USA v. Edward Rose and Sons

Appeal from the United States District Court SILER, Circuit Judge. This housing discrimination case

for the Eastern District of Michigan at Detroit. turns on what doors must be accessible to the handicapped.

No. 02-73518-Victoria A. Roberts, District Judge. At issue are two sets of apartment complexes, designed with

an inaccessible front door, but an accessible back patio door.

Argued: March 10, 2004 The district court granted the U.S. Justice Department

("government") a preliminary injunction halting the

Decided and Filed: August 25, 2004 construction and occupancy of the buildings. The main

defendant, the builder and owner, Edward Rose & Sons

Before: SIL ER, MOORE, and SUTTON, Circuit Judges. ("Rose"), appeals, arguing that court erred (1) by

misconstruing the requirements of the Fair Housing Act,

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42 U.S.C. § 3601 et seq. ("FHA"), and (2) by incorrectly regulations, guidelines, and design manual. The preliminary

weighing the relative preliminary injunction interests and injunction halts construction on the "covered dwellings" and

harms. We AFFIRM the district court's grant of the restrains the defendants from occupying "covered dwellings"

preliminary injunction. not yet leased. In this case, "covered dwellings" means

simply the ground floor. See 42 U.S.C. § 3604(f)(7) (stating

I. FACTUAL & PROCEDURAL BACKGROUND if building has no elevator, only the ground floor is a covered

dwelling subject to the FHA). Rose appeals.

Defendant Rose¹ constructed and owns the nineteen

apartment buildings, located in Michigan and Ohio, at issue. II. STANDARD OF REVIEW

These buildings are at various stages of construction, but all

have the same basic design. The ground floor apartments at This court reviews the grant of a preliminary injunction for

issue have two exterior entrances - a front door and rear patio an abuse of discretion. See Washington v. Reno, 35 F.3d

door.² The front door is closer to the parking lot, but is 1093, 1098 (6th Cir. 1994). A "district court's findings of

handicapped inaccessible because it can only be reached by fact underlying its decision to grant a preliminary injunction

descending stairs. At the bottom of the stairs is a landing are reviewed for clear error and the legal conclusions

shared by two front doors leading into two different underpinning its decision are reviewed de novo." In re Eagle-

apartments. The rear patio entrance is accessible,³ but is Picher Indus., Inc., 963 F.2d 855, 858 (6th Cir. 1992).

located farther from the parking lot. Because a trial court's decision to grant a preliminary

injunction is accorded great deference, this court should

The government alleged that the apartments violated the disturb such a decision only if the district court "relied upon disability portions of the FHA. The district court granted a clearly erroneous findings of fact, improperly applied the preliminary injunction, adopting the government's position governing law, or used an erroneous legal standard." that the front door was the "primary entrance" used by the Washington, 35 F.3d at 1098.

public and guests, and as such, it was a "public" or "common

area" that the FHA mandates be accessible. See 42 U.S.C. The preliminary injunction factors are: "(1) the likelihood

3604(f)(3)(C)(i). In reaching this conclusion, the court relied that the party seeking the preliminary injunction will succeed

on the Housing and Urban Development ("HUD") on the merits of the claim; (2) whether the party seeking the

injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the

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The architects of the buildings, Dorchen/Martin Associates, injunction will cause substantial harm to others; and Eckert/W ordell Architect s, James Suale, and Geral d Peterson (4) whether the public interest is advanced by the issuance of ("architects"), were also named as defendants and have filed a brief. the injunction." Id. at 1099. These are factors to be balanced, district court in granting a preliminary injunction are not (III) reinforcements in bathroom walls to allow later binding at a trial on the merits. University of Texas v. installation of grab bars; and

Camenisch, 451 U.S. 390, 395 (1981).

(IV) usable kitchens and bathrooms such that an

III. ANALYSIS individual in a wheelchair can maneuver about the

space.

