Langlois v. Abington Housing Auth.

• Decision Date: 04 October 1999
• Docket Number: No. 99-1198,99-1198
• Citation: 207 F.3d 43
• Parties: (1st Cir. 2000) KELLEY LANGLOIS; YASMINE RIVERA; LISSETT FABIAN; ANNETTE STEWART, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARY SITUATED, and the THE MASSACHUSETTS COALITION FOR THE HOMELESS, Plaintiffs, Appellees, v. ABINGTON HOUSING AUTHORITY; AVON HOUSING AUTHORITY; BRIDGEWATER HOUSING AUTHORITY; HALIFAX HOUSING AUTHORITY; HOLBROOK HOUSING AUTHORITY; MIDDLEBOROUGH HOUSING AUTHORITY; PEMBROKE HOUSING AUTHORITY; ROCKLAND HOUSING AUTHORITY, Defendants, Appellants. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 43

207 F.3d 43 (1st Cir. 2000)

KELLEY LANGLOIS; YASMINE RIVERA; LISSETT FABIAN; ANNETTE STEWART, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARY SITUATED, and the THE MASSACHUSETTS COALITION FOR THE HOMELESS, Plaintiffs, Appellees, v. ABINGTON HOUSING AUTHORITY; AVON HOUSING AUTHORITY; BRIDGEWATER HOUSING AUTHORITY; HALIFAX HOUSING AUTHORITY; HOLBROOK HOUSING AUTHORITY; MIDDLEBOROUGH HOUSING AUTHORITY; PEMBROKE HOUSING AUTHORITY; ROCKLAND HOUSING AUTHORITY, Defendants, Appellants.

No. 99-1198

United States Court of Appeals for the First Circuit

Heard October 4, 1999

Decided March 27, 2000

[Copyrighted Material Omitted] Michael J. Traft, with whom Carney & Bassil, Timothy H. White, and White & White, P.C. were on brief for appellants.

Amy Copperman, with whom Judith Liben, Massachusetts Law Reform Institute, James McGlynn, and Southeastern Massachusetts Legal Services, Inc. were on brief for appellees.

Michael L. Hanley and Greater Upstate Law Project, Inc. on brief for N.A.A.C.P., Brockton Area Branch, amicus curiae.

Before Boudin, Circuit Judge, Bownes, Senior Circuit Judge, and Stahl, Circuit Judge.

BOUDIN, Circuit Judge.

This appeal, from a preliminary injunction granted by the district court, concerns the so-called section 8 program for rental assistance. It is a federally funded and supervised rent subsidy program for low-income tenants, but it is administered primarily through local units called public housing authorities or "PHAs." See 42 U.S.C.A. § 1437f (West Supp. 1999). The program was created by a 1974 amendment to the Housing Act of 1937, Housing and Community Development Act of 1974, Pub. L. No. 93-383, Title II, § 201(a), 88 Stat. 633, 662-66, and has been revised since then, importantly in 1998 by the Quality Housing and Work Responsibility Act of 1998, Pub. L. No. 105-276, Title V, § 545, 112 Stat. 2518, 2596-604.

A main form of assistance is the certificate or voucher (the latter is the current term),¹ which the PHA may issue to certain low-income families, 42 U.S.C.A. § 1437f(o)(4) (West Supp. 1999)--defined as families earning at or below 80 percent of the median income in the area, id. § 1437a(b)(2). The voucher program requires the PHA to pay to the family's landlord the difference between the gross rent or a "payment standard" adopted by the PHA, and a lesser amount paid by the family. See id. § 1437f(o)(2); 24 C.F.R. §§ 982.503, 982.505 (1999). PHAs normally do not have enough funds to subsidize all of the families that meet the financial requirements for assistance. As a result, the common practice is for each PHA to maintain a waiting list for applicants who will receive vouchers if and when existing vouchers are surrendered or appropriations increase. See 24 C.F.R. §§ 982.204, 982.205 (1999).

The vouchers are awarded by local PHAs, but applicants need not be local residents when they apply, id. § 982.202(b)(1), and they can apply for vouchers from any of the many PHAs in the state (Massachusetts has about 130 local PHAs that administer approximately 40,000 vouchers). Apparently, the PHA may insist that the voucher be used for local rental at the outset, (it is not clear whether the PHAs here so insisted), but a portability provision permits the user to move after twelve months while retaining the subsidy to any area in which a section 8 program is administered. 42 U.S.C.A. § 1437f(r) (West Supp. 1999); 24 C.F.R. § 982.353 (1999). There is thus ample incentive for persons to apply to one or more (sometimes many more) PHAs outside communities where they live or work.

