NY City Envtl. Justice Alliance v. Giuliani

• Decision Date: 15 July 1999
• Docket Number: Docket No. 99-7713
• Citation: 214 F.3d 65
• Parties: (2nd Cir. 2000) NEW YORK CITY ENVIRONMENTAL JUSTICE ALLIANCE, MORE GARDENS! COALITION, NEW YORK CITY COMMUNITY GARDEN COALITION, CHERRY TREE GARDEN, RAFAEL BUENO, ALICE MORRIS, ELIZABETH BUTLER, RICHARD SMITH, and CARMEN PABON, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. RUDOLPH W. GIULIANI, Mayor of the City of New York, WILLIAM J. DIAMOND, Commissioner of Citywide Administrative Services, and THE CITY OF NEW YORK, Defendants-Appellees. August Term 1998 Argued:
• Court: U.S. Court of Appeals — Second Circuit

Page 65

214 F.3d 65 (2nd Cir. 2000)

NEW YORK CITY ENVIRONMENTAL JUSTICE ALLIANCE, MORE GARDENS! COALITION, NEW YORK CITY COMMUNITY GARDEN COALITION, CHERRY TREE GARDEN, RAFAEL BUENO, ALICE MORRIS, ELIZABETH BUTLER, RICHARD SMITH, and CARMEN PABON, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. RUDOLPH W. GIULIANI, Mayor of the City of New York, WILLIAM J. DIAMOND, Commissioner of Citywide Administrative Services, and THE CITY OF NEW YORK, Defendants-Appellees.

Docket No. 99-7713

August Term 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Argued: July 15, 1999

Decided: August 13, 1999

Opinion: May 31, 2000

Plaintiffs appeal from a June 4, 1999 interlocutory order of the United States District Court for the Southern District of New York (Allen G. Schwartz, District Judge) denying their motion for a preliminary injunction against the City of New York; its Mayor, Rudolph W. Giuliani; and its Commissioner of Citywide Administrative Services, William J. Diamond. The plaintiffs sought to restrain the City from selling or bulldozing any of 1,100 City-owned parcels comprising approximately 600 community gardens on the grounds, inter alia, that any such sale or changed use of the City-owned parcels would have a disproportionately adverse impact on the City's African-American, Asian-American, and Hispanic residents in violation of regulations promulgated by the United States Environmental Protection Agency to implement Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000d et seq. The district court denied the plaintiffs' motion for an injunction based on its conclusion that they had failed to demonstrate a likelihood of success on the merits.

Affirmed.

FOSTER S. MAER, Puerto Rican Legal Defense & Education Fund, Inc., New York, NY (Sara E. Rios, Christopher J. Arias-Piranio, Puerto Rican Legal Defense & Education Fund, New York, NY, Julie H. Hurwitz, Quita A. Sullivan, N.L.G. Sugar Law Center for Economic and Social Services, Detroit, MI, Alan Levine, New York, NY, of counsel, on the brief), for Plaintiffs-Appellants.

SUSAN E. AMRON, Assistant Corporation Counsel of the City of New York, New York, NY (Michael D. Hess, Corporation Counsel of the City of New York, Pamela Seider Dolgow, Christopher Reo, Christopher King, John Hogrogian, Assistant Corporation Counsel of the City of New York, New York, NY, of counsel, on the brief), for Defendants-Appellees.

Before: WALKER, LEVAL, and SACK, Circuit Judges.

SACK, Circuit Judge:

On June 4, 1999, the United States District Court for the Southern District of New York (Allen G. Schwartz, District Judge) issued an interlocutory order denying the plaintiffs' motion for a preliminary injunction. See New York City Envtl. Justice Alliance v. Giuliani, 50 F. Supp. 2d 250 (S.D.N.Y. 1999) ("NYCEJA"). We affirm the order, albeit on grounds somewhat different from those relied upon by the district court.

BACKGROUND

In May 1999, the plaintiffs brought an action against the City of New York (the "City"); its Mayor, Rudolph W. Giuliani; and its Commissioner of Citywide Administrative Services, William J. Diamond, asking the district court, inter alia, to enjoin the City from selling or bulldozing any of 1,100 City-owned parcels (the "Lots") comprising approximately 600 community gardens. The Lots had been leased to individuals and community groups for development as gardens pursuant to the City's "Green Thumb" program.¹ According to the City, selling some of the Lots will permit construction of affordable housing, facilities for medical and related services and, perhaps, retail stores.

The plaintiffs allege, however, that the City's proposed sale or changed use of the Lots would have a disproportionately adverse impact on the City's African-American, Asian-American, and Hispanic residents in violation of regulations promulgated by the United States Environmental Protection Agency (the "EPA") to implement Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§2000d et seq. The plaintiffs further assert that because the City has accepted more than $9,000,000 in grants from the United States Department of Housing and Urban Development ("HUD") pursuant to the Housing and Community Development Act (the "HCDA"), 42 U.S.C. §§ 5301 et seq., to assist residents in creating and maintaining gardens on the Lots, any proposed sale or changed use would constitute a violation of the HCDA and the regulations promulgated thereunder.

