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

                           1
Nos. 03-1316/1418                   United States v. Edward            3    4    United States v. Edward               Nos. 03-1316/1418
                                         Rose & Sons, et al.                     Rose & Sons, et al.

42 U.S.C. § 3601 et seq. (“FHA”), and (2) by incorrectly                    regulations, guidelines, and design manual. The preliminary
weighing the relative preliminary injunction interests and                  injunction halts construction on the “covered dwellings” and
harms. We AFFIRM the district court’s grant of the                          restrains the defendants from occupying “covered dwellings”
preliminary injunction.                                                     not yet leased. In this case, “covered dwellings” means
                                                                            simply the ground floor. See 42 U.S.C. § 3604(f)(7) (stating
   I. FACTUAL & PROCEDURAL BACKGROUND                                       if building has no elevator, only the ground floor is a covered
                                                                            dwelling subject to the FHA). Rose appeals.
   Defendant Rose1 constructed and owns the nineteen
apartment buildings, located in Michigan and Ohio, at issue.                              II. STANDARD OF REVIEW
These buildings are at various stages of construction, but all
have the same basic design. The ground floor apartments at                    This court reviews the grant of a preliminary injunction for
issue have two exterior entrances - a front door and rear patio             an abuse of discretion. See Washington v. Reno, 35 F.3d
door.2 The front door is closer to the parking lot, but is                  1093, 1098 (6th Cir. 1994). A “district court’s findings of
handicapped inaccessible because it can only be reached by                  fact underlying its decision to grant a preliminary injunction
descending stairs. At the bottom of the stairs is a landing                 are reviewed for clear error and the legal conclusions
shared by two front doors leading into two different                        underpinning its decision are reviewed de novo.” In re Eagle-
apartments. The rear patio entrance is accessible,3 but is                  Picher Indus., Inc., 963 F.2d 855, 858 (6th Cir. 1992).
located farther from the parking lot.                                       Because a trial court's decision to grant a preliminary
                                                                            injunction is accorded great deference, this court should
  The government alleged that the apartments violated the                   disturb such a decision only if the district court “relied upon
disability portions of the FHA. The district court granted a                clearly erroneous findings of fact, improperly applied the
preliminary injunction, adopting the government’s position                  governing law, or used an erroneous legal standard.”
that the front door was the “primary entrance” used by the                  Washington, 35 F.3d at 1098.
public and guests, and as such, it was a “public” or “common
area” that the FHA mandates be accessible. See 42 U.S.C.                       The preliminary injunction factors are: “(1) the likelihood
3604(f)(3)(C)(i). In reaching this conclusion, the court relied             that the party seeking the preliminary injunction will succeed
on the Housing and Urban Development (“HUD”)                                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
    1                                                                       injunction will cause substantial harm to others; and
      The architects of the buildings, Do rchen/M artin Associates,
Eckert/W ordell Architects, James Suale, and Gerald Peterson                (4) whether the public interest is advanced by the issuance of
(“architects”), were also name d as d efendants and have filed a brief.     the injunction.” Id. at 1099. These are factors to be balanced,
    2
                                                                            not prerequisites that must be met. Id. “[T]he district court's
       The use of the words “front” and “rear” here is to help paint the    weighing and balancing of the equities is overruled only in
picture of the building. Obviously, which door is the “front” is a matter   the rarest of cases.” In re Eagle-Picher, 963 F.2d at 858
of op inion. T here is no binding statutory or regulatory de finition.
                                                                            (internal quotation marks omitted). The purpose of a
    3                                                                       preliminary injunction is simply to preserve the status quo;
      The district court assumed the patio door accessibility for the
prelim inary injunction.
                                                                            thus, findings of fact and conclusions of law made by a
Nos. 03-1316/1418              United States v. Edward         5   6    United States v. Edward               Nos. 03-1316/1418
                                    Rose & Sons, et al.                 Rose & Sons, et al.

