Appendix — Philadelphia Housing Authority Authority v. Henderson (No. 06-1507)
Supreme Court brief2007
Ask Donna
What actually matters in this document.
Text
la
APPENDIX A
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5317
VANESSA HENDERSON, on behalf of herself and
all other persons similarly situated,
Appellant,
¥.
ANTHONY MORRONE, individually and as Director of the
Section 8 Program of the Philadelphia Authority; THOMAS
J. KELLY, JR., individually and as Executive Director of the
Philadelphia Housing Authority; THOMAS MCINTOSH,
individually and as Chairman of the Board of Directors
of the Philadelphia Housing Authority; HARRY SEWELL;
HERMINE HART; CARMELITA THILL; DANTE MATTIONI,
Individually and as members of the Board of Directors
of the Philadelphia Housing Authority; PHILADELPHIA
HOUSING AUTHORITY.
Vanessa Henderson and the certified
class whom she represents,
Appellants.
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil No. 79-cv-04190)
District Judge: Honorable Clifford Scott Green
Submitted Under Third Circuit LAR 34.1(a)
Wednesday, December 13, 2006
Before FISHER, CHAGARES and GREENBERG, Circuit
Judges.
2a
(Filed January 25, 2007)
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellant Vanessa Henderson, on behalf of herself and
others similarly situated, appeals from an order granting the
Philadelphia Housing Authority’s (“PHA’s”) motion to va-
cate a consent decree. The District Court determined that
vacatur was proper because the “purpose of the consent
decree ha[d] been satisfied.” Because we disagree with the
District Court’s construction of the decree, we will reverse
and remand.
c
In 1979, Vanessa Henderson was a low-income tenant
receiving a rent subsidy from the PHA as part of the federal
Section 8 assistance program.' In October of that year, the
PHA sent Henderson a letter stating that, effective imme-
diately, it was terminating her housing-assistance payments.
The letter asserted that Henderson had misrepresented her
family income and composition. Henderson responded by
filing a class-action complaint in the United States District
Court for the Eastern District of Pennsylvania. She contended
that the PHA’s failure to provide pretermination notice and an
opportunity to be heard deprived her (and others similarly
situated) of the process they were constitutionally due. See
U.S. Const. amend. XIV, § 1. .
' “The federal section 8 rental assistance program was established
under the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq.,
and provides rent subsidies for low- and moderate-income participants so
that they can afford to lease privately owned housing units.” Turner v.
Crawford Square Apartments III, L.P., 449 F.3d 542, 544 n. 4 (3d
Cir.2006)
3a
Protracted settlement negotiations followed. By July 1982,
the parties still had not reached an agreement, and the case
remained pending in the District Court. Then, on July 26,
the U.S. Department of Housing and Urban Development
(“HUD”) released proposed regulations dealing with preter-
mination process for recipients of Section 8 assistance. See
Section 8 Housing Assistance Payments Programs-Existing
Housing, 47 Fed.Reg. 32169 (July 26, 1982). The notice and
hearing requirements described in the proposed regulations
were substantially similar to those sought by Henderson’s
complaint.
Five months later, with the proposed regulations still pénd-
ing, the parties filed a settlement stipulation in the District
Court. The introductory portion of the agreement stated that
plaintiffs had brought suit to challenge “the defendants’
failure to provide [them] . . . with notice and an opportunity
to be heard prior to the termination” of Section 8 assistance.
Appendix (“App.”) 17. The PHA, for its part, denied any
deprivation of the plaintiffs’ rights, but it agreed to the
stipulation “in the interest of avoiding litigation.” App. 18.
The stipulation stated that the PHA could terminate
benefits only for good cause, and it provided for 30-days
advance written notice of the termination. The notice had to
inform the tenant of the reasons for the PHA’s decision, the
tenant’s right to request an informal hearing within 10 days,
and the tenant’s nght to be represented by counsel at the
hearing. Upon receipt of a hearing request, the PHA had to
provide the tenant with a written explanation of the hearing
procedures. The tenant also had the right to inspect and copy
all relevant PHA documents. At the hearing itself, the tenant
could examine evidence, question adverse witnesses, and pre-
sent testimony in her favor. While the hearing officer could
be a PHA employee, the employee could not “be involved in
the day to day administration of the [Section 8] program.”
App. 20. Following the hearing, the hearing officer was
4a
required to render a written decision stating “the legal and
evidentiary” basis for the determination. App. 19. Tenants
would have 30 days to appeal from an adverse ruling.
At the time of the agreement, the parties obviously were
aware of the looming possibility that the proposed HUD
regulations would become final regulations. Paragraph 13 of
the stipulation explicitly addressed that contingency:
Should [HUD] promulgate regulations which require
PHA to perform acts which are inconsistent with this
Stipulation or which prohibit PHA from performing acts
consistent with this Stipulation, such regulations shall
govern. In the event that such regulations are prom-
ulgated, either party shall file an appropriate petition to
modify this decree. This provision shall not be construed
as a waiver of either party’s right to challenge the
validity of such regulations in an appropriate forum.
App. 21.
The District Court approved the stipulation in April of
1983 and entered it as an enforceable order of the court (“the
consent decree”’).
The next year, HUD’s proposed regulations (with some
revisions) became final regulations. See Section 8 Housing
Assistance Payments Program; Existing Housing, 49 Fed.Reg.
12215 (March 29, 1984).* The HUD regulations are in many
ways identical to the protections provided by the consent
decree. Housing authorities must provide tenants with notice
of the reason for the proposed termination, notice of the right
to an informal hearing, and notice of the deadline for request-
ing a hearing. See 24 C.F.R. § 982.555(c)(2)(A). Tenants also
have rights to discovery, to legal representation at their own
expense, and to present evidence and question witnesses at
? From time to time, HUD has amended these regulations. See, e.g., 24
C.F.R. § 982.555(e)(2) (providing limited rights to prehearing discovery).
Sa
their hearings. See 24 C.F.R. §§ 982.555(e)(2)(1), (e)(3), (e)(5S).
The hearing officer must be uninvolved in the decision under
review, and must state the reasons for the decision. See 24
C.F.R. §§ 982.555 (e)(4), (e)(6).
But despite these broad similarities, there are some dif-
ferences. First, while the consent decree requires 30-days
notice prior to termination, the regulations do not set out
a specific number of days. See 24 C.F.R. § 982.555(c)(2).
Second, although both the decree and the regulations provide
a right to counsel at the tenant’s own expense, only the decree
requires that notice of this mnght be provided in the initial
notice of intent to terminate benefits. Third, the decree man-
dates at least 10-days notice of the hearing date, while the
regulations leave the amount of notice to the housing author-
ity’s discretion. Fourth, only the decree requires the PHA,
upon receipt of a hearing request, to “give the tenant a written
explanation of the hearing procedure.” Fifth, the consent
decree requires hearing officers to “state the legal and eviden-
tiary grounds for the decision.” The regulations, on the other
hand, require only a brief statement of “the reasons for the
decision.” 24 C.F.R. § 982.555(e)(6). Sixth, the consent de-
cree states that persons “involved in the day to day admini-
stration of the [Section 8] program” may not be hearing
officers, but the HUD regulations are not so broad. A person
involved in day-to-day administration (or anyone else) can
serve as a hearing officer under the regulations so long as he
or she is not the “person who made or approved the decision
under review or a subordinate of this person.” 24 C.F.R.
§ 982.555(e)(4)(i). And seventh, the decree requires notice of
a right to appeal within 30 days, and allows tenants to “peti-
tion for clarification” of a “vague or ambiguous decision.”
The regulations contain no such rights.
After HUD issued its final regulations in March of 1984,
neither party attempted to modify the decree, no one ever
brought contempt or enforcement proceedings, and it appears
6a
that the PHA continued to perform its obligations under the
decree. In fact, for 21 years not a single docket entry was
added in the District Court. Then, like a bolt out of the blue,
the PHA moved to vacate the consent decree in November of
2004 “based upon significant changes in the law.” App. 25.
The “significant changes” it relied on were the 1984 HUD
regulations. —
After hearing oral argument, the District Court vacated the
decree. This appeal followed.
II.
Generally speaking, we review an order modifying a con-
sent decree pursuant to Fed.R.Civ.P. 60(b) for abuse of dis-
cretion. See Holland v. N.J. Dep’t of Corr., 246 F.3d 267, 281
(3d Cir.2001). Nonetheless, to the extent the District Court’s
order turned on its construction of the decree, we exercise
plenary review. Jd. at 277 (“This Court . . . has held many
times that a district court’s construction and interpretation of
a consent decree is subject to straightforward plenary or de
novo review.”). If the District Court misconstrued the decree,
its legal error necessarily constitutes an abuse of discretion.
See Coltec Industries, Inc. v. Hobgood, 280 F.3d 262, 269 n.
8 (3d Cir.2002).
A consent decree entered on a “stipulation of the parties
has the characteristics of a contract, [and] contract principles
govern its construction.” McDowell v. Philadelphia Housing
Authority, 423 F.3d 233, 238 (3d Cir.2005). “One of these
principles is that an unambiguous agreement should be en-
forced according to its terms.” /d.
Here, the District Court’s sole basis for vacating the con-
sent decree was its determination that the decree’s “purpose
ha[d] been satisfied.” Specifically, the court construed Para-
graph 13 to establish that the parties intended the decree as no-
more than a temporary stopgap to “provide due process to
families receiving benefits under section 8 housing until! HUD
regulations were promulgated.” Since HUD had indeed prom-
Ta
ulgated regulations in 1984, the agreement’s purpose had
been fulfilled and vacatur was appropriate.
We cannot agree with that construction of the consent
decree. If the parties had intended for their bargain to become
inoperative once HUD promulgated final regulations, they
certainly could have said so. But as it stands, Paragraph 13
recognizes the possibility of final HUD regulations, and pro-
ceeds to state only two limited situations in which they “shall
govern”: (1) if they “require PHA to perform acts which are
inconsistent with” the stipulation, and (2) if they “prohibit
PHA from performing acts consistent with” the stipulation.
App. 21. The next sentence reads: “In the event that such
regulations are promulgated, either party shall file an appro-
priate petition to modify this decree.” Jd. (emphasis added).
The phrase “such regulations” plainly refers back to the two
types of regulations described in the previous sentence. By
stating these two limited situations in which the HUD regula-
tions would “govern,” the agreement expresses the parties’
intent to be governed by their bargain with respect to any
other differences between the two. Cf Plumbers & Steam-
fitters Local 150 Pension Fund v. Vertex Constr. Co., 932
F.2d 1443, 1449 (11th Cir.1991) (“The doctrine of expressio
unius est exclusio alterius instructs that when certain matters
are mentioned in a contract, other similar matters not’ men-
tioned were intended to be excluded.”).
The PHA attempts to avoid this straightforward reading of
Paragraph 13 by relying on this statement from the consent
decree’s introductory paragraph: “Plaintiffs have commenced
a civil class action seeking [relief for] the defendants’ failure
to provide tenants under the Section 8 Housing Assistance
[Program] with notice and an opportunity to be heard prior to
the termination of the tenants from participation in the
Program.” App. 17. The PHA reads this sentence to “clearly
indicate[ ] that the purpose of the Consent Decree was to fill
the void of no regulations and no notice and hearing pro-
cedures, not to obtain particular terms and procedures for the
8a
notice and hearing.” PHA Brief at 30-31. We disagree for two
reasons. First, the quoted sentence states the plaintiffs’ pur-
pose for “commenc[ing] a class action”; it does not state their
purpose for entering into a stipulation. Second, this general-
ized statement of purpose does not purport to nullify the plain
and specific terms of Paragraph 13.
We therefore construe the consent decree to mean what it
says: HUD’s final regulations trump the parties’ bargain only
when they “require PHA to perform acts which are inconsis-
tent with” the stipulation, and when they “prohibit PHA from
performing acts consistent with” the stipulation. App. 21; see
McDowell, 423 F.3d at 238. Because the consent decree
simply provides greater and more specific protections for
tenants, the HUD regulations do neither of these things. For
example, the HUD regulations do not require the PHA to
inform tenants of their right to counsel in the initial notice of
intent to terminate benefits, but they certainly do not forbid it.
The HUD regulations may not mandate that the PHA provide
“a written explanation of the hearing procedure,” but they do
not prevent the PHA from doing so. The regulations require
only a brief statement of “the reasons for the decision,” 24
C.F.R. § 982.555(e)(6), but they do not prohibit the hearing
officer from providing a more detailed explanation of the
decision’s “legal and evidentiary” basis. And although the
regulations do not mandate notice of rights to appeal or to
“petition for clarification,” the PHA is free to do so consistent
with the regulations. In short, nothing in the HUD regulations
requires an act inconsistent with the consent decree, and
nothing in the HUD regulations forbids an act consistent with
the consent decree. Accordingly, it was error to conclude that
the promulgation of HUD regulations satisfied the purpose of
the agreement.
Hil.
Independenf of the District Court’s reasons, the PHA also
argues that vacatur is appropriate because “it is no longer
9a
equitable that the judgment should have prospective appli-
cation.” Fed.R.Civ.P. 60(b). The Supreme Court has held that
“a party seeking modification of a consent decree bears the
burden of establishing that a significant change in circum-
stances warrants revision of the decree.” Rufo v. Inmates of
the Suffolk County Jail, 502 U.S. 367, 383 (1992). This burden
can be met by “showing a significant change either in factual
conditions or in law.” Jd. at 384. “Ordinarily, . . . modification
should not be granted where a party relies upon events that
actually were anticipated at the time it entered into a decree.”
Id. at 385; see also Building & Construction Trades Council of
Philadelphia v. NLRB, 64 F.3d 880, 888 (3d Cir.1995)
(“Central to the court’s consideration will be whether the
modification is sought because changed conditions unforeseen
by the parties have made compliance substantially more oner-
ous or have made the decree unworkable.”)
The PHA argues that HUD’s final regulations constituted a
significant change in the law. We have no doubt that they
were, but the fact remains that the parties “actually .. .
anticipated” the promulgation of HUD regulations at the
time of their agreement. See Rufo, 502 U.S. at 383. Their
agreement expressly states the two circumstances in which
the HUD regulations control, and (as we have explained)
neither one is applicable.’ In light of the consent decree’s
> Notwithstanding the parties’ anticipation of final HUD regulations,
the PHA views our dictum in Brown v. Philadelphia Housing Authority,
350 F.3d 338 (3d Cir.2003), as controlling in this case. In Brown, we held
that “the case was moot and that we lacked subject matter jurisdiction,”
but nonetheless offered “some guidance . . . to the bench and bar per-
taining to the test for determining when a court ordered decree should be
set aside as having lost its utility.” /d. at 448 n. 6. We stated that “there
need not be a conflict” between a consent decree and a subsequent change
in the law. Rather, “a significant change with no attendant conflict consti-
tutes sufficient grounds for vacatur.” /d. Our dictum in Brown was quite
true, but quite inapposite here. In Brown, the parties’ agreement had not
explicitly anticipated the change in law, nor did it provide for the limited
10a
own terms, the most equitable result is to hold the parties to
their bargain.
IV.
We will reverse the District Court’s order and remand for
further proceedings consistent with this opinion.
situations in which the contemplated change would govern. Moreover, in
Brown the relevant changes in law “gave broader and more compre-
hensive protection to PHA residents than had been available under the
Consent Decree,” and as a result “the Consent Decree no longer had force
or utility.” /d. The Henderson decree, on the other hand, provides greater
protections than the HUD regulations and remains useful for tenants on
Section 8 assistance. As a result, Brown provides no help to the PHA.
lla
APPENDIX B
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
[Filed NOV. 8, 2005]
Civil Action No. 79-4190
VANESSA HENDERSON, on behalf of herself and all other
persons similarly situated
Plaintiff,
W.
