Comer v. Kemp, No. 89-CV-1556C.

• Decision Date: 02 June 1993
• Docket Number: No. 89-CV-1556C.
• Citation: 824 F. Supp. 1113
• Parties: Jesse COMER and Jewel Culverhouse, individually and on behalf of all persons similarly situated, Plaintiffs, v. Jack KEMP, in his official capacity as Secretary of the United States Department of Housing and Urban Development; and United States Department of Housing and Urban Development; and Belmont Shelter Corporation; and Town of Amherst, New York, Defendants. Jesse COMER, Hazel Grimes, Yvonne Primm, and Felicia Stokes, individually and on behalf of all persons similarly situated, Plaintiffs, v. Jack KEMP, in his official capacity as Secretary of the United States Department of Housing and Urban Development; and United States Department of Housing and Urban Development; and Rental Assistance Corporation of Buffalo; and City of Buffalo, New York, Defendants. Jesse COMER, Rosemary Comer, Jewel Culverhouse, Hazel Grimes, Annette McCutcheon, individually and on behalf of all persons similarly situated, Plaintiffs, v. Jack KEMP, in his official capacity as Secretary of the United States Department of Housing and Urban Development; and United States Department of Housing and Urban Development; and Buffalo Municipal Housing Authority, and Lawrence A. Grisanti, individually and in his official capacity as former Executive Director of the Buffalo Municipal Housing Authority; and City of Buffalo, New York; and James D. Griffin, in his official capacity as Mayor of the City of Buffalo, New York; and Richard L. Higgins, individually and in his official capacity as Commissioner of the New York State Division of Housing and Community Renewal, Defendants.
• Court: U.S. District Court — Western District of New York

824 F. Supp. 1113

Jesse COMER and Jewel Culverhouse, individually and on behalf of all persons similarly situated, Plaintiffs, v. Jack KEMP, in his official capacity as Secretary of the United States Department of Housing and Urban Development; and United States Department of Housing and Urban Development; and Belmont Shelter Corporation; and Town of Amherst, New York, Defendants.

Jesse COMER, Hazel Grimes, Yvonne Primm, and Felicia Stokes, individually and on behalf of all persons similarly situated, Plaintiffs, v. Jack KEMP, in his official capacity as Secretary of the United States Department of Housing and Urban Development; and United States Department of Housing and Urban Development; and Rental Assistance Corporation of Buffalo; and City of Buffalo, New York, Defendants.

Jesse COMER, Rosemary Comer, Jewel Culverhouse, Hazel Grimes, Annette McCutcheon, individually and on behalf of all persons similarly situated, Plaintiffs, v. Jack KEMP, in his official capacity as Secretary of the United States Department of Housing and Urban Development; and United States Department of Housing and Urban Development; and Buffalo Municipal Housing Authority, and Lawrence A. Grisanti, individually and in his official capacity as former Executive Director of the Buffalo Municipal Housing Authority; and City of Buffalo, New York; and James D. Griffin, in his official capacity as Mayor of the City of Buffalo, New York; and Richard L. Higgins, individually and in his official capacity as Commissioner of the New York State Division of Housing and Community Renewal, Defendants.

No. 89-CV-1556C.

United States District Court, W.D. New York.

June 2, 1993.

COPYRIGHT MATERIAL OMITTED

Neighborhood Legal Services, Inc. (Dennis M. McGrath and Barbra A. Kavanaugh, of counsel), Buffalo, NY, Greater Upstate Law Project (Michael L. Hanley and Ellen M. Yacknin, of counsel), Rochester, NY, and NAACP Legal Defense Fund, Inc. (Alice L. Brown, of counsel), New York City, for plaintiffs.

U.S. Dept. of Justice, Civ. Div. (Stuart A. Licht and Lisa A. Olson, of counsel), and U.S. Dept. of Housing and Urban Development (James C. Brylinski, Buffalo, NY, and Patricia Sharin Flagg and Michael T. Robinson, of counsel), Washington, DC, for defendants Kemp and U.S. Dept. of Housing and Urban Development.

Damon & Morey (James N. Schmit, of counsel), and Sally S. Mennen, Buffalo, NY, for defendant Buffalo Mun. Housing Authority.

Carl Tronolone, Buffalo, NY, for defendant Lawrence A. Grisanti.

Laurence K. Rubin, Corp. Counsel for City of Buffalo (R. Peter Morrow, III, of counsel), Buffalo, NY, for defendants City of Buffalo and Mayor James D. Griffin.

Robert Abrams, NY State Atty. Gen. (Mark Walling, Asst. NY State Atty. Gen., of counsel), Buffalo, NY, for defendant Richard L. Higgins.

Lippes, Silverstein, Mathias & Wexler (Sharon M. Porcellio, of counsel), Buffalo, NY, for defendant Rental Assistance Corp. of Buffalo.

Saperston & Day, P.C. (Charles C. Swanekamp, of counsel), Buffalo, NY, for defendant Belmont Shelter Corp.

John T. Lane, Williamsville, NY, for defendant Town of Amherst.

DECISION AND ORDER

JOHN T. CURTIN, District Judge.

This civil action, alleging racial discrimination in public housing and assistance programs, is filed as a class action. Plaintiffs seek to remedy defendants' policies, practices, and procedures which, for decades, allegedly have created and perpetuated deliberate racial discrimination within the state and federal low-income housing programs which defendants administer in the City of Buffalo and Erie County, New York. The class which plaintiffs seek to represent includes all former, current, and future minority residents of and applicants to Buffalo public housing projects and area Section 8 certificate programs.

