Young v. Pierce

• Decision Date: 31 July 1985
• Docket Number: Civ. A. No. P-80-8-CA.
• Citation: 628 F. Supp. 1037
• Parties: Lucille YOUNG, et al., Plaintiffs, v. Samuel PIERCE, Jr., et al., Defendants.
• Court: U.S. District Court — Eastern District of Texas

628 F. Supp. 1037

Lucille YOUNG, et al., Plaintiffs, v. Samuel PIERCE, Jr., et al., Defendants.

Civ. A. No. P-80-8-CA.

United States District Court, E.D. Texas, Paris Division.

July 31, 1985.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Michael M. Daniel, Elizabeth K. Julian, Julian & Daniel, P.C., Dallas, Tex., for plaintiffs.

David Deutsch, HUD, Washington, D.C., Charlene Berry, HUD, Ft. Worth, Tex., Steven M. Mason, Asst. U.S. Atty., Tyler, Tex., Robert Wolff, Dept. of Justice, Washington, D.C., for defendants.

ORDER

JUSTICE, Chief Judge.

Plaintiffs in this class action allege that defendant, the United States Department of Housing and Urban Development ("HUD"), has knowingly maintained, and continues to maintain, a system of racially segregated housing in violation of the Constitution and laws of the United States. Specifically, the plaintiff class asserts that HUD, in funding and overseeing this housing, has discriminated against blacks in violation of the Fifth Amendment to the United States Constitution; Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (prohibiting discrimination in federal programs); Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3601 et seq. (prohibiting discrimination in the provision of housing); as well as the Civil Rights Act of 1866, 42 U.S.C. §§ 1981 and 1982. The plaintiff class consists of all black applicants for, and residents of, HUD-assisted housing in thirty-six East Texas counties ("the class action counties").¹ Defendant HUD is a federal agency which participates in the provision of public housing throughout the nation. Also named as defendants are HUD's Secretary, and the Administrator of HUD's Region VI, which contains the class counties. HUD does not construct, own, or operate any housing itself. Rather, its role is essentially promotional. Through a number of programs, HUD provides significant financial support, technical assistance, and regulatory oversight for the providers of public housing.

In its submissions to the court, HUD has placed these programs under three major rubrics. First, there are "Low-Rent Public Housing Projects Under Management," that is, the public housing created in the Housing Act of 1937, as amended, 42 U.S.C. § 1437. In this program HUD funds directly a local public housing authority ("PHA"), which constructs and operates housing projects. The second category of HUD-assisted housing is denominated "Insured-Assisted Housing." This consists, first, of two programs through which HUD subsidizes mortgage insurance and interest in order to encourage the construction of low-income housing, §§ 221(d)(3) and 236 of Title II of the National Housing Act of 1934, 12 U.S.C. §§ 1715l(d)(3) and 1715z-1. The "assisted" aspect of these projects is their receipt of supplemental rental payments from HUD, pursuant to 12 U.S.C. § 1701s. The last program at issue here consists of "Section 8 New Construction" subsidies. This program provides assistance for families occupying new apartments, Section 8 of Housing and Community Development Act of 1974, 42 U.S.C. § 1437f, by making rental payments to landlords. 24 C.F.R. §§ 880-881.

In the class action counties, the three major programs at issue in this litigation can best be understood as representing periods of HUD activity: until the mid-1960's, HUD created low rent projects almost exclusively; from the late 1960's until the mid-1970's, the chief form of subsidy was "Insured-Assisted Housing"; since the mid-1970's, HUD has mostly been engaged in Section 8 new housing. Charts A-C, Defendants' Motion for Summary Judgment. The Insured-Assisted and Section 8 programs, while administratively distinct, are in many cases mixed in fact. According to HUD, a number of projects have enjoyed both forms of assistance. Memorandum in Support of Defendants' Motion for Summary Judgment at 15.

This action was filed in 1980. The class was certified by this court's order of July 1, 1982. Young v. Pierce, 544 F.Supp. 1010 (E.D.Tex.1982). Since that time, the parties have conducted extensive discovery, and have agreed that the issue of liability is ripe for resolution on cross motions for summary judgment. These motions have been extensively briefed, and are accompanied by exhibits and affidavits. Defendants also seek reconsideration of this court's order certifying the class. The question of the class's viability logically precedes that of liability.

