Petition — Harris v. Cole

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— &7- 1463

ut the Supreme Court of the United States

OcToOBER TERM, 1977

Parricia Roperrs Harris, Secrerary or THE De-

PARTMENT OF HousING AND Urnspan DEVELOPMENT.

ET AL., PETITIONERS

Sabie Kk. CoLe,. er AL.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

WADE H. McCREE, JR.,

Solicitor General

JAMES W. MOORMAN,

issistant Attorney General,

JACQUES B. GELIN,

CHARLEs E. BIBLOWIT,

ittorneys,

Department of Juatice

Washington De 20530

Opinions below... | pe eeeeeenooenececeoecceeeecs. ]

Jurisdiction 0 heiepaedeeeneseieeinmetenesennn sienieties l

POSEN POU ene cemeennennnnns..... 2

Statute involved... iebehechenebenmnminenios ieialiniene 2

Statement _.____ PSA ON Omen eesenneecaseneeeccoceccece. 2

Reasons for granting the writ... oocentueenenean 6

Conclusion _.... peseceeceesecceesconnunes.,.. a 1)

Appendix A_______ -oomemeencineccnemememeeenn... — LA

Appendix B____. pe eeweneneeeennececccececees.... — | |

Appendix C_..-- a eee ———e

CITATIONS

Cases :

Ale rand, ; . De partment of Housing and l; by an

Der te wwlhecbioneet 2d 166 -Seccaahmeceas . — , 15

C'aramico vy. Nev 7" tary of the Dy partment of ee

and Urban Dew lopme nt, 509 FL 2d 694.000 8,9,15.17

Cole vy. Lynn, O89 F, Sup Os Wi esentncnchescvastsennmmeseesine - 4

Hlarrias y. Lynn, 555 F. 2d 1: 357, afirming 11 F, Supp.

692, certiorari de nied, October ol, 1977 (No. 77-

5233 eee

Statute :

Uniform Relocation Assistance and Real Property Ac-

quisition Policies Act of 1970. 84 Stat. 1894, 42 US.c,

4601 ef a » aa ousienemean 4

Section 101 ( (6),42 U. ~ 4601 (6) .___ 2, 0, 6,8, 13, 14. 15

Section 202, 49 17 SC. ion a eicnasentiaienciesc-eneneneneneneness i 6.18

Section 203, 49 U.S.C, 4033.......... —eeeeeeannan 6

Section 204, 49 U.S.C, 4624... _ mht aN 6

Section 205, 42 U.S.C. 4625.22.00. 6

Section 212, 49 U.S.C, 4632_..-000 : 18

Title IIT, 42 U.S.C, 4651-4655_--00 16

(1)

Miscellaneous: P;

115 Cong. Ree. 31572 (1969) __. . lv

116 Cong. Ree. (1970):

P. 42139 l

H.R. Rep. No. 1656. 91st Cong... 2d Sess, (1970) . 19. 18. I

S. 1. Dist Cong... Ist Sess. (1969)

‘*o.

S. 1. 01st Cong.. 2d Sess. (1970) lv

St the Supreme Gourt of the Wnited States

OcroBeR TERM, 1977

——_.

No.

Parricia Roperrs HARRIS, SECRETARY OF

THE Dr-

PARTMENT

OF Hovsina anp Urpax DEVELOPMENT,

ET AL., PETITIONERS

Vv.

SADIE E. Corr. ET AL.

—_.

ON PETITION FOR A WRIT OF CERTIO

STATES COURT OF

CIRCUIT

RARI TO THE UNITED

APPEALS FOR THE DISTRICT OF COLUMBIA

The Solicitor General,

on behalf of the Secretary

of Housing

and Urban Development,

petitions for a

writ of certiorari to

review the judgment of the

ot Appeals for the District of

Columbia Circuit in thi

United States Court

S case,

OPINIONS BELOW

The opinion of the Court of

fra) is not yet reported. The

court (App. ('

appeals (App. A, in-

opinion of the district

a infra) 1S unreported,

JURISDICTION

The judgment of the court of appeals (App. B.

infra) was entered on November 14, 1977. On F;, bru-

ary a 1978, Mr. Justice Brennan extended the time

(1)

within which to file a petition for a writ of certiorari

to and including April 13, 1978. The jurisdiction of

this Court is invoked under 28 U.S.C, 1254(1).

QUESTION PRESENTED

Whether tenants who are ordered to vacate a hous-

ing project that has been conveyed to the Department

of Housing and Urban Development after default by

the project’s sponsor are “displaced persons” entitled

to relocation benefits under the Uniform Relocation

Assistance an . Real Property Acquisition Policies Act

of 1970, where the order to vacate is unrelated to the De-

partment’s acquisition of the property.

STATUTE INVOLVED

Section 101(6) of the Uniform Relocation Assist-

ance and Real Property Acquisition Policies Act of

1970, 84 Stat. 1894, 42 U.S.C. 4601(6), provides:

The term “displaced person” means any per-

son who, on or after the effective date of this

Act, moves from real property, or moves his

personal property from real property, as a

result of the acquisition. of such real property,

in whole or in part, or as the result of the

written order of the acquiring ageney to vacate

real property, for a program or project under-

taken by a Federal agency, or with Federal

financial assistance; * * *.

STATEMENT

The Sky Tower apartment complex in Southeast

Washington, D.C., was built in the 1950s. The 19

buildings in the complex contained 217 small “garden”

apartments. In 1970, a nonprofit corporation pur-

chased Sky Tower and attempted to rehabilitate the

complex by converting the units into larger apartments

intended for low and moderate income families. The

Department of Housing and Urban Development pro-

vided assistance to the corporation and the tenants

by insuring the mortgage on the complex, subsidizing

the mortgage interest payments, and paying rent sup-

plements for a number of the households (App. A,

tufra, pp. 2A-3A).

In spite of this assistance, the rehabilitative effort

failed. After the original general contractor defaulted

on performance of the rehabilitation work. the De-

partment took the unusual step of permitting an in-

crease in the amount of the insured mortgage, along

with a substitution of contractors. But the second con-

tractor also abandoned work and, in addition. plaeed

a lien on the property, whereupon the mortgagee

declared the nonprofit owner in default and foreclosed

(App. A, infra, p. 3A). Then the mortgagee, exercis-

ing its rights under the mortgage insurance contract,

conveyed title to the project to the Department in ex-

change for the statutory mortgage insurance benefits.

The Department took title in June 1973 (App. <A,

infra, p. BA).

The Department hired a management firm to oper-

ate the project and executed new month-to-month

leases with the tenants on the same terms as their pre-

vious leases. By September 1974, however, the De-

partment determined that in view of the deteriorated

condition of the project, further efforts at rehabilita-

tion would be futile. Department officials decided that

the project should be demolished and the property

sold (App. A, infra, p. 3A). Accordingly, in Septem-

ber 1974 the management firm gave notice to the re-

riatiiing 72 families re siding in Sky ‘Tower to vacate

their apartments. Tenants who were currert in their

reut pavinents were granted S500 To moving expehses

ere exempted from their last month's rent

(App. A, infra, pp. SA-4A).

Respondents, 1 group of Sky Tower tenants, then

brought this action in the United States District Court

lor the District of Columbia, challenging the Depart-

ment’s decision to raze Sky Tower rather than reha-

militate it and seeking injunctive relief and damages.

One of their claims was that the Department had

ed to provide them with benefits under the Uni-

rm Relocation Assistance and Real Property Aequi-

sition Policies Act of 1970 (Uniform Relocation Act

S4 Stat. 1894, 42 U.S.C. 4601 et seq. (App. A, infra,

The district court issued a preliminary injunction

barring the Department from further demolition or

evictions at the project, requiring it to rehabilitate

certain of the buildings, and ordering it to offer the

tenants who had moved out the opportunity to move

back in at the Department's expense (App. A. ti fra,

pp. 4A-5A).’ Cole v. Lynn, 289 F. Supp. 99 (D. D.C.).

Only 18 of t © eo fam Cs who |

enant to the order elected to return after the injunction was en-

tered ( App. A, infra, p. S.A)

ad vii atec rhe proj} t pur-

NN S'::’é“~s errr ——_—_———

After extended proceedings in the district court and

the court of appeals, the Department reached an agree-

ment with the District of Columbia government under

which Sky Tower would be transferred to the District

of Columbia, with the Department providing substan-

tial subsidies for its continued operation (App. A,

infra, p. TA n. 17).

Meanwhile, both parties moved for summary judg-

ment on respondents’ claim that the tenants who had

vacated their apartments were entitled to Relocation

Act benefits. The district court granted respondents’

ji motion in part (App. C, infra, pp. 52A-54A), holding

| that tenants who had vacated their apartments as a

result of the Department’s notice to quit were entitled

: to a prorated portion of the Relocation Act benefits

covering the period between the time they left the

project and August 1, 1975, the date that they were

é Ajrmitted to return under the district court’s injunction

(App. A, infra, p. 7A).

The court of appeals affirmed in part and reversed

in part, with one judge dissenting (App. A, infra, p.

19A). The court held that the tenants who left Sky

Tower after receiving the Department's notice to quit

were “displaced persons” within the meaning of See-

tion 101(6) of the Uniform Relocation Act, 42 U.S.C.

! 4601(6), and were therefore entitled to the Act’s bene-

; fits. In addition, the court held that those tenants

who did not return to Sky Tower when the district

court’s injunction made their return possible were

nevertheless entitled to full Relocation Act benefits,

not prorated benefits terminating when they could

have returned to the project, as the district court had

held (App. A, infra, pp. 17A-19A).

REASONS FOR GRANTING THE WRIT

1. The decision of the court of appeals in this case

conflicts with the decisions of three other courts of

appeals on an important question under an important

statute, the Uniform Relocation Act.

The Act provides a variety of benefits to persons

who meet the statutory requirements for eligibility

as ‘displaced persons.” Under specified cireum-

stances, the Act provides ‘‘moving and related ex-

penses,” 42 U.S.C. 4622; ‘‘replacement housing pay-

ments”? of up to $15,000 for homeowners and $4,000

for tenants, 42 U.S.C. 4623, 4624; and ‘*relocation

assistance advisory services,” 42 U.S.C. 4625. The

definition of “displaced person” is contained in Sec-

tion 101(6) of the Act, 42 U.S.C. 4601(6), which pro-

vides in relevant part:

The term “displaced person” means any per-

son who * * * moves from real property * * *

as a result of the acquisition of such real prop-

erty, * * * or as the result of the written order

of the acquiring agency to vacate real prop-

erty, for a program or project undertaken by a

Federal agency, or with Federal financial

assistance; * * *.

The definition contains two clauses: the “acquisi-

tion clause,’ which reaches those who move as a re-

sult of an actual acquisition of property for a

program or project undertaken by a federal agency,

and the “written order clause,”’ which reaches those

who move as a result of a written order by the ac-

quiring agency to vacate the premises for a federal

program or project, even where the proposed acquisi-

tion never takes place.

The principal issue presented by this case is whether

the written order clause applies only to tenants who

are directed to vacate in connection with an acquisi-

tion or proposed acquisition of property, or whether

that clause extends the benefits of the Act to all

tenants who are ordered to vacate property previously

acquired by a federal agency. A secon related issue

involves the meaning of the phrase, ‘‘for a program

or project undertaken by a Federal agency,” which

designates the purpose for which the acquisition (or,

on one view, the written order) must be intended.

On the first issue, the decision of the court of ap-

peals here is in conflict with the decision of the Court

of Appeals for the Seventh Circuit in Alerander v.

U.S. Department of Housing and Urban Develop-

ment, 555 F. 2d 166, petition for writ of certiorari

pending, No. 77-874,’ and with the decision of the

Court of Appeals for the Eighth Circuit in Harris vy.

Lynn, 555 F. 2d 1357, affirming 411 F. Supp. 692

(E.D. Mo.), certiorari denied, October 31. 1977 (No.

Kooy

(i—-J230 )

*In our Brief for the Respondent in No. 77-874. we have sug-

gested that the petition in that case be considered together with

the present petition, As stated there. we do not oppose the grant-

ing of the petition in that case together with our petition here.

The court below held that respondents were “dis-

placed persons” under the written order clause be-

eause the Department ~ ‘acquired’ Sky Tower within

the common meaning of that word” (App. A, infra,

p. 9A)—thus becoming, in the court’s view, the “ac-

quiring agency” within the meaning of Section 101

(6)—and because the Department subsequently gave

the tenants written orders to move (App. A, infra, pp.

9A-10A). For both the Seventh and the Eighth Cir-

cuits, however, that is not enough. Those courts read

the Act as requiring that the order to vacate be

issued in connection with an acquisition or contem-

plated acquisition of property. See Alexander vy. U.S.

Department of Housing and Urban Development,

supra, 555 F. 2d at 170; Harris v. Lynn, supra, 411

F. Supp. at 695, opinion adopted, 555 F. 2d at 1399.

It is not enough, in their view, that the tenants he

ordered to vacate property previously acquired by a

federal agency.

On the second issue, the decision below conflicts

with the Seventh Cireuit’s decision in Alexander and

with the decision of the Court of Appeals for the

Second Circuit in Caramico v. Secretary of the De-

partment of Housing and Urban Development, 509

F. 2d 694. The court below held that the written orders

to quit were issued “ ‘for a program or project under-

taken by a Federal agency’ ” because they were issued

in anticipation of the demolition of Sky Tower (App.

A, infra, p. lOA).’

'“Morcover, it is clear that the Sky Tower tenants were ordered

to vacate their apartments ‘for a program or project undertaken

by a Federal agency. namely, the demolition of the buildings”

(App. A, infra, p. 1OA).

