House the Homeless v. Widnall ( 1996 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 96-50065
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HOUSE THE HOMELESS, INC., A NON-PROFIT ORGANIZATION,
RICHARD R. TROXELL, President, CHRIS LYNE,
Plaintiffs-Appellants,
versus
SHEILA E. WIDNALL, Sec. Air Force, in her official
capacity of Secretary of the United States, et al.,
Defendants.
JESUS GARZA, In His Official Capacity as City Manager
of the City of Austin,
Defendant-Appellee.
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No. 96-50265
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HOUSE THE HOMELESS, INC., A NON-PROFIT ORGANIZATION,
RICHARD R. TROXELL, President, CHRIS LYNE,
Plaintiffs-Appellants,
versus
SHEILA E. WIDNALL, Sec. Air Force, in her official capacity
as Secretary of the United States Air Force, WILLIAM J. PERRY,
Honorable, In His Official Capacity as Secretary of the Department
of Defense, JESUS GARZA, In His Official Capacity as City Manager
of the City of Austin,
Defendants-Appellees.
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Appeals from the United States District Court
for the Western District of Texas
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August 21, 1996
Before BENAVIDES, STEWART and DENNIS, Circuit Judges.
FORTUNATO P. BENAVIDES, Circuit Judge:
Plaintiffs-Appellants appeal the district court's order and
partial judgment denying Plaintiffs-Appellants' request for a
temporary restraining order and preliminary injunction and
dismissing Plaintiffs-Appellants' claims against Defendant-Appellee
City of Austin, and the district court's order and final judgment
dismissing Plaintiffs-Appellants' claims against all remaining
Defendants-Appellees. We affirm.
BACKGROUND
In 1942, the Air Force1 and the City of Austin ("City")
negotiated an agreement whereby the Air Force used $466,000
supplied by the City to purchase 2,892 acres for a military air
base, which became Bergstrom Air Force Base ("Bergstrom"). The
terms of the agreement, set forth in a "night letter," included the
following:
TITLE TO VEST IN THE UNITED STATES AND TO BE CONVEYED TO
CITY OF AUSTIN WHEN NO LONGER NEEDED BY GOVERNMENT AFTER
PRESENT WAR SUBJECT TO RIGHT OF RECAPTURE OF USE IN ANY
FURTHER FUTURE EMERGENCY
ANY STRUCTURES ERECTED BY GOVERNMENT WILL REMAIN PROPERTY
OF UNITED STATES
RUNWAYS[,] ROADS[,] ETC WHICH ARE NOT SALVAGEABLE WILL
REMAIN IN PLACE
LANDS WILL BE TURNED OVER TO CITY IN PRESENT CONDITION
EXCEPT AS TO EXISTING BUILDINGS WHICH ARE TO BE
DEMOLISHED
GOVERNMENT TO HAVE OPTION OF LEAVING OF LANDS PART OR ALL
STRUCTURES TO BE ERECTED IN LIEU OF RESTORATION.
1
The Air Force did not become a separate branch of the Armed
Services until 1947; until that time it was part of the United
States Army.
2
Then on February 27, 1947, the Austin City Council passed a
resolution declaring that the City wanted the Air Force to continue
using Bergstrom as an air base, stating that "only upon abandonment
of Bergstrom Field as a permanent Army [Air Force] Air Base should
the City of Austin request or demand that full legal and equitable
title to said lands, together with all improvements...revert to and
vest in the City of Austin."2
In April 1991, Bergstrom was recommended for closure on
September 30, 1993. Prior to the closure, the Air Force submitted
virtually all of the after acquired property, i.e. 324 acres of
land that was purchased with federal funds after the 1942 land
purchase and all improvements on the total land acreage, to the
Department of Housing and Urban Development ("HUD") for evaluation
under the McKinney Act.3 HUD determined that this property was
unsuitable for use by the homeless, publishing its findings. See
58 Fed. Reg. 9208, 9215 (1993); 58 Fed. Reg. 15158 91993); 58 Fed.
Reg. 45353 (1993).
Bergstrom was closed on September 30, 1993, whereupon the City
immediately took physical possession and control of the land. The
Air Force was unable to execute a quitclaim deed immediately,
2
In 1954, the Army Corps of Engineers, on behalf of the Air
Force, informed the City of the government's position that
"whatever legal interest the City may have in Bergstrom AFB is
limited to the land acquired with funds furnished for that purpose
by the City," and not in improvements constructed on the land by
the federal government.