Anthony Morrone et al.,
Defendant.
ORDER
Presently pending is Philadelphia Housing Authority’s
(PHA) Motion to Vacate Consent Decree and Plaintiff's
Answer to Defendant PHA’s Motion to Vacate Consent
Decree. AND NOW this 7th day of November 2005, upon
consideration of parties’ pleadings and memoranda, IT IS
HEREBY ORDERED that Defendant’s Motion to Vacate
Consent Decree will be GRANTED.
The consent decree states, in paragraph thirteen (13), that
in the event “the United States Department of Housing and
Urban Development (HUD) promulgate regulations which
require PHA to perform acts which are inconsistent with [the]
Stipulation or which prohibit PHA from performing acts
consistent with this Stipulation, such regulations shall gov-
ern.” In the present case, unchallenged regulations have been
promulgated that provide for notice, hearings and due process
safeguards for Section 8 participants. These regulations are
consistent with the consent decree designed by the parties to
provide due process to Section 8 participants. As required by
12a
the consent decree, the regulations have not been challenged
and appear to govern the process.
In the event the purpose of a consent decree has been
satisfied, the consent decree may be vacated. ' Paragraph 13,
of the consent decree, makes clear that the purpose of the
consent decree was to provide due process to families re-
ceiving benefits under section 8 housing until HUD regula-
tions were promulgated. Since the present regulations pro-
vide the process for families living in section 8 housing, the
purpose of the consent decree has been satisfied. Accord-
ingly, the consent decree will be vacated on motion of de-
fendant PHA.
AND NOW, this 7th day of November 2005 IT IS
HEREBY ORDERED that PHA’s Motion to Vacate the
Consent Decree is GRANTED.
BY THE COURT:
/s/ Clifford Scott Green
CLIFFORD SCOTT GREEN, S.J.
' Brown v. Philadelphia Housing Authority, 237 F. Supp.2d 567, 574
(E.D. Pa., 2002) citing Hodge v. Department of Housing & Urban Devel-
opment, 862 F.2d 859 (11th Cir. 1989).
13a
APPENDIX C
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-5317
VANESSA HENDERSON, on behalf of herself and
all other persons similarly situated
¥.
ANTHONY MORRONE, individually and as Director of the
Section 8 Program of the Philadelphia Authority; THOMAS
J. KELLY, JR., individually and as Executive Director of the
Philadelphia Housing Authority, THOMAS MCINTOSH,
individually and as Chairman of the Board of Directors of
the Philadelphia Housing Authority; HARRY SEWELL;
HERMINE HART; CARMELITA THILL; DANTE MATTIONI,
Individually and as members of the Board of Directors of
the Philadelphia Housing Authority; PHILADELPHIA
HOUSING AUTHORITY
Vanessa Henderson and the certified
- class whom she represents,
Appellants.
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge, SLOVITER, McKEE,
RENDELL, BARRY, AMBRO, FUENTES, SMITH,
FISHER, CHAGARES, and JORDAN Circuit Judges, and
GREENBERG, Senior Circuit Judge*
The petition for rehearing filed by appellee in the above
entitled case having been submitted to the judges who par-
’ As to panel rehearing only.
l4a
ticipated 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 en banc, the petition for rehearing is denied.
By the Court,
/s/ Michael A. Chagares
Circuit Judge
DATED: February 22, 2007
DMM/cc: Paul A. Brooks, Esq.
Michael Donahue, Esq.
George D. Gould, Esq.
Susan J. French, Esq.
Virginia L. Hogben, Esq.
Alan C. Kessler, Esq.
15a
APPENDIX D
§ 982.555 Informal hearing for participant.
(a) When hearing is required—{1) A PHA must give a par-
ticipant family an opportunity for an informal hearing to
consider whether the following PHA decisions relating to
the individual circumstances of a participant family are in
accordance with the law, HUD regulations and PHA policies:
(i) A determination of the family’s annual or adjusted
income, and the use of such income to compute the
housing assistance payment.
(ii) A determination of the appropriate utility allow-
ance (if any) for tenant-paid utilities from the PHA
utility allowance schedule.
(iii) A determination of the family unit size under the
PHA subsidy standards.
(iv) A determination that a certificate program family
is residing in a unit with a larger number of bedrooms
than appropriate for the family unit size under the
PHA subsidy standards, or the PHA determination to
deny the family’s request for an exception from the
standards.
(v) A determination to terminate assistance for a
participant family because of the family’s action or
failure to act (see § 982.552).
(vi) A determination to terminate assistance because
the participant family has been absent from the as-
sisted unit for longer than the maximum period
permitted under PHA policy and HUD rules.
(2) In the cases described in paragraphs (a)(1)(iv), (Vv)
and (vi) of this section, the PHA must give the oppor-
tunity for an informal hearing before the PHA terminates
housing assistance payments for the family under an
outstanding HAP contract.
16a
(b) When hearing is not required. The PHA is not required to
provide a participant family an opportunity for an informal
hearing for any of the following:
(1) Discretionary administrative determinations by the
PHA.
(2) General policy issues or class grievances.
(3) Establishment of the PHA schedule of utility allow-
ances for families ii the program.
(4) A PHA determination not to approve an extension or
suspension of a voucher term.
(5) A PHA determination not to approve a unit or
tenancy.
(6) A PHA determination that an assisted unit is not in
compliance with HQS. (However, the PHA must provide
the opportunity for an informal hearing for a decision to
terminate assistance for a breach of the HQS caused by
the family as described in § 982.551(c).)
(7) A PHA determination that the unit is not in ac-
cordance with HQS because of the family size.
(8) A determination by the PHA to exercise or not to
exercise any right or remedy against the owner under a
HAP contract.
(c) Notice to family. (1) In the cases described in paragraphs
(a)(1)(i), (ii) and (iii) of this section, the PHA must notify
the family that the family may ask for an explanation of the
basis of the PHA determination, and that if the family does
not agree with the determination, the family may request an
informal hearing on the decision.
(2) In the cases described in paragraphs (a)(1)(iv), (v)
and (vi) of this section, the PHA must give the family
prompt written notice that the family may request a
hearing. The notice must:
17a
(i) Contain a brief statement of reasons for the
decision,
(11) State that if the family does not agree with the
decision, the family may request an informal hearing
on the decision, and
(111) State the deadline for the family to request an
informal hearing.
(d) Expeditious hearing process. Where a hearing for a par-
ticipant family is required under this section, the PHA must
proceed with the hearing in a reasonably expeditious manner
upon the request of the family. :
(e) Hearing procedures—{1) Administrative plan. The ad-
ministrative plan must state the PHA procedures for conduct-
ing informal hearings for participants.
(2) Discovery—{i) By family. The family must be given
the opportunity to examine before the PHA hearing any
PHA documents that are directly relevant to the hearing.
The family must be allowed to copy any such docu-
ment at the family’s expense. If the PHA does not make
the document available for examination on request of the
family, the PHA may not rely on the document at the
hearing.
(11) By PHA. The PHA hearing procedures may pro-
vide that the PHA must be given the opportunity to
examine at PHA offices before the PHA hearing any
family documents that are directly relevant to the
hearing. The PHA must be allowed to copy any such
document at the PHA’s expense. If the family does
not make the document available for examination on
request of the PHA, the family may not rely on the
document at the hearing.
(iii) Documents. The term “documents” includes rec-
ords and regulations.
18a
(3) Representation of family. At its own expense, the
family may be represented by a lawyer or other repre-
sentative.
(4) Hearing officer: Appointment and authority. (i)
The hearing may be conducted by any person or persons
designated by the PHA, other than a person who made or
approved the decision under review or a subordinate of
this person.
(ii) The person who conducts the hearing may reg-
. ulate the conduct of the hearing in accordance with
the PHA hearing procedures.
(5) Evidence. The PHA and the family must be given
the opportunity to present evidence, and may question
any witnesses. Evidence may be considered without
regard to admissibility under the rules of evidence
applicable to judicial proceedings.
(6) Issuance of decision. The person who conducts the
hearing must issue a written decision, stating briefly the
reasons for the decision. Factual determinations relating
to the individual circumstances of the family shall be
based on a preponderance of the evidence presented at
the hearing. A copy of the hearing decision shall be
furnished promptly to the family.
(f) Effect of decision. The PHA is not bound by a hearing
decision:
(1) Conceming a matter for which the PHA is not
required to provide an opportunity for an informal!
hearing under this section, or that otherwise exceeds the
authority of the person conducting the hearing under the
PHA hearing procedures. 7
(2) Contrary to HUD regulations or requirements, or
otherwise contrary to federal, State, or local law.
19a
(3) If the PHA determines that it is not bound by a
hearing decision, the PHA must promptly notify the
family of the determination, and of the reasons for the
determination.
(g) Restrictions on assistance to noncitizens. The informal
hearing provisions for the denial of assistance on the basis of
ineligible immigration status are contained in 24 CFR part 5.
(Approved by the Office of Management and Budget under
control number 2577-0169)
[60 FR 45661, Sept. 1, 1995; 61 FR 13627, March 27, 1996;
64 FR 26650, May 14, 1999; 64 FR 43613, Aug. 11, 1999; 64
FR 56911, Oct. 21, 1999; 65 FR 16823, March 30, 2000]
— YR ML IbER {MO DAY YEAR | 4 we (ot als ~~ omen| sumer | oem | yA NUMBER
: es NEAREST 81 000 neay ‘i “|
CG
34312 | 79] 4190 411]19179 [3] 440 {1 1 1333 9 | 4190
PLAINTIFFS DEFENDANTS
| HENDERSON, Vanessa | ve | MORRONE, Anthony
on behalf of herself and all individually and as Director
other persons similarly situated of the Section 8 Program of
the Philadelphia Authority
KELLY, Thomas J. Jr.
individually and as Executive
Director of the Philadeiphia
Housing Authority,
‘McINTOSH, Thomas
individually and as Chairman of
‘the Board of Directors of the
Philadelphia Housing Authority
SEWELL, Harry
HART, Hermziné
THILL, Carmelita
MATTIONI, Dante
Individually and as members of the
cause Board of Directors of the Phila-
delphia Housing Authority
PHILADELPHIA HOUSING AUTHORITY
C/R Action for deprivation of rights to due
process
(RELATED TO C.A. 79-1702 CG)
FOR PLAINTIFF AVTORNEVS (#7) James Hickey,Esq,
George D Gould, Esq (15) The Philadelphia Housing Author1t
David A Searles, Esq 2012-18 Chestnut St ,Phila Pa 19]
Joyce S Wilkinson, Esq FOR- The Phila Housing Authority
COMMUNITY LEGAL SERVICES, INC
Sylvania House
Locust and Juniper Streets
Phila , Penna 19107
Fincourt B Shelton, Esq (15)
SUSAN FRENCH
1650 ARCH STREET, 22nd FLOOR
Paul A. Brooks, Esq. WOLF BLOCK
Community Legal Services, Inc. PHILADELPHIA, PA #9103
1424 Chestnut Street, Sth Floor
Philadelphia, PA 19102
Ph 215.981.3700
Fx. 215 981.0434
aarceahee he
pe FILING FEES PAID ae STATISTICAL CAROS
if PT CON
HERE i OATE eS ee el CARD ATE MAILEO
F CASE WAS | >
1LEO IN omar | --—--- 53% or ane tO
‘ORMA | { Fr) | | ae - FP
2AUPERIS =f] { fe i Zo
HTED BTATES DISTRICT COURT DOCKET BE em Tm ES
an
m
BEST AVAILABLE COPY
DATE | oak a PROCEEDINGS 99 - 41490
1 NOV 19] PLFF'S MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS WITH AFFIDAVIT
IN SUPPORT THEREOF, FILED
m2 * 19 |} ORDER AUTHORIZING PLFF TO FILE THE COMPLAINT IN THIS ACTION IN FORMA PAUPERIS
ETC., FILED , CG
11/20/79 ENTERED & COPIES MAILED
2 © ig 19 | Complaint filed
” 19 | Summons Exit (USM 285 Not Attached)
2 “ 119 | MOTION AND ORDER SPECIALLY APPOINTING CHARLES ISELEY & MELVIN
GOWANS TO SERVE THE COMPLAINT & TRO UPON ALL DEFTS, FILED
' 11/20/79 ENTERED/SUMMONS MAILED TO COUNSEL
“5 2 19 | PLFF'S MOTION FOR TEMPORARY RESTRAINING ORDER, AFFIDAVIT AND
MEMORANDUM IN SUPPORT, FILED
[> 19 | ORDER THAT DEFTS ASE ENJOINED FROM TERMINATING PLFF FROM PARTICIPA-
TION IN THE SECTION 8 HOUSING ASSISTANCE PAYMENT PROGRAM AND
ARE ORDERED TO ISSUE PLFF A CERTIFICATE OF FAMILY PARTICLPA-
TION AND TO CONTINUE. TO MAKE HOUSING ASSISTANCE PAYMENTS ON ®
PLFF'S BEHALF CONSONANT WITH THE STATUTORY AND REGULATORY
REQUIREMENTS OF THE SECTION 8 PROGRAM AND SCHEDULING 12/4/79
AT 9:15 A.M. IN COURTROOM 15B FOR A HEARING ON PLFF‘S MOTION
FOR A PRELIMINARY INJUNCTION, FILED
11/20/79 ENTERED & COPIES MAILED
4 Pe 21L|P1££’s request for production of documents, filed
5 i 21/P1££’s notice of taking the deposition of the most appropriate
employee of the Phila. Housing Authority, filed
— 30 |PLFF'S MOTION FOR EXPEDITED DISCOVERY, MEMORANDUM IN SUPPORT AND
CERTIFICATION, FILED Ba
7. DEC. |11 {Letter dd. 11/29/79 from James Hickey,Esq.of The Phila.Housing Authority to Judge
Green, advising the Court that as a result of the facts presented by V.Henderson(plf
on 11/27/79 when she responded to her termination, The Philadelphia Housing Authorit
has decided to issue a Certificate of Family Participation & to restore all benefit
to Vanessa Henderson ,etc. , filed.
a.” 20} Report of Pretrial Conference Green, J., filed
1980
9 FEB 14| STIPULATION AND ORDER EXTENDING TIME TO 3/12/80 FOR PLFF TO FILE THE
MOTION FOR DETERMINATION OF CLASS ACTION, FILED
2/14/80 ENTERED & COPIES MAILED
10 MAR | 26 jLetter dated 3/14/80 to Judge Green from David A. Searles, Esq.
advising the Court on the present status of the case etc., filed
12 Aprj 21) Letter dtd. 4/15/80 to Judge Green from James Hickey, Esq.
(1982) re: Status of Settlement Negotiations, filed
12 ocT 20 \Gony of Clerk's Notice ~f ™-missal pursuant tc U..1 @.-le f3(a), filed
10/20/82 Notice mailed to counsel
13 Nov. | 26|STIPULATION AND ORDER THAT THIS ACTION IS CERTIFIED AS A CLASS ACTION ON BEHALF
OF ALL PERSON WHO ARE PRESENTLY OR MAY IN THE FUTURE BE TENANTS UNDER SECTION 8
HOUSING ASSISTANCE PAYMENTS PROGRAM-EXISTING HOUSING, ADMINISTERED BY THE PHILA.
HOUSING AUTHORITY, FILED. CG
11-26-82 Entered and copies mailed.
