Thompson v. United States Dept. of Housing & Urban Development (348 F. Supp. 2d 398, 2005)

MEMORANDUM OF DECISION

GARBIS, District Judge.

This case was tried before the Court without a jury. The Court has heard the evidence, reviewed the exhibits, considered the materials submitted by the parties and had the benefit of the arguments of counsel.

As discussed herein, the instant case was brought on behalf of a class consisting of African-American residents of public housing units in Baltimore City claiming discrimination based on their race. Plaintiffs asserted, against Defendants , a plethora of claims based upon a broad range of legal theories. Defendants, in response, presented just as wide a variety of procedural and substantive defenses.

At trial, the parties presented weeks of evidence pertaining to racial relations and public housing in Baltimore from the post-Civil War era through the beginning of the Twenty-First Century, with the principal focus upon events since the 1954 Supreme Court decision in Brown v. Board of Ed. of Topeka, Shawnee County, Kan., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) {“Brown I”).

Accordingly, the instant decision must address a vast quantity of evidence spanning more than a half century of governmental action and/or inaction in light of a comprehensive set of claims and defenses presented by the respective parties.

The Court now issues this Memorandum of Decision as its findings of fact and conclusions of law in compliance with Rule 52(a) of the Federal Rules of Civil Procedure.

1. INTROD ÚCTION

A. Background

As the largest municipality in Maryland, a former slave state with a post emancipation policy of racial discrimination, Baltimore City historically had de jure racial segregation and' a tradition of voluntary ethnic segregation as well. Certainly, other cities below the Mason-Dixon line, including Washington, D.C., practiced racial segregation and the racial discrimination in Maryland did not rise to the point that it did in certain states. Nevertheless, in 1954 there was, to a large extent, a recognizable “ghetto” within which lived essentially no Whites and virtually all of the Black residents of Baltimore City. Moreover, to the limited extent that there were Black residents of the counties in the Baltimore Region, the racial segregation there was, if different at all, even more pronounced.

In Baltimore City, until 1954, there were two separate- school systems and there were, for all practical purposes, two separate downtowns. Whites frequented the large department stores, shops, theaters and restaurants of White Downtown in the Howard Street area. Blacks, while not legally excluded from the Howard Street stores were- typically made less than welcome and were unable to utilize eating facilities or theaters. The result was that a separate Black Downtown developed in the Pennsylvania Avenue area.

In the private sector there was open racial discrimination. Barry Levinson’s motion picture “Liberty Heights,” set in 1950’s ■ Baltimore, shocked some modern Americans with its display of the sign that, for many.years, was posted prominently outside- a . public swimming pool on Falls Road - stating: “NO JEWS, DOGS OR COLOREDS ALLOWED.”

In 1954, the leaders of then de jure segregated Baltimore City — a municipality with a population (majority White) approaching one million — had to consider what to do in light of the 1954 Supreme Court Brown I decision holding the maintenance of racially segregated schools to violate the Constitution. As particularly pertinent to the instant case, the City officials responsible for public housing decisions had to choose a course of action. They could have (as did the leadership in other segregated cities) decided to delay desegregation of public housing until such time as the Courts made it pellucid, beyond debate, that the principle that “separate but equal” public facilities were unconstitutional extended beyond the classroom. However, to their credit, they took the opposite approach.

Within a few months of the Brown I decision, HABC (the Housing Authority of Baltimore City) decided to desegregate its low-income housing units and took prompt action to carry out its decision. The prompt desegrative action, although contemporaneously considered precipitous by some who would have preferred a leisurely pace of change in racial relations, was acclaimed by those who sought progress in the civil rights area. Indeed, HABC was chosen to receive the 1955 Sidney Hollander Foundation Award for “its success in bringing White and Colored families together in the same projects.”

During the four decades following Brown I, major demographic changes affected the housing patterns in Baltimore City and the surrounding counties. The City lost many industrial jobs and experienced a major population decline as residents, primarily White and above average in affluence, moved to the counties while the City population diminished and became more than majority (and later about two-thirds) African-American.

Although historically segregated housing patterns continued to predominate in Baltimore, fair housing laws and court decisions, which made racially based residential covenants unenforceable, resulted in more racially diverse neighborhoods. By the 1990’s there was essentially no area of Baltimore City effectively off limits to residents by virtue of their race or religion. Of course, the City did not become racially homogenized. Many of those whose economic condition permitted a choice of places to live, chose to live in areas in which their race or ethnic group was in the majority.

While many African-Americans who succeeded economically chose to live in majority Black neighborhoods, others, particularly those in public housing, did not have any realistic opportunity to live in a mixed race environment absent desgrega-tive action by governmental entities. Baltimore City’s well-intentioned efforts at slum clearance and urban renewal improved the physical environment of many communities and the living conditions of some public housing residents but did little to promote racial integration of City neighborhoods.

Over time, the public housing projects became virtually all-Black. Essentially no Whites moved into the formerly segregated all-Black projects while the formerly all-White projects, over time, became first predominantly, and later virtually entirely, African-American also. Moreover, because established neighborhoods tended to fight the development of additional family public housing in their communities, after the construction of Hollander Ridge in the 1970’s little additional family public housing was added to the City’s supply other than scattered site units.

By 1990, it was generally recognized that the high-rise family public housing projects were dangerous and inappropriate places for families. One of the beneficial results of the instant case was a Consent Decree, whereby, pursuant to an agreed Court Order, the high-rise projects were demolished. Nevertheless, there have, not been significant opportunities for African-American residents of Baltimore City public housing to reside in racially mixed, rather than predominantly African-American, areas.

In the instant case, Plaintiffs contend that since 1954 the leadership of Baltimore City, during the mayoral administrations of DeAlesandro, Jr. (“Old Tommy”), Grady, Goodman, McKeldin (second administration), D’Alesandro, III (‘Young Tommy”), Schaeffer, Burns and Schmoke, engaged in a pattern and practice- of discrimination against Blacks in regard to public housing. Plaintiffs further claim that, during the Schmoke administration, Defendants intentionally engaged in racial discrimination in violation of the United States Constitution and failed to take required action to ameliorate the effects of past race based discrimination in regard to public housing.

