Full opinion text
MEMORANDUM OPINION—WALKER I: DHA VIOLATIONS OF THE CONSENT DECREE AND APPOINTMENT OF A SPECIAL MASTER BUCHMEYER, District Judge. This class action involves racial discrimination in low-income public housing in the City of Dallas and its suburbs. The parties are the plaintiff class (“plaintiffs”), the Dallas Housing Authority (“DHA”), and the United States Department of Housing and Urban Development (“HUD”). This opinion holds that DHA has violated the Consent Decree approved in this matter on January 20, 1987 by: (1) its delay in putting a new, non-discriminatory Tenant Assignment & Selection Plan into effect; (2) its failure to provide the tenant mobility services required by the Decree; (3) its actions concerning the 120% Fair Market Rent Exception for the use of § 8 certificates and vouchers in non-impacted areas of Dallas and its suburbs; (4) its failure to meet the Decree’s first year goal for the use of § 8 assistance in non-impacted areas, and its refusal to use a substantial number of § 8 certificates and vouchers allocated by HUD to DHA; (5) its failure to request code enforcement from the City of Dallas on housing that failed Housing Quality Standards (“HQS”); and (6) its failure to meet the Decree’s deadlines for the site selection, construction, and initial occupancy of the 100 units of new low income public housing. In addition — because DHA’s violations of the Consent Decree have been repeated and pervasive — this opinion holds that a special master will be appointed to assist the Court by monitoring the performance of all parties under the Decree. I. Procedural History This suit was filed on June 25, 1985. At that time, suburbs of the City of Dallas were refusing to participate in DHA’s § 8 assistance program; this prevented persons in need of low-income housing from using § 8 certificates or vouchers to move outside of minority areas in Dallas into non-impacted areas in the suburbs. After a number of suburb cities were dismissed from the suit when they agreed to participate in the § 8 program, and after the filing of an amended complaint and class certification motion, the remaining parties were the plaintiffs, DHA and HUD. Then, after extended and often-heated negotiations, on November 6, 1986, the plaintiffs filed an agreed motion for approval of a Consent Decree. On December 12, 1986 — after proper notice had been given to members of the putative class — a fairness hearing was held on the proposed settlement. Evidence was presented in support of the Consent Decree, and this Court heard objections— both oral and written — from those who opposed only one part of the Decree. On January 9, 1987, this Court announced its approval of the Consent Decree in open court; then, after certain changes were made in the Decree as the result of the January 9 ruling, the Consent Decree was approved and entered on January 20, 1987. On February 9, 1987- — just 20 days after the approval of the Consent Decree — the plaintiffs filed a motion charging DHA with violating the Decree because of its plan to stop the assignment of any more tenants to the West Dallas project. This matter was not resolved because, at an in-chambers conference, the Court suggested that the motion was premature. Then, on July 1, 1987, the plaintiffs filed their Motion to Modify and Enforce The Consent Decree — which charged the DHA with a “massive failure to comply with the numerous remedial provisions of the Decree” and the failure to commit the resources necessary to implement the Decree. And, on September 10, 1987, the plaintiffs filed a Supplemental Motion to Enforce Decree, which asked this Court to require DHA to select a site for the 100 units of new Low Rent Public Housing (“LRPH”) — which, under the Decree, should have been done by April 20, 1987. On September 18, 1987, there was a hearing on the September 10 “site selection” motion. At that time, the Court ordered DHA to select the “Country Creek” site for the 100 new units of low-income housing — and ruled that DHA had violated the Decree by failing to meet the deadline for site selection. (Decree Plan III, 10). Next, the plaintiffs and DHA reached agreement to resolve many of the problems raised by the plaintiffs’ July 1 motion. However, HUD raised certain objections, and DHA refused to implement the agreed changes. Accordingly, on December 21, 1987, a hearing was held on the July 1, 1987 motion and on HUD’s objections to the stipulations between the plaintiffs and DHA. HUD’s objections were overruled and DHA’s refusal to assign tenants to West Dallas was held to be a violation of the Consent Decree. However, some major issues presented by the plaintiffs’ July 1, 1987 motion were left unresolved. On February 8, 1988 — just one year after approval of the Consent Decree — the plaintiffs filed their third motion to compel DHA’s compliance with the Consent Decree (“Motion to Modify and Enforce Consent Decree”). A hearing was held on this motion and the matters remaining under the plaintiffs’ July 1, 1987 motion — as well as a DHA “Motion to Compel HUD Approval of 100-Unit LRPH Project” — on March 25 and 28, 1988. At that hearing, the Court ordered HUD to approve DHA’s proposal for the 100 new units at Country Creek. Then, next, on August 2, 1988, the plaintiffs filed a “Motion to Restore Deprogramed Units” — and on the same day DHA filed its “Motion to Enforce Consent Decree.” Both motions charged HUD with violating the Consent Decree by refusing to continue payments to DHA for the units which were vacant at the West Dallas project. A hearing was held on this motion on November 1, 1988. At this time, the Court ordered HUD to resume full funding for the vacant units at West Dallas. The last hearing held in this matter was on December 12 and 14, 1988. It dealt primarily with the plaintiffs’ motion to modify the Consent Decree by joining the City of Dallas, and with several motions concerning the effect of the Frost Amendment and the “Anti-Demolition Statute” on the Decree. However, it also concerned the unresolved matters raised by the plaintiffs’ motions of July 1, 1987 and February 8, 1988 — which charge DHA with violations of the Consent Decree and which seek the appointment of a Special Master. These unresolved matters are the subject of this opinion (Walker I). II. DHA Violations of the Consent Decree DHA has, in fact, repeatedly violated the provisions of the Consent Decree. As summarized above, these violations required three separate motions by the plaintiffs and four separate hearings during the first two years of the Decree. The DHA violations will be discussed in the order listed in the introduction of this opinion. 1. Tenant Selection & Assignment The Consent Decree provided that, within thirty (30) days of the date of the Decree (Jan. 20, 1987), DHA was to adopt and implement a “one offer, one refusal tenant selection and assignment plan” that: “... will include a single waiting list from which applicants will be chosen to fill vacancies at any of DHA’s LRPH projects, § 8 New Construction and § 8 Substantial Rehabilitation projects. The TS & A plan will include procedures for effective monitoring of DHA staff compliance with the TS & A procedures____” (Decree Plan III 7, 13) This simple — but very important — task was not completed by February 20, 1987. Instead, because DHA had done little, if any, work on the preparation of this plan before approval of the Consent Decree, the initial plan was not even presented to HUD until April 17, 1987. However, this two-month late plan was defective and actually it violated the Decree in several ways: (i) it did not provide the internal monitoring of DHA staff compliance (Decree Plan III, 13); (ii) it did not provide that those refusing offers had to go to the bottom of the waiting list, as required by the Decree (Decree Plan III, 7); and (iii) it used an erroneous method to determine if DHA projects were impacted or non-impacted. The plaintiffs objected to this initial Tenant Selection & Assignment plan in their July 1, 1987 Motion to Enforce Consent Decree. The dispute was eventually settled, and a satisfactory plan was implemented — but well beyond the February 20, 1987 deadline. 