N. A. A. C. P., Boston Chapter v. Harris

• Decision Date: 18 October 1979
• Docket Number: Nos. 79-1051,79-1114,s. 79-1051
• Citation: 607 F.2d 514
• Parties: N. A. A. C. P., BOSTON CHAPTER, et al., Plaintiffs, Appellants, v. Patricia HARRIS et al., Defendants, Appellees. LATINOS UNIDOS DE CHELSEA EN ACCION, INC., et al., Plaintiffs, Appellants, v. Patricia HARRIS, etc., et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 514

607 F.2d 514

N. A. A. C. P., BOSTON CHAPTER, et al., Plaintiffs, Appellants, v. Patricia HARRIS et al., Defendants, Appellees.

LATINOS UNIDOS DE CHELSEA EN ACCION, INC., et al., Plaintiffs, Appellants, v. Patricia HARRIS, etc., et al., Defendants, Appellees.

Nos. 79-1051, 79-1114.

United States Court of Appeals First Circuit.

Argued May 10, 1979.

Decided Oct. 18, 1979.

Alan Jay Rom, Boston, Mass., for plaintiffs, appellants in both cases.

Thomas I. Atkins, Boston, Mass., with whom Atkins & Brown, Edward J. Barshak, Boston, Mass., Natasha C. Lisman, Katherine S. McHugh, Sugarman, Rogers, Barshak & Cohen, Boston, Mass., Judith S. Bernstein, Chicago, Ill., and Mark S. Brodin, Boston, Mass., were on brief, for plaintiffs, appellants in No. 79-1051.

Roger Mervis, Karen Kruskal, Chelsea, Mass., Frank Smizik, Pittsburgh, Pa., Richard Allen, Daniel B. Bickford, Stuart T. Rossman, and Gaston, Snow & Ely Bartlett, Boston, Mass., were on brief, for plaintiffs, appellants in No. 79-1114.

Richard D. Glovsky, Asst. U. S. Atty., Chief, Civ. Div., Boston, Mass., with whom Edward F. Harrington, U. S. Atty., Boston, Mass., was on brief, for defendants, appellees.

Before CAMPBELL and BOWNES, Circuit Judges, and DEVINE, ^* District Judge.

LEVIN H. CAMPBELL, Circuit Judge.

Plaintiffs brought these two civil rights actions against officials of the Department of Housing and Urban Development (HUD) challenging the disbursement of federal funds to the cities of Boston and Chelsea, Massachusetts, and seeking conditions to assure that any funds provided be used in a non-discriminatory manner. Plaintiffs maintain that HUD's actions with respect to the cities' requests for money under the Community Development Block Grant (CDBG) program, 42 U.S.C. §§ 5301-5317, and the Urban Development Action Grant (UDAG) program, 42 U.S.C. § 5318, violate HUD's duty to ensure minorities equal access to the benefits of funded projects. The district court dismissed for lack of standing the portion of each complaint relating to UDAG funds ¹ and entered partial judgments for the defendants under Fed.R.Civ.P. 54(b). These appeals followed.

The Housing and Community Development Act of 1977 established a new program UDAG for funneling federal dollars to the nation's hard-pressed cities. The Act authorizes annual funding of $400 million for three years. Cities submit project proposals to HUD designed to "take advantage of unique opportunities to attract private investment, stimulate investment in restoration of deteriorated or abandoned housing stock, or solve critical problems resulting from loss of employment or chronic unemployment in the community." H.R. Rep. No. 95-236, 95th Cong., 1st Sess. 9, Reprinted in (1977) U.S.Code Cong. & Admin.News, pp. 2884, 2892. Projects are expected to combine public and private resources.

The Act provides that only municipalities "that have, in the determination of the Secretary, demonstrated results" in housing low and moderate income citizens and in providing equal opportunity for minorities are eligible for UDAG funds. 42 U.S.C. § 5318(b). The Secretary is not required to fund all the proposals submitted by eligible cities. The Act instructs the Secretary to select projects on the basis of at least nine criteria, with primary focus on the comparative degree of physical or economic distress of applicant cities. § 5318(e). HUD itself has promulgated regulations concerning eligibility of applicants, 24 C.F.R. § 570.452, and criteria for selection of projects, 24 C.F.R. § 570.457.

1. The Boston Grants

Shortly after passage of the 1977 Act, Boston submitted an application for $27.46 million for four proposed projects: the Charlestown shipyard, the South Boston industrial park, Lafayette Place downtown, and Blue Hill Avenue in Roxbury. It is alleged in the complaint that HUD received a report in February 1978 from the Massachusetts Commission Against Discrimination (MCAD) ² recommending that HUD not approve the UDAG proposals without imposing "specific conditions" relating to equal employment and housing. In March, two public interest groups, including co-counsel in the present case, filed an administrative complaint challenging HUD's determination that Boston was eligible for funds as a city that had "demonstrated results" in providing opportunities to minority group members.

