Reply Brief — Philadelphia Housing Authority Authority v. Henderson (No. 06-1507)

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FILED

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IN THE

Supreme Court of the Gnited States

PHILADELPHIA HOUSING AUTHORITY,

Petitioner,

VANESSA HENDERSON, e/ ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

REPLY TO BRIEF IN OPPOSITION

ALAN C. KESSLER *

SUSAN J. FRENCH

VIRGINIA LYNN HOGBEN

WOLF, BLOCK, SCHORR AND

SOLIS-COHEN LLP

1650 Arch Street, 22nd Floor

Philadelphia, PA 19103-2097

(215) 977-2000

Counsel for Petitioner

* Counsel of Record Philadelphia Housing Authority

August 6, 2007

OBES? PETE TEIN

WILSON-EPES PRINTING CO., INC. = (202) 789-0096 - WASHINGTON, D.C. 20002

TABLE OF CONTENTS

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II.

IT].

Respondents’ Assertion And The Third

Circuit’s Ruling That Consent Decrees Regu-

lating State Agencies Can Continue “Indefi-

nitely,” Without Any Federal Constitutional

Or Statutory Need, Violate This Court’s

Decision In Frew vy. Hawkins And The

Fundamental Principles Of Federalism .............

Respondents’ Claim That The Conflicting

Eleventh Circuit Decision In Hodge Is No

Longer The Law Misinterprets This Court’s

Decision In Rufo And Demonstrates The Need

For Further Clarification By This Court............

Respondents’ Claim That Rufo Requires A

Showing Of An “Onerous” Burden Mischar-

acterizes This Court’s Standards In Rufo For

Modification Of Consent Decrees.............c0e

CONCL USICIIN \scssssevins ances Aniganepaibiorennminasevecess

(1)

TABLE OF AUTHORITIES

CASES Page

Board of Education v. Dowell, 498 U.S. 237

Gig g 2 Reece na SORRHEIF UNIT PS ore U URANO 4

Brown vy. Philadelphia Housing Authority, 350

BF Dek SF CR a, SD avi ait ap in chatanslinsnstnnces

Frew v. Hawkins, 540 U.S. 431 (2004)................ regs The

Hodge v. Department of Housing & Urban

Development, 862 F.2d 859 (11th Cir. 1989)... . 5,6

Lynch v. Sessions, 942 F. Supp. 1419-(N.D. Ala.

New York v. United States, 505 U.S. 144 (1992)... 3, 4

Rizzo v. Goode, 423 U.S. 362 (1976) .............ccccee 7

Rufo v. Inmates of Sulfolk County Jail, 502 U.S.

ey + REUTER MIR LR SE tetera OED ey

CONSTITUTION

Shite Apes g UII. TR dxcccadicincducweinnacreinecuisaeinniasubi 4

REGULATIONS

49 Fed. Reg. 12215 (March 29, 1984)... 7

MISCELLANEOUS

Ross Sandler & David Schoenbrod, Democracy

by Decree: What Happens When Courts Run

Government (Yale Univ. Press 2003)................ 3,4, 5

IN THE

Supreme Court of the Gnited States

No. 06-1507

PHILADELPHIA HOUSING AUTHORITY,

Petitioner,

VANESSA HENDERSON, ef ai.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Third Circuit

REPLY TO BRIEF IN OPPOSITION

Respondents argue in their Brief in Opposition that certio-

rari should not be granted because the Third Circuit’s ruling

was allegedly correct in that this Court’s precedents can

require federal courts to keep consent decrees regulating state

and local governments in place “indefinitely” (Br. in Opp. at

6) for decades, even where the decree is no longer needed

to protect any federal constitutional or statutory rights. That

respondents and the Third Circuit can misread this Court’s

existing precedents this way demonstrates the seriousness of

the issue here and the need for review and clarification by this

Court.

I. Respondents’ Assertion And The Third Circuit’s

Ruling That Consent Decrees Regulating State

Agencies Can Continue “Indefinitely,” Without

Any Federal Constitutional Or Statutory Need,

Violate This Court’s Decision In Frew v. Hawkins

And The Fundamental Principles Of Federalism

Respondents argue that the Third Circuit’s ruling in this

case iS consistent with this Court’s decision in Frew v.

Hawkins, 540 U.S. 431 (2004), because in Frew this Court

required that consent decrees remain in effect until “the

objects of the decree have been attained.” (Br. in Opp. at 5)

(emphasis omitted) (quoting Frew). Respondents contend

that a federal district court may properly be required to

continue to enforce the Consent Decree against a'state agency

“indefinitely,” twenty years after all federal due process need

for the decree ceased to exist, because under paragraph 13 of

the Consent Decree, the “objects of the decree” were alleg-

edly “to provide Tenants with . . . additional benefits indefi-

nitely” (Br. in Opp. at 6) and to provide specific “enduring

protections.” (Br. in Opp. at 2) (emphasis omitted).

