IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-40955

TRYSHATEL MCCARDELL, also known as Trysha McCardell,

Plaintiff – Appellant,

v.

UNITED STATES DEPARTMENT OF HOUSING AND URBAN 

DEVELOPMENT; JULIAN CASTRO, In His Official Capacity as Secretary of 

United States Department of Housing and Urban Development; THE 

GENERAL LAND OFFICE OF THE STATE OF TEXAS; GALVESTON 

HOUSING AUTHORITY; THE CITY OF GALVESTON; TEXAS 

DEPARTMENT OF HOUSING AND COMMUNITY AFFAIRS,

Defendants – Appellees

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, DAVIS, and SOUTHWICK, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Hurricane Ike made landfall over Galveston Island in September 2008 

and wrought widespread devastation on the region. Among the ruins were 569 

public housing units comprising four sites located in impoverished areas of 

Galveston County. This case centers on a plan to replace those units in part by 

redeveloping on two of the sites destroyed by Ike. We address questions 

concerning the scope of standing to sue under the Fair Housing Act of 1968, 

whether Congress intended by that Act to abrogate States’ sovereign 

United States Court of Appeals

Fifth Circuit

FILED

July 23, 2015

Lyle W. Cayce

Clerk

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immunity, and whether Appellees can avail themselves of a safe harbor

provision contained in the United States Housing Act of 1937, as amended by 

the Quality Housing and Work Responsibility Act of 1998.1

I.

A. Regulatory Backdrop

The provision of public housing in the United States is authorized under

42 U.S.C. § 1437 and administered by the United States Department of 

Housing and Urban Development (“HUD”).2 HUD carries out this duty in part 

by distributing funds to local public housing authorities (“PHAs”) that, in turn, 

manage housing projects.3 The relationship between HUD and a PHA is 

governed by a standard written contract called an “annual contributions 

contract” or “ACC.”4 Under an ACC, HUD agrees to provide funds for housing 

assistance payments and administrative fees and in exchange the PHA “agrees 

to administer the program in accordance with HUD regulations and 

requirements.”5 A PHA may apply to HUD for authorization to demolish or 

dispose of a public housing project under 42 U.S.C. § 1437p. “[I]n cases where 

PHAs must demolish housing due to an emergency or natural disaster,” 

however, it “has been HUD’s practice, as reflected in the [standard form] ACC,” 

to allow demolition without prior authorization to ensure the health and safety 

of residents.6 “If the PHA rebuilds less than all of the demolished structures or 

the project, the PHA shall submit a demolition application . . . within one year 

 

1 42 U.S.C. § 1437 et seq.

2 See 24 C.F.R. § 970.1 et seq.

3 Id. at § 982.151(a)(1). 4 Id.

5 Id.

6 Public Housing Program: Demolition or Disposition of Public Housing Projects, and 

Conversion of Public Housing to Tenant-Based Assistance, 79 Fed. Reg. 62,250, 62,254, 

62,265 (October 16, 2014) (to be codified at 24 C.F.R. § 970.33), also available at 

http://www.gpo.gov/fdsys/pkg/FR-2014-10-16/pdf/2014-24068.pdf. 

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of such demolition to formalize and request official HUD approval for the action 

under [section 1437p].”7

B. The Demolition

The Galveston Housing Authority (“GHA”) is the PHA that manages and 

administers public housing in Galveston County. In the wake of the storm, the

City of Galveston declared four public housing sites “unfit for human 

occupancy” and it ordered GHA to demolish Oleander Homes, Palm Terrace, 

Magnolia Homes, and Cedar Terrace.8 Consistent with HUD’s practice in like 

cases, GHA sent a letter to HUD announcing its intent to demolish Oleander 

Homes and Palm Terrace without seeking prior authorization from HUD’s 

Special Applications Center under section 1437p.9 Lone Star Legal Aid, a 

nonprofit legal organization, filed an administrative complaint with HUD 

opposing GHA’s demolition plan on behalf of displaced public housing tenants. 

GHA and LSLA reached a settlement of the complaint under which GHA 

agreed to provide replacement housing on a one-for-one basis for all residential 

units destroyed by Ike and to incorporate the terms of an agreed upon 

replacement plan.10

Having satisfied LSLA’s concerns, GHA moved forward and demolished

all four sites, including the housing units situated at the Magnolia Homes and 

Cedar Terrace sites, on August 6, 2009.11 It then submitted a formal demolition 

application to HUD.12 In a letter dated April 15, 2010, HUD approved GHA’s 

application “as outlined in [an] enclosed memorandum from [HUD’s director of

 

7 Id. at 62,265.

8 R.3384-87.

9 R.3390, 4686-87; see 24 C.F.R. § 970.1 et seq.

10 R.3390-92.

11 R.4608.

12 See supra Note 6 and accompanying text (citing 79 Fed. Reg. 62,250, 62,265 (to be 

codified at 24 C.F.R. § 970.33)).

