Project B.A.S.I.C. v. O'Rourke

Citation907 F.2d 1242
Decision Date09 May 1990
Docket Number89-2171,Nos. 89-2114,s. 89-2114
PartiesPROJECT B.A.S.I.C., Plaintiff, Appellee, v. Stephen J. O'ROURKE, et al., Defendants, Appellants. PROJECT B.A.S.I.C., Plaintiff, Appellee, v. Jack KEMP, et al., Defendants, Appellants. . Heard
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Stephen J. Reid, with whom Karen A. Pelczarski and Blish & Cavanagh, were on brief for Stephen J. O'Rourke and The Housing Authority of the City of Providence.

John P. Schnitker, with whom Stuart M. Gerson, Asst. Atty. Gen., Lincoln C. Almond, U.S. Atty., and Michael Jay Singer, Atty., Appellate Staff, U.S. Dept. of Justice, Gershon M. Ratner, Associate Gen. Counsel for Litigation, Howard M. Schmeltzer, Asst. Gen. Counsel for Litigation, and Joseph W. Lobue, Trial Atty., U.S. Dept. of Housing and Urban Development, were on brief for federal appellants.

Deval L. Patrick, with whom Timothy J. Dacey, Stephanie S. Lovell, Gail A. Goolkasian, Hill & Barlow, Steven Fischback, Rhode Island Legal Services, Barbara R. Arnwine and Paul Holtzman, Lawyers Committee for Civ. Rights Under Law, and Helen Hershkoff, American Civ. Liberties Union Foundation, were on brief for Project B.A.S.I.C.

Jane M. Smith, Carleton K. Montgomery, Fried, Frank, Harris, Shriver & Jacobson, Everald Thompson, NAACP Sp. Contribution Fund, Claire Gonzales, Nat. Council of La Raza, Nat. Low Income Housing Coalition, and Arthur A. Baer, Puerto Rican Legal Defense & Educ. Fund, Inc., amici curiae.

Before BREYER, Chief Judge, and BOWNES, Senior Circuit Judge, and TORRUELLA, Circuit Judge.

BREYER, Chief Judge.

In April 1989, Project B.A.S.I.C. ("BASIC"), a Rhode Island tenant-advocacy organization, asked the federal district court to issue a preliminary injunction forbidding the Providence Housing Authority (and the federal Department of Housing and Urban Development) from demolishing several high-rise towers at the Hartford Park housing project in Providence. BASIC claimed that the proposed demolition violated several federal statutes, including 42 U.S.C. Sec. 1437p, which says that HUD must approve all such demolitions and prohibits HUD from giving its approval unless certain conditions are met. The district court denied BASIC's request for an injunction. We affirmed that denial on appeal. See Project B.A.S.I.C. v. Kemp, 721 F.Supp. 1501 (D.R.I.1989), aff'd mem., No. 89-1910 (1st Cir. Oct. 5, 1989), on denial of reh'g, No. 89-1910 (1st Cir. Oct. 12, 1989). Since then, PHA has demolished the towers.

In the same opinion in which it denied BASIC's request, the district court ordered PHA to,

proceed as soon as possible to begin construction of the 240 public housing units, funded by HUD, needed to replace the 240 units lost due to the past and planned demolition of the high-rises.... [and] to complete construction of all 240 units of replacement housing within 23 months of the date of this Opinion [i.e., by June 17, 1991].

721 F.Supp. at 1515. PHA and HUD now appeal from this "time schedule" injunctive order. We agree with PHA and HUD that the particular reason given by the district court for its injunctive order does not provide that order with adequate legal support. Nonetheless, the court may have had other adequate legal grounds for issuing the order. We therefore remand for further consideration by the district court.

I

Preliminary Matters

BASIC raises several procedural or jurisdictional objections to PHA's (and HUD's) appeal from what amounts to a preliminary injunction. See 28 U.S.C. Sec. 1292(a)(1) (authorizing interlocutory appeals from district court orders granting injunctions). First, it suggests that our earlier decision in this case somehow forecloses this appeal. That earlier decision, however, concerned BASIC's appeal from the district court's denial of its request for injunctive relief. This appeal concerns the district court's granting of a "time schedule" order. The legal questions we decided then do not dispose of the cross-appeal before us now.

Second, BASIC says that appellants may not now argue that the "time schedule" order is unlawful because they failed to raise this issue in the district court. Appellants did not do so, however, because the district court entered that order sua sponte, at the same time that it denied BASIC's request for an injunction. The appellants might have sought a rehearing before appealing, but the law did not require them to do so.

