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November 15, 1985

JOYCE JAMES, on behalf of herself and all others similarly situated, Plaintiffs, KENNETH CLARKE, on behalf of himself and all others similaryly situated, v THE NEW YORK CITY HOUSING AUTHORITY; JOSEPH CHRISTIAN, as Chairman of the New York City Housing Authority; BLANCA CEDENO, as a Member of the New York City Housing Authority; and WALTER S. FRIED, AS A Member of the New York City Housing Authority, Defendants.

The opinion of the court was delivered by: CARTER

CARTER, District Judge

Despite numerous conferences between opposing parties, and stipulations by the parties as to undisputed material facts and damages caused to plaintiffs by application of defendants' challenged policy, the parties have failed to settle this case out of court. Thus, this matter--dating back to 1982--is again before the court on the parties' 1982 cross-motions for summary judgment. Since the parties are unable to resolve their dispute, the court must dispose of these pending motions.

On October 3, 1983, the court certified a class including all applicants of public housing whose applications had been denied or would be denied or deferred by the New York City Housing Authority [the "Authority"] on the basis of the duration of the applicant's family composition. Plaintiffs' motion for summary judgment challenges the defendant Authority's administrative policy of imposing two per se rules--one, a six-month, the other, a one-year, duration-of-family requirement--on all applicants of public housing. Plaintiffs maintain that both of these duration-of-family requirements preclude an individualized assessment of relevant family composition to determine "stability" and ignore the immediacy or importance of an applicant's need for housing. Plaintiffs contend that these policies impose unauthorized eligibility requirements, violative of the United States Housing Act, 42 U.S.C. § 1401 et seq., its implementing regulations, the due process and equal protection clauses of the 14th Amendment, and the rights to privacy and free association, protected by the first, fourteenth, and fifth amendments to the Constitution of the United States.

 Defendants, the Authority and its various officials, have cross-moved for summary judgment, contending that Congressional policy regarding low-income housing vests local public housing agencies with the maximum amount of responsibility in administering housing programs. Defendants assert that the Authority's requirement that an applicant for public housing have a stable family composition is rationally related to such neutral, and vitally important considerations as an applicant's financial eligibility, appropriate apartment size, and the peaceable occupancy of the public housing tenant body.


 In order to qualify for public housing, applicants must satisfy a variety of stringent eligibility standards. Applicants must comport with requirements pertaining to income, assets, rent-paying record, housing need, and standards concerning past criminal or violent behavior. (NYCHA Management Manual ch. III(V) at 15-41.). In addition to these eligibility standards, the Authority requires that public housing applicants verify the stability of their family "composition," or membership. (NYCHA Management Manual, ch. III, "Tenant Selection" (Revised June 1, 1969)). The two per se rules regarding family composition challenged here are allegedly used to determine if "the history and cohesiveness of the members constituting the family," are such that "a reasonably definitive determination can be made regarding persons who will be residing in the apartment." (NYCHA Management Manual, ch. III(V)(B)(1), at 16).

 Applicants, who are living apart from an unrelated adult or family member but who seek to unite in an Authority apartment with that adult or family member, are automatically disqualified for public housing by reason of "unverifiable family composition" unless and until they live together for one year before their application is filed. (Joint Pretrial Order § 74). Conversely, applicants who are living with an unrelated adult or family member, are automatically disqualified for public housing by reason of "unverifiable family composition" until they live apart for at least six months. The first of these policies admits of no exceptions. (See Lehman Deposition at 19), annexed as Exh. C to the Affidavit of Jean T. Schneider in Support of Plaintiff's Motion for Summary Judgment ("Schneider Affidavit "). The sole exception to the latter policy occurs when an unrelated adult or family member leaves the household by reason of death, incarceration, or marriage to a third party. ( See Lehman Deposition at 21, Schneider Affidavit, Exh. D).

 The first named plaintiff in this action is Joyce James. James applied for an Authority apartment in November, 1979. At that time she was eight months pregnant with her first child. She did not apply for an Authority apartment with the father of her child, Barry Douglas, as she informed the defendants that Douglas abused her both verbally and physically. (Plaintiffs' Exh. 2 to Deposition of Hilda P. Merle (Request for Reconsideration of Status of Joyce James (Nov. 12, 1981)). The parties have stipulated that James and Douglas "were not able to get along together," and that James "could not find an apartment on the private market which she could afford to rent." (Joint Pretrial Order §§ 22-23). After the birth of her first child, James learned that her application had been denied because of "unstable family composition," i.e., she and Douglas had not yet lived apart for six months to one year. In October, 1981, after the birth of her second child, James and her children left Douglas' apartment and moved into plaintiff's sister's apartment, where they slept on the floor as the apartment was too small to house two adults and three children. In October, 1982--a full year after James left Douglas' apartment--the Authority accepted James' application for public housing. The parties have stipulated that the sole ground for the Authority's denial of her application was that "Ms. James had not yet lived apart from Mr. Douglas for six months to one year." (Joint Pretrial Order §§ 67-68).

