*2 DANAHER,* Before FEINBERG and MULLIGAN, Circuit Judges. FEINBERG, Judge: Circuit *3 occu are or were non-owner Plaintiffs dwellings lo family two-to-four pants of Brooklyn, areas of income cated in low were insured mortgages of which the Housing Administration Federal regulations, FHA for Under (FHA).1 on his to recover mortgagee he must tender after default insurance unoccupied, property, of possession Thus, plaintiffs’ land after to the FHA. were properties lords defaulted sought foreclosed, mortgagees to com their homes from plaintiffs evict require the vacant ply with suit filed this ment. Plaintiffs for District Court United States against New York District of Eastern (HUD) Development Housing and Urban enjoin defendants and other assistance un and to secure the evictions Seel, (John Brooklyn, N. Y. B. Susan Relocation Assistance der the Uniform Jr., Kramer, Douglas J. Brook- Gray, C. Acquisition Policies Property and Real B, Brooklyn, N. Corp. lyn Legal Services seq. 4601 et U.S.C. §§ Act Y., brief), plaintiffs-appel- for on com Act). An amended (the Relocation lants-appellees. defendants additional plaint named as Shawaker, Atty., Dept, J. Edward York, City of New the Sheriff (Wallace Justice, H. Washington, D. C. City New York Under-Sheriff George R. Gen., Johnson, Atty. Asst. Kings and the Federal County of for the Justice, Atty., Dept, of Wash- Hyde, Association.3 Mortgage National C., Boyd, ington, D. Edward J. U. S. New Atty. the Eastern District for November John F. Friedman, York, U. S. Harold J. Asst. Jr., Dooling, plaintiffs’ denied motion for brief), appel- Atty., on the for Federal a preliminary injunction against lees-appellants. evictions the Sheriff and Under-Sher- judge iff. The Walsh, (Cad- ruled that City New York Relocation John J. Act did Taft, apply persons walader, Mowry like plain- W. Wickersham & tiffs anti-injunction brief), statute, City, on the Connelly, New York prohibited U.S.C. § enjoining Federal National defendant-appellee for state officers carrying from out Mortgage state Association. * FHA, 2. These were the Commissioner of the Appeals Of the United States Court of Regional Region HUD Administrator Circuit, sitting by desig- District of Columbia II, Realty Hempstead, and the Officer of the nation. Y., N. sub-agency FHA office. FHA is a HUD. originally plaintiffs eight 1. There were in this Thereafter, Mortgage action. several occu- Federal additional National Association pants properties mortgages properties of defaulted FHA-insured held the on in- were allowed to intervene. volved. availa- are made Thereafter, benefits court orders of eviction.4 other ing and however, found, again plaintiffs sought preliminary re ble. lief, eligible for Reloca- against this time were of plaintiffs agree. defendants, We HUD and the other federal assistance. tion displaced per- enjoin 4601(6) requiring from defines the evic U.S.C. § plaintiffs as a pay tion of condition of son insurance ment of FHA claims on the who, January on or after any person properties. foreclosed In June property, or 1971, moves from real
judge ruled in favor of from real personal moves granted preliminary relief. His' order acquisition a result of property, enjoined the federal re or in in whole property, real of such quiring the removal of tenants aas con or- of the written a result or as part, payment dition of of insurance claims to vacate agency acquiring der of procedures adopted until *4 which project program for a property, real occupants premis would allow the of the agency, or by a Federal undertaken es to furnish the information assistance. financial with Federal why might properties be con [Emphasis . added.] veyed occupied to HUD instead vac policy assert Plaintiffs ant.5 HUD, requiring a vacant Secretary of ruling, the first appeal from Plaintiffs accept possession he will dwelling before from the federal defendants second. pay off property defaulted below, indicated we affirm For reasons claim, an results in insurance the FHA Judge Dooling’s orders on both of such acquisition to “the due eviction only judge not wrote thor appeals. The may well there While property.” real on the issues ough opinions involved here, “acquisition” such have been incorporated by also refer case6 but this enough. To fall within this is opinions in a related case in the ence persons, plaintiffs displaced definition agree Because we District.7 Eastern acquisitions also show must disposition judge’s legal with the project under- program or “for a ordinarily issues, might have affirmed or with Fed- Federal'agency, aby taken opinions below. Since on This assistance.” eral financial however, unpublished,8 yet are do. have failed importance questions view of the reason argue that since Plaintiffs raised, that a further we believe discus convey- demands vacant legal appropriate. issues is sion deal him better to enable ance is I or other by rehabilitation mortgage insur- disposition, Plaintiffs the evictions or- claim with its vacant program ance by improper state court were dered urban to a federal is akin requirement granted because had not been persons dis- And since scheme. renewal assistance under the Relocation Act. projects renewal urban by federal placed essence, provides, per- This Act un- assistance eligible for admittedly displaced not be from his home son will Act, plain- a fortiori the Relocation der way federally for a federal or to make mortgage insur- displaced tiffs project replacement assisted unless hous- Dooling’s opinions, see notes & 5 6. 