# Appendix — Trustees of the University of Pennsylvania v. Sansom Committee

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2607%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 1017

## Text

- (2
84 =-2 32 : Office-Supreme Court, U.S.

FILED

AUG 9g 1964
No.
ALEXANDER L. STEVAS,
CLERK
IN THE

Supreme Court of the United States

October Term, 1984

THE TRUSTEES OF THE UNIVERSITY OF PENNSYLVANIA,
Petitioner,

v.

THE SANSOM COMMITTEE,
Respondent.

APPENDIX TO PETITION FOR WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE THIRD CIRCUIT

Stewart Dalzell

(Counsel of Record)

Alfred W. Putnam, Jr.
Sharon L. Klingelsmith
DRINKER BIDDLE & REATH
1100 Phila. Nat'l Bank Bldg.
Broad and Chestnut Streets
Philadelphia, PA 19107
(215) 988-2700

Counsel for Petitioner
The Trustees of the
University of Pennsylvania

PACKARD PRESS / LEGAL DIVISION, 10th & SPRING GARDEN STREETS, PHILA, PA. 19123 (215) 236-2000

TABLE OF CONTENTS

Court of Appeals Opinion, No. 83-1121 ...........
Court of Appeals Opinion, No. 83-1120 ...........
Court of Appeals Opinion, No. 83-1253 ...........
Order Amending Opinion in No. 83-1121 ..........
Order Denying Petition for Rehearing, No. 83-1121
Order Denying Petition for Rehearing, No. 83-1120 ...
Order Denying Petition for Rehearing, No. 83-1253 ...

National Environmental Policy Act of 1969,
Co a ae

National Housing Act of 1949,
42 U.S.C. §1441, et seq., selected sections ......

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 83-1121

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C.R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., CAMPUS PHAR-
MACY, INC., JOHN McCOUBREY,

Appellee,

Vv.

JAMES LYNN, individually and as Secretary, Department
of Housing and Urban Development, JOSEPH LaSALA,
THE REDEVELOPMENT AUTHORITY OF THE CITY
OF PHILADELPHIA

THETRUSTEES OFTHE UNIVERSITY OF PENNSYLVANIA,
Appellant.

On Appeal from the United States
District Court for the
Eastern District of Pennsylvania

(D.C. Civ. No. 73-1444)

Argued December 13, 1983

Before: SEITZ, Chief Judge,
GARTH and BECKER, Circuit Judges

(Opinion Filed June 1, 1984)

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Stewart Dalzell, Esq. (Argued)
Alfred W. Putnam, Jr., Esq.
Sharon L. Klingelsmith, Esq.
Drinker Biddle & Reath
1100 Philadelphia Nationai
Bank Building
Broad and Chestnut Streets
Philadelphia, PA 19107
Attorneys for appellant.

Robert J. Sugarman, Esq.

Mary B. Coe, Esq.
Sugarman & Denworth
Suite 510
North American Building
121 South Broad Street
Philadelphia, PA 19107

Attorneys for appellee.

Mari M. Gursky, Esq. (Argued)
John M. Coleman, Esq.
Dechert Price & Rhoads
3400 Centre Square West
1500 Market Street
Philadelphia, PA 19102
Attorneys for appellee.

Carl S. Primavera, Esq.
Robert J. Guerra, Esq.
Legal Division

Redevelopment Authority of the

City of Philadelphia

Suite 826

1234 Market Street

Philadelphia, PA 19107
Attorneys for the
Redevelopment Authority.

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OPINION OF THE COURT

SEITZ, Chief Judge.

L.

The Trustees of the University of Pennsylvania (the “Uni-
versity’) appeal from the February 10, 1983 order of the
district court denying the University’s “motion to enforce” a
consent decree. We have appellate jurisdiction under 28
U.S.C. §1291 (1976). This appeal will be designated as San-
som I to distinguish it from Sansom Committee v. Lynn, No.
83-1253 (Sansom II), filed contemporaneously.

Il.
FACTS

This appeal is a small sample of the unbridled litigious-
ness that has kept these parties in court for almost two
decades. The Sansom Committee (the “Committee’) is an
unincorporated association of residents and users of the 3400
block of Sansom Street, located in West Philadelphia, adja-
cent to the University of Pennsylvania. The Redevelopment
Authority of the City of Philadelphia (the “Redevelopment
Authority’) acquired the block by condemnation almost
twenty years ago and, in conjunction with the Department of
Housing and Urban Development (“HUD”), planned to de-
molish the structures on the block. The University acquired
the redevelopment rights to the block and expected to buy
the properties and to build an academic building.

Within a few years, the University changed its plans and
proposed to transfer its redevelopment rights to a commercial
developer. The Redevelopment Authority and HUD (collec-
tively, the “Agencies”) approved this modification of the
redevelopment plan. In 1973, however, the Committee
brought an action in the district court against the Agencies in
an effort to stop the proposed demolition and commercial
redevelopment. The Committee s underlying purpose was to

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rehabilitate the existing townhouses and to maintain their mix
of residential and low-volume commercial uses.

The Committee alleged that the Agencies violated the
National Environmental Policy Act of 1969, 42 U.S.C. §§4321
to 4361 (1976) (“NEPA”), and the National Housing Act of
1949, 42 U.S.C. §§1441 to 1490h (1976) (“NHA”), when they
approved the modification of the redevelopment plan. Cer-
tain of the Committee's claims were dismissed on motion by
the Agencies. The Agencies also moved to dismiss the action
for failure to join an indispensable party, i.e., the University.
The district court held that although the University had an
interest in the outcome of the action, it was not an indispen-
sable party. See Sansom Committee, 366 F.Supp. 1271, 1281
(E.D. Pa. 1973). The district court denied the University’s
subsequent petitions to intervene in the action.

After several further confrontations in the district court, '
the Committee and the Agencies stipulated that they had
“engaged in serious and fruitful setthement negotiations in
consultation with the University of Pennsylvania” and that
these discussions had led to a new proposal for the redevel-
opment of the block. The district court agreed to suspend the
action while the parties finalized a settlement.

The parties settled the action, and the district court
entered a consent decree (the “1980 Consent Decree’) which
contained the terms of the settlement agreement. Under the
1980 Consent Decree, the Redevelopment Authority was to
sell Sansom Street properties to parties designated by the
Committee, and the University agreed to nominate the des-
ignated parties to redevelop those properties in the
University's stead. The Committee, the University, and the
Redevelopment Authority signed the 1980 Consent Decree,
and HUD consented to its entry.

Within months, the decree “unravelled,” as the Univer-
sity says. The University claims that both it and the Com-
mittee wanted to make changes in the decree. The Commit-

1. See Sansom Committee v. Lynn, 382 F.Supp. 1245(E.D. Pa. 1974);
Sansom Committee v. Lynn, 382 F.Supp. 1242 (E.D. Pa. 1974).

ne |

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tee claims that the University’s “stalling tactics” inspired the
Committee to move for enforcement of the decree. Amidst
this unravelling, the district court in March 1982 entered an
order that named the Committee's designees. After further
negotiations, the University and the Committee reached an
agreement that included newly negotiated covenants, the
1980 Consent Decree, and other agreements between the
University and the Committee. These matters were incorpo-
rated in a new consent decree (the “1982 Consent Decree’),
which the Committee and the University signed. The Re-
development Authority consented to the entry of the 1982
Consent Decree.

Subsequently, the Committee advised the University
that some of its designees wished to withdraw from the
redevelopment project. The Committee proposed replace-
ment designees. In response, the University filed a “motion
to enforce” the 1982 Consent Decree. In this motion, the
University requested the court to substitute the University as
the redeveloper of the properties that the withdrawing des-
ignees were to have received. The district court denied this
motion, and the University appeals.

III.
JURISDICTION OVER CONSENT DECREE

The University raises for the first time on appeal the
contention that the district court lacked subject matter ju-
risdiction” to enter the 1980 Consent Decree. Although this
is an appeal from the denial of the University’s motion to
enforce the 1982 Consent Decree, we may consider the
University s j srisdictional challenge to the 1980 Consent De-
cree because the 1982 Consent Decree is essentially a modi-
fication of the 1980 Consent Decree,* and the validity of the

2. Personal jurisdiction over the University is not at issue.

3. A court possesses inherent power to modify its consent decree.
Delaware Valley Citizens’ Council v. Pennsylvania, 674 F.2d 976, 980 (3d
Cir.), cert. denied, 103 S.Ct. 206 (1982).

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1982 Consent Decree depends on the validity of the 1980
Consent Decree. It is not contested that we must address this
issue even though the University consented to the entry of
the decrees.

The district court clearly had federal question jurisdiction
in 1973, at the outset of the action between the Committee
and the Agencies based on the federal statutes invoked. The
University contends that the district court lacked federal
question jurisdiction in 1976 because HUD filed an environ-
mental impact statement dated in that year. Even if the
environmental impact statement satisfied HUD’s responsi-
bilities under the NEPA, it left intact the Committee's pend-
ing federal claims against the Agencies under the NHA.
Consequently, the district court still had subject matter ju-
risdiction when it considered the entry of the 1980 Consent
Decree. |

The University’s principal argument is that the district
court had no subject matter jurisdiction to enter the 1980
Consent Decree because its terms incorporated essentially
state law relief. More generally, the issue is whether there are
jurisdictional limitations to what a district court may incorpo-
rate in a consent decree, and if so, whether the district court
transgressed those limits.*

Consent decrees need not be limited to the relief that a
court could provide on the merits. As the Supreme Court long
ago explained:

Parties to a suit have the right to agree to anything they
please in reference to the subject-matter of their litiga-
tion, and the court, when applied to, will ordinarily give
effect to their agreement, it it comes within the general
scope of the case made by the pleadings.

Pacific Railroad v. Ketchum, 101 U.S. 289, 297 (1879); see
Citizens for a Better Environment v. Gorsuch, 718 F.2d 1117
(D.C. Cir. 1983); EEOC wv. Safeway Stores, Inc., 611 F.2d
795, 799-800 (10th Cir. 1979), cert. denied sub nom. Court-

4. The parties analyze the jurisdictional question under the tenets of
pendent and ancillary jurisdiction, but we find these doctrines inapposite.

LT

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wright v. EEOC, 446 U.S. 952 (1980); 1 Hogg’s Equity
Procedure §582 at 707 (3d ed. 1943); 3 Freeman on Judgments
§1349 at 2772 (1915); 2 Black on Judgments §705 at 843 (1891)
(citing cases for and against); cf. Alliance to End Repression v.
City of Chicago, F.2d, _(7th Cir. 1984); Swift &
Company v. United States, 276 U.S. 311, 329-31 (1928).

We recognize that some consent decrees may be beyond
the power of a federal court to approve. See Safeway Stores,
611 F.2d at 795; Jordan v. School District, 615 F.2d 85, 91
(3d Cir. 1980) (Rosenn, J., concurring). Thus, a district court
cannot wield its equitable power beyond the realm of its
federal subject matter jurisdiction. E.g., Gordon v. Wash-
ington, 295 U.S. 30, 36 (1935); In re “Agent Orange” Product
Liability Litigation, 506 F. Supp. 737, 740 (E.D.N.Y. 1979),
revd on other grounds, 635 F.2d 987 (2d Cir. 1980), cert.
denied sub nom. Chapman v. Dow Chemical Company, 454
U.S. 1128 (1981). Nevertheless, as long as the terms of a
consent decree come “within the general scope of the case
made by the pleadings,” Pacific Railroad, supra, it will be
within the district court’s power to enter the decree, if the
pleadings state a claim over which a federal court has juris-
diction.