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SAC] to the HUD Houston Program Center.”13 In the enclosed memorandum, 

the SAC director stated, “[b]ased upon our review, and finding that the 

requirements of 24 [C.F.R.] Part 970 and Section 18 of the [United States 

Housing Act] have been met, the proposed demolition . . . is hereby approved.”14

The memorandum also included a general description of GHA’s intended 

future use of the property.15 On June 17, 2010, HUD issued a letter of 

amendment and clarification, restating its approval of GHA’s demolition 

application and acknowledging that “a public housing authority . . . may 

demolish public housing property without prior approval from [HUD] if the 

property suffers abrupt damage from an act of God,” that the Magnolia Homes 

and Cedar Terrace sites fell into this category, and that after demolishing them 

GHA had submitted a formal application “to evidence that the demolition was 

in compliance with Section 18 of the [United States Housing Act] and 24 

[C.F.R.] Part 970.”16

C. The Planned Redevelopment

GHA’s master plan for redevelopment—pending approval from HUD—

seeks to replace each of the 569 public housing units lost during Ike in 

accordance with the terms of the LSLA settlement. As part of the master plan, 

GHA proposes to redevelop the former Magnolia Homes and Cedar Terrace 

 

13 R.4605-07.

14 R.4615.

15 R.4611-16.

16 R.4608-09.

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sites with 282 multi-family, mixed-income housing units, 144 of which would 

count toward replacement public housing units.17

D. Procedural History

GHA’s effort to redevelop the Magnolia Homes and Cedar Terrace sites 

met controversy. Individuals and the Galveston Open Government Project filed 

this lawsuit, seeking to enjoin the plan and arguing that by proposing 

redevelopment on former public housing sites the plan would actively 

concentrate poverty in already impoverished and racially segregated areas.18

The original complaint named as defendants: the City of Galveston and GHA;

GLO and the Texas Department of Housing and Community Affairs 

(collectively the “State Defendants”); and HUD and its secretary.19

The second amended complaint added as an additional plaintiff

Tryshatel McCardell, an African-American resident of Galveston who lives 

nine blocks from the Cedar Terrace site. She claims injury from the 

construction of “public housing in [her] current neighborhood—a neighborhood 

that is already segregated—[because it] will further add to the segregation of 

the neighborhood—depriving her of interracial associations.”20

 

17 Before Ike, Magnolia Homes and Cedar Terrace comprised 133 units and 136 units, 

respectively—all 269 units were low-income public housing. The Magnolia Homes 

redevelopment would include 160 total units: 78 market rate unrestricted units; 18 projectbased section 8 voucher units; and 64 public housing units. The Cedar Terrace redevelopment 

would include 121 total units: 59 market rate unrestricted units; 13 project-based section 8 

voucher units; and 49 public housing units. R.4687; see R.2779-80. To achieve one-for-one 

replacement of the 569 units lost, in complement to redeveloping the Magnolia Homes and 

Cedar Terrace sites the master plan provides for the Texas General Land Office (“GLO”) to 

develop 385 public housing units at scattered sites, 50 of which may be developed outside 

Galveston city limits on the mainland of Galveston County. “GHA Reconstruction Plan,” 

GALVESTON HOUSING AUTHORITY, available at 

http://www.ghatx.org/dev_reconstruction.html (last visited April 1, 2015).

18 R.22.

19 Shaun Donovan was Secretary of HUD when this case was originally filed; Julian 

Castro later replaced Donovan at that post and was substituted for Donovan as a named 

defendant.

20 R.2725-26.

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Motions and orders ensued. In a thorough memorandum and order, the 

district court dismissed for lack of standing all plaintiffs except for 

McCardell.21 McCardell then filed a third amended complaint, elaborating 

allegations in support of her “neighborhood standing” to challenge the plan22

and requesting declaratory and injunctive relief on claims under the 

constitution, Title VIII of the Civil Rights Act of 1968, and the Administrative 

Procedure Act.23 The district court dismissed the State Defendants on 

sovereign immunity grounds,24 dismissed the APA claim,25 granted 

McCardell’s motion to nonsuit the constitutional claim,26 granted the 

remaining defendants’ joint motion for summary judgment on the Fair 

Housing Act claim,27 and entered final judgment on August 13, 2014.28

Only McCardell appeals.29

II.

McCardell first challenges the district court’s dismissal of the Individual

Plaintiffs and GOGP for lack of standing. As an initial matter, we hold that we 

lack jurisdiction to entertain these dismissals, for they did not appeal.

The Federal Rules of Appellate Procedure mandate that a notice of 

appeal must “specify the party or parties taking the appeal by naming each 

one in the caption or body of the notice . . . [and] designate the judgment, order, 

or part thereof being appealed . . . .”30 Failure to name a party in a notice of 

appeal constitutes a fatal defect in that it fails to confer upon our court 

 

21 R.3728-63.

22 R.3846-47.

23 R.3857-60.

24 R.3872-74.

25 R.4460-63.

26 R.4514.

27 R.4685-97.

28 R.4698-99.

29 R.4700-02.

30 Fed. R. App. P. 3(c)(1).

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jurisdiction over that party. “It constitutes a failure of that party to appeal.”31

The Individual Plaintiffs and GOGP are not parties to this appeal because none

filed notice of appeal.32

McCardell urges that it is irrelevant whether the Individual Plaintiffs or 

GOGP are parties because she has a personal stake in advancing an appeal of 

their dismissal. Even assuming, without deciding, that McCardell would have 

standing to bring such an appeal, we still would lack jurisdiction to review it. 

The notice of appeal filed by McCardell names only McCardell as plaintiff in 

its caption and states the following in body text: “Notice is hereby given that 

Tryshatel McCardell, Plaintiff in the above-named case, hereby appeals to the 

United States Court of Appeals for the Fifth Circuit the Final Judgment (D.E. 

