney General, Austin, TX, Keith Edward Wyatt, Office of U.S. Attorney, Carla Jean Cotropia, Mills Shirley LLP, Houston, TX, Donald S. Glywasky, Office of City Attorney, Galveston, TX, for Defendants.


GREGG COSTA, District Judge.

Given the number of public issues that end up in federal court, one could understandably think that just about anyone may sue over just about anything. But the Constitution only empowers federal courts to decide “cases” and “controversies.” U.S. Const. art. III, § 2, cl. 1. “ ‘One of the controlling elements in the definition of a case or controversy under Article III’ is standing.” Hein v. Freedom From Religion Foundation, Inc., 551 U.S. 587, 598, 127 S.Ct. 2553, 168 L.Ed.2d 424 (2007) (quoting ASARCO, Inc. v. Kadish, 490 U.S. 605, 613, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (Kennedy, J.)). Standing, which requires that a person bringing a lawsuit faces an actual or imminent injury that a successful suit could redress, “is founded in concern about the proper—and properly limited—role of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975).

Standing is the preliminary question in this lawsuit brought by individuals and the Galveston Open Government Project (GOGP) seeking to enjoin the reconstruction of Galveston public housing destroyed by Hurricane Ike.

I. Background

A. The Plan to Rebuild Public Housing

More than five years have passed since Hurricane Ike wreaked devastation on the

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City of Galveston. Ike's winds exceeded 100 mph and its waters flooded downtown streets with more than ten feet of water. In yet another display of the City's historic resilience, homes and businesses have been rebuilt, tourists have returned, and life has largely returned to normal. But the rebuilding continues. Just this month, the 166–year–old St. Mary Cathedral Basilica reopened for Easter Mass after extensive repairs to fix damage from the hurricane.

One type of housing has not yet been rebuilt. In addition to the damage it caused to private homes, businesses, churches, and even the federal courthouse where this Court sits, Ike also destroyed 569 of the 942 public housing units that existed on the island. The destroyed units were located at four sites: Magnolia Homes, Oleander Homes, Palm Terrace, and Cedar Terrace. What to do in response to the destroyed public housing has generated significant public controversy, and now this lawsuit.

Money is not the problem. The federal government appropriated billions of dollars in hurricane-relief funds to affected areas in thirteen States for “disaster relief, long-term recovery, and restoration of infrastructure, housing, and economic revitalization.” Consolidated Security, Disaster Assistance, and Continuing Appropriations Act, 2009, Pub.L. No. 110–329, 122 Stat. 3574. The housing funds would be distributed pursuant to the Housing and Community Development Act of 1974, which is aimed at providing decent housing for persons of low and moderate income. As is typically the case with federal public housing funds, most of these funds would flow to state and local agencies via grants from the Department of Housing and Urban Development (HUD). Texas Governor Rick Perry designated the Texas General Land Office (Land Office) as the state agency charged with distributing these funds within Texas and ensuring that funding recipients comply with applicable requirements.

The Galveston Housing Authority (GHA) is the local public housing agency that is seeking to use the hurricane relief funds to rebuild public housing on the island. Its proposal calls for developing 144 public housing units on the former sites of Cedar Terrace and Magnolia Homes as part of mixed-income developments in which approximately half of the units will be private, market-rate residences. In addition, the plan provides for 385 “scattered site” public housing properties of which 50 sites might be developed outside the City of Galveston, on the mainland of Galveston County. See GHA Reconstruction Plan,Galveston Housing Authority, (last visited Apr. 24, 2014).

B. This Lawsuit

The GOGP, an organization that “was organized to examine and critique local government and suggest ways to ‘improve its accountability to the voters,’ ” Plfs.' Second Amended Complaint, Docket Entry No. 81 ¶ 12, and a number of individual plaintiffs filed this lawsuit seeking to enjoin the rebuilding of units at Cedar Terrace and Magnolia Homes. A number of government agencies are named as defendants: the GHA; the City of Galveston; HUD and its Secretary, Shaun Donovan (collectively “the Federal Defendants”); and the Land Office and Texas Department of Housing and Community Affairs (collectively “the State Defendants”).1

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The current pleading asserts claims under the Constitution of the United States for “intentionally perpetuat[ing] and refus[ing] to disestablish racial segregation in the City of Galveston and Galveston County”; claims for racial and disability discrimination under Titles VI and VIII of the Fair Housing Act (FHA); and claims against the Federal Defendants under the Administrative Procedure Act for violation of HUD regulations and Executive Orders. Docket Entry No. 81 ¶¶ 39–51. Plaintiffs filed an application for a temporary restraining order. Docket Entry No. 51. The Court denied that request, noting both that the application did not include evidence sufficient to establish a likelihood of success on the merits and that irreparable injury was not shown given uncertainty concerning the status of construction and the availability of future relief to remedy any discriminatory effect that is proven. See Minute Entry for Feb. 18, 2014. Plaintiffs have since filed a motion for preliminary injunction with includes evidentiary support and to which the Defendants have now responded. Docket Entry No. 58.

But before the Court confronts the motion for preliminary injunction, the Court must decide the threshold standing challenge all Defendants raise in Rule 12 motions to dismiss.2 Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 93–94, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998).

II. Analysis

A. The Law of Standing

The standing requirement has various sources. As mentioned above, the most fundamental source is the Constitution's limit on the jurisdiction of the federal courts. Additional requirements may be found in statutes that restrict the type of individuals who may bring suit or in judicially-created “prudential” rules of self-restraint. See Warth v. Seldin, 422 U.S. 490, 498–501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) (discussing and contrasting the constitutional and prudential standing requirements). When it comes to claims under the FHA, however, Plaintiffs must meet only the constitutional requirements because Congress intended FHA standing to “extend[ ] to the full limits of Article III.”3

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NAACP v. City of Kyle, Tex., 626 F.3d 233, 237 (5th Cir.2010) (citing Havens Realty Corp. v. Coleman, 455 U.S. 363, 372, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) ).

To meet the constitutional minimum for standing, a plaintiff has the burden to establish the following:

First, the plaintiff must have suffered an “injury in fact”—an invasion of a legally protected interest which is (a) concrete and particularized; and (b) “actual or imminent, not ‘conjectural’ or ‘hypothetical.’ ” Second, there must be a causal connection between the injury and the conduct complained of—the injury has to be “fairly trace[able] to the challenged action of the defendant, and not ... th[e] result [of] the independent action of some third party not before the court.” Third, it must be “likely,” as opposed to merely “speculative,” that the injury will be “redressed by a favorable decision.”

Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) ); Summers v. Earth Island Inst., 555 U.S. 488, 493, 129 S.Ct. 1142, 173 L.Ed.2d 1 (2009) (stating that plaintiff “bears the burden of showing that he has standing for each type of relief sought”). This “law of Article III standing, which is built on separation-of-powers principles, serves to prevent the judicial process from being used to usurp the powers of the political branches.” Clapper v. Amnesty Int'l USA, ––– U.S. ––––, 133 S.Ct. 1138, 1146, 185 L.Ed.2d 264 (2013). Requiring a...

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