Liddy v. Cisneros
| Decision Date | 25 May 1993 |
| Docket Number | No. 92 Civ. 1840 (RPP).,92 Civ. 1840 (RPP). |
| Citation | 823 F. Supp. 164 |
| Parties | Marilyn LIDDY and Steven August, Plaintiffs, v. Henry CISNEROS, as Secretary and A.M. Villane, Jr. as Regional Administrator for Region II of the Department of Housing and Urban Development, New York Foundation for Senior Citizens, and 51st Capitol Associates, Defendants. |
| Court | U.S. District Court — Southern District of New York |
The Legal Aid Society, Civil Appeals and Law Reform Unit, New York City, by Michelle Adams, Jane E. Booth and Scott Rosenberg, for plaintiffs.
Roger S. Hayes, Acting U.S. Atty. for the S.D.N.Y., New York City by David Koenigsberg, Asst. U.S. Atty., Michael Robinson, Office of Legal Counsel, Dept. of Housing and Urban Development, for defendants Henry Cisneros and A.M. Villane.
Brown & Wood, New York City, by Karen Sexton, for defendant 51st Capitol Associates.
Paul, Weiss, Rifkind, Wharton & Garrison, New York City by Paul Indig, for defendant New York Foundation for Senior Citizens, Inc.
Plaintiffs Marilyn Liddy and Steven August bring this action alleging that defendants, by refusing them a preference under the section 8 Housing Assistance Payments Program, denied them their rights as disabled persons in violation of (1) section 504 of the Rehabilitation Act of 1973 ("RHA"), 29 U.S.C. § 794 (Supp.1992), (2) sections 804(f)(3)(B) and 808(e)(5) of the Fair Housing Amendments Act of 1988 ("FHAA"), 42 U.S.C. § 3601 et seq., and (3) section 553 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 553.
The parties have made the following motions:
Plaintiffs move to amend the complaint to add Yorkville Gardens Housing Development Fund Co., Inc. ("Yorkville") as a defendant.
Plaintiff Liddy moves pursuant to Rule 65(a) of the Federal Rules of Civil Procedure for preliminary injunctive relief with regard to herself alone.
Defendants Henry Cisneros (the "Secretary"), as Secretary of the United States Department of Housing and Urban Development ("HUD"), and A.M. Villane, the Regional Administrator of HUD's Region II (New York City) Office (referred to collectively as the "federal defendants"), move to dismiss the complaint pursuant to Rule 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure or in the alternative for summary judgment pursuant to Rule 56(b).
Defendant 51st Capitol Associates ("51st Capitol") moves to dismiss the complaint pursuant to Rule 12(b)(6) and Rule 56.
In opposing the motions for summary judgment, plaintiffs cross-move for a continuance pursuant to Rule 56(f).
For the reasons set forth below, defendants' motions to dismiss pursuant to Rule 12 and Rule 56 are denied, and Plaintiff Liddy's motion for preliminary injunction is denied.
Plaintiffs are handicapped individuals who currently receive the benefit of subsidized housing under the section 8 Housing Assistance Payments Program of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974, codified at 42 U.S.C. § 1437f (Supp.1992) ("section 8"). The section 8 program is administered by HUD, and its purpose is to aid lower income families most in need of housing to obtain a decent place to live. See 42 U.S.C. § 1437f(a); 24 C.F.R. § 880.101(a)(1) (1991). Section 8 authorizes the Secretary to enter into contracts to make housing assistance payments to private owners with respect to programs involving existing housing in which some or all of the units are to be leased to lower income families (sometimes referred to as "assisted tenants"). 42 U.S.C. § 1437f(a), (b). Section 8 mandates that all such contracts between HUD and private owners "shall provide ... that the selection of tenants for such units shall be the function of the owner...." 42 U.S.C. § 1437f(d)(1)(A). However, HUD prescribes the eligibility requirements for section 8 programs and has issued regulations pertaining thereto. See, e.g., 24 C.F.R. §§ 812, 813, 880.603(b).
