Durrett v. Housing Authority of City of Providence, 89-1608

• Citation: 896 F.2d 600
• Decision Date: 05 December 1989
• Docket Number: No. 89-1608,89-1608
• Parties: Ruth DURRETT, et al., Plaintiffs, Appellants, v. HOUSING AUTHORITY OF the CITY OF PROVIDENCE, et al., Defendants, Appellees. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 600

896 F.2d 600

Ruth DURRETT, et al., Plaintiffs, Appellants, v. HOUSING AUTHORITY OF the CITY OF PROVIDENCE, et al Defendants, Appellees.

No. 89-1608.

United States Court of Appeals First Circuit.

Heard Dec. 5, 1989.

Decided Feb. 14, 1990.

John W. Dineen, Providence, R.I., for appellants.

Stephen J. Reid, Jr. and Blish & Cavanagh, Providence, R.I., on brief for the Housing Authority of the City of Providence, appellee.

Edward B. Foley, David W. Ogden, Jenner & Block, Washington, D.C., Barbara R. Arnwine, Paul Holtzman, Lawyers' Committee for Civ. Rights Under Law, John A. Powell, American Civ. Liberties Union Found., Herbert H. Henderson, Huntington, W.Va., Everald Thompson, NAACP Sp. Contribution Fund on brief for Lawyers' Committee for Civ. Rights Under Law American Civ. Liberties Union Found., Nat. Ass'n for the Advancement of Colored People, Nat. Council of La Raza, Civ. Liberties Union of Massachusetts, and Rhode Island Civ. Liberties Union, amicus curiae.

Before CAMPBELL, Chief Judge, COFFIN, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

COFFIN, Senior Circuit Judge.

This case began as a complex class action brought under 42 U.S.C. Sec. 1983 and the Fair Housing Act of 1968, 42 U.S.C. Sec. 3604(b), by tenants in two public housing projects against various municipal and national entities, seeking relief from a wide variety of allegedly substandard conditions. After much bitterness, including a lengthy rent strike, and much negotiation, the parties crafted a comprehensive settlement agreement that satisfied all concerned, specifically the plaintiff tenants and their landlord, the Providence Housing Authority. The district judge, however, refused to approve the agreement. The questions before us are whether we have appellate jurisdiction to review the denial of an order enforcing the settlement and, if so, whether the court below committed reversible error. We answer both questions in the affirmative. ¹

Background

This controversy arose out of the complaints of tenants of the Hartford Park and Manton Heights housing developments concerning substandard conditions at the two developments, which offered public housing to largely minority occupants. Perhaps prophetically, it began in frustration with complaints lodged with the Providence Human Relations Commission (Commission) against the City of Providence (City) and the Providence Housing Authority (Authority), and also with efforts to process housing code enforcement requests under the City's administrative procedures. Neither effort resulted in any relief. In yet a third attempt, the named plaintiffs intervened in an action brought before the Housing Court Division of the state District Court by the City against the Authority, naming the United States Department of Housing and Urban Development (HUD) as a defendant. HUD removed the case to federal court, which remanded to the Housing Court. The latter court then advised plaintiffs to pursue their federal claims in federal court. The plaintiffs accordingly dismissed their claims without prejudice and commenced the instant action in July of 1986, almost two years after lodging the initial complaints. The complaint, after amendment, consisted of three counts. The first, aimed at the Commission and the City, essentially raised an equal protection claim that the discrimination complaints of plaintiffs did not receive the orderly processing given others. The second count, aimed at the City and the Authority, alleged failure to enforce housing code provisions, violating both substantive and procedural due process. It also claimed violation of the Fair Housing Act of 1968 by denying plaintiffs' rights to decent, safe, and sanitary housing. Count III, aimed at HUD, alleged that plaintiffs had been deprived of their rights to decent, safe, and sanitary housing, free from discrimination. The relief requested included injunctions (a) requiring the City to give full code enforcement protection to a class of all tenants of the two developments, (b) requiring the Authority to live up to city and state minimum standards, and (c) requiring HUD to conform to federal minimum standards and to establish and carry out a modernization and maintenance plan.

The ensuing period of almost two and one half-years was notable for a rent strike accompanied by an arrangement for receiving and holding rental payments in escrow. Considerable discovery and negotiation also took place. On November 17, 1988 a detailed Settlement Stipulation and Consent Decree agreement between plaintiffs and the Authority was presented to the court. It contained 50 numbered paragraphs in 29 pages. The scope and tenor of the agreement can be appreciated from the catalogue of principal subjects covered, which we record in the margin. ² As requested, the court deemed the proposed consent decree reasonable and called for a motion for approval and submission of a form of notice. Three months later, on March 22, 1989, the court granted its preliminary approval and ordered notice to issue.