Again, the other courts read the statute to require

more. ‘Lhe Seventh Circuit stated in Alexander (555

F’, 2d at 170) :

We fail to see how a decision to terminate

a project can itself become a project in the

absence of some indication that the decision

to terminate and the order to vacate constitute

a prelude to some governmental undertaking

amow ting to a program designed for the benefit

of the publie as 2 whoie.'*'

And the Second Cireuit in Caramico, interpreting

the acquisition clause, held that the federal govern

ment’s involuntary acquisition of property by thie

operation of mortgage insurance provisions is not /an

acquisition “ ‘for a program or project undertaker by

a Federal agency’ ” within the meaning of the Act.The

court stated (509 F. 2d at 698-699) :

Thus, it is clear that the Act contemplates

normal government acquisitions, which gre the

* The court of appeals here attempted to distinguish this hold-

ing of Alexander on the basis that there the Departnient “had

made no plans for the future of the buildings,” whereas here the

demolition of Sky Tower was intended to help “eliminate blight”

and to lead to revitalization of the area (App. A, infra, p. LIA

n. 2+). The court here appears to have squarely held, however,

that the demolition itself constitutes “a program or project”

within the meaning of the statute (App. A, infra, p. 10A). More-

over, since purposes such as eliminating blight and revitalizing the

area presumably attend most if not all governmental decisions to

demolish deteriorating housing projects, the asserted distinction

seems unlikely to reflect any difference in fact. (In Alexander the

purposes were simply undisclosed. The plaintiffs “pointfed] out

that the purpose behind HUD’s decision to order the tenants to

vacate Riverhouse is undisclosed from the record. and that the

Secretary has several options: rehabilitation. demolition, or sale

of the facility.” 555 F. 2d at 170.)

result of conscious decisions to build a highway

here or a housing project or hospital there. In

such cases, the acquisition of property and the

relocation of certain individuals is a necessary

first step in the project. Default acquisitions by

the FHA, however, embody no conscious

governmental decisions at all. *** Tn fact, the

default acquisition may be said to represent a

failure of the FHA program rather than its

desired result.

Resolution ‘of the differences between the court

below and the other courts of appeals is important to

the administration of the Relocation Act. Under the

view adopted by the court below, relocation benefits

under the Act would be available, in general, to all

tenants who were ordered to move by a federal agency

(or by a state or local agency acting with federal

financial assistance). Under the view adopted by the

other courts of appeals, benefits would be available

under the Act only if the tenants were ordered to

move in connection with the acquisition or contem-

plated acquisition of the property, and only if the

required connection with “‘a program or project

undertaken by a Federal agency’ ’’ was also present.

The difference between the two interpretations of

the Act has considerable practical significance with

respect to involuntary federal acquisitions such as

the one involving Sky Tower. The Department of

Housing and Urban Development has been required,

under mortgage insurance contract agreements of the

kind involved here, to take title to a large number of

housing developments that have come under default.

The Department anticipates that this necessity will

continue. Resolution of the question whether the Relo-

cation Act applies to orders to vacate issued by the

Department to tenants residing in such involuntarily

acquired properties, at any date subsequent to the

acquisition, is essential to enable the Department to

weigh the human and material costs of demolishing a

failing project rather than allowing it to continue de-

teriorating or devoting further resources to what has

been an unsuccessful effort to rehabilitate it. Moreover,

since the Relocation Act applies to all federal agen-

cies—and also to state and local agencies acting with

federal financial assistance—resolution of the issues

presented here is important to all federal agencies—

and many state and local ones—that own property on

which tenants reside.

2. On the merits, the interpretation of the Reloca-

tion Act by the court below was erroneous. The court

gave an unduly broad interpretation both to the writ-

ten order ciause and to the plfase “for a program or

project undertaken by a Federal agency.’ ”

a. While the court based its interpretation on what

it considered the “plain terms” of the written order

clause (App. A, infra, pp. LOA, 11A), we do not find

the matter so clear. The written order clause speaks

of a “written order of the acquiring agency.”’ The

court read “acquiring agency” to include an agency

that has acquired the property in question at any

time in the past (App. A, infra, p. 9A), but it is at

least equally plausible from the face of the statute

that the phrase denotes an agency that is engaged in

or proposing to engage in an acquisition. If Congress

had indeed meant “the written order of the agency

that has acquired the property,” it could well have

said just that.

The apparent ambiguity is resolved by examination

of the legislative history. The legislative history dlis-

closes that the written order clause was intended to

provide a minor supplement to the coverage of the

acquisition clause, not to expand the scope of the

statute beyond the context of acquisitions of property

for affirmative programs or projects.

The initial version of the written order clause ap-

peared in the Senate bill, where a “displaced person”

was defined as a person forced to move from prop-

erty “as a result of the acquisition or reasonable ex-

pectation of acquisition of [the] property * ** bya

Federal or State agency” ( emphasis added). S. 1 91st

Cong. Ist Sess. 105(1)-(5) (1969) 115 Cong. Ree.

31372 (1969). In the House Public Works Committee,

the language was changed to the form ultimately en-

acted, which requires that the tenant actually be or-

dered to move by “the acquiring agency”? instead of

being eligible for benefits simply on the basis of a

reasonable expectation that an acquisition would occur,

See S. 1 91st Cong., 2d Sess. 1(6) (1970), 116 Cong.

Ree. 40163 (1970). As the House Report noted: “Ifa

person moves as a result of such notice to vacate, it

makes no difference whether or not the real prop-

erty actually is acquired.” H.R. Rep. No. 1656, 91st

Cong., 2d Sess. 4 (1970).

When the bill returned to the Senate, the only ref-

erence to the change in the definition of “displaced

person” appeared in a memorandum on “points of sig-

nificant concern” submitted by Senator Perey on be-

half of the Administration. 116 Cong. Ree. 42139

(1970). The memorandum read, in relevant part:

Definition of displaced person. The House

bill would limit the status of displaced person

to those who move as the result of the acquisi-

tion of, or written notice to vacate, real prop-

erty. The Senate version would provide a

broader definition which includes those who

move as the result of acquisition or reasonable

expectation of acquisition.

Consistently with the House Report, this memorandum

reflected the understanding that the House bill nar-

rowed the scope of the Senate language. The House

version prevailed over the Senate’s “broader defini-

tion,” and the language put forward by the House

became the written order clause in Section 101(6) of

the Act.

Thus it would appear, as Judge Wilkey concluded

in his dissenting opinion below, that the change by

the House ‘“‘limited the definition, and certainly did

not vastly expand it by covering all persons displaced

with notice from property already owned and ac-

quired by the agency’? (App. A, infra, p. 41A (em-

phasis omitted)). As Judge Wilkey also concluded,

the House and Senate versions of the written order

clause *‘shared the same purpose,” which was ‘‘to cover

those given notice who moved prior to acquisition or

who moved even though the anticipated acquisition

did not oceur” (ibid. (emphasis omitted) ).

Accordingly, the written order clause cannot prop-

erly be construed to bring within the coverage of the

Relocation Act all tenants who are ordered to vacate

premises owned by a fede ‘al agency. The written

order clause supplements the acquisition clause by

dispensing with the need for an actual acquisition so

long as there is a written order to vacate. Like the

acquisition clause, it is concerned with, and limited to,

tenants who are required to vacate property in con-

nection with the acquisition or anticipated acquisition

of that property.

b. The court of appeals gave a similarly broad con-

struction to the phrase “‘for a program or project

undertaken by a Federal agency.’ ” In the court’s view,

“the Sky Tower tenants were ordered to vacate their

apartments ‘for a program or project undertaken by

a Federal agency’*’ because “the demolition of the

buildings” was itself such a program or project (App.

A, infra, p. 10A). At least this is true, the court

added, where the demolition is “part of a program to

‘eliminate blight’ and revitalize the area (App. A,

infra, p. 11A and n. 27).

As Judge Wilkey noted in his dissent (App. A,

infra, pp. 28A-32A), this argument misses the point.

To meet the requirements of Section 101(6) of the

Relocation Act, it is the acquisition of the property

that must be for a federal “program or project.” Even

if the demolition were considered such a program or

project,’ or even if the demolition anticipates a fur-

ther program or project, that is not sufficient to trig-

ger the statute unless the agency's acquisition of the

property—not simply its order to vacate—was made

for that purpose.

This conclusion is indicated by the language of Sec-

tion 101(6). The court of appeals construed the phrase

“‘for a program or project undertaken by a Federal

agency’”’ as referring both to the word “acquisition’’

and to the term “written order.” The phrase is more

naturally read, however, as referring back singly to

the “acquisition,” which appears expressly in the ae-

quisition clause and implicitly through “acquiring

agency’” in the written order clause. The written order

clause functions as an appositive to the acquisition

clause, not as an independent and separate concept.

The purpose and the legislative history of the Act

support this construction. The legislative materials

indicate that Congress intended the Relocation Act to

provide benefits only to those who were foreed to

move because of an acquisition of property—or an

anticipated acquisition—undertaken to make possible

a federal project such as the construction or rehabili-

tation connected with a public works or urban renewal

program. The House Report on the Act, H.R. Rep.

No. 1656, supra, at 2, stated:

The need for [relocation benefits] arises from

the increasing impact of Federal and federally

assisted programs as such programs have

evolved to meet the needs of a growing and

°In accordance with the holdings in Alexander and Caramico,

we submit that it is not.

258-827 —-7S——3

increasingly urban population. In a less com-

plex time, Federal and federally assisted public

works projects seldom involved major displace-

ments of people. There was relatively little tak-

ing of residential or commercial property for

farm-to-market routes or for reservoirs or

publie buildings. Indeed, local support for such

projects often resulted in little, if any, cost for

land acquisition or rights-of-way. However,

with the growth and development of an economy

which is increasingly urban and metropolitan,

the demand for public facilities and services

has increasingly centered on such urban areas,

and the acquisition of land for such projects

has become the most difficult facet of many

undertakings by publie agencies, Also, a major

publie project—be it a highway, urban renewal

project, or hospital—inevitably involves the

acquisition and clearance of sites which now

provide residential, commercial or other

services.)

Congress thus intended the Relocation Act to al-

leviate some of the harshness of the displacements

required by the acquisition of property for federal

projects, in part by providing compensation for inter-

ests not compensable under the law of eminent do-

main. See H.R. Rep. No. 1656, supra, at 1, 2. Con-

* The context of the Relocation Act also indicates that the Act

was intended to apply to acquisitions for federal programs or proj-

ects, not to involuntary acquisitions of defaulted properties. Title

III of the Relocation Act, 42 U.S.C. 4651-4655, sets out policies

governing “real property acquisition” under the Act. The only

methods of acquisition considered in that Title are negotiation and

condemnation.

CC EEE'’~' ' ra

gress also intended to compel the ageney considering

the projects to include the payments required by the

Act among the costs of the project, to be weighed

against its benefits and paid out of the project pro-

ceeds. Congress did not intend to escalate the cost of

governmental actions consequent upon financial de-

fault, nor did it intend to handicap a public agency

seeking to minimize its losses in these circumstances,

As the Second Circuit pointed out in Caramico

(509 F. 2d at 698-699), “the Act contemplates normal

government acquisitions, which are the result of con-

scious decisions to build a highway here or a housing

project or hospital there, * * *» The Act thus has no

application where the order to move is not made in

connection with an acquisition of property for a fed-

eral program or project.

3. The interpretation adopted by the court of ap-

peals would invite anomalous results, The agency ac-

quiring the property after a default could avoid any

obligation to pay relocation benefits by insisting that

the mortgagee deliver the property unoecupied, as was

done in the Caramico ease (see 509 F. 2d at 696). In-

ducing agencies to take this step in order to avoid the

obligations of the Relocation Act would serve no dis-

cernible policy interest and might well result in

greater hardship to the affected tenants.’

" Also, the basis on which the court of appeals attempted to dis-

tinguish the Alerand, m case, see note 4, supra, would invite the

agency to order the tenants to vacate at the earliest possible time

after acquiring the property, before the agency had settled on

any particular plan for disposing of the property after demoli-

In addition, the reading given the statute by the

court of appeals could have the curious result of fore-

ing the Department of Housing and Urban Develop-

ment to make replacement housing payments (totaling

as much as $15,000) to homeowners who default on

their own federally insured mortgages. 42 U.S.C, 4052.

‘The Department could also be faced with claims for

statutory relocation benefits by absentee landlords who

default on mortgage payments and whose “husizess”

is “displaced” as a result of foreclosure. 42 U.S.C.

4622. .

To be sure, courts faced with such claims might find

ways to avoid extending the decision in this case to

{hose situations. These examples and others that might

be posed illustrate, however, the uncabined reach of

the decision below and the inconsistency of that deci-

sion with the intended scope of the Relocation Act.

4. The Department of Housing and Urban Devel-

opment is not insensitive to the hardships that often

accompany being forced to move from a federally

owned housing development. The Department is now

examining measures to provide some level of benefits

to persons who are required to move from a Depart-

ment-owned project hut who do not qualify for benefits

under the Department’s interpretation of the Reloca-

tion Act. The level of assistance contemplated would

he designed to enable each individual to find a decent,

safe, — and affordable unit in which to relo-

cate, as well as providing reimbursement for reasona-

ble moving expenses. It would not, however, include

the substantial money payments required by the

Relocation Act.

The Department is currently considering whether it

ean provide such assistance by regulation under exist-

ing program statutes or whether it must seek new

legislation and authorization for funding. The De-

partment is also considering the appropriate eligibility

criteria and levels of assistance.

Because of the uncertainty generated by the con-

flict among the circuits, and because the decision

below has a substantial financial impact on the De-

partment of Housing and Urban Development (and

other federal, state, and local agencies) and deprives

the Department of the flexibility it needs to devise a

new program of appropriate relocation benefits for

qualifying tenants, reviewed by this Court is war-

ranted.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

Wane H. McCrer, Jr.,

Solicitor General.

