author: RAFEEDIE, District Judge.

text:
    Daniel ESCAMILLA, Sandra Escamilla and each of the minors, Cynthia Escamilla, Nedra Escamilla, Jessica Ramirez and Benjamin Calindo, by Daniel Escamilla, their Guardian ad Litem, Plaintiffs, v. CITY OF SANTA ANA, a Municipal corporation, Raymond C. Davis, in his individual and official capacity as Chief of Police of Santa Ana; Officers John D. Garcia and R. Huerth, in their individual and official capacities as sworn Santa Ana Police Officers; Jesus Jimenez; La Posada Mexican Restaurant of Santa Ana; Jakob Mueller and Irmengard Mueller, in their official capacities as corporate officers, Defendants.
    No. CV 83-1887-ER (Kx).
    United States District Court, C.D. California.
    March 6, 1985.

      John Eric Lindgren, Santa Ana, Cal., for plaintiffs.
    Don Zell, Kinkle Rodiger & Spriggs, Meir J. Westreich, Santa Ana, Cal., for defendants.
   JUDGMENT AND ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

RAFEEDIE, District Judge.

This case came before the Honorable Edward Rafeedie, United States District Judge, on January 21, 1985 on the motion of defendants City of Santa Ana, Police Chief Davis, Officer Huerth and Officer Garcia for summary judgment on plaintiffs’ claims under 42 U.S.C. § 1983, 1985, and 1986. Having considered the parties’ papers, oral argument, and the evidence submitted, the Court renders the following order and judgment:

I. FACTUAL BACKGROUND

The facts stated herein are considered in the light most favorable to the plaintiffs. The Court has found, in accordance with Federal Rule of Civil Procedure 56, that there are no genuine issues of material fact.

This civil rights action is the result of a barroom shooting incident which resulted in the death of plaintiffs’ mother, Mary Medina, an innocent bystander. The shooting occurred at the La Posada Mexican Restaurant on the evening of March 28, 1980. Defendant police officers Huerth and Garcia were in the La Posada that night as undercover agents checking for general liquor law violations. They did not disclose their true identities to anyone on the premises.

While they were present, a verbal argument broke out between two patrons, Jesus Jimenez and Jesse Castellanos. Huerth heard Jimenez tell his friend to go and get Jimenez’ gun. As Jimenez and his friend left the bar, the officers noticed that Castellanos was following them and that he had a gun protruding from his pocket. At that point Huerth instructed Garcia to get in his vehicle, drive to a place out of sight of the La Posada, and call for uniformed officers as back-up.

Soon after Garcia left, a fight broke out in the crowded bar between Jimenez and Castellanos. In a matter of seconds, bottles were flying and gunshots were ringing out, but no one appeared to be injured. Almost instantaneously, another fight erupted in the back of the bar, and Huerth turned his attention there. Seconds later Huerth heard five more gunshots come from the door area, site of the original fight, and he turned in that direction. During this second round of gunfire, a bullet from Jimenez’ gun fatally wounded Ms. Medina, who was sitting at the bar.

Jimenez fled and both officers (Garcia now back from making the call) pursued the suspect in the patrol car. Unsuccessful, they returned to the La Posada where uniformed policemen and paramedics were treating Ms. Medina. At this point, the officers identified themselves for the first time.

According to Officer Garcia’s deposition, he and Huerth had been working together for approximately four months at the time of the incident. During this time they had encountered non-violent criminal situations on sixteen to twenty occasions and consistently had had one officer leave the altercation and call for uniformed help, thereby preserving their cover.

II. LEGAL DISCUSSION

A. Claims under 42 U.S. C. § 1983

1. Constitutional Duty

The thrust of plaintiffs’ § 1983 claims is that the defendants propagated a policy of having undercover officers maintain their cover, even when faced with imminent life-threatening criminal activity. Plaintiffs contend that this policy was the proximate cause of Ms. Medina’s death.