2. Housing Mobility Requirements The Consent Decree required DHA to establish a new Housing Mobility Division to be responsible for a wide range of functions aimed at providing desegregated § 8 housing opportunities for class members throughout Dallas and its suburbs: “A new Housing Mobility Division will be established for the purposes previously described. The division will be headed by a staff person at the Assistant Director level, with a minimum of five other staff persons (one real estate outreach person, three counselors and one clerical person).... “All current and future participants in the Section 8 existing and voucher program will be notified of DHA’s Housing Mobility Unit and the availability of couns'lng and referral services to assist any r -tificate or voucher holder who wishes to locate alternative housing in areas where his or her race does not predominate____” (Decree Plan, Summary 2, III 5 and 3). DHA violated these Housing Mobility Requirements in several distinct ways: its delay in establishing the Mobility Division; its failure to provide adequate resources to perform the Decree’s Mobility Requirements; its failure to provide correct information about the program to those interested in § 8 housing; and its delay in providing mobility services to those who did not live in West Dallas project. (i) Delay in Establishment of the Housing Mobility Division DHA first delayed the creation of the Mobility Division while it tried to obtain funding for this program from the City of Dallas. The first DHA request to the City was made on November 5, 1986 — over two months before the Decree was approved— but the DHA Executive Director made additional attempts to obtain mobility funding from the City Council on March 3, 1987; on March 11, 1987; and on March 18, 1987. Finally, on March 18 — almost two months after approval of the Consent Decree — the Dallas City Council refused the DHA request. Instead, it approved “an offer for a 7.5% loan to DHA for funding relocation payments, provided that available DHA funds from the settlement of a lead contamination law suit are expended first.” Because of this delay, the Housing Mobility Division was not put into operation until sometime in April of 1987, when DHA finally hired the Assistant Director for Housing Mobility and the five other staff persons required by the Decree. There was no excuse for this delay. DHA had other means of funding the Mobility Program besides obtaining money from the City of Dallas. For example, DHA could have obtained the approval of HUD — before January 20, 1987, when the Decree was approved — for the use of the settlement proceeds from the lead contamination litigation for the funding of the Mobility Requirements. In addition, DHA had other available sources for funding its obligations under the Consent Decree. (ii) Failure to Provide Adequate Resources When it was finally established, the Housing Mobility Division had the minimum six-person staff required by the Decree. The Assistant Director was Craig Gardner, who headed the Mobility Division from April 1987 through October 18, 1988. On February 1, 1988, DHA reorganized its basic § 8 program and its Mobility Division. They were both put under a new “Housing Placement & Mobility” department with two divisions: Housing Opportunity & Mobility Expansion (HOME) and Landlord Services. According to Craig Gardner, this had a dramatic effect on the resources available for mobility services; Gardner and his five staff persons were responsible for the basic § 8 program as well as mobility services — and, after February 1,1988, Gardner was able to spend only 40% of his time on the Mobility Requirements of the Decree. Indeed, the reason given to Gardner for this reorganization was that “the Mobility Division was costing [DHA] a lot more money than it thought.” This reorganization, in itself, violated the Consent Decree. In addition, at no time did DHA provide adequate resources for the Mobility Requirements of the Decree. Craig Gardner testified that they just did not have the staff to provide mobility services for everyone who needed it — even though DHA had the finances to do so. This was confirmed by the testimony of Mary Dews, a class member who had regular contacts with the DHA mobility staff in her capacity as a counselor for the Dallas Tenants Association. In contrast, Acting Executive Director Charles Crane testified that DHA had a proper mobility program — even though he did not know the names of any of the counselors and did not know how much time each mobility counselor was required to spend on DHA’s basic § 8 program. Crane’s testimony (about the adequacy of the Mobility Division) was not credible because it contradicted the facts, the exhibits taken from DHA records, and the testimony of credible witnesses (such as Gardner and Dews). Moreover, on October 18, 1988, Crane — as Acting Executive Director of DHA — gutted the Mobility Division by firing Craig Gardner and three other members of the original mobility team. Crane attempted to justify the firing of Gardner on the basis of poor performance. Yet, he simply ignored the fact that — under adverse conditions and with inadequate resources — Gardner and his staff had managed to move a number of black families into suburbs and non-impacted areas in Dallas under the Decree. Indeed, Gardner’s ability and potential was one of the very few things that the plaintiffs did not criticize in monitoring DHA’s performance under the Decree: “On the bright side, the person chosen by DHA (albeit tardily) to head the HMD (Home Mobility Division), Craig Gardner, impresses plaintiffs as capable, realistic, and independent. He seems committed to the goals of the decree as a whole and the successful implementation of those goals by the HMD. If given the necessary resources to do the job, Mr. Gardner should be able to make the HMD the instrument of significant change in housing opportunities for class members envisioned by the Decree and Plan.” Finally, the actual assistance being provided by DHA demonstrates that adequate resources were not being provided for mobility services. In particular: (i) the primary service provided by the DHA Mobility Division was a bus tour of available § 8 housing in non-impacted areas; (ii) no transportation was provided for persons who needed to return for followup visits (for signing leases, additional inspections, etc.); (iii) very often people did not receive briefing sessions which they needed in order to make informed choices about the use of § 8 certificates and vouchers; (iv) DHA did not even have a correct list of vacancies in non-impacted areas; for some time, tenants were given two lists — one of landlords willing to participate in the § 8 