148) entered in this action on the 13th day of August, 2014.”33 The referenced 

final judgment names only McCardell as plaintiff and addresses only those 

claims she alone brought in the third amended complaint. It does not mention

the Individual Plaintiffs or GOGP or any of the orders resulting in their

dismissal from the suit. Although we “treat notices of appeal relatively liberally 

‘where the intent to appeal an unmentioned or mislabeled ruling is apparent 

and there is no prejudice to the adverse party,’”34 no such intent is apparent 

here. By specifically designating only the district court’s final judgment in her 

notice of appeal, McCardell exhibited no intent to appeal the district court’s 

dismissal of the Individual Plaintiffs or GOGP.35

 

31 Torres v. Oakland Scavenger Co., 487 U.S. 312, 314 (1988).

32 Residential Council of Allen Parkway Vill. v. U.S. Dep’t of Hous. & Urban Dev., 980 

F.2d 1043, 1048-49 (5th Cir. 1993).

33 R.4700-02.

34 R.P. ex rel. R.P. v. Alamo Heights Ind. Sch. Dist., 703 F.3d 801, 808 (5th Cir. 2012) 

(citation omitted).

35 See Warfield v. Fid. & Deposit Co., 904 F.2d 322, 325-25 (5th Cir. 1990).

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III.

We must first address the threshold question of whether we have 

jurisdiction over McCardell’s claim.36 The district court held that McCardell 

alleged sufficient facts at the pleading stage to weather a motion to dismiss 

and proceed on the basis of “neighborhood standing.”37 We review that holding 

de novo, cognizant of the of Supreme Court’s guidance that the standard used 

to establish standing is not constant but becomes gradually stricter in its 

demanded showing as the parties proceed through “the successive stages of [a] 

litigation.”38 “Although standing generally is a matter dealt with at the earliest 

stages of litigation, usually on the pleadings, it sometimes remains to be seen 

whether the factual allegations of the complaint necessary for standing will be 

supported adequately by the evidence adduced at trial.”39 McCardell bears the 

burden of establishing that she has standing to bring this appeal.40

A.

Article III of the Constitution limits our jurisdiction to certain justiciable 

“Cases” and “Controversies.”41 One element of the “case-or-controversy” 

requirement, among others, is that a plaintiff must establish that she has 

“standing” to sue42—that she “is entitled to have the court decide the merits of 

the dispute or of particular issues.”43 To establish Article III standing, a 

plaintiff must demonstrate an injury that is: (1) concrete, particularized, and 

 

36 Martin v. Halliburton, 618 F.3d 476, 481 (5th Cir. 2010).

37 R.3742-53.

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

39 Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 115 n.31 (1979).

40 Martin, 618 F.3d at 481.

41 Clapper v. Amnesty Intern. USA, 133 S. Ct. 1138, 1146 (2013).

42 Id. (internal quotation marks and citation omitted).

43 Warth v. Seldin, 422 U.S. 490, 498 (1975).

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actual or imminent (so-called injury “in fact”); (2) fairly traceable to the 

challenged action; and (3) redressable by a favorable ruling.44

B.

After Congress passed the Fair Housing Act, the Supreme Court handed 

down a trilogy of cases in which it recognized that deprivation of “the benefits 

that result from living in an integrated community” is sufficient injury.45 This 

theory of standing—deemed “neighborhood standing”—stems from the Court’s 

conclusion that the harm caused by a racially discriminatory housing practice

can, in some circumstances, extend beyond its immediate victim.46 Rather than 

a claim of direct discrimination against oneself, neighborhood standing finds

the requisite injury, albeit indirect and immediately visited upon a third-party, 

in “an adverse impact on the neighborhood in which the plaintiff resides.”47

The Court first identified neighborhood standing in Trafficante v. 

Metropolitan Life Insurance Company,48 where it found justiciable two 

apartment tenants’ allegations that their landlord’s “racial steering”49

practices had resulted in “the loss of important benefits from interracial 

associations” in their apartment community.50 The Court emphasized that the 

person excluded on account of his race “is not the only victim of discriminatory 

practices; it is . . . the whole community.”51 In Trafficante the standing analysis 

was relatively simple, as both plaintiffs resided in the “same housing unit that 

 

44 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 149 (2010).

45 See Havens Realty Corp. v. Coleman, 455 U.S. 363, 375 (1982).

46 Id.

47 Id.

48 409 U.S. 205 (1972).

49 The Court has defined “racial steering” in this context as “directing prospective 

home buyers interested in equivalent properties to different areas according to their race.” 

Gladstone Realtors v. Village of Bellwood, 441 U.S. 91, 94 (1979).

50 Trafficante, 409 U.S. at 209-10 (internal quotation marks and citation omitted) 

(emphasis added).

51 Id. at 211

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[was] charged with discrimination.”52

Seven years later, in Gladstone Realtors v. Village of Bellwood,53 the 

Court took up the resulting challenge of scope—whether a “12- by 13-block 

residential neighborhood” constituted a community from which residents 

enjoyed standing to challenge illegal racial steering practices.54 Answering 

that question affirmatively, the Court held that the inquiry is the same 

regardless whether a “community is defined in terms of city blocks [or] 

apartment buildings”: standing depends on “[t]he presence of a genuine injury 

ascertainable on the basis of discrete facts presented at trial.”55 The Court held 

that the plaintiffs had standing based on their allegations that racial steering 

had negatively affected the racial composition of their “relatively compact 

neighborhood.”56

In Havens Realty Corporation v. Coleman,57 the Court reaffirmed its 

recognition of neighborhood standing “based on the effects of 

discrimination . . . within a ‘relatively compact neighborhood.’”58 There, two 

residents of the Richmond, Virginia, metropolitan area alleged that a 

landlord’s racial steering practices at an apartment complex in a Richmond 

suburb had deprived them of “the important social, professional, business, and 

economic, political, and aesthetic benefits of interracial associations that arise 

from living in integrated communities . . . .”59 The Court, noting that it was 

implausible to conclude that discrimination within a single housing complex 

 

52 Id. at 209. We note that the apartment complex in Trafficante housed “about 8,200 

residents.” Id. at 206.