4 26 |STIPULATION AND ORDER THAT THE STIPULATION SUBMITTED TO THE COURT AND ENTERED INTO
BY THE PARTIES IN FULL SETTLEMENT OF THIS MATTER IS APPROVED, PLFFS AND DEFTS AND
THEIR SUCCESSORS SHALL ABIDE BY AND IMPLEMENT THE PROCEDURES AND AGREEMENTS WHICH
ARE SET FORTH IN THE STIPULATION, ALL PARTIES SHALL BEAR THEIR OWN COSTS, EXPENSES
AND ATTORNEY FEES, FILED. CG
11-26-82 Entered and copies mailed. COnr Mi
° ICON ote
o
Nn
Oc 1A
(Rev, 1/75)
CIVIL DOCKET CONTINUATION SHEET
PLAINTIFF
VANESSA HENDERSON
aT lai ~ DEFENDANT : r
DOCKET NO.
79~4190
ANTHONY MARRONE, ET AL
PAGE OF___.. PAGE
DATE
—s
PROCEEDINGS
198s
15 Mar.
15)"
(15) Apr
16
17
S
&
21 “
2 3 “ oe
29 Aug.
27
27
27
22
7
14
14
18
—-s
JOINT MOTION FOR THE FORM OF NOTICE OF PROPOSED SETTLEMENT, FILED.
ORDER DATED 3/28/83 THAT THE FORM OF NOTICE AND THE METHOD OF GIVING NOTICE
PROPOSED BY THE PARTIES IN THEIR JOINT MOTION ARE APPROVED, FILED.
3/30/83 entered & copies miled
ORDER THAT THE COURT WILL HOLD A HEARING ON APRIL 27, 1983 AT WHICH
SECTION 8 TENANTS OR APPLICANTS MAY PRESENT OBJECTIONS TO THE SETTLEMENT , FILE!
4/5/83 Entered and copies mailed.
Argued Sur: Hearing of 4/27/83; re: Section 8 tenants may present objections
to the Settlement; no Objections-Court signs Consent Decree, filed.
ORDER THAT THE STIPULATION SUBMITTED TO THE COURT AND ENTERED INTO BY THE
PARTIES IN FULL SETTLEMENT OF THIS MATTER 1S HEREBY APPROVED AND ENTERED
AS THE ORDER OF THIS COURT; IT IS FURTHER ORDERED THAT PLFFS AND DEFTS AND
THEIR SUCCESSORS SHALL ABIDE BY AND IMPLEMENT THE PROCEDURES AND AGREEMENT
WHICH ARE SET FORTH IN SAID STIPULATION AND SPECIFICALLY INCORPORATED
BY REFFRENCE HEREIN, ETC. FILED.
4/27/83 Entered and Copies mailed.
ORDER THAT THE OONSENT DECREE ENTERED ON NOVEMBER 26, 1982 IN THIS MATTER IS
HEREBY VACATED, FILED.
4/27/83 Entered and Copies mailed.
Certification of Service of Fincourt B. Shelton, Esq. re: "Copy of Notice of
Settlement of Class Action case between P1ff and Deft. to all Section 8 Housing
Assistance Payments recipients by Mail on April 15, 1983" filed. Microfiche
DEFENDANT PHILADELPHIA HOUSING AUTHORITY'S MOTION TO VACATE CONSEN‘
DECREE, MEMORANDUM, CERTIFICATE OF SERVICE. (fdc)
{Appendix of Exhibits of Defendant Philadelphia Housing Authority ir
|Support of Motion to Vacate Consent Decree, Certificate of Service.
| sTIPULATION AND ORDER THAT PLAINTIFFS SHALL HAVE AN EXTENSION OF
TIME UNTIL AND INCLUDING JANUARY 3, 2005 TO ANSWER, PLEAD OR
OTHERWISE MOVE IN RESPONSE TO DEFENDANTS’ HOTION TO VACATE THE
CONSENT DECREE. SIGNED BY HON. GREEN. ENTERED AND COPIES MAILED.12,
Entry of Appearance of Paul A. Brooks, Esq. on behalf of Plaintiff
Certificate of Service. (fdc)
STIPULATION AND ORDFR THAT PLAINTIFFS CHAT. HAVE AN EXTENSION OF TIME UNTTII.
AND INCLUDING 1/14/05 WITHIN WHICH TO ANSWER, PLEAD OR OTHERWISE PILE A
RESPONSE TO PHA'S MOTION TO VACATF. CONSENT DECREE. 12/28/94 ENTERED AND
COPIES MAILED.
Plaintiffs" Answer to Defendant PHA’S Motion to Vaca
Decree, Certificate of Service. (fdc)
Reply Brief of Defendant Philadelphia Housing Authority in Support
of its Motion to Vacate Consent Decree, Certificate of Service. (f:
ORDER THAT A CONFERENCE WILL >. a IN THE ABOVE CAPTIONED CASE
ON 2/17/05 AT 11:00 AM IN CHAMBERS. ENTERED AND COPIES MAILED 2/14,
SIGNED BY HON. GREEN. (fdc)’
Report of Conference on 2/17/05 before Judge Green.
ORDER THAT AN ORAL ARGUMENT ON THE MOTION TO VACATE THE CONSENT
DECREE WILL BE HELD 9/15/05 AT 11:60 AM. SIGNED 3Y HON. GBFFN
ENTERED AND COPIES MAILED 8/26/05. (fdc)
te Consent
tJ
_—
Pie
mgt i,
PROCEFOINGS
ve
“ae
f 2
Ae ot
TKET CONTINUATION SHEET
OOCKFT NO
| PAGE OF _PAGES |
t
rf Wi hte Entry. Hearing Re: Motion to Vacate on 9/15/05 at 11:00 am.
lhr. and 10 mins. before Judge Green. (fdc)
OFS Pranscr ipt. Hearing before Judge Green on 9/15/05. (fdc)
ORDER THAT DEFENDANT'S MOTION TO VACATE THE CONSENT DECREE IS GRANTE
SIGNED BY HON. G =N 8 ITE
Plaintiffs’ Notice of Appeal Cercdhleate of ecvace ke MOLLER of! FEM/0%)
Clerk's Notice to USCA.
USCA Notice of Docketing ROA Appeals Docket No. 05-5317. (fdc)
Notice of Appeal Filuy Fee $255.00 Receipt? 924687. (fdc)
BEST AVAILABLE COPY
24a
APPENDIX F
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
C.A. No. 79-
CLASS ACTION
VANESSA HENDERSON, on behalf of herself and
all other persons similarly situated,
Plaintiff,
VS.
ANTHONY MORRONE, individually and as Director of the
Section 8 Program of the Philadelphia Housing Authority,
THOMAS J. KELLY, JR., individually and as Executive
Director of the Philadelphia Housing Authority, THOMAS
MCINTOSH, individually Class Action and as Chairman of
the Board of Directors of the Philadelphia Housing
Authority, HARRY SEWELL, HERMINE HART, CARMELITA
THILL, DANTE MATTIONI, individually and as members
of the Board of Directors of the Philadelphia Housing
Authority, PHILADELPHIA HOUSING AUTHORITY.
| Defendants.
COMPLAINT
1. PRELIMINARY STATEMENT
1. This is a class action for injunctive and declaratory
relief as well as damages brought by a low-income tenant, on
behalf of herself and all others similarly situated, who
challenges the defendants’ policy and practice of terminating
tenants’ housing subsidies under Section 201(a) (8) of the
Housing and Community Development Act of 1974, 42
U.S.C. §1437f, (Section 8), without affording tenants notice
and an opportunity to be heard prior to the termination.
25a
2. Plaintiff brings this action pursuant to 42 U.S.C.
§1983 alleging that the actions of the defendants constitute
violations of the due process clause of the Fifth and Four-
teenth Amendments and the Housing and Community Devel-
opment Act of 1974.
II]. JURISDICTION
3. Jurisdiction is conferred upon this Court by 28 U.S.C.
§1343(3) and (4) as this is an action authorized by 42 U.S.C.
§1983 to redress the deprivation, under color of state law, of
rights privileges or immunities secured by the Constitution
and the laws of the United States; by 28 U.S.C. §1331 as this
is an action arising under the Constitution and laws of the
United States wherein the matter in controversy exceeds the
sum of ten thousand dollars ($10,000), exclusive of interest
and costs; by 28 U.S.C. §1337 as this is an action arising
under an Act of Congress regulating interstate commerce;
and by 28 U.S.C. §§2201, 2202 and Rule 57 of the Federal
Rules of Civil Procedures authorizing declaratory and other
necessary relief.
II. PARTIES
4. Plaintiff Vanessa Henderson is a low-income tenant
residing at 7441 Limekiln Pike, Apt. A-5, Philadelphia,
Pennsylvania.
5. Defendant Philadelphia Housing Authority (herein-
after “PHA”’) is a public body, corporate and politic, exer-
cising public powers of the Commonwealth of Pennsylvania
as an agency thereof, existing under the laws of the Com-
monwealth of Pennsylvania, Act of May 28, 1937, P.L. 955 et
seq., 35 P.S. §1541 et seg., with the right to sue and be sued.
PHA’s main offices are located at 2012 Chestnut Street,
Philadelphia, PA. PHA administers the distribution of federal
rental assistance payments under the Section 8 Program; its
Section 8 Program offices are located at 1216 Walnut Street,
Philadelphia, PA.
26a
6. Defendant Thomas J. Kelly, Jr. is the Executive Di-
rector of PHA and is responsible both for administering the
daily operations of PHA and for PHA’s policies and practices
in administering the Section 8 Program.
7. Defendant Anthony Morrone is the Director of the
Section 8 Program and is responsible for administering the
daily operations of the Section 8 Program.
8. Defendants Thomas McIntosh, Harry Sewell, Her-
mine Hart, Carmelita Thill and Dante Mattioni are the five
members of the Board of Directors of PHA and, as such, are
responsible for the formulation of PHA policy.
9. At all times relevant, defendants were acting under
color of state law as agents, servants, and/or employees, as
well as high officers, of the Philadelphia Housing Authority.
10. All defendants are sued in their individual as well as
official capacity.
IV. CLASS ACTION ALLEGATIONS
11. Plaintiff Henderson seeks to maintain this action on
her own behalf and on behalf of all other persons similarly
situated pursuant to Rule 23(a) and (b)(2) of the Federal Civil
Rules of Procedure. The plaintiff class is defined to include
all persons who have been or will be terminated from the
Section 8 Program without the benefit of adequate notice and
opportunity for hearing.
12. The class is so numerous that joinder of all members
is impractical. The number of class members is not presently
known but may be discovered through documents in the
possession of the defendants.
13. There are questions of law and fact common to the
class, i.e., whether the defendants have terminated class mem-
bers from participation in the Section 8 Program without
adequate notice and opportunity for a hearing and whether
that procedure is violative of the law.
27a
14. The claims of the named plaintiff, i.e., that lack of
notice and opportunity for a hearing prior to termination from
participation in the Section 8 Program is violative of law, are
typical of the claims of the class.
15. The named plaintiff will fairly and adequately protect
the interest of the members of the class in that she promises
vigorous and complete prosecution of this matter and her
attorneys are experienced with litigation in federal courts
concerning low-income housing. —
16. Defendants have acted on grounds generally applic-
able to the class, thereby making appropriate final injunctive
relief and declaratory relief with respect to the class as a
whole.
V. FACTUAL ALLEGATIONS
17. The Section 8 Program is a federal housing program,
adopted by Congress as part of the Housing and Community
Development Act of 1974, 42 U.S.C. §1437f, under which the
local public housing authority, by contract with the Depart-
ment of Housing and Urban Development, makes rental
payments directly to private landlords for the benefit of low-
income people.
18. Under the Section 8 Program in Philadelphia, a family
applies to PHA for participation. If the family meets the
financial eligibility criteria, PHA issues a Certificate of Fam-
ily Participation. Equipped with the Certificate, the family has
the responsibility to find a private landlord willing to par-
ticipate in the program.
19. Once PHA approves the lease, the tenant’s share of
the rent and utilities is fixed at 25% of their adjusted family
income. PHA supplements the rent by making Housing As-
sistance Payments directly to the landlord out of funds re-
ceived through its Annual Contribution Contract with HUD.
28a
20. Plaintiff Henderson, a mother of two children aged |
and 2, applied for and received a Certificate of Family
Participation from PHA in December 1977.
21. On January 1, 1978, plaintiff signed a lease, which
had been approved by PHA, with Robert Court Apartments to
rent a two-bedroom apartment.
22. Plaintiff's sole source of income for herself and her
two children is a monthly public assistance grant of $302.00.
23. The rental price for plaintiff's apartment is $227.00.
Under the Section 8 Program, plaintiff contributed $42
towards the rent each month and paid her own electricity bill,
which average $20 each month and PHA made monthly
Housing Assistance Payments to Robert Court Apartments of
$185.00.
24. Plaintiff has resided at Robert Court Apartments
under the terms of the Section 8 Program from January 1,
1978, to the present.
25. On October 25, 1978, plaintiff received a letter from
the Section 8 Program which stated that, effective imme-
diately all Housing Assistance Payments made on her behalf
had been terminated and, further, that she had been deter-
mined ineligible for further participation in the Section 8
Program. The letter is attached hereto and identified as
Exhibit A.
26. Defendants’ stated reason for the termination was that
plaintiff misrepresented her family income and composition.
Defendants’ allegations was based on a letter from plaintiff's
public assistance caseworker to PHA alleging that plaintiff's
cousin resided with her and paid her rent. In fact, plain-
tiffs cousin only used the residence as a mailing address and
has since stopped doing so. Had the plaintiff been provided
with pre-termination notice and opportunity for a hearing, she
would have been able to present evidence disproving the
charge of misrepresentation of income.
29a
27. The October 25, 1979, letter terminating plaintiff's
participation in the Section 8 Program does not notify plain-
tiff of her right to challenge the termination.
28. Upon receipt of the October 25, 1979, letter, plaintiff
Henderson immediately contacted PHA and was told by a
PHA employee that the notice had been sent in error and to
disregard it.
29. During the first week of. November, plaintiff Hender-
son was notified by the manager of Robert Court apartments
that PHA had not made its Housing Assistance Payment to
the landlord for November.
30. Plaintiff Henderson again contacted PHA and was
told by a PHA employee that the October 25, letter
terminating her benefits was not in error and that she had in
fact been terminated from the program.
31. At no time was plaintiff Henderson informed of a
procedure by which she could obtain an impartial evidentiary
hearing prior to the termination of her participation in the
Section 8 Program.
32. Asa result of the defendants’ action, plaintiff Hender-
son is unable to pay the monthly rental charge to her landlord
and consequently fears that legal action will be taken against
her for nonpayment of rent. She is being forced to vacate her
apartment and to look for alternative housing in a very tight
housing market.
33. Plaintiff Henderson had located another private land-
lord who was willing to lease her a dwelling under the Sec-
tion 8 Program but, as a result of her termination by defen-
dants, plaintiff was unable to accept the offer to lease.
34. This offer to lease has since been withdrawn and the
other landlord refuses to further discuss renting to plaintiff
until she has a Certificate.
30a
35. Asaresult of defendants’ actions, plaintiff is suffering
and will continue to suffer immediate and irreparable harm in
that she and her two children are being forced to vacate their
home or be evicted therefrom because they are clearly unable
to pay the $227 monthly rent and unable to secure affordable
decent, safe and sanitary alternative housing. Plaintiff is also
suffering extreme anxiety and fear for herself and her family
over the loss of her Certificate of Family Participation in the
Section 8 Program. Plaintiff has no adequate remedy at law.
36. Plaintiff alleges on information and belief that defen-
dants have no adequate written procedures governing the
termination of Certificate of Family Participation which
comply with the requirements of 42 U.S.C. § 1437f and rules
and regulations promulgated thereunder.
VI. CAUSES OF ACTION
FIRST CLAIM: DUE PROCESS
37. Plaintiff hereby incorporates by reference the fore-
going paragraphs | through 36.
