Walker v. US Dept. of Housing & Urban Dev.

• Decision Date: 22 September 1989
• Docket Number: Civ. A. No. 3-85-1210-R.
• Parties: Debra WALKER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.
• Court: U.S. District Court — Northern District of Texas

734 F. Supp. 1231

Debra WALKER, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.

Civ. A. No. 3-85-1210-R.

United States District Court, N.D. Texas, Dallas Division.

August 4, 1989.

Revised September 22, 1989.

Michael M. Daniel, Elizabeth K. Julian, and Kenneth L. Schorr, North Central Texas Legal Services, Inc., Dallas, Tex., for plaintiffs.

Arthur Goldberg, Leslie K. Shedlin, Thomas H. Peebles, Jonathan Strong, Dept. of Justice, Civ. Div., Washington, D.C., Joseph G. Werner, Haynes & Boone, Marvin Collins, U.S. Atty., and Donald W. Hicks, Hill, Hicks & Collins, Dallas, Tex., for defendants.

MEMORANDUM OPINION — WALKER I: DHA VIOLATIONS OF THE CONSENT DECREE AND APPOINTMENT OF A SPECIAL MASTER

BUCHMEYER, District Judge.

This class action involves racial discrimination in low-income public housing in the City of Dallas and its suburbs. The parties are the plaintiff class ("plaintiffs"),¹ the Dallas Housing Authority ("DHA"), and the United States Department of Housing and Urban Development ("HUD").

This opinion² holds that DHA has violated the Consent Decree³ approved in this matter on January 20, 1987 by:

(1) its delay in putting a new, non-discriminatory Tenant Assignment & Selection Plan into effect;

(2) its failure to provide the tenant mobility services required by the Decree;

(3) its actions concerning the 120% Fair Market Rent Exception for the use of § 8 certificates and vouchers in non-impacted areas of Dallas and its suburbs;

(4) its failure to meet the Decree's first year goal for the use of § 8 assistance in non-impacted areas, and its refusal to use a substantial number of § 8 certificates and vouchers allocated by HUD to DHA;

(5) its failure to request code enforcement from the City of Dallas on housing that failed Housing Quality Standards ("HQS"); and

(6) its failure to meet the Decree's deadlines for the site selection, construction, and initial occupancy of the 100 units of new low income public housing.

In addition — because DHA's violations of the Consent Decree have been repeated and pervasive — this opinion holds that a special master will be appointed to assist the Court by monitoring the performance of all parties under the Decree.⁴

I. Procedural History

This suit was filed on June 25, 1985. At that time, suburbs of the City of Dallas were refusing to participate in DHA's § 8 assistance program; this prevented persons in need of low-income housing from using § 8 certificates or vouchers to move outside of minority areas in Dallas into non-impacted areas in the suburbs.⁵

After a number of suburb cities were dismissed from the suit when they agreed to participate in the § 8 program,⁶ and after the filing of an amended complaint and class certification motion, the remaining parties were the plaintiffs, DHA and HUD. Then, after extended and often-heated negotiations,⁷ on November 6, 1986, the plaintiffs filed an agreed motion for approval of a Consent Decree.⁸

On December 12, 1986 — after proper notice had been given to members of the putative class⁹ — a fairness hearing was held on the proposed settlement. Evidence was presented in support of the Consent Decree, and this Court heard objections — both oral and written — from those who opposed only one part of the Decree.¹⁰ On January 9, 1987, this Court announced its approval of the Consent Decree in open court; then, after certain changes were made in the Decree as the result of the January 9 ruling, the Consent Decree was approved and entered on January 20, 1987.¹¹

On February 9, 1987 — just 20 days after the approval of the Consent Decree — the plaintiffs filed a motion charging DHA with violating the Decree because of its plan to stop the assignment of any more tenants to the West Dallas project. This matter was not resolved because, at an in-chambers conference, the Court suggested that the motion was premature.

Then, on July 1, 1987, the plaintiffs filed their Motion to Modify and Enforce The Consent Decree — which charged the DHA with a "massive failure to comply with the numerous remedial provisions of the Decree" and the failure to commit the resources necessary to implement the Decree.¹² And, on September 10, 1987, the plaintiffs filed a Supplemental Motion to Enforce Decree, which asked this Court to require DHA to select a site for the 100 units of new Low Rent Public Housing ("LRPH") — which, under the Decree, should have been done by April 20, 1987.

On September 18, 1987, there was a hearing on the September 10 "site selection" motion. At that time, the Court ordered DHA to select the "Country Creek" site for the 100 new units of low-income housing — and ruled that DHA had violated the Decree by failing to meet the deadline for site selection. (Decree Plan III, 10).

