Abdon Acevedo v. Nassau County, New York, Its Officials, Employees and Agents

TIMBERS, Before HAYS and Circuit Judge. DAVIS,* Judges, Judge: HAYS, Circuit brought as Appellants1 this suit against appellees Nassau action class County, Hempstead, New the Town county York, and officers of the various town, Adminis- the General Services tration, bodies and government com- The officials. County, Town alleged plaint Nassau respective Hempstead, offi- their rights violated the cials similarly aban- situated others doning plans fami- to includе low income parcel known ly land complaint further The Field. Mitchel alleged Ad- Services General agencies other federal ministration and regulations, sttautes, violated agreements, orders executive building for planning office a federal considering the same site without Richard F. Bellman and Lois D. housing in the adequacy Thompson, Institute, Action Suburban area. (J. Tarrytown, Jensen, Christopher N.Y. conducted a trial Institute, Tarrytown, The court district Suburban Action of the abandonment Clark, and concluded N.Y. and Leonard S. Nassau illegal County Legal Services, N.Y., Hempstead, discriminatory effect nor brief), neither a plaintiffs-appellants. had * alleged Davis, Judge be members are H. Honorable Oscar Associate organi minority groups sitting Claims, and two of the United States Court represent by designation. of low in members zations minority grouрs. come discriminatory 250 units of citizen It also con- senior motive. plans execution of acted in accordance these has been de- cluded that had layed by selecting Department planning the refusal with law building. Housing Development The court there- and Urban the federal regional project. complaint. fund the adminis- fore dismissed the trator of the town HUD testified ground appel- We affirm on developed developing had or was several