In addition to the claims that the district court dismissed,
the Committee alleged that the Agencies violated the NEPA
by failing to issue an environmental impact statement and by
failing to hold a hearing on the possibility of rehabilitation;
that the Agencies violated the NHA by permitting non-public
contributions; and that the Agencies violated the NHA by
failing to provide citizen participation in the redevelopment,
hold public hearings and seek the approval of local governing
bodies, insure conformity with community and regional plans,
and provide adequate relocation. Sansom Committee v. Lynn,
366 F. Supp. at 1281.°

The terms of the 1980 Consent Decree set out in detail a
cooperative plan for the rehabilitation and use of the Sansom

5. The Committee’s claim that the Agencies violated the NHA by
failing to preserve rehabilitable structures also appears to have survived
the motion to dismiss. See Sansom Committee, 366 F. Supp. at 1276.

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Street properties. Although the terms of the decree far ex-
ceeded the relief available under the NEPA and the NHA,°
the decree was directly responsive to the Committee's com-
plaint under these statutes. Thus, under the 1980 Consent
Decree, the properties would be rehabilitated with maximal
participation by interested members of the public. This is
consonant with the general policies and goals of the NEPA,
see 42 U.S.C. §§$4321, 4331; Sansom Committee, 366 F. Supp.
at 1274 (purpose of the NEPA is to require federal agencies to
consider local environmental consequences of their projects),
and of the NHA, 42 U.S.C. §§1441, 144la (the NHA en-
courages rehabilitation and community participation in re-
development); see Shannon v. HUD, 436 F.2d 809, 818 (3d
Cir. 1970) (residents, business owners, and representatives of
private civic groups have standing under the NHA to chal-
lenge the modification of a redevelopment plan). We con-
clude that the terms of the 1980 Consent Decree were suf-
ficiently related to the Committee's federal causes of action to
permit the district court to enter the decree without over-
stepping its subject matter jurisdiction.

The University also argues that the district court had no
power to enter a consent decree signed by a non-party to the
underlying action.’ Since, in our view, the decree met the

6. The University does not contend that the district court abused its
discretion in approving the terms of either the 1980 or the 1982 Consent
Decrees. Indeed, there is a serious question as to whether the University
would have the right to make such a contention.

7. The University cites Metropolitan Housing Development Corpo-
ration v. Village of Arlington Heights, 469 F. Supp. 836 (N.D. Ill. 1979),
aff d, 616 F.2d 1006 (7th Cir. 1980). The court in Metropolitan Housing
held that a consent decree may include anything to which “the parties”
may contract. Id. at 854-55 n.20. The court did not decide whether, if “the
parties” are parties to the consent decree, they must also be parties to the
underlying action. We also note that the holding in Metropolitan Housing
appears to be much broader than our holding under Pacific Railroad.

Regardless of the University’s status in the underlying action, its
participation in the 1982 Consent Decree gives it standing to bring this
appeal.

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requirements of Pacific Railroad, we fail to see how this
argument raises a question of subject matter jurisdiction.
Finally, the University challenges the district court's power to
construe, modify, or enforce the consent decrees. These
arguments, however, are predicated on the court's supposed
lack of jurisdiction to enter the 1980 Consent Decree, which
we reject.

IV.
MERITS

We must now decide whether the district court correctly
declined to substitute the University for the Committee's
withdrawing designees. Consent decrees are construed as
contracts. Fox v. HUD, 680 F.2d 315, 319 (3d Cir. 1982). Ifa
district cotrt’s construction of a contract involves no factual
issues, our standard of review is plenary, but findings of fact
must be left intact unless they are clearly erroneous. See
Barco Urban Renewal Corporation v. Housing Authority,
674 F.2d 1001, 1008 (3d Cir. 1982).

Neither the 1980 Consent Decree nor the 1982 Consent
Decree addresses the question of the replacement of with-
drawing designees. The district court held that a provision
that empowers the University to purchase a property if “no
designee of the Sansom Committee shall elect to purchase
[that] property” also implies that the Committee may des-
ignate more than one person to purchase a property. The
court also held that nothing in the 1982 Consent Decree
refers to the specific designees named in the court’s order of
March 1982. Finally, the district court viewed the decree in
light of the court's experience with its drafters and concluded
that if the drafters had intended that the University be
entitled to purchase a property after an initial designee with-
draws, the decree would have so provided. We agree with the
district court's construction of the 1982 Consent Decree.

ak

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ve
The district court's order dated February 10, 1983, de-
nying the University’s “motion to enforce” the consent de-
cree, will be affirmed.” Costs will be taxed against the
appellant.

BECKER, Circuit Judge, concurring:

| agree with Chief Judge Seitz's analysis of the questions
of subject matter jurisdiction and jurisdiction over the parties.
I also agree with the Chief Judge's analysis of the merits. I
therefore concur fully in his opinion.

I write separately to address the question of the limits on
the scope of federal equitable remedial power. More specifi-
cally, in a case such as this, where the original issues that gave
rise to federal subject-matter jurisdiction are no longer in
dispute, and where a consent decree negotiated by the parties
calls for continuing and extensive federal supervision over
what are essentially state-law property and contract issues,
the question arises whether there are prudential limits on the
district court's power to approve the decree.

This issue was not raised by the parties, either before the
district court or on appeal, nor was it raised by the district
court sua sponte. The issue ordinarily, therefore, would not
merit my writing separately. Because, however, this case
demonstrates the potential for federal court involvement in
matters that should be relegated to state courts, because
appellate courts will seldom have the issue squarely before
them — the parties may be estopped from arguing that the
district court abused its discretion in approving a consent
decree, — and because, as a former district judge, | recognize
that district judges are often chary of upsetting a settlement
by refusing to approve terms of a negotiated decree, I take the
liberty of advancing, for consideration of the district courts in
the fashioning of consent decrees, at least one possible ap-
proach to this problem.

8. We deny the Committee's request that this appeal be dismissed for
an alleged failure to follow the rules of appellate procedure.

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As I see it, the potential issue as presented by this case
is whether, because the federal question that gave rise to this
suit had long been settled, the district court could have been
charged with exceeding allowable discretion when it ap-
proved consent decrees in 1980 and 1982 that provided for
continuing federal supervision to settle any disputes that
might arise between the parties out of the consent decrees.
The legal issues likely to be involved in the interpretation and
enforcement of the decrees were classically questions of state
contract and property law — matters in which the federal
government, because there is no diversity of citizenship be-
tween the parties, has no interest. As I have suggested, there
are limits on the discretion of the district court to involve itself
in the resolution of non-federal disputes under the guise of
enforcing a consent decree where the issues which gave rise
to the federal court's subject-matter jurisdiction are no longer
in dispute. Where those limits are exceeded, I believe that
the district court should remit the parties to state court to
enforce their agreement.

In order adequately to explain my position, I must de-
velop the facts and procedural history in somewhat more
detail than was necessary for Chief Judge Seitz. I turn now to
that task.

L.

As the Chief Judge explained in the majority opinion, the
origins of this litigation stretch back to the early 1960s when
the City of Philadelphia, through its agent the Redevelop-
ment Authority (RDA), exercised its powers of eminent do-
main to purchase substantial tracts of land containing sub-
standard dwellings around the campus of the University of
Pennsylvania. The dual purpose of these acquisitions was to
eliminate urban blight by tearing down the offending struc-
tures and to provide land to the University for its planned
expansion over the following decade.

Neither of these goals was immediately realized. The
University apparently overexpanded and therefore did not

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need the additional land between Sansom and Walnut Streets
at 34th Street. Therefore, instead of razing the houses, the
RDA became a landlord. By the early 1970s, the University
decided it did not need the land, and therefore propused to
the RDA that a commercial developer be chosen to build on
it. By this time, however, fashions in urban renewal had
changed. The structures that in the 1960s had been consid-
ered examples of urban blight, were, with the gentrification
movement of the 1970s, highly desirable shells that, with
rehabilitation, had the potential to be very expensive
townhouses. Consequently, the residents of the houses, who
were renting from the RDA, opposed the University’s plan to
nominate a commercial developer. These residents formed
the Sansom Committee for the ostensible purpose of prevent-
ing the RDA from changing the character of the neighborhood
from residential to commercial. As an alternative to the
University’s plan, the Committee proposed that its members
be given the right to purchase the houses from RDA, and to
redevelop them themselves.

In 1973 the Sansom Committee brought suit in federal
court alleging that the RDA’s plan to tear down the houses
violated the National Environmental Policy Act of 1969, 42
U.S.C.§§4321-4361 (1976) (“NEPA”), and the National Hous-
ing Act of 1949, 42 U.S.C. §§1441-1490h (1976) (“NHA”). The
Committee was unsuccessful in preventing the City from
tearing down the houses on the 3400 block of Walnut Street,
but eventually obtained an injunction temporarily saving the
houses on Sansom Street. In 1976 the Committee, the Uni-
versity, and the RDA reached an agreement in principle not
to tear down the houses, and the district court placed the case
on its supense docket. With this agreement, the federal
interest — preserving the residential character of the neigh-
borhood — was essentially satisfied.’ The remaining issue, in

1. To underscore, I agree completely with Chief Judge Seitz that the
district court did not “lose” subject matter jurisdiction in 1976, or at any
other time. There still remained several federal law issues to be litigated
in 1976, including a contempt action that was pending against the RDA,
and plaintiffs’ claims for attorneys’ fees. In addition, because the RDA and

A-13

addition to the signing of a formal settlement agreement, was
the question of who should be permitted to buy the houses
from the RDA, and under what conditions.

Four years later, in December of 1980, the parties in-
formed the district court that they had committed an agree-
ment to writing, which they styled a “consent decree.” This
agreement essentially provided that the University would
nominate individuals designated by the Sansom Committee
to rehabilitate the houses on Sansom Street, and that these
nominees would be given the right to purchase the houses
from the RDA at prices substantially below market cost. The
agreement also provided that the district court would retain
jurisdiction to oversee its implementation. The University,
the Sansom Committee, and the RDA all signed this agree-
ment, and the district court approved it on January 12, 1981.
A second “side agreement,” signed by the University and the
Sansom Committee, listed the individuals who were desig-
nated to rehabilitate the properties, and bound these indi-
viduals to abide by very detailed redevelopment criteria. This
side agreement also set out a number of restrictions and
limitations on the title the designees would receive. This
agreement was not part of the “consent decree,” and the
district court retained no jurisdiction to enforce it.

Rather than settling the case, the signing of this consent
decree set off a new round of disputes between the University
and the Sansom Committee, and among the members of the
Sansom Committee. At least four members of the Sansom
Committee felt that their interests had not been represented
by the Committee's negotiators. These members unsuccess-
fully tried to intervene before the district court in order to
protect their interests. In addition, Michael Karp, one of the
named plaintiffs in the original action, unsuccessfully tried to
block approval of the consent decree by the district court.
Karp appealed the district court's approval of the consent

the University were still free to change their respective minds until they
actually signed a settlement agreement, one cannot fairly say that the
federal claims were moot.

