United States Court of Appeals 

for the Fifth Circuit ____________ 

No. 23-50706 

____________ 

SO Apartments, L.L.C.; Station at Elm Creek, L.L.C., 

Plaintiffs—Appellants, 

versus

City of San Antonio, Texas, 

Defendant—Appellee. 

______________________________ 

Appeal from the United States District Court 

for the Western District of Texas 

USDC No. 5:23-CV-992 

______________________________ 

Before Higginbotham, Stewart, and Higginson, Circuit Judges.

Patrick E. Higginbotham, Circuit Judge: 

SO Apartments, LLC and Elm Creek, LLC (the “Complexes”) 

appeal the district court’s denial of a preliminary injunction, and present a 

facial challenge to the City of San Antonio’s recent enactment of its Proactive 

Apartment Inspection Program (“PAIP”). Finding that the district court did 

not abuse its discretion in denying this relief, we AFFIRM. 

I. 

In light of a documented pattern of property maintenance code 

violations, the City of San Antonio created the Proactive Apartment 

United States Court of Appeals 

Fifth Circuit 

FILED 

July 23, 2024 

Lyle W. Cayce 

Clerk 

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2 

Inspection Program.1 The PAIP’s stated purpose is to address property 

owners who are not maintaining their property to minimum building Code 

standards and who have allowed their property to develop “health, life, 

welfare and safety problems.”2

 

The PAIP applies to multifamily apartment complexes with five or 

more units, enabling the City to identify and monitor apartment complexes 

that have a documented disregard for Code violations.3

 The City achieves 

this identification by requiring apartment complexes to enroll in the PAIP 

when they receive three or more Code citations over a six-month period that 

they fail to cure.4

 Alleged Code violators receive notice of the purported 

Code violation and have an opportunity to appeal both the Code citation and 

the concomitant “program point” that would render them subject to 

enrollment in the PAIP.5

 Enrolled apartment complexes are assessed a $100 

per-unit, per-year fee to fund the inspection program, which permits the 

City’s designated Code enforcers to conduct at least monthly inspections of 

the enrolled complexes.6

 

An enrolled apartment complex “graduates” the PAIP by curing the 

original violations and obtaining no more than two additional program points 

in a six-month period after enrollment.7

 According to the City, since the 

_____________________ 

1 San Antonio, Tex., Code ch. 6, art. V (2023) [hereinafter Code]. 

2 Code § 6-66(a). 

3 Id.

4 Id. § 6-68(a)(1). 

5 Id. §§ 6-52, 107.2; 6-67(e). Alleged Code violators may pursue these appeals 

independently. In other words, even if a property owner fails to overturn a program point 

on appeal, he may still appeal the underlying citation through the judicial review process. 

6 Id. §§ 6-68(c); 6-71(a). 

7 Id. § 6-72(a). 

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3 

launch of the PAIP in April 2023, “of the 1,227 apartment complexes 

inspected in the City, only 19 are currently enrolled in the PAIP.”8

Appellants, SO Apartments and Elm Creek Apartments, are two of these 

nineteen complexes. 

II. 

On April 19, 2023, SO Apartments received four notices of violations 

and associated program points. On May 5, 2023, Elm Creek Apartments 

received twelve notices of violations and related points. After failing to cure 

the identified violations, the Complexes were fined for each violation, 

totaling $1,200 for SO Apartments and $3,600 for Elm Creek Apartments. 

The Complexes unsuccessfully disputed their citations or program points, or 

both, resulting in their required enrollment in the PAIP. SO Apartments 

owes a $12,500 program fee and Elm Creek Apartments owes a $32,400 

program fee. Although both apartment complexes are enrolled in the PAIP, 

neither have paid the program fee. 

On July 31, 2023, the Complexes filed suit against the City, 

challenging the constitutionality of the PAIP on three grounds. First, they 

argued that the PAIP violated the Fourth Amendment because it authorized 

frequent and “warrantless inspections” of private property. Second, they 

posited that the PAIP’s $100 per unit administrative fee violates the Eighth 

Amendment’s prohibition against excessive fines. Lastly, they contended 

that the PAIP denied them the procedural and substantive due process 

protections of the Fourteenth Amendment. 

_____________________ 

8

 As of June 2024, twenty-five complexes are enrolled. See Proactive Apartment 

Inspections Program Activity Report, City of San Antonio, https://perma.cc/L8KCYMZW. 