3
Since that time, the Air Force has discovered that 3.5
acres were overlooked, and is now providing HUD with the
information on this parcel for a suitability determination under
the McKinney Act.
3
however, due to the environmental cleanup requirements under §
120(h) of the Comprehensive Environmental Response, Compensation
and Liability Act of 1980 ("CERCLA"). Therefore, the Air Force
entered into a lease with the City under which the Air Force
reiterated its intent to execute a quitclaim deed upon completion
of the CERCLA obligations, reserving its right to access the land
in order to complete the environmental cleanup.
Plaintiffs-Appellants approached both the Air Force and the
City about its concern over the disposition of the land, the
proposed City airport, and funding for a detoxification program for
the homeless on the improved land. The Air Force informed
Plaintiffs-Appellants that because it no longer owned the land, it
could not interfere with the City's ownership and use. In January
1995, the City issued a Request for Proposal to use some of the
improvements on the land as interim transitional housing for
homeless individuals or families.4 The City received only one
response, which was deemed non-responsive. Although Plaintiffs-
Appellants wrote to express their support in a proposal submitted
by another organization, they did not propose their own plan to use
the land improvements.
On December 11, 1995, Plaintiffs-Appellants5 filed suit under
Title V of the Stewart B. McKinney Homeless Assistance Act
4
The City's Task Force also considered relocating the
improvements off the base. Plaintiffs-Appellants criticized the
plan because no funding was available to move the housing.
5
Plaintiffs-Appellants include a homeless advocacy
organization, its president, and an individual homeless person.
4
("McKinney Act"), 42 U.S.C. § 11411, seeking injunctive relief to
prevent the removal and/or destruction of housing stock on 2,892
acres of land, which was the former Bergstrom.6 Plaintiffs-
Appellants originally filed suit against the United States Air
Force and the Department of Defense ("Federal Defendants"), later
joining the City as a party defendant.
An evidentiary hearing was held on Plaintiffs-Appellants'
Application for Temporary Restraining Order and Preliminary
Injunction on December 19, 1995, after which the district court
denied both. The court concluded that Plaintiffs-Appellants had
failed to show a likelihood of success on the merits of their
claim, and that the harm that would befall the City if the
preliminary injunction were granted would far outweigh any harm to
Plaintiffs-Appellants in denying it. The court found that the City
maintained an equitable reversionary interest in the land and its
improvements, subject only to a limited lease with the Air Force
required under CERCLA to remediate environmental hazards on the
land, which the court found did not disrupt the City's reversionary
interest. The court also noted that the City could face delay
damages of over $73,000,000 if a one-year injunction were granted.
On January 9, 1996, the district court granted the City's
motion to dismiss, holding that the McKinney Act did not apply to
the City because it was not a federal agency, and that the McKinney
6
Plaintiffs-Appellants sought to enjoin the City from
destroying or disturbing in any other way the improvements on the
land at Bergstrom and to force Federal Defendants to report all
land and improvements at Bergstrom pursuant to section 11411(a) of
Title 42.
5
Act did not apply to the land because it was subject to reversion.
See 24 C.F.R. § 581.2(b)(9). Then on March 20, 1996, the court
granted a motion to dismiss filed by the federal defendants,
concluding that the land was not "unutilized" or "underutilized"
prior to closure of the base, and again holding that the disputed
land and improvements were exempted from the McKinney Act as
property subject to a reversionary interest. Final judgment was
entered the same day. Plaintiffs-Appellants filed an interlocutory
appeal of the denial of injunctive relief and the City's dismissal,
96-50065, and later an amended appeal from final judgment, 96-
50265. Both appeals have been consolidated.7
7
In addition to Plaintiffs-Appellants' challenge to the
merits, Federal Defendants argue for the first time on appeal that
this case should be dismissed for lack of jurisdiction. They claim
that because Plaintiffs-Appellants have not shown that they could
submit a complying application under the regulations of the
McKinney Act, Plaintiffs-Appellants lack the necessary "injury-in-
fact" to support Article III standing. Because such an allegation
calls into question our jurisdiction under Article III, we would
normally resolve it before reaching the merits. There is, however,
a clear exception to this general rule.