district court in granting a preliminary injunction are not              (III) reinforcements in bathroom walls to allow later
binding at a trial on the merits. University of Texas v.               installation of grab bars; and
Camenisch, 451 U.S. 390, 395 (1981).
                                                                         (IV) usable kitchens and bathrooms such that an
                     III. ANALYSIS                                     individual in a wheelchair can maneuver about the
                                                                       space.
           Likelihood of Success on the Merits
                                                                   42 U.S.C. § 3604(f)(3) (emphasis added).
  The basic question of this litigation is whether the space
outside the front door is a public or common use area that           The government asserts that because the landing at the
must be handicapped accessible. We are the first circuit to        bottom of the stairs is a “common area,” § 3604(f)(3)(C)(i)
consider the issue. The statute reads:                             mandates that the landing must be accessible. The landing in
                                                                   front of the entrances is not accessible because it can only be
  C) in connection with the design and construction of             reached by the stairs. The government argues that this
  covered multifamily dwellings for first occupancy after          entrance is the “primary” door because it is in the front and
  the date that is 30 months after September 13, 1988, a           closest to the parking lot. As such, it is the entrance most
  failure to design and construct those dwellings in such a        visitors will use, and thus the space or landing in front of the
  manner that--                                                    door is a public or common area. Additionally, the stair
                                                                   landing is shared by two entrances to two different apartment
     (i) the public use and common use portions of such            units, and thus a common area used by two tenants.
  dwellings are readily accessible to and usable by
  handicapped persons;                                               Rose correctly points out that neither the statute nor any
                                                                   possibly binding regulations make any reference or
    (ii) all the doors designed to allow passage into and          distinction between “primary,” “front,” or “back” doors.
  within all premises within such dwellings are sufficiently       Rose argues that the government’s interpretation requires
  wide to allow passage by handicapped persons in                  almost every entrance to a unit be accessible. If the space in
  wheelchairs; and                                                 front of an entrance becomes a common use area, simply
                                                                   because people use the entrance, then the statute would
     (iii) all premises within such dwellings contain the          require virtually every entrance to be accessible.
  following features of adaptive design:
                                                                     Rose asserts that if the space in front of virtually every
      (I) an accessible route into and through the                 entrance is a “common” or “public” area,
    dwelling;                                                      § 3604(f)(3)(C)(iii)(I) becomes superfluous.          Section
                                                                   3604(f)(3)(C)(iii)(I) mandates all premises must have “an
      (II) light switches, electrical outlets, thermostats,        accessible route into and through the dwelling.” (Emphasis
    and other environmental controls in accessible                 added.). Rose contends that the indefinite article “an”
    locations;                                                     indicates that the statute only requires one accessible route
                                                                   into each unit. As such, the space in front of every door to a
Nos. 03-1316/1418                  United States v. Edward           7    8      United States v. Edward                     Nos. 03-1316/1418
                                        Rose & Sons, et al.                      Rose & Sons, et al.

private unit cannot be a common area, or all doors would                     Our ruling is narrow; we simply hold in this case that
have to be accessible, and there would be no need for                     because the two apartments share the stair landing, the stair
§ 3604(f)(3)(C)(iii)(I) to separately mandate “an accessible              landing qualifies as a “common area” that must be accessible.
route” into the unit. Moreover, even if there were such a                 We express no opinion on what the FHA would require if the
thing as a single “primary” entrance, whose anterior space                stairs only led to one apartment unit entrance and decline to
must be accessible as a common area, there would still be no              delve into the parties’ “primary entrance” arguments because
need for § 3604(f)(3)(C)(iii)(I) to redundantly mandate “an               we find them unnecessary for the resolution of this case.
accessible route.” An accessible route would already be                   Assuming arguendo that, as Rose submits, not every entrance
mandated by the common area in front of the primary                       constitutes a “common area” because otherwise
entrance of every unit.                                                   § 3604(f)(3)(C)(iii)(I)’s mandate that all premises have “an
                                                                          accessible route” is superfluous, we still would find that the
  We find that, in this particular case, the stair landing in             shared landing is a common area.                     Section
front of the entrance is a common area that the statute                   § 3604(f)(3)(C)(iii)(I) would not be superfluous because that
mandates be accessible. The fact that two apartment units                 section would ensure that apartment units that share no
share the stair landing makes the space a common area. The                entrance with another apartment unit would still have “an
plain meaning of “common use” unambiguously covers the                    accessible” entrance.
entrance under dispute. At the time of the statute’s
enactment, dictionaries generally defined “common” as                        In sum, we find that the stair landing qualifies as a
belonging to or shared by two or more individuals. See The                “common area” that the FHA mandates be accessible. Thus,
Oxford English Dictionary 565 (J.A. Simpson & E.S.C.                      the government’s likelihood of success on the merits is
Weiner eds., Clarendon Press 2d ed. 1989) (defining common                strong.
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 &                       under the HUD regulations defining “common use area.” See generally
Wagnalls New International Dictionary (Publishers                         Chevron U.S.A. v. Natura l Resou rces D efense Co unc il, 467 U.S. 837
International Press Comprehensive ed. 1984) (“Pertaining to,              (1984) (finding regulatory interpretation of ambiguous statute controlling
connected with, or participated in by two or more persons or              if not contrary to the statute); Meyer v. Holley, 537 U.S. 280, 288 (2003)
things; joint.”). Here, the stair landing belongs to, and is              (Supreme Court using HUD regulations and comm entary in Federal
                                                                          Register in interpreting the FHA). T he regulation defines “com mon use
shared by, two apartments, and exists for their “common                   areas” as “rooms, spaces or elements inside or outside of a building that
use.”4                                                                    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
    4
                                                                          between buildings.” 24 C.F.R. § 100.201. In the instant case, the shared
      W hile our finding that the plain meaning of “common use”           landing is like a common “hallway” shared by the two apartments. Thus,
unam biguo usly covers the stair landing at issue, even if we found the   even if we found “comm on area” ambiguo us, Rose still would lose under
statute amb iguous, the space in front of the two entrances wo uld fall   the regulations.
Nos. 03-1316/1418                United States v. Edward         9    10   United States v. Edward              Nos. 03-1316/1418
                                      Rose & Sons, et al.                  Rose & Sons, et al.

