James v. City of Dallas

REVISED JULY 17, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

____________________

No. 00-10556
____________________

IRMA JEAN JAMES; TERRI LARY

Plaintiffs - Appellees

v.

CITY OF DALLAS TEXAS; ET AL
CITY OF DALLAS TEXAS; US DEPARTMENT OF HOUSING AND URBAN
DEVELOPMENT

Defendants - Appellants

_________________________________________________________________

Appeal from the United States District Court
for the Northern District of Texas
_________________________________________________________________
June 18, 2001
Before KING, Chief Judge, and ALDISERT* and BENAVIDES, Circuit
Judges.

KING, Chief Judge:

Defendants-Appellants the City of Dallas, Texas and the

United States Department of Housing and Urban Development bring

this interlocutory appeal, pursuant to 28 U.S.C. § 1292(b),

challenging the district court’s Rule 23(b)(2) certification of a

“Race Discrimination Class” and a “Process Class” in a class

*
Circuit Judge of the Third Circuit, sitting by
designation.
action lawsuit involving alleged racially discriminatory

demolition of repairable single-family homes without proper

notice or judicial warrant. Because we determine that the named

Plaintiffs do not have standing to seek the relief requested for

the “Race Discrimination Class,” we VACATE the district court’s

certification of that class and REMAND with instructions to

dismiss all the Race Discrimination Class claims against the City

and HUD and to dismiss HUD from the lawsuit. Because we

determine that the named Plaintiffs do have standing to seek the

relief requested for seven of their twelve Process Class claims

against the City and we determine further that the district court

did not abuse its discretion in certifying the “Process Class,”

we AFFIRM AS MODIFIED the district court’s certification of that

class. Finally, because we determine that the named Plaintiffs

do not have standing to seek the relief requested for five of

their Process Class claims, we REMAND with instructions to

dismiss those claims.

I. FACTUAL BACKGROUND

This case arises out of a proposed class action lawsuit

against Defendants-Appellants the City of Dallas, Texas (the

“City”) and the United States Department of Housing and Urban

Development (“HUD”). Plaintiffs-Appellees, Irma Jean James and

Terri Lary (collectively referred to as the “named Plaintiffs” or

2
“Plaintiffs”), assert two claims against the City: first, a

Process Class claim charging that the City demolished

“repairable” single-family homes in predominantly minority

neighborhoods without proper notice, in violation of due process

under the Fifth and Fourteenth Amendments, and without a warrant,

in violation of the Fourth Amendment;1 and second, a Race

Discrimination claim charging that the City has implemented this

“no-notice” demolition program of repairable minority housing

because of the race of the occupants or the race of the owners of

the property, in violation of 42 U.S.C. §§ 1981, 2000d, 3604(a),

5301(b)(2), and 5309. Plaintiffs assert one Race Discrimination

Class claim against HUD, charging that HUD was aware of the

City’s purposeful discrimination and that the City used HUD funds

to implement its program, in violation of 42 U.S.C. §§ 1981,

2000d, 3604(a), 3608(e)(5), and the Fifth Amendment. Further,

Plaintiffs assert that this discrimination is directly traceable

to HUD’s use of explicit racial classification of neighborhoods.

A. Factual Circumstances of the Named Plaintiffs

Irma Jean James is one of the two named Plaintiffs. She is

an African-American woman who owned a single-family residence

located at 2404 Alabama Avenue in the Oak Cliff area of the City.

1
Both claims were brought pursuant to 42 U.S.C. § 1983.

3
The Oak Cliff area has a population that is 68% “black”2

according to the 1990 Census. James resided in the home from

1969 to 1981, and then family members or other tenants resided in

the building until 1993. The building became vacant in 1994.

The Dallas Urban Rehabilitation Standards Board (“URSB”)

assessed her house to be repairable and not a nuisance; however,

URSB still proceeded with a demolition order against it. As part

of the demolition process, the URSB held a hearing concerning the

demolition of the house. The hearing revealed that the tax

assessment value of the property was $12,480, that the repair

cost of the house would have been $42,416, and that the cost of

demolition was $2,569. City inspectors provided information that

numerous code violations existed on the property.

James was not provided with notice of the URSB proceedings

concerning the property. At the time of the hearings, James

resided in Duncanville, a suburb of Dallas. In 1992, a URSB

notice was sent to the vacant Alabama Avenue address, which was

returned by the post office as undeliverable. Also in 1992, the

URSB order for repair and demolition was sent to James at an

address on Zeb Street in Dallas. Neither James nor anyone

associated with James has ever lived on Zeb Street. This order

was also returned to the URSB as being undeliverable. The City

mailed the final default demolition order to the same Zeb Street

2
The term “black” is the designated racial classification
adopted by the United States Census.

4
address. Throughout these years, James paid her property taxes

for the property through her mortgage company. She did not own

any other property in the City. The City demolished the house in

February 1994 and placed a lien on the property for the costs of

demolition.

The second named plaintiff is Terri Lary, an African-

American woman who owned a single-family residential house

located at 3902 Coolidge Street, Dallas. The property is in a

census tract that is 98.5% black. The City classified the house

as repairable.

The URSB conducted a hearing concerning the Lary property.

The tax assessment of the property was $7,380, with the estimated

costs of repair at $16,332.50 and demolition costs to run

$837.21. Notice of the hearing was sent to an incorrect address;

however, Lary did receive actual notice of the hearing and

appeared at the proceedings. URSB issued a repair order with a

default to demolish the structure if repairs were not adequately

completed. Lary made some of the requested repairs. According

to the City, Lary failed to obtain the necessary permits required

for the repairs and failed to complete the repairs. URSB sent a

default notice to the same wrong address and to the house itself.

The postal service returned both notices. Lary did not receive

final notice that she was in default of the repair order or

notice that the City intended to demolish the house. During this

5
time, she was living at another address in Dallas. In 1995, the

City demolished the house.

B. Factual Background of Class Claims

The facts underlying the Process Class claims, as alleged by

Plaintiffs, are that between 1992 and 1996, the City demolished

580 repairable single-family homes without providing adequate

notice to the owners. According to Plaintiffs, all 580 homes

were demolished without a warrant or other judicial process.

