Core v. Norwalk Redevelopment Agency (395 F.2d 920, 1968)

J. JOSEPH SMITH, Circuit Judge:

This appeal raises timely and fundamental questions regarding the availability of the federal courts to persons who, displaced by urban renewal programs, claim that they have been deprived of the equal protection of the laws in connection with government efforts to assure their relocation, and that such relocation efforts have not been adequate under the mandate of a federal statute. The plaintiffs’ complaint, which attempted to raise these two issues, was dismissed by the District Court for the District of Connecticut. Norwalk CORE v. Norwalk Redevelopment Agency, 42 F.R.D. 617 (1967). We hold that the District Court was in error, and remand for further proceedings not inconsistent with this opinion.

The program involved here is being carried out in the City of Norwalk, Connecticut, and is designated South Nor-walk Renewal Project No. 1 (Project No. Conn. R-34). (Hereinafter “the project.”) The project plan was approved by the Common Council of Norwalk (the city’s legislative body) on August 28, 1962, and on June 24, 1963 the Norwalk Redevelopment Agency (“the Agency”) entered into a Loan and Capital Grant Contract (“the Contract”) with the Housing and Home Finance Agency (now the Department of Housing and Urban Development, “HUD”) under the Housing Acts of 1949 and 1954 (“the Act”). 63 Stat. 413 (1949), as amended, 42 U.S. C. §§ 1441-1460 (Supp.1967); and 68 Stat. 590 (1954), as amended, 42 U.S.C. §§ 1446-1460 (Supp.1967).

/ Pursuant to section 105(c) of the Act, 42 U.S.C. § 1455(c), the Contract_ re-, quired that the Agency provide, in the urban renewal area or in other areas not generally less desirable in regard to public utilities and public and commercial facilities, decent, safe and sanitary dwellings within the financial .means of the families displaced by the project, equal in number to the number \ further proceedings not inconsistent with this opinion.

. The functions of the Housing and Home Finance Agency were transferred to the Secretary of Housing and Urban Development by section 5 of the Department of Housing and Urban Development Act, 79 Stat. 669 (1965), as amended, 42 U.S.C. § 3534 (Supp.1967). See also 81 Stat. 17 (1967). We will use the initials HUD throughout this opinion to refer to both the Department of Housing and Urban Development and its predecessor, the Housing and Home Finance Agency.

. The four classes are: (1) those still occupying homes within the project area; (2) those whose homes in the project area have been demolished, and who now occupy “overcrowded” rental units outside of the project area but within the City of Norwalk; (3) those whose homes in the project area have been demolished, and who now occupy rental units “at excessive rentals” outside of the project area but within the City of Norwalk; and (4) those who formerly lived in Norwalk, but “by virtue of the acts of defendants” complained of, now occupy rental units outside of the City. It is alleged that each class is. too numerous to make it practicable to bring all of its members before the Court, that each will be fairly and adequately represented by those plaintiffs who are members of it, that there are common questions of law and fact affecting the rights of all members of each class, and that as to each a common relief is sought.

The Spring Street Tenants Association is composed of low-income Negroes who formerly lived in the project area, and who, it is alleged, have not been relocated into decent and proper housing at rentals within their financial means and reasonably accessible to their places of employment. The Day Street-Washington Village Tenants Association is composed of low-income Negroes, and Puerto Ricans living outside the project area, allegedly in “unsafe and indecent housing beyond their financial means.”

. Where it is necessary to distinguish among, the defendants, we will call Horan and Weaver the “federal defendants,” Towne House Gardens, Inc. and David Katz & Sons, Inc. the “private defendants,” and the remaining defendants the “local defendants.” Towne House is described in the complaint as a Connecticut corporation to which the City and the Agency have agreed to sell six acres of land in the project area; David Katz & Sons, Inc. is described as a Connecticut corporation, the sponsor of the project, the owner and/or operator of the largest number of apartments and apartment structures in the City, and the owner of one-half of the stock of Towne House.

. Nothing we say in this opinion precludes defendants from trying to show to the District Court’s satisfaction that plaintiffs have failed to take advantage of available administrative remedies.

. 6 Moore’s Federal Practice H 54.60 (2d ed. 1966) and cases there cited; 2A Moore’s Federal Practice 1)12.08; see also A. T. Brod & Co. v. Perlow, 375 F.2d 393, 398 (2 Cir. 1967).