B. Summary of Decision

Plaintiffs filed the instant case on January 31, 1995 asserting Constitutional and statutory claims. The case is, of course, governed by statutes of limitations that restrict the time period for which a claim may be asserted. The period for which claims may be asserted against Local Defendants is three years and against Federal Defendants is six years. This means that, as to Local Defendants, a claim is time barred unless it is based upon an actionable wrong committed during the three year period from January 31,1992 to the date of filing. For Federal Defendants, a claim is time barred unless it is based upon an actionable wrong committed during the six year period from January 31, 1989 to the date of filing. For convenience the term “Open Period” is used to refer- to the period for which limitations are open, recognizing that it is a three year period for Local Defendants and a six year period for Federal Defendants.

While the Open Period stretches back to no earlier than January 31, 1989, it is necessary to consider evidence relating to events of earlier years. This results because Plaintiffs have asserted two types of claims: .

1. Claims for alleged “active” wrongs committed during the Open Period, and

2, Claims for failure, during the Open Period, to take required action to ameliorate the effects of past wrongful racial discrimination.

Accordingly, the substantive focus of the case is on alleged wrongdoing by virtue of (1) positive discriminatory actions during the Open Period and (2) pre-Open Period discrimination for which the effects continued into the Open Period and were not then adequately addressed.

The Mayor of Baltimore City during the entire Open Period , was Kurt Schmoke. One set of Plaintiffs’ claims is based upon • the allegation that the Schmoke administration and Federal Defendants intentionally discriminated against Plaintiffs because of their race. The other set of Plaintiffs’ claims is that during past mayoral administrations Defendants had intentionally discriminated in housing based upon race, that during the Schmoke administration there remained vestiges of that prior discrimination, and that during the Schmoke administration Defendants did not take required affirmative action to ameliorate the effects of that past discrimination.

It is undisputed that prior to the 1954 Brown I decision Federal and City administrations had intentionally discriminated against African-American residents of public housing due to their race. Accordingly, it would be possible for Plaintiffs to establish a viable claim even if they could not prove deliberate racial discrimination during the Schmoke administration.

The Court finds that, with one possible exception, Plaintiffs have not proven intentional racial discrimination in public housing on the part of Local or Federal Defendants during the Schmoke administration. Moreover, subject to the same exception, Plaintiffs have not proven that Defendants, during the Schmoke administration, violated a duty to take affirmative action to ameliorate the effects of prior intentional race based discrimination.

The Court further finds that Plaintiffs have not prevailed on their statutory claims against Local Defendants. The Court finds, however, that Plaintiffs have proven a statutory claim, and possibly a Constitutional claim as well, against Federal Defendants. It is with respect to HUD, and its failure adequately to consider a regional approach to desgregation of public housing, that the Court finds liability-

Section 3608(e)(5) of the Fair Housing Act requires Federal Defendants to “administer [housing] programs... in a manner affirmatively to further the policies of [the Act].” These policies include the provision of housing free from discrimination.

Geographic considerations, economic limitations, population shifts, etc. have rendered it impossible to effect a meaningful degree of desegregation of public housing by redistributing the public housing population of Baltimore City within the City limits. Baltimore City should not be viewed as an island reservation for use as a container for all of the poor of a contiguous region including Anne Arundel, Baltimore, Carroll, Harford and Howard Counties. Baltimore City contains only approximately 30% of the Baltimore Region’s households. In 1940, 19 percent of the population of Baltimore City was African-American. By 2000, the population of Baltimore City was 64 percent African-American, while the population of the rest of the Baltimore Region was 15 percent Black.

In light of HUD’s statutory duties and the fact that its jurisdiction and ability to exert practical leverage extend throughout the Baltimore Region, it was, and continues to be unreasonable for the agency not to consider housing programs that include the placement of a more than insubstantial portion of the Plaintiff class in non-impacted areas outside the Baltimore City limits.

The Court finds an approach of regional-ization to be integral to desegregation in the Baltimore Region and that regionalization was an important alternative course of action available to Federal Defendants. By the term “regionalization” the Court refers to policies whereby the effects of past segregation in Baltimore City public housing may be ameliorated by providing housing opportunities to the Plaintiff class beyond the boundaries of Baltimore City. It remains to be seen, in further proceedings, whether HUD’s failure adequately to consider regionalization policies was motivated by an intent to discriminate based upon race, a willingness to bow to political pressure, oversight, neglect and/or other causes.

In sum, the Court finds that HUD failed to consider regionally-oriented desegregation and integration policies, despite the fact that Baltimore City is contiguous to, and linked by public transportation and roads to, Baltimore and Anne Arundel Counties and in close proximity to the other counties in the Baltimore Region. In effectively wearing blinders that limited their vision beyond Baltimore City, Federal Defendants, at best, abused their discretion and failed to meet their obligations under the Fair Housing Act to promote fair housing affirmatively.

It is high time that HUD live up to its statutory mandate to consider the effect of its policies on the racial and socioeconomic composition of the surrounding area and thus consider regional approaches to promoting fair housing opportunities for African-American public housing residents in the Baltimore Region. This Court finds it no longer appropriate for HUD, as an institution with national jurisdiction, essentially to limit its consideration of desgrega-tive programs for the Baltimore Region to methods of rearranging Baltimore’s public housing residents within the Baltimore City limits.

The case shall proceed to the remedial phase. The Court shall hear evidence regarding the appropriate action to take to insure that HUD shall, in the future, adequately consider a regional approach to the desegregation of public housing in the Baltimore Region.

C. Evidentiary Principles

In view of the nature of the case, the parties presented a variety of expert opinion witnesses whose testimony was the subject of objections from opposing counsel. In lieu of lengthy hearings — prior to or during trial — regarding the admissibility of expert witness evidence, the Court essentially permitted the parties to present-all proffered expert witness testimony and provided guidelines regarding the manner in which such testimony would be considered.

Accordingly, the direct examination of each expert witness was presented in the form of a written report with an hour or so of direct testimony to summarize and highlight the report. There was, of course, full cross-examination permitted.

The Court has, in the decisional process, followed the guidelines stated prior to trial. Accordingly, in the evaluation of expert witness testimony, the Court has been guided by the following principles:

1. Statements of legal principles, concepts, statutory and precedent interpretations, etc. are considered to be expressions of the witness’ premises on which any admissible opinions may be based.