program and one of landlords barred from the program — and they were supposed to be sophisticated enough to check the lists against each other; (v) just weeks before the March 25, 1988 Hearing, Mary Dews asked for a current list of available vacancies in non-impacted areas; there was still no such list — over 14 months after the Consent Decree was approved — so Craig Gardner’s secretary “pasted one together” for Ms. Dews; and (vi) during a one-year period before March 1988, some 196 DHA § 8 tenants had their contracts abated and because the units did not meet Housing Quality Standards — but no mobility services were provided for any of these because the Mobility Division simply did not have the staff to do so. (iii) Failure to Provide Correct Information The Mobility Division even gave incorrect information to persons who wanted to use the § 8 program. For example: (i) the § 8 “briefing packet” used by DHA contains a document — “§ 8/Your Responsibility As A Tenant on Rent Assistance” — which states that, if tenants choose to move, they will be dropped from the § 8 programs, but that they can reapply and wait several months before they can receive § 8 assistance in a new unit. This is not correct; indeed, the Decree requires DHA to notify all § 8 participants “they can move to another dwelling upon completion of one year’s tenancy under their lease” and still receive the § 8 assistance. (Decree Plan III, 2). (ii) A DHA brochure states that counselors will be glad to check to see if § 8 participants are eligible for mobility services. This is misleading because, under the Decree, all § 8 participants are automatically eligible for mobility services. More significantly, the Decree requires that DHA give notice to § 8 participants that housing is available in “all cities located in whole or in part in Dallas County and the City of Plano.” (Consent Decree E, Exh. A). Yet, the “checklists” used by DHA for the preparation of the § 8 “briefing packets” do not require the inclusion of this notice — and, contrary to the testimony of DHA employees, it appears that not all of these packets contained the Exhibit A notice required by the Decree. Moreover, the § 8 packets actually contained a document which expressly contradicted the Exhibit A notice of increased mobility, by stating: “Any type of existing rental housing located within the City of Dallas is eligible, provided ... the dwelling unit conforms to the minimum housing codes established by the City of Dallas ... Eligible renters are free to locate a rental unit of their choice anywhere within the city limits ” (emphasis added). During the week before the March 28, 1988 hearing — some 14 months after the Consent Decree was approved — DHA learned from the plaintiffs that it had been violating the Decree’s requirement for the Exhibit A notice. Accordingly, it revised the document to reflect that § 8 housing is available in “the City of Dallas any suburban city wholly or partly in Dallas County and the City of Plano ’’ — just in time to introduce the revised version on March 28, 1988 through the testimony of David Morton, DHA Deputy Executive Director. Needless to say, this belated correction of misleading information was a violation of the Decree’s requirement that all policy and procedure manuals and other documents had to be revised within ninety (90) days after January 20, 1987. (Consent Decree 3, D). (iv) Delay in Providing Mobility Services When the Housing Mobility Division was finally established in April of 1987, it concentrated on providing mobility services to the tenants located in West Dallas. Because of this, it did not provide mobility services for (i) those who were in other DHA projects, or (ii) those who were participating in the basic § 8 program of DHA, or (iii) those § 8 tenants who were forced to move because their landlords did not correct violations of the Housing Quality Standards. Nor did persons in the basic § 8 program receive any mobility services from the DHA staff handling that program. Instead, DHA Deputy Executive Director David Morton instructed the § 8 staff that they were not to provide any mobility services — because this was the responsibility of the separate Housing Mobility Division. Morton also gave specific instructions to the § 8 staff: ... that he did not want the goals of the mobility program to alter or to impact a neighborhood or project; ... that he generally felt that there should be a limit of ten § 8 tenants in any apartment project in a non-impacted area; ... but that he was open to the idea that occupancy of 5% of the total units in a complex by § 8 tenants would have not adverse impact in that particular project. These instructions by Morton were, in themselves, violations of the Consent Decree. Because of them, the § 8 staff referred only 61 persons to the Housing Mobility Division during 1987. Finally,' on February 10, 1988, mobility services — albeit those of the nature described above— were begun for DHA tenants and § 8 participants outside of West Dallas. This delay in providing mobility services to those outside of West Dallas had a dramatic, adverse effect upon the Consent Decree’s goal of giving everyone a choice to move to housing in non-impacted areas. For example, during the first year of the Decree: (i) Some 68% — 134 out of 196 — of West Dallas residents relocating with § 8 assistance were, with mobility services, able to find housing in non-impacted areas; (ii) But only 26% — 29 out of 111 — of the § 8 participants who relocated because of Housing Quality Standard problems, without mobility services, were able to find housing in non-impacted areas. Indeed, even David Morton, DHA’s Deputy Executive Director, conceded that the furnishing of mobility services would cause a tremendous increase in relocation DHA tenants to non-impacted areas. Therefore, it is clear that DHA violated the Mobility Requirements of the Decree— primarily by its delay in providing mobility services and by its refusal to commit adequate resources to meet its obligations under the Decree. 3. 120% Fair Market Rent Exceptions Under its regulations governing the § 8 program, HUD can approve the payment of 120% of the “fair market rent” if this is necessary to provide an adequate supply of § 8 housing opportunities in non-impacted areas. In negotiating the decree, the parties — at least the plaintiffs and DHA — recognized that it would be difficult, if not impossible, to obtain an adequate number of § 8 assisted units in non-impacted areas of Dallas and its suburbs without this 120% exception. Therefore, the Consent Decree provided that: “DHA will promptly submit a request for HUD approval of 120% FMR exception rents for those areas of metropolitan Dallas in which reasonable rents exceed the published FMRs.” (Decree Plan III, 10). DHA violated this provision of the Decree. No request for a 120% rent exception was even presented to HUD by DHA until April 23 — over three months after the approval of the Decree. HUD rejected this request on May 26, 1987, so DHA submitted a second request on June 5, 1987, stating that “120% rents are fully justified and absolutely essential to Consent Decree implementation.” Finally, after DHA submitted additional supporting material, HUD did approve the use of the 120% rent exception for § 8 certificates in Dallas and its suburbs on July 23, 1987 — six months after approval of the Consent Decree. However, this exception applied only to the 450 § certificates