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decree to this Court, and we affirmed the district court.
Subsequently, Karp has continued to litigate in federal court.
Today we have rejected four of his appeals arising out of his
dispute with the Sansom Committee. In addition, Karp has
filed two suits in state court. One suit alleged breach of
fiduciary duty against the Sansom Committee, its “trustee ad
litem” Elliott C. R. Cook, the University, and the RDA; the
other suit alleged malpractice and fraud against Sansom Com-
mittee counsel.

In addition to the intra-Sansom Committee squabbles,
the agreement between the Sansom Committee and the
University became “unravelled” by the late summer of 1981,
with both parties seeking changes to their 1980 agreement,
and the University filing a motion to enforce in the district
court. Eventually, the University and the Committee agreed
to a new settlement, which they signed on April 7, 1982. This
new agreement modified the first consent decree in several
ways. The University was granted a right of first refusal to
purchase the homes on Sansom Street whenever the purchas-
ers designated by the Sansom Committee decided to sell. In
addition, the new agreement incorporated an amended ver-
sion of the 1980 side agreement between the University and
the Sansom Committee, including detailed specifications for
rehabilitating the houses and a declaration of easements and
restrictions. This second agreement, which is an inch and a
half thick and has aptly been characterized by counsel for the
University as a “code of federal regulations” for the rehabili-
tation of the houses on the south side of the 3400 block of
Sansom Street, specifically declared that the district court was
to retain jurisdiction to supervise its implementation and
enforcement.” This revised consent decree was approved by
the district court on August 12, 1982.

Unfortunately, the second decree was no more successful
than the first in ending the parties’ disputes. The Committee
and the University immediately began fighting over such

2. See infra note 4 and accompanying text.

A-15

questions as who were proper designees, by what date the
designees had to purchase the houses from the RDA, and
what the consequences were if some of the designees failed to
purchase the houses “in time.” As provided by the decree,
the parties returned to the district court to resolve their
disputes. The district court decided the disputed issues,
generally favorably to the Sansom Committee. The present
appeal is from these decisions.®

Il.

The interesting and difficult point is whether all of this in-
fighting over the redevelopment of the 3400 block of Sansom
Street belongs in federal court. Judge Garth apparently shares
this concern, but characterizes the issue as one of “jurisdic-
tion.” I believe, on the other hand, that the question is not
one of jurisdiction, but rather one of discretion and the scope
of remedial power. Specifically, the problem is whether the
district court should have agreed to oversee the implemen-
tation and enforcement of the settlement agreements.

My analysis begins with my belief that it is wasteful and
inappropriate for the federal courts to be spending time on a
case such as this. The current dispute between the University
and the Sansom Committee is solely one of contract inter-
pretation which would ordinarily be a question of state law.
Because there is no diversity of citizenship among the parties,
the only federal interest in this case is based on the claims of

3. In addition to the University versus Sansom Committee disputes,
the district court continued to be occupied by intra-Sansom Committee
litigation. Besides the Karp litigation, which continued (and continues), H.
Clayton Cook, the brother of Elliott Cook, the “trustee ad litem” of the
Sansom Committee, intervened in the federal action claiming that he (not
Elliott Cook) was the real owner of La Terrasse Restaurant, the entity that
occupied three of the houses on Sansom Street and apparently that was the
principle source of funds for the litigation. This matter ended up in
litigation styled Cook v. Cook v. Dechert, Price & Rhoads, No. 82-7953
(E.D. Pa. 1983), which was tried in March of 1983, and ultimately settled
in favor of the defendants.

A-16

the Sansom Committee that the original plan to tear down the
houses on the 3400 block violated a federal statute requiring
that there be “community input” before a federally funded
urban renewal project changed the character of the neigh-
borhood from residential to commercial. Since none of the
parties to the current litigation has any intent of tearing down
the houses, this federal interest has essentially dissipated. On
the other hand, if the district court continues to exercise
supervision over the settlement agreement, it will be re-
quired to interpret a “code of federal regulations” for the
rehabilitation of the houses on the south-side of the 3400
block of Sansom Street. At oral argument, counsel for the
University indicated that, if we upheld the district court's
power to superintend this consent decree, a myriad of mo-
tions would be filed with the district court requesting the
court to interpret the incredibly detailed structural specifi-
cations for rehabilitation of the houses. For example, counsel
stated that the parties presently dispute the meaning of the
building height limit contained in the specifications: the 3400
block of Sansom Street is on a hill and the parties cannot agree
as to whether the height limit is to be measured from the low-
end or high-end of the block, or from multiple points in
between.* Oral Argument Transcript, at 48. The task of
resolving all of these disputes as to the meaning of the 1982

4. It is difficult to convey adequately the extent of the detail that is
encompassed by the 1982 consent decree. The decree is several hundred
pages long and sets out precise specifications for everything from the type
of stone and wood that can be used in rehabilitating the houses to
specifications for such concerns as “acceptable letter styles” on signs, etc.,
acceptable forms of “flags and banners,” and methods of vermin control
and refuse disposal. In addition, the agreement contains several 3 feet by
2 feet architect's plats, and literally dozens of blue prints for every possible
structural detail of the houses, including, for example, the basement
entrance, the roof deck and railing, the second story deck, the “light court
stair,” the “raised garden” and the front door (including the precise size
and location of the postal numbers on the door). All this detail is fertile
ground for future litigation between the parties and between the members
of the Sansom Committee.

A-17

consent decree would clearly place a severe burden on the
time of the district court, and ultimately of this court on
review.

Of course if this effort was necessary to implement a
decree protecting federal rights, it would be appropriate for
the federal courts to expend it. When a federal statute or
constitutional provision has been violated, the federal courts
have broad equitable power to formulate remedies in order to
correct the violation, and to supervise the implementation of
those remedies.” See Swann v. Charlotte-Mecklenburg Bd. of
Educ., 402 U.S. 2 (1971). This equitable remedial power,
however, is not unlimited. Milliken v. Bradley, 418 U.S. 717
(1974). There should be prudential limits, and at some point
there certainly are constitutional limits, on the scope of that
power. The existence of a federal statutory or constitutional
issue demanding a remedy does not give a federal judge a
roving commission to adjust all disputes of whatever nature
involving — however tangentially — the parties and those in
proximity to them. Nor can parties expand the district court's
equitable remedial power by consent. The difficult task is to
set forth a principled basis for limiting the range of disputes
into which the federal courts can be dragged by means of an
overly broad consent decree, while at the same time protect-
ing the power of the courts to implement broad equitable
remedies where it is useful in protecting federal rights.

The problem in this case is that the matters to be ad-
judicated are essentially of state interest. Regardless of the

5. Examples of far-reaching remedial orders are most often found in
antitrust, labor law, securities law, prisoners’ rights, mental health, and
school desegregation cases. For a list of the extraordinary forms of relief
ordered by federal courts to remedy violations of the securities laws, see
Farrand, Ancillary Remedies in SEC Litigation, 89 Harv. L. Rev. 1779
(1976). In this article, Mr. Farrand argues that federal remedial power
should be limited by three requirements: the relief must be consistent with
the goals of the statute that has been violated; the relief must be necessary
to accomplish a legitimate goal of the statute; and, on balance, the benefits
of granting the proposed relief must outweigh the negative consequences.

Id.

A-18

outcome of the present and potential disputes in this case, the
residential character of the 3400 block will not be affected.
The resolution of these disputes, therefore, in no way affects
any federal interests. The only reason that the disputes can be
brought in federal court is that the agreement settling the
original federal suit provided for continwing federal super-
vision. I do not believe that precious federal resources should
be wasted adjudicating such matters.

My purpose in writing this concurrence is to propose an
analytical framework for distinguishing such unworthy cases
from the cases where broadly exercised federal equitable
remedial power is desirable. My starting point is a desire to
maximize the effectiveness of the federal courts in adjudi-
cating claims and granting full relief in cases where Congress
and the Constitution have granted us jurisdiction. Federal
courts will often need to superintend broad equitable rem-
edies in order to ensure that the underlying federal rights are
fully vindicated. Moreover, district judges should generally
possess broad discretion to determine what relief is appro-
priate in any particular case. It is generally impossible for
Congress to predict beforehand what relief will be required in
specific cases, and it is not always easier for appellate courts
to anticipate future cases in deciding those before them.
Because of these concerns, I want to be certain that any test
limiting federal equitable remedial power does not intrude
upon the ability of district courts to grant effective remedies.

On the other hand, there comes a point where super-
intendency over proposed relief is of only marginal value in
preserving the underlying federal rights for which Congress
provided a federal forum and where the time required by this
superintendency reduces the ability of the federal courts to
grant prompt and full relief in other cases. The district judge
is generally in the best position to determine when this point
is reached, and should thus be accorded substantial deference
by appellate tribunals. Appellate tribunals should supervise
the exercise of that discretion, however, because district
court decisions in this area affect more than the judge and
litigants in the individual case; decisions have institutional

iia |

A-19

consequences as well. I would suggest, therefore, the follow-
ing modest standard for determining the propriety of federal-
court remedial orders:

A federal court may in the sound exercise of its equitable
discretion retain continuing authority over implemen-
tation of a relief decree only when the court finds that:

(a) this continuing federal supervision will probably
further in some significant way a federal interest iden-
tified by statute or the constitution; or

(b) continuing supervision is not likely to divert
substantial resources away from claims arising under
clear constitutional and statutory grants of jurisdiction; or

(c) the unavailability of such relief is likely to deter
potential litigants from bringing suits over which there is
properly jurisdiction in federal court.

It is important to emphasize that this test does not in any
way limit the ability of parties to include anything they desire
in settlement agreements, and to enforce those agreements as
contracts in state court. The test limits only the power of
federal courts to approve a settlement agreement that calls for
continuing federal supervision over its enforcement and im-
plementation. Moreover, the proposed test will not encum-
ber the power of the federal courts to grant complex remedies
requiring continuing judicial supervision in areas such as
desegregation and prison reform. In those areas, complex
relief is clearly necessary to vindicate federal rights, and
disputes concerning the implementation of the relief granted
will usually grow out of the facts underlying the original
lawsuit, and thus not require the court to continually delve

into independent disputes unrelated to any substantial federal
interest.

Ill.

Because the question of limits on federal remedial power
was never raised by the parties or the district court, I do not

A-20

decide whether, on the facts of this case, the district court
abused its discretion when it approved the consent decree.
However, neither can I leave the test I have proposed in a
vacuum, devoid of any application to a specific fact situation.
Thus, in order to flesh out my proposed test, I will briefly
illustrate how it might apply here.

— While I agree with Chief Judge Seitz that community
participation in redevelopment and rehabilitation is generally
consistent with the purposes of the NHA, much of the liti-
gation that has arisen or is likely to arise under the consent
decrees here resembles an only-somewhat more civilized
version of Filene’s basement: a scramble over who is entitled
t» buy houses at bargain prices from the RDA. Obviously,
within broad limits, the outcome of this donnybrook does not
directly involve any question of federal law.® In addition,
continuing federal supervision over implementation and en-
frcement of the 1982 consent decree, which is not limited to
the sale of the houses to Sansom Committee designees (as the
1980 decree was), but instead contains a detailed rehabili-
tation plan for the houses and restrictions and covenants on
the title the designees are to receive, see supra note 4, will
likely involve (and indeed already has involved) a substantial
amount of judicial time and energy.