On April 6, 1978 HUD informed Boston that it had approved $2.48 million for Charlestown and $8 million for Lafayette Place. ³ As indicated in the affidavit of Margaret B. Sowell, deputy director of HUD's UDAG office, actual funding was contingent on HUD and Boston entering into a formal contract called a Funding Approval, containing the terms and conditions HUD intended to place on the funds. The record does not establish what conditions HUD actually imposed, but Sowell's affidavit states that HUD intended to require "at a minimum," firm commitments from private investors, environmental clearances, a legal opinion that private investor commitments were binding, and a compliance schedule for performance. See 24 C.F.R § 570.458(c). There is no indication HUD contemplated imposing any conditions relating to equal opportunity or affirmative action.

On April 17, 1978 the National Association for the Advancement of Colored People (NAACP) and nine black residents of Boston filed this suit in the district court, complaining that HUD's approval of the UDAG projects, together with its actions regarding the CDBG program, violated the plaintiffs' statutory and constitutional rights. ⁴ Plaintiffs' motion for a temporary restraining order was denied on August 3, 1978. The district court found with regard to the UDAG funds that plaintiffs probably lacked standing. ⁵ An essential requirement of Article III, the court said, is that the remedy requested by the plaintiff be one that is likely to redress the asserted injury. Since the granting of UDAG funds is supposedly conditioned on a city's past performance in providing equal opportunity, acceptance of plaintiffs' allegations would preclude redress. "If this court were to grant the relief requested, the city of Boston would be denied UDAG funds at the present time and it is purely speculative that plaintiffs and other Boston residents would materially benefit from these UDAG funds in the future," the court stated. Subsequently, on January 2, 1979 the district court granted defendants' motion to dismiss "so much of the complaint as seeks relief with respect to the release of UDAG funds," stating:

"In my opinion, the plaintiffs do not have standing, for the reasons stated in my denial of the motion for a temporary restraining order. While, as plaintiff says, the defendants could, and possibly should have, conditioned the grant on the enforcement of nondiscriminatory employment practices in the several projects, this is not a statutory condition of the grant."

2. The Chelsea Grants

The city of Chelsea applied for $12.73 million in UDAG funds in February 1978. The city's proposal called for renovation of the former Chelsea Naval Hospital site, including construction of luxury housing by a private developer and of subsidized low-income housing for the elderly. This proposal was reviewed by the Massachusetts Commission Against Discrimination, See note 2 Supra, which recommended conditional approval subject to imposition of specific equal opportunity conditions. In particular, MCAD suggested Chelsea should be required to provide more low-income housing for younger families, in light of the high proportion of minorities among the nonelderly population. 1978 HUD informed Chelsea's mayor that the city had been found eligible for UDAG funds. Plaintiffs allege that on August 1, 1978 although plaintiffs' administrative complaint and the MCAD review were still pending HUD unconditionally approved Chelsea's amended application for $6.7 million.

Latinos Unidos de Chelsea En Accion, Inc. (LUCHA), a group representing Hispanic residents of Chelsea, and four individual Hispanic residents filed suit in the district court on October 18, 1978, to challenge HUD's approval of the UDAG application, and its actions regarding Chelsea's CDBG funding. On February 22, 1979 the district court denied plaintiffs' motion for a temporary restraining order and dismissed the UDAG claim altogether, referring to its earlier decision in NAACP v. Harris. As in NAACP, the district court entered partial judgment under Fed.R.Civ.P. 54(b), permitting immediate appeal in this court.

I.

These appeals present the narrow issue whether the district court erred in dismissing the two complaints on the sole ground that plaintiffs all lacked standing. The heart of the standing doctrine as it has developed over the past two decades is the requirement that a plaintiff have a "personal stake" in the outcome of the lawsuit, evidenced by the existence of "injury in fact." See Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 72, 98 S.Ct. 2620, 57 L.Ed.2d 595 (1978); Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152-53, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). "As refined by subsequent reformulation, this requirement of a 'personal stake' has come to be understood to require not only a 'distinct and palpable injury,' to the plaintiff, . . . but also a 'fairly traceable' causal connection between the claimed injury and the challenged conduct." Duke Power, 438 U.S. at 72, 98 S.Ct. at 2630. And the latter requirement is said to imply a third: namely, "a showing that there is a 'substantial likelihood' that the relief requested will redress the injury claimed." 438 U.S. at 75 n. 20, 98 S.Ct. at 2631 n. 20. See also City of Hartford v. Towns of Glastonbury, 561 F.2d 1032, 1050 (2d Cir. 1976) (en banc).

Each of these interrelated requirements has recently been discussed by the Supreme Court. In O'Shea v. Littleton, 414 U.S. 488, 94 S.Ct....