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Shepard v. Rhea

United States District Court, S.D. New York

November 7, 2014

JONELLE SHEPARD, YVETTE (GARCIA) VELEZ, AND SHAREMAH LAMOTTE, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
JOHN B. RHEA, et al., Defendants.

OPINION AND ORDER

RONALD L. ELLIS, Magistrate Judge.

I. INTRODUCTION

Plaintiffs Jonelle Shepard, Yvette Garcia Velez, and Sharemah Lamotte (collectively "The Named Plaintiffs"), participants in the New York City Housing Authority ("NYCHA") Section 8 Housing Choice Voucher Program ("the Program"), commenced this action on September 25, 2013, as a putative class action under Federal Rule of Civil Procedure 23, on behalf of themselves and as representatives of all participants in the Program who have requested a Section 8 transfer voucher to be issued on an emergency basis and have not yet received NYCHA's approval to move into a new apartment. (Compl. ¶¶ 1, 13.) The Named Plaintiffs claimed that NYCHA's failure to timely process Section 8 Housing Choice Voucher Program Participants' requests to transfer apartments violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution, the United States Housing Act of 1937 ("the Housing Act") and its implementing regulations, and NYCHA's own policies, and sought injunctive and declaratory relief. (Compl. ¶¶ 1, 15.) On May 13. 2014. the Parties consented to conduct all proceedings before the undersigned. (Docket No. 37.)

Before the Court is a request for final approval of the class action settlement.

Having considered the request for final approval of the class action settlement and the oral argument presented at the April 21, 2014 fairness hearing, and the complete record in this matter, for the foregoing reasons, and for good cause shown, NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED:

The Court certifies the following class under Federal Rule of Civil Procedure 23(a) and (b)(3). for settlement purposes (the "Rule 23 Class Members"):

(1) all participants in the Program ("Tenants") who request or have requested emergency transfers due to either an un-remedied life-threatening or designated hazardous housing quality standard ("HQS") violation or a holdover proceeding in Housing Court based on a landlord's choice not to renew a lease.

II. BACKGROUND

At issue in this action were the administrative procedures underlying NYCHA's Section 8 voucher program. These vouchers provide "tenant-based" rental assistance to low-income individuals. Section 8 voucher recipients are generally free to change apartments, and landlords are generally free not to renew their tenancy. When recipients find a new place to live. NYCHA is required by federal law and its own internal procedures to take steps to transfer the Section 8 assistance from the prior landlord to the new landlord. Prior to the commencement of his proceeding, NYCHA is alleged to have delayed processing participants' emergency transfer requests for months at a time, requested irrelevant information from participants seeking emergency transfer vouchers, and denied requests for transfer vouchers with no notice or opportunity to challenge the decision. Plaintiffs in this action are individuals who: 1) have requested or will request an emergency transfer voucher because of un-remedied life-threatening violations; or 2) have requested or will request an emergency transfer voucher because of a holdover proceeding in Housing Court based on a landlord's choice not to renew a kase.

After exchanging document discovery and engaging in extensive negotiations. including negotiations mediated by the Court, the Parties reached a settlement. (Doc. No. 35 at 5.) The terms of the settlement include new policies and procedures with respect to emergency transfer requests to 1) un-remedied life-threatening hazardous HQS violations. or 2) holdover proceedings in Housing Court based on a landlord's choice not to renew a lease. The terms also provide for a monitoring by an independent auditor. Under the terms of the settlement, a tenant seeking an emergency transfer voucher based on a holdover action shall demonstrate eligibility for a voucher by providing a notice of petition and petition or a 30-day termination notice, along with the written transfer request form. A tenant seeking an emergency transfer voucher because of an HQS violation will not need to provide any information in addition to the written transfer request form. NYCHA will not require a tenant to establish that he or she is a tenant in good standing in any other way as a condition of issuing an emergency transfer voucher. A tenant's request for an emergency transfer voucher will not be denied or delayed for failure to complete annual re-certification unless that tenant's subsidy has been terminated.

