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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,


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 TSAP on the ground that it discriminates on the basis of race, color, or national origin.

 Consent Decree P 6(a).

 IV. The Tenant Selection and Assignment Plan

 The Consent Decree defines the TSAP to mean "the plan adopted by the Housing Authority, a copy of which is annexed as Exhibit B, pursuant to which it selects and assigns tenants for Conventional Public Housing." Consent Decree, § I.1.m at 9. Specifically, the TSAP describes:


> how a prospective tenant can apply for an apartment, TSAP § II at 1-2;


> the priority codes assigned to apartment applicants, TSAP § III at 3-5;


> an explicit description of what information NYCHA must give to applicants to determine their eligibility for an apartment, TSAP § IV at 6-8;


> NYCHA's procedures for scheduling eligibility interviews and methods for project assignment, TSAP § V at 8-17;


> a mechanism for tenants already in the NYCHA system to transfer apartments, TSAP § VI at 18-23;


> procedures for NYCHA project managers to assign apartments, TSAP § VII at 23-28;


> programs for obtaining applicants for projects that have exhausted applications for apartments, TSAP § at 28-32;


> procedures for tenanting new projects, TSAP § IX, at 32;


> recordkeeping procedures for project managers, TSAP § X at 32; and


> monitoring procedures for NYCHA's regulation of the new system, TSAP § XI at 33.

 A. New Applications3

 A new applicant to public housing must file a written application with NYCHA's Department of Housing Applications which in turn will date and time stamp the application. NYCHA will review and assign a priority code identifying an applicant's need for housing. *fn4" After priority assignment, an applicant must appear for and cooperate in an eligibility interview with the Department of Housing Applications. TSAP § V(C) at 10. Prior to the eligibility interview, in order "to assure that all applicants entitled to select a project have an equal opportunity to do so," NYCHA must make available to all applicants a "project information" book and an Interviewer's Guide. TSAP § IV(B) at 7-8. The project information book describes all the projects and their respective amenities. The Interviewer's Guide, updated every two weeks by the Occupancy Control Division (the "OCD") of the Housing Applications Department, lists all NYCHA projects and their anticipated vacancies. TSAP § IV(A) at 6. As a result, it is contemplated that by the time an applicant arrives at an eligibility interview, the applicant will have reviewed the Interviewer's Guide and project information book and chosen a project.

 At the eligibility interview, the applicant is interviewed to determine, among other items, the apartment size needed for his or her family. At this interview, an applicant requiring a "Smaller Apartment" *fn5" may choose one project in one of the two boroughs listed on the application and the interviewer records the project selection. If the applicant provides all the required-information, and is determined to be eligible for public housing, the application will then be "certified" to the selected project. TSAP § V(C) at 10-13.

 Under the TSAP, applicants for "Larger Apartments" may not select a particular project. "Because the turnover in 'Larger Apartments' is very low," TSAP § V(D)(2) at 15, such applicants can only designate one of the two boroughs listed on the application. "Larger Apartment" applications are certified to OCD which will match the applicant to the borough listed as his or her turn comes up by priority ranking and date of certification. TSAP § V(D)(2) at 15-16.

 B. Transfer Applications

 Under the TSAP, current NYCHA tenants may apply to transfer apartments within public housing, provided such a transferee tenant submits a written request to the manager of the project in which he or she lives. For a transfer request within the project (an "intra-project" request), the Project Manager assigns the request a priority code and places it on the project waiting list. For a transfer request to another project (an "inter-project" request), the project manager must approve the transfer request, assign a priority code and send it to the District Director. If the District Director approves of the request, he or she shall transmit the request to the Deputy Director of Management for that district for final approval. TSAP § VI(A) at 18.

 Transfer requests are assigned the following priority codes:

 Code 0: Tenants who are displaced due to project renovation or because the project needs their particular apartment. Tenants living in an underoccupied apartment.

 Code 1: Tenants who are victims of domestic violence, violence at their project or are suffering a rent hardship (applies to projects with special income restrictions) may only choose the borough to which they would like to transfer request assigned.

 Tenants asking to return to the original project that they were displaced from because of project renovation.

 Tenants related to a family member who dies in the apartment at which the tenant resides may chose an intra-project transfer.

 Code 5: Tenants who are "extremely overcrowded" or in long-term friction with neighbors. These tenants must chose an intra-project transfer, unless it will take more than two years for an apartment to become available or the friction is irresolvable. In such cases, transferees needing "Larger Apartments" must go on the borough list (as certified through OCD), transferees needing Smaller Apartments may choose any project from the Interviewer's Guide (and certified to the project).