When the merits of the case are clearly against the party
seeking to invoke the court's jurisdiction, the jurisdictional
question is especially difficult and far-reaching, and the
inadequacies in the record make the case a poor vehicle for
deciding the jurisdictional question, we may rule on the merits
without reaching the jurisdictional contention. See Secretary of
Navy v. Avrech, 418 U.S. 676, 677-78 (1974); Richland Park
Homeowners Ass'n, Inc. v. Pierce, 671 F.2d 935, 941 n.3 (5th Cir.
1982); Adams v. Vance, 570 F.2d 950, 954 & n.7 (D.C. Cir. 1978);
Chinese Am. Civic Council v. Attorney Gen. of United States; 566
F.2d 321, 325 (D.C. Cir. 1977); see also CHARLES A. WRIGHT, ET AL.,
FEDERAL PRACTICE & PROCEDURE § 3531.15, at 102-04 (1984) ("Cases have
been dismissed . . . on the merits, without deciding standing.
Despite the occasional grave pronouncements that standing goes to
the jurisdiction of the court, this course is entirely appropriate.
There is no reason to decide a difficult question of standing if .
. . it is easier to reject the claim on the merits.").
Because standing was not raised below, the record on this
issue is undeveloped and inadequate. Rather than remand the cause
6
THE PRELIMINARY INJUNCTION
A preliminary injunction may be granted only if the movant can
establish four requirements:
First, the movant must establish a substantial likelihood
of success on the merits. Second, there must be a
substantial threat of irreparable injury if the
injunction is not granted. Third, the threatened injury
to the plaintiff must outweigh the threatened injury to
the defendant. Fourth, the granting of the preliminary
injunction must not disserve the public interest.
Cherokee Pump & Equipment Inc. v. Aurora Pump, 38 F.3d 246, 249
(5th Cir. 1994) (citations omitted). We have frequently cautioned
that "[a] preliminary injunction is an extraordinary remedy," and
"[t]he decision to grant a preliminary injunction is to be treated
as the exception rather than the rule." Mississippi Power & Light
Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
"The decision to grant or deny a preliminary injunction lies within
the discretion of the district court and will be reversed on appeal
only upon a showing of abuse of discretion." DSC Communications
Corp. v. DGI Technologies, Inc., 81 F.3d 597, 600 (5th Cir. 1996)
(citing Blue Bell Bio-Medical v, Cin-Bad, Inc., 864 F.2d 1253, 1256
(5th Cir. 1989)).
The district court found that Plaintiffs-Appellants failed to
demonstrate a substantial likelihood that they would succeed on the
merits, concluding that neither Federal Defendants nor the City
were subject to the regulations of the McKinney Act, which
to the district court to more fully develop the record, in the
interest of judicial economy we invoke the exception to the general
rule that calls for reaching the standing issue and proceed to the
merits of this appeal.
7
specifically exempts "property interest subject to reversion" from
coverage. See 24 C.F.R. § 581.2(b)(9). In addition, the court
found that Plaintiffs-Appellants failed to show that the threatened
injury outweighs the damage that an injunction would cause the
City, noting that a delay in the City's construction of the airport
would produce damages in excess of $73,000,000. We agree with the
district court's conclusions. Plaintiffs-Appellants have not
presented any evidence of their ability to propose, implement, or
finance a homeless program on any part of the land and/or its
improvements. On the other hand, Defendants-Appellants have
clearly shown that the City and its taxpayers would incur severe
damages if a preliminary injunction were granted. Because the
threatened injury to Plaintiffs-Appellants does not outweigh the
threatened injury to the City, we find that the district court did
not abuse its discretion in denying Plaintiffs-Appellants' motion
for a preliminary injunction.8
THE DISMISSALS
Plaintiffs-Appellants contend that the City failed to claim
the property at Bergstrom in accordance with the 1942 express trust
after World War II and therefore waived all right to do so at a
later date. In addition, they argue that the City does not have
any interest in the land acquired by Federal Defendants after 1942
8
Plaintiffs-Appellants also appeal the district court's
denial of their motion for a temporary restraining order. We
decline to address this issue in this appeal. "This court has long
held that the denial of an application for a temporary restraining
order is not appealable." Matter of Lieb, 915 F.2d 180, 183 (5th
Cir. 1990) (citations omitted).