16-page memo- ruling was made 4. This facts, supra, contain a discussion of the D.C., full November randum dated repeat we will here. dismissing judgment F.Supp. A upon Relocation based of action causes Secretary, (E.D.N. v. The C 550 7. Manners August 1973. Act was entered Y.). 31-page ruling memo- in a was made 5. This only opinions in the related Man- one of the 13, 1973, D.C., 390 June randum dated reported. F.Supp. ners case has been F.Supp. 210. (denial (E.D.N.Y.1971) in- of motion for junction). public metropolitan, the demand for However, also anee must be. program increasingly has facilities and services argument this overlooks the crucial dif- areas, urban on such centered mortgage between insurance ference ac- projects of land such acquisition acquisitions quisitions pro- under the most difficult facet of has become many grams covered the Relocation Act. by public agencies. undertakings While it true that the increas project Also, major public it a —be ing default rate in the insur project, urban renewal highway, program ance made the federal the acqui- involves hospital inevitably — government largest one of owners of of sites which and clearance now sition Comm, city properties, inner House on residential, commercial, or oth- provide Operations, Government Defaults on As the thrust of Federal er services. Mortgages Detroit, Home FHA-Insured — federally programs assisted Mich., H.R.Rep. 1152,92d Cong., No. 92— situations, from rural urban shifted (1972), acquisitions 2d 1—7 these Sess. increasingly apparent it became must be characterized as random and in concepts of traditional application voluntary while normal urban renewal eminent of valuation and domain re- government contemplates a conscious de inequitable treatment sulted cision to dislocate some so that an entire displaced people large numbers of Thus, area benefit. the Relocation public applied to action. When dense- provides, 42 U.S.C. 4621: areas, ly populated urban with already purpose subchapter *5 The is to housing, the result be cata- limited policy establish uniform for the fair strophic for those whose homes or equitable of persons and treatment give public to way must businesses displaced as a result of Federal and far The result too often has needs. federally programs assisted in order a few been that citizens have been persons that such shall suffer not dis- upon to bear called the burden of injuries proportionate as a result of meeting public needs. programs designed for the benefit of H.R.Rep. Cong., No. 91st 2d 91— public as a whole. Sess., 1, (1970); Cong. 1970 U.S.Code & Similarly, in discussing purposes of Admin.News, pp. 5850-5851. Various Act, the Relocation the Committee on Act also of the Relocation indi sections' Works Represent- Public of the House of programs construction are the cate that atives stated: Congress providing in mind in type legislation The need for such arises person assistance. Section displaced increasing impact of Federal construction” 4626 refers to “actual federally programs and assisted 4625(a) project, mentions eco section programs such to evolved meet injury neighboring property nomic to growing of a increasing- needs and acquisition, property due to the and sec population. ly complex urban In a less acquisition methods tion describes time, federally Federal and assisted with the takeover that are inconsistent public projects works seldom involved property of defaulted FHA.9 major displacements of people. There relatively taking little of residen- Thus, it is clear that the Act con property tial or commercial for farm- templates government normal acquisi to-market or routes for reservoirs or tions, which are the result of conscious public Indeed, buildings. suppori local decisions build a highway here or a projects for such often in lit- resulted housing project hospital or there. In tle, any, if cost land acquisition cases, such the acquisition of property However, rights-of-way. with the and the relocation of certain individuals growth development an econo- is a necessary first step project. in my which increasingly is