In focusing on the causation question, however, plaintiffs gloss over the question of whether defendants had a constitutional duty to intervene more quickly. A constitutional duty is to be distinguished from a normal tort duty because “it is perfectly clear that not every injury in which a state official has played some part is actionable under [1983].” Martinez v. California, 444 U.S. 277, 285, 100 S.Ct. 553, 559, 62 L.Ed.2d 481 (1980). Moreover, in United States ex rel. Miller v. Twomey, 479 F.2d 701, 720-21 (7th Cir.1973), then Judge Stevens held that, to establish a constitutional claim, a plaintiff must prove more than that a state official made a decision which created “foreseeable risks of violence.”

Thus, parole supervisors had no constitutional duty to revoke the parole of a man before he raped, beat, and set afire one plaintiff and shot and stabbed another, even though the supervisors knew the parolee had dangerous propensities and they suspected his commission of a separate arson-murder after his release. Fox v. Custis, 712 F.2d 84, 88 (4th Cir.1983). See also Jackson v. Byrne, 738 F.2d 1443, 1446 (7th Cir.1984) (where two children killed in fire that occurred while firemen were on strike and firehouse across street from fire was unmanned, firemen had no constitutional duty to protect victims, and policemen who barred access to firehouse had no duty to provide rescuers with equipment: “nothing in the Constitution requires governmental units to act when members of the general public are imperiled”).

A constitutional duty arises only when the persons acting under color of state law have created a special or custodial relationship or are aware of a special danger with respect to a particular victim. Fox, 712 F.2d at 88. Thus, when an inmate in the custody of a county institution was found dead, there existed a triable issue as to whether the county’s lack of care in hiring and supervising their deputies was negligence creating a foreseeable risk of harm. Hirst v. Gertzen, 676 F.2d 1252, 1263 (9th Cir.1982).

In the instant case, however, the defendants had no special or custodial relationship with Ms. Medina. She was simply a member of the general public for whom defendants had no unique responsibility.

In the absence of any affirmative state action creating a special relationship, plaintiffs’ sole argument is that, under the circumstances, Officers Huerth and Garcia were aware of a special danger that created a duty to intervene sooner. This Court is unaware of any cases finding the existence of a constitutional duty to act outside of the custodial or special relationship situation. Even if such cases did exist, however, the Court could not, for a number of reasons, find that the instant defendants were aware of a special danger imposing a duty to intervene in Ms. Medina’s behalf.

First, no one singled Ms. Medina out as the victim. While an argument might be made that the officers were aware of a special danger to Jimenez and Castellanos, it would be inappropriate to impose a constitutional duty to protect all of the patrons in La Posada that night.

Second, everything happened so quickly that the officers had little opportunity to develop any awareness of a special danger. Very little time elapsed between the escalation of hostilities and the shooting of Ms. Medina.

Last, the Court does not believe that the duty of an undercover officer to intervene should be triggered as quickly as that of a uniformed police officer. Thus, even if the officers had a duty to act, they did not have a duty to intervene immediately.

Therefore, the Court holds that the officers had no constitutional duty to intervene. They created no special relationship nor were they aware of any special danger such that their actions constituted a “deprivation” within the meaning of the Fourteenth Amendment. The absence of a constitutional duty entitles all defendants to summary judgment in their favor on plaintiffs’ § 1983 claims.

2. Municipal Liability

Even if Officers Huerth and Garcia had a constitutional duty to intervene, the Court would nevertheless grant summary judgment in favor of defendant City of Santa Ana because a municipality cannot be liable for the acts of its employees unless they are acting pursuant to a policy. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 694, 98 S.Ct. 2018, 2037, 56 L.Ed.2d 611 (1978).

Under Monell, a city may be liable under § 1983 based on a “custom” or “usage” even if this custom has not received formal approval. The Court, however, indicated that such a practice should be “permanent” or “well-settled.” Id. at 690-91, 98 S.Ct. at 2035-36. A court may also infer a policy from the omissions of supervisory officials although plaintiff needs to show acquiescence in a prior pattern in order to prove the existence of a policy in this manner. Turpin v. Mailet, 619 F.2d 196, 200, 202 (2d Cir.1980).