The facts underlying the Racial Discrimination Class claims

are more complicated. For purposes of class certification, the

district court adopted the findings of fact asserted by

Plaintiffs. These findings purport to show that the City

considered the race of the occupants of the area or the race of

the property owner in deciding whether to demolish an otherwise

repairable house.3 The district court found:

Plaintiffs’ documentary evidence shows that the current
pattern of demolitions of repairable single-family homes in
predominantly black areas is consistent with and traceable
to the City’s past use of overt racial classifications to
determine the treatment accorded to different neighborhoods.
The present pattern of single-family demolitions continues
the targeting of predominantly black neighborhoods begun at
the inception of the HUD and the City’s CDBG [Community
Development Block Grant] code enforcement and demolition

3
For purposes of class certification, the district court
adopted extensive statistical and documentary evidence submitted
by Plaintiffs showing racially discriminatory actions of the City
that affected municipal and housing services in minority
neighborhoods. See James v. City of Dallas, No. CA398CV436R,
2000 WL 370670, at *2-*9 (N.D. Tex. Apr. 11, 2000).

6
 program in the mid-1970's. This program was initiated in
tandem with the City and HUD’s social engineering of
neighborhood service delivery based on overt racial
classifications at the inception of the CDBG program.

In short, the facts put forth by Plaintiffs demonstrate that the

City allegedly used overt racial classifications to determine the

neighborhoods in which the URSB would focus its demolition

activities.4 Further, Plaintiffs argue that the City demolished

repairable single-family homes located in predominately black

census tracts at a much higher rate than in comparable white

census tracts. HUD allegedly approved of and financed this

discriminatory demolition.

II. PROCEDURAL BACKGROUND

In February 1998, James filed a suit for damages against the

City and the administrator of the URSB alleging violations of due

process and the Fourth Amendment and also raised a discrimination

4
For purposes of class certification, the district court
found that HUD distributed manuals to cities that received CDBG
funding, including the City of Dallas, and that these manuals
utilized explicit racial classifications. For example, a HUD-
distributed manual entitled “The Dynamics of Neighborhood Change”
rated communities as “Healthy” or “Clearly Declining” based in
part on the percentage and migration of minority occupants. This
HUD manual, which allegedly is still being distributed, defines a
“Clearly Declining” community as undergoing a change involving a
“Decrease in White Move-Ins” and “More Minority Children in
Schools.” Other studies used by HUD and the City also include
overt racial classifications. The district court adopted
Plaintiffs’ assertions that the City planned its housing based on
race-based criteria and also focused its code enforcement and
demolition based on this same racial criteria. The factual basis
for these assertions are amply detailed in the district court’s
Memorandum Opinion. See James, 2000 WL 370670, at *2-*9.

7
claim. In November 1998, James amended her complaint as a Rule

23(b)(2) class action. The amended complaint dropped the suit

against the URSB administrator, added Lary as a named plaintiff,

and added HUD as a defendant.

Plaintiffs requested injunctive relief against the City and

HUD on behalf of the class members. Plaintiffs sought a

permanent injunction against the City, requesting that the City

(1) cancel the debt assessed for demolition costs and associated

fees/interest, and file notice in the public deed record that the

debt was cancelled, (2) file a release of the demolition lien in

the public deed records, (3) ensure that title is clear on the

property, (4) ensure that all City records concerning the

property show the debt cancelled, (5) refrain from taking any

steps to enforce the lien or collect the debt, (6) return money

paid with interest by class members for money paid for demolition

and related costs, (7) set aside all foreclosures based on

demolition liens against the property, (8) refrain from

foreclosures based on demolition liens, (9) refrain from

retaliatory action such as refusing to issue building permits,

(10) cease demolition of repairable structures in African-

American areas or structures that are owned by African-Americans,

and (11) cease demolition of repairable structures without

adequate notice and due process.

Further, the Plaintiffs sought a permanent injunction

directed against the City and HUD to provide “each class member

8
with clear title to a comparable replacement single-family

housing unit or enter equivalent injunctive relief.”5

The district court granted Plaintiffs leave to file a Third

Amended Complaint.6 In addition to the above sought relief, this

Third Amended Complaint requests the following: (1) a permanent

injunction requiring HUD to administer all of its housing

programs in a manner that will eradicate the effects of HUD’s

discriminatory demolition practices; (2) a permanent injunction

against the City and HUD prohibiting use of overt racial

stereotypes in the classification of neighborhoods for purposes

of housing demolition activities; (3) a permanent injunction

against the City and HUD prohibiting use of overt racial

stereotypes in the classification of neighborhoods that have a

discriminatory effect on the conditions of predominantly black

census tracts; (4) a permanent injunction requiring the City and

HUD to implement a court-approved plan to eliminate the effects

of the City’s and HUD’s discrimination; (5) a permanent

5
The Plaintiffs also sought alternative relief under
Federal Rule Civil Procedure 23(b)(3) for damages if the
injunctive relief was not available. This alternative relief was
sought only against the City and not HUD. Because the district
court did not certify the class under Rule 23(b)(3), we do not
address the possibility of certifying the class on an alternate
ground.
6
The Third Amended Complaint was submitted on September
25, 2000, after the district court had certified the class. Both
the City and HUD apparently agree that the modified requests
included in the Third Amended Complaint are properly before this
court.

9
injunction prohibiting continued HUD funding for the City’s

housing code enforcement in predominantly black census districts

until a court-approved plan is put into effect; and (6) a

permanent injunction requiring HUD to establish, maintain, and

use a monitoring system to determine whether the City is

discriminating in its housing demolition activities.