In 1998, eight suburban PHAs in Eastern Massachusetts--later named as defendants in this case--determined that their present waiting lists would soon be exhausted and that it would be less expensive to obtain new applicants by a joint advertising program. The PHAs, which are generally coextensive with a local town or city, are located in the towns of Abington, Avon, Bridgewater, Halifax, Holbrook, Middleborough, Pembroke, and Rockland. The PHAs all proposed to hold new, separately conducted lotteries for additional applicants on December 1, 1998. Further, each PHA proposed to give preference to local residents so that "local residents" (defined as those currently living or working in the PHA) would be listed ahead of those applicants currently residing outside the PHA in question. Local preferences in the awarding of section 8 vouchers are explicitly permitted by the governing statute, as amended in 1998, see 42 U.S.C.A. § 1437f(o)(6) (West Supp. 1999), although with what qualifications remains to be considered.

One qualification on the ranking of applicants by lottery is the so-called 75 percent rule. This is a requirement adopted in 1998 that, save in specified circumstances not relevant here, 75 percent of the families "initially provided tenant-based assistance under section 1437f . . . by a public housing agency in any fiscal year" must be families whose income is at or below 30 percent of the area median income, 42 U.S.C.A. § 1437n(b)(1) (West Supp. 1999), also referred to as "extremely low income families" in HUD's regulations, 24 C.F.R. § 982.201(b)(2) (1999); id. § 903.7(a)(1)(i). This is an income level well below the 80 percent ceiling needed to qualify for the vouchers.

In the public notice given in October 1998, the PHAs stated that applications could be requested, in person or by phone, during prescribed hours (9:30 a.m. to 2:30 p.m.) on October 29 and 30, 1998, for each PHA at a designated office in the respective communities. Applications were required to be returned by hand or postmarked no later than noon on November 17, 1998. The notice said that a separate lottery would be held at each of the eight offices on December 1, 1998, at 1 p.m.

On November 16, 1998, the plaintiffs filed the present action in the federal district court. The four individual plaintiffs are four women, three Hispanic and one African American, who have very low incomes and do not reside or work in any of the eight PHAs named as defendants. A fifth named plaintiff is the Massachusetts Coalition for the Homeless which, according to the complaint, numbers among its members homeless and poor individuals in search of housing, many of whom are African-American or Hispanic. The complaint, framed as a class action, sought injunctive relief against the PHAs on four separate fronts.

Pertinently, the complaint charged that the use of the local residency preference in connection with the lottery violated the Equal Protection Clause of the 14th Amendment and various civil rights statutes and regulations; and it also charged that the defendants were threatening to violate the statutory requirement that 75 percent of the vouchers be reserved for extremely low income families. Two other claims made in the complaint (a procedural due process claim and a state law claim) have not been pressed on this appeal, so we do not discuss them further.

On November 30, 1998, the district court held a hearing and issued a temporary restraining order, permitting the lotteries to proceed as scheduled but precluding the ranking of the waiting lists based on the residency preferences and the distribution of vouchers based on such re-ordered lists until the court ruled on the preliminary injunction request. The lotteries took place the next day, December 1, 1998. Thereafter, the parties as directed by the district court submitted analyses of both the pre-existing and the new lottery-determined lists. The calculations included predictions about the effect of the local residency preference on the racial and income make-up of the new lists.

On December 30, 1998, the district court entered a preliminary injunction and a memorandum opinion with supporting reasoning. The district court found that use of the residency preferences created a likelihood that some of the defendant PHAs would violate the 75 percent rule and that others would violate an anti-discrimination provision of the Fair Housing Act, 42 U.S.C. § 3604(a) (1994).² It based these judgments on analyses of who the voucher recipients in each PHA would probably be (including their poverty levels and racial make-up) if the residency preferences were or were not used.

Based on these analyses, the court enjoined the Abington and Rockland PHAs from distributing vouchers based on the new lists using the residency preference until they presented, and the court approved, a specific plan to assure compliance with the 75 percent rule. The Avon, Holbrook, and Middleborough PHAs were enjoined from distributing vouchers based on the new lists using the residency preferences because of the disparate racial impact of the local-resident preferences. The court did not enjoin the use of the old soon-to-be exhausted lists, and the other three PHAs were not enjoined because they were not yet ready to use their new lists; but the court did order them to give notice to the court before using the new lists.

The district court's injunction was preliminary and the court ordered a scheduling conference in February 1999 looking toward discovery and further proceedings. The defendant PHAs have appealed from the preliminary injunction. 28 U.S.C. § 1292(a)(1) (1994). In this court, the plaintiffs are supported by the NAACP, Brockton Area Branch as amicus curiae. For reasons now to be explained, we affirm the preliminary injunction so far as it is addressed to the 75 percent rule, remand for further proceedings concerning the disparate impact issue, and in the latter instance permit the district court to maintain its ban on the use of the local residency preferences for a limited time pending further proceedings.

The criteria for the grant of a preliminary injunction are the familiar four: likelihood of success, risk of irreparable harm, the balance of equities and the public interest. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 15 (1st Cir. 1996). Although it is sometimes said that a...