James W. MoorMAN,

Assistant Attorney General.

Jaceues B. GELIN,

CuarLes E. Bis_owit,

Attorneys.

APPENDIX A

United States Court of Appeals for the

District of Columbia Circuit

(No. 75-2268)

Sapre KE. CoLe, er Au.

Parricia Roperts Harris, [NpIvipvALLY AND IN HER

OrriciaL Capacity AS SECRETARY OF THE UNTTED

StTaTes DEPARTMENT OF HovusineG aND URBAN DEVEL-

OPMENT, ET AL., APPELLANTS

(No. 75-2269)

SaprE E. Coie, ET Ab., APPELLANTS

Patricia Roperts Harris, INDIVIDUALLY AND IN HER

OrFiciaL Capacity aS SECRETARY OF THE UNITED

States DEPARTMENT OF Hovusinc AND URBAN DEVEL-

OPMENT, ET AL.

Appeals from the United States District Court

for the District of Columbia

(D.C. Civil 74-1872)

Argued January 11, 1977; Decided November 14, 1977

Charles E. Biblowit, Attorney, Department of

Justice with whom Peter R. Taft, Assistant Attorney

General, Earl J. Silbert, United States Attorney,

(iA)

Nathan Dodell, Assistant United States Attorney and

Jacques B. Gelin, Attorney, Department of Justice

were on the brief for appellants in No. 75-2268 and

appellees in No, 75-2269. Robert N. Ford, John A.

Terry and Robert M. Werdig, Jr., Assistant United

States Attorneys also entered appearances for appel-

lants in No. 75-2268 and appellees in No. 75-2269.

Florence Wagman Roisman, with whom Lyun

Edward Cunningham was on the brief, for appellants

in No. 75-2269 and appellees in No. 75-2268. Ann K.

Macrory also entered an appearance for appellants in

No. 75-2269 and appellees in No. 75-2268.

Before: Bazeox, Chief Judge McGowan, and

Wiuxey, Circuit Judges.

Opinion for the Court filed by Chief Judge BAaZzELon.

Dissenting opinion filed by Circuit Judge WILKEy.

Bazeton, Chief Judge: The central issue on appeal

is whether appellees, former tenants of the Sky Tower

apartments in Southeast Washington, D.C., qualify for

relocation assistance under the Uniform Relocation

Assistance and Real Property Acquisition Policies

Act. A subsidiary issue is whether, if they qualify, they

should receive the full benefits of the Act or only some

prorated portion of them. We hold that they qualify

for full benefits under the statute.

T. STATEMENT OF THE CASE

Sky Tower was built in the 1950s under a program

which provided Federal Housing Administration

(FHA) insurance for veterans. It consisted of 19

buildings of garden-type apartments containing 217

1 42 U.S.C. § 4601 et seg. (1970) (hereinaiter referred to as the

Uniform Relocation Act).

one- and two-bedroom units. In 1970, a non-profit

corporation purchased Sky Tower and secured a

mortgage insured by the Department of Housing and

Urban Development (HUD) under Section 236 of the

National Housing Act.’ The corporation undertook to

rehabilitate Sky Tower and transform it into a 150-

unit, complex of larger apartments to serve low and

moderate income families. HUD subsidized the inter-

est rate on the mortgage * and undertook to pay rent

supplements for up to 60 households. In addition, 20

units were to be leased to the National Capital Housing

Authority which would re-lease them at public housing

rents to eligible households.*

By November, 1972, the original and a second gen-

eral contractor had both defaulted in their perform-

ance of the rehabilitation work. The mortagee then

foreclosed on the mortgage and conveyed title to the

project to HUD in exchange for mortgage insurance

benefits as authorized by statute.’ At that time, 8 build-

ings had been completely rehabilitated, 3 were ap-

proximately half rehabilitated, and work had not vet

begun on 8 others.

HUD took title to Sky Tower on June 15, 1973, and

hired a management firm to operate the project. New

month-to-month leases were executed with the tenants

under the same terms as formerly. But by September,

1974 the agency had concluded that further rehabilita-

tion was futile; it decided to demolish Sky Tower and

sell the vacant land to developers for the construction

of single family homes for middle-income families, On

September 27, 1974, HUD’s property manager sent no-

? 12 U.S.C. § 1715z-1 (1970).

* Pursuant to § 236, 12 U.S.C. § 1715z-1 (1970).

* Pursuant to 42 U.S.C. § 1401 et seg. (1970).

°12 U.S.C. $$ 1713(g) and (k) (1970).

tices to the 72 families then residing at Sky Tower in-

forming them of HU D’s decision and giving them 30

days notice to vacate the premises.’ Nine of Sky

Tower’s 19 buildings were demolished in December,

1974, and January, 1975, Departing tenants who were

not in arrears in their rent were eiven $300 for moving

expenses and exempted from paying their last month’s

rent. HUD also claims to have assisted them in finding

suitable new homes, but that is vigorously disputed

by the tenants.’

On December 25, 1974, appellees brought suit on be-

half of the tenants who had left Sky Towers pursuant

to the eviction notices and the few tenants who re-

mained there. They challenged HUD’s decision to raze

‘ather than rehabilitate the complex on several

grounds and they sought declaratory and injunctive

relief, as well as damages. One of their claims was that

HUD had failed to comply with the Uniform Reloca-

tion Act.

On January 28, 1975, the District Court issued a

temporary rest raining order against any further dem-

olition. On February 7, the TRO was expanded into a

preliminary injunction. Severely eastigating HUD.

for reaching an irrational decision and failing “to

weigh the human values it was created by Congress to

protect,”’* the trial judge enjoined any further dem-

olition or evictions and ordered HUD to (1) elean up

the rubble around the site; (2) restore the undemol-

ished buildings to a condition at least as decent, safe,

and sanitary as that existing as of September 17,

1974; (3) permit all former tenants who had left Sky

Tower subsequent to September 17, 1974, to return to

6 The deadline was later extended to January 31, 1975.

T See, e.g JA 19, 21, 24, 26, 27, 32. 34, 37, 40, 64.

® Cole v. Lynn, 389 F. Supp. 99, 105 (D.D.C. 1975).

the restored buildings at HUD’s expense; and (4)

provide security services adequate to prevent vandal-

ism.® The trial judge noted that these affirmative di-

rectives were necessary because “[o]nly by filling the

buildings with qualified needy tenants can the project

remain viable pending final determination ;” otherwise

“vandalism, empty apartments and continuing unsafe

conditions would, as a practical matter, effectively ae-

complish demolition by a process of erosion.” ”°

HUD appealed from the portions of the prelimi-

nary injunction requiring it to restore the buildings

and arrange for the return of the tenants. But both

the Distriet Court and this Conrt refused to stay the

order pending appeal, and, after HUD had complied

with its terms, the appeal was dismissed as moot.”

But compliance was slow in coming. The trial judge

repeatedly noted HUD ’s “continuing defiance”’’ of the

order and took numerous steps to compel obedience,

including finally an order to show cause why the gov-

ernment should not be held in contempt.” Six months

passed before any tenant was returned to Sky Tower.

As of February, 1975, 17 households were still liv-

ing at Sky Tower and 55 households had moved out.

Most of those who had been displaced had relocated

in units that were more expensive, smaller, or other-

wise less desirable than the units they had left at Sky

Tower. When HUD determined to evict the tenants

from Sky Tower, it thrust them into a housing mar-

ket that could not accommodate them. Instead, it was

the acute shortage of honsing in the District of Co-

* Jd. at 106.

"Cole v. Lynn, No. 75-1543 (D.C. Cir., dismissed Sept. 29,

1975). .

*® JA 79. See also Cole v. Iills, 396 F. Supp. 1235 (D.D.C. 1975).

lumbia for low-income persons with large families—

the very class Sky Tower served—that made the deci-

-sion to demolish so shocking to the trial judge.

The record shows that tenants experienced consid-

erable difficulty in securing replacement housing.”

One tenant’s rent increased from $84 to $189.50—out

of a total income of $243 per month for herself and

two children. Another had to spend $185 for rent out

of a total monthly income of $207—compared to $98

for rent at Sky Tower.”

The practical effect of the preliminary injunction

on these tenants was notification in July, 1975, that

they could return to Sky Tower. HUD would pay

their moving expenses and any expenses incurred in

breaking their new leases. But the letter also stated:

The future of Sky Tower Apartments is not yet

known. As a result of the Court case, HUD is

taking a new look at the question of demolition

of Sky Tower. If HUD should still decide to

demolish, that decision would be reviewed by

the Court. While it is possible that Sky Tower

will ultimately be demolished, it is also possi-

ble that it will not. In the meantime, the

Court’s order requiring HUD to rehabilitate

the units and move tenants back into the re-

stored units will remain in effect.”

Faced with this uncertainty and the very real possi-

bility of being uprooted yet again, only 18 families

decided to return to Sky Tower.

On September 12, 1975, the District Court granted

partial summary judgment for the tenants, holding

that the tenants who had vacated Sky Tower were

8 See note 7 supra.

™ JA G4 and 29.

15 Joint letter sent to all former tenants of Sky Tower, July 16,

1975

entitled to benefits under the Uniform Relocation Act.

Specifically, the court entered a declaratory order

that any person who was a tenant of Sky Tower on

September 27, 1974, and who had vacated his or her

apartment as a result of HUD’s notice, was entitled

to a prorated portion of the benefits provided under

Section 204 of the Act for the period between the

date that tenant left Sky Tower and the date the

tenants were permitted to return pursuant to the

court's preliminary injunction (i.e., August 1, 1975).

The government took this appeal from the holding

that the Uniform Relocation Act applies. The ten-

ants cross-appeal from the termination of benefits

on August 1."

TT. Appuicapinity or tHe Uniroru ReLocation Act

The Uniform Relocation Act was passed in 1970 to

establish a uniform poliey for the fair and equitable

treatment of all persons displaced as a result of any

federal or federally assisted program.” It replaced a

patchwork of piecemeal relocation statutes. For dis-

placed tenants, it provides the following benefits: (1)

actual reascnable moving expenses, or a moving ex-

pense allowance of up to $300 and a dislocation al-

lowance of $200," and (2) a payment of the amount

*® 42 U.S.C. § 4624 (1970).

** Subsequently, the District Court, with the consent of the

parties, remanded the question of the disposition of Sky Tower to

HUD for reconsideration in light of the concerns expressed in the

court’s opinion on the preliminary injunction. On December 17.

1976, HUD reported to the court that it had decided not. to de-

molish the buildings but rather to transfer them to the District of

Columbia, with HUD continuing to contribute substantial rent

subsidies.

* 42 U.S.C. $ 4621 (1970).

* 42 U.S.C. § 4622(a) (1) and 4622(b) (1970).

necessary to rent a comparable decent, safe, and sani-

tary dwelling for up to four years, but not to exceed

£4,000. Most importantly, the Act provides that:

No person shall be required to move from his

dwelling on or atter January 2, 1971, on ac-

count of any Federal project, unless the Fed-

eral agency head is satisfied that replacement

housing, in accordance with section 4625 (¢) (3)

of this title, is available to such person.”

Section 4625(¢) (3) specifies that such replacement

housing must be “in areas not generally less desirable

in regard to public utilities and public and commer-

cial facilities and at rents or prices within the finan-

cial means of the families and individuals displaced,

* * * and reasonably accessible to their places of em-

ployment. * * 4

To qualify for benefits under the Act, a tenant must

come within the statutory definition of “displaced per-

son.” Reduced to its essential language, that defini-

tion reads:

The term “displaced person” means any person

who * * * moves from real property * * * as

a result of the acquisition of such real prop-

erty, * * * or as the result of the written order

of the acquiring agency to vacate real prop-

erty, for a program or project undertaken by

a Federal agency * * *.

20 49 17.S.C. $ 4624(1) (1970). The payment is equal to the dif-

ference between the displaced person’s former rent and the rent

for a comparable replacement dwelling. 24 C.F.R. § 42.95( c)

(1977). The Act also offers, as an alternative not relevant here. up

to $4000 towards a downpayment on the purchase of a dwelling.

42 U.S.C. $ 4624(2) (1970).

21 49 U.S.C. $ 4626(b) (1970).

22 49 17.S.C. $4601(6) (1970). Section 4601(6) reads in full:

“The term ‘displaced person’ means any person who, on or after

January 2. 1971, moves from real property, or moves his personal

The section sets out two alternative grounds of eligi-

bility: having moved as a result of the acquisition of

property for a federal program or project (the ac-

quisition clause); or having moved as a result of a

written order of the acquiring agency to vacate the

property for a federal program or project (the no-

tice clause). The District Court ruled that appellees

clearly fell within the second or notice definition:

[B]y having come into possession of the Sky

Tower Apartment project as the result of a

mortgage default, HUD was “the acquiring

agency” within the meaning of the Act;

* * * the notices of September 27, 1974 ad-

vising Sky Tower tenants to vacaie were the

“written order of the acquiring agency to va-

cate real property” within the meaning of the

Act; and

* * * the notices aforesaid were “for a pro-

gram or project undertaken by a federal ag-

ency” within the meaning of the Act, to wit,

the demolition of Sky Tower. * * * *

We agree that appellees qualify as “displaced per-

sons” under the notice alternative. It is undisputed

that HUD is an “agency,” and that HUD “acquired”

Sky Tower within the common meaning of that word.

