Comer v. Cisneros, s. 1236

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation37 F.3d 775
Docket NumberNos. 1236,1237 and 1238,D,s. 1236
PartiesJessie COMER; Jewel Culverhouse; Hazel Grimes; Yvonne Primm; Felicia Stokes; Rosemary Comer; Annette McCutcheon, individually and on behalf of all persons similarly situated, Plaintiffs-Appellants, Dorothy Solomon; Saren Lewis; Betty Smith; Karen Edmond; Odessa Edwards; Penny Ferguson; Claude Fletcher; Ronda Mapp; Jane Pennick; Tyrone Pennick; Darlene Perry, Proposed Intervenor-Plaintiffs, individually and on behalf of all persons similarly situated, Appellants, v. Henry G. CISNEROS, in his official capacity as Secretary of the United States Department of Housing and Urban Development; US Department of Housing and Urban Development; Belmont Shelter Corporation; Town of Amherst, New York; Rental Assistance Corporation of Buffalo; City of Buffalo; Lawrence A. Grisanti, individually and in his official capacity as former Executive Director of Buffalo Municipal Housing Authority; James D. Griffin; Richard L. Higgins, individually and in his official capacity as Commissioner of the New York State Division of Housing and Community Renewal; Buffalo Municipal Housing Authority, Defendants-Appellees. ockets 93-6207, 93-6253 and 93-6333.
Decision Date26 August 1994

Charles S. Ralston, New York City (Elaine R. Jones, Alice L. Brown, Theodore M. Shaw, NAACP Legal Defense and Educ. Fund, Inc., New York City, Barbra A. Kavanaugh, Dennis McGrath, Neighborhood Legal Services, Inc., Buffalo, NY; Michael L. Hanley, Ellen M. Yacknin, Greater Upstate Law Project, Rochester, NY of counsel), for plaintiffs-appellants and appellants.

Michael E. Robinson, U.S. Dept. of Justice, Washington, DC (Michael Jay Singer, Stuart A. Licht, Felix V. Baxter, Lisa A. Olson, U.S. Dept. of Justice; Frank W. Hunger, Asst. Atty. Gen., Washington, DC; Michael T. Robinson, Howard M. Schmeltzer, Asst. Gen. Counsel for Litigation, Patricia Sharin Flagg, Office of Gen. Counsel, U.S. Dept. of Housing and Urban Development, Washington, DC; James C. Brylinski, U.S. Dept. of Housing and Urban Development, Buffalo, NY; Patrick H. Nemoyer, U.S. Atty., Shirley Troutman, Asst. U.S. Atty., Buffalo, NY, of counsel), for defendant-appellees Secretary of Housing and Urban Development and U.S. Department of Housing and Urban Development.

Daniel Smirlock, Asst. Atty. Gen., Albany, NY (Robert Abrams, Atty. Gen., Peter H. Schiff, Deputy Sol. Gen., Mark R. Walling, Albany, NY, of counsel), for defendant-appellee Richard L. Higgins.

Sally S. Mennen, Buffalo Mun. Housing Authority, James N. Schmit, Ian A. Bradford, Damon & Morey, Buffalo, NY, of counsel, for defendant-appellee Buffalo Mun. Housing Authority.

Charles C. Swanekamp, Saperston & Day, Buffalo, NY, for defendant-appellee Belmont Shelter Corp.

John P. Lane, Deputy Town Atty., Williamsville, NY, for defendant-appellee Town of Amherst, New York.

Sharon Porcellio, Lippes, Silverstein, Muthias & Wexler, Buffalo, NY, for defendant-appellee Rental Assistance Corp. of Buffalo.

R. Peter Morrow, III, Corp. Counsel's Office, Buffalo, NY, for defendants-appellees City of Buffalo, Lawrence A. Grisanti and James D. Griffin.

Michael E. Deutsch, Center for Constitutional Rights, and Nat. Lawyers' Guild, New York City, for amicus curiae.

Before: OAKES, KEARSE, and MAHONEY, Circuit Judges.

OAKES, Senior Circuit Judge:

The plaintiffs, low-income minority individuals, brought this class action on behalf of all former, current, and future minority residents of Buffalo, New York public housing projects and applicants for federal housing assistance in Erie County, New York. The original complaint alleged racial discrimination and segregation in public housing and assistance programs. The district court dismissed the complaint for lack of standing. The court also dismissed as moot the claims brought by all eleven proposed plaintiffs-intervenors.

In light of the procedural posture of this case, we must resolve several questions of law:

(1) Whether the plaintiffs and proposed intervenors, as low-income, minority residents of the City of Buffalo who have applied for or received rental housing subsidies from the Rental Assistance Corporation of Buffalo ("RAC"), 1 have standing to challenge, as racially discriminatory: (a) RAC's policy and practice of prohibiting the majority of its rental housing subsidies from being used in the suburbs of Buffalo; and (b) RAC's minority participation outreach efforts.