Given these two factors, and given the fact that I doubt
it can be said that the absence of federal supervision of the
settlement agreement would have dissuaded the plaintiffs

6. As I have noted above, the original federal interests — local input
into redevelopment projects, and consideration of environmental conse-
quences of redevelopment projects — were essentially settled in 1976
when the parties informed the district court that they had reached an
agreement in principle not to tear down the houses.

7. In addition to the disputes between the University and the Sansom
Committee which have engendered three separate appeals as of this date,
there are the challenges by Michael Karp which have resulted in five
appeals so far, the challenges by other members of the Sansom Committee
who are unhappy with the negotiated settlements, and the lawsuit by H.
Clayton Cook against his brother Elliot Cook and the Dechert law firm.

TE eT NT TT Te F

A-2]1

from bringing suit in 1973, if my view of the prudential limits
on federal remedial equitable power was the law of this circuit
and if the district court had this test before it in 1982 when
confronted with the second consent decree, it might have
refused to approve that agreement, at least to the extent that
it called for continuing federal supervision.*®

This is my perspective in hindsight, however. We are not
confronted with an appeal from an order of the district court
in 1984 refusing to relinquish its ongoing supervision over this
lawsuit, and what I address is only the hypothetical question
whether the district court abused its discretion in entering the
decree. In fairness to the district court, which did not possess
a crystal ball, the dispute over the meaning of the first decree
was the first disagreement between the University and the
Sansom Committee (as distinct from disagreements among
members of the Sansom Committee) since those parties had
agreed in principle to a settlement of their dispute in 1976.
The relevant focus for deciding whether the district court
abused its discretion in granting particular relief is on the
situation as it appeared to the district court at the time the
relief was granted. Thus, because the district court might
reasonably have concluded at that time that approval of the
1982 consent decree would bring the case to an end,’ the

8. In 1980 by contrast, there was little reason for the district court to
suspect that much litigation would result from the consent decree. After
all, nothing at all had happened for more than four years, and the three
main protagonists in the original litigation — the Sansom Committee, the
RDA, and the University — were now representing to the court that they
were in complete agreement on what to do with the houses. Also, the 1980
consent decree did not include the side agreement between the University
and the Sansom Committee, so that if the houses had been transferred to
Sansom Committee designees the terms of the 1980 consent decree would
have been satisfied and the district court would have been out of the case
completely.

9. At oral argument counsel for the University stated that: “the
University believed the first time and it also believed the second time that
the consent decree ended things, not that it began things.” Oral Argument
Transcript, at 5.

A-22

propriety of the court's approval of that decree would appear
to be problematic. I conclude my illustration by declaring the
question to be a close one; I do not reach a conclusion because
the points on which I have written were not raised by the
parties or the district court.

GARTH, J., dissenting:

Chief Judge Seitz’s attempt, laudable in itself, to enable
the parties involved in a complex controversy to forge a lasting
and equitable peace, stands on untenable footing. The limited
jurisdiction that federal courts possess does not encompass
the enforcement of consent judgments against or in favor of
parties whose rights the court had no power to adjudicate in
an involuntary proceeding. Because a majority of this court
holds otherwise, I respectfully dissent.

The appeal taken by the University of Pennsylvania in
this case asserts that the district court had no subject matter
jurisdictign to adjudicate any dispute between the University
and the Committee “or to interpret, enforce, or modify
agreements between them.” (Br. 19). Chief Judge Seitz reads
the University’s position as disclaiming federal question ju-
risdiction as of 1976: “The University contends that the dis-
trict court lacked federal question jurisdiction in 1976 because
HUD filed an environmental impact statement dated in that
year. (Maj. op. at 6). He also understands the University’s
argument to be that “the district court had no subject matter
jurisdiction to enter the 1980 Consent Decree because its
terms incorporated essentially state law relief.” (Id.) While it
is true that both arguments can be characterized as Chief
Judge Seitz has reported them, they are in substance no more
than subordinate elements of the University’s overall con-
tention that no federal question giving the district court
jurisdiction has ever been raised as to the University, and that
the consent decrees cannot be enforced with respect to the
University because they are outside the court's jurisdictional

A-23

power. The thrust of the University’s position is captured by
the following three statements which appear in its brief:

Neither the Sansom Committee nor any of the parties has
ever raised a federal question vis-a-vis the University,
nor has a federal question of any kind been raised since
the University became a party to the settlement of this
litigation.

“* *

The only conceivable explanation for federal court ad-
judication of disputes of this nature would be premised
on an extension of the concepts of pendent or ancillary
jurisdiction, i.e., that the University could properly be
joined as a pendent party in January of 1981 in order to
resolve the pre-existing litigation. No such extension of
these doctrines can be justified.

(Br. of University at 20, 21 (footnote omitted) ). The Univer-
sity concludes its jurisdictional argument stating:

The present disputes, all of which involve interpretations
of agreements between the Sansom Committee and the
University (or efforts to modify the terms of such agree-
ments), cannot be made a subject of that Court's enforce-
ment power if they are outside its jurisdictional power.

(Br. of University at 26 (footnote omitted) ). I agree.

A.

A consent judgment is a judicial act, in which the court
adjudicates the plaintiff 's right of recovery and the extent of
it, both of which are essential elements of the judgment, Pope
v. United States, 323 U.S. 1, 12 (1944); see United States v.
Swift & Co., 286 U.S. 106, 115 (1932). The court does not
determine the merits of the dispute, but its entry of a decree
constitutes an adjudication between the parties. Swift & Co.
v. United States, 276 U.S. 311, 327 (1928).

A court's authority to enter a consent decree where the
plaintiff seeks to enforce a federal statute comes only from the

eT

A-24

statute that the decree is intended to enforce. System Fed-
eration No. 91 v. Wright, 364 U.S. 642, 651 (1961). Within
the confines of this authority a court has broad power to adopt
as its own judgment or decree a contractual agreement into
which the parties have entered and which is tailored to the
necessities of a particular case. Handler v. SEC, 610 F.2d
656, 659 (9th Cir. 1959). The guiding principle in adopting a
decree is that it further the purpose of the statute to be
enforced. System Federation, supra, 364 U.S. at 651; Citizens
for a Better Environment v. Gorsuch, 718 F.2d 1117, 1125
(D.C. Cir. 1983); United States v. Motor Vehicle Mfrs. Ass'n.,
643 F.2d 644, 650 (9th Cir. 1981).

Indeed, the consent decree may even prescribe relief
beyond that authorized by the statute. Swift & Co. v. United
States, 276 U.S. 311, 328-30 (1928). But there is a crucial
distinction between an attack on the scope of relief contained
in the decree and a contention that the court was without
jurisdiction to adopt the decree in the first instance: between
an “error of decision,” which does not render a consent
judgment void, and the “want of power to decide,” which
renders any judgment entered void and open to collateral
attack. Id. at 330. The court’s power to grant relief broader
than that authorized by the statute only exists if it has ac-
quired jurisdiction of the subject matter and the parties. Id.
at 326. Persons cannot by consent give the court jurisdiction
over the subject matter, Neirbo v. Bethlehem Corp., 308 U.S.
165, 167 (1939), Richerson v. Jones, 551 F.2d 918, 923 n.7 (3d
Cir. 1977); see Insurance Corp. of Ireland v. Compagnie des
Bauxites de Guinee, 456 U.S. 694, 702 (1982), although they
may by consenting to judgment bind their persons to its
jurisdiction, “if when the court acts jurisdiction has been
obtained.” Pacific R.R.v. Ketchum, 101 U.S. 289, 298 (1879).
Moreover, this admonition exists side-by-side with the rule
that “[pjarties to a suit have the right to agree to anything they
please in reference to the subject matter of their litigation,
and the court, when applied to, will ordinarily give effect to
their agreement, if it comes withir the general scope of the
case made by the pleadings.” Id. at 297.

Dilla

A-25

The majority's disposition of this case ignores the fun-
damental distinction made in the seminal consent decree
cases. A court’s power to enter a consent decree flows from
the same font of jurisdiction as does its power to enter an
involuntary decree (that is, a decree which is not the product
of the parties’ consent). That power exists only if the court has
the initial authority to adjudicate the rights of those parties
whom it binds to its judgment. As earlier noted, that power
cannot be conferred by consent; it is given by the Constitution
and implementing statutes as enacted by Congress. Nor does
it avail a party to argue that another's “consent” to the subject
matter jurisdiction of a court can then estop the “consenting
party” from challenging the federal court's jurisdiction. Rubin
v. Buckman, No. 83-1285, slip op. at 4 (3d Cir. Feb. 7, 1984).
Thus, unless a court has subject matter jurisdiction over the
entire dispute between the parties who have consented to
enter into a “consent agreement,” it cannot adopt that agree-
ment as a “judicial act” and thereby dignify it by the judge's
signature as a consent judginent.'

Accordingly, the cases holding that a consent decree can
afford further relief affecting a wider scope of activities than
could relief authorized by the statute sued upon, e.g., Swift
& Co. v. United States, 276 U.S. 311, 328-30 (1928); Citizens
for a Better Environment v. Gorsuch, 718 F.2d 1117, 1174-
77 (D.C. Cir. 1983); Larson v. Sielaff, 702 F.2d 116, 117-19
(7th Cir.), cert. denied, 104 S.Ct. 372 (1983), are of no
relevance in our consideration of the power of the district
court to adjudicate the rights of the University of Pennsyl-
vania in the instant controversy. Rather, the question on
which we must focus at the outset is whether the district court

1. To the extent the issue raised by the University is one of whether
there existed a “case or controversy” within the meaning of Article III as
to the University, that issue is foreclosed from our consideration on
collateral attack of the consent judgment; it is cognizable only on direct
appeal of the judgment. Swift & Co. v. United States, 276 U.S. 311, 376
(1977); Coalition of Black Leadership v. Cianci, 570 F.2d 12, 15 (1st Cir.
1978).

i i il |

A-26

in the first instance had the power to enter judgment against
a nonparty to the litigation, who nevertheless was concededly
a party to the consent agreement which the plaintiff Com-
mittee now seeks to enforce.”

In general a court has no jurisdiction to determine the
rights of nonparties to the litigation. SEC v. Investors Se-
curity Corp., 560 F.2d 561, 568 (3d Cir. 1977).*

Where a court would be without power to enter judg-
ment against a person because that person could not be made
a party to the litigation, the court cannot bind that person to
a consent decree. Washington v. Penwell, 700 F.2d 570, 574

2. The fact that the district court — a court of limited jurisdiction —
may have no authority to enforce the agreements into which the Com-
mittee and the University of Pennsylvania entered (one of which ran to
hundreds of pages, including exhibits such as plot plans, blueprints, design
specifications, etc.), does not mean that either of them is released from any
obligation imposed by that agreement. To the contrary, here we address
only the forum in which such a controversy may be entertained. If the
federal court has no subject matter jurisdiction over this dispute, as I
contend that it does not, the parties may nevertheless bring their action in
a state court — as they would any other action on contract which seeks to
enforce contractual undertakings or obligations. The courts of the Com-
monwealth of Pennsylvania have plenary jurisdiction over such actions and
stand ready to adjudicate controversies such as this one, which is no more
than a routine action on a contract, or as it was characterized by the
University during oral argument before this court, a “code of federal
regulations for that one block [the 3400 block of Sansom Street}.” (Tran-
script of oral argument at 4).