It is undisputed that HU, having acquired Sky

Tower, served upon each tenant a written order to

property from real property, as a result of the acquisition of such

real property, in whole or in part, or as the result of the written

order of the acquiring agency to vacate real property, for a pro-

gram or project undertaken by a Federal agency, or with Federal

financial assistance; and solely for the purposes of sections 4622

(a) and (b) and 4625 of this title. as a result of the acquisition

of or as the result of the written order of the acquiring agency

to vacate other real property, on which such person conducts a

business or farm operation, for such program or project.”

23 JA 89.

104

vacate. And it is undisputed that some 55 households

moved from Sky Tower “as the result of” HUD’s

written order.

Moreover, it is clear that the Sky Tower tenants

were ordered to vacate their apartments ‘“‘for a pro-

gram or project undertaken by a Federal agency,”

namely, the demolition of the buildings. Although

there is some suggestion in the government's brief

that a “program or project” means only “a federal

construction or rehabilitation project, such as public

works or urban renewal,” * there is no warrant in the

statute for this limiting interpretation. Obviously,

construction and rehabilitation projects will fre-

quently be preceded by demolition. If the government

means that demolition is a “project” within the Act

when the agency constructs a building in its place but

not when the agency simply tears down without build-

ing up, the anomaly is obvious. HUD’s mandate is to

increase the stock of decent, sanitary housing for low-

income families—not to destroy existing housing.

Congress clearly did not intend that tenants displaced

by a simple decision to wreck their homes would re-

ceive less protection than tenants displaced by a con-

structive urban renewal project.

In sum, appellees qualify as *‘displaced persons”

within the plain terms of the notice clause. This com-

mon sense interpretation is reinforced by considera-

tion of the policies of the Relocation Act. A basic

purpose of the Act is to ensure that displaced persons

do not “suffer disproportionate injuries as a result

of programs designed for the benefit of the public as

a whole.’ * Equally important, by providing reloca-

** Letter sent to all tenants of Sky Tower, Sept. 27, 1974.

** Government brief at 15.

** 42 U.S.C. § 4621 (1970).

lla

tion benefits for Persons displaced by programs or

projects for the general welfare, the Act ensures that

federal officials take the costs of relocation into ac-

count before embarking on such programs.

Clearly, the Sky Tower tenants were displaced for a

federal project “designed for the benefit of the publie

as a whole.” Ip proceedings before the district court,

HUD admitted that the demolition of Sky Tower was

part of a program to “eliminate blight.” It stated that

Sky Tower had become “blighted, vandalized, unat-

tractive and unsafe” and that the area needed to be

“revitalized” by the construction of single-family

dwellings in accordance with the District of Columbia

fovernment’s master plan.” Thus, unless relocation

benefits are paid to the former Sky Tower residents,

they will be forced to bear a disproportionate share

of the costs of a project for the benefit of the reneral

public, and federal officials will be able to ignore relo-

cation costs in considering whether to proceed with

the project,

Although the Sky Tower tenants appear to qualify

for benefits under the plain terms of the notice defini-

tion, the government nevertheless maintains that this

definition is subject to # restriction not apparent from

** Government memorandum, quoted 396 F. Supp. at 12386. This

purpose distinguishes the instant ease from Alexander v. ULS,

Dept. of Housing and Urban Development, 555 F. 2d 166 (7th

Cir, 1977). There the decision to terminate, but not demolish, a

housing Project was held not to be a federal program or project.

HUD had made no plans for the future of the buildings, The

court said, “We fail to see how & decision to terninate & project

can itself become a Project in the absence of some indication that

Jude to some governmental undertaking amounting to a program

designed for the benefit of the public as a whole.” Ja. at 170. (em-

258-827 7¢__»

124

the face of the statute. Specifically, it contends that

the tenants do not qualify as “displaced persons”

heeause, at the time Sky Tower was acquired, HUD

had not determined to use it for a federal program

or project. We find the arguments advanced in sup-

port of this implied restriction unpersuasive.

First, the government argues that this restriction 1s

required by Caramico Vv. Secretary of Dept. of Hous-

ing and Urban Development, 509 F. 2d 694 (2d Cir.

1974), which held that “random and involuntary”

acquisitions of property due to default and foreclo-

sure are not acquisitions for a federal program oF

project.” As the government coneedes. Caramico Was

concerned solely with the acquisition definition, rather

than the one upon which the Sky Tower tenants rely,

the notice definition.” But it finds significance in the

phrase “acquiring agency” contained in the notice

definition, Invoking the principle that the same word

used in different parts of a statute is presumed to

have the came meaning each time it is used,” it argues

that “acquiring agency” should be interpreted to mean

an agency making an “gequisition”’ as that term was

> Because we conclude that appellees qualify as “displaced

persons” under the notice clause. we need not reach the difficult

question whether they also qualify under the acquisition clause.

Thus. although we agree with Caramico that the acquisition clause

requires an acquisition for a federal program or project, 509 F. 2d

at G97, we express no opinion as to whether HUD's acquisition

of Sky Tower, or any cimilar acquisition, can be so described.

2° Yarris v. Lynn, 411 F. Supp. 69 (E.D, Mo. 1976), afd.

snp F. 2d 1357, 1359 (sth Cir. 1977). relied upon by the dissent,

also appears only to construe the acquisition clause of the Reloca-

tion Act. To the extent that that case can be interpreted as requir-

ing an acquisition for a federal program OF project under the

notice clause, we disagree.

» (iting Helvering ¥- Stockholms Enskilda Bank, 293 U.S. $4.

ST (1954).

134

construed by Caramico. In other words, that the notice

definition, like the acquisition definition, should not

apply where property is acquired due to default and

foreclosure and only later is committed to use in a

federal program or project.

We find little merit in this argument. Aside from

the fact that “acquiring agency” is not the same word

as “acquisition”—the former is an entity whereas the

latter is an event—the government’s argument proves

too much. If an “acquisition” as that term is used in

the acquisition clause is also required under the notice

clause, then the notice alternative would be rendered

surplusage.

More fundamentally, the government’s argument

fails to probe beyond the holding of Caramico to the

rationale of that decision. Because the Relocation Act

“contemplates a conscious government decision to dis-

locate some so that an entire area may benefit,” 509

F. 2d 698, Caramico requires that an “acquisition” for

purposes of the acquisition clause must be for a fed-

eral program or project. By parity of reasoning, the

Act requires that an “order to vacate” in terms of the

notice clause must be for a federal program or project,

a requirement satisfied in this case. The government’s

argument that the notice clause requires, in addition,

that an agency acquire property for a government pro-

gram or project, would artificially restrict the cover-

age of the Act in a way inconsistent with the policies

recognized by Caramico.

The government’s second argument, vigorously pur-

sued by the dissent, is that the legislative history of

the Relocation Act indicates the notice definition was

intended to apply when an agency issues an order to

vacate before real property is aequired. Of course,

resort may be had to legislative history when a statute

is ambiguous, or where the ordinary meaning would

14a

lead to absurd or futile results.” But “the plainer the

language, the more convineing contrary legislative

history must be.’’ United States v. United States Steel

Corp., 482 F. 2d 439, 444 (7th Cir.), cert. denied, 414

U.S. 909 (1973). Since the notice clause is clear on its

face. and its common sense meaning is consonant with

the purposes of the Act, we would accept the govern-

ment’s interpretation of the clause only if supported

by clear and convincing evidence from the legislative

history.

In fact. there is very little legislative history ex-

pressly concerned with the meaning of the notice

clause, and the history that exists is, at best, incon-

clusive.? The meager state of the legislative history

See, e.g. United States v. Public Utilities Comm., 545

295, 315 (1953); United States v. Missouri Pac. R. Co., 27!

~G60, 278 (1929).

: The dissent emphasizes the fact that the original Senate bill

defined a “displaced person” as one who moves “as a result of the

acquisition or reasonable expectation of acquisition.” 115 Cong.

Rec. 31372 (1969). The dissent concludes that in adopting the

House bill, which deleted the reference to “reasonable expectation

of acquisition,” and added the notice clause, Congress intended

only “to provide a more concrete standard than ‘reasonable expec-

tation’ of acquisition.” Dis, op. at 21. However, there is little

evidence in the legislative history that sheds light on Congress’

intent in enacting the House version, and what evidence exists is

ambiguous,

The House Report contains only one sentence directly applica-

ble to the notice clause, This says: “If a person moves as the result

ef such notice to vacate, it makes no difference whether or not

the real property actually is acquired.” ILR. Rep. No. 1656, 91st

Cong.. 2d Sess. (1970), r printed in [1970] U.S. Code Cong. & Ad.

News 5850, 5853, This implies that one circumstance in which the

notice clause applies is when an agency orders someone to vacate

property before the agency acquires it. But the Report does not

say that this is the enly situation in which the notice clausé

applies. In fact, the conditional language of the quoted sentence

implies just the opposite.

15A

suggests that in considering the definition of “dis-

placed person” Congress’ attention was focused on the

class of persons displaced by acquisitions or antici-

The dissent also relies on a statement in an executive branch

memorandum stating that the Se sate version was “broader” than

the House version, Dis. op. at 20, quoting 116 Cong. Ree. 42139

(1970). This too is inconclusive. The “reasonable expectation of

acquisition” language in the Senate bil] would indeed cover some

situations not covered by the notice definition. i.e. whe the gov-

ernment has not acquired property and has not sent notice but

there is a reasonable expectation of acquisition, But it does not

necessarily follow that Congress, as opposed to the executive, in-

tended the notice definition to be narrower than the Senate defini-

tion in all r spects,

We are equally unpersnaded by the dissent’s citation to other

sections of the Relocation Act referring to persons displaced be-

cause of “acquisitions.” Dis, op, at 22. This shorthand cross-

reference is obviously more convenient than repeating the entire

definition. The explanation for the particular choice of words

most consistent with the purpose of the Act is that Congress as-

sumed displacements would occur more frequently from acquisi-

tions than from notices to vacate government property.

Similarly misguided is the dissent’s reliance on $217 of the Act,

42 U.S.C. $4637 (1970). The dissent concludes that there would

have been no need to enact $217 if Congress had intended the

notice clause to have its common sense meaning, since persons

displaced under the programs referred to in this section “would

undoubtedly have been given notices to vacate ‘for’ these projects

and would have been qualified under the notice clause. * * *” Dis.

op. at 27. The basis for this assertion is not apparent. In fact,

written notice is not required by either program referred to in

$217. See 42 U.S.C. $1455(c)(1) (1970) (title I of the Housing

Act of 1949) : 42 U.S.C. 3307 (1970) (title I of the Demonstration

Cities and Metropolitan Development Act of 1966). Congress

could quite reasonably conclude that even under the notice defini-

tion it was uncertain that persons displaced by these programs

would be eligible for benefits. The explanation for § 217 most

congruent with the legislative purpose is that it was enacted “out

of uncertainty, understandable caution. and a desire to avoid

litigation.” National Petroleum Refiners Ass'n v. FTC, 482 F. 2d

672, 696 (D.C. Cir. 1973), cert. deni d, 415 U.S, 951 (1974).

164

pated acquisitions of property, rather than the class

of persons already living on government property and

displaced by a federal program or project. But con-

gressional inattention does not constitute the kind of

convincing demonstration of contrary legislative in-

tent required to overcome the plain language of the

statute. In fact, considering the purposes of the Re-

location Act, we are convinced that if Congress had

explicitly considered the problem of persons ordered

to vacate government property for a program or proj-

ect, it would have approved an interpretation of the

Act making benefits available for such persons.

The government’s final argument is that the plain

terms of the Uniform Relocation Act cannot be

heeded because to do so would impose a financial

burden on HUD. The essential point, however, is that

any financial burden results not from our construe-

tion of the Act but rather from HUD’s own decision

to displace people in order to demolish their homes.

HUD appears to suggest that if the costs of reloca-

tion are too heavy for government funds, the dis-

placed tenants should bear them. But the mandate of

the Act is precisely contrary: if the costs are too

much for HUD, then the demolition should not take

place.”

* “Tt is no longer proper to require the displaced person, rather

than the displacing project, to bear the cost of relocation. If this

cost becomes prohibitive and necessitates some re-thinking about

a particular project, then so be it, just as if the cost of land or

labor and materials were prohibitive.” Abramowitz, (niform

Relocation Act Defended, 29 JourN ar or Woustne 279, 281 (1972).

It should be noted that, in a situation like the instant one, where

there is a shortage of suitable replacement housing, see 42 U.S.C.

$$ 4626(b) and 4625(c) (3) (1970), the costs of relocation to be

borne by HUD might include the expense of constructing replace-

ment housing. Section 4626(a) provides: “If a federal project

cannot proceed to actual construction because comparable replace-

17A

III. Amount or BENEFITS AVAILABLE

The District Court ruled that all persons who were _

tenants of Sky Tower on September 27, 1974, and

who vacated their apartments as a result of HUD’s

notice, were entitled to a prorated portion of the bene-

fits provided under Section 204 of the Act for the

period between the date of their move and August },

1975 (or the date on which any such person actually

returned to Sky Tower, if earlier than August 1,

1975). August 1 was selected as the cut-off date be-

cause by that date all former tenants had been given

the opportunity to return to Sky Tower pursuant to

the preliminary injunction. As we understand the Dis-

trict Court’s order, the Act’s moving expenses benefit

and its requirement that replacement housing be

available are fully applicable to appellees; however,

under the order appellees are entitled to only a pro-

rated portion of the Act’s. rent benefits. As noted

supra,” under the terms of the Act these latter bene-

fits may amount to a maximum of $4000 over a four-

year period. Under the District Court’s formula, how-

ever, these benefits would be limited to approximately

$750 per tenant.

We believe the trial judge was correct to prorate

the benefits to those tenants who actually returned

to Sky Tower in the summer of 1975. Their return

to their original homes made the provision of money

ment sale or rental housing is not available, and the head of the

Federal agency determines that such housing cannot otherwise

be made available he may take such action as is necessary or appro-

priate to »rovide such housing by use of funds authorized for such

project.”

