Anderson v. Jackson

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

FILED
January 26, 2009

No. 07-31138 Charles R. Fulbruge III
Clerk

YOLANDA ANDERSON; GILDA BURBANK; ALLEN HARRIS; ODESSIA
LEWIS; EMELDA MAY; SYLVIA MOTEN; HILDA JOHNSON; CYNTHIA
BELL; JUDITH WATSON; GLORIA WILLIAMS; MARY ANN WRIGHT;
LINDA DEGRUY

Plaintiffs - Appellants
v.

ALPHONSO JACKSON, SECRETARY, UNITED STATES DEPARTMENT
OF HOUSING AND URBAN DEVELOPMENT; UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; HOUSING
AUTHORITY OF NEW ORLEANS; 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 - Appellees

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:
Plaintiff-appellants, a group of displaced New Orleans public housing
residents (the “Residents”), appeal the district court’s dismissal of their claims
arising under 42 U.S.C. § 1437p and denial of their motion for a preliminary
injunction. Finding no error, we affirm.
 No. 07-31138

I
Prior to Hurricane Katrina, the Housing Authority of New Orleans
(“HANO”) planned to demolish and redevelop four deteriorated public housing
developments: B.W. Cooper, C.J. Peete, St. Bernard, and Lafitte (collectively,
“the Big Four”). After the Big Four suffered severe damage from Katrina,
HANO proceeded with the plan for eventual demolition. As required by the U.S.
Housing Act of 1937, 42 U.S.C. § 1437p, HANO submitted an application to the
U.S. Department of Housing and Urban Development (“HUD”) showing that the
demolition plan met the statutory criteria.1 HANO certified that it would
provide comparable housing to the affected residents and would also cover

1
1437p provides, in relevant part:

(a) Applications for demolition and disposition. [U]pon receiving an application by a public
housing agency for authorization . . . to demolish or dispose of a public housing project . . . the
Secretary shall approve the application, if the public housing agency certifies–

(1) in the case of--
(A) an application proposing demolition of a public housing project or a portion of a public
housing project, that--
(i) the project or portion of the public housing project is obsolete as to physical condition,
location, or other factors, making it unsuitable for housing purposes; and
(ii) no reasonable program of modifications is cost-effective to return the public housing
project or portion of the project to useful life;
...
(4) that the public housing agency--
(A) will notify each family residing in a project subject to demolition or disposition 90 days
prior to the displacement date, except in cases of imminent threat to health or safety,
consistent with any guidelines issued by the Secretary governing such notifications,
that--
(i) the public housing project will be demolished or disposed of;
(ii) the demolition of the building in which the family resides will not commence until
each resident of the building is relocated; and
(iii) each family displaced by such action will be offered comparable housing--
(I) that meets housing quality standards;
(II) that is located in an area that is generally not less desirable than the location of
the displaced person's housing; []
...
(B) will provide for the payment of the actual and reasonable relocation expenses of each
resident to be displaced[.]
...

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relocation expenses and counseling. To alert residents to the demolition and
redevelopment plans, HANO mailed two notice letters to each affected resident.
HANO published informational ads regarding the proposed demolition in several
newspapers in Texas and Louisiana. Numerous meetings were held, which the
residents were invited to attend in order to receive information, ask questions,
and offer comments. Comments from residents were also solicited through the
mail and via the HANO website. Over 200 people, including at least 116
displaced residents, attended the resident consultation meetings in November
and December of 2006, and around 500 people attended outreach meetings in
areas outside of New Orleans in March 2007.
In September 2007 HUD approved HANO’s application, finding that all
of the statutory requirements were met. The Big Four had numerous storm-
related and pre-existing conditions rendering the developments obsolete,
dilapidated, and unsuitable for housing purposes, including: damaged and
unsafe utility distribution networks, water leakages, windows that failed to meet
hurricane-resistant design standards, building code violations, pipe corrosion,
mold and water damage, exterior shell damage, and ruined flooring. The costs
for rehabilitating the properties substantially exceeded the amount required to
justify demolition. HUD detailed its reasons for approving the application in a
31-page opinion.
The Residents filed this lawsuit in June 2006, prior to HUD’s approval of
the demolition plan. They alleged that HANO and HUD’s failure to repair and
reopen the Big Four violated the Fair Housing Act (42 U.S.C. § 3608), the HANO
lease agreements, the Louisiana Civil Code, and the Fifth and Fourteenth
Amendments of the U.S. Constitution. They also alleged that HANO and HUD
violated U.S. Housing Act of 1937 (42 U.S.C. § 1437p), enforceable through 42
U.S.C. § 1983 against HANO and through § 702 of the Administrative
Procedures Act (“APA”) against HUD. The Residents asked the district court to