On April 4, 2000, the district court held a certification

hearing and granted Plaintiffs’ motion for class certification

pursuant to Federal Rule Civil Procedure 23(b)(2). The following

classes were conditionally certified by the district court:

(1) Process Class: a Rule 23(b)(2) class composed of all
property owners who had a repairable[7] single-family
structure demolished by the City of Dallas’ Urban
Rehabilitation Standards Board (“URSB”): (i) and the City
demolished the structure without providing the property
owner notice of the opportunity to contest the proposed
demolition at a hearing prior to the issuance of the order
causing the demolition, (ii) and whose structure was
demolished without a warrant.[8] This class includes those

7
The district court defined “repairable” as a single-
family house which meets at least one of the following criteria:

a) the estimated or actual costs of repair was equal to or
less than the property tax assessed value of the structure
or equal to or less than actual market value,
b) there is no certification in the URSB file that the
structure is non-repairable,
c) the City code enforcement URSB referral recommends that
the URSB order repairs,
d) the URSB staff recommendation to the URSB is that the
URSB order repairs, or
e) the URSB ordered repairs to the structure.
8
The district court certified the classes before this
court decided Freeman v. City of Dallas, 242 F.3d 642 (5th Cir.
2001) (en banc). In Freeman, this court addressed a Fourth
Amendment challenge to the City of Dallas’s warrantless seizure

10
 owners who [sic] structures were demolished pursuant to a
default demolition order.

(2) Race Discrimination Class: a Rule 23(b)(2) class
composed of all persons who share the following
characteristics: (i) owners of at least one parcel of real
property on which a single-family structure was placed, (ii)
and which single-family structure was a repairable single-
family structure that was demolished pursuant to a City URSB
order, (iii) and either the owner is African-American or the
repairable single-family unit demolished pursuant to the
City URSB order was located in a predominately black census
tract that was 50% or more non-Hispanic black according to
the 1990 U.S. census.

The City and HUD timely appeal the grant of class certification.

III. STANDARD OF REVIEW

“We review a district court’s class certification decisions

for abuse of discretion.” Pederson v. La. State Univ., 213 F.3d

858, 866 (5th Cir. 2000). “[T]he district court maintains great

discretion in certifying and managing a class action. We will

reverse a district court’s decision to certify a class only upon

a showing that the court abused its discretion, or that it

applied incorrect legal standards in reaching its decision.”

Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 624 (5th Cir.

1999) (citations omitted). “Whether the district court applied

and destruction of buildings as urban nuisances. See id. at 654.
The court held that the seizure of buildings designated
“nuisances” pursuant to established and non-arbitrary police
power procedures was not rendered per se unreasonable by the
city’s failure to obtain a warrant to enforce a demolition order.
See id. As currently formulated, the Process Class does not
reflect the considerations necessitated by Freeman. On remand,
the district court will be required to evaluate the effect of
Freeman on the Process Class.

11
the correct legal standard in reaching its decision on class

certification, however, is a legal question that we review de

novo.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 408 (5th

Cir. 1998).

IV. ARTICLE III STANDING

We first address the named Plaintiffs’ standing to bring

this class action suit. “Jurisdictional questions are questions

of law, and thus reviewable de novo by this Court.” Pederson v.

La. State Univ., 213 F.3d 858, 869 (5th Cir. 2000) (citations

omitted). The City and HUD assert that the named Plaintiffs do

not have standing to bring either their Process Class claims or

their Race Discrimination Class claims. The district court did

not address this issue. However, because standing goes to the

constitutional power of a federal court to entertain an action,

this court has a duty to address it. See Bertulli v. Indep.

Ass’n of Cont’l Pilots, 242 F.3d 290, 294 (5th Cir. 2001); see

also Pederson, 213 F.3d at 866 n.5.9

9
In cases in which statutory standing is involved, we may
address statutory standing before Article III standing. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 97 (1998)
(suggesting that “a statutory standing question can be given
priority over an Article III question”). In Ortiz v. Fibreboard
Corp., the Supreme Court addressed this issue in the context of
class certification:

Ordinarily, of course, this or any other Article III court
must be sure of its own jurisdiction before getting to the
merits. But the class certification issues are, as they
were in Amchem[ Products, Inc. v. Windsor, 521 U.S. 591,

12
 Standing is a jurisdictional requirement that focuses on the

party seeking to get his or her complaint before a federal court

and not on the issues he or she wishes to have adjudicated. See

Pederson, 213 F.3d at 869. “A litigant must be a member of the

class which he or she seeks to represent at the time the class

action is certified by the district court.” Sosna v. Iowa, 419

U.S. 393, 403 (1975). If the litigant fails to establish

standing, he or she may not seek relief on behalf of himself or

herself or any other member of the class. See O’Shea v.

Littleton, 414 U.S. 488, 494 (1974).

The Supreme Court has recognized three requirements of

Article III standing:

It is by now well settled that “the irreducible
constitutional minimum of standing contains three elements.
First, the plaintiff must have suffered an ‘injury in fact’-
- an invasion of a legally protected interest that is (a)
concrete and particularized, and (b) actual or imminent, not
conjectural or hypothetical. Second, there must be a causal
connection between the injury and the conduct complained of.
. . . Third, it must be likely, as opposed to merely
speculative, that the injury will be redressed by a
favorable decision.”

612-13 (1997)], “logically antecedent” to Article III
concerns, and themselves pertain to statutory standing,
which may properly be treated before Article III standing.
Thus the issue about Rule 23 certification should be treated
first, “mindful that [the Rule’s] requirements must be
interpreted in keeping with Article III constraints.”

527 U.S. 815, 831 (1999); see also Amchem, 521 U.S. at 612-13;
Pederson, 213 F.3d at 866 n.5. In this case, we address Article
III standing first.

13
United States v. Hays, 515 U.S. 737, 742-43 (1995) (quoting Lujan

v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). For

injunctions, an additional inquiry is required, namely that

Plaintiffs show that they are likely to suffer future injury by

the defendant and that the sought-after relief will prevent that

future injury. See City of Los Angeles v. Lyons, 461 U.S. 95,

102 (1983) (“‘Past exposure to illegal conduct does not in itself

show a present case or controversy regarding injunctive relief.’”

(quoting O’Shea, 414 U.S. at 495-96)); see also Pederson, 213

F.3d at 869 (“Additionally, courts have refused to adjudicate

cases that raise only generalized grievances.”). However, if the

injury is accompanied by “any continuing, present adverse

effects,” standing for injunctive relief can be found. Lyons,

461 U.S. at 102 (internal quotations omitted) (quoting O’Shea,

414 U.S. at 495-96); see also Soc’y of Separationists, Inc. v.

Herman, 959 F.2d 1283, 1285 (5th Cir. 1992) (“To obtain equitable

relief for past wrongs, a plaintiff must demonstrate either

continuing harm or a real and immediate threat of repeated injury

in the future.”).

