Housing demolition suit set back by appeals court

• By ALLEN M. JOHNSON JR.
• Advocate New Orleans bureau
• Published: Jan 3, 2009 - Page: 4B - UPDATED: 12:05 a.m.

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NEW ORLEANS — A federal appeals court has handed authorities a victory in their fight with tenants over the demolition of four public housing developments, following Hurricane Katrina.

The decision — one of the last by the 5th U.S. Circuit Court of Appeals in 2008 — came earlier this week as federal and city officials prepared to break ground next week on the second of four new housing complexes.

A three-judge panel of the 5th Circuit ruled Dec. 31 that U.S. District Judge Ivan L.R. Lemelle of New Orleans “abused (his) discretion” by certifying a class-action suit based on claims not included in the tenants’ original complaint filed in 2006 against the Housing Authority of New Orleans (HANO) and the U.S. Department of Housing and Urban Development (HUD).

“The district court’s authority to certify a class … does not permit it to structure a class around claims not pled,” the federal appeals panel ruled, citing federal housing laws.

Attorneys for tenants and for HUD in the ongoing litigation could not be reached late Friday. Lawyers for HANO were buoyed by the appellate court ruling.

“We’re grateful,” said HANO General Counsel Wayne Woods. “We think the 5th Circuit made the correct decision.”

“It was what we expected,” said Rachel Wisdom, the lead defense attorney for HANO in the civil case and an attorney for the New Orleans firm of Stone Pigman. “The district court made a procedural error that we and the lawyers for HUD recognized at the time.”

After Hurricane Katrina hit New Orleans in 2005, the 5th Circuit opinion recounts, HANO planned to “demolish and redevelop” four storm-damaged public housing developments: B.W. Cooper, C.J. Peete, St. Bernard, and Lafitte “(collectively known as ‘the Big Four’).”

HUD approved HANO’s application for demolition. HUD described the Big Four as “obsolete, dilapidated, and unsuitable for housing purposes,” the 5th Circuit opinion states. HANO then vowed to provide comparable housing for all displaced residents, during demolition and redevelopment, through a disaster assistance voucher program, according to the ruling.

On June 27, 2006, Yolanda Anderson and 15 other public housing tenants filed suit in a federal court in New Orleans. The suit named then-HUD Secretary Alfonso Jackson along with other HUD and HANO officials as defendants.

The tenants asked that the federal court stop the demolition of some 5,000 apartments, force HANO and HUD to repair the storm-damaged units, allow residents to reoccupy the apartments, and award damages for economic losses and emotional distress, the 5th Circuit observed.

The lower court dismissed many of the tenants’ claims, including allegations of intentional race discrimination. Judge Lemelle also rejected the residents’ proposed class for the suit, after “finding too many conflicts of interest among class members,” the 5th Circuit noted

Instead, the judge certified a narrower class consisting of all black residents listed in HANO lease records who resided in public housing developments on Aug. 29, 2005, but who were “involuntarily displaced” as a result of Katrina. Also certified were HANO tenants who received vouchers and rental assistance from HUD or HANO for help with utility bills, “leading to a disparity on how they were treated before Katrina as well as post-Katrina,” the 5th Circuit noted.