(2) Whether the plaintiffs and proposed intervenors, as low-income, minority residents of the City of Buffalo who have applied for rental housing subsidies from the Belmont Shelter Corporation ("Belmont"), have standing to challenge, as racially discriminatory: (a) Belmont's "suburban residency preference" policy which gives some suburban residents and workers subsidies ahead of Buffalo residents; and (b) Belmont's minority participation outreach efforts.

(3) Whether any of these claims are moot.

(4) Whether we have jurisdiction to review the claims against the Buffalo Municipal Housing Authority ("BMHA").

(5) Whether the plaintiffs are entitled to class certification on behalf of the various sub-classes.

We must also decide:

(6) Whether, in the event of reversal, we should transfer this case to another district court judge on remand.

(7) Whether the district court properly dismissed the claims against state-defendant Richard L. Higgins.

We now affirm the judgment as to Higgins, dismiss the appeal as to BMHA for lack of appellate jurisdiction, and vacate the district court's judgment in all other respects.

I. Jurisdiction

The district court had jurisdiction over this civil rights action under 28 U.S.C. Secs. 1331, 1343(a)(3), (4) (1988), and, over the state law claims, under 28 U.S.C. Sec. 1367 (Supp. IV 1992). Pursuant to a June 2, 1993, published opinion, the district court granted summary judgment to the Belmont and RAC defendants thereby dismissing the Belmont and RAC complaints in their entirety on grounds that the plaintiffs lacked standing. Comer v. Kemp, 824 F.Supp. 1113, 1134 (W.D.N.Y.1993). With respect to the BMHA complaint, the district court dismissed the claims against state-defendant Richard L. Higgins concerning the federal projects, severed the claims against Higgins pertaining to the state projects, and held that although the BMHA plaintiffs lacked standing to pursue declaratory and prospective injunctive relief, they did have standing to pursue claims for compensatory damage for past discrimination. Id. Finally, the court denied the plaintiffs' motion for class certification in the BMHA complaint, and implicitly in the RAC and Belmont complaints. On August 19, 1993, the district court dismissed the claims against Higgins and certified, as final under Fed.R.Civ.P. 54(b), the judgments against all defendants except the BMHA and the City of Buffalo in the BMHA matter. Comer v. Kemp, No. 89-1556 (W.D.N.Y. Aug. 19, 1993) (order granting entry of final judgment on to certain defendants). On September 9, 1993, the plaintiffs and the intervenors filed a new notice of appeal from this order. On November 5, 1993, the court issued an order of clarification, which stated that its June 2, 1993, judgment had denied the motions of the intervenors as moot. On November 9, 1993, the intervenors filed a notice of appeal from the November 5 order. Thus, pursuant to 28 U.S.C. Sec. 1291 (1988), this court has jurisdiction over all of the plaintiffs' and intervenors' claims except those against BMHA and the City of Buffalo in the BMHA complaint.

II. Background

This case presents the substantive issue of racial discrimination and segregation in housing. Specifically for us, this case presents an instance where the court house doors have remained closed to individuals and similarly situated individuals who have presented "a significant and serious claim of racial discrimination in the local administration of a public housing program," Comer v. Kemp, No. 92-6247 (2d Cir. Jan. 13, 1993) (order affirming judgment of district court denying plaintiffs' motion for a preliminary injunction). To understand how the court house doors have remained closed to these individuals, it is helpful to understand the statutory and regulatory foundations as well as the institutional structures that have given rise to this rancorous law suit. Although many of these background facts have been set forth in the lower court's opinion, Comer v. Kemp, 824 F.Supp. at 1116-19, we find it necessary to expand upon, although in part to duplicate, them. We do not review the facts underlying the plaintiffs' dispute with BMHA, except as they touch upon the remaining disputes, because, as we have noted above, we do not have appellate jurisdiction over the dispute with BMHA.

A. Statutory and Regulatory Background

This case involves two federally subsidized rental housing programs for low-income families. The first provides federal financial assistance to Public Housing Agencies ("PHAs") to help finance and maintain PHA owned and operated, lower-income public housing projects. 42 U.S.C. Secs. 1437b-1437d (1988 & Supp. IV 1992). A PHA is "any State, county, municipality, or other governmental entity or public body (or agency or instrumentality thereof) which is authorized to engage in or assist in the development or operation of low-income housing." 42 U.S.C. Sec. 1437a(b)(6) (Supp. IV 1992). The PHA is responsible for selecting and assigning tenants as well as for physically maintaining the projects. Typically, the PHA is a not-for-profit, municipal corporation which arranges for a separate agency to administer the local, lower-income housing program.

The second, known as the Section 8 Existing Housing Program ("Section 8"), provides subsidies to private landlords. See Housing and Community Development Act of 1974 ("HCDA"), 42 U.S.C. Sec. 1437f (1988 & Supp. IV 1992). Under the Section 8 program, qualifying tenants...

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