2. Statements of “facts” by expert witnesses do not constitute evidence of the “facts” but, rather, are articulations of the bases for the expert’s opinions under Rule 703 of the Federal Rules of Evidence.

a. E.g., Plaintiffs’ witness stated, “After Brown, not a single family public housing project was sited in a white residential neighborhood.” [Written Direct] Test, of john a. powell [sic ] ¶ 14. This is not evidence of the absence of such siting.

3. Statements purporting to summarize or characterize other witness’ testimony do not constitute evidence of what' was, in fact, stated by the other witnesses.

4. Opinions as to how the Court should rule on issues presented herein are arguments that may, or may not, be persuasive, depending upon the underlying rationale but not by virtue of an expert witness’ ipse dixit E.g.:

a. “This [1950] ordinance is a powerful vestige of the era of de jure segregation that continues to steer public housing to black ‘slum areas’ and away from white neighborhoods ...” Id. ¶ 112.

b. “They [HUD and HABC] have not taken adequate steps to eliminate the ongoing segregative effects of their earlier policies in Baltimore and have developed additional racially segregated public housing.” Id. ¶ 114.

5. An expert’s opinion that certain “facts” tend to establish a particular proposition is not evidence of the proposition but, rather, constitutes argument that has been considered as such. E.g.:

a. “Examples such as Hollander Ridge and School 47 demonstrate that HUD and HABC consistently ‘caved in’ to white political opposition to the siting ...” Id. ¶ 16.

b. “Data on the siting of [certain Public Housing] ... shows continuing progress in providing opportunities for Public Housing residents to live outside areas of minority concentration.” Written Direct Test, of William M. Rohe, at 23.

6. Opinions in the form of generalities, or regarding tangential matters, even if arguably pertinent, are of de minimis significance. E.g.:

a. “Over time federal policies have come to recognize that integration is a critical element...” [Written Direct] Test, of john a. powell [sic ] ¶ 1.

b. “In Baltimore alone, 13,595 public housing units were developed after Brown [“fact”], a critical mass that would have changed the trajectory of metropolitan development [opinion].” Id. ¶ 52.

7. Pejorative expressions have been disregarded.

8. Opinions relating to the remedy phase shall be considered only to the extent, if any, pertinent to the instant liability phase.

9. Opinions that manifestly do not meet the admissibility standard of Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and its progeny constitute argument.

a. E.g., “These siting decisions by HABC and HUD were intentional and willful as was the segregative result.” [Written Direct] Test, of john a. powell [sic ] ¶ 15.

10. Unless otherwise indicated, for purposes of clarity, citations to the written direct (ie., “canned direct”) testimony of expert witnesses throughout this opinion reference the names of said submissions as they appear on the submissions themselves. Thus, the Court notes an expert’s title (“Dr.”, “Ph.D.”, etc.) only if it is included in the submission’s heading. The Court intends no disrespect by any omission of an expert witness’ title.

II.THE LEGAL FRAMEWORK

A. The Parties

1. Plaintiffs

The named Plaintiffs are representatives of a class consisting of:

[a]ll African-Americans who resided in Baltimore City family public housing units ... between - January 31, 1995 and [June 25, 1996], who presently reside in Baltimore City family public housing units or who will in the -future reside in Baltimore City family public housing units prior to [such time that certain of the Defendants’ desegregation obligations are fulfilled or expire].

See Order of June 25, 1996 granting' the Joint Mot. of the Parties to Certify Class [Paper 54].

2.Defendants

Plaintiffs have sued two sets of Defendants, those responsible for the pertinent actions of the City of Baltimore (“Local Defendants”) and those responsible for the pertinent actions of the United States government (“Federal Defendants)”

Local Defendants are the Housing Authority of Baltimore City (“HABC”), the Executive Director of HABC, and the Mayor and City Council of the City of Baltimore.

Federal Defendants are the United States Department of Housing and Urban Development (“HUD”) and the Secretary of HUD (the “Secretary”).

B. Plaintiffs’ Claims

Plaintiffs assert claims against Local Defendants and Federal Defendants grounded upon:

1. The United States Constitution— Equal Protection under the Fourteenth and Fifth Amendments.

2. Title VIH of the Civil Rights Act of ■1968 (“Title VIII,” the “Fair Housing Act” or “FHA”).

3. Title VI of the Civil Rights Act of 1964 (“Title VI”).

4. The United States Housing Act of 1937 (“USHA”).

5. 'The Housing ánd Community Development Act of 1974 (“HCDA”).

These asserted bases for the Plaintiffs’ claims are discussed herein in turn.

1. The Constitutional (Equal Protection) Claims

Plaintiffs base their Constitutional claims on the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution (as applied to Maryland state actors) and the Equal Protection guarantee of the Fifth Amendment (binding the Federal government).

Generally, an individual is denied Equal Protection of the laws when a government actor, to that individual’s detriment, draws distinctions on the basis of race. E.g., McLaughlin v. Fla., 379 U.S. 184, 192, 85 S.Ct. 283, 13 L.Ed.2d 222 (1964) (a reviewing court must apply “strict scrutiny” to racial classifications). As most pertinent to the instant case, individuals are denied Equal Protection when, by the operation of public policies and programs, they are segregated on the basis of race. Brown I, 347 U.S. at 493-95, 74 S.Ct. 686 (such separation in public schools is inherently unequal regardless of its purported “equality”); Johnson v. Va., 373 U.S. 61, 62, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963) (applying Brown I more generally to public facilities).

Even where a law is neutral on its face, discriminatory or segregatory application and administration of that law may deny Equal Protection rights. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74, 6 S.Ct. 1064, 30 L.Ed. 220 (1886).

a. Intentional Discriminatory Actions

A state actor’s conduct violates the Equal Protection Clause only insofar as it results from a discriminatory purpose. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976); Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) (“Arlington Heights I”).

In the context of Equal Protection, the term “ ‘discriminatory purpose[ ]’ ... implies more than... awareness of [discriminatory] consequences.” Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 60 L.Ed.2d 870 (1979). “Discriminatory purpose” implies that a policymaker “selected or reaffirmed a particular course of action at least in part ‘because of[ ]’... its adverse effects on an identifiable group.” Id. (emphasis added). The Supreme Court has made it clear that a racially discriminatory motivation may render state action unconstitutional even if such action is supported by other, legitimate, motivations.

