Appeal from a judgment of the Southern District of New York entered by Judge Charles H. Tenney dismissing the claims of appellants, tenants in a public housing project, against it under 42 U.S.C. § 1983 challenging the constitutionality of a rule requiring tenants to register and obtain prior permission for overnight visitors. Dismissal of the claims for declaratory and injunctive relief is affirmed because of mootness. Dismissal of the damage claims is reversed and remanded for ascertainment of damages and attorneys' fees.
Before Lumbard, Mansfield and Kearse, Circuit Judges.
Plaintiffs-appellants Julianna McKenna and Alice Brown, tenants in a housing project operated by the Peekskill Housing Authority ("Authority"), appeal from a judgment of the Southern District of New York entered by Judge Charles H. Tenney on September 22, 1980, dismissing their action under 42 U.S.C. § 1983 challenging the constitutionality of the Authority's Rule 5, which required tenants to register and obtain prior permission for overnight visitors. Plaintiffs claimed that the rule infringed on their constitutional rights of association and privacy. They sought declaratory and injunctive relief as well as $25,000 in damages apiece. On their motion for summary judgment, the district court instead granted judgment to the non-moving defendants. McKenna v. Peekskill Housing Authority, 497 F. Supp. 1217 (S.D.N.Y.1980). We affirm on grounds of mootness the dismissal of the claims for declaratory and injunctive relief. The dismissal of the damage claim is reversed and remanded for further proceedings.
At the time of commencement of this action, the Authority's Rule 5 provided:
"5. ROOMERS, BOARDERS, LODGERS OR VISITORS.
"No person is permitted to occupy the premises except those duly registered in the Management Office and those listed on the dwelling application.
"At times you may desire overnight or weekend visits of friends or relatives. This matter should be discussed with the Management. No reasonable requests will be refused; however, you must register your visitor in the Management Office Register and show therein time of his or her arrival and departure. Overnight guests who cannot be reported to the office because of emergency or late arrival must be reported the next business day. Failure to comply with the above may subject the tenant to eviction proceedings."
The Rule was applied by the Authority to require tenants, including plaintiffs, in its Peekskill public housing project to identify in advance through written registration, which became part of the Authority's files, each person whom the tenant might wish to have as an overnight guest and to obtain Authority approval before having the guest visit or face the risk of termination of the tenant's lease for a violation. Plaintiffs claimed that the Rule impinged on their basic right to invite whomever they wished to their homes and thus operated as a prior restraint, violating their right of privacy and the First Amendment protection extended to rights of association, chilling their exercise of these rights, and causing them anxiety, fear, embarrassment and emotional suffering. In addition plaintiff McKenna claimed personal injury resulting from her inability, because of the Rule, to have her daughter stay as an overnight visitor and care for her and her children during a post-hospital convalescence.
The district court, although recognizing that the plaintiffs' right to freedom of association was protected by the First Amendment and that Rule 5 infringed this right, held that the exercise of the right here must give way to the state's compelling interest in "maintaining safe, decent housing and in keeping track of occupancy and eligibility in public housing." 497 F. Supp. at 1220. In addition, the district court pointed to the Authority's duties of equalizing the rentals paid by tenants and of preventing overcrowding, excessive use of water or electricity and disproportionate wear and tear. The same basic balancing approach was applied to reject the plaintiffs' privacy claims.
From this decision plaintiffs appealed.
Since the district court's decision events have occurred which have mooted the plaintiffs' claims for injunctive and declaratory relief. On December 18, 1980, three days after plaintiffs filed their brief on this appeal, the Authority adopted a resolution which rescinded the challenged old Rule 5, voted to expunge from plaintiffs' files all references to violations of the Rule and resolved not to commence eviction proceedings against any tenant for violations of the Rule. In place of the Rule, the Authority substituted the language of the federal guidelines. The new Rule requires no prior discussions with or disclosures to the Authority, nor any registrations. The resolution provides that this step was taken because the Authority felt "that (it is) in the best interest of its tenants and the Peekskill Housing Authority to conform to Federal Regulations relative to Occupancy of the Dwelling Unit, and; WHEREAS, the State of New York Projects NY 47 and 97 will be transferred to and become Federal Projects in the near future." The resolution revised Rule 5 to read, "The tenant shall have the right to exclusive use and occupancy of the leased premises which shall include reasonable accommodation of the tenants' guests or visitors ," which is the same as the language used in federal guidelines, see 24 C.F.R. § 866.4. Under the circumstances, including the fact that the Authority's rescission of old Rule 5 post-dated its obtaining a favorable result in the district court and the concession by the Authority's counsel upon argument that the old rule was "ludicrous," there appears to be no likelihood of a return to the old rule. To the extent that appellants seek declaratory and injunctive relief, therefore, their claims have become moot.
There remains the question of whether plaintiffs' claims of $15,000 damages from defendant Habeeb and $10,000 from the Authority are rendered "so insubstantial or so clearly foreclosed by prior proceedings" that the case may not proceed. See Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 8-9, 98 S. Ct. 1554, 1559, 1560, 56 L. Ed. 2d 30 (1978) (permitting damage claim to proceed). Faced with a similar situation in Davis v. Village Park II Realty Co., 578 F.2d 461 (2d Cir. 1978), where a federal housing tenant's claim for injunctive relief based on threatened eviction because of exercise of her First Amendment rights was mooted by the defendants' agreement to drop the eviction proceeding, we nevertheless held that the plaintiffs' damage claim was "sufficient to ensure that the requisite case or controversy exists," stating:
"Although this may influence the size of the award, it does not preclude recovery. If the wrong complained of is a mere technical violation of the plaintiff's constitutional rights and she is unable to prove actual damage, she would nevertheless be entitled to a recovery of nominal damages. In the recent case of Carey v. Piphus, 435 U.S. 247, 266, 98 S. Ct. 1042, 1054, 55 L. Ed. 2d 252 (1978), the Supreme Court explained, in connection with a violation of the right to procedural due process, that, "by making the deprivation of such rights actionable for nominal damages without proof of actual injury, the law recognizes the importance to organized society that those rights be scrupulously observed.' Certainly, the rights to freedom of expression and association are no less important to organized society than the right to procedural due process. The Carey decision also makes it clear that the plaintiff may recover for the mental and emotional distress actually caused by a violation of the plaintiff's civil rights. Id. at 264, 98 S. Ct. at 1052 & n.20; see Gertz v. Robert Welch, Inc., 418 U.S. 323, 350, 94 S. Ct. 2997 (3012), 41 L. Ed. 2d 789 (1974); Curtis v. Loether, 415 U.S. 189, 195-96 n.10, 94 S. Ct. 1005 (1008-09), 39 L. Ed. 2d 260 (1974); Fort v. White, 530 ...