Powelton Civic Home Own. Ass'n v. DEPARTMENT OF H. & U. DEV.

• Decision Date: 22 April 1968
• Docket Number: Civ. A. No. 44197.
• Citation: 284 F. Supp. 809
• Parties: POWELTON CIVIC HOME OWNERS ASSOCIATION by Hilburn Harbidge, Trustee ad litem and Carl W. Johnston, for Himself and for All Others Similarly Situated and Eva Novotny, for Herself and for All Others Similarly Situated v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Warren P. Phelan, Regional Administrator, Region II, Department of Housing and Urban Development, Robert C. Weaver, Secretary, Department of Housing and Urban Development, and Philadelphia Redevelopment Authority, Gustave Amsterdam, Chairman, Francis Lammer, Executive Director.
• Court: U.S. District Court — Eastern District of Pennsylvania

284 F. Supp. 809

POWELTON CIVIC HOME OWNERS ASSOCIATION by Hilburn Harbidge, Trustee ad litem and Carl W. Johnston, for Himself and for All Others Similarly Situated and Eva Novotny, for Herself and for All Others Similarly Situated v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, Warren P. Phelan, Regional Administrator, Region II, Department of Housing and Urban Development, Robert C. Weaver, Secretary, Department of Housing and Urban Development, and Philadelphia Redevelopment Authority, Gustave Amsterdam, Chairman, Francis Lammer, Executive Director.

Civ. A. No. 44197.

United States District Court E. D. Pennsylvania.

Order February 27, 1968.

Supplemental Order February 29, 1968.

Memorandum and Order April 8, 1968.

Opinion and Order April 11, 1968.

Opinion and Order April 19, 1968.

Supplementary Order April 22, 1968.

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Arsen Kashkashian, Jr., and Alexander Brodsky, Philadelphia, Pa., and Jan Krasnowiecki, Philadelphia, Pa., of counsel, for plaintiffs.

Paul Shalita, Philadelphia, Pa., for Philadelphia Redevelopment Authority.

Drew J. T. O'Keefe, U. S. Atty., and Merna Marshall, Asst. U. S. Atty., Philadelphia, Pa., for Dept. of Housing & Urban Development and Phelan & Weaver.

ORDER

BODY, District Judge.

AND NOW, this twenty-seventh day of February, 1968, the following orders in the above-captioned action shall be entered:

(1) The defendants' motions to dismiss the plaintiffs' action will be and hereby are GRANTED insofar as the plaintiffs' action rests on alleged violations of the Civil Rights Act of 1964, Title 42 U.S.C. ? 2000d-1; however, insofar as the plaintiffs' action rests on the defendants' alleged violations of the National Housing Act of 1949 as amended, Title 42 U.S.C. ?? 1441-1465, and of the United States Constitution, the defendants' motions to dismiss will be and hereby are DENIED.

(2) The plaintiffs' request for an order directing the federal defendants to afford the plaintiffs an adjudicatory hearing under Section 5 of the Administrative Procedure Act, Title 5 U.S.C. ? 554, or alternatively, directing the defendants to afford the plaintiffs any other appropriate hearing will be and hereby is DENIED.

(3) The plaintiffs' request that the Court issue a temporary injunction restraining and enjoining the defendants Robert C. Weaver, Warren P. Phelan, and the Department of Housing and Urban Development from providing any financial assistance to University City Unit No. 5, Urban Renewal Project No. Pa. R.-186, until a decision has been rendered upon the plaintiffs' complaint will be and hereby is GRANTED.

(4) The plaintiffs' alternative request that the Court review the merits of the federal defendants' substantive decision that the minimum requirements of Title 42 U.S.C. ? 1441 et seq., have been satisfied will be and hereby is DENIED.

(5) The defendants shall answer the plaintiffs' complaint within ten (10) days after notice of the orders here entered. Fed.R.Civ.P. 12(a).

An explanatory opinion discussing fully the orders here entered will be filed forthwith.

SUPPLEMENTAL ORDER

AND NOW, this twenty-ninth day of February, 1968, it appearing that our order in the above-captioned matter dated February 27, 1968 requires clarification, the following is added:

In their complaint, the plaintiffs alleged several injuries and requested alternatively several forms of relief. This Court, in its order of February 27, 1968, dismissed all of the plaintiffs' claims save one: the alleged right to submit written and documentary evidence to the Administrator of the Department of Housing and Urban Development, and to have the Administrator consider such evidence in determining whether the University City Unit No. 5 project satisfied the requirements of the 1949 National Housing Act, as amended. 42 U.S.C. ? 1441 et seq. The Court believes that the plaintiffs have standing to raise this procedural issue. In order to protect its jurisdiction and to avoid the threat of mootness, the Court considered it necessary to grant the plaintiffs' request for a preliminary injunction pending the defendants' answers to the plaintiffs' sole remaining claim and pending the Court's decision on the merit of that claim in this particular case.