3. To bind to its judgment strangers to the litigation a court must use
its extraordinary powers. See General Building Contractors Ass'n. t.
Pennsylvania, 458 U.S. 375, 401 (1982). Such powers are granted by the
All Writs Act, 28 U.S.C. $1651 (1982). United States v. New York Tele-
phone Co., 434 U.S. 159 (1977). But the power cannot be exercised unless
the court possesses independently granted subject matter jurisdiction over
the dispute, since the All Writs Act does not itself provide such a grant. Id.
at 188 n.19 (Stevens, J., dissenting in part); Coodbar v. banner, 599 F.2d
431, 434 (C.C.P.A.), cert. denied, 444 U.S. 927 (1979): see United States
v. Christian, 660 F.2d 892, 984 (3d Cir. 1981).

A-27

(9th Cir. 1983).* See also Metropolitan Housing Devel. Corp.
v. Village of Arlington Heights, 469 F. Supp. 836, 854-55
(N.D. Ill 1979) (consent does not empower court to order
relief which it would not otherwise have the power to order
and which the parties could not themselves otherwise con-
tract to perform), affd, 616 F.2d 1006 (7th Cir. 1980).

In this case, the University was never a party to the
litigation. Twice the University moved to intervene; twice it
was rebuffed.” Indeed, the motion to dismiss for failure to join
an indispensable party (the University), which was made by
the defendants in the original action, was denied. Sansom
Committee v. Lynn, 366 F. Supp. 1271, 1280-81 (E.D. Pa.
1973). The “settlement agreement and consent decree” made
on December 18, 1980, by and among the Committee, the
RDA, and the University, explicitly stated that the University
“is not a party to this litigation but is a party to the settlement
of this litigation.” (App. A-55).

Moreover, the University could not have been made a
party to the litigation, for the district court would have had no
basis, short of formal intervention, for exercising subject
matter jurisdiction over the Committee's claim against the
University. As is contended by the University and not dis-
puted by the Committee, there would be neither diversity
nor federal question jurisdiction over such a claim. See

4. A court may bind to an involuntary judgment those who are the
parties’ privies, as defined by Fed.R.Civ.P. 65(d), see 7-part 2 Moore's
Federal Practice $65.15 (2d ed. 1984), and so may also bind such privies to
a consent decree. Cornelius v. Hogan, 663 F.2d 330, 334-35 (Ist Cir.
1981). No claim was ever advanced before this court that the University
was a privy of any party to the litigation.

5. The University moved to intervene of right, for the limited purpose
of requesting that the district court order the plaintiffs to post a security
fund. This motion was denied. Sansom Committee v. Lynn, No. 73-1444
(E.D. Pa. March 1, 1974) (Docket Entry No. 48). The University’s second
motion was for intervention as a party defendant to appear at a hearing on
a preliminary injunction to enjoin the demolition of certain properties. The
district court denied this motion, without prejudice to its later renewal.
Sansom Committee v. Lynn, No. 73-1444 (E.D. Pa. July 30, 1974) (Docket
Entry No. 62).

A-28

University's Br. at 17. As both agree, there was federal
question jurisdiction over the Committee’s main claims
against HUD, the RDA, and their respective officers, based
on the National Housing Act and NEPA. Sansom Committee
v. Lynn, 366 F.Supp. 1271, 1278 (E.D. Pa. 1973). It is on that
basis, and that basis alone, that the Committee asserts that
the district court had ancillary or pendent-party jurisdiction
over any dispute between the Committee and the University,
by virtue of the “core” federal claim.

B.

Whether a court has jurisdiction over a non-federal claim
between non-diverse parties is determined by a two-stage
analysis, as set forth in Owen Equipment Co. v. Kroger, 437
U.S. 365 (1978), and Aldinger v. Howard, 427 U.S. 1 (1976).
First, there must be an inquiry into whether the Constitution
gives the court power to adjudicate the dispute, for which the
test is whether the claims present a “common nucleus of
operative fact . . . such that [a plaintiff] would ordinarily be
expected to try them all in one judicial proceeding.” United
Mine Workers v. Gibbs, 383 U.S. 715, 725 (1966). Second,

there must be an examination of the posture in which the
nonfederal claim is asserted and of the specific statute
that confers jurisdiction over the federal claim, in order
to determine whether “Congress in [that statute] has
. expressly or by implication negated” the exercise of
jurisdiction over the particular nonfederal claim.

Owen Equipment, supra, 437 U.S. at 373 (quoting Aldinger,
supra, 427 U.S. at 18). In making this second inquiry, “the
context in which the nonfederal claim is asserted is crucial.”
Id. at 376. The Owen Court noted the typical instances in
which ancillary jurisdiction has been held to exist — claims by
third parties who were brought into court by the original
parties, or claims of persons interested in a fund or property
in the possession of the court. 437 U.S. at 375-76 & n.18.
Such claims included intervention as of right. Id. at 375 n. 18.

Pe pr nN ee ee

A-29

Before Owen and Aldinger, it had been held that a
federal court has jurisdiction — ancillary jurisdiction — over
actions to aid or effectuate its prior decrees, regardless of
whether the court would have jurisdiction over the claim
were it an original action. Dugas v. American Surety Co., 300
U.S. 414, 428 (1937); Local Loan Co. v. Hunt, 292 U.S. 234,
239 (1934); Root v. Woolworth, 150 U.S. 401, 410-12 (1893).
This rule was “subject to the qualification that the relief be not
of a different kind or on a different principle.” Dugas, supra,
300 U.S. at 428.

This line of cases, however — cases which are limited to
instances in which a court asserts jurisdiction to aid or effec-
tuate its earlier decree — cannot support the exercise of
jurisdiction to adjudicate the rights of the Committee vis-a-vis
the University, where, as here, there is no prior judgment
that the 1980 “consent decree” is necessary to effectuate.
Instead, the 1980 decree (and by extension, the 1982 decree)
is the very judgment sought to be effectuated by the adju-
dication of the University’s rights via the same judginent.
Such bootstrapping of jurisdiction extends the Dugas-Local
Loan-Root line beyond its logical parameters. Thus, even if a
district court would have ancillary jurisdiction to adjudicate
the rights of third-party nonlitigants who are interfering with
a pre-existing consent decree, see New York State Ass'n for
Retarded Children, Inc. v. Carey (NYSARC II), 466 F. Supp.
479, 482 (E.D.N.Y. 1978), aff'd, 612 F.2d 644 (2d Cir. 1979);
New York State Ass'n for Retarded Children, Inc. v. Carey
(NYSARC 1), 438 F. Supp. 419, 446-47 (E.D.N.Y. 1977)
(alternative holding); cf. Local Loan, supra (ancillary juris-
diction over nonparty interfering with involuntary decree);
but see Sea Ranch Ass'n v. California Coastal Comm'n, 552
F. Supp. 241, 247-48 n.27 (N.D. Cal. 1982) (questioning
NYSARC I & II in the wake of Owen Equipment); C. Wright
& A. Miller, Federal Practice & Procedure $3523 (1980
Supp.) (same), it does not follow that a federal district court
would have subject matter jurisdiction to create a consent
decree in a controversy such as the one which is presented
here, where no pre-existing judgment was ever entered.

i itl aia steele

A-30

Furthermore, in light of Owen and Aldinger such an
extension would be improper. It is difficult to identify what a
court is to examine in applying the Gibbs “common nucleus”
test here, since the Committee never asserted a claim against
the University nor identified one in either agreement, nor did
the University assert any claims. All that the University
declared in the 1980 agreement was that it “alleges it has
rights under a redevelopment contract affecting the herein
named properties.” (App. A-55). The Committee’s federal
claims alleged that the redevelopment plans violated federal
law. It is true that the redevelopment plans at issue involved
the University to the extent that the plans contemplated the
University s acquisition of redevelopment rights. Thus there
could appear to be a “common nucleus of operative facts”
underlying these two sets of interests — one set asserted as a
reason for joining the settlement agreement and one set
asserted in an adversarial claim. The University’s interest in
adjudicating the federal claims was a practical one; invalida-
tion of the plan would implicate its rights under the contract.
Its rights were thus dependent, at least in part, upon the
disposition of the federal claims.

It remains whether this interest is sufficient under the
Gibbs test to constitute a claim that ordinarily would be
expected to be tried in the same proceeding. This question
need not be answered if the statutory phase of the analysis
reveals that Congress did not intend that federal jurisdiction
include it.

The statute that confers jurisdiction on district courts to
hear federal claims is 28 U.S.C. $1331. That section allows
courts to adjudicate “all civil actions arising under the Con-
stitution, laws, or treaties of the United States.” In construing
the diversity-jurisdiction statute (28 U.S.C. §1332), the Court
in Owen Equipment, supra, stated that claims by third parties
“typically” support ancillary jurisdiction when such a person’s
“rights might be irretrievably lost unless he could assert them
in an ongoing action in a federal court.” 437 U.S. at 376. The
claims include compulsory counterclaims, impleader, cross-
claims, and intervention as of right. Id. at 375 n.18. However,

v/

A-31

the same considerations that informed the Supreme Court's
construction of the diversity jurisdiction statute also counsel
against expansive pendent-party federal question jurisdiction.
For, as the Court noted in Aldinger v. Howard, supra, 427
U.S. at 17, when considering a claim of “pendent party”
jurisdiction,® of which the claim here is a species, “[T]he
reach of the statute conferring jurisdiction should be con-
strued in light of the scope of the cause of action as to which
federal judicial power has been extended by Congress.”
The federal cause of action here as pleaded in the
plaintiff’s complaint was a challenge to the performance by
public agencies of their duties under the National Housing
Act and the National Environmental Policy Act. The Uni-

6. Both ancillary and pendent jurisdiction may be defined as the
extension of federal jurisdiction to the resolution, by a court that has
subject matter jurisdiction over a federal claim, of a state-law claim arising
between citizens of different states.

The term “ancillary” or “ancillary jurisdiction” describes those
claims that are so closely related to the main claim that the court will
adjudicate them regardless of the absence of a separate basis of subject
matter jurisdiction. See Wright and Miller, Federal Practice and
Procedure: Jurisdiction §3523 (1975). “Pendent jurisdiction” permits a
plaintiff, in appropriate circumstances, to join with his federal claim a
related state claim over which the court had no independent basis of
subject matter jurisdiction. See Wright and Miller, supra at §3567
(1975). The doctrines of ancillary and pendent jurisdiction are dis-
tinguishable in that pendent claims are asserted by plaintiffs in their
complaints and ancillary claims usually are asserted after the complaint
is filed by one other than the plaintiff. See Aldinger v. Howard and
Pendent Jurisdiction, 77 Colum. L.Rev. 127,128 n.5 (1977).