urban and acquisitions Default by FHA, how- 4651(8) g., 4651(1) § negotiation, E. refers § refers to eminent domain. A court of governmental ever, embody conscious United States grant not applying injunction an stay at all. The choice pro- decisions ceedings in a is except for an FHA insured made State court expressly by by mortgagor individual the de authorized Act of Con- gress fault, FHA triggers acquisi tion, (if his choice as well it can ever is Plaintiff claims that the prohibition of to result from a said conscious eviction contained the Relocation choice). voluntary only action taken Act, 42 4626(b), U.S.C. is such § an by is the the Government decision to re express exception to section 2283. unoccupied quire making But, only this could benefit payment. The acquisition insurance if the Relocation applied to them. itself, however, clearly involuntary just We have held that it does not. response fact, default. In Similarly, plaintiffs’ claim that their acquisition may default said by eviction deprives Sheriff them represent program FHA failure of a statutory right under sum, rather than its desired result. color of state law and thereby vio- was cor believe lates 42 U.S.C. 1983 fails on our hold- acquisitions rect holding random ,no ing of federal statutory right un- by the FHA of defaulted Act, regardless of the the Relocation der acquisitions program “for a action. issue state project agency” undertaken a Federal contemplation within drafters Act.10 the Relocation II argu further make Plaintiffs ineligible holding them
ment appeal of the federal defend consti created court benefits, the district ants raises the issue whether the occu enforcing arbi difficulties tutional pants houses, though even oth between distinction trary *6 entitled assistance, to Relocation Act as relocation eligible for admittedly ers process nevertheless have right a due to say that to simply is this But sistance. participate way in some in the decision aid to chosen has Government since of the FHA not general to waive its all, is clear it aid it must some requirement that buildings be deliv phase one may select “legislature unoccupied. ered there, ne- remedy a apply field one v. Lee Williamson the others.” glecting noted, As already property conveyed 489, 483, S.Ct. 75 Co., U.S. 348 Optical by a mortgagee to recover on his FHA mortgage insurance must be vacant un (1955). 563 465, 461, 99 L.Ed. less the Secretary approves en of HUD theory that oth theOn erwise. 24 assistance, plain (1974). C.F.R. 203.381 § Act Al Relocation to titled though apparently New has pro enjoin the Sheriff sought to tiffs vided no formal for standards for deciding the Under-Sheriff City and York whether property, may conveyed carrying out occu County Kings pied, Property Disposition HUD’s courts. Hand state ordered evictions book, One to Four Family Properties be denied properly injunction This (4310.5), 2283, does mention some factors for U.S.C. § of 28 the basis low on consideration.11 provides: argue a are not federal part these acquisitions also federal The program, reach issue. we need not this to referred assistance,” financial “Federal 4601(6) of displaced definition 42 U.S.C. § guidance is for present- include the situation handbook cannot 11. This persons, to pass workers who required elsewhere FHA field the Relocation ed here because vacant deliv- ex- for a waiver of to financial assistance” on applications “Federal defines . HUD in guarantees September 42 issued by insurance. It was or ery. clude holding Also of 4601(4). continuously updated. our 1970, In view of U.S.C. 700 nonexistent, Chapter provides: 4 HUD Paragraph 91 of would not respond plaintiffs’ attempts as occu Occupancy Approval —Individual pants participate in the decision mortgagee must va- Acquisitions. whether to waive the vacancy require property prior or obtain the cate a ment, and that the Secretary’s behavior convey the local office to consent of a was “so completely unstructured and un agreed subject occupancy.
property
measurable as to be automatically both
preferable
normally
to have the
It is
12
covert
arbitrary.”
property
vacate a
so that
mortgagee
repair
programmed
may be
It is true that
here do
the sales market
exposed to
in the
a conventional
inter
not have
practical
time.
shortest
Continued
privity
They
est.
have no
of contract
occupancy may
tenant
be considered
longer
leases are no
because their
ef
property requiring occupancy
a
occupiers
and their status as
fect
prevent vandalism or for an invest-
by
pro
the state
been foreclosed
court
property presenting
ment
no advan-
Nevertheless,
ceedings.
it is now abun
tage insofar as immediate occupancy
protect-
that there are other
dantly clear
purchaser
is concerned or a two
besides the
able interests
traditional
family dwelling
to four
with tenants.
