The opinion of the court was delivered by: DOOLING
MEMORANDUM INCORPORATING FINDINGS of FACT and ORDER (November 6, 1972)
Plaintiffs by their amended complaint seek injunctive and declaratory relief on behalf of the plaintiffs with respect to the plaintiffs' rights, if any, (A) under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. § 4601 et seq., and (B) with respect to the waiver of the vacancy requirement set forth in 24 C.F.R. § 203.381 (as related to 12 U.S.C. §§ 1709, 1710(a) and the "Property Disposition Handbook, One to Four Family Properties," Chapter 4 paragraph 91, R.H.M. 4310.5).
It is not denied at this time, and it is preliminarily found, that the plaintiffs' situations with respect to the property that they are occupying or have recently occupied have been the following.
Jean Caramico lives in a two-floor two-family house subject to foreclosure proceedings based on an F.H.A. insured mortgage (12 U.S.C. § 1709; the defendant Realty Officer of the Department of Housing and Urban Development, F.H.A., has determined that the secretary of Housing and Urban Development will not accept the building with tenants in occupancy, and, on plaintiff Caramico's appeal, the Assistant Secretary of the Department of Housing and Urban Development has determined that his department requires the property to be vacant before delivery in order that it may be renovated and resold. Plaintiff Caramico is (and other plaintiffs are) in consequence faced with motions for orders of possession in the State Supreme Court which will result in her (and their) being removed from the two to four family houses which she is (and they are) occupying or, until recently, did occupy; in one such case relief has been denied in the State Courts both at Special Term (see, Federal National Mortgage Association v. Rivera, August 14, 1972, Kings County, Index No. 16,143-1970), and in the Appellate Division.
Plaintiff Caramico, or if not she, others similarly situated, have in this situation applied to the defendant's Secretary for assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 and has or have been uniformly denied such relief on the explicit ground that the Relocation Act does not apply to persons situated as are the plaintiff Caramico and other plaintiffs.
Plaintiffs Olivieri and Rivera, informed by the defendant Sheriff's office on June 5, 1972, that they would be evicted on June 13, 1972, sought a stay of eviction on the basis that there was no showing of compliance with the Relocation Act; and that motion was denied by Mr. Justice Damiano in the Supreme Court, Kings County, on August 14, 1972, and a stay was denied in the Appellate Division in the early days of October, 1972.
Plaintiff Long occupied an apartment in a now foreclosed property that was the subject of a re-possession order entered March 13, 1972, in the Supreme Court, Kings County; he managed to secure a reservation in public housing at a rental a little over $50 higher than his rental had been in the foreclosed premises. He applied to the Secretary for assistance under the Relocation Act, pointing out that the eviction took place pursuant to 24 C.F.R. § 203.381 and the Department refused assistance on the ground that it had determined that the Relocation Act did not apply to plaintiff Long in the situation in which he was involved. It was added that the issue was currently being litigated by the Department, and that it was inappropriate to make any extended comment.
Plaintiff Maggie Evans had for 2 1/2 years been a tenant at 103 Pioneer Street, Brooklyn, New York, along with her 8 children when on November 10, 1971, she was served by defendant F.N.M.A. with a demand to quit and surrender her apartment within 10 days. She did not do so, and after one motion for an order of assistance was lost, plaintiff applied to the Secretary, to the Regional Administrator and to the Realty Officer for a waiver of the vacant-possession requirement of 24 C.F.R. § 203.381. The applications were made pursuant to paragraph 91 of chapter 4 of the Handbook and pursuant to the 5th Amendment to the Constitution, on the ground that the building in which plaintiff Evans resided was a two-to-four family dwelling, that continued occupancy was necessary to prevent vandalism, that dispossession of the tenants would present no advantage insofar as immediate occupancy by a purchaser was concerned, and that dispossession of the tenants would be inconsistent with the National Housing Act as amended. (12 U.S.C. § 1701 et seq.) The defendant Realty Officer responded that after a complete inspection of the building by staff personnel it had been determined that the Secretary would not accept the building with tenants in occupancy. A rehearing was sought before the Secretary and was denied in the same communication which denied the comparable application of the plaintiff Caramico. Plaintiff Evans then applied for assistance under the Relocation Act and the Secretary denied relief as in the case of the plaintiff Long.