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4 

SO Apartments and Elm Creek Apartments moved for a preliminary 

injunction and, after a hearing, the district court denied their request, finding 

they failed to show any of the four requisites for a preliminary injunction. The 

Complexes filed a timely interlocutory appeal, bringing to this Court the 

same constitutional challenges made to the PAIP. 

III. 

The granting of a preliminary injunction is an “extraordinary and 

drastic remedy.”9

 The decision to “deny a preliminary injunction lies within 

the discretion of the district court and may be reversed on appeal only by a 

showing of abuse of discretion.”10 This Court “will not find an abuse of 

discretion unless the district court’s factual findings are clearly erroneous or 

incorrect legal standards were applied.”11 To obtain a preliminary injunction, 

a movant must show: 

(1) a substantial likelihood that plaintiff will prevail on the 

merits, (2) a substantial threat that plaintiff will suffer 

irreparable injury if the injunction is not granted, (3) that the 

threatened injury to plaintiff outweighs the threatened harm 

the injunction may do to defendant, and (4) that granting the 

preliminary injunction will not disserve the public interest.12

As in this case, when the Government opposes an injunction, the third 

and fourth factors “merge.”13 Moreover, “[a] facial challenge to a legislative 

_____________________ 

9 Anibowei v. Morgan, 70 F.4th 898, 902 (5th Cir. 2023), cert. denied sub nom. 

Anibowei v. Mayorkas, 144 S. Ct. 551 (2024) (quoting Canal Auth. of State of Fla. v. Callaway, 

489 F.2d 567, 573 (5th Cir. 1974)). 

10 Id. (quoting Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386 (5th Cir. 1984)). 

11 In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999) (quoting Latvian 

Shipping Co. v. Baltic Shipping Co., 99 F.3d 690, 692 (5th Cir. 1996)). 

12 Anibowei, 70 F.4th at 902 (quoting Canal Auth., 489 F.2d at 572). 

13 Nken v. Holder, 556 U.S. 418, 435 (2009). 

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Act is, of course, the most difficult challenge to mount successfully, since the 

challenger must establish that no set of circumstances exists under which the 

Act would be valid.”14 

IV. 

We hold that the district court did not abuse its discretion in denying 

the requested preliminary injunction, as the Complexes have failed to show 

that they would likely succeed on the merits of their claims. 

A. 

The Fourth Amendment applies to searches for administrative 

purposes.15 Whether a search is reasonable under the Fourth Amendment “is 

predominantly an objective inquiry.”16 A warrantless search is presumed 

unreasonable, absent certain exceptions.17 

The Complexes first argue that the PAIP allows for “frequent, 

unfettered warrantless searches” by public inspectors without a warrant, a 

denial of the protections of the Fourth Amendment. The Complexes contend 

the PAIP is unreasonable under the Fourth Amendment because the PAIP 

does not reference any warrant requirements but requires property owners to 

open their complexes for inspection. 

_____________________ 

14 United States. v. Salerno, 481 U.S. 739, 745 (1987). 

15 See Camara v. Mun. Ct. of City & Cnty. of S.F., 387 U.S. 523, 531–34 (1967) 

(holding that the Fourth Amendment requires a warrant to enter a home for the purpose of 

inspecting for violations of municipal fire, health, and housing codes). 

16 Ashcroft v. al-Kidd, 563 U.S. 731, 736 (2011) (quoting Indianapolis v. Edmond, 531 

U.S. 32, 47 (2000)). 

17 Mexican Gulf Fishing Co. v. U.S. Dep’t of Com., 60 F.4th 956, 967 (5th Cir. 2023) 

(citing United States v. Riley, 968 F.2d 422, 424 (5th Cir. 1992)). 

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Although the Complexes are correct that the Fourth Amendment 

applies to the City’s inspectors, the PAIP on its face does not authorize or 

mandate warrantless searches. Section 6-71, titled “Monitoring, inspection, 

and condition standard,” does not state that city officials can conduct a 

search without first obtaining a warrant.18 Indeed, when considering the 

Ordinance in the context of the entire “Buildings” section of the City Code, 

it becomes clear that warrants are contemplated in the building inspection 

process.19 As the City explains, the “PAIP does not exist in a legal vacuum” 

and, as such, it does not need to reiterate the protections afforded by the 

Fourth Amendment—the PAIP does “not attempt to subvert the alwaysapplicable warrant protections of the Fourth Amendment.”20 For these 

reasons, we hold that the district court did not abuse its discretion in 

concluding that the Complexes have failed to show that they were likely to 

succeed on their Fourth Amendment claim. 