That reasoning is contrary to both this Court’s ruling in

Frew and the basic principles of federalism. In Frew this

Court did not suggest that consent decrees may regulate state

and local government for decades, regardless of the absence

of any need for court regulation to protect any federal right,

simply because there was an alleged agreement to provide

additional benefits “indefinitely.” To the contrary, this Court

made clear in Frew that the “objects of the decree,” 540 U.S.

at 442, must be viewed in light of and limited by the federal

rights which the consent decree was designed to address.

This Court specifically held in Frew that:

“fijf not limited to reasonable and necessary imple-

mentations of federal law, remedies outlined in consent

decrees involving state officeholders may improperly

deprive future officials of their designated legislative

and executive powers.”

Frew, 540 U.S. at 441 (emphasis added).

The Consent Decree in this case is not unusual — it did not

stipulate to any duration, indefinite or definite. Indeed, the

district court judge who entered the Consent Decree found

that there was no agreement that the procedures it provided

would remain in place regardless of need or beyond a reason-

able time. (App. 66a-68a). The Third Circuit’s reasoning

that the federal court regulation must continue regardless of

need therefore is not limited to this particular decree. Rather,

such a rationale could be applied to justify continued and un-

necessary court interference with state agencies and officials

in countless situations.

Moreover, consent by officials of the Philadelphia Housing

Authority (“PHA”) holding office in 1982 cannot support

long-term regulation of their successor officials 20 years later

without any federal need. The limitations which the Constitu-

tion imposes on federal regulation of states and state agencies

cannot be wholly disregarded on the basis of consent. New

York v. United States, 505 U.S. 144, 181-83 (1992).

“{D]eparture from the constitutional plan cannot be

ratified by the ‘consent’ of state officials.

* * *

The interests of public officials . . . may not coincide

with the Constitution’s intergovernmental allocation of

authority.”

New York v. United States, 505 U.S. at 182-83. Future gov-

ernment policy is not a matter which can be freely contracted

away to private parties. See, e.g., Ross Sandler & David

Schoenbrod, Democracy by Decree: What Happens When

Courts Run Government 172-73 (Yale Univ. Press 2003).

“The principle that drives representative democracy is that

voters should have the power to pressure incumbents to

change policy or replace them with successors who will.” /d.

at 172.

Unchecked federal court regulation of state agencies also

violates the Tenth Amendment’s limitations, where, as here, a

federal agency has promulgated subsequent regulations that

provide protection from the same harms that the consent

decree was designed to address, e.g., protection of Section 8

recipients’ due process rights. “The Constitution’s division

of power among the three branches is violated where one

branch invades the territory of another, whether or not the

encroached-upon branch approves the encroachment.” New

York v. United States, 505 U.S. at 182. Thus, the sort of in-

terminable “indefinite” court regulation of state officials who

administer federally-regulated programs as advocated by the

Third Circuit and by the respondents in their brief offends the

Tenth Amendment as well as the principles of federalism.

The permissible “objects of the decree,” to protect federal

due process rights, were fully attained long ago. The district

court judge who originally entered this Consent Decree held

that in light of the subsequent federal regulations, which pro-

vided due process protections, there is no longer a need for a

court decree to protect any federal right. (App. 12a, 52a).

Neither the Third Circuit nor respondents have disputed this

fundamental fact. Accordingly, the judgment of the Third

Circuit, which requires continued federal judicial regulation

of a state agency “for the indefinite future,” is incompatible

with “the allocation of power within our federal system” and

must be reversed. Board of Education v. Dowell, 498 US.

237, 248, 249 (1991).

II. Respondents’ Claim That The Conflicting

Eleventh Circuit Decision In Hodge Is No Longer

The Law Misinterprets This Court’s Decision In

Rufo And Demonstrates The Need For Further

Clarification By This Court

Respondents make a brief one-sentence attempt to distin-

guish the Eleventh Circuit’s decision in Hodge v. Department

of Housing & Urban Development, 862 F.2d 859 (11th Cir.

1989), on facts irrelevant to the Hodge court’s reasoning.

Respondents point to nothing in the Hodge opinion that

turned on whether future superseding federal regulations were

unanticipated or that turned on the specific language of the

_ consent decree.

Recognizing that the Third Circuit’s decision here cannot

be reconciled with Hodge, respondents argue primarily that

there is no conflict because Hodge was decided before this

Court’s decision in Rufo v. Inmates of Sulfolk County Jail,

$02 U.S. 367 (1992), and is allegedly therefore no longer

good law. (Br. in Opp. at 11-13). That argument misreads

Rufo. In Rufo, this Court did not narrow the grounds for

modification which had existed under prior law; it broadened

the grounds for modification of consent decrees regulating

government agencies and made the standards more flexible.

502 U.S. at 378-83. This Court directed in Rufo that courts

“should exercise flexibility in considering requests for modi-

fication of an institutional reform consent decree.” 502 U.S.

at 383. The fact that Hodge predates Rufo therefore does not

diminish its validity.