38. Under the Fifth and Fourteenth Amendments, rent
subsidies under the Section 8 Program cannot be terminated
arbitrarily or capriciously or in the absence of adequate pro-
cedural protection.
39. Defendants, acting under color of state law, have
terminated plaintiff Henderson’s participation in the Section 8
Program arbitrarily and capriciously, without providing her
adequate notice and an opportunity for a prior hearing to
challenge the termination.
40. Defendants’ actions have violated the rights of plain-
tiff Henderson and the class she represents to due process of
law.
3la
SECOND CLAIM: STATUTORY
41. Plaintiff hereby incorporates by reference the fore-
going paragraphs | through 36.
42. Defendants’ actions, in terminating plaintiff and the
members of her class from participation in the Section 8 Pro-
gram without notice and an opportunity for a prior hearing to
Challenge the termination, violate the Housing and Com-
munity Development Act of 1974, 42 U.S.C. §1437, and
regulations promulgated thereunder.
VII. PRAYER FOR RELIEF
WHEREFORE, plaintiff Vanessa Henderson on behalf of
herself and all others similarly situated, pray that this court
enter relief as follows:
1. Assume jurisdiction of this case.
2. Certify this action to proceed as a class action pursuant
to Rule 23 of the Federal Rules of Civil Procedure.
3. Grant a temporary restraining order and a preliminary
injunction restraining the defendants, their agents and
all persons acting in concert with them from revoking
plaintiff Vanessa Henderson’s Certificate of Family
Participation in the Section 8 Program and from re-
fusing to continue her Housing Subsidy Entitlements
under that Program unless and until Ms. Henderson is
provided with:
a. A written notice detailing the reasons for the pro-
posed revocation, the facts underlying those rea-
sons, and the grounds believed by the defendants
to constitute good cause for revocation of her
Section 8 Certificate;
b. An opportunity to contest those facts and reasons °
in a hearing before an impartial decision-making
body and in which Ms. Henderson may be repre-
32a
sented by counsel or other appropriate represen-
tative of her choice, and may present testimony
and documentary evidence and may have access to
all records of the defendants relating to her;
c. A written decision of the decision-making body
with findings of facts based solely upon the
hearing, conclusions as to whether good cause for
revocation exists and the law supporting that
conclusion.
d. The right to appeal the decision.
. Issue a declaratory judgment, pursuant to Title 28
U.S.C. §§2201 and 2202, that the acts, omissions,
practices, policies and procedures of defendants com-
plained of herein violate plaintiff class members’ rights
as heretofore alleged.
. Grant permanent injunctive relief on behalf of the
plaintiff class prohibiting, enjoining and restraining the
defendants, their agents, employees, successors in
office and all persons acting in concert with them from
revoking, terminating or otherwise denying to the class
members the entitlements which they are receiving
under the Section 8 Program, without affording class
members those rights set out in Paragraph 3, subparts a,
b, c and d above, and informing all class members of
the basis for good cause Section 8 revocations.
. Grant permanent injunctive relief on behalf of the
plaintiff class requiring the defendants to give written
notice to all members of the plaintiff class who have
been terminated from participation in the Section 8
Program without a prior oral evidentiary hearing, and
affording such persons an opportunity for such a hear-
ing as set out in Paragraph 3, subparts a, b, c, and d
above, and if they are found to have been improperly
33a
terminated, affording such members of the class prior-
ity on recertification in the Section 8 Program.
7. Award plaintiff costs and reasonable attorneys’ fees.
8. Such other relief as deemed appropriate by the Court.
/s/ David A. Searles
DAVID A. SEARLES
JOYCE S. WILKERSON
GEORGE D. GOULD
HAROLD R. BERK
COMMUNITY LEGAL SERVICES, INC.
Sylvania House
Juniper and Locust Streets
Philadelphia, PA 19107
Tele: (215) 893-5306
DATED: November 19, 1979
34a
THE PHILADELPHIA HOUSING AUTHORITY
Section 8 Housing Program
Re-Examination Department
1216 Walnut Street
Phila., Pa. 19107
October 25, 1979
Ms. Venessa Henderson
7441 Limekiln Pike #A-5
Phila., Pa.
Case #4983
Dear Ms. Henderson:
As of date of this notification, the Housing Assistance
Payments Contract, and all Housing Assistance Payments
made on our behalf have been terminated. Also, you have
been determined ineligible for further Section 8 Housing
Assistance.
The reason for this action is due to your failure to comply
with the obligations under Paragraph 7 of the Certificate of
Family Participation.
The following are the reasons as to why you are in vio-
lation of the Certificate of Family Participation.
Misrepresentation of Family Income and Composition.
Therefore, effective immediately, you will be responsible
for the full amount of the rent.
Any responses regarding this matter are to be directed to
the Re-Examination Department.
Sincerely,
/s/ Anthony Amoroso
ANTHONY AMOROSO
Re-Examination Department
Section 8 Housing Program
35a
AA: jz
~ ec: Owner
Devirgiliis
P.H.A. — Legal
Re-Examination Dept.
File
36a
APPENDIX G
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
[Filed APR. 27, 1983]
C.A. NO. 79-4190
CLASS ACTION
VANESSA HENDERSON, et al.
VS.
ANTHONY MORRONE, et al.
ORDER
AND NOW, this 27th day of April, 1983, upon con-
sideration of the Stipulation filed by both parties and a
hearing held pursuant to Fed.R.Civ.P. 23(e) on the objections
thereto in the above-captioned matter, IT IS ORDERED that
the Stipulation submitted to the Court and entered into by the
parties in full settlement of this matter is hereby APPROVED
and entered as the Order of this Court; and
IT IS FURTHER ORDERED that plaintiffs and defendants
and their successors shall abide by and implement the pro-
cedures and agreements which are set forth in said Stipulation
and specifically incorporated by reference herein.
All parties shall bear their own costs, expenses, and
attorney’s fees.
BY THE COURT:
/s/ Clifford Scott Green
CLIFFORD SCOTT GREEN, J.
37a
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
[Filed NOV. 26 1982}
CIVIL ACTION *
NO. 79-4190
CLASS ACTION
VANESSA HENDERSON, et al.
VS.
ANTHONY MORRONE, et al.
STIPULATION
Plaintiffs have commenced a civil class action seeking in-
junctive and declaratory relief, as well as damages, to enjoin
and declare as violative of their constitutional and statutory
rights the defendants’ failure to provide tenants under the
Section 8 Housing Assistance Payments Program-Existing
Housing (hereinafter referred to as “Program”) with notice
and an opportunity to be heard prior to the termination of the
tenants from participation in the Program. Defendants dispute
that plaintiffs have been deprived of any rights or that
defendants have breached or failed to perform any duties or
obligations owing to plaintiffs.
Plaintiffs and defendants have agreed and executed a
Stipulation that this action may proceed as a class action. The
class is defined as all persons who are presently or may in the
future be tenants under the Section 8 Housing Assistance
Payments Program—Existing Housing.
The parties are mutually desirous of effectuating a settle-
ment of the matters raised by plaintiffs’ Complaint by en-
tering into a settlement resolving the issues presented therein.
38a
Both plaintiffs and defendants, however, maintain that the
respective allegations as advanced in this action are meri-
torious and that the Court would so find following litigation.
Adherence by the parties to this agreement shall not be con-
strued as an admission to the truth of any of those allegations.
Therefore, in the interest of avoiding litigation, the parties
hereby agree to be bound as follows:
1. The defendants may terminate a recipient from the
Section 8 Existing Housing Program only for good cause.
Such good cause shall be as specified in the applicable HUD
regulations and HUD Handbook 7420.7.
2. Written notice of such good cause reasons for ter-
mination shall be provided to future recipients when they are
accepted by the program.
3. Upon a decision to terminate Section 8 assistance, the
Housing Authority shall give thirty-day advance written
notice of its intent to the recipient as set forth in Exhibit A
attached hereto and incorporated herein. Such notice shall
include the reason for the termination, the nght of the
recipient to request, within ten (10) days, an informal hearing,
and the night of the recipient to be represented at the hearing,
at his/her own expense, by counsel or other representative of
his/her choice.
4. Upon receipt of a tenant’s Request for a Hearing, the
Housing Authority shall give the tenant a written explanation
of-the hearing procedure and inform the tenant of the hearing
date giving sufficient time to prepare for the hearing, at a time
during a working day. The parties shall, either in person or by
first class U.S. mail, be served notice of the time and place of
the hearing, at least ten days prior to the hearing. Section 8
payments shall continue until a final decision of the hearing
officer is rendered.
39a
5. Hearings may be continued at the request of either the
Housing Authority or tenant for good cause such as illness or
other unavoidable absence of a party or witness, or by agree-
ment between the Housing Authority and the tenant.
6. The issue to be determined at such hearings shal! be
whether the Housing Authority has good cause as defined in
paragraph | of this Stipulation to terminate the tenant’s hous-
ing assistance subsidy.
7. For purposes of the hearing, the tenant shall:
A. Have the right to retain counsel or other representa-
tive, if desired, at his/her own expense.
B. Be given an opportunity to examine evidence and
question any adverse witnesses, and to present testimony in
his/her favor.
C. Be permitted to examine before the hearing, and to
copy at his/her expense, all documents of PHA that are
relevant to the hearing. If a document is not made available,
after request therefor by the tenant, and PHA attempts to rely
on it at the hearing, the tenant shall have the nght to continue
the hearing in order to present evidence in rebuttal.
8. The hearing decision must be in writing, must be
based solely on evidence provided at the hearing, and must
state the legal and evidentiary grounds for the decision. In
addition, it must be dated and signed by the hearing officer,
and shall be forwarded to all parties and their representatives
within a reasonable time after the conclusion of the hearing.
9. The hearing officer: may be a PHA employee subject
to the following provisions:
A. Parties or their representative in a contested case
shall not communicate, directly or indirectly, in connection
with any issue of fact or law in that contested case, with
individuals assigned to render a proposed or final decision or
to make findings of fact or conclusions of law in that
40a
contested case, except upon notice and opportunity for all
parties to participate.
B. No individual who participates in the making of the
decision at the informal hearing shall be involved in the day
to day administration of the program.
10. The decision of the hearing officer shall go into effect
immediately after the issuance of the decision in writing. A
tenant may appeal from the decision with thirty (30) days
after issuance of said decision. The appeal shall be governed
by the provisions of the Pennsylvania Local Agency Law, 2
Pa. C.S.A. §§751-754. The hearing officer shall issue with the
decision a notice of the tenant’s right to appeal within thirty
(30) days. PHA shall not be obligated to continue to make
HAP Housing Assistance Payments after a decision by the
hearing officer adverse to the tenant.
11. If the hearing officer’s decision is vague or ambig-
uous, either party may petition for clarification of the decision
within fifteen (15) days after the decision. The party filing the
petition shall give five (5) days’ notice of the petition to all
other parties. The hearing officer shall respond promptly with
a Clarification of the decision. The decision will not become a
final adjudication until the clarification is issued.
12. Notwithstanding the foregoing appeal provisions, a
tenant waives no rights, claims or defenses in any eviction
action commenced in a judicial forum.
13. Should the United States Department of Housing and
Urban Development promulgate regulations which require
PHA to perform acts which are inconsistent with this Stip-
ulation or which prohibit PHA from performing acts con-
sistent with this Stipulation, such regulations shall govern. In
the event that such regulations are promulgated either party
shall file an appropriate petition to modify this decree. This
provision shall not be construed as a waiver of either party’s
4la
right to challenge the validity of such regulations in an
appropriate forum. |
14. All parties shall bear their own costs, expenses and
attorney’s fees.
/s/ Clifford Scott Green
CLIFFORD SCOTT GREEN
Judge
November 26, 1982
/s/ Fincourt B. Shelton
FINCOURT B. SHELTON, Esquire
Attomey for Defendants
/s/ Arthur E. Schmidt
GEORGE D. GOULD
ARTHUR E. SCHMIDT
Attorneys for Plaintiffs
Date: 11/18/82
42a
NOTICE OF INTENTION TO TERMINATE
HOUSING ASSISTANCE PAYMENTS
TO: Date:
Dear Mr./Ms.:
You are hereby notified that the Philadelphia Housing
Authority intends to terminate your Section 8 Housing
Assistance Payments thirty (30) days from the date of this
letter. The reason for the termination is as follows:
The nature of the evidence against you is:
* *£ * *
You may request a hearing to challenge the proposed ter-
mination by signing and sending to the Philadelphia Housing
Authority the bottom portion of this letter entitled Request for
Hearing. This Request must be sent within ten (10) days/to:
after this notice was mailed,
Section 8 Housing Program
Philadelphia Housing Authority
1216 Walnut Street
Philadelphia, Pennsylvania 19107
If you send a timely Request to PHA, a hearing will be
scheduled during working hours at PHA offices at 1216 Wal-
nut Street. For purposes of the hearing, you have the follow-
ing rights: a) to examine before the hearing, and, at your
expense, to copy all documents, records, and regulations of
PHA that are relevant to the hearing; b) to be represented by
counsel or other representative, at your expense; c) to con-
front and cross-examine adverse witnesses; d) to present
evidence on your own behalf; e) to appeal the decision of the
hearing officer.
If you request a hearing, your Section 8 benefits will
continue until a decision is made.
Section 8 Housing Program
Philadelphia Housing Authority
43a
* *« * &
REQUEST FOR HEARING
I hereby request a hearing to challenge the decision of the
Philadelphia Housing Authority to terminate my Section 8
Housing Assistance Payments.
(Signature of Tenant)
(Address of Tenant) Date:
Date:
44a
APPENDIX H
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
CIVIL ACTION
NO. 79-4190
VANESSA HENDERSON,
PLAINTIFF,
VS.
PHILADELPHIA HOUSING AUTHORITY, et al,
DEFENDANTS.
PHILADELPHIA, PA.
SEPTEMBER 15, 2005
BEFORE CLIFFORD SCOTT GREEN,S.J.
HEARING
APPEARANCES:
FOR THE PLAINTIFFS:
COMMUNITY LEGAL SERVICES, INC.
BY: GEORGE D. GOULD, ESQ.
PAUL A. BROOKS, ESQ.
1424 CHESTNUT STREET
PHILADELPHIA, PA 191102-02505
FOR THE DEFENDANTS:
WOLF BLOCK
BY: SUSAN J. FRENCH, ESQ.
VIRGINIA L. HOGBEN, ESQ.
1650 ARCH STREET
22ND FLOOR
PHILADELPHIA, PA. 19103
45a
SIDNEY S. ROTHSCHILD
OFFICIAL COURT REPORTER
ROOM 1234 - U.S. COURTHOUSE
601 MARKET STREET
PHILADELPHIA, PA. 19106.
(215) 627-0184
PROCEEDINGS RECORDED BY MECHANICAL STENOG-
RAPHY, TRANSCRIPT PRODUCED BY COMPUTER.
x* * * *
MR. BROOKS: GOOD MORNING.
MS. FRENCH: GOOD MORNING.
THE COURT: HOW ARE YOU?
I GUESS THIS DECREE HAS BEEN HERE AS LONG
AS IT HAVE, NOT QUITE, BUT ALMOST.
WHAT IS THE REAL PRACTICAL PROBLEM IN
REGARD TO VACATING IT?
MR. BROOKS: IN REGARD TO VACATING IT.
THE COURT: NOBODY USES IT.