Both standing and class certification must be addressed on a

claim-by-claim basis. See Steel Co. v. Citizens for a Better

Env’t, 523 U.S. 83, 105 (1998); Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs. (TOC) Inc., 528 U.S. 167, 185 (2000); Bolin

v. Sears, Roebuck & Co., 231 F.3d 970, 976 (5th Cir. 2000). In

addition, at least one named Plaintiff must have standing to seek

14
injunctive relief on each of the claims against the City and HUD.

See Griffin v. Dugger, 823 F.2d 1476, 1483 (11th Cir. 1987). We

turn first to determine whether Article III standing exists to

support the claim for injunctive relief sought on behalf of the

Process Class against the City. Then, we examine whether Article

III standing exists to support the claim for injunctive relief

sought on behalf of the Race Discrimination Class brought against

the City and HUD.

A. Standing for Process Class Claims Against the City

Plaintiffs’ Process Class claims are directed solely against

the City. The named Plaintiffs argue that the ongoing effects of

the demolition of their repairable homes present continuing and

adverse effects to their property, and that the injunctive

remedies sought will directly redress those ongoing effects. The

named Plaintiffs point to the fact that the City has imposed a

collectible debt on Plaintiffs for costs, filing fees, and

expenses arising from the demolition and that this debt incurs

ongoing interest charges. Further, the named Plaintiffs point to

the continued liens the City holds on their properties, which

affects title to the properties and the named Plaintiffs’ credit

ratings. Finally, the named Plaintiffs allege that impending

foreclosures, enforcement actions, and collection actions based

on the demolition liens are imminent injuries that continue to

affect them personally and also affect the class as a whole.

15
 The above allegations are sufficient to prove an “actual”

and “imminent” “injury in fact” to the named Plaintiffs. See

Lujan, 504 U.S. at 560-61. The ongoing effect, which allegedly

burdens the Plaintiffs’ ownership of property, is personal and

invades a legally protected interest. See Pederson, 213 F.3d at

871 (“As a general matter, injury in fact is the invasion of a

legally protected interest.” (internal quotations omitted)). The

continued threat of collection actions or foreclosures by the

City based on the unpaid debt also suffices to demonstrate the

likelihood of real and immediate future injury. See O’Shea, 414

U.S. at 494.

In addition, there is little doubt that the named Plaintiffs

have established the “causal connection” element of Article III

standing for their Process Class claims against the City.

Causation requires that the injury be “fairly traceable to the

challenged action of the defendant, and not the result of the

independent action of some third party not before the court.”

La. ACORN Fair Hous. v. LeBlanc, 211 F.3d 298, 304 (5th Cir.

2000) (internal quotations omitted) (quoting Lujan, 504 U.S. at

561). It was the City’s action of demolishing the named

Plaintiffs’ homes, allegedly without adequate notice, that led to

the continued injury of liens, debt, and an infringement on a

legally protected interest. As such, the burdens placed on the

named Plaintiffs’ property are fairly traceable to the actions of

the City.

16
 Under the third requirement of Article III standing,

Plaintiffs must show that it is “likely, as opposed to merely

speculative, that the injury will be redressed in a favorable

decision.” Id. (quoting Lujan, 504 U.S. at 561). In

Plaintiffs’ Prayer for Relief, they request twelve permanent

injunctions directed at remedying the alleged due process

violations by the City. Of those twelve requests, seven10 of the

proposed injunctions could likely remedy the alleged continuing

injury and thus provide the requisite Article III redressability

for the Process Class.

However, also in their requests for permanent injunctions,

the named Plaintiffs have asked for several injunctive remedies

that will not redress the particular injuries they allege. The

requests by the named Plaintiffs that the City cease demolitions

of repairable structures that are owned by African Americans or

that are situated in African-American areas, and cease

demolitions without adequate notice do not redress their stated

injury. Because neither of the named Plaintiffs owns un-

demolished property in the City that would be subject to the

10
Specifically, Plaintiffs request permanent injunctions
that the City (1) cancel the debt assessed for demolition costs
and associated fees/interest and file notice in the public deed
record that the debt was cancelled, (2) file a release of the
lien in the public deed records, (3) ensure that title is clear
on the property, (4) ensure that all City records concerning the
property show the debt cancelled, (5) refrain from taking any
steps to enforce the lien or collect the debt, (6) refrain from
foreclosures based on demolition liens, and (7) refrain from
retaliatory action such as refusing to issue building permits.

17
proposed injunctions, the named Plaintiffs cannot demonstrate

that this requested relief will offer them redress. Should the

City cease all no-notice demolitions of single-family repairable

homes, the named Plaintiffs will not be protected from future

injury. Further, the named Plaintiffs have not demonstrated that

they will purchase or occupy a repairable single-family home in a

black census tract in the near future. See Adarand Constructors,

Inc. v. Pena, 515 U.S. 200, 211 (1995) (requiring an “adequate

showing” that Adarand would be involved in the bidding process

that implicated the injunctive relief sought). Therefore, these

two named Plaintiffs cannot demonstrate that they have standing

to request that the City cease future demolitions of repairable

structures.

In the same manner, these two named Plaintiffs do not have

standing to seek the return of money and interest paid for

demolition costs, because they have not alleged that they, in

fact, paid any money for demolition costs. These named

Plaintiffs also do not have standing to request the City set

aside all foreclosures based on demolition liens, because neither

Plaintiff has alleged that her property was foreclosed upon.

In addition, the named Plaintiffs’ request for an injunction

granting them clear title to a “comparable replacement home”11

11
Because Plaintiffs did not specify whether this
injunctive request runs to the Process Class or to the Race
Discrimination Class, we address the request separately for each
class.