53 441 U.S. 91 (1979).

54 Id. at 112-14.

55 See id. at 114.

56 Id. at 110, 114.

57 455 U.S. 363 (1982).

58 Id. at 377 (quoting Bellwood, 441 U.S. at 114).

59 Id. at 376.

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could have palpable effects throughout an entire metropolitan area, remanded 

for further factual development, because the “extreme generality” of the 

residents’ complaint had “not identified the particular neighborhoods in which 

they lived, nor established the proximity of their homes to the site of 

petitioners' alleged steering practices.”60

These cases demonstrate that a constitutionally cognizable injury can 

arise from the deprivation of the social and economic benefits of living in an 

integrated and relatively compact community. Serving this principle, we in 

turn have held that denying “benefits of interracial associations” and “racial 

balance and stability” can constitute cognizable injury.61 In Broadmoor, we 

held “that individual residents who live[d] inside the area targeted by real 

estate brokers for racial steering” had standing to bring suit under the Fair 

Housing Act.62

C.

In reviewing standing at the summary judgment stage, any “specific 

facts . . . set forth by affidavit or other evidence . . . will be taken to be true.”63

The third amended complaint alleged that McCardell “is an impoverished 

African American resident” of Galveston who “currently lives approximately 

nine blocks from the proposed site of Magnolia Homes.”64 It added the 

following: 

[McCardell’s] neighborhood is predominantly composed of racial 

minorities, and the new tenants of the public housing units of [the 

planned redevelopment] are estimated to be mostly racial 

minorities. There is also a high rate of poverty and those needing 

housing assistance in her neighborhood. Building new public 

 

60 Id. at 377-78.

61 Broadmoor Improvement Ass’n, Inc. v. Stan Weber & Assocs., 597 F.2d 568, 570 (5th 

Cir. 1979) (per curiam) (quoting Bellwood, 441 U.S. at 111)

62 Id.

63 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

64 R.3846.

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housing in her neighborhood will have an economic and racially 

segregative effect on her neighborhood . . . If Defendants [sic] plans 

move forward [ ] McCardell will be deprived of the social and 

professional benefits of living in an integrated society and the 

racial balance and stability of the neighborhood will be 

undermined. [ ] McCardell also presently suffers the stigmatic 

harm of living in a community whose members are subjected to 

segregation on the basis of prohibited classification by the 

Defendant’s [sic] plan which is contrary to many laws . . . .65

The record also contains several reports of experts that support McCardell’s 

allegations regarding the anticipated socioeconomic effects of the planned 

redevelopment on her neighborhood.66

We are persuaded that McCardell sufficiently alleged that the 

challenged action in this case would deny her the benefits of an integrated 

community within her relatively compact neighborhood. Unlike mine-run 

neighborhood standing cases, typically urging injury from past discriminatory

practices, McCardell alleges only future injury. Appellees respond that two 

decisions of the Supreme Court since the Trafficante-Gladstone-Havens trilogy 

preclude constitutional recognition of such injury. Specifically, that McCardell 

has established neither “certainly impending” injury under Clapper v. Amnesty 

International USA,67 nor “‘likely,’ as opposed to merely ‘speculative,’”

redressability under Lujan v. Defenders of Wildlife.68 We consider each 

argument in turn.

 

65 Id.

66 See, e.g., R.739-804 (Kirk McClure, Analysis of Census Tracts of Galveston County, 

Texas, September 24, 2013); R.688-738 (John A. Powell, A Preliminary Analysis of the 

Galveston Public Housing Reconstruction Plan, May 7, 2013); R.3509-26 (Jason Reece, et al., 

Galveston After Ike: Moving Together Towards a Full Recovery, December 2011).

67 133 S. Ct. 1138, 1147 (2013).

68 504 U.S. 555, 561 (1992) (citation omitted).

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1.

Clapper held that “threatened injury must be certainly impending to 

constitute injury in fact, and that allegations of possible future injury are not 

sufficient.”69 There, attorneys and human rights organizations brought action 

seeking declaratory and injunctive relief from a provision of the Foreign 

Intelligence Surveillance Act that allowed surveillance of non-“United States 

persons” who were reasonably believed to be located outside the United 

States.70 The plaintiffs’ argument was premised on likely future harm caused 

by the statute—“Respondents believe that some of the people with whom they 

exchange foreign intelligence information are likely targets of surveillance 

under [the statute].”71 The Court held that the plaintiffs’ “theory of standing, 

which relies on a highly attenuated chain of possibilities, does not satisfy the 

requirement that threatened injury must be certainly impending.”72 It 

identified the “speculative chain of possibilities”73 as follows:

(1) the Government will decide to target the communications of 

non-U.S. persons with whom they communicate; (2) in doing so, 

the Government will choose to invoke its authority under [the 

statute] rather than utilizing another method of surveillance; (3) 

the Article III judges who serve on the Foreign Intelligence 

Surveillance Court will conclude that the Government's proposed 

surveillance procedures satisfy [the statute’s] many safeguards 

and are consistent with the Fourth Amendment; (4) the 

Government will succeed in intercepting the communications of 

respondents' contacts; and (5) respondents will be parties to the 

particular communications that the Government intercepts.74

Appellees assert that because the planned redevelopment is both 

 