Corporacion Venezolana de Fomento v. Vintero Sales, 477 F. Supp. 615,
622 n.13 (S.D.N.Y. 1979).

“Pendent-party” jurisdiction is the name given to an extension of
jurisdiction to the joinder of additional parties — as distinct from additional
claims — with respect to whom there is no independent basis of federal
jurisdiction. Aldinger v. Howard, 427 U.S. 1, 6 (1976); see generally
Currie, Pendent Parties, 45 U.Chi.L.Rev. 753 (1978).

As I maintain infra, I am in agreement with the majority that although
the Committee argues and analyzes the jurisdictional question in terms of
pendent and ancillary jurisdiction, those doctrines are inapposite. See maj.
op. at 7, n.4.

A-32

versity was involved, if at all, only as the named redeveloper
under its contract with the RDA (it was the only redeveloper
after 1973). Thus the University’s rights and duties were
purely contractual, as stipulated in the settlement agreement,
see supra. The Committee has not pointed to any provision of
the National Housing Act or National Environmental Policy
Act that indicates that Congress intended that the adjudica-
tion of the duties of public agencies under these statutes be
affected by the purely contractual rights of third-party re-
developers. ’

The implication of these considerations becomes even
more clear when we examine whether Congress ever in-
tended that jurisdiction extend to claims involving persons
who were never made party to the litigation. As has been
stressed several times so far, the University was never a party
to the litigation; its motions to intervene (both as-of-right and
by permission) as a defendant were twice denied; it was held
not indispensable; and the very consent agreement that pur-
ported to “confer” jurisdiction recognized by its own terms
that the University “is not a party to this litigation.”

7. Giving the most favorable reading to the “surviving” claims — that
is, the claims that were still viable after the district court’s 1973 order
dismissing the plaintiff's challenge to the federal agencies’ actions — the
majority opinion points to only matters involving the federa: sgencies as
support for the majority's contention that federal question jurisdiction
continued. The claims to which Chief Judge Seitz’s majority opinion points
are set out at typescript page 8 [A-7] and involve no more than charged
violations by RDA and HUD with respect to failing to hold certain
hearings, failing to seek approval of government bodies, failing to assure
confurmity with community and regional plans, and failing to provide
adequate relocation. Judge Becker, in his concurring opinion, aptiy ob-
serves that essentially the remaining claims involve only “A scramble over
who is entitled to buy houses at bargain-basement prices from the RDA

. The outcome of this donnybrook does not directly involve any
question of federal law.” (Conc. op. p. 14) [A-20]

It is significant that none of these claims involves the University of
Pennsylvania, nor could any of them support adjudication of a controversy
between the Committee on the one hand and the University on the other.

A-33

Moreover, the statement of the University’s interest in
that 1980 agreement does not support jurisdiction premised
on a consented-to intervention. It may be that parties to a
consent judgment could stipulate facts showing that a party
was an intervenor of right under Fed. R. Civ. P. 24(a) —
either that a federal statute confers an unconditional right to
intervene, see E.E.O.C. v. AT&T, 506 F.2d 735, 739-40 (3d
Cir. 1974) (requirement for intervention of right under Rule
24(a)(1)), or that the party claims an interest relating to the
property or transaction that is the subject of the action, that
the disposition may as a practical matter impair his ability to
protect that interest, and that his interests are not adequately
represented by others, see Pennsylvania v. Rizzo, 530 F.2d
501, 504 (3d Cir.) (requirements for establishing right to
intervene under 24(a)(2)), cert. denied, 426 U.S. 921 (1976).
Intervention as of right needs no independent federal juris-
dictional grounds. See Owen, 437 U.S. at 375 n.18; C. Wright
& A. Miller, Federal Practice & Procedure $1917 (1972).
However, the stipulation of facts contained in the 1980 agree-
ment is plainly insufficient to support a holding of a right to
intervene, much less consent to intervention by the other
parties.

II.

Thus, it is clear that no subject matter jurisdiction and no
ancillary or pendent-party jurisdiction exists with respect to
any claim made by the Committee which implicates the
University of Pennsylvania in the present controversy. Ac-
cordingly, the district court was without power to adjudicate
any rights affecting the University of Pennsylvania and could
not, therefore, exercise its power by adding its signature or
imprimatur to a purely contractual agreement between these
parties. Instead, as noted, the parties’ rights under the con-
sent agreements of 1980 and 1982 are contractual only, and
thus may only be enforced as such. See Note, The Consent
Judgment as an Instrument of Compromise and Settlement,
72 Harv. L. Rev. 1314, 1322 (1959), and note 3 supra.

A-34

Because the majority of the court has given effect to a
judgment which the district court had no power to enter, I
respectfully dissent.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

A-35

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 83-1120

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C.R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., t/a LA TERRASSE, NI-
CHOLAS MUHLENBERG, CAMPUS PHARMACY, INC.,
and JOHN W. McCOUBREY,

Appellees

Vv.

JAMES LYNN, individually and as Secretary, Department of
Housing and Urban Development, JOSEPH LaSALA, Acting
Area Director, Department of Housing and Urban Devel-
opment and THE REDEVELOPMENT AUTHORITY OF
THE CITY OF PHILADELPHIA

THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA,

Appellant.

On Appeal from the United States
District Court for the Eastern
District of Pennsylvania

(D.C. Civ. No. 73-1444)

Argued December 13, 1983

Before: SEITZ, Chief Judge,
GARTH and BECKER, Circuit Judges

(Opinion Filed June 1, 1984)

A-36

Stewart Dalzell, Esq. (Argued)
Alfred W. Putnam, Jr., Esq.
Sharon L. Klingelsmith, Esq.
Drinker Biddle & Reath
1100 Philadelphia National
Bank Building
Broad and Chestnut Streets
Philadelphia, PA 19107
Attorneys for Appellant.

Mari M. Gursky, Esq. (Argued)

John M. Coleman, Esq.
Dechert Price & Rhoads
3400 Centre Square West
1500 Market Street
Philadelphia, PA 19102

Robert J. Sugarman, Esq.
Maiy Bb. Coe, Esq
Sugarman & Denworth
Suite 510
North American Building
121 South Broad Street
Philadelphia, PA 19107
Attorneys for Appellee,
The Sansom Committee

Carl S. Primavera, Esq.
Robert J. Guerra, Esq.
Legal Division
Redevelopment Authority
of the City of Philadelphia
Suite 826
1234 Market Street
Philadelphia, PA 19107
Attorneys for the
Redevelopment Authority.

A-37
OPINION OF THE COURT

PER CURIAM

This is an appeal from an order of the district court dated
February 10, 1983, extending from April 7, 1983 to June 7,
1983, the deadline date in the 1982 Consent Decree for taking
title to 3430, 3432, 3434 and 3436 Sansom Street. The back-
ground of this protracted litigation is found in Sansom Com-
mittee v. Lynn, No. 83-1121 (Sansom I), filed contempora-
neously herewith. We have appellate jurisdiction under 28
U.S.C. $1291 (1976).

The Committee has moved to dismiss the appeal of the
University as moot. It contends that the properties in ques-
tion were sold on or before April 7, 1983, the critical date
under the 1982 Consent Decree. If that is true, the extension
period granted by the order now appealed was not required
to support the sale to the designees.

In its reply brief the University says that “It is possible
that the Committee is correct in this regard.” Other matters
in the papers also suggest mootness. We, therefore, conclude
that the case is moot. The University’s real concern in this
appeal appears to be addressed to the Committee's request
that double costs and damages be assessed against it. Since we
are rejecting the Committee's request that concern is obvi-
ated.

This matter will be remanded to the district court with a
direction to vacate its order of February 10, 1983, on the
ground of mootness. See United States v. Munsingwear, 340
U.S. 36 (1950).

No damages or costs will be allowed. We deny the
Committee's request that this appeal be dismissed for an
alleged failure to follow the rules of appellate procedure.

A-38
To the Clerk of the Court:

Please file the foregcing per curiam opinion.

Judge

Sansom Committee v. Lynn, No. 83-1120

Garth, J., dissenting:

In Sansom Committee v. Lynn, No. 83-1121, I concluded
that subject matter jurisdiction was lacking with respect to the
actions brought against the University of Pennsylvania. As
that opinion points out, I would hold that the district court
could not have bound the University of Pennsylvania in any of
the proceedings brought against it by the Committee which
sought enforcement of the consent decree and other relief.
Because I am of the opinion there existed no subject matter
jurisdiction which would permit the federal district court to
act in any of the instant appeals involving the University of
Pennsylvania, | would reverse the district court's order of
February 10, 1983, which extended the deadline for taking
title, and direct the district court to dismiss the action for
want of subject matter jurisdiction.

Implicit in my decision is the fact that nothing precludes
this issue or any other issue from being prosecuted or litigated
in the appropriate state court. I therefore respectfully dissent
from the majority opinion which holds the controversy to be
moot.

A-39

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 83-1253

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C.R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., t/a LA TERRASSE, NI-
CHOLAS MUHLENBERG, CAMPUS PHARMACY, INC.,
and JOHN W. McCOUBREY,

Appellees

Vv.

JAMES LYNN, individually and as Secretary, Department of
Housing and Urban Development, JOSEPH LaSALA, Acting
Area Director, Department of Housing and Urban Devel-
opment and THE REDEVELOPMENT AUTHORITY OF
THE CITY OF PHILADELPHIA

THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA,

Appellant.

On Appeal from the United States
District Court for the
Eastern District of Pennsylvania

(D.C. Civ. No. 73-1444)

Argued December 13, 1983

Before: SEITZ, Chief Judge,
GARTH and BECKER, Circuit Judges

(Opinion Filed June 1, 1984)

A-40

Stewart Dalzell, Esq. (Argued)
Alfred W. Putnam, Jr., Esq.
Sharon L. Klingelsmith, Esq.
Drinker Biddle & Reath
1100 Philadelphia National
Bank Building
Broad and Chestnut Streets
Philadelphia, PA 19107
Attorneys for Appellant.

Mari M. Gursky, Esq. (Argued)

John M. Coleman, Esq.
Dechert Price & Rhoads
3400 Centre Square West
1500 Market Street
Philadelphia, PA 19102

Robert J. Sugarman, Esq.
Mary B. Coe, Esq.
Sugarman & Denworth
Suite 510
North American Building
121 South Broad Street
Philadelphia, PA 19107
Attorneys for Appellee,
The Sansom Committee

Carl S. Primavera, Esq.
Robert J. Guerra, Esq.
Legal Division
Redevelopment Authority
of the City of Philadelphia
Suite 826
1234 Market Street
Philadelphia, PA 19107
Attorneys for the
Redevelopment Authority.

A-41
OPINION OF THE COURT

SEITZ, Chief Judge.

The Trustees of the University of Pennsylvania (the “Uni-
versity’) appeal from an order of the district court dated April
5, 1983. Much of the history of this complex litigation is found
in our opinion in Sansom Committee v. Lynn, No. 83-1121
(Sansom I), filed contemporaneously. This appeal will be
designated as Sansom II.