Likelihood of Success on the Merits

42 U.S.C. § 3604(f)(3) (emphasis added).

The basic question of this litigation is whether the space

outside the front door is a public or common use area that The government asserts that because the landing at the

must be handicapped accessible. We are the first circuit to bottom of the stairs is a "common area," § 3604(f)(3)(C)(i)

consider the issue. The statute reads: mandates that the landing must be accessible. The landing in

front of the entrances is not accessible because it can only be

C) in connection with the design and construction of reached by the stairs. The government argues that this covered multifamily dwellings for first occupancy after entrance is the "primary" door because it is in the front and the date that is 30 months after September 13, 1988, a closest to the parking lot. As such, it is the entrance most failure to design and construct those dwellings in such a visitors will use, and thus the space or landing in front of the manner that-- door is a public or common area. Additionally, the stair

landing is shared by two entrances to two different apartment

(i) the public use and common use portions of such units, and thus a common area used by two tenants.

dwellings are readily accessible to and usable by handicapped persons ; Rose correctly points out that neither the statute nor any

possibly binding regulations make any reference or

(ii) all the doors designed to allow passage into and distinction between "primary," "front," or "back" doors.

within all premises within such dwellings are sufficiently Rose argues that the government's interpretation requires wide to allo w passage by handicapped persons in almost every entrance to a unit be accessible. If the space in wheelchairs; and front of an entrance becomes a common use area, simply

because people use the entrance, then the statute would

(iii) all premises within such dwellings contain the require virtually every entrance to be accessible.

following features of adaptive design :

Rose asserts that if the space in front of virtually every

(I) an accessible route into and through the entrance is a "common" or "public" area,

dwelling ; § 3604(f)(3)(C)(iii)(I) becomes superfluous. Section

(II) light switches, electrical outlets, thermostats, 3604(f)(3)(C)(iii)(I) mandates all premises must have " an

and other environmental controls in accessible accessible route into and through the dwelling." (Emphasis locations; added indicates .). Rose contends that the indefinite article "a that the statute only requires one accessible route n"

into each unit. As such, the space in front of every door to a private unit cannot be a common area, or all doors would Our ruling is narrow; we simply hold in this case that have to be accessible, and there would be no need for because the two apartments share the stair landing, the stair § 3604(f)(3)(C )(ii i)(I) to separately mandate "an accessible landing qualifies as a "common area" that must be accessible. route" into the unit. Moreover, even if there were such a We express no opinion on what the FHA would require if the thing as a single "primary" entrance, whose anterior space stairs only led to one apartment unit entrance and decline to must be accessible as a common area, there would still be no delve into the parties' "primary entrance" arguments because need for § 3604(f)(3)(C)(iii)(I) to redundantly mandate " an we find them unnecessary for the resolution of this case. accessible route." An accessible route would already be Assuming arguendo that, as Rose submits, not every entrance mandated by the common area in front of the primary constitutes a "common area" because otherwise entrance of every unit. § 3604(f)(3)(C)(iii)(I)'s mandate that all premises have " an

accessible route" is superfluous, we still would find that the

We find that, in this particular case, the stair landing in shared landing is a common area. Section front of the entrance is a common area that the statute § 3604(f)(3)(C)(iii)(I) would not be superfluous because that mandates be accessible. The fact that two apartment units section would ensure that apartment units that share no share the stair landing makes the space a common area. The entrance with another apartment unit would still have "an plain meaning of "common use" unambiguously covers the accessible" entrance.

entrance under dispute. At the time of the statute's

enactment, dictionaries generally defined "common" as In sum, we find that the stair landing qualifies as a

belonging to or shared by two or more individuals. See The "common area" that the FHA mandates be accessible. Thus,

Oxford English Dictionary 565 (J.A. Simpson & E.S.C. the government's likelihood of success on the merits is

Weiner eds., Clarendon Press 2d ed. 1989) (defining common strong.

as "[b]elonging equally to more than one" and "possessed or

shared alike by both or all."); Webster's Third New

International Dictionary 458 (Philip Babcock Gove ed.,

Merriam-Webster 1986) ("held, enjoyed, experienced, or

participated in equally by a number of individuals; possessed

or manifested by more than one individual"); Funk & under the HUD regulations defining "common use area." See generally

Wagnalls New International Dictionary (Publishers Chevron U.S.A. v. Natural Resources D efense Council , 467 U.S. 837