lants to a claim on which re- failed state projects housing for citizen senior but granted. lief can be housing. family none for low income that, I. He testified further since senior housing occupied predominant- citizen is parcel in the Field land Mitchel is ly by family whites and the low income County, Hempstead, Nassau Town of housing predominantly by minorities, York, formerly served as a New which agency believed that section 808 of thе Force In 1961 United Air States base. Rights Civil of 1968 authorized Act it not its after the Force had abandoned Air project to fund the unless the town also operations land was declared there provided family housing. for low income gov- surplus of the federal to the needs Appellants contend that ernment. the decision family not to ing income construct low hous- County purchased approxi- Nassau primarily community op- was due to mately parcel, 630 acres of free of position “community opposition and that any deed The restrictions. General housing to this form of racially has been Services Administration retained 55 motivated.” acres for In federal use. 1968 the coun- ty Congress approved In agreed and the in- to create an construc- town facility tion dependent of a Post corporatiоn, Office the Mitchel Field Mitchel Development Subsequently Field. Corporation (MFDC), GSA revised to expanded proposed facility plans so that formulate for utilization of the planned county’s parcel. now is study that it will contain of- After some agencies corporation fices plan employ- for twelve recommended a about ing 2,000 persons. 1,700 housing about low, included Because of the units for сhanges middle, proposed pro- upper GSA revised its income families. spectus January and in 1973 forwarded After release of the held MFDC approval Manage- it for to the Office of public hearings proposals. on its Budget. ment and In October OMB re- hearings public op- revealed substantial prospectus turned the revised for fur- position plan, especially to the to the in- ther revisions because certain clusion of low and middle income hous- agencies proj- had withdrawn from the ing. housing To calm fears that such January ect. In 1973 officials from would become a tax burden on the town implement HUD and met GSA housing MFDC recommended that not be Understanding Memorandum of between constructed at development site until after the agencies. agreed the two It was enterprises of commercial GSA would to various circulate produce which would tax revenues. agencies questionnaire to determine campaign In the 1970 County for Ex- facts about the racial and economic com- ecutive, Caso, appellee who was a candi- position pro- date office, opposi- declared his posed facility. forwarded the in- GSA housing any tion to Upon on the site. compiled Appеllants formation to HUD. his election he dissolved MFDC and discharged contend has not its agen- transferred county its functions to responsibilities under Memorandum. cies. county has continued to include a II. variety educational, commercial, plans Appellees recreational no facilities in have constitutional planned duty provide Mitchel statutory Field. It also include or integration.3 appel- Here groups or to housing. no “constitutional There dwellings not' to remove of a lants seek guarantee of access proposed rather Normet, but Lindsey particular obstacles quality.” impose appellees affirmative L. duty This to construct Ed.2d provision clearly any required argue, however, Appellants the Constitution. began plan low income appellees once pro- equal a denial of claim not, they Field could for Mitchel appellees have continued tection because Amend the Fourteenth consistent plans to construct ment, plan if do so would abandon Ap- Field. Mitchel senior citizens at impact mi disproportionate. have a pellants for senior contend that appellees nority groups, unless occupied predominantly citizens “compelling state interest” show a this the inclusion of and that whites argument fails This the abandonment. excluding housing in- type low of while Thomp authority upon Palmer v. the of family oc- housing, would which be come 217, 1940, 29 son, L. 91 S.Ct. 403 U.S. minority per- cupied predominantly Black As Justice Ed.2d 438 sons, discriminatory. 227, stated, at 1946: at 91 S.Ct. 403 U.S. appel course, it is true that Of “Probably persons, prior this few to lees, having in decided to low construct imagined case, that wоuld cities have housing at senior citizens for come judges be five lifetime could forced Field, operate to have Mitchel would swimming or to refurbish construct non-discriminatory housing a that in they pools operate to which choose not authority hold But there no fashion. any reason, sound or unsound.” county ing city a or initiates that once Palmer, appellees in instituted a As here housing the income senior citizen low though might plan which, it have bene requires it to Amendment Fourteenth minority groups promoted in fitted low income a certain amount of build they compelled tegration, were to family housing, v. too. In Jefferson place.2 undertake in the first 1724, Hackney, 32 406 92 S.Ct. U.S. (1972), upheld All of the Court a the cases L.Ed.2d 285 higher grants gov- gave rely involve either of scheme which the refusal state grant persons body aged, blind, than equally ernmental to to and disabled benefits recipients Aid to Families to or of under the all the obstruction program Dependent private projects minority Children beneficial with projects segregated parties have restricted such devoted much attention to ; neighborhoods) Brown, question F. v. 332 Crow the of whether the aff’d, proposal commitment, final, Supp. (N.D.Ga.1971), F.2d or a 457 or 382 tentative (per (county (5th 1972) curiam) amorphous concrete, or in formative 788 Cir. permits building stages quite complete. officials refused issue Palmer demon- ; housing project) parties v. Gautreaux strates the wasted their time Chicago Housing Authority, controversy. pools F.2d 306 436 this in Pal- closed (7th 1970), denied, Stage Cir. 402 U.S. mer had use. cert. been built and were in (city (1971) played part 91 S.Ct. 28 L.Ed.2d 661 of construction no in the Court’s housing effectively decision. restricted projects segregated neighborhoods); Ken City nedy See, g., of v. e. Park Homes Association United Farmworkers of Florida 1970), Lackawanna, (2d Housing Delray Project, City F.2d 108 Cir. v. of 436 Inc. denied, Beach, (5th (city 1974) 28 cert. 401 493 F.2d U.S. 799 Cir. parcel (1971) (city rezoned refused L.Ed.2d 546 to extend and sewer service water prevent project although of income construction low to low income City Lawton, project) ; Dailey develop 425 F. of had extended serviсe other 1970) ments) ; (10th (city Perk, F.Supp. denied build 2d 1037 Cir. Banks v. 1175 zoning ing permit change (N.D.Ohio 1972), modified, income to low F.2d 910 (6th 1973) housing project). (city Cir. issue refused to build permit ing project income low velopment affirmatively legislature might ground a manner subchap- policies rationally latter to .further this conclude that the easily hardships inade- ter.” more bear quate at income. authority the ‍​‌​‌​‌​‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​​‌​​​​‌‌​‌​‌‌​‌‌​‌​‍statute On might HUD justifies the rationale The samе denying justified appellees be housing scheme here. funding they projects if refuse analyzed In Court also Indeed, approve Jefferson income low impact of scheme. the state racial precisely happened what here. alleged en- the scheme Plaintiffs discretionary powers But HUD’s under be- tailed invidious racial discrimination beyond the Act extend im- duties recipients, category of cause the AFDC posed plans. the Act on local need, computed who received 75% appel- HUD’s action does not mean that higher proportion of blacks contained lees have violated 804 of Act. section catego- than and Mexican-Americans aged re- ries cipients and blind disabled IV. who received 95% 100% computed The Court that the need. held claim the Gener comрositions of the different ethnic Administration has violated al Services system. groups did not invalidate the Act, Housing Fair Executive Order 548-549, S.Ct. 1724. its Memorandum Understand appellees in- We cannot conclude that ing Department Hous vidiously providing by low ing Development, discriminated and Urban and its own housing Mitchel regulations by failing senior citizen at income to insure an ade providing housing Field family housing. income supply without also low quate of low income near building not one planned “Whether or the federal office agrees [decision], with this there is Mitchel Field. The claim fails because nothing in pronouncements that forbids implies Constitution none of the 549, right it.” private ap 406 at 92 at 1733 U.S. S.Ct. and action (footnote omitted). pellants standing. lack Processing Under Association of Data