* 42 U.S.C. $ 4624 (1970).

*° See n. 19 supra and accompanying text.

18a

towards rent for comparable replacement housing

unnecessary. Indeed such payments could not have

been reconciled with the statute.”

We cannot agree, however, that benefits to those

tenants who did not choose to return to Sky Towers

should terminate on the date they were given leave

to return. We can understand the trial judge’s dis-

appointment that only 18 of the 55 displaced families

chose to return. He felt that the remainder had

“walked away from what they brought suit for, and

now they want money,’’ not housing.” But while this

reaction is understandable, it overlooks a critical

fact—the court’s issuance of a preliminary injunction

did not grant to appellees the right to return to the

quiet enjoyment of their homes; rather, it gave them

only the limited right to return pendente lite to a half

demolished and decimated community which might

42 U.S.C. § 4624 (1970).

*? The following colloquy took place :

“The Courr, No, I am not talking about the returning tenants.

I am talking about the majority of your class that doesn’t want

to come back—that is the group I am talking about. The great

bulk of these people listed in the report don’t want to have any-

thing to do with Skytower. They walked away from what they

brought suit for, and now they want money, and that is where we

are at.

“Mrs. Rorsman, Well

“The Covrr, And I want to know how that is going to be

handled.

“Mrs. Rosman. Well, to be fair, Your Honor, I do want to

say that it is not that they have walked away

“The Courr. They certainly have. They certainly have, and it

has been a great disappointment after the extraordinary effort the

Court made on representations as to their need—they all walked

away from it.

“Now I don’t want to argue that, but they did.” JA 99,

19a

still have been demolished in the near future.” A

decision to return would nican giving up new homes

found only after arduous search, undergoing the dis-

ruption of a second move some nine months after

the first, and assuming the very substantial risk of

being uprooted yet again should the demolition deci-

sion be upheld.

The affidavits in the record amply demonstrate that

the tenants were motivated by these concerns, not a

desire to “walk away” from the lawsuit.” Faced with

the uncertainty of the situation, it was not unreason-

able for some of the families to decline to return. We

hold that the offer to return pendente lite pursuant

to the preliminary injunction did not eut off the

rights of relocation payments of those tenants who

did not return.”

Accordingly the decision below is affirmed in part

and reversed in part.

Wirkey, Circuit Judge, dissenting: To read the

confident language of Chief Judge Bazelon’s opinion

one would never guess that three circuits, three dis-

tricts, twelve federal judges—every federal judge con-

sidering the issue before this case—had ruled contrary

to the result reached by my colleagues here. They say

** This message was made explicit in the letter, approved by

counsel for both sides, sent to all former tenants pursuant to the

preliminary injunction. See text at note 14 supra,

%® JA 49, 72, 84.

* HUD’s own Handbook on providing replacement housing

states: “In no case shall referral be made to a unit from which it

can reasonably be anticipated that the family or individual may

subsequently be displaced.” HUD Relocation Handbook 1371.1

Rev. at 2-15 (Feb., 1975), The offer to return to Sky Tower

did not satisfy this requirement.

20a

that “appellees qualify as ‘displaced persons’ within

the plain terms of the notice clause” and that this

“common sense interpretation is reinforced by con-

sideration of the policies of the Relocation Act.”*

The Seventh Cireuit in Alerander vy. HUD?* held

squarely the reverse; Alexander involved the notice

clause, not the acquisition clause, and cannot fairly

be distinguished from our case here. The Eighth Cir-

cuit in Harris v. Lynn* dealt with persons displaced

from property already owned by the federal agency,

our situation here, and held that the tenants were not

“displaced persons” under the Act, even though they

may have moved pursuant to a notice to vacate, be-

cause absence of a federal “acquisition” was the key.

The Second Circuit in Caramico v. HUD* likewise

held contrary in both rationale and result to the deci-

sion of my colleagues here, who attempt to distinguish

Caramico on the ground that it involved the aequisi-

tion clause, not the notice clause. That same distine-

tion was argued in Alexander and rejected by the

Seventh Circuit, which pointed out that the rationale

of Caramico applies with equal validity whether the

acquisition or the notice clause is involved.

‘Maj. op. at 10. And ef.: “Of course, resort may be had to leg-

islate history when a statute is ambiguous, or where the ordinary

meaning would lead to absurd or futile results. But ‘the plainer

the language, the more convincing contrary legislative history

must. be.’ * * * Since the notice clause is clear on its face, and its

common sense meanmg is consonant with the purposes of the Act,

we would accept the government’s intepretation of the clause only

if supported by clear and convincing evidence from the legislative

history.” 7d. at 14 (footnote and citation omitted).

*555 F, 2d 166 (7th Cir. 1977), rehearing denied, 19 September

1977.

* 555 F. 2d 1357 8th Cir. 1977), affirming 411 F. Supp. 692 (E.D.

Mo. 1976).

¢ 509 F, 2d 694 (2d Cir. 1974).

SESE em wwe

wht Mile

)

‘

21a

These persuasive precedents will be discussed in de-

tail at the proper place later in this dissent. I mention

them at the outset to make the reader of Judge

Bazelon’s well-written opinion aware that it rests, not

on firm logie and precedent, but on no precedent and

on a rationale which has been argued and universally

repudiated elsewhere. Now to the facts of this case,

and the proper application of the statute and the

precedents thereto.

To be entitled to benefits as a “displaced person”’

under the Uniform Relocation Assistance and Real

Property Acquisition Policies Act*® a person must be

required to move as a result of the acquisition of prop-

erty for a program or project undertaken by a federal

agency or with federal financial assistance. Or, alter-

natively, a “displaced person” may be someone re-

quired to move as a result of a written notice by the

acquiring agency to vacate real property for a pro-

gram or project undertaken by a federal agency or

with federal financial assistance. In this case, the De-

partment of Housing and Urban Development (HUD)

acquired title to the Sky Tower buildings due to the

default and foreclosure of the mortgage it had insured.

About fifteen months later, HUD delivered written

orders to the tenants to vacate, so that Sky Tower

could be demolished and the land sold to developers.

HUD ?’s position is that the tenants at Sky Tower are

not “displaced persons” within the meaning of the

Uniform Relocation Assistance and Real Property

Acquisition Policies Act (the Uniform Relocation Act

or the Act). Relying heavily upon the decisions of the

Seventh Circuit in Alexander v. HUD, the Eighth

°42 U.S.C. $ 4601(6) (1970).

* Note 2 supra.

22a

Cireuit in Harris v. Lynn,’ and the Second Circuit in

Caramico v. HUD, HUD argues that the definition

of a “program or project undertaken by a Federal

agency’? must be limited to “consciously and volun-

tarily undertaken public works projects.” HUD con-

tends that in this case the acquisition due to a default

and foreclosure of an insured mortgage was random

and involuntary and, therefore, should not be covered

by the Uniform Relocation Act. Also, the acquisition

was not for any “program or project’? which HUD

had in mind.

Accepting neither the soundness of the Caramico

definition of “program or project,” accepted by the

Seventh and Eighth Circuits, nor the HUD charac-

terization of the acquisition here as involuntary, the

majority holds that appellees here, the Sky Tower

tenants, are “displaced persons.” The majority tries

to avoid taking issue directly with the holding of

Caramico, however, and rests its decision upon the

grounds adopted by the District Court, that the

tenants were required to move by the HUD notices to

vacate for a federal project, namely the demolition

of Sky Tower. [I cannot join in this’ con-

clusion. (As T shall explain in more detail later, the

“notice” category of “displaced persons”? was designed

hy Congress to include persons who move prior to ac-

quisition upon receiving notice from the acquiring

agency of its intention to acquire the property. Even

if the agency does not acquire the property for some

reason, these persons would be assured of benefits

under the Uniform Relocation Act. The “netice” alter-

native was not meant to apply to a situation such as

7 Note 3 supra.

® Note 4 supra.

eT see ee

234

this where HUD had already acquired Sky Tower and

a year later gave notices to vacate.)

As will be seen in the analysis which follows, the

eritical inquiry must consider the first clause of the

“displaced person” definition, namely, whether the

initial “acquisition” of Sky Tower was for “a pro-

gram or project undertaken by a Federal agency,” as

well as the second (“notice”) clause of the definition,

for both clauses contemplate a voluntary acquisition,

and both an actual acquisition and a notice of a pro-

posed acquisition must he “for a program or project”

and anticipated resulting displacement. As will be

| seen below, the acquisition here, by default and fore-

closure of an insured mortgage ,should be considered

involuntary. Further, as Caramico properly estab-

lishes, acquisitions by such involuntary and random

means are not for a federal “program or project”

within the meaning of the Uniform Relocation Act.

In short, falling into neither clause of the definition,

appellees here are not ‘‘displaced persons.” This re-

sult rests, I believe, upon a reading of the statutory

. definition which is faithful to Congressional intent,

consistent with the text of the definition and the

structure of the statute, and supported by case law.

ene

Whether this result, which disqualifies appellees from

| the benefits of the Uniform Relocation Act, is justified

by reasons of policy or equity remains a question for

Congress, and not for the courts, as is made clear in

Part IV below.

I. INvoLuntary Acgvuistrion—TuHeE Fact Here

As the majority explains in more detail,? Sky Tower

was purchased in 1970 by a nonprofit corporation by

* Maj. op. at 3.

244

means of a mortgage insured by HUD. Following

abandomments by the contractors and default by the

nonprofit corporation, the mortgagee elected to fore-

close on the mortgage and transfer title to HUD in

return for the mortgage insurance benefits. In the

language of Caramico,” this acquisition was “involun-

tary and in response to the default.” Such “random

acquisitions * * * of defaulted property,” Caramico

continued, “are not acquisitions ‘for a program or

project undertaken by a Federal agency’ within the

contemplation of the drafters of the Relocation Act.”

While the majority avoids responding to Caramico

directly," the question of whether HU D’s act here was

an acquisition “for a [federal] program or project,”

i.e., a voluntary acquisition, must ultimately be faced

under the notice clause discussed later. Hence it is

helpful to look at what the District Court said relevant

to this point:

Rehabilitation work began at Sky Tower in

May of 1971. By November, 1972, two con-

tractors had defaulted in their performance of

the rehabilitation work. At that time, eight

huildings had been completely rehabilitated,

three were approximately 50 percent rehabili-

ated, and work had not vet begun on eight

others. Although the non-profit sponsor wished

to complete the rehabilitation work, and the

mortgagee was prepared to allow that, HUD

insisted that the property be foreclosed. See 24

C.F.R. § 236.56. Title was transferred to HUD

on June 15, 1973."

Note that the District Court only says that HUD

“insisted” upon foreclosure. The obvious question is

why HUD “insisted.” Could it have been that HUD

20 509 F. 2d at 699 (footnote omitted).

1 See Maj. op. at 12 n. 28.

22 Cole v. Lynn, 389 F. Supp. 99, 101 (D.D.C. 1975),

i ee

On on ee

mend cethidiee mon inde Cadeht et ee ew.

254

had no option but to insist upon foreclosure, thus

making its action involuntary ? The answer is yes. and

the clue is the citation.

That citation provides the explanation for HUD’s

“insistence.” 24 C.F.R. § 236.56, “Determination of

project feasibility—fair market rentals,” as set out

in full below, establishes the rule in its paragraph

(a) that HUD shall not make commitments for mort-

gage insurance for projects where the rents will ex-

ceed the rents for similar housing.” Pa ‘agraph (b)

of the rule, as noted below, sets out the two NECESSALY

conditions for any exceptions to the limit. With its

hare citation to § 236.56, the District Court's opinion

does not explain HUD’s “insistence,” but, as the rule

$236.96 Determination of project feasibility—fair market

rentals.

(a) In the determination of project feasibility prior to issuing

a commitment for mortgage insurance under this part, the fair

market rentals estimated in accordance with § 236.56(a)(2) shall

be at a level that can be expected to attract nonsubsidized tenants,

who will pay fair market rentals, and shall not exceed the rentals

obtainable for reasonably comparable nonsubsidized rental dwell-

ing units similarly located. Adjustments may be made in

such rentals to reflect additional management services such as in-

creased tenant screening, counseling, and income certification and

recert ifications,

(b) In determining the feasibility of a project to be located in

a deteriorating residential neighborhood, the Commissioner may

determine a project to be feasible with estimated fair market

rental levels in excess of those than [sic] can be expected to attract

nonsubsidized tenants in that neighborhood provided that:

(1) The estimated fair market rentals do not exceed estimated

fair market rentals obtainable in comparable projects in more

stable neighborhoods. and

(2) The proposed project can be expected to contribute to the

stabilization or improvement of the neighborhood.

[37 F.R. 7157, Apr. 11, 1972]

26a

itself suggests, it may well have been that HUD had

no option but to insist.

Reference to the record, moreover, indicates that

HUD’s acquisition was indeed involuntary. An under-

standing of further background events, some of which

were not described by the District Court, may be help-

ful in making a fair characterization. As noted by the

District Court, rehabilitation work began in May of

1971. According to the Acting Director of the HUD

District of Columbia Area Office, whose affidavit in

relevant part below describes the chronology of

events,"* in March of 1972 the nonprofit sponsor asked

is Arripavir or Harry W. STaccer

Harry W. Staller, first being duly sworn, deposes and =ays:

1. This affidavit is submitted for purposes of explaining the

circumstances under which HUD acquired title to the Sky Tower

project and other facts relevant to the relocation of Sky Tower

tenants. Although I did not become Acting Director of the HUD

D.C. Area Office until July 1973 the statements contained herein

are based upon reports from members of my staff and document

contained in the project files, as well as my personal knowledge.