18
will not necessarily redress the decrease in value of their

properties, which presumably will remain vacant. Plaintiffs are

not requesting that the City and HUD rebuild their demolished

homes on the particular lots they own — an act that arguably

would increase the value of their property. Instead, they are

requesting a replacement home somewhere else in the City of

Dallas. Unlike the other “continuing injuries” potentially

redressed by the sought-after injunctive relief listed in

footnote 10 supra, the provision of a comparable house does not

target the continuing effects of the lack of due process on their

properties and, instead, is more properly considered a request

for compensatory damages.12 As the Supreme Court in Lyons

recognized, standing to assert a claim for damages to redress

past injury may not always give rise to standing for injunctive

relief. See Lyons, 461 U.S. at 102. Therefore, the named

Plaintiffs lack standing for these portions of their Process

Class claims.

As such, we conclude that the named Plaintiffs of the

Process Class do not have Article III standing to request an

injunction to cease demolition of repairable structures owned by

African Americans or that are located in predominantly African-

American areas or to request comparable housing. The named

12
Our conclusion is based, in part, on the fact that the
alleged injury is no more “continuing” than a generic damages
action for which it is possible to seek compensatory damages,
including past and future pecuniary loss.

19
Plaintiffs do, however, have Article III standing to bring the

remainder of their Process Class claims.13

B. Standing for Race Discrimination Claims

Against the City and HUD

Plaintiffs allege that the City and HUD have engaged in a

practice of racially discriminatory housing demolition, the

effects of which continue to affect the named Plaintiffs’

property. The named Plaintiffs allege that because the City and

HUD utilized overt racial categories in the classification of

neighborhoods for purposes of conducting demolition-related

activities, they can demonstrate ongoing economic injury for the

class based on racial discrimination. Specifically, they allege

that the effects of this racial discrimination, which has

resulted in the demolition of a disproportionate number of

single-family houses in minority census districts, continues to

perpetuate racial segregation in those neighborhoods, and

continues to depreciate the value of their property by reducing

the marketability of those neighborhoods and by discouraging

public and private investment.

The City and HUD argue that because the named Plaintiffs do

not presently own any un-demolished residential houses in the

City subject to future racial discriminatory action by the City

or HUD, the named Plaintiffs cannot demonstrate the “likelihood

13
See supra note 10.

20
of substantial and immediate irreparable injury,” O’Shea, 414

U.S. at 502, or a continued effect on their properties. We

conclude that because the named Plaintiffs cannot demonstrate

that any of their requested relief will redress the alleged

injury, these named Plaintiffs do not have Article III standing

for the Race Discrimination Class claims. See Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 105 (1998) (finding

that because none of the requested relief would remedy the

alleged injury, plaintiffs did not have Article III standing);

see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.

(TOC) Inc., 528 U.S. 167, 185 (2000) (recognizing that “a

plaintiff must demonstrate standing separately for each form of

relief sought”).14

At the outset, it is important to focus on the precise

injury alleged by the named Plaintiffs. In this class action,

the named Plaintiffs are not claiming an injury based on past

14
As is evident in the discussions on redressability in
Laidlaw and Steel Co. some difference exists as to the
appropriate degree of scrutiny that federal courts must give to
the redressability prong of Article III standing. See Laidlaw,
528 U.S. at 185; id. at 202 (Scalia, J., dissenting); Steel Co.,
523 U.S. at 105; id. at 124 (Stevens, J., dissenting); cf. Larson
v. Valente, 456 U.S. 228, 243 n.15 (1982) (“[A] plaintiff
satisfies the redressability requirement when he shows that a
favorable decision will relieve a discrete injury to himself. He
need not show that a favorable decision will relieve his every
injury.”); Cramer v. Skinner, 931 F.2d 1020, 1028 (5th Cir.
1991). We make no judgment as to the appropriate degree of
scrutiny required to analyze Article III redressability in other
cases, but as will be discussed infra in the text, conclude that
none of the injunctions requested by the named Plaintiffs will
redress the personal injury claimed by these Plaintiffs.

21
damages due to demolition of their homes, nor are they claiming

that they fear imminent demolition of future homes. Instead,

these named Plaintiffs allege that the pattern of racial

discrimination in housing demolition and enforcement throughout

the City has decreased the value of their particular properties

and the surrounding neighborhoods and thus demonstrates that a

continuing, present adverse effect from racial discrimination

exists. See Lyons, 461 U.S. at 102. In so framing their claim,

the named Plaintiffs steer a course between a damages action for

which they might have standing, but which would undermine their

Rule 23(b)(2) injunctive status, and a pure prospective

injunction that would enjoin the City and HUD from demolishing

other homes in the future, but that would undermine standing for

these named Plaintiffs who do not own other homes in the City.

Despite this careful framing of the issue, on the facts

before us, the named Plaintiffs cannot demonstrate that it is

“likely” “that the continuing injury will be redressed in a

favorable decision.” Lujan, 504 U.S. at 561; see also Steel Co.,

523 U.S. at 105. Our decision turns on the narrowness of the

named Plaintiffs’ claimed continuing injury, and the broad relief

requested that does not address the particular injury suffered by

these two Plaintiffs. The named Plaintiffs’ requested injunctive

relief simply does not redress the continuing devaluation of

their particular lots of property and neighborhoods because of

racially discriminatory demolitions taking place in all parts of

22
the City.15 See Steel Co., 523 U.S. at 107 (“Relief that does

not remedy the injury suffered cannot bootstrap a plaintiff into

federal court; that is the very essence of the redressability

requirement.”).16 Because the named Plaintiffs do not allege

that they will suffer future injury from the alleged city-wide

racially discriminatory demolitions, they are left with a

difficult argument of demonstrating how the requested injunctive

relief will redress the on-going economic effects on their

already demolished homes and individual pieces of property.

As stated in the previous section, the named Plaintiffs’

request for clear title to comparable housing in another part of

Dallas will not redress the continuing adverse economic effects

on their particular properties or neighborhoods. Because

Plaintiffs fail to link their request for replacement housing to

how it will redress the injury they have alleged to their

particular properties, they cannot demonstrate Article III

standing for their request.

15
For the purposes of this opinion, we assume the named
Plaintiffs have alleged a sufficiently concrete and personal
injury in fact. See Steel Co., 523 U.S. at 105 (assuming injury
in fact and deciding the question of standing on redressability).
16
By framing this injury as a continuing injury and not an
imminent future injury, Plaintiffs separate their claim from the
history of race discrimination class actions that have sought
successfully to enjoin future injury based on alleged race
discrimination. See FED. R. CIV. P. 23(b)(2) advisory committee’s
note (recognizing that Rule 23(b)(2) was intended to be used “in
the civil-rights field where a party is charged with
discriminating unlawfully against a class”).