Within three weeks of receipt of a request for an emergency transfer voucher. NYCHA will issue a written letter either 1) scheduling an appointment for the tenant to receive the transfer voucher; or 2) denying the tenant's request for an emergency transfer voucher: or 3) requesting additional information. If NYCHA denies the request, the written denial shall include the basis for denying the tenant's request. Such denial shall not be a basis for denial of a new emergency transfer voucher request supported by proper documentation. If NYCHA approves the request, it will schedule the tenant to attend any briefing required to receive the voucher and transfer package within three weeks of NYCHA's letter scheduling the briefing. If NYCHA has grounds for termination of the subsidy of a tenant seeking an emergency transfer, it will process the transfer request unless and until the tenant's subsidy is terminated. If a tenant's written request Coran emergency transfer voucher lists the name and date of birth of a person other than those in the currently authorized household composition, and the person passes a criminal background check. NYCHA will issue a transfer voucher with the person included in the household composition. If the tenant seeks to remove a person from the household composition at the time the tenant requests the transfer voucher. NYCHA will approve the issuance of a transfer voucher without that person included in the household composition. Once a tenant identifies a new apartment, the tenant must submit a rental package. including required documentation regarding members in the household. If the tenant fails to provide documentation regarding a person whom the tenant wishes to be added to the household, the tenant will be issued a voucher with a payment standard appropriate for the tenant's authorized household size. NYCHA will inspect the apartment within four weeks of receiving a request for inspection from the landlord. Upon request of the landlord or the tenant to its Customer Contact Center. NYCHA shall provide the result of the inspection. If the apartment passes inspection, NYCHA will issue a move-in letter within three weeks of the inspection. NYCHA will retain an independent auditor who will issue a report every three months to counsel for both Parties as to the degree to which NYCHA complied with the new policies and procedures. The Court will retain jurisdiction to enforce the settlement for 30-42 months alter approval of the settlement. This time period is designed to allow the Court to determine not only whether the terms of the settlement have been adequately implemented, but whether the changes made have been sustained over time.

On January 31, 2014, this Court entered an Order preliminarily certifying the settlement class, preliminarily appointing the Legal Aid Society and Latham and Watkins, LLP as class counsel, scheduling a fairness hearing for March 20, 2014, and authorizing notice of hearing to be provided to members of the plaintiff class. (Docket No. 28.)

On March 19. 2014 Plaintiffs' counsel informed the Court that they had inadvertently failed to post the Court-approved Notices on their websites, in Legal Aid Society's waiting rooms, and in Housing Courts in all five boroughs. (Docket No.:10.) The Parties appeared before the Court on March 20. 2014. and the Court adjourned the fairness hearing to April 21. 2014 to give the Parties more time to disseminate Notice. On March 21, 2014. the Court entered an Order preliminarily certifying the settlement class, preliminarily appointing the Legal Aid Society and Latham and Watkins, LLP as class counsel, scheduling a fairness hearing for April 21. 2014, and authorizing notice or hearing to be provided to members or the plaintiff class. (Docket No. 32.)

Pursuant to the Court's March 21, 2014 Order. NYCHA posted copies of the Court-approvcd notice at its Customer Contact Centers and on its website. (Doc. No. 35 at 4.) Plaintiffs' counsel posted copies of the Court-approved notice on their websites and in the waiting rooms of the Legal Aid Society's neighborhood offices. ( Id ) In addition, the notice was posted in the Housing Courts in all five boroughs. ( Id ) No objections to the settlement were received. ( Id ) The Court-approved notice informed Class Members of their rights under the settlement, including the right to object to the settlement. No class members objected to the settlement. ( Id. ) On April 16, 2014, Plaintiffs filed a request for final approval of the settlement. ( Id ) Defendants took no position with respect to the motion and did not object to the Plaintiffs' requests for attorneys' fees.

The Court held a fairness hearing on April 21, 2014. Defendants did not appear at the fairness hearing. On April 12, 2014, Defendants informed the Court that they had failed to appear as a result of a calendaring error, and in any event, "agreer[d] with plaintiffs' counsel that the settlement is reasonable and fair to all ...


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