The opinion of the court was delivered by: TENNEY
Plaintiffs, Oliva and Alfonso Lopez, move this Court, pursuant to 28 U.S.C. §§ 2281, 2284 (1970), for an order convening a three-judge court and for a preliminary injunction restraining the defendants from enforcing § 1627-3.1(a) of Title 9(c) of the Official Compilation of Codes, Rules and Regulations of New York State (hereinafter "NYCRR") and mandating that defendants declare plaintiffs eligible for public housing. Defendants, the White Plains Housing Authority (hereinafter "Authority"), Charles Goyert, Nicholas M. Marraffino, and Charles J. Urstadt, move this Court pursuant to Fed.R.Civ.P. 12(b)(1), (6) to dismiss plaintiffs' complaint on the grounds of lack of jurisdiction over the subject matter and persons of the defendants, and for failure to state a claim upon which relief can be granted. Jurisdiction is allegedly based on 28 U.S.C. §§ 1343(3) and (4), 1331, 2201 and 2202. For the reasons set forth below, plaintiffs' motions for an order convening a three-judge court and a preliminary injunction are denied in all respects, and defendants' motions to dismiss plaintiffs' complaint are granted as to defendant Urstadt in all respects, granted as to plaintiffs' request for a declaratory judgment and determination of a valid class action, granted as to defendants Authority, Goyert and Marraffino insofar as the plaintiffs seek money damages in their official capacities, and denied in all other respects.
Since defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted, the facts as stated in plaintiffs' complaint will be taken as admitted. 2A Moore Fed. Practice para. 12.08 (1968). Plaintiffs Oliva and Alfonso Lopez are citizens of Colombia, South America, residing permanently and lawfully in the United States and the State of New York. They currently reside at 40 Mitchell Place, White Plains, New York with their three minor children, Patty, Alfonso, Jr. and Maribel. The children were born in the United States. Alfonso has continuously resided in White Plains since his arrival in the United States and Oliva has resided there for the past five years.
Defendant Authority is a public corporation organized pursuant to N.Y.Const., art. 18; N.Y. Public Housing Law § 422 (McKinney's Consol.Laws, c. 44-A Supp.1971); and 9(c) NYCRR §§ 1600.1 et seq., with offices at 223 Grove Street, White Plains, New York. Defendant Charles Goyert was Chairman of the Authority at all times pertinent to the action. Defendant Nicholas M. Marraffino is Executive Director of the Authority. Defendant Charles J. Urstadt is Commissioner of The Division of Housing and Community Renewal of the State of New York.
Early in 1970 (no specific date is given) Oliva, on the advice of her Medicare caseworker, filled out an application for public housing. At that time, an unnamed Authority employee told her that it was necessary for her to produce her "residency card" and her children's birth certificates. Having done so (on an unspecified date) she was told to await the Authority's call. After the birth of their third child, Patty, Alfonso submitted her birth certificate to the Authority in late 1970 or early 1971. In the first week of December 1971, Alfonso went to the Authority to inquire about their application for housing (the Authority had not contacted them after submission of their application). He was told by an unnamed Authority employee that either he or his wife must be a citizen of the United States to qualify for public housing in White Plains.
In the middle of December 1971, Oliva went to the Authority and, at the request of an unnamed employee, filled out a new application. Upon presenting the completed application to still another unnamed employee, she was told that either she or her husband must be a United States citizen to be eligible for public housing. On December 30, 1971, Oliva sent to the Authority the following letter:
"I filled out an application for public housing two years ago. I filled out a new application two weeks ago. Please let me know if I am eligible or ineligible for public housing, because my present housing conditions are very poor. I should tell you that I have three children, all of whom were born in the United States and are citizens of this country. If I am not eligible, I would like a hearing to learn the reasons."
On January 6, 1972, Oliva received a letter from defendant Marraffino inviting her to a meeting at his office to discuss her application. A meeting was arranged for the afternoon of the 6th. At that time, defendant Marraffino informed Alfonso that either he or his wife must be a citizen of the United States to qualify for public housing. On January 19, 1972, Marraffino sent a letter to the plaintiffs confirming their meeting of January 6th. The letter stated in part:
"[You] are hereby informed that your application for admission to any of the projects of the White Plains Housing Authority is denied for the following reasons;
1. That neither you nor your wife is a citizen of the United States of America;
2. That you have never indicated your intentions to become citizens of the United States;
3. That you have not properly completed your application by furnishing such proof of citizenship.
The Authority's position is that . . . pursuant to Section 1623.1 [ sic ], you have not met the requirements for admission for the aforesaid reasons."
On January 18, 1972, (prior to their receipt of the above letter), plaintiffs filed a verified complaint commencing this action. The complaint charged, in essence, that defendants' actions deprived plaintiffs of federally secured rights and that, under 42 U.S.C. §§ 1981 and 1983 (1970), plaintiffs were entitled to injunctive and declaratory relief and damages. On February 1, 1972, defendants Authority, Marraffino and Goyert filed a notice of motion to dismiss the complaint for lack of subject matter and personal jurisdiction and for failure to state a claim upon which relief can be granted. On February 3, 1972, defendant Urstadt filed a notice of motion for the same relief. On February 9, 1972, plaintiffs filed a notice of motion for a preliminary injunction and for an order convening a three-judge court. On February 29, 1972, oral argument was heard on all three motions. On March 9, 1972, an affidavit prepared by Samuel L. Parham, Jr., elected Chairman of the Authority on January 18, 1972, was submitted to this Court. The affidavit states that Chapter II, § 1(b) of the Master Management Resolution of the Authority had been incorrectly interpreted in the past to require that a family must have at least one adult-citizen member to be eligible for public housing; that a proper interpretation of the section would allow a family of which any member is a citizen (including children) to apply for public housing and, thus, that plaintiffs have met the citizenship requirement of the Authority.
Section 1627-3.1 of 9(c) NYCRR reads in pertinent part as follows:
"In addition to income limitations, applicants must also meet the following requirements for admission:
(2) Compliance with citizenship, residency and family composition requirements as stated in master management resolution adopted by authority."
Chapter II, § 1(b) of the Authority's Master Management Resolution reads in pertinent part as follows:
"There shall be admitted to a project only families:
(b) One of whose members is a citizen of the United ...