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BOYD v. UNITED STATES

June 7, 1972

Dorothy BOYD, individually and on behalf of all others similarly situated, Plaintiff,
v.
UNITED STATES of America et al., Defendants


Weinstein, District Judge.


The opinion of the court was delivered by: WEINSTEIN

MEMORANDUM AND ORDER

WEINSTEIN, District Judge.

 Plaintiff, a black mother of five children, is a recipient of public assistance. Claiming discrimination prevents her rental of an apartment from defendants Lefrak Organization and Life Realty, Inc. (Lefrak), she seeks relief on behalf of a class of welfare recipients in the metropolitan area against Lefrak, the United States, the Department of Justice and the Attorney General. Allegedly there has been a failure to enforce the Fair Housing Act (42 U.S.C. § 3601 et seq.) and a violation of the Fifth, Thirteenth and Fourteenth Amendments by discrimination against welfare recipients.

 The three federal defendants have moved to dismiss the complaint as to them. As demonstrated below, this motion must be granted. While the Attorney General's discretion in enforcing the Fair Housing Act is limited by the requirements of the Constitution and of the Act itself, he has neither transgressed these limits nor foreclosed plaintiff's separate claim for relief against Lefrak.

 I. FACTS AND PROCEEDINGS

 Plaintiff attempted to rent an apartment from Lefrak in July, 1971. She was denied a rental application for the stated reason that she is a recipient of public assistance. She then filed a complaint with the United States Department of Justice alleging that the exclusion of public assistance recipients from Lefrak housing constituted unlawful discrimination under the consent order of this court of January 28, 1971 in United States v. Life Realty, Inc., 70-C-964 and under the Fair Housing Act. See 42 U.S.C. § 3601 et seq.

 The consent order in United States v. Life Realty, Inc., 70-C-964, enjoined Lefrak from discriminating on the basis of race in showing or renting apartments; it provided objective tests for the consideration of rental applications. Among the criteria is a requirement that an applicant's net income per week equal at least 90% of the monthly rental of the apartment applied for ("the 90% Rule"). See paragraph V(c)(4), Consent Order, January 28, 1971, United States v. Life Realty, Inc., 70-C-964.

 Mrs. Boyd moved to intervene in United States v. Life Realty, Inc., 70-C-964, contending that the original 90% rule operated in practice as a blanket exclusion of welfare recipients because of the low level of welfare payments, and hence constituted unlawful discrimination. Her motion to intervene was denied but was treated as a complaint in a separate case -- the one now before us. See Memorandum and Order, United States v. Life Realty, Inc., 70-C-964, November 4, 1971.

 The Department of Justice agreed that a blanket refusal to consider applications of welfare recipients is unlawful. After discussions between the Department of Justice and Lefrak, the consent order was amended in December, 1971 to include a provision requiring rental to those who do not meet the 90% rule but whose "payment of rent shall be guaranteed by a legally enforceable contract by a duly authorized government agency." It was contemplated that a program of such guarantees for welfare recipients would shortly be funded, but the court is now advised that it has not been.

 An amended complaint in the instant case charges that, even as amended, the 90% rule operates to exclude welfare recipients from Lefrak housing although they can afford to pay the required rents out of their public assistance benefits. Allegedly, this discrimination against those with the status of welfare recipient violates the Equal Protection Clause of the Fourteenth Amendment. Moreover, it is argued, because a significantly higher proportion of black as compared to other residents of New York City are recipients of public assistance, the amended 90% rule has an illegal racial effect.

 II. CLAIMS AGAINST THE ATTORNEY GENERAL

 Relief against the Attorney General is sought on both constitutional and statutory grounds. It is contended that by entering into the original and amended consent agreements with Lefrak the Attorney General participated in and approved discriminatory practices, thereby violating the Fifth and Thirteenth Amendments. Also relied upon is language of section 3613 of title 42 of the United States Code, empowering the Attorney General to request such relief against specified classes of persons "as he deems necessary to insure the full enjoyment of the rights granted by this subchapter." When read together with the provision of section 3608(c) that "All executive departments and agencies shall administer their programs and activities relating to housing and urban development in a manner affirmatively to" eliminate discrimination in rental of certain housing because of race, color, religion, or national origin, there is said to be revealed a Congressional intent to limit the Attorney General's discretion in the enforcement of the Fair Housing Act. Thus, the argument goes, the Attorney General is prohibited from terminating litigation in such a way that would inadequately protect rights of third parties; the amended consent order in United States v. Life Realty, Inc., 70-C-964, constitutes such an impermissible impairment of plaintiff's rights and operates as a "but for" cause of discrimination against her; and she is entitled to declaratory, injunctive and other relief against the government and its named agencies.

 The Attorney General's discretion in the conduct of litigation must be exercised within the framework of applicable constitutional and statutory standards. A prosecutor may not use his discretion in initiating or conducting proceedings -- whether criminal or civil -- to derogate the statutory or constitutional rights of defendants or others. See, e.g., Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-1197, 10 L. Ed. 2d 215 (1963); Dombrowski v. Pfister, 380 U.S. 479, 484, 85 S. Ct. 1116, 1120, 14 L. Ed. 2d 22 (1965); United States v. Automobile Manufacturers Ass'n, 307 F. Supp. 617, 620-621 (C.D. Cal. 1969), aff'd per curiam sub nom. City of New York v. United States, 397 U.S. 248, 90 S. Ct. 1105, 25 L. Ed. 2d 280 (1970). Cf. United States by Mitchell v. Frazer, 317 F. Supp. 1079, 1084 (M.D. Ala. 1970); Davis, Discretionary Justice (1969), esp. Chapter VII. In terminating litigation through a consent order, the Attorney General's proposed settlement is subject to the general supervision of the court to insure that it is consistent with relevant statutes and the public interest. See, e.g., United States v. Automobile Manufacturers Ass'n, 307 F. Supp. 617, 620-621 (C.D. Cal. 1969), aff'd per curiam sub nom. City of New York v. United States, 397 U.S. 248, 90 S. Ct. 1105, 25 L. Ed. 2d 280 (1970). It is hardly necessary to add that the doctrine of prosecutorial discretion has never insulated conduct from review on charges of bad faith, fraud, or illegality. See, e.g., Fed. R. Civ. P. 60(b)(3).

 The valid premise of plaintiff's argument does not, however, support the relief requested in this case. There is no allegation of bad faith on the part of the Attorney General or of collusion with Lefrak. The amended consent order in United States v. Life Realty, Inc., 70-C-964, was approved by this court after a hearing in public at which comment by any interested person was possible and, in fact, ...


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