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enjoin the demolition, compel repair and re-occupancy of the units, and award
them monetary damages for economic loss and emotional distress. The district
court denied their first motion for a preliminary injunction in February 2007,
finding no irreparable harm because the Residents had an adequate remedy at
law. The district court also granted summary judgment for HANO and HUD on
the § 1437p claims, finding that § 1437p did not create federal rights enforceable
through 42 U.S.C. § 1983 for constructive eviction and that any actual eviction
claims were unripe because HUD had not yet approved HANO’s application. In
July 2007, the district court certified a class to pursue claims related to the
administration of the voucher program (which provided housing for displaced
residents after Hurricane Katrina and during the demolition process), and
dismissed all remaining claims.
Five weeks after HUD approved HANO’s application, the Residents again
moved for a temporary restraining order and/or preliminary injunction to stop
demolition. They also moved to amend their complaint to state an actual
eviction claim under § 1437p. The district court granted the Residents’ motion
to amend their complaint, but denied their request for a temporary restraining
order and/or preliminary injunction. In the same order, the district court
dismissed the § 1437p actual eviction claims, finding that this provision did not
create a private right of action against HANO or HUD. The Residents then
moved this Court for temporary injunctive relief pending appeal and to expedite
the appeal, both of which we denied. Demolition began in June 2008. As of this
writing, three of the Big Four developments have been totally razed, and
demolition of the fourth is underway. To provide interim housing during the
demolition and redevelopment process, 621 units remain open in Lafitte.
The Residents appeal the dismissal of their § 1437p claims against HANO
and HUD, and the denial of a preliminary injunction to halt the demolition.
II

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A dismissal of a § 1983 claim for lack of an enforceable federal right is
analogous to a dismissal for failure to state a claim pursuant to FED. R. CIV. P.
12(b)(6). See Day v. Apoliona, 496 F.3d 1027, 1030 (9th Cir. 2007); see also
United States v. Stanley, 483 U.S. 669, 691 n.7 (1987). Therefore, as with a Rule
12(b)(6) dismissal, we review the district court’s dismissal of the § 1437p claims
de novo. See Nationwide Bi-Weekly Admin., Inc., v. Belo Corp., 512 F.3d 137, 140
(5th Cir. 2007).
We review the district court’s decision to grant or deny a preliminary
injunction for abuse of discretion, Walgreen Co. v. Hood, 275 F.3d 475, 477 (5th
Cir. 2001), but a decision based on erroneous legal principles is reviewed de
novo. Speaks v. Kruse, 445 F.3d 396, 399 (5th Cir. 2006). Only under
“extraordinary circumstances” will we reverse the denial of a preliminary
injunction. White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989).
III
A
The Residents assert that the district court erred in dismissing their
§ 1983 claim against HANO, which alleged violations of § 1437p. They argue
that § 1437p grants them a privately enforceable federal right to prevent the
demolition of their housing developments.
Section 1983 permits private individuals to sue state actors to enforce
constitutional rights as well as rights created by federal statutes. See Johnson
v. Housing Auth. of Jefferson Parish, 442 F.3d 356, 359 (5th Cir. 2006).
However, federal statutes must unambiguously confer substantive rights upon
a class of beneficiaries in order to be enforced through § 1983. Id. Whether such
rights have been conferred depends on Congressional intent, as indicated by the
text and structure of the statute. See Gonzaga Univ. v. Doe, 536 U.S. 273, 285-
86 (2002). The statutory language must create an individual entitlement, with
the clear emphasis on the benefitted class rather than on the person or entity