23
 In addition, the named Plaintiffs also seek an injunction

prohibiting the City and HUD from using overt racial stereotypes

in the classification of neighborhoods and thus presumably

continuing a discriminatory policy and practice traceable to its

neighborhood classifications.17 However, the named Plaintiffs do

not demonstrate how prohibiting the use of certain racial

classifications will remedy the alleged ongoing economic effects

of past racial discrimination on their particular properties. An

alteration of the classification system may not have any impact

on their property or their neighborhoods. Plaintiffs can only

speculate that if the alleged classifications are altered, this

will affect future investment, and thereby, their properties or

neighborhoods will be improved by the change. Such speculation

cannot support Article III standing. See Lujan, 504 U.S. at 561.

In a similar manner, Plaintiffs’ general request that an

injunction be ordered to “eradicate the effects of HUD’s

17
Plaintiffs do not claim that the racial classification,
itself, provides standing for the requested injunctive relief,
but seek to tie the racial discrimination to continued effects of
the demolition on their properties. We recognize, “[i]n general,
the racial classification of the homeowners is an injury in and
of itself.” See Walker v. City of Mesquite, Tex., 169 F.3d 973,
980 (5th Cir. 1999). In Allen v. Wright, the Supreme Court
recognized the potential “stigmatizing injury caused by racial
discrimination” and stated, “[t]here can be no doubt that this
sort of noneconomic injury is one of the most serious
consequences of discriminatory government action and is
sufficient in some circumstances to support standing.” 468 U.S.
737, 755 (1984)(emphasis added). Because Plaintiffs have not
based their standing argument on this theory, we need not address
whether the alleged racial classification, alone, is “sufficient”
in this circumstance “to support standing.” Id.

24
discrimination” or to have the district court approve a plan to

eliminate the effects of the City and HUD’s discrimination is an

inappropriate remedy. Plaintiffs have requested that HUD be

ordered to remedy “the loss of housing units caused by the HUD

funded housing code enforcement and housing code enforcement

related demolitions of repairable single family units as well as

the resulting blight caused by the loss of housing and households

from those areas.” This request reveals both the compensatory

nature of the proposed prospective relief and the over-broad

nature of the remedy. As stated above, if read to require

comparable housing, this request is better characterized as a

prayer for damages. Further, if read as a sweeping request to

generally eradicate the effects of discrimination, the request is

not sufficiently targeted to remedy the named Plaintiffs’

personal injuries. Cf. Warth v. Seldin, 422 U.S. 490, 499 (1975)

(recognizing that “a generalized grievance shared in

substantially equal measure by all or most citizens” cannot

provide standing to request injunctive relief). Again, the named

Plaintiffs can only speculate that their properties would be

improved by such sweeping relief.

Finally, one of the named Plaintiffs’ injunctive requests

will have no effect on the alleged injury to their neighborhoods

or on the named Plaintiffs’ properties. The request for a

permanent injunction for HUD to “monitor” the City to determine

if it is discriminating on the basis of race will not remedy the

25
continued depreciation in property values in the named

Plaintiffs’ neighborhood.18 For the above-stated reasons, the

named Plaintiffs have not demonstrated that their injuries likely

will be redressed by this requested relief, and thus, they have

failed to demonstrate Article III standing for the Race

Discrimination Class.

C. Summary of Standing

In summary, the two named Plaintiffs, James and Lary, have

demonstrated Article III standing for seven19 of the Process

Class requests for injunctive relief. However, because these two

named Plaintiffs cannot demonstrate how the remaining five20

injunctive requests will redress their alleged injuries, they

cannot demonstrate Article III standing for these Process Class

claims. We remand with instructions to dismiss the Process Class

claims for injunctive relief for which the named Plaintiffs do

not have standing.

18
Again, while this form of relief might be appropriate to
redress alleged future injury from racial discrimination, it does
not redress these named Plaintiffs’ particular continuing
economic injury.
19
See supra note 10.
20
Specifically, we hold that these two named Plaintiffs do
not have standing to seek injunctive relief on behalf of the
Process Class requesting that the City: (1) cease demolitions of
repairable structures that are owned by African Americans or are
situated in African-American areas; (2) cease demolitions of
repairable structures without adequate notice; (3) return money
paid with interest for demolition; (4) set aside foreclosures
based on demolition liens; and (5) grant the named Plaintiffs
clear title to a comparable replacement home.

26
 In addition, because none of the requested injunctive relief

will redress the named Plaintiffs’ Race Discrimination injury, we

hold that these named Plaintiffs have failed to demonstrate

Article III standing for the Race Discrimination Class. Because

the named Plaintiffs have failed to demonstrate Article III

standing to bring their Race Discrimination Class claims, we

vacate that Class and remand with instructions to dismiss those

claims. Further, because the only claims against HUD were based

on the Race Discrimination Class, we remand with instructions to

dismiss HUD from the lawsuit.

We next address the requirements of Rule 23(b)(2) with

regard to the remaining Process Class claims.21

V. RULE 23(b)(2)

At the outset, we note that the City’s principal arguments

in opposition to the proposed Process Class have been mooted by

our standing discussion. However, as the City has challenged the

Rule 23(b)(2) Process Class certified by the district court and

as some claims remain to be asserted by that class, we have an

obligation to ensure that the requirements of Rule 23 are met.

See FED. R. CIV. P. 23(a) & (b)(2). We hold that the district

21
Because we resolve the class certification issue based
on the requirements of Article III standing, we do not address
other statutory standing issues that arise in this suit. See
Alexander v. Sandoval, -- U.S. --, 121 S. Ct. 1511 (2001).

27
court did not abuse its discretion in certifying the Process

Class against the City; however, as discussed supra regarding

standing, the named Plaintiffs have Article III standing to seek

only seven of their requested injunctions22 and, thus, can only

represent a Rule 23(b)(2) class constrained by these

jurisdictional requirements. We now turn to analyze the

requirements of Rule 23.

