Lawrence v. Oakes

• Citation: 361 F. Supp. 432
• Decision Date: 16 July 1973
• Docket Number: Civ. A. No. 6168.
• Parties: Richard LAWRENCE, on behalf of himself and all persons similarly situated, v. Rosalyn OAKES et al.
• Court: U.S. District Court — District of Vermont

361 F. Supp. 432

Richard LAWRENCE, on behalf of himself and all persons similarly situated, v. Rosalyn OAKES et al.

Civ. A. No. 6168.

United States District Court, D. Vermont.

July 16, 1973.

Steven R. Edelstein, Rutland, Vt., J. Morris Clark, Vermont Legal Aid, Inc., St. Albans, Vt., for plaintiff.

Thomas J. Kenney, Burlington, Vt., for the Commissioners and Executive Director of the Vt. State Housing Authority.

William B. Gray, Asst. U. S. Atty., for defendant Romney.

Before WATERMAN, Circuit Judge, and HOLDEN and COFFRIN, District Judges.

OPINION AND ORDER

WATERMAN, Circuit Judge:

Plaintiff, a citizen of Vermont, currently resides with his wife and six children¹ in Charlotte, Vermont, in a small, substandard house containing a kitchen, living room, front room, and two small upstairs bedrooms. The house does not have indoor plumbing or running water, and it is only heated by a wood burning stove in the kitchen and a kerosene heater in the front room. During the winter the stove and heater do not provide sufficient heat to heat the entire house, and, as a result, plaintiff must board up the two upstairs bedrooms and crowd his whole family into the three small downstairs rooms where they eat, sleep, and spend much of their leisure time. Because the foundation of the house is unsafe, plaintiff has been told by the health officer of Charlotte that the house will be condemned as soon as he and his family move out.

Plaintiff earns about $75 per week as a farm laborer, a job which he has had for approximately the past ten years, and this income, supplemented with government-provided food stamps, constitutes his sole means of support.

For the past five or more years plaintiff has sought decent housing in, or around, Charlotte, but, because of his poverty and the large size of his family, he has been unable to locate a decent house which he can afford. In 1969 the State of Vermont, through the Vermont Housing Authority (VHA)² began to participate in the so-called Section 23 Leased Housing Program, which furthers the provisions of Section 23 (42 U.S.C. § 1421b) of the United States Housing Act of 1937 as amended in 1965 (42 U.S.C. §§ 1401-1430) (1970). This Section 23 leased housing program was designed as a supplementary form of low rent housing in order to provide an additional method of housing assistance for families who could not obtain public housing under earlier programs established by Sections 9 and 10 of the Housing Act. 42 U.S.C. §§ 1409-1410.³ Under the Section 23 program, housing authorities created by the states are authorized to lease suitable housing available for lease on the private housing market, and then to sublease to low income families who qualify for public housing under income standards prescribed by the housing authority, standards which must be approved by the Department of Housing and Urban Development (HUD).⁴ The low income family must pay 25% of its net income, determined on the basis of a federal formula, as its share of the rent, and the state-created housing authority pays the remainder of the rent out of federal funds. The purpose of the program is to take advantage of available units on the private market for the benefit of low income families who otherwise could not afford to lease them and, who, as a result, would be forced to reside in slums, or in substandard dwellings.

When Congress created the leased housing program it specifically provided that as a condition of the operation of Section 23 in a local community a state-created housing authority must, prior to operating the program in that community, obtain the approval of the governing authority of that community.⁵ 42 U.S. C. § 1421b(a) (2). For Vermont, HUD has interpreted this provision as meaning that the VHA, before it may operate Section 23 in any town, must obtain the approval of the selectmen of that town. In 1969 the VHA had information that plaintiff was eligible to participate in the leased housing program and that he could benefit from its utilization in Charlotte. Accordingly, the VHA sent a staff member to Charlotte to attend a meeting of the selectmen so as to explain to them the operation of Section 23 and to request a selectmen's resolution of approval. For reasons which we cannot ascertain from the record, presumably because currently in dispute,⁶ the selectmen, on October 13, 1969, refused to approve the program. As a result of the selectmen's decision plaintiff Lawrence and his family have been unable since 1969 to obtain decent housing in Charlotte.