In the instant case, plaintiffs have presented no evidence from which it may be inferred that defendants had a policy of maintaining cover even in the face of imminent violent crime. The evidence of use of the procedure of calling back-ups is unavailing because there is no evidence that such a procedure was used in other life-threatening situations. The testimony of the defendant police officers was that they used this procedure regularly in dealing with non-violent liquor law violators, who normally present no immediate threat to anyone other than themselves. Thus, it is impossible to infer from numerous instances of maintaining cover when dealing with these people that there was a policy of maintaining cover when faced with imminent violent crime.

In addition, all of the evidence elicited from sources within the police department indicates that there was no such policy. The defendant officers and their supervisors all deny the existence of such a policy and maintain instead that the city trains undercover officers to use their discretion concerning disclosure because each situation presents different considerations. A policy allowing for discretion only makes sense. Requiring disclosure and intervention in every situation would do serious harm to the use of undercover officers while not ever permitting intervention would be foolhardy. Recognizing that every case is different, it is sensible that officers be taught to use their discretion, which is what the officers did in this case.

In Harris v. City of Roseburg, 664 F.2d 1121 (9th Cir.1981), after a policeman aided a citizen in the unlawful repossession of a debtor’s truck, the debtor alleged that the city had a policy of assisting creditors in depriving debtors of property without giving them an opportunity to be heard. Finding no evidence of such an unlikely official policy, the Ninth Circuit affirmed summary judgment in favor of the defendants. Id. at 1130. Likewise, in this case, there is no evidence that the city propagated a policy that promoted maintaining cover over protecting lives.

Finally, plaintiffs ma,ke the argument that the city and the police chief ratified the alleged policy by not taking remedial action. For this proposition plaintiffs cite Turpin v. Mailet, 619 F.2d 196 (2d Cir.1980). However, Turpin involved a situation in which a policeman allegedly had arrested a teenager out of malice after a previous incident in which the same policeman had been found guilty of using excessive force against that same teenager. This case is completely different. There is no evidence of any problems arising in Santa Ana from the police’s undercover activities prior to this case. If it were found that the officers’ conduct in this case was wrongful and then Santa Ana took no remedial action, ratification might apply in the next case. However, the Turpin argument does not apply to the facts in the record before this Court.

Therefore, since plaintiffs have produced no evidence of a policy for which the city can be liable, summary judgment in its favor is appropriate. Plaintiffs have failed to respond to the city’s affidavits and “set forth specific facts showing that there is a genuine issue for trial.” Federal Rule of Civil Procedure 56(e). Moreover, because there is no evidence that the alleged policy exists, the Court must reject plaintiffs’ argument that the police chief is liable as the propagator of that policy.

3. Good Faith Immunity

An alternative ground for summary judgment also exists concerning Officers Huerth and Garcia: they are protected by good faith immunity. Good faith immunity is a qualified federal immunity, and it is available to police officers in § 1983 actions. Harris v. City of Roseburg, 664 F.2d at 1127. It applies unless the officers “knew or reasonably should have known” that the action would violate another’s constitutional rights or that the action was taken with the “malicious intention” of effectuating such a deprivation. Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975). Thus, the defense has two elements: (1) an objective requirement that, under the circumstances, there existed reasonable grounds for the belief that the action was appropriate; and (2) a subjective requirement that the officer actually acted in good faith. Harris, 664 F.2d at 1128.

Under the objective standard, reasonable grounds existed for Officers Huerth and Garcia to believe that they were taking appropriate action. When the officers saw the gun, heard tempers flaring, and realized Jimenez had sent for his gun, they called for back-up. Given the facts that they were undercover, that guns and heated argument are not unusual in such an establishment, and that they themselves might be in danger if they acted by themselves, the officers called for back-up rather than immediately intervening. Under the circumstances, such conduct is objectively reasonable.

As for the subjective standard, the officers did act in good faith. First, they did act. When tempers began to rise, they called for back-up. Second, once the shooting occurred, the officers pursued the suspect at no small risk to their own safety. Therefore, there was no “malicious intention” to violate another’s constitutional rights.