        The Other Preliminary Injunction Factors                      criteria do not govern the issuance of preliminary
                                                                      injunctions.” Id. at 551. Like the FHA, the statute read that
  Besides the statutory interpretation, which deals with the          courts “may” grant preliminary injunctions “as may be
(1) “likelihood of success on the merits” factor, the other           necessary to prevent, restrain, or terminate” any violations of
injunction factors the court considers are (2) irreparable injury     the statute. Id. at 550.
to the party seeking the injunction, (3) substantial harm to
others, and (4) the public interest served by the grant of the           We need not decide whether CSX controls or whether a
injunction. We need not tarry because of the government’s             statute must mandate another showing that displaces the
overwhelming likelihood of success on the merits.                     traditional equitable factors because we find it immaterial to
                                                                      the disposition of this case. We balance the equitable factors,
                       Irreparable Injury                             and none is a prerequisite. Washington, 35 F.3d at 1099. The
                                                                      other equitable factors, particularly the strong likelihood of
  The district court presumed irreparable harm because the            success on the merits, outweigh any lack of irreparable harm,
FHA explicitly provides for injunctive relief. Rose argues            with or without any presumption.
this presumption is not the law of the Sixth Circuit. We find
any error by the district court of no consequence.                                    Substantial Harm to Others
   Under the FHA, the court “may award” a temporary                      Regarding the substantial harm to others factor, Rose
injunction “for a violation” of the statute “as is necessary to       asserts that it is sustaining massive monetary damage from
assure the full enjoyment of the rights granted.” 42 U.S.C.           the halt of construction and renting of the finished units,
§ 3614(d)(1)(A). Some circuits have ruled that when a                 amounting to $150,000 a month. The government responds
federal statute specifically provides for injunctive relief,          that it made Rose aware that these apartment designs violated
traditional equity principles do not apply, and a showing of          the FHA, so Rose proceeded at its own risk. This court, in
irreparable harm is not required. See, e.g., United States v.         Baker v. Adams County/Ohio Valley School Board, 310 F.3d
Diapulse, 457 F.2d 25, 27-28 (2d Cir.1972). Other circuits            927 (6th Cir. 2002), found “[m]ere injuries, however
find that the statute must have language specifically changing        substantial, in terms of money, time and energy necessarily
the traditional standards, such as language mandating that the        expended” in compliance with an injunction “are not
court “shall” enjoin the activity if an agency order is               enough.” Id. at 930 (citation omitted). “Indeed, especially
disobeyed. See, e.g., Illinois Bell Telephone v. Illinois             when a party knew of the risk that it undertook when it
Commerce Comm’n, 740 F.2d 566, 571 (7th Cir. 1984).                   undertook the enjoined activity, monetary losses from the
Under this second approach, if a statute confers a right to an        [sic] complying with the injunction will seldom be
injunction once a certain showing is made, the plaintiff need         irreparable.” Id. Thus, Rose voluntarily incurred any harm
show no more than the statute specifies. United States v.             from the preliminary injunction.
Microsoft Corp., 147 F.3d 935, 943 (D.C. Cir.1998). In CSX
Transportation v. Tennessee State Board of Equalization, 964                                 Public Interest
F.2d 548 (6th Cir. 1992), the court found that “since Congress
has expressly authorized the granting of injunctive relief to           Finally, on the public interest factor, the Supreme Court has
halt or prevent a violation of [the statute], traditional equitable   found the FHA serves an “overriding societal priority.”
Nos. 03-1316/1418             United States v. Edward     11
                                   Rose & Sons, et al.

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.