Defendants' Motion to Decertify the Class

Defendants argue that the Supreme Court's decision in General Telephone Co. v. Falcon, 457 U.S. 147, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1981), calls into question the propriety of the class in this action. Defendants further maintain that factual developments since the certification of the class warrant either decertification of the class or its recertification to include a greatly reduced area.

In Falcon, the Supreme Court partially invalidated the "across-the-board" Title VII class action certifications which had previously been allowed by the United States Court of Appeals for the Fifth Circuit. Pursuant to the "across-the-board" doctrine, a Title VII plaintiff seeking to represent a class, against which an employer had allegedly discriminated on sexual or racial grounds, was allowed to challenge "across-the-board" all aspects of the employer's discriminatory policy. Id. at 154, 102 S.Ct. at 2368, 72 L.Ed.2d 740, quoted in Payne v. Travenol Laboratories, Inc., 565 F.2d 895 (5th Cir.), cert. denied, 439 U.S. 835, 99 S.Ct. 118, 58 L.Ed.2d 131 (1978); see also Johnson v. Georgia Highway Express, Inc., 417 F.2d 1122, 1123, 1124 (5th Cir.1969). In the Falcon opinion, the Supreme Court specifically disapproved the inference, allowable under the "across-the-board" doctrine, that an allegation of discrimination against an individual in one area of employment, such as promotions, indicates that the employer has a general policy of discrimination which is manifested in all other aspects of the employer's business, such as hiring, firing, and pay. The Falcon Court treated the "across-the-board" doctrine as an impermissible exception to the commonality and typicality requirements of Fed.R.Civ.P. 23, and reaffirmed that "a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied." Id. at 161, 102 S.Ct. at 2372; see also Vuyanich v. Republic National Bank, 723 F.2d 1195 (5th Cir. 1984).

Defendants argue that "in Falcon the Supreme Court not only rejected the across-the-board rule as applied to Title VII claims in cases such as Johnson, it also restated and refined the requirements of Rule 23 as applied to all proposed class actions." Motion to Decertify Class at 4. While it is true that the Falcon case restated the requirements of Rule 23—as do many cases dealing with class action certification—, this court is unable to discern any change by the Falcon Court of the substantive requirements of Rule 23. See Carpenter v. Stephen F. Austin State University, 706 F.2d 608, 616 (5th Cir.1983) ("In Falcon, the Supreme Court holds that proposed class representatives must satisfy each of the Fed.R.Civ.P. 23 requirements, thereby limiting `the class claims to those fairly encompassed by the named plaintiffs' claims'", quoted in Falcon, 457 U.S. at 156, 102 S.Ct. at 2370); Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir.1983) (same). The holding in Falcon was that shortcuts in fulfilling these requirements are not allowed. The focus of defendants' argument for decertification is that this court, in certifying the class, relied on the shortcut of the "across-the-board" doctrine invalidated in Falcon, and that the class in this action does not meet the plain requirements of Rule 23.

In the order certifying the class in this action, the court used the "across-the-board" doctrine as an analogy to the facts here. Young v. Pierce, 544 F.Supp. 1010, 1030 (E.D.Tex.1982). The action was not, however, certified as an "across-the-board" action; that doctrine itself has relevance only to employment-related actions under Title VII. The plaintiffs do not seek to challenge HUD's actions "across-the-board." Rather, plaintiffs charge that HUD pays for discrimination, rather than fulfilling its duty to eradicate it, and that this payment is illegal. Defendants vigorously maintain that this allegation challenges their actions "across the board," as it includes numerous different public housing sites and three administratively distinct programs. This objection is largely semantic. HUD actually performs one function: it provides public housing. Obviously, however, such a complicated task requires myriad distinct administrative activities. The plaintiff class here challenges the result of HUD's activity, which, it maintains, is a system of segregated housing. HUD argues that such a result presupposes a large number of derelictions in individual administrative duties (i.e., that a support of a segregated housing system in violation of the Fifth Amendment would necessarily include HUD activities in different programs and places, as well as violations of Titles VI and VIII, and of HUD regulations promulgated thereto) which should be addressed in separate actions. The court considered this argument at length in its order certifying the class. Id. at 1024-25, 1030-31. It appears that the plaintiff class is not challenging "across the board" a number of conceptually distinct HUD functions, but rather a single activity which is regulated by a variety of statutes and published guidelines.

Even if this challenge were to be considered "across the board," it should be noted that the Falcon case did not entirely rule out class actions of that type. The Court in Falcon noted:

If petitioner used a biased testing procedure to evaluate both applicants for employment and incumbent employees, a class action on behalf of

...