8
with federal funds, nor does it maintain an interest in any
improvements on all the property because Federal Defendants
expressly reserved their right to the improvements. As an
alternative argument, Plaintiffs-Appellants contend that even if
the City does possess a reversionary interest in the land purchased
in accordance with the 1942 agreement, its right to enjoyment
cannot be granted until Federal Defendants have complied with
CERCLA. They argue that the thirty year lease entered into between
the City and the Air Force affirms title with the Air Force, only
allowing the City access to the land by virtue of the lease
agreement. Thus, Plaintiffs-Appellants assert, even if the City
prevails regarding the reversionary interest, the land will not
revert until the CERCLA lease is terminated, thereby making
available all or part of the unused, excess property to the
homeless for short-term leases.
The district court granted the Defendants-Appellees' motions
to dismiss finding 1) that the City is not a federal agency and is
therefore not subject to the provisions of the McKinney Act and 2)
that Federal Defendants do not possess or own, for purposes of the
McKinney Act, the land and/or improvements at Bergstrom at issue in
this case because they are subject to the City's reversionary
interest. "We review de novo the granting of a motion to dismiss,
accepting as true all well pleaded assertions in the light most
favorable to the plaintiff." Westfall, 77 F.3d at 870 (citing
American Waste & Pollution Control Co. v, Browning-Ferris, Inc.,
949 F.2d 1384, 1386 (5th Cir. 1991)).
9
Plaintiffs-Appellants' claims against all Defendants-Appellees
are asserted under the McKinney Act. The City does not fall under
the requirements of the McKinney Act because it is not a federal
agency. See 24 C.F.R. § 581.2(a).9 Accordingly, we find that the
district court did not err in granting the City's motion to
dismiss.
With regard to Federal Defendants' motion to dismiss, we find
that the land and the improvements at Bergstrom fall under an
exception of the McKinney Act as "[p]roperty interests subject to
reversion" and are therefore, not subject to the provisions of the
McKinney Act.10 24 C.F.R. § 581.2(b)(9). The reversionary interest
exception to the McKinney Act only requires that the property be
"subject to reversion"; it does not require that the reversion have
already taken place. The express trust entered into in 1942
clearly asserted that title to the land was to remain vested with
the City. All written agreements since 1942 have expressly
reasserted the City's reversionary interest in the land. Our
review of the record, including all written agreements created
subsequent to the 1942 express trust agreement, reveals no express
9
Section 581.2(a) states in pertinent part:
This part applies to Federal real property which has been
designated by Federal landholding agencies as unutilized,
underutilized, excess or surplus and is therefore subject
to the provisions of title V of the McKinney Act (42
U.S.C. 11411) (emphasis added).
10
All after-acquired property purchased with federal funds
have now been reported to HUD in compliance with the requirements
of the McKinney Act and will therefore not be addressed further in
this decision.
10
or implied waiver or other relinquishment of the City's
reversionary interest. Even the CERCLA lease expressly reserves
the City's right to the land. Therefore we find that, pursuant to
the language of the McKinney Act, the land at Bergstrom is not
subject to the provisions of the Act because it is "subject to
reversion" to the City.
Additionally, we find that the improvements made on the land
at Bergstrom are also subject to reversion to the City. Although
the Air Force continually asserted its interest in ownership of the
improvements, we find that the buildings and other structures left
on the land when Bergstrom closed in 1993 were permanently attached
to the realty and therefore fixtures under Texas law to be carried
with the land.
Three factors are relevant in determining whether
personality has become a fixture, that is, a permanent
part of the realty to which it is affixed: (1) the mode
and sufficiency of annexation, either real or
constructive; (2) the adaptation of the article to the
use or purpose of the realty; and (3) the intention of
the party who annexed the chattel to the realty.
Logan v. Mullis, 686 S.W.2d 605, 607 (Tex. 1985) (citations
omitted). The status of the improvements as permanent fixtures to
the land is not altered by Federal Defendants' abandonment of those
structures when Bergstrom closed. Once the improvements, which
include large buildings, runways, and other similar structures,
were affixed in the manner that they were, they became part of the
land. Id. at 608. Therefore, because the improvements are
fixtures on the land, they are also subject to reversion under the
11
Act. Accordingly, we find that the district court did not err in
granting Federal Defendants' motion to dismiss.
CONCLUSION
For the reasons articulated above, the judgment of the
district court is AFFIRMED.
12