B. 

The Complexes argue that the registration fees for the PAIP are 

unconstitutional under the Eighth Amendment as a disproportionate 

“punishment” because the fees apply only to apartment complex owners 

_____________________ 

18 Code § 6-71. 

19 For example, both Section 6-52 (which is part of the “Minimum Property 

Maintenance Code” for “Buildings”) and Chapter 10 of the Code (which builds on the 

requirements identified in Chapter 6 for “Buildings”) incorporate by reference standard 

Fourth Amendment warrant requirements, which cabin the City inspectors’ ability to enter 

an apartment complex without a warrant. See, e.g., Code § 6-52, 104.3 (“The code official 

is authorized to enter the structure or premises at reasonable times to inspect subject to legal 

restrictions.” (emphasis added)); id. § 10-5(g) (“If entry is refused, the building official has 

recourse to the remedies provided by law to secure entry.” (emphasis added)). 

20 Moreover, the City acknowledged at oral argument that it “would have had to 

obtain an administrative warrant if [the Complexes] had not consented.” Oral Argument 

at 19:10-19:23. 

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with multiple violations and not to apartment complex owners on “good 

terms with a code official.” They also argue that the registration fees are 

excessive because they depend on the number of dwelling units rather than 

the purported violations.21

The Excessive Fines Clause of the Eighth Amendment applies only 

when “the statutory fees at issue constitute punishment.”22 A payment 

“compensating the Government for a loss” is distinct from a fine, as it 

instead serves a “remedial purpose.”23 Even if a fee is punishment, however, 

it would only run counter to the Eighth Amendment “if it is grossly 

disproportional to the gravity of [the] offense.”24 

The district court found that the registration fees are not a form of 

punishment. Their purpose is to cover the administrative costs associated 

with the additional monitoring of a property once it is enrolled in the PAIP. 

We agree. The manner in which the fees are assessed lends further credence 

to this point: The enrollment fee is based on the number of units in a property 

and is directly commensurate to the additional work the City must undertake 

to monitor the rehabilitation of PAIP complexes. Moreover, even if the 

registration fees were perceived as a form of punishment, they are directly 

proportional to the anticipated cost of monitoring noncompliant properties 

relative to their comparative sizes—they are not “excessive.” 

_____________________ 

21 As an example, the Complexes posit that “[a] smaller apartment complex could 

have egregious violations but only pay $500.00 (if the complex only had five units) whereas 

a neighboring apartment complex with 500 units would be forced to pay $50,000.00 for 

less egregious and potentially vague violations.” Id.

22 Broussard v. Par. of Orleans, 318 F.3d 644, 652 (5th Cir. 2003). 

23 United States v. Bajakajian, 524 U.S. 321, 329 (1998). 

24 Id. at 334. 

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C. 

Procedural “[d]ue process ‘requires only notice that is both adequate 

to apprise a party of the pendency of an action affecting its rights and timely 

enough to allow the party to present its objections.’”25 This inquiry requires 

a balancing between the private and governmental interests concerned.26

Specifically, courts must consider three factors in this balancing analysis: 

(1) “the private interest that will be affected by the official action”; (2) “‘the 

risk of an erroneous deprivation’ under the procedures provided”; and 

(3) “the Government’s interest, including the function involved and the 

fiscal and administrative burdens that . . . additional or substitute procedural 

requirements would entail.”27 

The Complexes identify two property interests of which they have 

been allegedly deprived without due process: (1) their right to freely transfer 

their property in light of Code § 6-52, 107.6; and (2) the $100-per-unit fee 

they were charged when enrolled in the PAIP. Both arguments, however, 

likely fail on the merits. 

As to the restriction on the transfer of property, the Complexes’ 

argument fails at the first step in the balancing analysis because Code § 6-52, 

107.6 does not deprive the Complexes of their right to sell their property. As 

the City explains, that provision of the Code does not deprive anyone of their 

right to sell their property; instead, it requires either code compliance before 

a sale or notification to the buyer that the property is noncompliant with the 

_____________________ 

25 Burns v. Harris Cnty. Bail Bond Bd., 139 F.3d 513, 521 (5th Cir. 1998) (quoting In 

re Christopher, 28 F.3d 512, 519 (5th Cir. 1994)). 

