Resident Council of Allen Parkway Village v. U.S. Dept. of Housing & Urban Development

Decision Date13 January 1993
Docket NumberNo. 91-2454,91-2454
Citation980 F.2d 1043
PartiesRESIDENT COUNCIL OF ALLEN PARKWAY VILLAGE, et al., Plaintiffs-Appellees, v. UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Defendants-Appellants.
CourtU.S. Court of Appeals — Fifth Circuit

Gabrielle K. McDonald, Arthur L. Walker, Jr., Austin, Tex., and Cindy A. Lopez, Griggs & Harrison, Houston, Tex., for Housing Authority of City of Houston, et al.

Mark W. Pennak and Michael Jay Singer, Attys., Appellate Staff, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for U.S. Housing & Urban Development.

Cornelius D. Perry; and Fred Orleans, Mirrer and Orleans, Houston, Tex., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Texas.

Before KING, JOHNSON and DUHE, Circuit Judges.

KING, Circuit Judge:

This appeal arises from a lawsuit filed by residents of Allen Parkway Village, a Houston public housing project, to prevent the proposed demolition of that project. The Housing Authority of the City of Houston appeals the district court's April 4, 1991 order awarding permanent injunctive relief against it and the United States Department of Housing and Urban Development. Because we conclude that the residents of Allen Parkway Village have not stated a claim for which such relief could be granted and are not, at this time, entitled to judicial review under the Administrative Procedure Act, we reverse the district court's April 4, 1991 order granting permanent injunctive relief and remand with instructions to dismiss the residents' complaint.

I. BACKGROUND

Allen Parkway Village (APV), which was built in the 1940s, is one of Houston's oldest public housing projects. It is owned and operated by the Housing Authority of the City of Houston (HACH), a state agency established to provide low income persons with safe and affordable housing. See TEX.LOC.GOV'T CODE ANN. § 392.011 (Vernon 1988). Under the terms of HACH's long term annual contributions contract with the United States Department of Housing and Urban Development (HUD), HACH receives federal funds to subsidize low-income housing.

In 1979, under the Public Housing Urban Initiative Program, HUD provided $10 million to HACH for the modernization of APV. The funds were specifically reserved for HACH's use. See 24 C.F.R. Part 868 (1979). During the next five years, HACH used approximately $1.5 million of the federal modernization funds.

In August 1984, pursuant to the procedures set forth in 42 U.S.C. § 1437p, HACH submitted an application to HUD to demolish APV. According to HACH, demolition of APV was necessary because the housing project was "obsolete," "physically deteriorated," and "located in a neighborhood which is blighted." The demolition application also contained, as required by § 1437p, a relocation plan for residents and a replacement housing plan to compensate for the loss of APV's 1,000 housing units.

Before HUD had acted on HACH's application to demolish APV and before any demolition had occurred, on December 27, 1987, Congressmen Marvin Frost and Mickey Leland introduced an amendment to an appropriations bill for HUD. The Frost-Leland Amendment, which was passed by Congress, provides as follows:

None of the funds provided by this Act or any other Act for any fiscal year shall be used for demolishing George Loving Place, at 3320 Rupert Street, Edgar Ward Place, at 3901 Holystone, Elmer Scott Place, at 2600 Morris, in Dallas, Texas, or Allen Parkway Village, 1600 Allen Parkway, in Houston, Texas.

United States Department of Housing and Urban Development--Independent Agencies Appropriations Act, 1988, Pub.L. No. 100-202, Title IV, § 415, 101 Stat. 1329-213 (emphasis added).

Two years after the passage of the Frost-Leland Amendment, on January 25, 1989, the Resident Council of Allen Parkway Village (Resident Council) and two individual residents of APV (collectively, Plaintiffs) filed suit against HUD and HACH in federal district court. The purpose of the suit was to enforce the Frost-Leland Amendment and to prevent both HUD and HACH from using federal funds to "prepare, revise and advance" the APV demolition application. The Plaintiffs asserted jurisdiction under 28 U.S.C. § 1331 and sought declaratory and injunctive relief under the Frost-Leland Amendment itself, under 42 U.S.C. § 1983, and under the Administrative Procedure Act, 5 U.S.C. § 501 et seq.