MR. BROOKS: WE FEEL IT IS QUITE HELPFUL TO
HAVE AN ENFORCEABLE ORDER. AND, THERE ARE
PROVISIONS IN THE CONSENT DECREE SUCH AS
THE REQUIREMENT THAT PHA GIVES 10 DAYS
ADVANCED WRITTEN NOTICE OF A HEARING AND
AT LEAST 30 DAYS NOTICE BEFORE TERMINATION
PROVISIONS IN THE CONSENT DECREE, WHICH ARE
NOT IN THE REGULATIONS. THEY DON’T CONFLICT
WITH THE REGULATIONS, BUT THEY PROVIDE
ADDED VALUE TO THE TENANTS AND WE HATE TO
LOSE THOSE PROTECTIONS FOR OUR CLIENTS.
THE COURT: THE DEFENDANTS GO BACK TO
SUMMARILY HOUSEKEEPING PEOPLE, WHY CAN’T
YOU GET THEM DUTY FREE.
46a
MR. BROOKS: IT IS A—
THE COURT: YOU HAVEN’T USED THIS ONE.
MR. BROOKS: JUST BECAUSE WE HAVEN’T
MOVED TO ENFORCE IT DOESN’T MEAN IT IS NOT
USEFUL.
THE COURT: I UNDERSTAND YOU ARE SAYING IT
IS LIKE A CLUB AND IT MAKES THEM—
MR. BROOKS: IT IS OUT THERE.
THE COURT: MAKING THEM ABIDE BY IT.
UNDER THAT REASONING, IT WOULD BE HERE
FOREVER.
MR. BROOKS: YOUR HONOR, I THINK AS LONG AS
IT CONTINUES—
THE COURT: WHEN WOULD IT BE—
MR. BROOKS: AS LONG AS IT CONTINUES TO
HAVE FORCE AND VITALITY, AS LONG AS NOTHING
HAPPENS TO MAKE IT BURDENSOME ON PHA,
THERE’S NO REASON IT SHOULDN’T BE HERE
INDEFINITELY, YOUR HONOR.
THE COURT: SO YOU ARE TALKING ABOUT A 10-
DAY NOTICE.
MR. BROOKS: WE OUTLINED I BELIEVE
EIGHT POINTS ON PAGE 16 OF THE BRIEF, EACH
OF WHICH IS A SUPPLEMENTAL TO THE ADDED
VALUE PROVISION OF THE CONSENT DECREE.
I MENTIONED THAT THE 10 DAYS ADVANCED
NOTICE WAS ONE OF THE ONES WE FIND VERY
VALUABLE. OUR CLIENTS FOR EXAMPLE, THEIR
MEMORY IS NOT THAT GOOD, THEY HAVE MANY
THINGS GOING ON IN THEIR LIVES, GETTING THE
NOTICE MAILED AT LEAST 10 DAYS BEFORE THE
47a
HEARING IS IMPORTANT TO THEM, BECAUSE IT
MEANS THAT THEY HAVE A PRETTY GOOD CHANCE
OF GETTING TO THEIR LAWYER AND GETTING TO
THE HEARING.
THE COURT: HOW MANY CASES DO YOU HAVE
THAT THEY DON’T HAVE THAT REALLY.
MR. BROOKS: THEY DON’T HAVE THE 10-DAY
NOTICE? IT HAS BEEN A PROBLEM OFF AND ON
OVER THE YEARS. AT PRESENT THEY ARE DOING
SOMEWHAT BETTER. THERE ARE ALWAYS PROB-
LEMS IN SCATTERED CASES. WE HAD PERIODS OF
TIME IN THE 10 YEARS I HAVE BEEN DOING THESE
NUTS AND BOLTS CASES, BUT WE HAD A LOT OF
PROBLEMS WITH 10 DAY NOTICES. THE NOTICE
WOULD BE DATED 10 DAYS, NOT MAILED FOR
SEVERAL DAYS, BY THE TIME THAT IT.GOT TO THE
CLIENTS, THEY ACTUALLY GOT IT IN THE MAIL
BOX, IT WAS SEVEN DAYS, AND IT GIVES THE
CLIENTS FIVE DAYS.
IF, FOR EXAMPLE, PHA—
THE COURT: WHY CAN’T YOU CALL OPPOSING
COUNSEL TO SAY YOU HAD FIVE DAYS NOTICE.
MR. BROOKS: WITH PHA PRESENT DAY COUNSEL,
WE GET ALONG FINE. WE POINT OUT THE
PROBLEMS, THE MATTER IS CONTINUED. THERE IS
NO SERIOUS PROBLEM. THAT HAS NOT ALWAYS
BEEN TRUE, YOUR HONOR. SOME PHA COUNSEL
OVER THE YEARS, PRESENT MEMBERS EXCEPTED,
QUITE FRANKLY, HAVE BEEN VERY DIFFICULT TO
EVEN REACH ON THE PHONE. NONETHELESS, YOU
KNOW ONCE AGAIN KNOWING THE RIGHT IS OUT
THERE IS IMPORTANT.
THE COURT: ALL RIGHT.
48a
MR. BROOKS: BEING ABLE TO ENFORCE IT, IF
NECESSARY, WHY SHOULD WE FILE A NEW
LAWSUIT, TAKE THE COURT’S TIME, OUR TIME
ALSO WITH EVERY LAWSUIT AND EVERY
SETTLEMENT. IT IS A ROLL OF THE DICE, IF YOU
WILL COME OUT BETTER OR WORSE. WE
BARGAINED FOR IT. I BELIEVE THERE WERE NO
COUNSEL FEES IN THE CASE. WE GAVE IT UP. THE
TENANTS GAVE UP OTHER POSSIBLE THINGS THEY
WANTED TO WIN. GIVEN THE PRESENT REGU-
LATIONS, IT PROBABLY WOULD BE HARD TO GET
SOMETHING LIKE THE 10 DAY ADVANCED NOTICE
IF WE HAD TO SUE OVER AGAIN.
THE COURT: WHEN YOU DON’T GET—YOU DON’T
COME DOWN HERE.
MR. BROOKS: IF WE SAW A SYSTEMIC PROBLEM
OR IF WE SAW A POLICY DECISION BY PHA, WE
WOULD FILE. FOR SPORADIC PROBLEMS, AS LONG
AS PHA COUNSEL STAFF, COUNSEL CONTINUE TO
DEAL WITH THESE PROBLEMS APPROPRIATELY IN
AN INFORMAL MANNER, OF COURSE, WE DON’T
WASTE THE COURT’S TIME.
MS. FRENCH: I’M SUSAN FRENCH. I REPRESENT
THE PHILADELPHIA HOUSING AUTHORITY. WITH
ME IS MY COLLEAGUE, LYNN HOGBEN. IN THE
AUDIENCE BEHIND ME IS ASSISTANT GENERAL
COUNSEL OF THE HOUSING AUTHORITY, SHELLY
JAMES.
IF I MAY, YOUR HONOR, COMMUNITY LEGAL
SERVICES REPRESENTS THE PLAINTIFFS HERE, WHO
HAVEN’T BEEN TO THIS COURT IN 22 YEARS. THEY
CONCEDE THAT PHA GENERALLY FOLLOWS THE
POLICY AND PROCEDURES SET FORTH IN THIS
DECREE.
49a
ALL THAT PHA IS ASKING, THAT IT BE ALLOWED
TO UTILIZE THE CURRENT HUD REGULATIONS TO
SCHEDULE HEARINGS FOR TERMINATIONS OF
SECTION 8 HOUSING BENEFITS.
AND, MOREOVER, YOUR HONOR, EVEN IF YOUR
HONOR VACATED THIS DECREE TODAY, HUD
REGULATIONS REQUIRE THAT BEFORE PHA COULD
CHANGE ITS PROCEDURE IN ANY WAY, IT. WOULD
HAVE TO PUBLISH NOTICE TO THE TENANTS AND
THE COMMUNITY GROUPS. THE HUD REGULA-
TIONS REQUIRE REASONABLE NOTICE. WHILE MR.
BROOKS WAS REFERRING TO THIS 10 DAY NOTICE
OF HEARING REQUIREMENT, IF PHA DECIDED TO
CHANGE ITS PROCEDURE, IT STILL HAS TO
PROVIDE FOR REASONABLE NOTICE.
THE COURT: WHAT IS ITS PROCEDURES AND
POLICY, IN TERMS OF TIME AND NOTICE?
MS. FRENCH: IN TERMS OF TIME AND NOTICE
RIGHT NOW THE PROCEDURE IS 10 DAYS BECAUSE
WE ARE BOUND BY THIS DECREE.
THE HUD REGULATIONS—
THE COURT: THAT’S WHAT THEY ARE AFRAID OF.
MR. FRENCH: THEY MAY BE AFRAID WE WILL
CHANGE IT IN SOMEWAY, IT COULD BE CHANGED
FOR THE BENEFIT OF THE TENANTS. FOR EXAMPLE,
THIS DECREE REQUIRES HEARINGS BE SET ONLY
DURING HEARING HOURS IN THE DAY .TIME. ONE
OF THE THINGS THAT PHA IS CONSIDERING
HAVING EVENING HOURS FOR THOSE TENANTS IN
BOTH CONVENTIONAL HOUSING AND CONVEN-
TIONAL SECTION 8 HOUSING WHO WORK DURING
THE DAY AND WOULD PREFER THE EVENING
HOURS. IT IS MORE CONVENIENT FOR THEM; WE
50a
ARE PRECLUDED FROM DOING THAT BY THIS
DECREE. |
ALL WE ARE ASKING IS THE OPPORTUNITY TO
OPERATE OUR NOTICE AND TERMINATION AND
HEARING PROGRAM IN THE SAME MANNER AS
VIRTUALLY EVERY OTHER HOUSING AUTHORITY
IN THE COUNTRY, UNDER THE REGULATIONS
PRESCRIBED BY HUD, WHICH THE THIRD CIRCUIT
HAS HELD, YOUR HONOR, PROVIDE ADEQUATE DUE
PROCESS PROTECTIONS TO THE TENANTS.
MR. BROOKS: YOUR HONOR, IF I MIGHT RESPOND
TO A COUPLE OF THE POINTS.
I DON’T KNOW WHERE IN THE CONSENT DECREE,
TAKING A LOOK AT IT, I NEVER HEARD OF ANY
PROPOSAL TO HAVE EVENING OR WEEKEND HEAR-
INGS. I DON’T KNOW ANYTHING IN THE CONSENT
DECREE THAT FORBIDS IT. CERTAINLY IF PHA
WANTED TO DO THAT, AND IT WAS OPTIONAL FOR
OUR TENANTS, OF COURSE WE WOULD AGREE.
THAT REALLY GETS TO THE NUB OF THE PROBLEM.
PHA IS TRYING. TO CREATE THIS ALLUSION THERE
IS A PROBLEM WITH THE CONSENT DECREE THAT
REQUIRES THE WHOLE THING TO BE THROWN OUT,
WHEN NO SUCH PROBLEM EXISTS.
IF THEY WANTED TO PROVIDE ADDED VALUE TO
THE TENANTS ON THEIR OWN, WE ARE PERFECTLY
WILLING TO DO THAT, AS LONG AS IT IS NOT
REQUIRED, WE WILL NOT AGREE TO SOMETHING
THAT FORCES A TENANT ON SATURDAY, TO
ATTEND A HEARING ON SATURDAYS.
WITH RESPECT TO NOTICES, I THINK MAYBE I, AT
LEAST, WAS A LITTLE CONFUSED. I’M TALKING
ABOUT THE NOTICE OF THE HEARING IN THE
SPECIFIC CASE, THE FACT THAT PHA WOULD HAVE
Sla
TO GIVE PUBLIC NOTICE BEFORE IT CHANGED ITS
SECTION 8 HEARING PROCEDURE. I MEAN IT IS
NICE, YOUR HONOR, BUT AS A PRACTICAL MATTER,
‘THE ADMINISTRATIVE AGENCY HAS VERY WIDE
DISCRETION.
THE COURT: DO YOU HAVE ANY DIFFICULTY
WITH THEM CONFORMING TO HUD’S PROCEDURES?
MR. BROOKS: YOUR HONOR, HUD’S PROCEDURES
ARE, THEY ARE GOOD, NOT AS GOOD AS THIS
CONSENT DECREE, YOUR HONOR. OUR CONSENT
DECREE IS BETTER IN AT LEAST EIGHT WAYS. WE
FOUGHT FOR THAT AND THEY CONTINUE TO HAVE
VALUE. WE ARE CONCERNED THAT IF PHA IS
RELIEVED OF THE CONSENT DECREE, WOULD TRY
TO WIDDLE AWAY AT THAT, AND WOULD BE FREE
TO DO SO.
SURE THEY HAVE TO PUBLISH A NOTICE, TWO
MONTHS LATER AFTER FOLLOWING SOME KIND OF
A PUBLIC HEARING THEY GO AHEAD TO DO WHAT
THEY WANT TO DO ANYWAY. IF THEY HAVE
PROBLEMS WITH THE DECREE, WE WILL AGREE TO
REALISTIC CHANGES. THEY NEVER CAME TO US
WITH A SUSPECT PROBLEM ABOUT IT.
THEY ARE CREATING THIS ALLUSION OF PROB-
LEMS IN AN EFFORT TO GET RID OF THE DECREE
WHOLESALE, TO BE FREE FROM ITS OBLIGATIONS,
TO BE FREE FROM THE BARGAIN THEY STRUCK.
SOME CONSENT DECREES HAVE TIME LIMITS,
PARTIES OFTEN NEGOTIATE TIME LIMITS. THE
PARTIES HERE DID NOT NEGOTIATE A TIME LIMIT,
THAT WAS PART OF THE BARGAIN TOO.
THE COURT: ALL RIGHT.
52a
WELL, I KNOW WHAT THE PROBLEM IS. I HAD
THIS ARGUMENT BECAUSE YOU ASKED FOR IT. I
WANTED YOU TO HAVE THE OPPORTUNITY TO
ARGUE IT.
I AM OF A MIND TO VACATE IT MAINLY BECAUSE
IT SEEMS TO ME THAT THERE IS NOT NOW ANY
REALISTIC PROBLEM FROM WHICH THE CONSENT
DECREE PROTECTS ANYONE.
I MEAN, YOU ARE SAYING THAT IT IS THERE AND
SO, THEREFORE THEY DON’T GO ANY FURTHER,
BUT, IT SEEMS TO ME THAT YOU HAVE AS MUCH
PROTECTION PURSUANT TO THE HUD REGULA-
TIONS AS YOU DO PURSUANT TO THE CONSENT
DECREE.
NOW, IF THAT WERE TO CHANGE, PRESUMABLY
THEY WERE GOING TO MAKE SOME DRACONIAN
CHANGE THAT THREATENED THE CONSTITU-
TIONAL RIGHTS OF YOUR CLIENTS AND THEY
GAVE NOTICE OF THIS, I TAKE IT THAT THERE IS
NOTHING TO PREVENT YOU FROM FILING A
LAWSUIT.
MR. BROOKS: YOUR HONOR, WITH ALL DUE
RESPECT, I HEAR WHAT YOU ARE SAYING BUT I’M
CONCERNED THAT THE SORT OF BURDEN OF
PROOF HERE IS PUT IN THE OPPOSITE DIRECTION
FROM WHERE IT WOULD BE. THERE IS LANGUAGE
IN THE RUFO CASE, YOUR HONOR, THAT DISCUSSES
THE SIGNIFICANCE OF PROVISIONS IN CONSENT
DECREES WHICH GO BEYOND WHAT THE CON-
STITUTION REQUIRES.
AND RUFO ACTUALLY SAYS THAT THESE PRO-
VISIONS ARE FINE, THEY ARE ACCEPTABLE, THEY
ARE PART OF ANY BARGAIN. IT IS SOMETHING
THAT PLAINTIFF CAN HOPE FOR AND SOMETIMES
53a
ACHIEVE. THE FACT THAT WE WOULD—STILL OUR
TENANTS WOULD BE PROTECTED BY THE REGU-
LATIONS SIMPLY IS NOT A RELEVANT FACTOR IN
DECIDING WHETHER TO VACATE THIS DECREE.
