United States Court of Appeals

for the Fifth Circuit

No. 20-20281

Kenneth Wayne Hawkins; Cheryl Brown Potts; 

Kimanisha Myles; Reba Curren Jeffery; Stephanie Winn; 

Loretta Gulley; Jeannie Ware; Jamie Wasicek; 

Shealisha Adams, 

Plaintiffs—Appellants,

versus

The United States Department of Housing and Urban 

Development, 

Defendant—Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 2:18-CV-3052

ON PETITION FOR REHEARING

Before Wiener, Dennis, and Duncan, Circuit Judges.

Wiener, Circuit Judge:*

* Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

April 28, 2022

Lyle W. Cayce

Clerk

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IT IS ORDERED that the petition for rehearing is DENIED. The 

opinion, filed October 13, 2021, is WITHDRAWN, and the following is 

SUBSTITUTED:

Plaintiffs-Appellants (“Tenants”) alleged that they were living in 

substandard conditions in a Houston, Texas “Section 8” housing project. 

They sought relocation assistance from the Department of Housing and 

Urban Development (“HUD”), insisting that HUD was obliged under 

federal law to provide such assistance. When HUD chose to continue its 

contract with the housing project and declined to offer Tenants relocation 

assistance, they sued HUD to obtain it. Tenants also alleged intentional 

discrimination under the Fifth Amendment’s equal protection component.

We agree with the district court that we lack jurisdiction for Tenants’ 

Administrative Procedure Act (“APA”) and Fair Housing Act (“FHA”) 

claims because Tenants have not alleged a final agency action that is 

reviewable. We also agree on the merits that Tenants have failed to state a 

claim for which relief can be granted on their Fifth Amendment equal 

protection claim.

I.

Background

Tenants are African-Americans who rent apartments in Coppertree

Village, a privately owned complex in Houston. HUD’s relationship with 

Coppertree dates back to the early 1980s, when the agency first signed a 

housing assistant program (“HAP”) contract with Coppertree’s thenowner. HUD’s most recent renewal of its contract relationship with 

Coppertree was in 2013. HUD approved assignment of the contract to 

Coppertree’s current owner in 2015. The current owner was originally a 

named defendant in this lawsuit but has been dismissed voluntarily. 

The HAP contract requires the owner to maintain the rental units in 

a “decent, safe, and sanitary” condition. HUD regulations provide that the 

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agency “will inspect” Section 8 housing “at least annually” and “at such 

other times as HUD may determine to be necessary to assure that the owner 

is meeting his or her obligation to maintain the units and the related facilities 

in decent, safe, and sanitary condition.”1

Two HUD inspections (in June and September 2018) revealed 

“serious deficiencies” in many of Coppertree’s rental units and in the 

property’s common features. These wide-ranging problems included 

infestations of cockroaches and spiders, leaky roofs that spawned colonies of 

mold, widespread lack of operable locks, and missing or nonfunctioning 

smoke detectors. As a result, HUD issued two Notices of Default (“NOD”) 

to Coppertree’s owner. The NODs instructed the owner to take corrective 

action and warned that failure to comply could result in HUD exercising 

“any and all available remedies.” In response, Coppertree’s owner 

submitted a survey of the property and began to undertake repairs. The 

parties disagree about whether the repair efforts have resolved the many 

issues identified in the 2018 inspections. 

Tenants criticized HUD’s decision to maintain the HAP contract 

with Coppertree and the agency’s focus on correcting the deficiencies 

revealed by the inspections. Tenants also contended that, because 

Coppertree remained in a state of disrepair, HUD was obligated to provide 

“assistance for relocation” that would help them move elsewhere. They

specifically alleged that HUD’s failure to issue vouchers to them was 

arbitrary and capricious under the APA.2 Tenants further alleged that 

HUD’s inaction amounted to race-based discrimination in violation of the 

Fair Housing Act3 and the equal protection component of the Fifth 

1 8 C.F.R. § 886.323(d).

2

5 U.S.C. § 701 et seq.

3 42 U.S.C. § 3601 et seq.

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Amendment.4 Contrasting Coppertree with Section 8 properties elsewhere 

in Houston, Tenants alleged that HUD’s failure to provide Tenant 

Protection Vouchers was done with the discriminatory motive of 

“maintain[ing] racial segregation and . . . disadvantag[ing] a group of 

minority households.”

HUD moved to dismiss Tenants’ claims under Rules 12(b)(1) and 

12(b)(6) of the Federal Rules of Civil Procedure. The district court granted 

HUD’s motion and dismissed the Tenants’ claims. We affirm.

II.

Standard of Review

We review a district court’s grant of a motion to dismiss de novo.

5 “To 

survive a motion to dismiss, a complaint must contain sufficient factual 

matter which, when taken as true, states a claim to relief that is plausible on 

its face.”6 “A claim has facial plausibility when the plaintiff pleads factual 

content that allows the court to draw the reasonable inference that the 

defendant is liable for the misconduct alleged.”7

A motion to dismiss that contests jurisdiction should be granted if 

“the court lacks the statutory or constitutional power to adjudicate the 

case.”8 The burden lies with the party asserting jurisdiction to establish “that 

jurisdiction does in fact exist.”9

4 See Washington v. Davis, 426 U.S. 229 (1976).

5 Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

6 Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 765 (5th Cir. 2019) (cleaned 

up).

7

Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

8 Home Builders Ass’n of Miss., Inc. v. City of Madison, 143 F.3d 1006, 1010 (5th Cir. 

1998) (cleaned up).