which DHA had received from HUD under the Decree. And, HUD took the position that — because of a change in HUD guidelines concerning maximum rent levels for § 8 vouchers (which had taken place between the approval of the Consent Decree and the July 23, 1987 approval of the 120$ rent exception for § 8 certificates) — no similar exception could be granted for the 885 § 8 vouchers which had been allocated to DHA under the Decree. The practical effect of this decision by HUD was to make the § 8 vouchers almost worthless for use in moving people out of minority and low-income impacted areas under the Decree. Specifically: (i) the cost to someone using a § 8 voucher in a non-impacted area would be substantially more than using that voucher in a minority area; and (ii) someone using a § 8 voucher in a non-impacted area would generally pay substantially more rent than a § 8 certificate tenant in that same area. Both the plaintiffs and DHA agreed this meant that § 8 tenants who got vouchers would be forced to remain in minority areas — and that, in general, only § 8 tenants with certificates and the 120% rent exception could move into a non-impacted area. Faced with this serious problem, in their February 8, 1988 motion, the plaintiffs sought an order which would (i) set a payment standard for § 8 vouchers at 120$> of the fair market rent levels, and (ii) provide retroactive relief “for the few class members currently receiving the voucher assistance.” HUD opposed this motion, and evidence concerning the problem was presented at the March 25, 1988 Hearing. The parties continued to negotiate to resolve this dispute. Finally, on August 31, 1988, HUD reversed its position — and gave DHA permission to use the 120% exception on § 8 vouchers. Incredibly, despite its repeated statements that persons who had § 8 vouchers would be forced to choose housing in impacted areas without the 120% exception, DHA simply refused to use this 120% rent exception for § 8 vouchers. And, the December 12, 1988 Hearing, DHA Acting Executive Director Charles Crane testified: (i) that DHA had taken no steps to implement the increase in § 8 voucher payments, and planned to do that only “if we’re failing to meet our goals of fulfilling the Consent Decree requirements of the percentages of people that need to be in non-impacted areas”; and (ii) that DHA had no plans to allow people who were hurt by the lack of 120$> rent exception for vouchers to switch to § 8 certificates, and that DHA would only do this if ordered to do so by the Court. This blatant violation of the Consent Decree by DHA was finally resolved by an agreed order on January 4, 1989, in which DHA agreed to implement the 120% rent exception for § 8 vouchers — over four months after that exception was approved by HUD. 4. 15% Goal for § 8 Units In Non-Impacted Areas The Consent Decree required DHA to use the § 8 program to move persons in need of low-income housing outside of minority or impacted areas. Specifically, the Decree provided that DHA would: "... use every good faith effort to locate a substantial percentage of its § 8 certificate or voucher units outside census tracts in which there are currently 10 or more § 8 certificates in use.” (Decree Plan III, 12-A). At the end of the first year of the Decree, DHA was required to have 15% of its § 8 units in use in non-impacted areas. (Decree Plan III, 12-A). DHA violated the Decree by failing to meet this 15% goal by January 20, 1988, the end of the first Decree year. In particular: (i) DHA had approximately 5,200 § 8 certificates and vouchers allocated to it by HUD; (ii) as of January 20, 1988, only 636 of these were located in non-impacted areas; and (iii) these 636 units were only 12.2% of the § 8 certificates and vouchers allocated to DHA. This first year goal of 15% was modest; and DHA’s failure to meet it is even more egregious since there were already 267 § 8 units located in non-impacted areas when the Consent Decree was approved. DHA’s attempt to justify this violation by contending that the 15% should be applied to the number of § 8 units it had in use on January 20, 1988 (i.e., 3,612) — not to the 5,200 § 8 units allocated to DHA — is simply wrong. The Decree does not provide this; and, to construe it in that manner would be inconsistent with the intent of the Decree to give as many people as possible the choice of moving to non-impacted areas — and would reward DHA for reducing the number of § 8 certificates and vouchers which it had in actual use. In fact, that is just what DHA did during the first Decree year. Specifically: (i) there were 3,743 § 8 certificates and vouchers in use on January 31, 1987; but (ii) DHA had only 3,667 vouchers and certificates in use on January 31, 1988. Before the Consent Decree, DHA had no problem utilizing all of the § 8 units allocated to it. Indeed, under HUD regulations, unless DHA proceeds expeditiously to achieve 100% utilization of its § 8 allocations, HUD may reduce the number of § 8 units allocated to DHA. However, during the first year of the Consent Decree, DHA severely limited the § 8 program by failing to use over 30% of the 5,200 certificates and vouchers which it had. Specifically: (i) in September of 1986, DHA simply closed its § 8 program for any new applications — for the professed reason that the program “was substantially over-leased”; (ii) this supposed overleasing problem was corrected by July or August of 1987, but the § 8 program was not reopened— and this resulted in a severe drop in the number of § 8 units in use; and (iii) the § 8 program was finally reopened in December of 1987, after being closed for some 15 months — and this resulted in some 2000 interviews of persons applying for § 8 assistance being scheduled during December 1987 and January 1988. Because of these things, there were fewer § 8 units in use at the end of the first Decree year than there were where the Consent Decree was approved — and DHA had over 1500 certificates and vouchers which were not in use on January 20, 1988. DHA does contend that “restrictions” in the Consent Decree — reserving some of the § 8 units for the tenants in West Dallas to be relocated — was responsible for the “under-utilization” of § 8 vouchers and certificates. This argument is baseless, as demonstrated by what DHA did in the § 8 program (under the same restrictions) in the period just before the March 25, 1988 Hearing: (i) on January 5, 1988, DHA had 636 § 8 units located in non-impacted areas; (ii) but on March 21, 1988, there were 885 vouchers and certificates in use in non-impacted areas — an increase of 249 units in only 2lk months; (iii) during the first 21 days of March 1988, just prior to the hearing, DHA was able to place 87 families in non-impacted areas by the use of § 8 certificates and vouchers. DHA also made an effort to show that there were only 26 unused § 8 units at the end of the first Decree year, instead of over 1500. The evidence offered on this point was totally unconvincing and contrary to the facts. It was also contradicted by the testimony of the DHA Executive Director, Jack Herrington, that he “would like to see more [§ 8] units in use” and would like “to see more tenants move into non-impacted areas” with § 8 vouchers and certificates. The Decree obligated DHA to “use every good faith effort” to move tenants into non-impacted areas with the use of § 8 vouchers and certificates. In violation of this provision, DHA did not meet the 15% goal