A. Rule 23 Requirements

To certify a class with respect to a claim, the district

court must find that the putative class meets the four

requirements set out in Rule 23(a). See FED. R. CIV. P. 23(a).

Rule 23(a) requires that (1) the class be so numerous that

joinder of all members is impracticable [numerosity], (2) there

be questions of law or fact common to the class [commonality],

(3) the claims or defenses of the representative parties be

typical of the claims or defenses of the class [typicality], and

(4) the representative parties fairly and adequately protect the

interests of the class [adequacy]. See Washington v. CSC Credit

Servs., Inc., 199 F.3d 263, 265 (5th Cir. 2000) (citing FED. R.

CIV. P. 23(a)).

The court must also find that the class fits within one of

the categories of Rule 23(b).23 See FED. R. CIV. P. 23(b).

22
See supra note 10.
23
Rule 23(b) reads in relevant part:

28
Relevant to this appeal, a court may certify a class under Rule

23(b)(2) if “the party opposing the class has acted or refused to

act on grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole.” Bolin v. Sears,

Roebuck & Co., 231 F.3d 970, 975 (5th Cir. 2000) (quoting FED. R.

CIV. P. 23(b)(2)). As Bolin recognized, “[t]he Advisory

Committee Notes and our cases make clear that injunctive or

declaratory relief is not ‘appropriate’ when the ‘final relief

relates exclusively or predominantly to money damages.’” Id.

(b) Class Actions Maintainable. An action may be
maintained as a class action if the prerequisites of
subdivision (a) are satisfied, and in addition:
(1) the prosecution of separate actions by or against
individual members of the class would create a risk of
(A) inconsistent or varying adjudications with
respect to individual members of the class which
would establish incompatible standards of conduct
for the party opposing the class, or
(B) adjudications with respect to individual
members of the class which would as a practical
matter be dispositive of the interests of the other
members not parties to the adjudications or
substantially impair or impede their ability to
protect their interests; or
(2) the party opposing the class has acted or refused to
act on grounds generally applicable to the class,
thereby making appropriate final injunctive relief or
corresponding declaratory relief with respect to the
class as a whole; or
(3) the court finds that the questions of law or fact
common to the members of the class predominate over any
questions affecting only individual members, and that a
class action is superior to other available methods for
the fair and efficient adjudication of the controversy.

FED. R. CIV. P. 23(b).

29
(quoting FED. R. CIV. P. 23(b)(2) advisory committee’s note); see

also Allison v. Citgo Petroleum Corp., 151 F.3d 402, 411 (5th

Cir. 1998). Therefore, in bringing their class action under

Federal Rule of Civil Procedure 23(b)(2), Plaintiffs must

demonstrate that their class action suit seeks predominantly

injunctive relief rather than monetary damages. See Washington,

199 F.3d at 269. We address each of the requirements of Rule 23

in turn.

1. Rule 23(a): Numerosity

“To satisfy the numerosity prong, ‘a plaintiff must

ordinarily demonstrate some evidence or reasonable estimate of

the number of purported class members.’” Pederson, 213 F.3d at

868 (quoting Zeidman v. J. Ray McDermott & Co., 651 F.2d 1030,

1038 (5th Cir. 1981)). The district court found that Plaintiffs

presented evidence showing that 580 repairable single-family

homes were demolished without adequate notice. Plaintiffs allege

that there exist over 100 class members,24 relying on the

estimate of 580 individuals who had their property demolished

without adequate notice. We conclude that the district court did

not abuse its discretion in finding that there exists a

sufficient number of proposed Process Class members to meet this

requirement.

2. Rule 23(a): Commonality

24
This general figure is listed in Plaintiffs’ Second
Amended Complaint and Third Amended Complaint.

30
 To demonstrate commonality, Plaintiffs must allege that

there exist “questions of law or fact common to the class.”

Mullen v. Treasure Chest Casino, LLC, 186 F.3d 620, 625 (5th Cir.

1999). “The test for commonality is not demanding.” Id.; see

also Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir.

1993) (“The threshold of ‘commonality’ is not high.” (citations

omitted)). All that is required for each class is that there is

one common question of law or fact: “The interests and claims of

the various plaintiffs need not be identical. Rather, the

commonality test is met when there is ‘at least one issue whose

resolution will affect all or a significant number of the

putative class members.’” Forbush, 994 F.2d at 1106 (quoting

Stewart v. Winter, 669 F.2d 328, 335 (5th Cir. 1982)).

Therefore, the fact that some of the Plaintiffs may have

different claims, or claims that may require some individualized

analysis, is not fatal to commonality.

In this case, the members of the Process Class share a

common factual circumstance of having their repairable single-

family homes demolished without adequate notice of the final

demolition order from the City, and a common legal theory that

this action by the City violates the Due Process Clause of the

Fourteenth Amendment. The theory of liability under 42 U.S.C.

§ 1983 would be the same for all Plaintiffs. We conclude that

the district court did not abuse its discretion in finding

sufficient commonality in the Process Class.

31
 3. Rule 23(a): Typicality

In order to meet the typicality requirement, “the claims or

defenses of the parties [must be] typical of the claims or

defenses of the class.” FED. R. CIV. P. 23(a)(3); see Mullen, 186

F.3d at 625. “Like commonality, the test for typicality is not

demanding. It focuses on the similarity between the named

plaintiffs’ legal and remedial theories and the theories of those

whom they purport to represent.” Mullen, 186 F.3d at 625

(citations omitted); Forbush, 994 F.2d at 1106. “Typicality does

not require a complete identity of claims. Rather, the critical

inquiry is whether the class representative’s claims have the

same essential characteristics of those of the putative class.

If the claims arise from a similar course of conduct and share

the same legal theory, factual differences will not defeat

typicality.” 5 JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE

¶ 23.24[4] (3d ed. 2000).

In this case, the named Plaintiffs are African-American

property owners who have had their repairable single-family homes

demolished without adequate notice, allegedly in violation of due

process. Within the Process Class, James apparently represents

the class of individuals denied all notice of impending

demolitions. Lary represents those who received actual notice of

the hearing, but did not receive adequate notice of the final

demolition order. Because we determine that the named

Plaintiffs’ allegations are typical of the class that the named

32
Plaintiffs represent, we hold that the district court did not

abuse its discretion in determining the typicality element of the

class certification.