. The complaint asserts that the jurisdiction of the District Court is based upon 28 U.S.C. § 1343(3) and (4); and 42 U.S.C. §§ 1981, 1982, 1983 and 1988. Additionally, it is alleged that the matter in controversy exceeds the sum of $10,000, and that there is jurisdiction under 28 U.S.C. § 1331. The complaint was not dismissed for want of jurisdiction, and none of the defendants has contended before us that jurisdiction is wanting. It is clear that the District Court has subject matter jurisdiction.

. The District Court did not distinguish the issue of plaintiffs’ standing to raise their equal protection claim from that of plaintiffs’ standing to seek judicial review of action which the federal defendants have taken under section 105(c) of the Act. Given the allegations, of the complaint, its holding necessarily covered both issues. Insofar as the question of standing relates to the personal stake which plaintiffs have in the outcome of the litigation, the issues are the same. But the question whether the constitutional right which plaintiffs are claiming is one which the courts will protect must be considered separately from the question whether the courts will ever review the administrative action which is chair--lenged. Where such review is not available, the situation is usually characterized as “lack of standing.” The question of standing to seek judicial review of the administrative action is the subject of part II of this opinion.

. On the unclear distinction between standing and justiciability, see note 13 infra. Our discussion of “standing” in this part of the opinion is limited to the standing of the individual plaintiffs. We consider the standing of the association plaintiffs separately in part III.

. One may, of course, have standing based on competitive interests where it is provided by statute. See F. C. C. v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869 (1940), and see part II of this opinion, infra.

. The main question in Harrison-Halsted was whether the plaintiffs had a right to judicial review of administrative action taken under the Housing Act of 1949. See part II, infra.

. The Court also cited Johnson v. Redevelopment Agency of the City of Oakland, California, 317 F.2d 872 (9 Cir.), cert. denied 375 U.S. 915, 84 S.Ct. 216, 11 L.Ed.2d 154 (1963), on this issue. While violation of the Fifth and Fourteenth Amendments was alleged in that case, upon appeal the issues had narrowed to whether or not the defendant had formulated and was carrying out a feasible plan of relocation as required by section 105(c); of the Act.

. In Progress, the plaintiffs were subdivision developers, who had announced their intention to sell some of the houses they proposed to construct to Negroes. The complaint alleged, inter alia, that the defendants were abusing their power to condemn land and to enforce local building ordinances so as to discriminate against plaintiffs because of their announced intention to sell to Negroes. The Seventh Circuit, characterizing the case as one concerning “the corporate right to engage in business and make a profit,” 286 F.2d at 234, held that the District Court had “erred in granting summary judgment [for defendants] on the complaint.” Ibid.

. Similar concerns underlay the decision in Harrison-Halstead, supra. “Lack of standing” and “want of justiciability” (or, in different words, the presence of a “political question”) are doctrines serving the same general purpose of assuring that the courts pass only on questions which are raised in actual cases or controversies and which are ripe and appropriate for judicial determination. They are, therefore, doctrines between which no clear distinction is generally found. See Bickel, The Least Dangerous Branch, 125-126 (1962) and Note, 77 Yale L.J. 966, 976-987 (1968).

. We note that an overall challenge of this type was considered on the merits in Nashville I-40 Steering Committee v. Ellington, 387 F.2d 179 (6 Cir. 1967), cert. denied 390 U.S. 921, 87 S.Ct. 2054, 18 L.Ed.2d 995 (1968).

. U.S.Const. amend. XIV; § 1: “* * * No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

. The opinion below could be read as holding only that plaintiffs had no standing to challenge administrative action under the Housing Act of 1949, and that the Civil Rights Act of 1964 conferred no standing privileges on plaintiffs. See 42 F.R.D. at 622-623. But the complaint clearly raised an equal protection claim against the local and private defendants, the jurisdiction of the court was properly alleged (see note 6, supra), and we must read the opinion as having passed on the equal protection claims.

. See, e. g., U. S. Advisory Commission on Intergovernmental Relations, Relocation: Unequal Treatment of People and Businesses Displaced by Governments (1965); and Hartman, The Housing of Relocated Families, 30 J.Am.Inst.Planners 266, 273-274 (1964).