While neither a disparate impact on members of a particular class nor the foreseeability of this impact to policymakers suffices to ground Constitutional liability, “actions having foreseeable and anticipated disparate impact are relevant evidence to prove the ultimate fact, forbidden purpose.” Columbus Bd. of Educ. v. Penick, 443 U.S. 449, 464, 99 S.Ct. 2941, 61 L.Ed.2d 666 (1979). Sometimes a “clear pattern, unexplainable on grounds other than race emerges from the effect of the state action ...” Arlington Heights I, 429 U.S. at 266, 97 S.Ct. 555. The Court must also consider other available evidence bearing on discriminatory intent, including the historical background and context of a government action or policy and the legislative and administrative records kept in conjunction with such conduct. Id., at 267-68, 97 S.Ct. 555.

If a plaintiff presents proof that a government defendant’s decision was motivated in part by a racially discriminatory purpose, the burden shifts to the defendant to establish, by a preponderance of the evidence, that the same decision would have resulted even had the impermissible purpose not been considered. If, and only if, a defendant fails to meet this burden, a court may find liability. Id., at 271 n. 21; 97 S.Ct. 555.

Accordingly, to establish Equal Protection liability, Plaintiffs may present proof that Defendants acted in a way that served to isolate Plaintiffs on the basis of race, motivated at least in part by a purpose to affect this discriminatory and adverse consequence. Unless Defendants show that their pertinent conduct would have been the same even in the absence of improper motivations, such proof can provide a basis for liability.

2. Duties Related to Past Discrimination

In the instant case, the Plaintiffs contend that the Defendants not only intentionally discriminated against them during the period for which limitations are open (“the Open Period”) but also failed to meet obligations that existed by virtue of past discrimination for which a direct cause of action would be time barred.

Purposeful discrimination of a pervasive and chronic nature may confer upon government actors an affirmative duty to remedy past wrongs. See Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294, 299-300, 75 S.Ct. 753, 99 L.Ed. 1083 (1955) {“Brown II ”). A failure by Defendants to fulfill these duties during the Open Period would provide a basis for Equal Protection liability.

The Supreme Court decision in Brown II imposed the duty on local school boards to ‘effectuate a transition to a racially nondiscriminatory school • system.’ Penick, 443 U.S. at 458, 99 S.Ct. 2941, quoting Brown II, 349 U.S. at 301, 75 S.Ct. 753. In Penick, the Defendant was deemed to be “since the decision in [Brown II] [,] under a continuous Constitutional obligation to disestablish” its segregatory system. Id. (emphasis, added). The Supreme Court has also held that “[p]art of the affirmative duty imposed by our cases... is the obligation not to take any action that would impede the process of disestablishing the dual system and its effects.” Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538, 99 S.Ct. 2971, 61 L.Ed.2d 720 (1979)..

While an affirmative discriminatory act must be purposeful, there is no similar “intent” element concerning the abdication of duties stemming from past discriminatory acts. Id. (“the measure of the post-Brown I conduct of a school board under an unsatisfied duty ... is the effectiveness, not the purpose,' of [its] actions”).

As this Court has stated, there appears to be no basis to limit the “disestablishment” and “non-obstruction” duties, articulated in Penick and Brinkman, to the context of public schools. Indeed, as is the case with public schools, the vestiges of public housing segregation can adversely impact numerous members of a disadvantaged class for prolonged periods of time, thus warranting the imposition on offending state actors of obligations to alleviate such burdens. On this question, the Court finds convincing the rationale expressed in United States v. Yonkers Board of Education, 624 F.Supp. 1276 (S.D.N.Y.):

It is indisputable that a hypothetical single state agency which controls the operation of, and engages in the racial segregation of, both housing and schools — by confining for racial reasons the city’s subsidized housing to one section of the city, while simultaneously adhering to a neighborhood school policy of student assignment — can be held liable for such conduct. It is inconceivable that state action may be fractionalized such that two state agencies could be permitted collectively to engage in precisely the same conduct, yet avoid legal accountability for the identical result.

Id. at 1535.

It may be difficult to specify the precise obligations that arise out of past discrimination under the Broim cases. Nevertheless, Brown II certainly imposes upon formerly discriminating government entities obligations to disestablish segregation in good faith, fairly and equitably, with due consideration of “local conditions” and with “practical flexibility,” “reconciling public and private needs” yet acting promptly and reasonably, to eliminate the vestiges of discrimination and segregation. Brown II, 349 U.S. at 299-301, 75 S.Ct. 753.

Defendants under a duty to remedy past discrimination must, in the broadest sense, treat the victims of discrimination fairly. As detailed above, their obligations under the Brown cases are defined upon the bona fide consideration of various factors. As subsequent Supreme Court decisions elucidate, the weight assigned to each of these factors is determined from the totality of attendant circumstances.

For instance, where there has been “too much deliberation and not enough speed” in enforcing Constitutional rights, a further premium is placed on promptly and effectively disestablishing discriminatory vestiges. See Griffin v. County School Bd. of Prince Edward County, 377 U.S. 218, 229, 84 S.Ct. 1226, 12 L.Ed.2d 256 (1964); Green v. County School Bd. of New Kent County, Va., 391 U.S. 430, 438-39, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). Where abuses have been less flagrant, defendants’ duties appear to have been construed with greater deference to “practicality” and the pursuit of other legitimate policy. See United States v. Fordice, 505 U.S. 717, 731, 112 S.Ct. 2727, 120 L.Ed.2d 575 (1992). Where the passage of time, demographic change, or remedial efforts have dulled the effects of antecedent discrimination, defendants’ obligations — and indeed, the propriety of judicial intervention' — may likewise be altered. See Freeman v. Pitts, 503 U.S. 467, 494-96, 112 S.Ct. 1430, 118 L.Ed.2d 108 (1992). Finally and most obviously, as Brinkman teaches, a defendant with a Brown II duty may not undermine its own disestablishment policies or otherwise impede desegregation. Brinkman, 443 U.S. at 538, 99 S.Ct. 2971.

In summary, if Plaintiffs demonstrate an affirmative and purposeful segregatory action by Defendants in the administration of housing policy that took place prior to the relevant Open Period, such conduct may obligate Defendants to disestablish the vestiges of the discrimination they imposed. The Court must determine the extent and nature of Defendants’ obligations on the basis of the circumstances demonstrated by each of the parties to this suit. Equal Protection liability lies if Plaintiffs further demonstrate that Defendants, regardless of their intent, failed to fulfill such obligations within the Open Period. In essence, Plaintiffs could prevail if they prove that Defendants failed to treat the victims of past racial discrimination as required.

