294 F. Supp. 574 | S.D.N.Y. | 1969
Applicant, a tenant in a public housing project, seeks to intervene in a class action initiated by another tenant, Mrs. Rolle, to challenge the practices and procedures of defendant New York City Housing Authority (“Authority”) with respect to its termination of tenancies in public housing on grounds of “non-desirability”.
Mrs. Rolle’s claim is that action taken by the Authority to terminate her tenancy constituted a denial of due process in that there was not adequate advance notice of the charges against her; there was no provision for a stenographic transcript of her appearance before the Tenant Review Board; there was no opportunity to confront and cross-examine persons with actual knowledge of the charges, and the Tenant Review Board itself was not an impartial body. In addition, she claims that the Authority’s procedures are constitutionally defective because the regulations and rules governing the hearings, and the standards applied, are not made available, there are no provisions for inspection of relevant documents, there are no written decisions with findings of fact and a statement of reasons for the decision, and there is no access to prior decisions. Although she attacks the Authority’s hearing procedure, Mrs. Rolle never in fact participated in a hearing before the Tenant Review Board; she refused to go forward with the hearing when the Board denied her requests for procedures which would correct the alleged defects enumerated above.
The reason given for the action of the Authority with respect to Mrs. Rolle was: “Record of anti-social activities and arrests of your son, Fred, Jr., constituting a threat to the peace and safety' of the community.” Due to the pendency of this lawsuit, Mrs. Rolle has not received any notice of termination of her eligibility for public housing. On October 31, 1968 Judge Ryan of this Court issued an order dismissing plaintiff’s complaint; judgment was entered on November 1, and on November 27 plaintiff’s notice of appeal was filed.
The applicant for intervention is one John McTighe, who, like Mrs. Rolle, is presently a tenant in public housing in New York City. Unlike Mrs. Rolle, however, Mr. McTighe has appeared before the Tenant Review Board and has received notice that his eligibility for public housing has been terminated. In his case the reason given for termination of eligibility was “Record of disruptive activities, constituting a threat to the peace and safety of other tenants, and an adverse influence on sound family living.” The Authority has commenced a sum
Applicant asserts that he is entitled to intervene as of right as a person who “claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Rule 24(a), F.R.Civ.P. In the alternative, he asserts that he is entitled to permissive intervention as a person whose “claim or defense and the main action have a question of law or fact in common.” Rule 24(b), F.R.C.P.
The appeal from Judge Ryan’s dismissal of the Rolle action raises the threshold question whether intervention can or should be granted in an action in such a posture. The general rule is that the filing of a notice of appeal terminates the jurisdiction of the district court except with respect to those matters in which jurisdiction is reserved by statute or rules. Eigen Manufacturing Corp. v. Ventfabrics, Inc., 314 F.2d 440 (5th Cir. 1963).
Applicant cites Hobson v. Hansen, 44 F.R.D. 18 (D.D.C.1968) for the proposition that the district court does not lack jurisdiction to determine a motion to intervene after a notice of appeal was filed. In that ease, however, the Court of Appeals for the D. C. Circuit had directed the district court to decide the motion, and the district judge (Circuit Judge Wright sitting by designation pursuant to 28 U.S.C. § 291(c)) stated that prior to such mandate the district court was without jurisdiction to decide the motion in the absence of such a remand. 44 F.R.D. at 21. Furthermore, in Hobson v. Hansen the applicants for intervention were the only parties who had filed a notice of appeal; if their application had been denied no appeal could have been taken. Similarly, in American Brake Shoe & Foundry Co. v. Interborough Rapid Transit Co., 3 F.R.D. 162 (S.D.N.Y.1942), a motion to intervene in a class action was granted after the notice of appeal had been filed but before the record had been docketed, where the plaintiff who filed the notice subsequently settled his claim. Again, in that case there would have been no prosecution of the appeal if the motion had not been granted. In both cases, therefore, an exception was permitted for the reason that no appeal would otherwise have existed and the district court’s decision was necessary to preserve the appeal. 9 Moore, Federal Practice 3210 (1968). There is no contention here, however, that Mrs. Rolle is not going to prosecute the appeal. It therefore appears that a valid and timely appeal having been taken, this Court is without jurisdiction to grant applicant’s motion in the absence of a remand of the question from the Court of Appeals. In accordance with the procedure approved by the Court of Appeals for the
*576 “In this case the record had already been filed and the appeal docketed. We need not pass upon the question whether the district court loses jurisdiction at some earlier time, as when the notice of appeal is filed.” 303 F.2d at 434, n. 1. In a more recent case, however, Judge Friendly, without referring to the dicta in Ryan, stated that the district court lost jurisdiction when the notice of appeal was filed. Weiss v. Hunna, 312 F.2d 711 (2d Cir. 1963), cert. denied, 374 U.S. 853, 83 S.Ct. 1920, 10 L.Ed.2d 1073 (1963), rehearing denied, 375 U.S. 874, 84 S.Ct. 37, 11 L.Ed.2d 104 (1963).
Intervention may, in the Court’s discretion, be permitted under Rule 24(b) “when an applicant’s claim or defense and the main action have a question of law or fact in common.” Although it is true that the broadly stated claims of Mrs. Rolle and applicant are similar, and in some respects identical, the factual and legal posture of the two cases appears to be substantially different. The nature of the charges made against Mrs. Rolle and Mr. McTighe are different, and it is, therefore, likely that some different regulations were applicable to each case. The Authority may have a defense available against Mrs. Rolle, who has not undertaken to appear before the Tenant Review Board, which it would not have against Mr. McTighe who has apparently exhausted his administrative remedies before the Authority. Mr. McTighe is a defendant in a state court action in which precisely the same issues he seeks to raise here could presumably be asserted as a defense; Mrs. Rolle is involved in no such action. In light of these substantial differences between the two eases, the common questions of law which may be involved under the broad constitutional claims asserted do not persuade us as being sufficient to require exercise of discretion in favor of granting leave to intervene. See Lipsett v. United States, 359 F.2d 956 (2d Cir. 1966); Fox v. Glickman Corp., 355 F.2d 161, 165 (2d Cir. 1965), cert. denied, Levy v. Glickman Corp., 384 U.S.
This conclusion is buttressed by the fact that the main action here is currently at the appeal stage. If intervention were granted the Court of Appeals would be faced with the necessity ot considering factual and legal matters not considered by the trial court. See Lip-sett v. United States, supra, 359 F.2d p. 959; Morin v. City of Stuart, 112 F.2d 585 (5th Cir. 1989); 4 Moore, Federal Practice § 24.13, p. 99 (2d ed.). Applicant has shown no necessity for the injection of these confusing elements into the case on appeal. If the Court of Appeals decides in plaintiff’s favor and the entire case is remanded to the district court for further proceedings, a reconsideration of the application for intervention may be appropriate, but at this point we jnust deny the motion. In the meantime,) denial of intervention works no prejudice upon applicant, who remains free to prosecute his independent suit and, if unsuccessful in this Court, to appeal. Oppenheimer v. F. J. Youngs & Co., 144 F.2d 387 (2d Cir. 1944).
So ordered.
It is true that in the case of Ryan v. United States Lines Co., 303 F.2d 430 (2d Cir. 1962), the Court stated in a footnote that: