Gautreaux v. Pierce, 66 C 1459

• Decision Date: 11 May 1982
• Docket Number: No. 66 C 1459,66 C 1460.,66 C 1459
• Citation: 538 F. Supp. 1004
• Parties: Dorothy GAUTREAUX, et al., Plaintiffs, v. Samuel R. PIERCE, Secretary of Department of Housing and Urban Development, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

538 F. Supp. 1004

Dorothy GAUTREAUX, et al., Plaintiffs, v. Samuel R. PIERCE, Secretary of Department of Housing and Urban Development, et al., Defendants.

Nos. 66 C 1459, 66 C 1460.

United States District Court, N. D. Illinois, E. D.

May 11, 1982.

Alexander Polikoff, Howard A. Learner, Chicago, Ill., for plaintiffs.

Robert M. Grossman, Roan & Grossman, Patrick W. O'Brien, Mayer, Brown & Platt, Richard J. Flando, Acting Regional Counsel, Dept. of Housing and Urban Development, Stanley J. Garber, Corp. Counsel, Calvin H. Hall, Gen. Counsel, Chicago Housing Authority, Earl L. Neal, Sp. Asst. Corp. Counsel, Chicago, Ill., Jane McGrew, Gershon M. Ratner, Associate Gen. Counsel, Howard M. Schmeltzer, Sp. Asst., Richard C. Stearns, Edward G. Weil, Gen. Counsel, Dept. of Housing and Urban Development, Washington, D. C., Gerald D. Skoning, Seyfarth, Shaw, Fairweather & Geraldson, Chicago, Ill., for defendants.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

This matter is now before the Court on the motion of the Illinois Housing Development Authority ("IHDA"), joined in by plaintiffs, requesting that the Court either enforce or modify the consent decree entered on June 16, 1981, between plaintiffs and the United States Department of Housing and Urban Development ("HUD"). IHDA seeks an order requiring that HUD include a financing adjustment factor ("FAF") in the fair market rents applicable to IHDA financed section 8 housing developments that commence construction after June 1, 1982, so that IHDA-financed developers can charge rents in excess of the normal fair market rent in a particular locale and increase the income stream generated by the development in order to meet higher financing costs. HUD has announced that the FAF currently in effect will not be available for any section 8 developments that begin construction after June 1, 1982.

IHDA¹ advances three grounds in support of its motion to enforce or modify the consent decree. First, it contends that this Court ought to require HUD to continue the FAF with respect to IHDA-financed projects as a means of enforcing paragraph 5.9 of the consent decree which provides, in pertinent part, that "HUD will explore actively all possibilities of supplying assisted housing to eligible persons as rapidly as possible through the assisted housing programs referred to in this Consent Decree, and through any other housing and housing related programs which may be implemented by HUD prior to the satisfaction or termination of HUD's obligations hereunder. ..." IHDA's second argument is that the Court should modify the consent decree to provide for the continuation of the FAF for IHDA developments because the FAF was in existence at the time the decree was entered in June, 1981, and the proposed change in circumstances would impose a greater hardship upon IHDA and the plaintiffs than the continuation of the FAF past June 1, 1982, would impose upon HUD. Finally, IHDA contends that the Court should enforce an implied covenant in the consent decree to the effect that HUD not act unilaterally to obstruct the provisions of relief under the decree. As set forth below, we conclude that none of IHDA's arguments would justify the relief it seeks without rewriting the terms of the consent decree, a task which as a general matter we are inclined not to undertake and, under these circumstances, expressly decline to undertake.

In the Court's view, IHDA's attempt to impose an affirmative obligation upon HUD to continue indefinitely the fiscal 1981 FAF by virtue of HUD's undertaking to "explore actively all possibilities of supplying assisted housing to eligible persons as rapidly as possible" reads too much into the limited language of paragraph 5.9. As we stated in an earlier opinion,

Although we agree with the plaintiffs that paragraph 5.9 of the decree evinces HUD's undertaking to attempt to provide relief as rapidly as possible, though not within a definite time frame, we cannot agree that any time the Court or plaintiffs conclude that HUD might do more to provide housing to eligible persons, the Court may force HUD to take such action under the theory that it is enforcing the decree.

Gautreaux v. Pierce, 535 F.Supp. 423, 426 n.4 (N.D.Ill.1982). IHDA acknowledges this to be a correct interpretation of paragraph 5.9 but argues that "paragraph 5.9 clearly calls for action where the appropriate explorations find a promising technique (for which there is statutory authority) of speeding up the delivery of housing opportunities to the plaintiffs." IHDA Memorandum at 9. It then goes on to suggest the following "test" to be applied:

If the Court finds that the implementation sought (here, reinstatement of the Financing Adjustment) would speed up delivery of relief for the plaintiffs, if the Court finds that the implementation sought is not a novel, untried solution, if the Court finds the improvement to be within HUD's statutory authority, if the Court finds no untoward public effect from the requested implementation, if the Court finds that the implementation requested was known to HUD but not explored actively and in good faith to the end of at least maintaining a reasonably expected rate of relief for plaintiffs and provided the implementation requested is not to have HUD `perform the functions of a public housing agency,' then this Court ought to affirmatively enforce the Consent Decree by ordering HUD to perform the implementation requested.

Id. at 9-10.

The problem, of course, is that the asserted `call for action' in paragraph 5.9 is extremely weak and the `test' outlined by IHDA appears nowhere in the decree except by generous implication. Frankly, we have some difficulty discerning the scope of HUD's obligations under paragraph 5.9 and the method of enforcing such obligations, if any, under the decree. In paragraph 8.7 of the decree, for example, the parties provided that "where HUD has agreed in this Decree to ... explore taking any action not specifically required hereunder, HUD shall undertake such ... exploration in good faith, but its failure actually to take the action which is the subject of such ... exploration shall not be grounds for contempt." The purpose of civil contempt is to coerce compliance with a court order. See, e.g., Shakman v. Democratic Organization of Cook County, 533 F.2d 344, 349 (7th Cir. 1976), and cases cited therein. The parties having rejected that most obvious option of enforcing paragraph 5.9, it seems somewhat inconsistent to say that the decree implicitly authorizes the Court to accomplish the same result under the name of `enforcement' or `implementation' but not `contempt.' The more logical approach would seem to be to modify the decree, if possible, so as to impose upon HUD an affirmative duty to take the required action, and then to enforce that court-imposed duty, if necessary, through contempt proceedings or otherwise.

Moreover, IHDA's attempt in this context to compare favorably the consent decree and relief requested in the instant case with that in New York Association for Retarded Children v. Carey, 596 F.2d 27 (2d Cir. 1979), is unavailing and, in fact, counterproductive. The consent decree in the New York case, incorporating an independent review and recommendation mechanism for adapting the state's compliance with the decree to changing or new circumstances, was much more flexible than the decree in the case at bar. In addition, rather than merely agreeing to "explore actively" other possibilities for providing relief without the threat of contempt or other sanction, the defendant state officials in the New York case "agreed that `within their lawful authority' and `subject to any legislative approval that may be required,' ...