C. Statutory and Regulatory Claims

1.The Fair Housing Act (“FHA”) (Title VIII)

Title VIII prohibits public and private actors from engaging in a number of discriminatory practices and requires the statute be administered so as to fulfill its articulated goals. In general, to establish Title VIII liability, a plaintiff may show that such practices have caused her harm by affecting a discriminatory or segregato-ry impact upon her. Unlike the U.S. Constitution, Title VIII imposes liability on a government defendant even though a plaintiff may fail to prove that the defendant acted with discriminatory intent. However, a defendant may avoid statutory liability by demonstrating that its conduct served a public interest. unattainable by alternate means.

a. Alleged Fair Housing Act Violations

Plaintiffs must make a threshold showing that Defendants, during the Open Period, engaged in some type of practice proscribed by Title VIII. Plaintiffs have alleged three types of such practices:

1. The denial of housing;

2. Discrimination in housing conditions and services; and

3. The failure to promote fair housing. These allegations are discussed in turn.

(1). “Denial” of Housing (§ 3601(a))

Section 3604(a) of the FHA provides that it shall be unlawful “[t]o refuse to sell or rent... or otherwise make unavailable or deny ... a dwelling to any person because of race ...” (emphasis added).

At least with respect to government defendants, the case law indicates that there can be a constructive illegal “denial” of housing — i.e., a government entity may violate § 3604(a) by denying a plaintiff a housing opportunity (as opposed to an actual brick-and-mortar dwelling). See e.g., Smith v. Town of Clarkton, N.C., 682 F.2d 1055, 1065-66 (4th Cir.1982) (a town’s withdrawal from a multi-municipality housing authority may ground § 3604(a) liability); Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 131 (3d Cir.1977) (illegal denial of housing may result from “inchoate” state action — defendant housing authority began, but did not complete, a public housing development); United States v. City of Black Jack, Mo., 508 F.2d 1179, 1188 (8th Cir.1974) (finding liability based on a zoning ordinance). Indeed, in an era where housing authorities are transitioning from the provision of “hard units” to the administration of more intangible housing programs involving vouchers etc., a broad reading of § 3604(a) is appropriate to continue to hold government entities accountable under the subsection.

Edwards v. Johnston County Health Dep’t, 885 F.2d 1215 (4th Cir.1989) does not preclude this reading of § 3604(a). In Edwards the United States Court of Appeals for the Fourth Circuit held that migrants could not assert § 3604(a) based upon their being afforded substandard housing. Id., at 1222-24. There is logic to this since Title VIII should not be morphed into a housing code. Yet, Edwards is not controlling here. There is a discernable difference between the provision of substandard housing and the full denial of housing opportunities.

Such a denial would be actionable under the FHA.

(2). Housing Conditions/Services (§ 8604(b))

Section 3604(b) of the FHA states that it shall be unlawful “[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race ...”

As its text suggests, § 3604(b) is broad in scope. Several courts have interpreted this subsection quite expansively, for instance including within the scope of “services in connection with housing” the provision of police protection to homeowners. Campbell v. City of Berwyn, 815 F.Supp. 1138, 1144 (N.D.Ill.1993) (discriminatory termination of police protection is prohibited by § 3604(b)). Of course, this Court’s construction of § 3604(b) must be guided and bound by established principles of statutory interpretation.

In sum, discrimination in the conditions of housing, or in the provision of housing services, as specified above, is actionable.

(3). Failure to Promote Fair Housing (§ 3608)

Section 3608(e)(5) requires Defendants to “administer [housing] programs ... in a manner affirmatively to further the policies of this subchapter,” among these the policy “to provide, within constitutional limits, for fair housing throughout the United States.” 42 U.S.C. § 3601 (2003). “Fair housing,” within the meaning of § 3601, means the elimination of discrimination in the sale or rental of housing.

Section 3608 imposes upon Defendants an “affirmative” obligation; it requires Defendants to do something “more than simply refrain from discriminating themselves or from purposely aiding discrimination by others.” N.A.A.C.P. v. Secretary of Housing and Urban Development, 817 F.2d 149, 155 (1st Cir.1987)(“N.AAaP”) To the contrary, “[a]ction must be taken to fulfill, as much as possible, the goal of open, integrated residential housing patterns and to prevent the increase of segregation[.]” Id.,quoting Otero v. N.Y. City Hous. Auth., 484 F.2d 1122, 1134 (2d Cir.1973).

Certainly, § 3608 “does not mandate specific actions or remedial plans.” McGrath v. Dep’t of Housing and Urban Dev., 722 F.Supp. 902, 908 (D.Mass.1989). It does, however, within Constitutional limits, hold Defendants’ actions to a high standard, in this case to have a commitment to desegregation. Defendants’ failure to attain this standard can constitute an actionable statutorily violative practice.

b. Enforcement of Alleged FHA Violations

Plaintiffs alleged that Defendants’ practices violate three provisions of Title VIII. These provisions are enforced through different mechanisms, which are discussed in turn.

(1). Sections 360I(a) and 3601(b)

After demonstrating that a defendants’ practice falls within the purview of § 3604(a) and (b) of the FHA, a plaintiff can make a prima facie case of liability by proving that this practice produced a discriminatory impact or arose from a discriminatory purpose. Most Courts of Appeal, including that for the Fourth Circuit, have expressed the view that intent need not be established in the FHA context if there is proof of a discriminatory impact. Metro. Hous. Dev. Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290 (7th Cir.1977) (“Arlington Heights II”); Clarkton, 682 F.2d at 1065.

However, not all discriminatory effects can ground § 3604 liability. The Court must determine whether it is appropriate to impose liability on the basis of a discriminatory impact, upon consideration of four factors:

1. The strength of Plaintiffs’ showing of discriminatory or segregatory effect;

2. The evidence of discriminatory intent, though falling short of the Constitutional standard — i.e., some kind of “mens rea,” though not necessarily the discriminatory “purpose” required by Washington v. Davis and its progeny;

3. Defendants’ interest in undertaking the conduct complained of; and

4. The burden that Defendants would bear if Plaintiffs prevail.

Arlington Heights II, 558 F.2d at 1290.