69 Clapper, 133 S. Ct. at 1147 (internal quotation marks and citation omitted).

70 Id. at 1142-43.

71 Id. at 1145.

72 Id. at 1148.

73 Id. at 1150.

74 Id. at 1148.

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inchoate and designed to be mixed income and to attract a variety of tenants, 

McCardell can only speculate as to whether, if redevelopment proceeds, it will 

deprive her of the social and economic benefits of diversity. Granted, 

McCardell’s asserted injury is inescapably “speculative” in the sense that it is 

not yet felt. But unlike in Clapper, where the alleged injury depended on a long 

and tenuous chain of contingent events, the chain-of-events framework in this 

case involves fewer steps and no “unfounded assumptions.”75 McCardell’s 

asserted injury would be concretely felt in the logical course of probable events 

flowing from an unfavorable decision by this court: (1) HUD approves the 

already-pending plan for redevelopment;76 (2) redevelopment occurs according 

to the approved plan;77 (3) segregation and minority- and povertyconcentration occur in McCardell’s neighborhood as specifically anticipated in 

several expert reports contained in the record.78

 

75 Cf. Clapper, 133 S. Ct. at 1148-49.

76 This after having formally approved the underlying demolition under 42 U.S.C. § 

1437p, in part based on the details of the proposed redevelopment.

77 In an analogous redressability analysis the Supreme Court found a “substantial 

probability of materialization” following the removal of regulatory barriers to a planned 

development. See Village of Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 

264 (1977) (“If a court grants the relief [plaintiff] seeks, there is at least a ‘substantial 

probability’ that the [proposed] project will materialize, affording [him] the housing 

opportunity he desires . . . .”).

78 The following excerpt is representative of the extensive expert reports submitted by 

McCardell:

The [planned redevelopment] will add public housing units to neighborhoods 

that already suffer from high concentrations of poverty exacerbating the 

problems that result from this social condition. These developments will 

confront a significant challenge in marketing units to middle- and upperincome households. If the developments fail to attract middle- and upperincome tenants, then the developments will further concentrate the poor in 

individual developments in poor neighborhoods. R.802 ((Kirk McClure, Ph.D, 

Review and Conclusions on Public Housing Reconstruction on Targeted Census 

Tracts in the City of Galveston, Texas, September 24, 2013). To develop mixedincome housing on the sites of the former public housing projects means 

locating these developments in tracts that are not enjoying strong demand for 

housing by upper-income households. The census tracts where the 

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Under Lujan, we take as true “specific facts . . . set forth by affidavit or 

other evidence.”79 McCardell asserts facts with more specificity and support 

than those found wanting in Clapper. We conclude that she has adequately 

alleged a threatened injury that is “certainly impending.”80 Bolstering this 

conclusion, as the district court below ably identified, numerous other courts 

have found that individual neighbors have standing to challenge future

segregative effects of planned but yet unbuilt public housing projects.81

2.

Appellees persist that even assuming injury-in-fact McCardell cannot 

show that it is “‘likely,’ as opposed to merely ‘speculative,’ that the injury will 

be ‘redressed by a favorable decision.’”82 This misapprehends our inquiry. Their 

argument appears to be that a favorable decision for McCardell “would have 

 

developments are planned have high levels of poverty and are not racially or 

ethnically integrated. The research suggests that these characteristics will 

make mixed-income housing developments extremely difficult, perhaps even 

impossible, to successfully market to upper-income households. R.791-94 (Kirk 

McClure, Ph.D, Analysis of the Census Tracts of Galveston County, Texas, 

September 24, 2013).

79 Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

80 Clapper, 133 S. Ct. at 1147.

81 See, e.g., Jackson v. Okaloosa Cnty., 21 F.3d 1531 (11th Cir. 1994) (holding plaintiffs 

had standing to challenge siting process for new, unbuilt public housing project); Alschuler 

v. Dep’t of Hous. & Urban Dev., 686 F.2d 472 (7th Cir. 1982) (affirming neighborhood standing 

to challenge HUD’s decision approving a preliminary proposal for development project); 

Shannon v. U.S. Dep’t of Hous. & Urban Dev., 436 F.2d 809, 817-18 (3d Cir. 1970) (affirming 

standing to challenge site selection for apartment project “about to be constructed,” premised 

on allegation that siting “will adversely affect” plaintiffs in the future) (cited favorably in 

Trafficante, 409 U.S. at 111; and Gladstone, 441 U.S. at 114 n.28); Glendale Neighborhood 

Ass’n v. Greensboro Hous. Auth., 901 F.Supp. 996, 1000 (M.D.N.C. 1995) (discussing Jackson 

and Alschuler and affirming standing of plaintiffs that alleged “they will be injured by 

development of the proposed public housing project”); King v. Harris, 464 F.Supp. 827, 832-

33 n.14 (E.D.N.Y. 1979), aff’d sub nom. King v. Faymor Dev. Co., 614 F.2d 1288 (2d Cir. 1979), 

vacated, 446 U.S. 905 (1980), aff’d on remand, 636 F.2d 1202 (2d Cir. 1980) (holding that 

plaintiffs, individuals living near a proposed housing project, had neighborhood standing to 

sue).

82 Brief of Federal Appellees at 14 (quoting Lujan v. Defenders of Wildlife, 504 U.S. 

555, 560-61 (1992)).

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the ironic result of blocking investment in the area . . . [because] McCardell 

provides no basis for concluding that an empty lot will do more to improve 

diversity in her neighborhood than would a new mixed-income development.”83

A favorable ruling by this court, however, would redress the injury McCardell 

asserts by forbidding redevelopment according to the proposed plan. One need 

not speculate about empty lots or alternative plans or outcomes to conclude 

that McCardell has demonstrated “likely” redressability under Lujan.

