Fletcher v. Housing Authority of Louisville

CELEBREZZE, Circuit Judge. This appeal is before us for the second time. On October 15, 1974, the Supreme Court vacated our decision of January 25, 1974, and remanded “for further consideration in light of Pub.L. No. 93 — 383 (August 22, 1974).” In our prior Opinion,1 we held that a rent-range formula enacted by the Housing Authority of Louisville (HAL) and prompted by a circular of the Federal Department of Housing and Urban Development (HUD) violated the National Housing Act of 1937. The vice of the admissions formula was that it discriminated against the poorest applicants for public housing. It “impose[d] a significant penalty on the group of eligible applicants who have been on the waiting list for public housing since August 22, 1972” and did so on a basis that was “beyond a local public housing agency’s discretion to enact and beyond HUD’s proper discretion to require or enforce.” Fletcher v. Housing Authority of Louisville, 491 F.2d 793, 798, 807 (6th Cir. 1974). We recognized HAL’s and HUD’s concern that public housing be fiscally solvent, but refused to uphold a means of generating revenue that violated the National Housing Act of 1937. As we stated, HUD will have to win Congressional approval before it may again try to implement such a preference for more affluent applicants. 491 F.2d at 807. HUD and HAL argue on remand that the Housing and Community Development Act of 19742 gives them the authority that in our view they lacked under prior law. HUD and HAL point to a specific section of that Act as authorizing an admissions policy aimed at achieving a tenant population of mixed incomes: Every contract for annual contributions [to local housing authorities] shall provide that— (4) the public housing agency shall comply with such procedures and requirements as the Secretary [of HUD] may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to— (A) the establishment of tenant selection criteria designed to assure that, within a reasonable period of time, the project will include families with a broad range of incomes and will avoid concentrations of low-income and deprived families with serious social problems, but this shall not permit maintenance of vacancies to await higher income tenants where lower income tenants are available.3 As counsel for HAL, HUD, and Appellants agreed at oral argument, the 1974 Act is not retroactive. Indeed, the above-quoted section is not yet the law of the United States. As section 201(b) of the 1974 Act states, The provisions of subsection (a) of [Section 201] shall be effective on such date or dates as the Secretary of Housing and Urban Development shall prescribe, but not later than eighteen months after the date of the enactment of this Act Although counsel for HUD provided this Court with a copy of a Notice to Local Housing Authorities containing a proposed regulation to implement the Act in regard to income-related tenant selection criteria, the 1974 Act is not yet effective in this regard. Indeed, as the regulation has been proposed for comment, it would be improper for us to assume that the proposal will emerge unchanged from a process intended to improve and refine it. Because the provisions of the 1974 Act are not before us, we will not render an advisory opinion on how it may affect our Judgment at some future time. [535] HUD advanced the argument in its Brief that the New Act and its legislative history “sheds light” on the old Act and should require a reversal of our earlier Judgment. Legislative action cannot, however, change ex post facto what was the intent of prior legislation. Judicial review of the statutory authority of administrative action would be meaningless if we were to allow a losing party to secure statements from a legislature that the courts had misinterpreted the intent of a prior legislature and then to force a reversal of the judicial result based on such an ex post facto basis. We remain convinced that our prior holding was based on a correct interpretation of the National Housing Act of 1937. Until the 1974 amendments take effect, we have no cause to modify that view. Finally, counsel for HUD suggested at oral argument that the controversy might at this stage be moot, since in counsel’s estimation the named plaintiff has probably been admitted to public housing. Counsel’s guess is not an assurance on which we may act. We do not know, and nothing has been presented to us that demonstrates, that the named plaintiff has been admitted to public housing. Furthermore, even if the named plaintiff is now a public housing tenant, our Judgment extended benefits to a broader and properly certified class of plaintiffs. The case on which HUD relies to require a mootness determination indicates that “dismissal is required when the claims of all the named plaintiffs become moot before certification of the class under Fed.R.Civ.P. 23(c)(1).” Bradley v. Housing Authority of Kansas City, 512 F.2d 626, 628 (8th Cir., 1975). See Board of School Comm’rs v. Jacobs, 420 U.S. 128, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975). Here a class was certified by the District Court’s Order of November 27, 1972, which is well before the named plaintiff’s claim could possibly have become moot. That class includes all persons “similarly situated” as the named plaintiff, i. e., all who have been and remain adversely affected by the rent-range formula adopted by HAL on August 22, 1972. Accordingly, a live controversy remains between H-4L and numerous persons, and the nature of that controversy will not change at least until the 19,74 Act goes into effect. The Judgment of this Court will be reinstated. Footnotes [1] Judge Edwards dissenting. [2] Act of August 22. 1974, Pub.L. No. 93-383, Title II, 201(a) et seq., 88 Stat. 653. [3] Title II, § 201(a)(6)(c)(4)(A).