McClellan v. University Heights, Inc., Civ. A. No. 4707.

• Court: United States District Courts. 1st Circuit. United States District Courts. 1st Circuit. District of Rhode Island
• Writing for the Court: Edward J. Regan, Providence, R. I., for defendants
• Citation: 338 F. Supp. 374
• Parties: Eva M. McCLELLAN and Harriet Wiggins, individually and on behalf of all others similarly situated v. UNIVERSITY HEIGHTS, INC., et al.
• Decision Date: 15 February 1972
• Docket Number: Civ. A. No. 4707.

338 F. Supp. 374

Eva M. McCLELLAN and Harriet Wiggins, individually and on behalf of all others similarly situated
v.
UNIVERSITY HEIGHTS, INC., et al.

Civ. A. No. 4707.

United States District Court, D. Rhode Island.

February 15, 1972.

338 F. Supp. 375

John M. Roney and Bernard Grossberg, R. I. Legal Services, Inc., Providence, R. I., for plaintiffs.

Edward J. Regan, Providence, R. I., for defendants.

OPINION

PETTINE, Chief Judge.

This action seeks to explore the restraints imposed by the Due Process clause upon landlords of certain federally-assisted housing in evicting their tenants on expiration of leases. Two such tenants, Eva McClellan and Harriet Wiggins, individually and as representatives of a class, seek declaratory and injunctive relief from their threatened eviction from University Heights, an apartment complex financed by mortgage loans guaranteed through § 221(d) (3) of the National Housing Act, 12 U.S. C. § 1715l(d) (3).

They cannot be evicted, they assert, consonant with the Fifth and Fourteenth Amendments, except for good cause and notice and opportunity for a full, fair and impartial hearing as to the existence

338 F. Supp. 376

and sufficiency of the reasons for such eviction. Both have been leasehold tenants at University Heights since mid-1968 and both were notified that their leases would not be renewed in the Fall of 1971. Their requests for statements of reasons and hearings on the decisions not to renew were refused

Jurisdiction is asserted under 28 U.S. C. §§ 1331, 1343(3) and 1343(4). The amount in controversy is alleged to exceed $10,000.

A temporary restraining order, entered by consent of the parties, has forestalled the threatened eviction. Plaintiffs have moved for a preliminary injunction.

Defendants have moved to dismiss, arguing (1) that the complaint fails to state a claim on which relief can be granted because they are not acting under color of state law as required by 42 U.S.C. § 1983, and (2) that this Court lacks subject matter jurisdiction because the matter in controversy does not exceed $10,000 and the subject matter of the complaint is solely a property right and not cognizable under 28 U.S.C. § 1343(3) or (4). A hearing was held on both motions.

Motion to Dismiss

1. Lack of Jurisdiction

A. 28 U.S.C. § 1343(3)

Defendants move to dismiss this action for lack of subject matter jurisdiction under 28 U.S.C. § 1343(3). Urging this Court to adopt the property rights/personal rights jurisdictional distinction of Eisen v. Eastman, 421 F.2d 560 (2d Cir. 1969), defendants argue that the only interest at stake here is a tenant's property interest, which under Eisen is not cognizable under § 1343(3).

In Eisen, Judge Friendly affirmed the vitality as law in the Second Circuit of dicta by Mr. Justice Stone in Hague v. C. I. O., 307 U.S. 496, 531, 59 S.Ct. 954, 971, 83 L.Ed. 1423 (1939), that 28 U.S. C. § 1343(3) applied "whenever the right or immunity is one of personal liberty, not dependent for its existence upon the infringement of property rights." Claims involving infringement of property rights, under the Eisen formulation, must meet the $10,000 jurisdictional amount of 28 U.S.C. § 1331 to find protection in federal courts. Eisen thus attempted to rationalize the overlap between two jurisdictional grants to the federal courts, 28 U.S.C. § 1331 and 28 U.S.C. § 1343(3). 421 F.2d at 565.

The difficulty of determining what is a personal right rather than a property right was recognized by the Eisen opinion, see 421 F.2d at 565, and has been borne out by the chaotic and inconsistent results flowing from application of the doctrine.¹ The effect seems to amount to a largely unprincipled² discretion in federal trial courts to take or deny jurisdiction over civil rights claims difficult to characterize as purely personal

338 F. Supp. 377

and valued at less than $10,000. While this effect in itself is sufficient to call the application of the doctrine into question, its more serious defect is that certain plaintiffs asserting constitutional rights are denied a federal forum as a matter of questionable statutory interpretation regarding district court jurisdiction. See Note, 43 N.Y.U.L.Rev. 1208 (1968). The ensuing reduction of the burden of § 1983 cases brought into federal court may or may not be a wise one in terms of considerations of federalism, see Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and of judicial economy, see Freeman v. Flake, 448 F.2d 258 (10th Cir. 1971), but cannot, I think, be justified by shaky statutory construction leading to a jurisdictional limitation

