Brown v. Philadelphia Housing Authority

• Decision Date: 19 November 2003
• Docket Number: No. 03-1061.,03-1061.
• Citation: 350 F.3d 338
• Parties: Ernest and Eunice BROWN; and their child, Earnest Lamar; Roberta Doyle, and her children; Sandra-Dennis; Joanne; Jimmy; and Myra, on behalf of themselves and all others similarly situated v. PHILADELPHIA HOUSING AUTHORITY; Gilbert Stein, sued individually and in his official capacity as Executive Director, Philadelphia Housing Authority; William L. Rafsky, sued individually and in his official capacity as Acting Chairman, Board of Directors, Philadelphia Housing Authority; Mitchell Smith, Jr., sued individually and in his official capacity as Housing Manager, Richard Allen Homes; Kenneth Blackmun, sued individually and in his official capacity as Assistant Housing Manager, Richard Allen Homes; Edward A. Green, sued individually and in his official capacity as Landlord and Tenant Officer. Philadelphia Housing Authority, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

350 F.3d 338

Ernest and Eunice BROWN; and their child, Earnest Lamar; Roberta Doyle, and her children; Sandra-Dennis; Joanne; Jimmy; and Myra, on behalf of themselves and all others similarly situated v. PHILADELPHIA HOUSING AUTHORITY; Gilbert Stein, sued individually and in his official capacity as Executive Director, Philadelphia Housing Authority; William L. Rafsky, sued individually and in his official capacity as Acting Chairman, Board of Directors, Philadelphia Housing Authority; Mitchell Smith, Jr., sued individually and in his official capacity as Housing Manager, Richard Allen Homes; Kenneth Blackmun, sued individually and in his official capacity as Assistant Housing Manager, Richard Allen Homes; Edward A. Green, sued individually and in his official capacity as Landlord and Tenant Officer. Philadelphia Housing Authority, Appellant.

No. 03-1061.

United States Court of Appeals, Third Circuit.

Argued October 2, 2003.

Filed November 19, 2003.

Alan C. Kessler, Susan J. French (Argued), Virginia Lynn Hogben, Wolf, Block, Schorr & Solis-Cohen LLP, Philadelphia, PA, for Appellant, Philadelphia Housing Authority.

Paul A. Brooks (Argued), George Gould, Michael Donahue, Community Legal Services, Inc., Philadelphia, PA, for Appellee.

Before: ALITO, WEIS, and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge.

This appeal presents us with the question: should a Consent Decree entered in 1974 be vacated (1) where statutes and regulations have been enacted and promulgated curing the alleged due process deficiencies addressed by the Consent Decree, and (2) where no originally named plaintiff remains a party to the Complaint and Consent Decree and no class was ever certified?

In this action brought by appellant Philadelphia Housing Authority and others (collectively "PHA") to vacate the June 14, 1974 Consent Decree, appellees Ernest and Eunice Brown and others (hereinafter "the Browns") argue through their counsel that a class was certified "by implication" when the Consent Decree was entered. They claim that there were subsequent modifications to that Decree and no objections were raised by PHA during any of the intervening years. The Browns contend that PHA always treated the action as a de facto class action. They therefore argue that PHA has waived any mootness defense.

On the other hand, PHA charges that the District Court erred in its ruling on the merits which rejected PHA's motion to vacate the Consent Decree, and that the instant appeal is moot. Thus, PHA asserts that we lack subject matter jurisdiction. PHA emphasizes that subject matter jurisdiction cannot be waived and cannot be created even where the parties have expressly consented to do so.

We agree with PHA that this appeal is moot and that the 1974 Consent Decree entered by the District Court should be vacated. Subject matter jurisdiction is lacking now, and became so at the time the then-Plaintiffs terminated their tenancies (see discussion, infra). The lack of subject matter jurisdiction may be raised even at this late stage.

Accordingly, we are obliged to reverse the District Court's Order which denied PHA's motion to vacate the 1974 Consent Decree and which was entered on December 16, 2002. In doing so, we will direct that the proceeding be remanded to the District Court so that the District Court may vacate the 1974 Consent Decree and dismiss the Complaint filed by the Browns in 1972.

I.

The present action, which commenced with PHA filing the October 15, 2002 motion to vacate the Consent Decree, had its genesis in the action filed by the Browns on October 21, 1972. That Complaint, which was filed as a class action Complaint, alleged that the Browns were tenants of PHA and that PHA had evicted them and other PHA tenants with little, if any, notice and no opportunity for a hearing, all in violation of their due process rights. The Browns alleged that PHA had violated certain HUD Circulars, which gave tenants the right to notice and a grievance hearing before PHA could send lease termination notices.¹ They therefore claimed that they were denied due process because they did not receive the necessary notice or grievance procedure before they were evicted. The case was treated by the District Court as a class action, although no class was ever certified. Nor was any motion for certification ever filed.