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regulated. Id. at 287. We employ a three-part test articulated by the Supreme
Court to determine whether Congress intended to create a privately enforceable
right: “(1) Congress must have intended that the provision in question benefit
the private plaintiff; (2) the right assertedly protected by the statute must not
be so ‘vague and amorphous’ that its enforcement would strain judicial
competence; and (3) the statute must unambiguously impose a binding
obligation on the states, with the asserted right couched in mandatory rather
than precatory terms.” Johnson, 442 F.3d at 360 (citing Blessing v. Freestone,
520 U.S. 329, 340-41 (1997)).
The Supreme Court has emphasized the narrowness of this doctrine,
rejecting the notion that “anything short of an unambiguously conferred right”
will support a cause of action under § 1983. Gonzaga, 536 U.S. at 283. As we
have previously observed, the Court has taken an increasingly restrictive view
of whether statutes create federal rights such that “very few statutes are held
to confer rights enforceable under § 1983.” Johnson, 442 F.3d at 360.
To determine whether § 1437p fits within this narrow doctrine, some
background information about this statute is necessary. The U. S. Housing Act
of 1937 is a federal grant-in-aid program. See Edwards v. Dist. of Columbia, 821
F.2d 651, 652 (D.C. Cir. 1987). To receive federal funds, local public housing
agencies are required to comply with various conditions. Id. Section 1437p
governs the demolition and disposition of public housing facilities. It lists criteria
for when the Secretary of HUD shall approve or disapprove an application for
demolition from a local public housing authority. For example, the Secretary
shall approve an application for demolition if the local agency certifies, among
other things, that “the project or portion of the public housing project is obsolete
as to physical condition, location, or other factors, making it unsuitable for
housing purposes.” 42 U.S.C. § 1437p(a)(1)(A)(i). The local agency must also
certify that it will notify the residents ninety days prior to the displacement date

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and that each displaced family will be offered comparable housing. Id. at
§ 1437p(4)(A)(iii).
This provision has been interpreted and amended several times since it
was enacted in 1983. In 1987, the D.C. Circuit concluded in Edwards v. District
of Columbia that “neither the language nor the legislative history of § 1437p
creates rights in public housing tenants against the constructive demolition of
their units.” 821 F.2d at 659-60. The plaintiffs in Edwards brought a
constructive demolition claim, meaning that they were attempting to enforce
compliance with § 1437p even though HUD had not yet approved the D.C.
housing authority’s demolition application and the residents had not yet been
displaced. The plaintiffs argued that the D.C. housing authority had begun
demolition before receiving approval from HUD and had therefore circumvented
the requirements of § 1437p. Id. at 653. Following Edwards, Congress amended
§ 1437p to include a subsection that would be fully enforceable by public housing
residents.2 However, in 1998 Congress removed this subsection and amended
the statute to its present form. There is no explanation in the legislative history
as to why the subsection was repealed.

2
See H.R. Conf. Rep. 100-426, 1987 U.S.C.C.A.N. 3458 at 3469 (stating that “[t]he
conference agreement also contains a provision clarifying that no [local public housing
authority] shall take any steps toward demolition and disposition without having satisfied the
statutory criteria. This provision is intended to correct an erroneous interpretation of the
existing statute by the United States Court of Appeals for the D.C. Circuit in Edwards v.
District of Columbia and shall be fully enforceable by tenants of and applicants for the housing
that is threatened.”) The added provision read:

(d) . . . A public housing agency shall not take any action to demolish or dispose
of a public housing project or a portion of a public housing project without
obtaining the approval of the Secretary and satisfying the conditions specified
in subsections (a) and (b) of this section.