In sum, the officers’ conduct meets both the objective and subjective requirements for good faith immunity. Summary judgment is thus appropriate in their favor on this ground as well as on the constitutional duty rationale.

B. Claims Under 42 U.S.C. §§ 1985, 1986

Defendants also allege that Officers Huerth and Garcia conspired to violate Ms. Medina’s civil rights and that Chief Davis failed to prevent that conspiracy and later ratified it. The Court grants Summary Judgment on these claims for two reasons.

First, since no basis exists for the § 1983 claims, there is no basis for these claims. There can be no action for conspiracy under 42 U.S.C. § 1985 or for failure to prevent a conspiracy under 42 U.S.C. § 1986 when no civil rights violation has occurred.

Second, the Ninth Circuit has stated that § 1985 is “not intended to apply to all tortious, conspiratorial interferences with the rights of others, but only to those which were founded upon some racial, or perhaps otherwise class-based, invidiously discriminatory animus.” Briley v. California, 564 F.2d 849, 859 (9th Cir.1977). The instant complaint makes no allegation of class-based discrimination. The Court might attempt to infer discrimination against Hispanics, but plaintiffs produced no evidence to support the inference. Any other class that could be applicable (e.g., the class of people unprotected because of undercover officers’ refusal to intervene) is not one that is subject to an “invidiously discriminatory animus.” Therefore, the § 1985 claim is defective, and the § 1986 claim falls along with it.

Based on the foregoing, it is

ORDERED that summary judgment shall be entered against plaintiff and in favor of all defendants as to each claim under 42 U.S.C. § 1983, 1985, and 1986. It is further

ORDERED that defendants’ motion for attorneys fees is denied without prejudice to a separate motion brought in accordance with the Local Rules.

The Court also orders that the Clerk serve copies of this Order and Judgment upon all the parties by United States mail.

      . On May 15, 1984 the Court dismissed plaintiffs’ pendent state claims under the principles set forth in United Mine Workers v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). This dismissal leaves only the civil rights claims remaining.

        . Plaintiffs argue by negative implication from Martinez v. California, 444 U.S. 277, 100 S.Ct. 553, 62 L.Ed.2d 481 (1980). In Martinez the Court held that plaintiffs had no § 1983 claim against a parole board when the board released a person who killed plaintiffs’ decedent five months later. According to the Court, the murder was "too remote a consequence of the parole officers’ action to hold them responsible under the federal civil rights law." Id. at 285, 100 S.Ct. at 559. Plaintiffs contend that the instant fact situation presents a much closer question concerning causation, and therefore, summary judgment is inappropriate. While Martinez is not affirmative authority for plaintiffs' position, this Court recognizes that if causation were the sole issue, plaintiffs might be able to defeat this motion.


source: Caselaw Access Project

author: LOWE, District Judge.

license: Public Domain

text:
    Victor LASKY, Plaintiff, v. AMERICAN BROADCASTING COMPANIES, INC. Defendant.
    No. 83 Civ. 7438 (MJL).
    United States District Court, S.D. New York.
    March 8, 1985.

      Fitelson, Lasky, Aslan & Couture, New York City by Clifford Forster, for plaintiff.
    Cahill Gordon & Reindel, P.C., New York City by Floyd Abrams, John L. Sander, New York City, for defendant.
   MEMORANDUM OPINION AND ORDER

LOWE, District Judge.

Plaintiff brought this libel action under the diversity jurisdiction of this Court. He alleges that the defendant American Broadcasting Companies, Inc. (“ABC”) televised a documentary entitled the American Inquisition which defamed him in his profession.

Defendant moves to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) contending that the privilege of neutral reportage enunciated in Edwards v. Audubon Society, Inc., 556 F.2d 113 (2d Cir.), cert. denied, 434 U.S. 1002, 98 S.Ct. 647, 54 L.Ed.2d 498 (1977) is applicable and in the alternative ’ that the documentary did not defame plaintiff.