I do not read Justice Stone's opinion in Hague, supra, to necessarily lead to the use made of it in Eisen. In finding that the right to free speech encompassed by the First and Fourteenth Amendments was a personal right for which jurisdiction existed without regard to amount, Justice Stone was attempting to save § 1343 from being swallowed by § 1331, not vice versa. See Section 1343(3) Jurisdiction and the Personal-Property Right Distinction, 70 Duke L.J. 819, 837. The argument that § 1343 is not swallowed by § 1331 and its jurisdictional amount requirement because rights inherently incapable of valuation may be brought under § 1343 jurisdiction but not under § 1331 jurisdiction need not be turned, as Eisen attempted to do, into an argument that this is the only class of cases to be brought under § 1343(3).³

Of course, § 1343(3) does not literally "swallow entirely the `arising under the Constitution' part of the predecessor to § 1331," H. Hart and H. Wechsler, The Federal Courts and the Federal System 841, since § 1343(3) applies only to cases involving state action and natural persons. See Snyder v. Harris, 394 U.S. 332, 342-343 n. 2, 89 S.Ct. 1053, 22 L.Ed. 2d 319 (J. Fortas dissenting). Further reason to question the doctrine is found in the fact that the basis for the property rights/personal rights distinction is not evident on the face of § 1343(3). Federico v. Minter, Memorandum Opinion, C.A. 69-1101-J (D.Mass. July 14, 1971); Joe Louis Milk Co. v. Hershey, 243 F.Supp. 351, 354 (N.D.Ill.1965). Nor is it supported by the legislative history of § 1343(3). See Comment, 49 B.U.L.Rev. 377 (1969). Rather, the legislative history evidences an intent to provide protection for property rights under 28 U.S.C. § 1343(3).

The 1871 Ku Klux Klan Act, from which both 42 U.S.C. § 1983 and 28 U.S. C. § 1343(3) came, neither on its face nor in its history indicated there was any distinction to be made in coverage between personal and property rights. See Section 1343(3) Jurisdiction and the Property-Personal Right Distinction, 70 Duke L.J. 819, 835. The Act grew out of a Presidential message to Congress decrying the insecurity of life and property in some states and recommending legislation to "secure life, liberty, and property."⁴ In Congressional debate on the bill that was to become the predecessor

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to § 1343(3), both opponents⁵ of the bill and its proponents⁶ argued that it would open the federal courts to protection of property rights

Assuming, as I do, that the 1871 Ku Klux Klan Act intended to give the federal courts jurisdiction to remedy deprivation of property rights, the question is whether Congress intended to curtail that jurisdiction by the terms of the 1875 grant of federal question jurisdiction, now 28 U.S.C. § 1331.

Legislative history on the grant of federal question jurisdiction is sparse indeed. The bill containing the federal question grant was primarily concerned with the removal jurisdiction of the federal courts and little attention was paid to the federal question grant. Perhaps the reason for inclusion of the federal question grant is to be found in the records of the Congressional debate, in the reply of Mr. Carpenter to an attack by Bayard of Delaware. Carpenter argued that the First Judiciary Act of 1789, in failing to give the full scope of judicial power granted by the Constitution, was "substantially in contravention of the Constitution."

"Mr. BAYARD. Is the act of 1789 in contravention of the Constitution?

Mr. CARPENTER. I think it is substantially in contravention of the Constitution, and I will state why. The Constitution says that certain judicial powers shall be conferred upon the United States. The Supreme Court of the United States in an opinion delivered by Judge Story — I do not recollect now in what celebrated case it was, whether Cohens v. Virginia or some of those famous cases — said that it is the duty of the Congress of the United States to vest all the judicial power of the Union in some Federal court, and if they may withhold a part of it they may withhold all of it and defeat the Constitution by refusing or simply omitting to carry its provisions into execution."

2 Congressional Record 4986 (June 15, 1874)

Discussing the lack of attention paid to this new source of jurisdiction, commentators have noted that:

"Contemporary legal periodicals disclose no material either before or after the enactment of the legislation ... The view that the Act of 1875 was one aspect of a wide general trend of federal legislation is supported by an anonymous writer in the year of its passage, who explains it as the culmination of a movement which began with the removal legislation of 1864 to strengthen the Federal Government against the states."

Frankfurter and Landis, The Business of The Supreme Court, 65.

It would be odd indeed if the federal question jurisdiction, described in its

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legislative history as "vesting the full judicial power of the Union in some Federal court" and by commentators as the culmination of a triumphant federal power over the states, were understood to limit an earlier grant of judicial power designed to secure individual rights against the states.⁷

Reasoning as it does, this Court would find little comfort and much that is troublesome were it to accept defendants' arguments...