THE DECREE IS THE, AS RUFO PUTS IT, SHOULD
BE—IT SHOULD BE RETAINED AS LONG AS IT HAS
CONTINUING USEFULNESS AND VITALITY. TO JUST
SAY, BECAUSE IT IS 22 YEARS OLD, THE TENANTS
ARE NOW LEFT WITH THE HUD REG-
ULATIONS IS PUTTING THE ENTIRE BURDEN OF
SHOWING A BASIS FOR VACATING IT IN THE
OPPOSITE DIRECTION.
WE HAVE TO SHOW SOME REASON WHY IT
SHOULD BE CONTINUED TO BE NEEDED. WE
ARTICULATED AT LEAST EIGHT WAYS THAT THIS
DECREE PROVIDES EXTRA PROTECTIONS FOR OUR
TENANTS. THERE IS NO SHOWING, WITHOUT ANY
SHOWING BY PHA THEY SHOULD BE ABLE TO
CHANGE THEIR POLICIES IN THAT REGARD.
WITH RESPECT TO WHAT PHA WOULD DO IF
RELIEVED OF THEIR OBLIGATIONS, THEY SAID
THEY WANTED TO CHANGE THEIR POLICIES IN
WAYS TO BRING THEM CLOSER TO THE REGU-
LATIONS, THAT WOULD BE FINE, EXCEPT THAT’S
NOT WHAT THEY AGREED TO DO IN 1982, IN
COMPLYING WITH REALISTIC—
THE COURT: DO YOU THINK IN 1982 THEY
AGREED AND EXPRESSLY AGREED THAT THEY
WOULD NEVER CHANGE THEIR POLICY WITHOUT
YOUR APPROVAL.
MR. BROOKS: YOUR HONOR, I THINK THEY EX-
PRESSLY AGREED THAT THEY WOULD NOT
CHANGE THESE PARTICULAR ASPECTS OF THEIR
POLICY, YES.
54a
REMEMBER THERE WERE PROPOSED HUD REGU-
LATIONS ON THE TABLE FIVE MONTHS BEFORE
THIS CONSENT DECREE WAS SIGNED. FIVE MONTHS
BEFORE IT WAS STIPULATED, PROPOSED HUD
REGULATIONS THAT WERE IN MANY RESPECTS
SIMILAR TO THE FINAL HUD REGULATIONS. TO GO
BACK TO THE 10 DAY HEARING NOTICE EXAMPLE
THAT PHA HAS TO GIVE REASONABLE NOTICE AS
THE REGULATIONS DO TODAY, WHAT’S REASON-
ABLE IN SOME CONTEXTS, SEVEN DAYS OR EVEN
FIVE DAYS ADVANCED NOTICE OF A HEARING
HAVE BEEN HELD TO BE REASONABLE.
BUT, TO TAKE THE EXAMPLE GIVEN BY MS.
FRENCH FOR A TENANT WORKING IN A LOW WAGE
JOB, WHO CAN GET FIRED FOR TAKING TIME OFF
FROM WORK, IT CAN MAKE A BIG DIFFERENCE IF
THEY GET A 10 DAY, SEVEN DAY OR FIVE DAY
NOTICE. IF YOU VACATE THIS DECREE, PHA SAYS,
WELL, WE HAVE A LITTLE TROUBLE GETTING OUR
HEARINGS LINED UP 10 DAYS IN ADVANCE, WE
WILL MAKE IT SEVEN DAYS, IS THAT CONSTI-
TUTIONAL? PROBABLY. IS IT PERMITTED BY HUD
REGULATIONS? PROBABLY, YES. COULD WE FILE A
LAWSUIT AND HOPE TO WIN 10 DAYS? WE WOULD
HAVE A VERY HARD TIME.
THE COURT: IT IS PERMITTED ONLY IF REASON-
ABLE, THEN THERE MAY BE A CIRCUMSTANCE
UNDER WHICH IT WOULD BE REASONABLE TO
HAVE A HEARING.
MR. BROOKS: PM NOT SURE THAT I FOLLOW
YOUR HONOR.
THE COURT: I SAY THERE MAY BE A CIRCUM-
STANCE UNDER WHICH THERE WOULD BE A REA-
SONABLE BASIS FOR GIVING LESS THAN 10 DAYS
NOTICE.
55a
MR. BROOKS: WELL, MAYBE IN AN EMERGENCY
KIND OF BASIS. IF THERE IS A PROBLEM WITH THAT
KIND OF THING, PHA NEVER ARTICULATED IT. IF
THERE IS SUCH A REAL PROBLEM, THE AP-
PROPRIATE REMEDY IS TO COME FORWARD TO ASK
THIS COURT TO MODIFY THE CONSENT DECREE IN
A PARTICULAR WAY. SO TO TRY TO IMAGINE AN
EXAMPLE, MAYBE THEY HAVE SOLID INFOR-
MATION THAT THERE’S SOMETHING VERY SERI-
OUSLY GOING WRONG AT A PARTICULAR TEN-
~ ANT’S HOUSE. AND THEY WANTED TO HAVE THIS
HEARING AND GET IT OVER WITH ASAP. THEY
PROPOSE SOMETHING, WE EITHER AGREE TO IT OR
YOUR HONOR, IF WE DON’T AGREE WITH IT AND
YOUR HONOR FEELS IT IS REASONABLE, YOU
MODIFY THE DECREE ACCORDINGLY. THAT’S THE
APPROPRIATE STANDARD HERE, IS THERE A
PROBLEM? HOW DO YOU FIX THE PROBLEM? YOU
DON’T SAY THE CONSENT DECREE IS 22 YEARS OLD
AND YOU HAD A GOOD RUN. IT IS OVER NOW.
THAT’S BASICALLY SAYING THAT EVERY
CONSENT DECREE DIES AFTER AWHILE, EVEN IF
THAT IS NOT WHAT IT SAYS. THAT’S NOT WHAT
RUFO SAID.
THE COURT: IF YOU HAVE CONFORMITY AND
THERE ARE REGULATIONS WHICH WOULD APPEAR
TO BE ABOUT AS PROTECTED AS THE CONSENT
DECREE, MAYBE MORE SO, WHY DO YOU KEEP A
CONSENT DECREE FOREVER?
MR. BROOKS: IF WE HAD THAT KIND OF
REGULATION HERE, YOUR HONOR, WE WOULDN’T
HAVE ANY PROBLEM WITH VACATING THIS CON-
SENT DECREE.
I CAN ONLY GO BACK TO THE FACT TO STATE—
56a
THE COURT: THAT’S WHAT I’M ASKING YOU,
WHAT IN THE REGULATIONS DO YOU FIND
BURDENS YOU.
MR. BROOKS: IT IS NOT A QUESTION OF THE
REGULATIONS BURDENING US. IT IS A QUESTION
OF THE REGULATIONS NOT BEING AS PROTECTIVE
AS THE CONSENT DECREE. TO START WITH, THE
CONSENT DECREE, NOT THE REGULATIONS RE-
QUIRES 30 DAYS ADVANCED WRITTEN NOTICE OF
THE INTENT TO TERMINATE. NOW, THIS BECOMES
AN IMPORTANT FACTOR BECAUSE REMEMBER
SECTION 8 TENANTS HAVE LANDLORDS AND IT
MEANS THAT THE TENANT HAS AT LEAST 30 DAYS
TO TRY TO RESOLVE A PROBLEM WITH SECTION 8,
PERHAPS OVER THE NUMBER OF INDIVIDUALS
LIVING IN THE HOUSEHOLD. PERHAPS OVER THE
AMOUNT OF THEIR INCOME. THE AMOUNT OF THE
RENT THAT SHOULD BE CHARGED. THEY HAVE AT
LEAST 30 DAYS TO TRY TO RESOLVE THAT
PROBLEM, EXCUSE ME, THAT THEY HAVE, WITH
SECTION 8, BEFORE THE MONEY TO THEIR
LANDLORD IS CUT OFF. BECAUSE YOU BETTER
BELIEVE, AS SOON AS THE MONEY IS CUT OFF TO
THE LANDLORD, ON THE 31ST DAY, THAT LAND-
LORD HAS THE EVICTION NOTICE COMING.
NOW THE TENANT IS ON A VERY FAST TRACK
TOWARD EVICTION. UNDER PENNSYLVANIA PRO-
CEDURES, IT CAN OCCUR IN ABOUT 35 DAYS AFTER
THE FILING OF A LANDLORD TENANT COMPLAINT
UNTIL YOU ARE ON THE STREET, THAT’S ONE
REASON THE 30 DAY PROVISION IS IMPORTANT.
WE ALREADY DISCUSSED THE 10 DAYS AD-
VANCED NOTICE OF THE HEARING.
57a
THE CONSENT DECREE REQUIRES THAT THE
NOTICE OF THE HEARING INFORM THE TENANT
ABOUT HER RIGHT TO DISCOVERY OF DOCUMENTS,
ABOUT HER RIGHT TO BE REPRESENTED. DIS-
COVERY OF DOCUMENTS, I DON’T HAVE TO TELL
YOUR HONOR HOW IMPORTANT THAT IS. |
SO, SURE, THE RIGHT IS THERE, IF THE TENANT
DOESN’T KNOW ABOUT IT, IT WILL BE WORTHLESS
TO HER.
MS. FRENCH: DISCOVERY OF DOCUMENTS IS NOT
A RIGHT—
MR. BROOKS: THERE’S A DISTINCTION, THE REGS
REQUIRE DISCOVERY OF DOCUMENTS, THEY DON’T
REQUIRE A NOTICE OF A HEARING TELLING THE
TENANT ABOUT THEIR RIGHTS. UNLESS THAT
TENANT HAPPENS TO GET INTO CLS IN TIME, WE
WILL NEVER KNOW ABOUT IT. IT IS A RIGHT THEY
DON’T KNOW, IT IS USELESS TO THEM. ON THE FLIP
SIDE, I HAVE TO SAY HOW BURDENSOME IS IT TO
PUT THAT IN THE NOTICE? IT IS AN EXTRA SEN-
TENCE, IF THAT. WHERE IS THE PROBLEM HERE.
BUT, THAT’S ANOTHER EXAMPLE OF AN IM-
-PORTANT SUPPLEMENTAL PROVISION OF THIS
CONSENT DECREE THAT WOULD BE LOST IF WE
FELL BACK ON THE REGULATIONS.
THE COURT: WHY DON’T YOU PUT IT IN THE
NOTICE?
MS. FRENCH: WE CERTAINLY WILL, YOUR HONOR.
MR. BROOKS: PRESENTLY, IT IS, YOUR HONOR. |
IT IS IN THERE BECAUSE THE CONSENT DECREE
REQUIRES IT. IF THE CONSENT DECREE—
THE COURT: I DON’T KNOW WHAT YOU MEAN.
58a
YOU ARE SAYING IT IS IN THERE BY IMPLI-
CATION BECAUSE—WHY IF IT IS EXPRESSLY IN THE
REGULATIONS AND IT GOES IN THE NOTICE, HOW
ARE YOU HURT.
MR. BROOKS: THE REGULATIONS DO NOT RE-
QUIRE THEM TO STATE IN THE ADVANCED
HEARING NOTICE THAT THE TENANT IS ENTITLED
TO LOOK AT THE DOCUMENTS PHA WILL USE
AGAINST HIM BEFORE THE HEARING.
SO, YES, IF THE TENANT GETS INTO OUR OFFICE
AND WE TELL THEM, YES, YOU HAVE THE RIGHT
TO LOOK AT THE DOCUMENTS, SOME POLICE
REPORT FOR EXAMPLE OR SOME INCOME THEY
SUPPOSEDLY FAILED TO VERIFY, SURE, IF THEY
GET TO CLS, THEY KNOW ABOUT THE RIGHT, IT IS
USABLE. MOST TENANTS DON’T GET TO US BEFORE
THE HEARING, YOUR HONOR.
MS. FRENCH: YOUR HONOR, COUNSEL IS MIS-
CHARACTERIZING THE REGULATIONS. THE REGU-
LATIONS SAY THAT IF THE HOUSING AUTHORITY
INTENDS TO USE ANY DOCUMENTS AT THE
HEARING, THAT THEY HAVE TO SHOW THEM TO
THE TENANT FIRST. IF THEY DON’T SHOW THEM TO
THE TENANTS IN ADVANCE OF THE HEARING, THEY
CAN’T USE THOSE DOCUMENTS AT THE HEARING.
SO, EVEN THOUGH THE WORDING, THE SEMAN-
TICS OF THE REGULATION MAY BE DIFFERENT
THAN IN THE CONSENT DECREE, THE PURPOSE IS
THE SAME. WE HAVE TO SHOW THE DOCUMENTS
TO THE TENANTS BEFORE THE HEARING UNDER
THE REGULATIONS OR BE PRECLUDED FROM USING
THEM, SIMILAR TO USING DOCUMENTS AT A TRIAL
IN FEDERAL COURT.
59a
MR. BROOKS: THE DIFFERENCE IS, YOUR HONOR,
FIRST OF ALL THERE’S NOTHING IN THE REGU-
LATIONS THAT PRECLUDES PHA FROM USING
DOCUMENTS, IF THE TENANT DIDN’T REQUEST TO
USE THEM IN ADVANCE.
SECONDLY, AS COUNSEL WELL KNOWS, THERE’S
A DIFFERENCE OF SEEING A DOCUMENT AT THE
TIME OF THE HEARING AND SEEING IT IN ADVANCE
OF THE HEARING.
UNLESS THE NOTICE TELLS THEM YOU CAN SEE
IT IN ADVANCE OF THE HEARING, THEY WILL NOT
KNOW THAT.
THESE ARE NOT SOPHISTICATED LITIGANTS.
THEY DON’T HAVE THE REGS. THAT’S WHY IT IS IN
THE NOTICE AND IT IS IMPORTANT TO BE IN THE
NOTICE.
THE COURT: IF THEY DIDN’T COME TO CLS. IF
THEY COME TO CLS, THEY KNOW.
MR. BROOKS: THE CONSENT DECREE RELIEVED
PHA OF THE SIMPLE OBLIGATION OF TELLING
THEM 10 DAYS IN ADVANCE, YOU GOT A HEARING,
BEFORE THE HEARING YOU CAN SEE THE DOCU-
MENTS.
MS. FRENCH: YOUR HONOR, WHAT COUNSEL HAS
ILLUSTRATED, THAT ANY DIFFERENCE BETWEEN
THE DECREE AND THE REGULATIONS ARE AT BEST
MINOR.
IN FACT, THE DECREE ITSELF CONTAINS AN
EXPRESS PARAGRAPH, THAT SAYS SHOULD THE
UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT PROMULGATE REGULA-
TIONS WHICH REQUIRE PHA TO PERFORM ACTS
INCONSISTENT WITH THE STIPULATION OR WHICH
60a
PROHIBIT PHA FROM PERFORMING ACTS CONSIS-
TENT WITH THE STIPULATION SUCH REGULATIONS
SHALL GOVERN.
SO THE CONSENT DECREE ITSELF SAYS, IF THE
REGULATIONS ARE INCONSISTENT WITH THE
DECREE, THE REGULATIONS PREVAIL. THAT’S
WHAT WE ARE ASKING FOR THE COURT TO DO
HERE TODAY.
THE CONSENT DECREE FURTHER SAYS: IN THE
EVENT SUCH REGULATIONS ARE PROMULGATED,
EITHER PARTY MAY FILE AN APPROPRIATE PETI-
TION TO MODIFY THIS DECREE. AND VACATING IS
A FORM OF MODIFICATION OF A DECREE AND 20
YEARS LATER WE ARE HERE. THAT’S WHAT WE
ARE ASKING FOR, YOUR HONOR.