for the first Decree year. In addition, because of the cessation of the § 8 program for some 15 months, the net results of DHA’s efforts over the first Ilf months of the Consent Decree was that an additional 153 § 8 certificates and vouchers had been placed in use. 5. Housing Quality Standards & Inspections Undér the Consent Decree, DHA is required “to assure that Housing Quality Standards (‘HQS’) are enforced in all § 8 existing certificate and voucher units and in the new units secured by the Housing Mobility Division.” (Decree Plan III, 1). DHA violated these Housing Q .lality Standards and Inspection requiremen s in several different ways. In July of 1987 — six months after the Consent Decree was approved — DHA was still “knowingly leasing units that did not meet Housing Quality Standards.” And in March of 1988, DHA still did not have a list of vacancies of approved landlords in non-impacted areas; instead, it gave two lists to prospective § 8 tenants — one of landlords willing to participate in the program and one of landlords barred from the program (for HSQ problems and other reasons) — and the tenants were supposed to be sophisticated enough to check the lists against each other. The Decree requires DHA to request code enforcement from the appropriate city when a unit is found to be in violation of Housing Quality Standards. (Decree Plan III, 1-A). However, DHA has no records of any requests for code enforcement until July of 1987 — when there were 9 requests — even though: ... 58%' of the units already receiving assistance failed the annual reinspection; ... 41%' of the units submitted for first-time § 8 certificate assistance failed the first HQS inspection; ... 53%' of the units submitted for first-time § 8 voucher assistance failed the first HQS inspection; and ... 15% of the 3600 units receiving assistance were placed on abatement, from January 20, 1987 and March 3, 1988, because landlords would not timely repair conditions which violated Housing Quality Standards. Then, in early August 1987, DHA Deputy Executive Director David Morton gave written instructions that “minor HQS violations” were not to be sent to the City of Dallas. Incredibly, this was interpreted by the DHA § 8 staff to mean that — contrary to the Consent Decree — they were not to request any code enforcement from Dallas. Even more incredible, this resulted in a 7-8 month period (from August 1987 to April 1988) in which DHA sent no code enforcement requests to the City of Dallas — and no DHA supervisor ever realized that the Decree was being violated in this manner. But “incredible” is not strong enough to describe what happened next; even though DHA learned of this blatant violation of the Decree at the March 25, 1988 Hearing: (i) a computer program set up in April 1988 to generate an automatic letter-request for code enforcement to the appropriate city was never used — because Charlene Elder, the Assistant Director of the § 8 program, “believed that DHA was not going to do business with those landlords”; and (ii) although DHA did begin to send code enforcement letters to Dallas in April 1988, it never asked for code enforcement on any of the housing units that had failed HQS inspections during the August 1987-March 1988 period. Finally, there were other violations of the HQS requirements: tenants could not “get through” to their DHA case workers to report problems with Housing Quality Standards; DHA failed to give the City of Dallas notice as to which particular units were to be inspected; and DHA never did any “follow-up with the city” to see what had happened with respect to the code enforcement requests. 6. The 100 Units of New Public Housing The Consent Decree provided for the construction of 100 units of low rent public housing (“LRPH”) — the first new public housing to be constructed in Dallas since the West Dallas project in the 1950’s. A specific schedule was set for these 100 units: “DHA will move without delay to develop the 100 LRPH units that are part of the 1000 units committed by HUD herein. “(A). These units shall be located in non-racially impacted areas pursuant to HUD’s site-selection regulations. “(B). DHA will select sites within six (6) months of the date of this decree, begin construction of the units within fifteen (15) months of the Decree and begin initial occupancy of the units within twenty-four (24) months of the Decree. If it appears that DHA will be unable to meet any of these deadlines, DHA will give notice of such inability to the court and state the reasons for the delay.” (Decree Plan III, 10). DHA violated the Consent Decree because it did not meet a single one of the deadlines established for the development of the 100 units. (i) Site Selection: July 20, 1987 The site for the 100 units was not selected until September 18, 1987 — and this was done by the Court, not by DHA. Despite the neighborhood opposition and political pressure, which DHA knew it would receive about the location of these 100 units, DHA did not use eminent domain to select the site. Instead, on March 4, 1987, it advertised for bids for a contractor to develop the 100 LRPH units on “scattered sites.” The three proposals DHA received were unacceptable so, on April 17 and April 26, 1987, it advertised for bids on the construction of the 100 units both on scattered sites and “for all units on a single site.” On June 10, 1987, DHA received 16 proposals from five developers for the 100 new units. Then, on July 10, 1987 — -just ten days before the deadline for the site selection — the DHA Board heard the staffs recommendations on these proposals, and then “authorized the staff to schedule a public hearing on a site in Southeast Dallas.” And, on July 21, 1987, DHA dropped consideration of this location because it learned of “an unrecorded deed restriction” which would preclude the construction of the 100 units of LRPH. On August 4, 1987, DHA turned its attention to a 11.5 acre site known as “Country Creek.” Despite the fact that political pressures had caused DHA to drop the consideration of Country Creek for the Washington Place replacement units, DHA assured further delay by scheduling a public hearing on September 15, 1987 concerning the construction of the 100 units of new public housing at the Country Creek site. Not surprisingly, “the overwhelming majority” of the 300 people in attendance “strongly opposed the development” — as did the Chairman of D.I.S.D. and the Mayor of Dallas. On September 10, 1987, the plaintiffs moved to compel the site selection for the 100 units. On September 19, 1987, after hearing the evidence — and learning that Country Creek was the only available, acceptable location for the 100 units — the Court directed that DHA select this site: "... It’s obvious that the neighborhoods we’ve talked about, the alternative sites don’t want public housing in their area. Indeed, probably no one wants public housing in their area. The Seagoville site, which was the No. 1 choice, was opposed, just like the Country Creek area was opposed, and just like I am sure that the Highland area would be opposed, just like the East Dallas site was opposed, just like the five scattered sites to replace Washington Place were opposed. “I have no confidence that any delay would do anything but just that, be another delay. The site [Country Creek] would not be my first choice, but it is an acceptable site. It does meet the requirements of HUD; it complies with the City of Dallas