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March 29, 1983

MARY LOU McCOY, on behalf of her husband, and their nine minor children, and all other persons similarly situated, Plaintiff,
ITHACA HOUSING AUTHORITY, a municipal housing authority; MARY LOUISE BATTISTI, as Executive Director of the Ithaca Housing Authority, BARBARA BLUM, as Commissioner of the New York State Department of Social Services; and ROBERT WAGNER, as Commissioner of the Tompkins County Department of Social Services, Defendants

The opinion of the court was delivered by: MUNSON




 Plaintiff Mary Lou McCoy and her family live in Tompkins County, New York and are recipients of public assistance under the Aid to Families with Dependent Children Program [AFDC]. At the time of the commencement of this action, plaintiff and her family resided in an apartment operated by defendant Ithaca Housing Authority, a federally funded public housing authority. In addition to her AFDC grant, plaintiff also receives a shelter allowance from defendant Tompkins County Department of Social Services.

 As a resident of public housing, plaintiff was entitled to and did receive a shelter allowance of $107.00 per month. 18 N.Y.C.R.R. § 352.3(d) (1980). If plaintiff resided in private housing, however, she would have been entitled to receive a shelter allowance of her actual rental costs up to a maximum of $247.00 per month. Id. § 353.3(a). The problem giving rise to this litigation began in June of 1979 when plaintiff's rent was increased by IHA from $107.00 to $186.00 per month. Subsequently, the rent was increased to $194.00 and then to $205.00. This rental increase caused a great hardship to plaintiff and her family because plaintiff's shelter allowance was not increased to meet her higher rental costs. To meet this added burden, plaintiff directed that funds slated as her non-shelter allowance be paid directly to IHA to cover the difference between her new rent and her shelter allowance of $107.00.

 Plaintiff complained to defendant New York State Department of Social Services that her shelter allowance was inadequate, and challenged defendant Wagner's refusal to pay a shelter allowance equal to her family's actual rental costs. Defendant Blum affirmed the refusal to pay actual rental costs in her fair hearing decision and found that plaintiff's correct shelter allowance was the $107.00 she was receiving pursuant to 18 N.Y.C.R.R. § 352.3(d).

 After her failure to secure an increase in her shelter allowance at the state administrative level, plaintiff commenced the instant action to challenge the method by which defendants determine shelter allowance grants for persons residing in public housing whose rental costs exceed the public housing shelter allowance. Plaintiff purports to bring this action on behalf of herself and all other persons similarly situated, and alleges jurisdiction based on 28 U.S.C. §§ 1331, 1343, and 1361 (1976 & Supp. V 1981).

 Presently before the Court are plaintiff's motion for class certification pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure and plaintiff's motion for summary judgment against defendants Blum and Wagner. As a preliminary matter, however, the Court is presented with the question of whether this entire action is moot by virtue of the fact that plaintiff no longer resides in public housing. Accordingly, before the Court addresses plaintiff's motions, defendants' mootness argument will be examined.


 This action was commenced on April 25, 1980 by the filing of a summons and complaint with the Clerk of the Court. Fed. R. Civ. P. 3. Thereafter, an amended complaint was filed on June 2, 1980. Although plaintiff and her family resided in their IHA apartment at the early stages of this action, the family moved to private housing in or about November of 1980. Plaintiff first moved for class certification on October 28, 1981. This motion was adjourned numerous times until it was finally heard on May 18, 1982.

 Defendants argue that this case is now moot because plaintiff no longer lives in public housing and, therefore, she has no legally cognizable injury. To the contrary, plaintiff has submitted an affidavit to the Court reaffirming her desire to proceed with this action and expressing her hopes of one day returning to public housing when and if the shelter allowance disparity is corrected. In addition, plaintiff's counsel argues that plaintiff still has "live" claims for declaratory and monetary relief against the various defendants.

 To satisfy Article III's requirement of a "case or controversy," the plaintiff must present the court with a "live" case. In other words, the court must have before it a genuine dispute requiring judicial resolution. The dispute must continue throughout the litigation and the plaintiff must keep his "personal stake" in the outcome until the entry of judgment, United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 63 L. Ed. 2d 479, 100 S. Ct. 1202 (1980)(citing Powell v. McCormack, 395 U.S. 486, 496, 23 L. Ed. 2d 491, 89 S. Ct. 1944 (1969)). The federal courts have, however, fashioned exceptions to the mootness doctrine. For example, a controversy will not be declared moot if it "is capable of repetition, yet evading review." Roe v. Wade, 410 U.S. 113, 125, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973)(citing Southern Pacific Terminal Co. v. ICC, 219 U.S. 498, 515, 55 L. Ed. 310, 31 S. Ct. 279 (1911)). See also C. Wright, Law of Federal Courts, § 12 at 39 (3d ed. 1976).

 In the particular context of class actions, the Supreme Court has considered the importance of the "personal stake" requirement. The most recent pronouncement comes from United States Parole Comm'n v. Geraghty, 445 U.S. 388, 63 L. Ed. 2d 479, 100 S. Ct. 1202, where the Court held that an action does not become moot upon expiration of the named plaintiff's claim after the denial of class certification. Id. at 407. In Deposit Guaranty Nat'l Bank v. Roper, 445 U.S. 326, 63 L. Ed. 2d 427, 100 S. Ct. 1166 (1980), decided the same day as Geraghty, the Court held that the tender of complete relief to the named plaintiffs after the denial of class certification would not necessarily cause the entire action to become moot. Since the denial of class certification may be appealed following the entry of judgment, Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 57 L. Ed. 2d 351, 98 S. Ct. 2454 (1978), the named plaintiffs could appeal the adverse class certification ruling. 445 U.S. at 336-40. The question of effective representation of the class is of course open to challenge in such circumstances. Nevertheless, Roper stands for the proposition that conferral of full relief to a plaintiff will not automatically bar further prosecution of the action on behalf of the proposed class.

 In the case at bar, plaintiff's injury for which she seeks relief has been lessened due to her moving out of public housing in November of 1980. Thus, plaintiff's situation is markedly different from the plaintiff in Sosna v. Iowa, 419 U.S. 393, 42 L. Ed. 2d 532, 95 S. Ct. 553 (1975). In Sosna, the Court held that the mootness of the plaintiff's claim after the certification of the class does not make the entire action moot. In that circumstance, the rights of the unnamed class members still required protection. Rather, the present case is similar to Gerstein v. Pugh, 420 U.S. 103, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975), where the Court upheld the granting of class certification after the named plaintiff's claim had expired. While the claims asserted in Gerstein were by their very nature short lived (pretrial detention without judicial determination of probable cause), the Court found that there was a constant existence of unnamed class members and that the attorney representing the plaintiffs, a public defender, would vigorously pursue the rights of the unnamed class members. Id. at 110-11 n. 11.

 Here, part of plaintiff's claim for relief became moot after her complaint was filed. Assuming the existence of other unnamed class members, a continuation of this action appears proper. Thus, if plaintiff satisfies the requirements of Rule 23 regarding class certification, the entire action may proceed. However, if plaintiff fails to meet the requirements of Rule 23, the action may proceed as to those issues in which plaintiff ...

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