As noted in our previous order, an opinion discussing fully all aspects of the February 27 order will be filed forthwith.

MEMORANDUM AND ORDER

The Philadelphia Redevelopment Authority, one of the named party defendants in the above-captioned action, has filed alternative motions requesting either that the Court reconsider its orders of February 27, 1968 and February 29, 1968; or that the Court require the plaintiffs to post security as provided in F.R.Civ.P. No. 65. Additionally, the Philadelphia Redevelopment Authority requests an evidentiary hearing before this Court in order to determine the appropriate amount of the plaintiffs' bond.

Our orders of February 27 and 29, 1968, granted a preliminary injunction sought by the plaintiffs. The preliminary injunction was to continue until such time as this Court had finally ruled on the plaintiffs' right to permanent injunctive relief. The only impediment to such final ruling is the absence of the defendants' answer to the facts alleged in the plaintiffs' complaint; the defendants have chosen instead to file various motions contesting the legality of the orders already entered by the Court.

The preliminary injunction granted by the Court was not accompanied by an explanatory opinion. We felt that the injunction was necessary in order to protect our own jurisdiction and in order to protect the plaintiffs' claim from the threat of mootness. We also felt that the plaintiffs' complaint had alleged a cause of action sufficiently meritorious to withstand the defendants' motions to dismiss. Therefore it was necessary to issue the preliminary injunction order as soon as possible, if our jurisdiction and the plaintiffs' cause of action were to be adequately protected. However, because the issues involved in the defendants' motion to dismiss were many and complex, we decided to explain our orders in a detailed, comprehensive opinion; that opinion is immediately forthcoming.

However, the Philadelphia Redevelopment Authority requested reconsideration of our order or, alternatively, a giving of security by the plaintiffs. The Court intended to rule upon these motions after issuing its opinion explaining its original orders. However, we have been notified that the Redevelopment Authority is now seeking appellate review of our orders in the Third Circuit. In order that the appellate court may have the fullest understanding of the posture of the litigation at this time, we will now rule on the Redevelopment Authority's motions.

Our orders of February 27 and 29, 1968, granted preliminary injunctive relief only against Secretary Weaver and Regional Administrator Phelan. The orders restrained the Secretary and the Regional Administrator from disbursing federal funds to the Philadelphia Redevelopment Authority. The orders themselves did not restrain the Philadelphia Redevelopment Authority in any way whatsoever. At no time in this action have the plaintiffs sought any relief against the Redevelopment Authority. nor has this Court granted any relief against the Redevelopment Authority. We have been concerned only with the legality under federal law of the disbursement of federal funds by federal officers. As the plaintiffs explained in their brief and at oral argument, the Philadelphia Redevelopment Authority was named as a party defendant merely as a courtesy and in order to allow the Court to hear the local agency's point of view. They were not indispensable defendants; nor have they been legally affected by our decision in this case.

Under these circumstances, it is clear that the Philadelphia Redevelopment Authority is not entitled to demand that the plaintiffs post security. F.R.Civ. P. No. 65(c), on "Security", specifies that the security posted upon the issuance of a preliminary injunction shall be:

"In such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained.

(Emphasis added). The underlined portion of the above rule explicitly describes the parties who may seek a bond. The Redevelopment Authority may or may not suffer financial loss if the federal funds here have been wrongfully enjoined; that financial loss may or may not have been due to its own conduct. These issues we do not resolve. It is clear that the Redevelopment Authority has not been enjoined by this Court; thus it cannot have been wrongfully enjoined; and therefore it is not entitled to demand security under F.R.Civ.P. No. 65(c).

The Redevelopment Authority's motion for reconsideration rests on two grounds: (1) the plaintiffs have already been afforded a procedural opportunity to submit documentary evidence to Secretary Weaver and thus their claim to such relief is moot; (2) the plaintiffs did not request a preliminary injunction in their complaint and thus no such relief should be granted until the plaintiffs have demonstrated their need for such relief at an evidentiary hearing.

First, since no legal relief has been granted against the Redevelopment Authority, we do not believe that the agency has standing to request reconsideration of our orders. Second, from the facts alleged in the plaintiffs' complaint, we do not believe that the plaintiffs have been afforded the procedural opportunity which they have requested; Secretary Weaver authorized the grant contract before he offered the plaintiffs an opportunity to "discuss" the legality of the contract with Regional Administrator Phelan; nor were the plaintiffs ever offered an adequate opportunity to reduce such oral testimony as they might have to documentary form. Third, the plaintiffs' complaint clearly indicated...