United States of America v. Edward Rose & Sons

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0279P (6th Cir.)
File Name: 04a0279p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
EDWARD ROSE & SONS et al.,
Defendants-Appellants
(03-1316),
DORCHEN/MART IN
ASSOCIATES, INCORPORATED;
ECKERT/WORDELL
ARCHITECTS, PC; GERALD
PETERSON; JAMES R. SAULE,
Defendants-Appellants
(03-1418).
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Nos. 03-1316/1418
Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 02-73518—Victoria A. Roberts, District Judge.
Argued: March 10, 2004
Decided and Filed: August 25, 2004
Before: SILER, MOORE, and SUTTON, Circuit Judges.
2 United States v. Edward
Rose & Sons, et al.
Nos. 03-1316/1418
_________________
COUNSEL
ARGUED: Frederick M. Baker, Jr., HONIGMAN,
MILLER, SCHWARTZ & COHN, Lansing, Michigan, for
Appellants. Gregory B. Friel, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. ON BRIEF: Frederick M. Baker, Jr.,
HONIGMAN, MILLER, SCHWARTZ & COHN, Lansing,
Michigan, Sheri B. Cataldo, Kevin J. Gleeson, Raymond P.
Rogissart, SULLIVAN, WARD, ASHER & PATTON,
Southfield, Michigan, Garry L. Walton, Kalamazoo,
Michigan, Joseph R. Enslen, STRAUB, SEAMAN &
ALLEN, St. Joseph, Michigan, for Appellants. Gregory B.
Friel, Jessica Dunsay Silver, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for
Appellee. John P. Relman, RELMAN & ASSOCIATES,
Washington, D.C., Bruce E. Lundegren, NATIONAL
ASSOCIATION OF HOME BUILDERS, Washington, D.C.,
James W. Harris, NATIONAL MULTI HOUSING
COUNCIL, Washington, D.C., for Amici Curiae.
_________________
OPINION
_________________
SILER, Circuit Judge. This housing discrimination case
turns on what doors must be accessible to the handicapped.
At issue are two sets of apartment complexes, designed with
an inaccessible front door, but an accessible back patio door.
The district court granted the U.S. Justice Department
(“government”) a preliminary injunction halting the
construction and occupancy of the buildings. The main
defendant, the builder and owner, Edward Rose & Sons
(“Rose”), appeals, arguing that court erred (1) by
misconstruing the requirements of the Fair Housing Act,