Plaintiff filed suit on behalf of himself and all others similarly situated,⁷ in federal district court for the District of Vermont on January 26, 1971, alleging that the town approval requirement is invalid because it is in conflict with Section 23(a)(2) of the Housing Act, and also because it denies plaintiff his constitutional right to equal protection under the Fifth and Fourteenth Amendments to the United States Constitution. Naming the Commissioners and the Executive Director of the VHA as state defendants, and the Secretary of HUD as the federal defendant, he sought an injunction against the enforcement of the town approval requirement in the statute, and a declaration of invalidity of that portion of the statute. He also alleged that the district court had subject matter jurisdiction under 28 U.S.C. §§ 1331(a), 1343(3) and 1343 (4).⁸

On March 29, 1971 the defendant Secretary moved to dismiss the complaint on jurisdictional grounds. He argued that, as against the federal defendant, jurisdiction did not exist under 28 U.S.C. § 1343(3), for the Secretary, in requiring town approval, was not acting under color of state law, but, rather, was acting pursuant to a federal statute, and that jurisdiction did not exist under 28 U.S.C. § 1343(4) because the United States Housing Act was not an Act of Congress "providing for the protection of civil rights." With reference to the plaintiff's allegation that jurisdiction existed under 28 U.S.C. § 1331(a), the Secretary argued that the jurisdictional amount of $10,000 was lacking.

On June 5, 1972, Judge Holden, in a written Memorandum and Order, determined that jurisdiction existed under 28 U.S.C. § 1331(a), and he denied the defendant Secretary's motion to dismiss.⁹ Thereafter the Secretary filed a motion for summary judgment, and the plaintiff filed a counter motion requesting the empanelling of a three judge court pursuant to 28 U.S.C. § 2282 to entertain his attack upon Section 23(a)(2).¹⁰ By written order dated March 6, 1973, Judge Holden denied the defendant's motion without prejudice and granted the plaintiff's motion for the empanelling of a three judge court. On April 3, 1973 the three judge court convened in Montpelier, Vermont, and entertained oral arguments from all parties to the litigation. The court has also received, and now has before it, a Stipulation Respecting Admissibility of Evidence, dated April 3, 1973, affidavits, a stipulation of facts signed by all legal counsel, and various Exhibits, all specifically agreed to as part of the record in the April 3 stipulation. The court also has before it extensive legal briefs submitted before and after oral argument. At the hearing on April 3, the court granted, on the ground that the issues involved in the allegations against the Selectmen of Charlotte differed substantially from the issues involved in the determination of the constitutionality of Section 23(a) (2), the selectmen's motion to sever (see n. 9). See Hobson v. Hansen, 256 F.Supp. 18 (D.C.Cir.1966). As to the remaining substantive claims, and the various jurisdictional issues first raised before Judge Holden and now raised for a second time before the three judge court, we reserved decision on the merits.

I

We will first examine the federal defendant's claim that this court lacks subject matter jurisdiction over the claims pleaded against the Secretary of HUD. As noted above, Chief Judge Holden has already ruled, in an Order dated June 5, 1972, that the district court had jurisdiction under 28 U.S.C. § 1331(a). Now the defendant Secretary seeks to reopen this question, essentially alleging that Judge Holden, when he made his previous ruling, erred in holding that the "matter in controversy" exceeded $10,000. Inasmuch as the question raised is substantial, and inasmuch as it goes to the power of this court to adjudicate the claims before it, we will consider it for a second time, despite our reluctance to reopen an issue that has already been decided by Judge Holden. See 1 J. Moore, Federal Practice, 0.60 4 (2 ed. 1965). Having fully examined the record, we find that the "matter in controversy" in this litigation clearly exceeds $10,000, and we hold that we have subject matter jurisdiction under 28 U.S.C. § 1331.

In a case arising under the general federal question statute, and especially in one involving the legality of an act of a federal officer (see Aguayo v. Richardson, 473 F.2d 1090, 1102 (2 Cir. 1973)), the court should not dismiss the complaint for lack of subject matter jurisdiction unless it concludes, to a legal certainty, that the "matter in controversy" does not meet the jurisdictional prerequisite. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 289, 58 S.Ct. 586, 82 L.Ed. 845 (1938); City of Boulder v. Snyder, 396 F.2d 853, 856 (10 Cir. 1968), cert. denied, 393 U.S. 1051, 89 S.Ct. 692, 21 L.Ed.2d 693 (1969); Cortright v. Resor, 325 F.Supp. 797 (E.D.N.Y.1971), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972). In his complaint plaintiff has alleged that the "matter in controversy" exceeds $10,000, and we have found no evidence in the record to indicate that plaintiff has made this allegation with less than total good faith, see Firemans Fund Insurance Co. v. Railway Express Agency, 253 F.2d 780 (6 Cir. 1958); McDonald v. Patton, 240 F.2d 424, 425 (4 Cir. 1957), or that, on a reasonable view of the facts, the amount in controversy...