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January 31, 1972

Ollie BARNES et al., Plaintiffs,

Gurfein, District Judge.

The opinion of the court was delivered by: GURFEIN

GURFEIN, District Judge.

This action was originally brought by Mrs. Ollie Barnes against Tarrytown Urban Renewal Agency (TURA), U.S. Department of Housing and Urban Development (HUD) and various officials, seeking an injunction to prevent her eviction from her living quarters because of urban relocation requirements. She also sought *fn1" the convening of a three-judge court to pass on the constitutionality of 42 U.S.C. § 1465(e) and HUD regulation 24 C.F.R. § 41.11(c), which provide that determinations of state agencies or any redetermination by HUD concerning eligibility for relocation financial assistance are not subject to review by a court or other officer. By opinion of November 16, 1971, 338 F. Supp. 257, I denied the injunction against her eviction for reasons unnecessary to repeat.

 I expressly reserved decision on the issue of relocation financial assistance. However, the defendants had argued that since the plaintiff, Mrs. Barnes, had not yet been relocated and had not yet applied for "financial assistance," she lacked standing to attack the statute as unconstitutional with respect to its procedures relating to financial assistance. To avoid dismissing the action for lack of a representative of the class affected, since the constitutional issue was serious, I permitted Marie Smith, who had been displaced by the Newburgh Urban Renewal Agency (NURA), to intervene in the class action and also permitted NURA and its Executive Director to be added as parties-defendant. That order was signed January 6, 1972.

 On October 18, 1971, Mrs. Smith was displaced from her apartment by NURA and moved to adequate housing. That Agency paid Mrs. Smith's expenses for moving to her present apartment. Mrs. Smith informed the Agency several times that she was and would continue to be unable to work due to a physical illness. Despite this, NURA refused additional relocation payments to which Mrs. Smith claims she is entitled under 42 U.S.C. § 1465 because of her handicapped condition. The Agency refused such payments in a letter, written by its Executive Director, Jack Present, which stated only the conclusion -- that Mrs. Smith was "not handicapped." On October 28, 1971, Mrs. Smith attempted to have the Agency reconsider her request for additional relocation payments. On that date, she visited the NURA office and spoke to Mr. Jack Nolan, Relocation Director of NURA. Mr. Nolan refused to reconsider the denial of relocation payments. NURA has no procedures for notice and hearing by which displaced families and individuals such as Mrs. Smith may seek to contest the denial of relocation financial assistance.

 It is apparent, therefore, that Mrs. Smith has standing to attack, as she does, the constitutionality of 42 U.S.C. § 1465(e), and to seek, as she does by order to show cause, a three-judge court *fn2" for this purpose and preliminary injunctions to restrain the local and the federal defendants from determining her eligibility, or that of members of her class, for relocation financial assistance without notice, hearing and judicial review. As representative of a class, she also has standing to ask the Court, as she does, to require the federal defendants to promulgate rules and regulations providing for adequate notice and hearing, as well as judicial review with respect to relocation financial assistance.



 The complaint seeks to enjoin an Act of Congress, viz., Section 114(e) of the Housing Act of 1949, as amended, 42 U.S.C. § 1465(e), on the ground that it does not comply with the due process clause of the fifth amendment by failing to provide for notice, hearing or judicial review upon determinations of eligibility for relocation financial assistance. Section 1465(e) reads as follows:

"(e) Rules and regulations; finality of administrative decisions; promptness of payments.
The Secretary is authorized to establish such rules and regulations as he may deem appropriate in carrying out the provisions of this section and may provide in any contract with a local public agency, or in regulations promulgated by the Secretary, that determinations of any duly designated officer or agency as to eligibility for and the amount of relocation assistance authorized by this section shall be final and conclusive for any purposes and not subject to redetermination by any court or any other officer. Such regulations shall include provisions to assure that relocation payments, as authorized by this section, shall be made as promptly as possible to all families, individuals, business concerns, and nonprofit organizations found to be eligible for such payments by reason of their having been displaced from property in the urban renewal area, without regard to any subsequent proceedings, determinations, or events relating to such property which do not bear upon whether such displacement in fact occurred." (emphasis added)

 Pursuant to the power conferred upon him, the Secretary of HUD has issued a regulation which makes the local determination or any redetermination by HUD final and conclusive. This appears in 24 C.F.R. § 41.11(c) (1971) and reads:

"(c) Action on claim -- finality. The agency is initially responsible for determining the eligibility of a claim for, and the amount of, a relocation payment and shall maintain in its files complete and proper documentation supporting the determination. The determination on each claim shall be made or approved either by the governing body of the agency or by the principal executive officer of the agency or his duly authorized designee. The determination by the agency or any redetermination by HUD shall be final and conclusive with respect to the rights of any site occupant, and not subject to redetermination by any court or any other officer. Subject to the requirements of this paragraph (c), the agency may permit a third-party contractor responsible for relocation activities to examine and recommend action on a claim and to disburse funds in payment of a claim which has been approved by the agency."

 Thus, the statutory framework makes no provision for notice and hearing and, moreover, precludes judicial review.


 This simple statutory picture was clouded by the passage on January 2, 1971 of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (Uniform Act), 42 U.S.C. §§ 4601 et seq.; 84 Stat. 1894.

 Section 220(a)(5) of the Uniform Act repeals 42 U.S.C. § 1465. But it is not an outright repeal. The effective date of that repeal is delayed in accordance with the terms of Section ...

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