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DAVIS v. NEW YORK CITY HOUS. AUTH.

December 2, 1993

PAULINE DAVIS, CYNTHIA WILLIAMS, CORNELIA SIMMONS, and KIM RIVERA, on behalf of themselves and all others similarly situated, Plaintiffs, THE NEW YORK CITY HOUSING AUTHORITY, Defendant. UNITED STATES OF AMERICA, Plaintiff,
v.
THE NEW YORK CITY HOUSING AUTHORITY, Defendant.


SWEET


The opinion of the court was delivered by: ROBERT W. SWEET

Sweet, D. J.

 Defendant New York City Housing Authority ("NYCHA") has moved for an order clarifying the Consent Decree filed with this Court on November 16, 1992 and the Tenant Selection and Assignment Plan ("TSAP") which was an Exhibit to the Consent Decree and declaring NYCHA's plan to tenant the new Berry Street housing project (the "Plan") valid under the Consent Decree and TSAP.

 The Plaintiffs in Davis v. New York City Housing Authority (the "Davis Plaintiffs") and in United States v. New York City Housing Authority (the "Government") (collectively, the "Plaintiffs") oppose NYCHA's motion for an order to clarify and cross-move to enforce the Consent Decree and to enjoin NYCHA's present tenanting plan for the Berry Street Project ("Berry Street") in the event NYCHA's motion to clarify is granted by the court.

 For the reasons set forth below, NYCHA's motion to clarify the Consent Decree is granted and the Plan is determined to be consistent with the TSAP except as to the filling of the larger apartments as to which a preliminary injunction is granted to bar the use of duplicate requests.

 The Parties

 NYCHA is the largest public housing agency in the United States, operating more than 320 projects, containing approximately 180,000 apartments which house nearly 500,000 people. NYCHA operates these projects pursuant to an Annual Contributions Contract and other operating subsidies agreements with the Department of Housing and Urban Development ("HUD"), New York State and New York City. To be eligible for admission to public housing families must be "low-income," defined by the United States Housing Act of 1937 as receiving household income less than 80 percent of the median income for the area. See 42 U.S.C. §§ 1437a(a)(1), 1437a(b)(2).

 The Davis Plaintiffs filed a class action complaint in Davis v. New York City Housing Authority, 90 Civ. 628, against NYCHA alleging discrimination on the basis of race, color, and national origin in the selection and assignment of public housing tenants in violation of the Fair Housing Act of 1968, as amended, 42 U.S.C. §§ 3601 et seq. (the "Fair Housing Act"); Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; and 42 U.S.C. §§ 1981, 1982, 1983. The Government later initiated United States v. New York City Housing Authority, 92 Civ. 4873, also alleging that NYCHA's policies and practices of selecting tenants for projects violated the Fair Housing Act.

 Prior Proceedings

 I. The Two Predecessor Actions

 On May 31, 1990, the Davis Plaintiffs filed a complaint challenging a number of NYCHA policies, including: (1) "racial balancing," which limited the number of families of color who could move into selected housing projects, Rosenberg Fairness Decl. PP 63-75, 80-83; (2) "manual scheduling," whereby NYCHA scheduled up to 10% of the applicants by hand in order to achieve "racial balancing," id. PP 100-102; and (3) "community preference," which restricted applicants for certain projects to families living in nearby postal zones or neighborhoods, id. PP 76-79.

 The Government's parallel 1992 action alleged that NYCHA, in violation of the Fair Housing Act, as amended, 42 U.S.C. §§ 3601 et seq., engaged in the following discriminatory practices: (1) using codes to indicate to NYCHA personnel that only white families could be referred to certain projects; (2) misinforming applicants on the basis of their race or national origin about the availability of apartments; (3) using race as a criteria for allocating apartments, such as replacing families of a given race or national origin with families of the same race or national origin; (4) using postal zone restrictions to ensure that families assigned to certain projects were predominately of one race; and (5) using race and national origin as a criteria in the rent-up of new projects.

 The Government, the Davis Plaintiffs and NYCHA engaged in extensive settlement negotiations between October 1991 and June 1992. On July 1, 1992, a Consent Decree was signed which included the TSAP. The Consent Decree consolidated the Government and Davis Complaints, certified a plaintiff class of Black and Hispanic applicants and tenants in Davis, and provided certain relief with respect to the Plaintiffs.

 II. The Fairness Hearing

 Pursuant to Fed. R. Civ. P. 23(e), a fairness hearing was held on November 6, 1992 before the Honorable Pierre N. Leval. *fn1" Additional written statements were received by the Court through November 11, 1992.

 A summary order approving the Consent Decree was entered on November 17, 1992, followed by the written opinion and order of the Court on December 30, 1992.

 III. The Consent Decree

 The Consent Decree provides for the following: (1) injunctive relief barring future housing discrimination on the basis of race, color or national origin, Consent Decree P 4; (2) the implementation of a new TSAP which substantially revises NYCHA's tenant selection and assignment systems, and which prohibits further discrimination, Consent Decree PP 5-9, Ex. B; (3) remedial relief for 2,190 claimants *fn2" of NYCHA's past discrimination, Consent Decree PP 10-39; and (4) significant record-keeping and reporting by NYCHA regarding tenant selection and assignment practices, Consent Decree PP 43-48.

 The Consent Decree also requires NYCHA to "adopt and implement the TSAP . . . to prevent any unlawful discrimination on the basis of race, color, or national origin." Consent Decree P 5. In adopting and implementing the TSAP with "respect to existing projects and new projects to be opened in the future," NYCHA agreed that it would use "no racial quota system, or other practice, technique or device to house Applicants in particular projects, buildings, or apartments, or to otherwise limit the availability of housing, on account of race, color, or national origin." Consent Decree P 7(a).

 The Consent Decree states that the TSAP will be fully implemented within one year after the Court's entry of the Consent Decree and that the TSAP, to be jointly monitored by the parties, will remain in effect for five years. The Consent Decree further provides that:

 
within the one-year period, the Housing Authority shall inform plaintiffs' counsel by certified letter that the TSAP is fully implemented and the five-year period shall begin on the date of the receipt of such letter. The plaintiffs will not challenge any conduct by the Housing Authority during the five-year period that is in compliance with the ...

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