MR. BROOKS: YOUR HONOR, THESE PROVISIONS
DO NOT CONFLICT WITH THE DECREE. THE
REGULATIONS DO NOT PROHIBIT PHA FROM
GIVING 10 DAYS NOTICE FOR EXAMPLE. THEY
DON’T PROHIBIT PHA FROM DOING WHAT THE
CONSENT DECREE REQUIRES, WHICH IS TO GIVE
THE TENANT EXTRA NOTICE OF THESE IMPORTANT
RIGHTS, LIKE THE RIGHT TO-SEE DOCUMENTS.
IT IS IRONIC, PHA SHOULD TURN TO PARAGRAPH
13 TO TRY TO SUPPORT THEIR CASE BECAUSE IT
UNDERMINES THEIR CASE.
PARAGRAPH 13 WAS OBVIOUSLY PUT IN THERE
BECAUSE PHA, WHEN THEY WERE NEGOTIATING
THE DECREE WAS AWARE THE REGULATIONS
WERE COMING. THEY CHOSE TO SETTLE THIS CASE
AND SETTLE IT IN A MANNER—
THE COURT: SUBJECT TO THE REGULATIONS.
MR. BROOKS: EXCUSE ME?
6la
THE COURT: YOU SETTLED IT SUBJECT TO THE
SUPREMACY OF THE REGULATION.
MR. BROOKS: CORRECT, YOUR HONOR. IF THERE
WAS ANYTHING IN THE REGULATION WHICH
FORBADE PHA FROM DOING IT, SOMETHING THAT
THE CONSENT DECREE REQUIRES OR IF THERE WAS
ANYTHING IN THE REGULATION THAT REQUIRED
PHA TO DO SOMETHING THAT THE CONSENT DE-
CREE DIDN’T REQUIRE, THEN THEY SHOULD FILE A
MOTION BUT THERE’S NOTHING—THERE’S NO
CONFLICT WHICH IS BETWEEN THE REGULATION
AND THE CONSENT DECREE. THE CONSENT DE-
CREE PROVIDES EXTRA PROTECTIONS. IT DOESN’T
CONFLICT.
GETTING BACK TO THE EXTRA PROTECTIONS. I
MEAN EVERY ONE OF THEM IS SIGNIFICANT. IN
SOME CASES, FOR EXAMPLE, G ON PAGE 17, THE
DECREE UNLIKE THE REGULATIONS REQUIRES
THE HEARING DECISION BRIEFLY MENTION THE
TENANT’S RIGHT TO APPEAL. AND CONSISTENT
WITH THE CONSENT DECREE, THE DECISIONS THAT
WE HAVE SEEN IN RECENT MONTHS AND RECENT
YEARS DO THAT, THAT’S AN IMPORTANT RIGHT
THAT THE TENANTS HAVE.
MANY TIMES THEY GO INTO THESE HEARINGS
UNPREPARED FOR THE SERIOUSNESS OF THE
SITUATION AND THE LEGAL COMPLEXITIES THAT
CAN BE INVOLVED AND THEY DON’T REALIZE
UNTIL AFTER THEY LOST THIS HEARING, THAT
THEY REALLY SHOULD GET LEGAL HELP. PROB-
ABLY HALF OF OUR SECTION 8 TERMINATION
CASES COME TO US AFTER THE INITIAL HEARING
WHEN THE TENANT SAYS, LOOK, I GOT THIS
DECISION, IT SAYS HERE I CAN APPEAL. HOW DO I
APPEAL?
62a
SO, AGAIN, THE SIMPLE ADDITION OF A SEN-
TENCE TO A HEARING DECISION PROVIDES AN
IMPORTANT BENEFIT TO THE TENANTS AND
THERE’S NOTHING IN THE HUD REGULATIONS
THAT SAYS THERE’S ANYTHING WRONG ABOUT
PUTTING IT IN THERE NOR DOES IT BURDEN PHA
ANYTHING PUTTING SOMETHING IN A WORD
PROCESSOR.
THE COURT: YOU SAY IT IS PUT IN THERE, YOU
SAY BECAUSE OF THE DECREE.
MR. BROOKS: I KNOW OF NO OTHER REASON
WHY IT WOULD BE PUT IN THERE. I DON’T KNOW
WHY PHA WOULD BE FIGHTING SO HARD TO
REMOVE, TO VACATE THE DECREE IF THEY DIDN’T
WANT THE FREEDOM TO CHANGE THESE KINDS OF
THINGS. THEY HAVE NOT POINTED TO ONE SINGLE
PROBLEM THAT THIS DECREE CREATES.
THE COURT: ALL RIGHT.
LISTEN, I THINK I KNOW—I UNDERSTAND THE
PROBLEM.
AND, I UNDERSTAND THAT, YOU KNOW, YOU ARE
LOOKING AT IT FROM THE STANDPOINT THAT
EVEN THOUGH NOTHING HAS HAPPENED UP TO
NOW—WELL, NOTHING HAS HAPPENED THAT YOU
CAN POINT TO, BUT YOU ASSUME THAT THINGS
ARE GOING WELL BECAUSE OF THE DECREE,
WHICH MAY OR MAY NOT BE THE CASE. YOU ARE
TELLING ME THAT, BUT IT MAY OR MAY NOT BE
THE CASE.
BUT, TO SAY IT IS DOING WELL, THEY ARE
PROBABLY GOING WELL. THERE’S PROBABLY NOT
A HECK OF A DIFFERENCE OF THE PHILOSOPHY OF
PHA AND CLS RIGHT NOW. I CAN UNDERSTAND
THAT THERE CAN BE BUT THERE PROBABLY ISN’T.
63a
YOU ARE TELLING ME THAT. I UNDERSTAND
THAT AND I UNDERSTAND YOUR FEAR THAT PHA
WILL GO HOG WILD IF THERE IS NOT A DECREE
THAT THEY THINK THEY CAN ENFORCE.
BY THE SAME TOKEN, IF IT IS REALLY A
VIOLATION OF A RIGHT THAT SHOULD BE PRO-
TECTED, THERE’S NO REASON WHY YOU CAN’T
COME TO COURT TO GET PROTECTION.
MR. BROOKS: BUT, AGAIN, YOUR HONOR—
THE COURT: GET PROTECTION THAT WOULD
PROHIBIT PHA FROM DOING IT IN THE FUTURE.
MR. BROOKS: A NUMBER OF THESE PROVISIONS
OF THE DECREE GO BEYOND WHAT THE REGU-
LATIONS REQUIRE. WE WOULD BE VERY HARD
PRESSED TO WIN THEM AGAIN. THEY ARE VALU-
ABLE. THEY DON’T CAUSE PHA ANY PROBLEMS. TO
LOSE THEM FOR NO APPARENT REASON WOULD BE
A MATTER OF GREAT CONCERN TO US, YOUR
HONOR.
- THE COURT: ALL RIGHT.
I UNDERSTAND THAT YOU MIGHT NOT WIN ON
THE ISSUES THAT YOU GOT CONSENT TO.
INITIALLY.
I TOLD YOU THAT I PROBABLY AM LEANING
TOWARD VACATING, BUT I HAVEN’T VACATED
YET.
I WILL RECONSIDER CAREFULLY THE ARGU-
MENTS OF BOTH COUNSEL IN REGARD TO IT.
IN THE MEANTIME, THERE’S NO REASON WHY
COUNSEL CAN’T COME TO SOME TYPE OF A RES-
OLUTION THEMSELVES. SOME OF THESE THINGS
THAT YOU SAY DON’T NECESSARILY APPEAR,
COULD APPEAR JUST AS EASILY AS NOT.
64a
MR. BROOKS: YOUR HONOR, AGAIN, I DON’T
KNOW WHAT THERE IS TO RESOLVE. I DON’T SEE
PHA—
THE COURT: BECAUSE THERE NEVER WAS A
PROBLEM. IF THERE WAS A PROBLEM, YOU WOULD
HAVE BEEN HERE.
MR. BROOKS: EXCUSE ME.
THE COURT: SEE, CLS IS NOT BASHFUL ABOUT
COMING TO COURT WHEN THERE IS A VIOLATION
OF A CONSENT DECREE. THE REASON YOU
HAVEN’T BEEN HERE, THERE IS NO SIGNIFICANT
PROBLEM THAT I UNDERSTAND.
THERE ARE HYPOTHETICALS THAT YOU CAN
CONJURE UP, THAT WOULD POSSIBLY BE A
PROBLEM, BUT THERE HASN’T BEEN A PROBLEM.
MR. BROOKS: WE ARE NOT CONJURING HYPO-
THETICALS, THEY ARE. I AM TRYING TO DESCRIBE
AND CONTINUE JF IT IS FRUITFUL TO DESCRIBE
REAL EVERYDAY SITUATIONS INVOLVING OUR
CLIENTS, WHERE THESE RIGHTS ARE IMPORTANT.
THE RIGHT OF NOTICE TO APPEAL. THE RIGHT TO
ADVANCED NOTICE OF THE RIGHT TO DISCOVER
DOCUMENTS, TO THE RIGHT TO THE 10 DAYS
NOTICE AS OPPOSED TO FIVE OR SEVEN DAYS
NOTICE OF A HEARING DATE. EVERY ONE OF THESE
IS IMPORTANT TO SIGNIFICANT NUMBERS OF OUR
CLIENTS. AND, THESE ARE NOT HYPOTHETICAL
PROBLEMS.
MS. FRENCH: WE ARE NOT DISAGREEING THAT
THOSE ARE IMPORTANT THINGS TO YOUR CLIENTS.
WE ARE SAYING—
MR. BROOKS: THEY ARE VALUABLE.
65a
MS. FRENCH: PHA WILL ABIDE BY THE
REGULATIONS.
MR. BROOKS: THEY ARE NOT IN THE REGS, YOUR
HONOR. IF THEY ARE LEFT TO THE REGS, THEY
WOULD BE FREE TO LEAVE THEM OUT. WE WOULD
BE DELIGHTED TO WORK WITH STAFF COUNSEL AT
PHA WHO ARE REASONABLE NOWADAYS. WE
HAVE NOT ALWAYS ENJOYED THAT. WE WOULD
HAVE NO ASSURANCE OF ENJOYING THAT IN THE
FUTUR, WITHOUT THIS CONSENT DECREE.
THE COURT: YOU THINK—
MR. BROOKS: FRANKLY, IT HASN’T ALWAYS
BEEN THAT WAY.
THE COURT: YOU THINK YOU BARGAINED FOR
PERPETUAL PROTECTION FROM CHANGE OF
PHILOSOPHY BY COUNSEL?
MR. BROOKS: I AM NOT SURE THAT THE ISSUES
INVOLVED 10 DAYS! NOTICE VERSUS SEVEN DAYS
NOTICE VERSUS FIVE DAYS NOTICE ARE EVER
CHANGING, YOUR HONOR.
IF ANYTHING, THE FACT THAT SO MANY MORE
OF OUR CLIENTS ARE WORKING NOWADAYS, HAVE
' CHILDREN IN CHILD CARE, MAKES THE 10 DAY
NOTICE BEFORE THE HEARING MORE IMPORTANT
THAN EVER BEFORE.
TWENTY YEARS AGO, A VAST MAJORITY OF —
SECTION 8 PEOPLE WERE ON WELFARE. THEY
COULD SHOW UP AT A HEARING WITH THEIR KIDS,
IF NECESSARY, WITH FIVE DAYS NOTICE. NOW,
MOST OF THESE PEOPLE—MANY, PROBABLY MOST
ARE WORKING AT LEAST PART-TIME, HAVE KIDS IN
CHILD CARE, THEY NEED THIS KIND OF NOTICE.
66a
THESE ARE PERRENIAL ISSUES, YOUR HONOR. IN
THE ABSENCE OF ANY REAL PROBLEM, I SEE NO
REASON TO HAMSTRING THE PLAINTIFFS BY SAY-
ING, WELL, YOU CAN ALWAYS BRING A LAWSUIT,
BUT YOU PROBABLY WOULD HAVE A HARD TIME
WINNING AND IN THE MEANTIME, YOU KNOW,
THAT WAS THE BARGAIN, BUT YOU HAVE GOTTEN
A GOOD RUN. IT IS ALL OVER NOW.
IF THAT WAS PART OF THE BARGAIN, THERE
SHOULD BE A SUNSET IN THIS THING. IF THEY
PROPOSED A SUNSET, WE MIGHT HAVE TAKEN IT.
WE MIGHT HAVE NOT. WHO KNOWS WHAT WOULD
HAPPEN BACK IN 1982 OR ‘3, PERHAPS YOUR
HONOR.
CERTAINLY—
THE COURT: TWENTY-THREE YEARS AGO, IF
THEY PROPOSED A SUNSET, YOU WOULD HAVE
TAKEN IT?
MR. GOULD: IF I MAY YOUR HONOR, I AM
GEORGE GOULD.
I WAS COUNSEL WHO NEGOTIATED THE SET-
TLEMENT IN THIS CASE MANY, MANY YEARS AGO.
AND, WE GAVE UP A FAIR AMOUNT. WE HAD A
VERY GOOD DAMAGE CLAIM FOR DENYING
TENANTS DUE PROCESS.
AT THE TIME THE—I SPECIFICALLY REMEMBER
THE TIME THAT THE SETTLEMENT WAS ACCEPTED,
THERE WERE PROPOSED REGS OUT THERE, FAIRLY
GENERAL AND SOMEWHAT SIMILAR TO WHAT HUD
CAME OUT WITH. THE FINAL REGS IN TURN FOR US
GIVING UP VARIOUS CLAIMS, INCLUDING DAM-
AGES, WE NEGOTIATED AN AGREEMENT WITH PHA,
WHICH PUT SOME MEAT ON THE SETTLEMENT.
67a
BUT, MR. BROOKS HAD TALKED ABOUT SPECI-
FYING WHAT A REASONABLE NOTICE IS, TEN DAYS.
TALKING ABOUT MAKING SURE THAT TENANTS
KNEW OF THEIR RIGHTS. THE RIGHT TO DISCOV-
ERY. THE RIGHT TO APPEAL AND THINGS LIKE
THAT.
AND, I GUESS WHAT CONCERNS US IN THE
FUTURE, THAT IF WE SEE THAT WE WILL ENTER
INTO SETTLEMENTS WITH PHA, THEN FIVE, 10, 15, 20
YEARS LATER THEY WILL DISAPPEAR, WE WILL BE
RELUCTANT TO DO SETTLEMENTS SIMPLY BE-
CAUSE WE KNOW WE ARE GIVING THINGS UP.
THE COURT: YOU WILL NEVER GET A SETTLE-
MENT, IF YOU TELL SOMEONE THEY ARE BINDING
ALL ADMINISTRATIONS FOREVER.
MR. GOULD: THE POINT IS— -
THE COURT: BASICALLY PEOPLE THAT ARE THEN
TALKING TO YOU ABOUT SETTLEMENT, THEY ARE
THINKING ABOUT REASONABLE TIMES. I THINK
YOU WERE TOO AT THAT TIME. IF ANYBODY HAD
TOLD YOU THAT YOU WOULD BE IN COURT NOW 20
SOME YEARS LATER ARGUING THIS QUESTION, ~~
WOULD HAVE—
MR. GOULD: I THINK THE SETTLEMENT, THE WAY
THAT IT WAS SET UP, AND OUR EXPERIENCE WITH
SETTLEMENTS; YES, ADMINISTRATIONS CHANGE.
AND, YES, PROCESSES CHANGE. YES, PROBLEMS
CHANGE.
