Anderson v. US DEPT. OF HOUSING AND URBAN DEV.

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
December 31, 2008

No. 07-31008 Charles R. Fulbruge III
Clerk

YOLANDA ANDERSON; GILDA BURBANK; ALLEN HARRIS; DONNA
JOHNIGAN; ODESSIA LEWIS; EMELDA MAY; SYLVIA MOTEN; HILDA
JOHNSON; CYNTHIA BELL; NICOLE BANKS; JUDITH WATSON;
GLORIA WILLIAMS; MARY ANN WRIGHT; CATRICE DOUCET; LINDA
DEGRUY; KIM PAUL, in their own right and as representatives of all
similarly situated displace New Orleans, Louisiana public housing residents,
ALPHONSO JACKSON, SECRETARY, UNITED STATES DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT; HOUSING AUTHORITY OF
NEW ORLEANS

Plaintiffs - Appellees
v.

UNITED STATES DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT; C DONALD BABERS, Board of Commissioners, Housing
Authority of New Orleans; WILLIAM C THORSON, Executive Administrator
Appointing Authority Housing Authority of New Orleans; and each individual
defendant in his official capacity

Defendants - Appellants

Appeal from the United States District Court
for the Eastern District of Louisiana

Before WIENER, GARZA, and DeMOSS, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Defendants, the Housing Authority of New Orleans (“HANO”) and its
officers and the United States Department of Housing and Urban Development
 No. 07-31008

(“HUD”) and its officer, appeal the district court’s order granting class
certification.1 For the following reasons, we vacate and remand.
I
Following Hurricane Katrina, HANO planned to demolish and redevelop
four deteriorated, storm-damaged public housing developments in New Orleans:
B.W. Cooper, C.J. Peete, St. Bernard, and Lafitte (collectively known as “the Big
Four”). To gain approval for the demolition, HANO had to submit a demolition
application to HUD showing that the requirements of 42 U.S.C. § 1437p were
met, including resident consultation, environmental reviews, historic landmark
reviews, and alternate housing plans. HUD approved HANO’s application,
finding that all of the statutory requirements were met and that the Big Four
were obsolete, dilapidated, and unsuitable for housing purposes. HANO certified
that it would provide funds to cover comparable housing for all displaced
residents during the demolition and redevelopment process through the disaster
assistance voucher program (the “voucher program”).
A group of displaced residents of the Big Four (the “Residents”) filed this
lawsuit prior to HUD’s approval of the demolition plan, alleging that HANO and
HUD’s failure to repair and reopen the Big Four violated the Fair Housing Act
(42 U.S.C. § 3608) (the “FHA”), the U.S. Housing Act of 1937 (42 U.S.C. § 1437p),
the HANO lease agreements, the Louisiana Civil Code, and the Fifth and
Fourteenth Amendments of the U.S. Constitution. The Residents’ complaint
asserted that HANO and HUD’s actions constituted race discrimination against
displaced African American tenants. They asked the district court to enjoin the
demolition, compel repair and re-occupancy of the units, and award them
monetary damages for their alleged economic loss and emotional distress.
The district court dismissed many of the Residents’ claims, including those

1
Unless otherwise specified, a reference to HANO or HUD includes the named officials
of the respective agencies.

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 No. 07-31008

of intentional race discrimination and disparate impact under the FHA and the
Equal Protection Clause. The Residents moved for class certification on their
remaining claims, namely: (1) HANO and HUD’s failure to affirmatively advance
fair housing in violation of § 3608 of the FHA; (2) HANO’s breach of contract and
constructive eviction of the Residents; and (3) HANO and HUD’s violation of the
Residents’ rights to due process. The district court rejected the Residents’
proposed class, finding too many conflicts of interest among class members.
Instead, it certified a narrower class consisting of:
[A]ll African-American citizens of the United States who resided in
public housing developments in New Orleans, Louisiana, as of
August 29, 2005, pursuant to a lease with the defendant Housing
Authority of New Orleans who are involuntarily displaced as a
result of this Hurricane Katrina who received vouchers or other
forms of rental assistance from HUD or HANO and/or HANO’s
pursuant to HUD’s regulations and which rental assistance did not
provide for utility assistance leading to a disparity on how they were
treated before Katrina as well as post-Katrina.

The district court also confirmed the dismissal of “all claims except those claims
dealing with the administration and issuance of vouchers to displaced public
housing tenants.”
We granted HANO’s petition for interlocutory review of the class
certification order, pursuant to FED. R. CIV. P. 23(f).2 For the following reasons,
we vacate and remand the district court’s class certification order.

II

2
Only HANO petitioned this court for interlocutory review of the class certification
decision. HUD did not petition separately. We granted HANO’s petition, and HUD was
designated co-appellee. Subsequently, we granted HUD’s unopposed motion to be aligned with
the appellants for purposes of briefing this interlocutory appeal, as both HANO and HUD
argue that the class was improperly certified.

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 No. 07-31008

We review a district court’s class certification decision for abuse of
discretion. Regents of the Univ. of Cal. v. Credit Suisse First Boston (USA) Inc.,
482 F.3d 372, 380 (5th Cir. 2007). However, whether the district court applied
the correct legal standard in reaching its class certification decision is a legal
question that we review de novo. Id.
III
All classes must satisfy the four baseline requirements of Rule 23(a):
numerosity, commonality, typicality, and adequacy of representation. In re
Monumental Life Ins. Co., 365 F.3d 408, 414-15 (5th Cir. 2004). In addition,
under the Federal Rules of Civil Procedure’s requirement of notice pleading,
defendants in all lawsuits must be given notice of the specific claims against
them. See FED. R. CIV. P. 8(a)(2) (“A pleading that states a claim for relief must
contain a short and plain statement of the claim showing that the pleader is
entitled to relief”). Although this notice does not require pleading specific facts,
the complaint must “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955,
1964 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Where the
complaint is devoid of facts that would put the defendant on notice as to what
conduct supports the claims, the complaint fails to satisfy the requirement of
notice pleading. See Beanal v. Freeport-McMoran, Inc., 197 F.3d 161, 165-66
(5th Cir. 1999).
HANO and HUD argue that the district court abused its discretion by
certifying a class based on claims that the Residents never pled, because the
Residents’ complaint lacks any allegations regarding the administration of the
voucher program. We agree.
Under Rule 8(a), a complaint must do more than name laws that may have
been violated by the defendant; it must also allege facts regarding what conduct
violated those laws. Id. In other words, a complaint must put the defendant on

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notice as to what conduct is being called for defense in a court of law. Here, the
complaint does not mention the voucher program or reference the defendants’
conduct in administering the voucher program. Rather, the claims pleaded in
the complaint are based on a totally different course of conduct—HANO and
HUD’s actions leading up to demolition, the ultimate decision to demolish the
buildings, and the demolition itself. These claims are not sufficient to put
HANO and HUD on notice that they must defend the voucher program.
Essentially, by defining the class based on treatment under the voucher program
and limiting the class claims to those regarding the voucher program, the
district court changed the nature of the lawsuit and rendered the complaint
inadequate.
Therefore, we hold that the district court abused its discretion by
certifying a class based on claims not pleaded in the complaint. The district
court’s authority to certify a class under Rule 23 does not permit it to structure
a class around claims not pled. Although this problem may be remedied on
remand by allowing the Residents to amend their complaint, we leave it to the
district court to determine the propriety of doing so.3
IV
For the foregoing reasons, we VACATE the district court’s class
certification order and REMAND for further proceedings.

3
We note that despite a year having passed since the class was certified and this appeal
docketed, the Residents have not moved to amend their complaint.

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