Plaintiff Henrique, similarly made the object of a motion for an order of possession, similarly applied for a waiver of the vacant-possession requirement but received no response. Plaintiff Henrique then applied for relocation assistance under the Relocation Act and that relief was denied by the Secretary on August 23, 1972.
Plaintiffs Ayala, with their four children occupants of an apartment for over 8 1/2 years, were served with a motion for an order of possession, and, when that motion was withdrawn, they applied for a waiver of the vacant-possession requirement and were denied it by the defendant Realty Officer. There had been no answer to plaintiff's appeal to the Secretary and application for assistance under the Relocation Act at the time of action commenced.
Plaintiff's affidavits show that the situation in which the plaintiffs have found themselves appears to be one of common occurrence, and is particularly so in Brooklyn, where, plaintiffs aver without contradiction, defendant F.N.M.A. alone has obtained eighty orders for possession in July and August 1972 and an additional twenty-one orders in the first week of September 1972.
Plaintiffs sought and were denied a temporary restraining order directed to the City Sheriff against his executing orders of possession issued in the State Supreme Court. After the temporary restraining order was refused, in principal part on the ground that an application for a stay was pending in the Appellate Division, Second Department, the Appellate Division denied a stay, and the plaintiff accordingly pressed the motion for a preliminary injunction against the Sheriff's office and for an order making the case a class action as provided in Rule 23(c). For the reasons set forth in the Memorandum and Order in the parallel case of Manners v. Secretary, D.C., 333 F. Supp. 829, no order under Rule 23(c)(l) will be made in the instant case.
Exactly as in the Manners case the present case does present questions of general and recurrent interest and importance, particularly in this area which suffers so obviously from housing problems, relocation needs, and those other related urban ills which so much of the Congressional Legislation of recent years has sought in a variety of ways to remedy. Plaintiffs' case presents causes of action both under the Relocation Act and under 24 C.F.R. § 203.381 and 12 U.S.C. §§ 1709, 1710. It differentiates from the Manners case in that the plaintiffs here, or some of them, have pursued their administrative remedies under 24 C.F.R. § 203.381 as best they could, given the absence of any official administrative pathway, and have supplemented such applications by applications apparently made in proper form under the Relocation Act. The case, taken with the Manners case, can therefore afford a framework for decision on the rights of tenants in two-to-four family houses which are under foreclosure to obtain a federal due process determination on the need for eviction; in addition, of course, the instant case raises at once the question of whether the Relocation Act applies to persons in the position of plaintiffs.
1. It is concluded that the Relocation Act has no application to persons, like the plaintiffs, who are required to relocate by reason of federal decisions taken in the context of federal acquisition of housing which received federal assistance in the form provided by 12 U.S.C. § 1709 et seq. (providing for insurance on mortgages which come within the description of 12 U.S.C. § 1709(b)(2) which have been made to or held by approved mortgagees and which otherwise comply with the provisions of Section 1709(b)).
The Relocation Act by its own terms establishes a policy for fair and equitable treatment of persons displaced "as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole." 42 U.S.C. § 4621. Hence, Sections 4622, relating to moving and other expense, and 4625, relating to relocation assistance advisory services, commence with the expression "Whenever the acquisition of real property for a program or project undertaken by a Federal agency in any State will result in the displacement of any person on or after January 2, 1971"; the sections then go forward with their substantive provisions. Section 4624, contemplating payments up to $4,000 to enable persons other than home-owners to relocate, speaks in terms of persons who have been in occupancy of the displaced property "for not less than ninety days prior to the initiation of negotiations for acquisition of such dwelling" indicating, although only generally, a reference to the normal preliminary to condemnation proceedings. See particularly 46 U.S.C. § 4651(1). Section 4601(6) defines "displaced person" as a person affected "as a result of the ...