Cf.,
g., Goldberg Kelly,
v.
ones.
e.
397
The local office
a.
director
L.Ed.2d 287
U.S.
S.Ct.
agree
assignment
to take an
of a
(1970) (right
public
pay
assistance
accept
a property occu-
Sindermann,
ments); Perry v.
408 U.S.
pied
where
mortgagee
eviction
(1972)
7Q1 Dep’t Agricul- of pies United States aligned tenants were somewhat with ture, U.S.App.D.C. 427 F.2d 138 561 FHA, which had “been in those plaintiffs have protecta- (1970). Since see to it structed” to that “tenants occupancy, interest in continued and ble imposed upon” by should not be “rent very the of Act under are beneficiaries applications” increase landlords. 447 demanded, their eviction is which we addition, Judge In at 301. Le~ F.2d Dooling that with have agree pointed in Thompson out venthal subjected to right to not be treatmem Washington, U.S.App.D.C. arbitrary,” must “covert and and both (1973), the panel in Lan F.2d into input to have an the allowed deci- “regarded the Government in gevin require sion to eviction. volvement insufficient to call forth process protection.” re due both be of value to the fed- input This spects, situation here is different. plain- to as well as defendants eral greater moment Finally, of far than an plaintiffs may example, For tiffs. abode, in rent is loss of an increase housing they occu- to show that able particularly said—“in —as habitation fit for continued py is deteriorated, neighborhoods low-income repairs required order to that quarters replacement are where readily require prop- do make salable occupiers available at rents the they may Or be able erty to be vacated. can afford.” show to satisfaction to remedy The ordered the district of vandalism that the threat judge is rights consistent with the we high are vacated is apartments if possess. plaintiffs to have found He or- occupancy is neces- continued the Secretary adopt dered to property. sary preservation pro- rulemaking protection to the with compliance is essential It after they be to 5 U.S.C. rights allowed as set forth plaintiffs’ cedures insis- neither the FHA nor waiver respecting because participate rules delivery rep to vacant upon general to be able mortgagees seem tence 203.381, occupants. 24 C.F.R. § the interests requirement, resent for notifi- provide far removed from minimum mortgagees are often at occupants premises therefore have property and actual cation being foreclosed aid the FHA are that could been or information have conveyed vacant determining whether have been to be or Secretary already desires necessary. The FHA has that the adequately occupation of incapable in their proved itself terminate request.15 plain succinct Only advises vestigating each premises, de- tiffs, position, grounds on which others in their form occupation and information in to terminate the motive both termination made, tenant decision, taking and affords reasoned sure has been sup- account, and to submit will be made. opportunity their interest into considerations, cite to us Lan evidence federal defendants port Court, Inc., occupant wishes Chenango any, 447 F.2d gevin v. if 1971), into account (2d where refused to to take *8 and which FHA-sponsored in reaching that tenants an a determination hold to fur the Sec- right explicit decision require had constitutional an project any the to raise issue framed input retary into decision of nish termina- grounds for interests of the of his rents. Langevin, statement earlier Manners decisions that the FHA had Judge Dooling 15. the federal found that de- passing upon requests slipshod in been lax and pattern fendants of consistent “evince[d] delivery requirement. of the vacant for waiver application conduct or consistent of articulate principle.” Memorandum of June Judge Langevin. 16. Oakes dissented in F.Supp. 390 at 225. This statement reaffirmed Secretary, supra, 17. Manners Amended already findings thejudge made.in Judgment, at Final 2. 702 U.S.C. 553.” § We note in Lange- opposing of the statement tion and vin v. Chenango Court, Inc., disposes F.2d adequately that considerations (2 1971) CA that Judge Friendly the issue of said: prove will not that this order believe