D.

We hold that McCardell has Article III standing to bring her claim that 

the planned redevelopment will deprive her of the social and economic benefits 

that result from living in an integrated community 

IV.

McCardell avers that the district court erred in dismissing the State 

Defendants as immune from suit under the Eleventh Amendment because 

Congress intended by the Fair Housing Act to abrogate their immunity. We 

disagree.

The Eleventh Amendment bars suits brought by private citizens against 

a state in federal court without the state’s consent.84 It is axiomatic that, as 

sovereigns, states and “arms of the state” possess immunity from suits brought 

under federal law.85 Congress may abrogate a state’s sovereign immunity only 

 

83 Id. at 17.

84 U.S. CONST. amend. XI (“The judicial power of the United States shall not be 

construed to extend to any suit in law or equity, commenced or prosecuted against one of the 

United States by Citizens of another State, or by Citizens or subjects of any Foreign State.”); 

see generally Hans v. Louisiana, 134 U.S. 1 (1890).

85 Northern Ins. Co. of New York v. Chatham Cnty., Ga., 547 U.S. 189, 193-94 (2006) 

(“[T]he phrase ‘Eleventh Amendment immunity’ . . . is convenient shorthand but something 

of a misnomer, for the sovereign immunity of the States neither derives from, nor is limited 

by, the terms of the Eleventh Amendment.”) (citing Alden v. Maine, 527 U.S. 706, 713 (1999); 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 98-99 (1984) (“[T]he principle of 

sovereign immunity is a constitutional limitation on the federal judicial power established in 

[Article] III . . . .”).

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if it (1) makes “unmistakably clear” its intent to do so and (2) acts pursuant to 

a constitutionally valid exercise of its power.86

It is undisputed that State Defendants here are arms of the state of 

Texas and Texas has not consented to suit brought under the Fair Housing 

Act. The question remains whether Congress validly abrogated Texas’ 

sovereign immunity in enacting the Fair Housing Act. McCardell cannot clear

the first hurdle of this inquiry. The language of the Fair Housing Act does not 

make “unmistakably clear” that Congress intended to abrogate. It contains no 

provision evidencing such intent. McCardell offers none, opting instead to 

devote the whole of her briefing on this issue to the second prong: whether 

Congress passed the Fair Housing Act pursuant to a constitutionally valid 

exercise of its power. But whether Congress did so bridges beyond, as the Act

lacks an explicit provision allowing its enforcement by private right of action 

against a state.

Its want is made the more clear, by contrast, in remedial provisions tied 

to other aspects of civil rights legislation. For example, with regard to Title VI 

of the Civil Rights Act of 1964, which prevents discrimination by government 

agencies that receive federal funds, Congress provided by statute that “[a] state 

shall not be immune under the Eleventh Amendment of the Constitution of the 

United States from Suit in Federal court for a violation of . . . title VI of the 

Civil Rights Act of 1964 . . . .”87 The Supreme Court has recognized that by this 

language Congress “expressly abrogated States’ sovereign immunity against 

suits brought . . . to enforce Title VI.”88 No similar language exists in the

provisions of the Fair Housing Act.

 

86 Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003); see Seminole Tribe 

of Florida v. Florida, 517 U.S. 44, 55 (1996).

87 42 U.S.C. § 2000d-7(a)(1).

88 See Alexander v. Sandoval, 532 U.S. 275, 280 (2001); see also Bd. of Trustees of Univ. 

of Alabama v. Garrett, 531 U.S. 356, 363-64 (2001) (holding that Congress indisputably 

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We hold that Congress did not make clear an intent to abrogate States’

Eleventh Amendment sovereign immunity from suits brought under the Fair 

Housing Act, a conclusion reached by other courts considering the issue.89

V.

The district court granted summary judgment to the remaining 

defendants on McCardell’s Fair Housing Act claim.90 It concluded that 

McCardell’s claim was precluded by a safe harbor provision found at 

42 U.S.C. § 1437p(d), which provides:

Notwithstanding any other provision of law, replacement public 

housing units for public housing units demolished in accordance 

with this section may be built on the original public housing 

location or in the same neighborhood as the original public housing 

location if the number of the replacement public housing units is 

significantly fewer than the number of units demolished.

The district court held that the “[n]otwithstanding any other provision of law” 

language contained in section 1437p(d) applied in this case to bar a Fair 

Housing Act claim against the rebuilding of units on former public housing 

sites because the demolition met the conditions requisite to invoke the safe 

harbor provision.

 

abrogated States’ immunity from suits brought under the Americans with Disabilities Act by 

providing in 42 U.S.C. § 12202 that “[a] State shall not be immune under the eleventh 

amendment to the Constitution of the United States from an action in [a court] for a violation 

of this chapter”).

89 See Morris v. Dehaan, 1991 WL 177995, at *3 (6th Cir. Sept. 12 1991); Brooks v. 

Oakland Univ., 2013 WL 6191051, at *2 (E.D. Mich. Nov. 26, 2013); Sims v. Tex. Dep’t of 

Hous. & Cmty. Affairs, 2008 WL 4552784, at *1 (S.D. Tex. Oct. 7, 2008) (“[T]he states were 

not made ‘persons’ potentially liable for FHA violations.” (citing 42 U.S.C. § 3602(d)); Gregory 

v. S. Carolina Dep’t of Transp., 289 F.Supp.2d 721, 724-25 (D.S.C. 2003); Project Life, Inc. v. 