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1The architects of the buildings, Do rchen/M artin Associates,
Eckert/W ordell Architects, James Suale, and Gerald Peterson
(“architects”), were also name d as defendants and have filed a brief.
2The use of the words “front” and “rear” here is to help paint the
picture of the building. Obviously, which door is the “front” is a matter
of op inion. T here is no binding statutory or regulatory definition.
3The district court assumed the patio door accessibility for the
prelim inary injunction.
42 U.S.C. § 3601 et seq. (“FHA”), and (2) by incorrectly
weighing the relative preliminary injunction interests and
harms. We AFFIRM the district court’s grant of the
preliminary injunction.
I. FACTUAL & PROCEDURAL BACKGROUND
Defendant Rose1 constructed and owns the nineteen
apartment buildings, located in Michigan and Ohio, at issue.
These buildings are at various stages of construction, but all
have the same basic design. The ground floor apartments at
issue have two exterior entrances - a front door and rear patio
door.2 The front door is closer to the parking lot, but is
handicapped inaccessible because it can only be reached by
descending stairs. At the bottom of the stairs is a landing
shared by two front doors leading into two different
apartments. The rear patio entrance is accessible,3 but is
located farther from the parking lot.
The government alleged that the apartments violated the
disability portions of the FHA. The district court granted a
preliminary injunction, adopting the government’s position
that the front door was the “primary entrance” used by the
public and guests, and as such, it was a “public” or “common
area” that the FHA mandates be accessible. See 42 U.S.C.
3604(f)(3)(C)(i). In reaching this conclusion, the court relied
on the Housing and Urban Development (“HUD”)
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regulations, guidelines, and design manual. The preliminary
injunction halts construction on the “covered dwellings” and
restrains the defendants from occupying “covered dwellings”
not yet leased. In this case, “covered dwellings” means
simply the ground floor. See 42 U.S.C. § 3604(f)(7) (stating
if building has no elevator, only the ground floor is a covered
dwelling subject to the FHA). Rose appeals.
II. STANDARD OF REVIEW
This court reviews the grant of a preliminary injunction for
an abuse of discretion. See Washington v. Reno, 35 F.3d
1093, 1098 (6th Cir. 1994). A “district court’s findings of
fact underlying its decision to grant a preliminary injunction
are reviewed for clear error and the legal conclusions
underpinning its decision are reviewed de novo.” In re Eagle-
Picher Indus., Inc., 963 F.2d 855, 858 (6th Cir. 1992).
Because a trial court's decision to grant a preliminary
injunction is accorded great deference, this court should
disturb such a decision only if the district court “relied upon
clearly erroneous findings of fact, improperly applied the
governing law, or used an erroneous legal standard.”
Washington, 35 F.3d at 1098.
The preliminary injunction factors are: “(1) the likelihood
that the party seeking the preliminary injunction will succeed
on the merits of the claim; (2) whether the party seeking the
injunction will suffer irreparable harm without the grant of the
extraordinary relief; (3) the probability that granting the
injunction will cause substantial harm to others; and
(4) whether the public interest is advanced by the issuance of
the injunction.” Id. at 1099. These are factors to be balanced,
not prerequisites that must be met. Id. “[T]he district court's
weighing and balancing of the equities is overruled only in
the rarest of cases.” In re Eagle-Picher, 963 F.2d at 858
(internal quotation marks omitted). The purpose of a
preliminary injunction is simply to preserve the status quo;
thus, findings of fact and conclusions of law made by a

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district court in granting a preliminary injunction are not
binding at a trial on the merits. University of Texas v.
Camenisch, 451 U.S. 390, 395 (1981).
III. ANALYSIS
Likelihood of Success on the Merits
The basic question of this litigation is whether the space
outside the front door is a public or common use area that
must be handicapped accessible. We are the first circuit to
consider the issue. The statute reads:
C) in connection with the design and construction of
covered multifamily dwellings for first occupancy after
the date that is 30 months after September 13, 1988, a
failure to design and construct those dwellings in such a
manner that--
(i) the public use and common use portions of such
dwellings are readily accessible to and usable by
handicapped persons;
(ii) all the doors designed to allow passage into and
within all premises within such dwellings are sufficiently
wide to allow passage by handicapped persons in
wheelchairs; and
(iii) all premises within such dwellings contain the
following features of adaptive design:
(I) an accessible route into and through the
dwelling;
(II) light switches, electrical outlets, thermostats,
and other environmental controls in accessible
locations;
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(III) reinforcements in bathroom walls to allow later
installation of grab bars; and
(IV) usable kitchens and bathrooms such that an
individual in a wheelchair can maneuver about the
space.
42 U.S.C. § 3604(f)(3) (emphasis added).
The government asserts that because the landing at the
bottom of the stairs is a “common area,” § 3604(f)(3)(C)(i)
mandates that the landing must be accessible. The landing in
front of the entrances is not accessible because it can only be
reached by the stairs. The government argues that this
entrance is the “primary” door because it is in the front and
closest to the parking lot. As such, it is the entrance most
visitors will use, and thus the space or landing in front of the
door is a public or common area. Additionally, the stair
landing is shared by two entrances to two different apartment
units, and thus a common area used by two tenants.
Rose correctly points out that neither the statute nor any
possibly binding regulations make any reference or
distinction between “primary,” “front,” or “back” doors.
Rose argues that the government’s interpretation requires
almost every entrance to a unit be accessible. If the space in
front of an entrance becomes a common use area, simply
because people use the entrance, then the statute would
require virtually every entrance to be accessible.
Rose asserts that if the space in front of virtually every
entrance is a “common” or “public” area,
§ 3604(f)(3)(C)(iii)(I) becomes superfluous. Section
3604(f)(3)(C)(iii)(I) mandates all premises must have “an
accessible route into and through the dwelling.” (Emphasis
added.). Rose contends that the indefinite article “an”
indicates that the statute only requires one accessible route
into each unit. As such, the space in front of every door to a

