# Petition — Harris v. Cole > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0914%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 437 U.S. 903 ## Text — &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 v. 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) 2 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” 3 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. 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 ) | ‘ 1 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 j 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, a 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. 3 > . 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 * * *, A 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.”’ B. 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.” ce : 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 C. 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 — 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). Ce 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, v. 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 v. 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 v. 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0914%3A1. Public record. Not legal advice.