9 Ramming, 281 F.3d at 161.

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III.

Final Agency Action

The APA provides judicial review of “final agency action” only.10 The 

Act defines “agency action” to include the “denial of relief,” a “failure to 

act,” and a “sanction,” which includes “withholding of relief.”11 The FHA 

has no provision for review of agency action, so Tenants’ FHA claim depends 

on the APA’s judicial-review provisions.12 Our jurisdictional analysis 

therefore pertains equally to Tenants’ claims under the APA13 and the 

FHA.14

As a general matter, two conditions must be satisfied for agency 

action to be ‘final’: First, the action must mark the 

‘consummation’ of the agency’s decisionmaking process—it 

must not be of a merely tentative or interlocutory nature. And 

second, the action must be one by which ‘rights or obligations 

have been determined,’ or from which ‘legal consequences will 

flow.’15

Tenants have not adequately alleged a specific HUD action that this 

court can review. They only contend that there is nothing further HUD 

would have to do to issue relocation assistance, yet the agency has not done

so. HUD’s continued work to salvage its contract with Coppertree Village 

10 5 U.S.C. § 704; see, e.g., Veldhoen v. U.S. Coast Guard, 35 F.3d 222, 225 (5th Cir. 

1994). 

11 5 U.S.C. § 551(10)(B), (13); see also id. § 701(b)(2) (incorporating these 

definitions into the judicial review chapter).

12 See Godwin v. Sec’y of Hous. & Urb. Dev., 356 F.3d 310, 312 (D.C. Cir. 2004) 

(FHA confers no cause of action against HUD); see also McCardell v. U.S. Dep’t of Hous. & 

Urb. Dev., 794 F.3d 510, 522 (5th Cir. 2015) (FHA does not waive state sovereign 

immunity).

13 See 5 U.S.C. § 706(2)(A).

14 See 42 U.S.C. § 3608(e)(5).

15 Bennett v. Spear, 520 U.S. 154, 177–78 (1997) (citations omitted).

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does not prevent the agency from issuing relocation assistance. There is, 

therefore, no “‘consummation’ of the agency’s decisionmaking process” 

that this court can review. The district court correctly determined that it 

lacked jurisdiction over Tenants’ APA and FHA claims.

IV.

Racial and Ethnic Discrimination

Tenants also claim that HUD’s withholding of assistance constitutes

intentional discrimination on the basis of race and ethnicity, in violation of 

the Fifth Amendment to the Constitution. “[T]he Due Process Clause of the 

Fifth Amendment contains an equal protection component prohibiting the 

United States from invidiously discriminating between individuals or 

groups.”16 HUD concedesthat the APA’s review provisions do not foreclose 

review of this constitutional claim.

17

“Proof of racially discriminatory intent or purpose is required” to 

show an equal protection violation.18 Discriminatory purpose “implies that 

the decisionmaker . . . selected or reaffirmed a particular course of action at 

least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an 

identifiable group.”19 Tenants may rely on circumstantial evidence (or 

allegations of such, at the pleading stage) to show discriminatory purpose. 

“Determining whether invidious discriminatory purpose was a motivating 

factor demands a sensitive inquiry into such circumstantial and direct 

evidence of intent as may be available.”20

16 Washington, 426 U.S. at 239.

17 See Webster v. Doe, 486 U.S. 592, 603–05 (1988) (holding § 701(a)(2) barred 

statutory but not constitutional claims of discrimination). 

18 Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265 (1977).

19 Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

20 Arlington Heights, 429 U.S. at 266; see also Veasey v. Abbott, 830 F.3d 216, 231 

(5th Cir. 2016) (listing types of evidence that may support discrimination claim).

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Tenants’ allegations of intentional discrimination rely on the fact that 

the housing units HUD subsidizes at Coppertree are in worse condition than 

HUD-subsidized units elsewhere in the Houston area. They allege that

“Coppertree Village is located in a 0% White non-Hispanic census tract. 

Coppertree Village’ [sic] units are 87% occupied by Black or African 

American households.” Tenants further allege that HUD subsidizes housing 

in disproportionately white areas that does meet minimum standards, with 

comparable rent but vastly higher quality. Tenants reference as comparators 

several projects restricted to elderly tenants: six in the Woodlands, outside 

Houston, and two within the city limits—the only two out of forty-four

located, in majority-white census districts. HUD does not own or operate 

those projects, but subsidizes tenants living there. 

HUD allegedly knows about these disparities but continues to make 

decisions that Tenants claim denies them relocation assistance to which they 

are entitled. Tenants characterize this disparate treatment as a “substantive 

departure” from HUD’s mission,21 and thus probative of discriminatory 

intent. We disagree.

These allegations by Tenants fail to state a plausible claim of 

intentional racial discrimination. Even when taken as true, they show at most 

that HUD is aware of varying conditions in the numerous housing projects

that it subsidizes in the Houston area. In no way, however, do these 

allegations support an inference that HUD has made any decision “‘because 

of,’ not merely ‘in spite of,’” different conditions.

22 Tenants do not allege 

any procedural irregularities in HUD’s enforcement actions at Coppertree 

nor in its consideration of relocation vouchers for Coppertree residents. 

Tenants also fail to allege that HUD has provided relocation assistance to any

similarly situated non-minority occupants. Tenants have failed to raise a 

21 Cf. Veasey, 830 F.3d at 231.

22 Feeney, 442 U.S. at 279.

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plausible inference of discriminatory purpose, so the district court correctly 

dismissed their Fifth Amendment claim.

AFFIRMED.

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