26 Bevis v. City of New Orleans, 686 F.3d 277, 280 (5th Cir. 2012) (“The 

constitutional adequacy of the Ordinance’s procedures is assessed by balancing the private 

and governmental interests concerned.”). 

27 Id. at 280–81 (cleaned up) (citations omitted). 

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City’s maintenance codes.28 Under this provision, the City has no authority 

to stop a property sale—at most, the City may impose a fine for 

noncompliance (which the Complexes do not challenge on due process 

grounds). 

The Complexes’ second argument—that the PAIP improperly 

deprives them of their $100-per-unit registration fees without due process—

fails to persuade. Although the Complexes correctly identify the $100 

registration fee as a property interest, the “risk of an erroneous deprivation” 

is low under the PAIP’s existing procedures.29 Under the PAIP, an apartment 

complex owner must receive notice of a Code violation before a citation can 

issue.30 Only if the property owner fails to cure a violation is a citation, and 

program point, issued.31 Importantly, the program point is not applied until 

(1) the ten-day administrative appeal period expires if the owner fails to 

_____________________ 

28 Code § 6-52, 107.6 reads: 

It shall be unlawful for the owner of any dwelling unit or structure who has 

received a compliance order or upon whom a notice of violation has been 

served to sell, transfer, mortgage, lease or otherwise dispose of such 

dwelling unit or structure to another until the provisions of the compliance 

order or notice of violation have been complied with, or until such owner 

shall first furnish the grantee, transferee, mortgagee or lessee a true copy 

of any compliance order or notice of violation issued by the code official 

and shall furnish to the code official a signed and notarized statement from 

the grantee, transferee, mortgagee or lessee, acknowledging the receipt of 

such compliance order or notice of violation and fully accepting the 

responsibility without condition for making the corrections or repairs 

required by such compliance order or notice of violation. 

29 Bevis, 686 F.3d at 280 (citation omitted). As the City argues, “[t]he very fact that 

over 1,000 apartment complexes have avoided receiving three program points—and 

therefore avoided required enrollment in the PAIP—speaks to the exacting nature of the 

program point process.” 

30 Code § 6-67(a)(1). 

31 Id. § 6-67(d)(1), (2). 

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appeal; or (2) if there is an appeal, then only after the code official has made 

a finding against the owner and the property.32 Additionally, a property 

manager may appeal the issuance of a program point separately and 

concurrently from the underlying citation. In other words, a property owner, 

even if the code official rules against them with respect to the program point, 

may still separately and concurrently appeal the underlying citation through 

the judicial review process.33

As to the third factor in the procedural due process balancing analysis, 

the City’s and public’s interests are weighty: The City is responding to a 

documented issue of improper housing conditions and is trying to improve 

the safe living conditions of those residents that ordinarily could not advocate 

for themselves. When balancing the private and governmental interests 

concerned, it is clear that the district court did not abuse its discretion in 

finding that the Complexes failed to establish a likelihood of success on either 

of its procedural due process claims. 

D. 

The Complexes also present a substantive due process challenge. “A 

substantive due process violation is an ‘action government officials may not 

take no matter what procedural protections accompany them.’”34

Substantive due process “prevents the government from engaging in 

conduct that ‘shocks the conscience,’ or interferes with rights ‘implicit in 

the concept of ordered liberty.’”35 The Complexes argue that the PAIP 

_____________________ 

32 Id. § 6-67(d)(3). 

33 Id. § 6-67(e)(5). 

34 Rosedale Missionary Baptist Church v. New Orleans City, 641 F.3d 86, 89-90 (5th 

Cir. 2011) (quoting Augustine v. Doe, 740 F.2d 322, 326 (5th Cir. 1984)). 

35 Salerno, 481 U.S. at 746 (internal citations omitted). 

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violates their substantive due process rights because it is “[1] facially vague 

and [2] as applied in that it . . . fails to give fair notice.” We are not persuaded 

that the district court abused its discretion in finding that this claim would 

likely not succeed on the merits. 

