Theodore Johnson v. Federal Emergency Management , 393 F. App'x 160 ( 2010 )

Case: 09-30394 Document: 00511214598 Page: 1 Date Filed: 08/25/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 25, 2010
No. 09-30394 Lyle W. Cayce
Summary Calendar Clerk
THEODORE JOHNSON,
Plaintiff - Appellant
v.
FEDERAL EMERGENCY MANAGEMENT AGENCY,
Defendant - Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:09-CV-3409
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Theodore Johnson, proceeding pro se and in forma pauperis, appeals the
denial of his motion for preliminary injunctive relief preventing the Federal
Emergency Management Agency (FEMA) from evicting him from a Government-
provided trailer home. Johnson was provided with the trailer for temporary
emergency housing following Hurricane Katrina.
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
Case: 09-30394 Document: 00511214598 Page: 2 Date Filed: 08/25/2010
No. 09-30394
“A preliminary injunction is an extraordinary remedy that should only
issue if the movant shows: (1) a substantial likelihood of prevailing on the
merits; (2) a substantial threat of irreparable injury if the injunction is not
granted; (3) the threatened injury outweighs any harm that will result to the
non-movant if the injunction is granted; and (4) the injunction will not disserve
the public interest.” Ridgely v. FEMA, 512 F.3d 727, 734 (5th Cir. 2008). “The
[district court’s] ultimate decision to grant a preliminary injunction is reviewed
for abuse of discretion.” Id.Even liberally construing Johnson’s pleadings, the district court found that
he had not made the requisite showing for injunctive relief, determining that
Johnson had not shown a likelihood of success on the merits. We find no error
and, accordingly, no abuse of discretion in this decision.
Johnson has not shown any likelihood of success on the merits; FEMA’s
decision to provide housing assistance is discretionary. See Ridgely, 512 F.3d at
736 (“[A]lthough [the Stafford Act, 42 U.S.C. § 5121] and the regulations set out
eligibility criteria for the receipt of continued rent assistance, they contain no
‘explicitly mandatory language’ that entitles an individual to receive benefits if
he satisfies that criteria.”). As in Ridgely,
Plaintiffs argue that FEMA must provid[e] assistance on a
continuing basis for as long as disaster-related needs exist. But this
argument reads too much into what is essentially a hortatory
statement of purpose for the entire Stafford Act. [The relevant
provision] contains no mandatory language compelling FEMA to
provide continuing payments of rental assistance to all eligible
applicants on an ongoing basis. . . . [T]his provision cannot support
a statutory entitlement to a stream of continued rent assistance
payments when the specific statute and regulations that implement
the rental assistance program contain no such directive and leave
the questions of what type of assistance to provide and how and
when to provide it to FEMA’s discretion.
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Case: 09-30394 Document: 00511214598 Page: 3 Date Filed: 08/25/2010
No. 09-30394
Id. at 739; accord St. Tammany Parish ex rel. Davis v. FEMA, 556 F.3d 307,
324–25 (5th Cir. 2009) (determining that language in the Stafford Act that
“Federal agencies may . . . provide assistance . . . .” was “cast in discretionary
terms”).
We need not reach the other conjunctive elements necessary for
preliminary injunctive relief because Johnson has shown no likelihood of success
on the merits. See La Union Del Pueblo Entero v. FEMA, 608 F.3d 217, 220 (5th
Cir. 2010) (reversing grant of preliminary injunction, without considering all
elements, because movant failed to show any likelihood of success on the merits).
We will not consider Johnson’s other arguments raised for the first time on
appeal. See Williams v. Ballard, 466 F.3d 330, 335 (5th Cir. 2006) (per curiam).
The district court did not abuse its discretion in denying Johnson’s requests for
preliminary injunctive relief.
AFFIRMED.
3