At the noticed hearing on May 23, 1989, however, the court refused its approval, which would have given the agreement the status of a judgment. It gave two reasons. The first was that "the settlement stipulation is far more comprehensive than any relief that the Plaintiffs could secure if this matter was heard on the merits." Noting the range of matters indicated in our footnote 1, the court concluded that they were not involved in the litigation, because, in its view, this was only a Sec. 1983 suit and "the only relief that I can see being granted ... is some sort of an order that these tenants ... be treated like any other tenants" by being allowed to pay rent into an escrow account while charges of housing violations would be heard by the Housing Court.

The court's second reason was its fear that it would become "a super-superintendent of these two housing projects," being called upon frequently to rule on petty, non-federal matters, such as inadequately functioning toilets. The court set the matter for trial but later, on July 18, 1989, recused itself. This appeal followed.

Appealability

After having raised the issue of the appealability of a denial of a proposed consent decree, we are satisfied that we do have appellate jurisdiction. Although prior to 1981 there was a split of opinion among the circuits, Carson v. American Brands, Inc., 450 U.S. 79, 101 S.Ct. 993, 67 L.Ed.2d 59 (1981), made it clear that an interlocutory order denying a motion to enter a consent decree providing injunctive relief may be appealable under 28 U.S.C. Sec. 1292(a)(1) as an order refusing an injunction.

The threshold condition is that the proposed consent decree, either in its express terms or in its practical effect, "refuses" an injunction. Id. at 83, 101 S.Ct. at 996. That condition is clearly fulfilled in this case, for "prospective relief was at the very core of the disapproved settlement." Id. at 84, 101 S.Ct. at 996. There is, however, an additional critical precondition to interlocutory appealability: a showing of "serious, perhaps irreparable, consequence." Id. The Court found two such consequences in Carson: the lost opportunity to settle the case on the negotiated terms and the likelihood of irreparable injury from further delay. In the present case plaintiffs, and defendants also, are obviously in danger of suffering loss of "their right to compromise their dispute on mutually agreeable terms." Id. at 88, 101 S.Ct. at 998. Moreover, although the complaint does not in so many words allege the possibility of suffering irreparable injury from further delay, such a consequence seems implicit in the multiple allegations of substandard housing combined with the persistence of such conditions for the four-year period between the lodging of complaints with the Commission and the denial of approval of the consent decree. ³

Discussion of the Merits

We approach the merits--the question whether the district court committed reversible error in refusing to approve the proposed consent decree--with two general considerations in mind. The first is the applicable standard of review. The ordinary approach of appellate courts in reviewing the appropriateness of settlement approvals has been to refrain from intervening unless there is found to be an abuse of discretion by the trial court. State of West Virginia v. Chas. Pfizer & Co., 440 F.2d 1079, 1085 (2d Cir.1971). Apparently relying solely upon Pfizer, the Seventh Circuit, in United Founders Life Ins. Co. v. Consumers Nat'l Life Ins. Co., 447 F.2d 647, 655 (7th Cir.1971), stated that the abuse of discretion standard applied "in reviewing the appropriateness of the settlement approval or disapproval." (Emphasis supplied.)

Subsequently, the Eighth Circuit, in In re International House of Pancakes Franchise Litigation, 487 F.2d 303, 304 (8th Cir.1973), relying on the above cited cases, applied the abuse of discretion standard in affirming a district court's refusal to approve a proposed settlement. In 1980 this case was identified by the Fifth Circuit as the only one in which a court of appeals had extended the abuse of discretion standard to apply to a review of a refusal to approve a settlement. United States v. City of Alexandria, 614 F.2d 1358, 1361 (5th Cir.1980). The Alexandria court refused to follow the Eighth Circuit and opted for a de novo review of a refusal to enforce a consent decree. Id. at 1362. Although the court's expressed concern was the possibility that district courts might otherwise have "unchallengeable unilateral power to slow [the] pace" of affirmative action in employment discrimination cases, id., its de novo standard apparently was applicable generally to reviews of refusals to enforce proposed consent decrees. Plaintiffs in the case at bar urge us to follow Alexandria.

Alexandria, however, in a case which escaped plaintiffs' notice, has subsequently been rather narrowly confined to...