. We wish to stress that the specific problem is not that non-white displacees are, on the average, poorer than white displacees. That may be so, but it is. a more general problem. What we are concerned with is that discrimination which forecloses much of the housing market to some racial groups, thereby driving up the price they must pay for housing. The situation is made worse by the fact that most people displaced by urban renewal are non-white. See Note, 77 Yale L.J. 966, 967 (1968).

. See generally Black, Foreword: “State Action,” Equal Protection, and California’s Proposition 14, 81 Harv.L.Rev. 69 (1967).

. We .need not consider whether the state has so involved itself in acts of private discrimination in the housing market as to make those otherwise private acts “state action.” See Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45 (1961); cf. Jones v. Alfred H. Mayer Company, 379 F.2d 33 (8 Cir.), cert. granted 389 U.S. 968, 88 S.Ct. 479, 19 L.Ed.2d 459 (1967) (No. 645).

. See, e. g., Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92, L.Ed. 1161 (1947); Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958).

. Offerman v. Nitkowski, 378 F.2d 22 (2 Cir. 1967); Springfield School Committee v. Barksdale, 348 F.2d 261, 266 (1 Cir. 1965).

. United States v. Jefferson County Board of Education, 380 F.2d 385, 386 (5 Cir., en banc, 1967), affirming 372 F.2d 836 (5 Cir. 1966), cert. denied Bd. of Education of the City of Bessemer v. United States, 389 U.S. 840, 88 S.Ct. 77, 19 L.Ed.2d 104.

. Section 105 provides, in relevant part: “Contracts for loans or capital grants shall be made only with a duly authorized local public agency and shall require that—

* * * * Hi

(c) (1) There shall be a feasible method for the temporary relocation of individuals and families displaced from the urban renewal area, and there are or are being provided, in the urban renewal area or in other areas not generally less desirable in regard to public utilties and public and commercial facilities and at rents or prices within the financial means of the individuals and families displaced from the urban renewal area, decent, safe, and sanitary dwellings equal in number to the number of and available to such displaced individuals and families and reasonably accessible to their places of employment. * * * ”

The section’s coverage was extended to displaced individuals by the Housing and Urban Development Act of 1965, and that extension does not apply to this project. See section 305(c) of that Act, 79 Stat. 476 (1965). So far as now appears, the plaintiffs all represent displaced families.

. See also Cappadora v. Celebrezze, 356 F.2d 1, 6 (2 Cir. 1966); 4 Davis, Administrative Law Treatise § 28.21 (1965 Supp.) ; Jaffe, Judicial Control of Administrative Action, 372-374 (1965).

As the Supreme Court said in Abbott Laboratories v. Gardner, the Administrative Procedure Act, 5 U.S.C. §§ 701-706, under which plaintiffs here seek judicial review, reinforced the early cases in which judicial review of administrative action was entertained. See 387 U.S. at 140, 87 S.Ct. 1507.

5 U.S.C. § 701 provides that “This chapter applies * * * except to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” There is no need for us to consider whether these exceptions apply only where Congress’ intent in the matter is explicit, for we discern no Congressional intent, implied or explicit, to preclude review or to commit determinations under section 105(c) to HUD’s absolute discretion. See Davis, “Judicial Control of Administrative Action”: A Review, 66 Colum.L.Rev. 635, 651-52 (1966). The Supreme Court, by framing the test as “persuasive reason to believe that such was the purpose of Congress,” appears to say that the intent may be implied. 387 U.S. at 140, 87 S.Ct. at 151.

. The Administrative Procedure Act, 5 U.S.C. § 702, provides that “A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof.” We do not think that this language is to be construed as limiting judicial review to those situations where Congress has explicitly referred to persons “adversely affected” or “aggrieved” by agency action. That would not be a “hospitable” interpretation of the Act’s “generous” review provisions. Abbott Laboratories v. Gardner, 387 U.S. at 140-141, 87 S.Ct. at 1507. We will, in accordance with what the Supreme Court has said in Hardin v. Kentucky Utilities Company, supra, consider any person attempting to assert an interest, personal to him, which the “relevant statute” was specifically designed to protect, and which he claims is not being protected, as “adversely affected' or aggrieved” within the meaning of that statute.

. S.Rep. No. 84, 81st Cong., 1st Sess., in U.S.Code Cong.Serv. (1949) pp. 1550, 1564.

. Id. at p. 1560.

. See id. at 1561; and see generally Note, Judicial Review of Displacee Relocation in Urban Renewal, 77 Yale L.J. 966 (1968).