III. Organizations, Camp, Service Inc. 397 90 U.S. S.Ct. 25 L.Ed.2d 184 vague Appellants rаise a also rather (1970), Collins, and Barlow v. Housing claim under the Fair Act 25 L.Ed.2d 192 42 U.S.C. 3601-3631 §§ (1970), appellants allege they must have They upon do not indicate which sec- “injury suffered an in fact” and that rely they tions it is dif- act and they protect “argua- to seek an interest imagine to ficult sections could what bly within the zone to be interests support position. their protected regulated by or or statute Housing The Fair Act does not guarantee question.” constitutional impose any upon duty Appel- at at 830. body “plan for, ap to or to construct satisfy require- lants neither of the prove promote” any housing. and ments. 808(e)(5) course, Of under section order, regulation, and memoran- Housing the Fair Act, 42 U.S.C. § dum to seek insure that GSA will con- 3608(d)(5) duty (1970), HUD has a to availability sider low and middle in- programs “administer the and activi- employees come for federal near relating ties buildings.4 Assuming to de- urban federal that GSA Eed.R-eg. building Executive Order in the selection of federal sites. The * (1970), policies directs the Administrator of the GSA sixth of these is: perform duties, availability adequate to certain and co- consult “The low and programs housing, adequate ordinate with several other moderate income access agencies, guided policies center, and to be seven from areas of the urban noted, appellants or none of the pronouncements, have the three has violated pro- expects employee they to be an at are appellants shown that have not they facility. posed or that the violation harmed remedying the viola- from would benefit Memoran- Executive ‍​‌​‌​‌​‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​​‌​​​​‌‌​‌​‌‌​‌‌​‌​‍Order and appellants or ex- None of the tion. Understanding in- dum of also seek employee pro- pects at to become an gen- will consider the sure that GSA they facility. can posed most At impact of socio-economic might hope any steps GSA building site locations on the areas pronouncements implement take to will such facilities be located.6 of more in the construction result would Appellants have not shown that location required for thаn is building of the office Field or at Mitchel building some and that regarding any act or omission they persons appellants or building injured has them. Cer- occupy might represent purport tainly they shown, al- have or even leged, any possibility building’s im- This harm from the additional pact upon “social and economic condi- injury in amount too remote to tions in the area” which would differen- fact. sufficiently general tiate them from the satisfy fail also public “injury in to constitute an fact.” standing facet of the “zone of interests” pass Even if purposes of Or- test. The the Executive they standing, constitutional test of Understanding, der, Memorandum of still the Execu would have show that regulations respect and the GSA Order, regulation, tive or Memorandum assure accom- are to Understanding were intended cre- employees.5 modation of federal As we “(c) proposed programs parking coordinate adequacy of will be considered. plans space buildings in a manner designed positive (a) (1973) exert economic de- § C.F.R. 101-17.104-1 development re- social influence on the development clares that GSA the areas in which such of maximum extent “will consider to the availability will located . . . possible facilities be and the of low mod- 2(a) policies which the In section one of the erate income for with- weigh is ex- race, color, Administrator is ordered out discrimination because of religion, ” pressed as origin. follows: or national . . . given “(2) in the 101-18.102(d) shall (6) (1973) Consideration be § 41 C.F.R. es- of Federal facilities sentially language selection sites for the restates the of above- redevelop- development the and quoted passage need for of Executive Order development new Understanding and of ment of areas the be- The Memorandum of impact communities, and selection the its tween HUD and GSA announces improving and economic purpose will have on social em- [GSA] “to assure determining availability In ployees conditions in the area. the of low- and moder- shall Administrator these conditions the ate-income without discrimination. the (1973). frоm consult with and receive advice .” . . § C.F.R. 101-17.4801 Develop- Secretary Housing and of Urban (a) text of 41 101-17.104-1 § See C.F.R. Education, Secretary Health, ment, the of (1973), supra pur- and statement of note Commerce, Secretary Welfare, and of the Understanding, pose of the Memorandum of others, appropriate . .” . . and 2(a)(6) Order id. of Executive Section the Understanding declares of Memorandum purpose exрressly not limit hous- does ing will GSA However, employees. the development re- and need for “consider the adequacy of same sentence indicates development development and of areas the parts parking of and of access from impact im- and the of new communities These urban area are to be considered. the in proving and economic conditions social clearly sen- factors show that the entire two area, Federal Government whenever solely designed of the benefit tence sites, new or relocate at facilities locate employees. authority to resources and and use its objec- these pro- aid in' the achievement of Executive Order 11512 1 of Section at 101-17.4801 § tives.” C.F.R. Administrator shall vides that the (1973). speculation not at We need rights of this time. рrivate None of action. ate precise scope right. du- grants determine GSA’s expressly such a Of them brought by the rights may a suit has inferred ties until been course, be such party proper pur- proper time. necessary to effectuate when regulation. poses J. or See of a statute Affirmed. Borak, 431- I. Case Co. v. 12 L.Ed.2d But where the source DAVIS, Judge (concurring): silent, regulation has been statute or join fully I in the result and also in rights.7 lightly infer such do not courts I, II, opin- Parts and III of the court’s find an need to In this see no case we ion, with an addition and a caveat as but right implied private of action agree that, case, II. I it Part this obliga- appellants. would extend origi- makes no difference whether Order, by the Executive tions created plan (which nal Mitchel Field Understanding, Memorandum of vague housing) public regulations included low-incоme was are so broad GSA right inferring private of action it definite or tentative. In either case strong possibility would create a them planning had not left the level before it brought by per- protracted lawsuits changed was omit the low-income any fed- with little at stake before sons housing feature, appellants facility could constructed. We be violating abandon the without decline to authorize suсh a result. statutory duty. or if constitutional But stage planning should make a Finally, appears has es- it that GSA sentially complied difference, “plan” the Executive I would hold that Understanding, Order, Memorandum rely on which no more was regulations. GSA and with its own suggestions, proposals, than a series of required with HUD to consult by Nas- and recommendations for action adequacy mid- of low and consider the agencies County sau and other in the dle income As noted groups; operative no definitive or ac- changes facts, statement of proposals adopt tion taken to those was facility yet proposed has not always process remained proposed prospectus to a new forwarded being word, In a if there evaluated. Budget. Management Office “plan” inchoate, still was a It made some studiеs and has con- has definitive. may more be sulted with HUD. What proposed prospec- project My done before the final to a caveat relates stage planning pure which has left tus is submitted is a matter ; (1967) 977, 480, 471 19 L.Ed.2d 88 S.Ct. 7. The Court of Claims has held Chambers v. States, 1045, Manhattan-Bronx Postal Union Gronou v. 451 F.2d 196 United Ct.Cl. 451, ski, U.S.App.D.C. 321, 11478, F.2d 457 (1971), 121 350 186 Order Executive 978, denied, (1965), prohibits 86 S.Ct. cert. 382 U.S. in fed which racial discrimination ; 548, (1966) v. private right Farmer employment, 15 L.Ed.2d 469 eral does сonfer a (3d Philadelphia Co., 3, 9 However, Eighth F.2d Electric 329 has action. Circuit 1964). gone question. way need decide whether Cir. We not other same on the pri (8th States, enforced executive order can ever be Gnotta v. 415 F.2d 1271 United 934, neither 1969), denied, that we see vate suit. We hold Cir. 90 S. cert. 397 U.S. compelling 941, (1970). Moreover, to create need an intent nor a Ct. 25 L.Ed.2d 115 remedy uniformly such a here. it has been held mean executive orders This does not courts executive orders do not create Farkas, private rights See, g., of law. See do not have the force Kuhl v. of action. e. supra, 632; Farmer, 1971) ; supra, Hampton, (8th 329 375 F.2d at F.2d 451 340 Cir. Instrument, Inc., F.2d at Farkas v. 375 F.2d Texas (5th denied, Cir.), 633 cert. existing gone operation. If an full into project which had public low-income America, UNITED STATES to be aban for some time were lasted Appellee, ‍​‌​‌​‌​‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​​‌​​​​‌‌​‌​‌‌​‌‌​‌​‍public ownеr doned v. g. discrimination, e. be proven racial JONES, John Edward also known many turned of the tenants too cause “Liddy,” Appellant. Rican, I am or Puerto black out to be No. 74-1056. Thomp that Palmer certain not at all Appeals, United States Court of 29 L. son, Fourth Circuit. (1971), That control. would Ed.2d swimming pools, not hous May 7, Argued case involved the Justices least some of ing, and at Aug. 5, Decided majority indicate seemed to not over proof was of discrimination