Unfortunately, however, respondents’ misunderstanding and

cramped reading of Rufo is not unique. Language from Rufo

has been used by parties and the lower courts to require

lengthy hearings and erect hurdles to modification and vacatur

of outdated and unnecessary consent decrees. See generally,

e.g., Sandler & Schoenbrod, supra, at 174-78. That respon-

dents and the Third Circuit invoke Rufo to require a district

court to keep in place a now 25-year-old unnecessary consent

decree demonstrates the need for this Court to address this

problem.

In any event, the issue is whether there is a conflict be-

tween the circuits. Courts in the Eleventh Circuit hold that

Hodge remains valid precedent after Rufo on the precise issue

here, subsequent enactment or promulgation of hearing pro-

cedures as a ground for vacatur of a due process consent

decree. See, e.g., Lynch v. Sessions, 942 F. Supp. 1419,

1426-27 (N.D. Ala. 1996). Thus, the conflict exists regard-

less of the merit or lack of merit in respondents’ contentions.

III. Respondents’ Claim That Rufo Requires A Show-

ing Of An “Onerous” Burden Mischaracterizes

This Court’s Standards In Rufo For Modification

Of Consent Decrees

Respondents’ final contention is that the Third Circuit cor-

rectly required the Consent Decree to remain in effect be-

cause Rufo allegedly requires that a state agency seeking

modification of a consent decree show that post-decree events

“have made it ‘substantially more onerous’ for it to comply

with the Decree.” (Br. in Opp. at 14) (quoting Rufo). That

argument again misstates this Court’s holding in Ru/o.

In Rufo, this Court did not hold that a showing of sub-

stantial burden or expense is required before a government

agency can obtain modification of a consent decree. Rather,

this Court held that modification is warranted where there is a

significant change in law or factual circumstances. Rufo, 502

U.S. at 384. This Court held in Rufo that modification should

be granted where a significant change in law has occurred

which alters the appropriateness of the decree, regardless of

whether there is any claim of burden. Rufo, 502 U.S. at 388.

Respondent’s attempt to characterize the expenses the de-

cree imposes on PHA as innocuous or “weightless” (Br. in.

Opp. at 14-16) is, moreover, inaccurate. Requiring a govern-

ment agency to divert limited resources to pay persons who do

not contest that they were properly terminated from the pro-

gram is not harmless or insignificant. The restrictions the Con-

sent Decree imposes on the persons who can serve as hearing

officers were specifically found by the United States Depart-

ment of Housing and Urban Development to be “detrimental to

the Section 8 participants.” 49 Fed. Reg. 12215, 12229-30

(March 29, 1984). Indeed, respondents’ minimizing of the im-

pact of the consent decree directly contradicts their argument

that the “additional benefits” provided by the decree are of suf-

ficient importance to justify requiring court regulation of a gov-

ernment agency to continue indefinitely decade after decade.

Most importantly, however, the harm to the public interest

from unnecessary long-term regulation of government agen-

cies by consent decree cannot be measured solely by burden

and expense of a particular decree. A consent decree regulat-

ing government officials intrudes on the ability of the respon-

sible officials to make decisions on how best to allocate

limited resources in the management of government programs

and interferes with the fundamental federal structure set by

the Constitution. Frew, 540 U.S. at 442 (consent decrees

regulating government officials interfere with the ability of

“officials, both appointed and elected, to bring new insights

and solutions to problems allocating revenue and resources”);

Rufo, 502 U.S. at 381 (consent decrees regulating government

officials “reach beyond the parties involved directly in the

suit and impact on the public’s right to sound and efficient

operation of its institutions”) (quoting Health v. DeCourcy,

888 F.2d 1105 (6th Cir. 1989); see also Rizzo v. Goode, 423

U.S. 362, 379-80 (1976). The fact that the program here, the

Section 8 housing program, is a federal program does not

change this. The program at issue in Frew was likewise a

federal program, and this Court held in Frew that where state

officials “administer a significant federal program, principles

of federalism require that state officials with front-line re-

sponsibility for administering the program be given latitude

and substantial discretion.” 540 U.S. at 442.

The judge who originally entered this decree returned to

PHA’s officials discretion over due process hearings for Section

8 housing program participants. The Third Circuit violated this

Court’s dictates in reversing the lower court’s decision and in

taking administration of this aspect of the Section 8 program

_ away from PHA’s current officials, officials who have no

history of violating participants’ due process rights. At the same

time, PHA is not bound by court or respondents’ oversight in

administering due process hearings for conventional public hous

ing participants, as the decree that once governed such hearings

was ordered vacated by a different panel of the Third Circuit

that included Justice Alito. See Brown v. Philadelphia Housing

Authority, 350 F.3d 338 (3d Cir. 2003). The absurdity of the

Third Circuit’s direction of “indefinite” court interference with

half of PHA’s operations, while permitting PHA’s officials to

exercise their discretion with respect to the other half on the

same subject matter, cries out for action by this Court.

CONCLUSION

The petition for Writ of Certiorari should be granted and

the judgment of the Court of Appeals should be reversed.

Respectfully submitted,