requirements; it does have a money problem but that needs to be resolved. “I am going to specifically order that the Dallas Housing Authority select the Country Creek site and that they meet the schedule in the Consent Decree, and that’s to have those units constructed and operating within two years from the date of the settlement. That means by January -20, 1989. ... However, so we can all understand, I will not accept any excuses to the schedule which is in this order. The construction will begin within 15 months. That’s April 20, 1988. Initial occupancy of these units will begin by January 20, 1989. And if those are not met I will hold Dallas Housing Authority in contempt and I will impose sizable fines per day until those are complied with.” (Sept. 18, 1987 Transcript, Rulings of the Court pp. 1, 3-4). (ii) Construction: April 20, 1988 DHA violated the second deadline by not beginning construction on the 100 units of LRPH by April 20, 1988. However, HUD was at least partly at fault for this violation. On October 13, 1987, DHA completed its plan for the 100 new units and submitted it to HUD for approval. HUD did not approve this proposal before the end of 1987. Then, after the “Frost Amendment” was passed, HUD began to insist that DHA give HUD a “firm commitment” that only non-federal funds would be used for the demolition of 100 units at West Dallas— which, under the Consent Decree, could be demolished after the construction of the 100 new LRPH units at Country Creek. There is an unresolved dispute between HUD and DHA as to whether — and when— this “firm commitment” was given. However, at the March 25, 1988 Hearing, this Court ordered HUD to approve DHA’s proposal for the 100 units at the Country Creek site: “... you all were here when I pointedly told DHA that unless this project was begun on April 20 and occupancy started on January 20 of next year that I would impose sanctions. I still intend to do so. I’m going to give HUD until the end of next week to approve this [Country Creek project]. If they don’t then I will enter an order. “... I am not going to impose sanctions at this time. I need to find out when construction starts. I need to find out how much the dates are missed by____ I’ll reserve the imposition of sanctions against DHA and HUD until I can see actually what happens. I’ll reserve DHA’s request to tax HUD with any additional expenses until I see what happens. I’ll reserve ruling on attorney’s fees.” HUD approved the DHA proposal for the Country Creek 100 units on April 1, 1988, and approved the final plans and specifications for this project on May 25, 1988. Finally, on September 1, 1988 — 4 months and 10 days after the second Decree deadline — “construction began on the one hundred units of public housing on Country Creek Drive.” (iii) Initial Occupancy: Jan. 20, 1989 DHA violated the Decree because “initial occupancy” of the 100 new units at Country Creek did not begin on January 20, 1989. On January 19, 1989, the DHA attorney gave notice that this deadline would not be met. Construction is still continuing in July of 1989. DHA currently estimates that construction of the 100 units will be completed in August of 1989, and that initial occupancy will begin during that month — approximately 8 months after the deadline set in the Consent Decree. 7. Additional Violations There were also several additional violations of the Consent Decree by DHA. Specifically: (i) Assignments to West Dallas — The July 1, 1987 motion filed by the plaintiffs attacked the DHA policy of refusing to assign any new tenants to the West Dallas project. At the December 21, 1987 Hearing, the Court held this was a violation of the Decree’s provision that “any proposal to sell or otherwise remove from the housing inventory of DHA any housing units ... will be submitted to the Court for approval to insure that such action will not interfere with implementation of the Decree and Plan.” (Consent Decree, 8). After that hearing, DHA again started making tenant assignments to West Dallas. (ii) § 8 Waiting List — Under the Plan, tenants in projects other than West Dallas were to have 60 days to respond to the DHA notice that they had the opportunity to use the § 8 program. (Decree Plan II, B-C). Approximately 500 families responded within this period, and they should have been placed at the top of the § 8 waiting list. However, DHA sent each tenant a second notice requiring them to submit another response within 14 days. This second response was a violation of the Decree because some class members who did not respond to the second notice were deleted from the § 8 waiting list. (iii) One-For-One-Replacement — The Decree requires a one-for-one replacement by a § 8 certificate or voucher for every unit demolished in West Dallas. The plaintiffs have repeatedly objected that the 1,335 § 8 vouchers and certificates allocated to DHA by HUD are not “one-for-one replacements.” Specifically, they claim ... that the § 8 allocation proposes to use one and two bedroom units to justify the demolition of 3, 4, 5 and 6 bedroom units; and ... that DHA even reduced the number of 3-bedroom § 8 units by increasing the number of 1 and 2 bedroom § 8 units. The plaintiff’s have objected to any demolition (and to DHA’s proposed demolition plan for West Dallas) on this basis. Although the Court has only expressed its opinion informally — since the DHA and HUD positions on this issue have changed at various times — it is clear that the plaintiffs are correct on this issue. (iv)Other Matters — The plaintiffs have charged DHA with other violations of the Consent Decree; these involved such things as the adequacy of the initial DHA reports under the Decree, the identification of residents of predominately black elderly occupied projects for remedial offers under the Consent Decree, and delays by DHA in meeting other requirements of the Decree. However, all of these other alleged violations by DHA have been settled — so that this opinion has addressed all of the pending matters concerning DHA’s violations of the Consent Decree. III. Appointment of Special Master As detailed in the previous section, DHA repeatedly violated the Consent Decree-beginning almost with its inception and continuing at least through December 12 and 14, 1988, when the last hearing was held in this matter. These violations by DHA were pervasive; and, many were particularly egregious, including these: ... requiring the Housing Mobility Division to spend substantial time on other work, and then dismantling it in October of 1988; ... refusing to put the 120% Fair Market Rent Exception for § 8 vouchers in use, thus forcing voucher holders to stay in minority areas; ... deliberately reducing the number of § 8 certificates and vouchers in use during the first Decree year; ... not requesting any code enforcement for Housing Quality Standard violations for a 7-8 month period (August 1987 — April 1988); and ... not meeting a single deadline for the 100 units of new low-income public housing. The Consent Decree affects every aspect of DHA’s operations. Moreover, it is obvious that complex questions will continue to confront the Court concerning the performance of all parties under the Decree — including the City of Dallas, which is being joined as a party defendant subject to the Consent Decree (see Walker III) — and that, without the help of a Special Master, decisions by this Court on critical issues will be unnecessarily delayed. Under these