. See Scenic Hudson Preservation Conference v. F. P. C., 354 F.2d 608, 615-617 (2 Cir. 1965), cert. denied Consolidated Edison Co. of New York, Inc. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Office of Communication of United Church of Christ v. F. C. C., 359 F.2d 994, 1000-1006 (D.C.Cir. 1966). See generally Reich, The Law of the Planned Society, 75 Yale L..T. 1227 (1966).

. It has been pointed out that where Congress intends that administrative determinations under the Act may be un-reviewable, it has said so explicitly: under section 114 of the Act, added in 1964, 78 Stat. 788-90, as amended 42 U.S.C. § 1465(e) (Supp. 1967),-determinations with regard to relocation assistance payments may be made unreviewable. Note, 77 Yale L.J. 966, 972 n. 28 (1968).

. S.ee text following note 14, supra.

. The provisions of the Administrative Procedure Act on scope of judicial review are set out in 5 U.S.C. § 706. We note that the plaintiffs are requesting review of a substantive determination, rather than of the procedures followed by HUD in making the determination" sought to be reviewed.

. We have discussed other aspects of the Green Street decision in part I of this opinion.

. Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Berry v. Housing and Home Finance Agency, 340 F.2d 939 (2 Cir. 1965); Taft Hotel Corp. v. Housing and Home Finance Agency, 262 F.2d 307 (2 Cir. 1958), cert. denied 359 U.S. 967, 79 S.Ct. 880, 3 L.Ed.2d 835 (1959); Pennsylvania Railroad Company v. Dillon, 335 F.2d 292 (D.C.Cir.), cert. denied American-Hawaiian S. S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964); Allied-City Wide v. Cole, 97 U.S.App. D.C. 277, 230 F.2d 827 (1956); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); Pittsburgh Hotels Association, Inc. v. Urban Redevelopment Authority of Pittsburgh, 309 F.2d 186 (3 Cir. 1962), cert. denied Hilton Hotels Corp. v. Urban Redevelopment Authority of Pittsburgh, 372 U.S. 916, 83 S.Ct. 730, 9 L.Ed.2d 723 (1963). Defendants have relied upon some of these cases in their briefs, pointing to language suggesting that the availability of judicial review turns upon the presence of Congressional intent to bestow a “legal right” to protection, or, in other cases, upon the invasion of a “legally protected right.” The results reached in these cases are entirely consistent with the result reached here.

. Hardin v. Kentucky Utilities Company, supra; OMcaffo Junction Case, supra.

. Note, 73 Yale L.J. 1080 (1964).

. The opinion in Johnson makes reference to Hunter v. City of New York, 121 N.Y.S.2d 841 (Sup.Ct.1953). We read that case as holding that state courts have no jurisdiction to review the actions of agencies of the federal government.

. Cf. Merge v. Sharott, 341 F.2d 989 (3 Cir. 1965).

. The plaintiffs contend that section 601 of the Civil Rights Act of 1964, 42 U.S. C. § 2000d, is an independent basis on which they have standing to sue. That contention presents a question which we do not think we should decide at this stage of this case. We do not read the section to set forth requirements differing from what is required of the states by the Fourteenth Amendment, and thus the plaintiffs need not rely on the section to assert their claims of discrimination against the local defendants or to obtain relief against them. Since we do not know what the plaintiffs would have the District Court require of the federal defendants, we do not know whether section 601 is relevant so far as the federal defendants are concerned. The framework of sections 601-605 of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d-2000d-4, indicates that those sections are intended to assign to federal agencies an independent responsibility to bar discrimination in federally assisted programs.

We note that in Bossier Parish School Board v. Lemon, 370 F.2d 847 (5 Cir.), cert. denied 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967), where it was held that the plaintiffs had standing to sue under section 601, the defendants contended that the Fourteenth Amendment was inapplicable because the school children being segregated were “federal children.” But cf. Gautreaux v. Chicago Housing Authority, 265 F.Supp. 582 (N. D.Ill., 1967).

. The local defendants assert in their brief that it was held in Cypress v. Newport News General and Nonsectarian Hospital Association, 375 F.2d 648, 653 (4 Cir. 1967), that unless abuse is shown the trial court’s decision as to whether or not a proper class action has been brought is final. The Fourth Circuit said nothing of the kind in that case. The Court was addressing itself specifically to the question whe