Where discriminatory “intent” alone is the basis for § 3604 liability, it is defined consistently with the definition used in Equal Protection cases. Moreover, so long as a state actor undertakes conduct “because of’ race, it need not directly demonstrate racial animus or hatred. E.g., Adarand, 515 U.S. at 229, 115 S.Ct. 2097.

If a plaintiff establishes a prima facie case as described above, the burden shifts to a Title VIII defendant to prove, by a preponderance of the evidence, that its conduct was justified. Such “justification must serve, in theory and practice, a legitimate, bona fide interest of the... defendant, and the defendant must show that no alternative course of action could be adopted that would enable that interest to be served with less discriminatory impact.” Rizzo, 564 F.2d at 149. If the defendant does show that no such alternative course of action can be adopted, the burden once again shifts to the plaintiff to demonstrate that other practices are available. Id., at 149 n. 37.

(2). Section 3608

Section 3608 of Title VIII is enforceable through the Administrative Procedure Act (“APA”), which regulates the administration and operation of federal agencies, because the provision requires Federal Defendants to affirmatively administer the agency’s programs so as to promote fair housing. Under § 706(2)(A) of the APA, the reviewing court “shall.. .hold unlawful and set aside agency action.. .found to be.. .arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;...” Nevertheless, it is well established that a court may not substitute its own policy choices for that of the agency when reviewing an agency’s actions under the “arbitrary and capricious” standard. See Fort Mill Telephone Co. v. F.C.C., 719 F.2d 89, 91 (4th Cir.1983) (citing SEC v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947)). Rather, a court “must give deference ... to the agency’s decision if supported by a rational basis in the record.” Id. (citing American Meat Inst. v. U.S. Dept. of Agriculture, 646 F.2d 125, 126 (4th Cir.1981)). Thus the Court must afford a wide measure of deference to HUD’s decision making process when reviewing whether the agency's actions fulfilled its statutory duties under § 3608 of Title VIII.

2. Title VI (§ 601)

Section 601 states, “No person in the United States shall, on the ground of race,... be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 42 U.S.C. § 2000d (2003). Section 601 reaches a wide range of discriminatory practices, and it has been applied to discrimination in the administration of public housing. E.g., Hills v. Gautreaux, 425 U.S. 284, 296, 96 S.Ct. 1538, 47 L.Ed.2d 792 (1976) (“Gautreaux”).

The Supreme Court and the Courts of Appeal have not been consistent in regard to whether § 601 liability requires a finding of intentional discrimination or merely disparate impact. The United States Court of Appeals for the Fourth Circuit most recently has stated that “ § 601 prohibits only intentional discrimination, not ‘disparate impact’ practices.” Peters v. Jenney, 327 F.3d 307, 315 (4th Cir.2003), citing Alexander v. Sandoval, 532 U.S. 275, 280, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Thus the “mens rea” required for a § 601 violation in the Fourth Circuit is more than enough to meet the Title VII standard (which Plaintiffs urge the Court to apply) and is akin to the discriminatory purpose required for Constitutional liability: “ § 601 [applied to state actors] ‘proscribe[s] only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment[.]’ ” Peters, 327 F.3d at 315, quoting Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 287, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978)(opinion of Powell, J.).

Accordingly, to establish § 601 liability, Plaintiffs must show that Local Defendants, within the limitations periods, engaged in conduct proscribed by the section with a “discriminatory purpose,” as defined in Washington v. Davis and its progeny.

3. United States Housing Act (“USHA”) Provisions

The Court, in its Memorandum and Order of November 26, 2003 (at 9-11), held that USHA certification provisions implied neither a right of action nor any other basis for Plaintiffs to seek relief from Local Defendants. On the same rationale, the Court holds that the USHA provisions relied upon by Plaintiffs do not provide a right of action against Federal Defendants. In the absence of a showing of legislative intent, the Court cannot accept Plaintiffs’ invitation to imply such a right. Plaintiffs have no potential cause of action under the USHA certification provisions.

4. The Housing and Community Development Act (“HCDA”) Provisions

As recognized by Plaintiffs, “[HCDA] Section 5304(b)(2) is»nearly identical to [the pertinent USHA provisions]” in many respects. As with § 1437 et seq. of the USHA, there is no legislative history indicating the provision of a right of action; § 5304(b)(2) merely sets a standard for federal funding of state and local government activities.

The U.S. Supreme Court has noted that such funding conditions do not readily imply a private right of action against the noncompliant entity, as the chief “penalty” for noncompliance contemplated by Congress is the withdrawal of federal funds. Gonzaga Univ. v. Doe, 536 U.S. 273, 280, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002), quoting Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). Accordingly, on the rationale of the November 26, 2003 Memorandum and Order, the Court holds that § 5304(b)(2) neither confers a right of action nor a basis for suit under 42 U.S.C. § 1983. Nor can HUD regulations implementing the provisions do so. Where Congress does not confer upon individuals a particular type of access to the federal courts, an agency acting upon that congressional mandate is without power to confer such a right. Sandoval, 532 U.S. at 291, 121 S.Ct. 1511.

Accordingly, Plaintiffs have no potential cause of action under the HCDA.

D. Procedural Enforcement Mechanisms

Plaintiffs seek to enforce their claims against Federal Defendants by virtue of the Administrative Procedure Act (“APA”) as well as alleged direct causes of action implied from the Constitution and pertinent statutes. Plaintiff seek to enforce their claims against Local Defendants through the enforcement mechanism provided by 42 U.S.C. § 1983 as well as alleged direct causes of action implied from the Constitution and pertinent statutes.

The following table summarizes Plaintiffs’ positions in this regard:

Substantive Enforcement Mechanism, Enforcement Mechanism, Source of Right_vs. Fed. Defs._vs. Local Defs.

Equal Protection Direct implication of right of § 1983 action; APA

Title VIII Direct implication of right of Direct implication of right of _action; APA; § 3613_action; § 1983; § 3613

Title VI Direct implication of right of Direct implication of right of action; APA_action; § 1983

I. Constitutional Claims

a. Local Defendants

Pursuant to 42 U.S.C. § 1983, persons acting “under color of’ state law — • including municipalities and state and local officers and agencies' — may be held accountable for infringement both of Federal Constitutional and statutory rights.

Accordingly, Plaintiffs may proceed on their Constitutional claims against Local Defendants by virtue of 42 U.S.C. § 1983.

b. Federal Defendants

It is settled that provisions of the U.S. Constitution setting forth individual rights generally also empower individuals to sue Federal officers and agencies for violations of these rights, particularly if (as here) the relief sought is injunctive. Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L.Ed. 1628 (1949); see also, Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Federal Defendants concede they may thus be sued for Constitutional violations. Tr., at 4176. Moreover, Federal Defendants do not, and cannot, dispute that Constitutional violations may provide a basis for an APA claim.

Accordingly, Plaintiffs may proceed on their Constitutional claims against the Federal Defendants.

2. Statutory Claims

a. Local Defendants

In its Memorandum and Order of November 26, 2003, the Court held that the substantive Title VIII provisions cited by Plaintiffs afforded rights cognizable under § 1983. Memorandum and Order at 11-13. Title VI provisions similarly afford Plaintiffs cognizable rights. Upon a finding of liability, § 1983 would empower the Court to afford Plaintiffs the injunctive relief for which they ask.

Accordingly, Plaintiffs may proceed on their statutory claims against the Local Defendants by virtue of 42 U.S.C. § 1983.

b. Federal Defendants

(1). The Administrative Procedure Act

The APA authorizes “action[s] in a court of the United States seeking relief other than money damages[.]”

A person suffering legal wrong because of [federal] agency action, or adversely affected or aggrieved by agency action ... is entitled to judicial review thereof.

ik * $ $ ‡ $

The reviewing court shall... hold unlawful and set aside agency action... found to be... arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law [or] contrary to constitutional right[.]

5 U.S.C. §§ 702, 706(2)(A) and (B)(2003).

Statutory violations, of course, may constitute agency action “not in accordance with law” within the meaning of the APA. However, the APA, by its own terms, precludes such statute-based rights of action in two pertinent circumstances: 1) where decisions are committed to agency discretion, and 2) where alternate remedies under Federal law are adequate to redress plaintiffs’ grievances.

(a). Commitment to Agency Discretion

Federal Defendants contend that certain of HUD’s actions challenged by Plaintiffs (chiefly, its supervision of HABC operations) are inherently committed to HUD’s own discretion and therefore may not be reviewed by this Court under the APA.

Federal Defendants liken the instant case to Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), where the Supreme Court precluded APA scrutiny of the Food and Drug Administration’s failure to take investigatory and enforcement measures to prevent perceived drug use violations. The Heckler Court compared the FDA’s enforcement discretion to that of a prosecutor, noting that the agency was most apt at determining how to spend its resources and that an agency’s decision not to “prosecute” was neither coercive nor threatening to individual liberties. Id., at 832, 105 S.Ct. 1649.

Heckler is inapposite to the instant case. HUD acts, primarily, not as HABC’s investigator or “prosecutor,” but as a collaborator in the production and administration of housing policy. HUD’s position is not passive. Rather, HUD acts affirmatively, funding and providing operational support for housing initiatives. And if HUD, alone or in collaboration with Local Defendants, acts in violation of Federal civil rights laws, it would indeed threaten individual liberties.

Moreover, while HUD has discretion in regard to allocating its own resources, such allocations are constricted by the operation of Federal law and policies. Title VIII, in particular, gives HUD a discerna-ble mandate that it must follow; the agency is required by provisions of Title VIII to act in conformity with the rules and principles embodied therein. E.g., 42 U.S.C. § 3608 (2003).

Accordingly, HUD’s actions implicated herein are not products of inherently unre-viewable discretion.

(b). Adequacy of Alternate Remedies

Section 704 provides that “final agency action[s] for which there is no other adequate remedy in a court are subject to judicial review [under the APA.]” Federal Defendants contend that Titles VIII and VI provide adequate means for Plaintiffs to assert their grievances, and that Federal Defendants’ conduct therefore may not be scrutinized by federal courts under the APA. Thus, the Court must consider, in turn, whether provisions of Titles VIII and VI preclude APA review.

i). Title VIII

While the issue has not yet been definitively addressed by the Fourth Circuit, a number of rulings from other Courts of Appeal indicate that, notwithstanding § 704 and the remedial provisions of Title VIII (§§ 3610-13), tenants may present APA claims against HUD for discrimination grievances. See e.g., Latinos Unidos De Chelsea En Accion (Lucha) v. Sec’y of HUD, 799 F.2d 774, 791 (1st Cir.1986) (hereinafter, “FLUCHA”); Alschuler v. HUD, 686 F.2d 472, 477-78 (7th Cir.1982); Darst-Webbe Tenant Ass’n Bd. v. St. Louis Hous. Auth., 339 F.3d 702, 713 (8th Cir.2003). But see, Am. Disabled for Attendant Programs Today (ADAPT) v. Dep’t of HUD, 170 F.3d 381, 390 (3d Cir.1999); Women’s Equity Action League v. Cavazos, 906 F.2d 742, 751 (D.C.Cir.1990). Indeed, the First Circuit has suggested that HUD’s obligations to affirmatively further fair housing policies under § 3608 may only be scrutinized in the context of the APA. Lucha, 799 F.2d at 793.

The APA affords Plaintiffs a broad, direct and substantial opportunity to challenge HUD’s actions, exceeding in a number of respects the opportunities provided by the Title VIII remedial provisions. Accordingly, the Court does not construe § 704 to foreclose Plaintiffs’ access to the APA with respect to HUD’s alleged Title VIII violations.

In sum, in the instant case, Plaintiffs can hold Federal Defendants liable for Fair Housing Act violations under the APA.

ii). Title VI

The Fourth Circuit has ruled with respect to Title VI-based claims and the APA in Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180 (4th Cir.1999). Considering Congress’ intent in crafting Title VI and alternate remedies available pursuant thereto, the Jersey Heights court held that aggrieved persons’ “direct remedy against funding recipients is not only ‘adequate’ but... preferable to a direct suit against the agency itself.” IcL, at 191-192.

Accordingly, Plaintiffs cannot here assert Title VI-based claims against Federal Defendants via the APA. The Court must consider Plaintiffs’ alternate theory for enforcing Title VI against Federal Defendants.

Plaintiffs urge the Court to directly imply from Title VI (§ 601) a right of action against Federal Defendants. The Court declines to do so, as nothing in § 601’s text would strongly support such an inference, and as Plaintiffs have not demonstrated any intent on Congress’ part to create such a distinct right. See, Touche, Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979) (the Court “is limited solely to determining whether Congress intended to create the private right of action asserted”).