4. Rule 23(a): Adequacy

The final requirement of Rule 23(a) is that the district

court must find that the “representative parties will fairly and

adequately protect the interests of the class.” FED. R. CIV. P.

23(a)(4). “Differences between named plaintiffs and class

members render the named plaintiffs inadequate representatives

only if those differences create conflicts between the named

plaintiffs’ interests and the class members’ interests.” Mullen,

186 F.3d at 625-26. The district court found that there was “no

conflict of interest between plaintiffs and the proposed

classes.” As the City does not contest this finding, we hold

that the district court did not abuse its discretion in finding

that the named Plaintiffs could adequately represent the members

of the Process Class.

B. Rule 23(b)(2): Predominance of Injunctive Relief

“[T]o maintain an action under Rule 23(b)(2), [injunctive]

relief rather than monetary damages must be the ‘predominant’

form of relief the plaintiffs pursue.” Washington, 199 F.3d at

269. We are guided in our “predominance” analysis by the

careful discussion of Rule 23(b)(2) set forth in Allison v. Citgo

Petroleum Corp. See 151 F.3d at 412-15. The Allison court

33
recognized that the different presumptions with respect to “class

cohesiveness” and “homogeneity of interests” among the members of

the Rule 23 (b)(1), (b)(2), and (b)(3) classes necessitate

different procedural safeguards for each potential class. See

id. at 412; see also Amchem Prods., Inc. v. Windsor, 521 U.S.

591, 612-13 (1997).

In the Rule 23(b)(2) context, “because of the group nature

of the harm alleged and the broad character of the relief sought,

the (b)(2) class is, by its very nature, assumed to be a

homogenous and cohesive group with few conflicting interests

among its members.” Allison, 151 F.3d at 413. The cohesiveness

of the class breaks down, however, when the class seeks to

recover relief based on individual injuries. See id. Further,

“as claims for individually based money damages begin to

predominate, the presumption of cohesiveness decreases while the

need for enhanced procedural safeguards to protect the individual

rights of class members increases.” Id. The court reasoned:

[Rule 23](b)(2)’s predomination requirement serves two basic
purposes: first, it protects the legitimate interests of
potential class members who might wish to pursue their
monetary claims individually; and, second, it preserves the
legal system’s interest in judicial economy.

Id. at 415. Based on this reasoning, the court held that

“monetary relief predominates in (b)(2) class actions unless it

is incidental to requested injunctive or declaratory relief.”

Id. The Allison court explained that “[b]y incidental, we mean

damages that flow directly from liability to the class as a whole

34
on the claims forming the basis of the injunctive or declaratory

relief.” Id. (“[S]uch damages should at least be capable of

computation by means of objective standards and not dependent in

any significant way on the intangible, subjective differences of

each class member’s circumstances.”).

In evaluating the proposed relief sought by the named

Plaintiffs for which they have Article III standing,25 we

conclude that none of the concerns articulated in Allison bars

class certification for the Process Class. As stated, Plaintiffs

request the following seven injunctive remedies: that the City

(1) cancel the debt assessed for demolition costs and associated

fees/interest and file notice in the public deed record that the

debt was cancelled, (2) file a release of the lien in the public

deed records, (3) ensure that title is clear on the property, (4)

ensure that all City records concerning the property show the

debt cancelled, (5) refrain from taking any steps to enforce the

lien or collect the debt, (6) refrain from foreclosures based on

demolition liens, and (7) refrain from retaliatory action such as

25
Because we have concluded that the named Plaintiffs do
not have Article III standing to seek “clear title to a
comparable replacement single family housing unit,” this request
does not defeat class certification under Rule 23(b)(2).
However, we note that Plaintiffs’ request for an injunction to
order the City to provide substitute houses would be
substantially equivalent to a judgment against the City for
damages in the amount necessary to buy substitute houses. Cf.
Jaffee v. United States, 592 F.2d 712, 715 (3d Cir. 1979) (“A
plaintiff cannot transform a claim for damages into an equitable
action by asking for an injunction that orders the payment of
money.”).

35
refusing to issue building permits. This requested relief is

consistent with the group-oriented nature of the alleged injury

and presents no conflict with the injunctive purposes of Rule

23(b)(2). See Allison, 151 F.3d at 415; FED. R. CIV. P. 23(b)(2)

advisory committee’s note.

As is evident, much of the requested redress is pure

injunctive relief, which does not implicate a concern about

monetary damages. Further, whatever monetary cost may run

against the City is incidental to the requested injunctive relief

of removing the liens and clearing title from the consequences of

the allegedly constitutionally deficient no-notice demolitions.

These monies “flow directly from the liability to the class as a

whole on the claims forming the basis of the injunctive relief,”

Bolin, 231 F.3d at 976, and are, thus, proper under Rule 23(b)(2)

to remove the continuing adverse effects of liens and debts on

Plaintiffs’ property. Finally, there is no concern that “the

legitimate interests of potential class members who might wish to

pursue their monetary [damages] claims individually” would be

interfered with by this class certification. See Allison, 151

F.3d at 415.

Because we determine that the injunctive relief for which

the named Plaintiffs have standing predominates over monetary

damages, we hold that the district court did not abuse its

discretion in certifying the Process Class. Accordingly, we

affirm the class certification as modified in this opinion.

36
 VI. CONCLUSION

Because we determine that the named Plaintiffs do not have

standing to seek the relief requested for the “Race

Discrimination Class,” we VACATE the district court’s

certification of that class and REMAND with instructions to

dismiss all the Race Discrimination Class claims against the City

and HUD and to dismiss HUD from the lawsuit. Because we

determine that the named Plaintiffs do have standing to seek the

relief requested for seven of their twelve Process Class claims

against the City and we determine further that the district court

did not abuse its discretion in certifying the “Process Class,”

we AFFIRM AS MODIFIED the district court’s certification of that

class. Finally, because we determine that the named Plaintiffs

do not have standing to seek the relief requested for five of

their Process Class claims, we REMAND with instructions to

dismiss those claims. Costs shall be borne one-half by

Plaintiffs and one-half by the City. All pending motions are

DENIED.

37