Glendening, 139 F.Supp.2d 703, 711 (D. Md. 2001); Welch v. Century 21 Chimes Real Estate, 

1991 WL 29950, at *1-*2 (E.D.N.Y. Feb. 27, 1991); see also Boyd v. Browner, 897 F.Supp. 590, 

594-95 (D.D.C. 1995) (“[T]he Fair Housing Act does not ‘unambiguously waive’ the 

government’s sovereign immunity defense . . . .”). 90 R.4690-97.

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A.

We review de novo, applying the same standard as the district court.91

Summary judgment is proper “if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a 

matter of law.”92 “An issue is material if its resolution could affect the outcome 

of the action.”93 We consider all facts and evidence in the light most favorable 

to the nonmoving party.94

B.

As an initial matter, the district court’s interpretation and application of 

section 1437p comports with our plain-language reading of the statute. The 

section 1437p(d) safe harbor applies to the redevelopment of public housing on 

a demolished site if (1) the demolition was carried out “in accordance with” 

section 1437p and (2) “the number of replacement public housing units is 

significantly fewer than the number of units demolished.”95 If these conditions 

are met, the safe harbor applies to preclude a Fair Housing Act claim. 

McCardell does not contest on appeal that the number of replacement public 

housing units in the planned redevelopment would be “significantly fewer” 

than the number of units demolished as that standard is defined in relevant 

regulations.96 Our inquiry is thus focused on the “in accordance with” prong.

Relevant to this inquiry, the implementing regulations for section 1437p are 

codified at 24 C.F.R. § 970.1 et seq.97 Among the implementing regulations, the 

 

91 Haverda v. Hays Cnty., 723 F.3d 586, 591 (5th Cir. 2013).

92 Fed. R. Civ. P. 56(a).

93 Boudreaux v. Swift Transp. Co. Inc., 402 F.3d 536, 540 (5th Cir. 2005) (citation 

omitted).

94 Haverda, 723 F.3d at 591.

95 42 U.S.C. § 1437p(d).

96 See 24 C.F.R. § 905.602(d)(5).

97 See generally Demolition or Disposition of Public Housing Projects, 71 Fed. Reg. 

62,354 (Oct. 24, 2006).

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list of requirements for HUD approval of a PHA demolition application under 

section 1437p is located at 24 C.F.R. § 970.7. And relevant to this appeal, 24 

C.F.R. § 970.31 provides that the development of “replacement public housing 

units . . . on the original public housing location . . . must [also] comply with 

[the provisions of] 24 [C.F.R. §] 905 . . . .”

The provisions of 24 C.F.R. § 905, in turn, contain general requirements 

related “to the development of public housing units to be included under an 

ACC and which will receive funding from public housing funds.”98 Part 

905.602(d) provides that “[e]ach proposed site . . . for construction or 

rehabilitation of public housing must be reviewed and approved by the [HUD] 

field office as meeting [several] standards, as applicable.”99 This language 

indicates that a reviewing court’s inquiry is limited to considering whether 

HUD reviewed and approved a proposed site as meeting each standard. It does 

not require or permit a reviewing court to second-guess HUD’s determinations. 

Part 905.602(d) lists eleven standards that HUD must consider with 

regard to a proposed site for construction.100 The fifth listed standard tracks 

the language of the section 1437p(d) safe harbor and provides that 

“[n]otwithstanding the foregoing [four standards], after demolition of public 

housing units a PHA may construct public housing units on the original public 

housing site or in the same neighborhood if the number of replacement public 

housing units is significantly fewer than the number of public housing units 

demolished.”101 Because McCardell concedes that the planned redevelopment 

 

98 24 C.F.R. § 905.600(a); see id. at § 905.602(d).

99 Id. at § 905.602(d) (emphasis added). 100 Id. at § 905.602(d)(1)-(11).

101 Id. at § 905.602(d)(5). Subpart (d)(5) provides, in full:

(5) Notwithstanding the foregoing, after demolition of public housing 

units a PHA may construct public housing units on the original public 

housing site or in the same neighborhood if the number of replacement 

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meets the “significantly fewer” standard contained in subpart (d)(5), the 

express terms of that subsection provide that subparts (d)(1) through (d)(4) do 

not apply in this case. The remaining question for our purposes is whether 

HUD reviewed the proposed site for the planned redevelopment and approved 

it as meeting the standards listed at subparts (d)(6) through (d)(11).102 The 

district court, in holding that the section 1437p(d) safe harbor applied as a 

matter of law, necessarily concluded that HUD did so and thus answered this 

question affirmatively.

C.

McCardell challenges the district court’s holding on two fronts. She first 

argues that a material fact issue remains as to whether the planned 

redevelopment complies with subpart (d)(6),103 which requires HUD to affirm 

 

public housing units is significantly fewer than the number of public 

housing units demolished. One of the following criteria must be 

satisfied:

(i) The number of public housing units being constructed 

is not more than 50 percent of the number of public 

housing units in the original development; or

(ii) In the case of replacing an occupied development, the 

number of public housing units being constructed is the 

number needed to house current residents who want to 

remain at the site, so long as the number of public 

housing units being constructed is significantly fewer 

than the number being demolished; or

(iii) The public housing units being constructed 

constitute no more than 25 units.

102 Because McCardell does not appeal the dismissal of her APA claim challenging 

HUD’s determination that the standards listed at subparts (d)(6) through (d)(11) were 

satisfied, we have no occasion to consider whether those standards were satisfied in actuality.