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 No. 07-31138

After the 1987 amendment, a series of district court cases found that
§ 1437p created enforceable rights.3 Each of these cases interpreted the statute
as it was amended after Edwards but before the 1998 amendment. Two Ohio
district court cases, decided after the 1998 amendment, found that § 1437p
created enforceable rights. However, these cases relied on the prior cases
interpreting the pre-1998 statute. The Ohio district courts did not conduct any
inquiry into how the repeal of the provision designed to create privately
enforceable rights altered the analysis under Blessing and Gonzaga. See English
Woods Civic Ass’n v. Cincinnati Metro. Housing Auth., 2004 WL 3019505 (S.D.
Ohio 2004); Givens v. Butler Metro. Housing Auth., 2006 WL 3759702 (S.D. Ohio
2006). Recently, a California district court has taken up the question and
concluded that § 1437p(a)(4) creates rights enforceable through § 1983. See
Arroyo Vista Tenants Ass’n v. City of Dublin, 2008 WL 2186438 (N.D. Cal. 2008).
No Circuit since the D.C. Circuit in Edwards has weighed in on this issue.
Under the three-part test articulated in Blessing, we must first consider
whether § 1437p indicates that Congress has unambiguously conferred a right
on individuals. We have observed that “when a provision in a statute fails to
impose a direct obligation on the States, instead placing the onus of compliance
. . . on the federal government, no cause of action cognizable under section 1983
can flourish.” Resident Council of Allen Parkway Vill. v. U. S. Dep’t of Hous. &
Urban Dev., 980 F.2d 1043, 1052 (5th Cir. 1993)(quoting Stowell v. Ives, 976 F.2d
65, 70 (1st Cir. 1992)). Here, § 1437p is explicitly directed to the Secretary of
HUD. The entire provision is framed in terms of when the Secretary should

3
See Concerned Tenants Ass’n of Father Panik Vill. v. Pierce, 685 F. Supp. 316, 321 (D.
Conn. 1988); Tinsley v. Kemp, 750 F. Supp. 1001, 1008-09 (W.D. Mo. 1990); Henry Horner
Mothers Guild v. Chicago Housing Auth., 780 F. Supp. 511, 513-15 (N.D. Ill. 1991); Gomez v.
Housing Auth. of the City of El Paso, 805 F. Supp. 1363, 1374-75 (W.D. Texas 1992); Velez v.
Cisneros, 850 F. Supp. 1257, 1269-71 (E.D. Pa. 1994).

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approve or disapprove a demolition application. By directing the statutory
command to the Secretary of HUD, Congress placed the onus of compliance on
the federal government. Though the statute indirectly notifies local housing
authorities as to what they must show in their demolition application for it to be
approved, it is HUD that receives the direct command, and HUD ultimately
controls compliance with the statute by either approving or disapproving the
applications.
Although the five sub-provisions of § 1437p(a)(4) contain language
referencing the individual residents, the overall structure of the statute shows
that these sub-provisions are intended as an administrative checklist of what the
Secretary must look for in a local housing authority’s application in order to
approve the demolition plan. Like the rest of the statute, this provision is
introduced with the statement that “[T]he Secretary shall approve the
application, if the public housing agency certifies—[.]” Then subsection 4 lists
what the local housing authority must show that it will do, including notify
residents, pay relocation expenses, provide comparable housing, and offer
counseling. As the Supreme Court has held, “[s]tatutes that focus on the person
regulated rather than the individuals protected create no implication of an
intent to confer rights on a particular class of persons.” Alexander v. Sandoval,
532 U.S. 275, 289 (2001) (internal quotation omitted). Here, the statute focuses
on the person regulated—the Secretary of HUD—not the residents of the
housing developments. The purpose of the language referencing the residents
is to provide a clear directive to the Secretary, not to confer substantive rights
upon individuals. As indicated by the statute’s focus on what the Secretary must
do, the “remedy” if a local housing authority fails to show that it meets the
requirements of § 1437p(a)(4) is that the Secretary must disapprove the
demolition application. There is no indication in the statute that Congress