I THINK OUR POINT IS THAT IN THIS PARTICULAR
CASE, IF PHA HAS PARTICULAR PROBLEMS WITH THE
SETTLEMENT, THEY CLEARLY ARE FREE TO COME
TO US; IF WE CAN'T AGREE, COME TO COURT, THIS
IS NOT RIGHT ANYMORE, THIS SETTLEMENT LOST
68a
ITS VITALITY IN THIS PARTICULAR AREA. WE NEED
TO CHANGE IT. TIMES HAVE CHANGED, BUT THAT'S
NOT WHAT THEY ARE DOING. THEY WANT TO
THROW OUT EVERYTHING.
WE AGREE THAT A SETTLEMENT ENTERED 20, 25
YEARS AGO MAY NEED CHANGE. IT MAY NEED
TO BE TWEAKED. SOMETHINGS MAY NEED TO
BE CHANGED. THE SECTION 8 PROGRAM MAY
CHANGE, A LOT OF THINGS MAY CHANGE.
THERE'S A WHOLE PROCESS IN MANY OF OUR
OTHER CASES, WE DO A LOT OF CASES—
THE COURT: THE WHOLE STATUS OF YOUR
SECTION 8 TENANTS HAVE CHANGED.
MR. GOULD: EXCUSE ME?
THE COURT: THE ARGUMENTS, I HEARD, THE
WHOLE STATUS OF YOUR SECTION 8 TENANTS
HAVE CHANGED FROM THOSE THAT WERE ALMOST
ALL ON PUBLIC ASSISTANCE TO THOSE THAT ARE
NOW EMPLOYED.
MR. GOULD: MANY MORE ARE EMPLOYED. |
THE COURT: THINGS DO CHANGE. I COULDN’T
IMAGINE YOUR HAVING GOTTEN AN AGREEMENT,
IF YOU TRIED TO EXPRESSLY PUT IN THERE,
FOREVER.
MR. GOULD: THE POINT IS THAT THERE ARE DUE
PROCESS REQUIREMENTS THAT ARE NEEDED.
THE COURT: THE DUE PROCESS REQUIREMENTS
WILL BE THERE, WHETHER YOU GET THE CONSENT
DECREE OR NOT.
MR. GOULD: THAT IS CORRECT. WHAT WE GAVE
UP AT THE TIME OF THE SETTLEMENT, WE THINK IT
IS VERY IMPORTANT IS VARIOUS THINGS THAT WE
69a
COULD HAVE SUED PHA AND GOT—GAVE THEM UP
IN RETURN FOR KNOWING WE HAD THE ADDED
PROTECTIONS THAT TENANTS WILL BE PROTECTED
AS MR. BROOKS SAID.
OUR CONCERN NOW IS THAT AFTER MANY
YEARS, AFTER PHA AND WE HAVE HAD PROBLEMS,
I THINK IT IS VERY IMPORTANT FOR THE COURT,
THAT WE HAVE HAD PROBLEMS IN INDIVIDUAL
CASES. GENERALLY WHAT WE DO IS WORK IT OUT
WITH PHA. IF THE TENANT DOESN’T GET THE
PROPER NOTICE OR IF THE SECTION 8 OFFICE DOES
SOMETHING IMPROPERLY, WE WILL WORK IT OUT.
OUR FIRST STEP IS NOT TO GO TO THE OFFICE—
NOT TO GO RIGHT TO COURT.
INRONICALLY IN THIS CASE, PHA NEVER CAME
TO US. THEY WENT RIGHT TO COURT. WE NEVER
HAD A LETTER, NEVER GOT ANYTHING SAYING,
YOU KNOW, WE ARE OPERATING UNDER THE
SECTION 8 PROGRAM. WE ARE HAVING THE FOL-
LOWING PROBLEMS. THE ONLY THING THAT
WE EVER GOT WAS A MOTION TO VACATE THE
DECREE.
WE THINK THAT IF PHA HAS PROBLEMS, WHAT
THEY NEED TO DO IS SPECIFY WHAT THE
PROBLEMS ARE WITH THE DECREE, WHY THEY ARE
NOT MANAGEABLE, WHY THEY ARE NOT WORK-
ABLE AND NEGOTIATE WITH US AND IF WE CAN’T,
PRESENT THAT TO THE COURT. THEY HAVEN’T
PRESENTED ANYTHING, WHICH SAYS THAT THIS
DECREE IS NOT WORKABLE.
MS. FRENCH: YOUR HONOR, IF I MAY, THERE IS
SOMETHING, I TRIED HARD NOT TO INTERRUPT.
THE COURT: YOU CERTAINLY MAY.
70a
MS. FRENCH: WHAT COMMUNITY LEGAL SER-
VICES IS SUGGESTING THAT A DEAL IS A DEAL. A
CONSENT DECREE, IT SHOULD GO ON FOREVER—
THE COURT: NO. IT SUGGESTS THAT IT BAR-
GAINED FOR THESE.
MS. FRENCH: CORRECT.
THE COURT: IT GAVE UP SOMETHING IN RETURN
FOR ANTICIPATING THAT IT WAS GOING ON AT
LEAST FOR AN INDEFINITE PERIOD IN THE FUTURE.
MS. FRENCH: CORRECT. WHAT IN FACT THEY
BARGAINED FOR, IF REGULATIONS WERE EN-
ACTED, THOSE REGULATIONS WOULD CONTROL.
THAT’S EXPRESSLY SET FORTH IN PARAGRAPH 13
OF THE DECREE ITSELF.
MOREOVER, WHAT THEY ARE ARGUING, IS THAT
INSTITUTIONAL REFORM—CONSENT DECREES
SHOULD GO ON FOREVER. THAT’S DIRECTLY
CONTRARY TO WHAT THE UNITED STATES
SUPREME COURT SAID IN THE FREW CASE LAST
YEAR AND THE THIRD CIRCUIT SAID IN HARRIS
VERSUS CITY OF PHILADELPHIA AND IN OTHER
CASES. ONCE THE PROBLEM IS FIXED, CONTROL
AND DECISION-MAKING SHOULD BE RETURNED TO
THE STATE OFFICIALS IN CHARGE OF THE AGENCY
IN QUESTION.
HERE, THEY CONCEDED THAT THERE REALLY
HAVEN’T BEEN ANY PROBLEMS IN THE LAST 20
YEARS. THEY HAVE NOT FILED ANY MOTIONS. THE
PROBLEM THAT WAS INITIALLY SOUGHT TO BE
CURED BY THIS CONSENT DECREE WAS IN FACT
CURED AT THE TIME IT WAS ENTERED INTO. THERE
WERE NO REGULATIONS THAT HAD BINDING
LEGAL EFFECT A YEAR AND A HALF LATER. HUD
Tla
PUBLISHED THOSE REGULATIONS AND THEY TOOK
EFFECT, AND FOR A YEAR AND A HALF WHERE
THERE WERE NO REGULATIONS, THIS CONSENT
DECREE CONTROLLED.
SINCE THEN, THE CONSENT DECREE HAS RE-
MAINED IN EFFECT BUT THE DECREE ITSELF PRO-
VIDES THAT IF REGS ARE ENACTED, THE REGS
SHOULD CONTROL. THAT’S WHAT WE ARE ASKING
FOR.
THIS COURT AND THIS INSTITUTIONAL REFORM
LITIGATION AGAINST PHA, BECAUSE THERE’S NO
LONGER ANY NEED FOR IT, IT HAS BEEN A
SIGNIFICANT CHANGE.
THE COURT: IF YOU HAVE REGS THAT SAY
REASONABLE NOTICE?
MS. FRENCH: THAT IS CORRECT.
THE COURT: THE CONSENT DECREE THAT SAYS
10 DAYS NOTICE, DOES THAT MEAN THAT THE 10
DAYS IS GOOD MINIMUM NOTICE?
MS. FRENCH: WELL, IT SEEMS TO ME THAT SINCE
THIS COURT HELD THAT 10 DAYS IS REASONABLE
NOTICE, IT WOULD BE WISE FOR PHA TO CONTINUE
TO GIVE 10 DAYS, IT HAS THE LEGAL IMPRIMATUR
OF REASONABLE NOTICE. REASONABLE IS THE
TERM USED UNDER THE REGULATIONS.
MR. BROOKS: YOUR HONOR, I DON’T WANT TO
INTERRUPT THE COLLOQUY. IF I CAN MAKE A
COUPLE OF POINTS.
WITH RESPECT TO FRU, I’LL READ THE LAST TWO
SENTENCES OF THE COURT’S OPINION. IF THE
STATE ESTABLISHES REASON TO MODIFY THE
DECREE, THIS IS THE FRU CASE, INSTITUTIONAL
72a
REFORM, THE COURT SHOULD MAKE THE NEC-
ESSARY CHANGES.
THE COURT: THEY SAY IF THEY HAVE NOT, YOU
ANTICIPATED IN THE ADOPTION OF REGULA-
TIONS, THAT THE REGULATIONS WOULD CONTROL.
IF THE REGULATIONS CONTROL, THERE’S NO
REASON TO CONTINUE THE CONSENT DECREE.
MR. BROOKS: I DON’T THINK WITH ALL DUE
RESPECT, I DON’T THINK THAT’S WHAT THE FREW
COURT WAS TALKING ABOUT.
THE COURT: I THINK THAT’S THE ARGUMENT. I
THINK. IF THE REGULATIONS CONTROL, THERE’S
NO REASON TO CONTINUE THE CONSENT DECREE
UNLESS THERE IS SOMETHING IN THE CONSENT
DECREE WHICH IS PERHAPS WIDELY AT VARIANCE
WITH THE REGULATIONS, WHICH CONCEIVABLY
THERE COULD BE. BUT, YOU KNOW, I AM TRYING
TO UNDERSTAND WHAT IT IS.
MR. BROOKS: YOUR HONOR, THE FRU COURT
HELD THE STANDARD IS THAT THE STATE OR IN
THIS CASE PHA MUST ESTABLISH SOME REASON TO
MODIFY THE DECREE, SHOW SOME PROBLEM WITH
THE DECREE.
_ THE COURT: THEY ARE NOT MODIFYING. THEY
WANT TO VACATE IT BECAUSE THERE ARE
REGULATIONS WHICH NOW CONTROL.
MR. BROOKS: BUT, THE POINT I AM TRYING TO—
THE COURT: THEY ARE NOT ASKING TO CHANGE
THE 10 DAYS TO EIGHT DAYS. THEY ARE NOT
ASKING TO CHANGE ANY PROVISION IN THERE TO
SOMETHING LESS THAN WHAT HAS BEEN THE
PRACTICE. THEY ARE NOW SAYING WE HAVE
REGULATIONS NOW WHICH CONTROL ANYWAY,
73a
PURSUANT TO THE DECREE. LET US CONTINUE
WITH THOSE REGULATIONS WITHOUT THE DECREE.
MR. BROOKS: YOUR HONOR, THE REGULATIONS
SIMPLY DO NOT CONTAIN THE RIGHTS THAT I -
HAVE LISTED IN PAGES 16 TO 18. WE ARE-IN TERMS
OF THE OVERALL TEST HERE, I’LL TURN TO A CASE
THAT INVOLVED ANOTHER OLD CONSENT DECREE,
ONE WE LOST, THE BROWN DECREE. I FIND IT
IRONIC THAT PHA TRIES TO RELY ON THIS
BECAUSE THE THIRD CIRCUIT AND I QUOTE THIS
AT PAGE 15 OF OUR REPLY, OUR ANSWER, SPEAK-
ING OF THE BROWN DECREE IN THE REGULATIONS:
OUR REVIEW OF THE FEDERAL STATUTE AND
REGULATIONS PROMULGATED AFTER THE CON-
SENT DECREE WAS ENTERED REVEALS THAT NOT
ONLY DID THEY SIGNIFICANTLY CHANGE THE REL-
EVANT DUE PROCESS LANDSCAPE (ORIGINALLY .
SOUGHT TO BE CURED BY THE CONSENT DECREE)
BUT THAT THEY GAVE BROADER AND MORE
COMPREHENSIVE PROTECTION TO THE PUTATIVE
CLASS MEMBERS THAN HAD BEEN AVAILABLE
UNDER THE DECREE. THUS, THE BROWN DECREE
NO LONGER HAD FORCE OR UTILITY, AND THERE
WAS NO REASON FOR IT TO REMAIN OPERATIVE.
THE TEST HERE, DO THE REGULATIONS COVER
THE SAME AREA, ARE THEY BETTER THAN THE
DECREE? DOES THE DECREE CONTINUE TO OFFER
SOMETHING THAT THE REGS DO NOT?
HERE CLEARLY THIS DECREE OFFERS A NUMBER
OF THINGS WHICH ARE BETTER FOR THE TENANTS.
IT HAS—
THE COURT: IF THEY HAVE 10 DAYS AS THE
MINIMUM RATHER THAN THE REQUIRED NOTICE
STANDARD, THEY WOULD HAVE IMPROVED UPON
THE NOTICE, WOULD THEY NOT?
74a
MR. BROOKS: YOUR HONOR, I FAIL TO UNDER-
STAND WHY THAT IS EVEN A RELEVANT ISSUE
BECAUSE IF PHA DIDN’T WANT TO CHANGE SOME
OF THESE THINGS, WHY IN THE WORLD WOULD
THEY BE IN HERE TO ASK TO VACATE THE DECREE.
MORE PARTICULARLY, WHY WOULDN’T THEY
HAVE SIMPLY COME TO US.
THE COURT: FOR THE SAME REASON EVERY-
THING HAPPENS, YOU GET INQUIRIES FROM
ADMINISTRATIVE OFFICES OR FROM HUD AND SO
FORTH, THEY WANT TO KNOW WHAT’S' THE
VITALITY OF THIS PARTICULAR MATTER, WHICH
HAS BEEN ON YOUR DOCKET SINCE 1900 AND YOU
THEN LOOK AT IT AND SAY, THERE’S NO VITALITY
TO IT. LET ME GET RID OF IT.
I UNDERSTAND THAT PROBLEM.
MR. BROOKS: BUT, THE FIRST PART—EXCUSE ME.
THE FIRST PART OF THAT IS NOT TRUE. THERE IS
VITALITY TO IT. THAT’S EXACTLY WHY THEY
WANT TO GET RID OF IT.
THE COURT: I UNDERSTAND THAT’S YOUR ARGU-
MENT, THAT THERE IS VITALITY TO IT. ’?LL LOOK
AT IT AGAIN.
MR. BROOKS: I FAIL TO SEE WHY AN AGENCY
WOULD BE SEEKING TO GET RID OF A DECREE, IF IT
INTENDS TO CONTINUE DOING EVERYTHING THAT
THE DECREE REQUIRES ANYWAY. IT MAKES NO
SENSE.
THE COURT: I TAKE IT, CLS GETS RID OF A LOT OF
OPERATING PROCEDURES AND SO FORTH THAT
HAVE NO VITALITY.
MR. BROOKS: THIS ONE HAS VITALITY.
ie
THE COURT: IF THEY HAVE MONEY TO HIRE
SOMEONE WITH EXPERTISE IN THAT REGARD
REFORMING THE PROBLEMS, THEY GO ABOUT
REFORMING THE PROCESS.
I MEAN THE QUESTION IS WHETHER IT CON-
TINUES TO HAVE SOME REASON TO HAVE
VITALITY.
MR. BROOKS: EXACTLY.
THE COURT: WHETHER THAT IS SO OR NOT, ILL
LOOK AT IT AGAIN.
MR. BROOKS: THANK YOU, VERY MUCH, YOUR
HONOR.
MS. FRENCH: THANK YOU, YOUR HONOR.
MR. GOULD: THANK YOU, YOUR HONOR.
THE COURT: WE ARE IN RECESS.
(HEARING ADJOURNED AT 12:10 P.M.)
*s * &© &
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.