In adhering to eligibility requirements, owners are required to comply with federal preference rules established by federal statute, 42 U.S.C. § 1437f(d)(1)(A), and HUD regulations, 24 C.F.R. § 880.613(a), (c); see Occupancy Requirements of Subsidized Multifamily Housing Programs, HUD Handbook, 4350.3, § 2-19 (Sept.1988) ("HUD Handbook"), Maitland Aff., Exh. A. Owners are required by both 42 U.S.C. § 1437f(d)(1)(A) and 24 C.F.R. § 880.613(c) to give federal preferences to three categories of applicants for section 8 subsidized housing: (1) persons occupying substandard housing, including families that are homeless or living in homeless shelters; (2) persons paying more than 50% of their income for rent; and (3) persons who are involuntarily displaced at the time they are seeking assistance. 42 U.S.C. § 1437f(d)(1)(A)(i); 24 C.F.R. § 880.613(c). Accordingly, under the existing federal preference rules governing admission, applicants for section 8 housing who qualify for one or more of the three federal preferences listed in 42 U.S.C. § 1437f(d)(1)(A)(i) and 24 C.F.R. § 880.613(c) are given priority over applicants who do not so qualify.
An applicant may claim qualification for a federal preference "by certifying to the owner that he or she qualifies for a preference under" the three categories noted above. "An owner must accept this certification, unless the owner verifies that the applicant is not qualified for a Federal preference." Id. § 880.613(c)(2). Accordingly, "before executing a lease or occupancy agreement with an applicant who has been offered assistance on the basis of a Federal preference, the owner must require the applicant to provide verification that he or she qualifies for a Federal preference." Id. § 880.613(c)(3).
If an owner of a section 8 housing project determines that an applicant for section 8 housing does not qualify for a federal preference under 24 C.F.R. § 880.613(c), the owner must provide the applicant with prompt written notice of such determination. The notice must explain the reasons for the determination, and "state that the applicant has the right to meet with the owner or the owner's designee to review it." Id. § 880.613(k).
Housing that meets the needs of handicapped persons is administered separately under the section 8 program. However, the preferences enunciated in 42 U.S.C. § 1437f(d)(1)(A) and 24 C.F.R. § 880.613(c) are also applied to that class of tenants. The regulations also provide that "the applicant may exercise other rights if the applicant believes that he or she has been discriminated against on the basis of ... handicap." 24 C.F.R. § 880.613(k). HUD regulations require that the "owner must apply the Federal preferences in a manner that is consistent" with other applicable federal requirements. 24 C.F.R. § 880.613(b). Thus, with respect to the occupancy of those units specially designed for the handicapped — the units which are the subject of this litigation — a handicapped person without one of the federal preferences under 42 U.S.C. § 1437f(d)(1)(A), but meeting the other qualifications for residence in section 8 lower income housing, must be given priority over a non-handicapped individual with a federal preference. See 53 Fed.Reg. 1122, 1130 (1988). The regulations contained in 24 C.F.R. pt. 8, entitled "Nondiscrimination Based on Handicap in Federally Assisted Programs and Activities of the Department of Housing and Urban Development," require owners of section 8 housing units which are handicap accessible to "maximize the utilization of such units by eligible individuals whose disability requires the accessibility features of the particular unit." 24 C.F.R. § 8.27(a). Thus, under the regulations the owner must first offer a handicap accessible unit to a handicapped person already living in the same project but in a non-accessible apartment. Thereafter, the owner can offer this unit "to an eligible qualified applicant on the waiting list having a handicap requiring the accessibility features of the vacant unit." 24 C.F.R. § 8.27(a)(1), (2).
Other than federal defendants Cisneros and Villane, the parties are the following:
Putative defendant Yorkville is a non-profit organization which owns Yorkville Gardens, an apartment building located at 225 East 93rd Street in Manhattan, New York which has been federally subsidized by HUD since May 1, 1985, pursuant to section 8.
New York Foundation for Senior Citizens, Inc. (the "Foundation") is a non-profit agency located throughout New York City which serves New York City's elderly citizens and that sponsors Yorkville Gardens for the section 8 program.
Defendant 51st Capitol is the owner of Capitol Apartments, a housing development located at 840 8th Avenue in Manhattan, New York which is subsidized through HUD's section 8 New Construction program. Marilyn Liddy
Since 1974, Ms. Liddy has resided in a section 8 housing project, the Wardell Apartments ("Wardell"), located in Astoria,...
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