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4W hile our finding that the plain meaning of “common use”
unam biguo usly covers the stair landing at issue, even if we found the
statute ambiguous, the space in front of the two entrances wo uld fall
private unit cannot be a common area, or all doors would
have to be accessible, and there would be no need for
§ 3604(f)(3)(C)(iii)(I) to separately mandate “an accessible
route” into the unit. Moreover, even if there were such a
thing as a single “primary” entrance, whose anterior space
must be accessible as a common area, there would still be no
need for § 3604(f)(3)(C)(iii)(I) to redundantly mandate “an
accessible route.” An accessible route would already be
mandated by the common area in front of the primary
entrance of every unit.
We find that, in this particular case, the stair landing in
front of the entrance is a common area that the statute
mandates be accessible. The fact that two apartment units
share the stair landing makes the space a common area. The
plain meaning of “common use” unambiguously covers the
entrance under dispute. At the time of the statute’s
enactment, dictionaries generally defined “common” as
belonging to or shared by two or more individuals. See The
Oxford English Dictionary 565 (J.A. Simpson & E.S.C.
Weiner eds., Clarendon Press 2d ed. 1989) (defining common
as “[b]elonging equally to more than one” and “possessed or
shared alike by both or all.”); Webster’s Third New
International Dictionary 458 (Philip Babcock Gove ed.,
Merriam-Webster 1986) (“held, enjoyed, experienced, or
participated in equally by a number of individuals; possessed
or manifested by more than one individual”); Funk &
Wagnalls New International Dictionary (Publishers
International Press Comprehensive ed. 1984) (“Pertaining to,
connected with, or participated in by two or more persons or
things; joint.”). Here, the stair landing belongs to, and is
shared by, two apartments, and exists for their “common
use.”4
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under the HUD regulations defining “common use area.” See generally
Chevron U.S.A. v. Natura l Resou rces D efense Co unc il, 467 U.S. 837
(1984) (finding regulatory interpretation of ambiguous statute controlling
if not contrary to the statute); Meyer v. Holley, 537 U.S. 280, 288 (2003)
(Supreme Court using HUD regulations and comm entary in Federal
Register in interpreting the FHA). T he regulation defines “com mon use
areas” as “rooms, spaces or elements inside or outside of a building that
are mad e available for the use of residents of a building or the guests
thereof . . . includ[ing] hallways, lounges, lobbies, laundry ro oms, refuse
room s, mail rooms, recreational areas and passageways among and
between buildings.” 24 C.F.R. § 100.201. In the instant case, the shared
landing is like a common “hallway” shared by the two apartments. Thus,
even if we found “comm on area” ambiguo us, Rose still would lose under
the regulations.
Our ruling is narrow; we simply hold in this case that
because the two apartments share the stair landing, the stair
landing qualifies as a “common area” that must be accessible.
We express no opinion on what the FHA would require if the
stairs only led to one apartment unit entrance and decline to
delve into the parties’ “primary entrance” arguments because
we find them unnecessary for the resolution of this case.
Assuming arguendo that, as Rose submits, not every entrance
constitutes a “common area” because otherwise
§ 3604(f)(3)(C)(iii)(I)’s mandate that all premises have “an
accessible route” is superfluous, we still would find that the
shared landing is a common area. Section
§ 3604(f)(3)(C)(iii)(I) would not be superfluous because that
section would ensure that apartment units that share no
entrance with another apartment unit would still have “an
accessible” entrance.
In sum, we find that the stair landing qualifies as a
“common area” that the FHA mandates be accessible. Thus,
the government’s likelihood of success on the merits is
strong.