extraordinary circumstances, it is clear that a Special Master should be appointed, under Rule 53, Fed.R.Civ.P. Gary W. v. Louisiana, 601 F.2d 240, 244 (5th Cir.1979); Ruiz v. Estelle, 679 F.2d 1115, 1161 (5th Cir.1982), modified on other grounds, 688 F.2d 266, cert. denied 460 U.S. 1042, 103 S.Ct. 1438, 75 L.Ed.2d 795 (1983). See also these complex public housing discrimination cases in which a Special Master has been appointed: Chicago Housing Authority v. Austin, 511 F.2d 82, 86-87 (7th Cir.1975); Young v. Pierce, 640 F.Supp. 1476 (E.D.Tex.1986), vacated and remanded for consideration of terms following partial settlement, 822 F.2d 1368, 1374-1376 (5th Cir.1987), and 685 F.Supp. 975 (E.D.Tex.1988) (East Texas housing desegregation case). IV. Conclusion DHA has, as the plaintiffs claim, violated the Consent Decree’s provisions concerning the tenant assignment and selection plan, the tenant mobility services, the 120% fair market rent exception for use of § 8 certificates and vouchers, the first year goal for the use of § 8 assistance in non-impacted areas, the obligation to request code enforcement for HSQ violations, and the deadlines set for the 100 units of new low-income public housing at Country Creek. Because of these repeated and pervasive violations of the Decree, a Special Master will be appointed. However, the Special Master is not being appointed to supervise DHA or to interfere with DHA’s new Executive Director, Alphonso Jackson. Instead, the Master is to monitor compliance by all parties — including the City of Dallas — with the Consent Decree and to assist this Court in the difficult decisions which will be presented under the Decree. The parties, of course, will be given time to present their positions to the Court with respect to (i) the person to be named as Special Master, and (ii) the terms of the Order under which the Master will operate. However, because of DHA’s violations of the Consent Decree, as detailed in this opinion, the expense of the Special Master are to be paid by DHA until further order of the Court. APPENDIX A WALKER I In The United States District Court For The Northern District of Texas Dallas Division Debra Walker, et al., Plaintiffs, v. The U.S. Department of Housing and Urban Development, et al., Defendants. Civ. A. No. CA-3-85-1210-R CONSENT DECREE Jan. 20, 1987 Debra Walker, et al., plaintiffs, the United States Department of Housing and Urban Development (“HUD”), and the Housing Authority of the City of Dallas (“DHA”), defendants, enter into this Consent Decree (hereinafter referred to as the “Decree”) for the purpose of resolving the issues raised by this lawsuit. Plaintiffs enter into this Decree because they believe that the evidence produced to date shows an unbroken pattern of purposeful racial segregation and discrimination by DHA dating from the inception of DHA’s program to the present day and that the entry and implementation of this Decree will disestablish the effects of this unlawful segregation and discrimination to the extent possible. DHA enters into this Decree because it believes that there is considerable evidence that the racially identifiable character of the housing offered under its programs could have been caused at least in part by official DHA action and that the entry and implementation of this Decree will remedy any alleged violation that may have been caused by this official action. DHA is entering into this Decree based solely on claims and evidence presented relating to these specific plaintiffs and the class they represent, as set forth below, and nothing contained herein shall constitute any admission of liability or basis of a claim against DHA by any other party, person or class. HUD denies any liability with respect to any matter alleged in the First and Second Amended Complaints. The parties have entered into this Decree in order to avoid the expense and inconvenience of further litigation in this matter. They also desire, through affirmative marketing and other action outlined herein, to undertake steps to promote equal housing opportunity in federally-assisted housing in the Dallas metropolitan area (defined herein as Dallas County and the City of Plano), whether administered by DHA or privately. Accordingly, the parties have agreed to resolve this matter on the terms set forth below and have agreed to entry and implementation of this Decree. The parties enter into this Decree on the explicit premise that the resources currently available to DHA to implement the Decree are inadequate. In order to implement the Decree, substantial resources will have to be made available from institutions and organizations other than DHA. The parties agree that should these resources not be forthcoming after a reasonable period of time and after reasonable efforts to obtain them, the parties may by mutual agreement present to the Court modifications to this Decree as may be appropriate to accomplish the remedial purposes of the Decree. To the extent the parties are unable to agree as to the action appropriate due to resources not being made available, either DHA or plaintiffs may seek a modification of the Decree which the moving party deems necessary or appropriate to address this lack of resources. All proposed modifications to this Decree, including modifications of exhibits hereto and including but not limited to those sought pursuant to the immediately preceding paragraph and/or paragraph 4 of this Decree, shall also be submitted to the Civil Rights Division of the United States Department of Justice at the time of submission to the Court. Any hearing on modifications shall take place not less than thirty (30) days after submission of the proposed modification to the Court and the Civil Rights Division. Under no circumstances, however, shall any modification increase, alter, or otherwise affect the financial or other obligations of HUD pursuant to this Decree without the written consent of HUD. Therefore, based on the agreement of the parties, the evidence taken at the hearing on the fairness of this Decree to the members of the proposed class and other residents in federally-subsidized housing in the Dallas metropolitan area, and all materials submitted to the Court on the appropriateness of the relief set out in this Decree, it is ORDERED, ADJUDGED and DECREED that: 1. With respect to existing and future DHA-owned and administered housing, including housing to be made available pursuant to this Decree, DHA agrees that it will not: A. Assign any person to any dwelling because of race or color; B. Move any person ahead of any other person on any waiting or assignment list for any dwelling because of race or color or otherwise make a dwelling unavailable or deny a dwelling to any person, including persons on any waiting or assignment list, because of race or color; C. Provide inferior facilities, maintenance or other service to persons in any dwelling or cluster of dwellings (including a “project”) because of race or color or otherwise discriminate in the provision of services or facilities in connection with the rental of such dwellings or in the terms, conditions or privileges of rental of such dwellings; D. Represent to any person because of race or color that any dwelling is not available for inspection or rental when it is in fact so available; E. Fail to afford any person the same right to make and enforce a contract regarding the provision of a dwelling that is afforded to white citizens; and F. Fail to afford any citizen the same right to lease and own property as is afforded to white citizens. Nothing in paragraphs 1A and 1B, supra, shall be interpreted to affect the obligations in paragraph I.l.B of the Plan attached hereto as Exhibit B, which afford relief to victims of discrimination. 