103 McCardell makes passing reference to subparts (d)(7) through (d)(11) in briefing, 

but she offers no basis on which this court could conclude that summary judgment as to those 

subparts was improper. Nor do we find any basis in the record. The record indicates that the 

demolition and planned redevelopment complied with subparts (d)(7) through (d)(11).

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that “[t]he site shall promote greater choice of housing opportunities and avoid 

undue concentration of assisted persons in areas containing a high proportion 

of low-income persons.” We disagree. The record leaves no doubt that this 

requirement was met. After demolishing the Magnolia Homes and Cedar 

Terrace sites, GHA applied to HUD for formal approval of the demolition and 

the planned redevelopment. In its letter of approval, HUD explicitly considered 

the requirements set forth in the implementing regulations for section 1437p 

and concluded that the relevant requirements had been met.104 With regard to 

subpart (d)(6), the provision at issue here, HUD later indicated that:

. . . the [planned] redevelopment of both the Cedar Terrace and 

Magnolia Homes sites will affirmatively further fair housing 

and . . . the [planned] redevelopment of both sites will reduce the 

concentration of public housing units in operation on these two 

sites and will also lower the concentration of poverty in these 

neighborhoods.”105

This record evidence indicates conclusively that HUD reviewed the proposed 

site for the planned redevelopment and approved it as meeting the standard 

listed at subpart (d)(6). McCardell offers no relevant contrary evidence.

Although she points to several expert reports reaching conclusions different

from that reached by HUD, such evidence goes not to whether HUD reviewed 

and approved the proposed site in compliance with subpart (d), but instead 

attacks the wisdom of HUD’s underlying determination. As discussed above, 

 

104 R.4611-4616 (“Based upon our review, [we find] that the requirements of 24 

[C.F.R. §] 970 and Section 18 of the [United States Housing Act].”). As the district court 

correctly explained, Section 18 of the United States Housing Act of 1937, as amended by the 

Quality Housing and Work Responsibility Act of 1998, is codified at 42 U.S.C. § 1437p. See 

Veterans Affairs and HUD Appropriations Act, Pub. L. No. 105-276, 112 Stat. 2461, 2573 

(1998) (“Section 18 of the United States Housing Act of 1937 (42 U.S.C. 1437p) . . . .”); see 

also, e.g., 24 C.F.R. § 906.35 (“The provisions of section 18 of the 1937 Act (42 U.S.C. 1437p) 

. . . .”).

105 R.3547 (emphasis added).

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the plain text of 24 C.F.R. § 905.602(d) does not permit us to second-guess 

HUD’s conclusions in this context.

Arguing in the alternative, McCardell posits that even if record evidence 

demonstrates conclusively that the demolition was approved under section 

1437p, it might have been carried out pursuant to a different section 

altogether. McCardell offers that the demolition might have been carried out 

pursuant to section 1437v, which provides that demolition of public housing 

undertaken in conjunction with a “main street revitalization or redevelopment 

project”106 is not subject to the provisions of section 1437p,107 and thus not 

entitled to the section 1437p(d) safe harbor. In support, McCardell points to a 

fragment of GHA’s demolition application and asserts that GHA’s use of the 

word “obsolete” in a general narrative heading,108 without an express 

invocation of section 1437p, makes ambiguous whether the application was 

submitted pursuant to section 1437p or section 1437v, both of which refer to 

the demolition of “obsolete” public housing projects.109

 

106 The purpose of section 1437v(a) “is to provide [grant] assistance to public housing 

agencies” to improve living environments, revitalize sites, provide low income housing, and 

build sustainable communities. See 42 U.S.C. § 1437v; see generally “Main Street Grants 

Notice of Funding Availability,” HUD.GOV, available at

(http://portal.hud.gov/hudportal/HUD?src=/program_offices/public_indian_housing/program

s/ph/hope6/grants/mainstreet (last visited April 3, 2015) (providing an overview of the Main 

Street program). Section 1437v allows HUD to award grants to “carry out revitalization 

programs for severely distressed public housing.” 42 U.S.C. § 1437v(d)(1).

107 Section 1437v(g) provides:

Any severely distressed public housing disposed of pursuant to a 

revitalization plan and any public housing developed in lieu of such 

severely distressed housing, shall be subject to the provisions of section 

1437p of this title. Severely distressed public housing demolished 

pursuant to a revitalization plan shall not be subject to the provisions 

of section 1437p of this title. (emphasis added).

108 The heading reads: “Circumstances that resulted in the units becoming vacant and 

relocation of residents: Hurricane Ike made units obsolete[.]” R.4528. 

109 42 U.S.C. § 1437p(a)(1)(A)(i); id. at § 1437v(a)(1).

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This second argument is without merit. The record contains a written 

declaration from the director of HUD’s Public and Indian Housing Office of 

Urban Revitalization stating that “42 U.S.C. § 1437v does not apply to the 

development proposals submitted . . . by GHA for Cedar Terrace and Magnolia 

Homes.”110 The record contains no contrary evidence; nor does McCardell offer 

any. Finally, McCardell’s assertion that GHA’s use of the word “obsolete” 

creates ambiguity in the record, while creative, is unavailing.111 Summary 

judgment was proper.

VI.

The judgment of the district court is AFFIRMED.

 

110 R.4618-21

111 See Boudreaux, 402 F.3d at 540 (“Once the moving party has demonstrated the 

absence of a material fact issue, the non-moving party must go beyond the pleadings and 

designate specific facts showing that there is a general issue for trial. This burden will not 

be satisfied by some metaphysical doubt as to the material facts, by conclusory allegations, 

by unsubstantiated assertions, or by only a scintilla of evidence.” (internal quotation marks 

and citations omitted)).

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