Evans v. Lynn

• Decision Date: 04 June 1976
• Docket Number: No. 157,D,157
• Citation: Evans v. Lynn, 537 F.2d 571 (2nd Cir. 1976)
• Parties: 6 Envtl. L. Rep. 20,527 Rachel EVANS et al., Appellants, v. James T. LYNN et al., Appellees, v. The TOWN OF NEW CASTLE, Appellee-Intervenor. ocket 74--1793.
• Court: U.S. Court of Appeals — Second Circuit

Page 571

537 F.2d 571

6 Envtl. L. Rep. 20,527

Rachel EVANS et al., Appellants, v.James T. LYNN et al., Appellees, v.The TOWN OF NEW CASTLE, Appellee-Intervenor.

No. 157, Docket 74--1793.

United States Court of Appeals Second Circuit.

Argued Oct. 21, 1974.

Decided June 2, 1975.

Resubmitted Oct. 20, 1975.

On Rehearing En Banc June 4, 1976.

J. Christopher Jensen, Yonkers (Richard F. Bellman, Lois D. Thompson, Suburban Action Institute, Yonkers, of counsel), for appellants.

V. Pamela Davis, Asst. U.S. Atty. (Paul J. Curran, U.S. Atty., S.D.N.Y., Steven J. Glassman, Asst. U.S. Atty., of counsel), for Federal Appellees.

Arthur M. Handler, New York City(Andrea Hyde, Golenbock & Barell, New York City, of counsel), for appelleeTown of New Castle.

Jeremiah J. Spires, New York City(Harry A. Gottlieb, Wikler, Gottlieb, Taylor & Howard, New York City, of counsel), for appelleesDouglas Carroll, Director of Tri-State Regional Planning Commission, and Tri-State Regional Planning Commission.

OPINION OF THE PANEL

Before MOORE, OAKES and GURFEIN, Circuit Judges.

OAKES, Circuit Judge:

This appeal involves a legal challenge against policies of federal agencies said to flout the requirements of Title VI of the 1964 Civil Rights Act,42 U.S.C. § 2000d et seq., andTitle VIII(Fair Housing) of the 1968 Civil Rights Act,42 U.S.C. § 3601 et seq. Title VI requires federal agencies affirmatively to effectuate its anti-discrimination policy in programs receiving federal financial assistance, 42 U.S.C. §§ 2000d,2000d--1. ¹ Title VIII requires similar effectuation of its fair housing policies, 42 U.S.C. §§ 3601,3608(c), (d)(5).² The federal agencies are the Department of Housing and Urban Development(HUD) and the Bureau of Outdoor Recreation of the Department of the Interior(BOR), whose respective grants to a municipal sewer district within the Town of New Castle, Westchester County, New York, for construction of a sanitary sewer, and to the Town itself for acquisition of 'Turner Swamp' for recreational purposes ³ are challenged here as being made to a town that allegedly maintains a racially and economically discriminatory housing and community development program.Suit has also been brought against the regional planning agency, Tri-State Regional Planning Commission (Tri-State), which is the designated clearinghouse which reviews and coordinates applications for federal grants-in-aid in certain counties of New York and New Jersey and certain planning regions of Connecticut, 42 U.S.C. § 3334(a)(1), and which declined to review the grants in question on the grounds that they lacked regional significance.

Appellants assert that they are minority residents of Westchester County who reside in racially concentrated areas of the county and are constrained to do so because the failure of the federal agencies to perform their affirmative duties permits the maintenance of a growing pattern of racial residential segregation both in New Castle and elsewhere in the county.Thus, the case is another in the series of cases in this court and others ⁴ raising one phase or another in the complex of legal, social, economic and moral problems engendered both by the emergence of the suburbs as increasingly important units of the metropolitan area, significant to the achievement of national goals, and by the realization that housing 'does not mean shelter alone--it means a collection of services and opportunities based on locations.'⁵The court below granted the Town of New Castle leave to intervene but denied appellants standing to sue on the basis that they assert no 'injury in fact' since enjoining the grants in question would not alleviate their injury (in the form of 'ghetto living conditions'); Judge Pollack added that their status as 'potential residents' of New Castle did not change this result.(This ruling applied to the federal defendants and to Tri-State.)We disagree, expressing, however, no opinion on the question whether appellants have stated a claim for relief.