 Tenants with special medical, health or day care needs. For example, in the case of a tenant needing care from a specified facility not available reasonably close to their project may be transferred to a project that NYCHA deems is near the medical facility. If the needed medical care is not limited to a specific facility, transferees needing Larger Apartments must go to the borough list (such requests will be certified to OCD which will assign the transferees to a project near an appropriate facility) and transferee to Smaller Apartment may choose a project near an appropriate facility .

  Code 6: Tenants who are "overcrowded," defined to mean living in an apartment with more than twice as many people as the number of bedrooms, see TSAP § III(B) at 4. Such transferees must choose their current project. However, if they remain on a wait list for more than two years at their project, transferees requiring a Larger Apartment may only chose a borough (and be certified to OCD); transferees requiring a Smaller Apartment may choose any project anticipating vacancies from the users guide.

 Tenants required to travel more than 90 minutes due to change in work location or elderly who wish to move to an from a general population project to an elderly designated project.

 At each of the projects, a waiting list is kept by apartment size. The waiting list is defined "as all of the applications and transfer requests awaiting rentals at each project." TSAP § VII(A) at 23. The waiting list is composed of applications and transfer requests that are "certified" to the project. If a certified applicant rejects an offer of an apartment more than two times, that applicant's request is deemed "dead."

 When a vacancy occurs, the project manager notifies the Command Center. *fn6" If the Command Center has an applicant for the apartment, the project manager will assign the apartment to that applicant. If there is no applicant at the Command Center, the Command Center "releases" the vacancy to the project manger who will assign the apartment, in accordance with the TSAP-defined income guidelines, to the applicant with the highest priority and the oldest certification date.

 For "Smaller Apartment" vacancies released by the Command Center, the project manager may offer the vacancies to applicants off the project waiting list. For "Larger Apartment" vacancies released by the Command Center, project managers will contact OCD and compare the intra-project transfer requests on the project waiting list with the borough-wide applications list pending at OCD. "The [Larger Apartment] shall be rented to the appropriate applicant, using the criteria of apartment size, 'Income Tier,' priority and date of certification, in that order." TSAP § VII(B) at 27.

 C. Borrowing Applications from a Neighboring Project

 The TSAP allows a project manager to "borrow" applications from a neighboring project, with the District Supervisor's permission, if there are no applications for "Smaller Apartments" or if there is a vacancy that all the certified applicants for that apartment size have refused. TSAP § VII(A) at 28-29. However, in the event the "borrowing project's tenant body is more than 30% white, OCD shall not select a project whose tenant body is also more than 30% white" from which to borrow applicants. TSAP § VII(A) at 29.

 Pursuant to OCD's approval, the borrowing manager will request a list of all the applicants certified to the neighboring project who qualify for the appropriate vacant apartment size and mail a "canvass" letter to applicants on the list informing them that they may elect to have their applications transferred to the borrowing project. The letter "shall explain that applicants may have their applications remain at the original project without penalty." TSAP § VII(A) at 29.

 D. Applications Outreach

 In the event a project fails to attract sufficient applicants through Project Outreach, or cannot use Project Outreach because none of the neighboring projects have enough applicants on their own waiting lists, the TSAP provides that the District Supervisor shall request that such an under-subscribed project be included in the Applications Outreach Plan. The Applications Outreach Plan may also be used if the Department of Housing Applications determines that borrowing will not solve the project's need for applications or if in the next six months a project is likely to generate several unfilled vacancies.

  The Applications Outreach Plan permits the Department of Housing Applications to poll its computer data base to locate applicants of the appropriate family size (and income levels for projects with income restrictions) from the under-subscribed project's borough list. Applicants identified by this method shall be canvassed by NYCHA to find out if they wish to be interviewed for the under-subscribed project. Applicants responding to the canvass letter agreeing to waive the right to select projects not included in the Applicants Outreach Plan shall be scheduled for an eligibility interview in the order in which their responses are received. Upon eligibility determination, such applicants will be certified to the outreach projects and will be processed with the other applications on the project waiting list. Applicants refusing certification to the outreach projects will have their applications returned the computer data base to await their interview under the regular new applicants procedure.

 E. Tenanting New Projects

 The three sentences constituting the entirety of the TSAP's provision for tenanting new projects are:

 IX. Tenanting New Projects


Projects under construction shall be designated on the Interviewer's Guide as anticipating vacancies approximately six months prior to their scheduled opening date. In addition, prior to opening, new projects may be included in the Applications Outreach Plan set forth in Section VIII B above. After opening, projects shall be tenanted in accordance with the provisions of this Plan.

 No other section of the TSAP identifies itself as relating to the tenanting of new projects.