 On October 3, 1983, the court permitted Kenneth Clarke to intervene as a plaintiff in this action, pursuant to Rule 24, F.R.Civ.P. From the summer of 1982, until December, 1982, Clarke lived in an apartment with Peggy Jackson, in whose name the apartment was rented. From the end of December, 1982, until March, 1983, Clark remained at the apartment alone. Intervenor Clarke became homeless in March, 1983, as a result of a building fire. The Division of Relocation Services, a division of the New York City Department of Housing Preservation and Development, became responsible for providing him with emergency shelter and for helping him find new permanent housing. In March, the Division submitted an application to the Authority on his behalf for public housing. Clarke suffers from a total disability; the Social Security Administration has determined that he is unable to engage in any substantial activity. His only source of income is Social Security disability benefits of $247.00 per month. On May 9, 1983, the Authority denied Clarke's application for public housing on the ground of "unverifiable family composition." The sole reason for the Authority's denial was its finding that Clarke had not lived apart from Jackson for at least six months. (Joint Pretrial Order § 67-68). Clarke, as a consequence of the Authority's policy, remained an "emergency relocatee," repeatedly shuttled among hotel rooms provided by the Department of Housing Preservation and Development.

 Public housing applications of other members of the class have been similarly denied on the ground of unverifiable family composition, without regard for any good faith reasons for changes in family composition or inability to prove compliance with the required family duration period, and without concern for the feasibility of altering family relationships for six months to one year. Depositions of Authority officials reveal that 70% of the deferral notices for public housing applications, which are sent out by the Eligibility Division of the Authority, cite to a problem with the duration of the applicant's family composition, which is expected to be resolved by the passage of time. (See Lehman Deposition at 3, Schneider Affidavit, Exh. A).


 I. Summary Judgment

 A. No Material Issues of Fact

 Summary Judgment may be granted only where "the pleadings [and] depositions...together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(c), F.R.Civ.P. The movant has the burden of showing that there are no genuine issues of material fact. Burtnieks v. City of New York, 716 F.2d 982 (2d Cir. 1983); First National Bank of Cincinnati v. Pepper, 454 F.2d 626 (2d Cir. 1972); C. Wright & A. Miller, Federal Practice & Procedure, Civil § 2727 (1983 ed.). Here the facts are not in dispute. Both plaintiffs and defendants have annexed to their motions for summary judgment a Rule 3(g) statement in which the moving parties contend there are no genuine issues to be tried. *fn1" Thus, summary judgment is appropriate. Furthermore, the parties have stipulated the amount of damages suffered by named plaintiffs, James and Clarke, if the duration-of-family-requirement is found to be an invalid policy.

 B. Statutory Issues

 (1) The United States Housing Act Establishes a National Housing Policy

 The United States Housing Act, 42 U.S.C. § 1401 et. seq., establishes a program of financial aid from the federal government to state and local governments engaged in providing decent housing to low-income families who cannot obtain safe and sanitary housing on the private market. The basic purpose of the Act is:

 [T]o assist the several remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income.

 42 U.S.C. § 1437.

 The United States Housing Act is a program of "cooperative federalism." Fletcher v. Housing Authority of Louisville, 491 F.2d 793 (6th Cir.), rev'd and remanded on other grounds, 419 U.S. 812, 95 S. Ct. 27, 42 L. Ed. 2d 39 (1974), reinstated, 525 F.2d 532 (6th Cir. 1975). When federal money is spent to promote the general welfare, the concept of welfare is shaped by Congress, not by the states. Helvering v. Davis, 301 U.S. 619, 81 L. Ed. 1307, 57 S. Ct. 904 (1937). The expression of federal policy in the area of low-income housing is the United States Housing Act. So long as the Authority operates under an annual contribution contract with the Department of Housing and Urban Development ("HUD"), it must meet the requirements of the United States Housing Act. It may not set eligibility criteria unauthorized by Congress which exclude from coverage persons who are eligible under federal ...

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