The district court concluded that the plaintiffs had shown that they would suffer irreparable harm in the absence of a preliminary injunction but that they had failed to demonstrate a likelihood of success on the merits of their claims. Specifically, the court held that Section 602 of the Civil Rights Act of 1964, 42 U.S.C. § 2000d-1, and the EPA regulations issued pursuant thereto, 40 C.F.R. § 7.35(b), did not give rise to a private cause of action and that the plaintiffs therefore could not successfully bring suit under them.² See NYCEJA, 50 F. Supp. 2d at 253-54. The court further held that the HUD regulations set forth at 24 C.F.R. §570.505, promulgated under the HCDA, were inapplicable to the Lots because no individual Lot received the $25,000 of federal government funding necessary for the regulations to apply. See NYCEJA, 50 F. Supp. 2d at 254. Neither the EPA nor HUD sought to be heard in the district court or this Court, and neither agency, so far as we know, has taken any action in response to the City's planned sale of the Lots.

On August 13, 1999, we affirmed the district court's denial of the plaintiffs' motion for a preliminary injunction by summary order, New York City Envtl. Justice Alliance v. Giuliani, 184 F.3d 206 (2d Cir. 1999), stating that an opinion would follow. See id. This is that opinion.

DISCUSSION

I. Standard of Review and Showing Required for Preliminary Injunction

"We review a district court's denial of a preliminary injunction motion for abuse of discretion. An error of law or fact would constitute an abuse of discretion, but we are nevertheless free to affirm an appealed decision on any ground which finds support in the record." Beal v. Stern, 184 F.3d 117, 122 (2d Cir. 1999) (citations and internal quotation marks omitted).

As the district court correctly observed, where as here a party seeks a preliminary injunction against "government action taken in the public interest," that party must demonstrate "[1]that it will suffer irreparable harm and [2] that it is likely to succeed on the merits." NYCEJA, 50 F. Supp. 2d at 251 (citing Velazquez v. Legal Servs. Corp., 164 F.3d 757 (2d Cir. 1999)). In analyzing the first element in the instant case, the district court decided "as a threshold matter, that plaintiffs ha[d] demonstrated that they may well suffer irreparable harm in the absence of a preliminary injunction." Id. at 252. That conclusion is not disputed on appeal.

As for the second element, the district court found that the "plaintiffs ... ha[d] failed to demonstrate a likelihood of success on the merits of their case," id. at 255, and on that basis it denied their motion for a preliminary injunction. It is to this element that we now turn.

II. Likelihood of Success on the Merits

The plaintiffs have the burden of demonstrating a likelihood of success on the merits of each of their claims under the EPA regulations and the HUD regulations. See Able v. United States, 44 F.3d 128, 130 (2d Cir. 1995). If they do not present sufficient facts or statistics to back their assertions, the "paucity of the evidence in the record" will prevent us from holding that they have shown a likelihood of success. See Beal, 184 F.3d at 129.

A. EPA Regulations under Title VI

1. Plaintiffs' Failure to Make a Prima Facie Showing of Adverse Disparate Impact.

a) Causation. The EPA regulation promulgated pursuant to Title VI that the plaintiffs allege the sale of the Lots would violate reads:

A recipient shall not use criteria or methods of administering its program which have the effect of subjecting individuals to discrimination because of their race, color, national origin, or sex, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, national origin, or sex.

40 C.F.R. §7.35(b). In support of their motion for a preliminary injunction, the plaintiffs presented the district court with a substantial record, much of which tended to support their position that community gardens are highly beneficial to minority³ communities and that the elimination of gardens would therefore have an adverse impact on some aspects of the lives of neighborhood residents.⁴

The plaintiffs understood, of course, that they were required to do more than demonstrate to the district court's satisfaction that the sale of garden lots was a bad idea. In order to establish a prima facie case of adverse disparate impact, they had to allege a causal connection between a facially neutral policy and a disproportionate and adverse impact on minorities. See Brown v. Coach Stores, Inc., 163 F.3d 706, 712 (2d Cir. 1998) (Title VII case); New York Urban League, Inc. v. New York, 71 F.3d 1031, 1036 (2d Cir. 1995) (courts in Title VI disparate impact cases look to Title VII cases for guidance). Accordingly, the plaintiffs undertook to show a causal relationship between the City's proposed sale - the facially neutral action - and an adverse disparate impact that they asserted the sale would have on certain kinds of outdoor recreational space available to minority communities.

The plaintiffs did not, in our view, submit adequate proof of causation to show a likelihood of success on the merits of their disparate impact claim. Much of their proof either concerned the sale of Lots that were removed from the auction block during the course of the litigation, or consisted of broad conclusory statements rather than evidence of...