The Broadcast

On June 23, 1983, defendant aired a one hour ABC News “Closeup” documentary entitled “The American Inquisition”, (“the Program”), which focused on the stories of Americans caught up in the McCarthy era of the 1950’s. Divided into two segments, the Program, in its second half, told the story of the effects of McCarthyism on the town of Fairmont, West Virginia, and its former resident, a Ms. Luella Mundel. In the Program, Ms. Mundel stated that in the early 1950’s she was accused of being a security risk and an atheist by the president of the local school board and as a result of these charges, she lost her job as the head of the art department of the local state college. Other persons interviewed on the Program recalled that during this period, the local American Legion held “anti-subversive” meetings in Fairmont that incited people against communism.

Plaintiff, a well known lecturer and writer, attended an American Legion meeting held in Fairmont in 1951. Plaintiff stated on the Program, that at this meeting he gave his usual talk about the dangers of communist infiltration, but that he also advised that the public should not get hysterical about the problem. Ms. Mundel also attended this meeting. Plaintiff stated that during the meeting Mundel stood up and hysterically assailed him; and that he responded to this verbal assault by trying to calm her down. The next speaker on the Program was Newton Michael, who was identified as an American Legionnaire who also attended the 1951 meeting. Mr. Michael stated that:

“As I recall, Mr. Lasky called her a communist. This seemed to agitate her very much, and she called him a Nazi. And with that he became very, to me, very angry, and she became angry also.”

The Program continued with the recollections of several people about the mood in Fairmont in February 1951 and the events that occurred therein. William Manchester, the historian, commented on what had happened to Ms. Mundel in Fairmont and following a commercial break, Mr. Manchester continued as follows:

Tagged as a Red, she couldn’t find a job anywhere. She was running out of money. And in desperation she filed suit for slander against the woman who had called her a security risk____

Near the Program’s conclusion, plaintiff again appeared on camera and stated:

I have no feeling one way or the other. I feel sorry for her. I feel sorry for her very much. I mean, I didn’t have nothing to do with it. I didn’t ask her to come to the meeting. I didn’t ask her to shoot off her mouth. I have no idea why she was there. She was there with a claque and she rather enjoyed being Joan of Arc. I don’t — I didn’t set the fire to Joan of Arc.

On July 16, 1983 ABC aired the following:

MARSHALL FRADY: I’m Marshall Frady for ABC News Closeup. We have a correction to make involving our recent documentary called THE AMERICAN INQUISITION about the legacy of the McCarthy era. In one segment, a participant recalled that at a public meeting author Victor Lasky had called a West Virginia college professor, Luella Mundel, a Communist. While we did broadcast Mr. Lasky’s general recollection of the meeting, we omitted his specific denial that he had called Miss Mundel a Communist.
VICTOR LASKY: I did not label her a Communist. I never did. And I don’t think she would have told you that I did. Or did she? I never labeled her anything. I can’t believe I would have labeled her anything — because I have never labeled anybody unless they were a Communist.
MARSHALL FRADY: Based on information available about the incident which occurred in 1951, we believe we were unfair to Mr. Lasky. ABC News regrets the omission.

DISCUSSION

The parties agree that New York State law with the federal constitutional gloss controls. Under New York law words are libelous per se if they affect a person in his or her profession by imputing to the person misconduct, incapacity, unfitness or lack of any qualification deemed necessary for the conduct of the profession. In addition when the plaintiff is a public personality, he must plead and prove the existence of facts which tend to prove defendant acted with malice or reckless disregard for the truth, James v. Gannett Co., Inc., 40 N.Y.2d 415, 421, 386 N.Y.S.2d 871, 353 N.E.2d 834 (1976) citing New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