International Press Comprehensive ed. 1984) ("Pertaining to, (1984) (finding regulatory interpretat ion of ambiguous statute controlling

connected with, or participated in by two or more persons or if not contrary to the statute); Meyer v. Holley , 537 U.S. 280, 288 (2003)

things; joint."). Here, the stair landing belongs to, and is (Supreme Court using HUD regulations and commentary in Federal

shared by, two apartments, and exists for their "common Regist areas" as "rooms, spaces or elements i er in interpreting the FHA). T he reg nside or out ulation defines "com side of a buildi mon use ng that

use."⁴ are made available for the use of residents of a building or the guests

thereof . . . includ[ing] hallways, lounges, lobbies, laundry rooms, refuse rooms, mail rooms, recreational areas and passageways among and

The Other Preliminary Injunction Factors criteria do not govern the issuance of preliminary

injunctions." Id. at 551. Like the FHA, the statute read that

Besides the statutory interpretation, which deals with the courts "may" grant preliminary injunctions "as may be (1) "likelihood of success on the merits" factor, the other necessary to prevent, restrain, or terminate" any violations of injunction factors the court considers are (2) irreparable injury the statute. Id. at 550.

to the party seeking the injunction, (3) substantial harm to

others, and (4) the public interest served by the grant of the We need not decide whether CSX controls or whether a

injunction. We need not tarry because of the government's statute must mandate another showing that displaces the

overwhelming likelihood of success on the merits. traditional equitable factors because we find it immaterial to

the disposition of this case. We balance the equitable factors,

Irreparable Injury and none is a prerequisite. Washington, 35 F.3d at 1099. The

other equitable factors, particularly the strong likelihood of

The district court presumed irreparable harm because the success on the merits, outweigh any lack of irreparable harm, FHA explicitly provides for injunctive relief. Rose argues with or without any presumption.

this presumption is not the law of the Sixth Circuit. We find

any error by the district court of no consequence. Substantial Harm to Others

Under the FHA, the court "may award" a temporary Regarding the substantial harm to others factor, Rose injunction "for a violation" of the statute "as is necessary to asserts that it is sustaining massive monetary damage from assure the full enjoyment of the rights granted." 42 U.S.C. the halt of construction and renting of the finished units, § 3614(d)(1)(A). Some circuits have ruled that when a amounting to $150,000 a month. The government responds federal statute specifically provides for injunctive relief, that it made Rose aware that these apartment designs violated traditional equity principles do not apply, and a showing of the FHA, so Rose proceeded at its own risk. This court, in irreparable harm is not required. See, e.g., United States v. Baker v. Adams County/Ohio Valley School Board , 310 F.3d Diapulse, 457 F.2d 25, 27-28 (2d Cir.1972). Other circuits 927 (6th Cir. 2002), found "[m]ere injuries, however find that the statute must have language specifically changing substantial, in terms o f money, ti me and energy necessarily the traditional standards, such as language mandating that the expended" in compliance with an injunction "are not court "shall" enjoin the activity if an agency order is enough." Id. at 930 (citation omitted). "Indeed, especially disobeyed. See, e.g., Illinois Bell Telephone v. Illinois when a party knew of the risk that it undertook when it Commerce Comm'n , 740 F.2d 566, 571 (7th Cir. 1984). undertook the enjoined activity, monetary losses from the Under this second approach, if a statute confers a right to an [sic] complying with the injunction will seldom be injunction once a certain showing is made, the plaintiff need irreparable." Id. Thus, Rose voluntarily incurred any harm show no more than the statute specifies. United States v. from the preliminary injunction.

Microsoft Corp., 147 F.3d 935, 943 (D.C. Cir.1998). In CSX

Transportation v. Tennessee State Board of Equalization , 964 Public Interest

F.2d 548 (6th Cir. 1992), the court found that "since Congress

has expressly authorized the granting of injunctive relief to Finall y, on the public interest factor, the Supreme Court has

halt or prevent a violation of [the statute], traditional equitable found the FHA serves an "overriding societal priority ."

Meyer v. Holley , 537 U.S. 280, 290 (2003); accord Price v.

Pelka , 690 F.2d 98, 102 (6th Cir. 1982) (eradicating housing

discrimination serves the "public interest").

IV. CONCLUSION

Balancing the Preliminary Injunction Factors

The stair landing shared by two apartments qualifies as a

"common area" that the FHA mandates be handicapped

accessible. This strong finding of a likelihood of success on

the merits coupled with the public's interest in eradicating

housing discrimination overcomes any weakness in the

irreparable injury and harm to others factors.

AFFIRMED.