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intended public housing residents to have legal recourse against local housing
authorities to enforce these administrative checklist requirements.
Although there is no stated intent in the legislative history regarding
whether an enforceable federal right exists in the current version of § 1437p,
Congressional action confirms our view that the statute creates no such rights.
Congress clearly intended in 1987, in response to Edwards, to add a provision
that would be privately enforceable. This provision required that local housing
authorities “shall not” begin demolition without receiving approval from HUD
and satisfying the conditions listed in § 1437(a) and (b). However, Congress
repealed this provision in its entirety in 1998. The logical inference from this
action is that Congress intended to remove the private right of action that the
provision created. Under Gonzaga, we must find that Congress manifests an
unambiguous intent to confer a federal right in a particular statute in order for
it to be enforceable through § 1983. 536 U.S. at 283. The repeal of the provision
added in 1987, combined with the text and structure of the current statute,
makes it at least ambiguous as to whether Congress intended for the current
version of § 1437p to create a federal right. Accordingly, we hold that § 1437p
does not unambiguously confer individual rights enforceable through § 1983.
Since we conclude that the first prong of the Blessing test has not been
met, we need not reach the second and third prongs.
B
The Residents also claim that the district court erred in dismissing their
§ 1437p claim against HUD. They argue that § 702 of the APA allows them to
sue HUD for failing to comply with the requirements of § 1437p.
Section 702 of the APA waives federal agencies’ sovereign immunity in
suits for relief other than money damages, providing that:
A person suffering legal wrong because of agency action, or
adversely affected or aggrieved by agency action within the meaning
of a relevant statute, is entitled to judicial review thereof. An action

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in a court of the United States seeking relief other than money
damages . . . shall not be dismissed nor relief therein be denied on
the ground that it is against the United States.

5 U.S.C. § 702. Since HUD approved HANO’s demolition application, this
section would allow the Residents to sue HUD for non-monetary damages
stemming from any legal wrongs suffered in the demolition application approval
process. It appears, however, that the district court dismissed the Residents’
§ 1437p claim against HUD for the same reasons it dismissed the claim against
HANO—lack of a privately enforceable federal right. Since the Residents have
stated a claim under § 1437p, enforceable against HUD through § 702 of the
APA, the district court’s determination that no enforceable federal right existed
against HUD was in error.
However, this error is of no consequence because the dismissal was
nonetheless proper. Claims may only be brought under § 702 for “relief other
than money damages.” The Supreme Court has held that whether a type of
relief is considered “money damages” under § 702 is not necessarily determined
by the fact that the remedy requires one party to pay money to another. See
Bowen v. Massachusetts, 487 U.S. 879, 893 (1988). Suits seeking money may go
forward under § 702 where the statute in question specifically mandates the
payment of money. See id. at 900-01 (allowing suit under § 702 to recover money
for medical services because the Medicaid Act provides that the Secretary “shall
pay” certain amounts for appropriate Medicaid services). In other words, a
monetary remedy is properly considered specific relief when it gives the plaintiff
“the very thing to which he was entitled” under the relevant statute, as opposed
to compensatory relief which is designed to substitute for an injury to the
plaintiff’s person, property, or reputation. Id. at 895.
Here, the Residents have consistently characterized their injury as the
destruction of their housing developments. Their complaint seeks relief in the