Thus, in the instant case, Plaintiffs cannot present their claims based upon Title VI against the Federal Defendants.

3. Available Enforcement Mechanisms

Pursuant to the foregoing discussion, the Court concludes that the following table sets forth Plaintiffs available enforcement mechanisms:

Substantive Enforcement Mechanism, Enforcement Mechanism, Source of Right_vs. Fed. Deis._vs. Local Defs._

Equal Protection Direct implication of right of § 1983 _action; APA__

Title VIII Direct implication of right of At least § 1983 _action; APA; § 3613_

Title VI_None_At least § 1983

E. Limitations (Open Period)

In the instant case, there are different limitations applicable to Local and Federal Defendants because of the different procedural mechanisms available for enforcement of claims against them. Accordingly, as discussed herein, Local Defendants can be held liable for action or inaction within a three year period from January 31, 1992 to the date of filing this lawsuit on January 31, 1995. In contrast, Federal Defendants can be held liable for action or inaction within a six year period from January 31, 1989 to January 31, 1995. In the- course of this writing, for simplicity of expression, the Court shall use the term “Open Period” to refer to that period which is open for limitations purposes as to one or more Defendants.

Finally, the Court notes, as discussed herein, either set of Defendants could be held liable for action or inaction during the period open as to them that violated an obligation imposed by virtue of the residual effects of certain types of action or inaction occurring prior thereto.

1. Local Defendants

Plaintiffs’ claims against Local Defendants are enforced via 42 U.S.C. § 1983. In regard to Constitutional and statutory tort claims as involved in the instant case, Federal courts have “borrowed” appropriate state law limitations rules. Wilson v. Garcia, 471 U.S. 261, 266-67, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985). In Maryland,- the Federal courts have adopted the three-year limitations period of Md.Code Ann., Cts. & Jud. Proc. § 5-101, applicable to analogous tort actions under Maryland law. See Jersey Heights, 174 F.3d at 187.

Accordingly, the limitations period applicable to Local Defendants, for all claims against them herein, is three years. Therefore, for Local Defendants the Open Period is January 31, 1992 to January 31, 1995.

2. Federal Defendants

Plaintiffs’ claims against Federal Defendants are presented, by virtue of the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., and also as implied Constitutional claims. Where a claim is based on a Federal statute that has no specific limitations provision, such as the APA, civil claims brought against United States agencies are subject to the general Federal six-year limitations period. See 28 U.S.C. § 2401(a) (2003).

With regard to such “direct implication” Constitutional claims, there is some question as to whether the Court should apply the six-year limitations rule set forth in § 2401 or a pertinent local rule (such as Maryland’s three-year rule). Compare United States v. Minor, 228 F.3d 352, 359 (4th Cir.2000) with Reinbold v. Evers, 187 F.3d 348, 359 n. 10 (4th Cir.1999). In the instant case, all of Plaintiffs’ claims contended to arise under the Constitution may also be enforced via the APA — due, essentially, to the fact that Plaintiffs seek only injunctive relief.

Accordingly, the limitations period applicable to Federal Defendants, for all claims against them herein, is six years. Therefore, for Federal Defendants the Open Period is January 31, 1992 to January 31, 1995.

III. THE PARTIAL CONSENT DECREE

On June 25, 1996, some seventeen months after the instant lawsuit was filed, the Court issued a Partial Consent Decree (“Decree” or “PCD”) resolving certain of Plaintiffs’ allegations.

Under the Decree, Defendants undertook various obligations, primarily concerning the demolition of certain then-existing public housing developments (the “Housing Projects” or the “High-Rises”) and the provision of alternate housing opportunities (“Replacement Housing”) for tenants thereby displaced. Decree § 1.4. In return, Plaintiffs released certain claims concerning the Housing Projects. Decree § 10.1 et seq. The Decree constitutes a binding settlement by the parties and a Judgment of the Court. The principle of res judicata thus bars the parties from re-litigating claims settled by the Decree. Matsushita Elec. Indus. Co., Ltd. v. Epstein, 516 U.S. 367, 116 S.Ct. 873, 134 L.Ed.2d 6 (1996). The Decree, however, expressly permits the introduction, at the trial of unsettled claims, of certain evidence relating to settled claims.

A. Pertinent Terms of the Decree

In nearly identical language concerning Federal Defendants and Local Defendants, Sections 10.1/10.2 of the Decree outline the general scope of the release:

Plaintiffs... release and forever discharge each of the [ ] Defendants ... from every claim,... cause of action, suit and issue, known or unknown, contingent or liquidated... with respect to the site selection, [etc. ... ] with regard to the Housing Projects [High-Rises]... * * * * * *

This release does not release ... [ ] Defendants as to other Baltimore City family public housing...

The release language of Sections 10.1/ 10.2 is quite broad, settling all matters “with regard to” the High-Rises. Of course, the Decree does not release Plaintiffs’ discrimination claims relating to housing units other than those enumerated. In addition, under Sections 10.1/10.2, Plaintiffs remain free to assert claims with regard to tenant selection and assignment practices, including such practices pertaining to the High-Rises. Plaintiffs may also assert certain “equalization” and “neighborhood improvement” claims against the Local Defendants. Decree § 10.2.1.

In accordance with the principles of Matsushita, evidence pertaining to settled matters, such as those pertaining to HighRises and Replacement Housing, would not be admissible unless excepted from exclusion by the terms of the Decree. In this regard, the Decree expressly provides for two exceptions from the release given by Defendants, a “Limitations Defense” exception and a “Pattern and Practice” evidence exception. These are discussed in turn.

1. The Limitations Defense Exception

Sections 10.3/10.4 of the Decree provide that:

[The] Decree shall have no effect on the Court’s consideration of any defense of laches [or] statute of limitations... raised by the [ ] Defendants that Plaintiffs may overcome by showing a continuing violation of the law[.] [Such rebuttal evidence] may not be used for any other purpose and may not be used to enhance the relief Plaintiffs seek[.]

The Defendants have contended that Plaintiffs claims are time-barred. E.g., Local Defs.’ Pretrial Mem., at 46; Fed. Defs.’ Trial Brief, at 26. Accordingly, it is necessary to address the Limitations Defense Exception.

This exception permits Plaintiffs to introduce otherwise inadmissible evidence, but only to rebut an asserted limitations defense and only to show that a pre-Open Period action by a Defendant covered by the Decree is pa