Santiago v. CORPORACION DE RENOVACION URBANA, ETC., 71-1079.

• Decision Date: 05 January 1972
• Docket Number: No. 71-1079.,71-1079.
• Citation: 453 F.2d 794
• Parties: Carmen Maria SANTIAGO et al., Plaintiffs-Appellants, v. CORPORACION DE RENOVACION URBANA Y VIVIENDA DE PUERTO RICO et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

453 F.2d 794 (1972)

Carmen Maria SANTIAGO et al., Plaintiffs-Appellants, v. CORPORACION DE RENOVACION URBANA Y VIVIENDA DE PUERTO RICO et al., Defendants-Appellees.

No. 71-1079.

United States Court of Appeals, First Circuit.

Heard November 15, 1971.

Decided January 5, 1972.

A. G. Hermida, Rio Piedras, P. R., for appellants.

Berta Font De Estades, for appellees.

Before COFFIN, Circuit Judge, VAN OOSTERHOUT^*, Senior Circuit Judge, and STEPHENSON*, Circuit Judge.

VAN OOSTERHOUT, Senior Circuit Judge.

This is an appeal by the multiple plaintiffs in an action brought on June 15, 1970, on their own behalf and for persons similarly situated, from the dismissal of their complaint against Corporacion de Renovacion Urbana Y Vivienda de Puerto Rico, et al., hereinafter CRUV (Puerto Rico's urban renewal and housing agency), its executive director, and the members of its board of directors.

Plaintiffs seek declaratory and injunctive relief from the following asserted practices of CRUV:

"(a) of not permitting certain persons desiring and entitled to public housing to file applications for such public housing, without giving any grounds for such action; (b) of accepting applications for public housing made by persons desiring and entitled to same, and then either not taking any action on such applications or denying such applications, without giving any grounds for their action or lack of action; (c) of refusing to act on applications made by persons already residing in public housing projects who desire and are entitled to a transfer from one apartment (or project) to another, without any grounds for their refusal to act."

It is asserted that such practices engaged in under the color of state law violate plaintiffs' federal constitutional rights to due process and equal protection of the law, and that such practices fail to conform to the regulations and instructions promulgated by HUD which are binding upon defendants.

This action is brought under 42 U.S. C.A. § 1983; jurisdiction is based on 28 U.S.C.A. § 1343(3) and (4), and 28 U. S.C.A. §§ 2201, 2202.

Plaintiffs seek the convocation of a three-judge court, pursuant to 28 U.S.C. A. §§ 2281 and 2284, upon the basis that the federal constitutional violations asserted are bottomed upon unconstitutional state statutes and statewide administrative regulations authorized by state law.

No interlocutory or temporary relief was sought in the complaint. Subsequently on July 2, 1970, one of the individual plaintiffs, Santiago, on behalf of herself only, filed a motion for temporary restraining order. The court entered an order, dated July 1, 1970, requiring defendants to show cause why a three-judge court should not be convened and why a preliminary injunction should not be granted as requested. Hearing thereon was set for July 9. Defendants on July 9 filed a motion to dismiss and/or in opposition to a three-judge court and preliminary injunction. Said motion asserts that the plaintiffs' petition does not raise a substantial constitutional question and hence no three-judge court should be convened; that no preliminary injunction is appropriate; that all actions of CRUV have been taken in good faith; that there is not enough housing to meet demands; that any mistakes made have been unintentional; and that proper service has not been made.

Hearing was held on the show-cause order on July 9. Arguments were made and briefs were submitted. Plaintiffs' counsel requested an opportunity to present evidence in support of the Santiago request for a temporary restraining order. Evidence was presented on this limited issue by both parties. Such evidence related principally if not exclusively to the factual situation with respect to Santiago and did not develop the facts relating to the other plaintiffs. The issues submitted were taken under advisement.

An order of the court dated December 29, 1970, filed December 30, makes findings of fact and the conclusion of law that none of the violations alleged by plaintiffs were committed and that the problem was one of nonavailability of dwellings, and that no constitutional question was involved. The case was dismissed.

Plaintiffs on January 8, 1971, filed a motion to amend or vacate the judgment, pursuant to Rule 59(e), Fed.R.Civ.P., urging the action could be dismissed only by a three-judge court; and more importantly, that the dismissal could not be based upon testimony offered and received solely for the purpose of supporting the Santiago application for temporary restraining order, absent notice that the court was treating the hearing as one on the merits. The motion was overruled on January 15. This timely appeal followed.

The court did not expressly pass on the Santiago application for temporary restraining order. The order dismissing the action carried with it an implied dismissal of such request. Plaintiffs expressly state in their brief that they are not contesting the denial of the restraining order. Hence, such issue is not before us.

The issues before us are:

I. Did the court correctly determine that no three-judge court was required and that a single judge has jurisdiction to dismiss the action.

II. Did the court err in dismissing the action.

I.

The court properly determined that no three-judge court is required. Twenty-eight U.S.C.A. § 2281 provides that a single judge cannot issue an interlocutory or permanent injunction "restraining the enforcement, operation or execution of any State statute by restraining the action of any officer of such State in the enforcement or execution of such statute or of an order made by an administrative board or commission acting under State statutes, * * * upon the ground of the unconstitutionality of such statute * * *," and that such action can only be taken by a three-judge court constituted under 28 U.S.C.A. § 2284.

It is proper for a single judge to whom the request for a three-judge court is made to determine whether a substantial constitutional attack is made upon a state statute or a state-wide regulation such as to require the convening of a three-judge court. Ordinarily such determination will be made upon the basis of the pleadings. Ex parte Poresky, 290 U.S. 30, 54 S.Ct. 3, 78 L.Ed. 152.

In our present case, plaintiffs, in their brief or elsewhere, have not pointed out any specific provision of a state statute or regulation which they claim to be unconstitutional. Rather their claim appears to be that the state statutes and regulations do not go far enough in spelling out the procedure required. We adopt the responses made to a similar attack in a similar situation by the Second Circuit in Johnson v. Harder, 2 Cir., 438 F.2d 7, 13, where it is...