This appeal arises out of an order following a motion by
The Sansom Committee (the “Committee”) to modify the
1982 Consent Decree signed by the Committee and the
University. The order extended the deadline provided in the
1982 Consent Decree for the purchase of properties by the
Committee's designees until thirty days after the termination
of any appeals relating to the properties. A preliminary issue
is the basis for our appellate jurisdiction. A major purpose of
the district court's order was to preserve the rights that the
consent decree gave the designees by preventing the Uni-
versity from taking any action premised on the original ex-
piration date in the 1982 Consent Decree. We believe that
this order is in the nature of a preliminary injunction, pro-
hibitory in nature, and intended to maintain the status quo
until the University’s rights regarding the properties in ques-
tion have been finally determined. As a preliminary injunc-
tion, the order of April 5, 1983 is appealable under 28 U.S.C.
1292(a)(1). Our review is for abuse of discretion.

The district court granted the motion extending the
deadline over the University’s objection. In its unreported
opinion, Sansom Committee v. Lynn, No. 73-1444 (E.D. Pa.
April 5, 1983), the court ruled that despite the University’s
pending appeal in Sansom I attacking the consent decrees,
the court had residual jurisdiction to maintain the status quo.
It went on to hold that if the deadline was not extended, the
rights of the designees might be irretrievably lost because of
the expiration date in the 1982 Consent Decree. It proceeded
to enter the order now appealed by the University.

A-42

The University first challenges the power of the district
court to enter the order while an appeal from the earlier order
denying the University’s motion to enforce the 1982 Consent
Decree was pending. It is certainly a generally established
legal principle that a district court lacks the power to act in a
matter while an appeal is pending in such matter. See SEC v.
Investors Security Corp., 560 F.2d 561, 568 (3d Cir. 1977).
However, it is well recognized that a district court possesses
residual jurisdiction to enter orders to assist in maintaining
the true status quo pending disposition of an appeal. See
Hoffman v. Beer Drivers & Salesmen’s Local Union No. 888,
536 F.2d 1268, 1276 (9th Cir. 1976). It was under this theory
that the district court granted the extension of time for the
designees to purchase. In our view it assuredly could do so,
assuming it had subject matter jurisdiction to enter the 1982
Consent Decree. Since we have held in our opinion in San-
som I that the district court had such subject matter juris-
diction, the University’s attack on the district court's power to
enter this order must fail.

Finally, the University argues that the district court
erred by not providing for an evidentiary hearing before
entering its order extending the time for the designees to
elect whether to purchase the properties involved. This brings
us to a rather technical aspect of this appeal. At the time the
district court entered its order, the University’s appeal in
Sansom I from the order denying its motion to enforce the
1982 consent decree was already pending. Because of this
pending appeal the district court did not have the power to
decide the merits of the motion to modify the consent decree.
As we have stated, however, the district court’s opinion
accompanying its April 5th order states that the order was
only meant to “preserve the status quo pending the appeal
from [its] previous orders in this case.” Joint Appendix at 177.
We have already held that the district court had residual
jurisdiction to enter such an order maintaining the status quo
but not addressing the motion to modify on its merits. Beer
Drivers, supra. The merits of the motion to modify the
consent decree are still an open issue in the district court, and

A-43

are not affected or rendered moot by the district court's
exercise of its power to maintain the status quo.

Did the district court abuse its discretion in not conduct-
ing an evidentiary hearing with respect to the Committee's
motion even though the University filed a memorandum in
opposition to the motion? We believe that the undisputed
facts already in the record were adequate to sustain the
district court’s decision to grant an injunction maintaining the
status quo. Given this, and our conclusion that the order
appealed from does not determine the merits of the
Committee's motion to modify the 1982 Consent Decree, we
hold that the district court was within its discretion in not
holding an evidentiary hearing and in ordering the extension
of time to preserve the status quo.

The April 6, 1983 order of the district court will be
affirmed. Costs will be taxed against appellant.

GARTH, J., dissenting:

In Sansom Committee v. Lynn, No. 83-1121, I concluded
that the district court lacked subject matter jurisdiction to
enforce the consent agreements as consent judgments with
respect to the University of Pennsylvania. Because I would
hold that the district court was without jurisdiction to enforce
the consent “judgment,” I would also hold that it was without
jurisdiction to entertain the Committee’s motion to modify
the 1982 consent decree. { would therefore vacate the district
court's order of April 5, 1983 that modified the decree by
extending the deadline and I would direct the district court to
dismiss this action for Jack of subject matter jurisdiction. I
therefore respectfully dissent from the majority opinion which
reaches the merits of the controversy and affirms the district
court's order.

A True Copy:
Te ste:

Clerk of the United States Court of Appeals
for the Third Circuit

A-44

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

NO. 83-1121

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C. R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., CAMPUS PHAR-
MACY, INC., JOHN McCOUBREY,

Appellees
v.
JAMES LYNN, individually and as Secretary, Department of
Housing and Urban Development, JOSEPH LaSALA, THE
REDEVELOPMENT AUTHORITY OF THE CITY OF
PHILADELPHIA

THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA

Appellants

_ On Appeal from the United States
District Court for the

Eastern District of Pennsylvania
(D.C. Civ. No. 73-1444)

Argued December 13, 1983

Before: SEITZ, Chief Judge,
GARTH and BECKER, Circuit Judges

(Opinion Filed June 1, 1984)

A-45

ORDER AMENDING OPINION

It is hereby ordered that Judge Becker's concurring
opinion in the panel opinion filed June 1, 1984, is hereby
amended as follows:

- 1. Insert a new footnote 5 after the first sentence in the
first paragraph of text, ending with the words “state court,” on
page 22 of the slip opinion, to read:

5. Indeed there is no reason why the parties could not
consent in the decree to take disputes, or at least
specified disputes, to state court.

2. Re-number the remaining footnotes 6, 7, 8, and 9 in
the concurring opinion as 7, 8, 9 and 10.

BY THE COURT:
Edward R. Becker

Circuit Judge
DATED: June 21, 1984

A True Copy:
Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

A-46

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 83-1121

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C.R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., t/a LA TERRASSE,
NICHOLAS MUHLENBERG, CAMPUS PHARMACY,
INC., and JOHN W. McCOUBREY,

Appellees
v.
JAMES LYNN, individually and as Secretary, Department of
Housing and Urban Development, JOSEPH LaSALA, Acting
Area Director, Department of Housing and Urban Devel-
opment and THE REDEVELOPMENT AUTHORITY OF
THE CITY OF PHILADELPHIA

THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA,

Appellant.

On Appeal from the United States
District Court for the Eastern
District of Pennsylvania

(D.C. Civ. No. 73-1444)

SUR PETITION FOR REHEARING

Present: Aldisert, Chief Judge, Seitz, Gibbons,
Hunter, Weis, Garth, Becker, Circuit Judges.

A-47

The petition for rehearing filed by appellant, The Trus-
tees of the University of Pennsylvania, in the above entitled
case having been submitted to the judges who participated in
the decision of this court and to all the other available circuit
judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing, and
a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc,
the petition for rehearing is denied.

Judge Garth would grant the petition for rehearing filed
by The Trustees of the University of Pennsylvania for the
reasons expressed in his panel dissent.

By the Court,

Circuit Judge

DATED: July 6, 1984

A-48

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 83-1120

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C.R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., t/a LA TERRASSE,
NICHOLAS MUHLENBERG, CAMPUS PHARMACY,
INC., and JOHN W. McCOUBREY,

Appellees
v.

JAMES LYNN, individually and as Secretary, Department of
Housing and Urban Development, JOSEPH LaSALA, Acting
Area Director, Department of Housing and Urban Devel-
opment and THE REDEVELOPMENT AUTHORITY OF
THE CITY OF PHILADELPHIA
THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA,

Appellant.

On Appeal from the United States
District Court for the Eastern
District of Pennsylvania

(D.C. Civ. No. 73-1444)

SUR PETITION FOR REHEARING

Present: Aldisert, Chief Judge, Seitz, Gibbons,
Hunter, Weis, Garth, Becker, Circuit Judges.

=

A-49

The petition for rehearing filed by appellant, The Trus-
tees of the University of Pennsylvania, in the above entitled
case having been submitted to the judges who participated in
the decision of this court and to all the other available circuit
judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing, and
a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc,
the petition for rehearing is denied.

Judge Garth would grant the petition for rehearing filed
by The Trustees of the University of Pennsylvania for the
reasons expressed in his panel dissent.

By the Court,

Circuit Judge

DATED: July 6, 1984

A-50

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 83-1253

THE SANSOM COMMITTEE, an unincorporated associa-
tion, appearing by ELLIOT C.R. COOK, trustee ad litem,
WILLIAM B. BOLTON, MICHAEL KARP, ROBINSON
FREDENTHAL, NICOLES, INC., t/a LA TERRASSE, NI-
CHOLAS MUHLENBERG, CAMPUS PHARMACY, INC.,
and JOHN W. McCOUBREY,

Appellees
-

JAMES LYNN, individually and as Secretary, Department of

Housing and Urban Development, JOSEPH LaSALA, Acting
Area Director, Department of Housing and Urban Devel-
opment and THE REDEVELOPMENT AUTHORITY OF
THE CITY OF PHILADELPHIA
THE TRUSTEES OF THE UNIVERSITY OF
PENNSYLVANIA,

Appellant.

On Appeal from the United States
District Court for the Eastern
District of Pennsylvania

(D.C. Civ. No. 73-1444)

SUR PETITION FOR REHEARING

Present: Aldisert, Chief Judge, Seitz, Gibbons,
Hunter, Weis, Garth, Becker, Circuit Judges.

A-51

The petition for rehearing filed by appellant, The Trus-
tees of the University of Pennsylvania, in the above entitled
case having been submitted to the judges who participated in
the decision of this court and to all the other available circuit
judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing, and
a majority of the circuit judges of the circuit in regular active
service not having voted for rehearing by the court in banc,
the petition for rehearing is denied.

Judge Garth would grant the petition for rehearing filed
by The Trustees of the University of Pennsylvania for the
reasons expressed in his panel dissent.

By the Court,

Circuit Judge
DATED: July 6, 1984

A-52

NATIONAL ENVIRONMENTAL POLICY ACT OF 1969
42 U.S.C. $4332(c) ;

$4332. Cooperation of agencies; reports; availability of in-
formation; recommendations; international and na-
tional coordination of efforts
The Congress authorizes and directs that, to the fullest
extent possible: (1) the policies, regulations, and public laws
of the United States shall be interpreted and administered in
accordance with the policies set forth in this chapter, and (2)
all agencies of the Federal Government shall—

(C) include in every recommendation or report on
proposals for legislation and other major Federal actions
significantly affecting the quality of the human environ-
ment, a detailed statement by the responsible official
on—

(i) the environmental impact of the proposed
action,

(ii) any adverse environmental effects which
cannot be avoided should the proposal be imple-
mented,

(iii) alternatives to the proposed action,

(iv) the relationship between local short-term
uses of man’s environment and the maintenance and
enhancement of long-term productivity, and

(v) any irreversible and irretrievable commit-
ments of resources which would be involved in the
proposed action should it be implemented.