The district court granted the Plaintiffs' request for a preliminary injunction against HACH on April 13, 1989. No preliminary injunction was requested against HUD, however, because HUD had agreed to keep the Plaintiffs advised of the progress of HACH's demolition application. In granting the preliminary injunction against HACH, the district court first held that the Plaintiffs had "standing" under 42 U.S.C. § 1983 to bring this action. The district court noted that implicit in 42 U.S.C. § 1437p(b) "is the right of the tenant, or the tenant council, to bring suit to protect the status of residents who would be affected by any demolition and displacement" of a public housing facility. The district court further reasoned that, once it is established that a plaintiff is a resident of a public housing facility, "that tenant may enforce any federal statutory right appertaining to that status and the facility, particularly where the activity complained of falls into an area protected or regulated by statute." The district court then defined the phrase "for demolishing" in the Frost-Leland Amendment as referring not only to the physical act of destruction, but also "to the process by which destruction is commenced and finished." Id. Finally, because it concluded that the Plaintiffs were likely to prevail on their § 1983 claim, the district court granted their application for a temporary injunction.

On December 5, 1989, HUD returned HACH's application for the demolition of APV as unapproved. In the letter returning the application, HUD reminded HACH that it had a legal obligation to operate the development as public housing. HUD also informed HACH that federal funds were available for modernization of APV and set a deadline for HACH to decide on future development. As HUD had requested, HACH submitted its plan for developing APV on January 12, 1990. The plan called for either new construction or comprehensive rehabilitation of 150 units. The remaining units, according to the plan submitted by HACH, were "slated for removal." After this plan was submitted, HUD requested that HACH take immediate action (i.e., within 90 days) to furnish a formal application for approval with respect to any long term modernization, demolition and/or disposition of APV. HACH never responded to HUD's request.

The district court granted the permanent injunction at issue in this appeal on April 4, 1991. In its order, the district court first held that, despite HUD's decision to return HACH's application for demolition as unapproved, the case was not moot. The district court specifically stated that "[t]here are live issues in this case as long as HACH fails to use allocated federal funds for their intended purposes, maintenance and renovation of APV, and simultaneously insists on spending the allocated funds on studies that are designed to defeat those purposes." The district court then proceeded to the merits of the Plaintiffs' claim for declaratory and injunctive relief and reaffirmed its prior definition of the phrase "for demolishing" in the Frost-Leland Amendment as including studying, preparing, or taking steps towards demolition. Ultimately, the district court:

(1) prohibited HACH from spending any federal funds on any activity that "promotes, advances, or explores the total demolition of APV," including activity designed to establish that rehabilitation and renovation of part or all of APV are useless;

(2) ordered HACH to furnish an accounting of all expenditures of federal funds allocated to HACH since 1979;

(3) ordered HACH to present, within 60 days, a plan to use federally appropriated funds for the repair and upgrading of all or part of APV;

(4) granted the permanent injunction requested to the full extent of the Frost-Leland Amendment;

(5) ordered HUD to set aside the funds remaining from the $10 million appropriation to HACH in 1979;

(6) ordered HACH to submit, under separate cover, an accounting of all expenditures of funds set aside for the repair and renovation of APV as well as all rent subsidies that are now and have been allocated and paid to HACH for the APV apartments; and

(7) ordered all discovery associated with the 42 U.S.C. § 1983 claims be completed within 90 days.

On May 2, 1991, HACH filed a timely notice of appeal from the district court's order. HUD did not file any such notice. On August 27, 1991, however, this court granted HUD's uncontested motion to be realigned as an appellant in this court for purposes of briefing.

II. JURISDICTIONAL PROBLEMS

Before we review the district court's April 4, 1991 order granting permanent injunctive relief against HACH and HUD, we address two jurisdictional problems. The first jurisdictional problem concerns the district court's power to award injunctive and declaratory relief. It requires us to decide whether HUD's decision to return the APV demolition application as unapproved renders the controversy between the Plaintiffs and HUD and HACH moot. The second such problem concerns our appellate jurisdiction, and in particular, our ability to review that portion of the district court's order directed at HUD.

A. The Effect of HUD's Decision to Return the Demolition Application

In district court, HUD and HACH contended that the Plaintiffs' request for declaratory and injunctive relief was moot. They argued that the passage of time, and particularly, HUD's decision to return the APV demolition application as unapproved, eliminated any justiciable controversy. For the...

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