On the question of standing as to the federal agencies there are three facts which have to be assumed, as they were below, in the present posture of the case.First, appellants are low-income minority residents of Westchester County who live in 'ghetto' conditions, that is, racially-concentrated low-income neighborhoods.⁶ Second, a matter entirely overlooked in Judge Moore's dissent, the Town of New Castle, to or for whose benefit the challenged grants were made, is, in the words of the district court, 'predominantly white (98.7 per cent) and a well-to-do enclave,' 90 per cent of which is zoned for single-family, residential development on parcels of more than one acre, with a median value of single-family homes in 1970 in excess of $50,000; the Town has, not coincidentally, thwarted the New York State Urban Development Corporation's attempt to construct within its borders a small 100-unit low cost housing facility and thus in the words of the court below 'continues to be resistant to attempts to alter its present housing character.'⁷ Third, the challenged federal agencies, in approving the grants in question, did very little by way of evaluating the Town's development policies or otherwise, ⁸ to perform any allegedly affirmative duties required of them by Title VIandTitle VIII respectively; ⁹ the approval of each grant in question was based solely on its internal merits (as to which there is no dispute, that is, no claim that either the sewer system or recreation area will be administered discriminatorily).

Assuming these underlying facts, we first face the question whether appellants are arguably within the zone of interests protected by the statutes, that is, whether there is a viable claim that affirmative duties are imposed upon these federal agencies by Titles VI and VIII which would require them to take some action, not taken here, on behalf of county residents such as withholding otherwise proper grants.Absent such an arguable claim of affirmative duties owed to appellants, they are not within any zone of statutory protection.Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184(1970).Put another way, we must consider whether either of these agencies is alleged to have 'consciously and expressly adopted a general policy (of nonenforcement) which (is) in effect an abdication of its statutory duty.'Adams v. Richardson, 156 U.S.App.D.C. 267, 480 F.2d 1159, 1162(1973)(en hanc, per curiam)(ordering HEW to take affirmative action to end segregation in ten states' public educational institutions receiving federal funds, at suit of black 'students, citizens and taxpayers').We think such a viable claim is clearly made out under the express language of the Acts, nn. 1 and 2 supra, the legislative history and the case law.

Title VI requires effectuation of § 2000d by agencies 'empowered to extend Federal financial assistance to any program or activity, by way of grant . . ..'42 U.S.C. § 2000d--1.Title VIII requires administration of housing and urban development programs and activities in all agencies 'affirmatively to further the purposes' of the Act, as expressed in 42 U.S.C. § 3601, n.2 supra.¹⁰ It may be that, as the federal appellees suggest, because Title VI is somewhat limited in remedy, it is not so much involved, although this is a question ultimately on the merits;Title VI contains language in its so-called 'pinpoint provision' that limits the power of the agency to terminate funding 'to the particular program, or part thereof, in which such (discrimination) has been so found.'42 U.S.C. § 2000d--1, n.1 supra.SeeGautreaux v. Romney, 457 F.2d 124(7th Cir.1972)(HUD could release Model Cities funds to city independent of city housing authority's discriminatory site selection and tenant assignment procedures).See86 Harv.L.Rev. 427(1972).

But the same limitation or 'pinpoint provision' does not apply to Title VIII.The legislative history of Title VIII is indicative of its scope.In introducing the legislation Senator Mondale referred to the

sordid story of which all Americans should be ashamed developed by this country in the immediate post World War II era, during which the FHA, the VA, and other Federal agencies encouraged, assisted, and made easy the flight of white people from the central cities of white America, leaving behind only the Negroes and others unable to take advantage of these liberalized extensions of credit and credit guarantees.

Traditionally the American Government has been more than neutral on this issue.The record of the U.S. Government in that period is one, at best, of covert collaborator in policies which established the present outrageous and heartbreaking racial living patterns which lie at the core of the tragedy of the American city and the alienation of good people from good people because of the utter irrelevancy of color.

114 Cong.Rec. 2278(1968).

So too Representative Celler said: 'The purpose or 'end' of the Federal Fair Housing Act is to remove the walls of discrimination which enclose minority groups in ghettos . . ..'114 Cong.Rec. 9563(1968).

The cases relating to duties created by Titles VI and VIII include Shannon v. HUD, 436 F.2d 809(3d Cir.1970);Brookhaven Housing Coalition v. Kunzig, 341 F.Supp. 1026(E.D.N.Y.1972);Garrett v. City of Hamtramck, 335 F.Supp. 16 (E.D.See alsoOtero v. New York City Housing Authority, 484 F.2d 1122(2d Cir.1973).The Third Circuit held in Shannon, supra, that HUD could not approve a change in an urban renewal plan (from 'owner occupied' to 'rent supplement' dwellings) without considering under the affirmative duty requirements of Titles VI and VIII whether 'the need for physical rehabilitation or additional minority housing at the site in question clearly outweighs the disadvantage of increasing or perpetuating racial discrimination.'436 F.2d at 822.So holding, the court said...