2. The following class is certified for the claims asserted in this suit: All black persons who are presently or who during the pendency of this Decree become either (a) residents of a DHA owned or managed project, or (b) participants in the DHA Section 8 Existing Housing Program (“§ 8 EHP”). As used in this Decree, “§ 8 EHP” shall include vouchers issued under the Section 8 Program; and “participant” shall mean a holder of a § 8 EHP certificate of eligibility or voucher, or a person housed pursuant to the § 8 EHP. 3. During an interim period of thirty (30) days from the date of entry of this Decree, DHA, its agents, employees and officials, shall continue to honor § 8 EHP certificates issued by DHA in accord with the provisions of the Agreed Preliminary Injunction entered by the Court against DHA on August 19, 1986. Upon expiration of the thirty (30) days and after giving the notices as provided below, DHA will honor certificates and vouchers on any qualified unit located in the Dallas metropolitan area. A.Within ten (10) days of the date of entry of this Decree, DHA will send a notice to all incorporated municipalities located in whole or in part in the Dallas metropolitan area that a necessary element of achieving the objectives of the § 8 EHP and this Decree is the administration of that program in a manner that gives participants the broadest possible choice of housing. It will further advise that thirty (30) days from the date of entry of this Decree, in accordance with the terms thereof, DHA will honor certificates or vouchers covering any housing in a municipality located in whole or in part in the Dallas metropolitan area. B. Except as specifically set out, this Decree does not otherwise affect DHA’s obligation, responsibility and authority to enforce the statutory and regulatory requirements of the § 8 EHP for eligibility of applicants, participants and housing units and the other administrative requirements of the § 8 EHP. C. In administering its § 8 EHP under the terms of this Decree, DHA will provide preference to applicants who are either residents of the City of Dallas or employed therein. D. To the extent that any part of any of DHA’s policy and procedure manuals, handbooks or other controlling documents are incompatible with the terms of this Decree, such policies and procedures will be modified within ninety (90) days of the date of entry of this Decree to be consistent with and further the objectives of this Decree. E. DHA will notify all present § 8 EHP applicants, participants, landlords, and rental housing unit owners and managers who have inquired or inquire about the availability of DHA’s § 8 EHP for housing units located in the suburbs that DHA is honoring Section 8 certificates and vouchers for housing located in the metropolitan area and suburbs, as set out in this Decree. Such notice shall be issued within thirty (30) days of the date of entry of this Decree and shall be in the form and content set forth in Exhibit A, attached hereto. F. Henceforth, DHA will include in the materials given to its § 8 EHP applicants and participants a notice that the operation of the program includes housing located in the Dallas metropolitan area. This notice shall be an item included in each participant’s package provided on orientation and shall be in the form and content as set forth in Exhibit A, attached hereto, and shall be in addition to all the information required to be furnished by Chapter 7 of HUD handbook 7420.7, including notice of the location of all HUD assisted or insured rental projects located in non-impacted areas, which information shall also be furnished to each participant. 4. Attached as Exhibit B is a plan which is directed towards achieving the remedial purposes of this Decree. This plan (referred to hereafter as the “Plan”) is incorporated into and is a part of this Decree and shall be effective on the date of entry of this Decree and shall be implemented in accord with the timetable established therein. DHA’s failure to comply with any provision of the Plan shall be a basis to refer this matter to the Court or to seek modifications to the Decree as may be necessary or appropriate to further the purposes of the Decree and Plan. 5. Included in the Plan is a program for the West Dallas project, TX9-11 (“West Dallas” or the “Project”). With respect to the Project, the parties agree that: A. The housing as it exists today in West Dallas constitutes a severe concentration of deteriorated housing. It is one of the largest single groupings of low rise, family public housing units which was built under the program and has been the source of serious management problems for DHA since they were brought into the program. B. In addition, there has been a lead contamination occurrence which, despite corrective action, continues to impose a blighting influence on the residential use of the area. This has contributed to the overall deterioration and there are now approximately 1300 virtually uninhabitable units spread throughout the Project. C. Residents of the West Dallas project have been subjected to adverse social conditions in addition to the physical problems detailed above. D. There is virtually no possibility of achieving an acceptable physical and social living environment without a massive commitment of resources. E. While a massive commitment of resources could result in short-term improvement of all the Project’s dwellings, the locational, density and environmental factors noted above negate any prospects for their long-term viability, except for the sections of the Project for which HUD has allocated funds for modernization. F. Although funds have been allocated for modernization of certain sections of the project, HUD is withholding authorization to proceed with modernization contracts pending development of a plan for treatment of the remaining areas of the Project. G. HUD has determined that allowing the remaining areas, or any part of them, to continue as is, or to be redeveloped as low income housing, would tend to decrease the long term viability of the sections of the project for which modernization funds have been allocated. DHA agrees with this conclusion. 6.DHA shall develop a comprehensive plan regarding the Project which shall be submitted to and reviewed by HUD to determine, inter alia, whether the plan is consistent with the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq., and implementing regulations. The plan shall include the following elements: A. Comprehensive modernization of the approximately 800-900 units located in the modernization areas detailed in the attached Plan. B. DHA shall submit to HUD an application for approval to relocate all residents of the clearance areas of the Project without regard to race and demolish the units located in the clearance areas, as detailed in the Plan. The application for demolition shall include a request for provision by HUD of one-for-one replacement of both the currently occupied and vacant units in the West Dallas project that are to be demolished under the comprehensive plan, with housing units to be provided pursuant to HUD’s public housing and/or § 8 EHP