On June 14, 1974, with the approval of the District Court, the parties, the Browns and PHA, entered into a Consent Decree setting forth notice and grievance procedures to be followed by PHA when it terminated leases or evicted tenants. The provisions in the Consent Decree were based on tenant rights set forth in the aforementioned HUD Circulars. PHA asserts, without contradiction, that the Browns are no longer PHA tenants, and were not PHA tenants when the Consent Decree was entered. On April 17, 1978, the District Court approved certain agreed-upon amendments to the Consent Decree, which are not relevant to this appeal. The Consent Decree has not been altered since that date.

On October 15, 2002, PHA moved to vacate the Consent Decree pursuant to Fed.R.Civ.P. 60(b)(6), arguing that certain 1975 and 1991 HUD regulations and a 1983 statute constituted significant changes warranting vacatur.² See Building & Construction Trades Council v. NLRB, 64 F.3d 880 (3d Cir.1995); Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992). PHA claimed that the amended regulations and statute provided broader protections to PHA tenants than did the Consent Decree. The Browns opposed vacatur of the Consent Decree, contending that it did not conflict with HUD regulations or any current federal law, and that the law governing a PHA tenant's grievance rights had not changed.

The District Court examined whether a "conflict" existed between the terms of the Consent Decree and the provisions of the subsequent federal regulations and statutes, holding that vacatur could be ordered only if such a conflict existed. Citing Building & Construction Trades Council v. NLRB, 64 F.3d 880, 888 (3d Cir.1995), the District Court held that there was no conflict between the Consent Decree and subsequent statutes and regulations, and that in a number of instances PHA had not complied with the Consent Decree in its entirety. On those grounds, the District Court denied PHA's motion to vacate the Consent Decree.

PHA timely appealed from the District Court's denial of its motion to vacate the Consent Decree.

II.

We have jurisdiction to hear this appeal pursuant to 28 U.S.C. § 1292(a)(1), as an appeal from an interlocutory order refusing to dissolve or modify an injunction. We review a district court's denial of a Rule 60(b) motion for abuse of discretion. See Reform Party of Allegheny County v. Allegheny County Dept. of Elections, 174 F.3d 305, 311 (3d Cir.1999); see also, United States v. Wheeling-Pittsburgh Steel Corp., 866 F.2d 57, 59 (3d Cir.1988).

III.

Our focus is upon the argument, first raised by PHA in its reply brief,³ that this appeal is moot because none of the original Plaintiffs who brought the lawsuit currently reside in PHA housing.⁴ In response, the Browns admit that the class was never formally certified by the District Court, but urge this Court to adopt a doctrine of "implied class certification." In addition, the Browns contend that because PHA had not sought vacatur of the Consent Decree on mootness grounds during the previous 30 years, PHA has waived the right to make this argument now.

The doctrine of mootness requires that "an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." New Jersey Turnpike Authority v. Jersey Cent. Power, 772 F.2d 25, 31 (3d Cir.1985) (citing Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974); Roe v. Wade, 410 U.S. 113, 125, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Golden v. Zwickler, 394 U.S. 103, 108, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969)). Mootness has two aspects: (1) the issues presented are no longer live, or (2) the parties lack a cognizable interest in the outcome. Id. (citing United States Parole Commission v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)). In the class action context, special mootness rules apply. "Once a class has been certified, mooting of the class representative's claims does not moot the entire action because the class acquires a legal status separate from the interest asserted by its named plaintiff." Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992) (internal quotations omitted). Litigation may continue because the stake of other class members is attributed to the class representative.⁵ However "when claims of the named plaintiffs become moot before class certification, dismissal of the action is required." Id. (internal citations omitted).

We conclude that this appeal is moot because it is uncontradicted that the Browns are not tenants in PHA housing. Their failure to meet this threshold status eliminates any case or controversy they might have concerning notice and hearing procedures for PHA tenants and thus precludes subject matter jurisdiction on this appeal. The record before us is unclear as to the time or times when the Browns were PHA tenants and therefore available to be actionable parties to the Complaint. Nevertheless, we are satisfied that if indeed the Browns were not tenants at the time the Complaint was filed or when the Consent Decree was entered, as is conceded, subject matter jurisdiction was also lacking in the District Court.

However, the Browns urge us to adopt a doctrine of "implied class certification." They refer us to other courts, which have seen fit to certify a case as a class action at the appellate level even though no Fed. R.Civ.P. 23 analysis was conducted at the district level. See, e.g., Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325 (1st Cir. 1991), Bing v. Roadway Express, Inc., 485 F.2d...