2. The sponsor of the Sky Tower project, Anacostia No, One.

Ine., experienced difficulty with the original general contractor

and through the mortgagee for the project Walker and Dunlop.

Inc., requested in March 1972 that HUD approve a substitution

of contractors and an increase in the maximum amount of the

mortgage from approximately $2.9 million to $3.2 million. An

interim increase in the insured mortgage is an unusual action

which increases HUD’s liability. In fact, it is my understanding

that an interim increase had never been granted in this office

prior to that time. However, because of HUD’s desire to have the

project completed, the requests were approved by June 1972.

3. The second contractor abandoned work on the project in

November 1972. HUD allowed the sponsor to attempt to finish

the project by itself. However, in January 1973, the second con-

tractor filed a law suit against the sponsor and mortgagee and.

in addition, placed a lien on the property on February 22, 1975..

in violation of the terms of the construction contract.

274

HUD to approve a substitution of contractors and to

increase the insured mortgage from $2.9 million to

$3.2 million. HUD agreed to this “unusual action” of

increasing its liability. After the second contractor

abandoned work on the project and placed a lien on

the property, the nonprofit sponsor was thrown into

default. At this point, in April of 1973 HUD was in-

formed that the mortgagee had elected to foreclose,

as it was permitted to do by HUD regulations. The

sponsor then soughi a second increase from HUD in

4. Since the owner was unable to bond off the mechanics lien,

no further mortgage proceeds could be drawn to fund interest

and construction costs. On March 1973, Walker and Dunlep, Inc..

the mortgagee for the project, notified the Area Office of the

default citing as a basis the fact that the contractor had quit the

project, a lien had been placed on the project, and, interest due

February 1 had net been paid, A copy of the notice of default is

attached hereto, as Exhibit I and incorporated herein.

5. Under HUD Regulations, when a project is in default, the

mortgagee has the option of either foreclosing the mortgage or

assigning it to HUD. By letter dated April 4, 1973, Walker and

Dunlop informed the Area Office that it had elected under the

terms of the contract for mortgage insurance to foreclose on the

property. A copy of this letter is attached hereto as Exhibit II

. and is incorporated herein.

. 6. In the following weeks the sponser of the project requested

another increase in the maximum amount of the insured mortgage.

Because of the past history of the project and since this increase

would require rents in excess of what tenants in the neighborhood

could afford or would be willing to pay, HUD had no alternative

but to reject this request.

7. By letter dated May 7, 1973, Walker and Dunlop notified the

HUD Central Office of its intention to foreclose on the mortgage

at the earliest possible date. A copy of this letter is attached hereto

as Exhibit ITI and is incorporated herein.

8. HUD accepted title to and possession of the property on

June 15, 1975, [sic] and subsequently paid Walker and Dunlop

mortgage insurance benefits appreximately in the amount of

proceeds disbursed under the mortgage during construction.

~ it~.

OBR. « Weir eke Ses ieee

ORs

the amount of the insured mortgage, which was pre-

sumably the mortgagee’s condition for allowing thie

sponsor to com plete thre work, By HU D's account,

however, “Tb lecause of the past history of the pro)-

ect and since this increase would require rents in ex-

eess of what tenants in the neighborhood could afford

or would be willing to pay, HUD had no alternative

but to reject thus request.” ’ HUD’s inability to ez-

tend if second LNSUTANCE INCredase ivas presumabl /

hased on 24 C.F.R. § 236.56, which, as noted, directs

that mortgage insurance shall not be committed where

the rents would be in exeess of rents for similar

housing.

In sum, then, it appears from the record—and 1s

consistent with the opinion of the District Court

that HUD 's taking of title to Sky Tower was an in-

voluntar’s acquisition in) response TO a default.

Whether such aequisitions are for a “program or

project” within the meaning of the Uniform Reloea-

tion .\ct is the issue to which I now turn.

Il. “Pro v or Prosecr’—VOLUNTARY AND

INVOLUNTARY ACQUISITION

1) (caramico yv. Hi PD, supra, residents ol housing

un) tne areas Were evict (| hy mcrtge@agees

cia.

Set KIng to recover on their morteage Insurance fol-

Id. at paragraph 6, .

ON XIECLR ER. $ 236.56(a). yuot } note 13 supra. Paragray I

(bb). as noted, set t the two necessary conditions for any exce]

T Ori. Alt \( thiaa t} e’ recora Is I r con hws) ‘ on this point, if dor _

not appear that IIL D considered Sky Ti wer as a project suitable

Lif

for exceptional treatment. By the reference in affidavit to

: , Le] 5 |

ow note, doubtiessiy,

]

of the one increase already granted, the two abandonments b>

the project’s “past history.” ITUD was takin

contractors, the lien placed on the property, and the original elec-

tion of the mortgageece to forecl 20,

294

lowing default. Under FHA regulations. recovery re-

quired that the mortgagee tender possession of the

property unoccupied to FHA, although FHA could

waive the requirement in particular cases. Although

FHA had acquired the properties in Curamico, thus

compelling the residents to move prior to the acquisi-

tion, the Second Cireuit did not eonsider the acquisi-

tion as being “for a program or project undertaken

by a Federal agency, or with Federal financial assist-

ance.” Drawing upon the legislative history as well

as other provisions of the Uniform Relocation Act,

Carantico read the “program” definition as “contem-

plat{ing] norma! government acquisitions, which are

the result of conscious decisions to build a highway

here or a housing project or hospital there.” Acqui-

sitions due to defaults ania foreclosures, heing involun-

tary and random, were not judged by Caramico as

being for “a program or project.”

Relying on Caramico, HUD argues that this aequi-

sition likewise, being involuntary, is not for a “pro-

eram or project.”

In formulating its definition, Caramico drew upon

four separate provisions of the Uniform Relocation

Act: 42 U.S.C. § § 4621, 4626, 4625(a) and 4651(1)

and (8)."* In addition, Caramico took account of the

legislative history, quoting extensively from the House

Report.

The Caramico definition is thus soundly based upon

the various provisions of the statute and the intent

of Congress. The examples in the House Report of

typical acquisitions—for a highway or for a hospi-

tal—involve, as Caramico explained, conscious and

planned government decisions to proceed with partic-

17 a1 KF, 2d at 698,

18 Jhid.

30A

ular projects. In making these decisions, the Govern-

ment can and must calculate in the cost of relocation.

But in accepting title after a foreclosure, the Govern-

ment usually has no choice about acquisition. It can-

not weigh costs against benefits, including the costs of

relocation, before deciding to acquire. Congress must

have been aware of this very fundamental and obvi-

ous difference; an open-ended program whose cost is

inealeulable is not simply to be presumed in a total

absence of expressed Congressional intent.

The majority opinion argues that “the mandate of

the Act is precisely contrary: if the costs are too

much for HUD, then the demolition should not take

place.”’*’ This statement once again blithely ignores

the issue that the majority would fain forget: that

this ‘‘acquisition,”” and the subsequent action by

HUD, was compelled, was involuntary, and thus was

not for a “project or program” within the meaning

of the Act. The undisputed facts here show that HUD

was forced by the moztgagee to take over Sky Tower,

was confronted with a situation under which the

housing could not be rehabilitated and then rented at

rates permissible under the regulations,” and hence,

more than a year after the involuntary acquisition,

was foreed to go the route of demolition preparatory

to building something economically viable. This case

is a good illustration of why Congress did not in the

statute, either under the “aequisition’”’ or the “notice”

clause, compel HUD to pay relocation benefits in such

an involuntary—and financially incalculable—situa-

tion. The majority’s verbal shrug of the shoulders—

“if the costs are too much for HUD, then * * *”—is

an attempted brushoff of some very weighty practical

1° Maj. op. at 16.

2° See pp. 5-6 supra.

’

S1A

operating budget considerations to which Congress, if

it had desired to do what the majority claims it did,

would have been compelled to give serious and de-

tailed attention.

My colleagues’ position in interpreting the statute

here is not only directly contrary to that of the

second Cireuit in Caramico but is also in direct con-

flict with the Seventh Cireuit in Alerander y. HUD.

Alerander involves the now familiar story of an

apartment project in default on the loan, continuing

default, HUD foreclosure and taking over the prop-

erty. The Riverhouse apartment complex was plagued

by unsafe conditions, nonpayment of rent, and exces-

sive cost of bringing the project into good condition—

remarkably similar to Sky Tower here. HUD then

did precisely what it did here, i.e., caused notices to

vacate to be served on all tenants. The plaintiff ten-

ants sought relocation benefits, asserting that the

notice to vacate made them eligible for benefits af-

forded to “displaced persons” within the meaning of

the Act. The District Court granted summary judg-

ment for the defendant HUD, holding that the Act

was inapplicable to the closing of the Riverhouse

project, and making the same analysis of the statute

that the Second Circuit had made in Caramico and

that I have urged here.

The Seventh Circuit unanimously affirmed, point-

ing out that “[e]ligibilty for URA benefits is also

based on the requirement that a person be displaced

‘for a program or project undertaken by a federal

agency, or with federal financial assistance.’ 42 U.S.C.

§ 4601(6). This requirement has been interpreted to

mean construction of new federal projects.” The

* 555 F. 2d 166 (7th Cir, 1977), rehearing denied, 19 September

1977.

*? Jd, at 169 (citation omitted).

32a

Seventh Circuit then discussed Caramico at some

length, and emphasized the significance of the Second

Circuit’s “[f]inding a crucial difference between mort-

gage insurance acquisitions and acquisitions under pro-

grams covered by URA.”* The difference, according

to the Seventh Cireuit, was that “the Second Circuit

characterized the former as ‘random and involuntary

while normal urban renewal contemplates a conscious

government decision to dislocate some so that an en-

tire area may benefit.” The Seventh Circuit thus

agreed completely with the Second Circuit in holding

that involuntary mortgage foreclosure acquisitions

were not within the “programs or projects” contem-

plated by the Act.

Other statutory provisions, cited by Caramico, also

suggest that acquisition by involuntary foreclosure

does not come within the Uniform Relocation Act. 42

U.S.C. § 4626(a), for example, provides authority for

agency action “[i]f a Federal project eannct proceed

to actual construction” (emphasis added), And 42

1.S.C. § 4651 on methods of acquisition establishes

policies on appraisal, negotiation and eminent domain.

In sum, if this acquisition is understood as having

been involuntary, and if the Second and Seventh Cir-

cuits’ definition of “project” as excluding such invol-

untary acquisitions is accepted, then appellees are not

“displaced persons’? within the meaning of the “ac-

quisitions” clause in the definition. For to the extent

that appellees can be said to have moved from Sky

Tower as a result of the HUD acquisition, that ac-

quisition was not “for a program or project under-

taken by a Federal agency”? as contemplated by the

Uniform Relocation Act.

8 Td.

*4 Jd., quoting 509 F. 2d at 698.

33A

Ill. Tue Norice Ciavuse

The position of the majority is that whether or not

appellees are “displaced persons” under the acquisi-

tions clause tiiey are “displaced persons’? under the

notice clause because they moved as a result of HUD’s

notice to vacate so that HUD could carry out its

‘*project” of demolishing Sky Tower. The majority’s

reading of the notice clause, however, is not consistent

with the purpose that Congress meant it to serve.

Moreover, the majority opinion has misunderstood the

argument HUD has advanced and is thus not even

responding to the reading urged by HUD, which is

indeed the correct interpretation.

Before beginning this analysis it may be helpful to

set out the relevant text of the definition of “‘dis-

placed person :’’ *

The term ‘displaced person” means any per-

son who * * * moves from real property * * *

as a result of the acquisition of such real prop-

erty, * * * or as the result of the written order

of the acquiring agency to vacate real prop-

erty, for a program or project undertaken by

a Federal agency * * *,

The majority says that HUD denies the applicabil-

ity of the notice clause by not classifying demolition

as a “project,” quoting HUD’s. brief that only “a

federal construction or rehabilitation project, such

as publie works or urban renewal” constitutes a **pro-

ject”’ in HUD’s estimation.’ The sentence the major-

ity partially quotes, however, is not making the

*° 42 U.S.C. § 4601(6) (1970).

** HUD Brief at 15.

** Maj. op. at 10.

34A

argument attributed to it. The sentence quoted in full

reads as follows:

The legislative history shows that Congress

intended to provide benefits only to people who

were forced to move because of acquisition con-

sciously and voluntarily undertaken to further

a federal construction or rehabilitation project,

such as public works or urban renewal.

This full sentence is further quoted in context in the

long excerpt from the HUD brief reproduced infra.

The overall argument advanced by HUD is that the

Act requires an acquisition for a project, such as

public works, to satisfy the definition of ‘‘displaced

persons.” HUD doubtlessly concedes that if Sky

Tower were voluntarily and consciously acquired, ¢.g.,

by eminent domain, in order to demolish it and sell

the vacant land, there would be acquisition for a

“program or project.”

A eareful reading of HUD’s brief shows that it

never argued at all that a demolition, rather than a

construction, is not a “project.” Not only would this

argument generally be vather simple-minded, because

demolition usually precedes construction, but HUD

would have to know that it would be inapplicable

here, as Sky Tower was concededly being torn down

to make way for the construction to single-family

units. Rather than making this clearly flawed argu-

ment, the HUD Brief is advancing a reading of the

notice clause based upon the purpose Congress in-

tended for it.

