Jones v. United States Department of Housing & Urban Development

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 02-3940
___________

Maggie Jones; Cardelia Brown, *
*
Plaintiffs, *
*
Frances Fairchild; Janice Coleman; *
Wareen Ford, *
*
Plaintiffs/Appellants, *
*
Yvette Bell; Gloria Netter, *
Individually and on behalf of all others *
similarly situated, * Appeal from the United States
* District Court for the Eastern
Plaintiffs, * District of Missouri.
*
Vaughn Tenant Association, on behalf * [UNPUBLISHED]
of itself and its members; Annette *
Coleman; Elmerrine Smith; Brenda *
Scaife; Sherlonda Crawford; Angela *
Scott, Individually and on behalf of all *
others similarly situated; Frances Ivery; *
Charlene Moore, *
*
Plaintiffs/Appellants, *
*
v. *
*
United States Department of Housing *
and Urban Development; St. Louis *
Housing Authority, a Municipal *
Corporation, *
 *
Defendants/Appellees, *
*
Alan R. Ray, in his official capacity *
as Executive Director of the St. Louis *
Housing Authority; Jack Kemp, *
*
Defendants, *
*
Henry G. Cisneros, in his official *
capacity as Secretary of the United *
States Department of Housing and *
Urban Development; Victor De La *
Cruz, in his official capacity as *
Executive Director of the St. Louis *
Housing Authority; Cheryl A. Lovell, *
Executive Director of St. Louis *
Housing Authority; Mel Martinez, *
Secretary of Housing and Urban *
Development, *
*
Defendants/Appellees. *
___________

Submitted: May 14, 2003

Filed: June 25, 2003
___________

Before WOLLMAN and BEAM, Circuit Judges, and NANGLE,1 District Judge.
___________

PER CURIAM.

1
The Honorable John F. Nangle, United States District Judge for the Eastern
District of Missouri, sitting by designation.

-2-
 Residents of two housing projects in St. Louis filed separate actions2 in the
United States District Court for the Eastern District of Missouri against the St. Louis
Housing Authority (SLHA) and the United States Department of Housing and Urban
Development (HUD). The suits sought to enforce replacement housing requirements
and to deter discrimination following the demolition of the Vaughn public housing
development and the disposition of the University House public housing
development. The district court3 certified plaintiff classes and later consolidated the
actions. The parties eventually settled the suits, and the district court dismissed the
actions with prejudice. The court conditioned dismissal on the parties' compliance
with the settlement agreement, which the court incorporated into its consent decree.

The residents then brought the present action against the SLHA4 for failing to
comply with the terms of the settlement agreement. Specifically, the residents claim
that the SLHA failed to maintain a "mobility counseling program"5 for the time period
they assert is required by the agreement (fifteen years) and, therefore, are in contempt
of court. The consent decree provides that the SLHA, along with class counsel, will
choose a private housing entity to operate the mobility counseling program, and the

2
Brown v. HUD, No. 90-CV-1357; Anderson v. HUD, No. 4:93-CV-1622.
3
The Honorable Charles A. Shaw, United States District Judge for the Eastern
District of Missouri.
4
HUD did not file briefs in this appeal since no relief was sought from the
department. HUD also did not participate in the proceedings before Judge Shaw.
5
The settlement agreement provides that "[t]he purpose of the mobility
counseling program shall be to promote equal housing opportunity in assisted
housing for tenants and applicants of the [SLHA] and to enhance their opportunity
to choose to live in areas where their race is not unduly concentrated." Brown v.
HUD, No. 90-CV-1357, slip op. at 8 (E.D. Mo. Apr. 17, 1995).

-3-
contract with this entity will last "for a term of not less than 5 years."6 Brown v.
HUD, No. 90-CV-1357, slip op. at 10 (E.D. Mo. Apr. 17, 1995). The class members
argue that, because the mobility program is for residents with one of the "105 tenant-
based Section 8 certificates" for housing required by the settlement agreement, and
because these housing certificates must be available for fifteen years, then it follows
that the counseling program must also exist for fifteen years because those receiving
the housing certificates also participate in the mobility program. Brief of Appellants
at 16-17 (quoting the consent decree).

The district court rejected this argument and refused to find the SLHA in
contempt of court, holding that the class participants failed to prove by "clear and
convincing evidence" that the housing authority violated the consent decree by failing
to operate the mobility counseling program for more than five years. Brown v. HUD,
No. 90-CV-1357, slip op. at 7-8 (E.D. Mo. Sept. 30, 2002). On appeal, the residents
contend that this evidentiary standard of review was inappropriate and that the district
court erred in refusing to hold the SLHA in contempt of court.

We review the district court's denial of the contempt motion for an abuse of
discretion. Wycoff v. Hedgepeth, 34 F.3d 614, 616 (8th Cir. 1994) (citation omitted).
Additionally, the residents have the burden of proving "'by clear and convincing
evidence that the decree is being violated.'" Mahers v. Hedgepeth, 32 F.3d 1273,
1274 (8th Cir. 1994) (quoting SapaNajin v. Gunter, 857 F.2d 463, 465 (8th Cir.
1988)). The clear and convincing evidence standard is less than proof "beyond a
reasonable doubt" but more than "bare preponderance of [the] evidence." Kansas
City Light & Power Co. v. NLRB, 137 F.2d 77, 79 (8th Cir. 1943).

6
On March 1, 1995, the SLHA contracted with the Housing Resource Center,
operated by Catholic Charities, to administer the mobility counseling program. That
contract was not renewed after the five-year term expired. See Brown v. HUD, No.
90-CV-1357, slip op. at 4 (E.D. Mo. Sept. 30, 2002).

-4-
 After carefully reviewing the record, we find that the residents have failed to
show that the SLHA violated the consent decree by failing to operate the mobility
counseling program for fifteen years. The terms of the consent decree do not
specifically provide for a mobility program of this length. As the district court noted,
"[i]f it was intended that the mobility counseling was to continue for the same length
of time the Section 8 certificates are provided, the language of the [consent decree]
should have reflected that intent in some manner as the certificates were required in
'two additional five year terms.'" Brown, slip op. at 8 (E.D. Mo. Sept. 30, 2002).
Because we find that the residents failed to show, by clear and convincing evidence,
that the SLHA violated the consent decree, we hold that the district court did not
abuse its discretion in refusing to hold the housing authority in contempt. The
consent decree was the result of negotiations among the parties; therefore, it reflects
the parties' intent to continue the mobility program for only five years.

For these reasons, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-5-