whelming. opinion, Part IV of the court’s As for too, it, except insofar as it I concur suggest

may the Executive tend private no here Order involved created

rights anyone, not even fed of action question employees. is unnec That

essary to consider in this case which ‍​‌​‌​‌​‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​​‌​​​​‌‌​‌​‌‌​‌‌​‌​‍potential present concern

does Depending on their

federal workers. purpose, certain executive

contents rights private do can and create

orders Perhaps vindicable in court. action significant years, at in recent

the most employees,

least for § F.R.

Executive Order No. see 5 §

Jan. U.S.C.

(1970), extended to nonveteran statutory pro

civil service given against dis veterans

tections

charge personnel ac and other adverse and its

tions. That Executive Order 11491) (Executive No.

successor Order enforced, regularly for over

have been years, by in a the federal courts

twelve

large injunction and declara number monetary

tory and in suits for actions Kennedy, 416 U.S. Arnett v.

claims. Cf. L.Ed.2d

134, 94 S.Ct. 1638-1640, 140-145, pp.

pp. 94 S.Ct. (opin p. 1638, n. 7

esp. p. p. Rehnquist), Mr. Justice

ion of p. (opinion of Justice Mr. S.Ct. pp. 172-175, 1653-

Powell), pp. S.Ct. p. 1654 n. esp. ‍​‌​‌​‌​‌‌​​‌​​​‌​​​​‌‌​‌​‌​​​​‌​​​​‌‌​‌​‌‌​‌‌​‌​‍p. White). Mr. Justice (opinion of

Case Details

Case Name: Abdon Acevedo v. Nassau County, New York, Its Officials, Employees and Agents

Court Name: Court of Appeals for the Second Circuit

Date Published: Jul 2, 1974

Citation: 500 F.2d 1078

Docket Number: 963, Docket 74-1235

Court Abbreviation: 2d Cir.