PROCEDURAL HISTORY

Plaintiffs, individually and in seeking to represent a class of others similarly situated, originally filed this suit on a single complaint. Defendants moved to strike portions of the complaint, but this court denied their motions. Item 38. Defendants next moved to stay the issuance of an order certifying the class pending discovery on the class certification issue. See generally Items 39-48.

At a hearing held to discuss the various motions, the court ordered plaintiffs' counsel to file proposed amended complaints reflecting the court's recommendation that there were at least three distinct general issues involved in the lawsuit. The court further noted the prospect of three separate classes. This was done for the purpose of clarity and to provide a guide for the conduct of depositions to follow on the class certification issues. Item 67.

Accordingly, plaintiffs filed three separate first amended complaints. One was filed by Jesse Comer, Jewel Culverhouse, and on behalf of all those similarly situated, against the Belmont Shelter Corporation Belmont, the Town of Amherst Amherst, and the United States Department of Housing and Urban Development and its Secretary, Jack Kemp HUD or federal defendants. Item 68, First Amended Complaint Belmont. A second complaint was filed by Jessie Comer, Hazel Grimes, Yvonne Primm, and Felicia Stokes against the Rental Assistance Corporation RAC, the City of Buffalo Buffalo, and the federal defendants. Item 69, First Amended Complaint RAC. The third was filed against all of the remaining defendants from the original complaint, including: the federal defendants, the Buffalo Municipal Housing Administration BMHA and its former executive director, Lawrence Grisanti; the City of Buffalo, and its Mayor, James D. Griffin; and Richard Higgins, the Commissioner of the New York State Division of Housing and Community Renewal DHCR. Item 70, First Amended Complaint BMHA.

All of the defendants have answered plaintiffs' various first amended complaints. See Item 72 (Grisanti); Item 76 (Belmont); Item 77 (Higgins); Item 79 (BMHA); Item 80 (Amherst); answers of the federal defendants, Item 87 (Belmont Compl.), Item 88 (RAC Compl.), Item 89 (BMHA Compl.); Item 90 (RAC), Item 97 (Buffalo & Griffin). Plaintiffs and defendants Belmont and RAC have also filed their statements of fact pursuant to local rule 13(d)(1). See Items 124, 126, 137, 138.

A review of the current posture of this case discloses that all defendants, except for the City of Buffalo, either have moved to oppose class certification, or have moved for dismissal and/or summary judgment on the grounds of plaintiffs' lack of standing. See Items 82, 83 (Higgins); Items 113, 114 (HUD); Item 116 (Amherst); Items 119, 123 (Belmont); Item 115 (BMHA). Extensive discovery materials, affidavits, and deposition testimony have been filed with the court. See Items 85, 158 (Higgins); Items 117, 153 (RAC); Item 119, 156 (Belmont); Items 135, 179 (Plaintiffs' Exhibits). Plaintiffs have responded to defendants' challenges, and defendants have again replied.¹ See Items 91, 104, 132, 133, 134, 246 (Plaintiffs); Items 93, 159 (Higgins); Item 154 (RAC); Item 157 (Belmont); Items 115, 161, 259-60 (BMHA). The court has heard oral argument on the standing issues, now pending decision. Item 188.

Several rounds of intervenor motions have been filed on behalf of plaintiffs. However, in ruling on the application of a second round of intervenors, this court decided to first dispose of the various motions concerning plaintiffs' standing and class certification issues before considering any further intervenor applications. See Item 255. Plaintiffs have challenged this approach, but the Second Circuit affirmed this court's order. Comer v. Kemp, 990 F.2d 623 (2d Cir.1993) (unpublished opinion).

BACKGROUND

The Housing and Community Development Act of 1974 (HCDA), P.L. 93-383, created two programs which are relevant to plaintiffs' claims. Title I of the HCDA, § 101, et seq., created the Community Development Block Grant (CDBG) program. Title II of the HCDA, § 201 et seq., amended the United States Housing Act of 1937 to add a new "Section 8," which created a program popularly known as the Section 8 Existing Housing program (Section 8).

Under the Section 8 program, defendant United States Department of Housing and Urban Development (HUD) authorizes local agencies, referred to as public housing administrators/agencies (PHAs), to issue a "certificate" or "voucher" to eligible lower-income families, which entitle them to have the PHA pay a portion of their rent directly to the landlord. These rent subsidies are subsequently reimbursed by defendant HUD. Unlike public housing projects or other HUD-sponsored multi-family subsidized housing programs, Section 8 subsidies are not generally linked to the rental unit. Once a certificate or voucher is issued, if the recipient family moves from its chosen apartment, it may carry its certificate or voucher to the next apartment. However, a family with a Section 8 certificate or voucher must find itself a private landlord who participates in the program.

Defendant HUD has adopted the use of metropolitan statistical areas (MSAs) to establish the boundaries of a particular PHA market area. The MSA is determined by an evaluation of the geographic area in which housing units are in mutual competition. 53 Fed.Reg. 36701. Under this system, defendant HUD has identified all of Erie County, including the City of Buffalo, as a single housing market. Item 69 ¶¶ 32-35 at 8.

The PHA is often a municipal entity which arranges for a separate agency to administer the local Section 8 program. Typically, the PHA is a not-for-profit corporation, specializing in the administration of lower-income housing programs. The PHA enters into an Annual Contributions Contract with defendant HUD, which provides for the payment of administrative fees to the PHA by defendant HUD. In connection with the Annual Contributions Contract, the PHA must submit both an Administrative Plan and an Equal Housing Opportunity Plan which describe the administrative details of the Section 8 program and compliance with federal and state...