To avoid the ambiguity of paraphrasing HUD,

reproduced in the text below is the portion of the

HUD Brief (pp. 13-15) which contains its argument

on the meaning of the notice clause:

_ Apparently, the district court considered the

involuntary nature of HUD's acquisition ir-

aid eR Mine. cieninl titel 5

35A

relevant where, as here, the person moves “as

the result of the written order of the acquiring

agency to vacate real property, for a program

or project undertaken by a Federal agency,”

even though it might be relevant where (as in

Caramico) the tenants move “as a result of the

acquisition of * * * real property * * * for a

program or project undertaken by a Federal

agency * * *.” However, the Second Circuit

made clear that in Caramico it was interpret-

ing the phrase common to both clauses, “for a

program or project undertaken by a Federal

agency” rather than the term “acquisition”

which appears only in one clause. Moreover.

there is no basis for distinguishing between the

nature of the acquisition in the two provisions.

An “acquiring agency’”’ in the “notice” clause

should refer to the same type of acquisition as

does the “acquisition” clause.” [* There is, of

course, a presumption that the same word used

in different parts of a single statute is intended

to have the same meaning each time. Helvering

v. Stockholms Enskilda Bank, 293 U.S. 84, 87

(1934) ]. The volitional nature of the acquisi-

tion is the same for both classes of displaced

persons. And in both clauses there must be ac-

quisition “for a program or project.” At the

time HUD acquired Sky Tower, no decision

regarding disposition of the property had been

made. Over a year elapsed before HUD de-

cided to raze the buildings. Thus, the property

was not acquired for any program or project.

The provision relied on by the district court

(the notice provision) was enacted to assure

that veople who move prior to actual acquisi-

tion can receive benefits if they receive a notice

from the acquiring agency of its intention to

acquire the property [emphasis added]. There-

fore, benefits accrue to an individual before

acquisition occurs and even in the event it

never occurs. H. Rept. No. 1656, 91st Cong.,

2d sess. 4 (1970). It was not intended to make

364

reloeation benefits available for different types

of acquisitions or for different classes of pro-

s or projects than the “acquisition” clause.

The legislative history shows that Congress

intended to provide benefits only to people who

were forced to move because of acquisition con-

sciously and voluntarily undertaken to further

a federal construction or rehabilitation project,

such as public works or urban renewal [em-

phasis added. !

As ean be seen from this excerpt, HUD is contend-

ing that even as to tenants who seek to qualify as

“displaced persons” under the notice category, it is

dispositive whether the acquisition was for a project

or program, that is, whether the acquisition was made

as a voluntary and censcious choice. This view is tex-

tually based, as explained above, on a reading of “ac-

quiring agency”’ in the notice clause as referring back

to the first clause, that is, to an agency which is ac-

quiring property for a voluntary and conscious “pro-

gram or project.” And the HUD view is further

based, as shown by the citation to the House Report,

upon the legislative intent that the notice clause

should ensure coverage of those who move prior to

acquisition and even in the event it never occurs.

The majority opinion is thus grossly in error when

it claims “* * * the government’s argument proves

too much. If an ‘acquisition’ as that term is used in

the acquisition clause is also required under the no-

tice clause, then the notice alternative would be ren-

dered surplusage.” * The notice clause was put in to

take care of persons displaced in advance of a pro-

posed acquisition which is never consummated, as is

shown in the text of this opinion, infra.

28 Maj. op. at 13.

EE IE aR LE LILI LD LE OE OTT SENT reg IT

387A

Likewise, the majority claim that “[t]he govern-

ment’s argument that the notice clause requires, in

addition, that an agency acquire property for a goy-

ernment program or project, would artificially restrict

the coverage * * *”* This is not the government's

argument at all. The government does not say that for

a person to be displaced under the notice clause the

agency must acquire the property, only that the agency

propose to acquire and give written notice to that

effect. This is the whole purpose of the notice clause;

it is the majority’s erroneous construction of the goy-

erment’s argument which alone would create a

“surplusage.”’

With the HUD position in this case now fairly set

out, it appears that due to the serious clash of views,

textually and otherwise, on the proper reading of the

notice clause, an independent examination of the legis-

lative history is now necessary to determine the pur-

pose Congress meant the notice clause to serve.

The Uniform Relocation Act of 1970 originated in

the Senate as S. 1. As reported out of the Committee

on Government Operations and as passed by the

Senate, S. 1 defined a “displaced person” as essentially

any person moved from real property “as a result of

the acquisition or reasonable expectation of acquisi-

tion of * * * real property, in whole or in part, by a

Federal or State agency.” This language was pat-

terned apparently“ upon the definition of the 1968

*° Maj. op. at 13 (emphasis in original).

°° S. 1, 91st Cong., 1st Sess, § 105(1)-(5), reprinted in 115 Cong.

Rec. 31372 (1969) (emphasis supplied). See id. $ 110.

1S. Rep. No. 488, 91st Cong., Ist Sess., 2 (1969). See also 115

Cong. Rec. 31535 (1969) (remarks of Sen, Cooper).

338A

Highway Act’ which had also referred to a “dis-

placed person” as someone moving “as a result of the

acquisition or reasonable expectation of acquisition.”

S. 1, however, had dropped the reference of the High-

way Act to “acquisition of such real property, which

is subsequently acquired,” thereby broadening the

definition to cover persons who move due to a reason-

able expec ‘tation of acquisition even though the prop-

erty is not later acquired, An examination of the

deleted phrase—“which is subsequently aequired”—

shows the undeniable broadening effect of the deletion,

for the deleted phrase was an important limitation.

When S. 1 was reported from the House Public

Works Committee, however, the language of the defi-

nition had been changed to its present form, the result

of recognition of the expansion accomplished by the

deletion. A ‘‘displaced person” was someone who

moved from real property “as a result of the aequisi-

tion of such real property * * * or as the result of

the written order of the acquiring agency to vacate

real property’’ for a federal or federally-funded “pro-

gram or project.’’* After this change by the House

Committee from the language about ‘‘reasonable ex-

pectation,”’” the House Report, accompanying the

revised S. 1, assumed particular importance in defin-

ing the meaning of the notice clause. After the House

Report tracks the terms of the revised S. 1 in deserib-

ing the definition of ‘‘displaced person,’’ it immedi-

ately adds: “If a person moves as a result of such a

°° Pub. L. No. 90-495, 82 Stat. 834, $511(3) (repealed 1971).

3 Jhid. (emphasis added).

%#S. 1, 91st Cong., 2d Sess. $1(6), reprinted in 116 Cong. Ree.

40163 (1970) (emphasis added).

394

notice to vacate, it makes no difference whether or

not the real property actually is acquired.” * While

this is the only sentence in the House Report explain-

ing the meaning of the notice clause, its evolution and

antecedents render this comment clear and unmistak-

able in meaning. The House Report continues: ”

It is immaterial whether the real property is

acquired before or after the effective date of

the bill, or by Federal or State agency; or

whether Federal funds contribute to the cost

of the real property. The controlling point is

that the real property must be acquired for a

Federal or Federal financially assisted program

or project.

The Report then gives various examples, such as that

it ts acquisition for a Federal project if a state ac-

quires property, even with only state money, for the

right-of-way for a Federal-aid highway. There are

no examples given of “displaced persons” where the

move was made as a result of notice regarding prop-

erty which was already in the ownership of the Fed-

eral agency.

Following approval by the House, the revised S. 1

was returned to the Senate, the House indicating a

refusal to go to conference. There were other changes,

particularly involving judicial review, that occupied

the attention of the Senate in its renewed considera-

tion. The only apparent reference to the change in

definition was in a memorandum on “points of sig-

nificant concern” submitted by Senator Perey on be-

* H.R. Rep. No. 1656, No. 91st Cong., 2nd Sess. 4, reprinted in

[1970] U.S. Code Cong. & Ad, News 5850, 5852.

** Jd. (emphasis added).

404

half of the Administration. The relevant paragraph

provides as follows: *

Definition of displaced person. The House

bill would limit the status of displaced person

to those who move as the result of the acqusi-

tion of, or written notice to vacate, real prop-

erty. The Senate version would provide a

broader definition which ineludes those who

move as the result of acquisition or reasonable

expectation of acquisition,

In the estimation of the Administration, then, the

House language requiring notice was seen as narrow-

ing the coverage from those who move as the result

of “reasonable expectation of acquisition” to those

who receive a written notice prior to such expected

acquisition, although the memorandum makes no

judgment about the desirability of this change. The

Senate again passed S. 1 and the President signed it

into law.

Looking back at the legislative history, the purpose

which should be attributed to che notice clause seems

clear. The original bill, S. 1, had provided a broad

definition of “displaced persons,” covering those who

moved with a ‘‘reasonable expectation” that an

ageney would acquire their housing for a project even

if the agency did not ultimately make the acquisition.

This definition, however, appears to present obvious

problems of administration, particularly as it may

call for many individual determinations on “reason-

ableness’’ based on the facts of each case, with all

determinations subject to judicial review.” The House

116 Cong. Ree, 42139 (1970) (emphasis supplied).

* See, e.a., United States v. Braddy, 320 F. Supp. 1259, 1241

(D, Ore. 1971). which held that by the phrase “reasonable expec-

tations” in the 1968 Highway Act “Congress intended the proper

state agency to weigh each case on its own merits.”

: 41a

change, to replace “reasonable expectation” with

' “written notice’? from the “acquiring agency,” ap-

. pears to have been an effort to simplify and regular-

ize the definition by limiting coverage to those with

specific notice. The change would also have the effect

of narrowing the definition since generally for most

projects, like highway construction, there would be

fewer people receiving written notice to vacate than

would have a reasonable expectation that their resi-

dences might be acquired.

The House and Senate versions, though, shared the

same purpose: as the House Report said, this supple-

mental definition meant to cover those given notice

who moved prior to acquisition or who moved even

though the anticipated acquisition did not occur. This

appears to be the limited purpose envisioned for the

notice clause. It was designed to provide a more con-

crete standard than “reasonable expectation” of ae-

quisition. If anything, tlie change by the House limited

the definition, and certainly did not vastly expand it

by covering all persons displaced with notice from

property already owned and acquired by the agency.

In short, the “displaced persons” meant to be covered

by the Uniform Relocation Act are those connected

with the acquisitions or anticipated acquisitions by

agencies for their programs.

It is thus dispositive here whether Sky Tower was

acquired for a program or project, as discussed in

Parts I and IT above. This is the basie issue which

separates my view from the views of my colleaques;

whether the acquisition, or the notice clause is in-

volved, the acquisition or notice of proposed acquisi-

tion must be an “acquisition for a program or

project.” There can be no such acquisition if HU D’s

accession to title is involuntary. Caramico, Alexander,

and Harris, supra.

eee “~~. oe n>

s ee ee ee ee

42a

The meaning of the notice clause found in the iegis-

lative history also draws support from other pro-

visions of the Act as well as from the available case

law. Title I of the Uniform Relocation Act contains

the general provisions, including definitions; Title II

sets out the actual relocation assistance to be provided.

Section 202, for example, specifies the compensation

for moving and related expenses; it begins:”

Whenever the acquisition of real property for

a program or project undertaken by a Federal

agency in any State will result in the displace-

ment of any person on o after January 2,

1971, the head of such agency shall make a

payment to any displaced person * * *.

Section 205, concerning the advisory services for re-

location assistance, also contains an identical introdue-

tion, about the “acquisition” of real property.” These

occasional introductions are presumably meant as

rough paraphrases of the coverage of the Act, being

of significance here, therefore, fer their foeus on

“acquisition” for a project as a condition for benefits.

There is no suggestion that these clauses, found seem-

ingly at random in two of the sections of Title II,

mean that there should be different benefits available

to “displaced persons” qualified by the acquisition

clause than for those qualified by the notice clause,

defined by majority in such a way as to be independent

of the acquisitions requirement.

Title TIT of the Act, concerning uniform acquisition

policy, also appears to lend some support to the HUD

position. Section 301(5) directs all agencies to

schedule construction projects in such a way that no

°° U.S.C. § 4622(a) (1970) (emphasis added).

4° Jd, § 4625(a).

— ee

PO AIS sata Cs ei A be al

le Si

43a

person occupying real property is required to move

**without at least ninety days’ written notice * * * of

the date by which such move is required.’ “ This clear-

cut directive, which agencies must meet “to the great-

est extent practicable,” ties in well with the “written

notice” clause as an alternative definition. Once a per-

son receives the written notice directed by section

301(5), he assuredly becomes a “displaced person” and

can begin to take advantage of the Act’s benefits, in-

cluding advisory services and rental replacement sup-

plements, at least ninety days before actually having

to vacate.

Lastly, there is unanimous ease support for the

HUD view that the Uniform Relocation Act does not

apply to persons displaced from property already in

the ownership of the concerned agency, even though

a notice to vacate for a project may be given. In

Harris v. Lynn,” the tenants seeking to qualify as

“displaced persons” were required to move so that the

ill-fated public housing projects of Pruitt-Igoe in St.

Louis could be demolished. The tenants argued that

** Id. $ 4651(5) (emphasis added).

‘7411 F. Supp. 692 (E.D. Mo. 1976), aff'd, 555 F. 2d 1357 (8th

Cir, 1977), It appears that the Harris courts treated “acquisition”

in the “acquisition” clause and “acquiring agency” in the “notice”

clause as functional equivalents, thus disposing of the majority's

attempt to distinguish this case. Maj. op, at 12 & n. 29. Not only

did the Court of Appeals “adopt the factual statement and legal

reasoning” of the District Court, but also specifically stated, “The

plaintiffs’ eligibility for assistance, in essence, turned on the resolu-

tion of two issues: (1) whether there was an ‘acquisition’ for a

program or project of a Federal Agency, and (2) whether the

demolition was part of a comprehensive city demonstration pro-

gram * * *.” 555 F. 2d at 1360. The majority’s efforts to distin-

guish Harris, like its efforts to distinguish Alerander, simply

won’t wash.