 V. The Pending Motion

 On October 8, 1993, NYCHA moved this court for an order clarifying the Consent Decree filed with this Court on November 17, 1992. On October 19, 1993, the Davis Plaintiffs cross-moved this court to enforce the Consent Decree and the Government moved to enjoin NYCHA from proceeding with its plan for tenanting the Berry Street Project as set forth in its October 8, 1993 papers. On October 29, 1993 the United Jewish Organizations of Williamsburg, Inc., moved this court for leave to appear as amicus curiae. In anticipation of the ascension of Judge Leval to the Court of Appeals, this consolidated action and the pending motions were transferred to this Court on November 16, 1993, pursuant to Local Rule 13.

 Oral argument on the motions was heard by the court on November 17, 1993. At that time, the court granted leave to United Jewish Organizations of Williamsburg to submit their amicus curiae brief.

 Findings of Fact

 Since the entry of the Consent Decree in November, 1992, NYCHA has built or is in the process of building four new projects: Berry Street, Sutter Avenue, Howard Park, and West Side Development Project. NYCHA's plans for tenanting one of these projects, Berry Street, has created the storm which has resulted in these proceedings. Berry Street, a newly constructed 150-unit low-rise public housing project located in the Williamsburg area of Brooklyn, is ready for imminent occupancy, and NYCHA intends to tenant it with both new applicants and transfer applicants from a unified waiting list arranged by priority code. Sutter Avenue project will consist of approximately 100 units and is expected to open in March 1994. It was listed in the Interviewer's Guide on October 12, 1993. Howard Park, a project with approximately 156 apartment, was listed in the Interviewer's Guide on November 24, 1992 and was opened in May 1993. West Side Development Project is restricted to the elderly. Because of an unexpected acceleration in its completion date, Berry Street was placed in the Interviewer's Guide on July 6, 1993, only four months prior to anticipated rent up.

 On July 13, 1993, NYCHA issued a directive, General Memorandum 3468, to all its project managers to survey those applicants and transfer applicants who had been on their projects' waiting lists for two or more years. The memorandum advised project managers that every prospective tenant or transfer tenant needing a "Smaller Apartment" may request reassignment to the Waiting List of a project then appearing in the Interviewer's Guide or chose to remain on their own projects' waiting lists. Transfer tenants waiting on a project list for "Larger Apartments" were to be told that they could opt to be placed on a borough-wide waiting list and at the same time remain on their original projects' waiting list.

 The NYCHA also included certain "deemed" transfer requests that had been on the intra-project waiting lists for more than two years. According to the 1980 Management Manual, project managers are to prepare overcrowded apartment transfer cards as soon as it becomes known that an apartment is overcrowded or underoccupied. The Management Manual also requires a tenant requesting a transfer to prepare and sign a tenant request for transfer form. Although transfer requests are supposed to be in writing, NYCHA project managers commonly prepared an intra-project transfer file card, as a result of an annual review of the tenants in the project, or oral or written request by a tenant. NYCHA contends that this practice is consistent with the definitions section of the Consent Decree which defines a transfer applicant to "mean any person or family who submits a written request for a transfer, or oral request that is corroborated by a notation, form, or other document in his or her tenant file." Consent Decree at § I, P 1(c).

 Pursuant to this canvassing procedure, nearly 200 project managers reviewed their project waiting lists to determine whether new and transfer applicants on those lists for longer than two years wished to select a different project (for "Smaller Apartments") or be placed on a borough-wide waiting list (for "Larger Apartments"). All told, 9,417 families (8,119 tenant transfer applicant and 1,298 new applicants) who had been waiting on project waiting lists for more than two years were canvassed. *fn7" The racial composition of the 8,119 eligible tenant families awaiting transfer for more than two years was 51.5% Black, 34.9% Hispanic and 12.5% White. In contrast, currently only 6.5% of new applicants on the Housing Application Tracking System ("HATS") are White.

 Of the 9,417 families, 8,136 required "Smaller Apartments" and 1,281 required "Larger Apartments." Of the total canvass, approximately 1,100 families responded positively, 3,450 requested to remain on their current waiting and 4,800 did not respond. Of the 1,100 families who responded positively 47% are White. Of those responding to the canvass seeking three and four-bedroom apartments, 40% are White. Of the 1,281 requiring "Larger Apartments," 446 (35%) requested to be placed on the borough-wide list. Of these 446, 45% are Black, 32% are Hispanic and 23% are White. Of the 611 "Larger Apartment" families waiting on project waiting lists in Brooklyn, 42% are Black, 42% are White and 16% are Hispanic. Of the 168 "Larger Apartment" families requesting to be placed on the Brooklyn borough-wide waiting list, 47% are White, 45% are Black and 8% are Hispanic. According to NYCHA's plans, the likely racial composition of Berry Street is as follows: Apartment Number of Number of Number of Size Apartments Whites Black/Latino 1-bedroom n8 22 0 22 2-bedrooms n9 76(61) 5 56 3-bedrooms n10 46 12 34 4-bedrooms n11 6 6 0 150(135) 26 124


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