Appeal from dismissal of complaint against various federal and municipal officials for failure to discharge an alleged contractual commitment to implement a program of low and moderate income housing for employees at an IRS center in Brookhaven, New York. The District Court for the Eastern District of New York(Pratt, J. ) dismissed the complaint. The Court of Appeals held that IRS employees had standing to sue but that no enforceable contract had been made because: (1) the Special Attorney for Brookhaven who had made representations concerning housing had neither actual nor apparent authority to commit the Town; (2) the Town Board had not ratified the Attorney's representations; and (3) the representations were too vague to constitute a basis for specific performance. Affirmed.
Before Moore, Oakes and Gurfein, Circuit Judges.
Plaintiffs appeal from an order entered by the District Court of the Eastern District of New York (Hon. George C. Pratt), dismissing their complaint against various officials of the General Services Administration, the Internal Revenue Service and the Town of Brookhaven, New York. Appellants are a class comprised of three organizations and eight individual low income IRS employees who allege that they or their members are unable to secure adequate housing in proximity to their jobs at the IRS Brookhaven center. They seek to compel the Town of Brookhaven either directly or indirectly through the federal appellees, to perform an alleged contractual commitment to implement a program directed toward meeting the housing needs of low and moderate income employees of the IRS center.
This case has an extended procedural history. In April of 1970, the GSA issued a solicitation for offers to house a new IRS regional center. After receiving thirteen lease proposals, the GSA approved an award of a lease for a twenty-year term to the Town of Brookhaven on September 4, 1970. The original plaintiffs, various civil rights organizations and several black residents of the Town of Brookhaven, filed a complaint in August of 1971 seeking to enjoin the Administrator of the General Services Administration ("GSA") and the Commissioner of the Internal Revenue Service ("IRS") from occupying the IRS facility then under construction in Brookhaven. Plaintiffs alleged that the federal defendants had violated provisions of EO 11512,*fn1 which imposes a duty on GSA to consider the availability of housing in the vicinity when selecting sites for federal installations, and Title VIII of the Fair Housing Act, 42 U.S.C. § 3608,*fn2 which requires federal officials to act affirmatively to promote equal housing opportunities for minorities.
In March of 1972 the plaintiffs sought a preliminary injunction to restrain IRS from occupying the Brookhaven center and to enjoin GSA from disposing of certain surplus housing units situated about twenty-five miles from the IRS facility at the Suffolk Air Force Base in Southampton. The use of these units for housing, plaintiffs asserted, could constitute a partial remedy for the defendants' alleged failure to comply with relevant federal regulations. The District Court, the late Judge Orrin G. Judd, determined that plaintiffs had made a sufficient showing of non-compliance with EO 11512 to justify balancing the relative hardships attendant on the grant or denial of preliminary relief. Judge Judd decided, however, that since plaintiffs had expressed concern about the availability of housing as early as the fall of 1970 but had not sought preliminary relief until the facility had been substantially completed, no injunction against occupancy should issue. He did, however, enjoin the GSA from disposing of the Air Force housing units Pendente lite. Brookhaven Housing Coalition v. Kunzig, 341 F. Supp. 1026 (E.D.N.Y. 1972).*fn3
By order of July 25, 1972, the District Court held further that the suit was maintainable as a class action. In an order entered on September 13, 1972, the court defined the class as:
"All non-white persons residing or seeking to reside in the Towns of Brookhaven, Islip, Smithtown and Southampton, and all persons residing or seeking to reside in said towns who are eligible for low income housing as defined in applicable state or federal statutes and regulations."*fn4
The IRS moved into its Brookhaven facility during the summer of 1972. In March of 1973, the plaintiffs filed an amended supplemental complaint which added the Town of Brookhaven and various town officials as defendants. The first claim for relief alleged that the federal defendants had failed to comply with site selection procedures mandated by the Executive Order and Fair Housing Law. The second claim alleged that the federal defendants had failed to enforce commitments made by the Town of Brookhaven concerning low and moderate income housing for IRS employees. Plaintiffs' third and fourth claims for relief were directed against the Brookhaven defendants based upon their failure to implement alleged housing commitments made to the federal defendants.*fn5 Plaintiffs averred that, as third-party beneficiaries of the alleged contract, they were entitled to seek enforcement from the federal and town officials of a claimed contractual commitment to "provide whatever programs would be necessary to meet the housing needs" of employees at the IRS center.
In early 1975, the federal defendants (hereinafter "the Government") filed a motion to dismiss asserting that plaintiffs, none of whom were IRS employees, lacked standing to sue. Subsequently, eight IRS employees, six black and two white, sought leave to intervene, alleging that they were unable to find adequate housing near the facility. By order dated March 20, 1975, the District Court granted the motion to intervene and denied the Government's motion to dismiss.
The case came to trial in May of 1976. After plaintiffs acknowledged that they no longer sought to enjoin occupancy of the IRS facility, but rather sought only a declaratory judgment that GSA had failed to comply with site selection procedures, Judge Judd dismissed the first claim for relief. Six days after the trial concluded, Judge Judd died without having rendered a decision on the other claims. The case was reassigned to Judge Pratt, and the parties stipulated to allow Judge Pratt to render his findings of fact and conclusions of law on the trial record made before Judge Judd.
In May of 1977, Judge Pratt filed an extensive memorandum decision in which he determined: (1) The plaintiffs had standing to sue the federal defendants;*fn6 (2) Before awarding a contract to build and lease the center, the Government had considered the adequacy of housing in proximity to the proposed installation, thereby complying with EO 11512 and Title VIII of the Fair Housing Act;*fn7 (3) Before GSA accepted Brookhaven's bid, Special Town Attorney Bloom had sent a letter to GSA indicating that if a need for additional low or moderate income housing for IRS employees developed, the Town would take steps to provide such facilities; (4) The housing needs of low income IRS center employees had not been met; and (5) Because the record was inadequate to resolve whether the Special Town Attorney's representations were binding on Brookhaven, a supplemental hearing was necessary. The District Court held a second hearing on the contract question in September of 1977. On October 27, it entered a second memorandum decision and order. Having concluded that plaintiffs had failed to establish any enforceable contractual commitment with respect to housing, Judge Pratt dismissed the complaint in its entirety.
Appellants have now abandoned their original claim that the Government failed to comply with site selection standards mandated by the Fair Housing Act or Executive Order. Rather, they maintain only that the District Court erred in finding that Brookhaven made no contractual commitment. The Government has cross-appealed, alleging that whatever rights appellants may have against the Town of Brookhaven, they have no standing to sue and no right to compel action by the federal defendants.