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The Other Preliminary Injunction Factors
Besides the statutory interpretation, which deals with the
(1) “likelihood of success on the merits” factor, the other
injunction factors the court considers are (2) irreparable injury
to the party seeking the injunction, (3) substantial harm to
others, and (4) the public interest served by the grant of the
injunction. We need not tarry because of the government’s
overwhelming likelihood of success on the merits.
Irreparable Injury
The district court presumed irreparable harm because the
FHA explicitly provides for injunctive relief. Rose argues
this presumption is not the law of the Sixth Circuit. We find
any error by the district court of no consequence.
Under the FHA, the court “may award” a temporary
injunction “for a violation” of the statute “as is necessary to
assure the full enjoyment of the rights granted.” 42 U.S.C.
§ 3614(d)(1)(A). Some circuits have ruled that when a
federal statute specifically provides for injunctive relief,
traditional equity principles do not apply, and a showing of
irreparable harm is not required. See, e.g., United States v.
Diapulse, 457 F.2d 25, 27-28 (2d Cir.1972). Other circuits
find that the statute must have language specifically changing
the traditional standards, such as language mandating that the
court “shall” enjoin the activity if an agency order is
disobeyed. See, e.g., Illinois Bell Telephone v. Illinois
Commerce Comm’n, 740 F.2d 566, 571 (7th Cir. 1984).
Under this second approach, if a statute confers a right to an
injunction once a certain showing is made, the plaintiff need
show no more than the statute specifies. United States v.
Microsoft Corp., 147 F.3d 935, 943 (D.C. Cir.1998). In CSX
Transportation v. Tennessee State Board of Equalization, 964
F.2d 548 (6th Cir. 1992), the court found that “since Congress
has expressly authorized the granting of injunctive relief to
halt or prevent a violation of [the statute], traditional equitable
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criteria do not govern the issuance of preliminary
injunctions.” Id. at 551. Like the FHA, the statute read that
courts “may” grant preliminary injunctions “as may be
necessary to prevent, restrain, or terminate” any violations of
the statute. Id. at 550.
We need not decide whether CSX controls or whether a
statute must mandate another showing that displaces the
traditional equitable factors because we find it immaterial to
the disposition of this case. We balance the equitable factors,
and none is a prerequisite. Washington, 35 F.3d at 1099. The
other equitable factors, particularly the strong likelihood of
success on the merits, outweigh any lack of irreparable harm,
with or without any presumption.
Substantial Harm to Others
Regarding the substantial harm to others factor, Rose
asserts that it is sustaining massive monetary damage from
the halt of construction and renting of the finished units,
amounting to $150,000 a month. The government responds
that it made Rose aware that these apartment designs violated
the FHA, so Rose proceeded at its own risk. This court, in
Baker v. Adams County/Ohio Valley School Board, 310 F.3d
927 (6th Cir. 2002), found “[m]ere injuries, however
substantial, in terms of money, time and energy necessarily
expended” in compliance with an injunction “are not
enough.” Id. at 930 (citation omitted). “Indeed, especially
when a party knew of the risk that it undertook when it
undertook the enjoined activity, monetary losses from the
[sic] complying with the injunction will seldom be
irreparable.” Id. Thus, Rose voluntarily incurred any harm
from the preliminary injunction.
Public Interest
Finally, on the public interest factor, the Supreme Court has
found the FHA serves an “overriding societal priority.”

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Meyer v. Holley, 537 U.S. 280, 290 (2003); accord Price v.
Pelka, 690 F.2d 98, 102 (6th Cir. 1982) (eradicating housing
discrimination serves the “public interest”).
IV. CONCLUSION
Balancing the Preliminary Injunction Factors
The stair landing shared by two apartments qualifies as a
“common area” that the FHA mandates be handicapped
accessible. This strong finding of a likelihood of success on
the merits coupled with the public’s interest in eradicating
housing discrimination overcomes any weakness in the
irreparable injury and harm to others factors.
AFFIRMED.

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