We for the unduly burdensome Any argument that at least the rule- requirements are less comply with—its making procedures in 4 APA, of the § hearing evidentiary-type re than 5 U.S.C. § were demanded would supra, Goldberg Kelly, and it quired be answered by exception Secretary great flexibility to allows 553(a) for “a matter relating to satisfactory procedures.18 The or devise agency management personnel or to however, court, will district der of public property, loans, grants, benefits like and those provide plaintiffs or contracts.” In all this we are in from the ar of freedom with a measure Gottlieb, accord with Hahn v. 430 F.2d they been, bitrary action (1 1970).2 fn. now, subjected. until Judge Dooling’s The extract Judgment appeals. affirmed on both or- der, by Judge Feinberg, as set forth sim- DANAHER, Judge Senior Circuit ply that basically, demonstrates as we all (concurring): agree, the tenants or evictees should right have a to be Judge Feinberg’s heard. What is in- I concur excellent short, volved, us, is an partic the issues effort to achieve a treatment of gives conflicting rights. balance ularly explicates he of The sub- effect occupancy by Judge to the several in which stantial interest aspects plaintiffs arbitrarily discussed Dooling has various is not termi- problem. governmental action, nated as a result abundantly It is Judge clear that conversely, recognize Dool- but ing’s preliminary injunction contemplat- rights mortgagees to recover their ed that the officers of to be insurance are considered. On the of Housing record, Development present appears Urban that the barri- were to be bound to rule on the plain- protection respective er to the of such tiffs’ and requests intervenors’ rights Secretary’s waiv- has been insis- requirement now, er of the tence, up vacant delivery. premises judge The trial unoccupied. envisioned delivered ad- hearing ministrative of some sort was We have no doubt that the essential, but what type hearing? As- adapt necessity to administrative suredly a trial-type! such formulae envi The district court’s order dealing relates the equities sioned in with the to be hearing requirement “compliance Regulations, very considered.3 or at the procedures rulemaking as set forth guidelines, 5 least can be formulated alternative, Judge Dooling’s possibility pants, tenancy In the order their lifting preliminary might property, in- also allowed to the conserve real- junction against possibility the federal if ity of the theoretical action, applied vacated, in the expeditiously to him instant on could be re- advantageously. and intervenors in- notice to resold habilitated volved, declaring Secretary’s 12, Judge Dooling’s intention to (Page memorandum re delivery along require property, 1973.) with the rea- vacant Jean June Caramico prop- intention affected sons for that for each Authority City Housing 2. And see Brown erty in suit. 1972). Milwaukee, (7 CA 471 F.2d readily appreciate the ex- more 1. One could Judge penetrated Dooling has tent to which Feinberg pointed out, As supra has n. pertinent this area had the intricacies 18, Judge Dooling preserved in his order *9 reported. g., he E. noted been upon alternative basis which the Federal given the Federal may No consideration defendants seek pre- dissolution liminary of the occu- injunction. the interests govern situations such presented.4 as here have been doing any we now what
In event along required by lines
can be done5 concep court that
order of the district are to control. fairness
tions of essential America, STATES
UNITED Appellee,
v. SANTELIS Augusto Luciano
Amadeo Defendant-Appellant. ES, 74-2311. Docket
No. Appeals, Court United States Jr., Fragomen, T. New York Austin Circuit. Second Rey, Del New City (Fried, Fragomen & 7, 1975. Jan. Argued counsel), defendant-ap- City, York for pellant. 9, 1975. Jan. Decided Engel, Atty. E. Asst. U. S.
Thomas Curran, Atty. (Paul U. for the J. S. York, Bart district New M. Southern Schwartz, Gordan, D. Asst. U. S. John counsel), appellee. Attys., of KAUFMAN, Before Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges.
PER CURIAM:
Amadeo Santelises is no stran
ger to
court.
United States
Santelises,
(2d
1973),