44a

the projects were essentially “federal” lands, due to

various loan and trust arrangements, and “that to

deny relocation benefits to individuals forced to move

from ‘federal’ lands while granting such benefits to

those displaced as a result of the ‘acquisition’ of such

lands would run counter to the Congressional pur-

pose and intent.” The District Court agreed: “*

It is clear to us, however, that Congress ad-

visedly limited the eligible class (in Section

4601(6)) to those forced to move as a result of

an “acquisition.” There are, for example, a

number of references in the Act to “acquisi-

tion’? and “aequiring agency.”

Those tenants, although displaced-in-fact, were thus

denied coverage because they had not moved as a re-

sult of an acquisition of their dwellings. On appeal

the Eighth Cireuit ‘‘adopt[ed] the factual statement

and legal reasoning set forth in the District Court's

opinion and affirm[ed] that decision as to the issues

it reaches.” *

Tf, as the Fighth Circuit has maintained, Congress

meant to provide coverage only for displacements con-

nected with acquisitions, it would depart from that

purpose to read the notice clause as the majority

reads it here. Whenever an agency wishes to vacate

property it already owns for some new “project or

program,” it presumably gives written notice to the

occupying tenants. If that notice alone is said .to

qualify the tenants as “displaced persons,” then the

Act will be applying to all varieties of displacements

that are not remotely related to “acquisitions.” Based

on the legislative history, other provisions of the stat-

#3411 F. Supp. at 695.

447d. (emphasis added).

555 F, 2d at 1359.

45a

ute, and available case law, I believe instead that in

its definition of “displaced person” the Uniform Re-

location Act is concerned with displacements from

“aequisitions.” And, thus, in this ease, since the in-

voluntary taking of the property due to default and

foreclosure was not an “acquisition” for a “program

or project,” these appellees cannot be “displaced

persons.”

This was exactly what the Seventh Cireuit held in

Alexander vy. HUD, supra. The court’s description of

plaintiffs’ argument in Alerander neatly describes

plaintiffs’ argument here: “The tenants in this case

contend that Caramico is distinguishable factually

since in Caramico HUD was not the mortgagee, did

not foreclose on the mortgage, and did not purchase

the property from which the tenants were evicted.

Further, plaintiffs argue Caramico involved the ac-

quisition aspect of 42 U.S.C. § 4601(6), whereas here

plaintiffs rely on the aspect of that section dealing

with a written order to vacate by the acquiring

agency.” The Seventh Circuit squarely and unani-

mously rejected this argument, the position of my

two colleagues here, saying: “Although distinguish-

able with respect to particular facts, Caramico in-

volved the same inquiry as presented by this ease, i.e.,

whether the activity of the governmental agency was

‘for a program or project undertaken by a Federal

agency, or with Federal financial assistance.’ In this

case, we conclude that HUD’s written order to the

tenants of Riverhouse to vacate by December 31, 1974

was not for such a program or project.” No legal

*° 555 F. 2d at 169 (emphasis supplied).

7 Thid.

46a

legerdemain can distinguish the Seventh Circuit’s

holding in Alexander from the case at bar.”

TV. OVERALL PURPOSE OF THE Act

As the Seventh and Eighth Cireuit cases and this

«ase all illustrate, there may be persons displaced in

fact from buildings already in the ownership of state

or federal agencies who do not quality as “displaced

persons” even though the displacement results from

a “program or project,” é.e., demolition. A reading of

the definition as it was intended by the Uniform Relo-

cation Act leads, as I have shown, to this conclusion.

Before resting with this conclusion, however, it may

be instructive to ask whether this outeome, excluding

these appellees from coverage, is consistent with the

overall structure of the Act, apart from whether it

accords with the definition. After all, as the Act itself

makes clear, a primary purpose is to assure that dis-

placed persons “shall not suffer disproportionate in-

juries as a result of programs designed for the benefit

of the public as a whole.” “ Is there any support in

the Act, apart from the definition, for establishing

coverage for persons displaced due to acquisitions for

programs but denying coverage for persons displaced

from property already owned by the agency?

Looking elsewhere in the Act, it appears that Con-

gress made an express provision that certain persons

displaced in fact by federal aid or a federal agency

would be considered “displaced persons” even though

*® The quoted sentence from A/exander, by which in note 27 the

majority attempts to distinguish the Seventh Circuit case, con-

stitutes simply an additional reason for a conclusion already

reached on the Caramico rationale, as a reading of the whole

opinion plainly shows.

*° 42 U.S.C, $ 4621 (1970).

47A

the displacement may not have resulted from acquisi-

tion. As set out in full below, section 217 of the Act ®

provides that persons who have to move as a result of

certain federal aid programs involving urban renewal

shall, “for the purposes of this [title], be deemed to

have been displaced as the result of the acquisition of

real property.” In other words, under these named

programs there may be extensive displacement, from

public housing projects, for example, without any

federal or federally-financed state acquisition of real

property. Section 217, therefore, is designed to cover

displacements caused by these named activities even

though there was no acquisition. This section does

what Congress did not do in the section at issue here,

and rather completely refutes the majority claim

‘that if Congress had explicitly considered * * *, it

would have approved an interpretation of the Act

making benefits available for such persons.” Con-

gress did so—when it desired to do so.

If the notice clause had the meaning given it by the

majority, it would have been completely unnecessary

for Congress to have enacted section 217. The persons

displaced by these urban renewal programs would

undoubtedly have been given notices to vacate ‘‘for’’

these projects and would have been qualified under

ee es

°° 42 U.S.C. § 4637 (1970) : “A person who moves or discontinues

his business, or moves other personal property, or moves from his

dwelling on or after January 2, 1971, as a direct result of any

project or program which receives Federal financial assistance

under title I of the Housing Act of 1949, as amended, or as a

result of carrying out a comprehensive city demonstration pro-

gram under title I of the Demonstration Cities and Metropolitan

Development Act of 1966 shall, for the purposes of this sub-

chapter, be deemed to have been displaced as the result of the

acquisition of real property.”

** Maj. op. at 16.

48a

the notice clause, as the majority reads it. The fact,

however, that Congress had to provide special cover-

age for these persons suggests that it did not intend

that all persons displaced from property already

owned by an agency would be eligible for benefits.

The fact that Congress provided special coverage as

to certain named programs also suggests that it is for

Congress to decide when to extend coverage to other

persons displaced from property already owned. There

may be reasons of equity or policy for the Uniform

Relocation Act to reach all persons displaced as a

result of federal programs, regardless of whether

their property is acquired or already owned by the

relevant agency. But as the Act is now structured we

are obliged to follow the definition as phrased and as

intended and te leave questions of additional coverage

to Congress.

As a closing note of caution, I would ask the major-

ity to consider the consequences of what may well

have happened here had HUD accepted the meaning

of the notice clause as the majoritv has interpreted it

now. If HUD knew that once it acquired a building

with tenants, however involuntary the acquisition,

these tenants would become “displaced persons”’ if

HUD ever served them with notice to vacate ‘‘for”

another project, then what could very likely have been

the HUD response? HUD might well have insisted,

as it had every legal right to do, that the mortgagee

evict all the tenants before HUD would accept the

property and pay out the mortgage insurance. Being

evicted by the mortgagee, the tenants would clearly

not have been “displaced persons’’ according to the

interpretation in Caramico and even more squarely on

point in Alexander.” In brief, as the notice definition

°? See also Moorer v. HUP (No. 76-1830, 8th Cir. 9 September

1977).

eee

49a

now stands in this Circuit, there will be greater incen-

tive for HUD to tsist upon taking title without

tenants in occupancy, thereby avoiding what it re-

gards as the ‘‘substantial’’ financial burden of the

majority’s interpretation.” The irony of the result in

this case is that the majority may be hurting the

urban poor among the displaced more than helping

them.

V. CoNncLUSION

In summary, I agree with the Second Cireuit in

Caramico v. HUD, with the Eighth Cireuit in Harris

v. Lynn, and with the Seventh Circuit in Alexander v.

HUD. All three of our sister circuits have held that

where there is an involuntary acquisition of property

by HUD the evicted tenants are not “displaced per-

sons” within the meaning of the Act. My colleagues

have tried valiantly to distinguish Caramico by saying

it clearly turned upon the ‘‘acquisition’’ clause defin-

ing “‘displaced persons,” but the Eighth Cireuit in

Harris v. Lynn and the Seventh Cireuit in Alexander

Vv. HUD dealt with the ‘notice’? clause definition of

displaced persons, which is involved in our case. In

each instance the Court of Appeals unanimously

affirmed a District Court reaching the decision I

would reach here. In light of the analysis of the

statute in these three cases by twelve federal judges,

and the unanimous conclusion reached in each ease, I

respectfully suggest that the reasons advanced by my

two colleagues here are unpersuasive, certainly inade-

quate to overcome .the weight of both reason and

authority manifested in the other three circuits. I

therefore respectfully dissent.

53 HUD Brief at 21-23.

APPENDIX B

United States Court of Appeals for the District of

Columbia Circuit

SEPTEMBER TERM, 1977

(No. 75-2268)

Sabie E. Coir,

Patricia Roperts Harris, INDIVIDUALLY AND IN’ HER

OFFICIAL CAPACITY AS SECRETARY OF THE UNITED

STATES DEPARTMENT OF HovsING AND URBAN DEVEL-

OPMENT, ET Al., APPELLANTS

(No. 75-2269)

SapiE E. CoLe, ET AL., APPELLANTS

Patricia Roperts Harris, INDIVIDUALLY AND IN HER

OFFICIAL CAPACITY AS SECRETARY OF THE UNITED

STATES DEPARTMENT OF HovusING AND URBAN DEVEL-

OPMENT, ET AL.

APPEALS FrRoM THE UNITED States District Court

FOR THE District or COLUMBIA

Before: Bazeton, Chief Judge, McGowan AND

WIkKey, Circuit Judges.

Judgment

These causes came on to be heard on the records

on appeal from the United States District Court for

(50a)

SIA

the District of Columbia and were argued by the par-

ties. On consideration of the foregoing, it is

ORDERED AND ADJUDGED by this Court that

the judgments of the District. Court appealed from

herein are hereby affirmed in part and reversed in

part, in accordance with the opinion of this Court

filed herein this date.

Per Curiam.

For the Court,

GeEorGE A, FISHER,

Cleri:.

Date: November 14, 1977.

Opinion for the Court filed by Chief Judge Bazelon.

Dissenting opinion filed by Circuit Judge Wilkey.

APPENDIX C

United States District Court for the District of

Columbia

(Civil Action No. 74-1872)

Sapre E, Coe, ET AL., PLAINTIFFS

Carta A. HILLS, ET AL., DEFENDANTS

Order

Upon consideration of the complaint, the motions of

the parties for partial summary judgment respecting

plaintiffs’ claim for relief based upon the Uniform

Relocation Assistance and Real Property Acquisition

and Policies Act of 1970, 42 U.S.C. 4601 et seq. (here-

inafter referred to as “the Act’’), the memoranda of

points and authorities, exhibits and argument of coun-

sel in support thereof and in opposition thereto and

the Court being advised in the premises, it is by the

Court this 12th day of September, 1975, pursuant to

28 U.S.C. 2201.

Declared and adjudged that by having come into

possesion of the Sky Tower Apartment project as the

result of a mortgage default, HUD was “the acquiring

agency” within the meaning of the Act; and it is

further

Declared and adjudged the notices of September 27,

1974 advising Sky Tower tenants to vacate were the

“written order of the acquiring agency to vacate real

(52a)

53A

property” within the meaning of the Act; and it is

further

Declared and adjudged the notices aforesaid were

“for a program or project undertaken by a federal

agency” within the meaning of the Act, to wit, the

demolition of Sky Tower; and it is further

Declared and adjudged that all persons who were

tenants at Sky Tower as of September 27, 1974 and

vacated their apartments on or after that date and

prior to August 1, 1975 are “displaced persons” to

whom the Act’s benefits are available; and it is finally

Declared and adjudged said tenants who vacated

their apartments as a result of the notice of Septem-

ber 27, 1974 are entitled to a prorated portion of the

benefits provided under Section 204 of the Act for the

period commencing upon the date of their move from

Sky Tower and terminating August 1, 1975 (or the

date on which any such person returned to Sky Tower,

if earlier than August 1, 1975), by which dates the

avaliability of apartments at Sky Tower for tenants

shall be deemed to constitute provision of comparable

relocation housing as required by sections 205(c¢) (3)

and 204(1) of the Act, so as to waive the provisions

of any other benefits under the Act to said tenants;

and it is

Ordered that, pursuant to Rule 54(b) of the Federal

Rules of Civil Procedure, this Court hereby directs

entry of a final judgment as to this one of several

claims of the plaintiffs, there being no just reason for

delay.

The reasons for the certification under Rule 54(b)

(see Allis-Chalmers Corp. v. Philadelphia Electric Co.,

3rd Cir., July 10, 1975), are as follows:

1. The adjudicated and unadjudicated claims are

separate and distinct.

54a

2. There is no possibility that the need for review

will be mooted by future developments in the district

court.

3. There is no possibility that the reviewing court

will have to consider the issue a second time.

4. No claim or counterclaim has been presented

which could result in set-off against the judgment

sought to be made final.

5. The issue defendants have raised is of general

public importance warranting prompt appellate dis-

position, and is certainly not frivolous; to some ex-

tent this is a case of first impression; and the needs

of plaintiff class warrant reaching a final disposition

of this issue without awaiting determination of the

other issues in the litigation.

The Court accepts defendants’ understanding that,

because this order provides for declaratory rather

than injunctive relief, defendants are not required to

make payments hereunder pending final decision on

appeal.

GeRHARD A. GESELL,

United States District Judge.

U.S. GOVERNMENT PRINTING OFFice: 1978

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.