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form of an injunction to stop the demolition and monetary compensation for
injuries associated with the demolition. The “very thing to which [they claim to
be] entitled” is the occupation of their housing units in the Big Four. Since the
demolition is now substantially complete, and as explained in Part III.C below,
injunctive relief is no longer availing. Monetary compensation for alleged
injuries appears to be the only remaining form of relief. However, monetary
compensation for injuries to person or property in this case is a substitute form
of relief, rather than specific relief, and may not be sought under § 702. Id. The
Residents have not argued that § 1437p entitles them to the payment of funds
in the form of specific relief. Therefore, we hold that the district court’s
dismissal of the § 1437p claim against HUD was proper to the extent that the
Residents seek money damages.
C
The Residents also appeal the district court’s denial of their motion for a
preliminary injunction to halt demolition. They argue that the district court
abused its discretion on substantive and procedural grounds, in its application
of the four-factor test to the facts of this case and in its failure to hold an
evidentiary hearing.
Injunctive relief is “an extraordinary and drastic remedy,” and should only
be granted when the movant has clearly carried the burden of persuasion. See
Holland Am. Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985).
Specifically, the movant must show:
(1) a substantial likelihood that plaintiff will prevail on the merits,
(2) a substantial threat that plaintiff will suffer irreparable injury
if the injunction is not granted, (3) that the threatened injury to
plaintiff outweighs the threatened harm the injunction may do to
defendant, and (4) that granting the preliminary injunction will not
disserve the public interest.

Canal Auth. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).

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 No. 07-31138

We find no abuse of discretion in the district court’s conclusion that the
Residents did not carry their burden of showing that these factors were met. As
indicated by our holdings in Parts III.A and B above the district court correctly
dismissed the § 1437p claims, rendering it impossible for the Residents to make
a substantial showing of likelihood of success on those claims. Further, the
record indicates that it was reasonable for the district court to conclude that
there were no illegalities in the demolition application approval process.
HANO’s demolition application indicates that each of the requirements of
§ 1437p were met. Numerous reports showed that the buildings were obsolete,
dilapidated, and unsuitable for housing purposes. The residents were offered
opportunities for consultation and provided with information several times
throughout the process. HANO notified each affected resident by mail of a
meeting on the proposed demolition, and many residents attended this meeting.
HANO also held a meeting with resident leaders to discuss the demolition
process. Further outreach meetings were conducted for affected residents living
outside of New Orleans, which over 500 people attended. Each displaced
resident has been offered comparable housing in New Orleans. Though the
Residents argue that the rapid approval of HANO’s application indicates some
impropriety, the record shows that HUD’s review occurred over several weeks
and was only expedited in order to make a ruling on the application in time for
HANO to meet funding deadlines.
Procedurally, the issuance of a preliminary injunction requires notice to
the adverse party. FED. R. CIV. P. 65(a)(1); PCI Transp., Inc. v. Fort Worth & W.
R.R. Co., 418 F.3d 535, 546 (5th Cir. 2005). This Court has interpreted Rule
65(a)(1) to require that where factual disputes are presented, the parties must
have “a fair opportunity and a meaningful hearing to present their differing
versions of those facts before a preliminary injunction may be granted.” Kaepa,
Inc. v. Achilles Corp., 76 F.3d 624, 628 (5th Cir. 1996) (citation omitted). If the

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party requesting the injunction cannot show that factual disputes exist
regarding the required elements, and cannot introduce evidence sufficient to
justify granting the motion, a hearing on the requested injunctive relief is
unnecessary. See PCI Transp., 418 F.3d at 546.
The district court did not abuse its discretion in denying the preliminary
injunction without holding an evidentiary hearing. The district court did not
rely on any disputed facts in determining whether the injunction should issue.
Moreover, the district court allowed extensive briefing on the preliminary
injunction issue and held a telephone conference where each side presented its
claims. The requirements of Rule 65(a)(1) were thus met.
Overall, we find no extraordinary circumstances here to justify
overturning the denial of the preliminary injunction. Accordingly, the district
court did not abuse its discretion in denying the preliminary injunction.
IV
For the foregoing reasons, we AFFIRM the district court’s dismissal of the
§ 1437p claims against HANO and also AFFIRM the dismissal of the § 1437p
claims against HUD. We further AFFIRM the district court’s denial of a
preliminary injunction.

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