Third, BASIC suggests that appellants expressly waived any objection to the "time schedule" order in a brief submitted to the district court. They point out that, although the appellants did not ask for rehearing after the district court issued its memorandum and order, BASIC did ask for a rehearing; and, when appellants opposed BASIC's rehearing request, they not only failed to complain about the "time schedule" order, but also said they would comply with that order. To be specific, PHA, in its opposition to BASIC's motion for reconsideration, stated that,

the [district] Court has ordered the replacement housing to be constructed within twenty-three (23) months, which PHA fully intends to do.

(Emphasis added.) This statement, however, was merely a single, isolated sentence appearing in an opposition brief that made no reference whatsoever to the possibility of appellate review. Consequently, we cannot treat it as a waiver of the PHA's right to appeal.

Fourth, BASIC says that HUD lacks standing to appeal the order, for the order tells PHA, not HUD, what to do. Regardless, PHA has standing, and it also appeals. Hence, we need not consider whether HUD has standing as well. See Carey v. Population Services Int'l, 431 U.S. 678, 682, 97 S.Ct. 2010, 2014, 52 L.Ed.2d 675 (1977); Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264 n. 9, 97 S.Ct. 555, 562 n. 9, 50 L.Ed.2d 450 (1977).

II

Legal bases for the district court's order

A. The amended version of 42 U.S.C. Sec. 1437p

The appellants argue that the district court's "time schedule" order rests upon a legal mistake. The district court based its order upon language in the Housing and Community Development Act of 1987, Pub.L. No. 100-242, Sec. 121, 101 Stat. 1815, 1837-39, which amended the "HUD demolition permission" statute, 42 U.S.C. Sec. 1437p. This amendment took effect in 1988 on the day after HUD approved the PHA's request to demolish the project's towers. (We shall refer to it as the "1988 amendment.")

Before the basic statute was amended, it prohibited HUD from granting a demolition request unless (among other things) the local housing agency undertaking demolition had consulted with affected tenants and made provision for relocating them to new housing. See 42 U.S.C. Sec. 1437p(b)(1, 2). As amended, the statute imposes the additional condition that the public housing agency must have "developed a plan" for replacing the demolished housing. See 42 U.S.C. Sec. 1437p(b)(3). The plan must include, for example,

a schedule for completing the plan within a period consistent with the size of the proposed demolition ..., except that the schedule shall in no event exceed 6 years.

42 U.S.C. Sec. 1437p(b)(3)(D).

The district court recognized that the amendment's requirement of a housing replacement plan (and related schedule) did not apply to HUD's approval of the demolition project, for HUD approved the PHA's demolition request before the 1988 amendment's effective date. The district court believed, however, that the amendment's requirement did apply to PHA's demolition activities, because these activities were scheduled to take place after the amendment's effective date. Indeed, PHA, when it applied for demolition approval in January 1988, had submitted a 23-month replacement-housing schedule (with completion scheduled for December 1989). The court noted that PHA had fallen behind that schedule. It concluded that the statutory language quoted above authorized it to order PHA to comply at least with a more generous revised schedule requiring completion by June 1991.

We previously held that the 1988 amendment does not apply to a "HUD approval" given before the amendment took effect. See Project B.A.S.I.C. v. Kemp, No. 89-1910 (1st Cir. Oct. 5, 1989) (mem.), aff'g 721 F.Supp. 1501 (D.R.I.1989). We now conclude, similarly, that the amendment does not apply to the post-amendment activities (of the sort at issue here) of a public housing authority that requested and received HUD's approval before the amendment took effect. Our reasons are as follows.

First, the literal language of the amended statute, although ambiguous, somewhat favors the view that the amendment does not apply to demolitions that HUD approved before the amendment's effective date, even if the approved demolition actually takes place subsequently. The statute, as we explained earlier, enumerates conditions that must be met before HUD may approve a request to demolish public housing. See 42 U.S.C. Secs. 1437p(a, b). The 1988 amendment added a number of new conditions, which appear in Sec. 1437p(b)(3). (For ease of reference, the entire statute is set out in an appendix to this opinion.)

Section 1437p(b), as amended, consists of one long sentence. It says, in condensed form,

The Secretary may not approve an application [for demolition] ... unless ... the application from the public housing agency [ (1) has been developed in consultation with tenants, (2) provides for tenant relocation, and unless] (3) the public housing agency has developed a plan for the provision of ... additional ... public housing ..., which plan [satisfies a host of specific detailed conditions, including scheduling conditions].

42 U.S.C. Sec. 1437p(b) (emphasis added). This long sentence refers to, and limits, the authority of "the Secretary" (the Secretary of Housing and Urban Development, see 42 U.S.C. Sec. 1437a(8)). It explains which demolition applications "the Secretary" may or may not approve. It speaks of a housing-replacement...

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