Next, the plaintiffs and DHA reached agreement to resolve many of the problems raised by the plaintiffs' July 1 motion. However, HUD raised certain objections, and DHA refused to implement the agreed changes. Accordingly, on December 21, 1987, a hearing was held on the July 1, 1987 motion and on HUD's objections to the stipulations between the plaintiffs and DHA. HUD's objections were overruled and DHA's refusal to assign tenants to West Dallas was held to be a violation of the Consent Decree. However, some major issues presented by the plaintiffs' July 1, 1987 motion were left unresolved.¹³

On February 8, 1988 — just one year after approval of the Consent Decree — the plaintiffs filed their third motion to compel DHA's compliance with the Consent Decree ("Motion to Modify and Enforce Consent Decree"). A hearing was held on this motion and the matters remaining under the plaintiffs' July 1, 1987 motion — as well as a DHA "Motion to Compel HUD Approval of 100-Unit LRPH Project" — on March 25 and 28, 1988. At that hearing, the Court ordered HUD to approve DHA's proposal for the 100 new units at Country Creek.

Then, next, on August 2, 1988, the plaintiffs filed a "Motion to Restore Deprogramed Units" — and on the same day DHA filed its "Motion to Enforce Consent Decree." Both motions charged HUD with violating the Consent Decree by refusing to continue payments to DHA for the units which were vacant at the West Dallas project. A hearing was held on this motion on November 1, 1988. At this time, the Court ordered HUD to resume full funding for the vacant units at West Dallas.

The last hearing held in this matter was on December 12 and 14, 1988. It dealt primarily with the plaintiffs' motion to modify the Consent Decree by joining the City of Dallas,¹⁴ and with several motions concerning the effect of the Frost Amendment and the "Anti-Demolition Statute" on the Decree.¹⁵ However, it also concerned the unresolved matters raised by the plaintiffs' motions of July 1, 1987 and February 8, 1988 — which charge DHA with violations of the Consent Decree and which seek the appointment of a Special Master. These unresolved matters are the subject of this opinion (Walker I).

II. DHA Violations of the Consent Decree

DHA has, in fact, repeatedly violated the provisions of the Consent Decree. As summarized above, these violations required three separate motions by the plaintiffs and four separate hearings during the first two years of the Decree. The DHA violations will be discussed in the order listed in the introduction of this opinion.¹⁶

1. Tenant Selection & Assignment

The Consent Decree provided that, within thirty (30) days of the date of the Decree (Jan. 20, 1987), DHA was to adopt and implement a "one offer, one refusal tenant selection and assignment plan" that:

"... will include a single waiting list from which applicants will be chosen to fill vacancies at any of DHA's LRPH projects, § 8 New Construction and § 8 Substantial Rehabilitation projects. The TS & A plan will include procedures for effective monitoring of DHA staff compliance with the TS & A procedures...." (Decree Plan III 7, 13)

This simple — but very important¹⁷ — task was not completed by February 20, 1987. Instead, because DHA had done little, if any, work on the preparation of this plan before approval of the Consent Decree,¹⁸ the initial plan was not even presented to HUD until April 17, 1987. However, this two-month late plan was defective and actually it violated the Decree in several ways:

(i) it did not provide the internal monitoring of DHA staff compliance (Decree Plan III, 13);

(ii) it did not provide that those refusing offers had to go to the bottom of the waiting list, as required by the Decree (Decree Plan III, 7); and

(iii) it used an erroneous method to determine if DHA projects were impacted or non-impacted.¹⁹

The plaintiffs objected to this initial Tenant Selection & Assignment plan in their July 1, 1987 Motion to Enforce Consent Decree. The dispute was eventually settled, and a satisfactory plan was implemented — but well beyond the February 20, 1987 deadline.²⁰

2. Housing Mobility Requirements

The Consent Decree required DHA to establish a new Housing Mobility Division to be responsible for a wide range of functions²¹ aimed at providing desegregated § 8 housing opportunities for class members throughout Dallas and its suburbs:

"A new Housing Mobility Division will be established for the purposes previously described. The division will be headed by a staff person at the Assistant Director level, with a minimum of five other staff persons (one real estate outreach person, three counselors and one clerical person)....

"All current and future participants in the Section 8 existing and voucher program will be notified of DHA's Housing Mobility Unit and the availability of counseling and referral services to assist any certificate or voucher holder who wishes to locate alternative housing in areas where his or her race does not predominate...." (Decree Plan, Summary 2, III 5 and 3).

DHA violated these Housing Mobility Requirements in several distinct ways: its delay in establishing the Mobility Division; its...