Prior to making any detailed statement, the responsible
Federal official shall consult with and obtain the com-
ments of any Federal agency which has jurisdiction by
law or special expertise with respect to any environmen-
tal impact involved. Copies of such statement and the
comments and views of the appropriate Federal, State,
and local agencies, which are authorized to develop and

A-53

enforce environmental standards, shal] be made available
to the President, the Council on Environmental Quality
and to the public as provided by section 552 of Title 5,
and shall accompany the proposal through the existing
agency review processes;.. .

NATIONAL HOUSING ACT OF 1949
’ Selected Sections

42 U.S.C. §1451(c) and (e)
§1451. Local programs

Requirements; minimum standards housing code

(c) No contract shall be entered into for any loan or
capital grant under this subchapter, unless (1) there is pre-
sented to the Secretary by the locality a workable program for
community improvement (which shall include an official plan
of action, as it exists from time to time, for effectively dealing
with the problem of urban slums and blight within the com-
munity and for the establishment and preservation of a well-
planned community with well-organized residential neigh-
borhoods of decent homes and suitable living environment for
adequate family life) for utilizing appropriate private and
public resources to eliminate, and prevent the development
or spread of, slums and urban blight, to encourage needed
urban rehabilitation, to provide for the redevelopment of
blighted, deteriorated, or slum areas, or to undertake such of
the aforesaid activities or other feasible community activities
as may be suitably employed to achieve the objectives of such
a program, and (2) on the basis of his review of such program,
the Secretary determines that such program meets the re-
quirements of this subsection and certifies that the Federal
assistance may be made available in such community: Pro-
vided further, That commencing three years after September
2, 1964 or, in the case of an Indian tribe, band, or nation,
commencing January 1, 1970, no workable program shall be
certified or re-certified unless (A) the locality has had in effect,

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for at least six months prior to such certification or recerti-
fication, a minimum standards housing code, related but not
limited to health, sanitation, and occupancy requirements,
which is deemed adequate by the Secretary, and (B) the
Secretary is satisfied that the locality is carrying out an ef-
fective program of enforcement to achieve compliance with
such housing code. Notwithstanding any other provision of
law, in the case of a contract with an Indian tribe, band, or
nation (or a public housing or other public agency for such
tribe, band, or nation established under State or tribal law),
the workable program and minimum standards housing code,
referred to in the preceding sentence, may be presented to
the Secretary by such tribe, band, or nation, and it shall be
subject to the requirements of law with respect to such
program and code only to the extent that such tribe, band, or
nation has the legal jurisdiction and power to carry out such
requirements.

Workable program requirements

(e) No loan or grant contract may be entered into by the
Secretary for an urban renewal project unless he determines
that (1) the workable program for community improvement
presented by the locality pursuant to subsection (c) of this
section is of sufficient scope and content to furnish a basis for
evaluation of the need for the urban renewal project; and (2)
such project is in accord with the program.

42 U.S.C. §1455/a), (c) and (d)

§1455. Requirements for loan or capital grant contracts

Contracts for loans or capital grants shall be made only
with a duly authorized local public agency and shall require
that—

Approval of urban renewal plan

(a) The urban renewal plan for the urban renewal area be
approved by the governing body of the locality in which the

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project is situated, and that such approval include findings by
the governing body that (i) the financial aid to be provided in
the contract is necessary to enable the project to be under-
taken in accordance with the urban renewal plan; (ii) the
urban renewal plan will afford maximum opportunity, con-
sistent with the sound needs of the locality as a whole, for the
rehabilitation or redevelopment of the urban renewal area by
private enterprise; (iii) the urban renewal plan conforms to a
general plan for the development of the locality as a whole;
and (iv) the urban renewal plan gives due consideration to the
provision of adequate park and recreational areas and facili-
ties, as may be desirable for neighborhood improvement,
with special consideration for the health, safety, and welfare
of children residing in the general vicinity of the site covered
by the plan;

Temporary relocation of individuals and families displaced
from urban renewal area; relocation assistance program;
review of relocation plan

(c)(1) There shall be a feasible method for the temporary
relocation of individuals and families displaced from the urban
renewal area, and there are or are being provided, in the
urban renewal area or in other areas not generally less de-
sirable in regard to public utilities and public and commercial
facilities and at rents or prices within the financial means of
the individuals and families displaced from the urban renewal
area, decent, safe, and sanitary dwellings equal in number to
the number of and available to such displaced individuals and
families and reasonably accessible to their places of employ-
ment. The Secretary shall issue rules and regulations to aid in
implementing the requirements of this subsection and in
otherwise achieving the objectives of this subchapter. Such
rules and regulations shall require that there be established,
at the earliest practicable time, for each urban renewal project
involving the displacement of individuals, families, and busi-
ness concerns occupying property in the urban renewal area,
a relocation assistance program which shall include such

A-56

measures, facilities, and services as may be necessary or
appropriate in order (A) to determine the needs of such
individuals, families, and business concerns for relocation
assistance; (B) to provide information and assistance to aid in
relocation and otherwise minimize the hardships of displace-
ment, including information as to real estate agencies, bro-
kers, and boards in or near the urban renewal area which deal
in residential or business property that might be appropriate
for the relocating of displaced individuals, families, and busi-
ness concerns; and (C) to assure the necessary coordination of
relocation activities with other project activities and other
planned or proposed governmental actions in the community
which may affect the carrying out of the relocation program,
particularly planned or proposed low-rent housing projects to
be constructed in or near the urban renewal area.

(2) As a condition to further assistance after August 10,
1965 with respect to each urban renewal project involving the
displacement of individuals and families, the Secretary shall
require, within a reasonable time prior to actual displace-
ment, satisfactory assurance by the local public agency that
decent, safe, and sanitary dwellings as required by the first
sentence of this subsection are available for the relocation of
each such individual or family.

(3) Within one year after December 24, 1969, and every
two years thereafter, the Secretary shall review each locality’s
relocation plan under this subsection and its effectiveness in
carrying out such plan.

Acquisition of land; public hearings

(d) No land for any project to be assisted under this
subchapter shall be acquired by the local public agency except
after public hearing following notice of the date, time, place,
and purpose of such hearing.

42 U.S.C. §1460(c) paragraph following (10)

Notwithstanding any other provision of this subchapter,
(A) no contract shall be entered into for any loan or capital

A-57

grant under this subchapter for any project which provides for
demolition and removal of buildings and improvements un-
less the Secretary determines that the objectives of the urban
renewal plan could not be achieved through rehabilitation of
the project area, and (B) not less than 10 per centum of the
aggregate amount of (i) grants authorized to be contracted for
under this subchapter by the Housing and Urban Develop-
ment Act of 1965 and subsequent Acts, and (ii) loans author-
ized to be made under section 1452b of this title, shall be
available for projects assisted with such grants or loans which
involve primarily code enforcement and rehabilitation.

42 U.S.C. $1463(a)

$1463. Financial assistance for urban renewal projects in
areas involving colleges, universities, or hospitals

Authorization; local grant-in-aid

(a) In any case where an educational institution or a
hospital is located in or near an urban renewal project area
and the governing body of the locality determines that, in
addition to the elimination of slums and blight from such area,
the undertaking of an urban renewal project in such area will
further promote the public welfare and the proper develop-
ment of the community (1) by making land in such area
available for disposition, for uses in accordance with the urban
renewal plan, to such educational institution or hospital for
redevelopment in accordance with the use or uses specified in
the urban renewal plan, (2) by providing, through the re-
development of the area in accordance with the urban re-
newal plan, a cohesive neighborhood environment compat-
ible with the functions and needs of such educational insti-
tution or hospital, or (3) by any combination of the foregoing,
the Secretary is authorized to extend financial assistance
under this subchapter for an urban renewal project in such
area without regard to the requirements in section 1460 of this
title with respect to the predominantly residential character
or predominantly residential reuse of urban renewal areas.

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The aggregate expenditures made by any such institution or
hospital (directly or through a private redevelopment cor-
poration or municipal or other public corporation) for the
acquisition within, adjacent to, or in the immediate vicinity of
the project area, of land, buildings, and structures to be
redeveloped or rehabilitated by such institution for educa-
tional uses or by such h»spital for hospital uses in accordance
with the urban renewal plan (or with a development plan
proposed by such institution, hospital, or corporation, found
acceptable by the Secretary after considering the standards
specified in section 1460(b) of this title, and approved under
State or local law after public hearing) and for the demolition
of such buildings and structures if, pursuant to such urban
renewal or development plan, the land is to be cleared and
redeveloped, and for the relocation of occupants from build-
ings and structures to be demolished or rehabilitated, as
certified by such institution or hospital to the local public
agency and approved by the Secretary, shall be a local grant-
in-aid in connection with such urban renewal project: Pro-
vided, That no such expenditure shall be eligible as a local
grant-in-aid in any case where the property involved is ac-
quired by such educational institution or hospital from a local
public agency which, in connection with its acquisition or
disposition of such property, has received, or contracted to
receive, a capital grant pursuant to this subchapter: Provided
further, That no such expenditure shall be deemed ineligible
as a local grant-in-aid in connection with an urban renewal
project, to the extent that the expenditure is otherwise eli-
gible, if the facilities, land, buildings, or structures with
respect to which the expenditure is made are located within
one mile of the project.

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42 U.S.C. § 1469%(c)(1)

§1469. Declaration of purpose

Conditions for approval of applications
for financial assistance

(c) No application for financial assistance in planning and
carrying out a neighborhood development program shall be
approved by the Secretary unless—

(1) the governing body of the locality has, by reso-
lution or ordinance, approved the proposed program and
the annual increment covered by the application and

authorized the filing of the application for financial as-
sistance; .. .

42 U.S.C. §1469c
§1469c. General provisions

Workable program requirement; capital grants; relocation
requirements; transient housing; demolition and removal of
buildings and improvements

(a) For purposes of this part—

(1) the workable program requirement in section
1451(c) of this title shall apply to the authorization, rather
than the execution, of any contract for loans or capital
grants;

(2) capital grants on a three-fourths basis may only
be made under section 1453(a)(2)(B) of this title;

(3) the relocation requirements specified in section
1455(c) of this title shall apply to each annual increment
of an approved program;

(4) section 1456(g) of this title (relating to transient
housing) shall apply to activities undertaken under ap-
proved programs, except that the determination as to
need for transient housing shall be made with respect to

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any sale or lease of land for construction of such housing
prior to such sale or lease; and

) the requirement concerning demolition and re-
moval of buildings and improvements stated in clause (A)
of the sentence following paragraph (10) of section 1460(c)
of this title shall apply to each annual increment of an
approved program.

Obligation to provide financial assistance for subsequent
annual increments

(b) The approval by the Secretary of financial assistance
for one or more annual increments of a neighborhood devel-
opment program shall not be considered as obligating him to
provide financial assistance for any subsequent annual incre-
ments.

Extent of urban renewal plan; modification; establishment
of requirements prescribing scope and content of plan

(c) The urban renewal plan referred to in section 1460(b)
of this title may cover one or more of the urban renewal areas
covered by a neighborhood development program and such
plan may be modified from time to time to cover additional
urban renewal areas added to the program. The Secretary
may establish such requirements as he deems appropriate
prescribing the scope and content of such plan, taking into
consideration, among other matters, the degree of detail
needed in the plan to properly and expeditiously carry out the
activities and undertakings proposed in any annual increment
of a neighborhood development program.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2607%3A2. Public record. Not legal advice.