The Complexes’ substantive due process claim likely fails on the 

merits because they failed to identify any conduct that so “shocks the 

conscience” that it would amount to a substantive due process violation.36 A 

$100-per-unit fee, commensurate to the additional burdens placed on the 

City to administer the program, is not so egregious that it would interfere 

with rights “implicit in the concept of ordered liberty.”37 

The Complexes’ second argument, which is best understood as a 

procedural, not substantive, vagueness challenge, also fails to persuade. The 

Complexes argue that the notices fail to provide sufficient notice. 

“Objections to vagueness under the Due Process Clause rest on the lack of 

notice and hence may be overcome in any specific case where reasonable 

persons would know that their conduct is at risk.”38 In this case, reasonable 

persons would read the violation notices and conclude that a failure to appeal 

the notices would lead to a citation or program point. 

V. 

The Complexes have not only failed to show a likelihood of success on 

the merits, but they have also failed to establish (1) that they would suffer 

irreparable injury if the injunction were not granted and (2) that the 

_____________________ 

36 Id.

37 Id.

38 United States v. Clark, 582 F.3d 607, 612–13 (5th Cir. 2009) (citing Maynard v. 

Cartwright, 486 U.S. 356, 361 (1988)). 

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threatened injury outweighs the threatened harm the injunction may do to 

the City and the public interest. 

As to irreparable harm, the Complexes’ claim is meritless. “In 

general, a harm is irreparable where there is no adequate remedy at law, such 

as monetary damages.”39 However, the availability of monetary damages 

does not automatically mean that a remedy at law is always “adequate.”40

For example, if final relief may only be secured through “a multiplicity of 

actions,” or if a “meaningful decision on the merits would be impossible 

without an injunction,” then a preliminary injunction may be appropriate 

notwithstanding the availability of monetary damages.41 “[T]he loss of 

constitutional freedoms for even minimal periods of time unquestionably 

constitutes irreparable injury.”42 

Monetary damages are available here—the Complexes could be 

compensated for the registration fees, citations, and any of their incurred 

compliance costs. Moreover, none of the special situations that might 

warrant a finding of irreparable harm notwithstanding the availability of 

monetary damages are present: The Complexes do not need to file a 

multiplicity of actions, nor is a review on the merits impossible without 

granting the preliminary injunction. Lastly, the Complexes’ constitutional 

claims will likely fail on the merits, thus weaking their claim that they face an 

_____________________ 

39 Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011) (citing Deerfield Med. Ctr. v. 

City of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. Unit B 1981); Parks v. Dunlop, 517 F.2d 

785, 787 (5th Cir. 1975)). 

40 Id.

41 Id.

42 BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir. 2021) (cleaned up). 

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untenable choice between exercising their constitutional rights and 

complying with the PAIP. 

As to the balancing of harms between the Complexes and the City and 

its residents, we also hold that the Complexes have not met their burden. The 

potential harm to the Complexes is monetary in nature and thus reparable. 

On the other hand, an injunction would prevent the City from enforcing its 

police powers to protect the health, safety, and welfare of its residents in light 

of a documented pattern of Code violations. San Antonio residents have a 

significant interest in the enforcement of ordinances that protect the public 

health,43 and the PAIP seeks to address critical issues such as “rotting 

balconies, cracked windows, . . . broken gutters[,] . . . and [] stairways in 

disrepair.” Given the potential harm to the City’s ability to exercise its police 

powers in light of a documented pattern of repeated housing violations, and 

the residents’ interest in public health, we hold that the district court did not 

abuse its discretion in finding that the Complexes failed to meet their burden 

under the “merged” third and fourth preliminary injunction factors. 

VI. 

The constitutional challenges under the Fourth, Eighth, and 

Fourteenth Amendments are likely to fail on the merits. SO Apartments and 

Elm Creek Apartments also failed to establish they would suffer irreparable 

harm. Moreover, the potential harm to the City and its residents is significant 

and weightier vis-à-vis the potential harm to the Complexes. One gentle 

reminder: from this distant perch, we are ill equipped to say more. The able 

state and federal district courts, sensitive to community demands, are at your 

_____________________ 

43 See Roark & Hardee L.P. v. City of Austin, 394 F. Supp. 2d 911, 922 (W.D. Tex. 

2005). 

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hand. We hold that the district court did not abuse its discretion in denying 

the preliminary injunction and AFFIRM the district court’s order. 

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