The Neutral Reportage Doctrine

Although the privilege of neutral reportage is an emerging doctrine whose contours are not easily determined, See Note, The Developing Privilege of Neutral Reportage, 69 Va.L.Rev. 853 (1983). Cianci v. New Times Pub. Co., 639 F.2d 54, 67 (2d Cir.1980), where applicable, it is the law of this Circuit. The doctrine first ennunciated in Edwards v. National Audobon Society, supra, if applicable to the facts in this case, would hold that the First Amendment protects the accurate and disinterested report of charges made against a public figure regardless of the reporters view as to their validity. Therefore one of the essential findings that must be made before applying Edwards is that the publisher did not deliberately distort the report in order to launch a personal attack of his own on a public figure. In other words, the report must be neutral. Judge Friendly quoted at length in footnote 18 of Cianci a comment of Professor Sowle that the privilege of neutral reportage should be applied to press coverage of matters of legitimate public concern only if the report presents not just the statement itself but is a balanced report of the debate on the controversy to which the statement is addressed. “Thus, the report of a statement besmirching an individual ... could fall within the privilege only if it is fair to the individual involved in the public issue, presenting his or her side of the story as well as the other.” Id.

Plaintiff, in opposing the motion to dismiss herein, argues that the selectivity exercised by ABC in determining what material should be left in and what should be left out of the original broadcast undermines the “neutral” component of the privilege. In response, defendant contends that it did present versions of the plaintiff’s denial (other than the one broadcast on the July 16 correction) on the original program and relying upon Reeves v. ABC, 719 F.2d 602 (2d Cir.1983) argues that a report may be considered neutral if the average viewer would understand the denials.

Although Reeves may be a laboring oar in the ultimate resolution of this case, it is inapplicable on a motion to dismiss this complaint. The Reeves Court did not reach the constitutional privilege of neutral reportage {Id. at 607) since the case was disposed of on the basis of the California fair and true report of a judicial proceeding statute.

I find that at this preliminary stage in the proceedings, in which no answer has been filed or discovery conducted, this Court cannot say that plaintiff can prove no set of facts which will sustain his claim. This ruling is without prejudice to a reconsideration of the asserted privilege at a later stage in this litigation.

Does the Complaint set forth a claim of libel sufficient to withstand a Rule 12(b)(6) motion?

Plaintiff alleges that the aim, purpose and effect of the documentary was to depict plaintiff as the person who caused Ms. Mundel’s dismissal by maliciously and libelously calling her a communist. (Comp. Para. 28) Further by failing to include in the original broadcast plaintiffs unequivocal denial plaintiff claims defendant portrayed him as a “professionally irresponsible ... unprincipled, vicious and dispicable person of disreputable character, ready and willing to use lectures on Americanism and the danger of communism to destroy as traitors the livelihoods and lives of Americans innocent of any connection with communism.” (Comp. Para. 29).

A motion to dismiss a complaint requires the Court to determine whether the claim as alleged, without regard to the weight of the evidence, and assuming as true all facts pleaded, states a claim for which relief can be granted. The complaint must be deemed sufficient if plaintiff has pleaded a colorable claim of libel. Geisler v. Petrocelli, 616 F.2d 636 (2d Cir.1980); Davis v. Ross, 754 F.2d 80 (2d Cir.1985). The Davis Court, turned to James, 40 N.Y.2d at 418, 386 N.Y.S.2d 871, 353 N.E.2d 834, as the controlling libel case in New York. That case set forth three standards for determining the sufficiency of a libel complaint. The beginning of the Court’s analysis is to determine whether the publication is susceptible of any one meaning, if so, the Court must then decide if the accused language is libelous as a matter of law. If the Court decides the publication is susceptible of more than one meaning, one of which could be viewed as defamatory, then it is for the trier of fact to determine in what sense the words were used. The three standards set forth by the Davis Court are:

1. The Court must consider the publication as a whole and not pick out and isolate particular phrases.

2. The publication should be tested by its effect on the average reader. The Court should neither construe the words with technical precision or strain to place a particular interpretation on them nor should the Court interpret the words in their mildest and most inoffensive sense to hold them non-libelous.

3. The Court should read the accused words against the background of their issuance with respect to the circumstances of their publication and the scope and apparent object of the writer.

It is apparent from this complaint that the plaintiff has not considered the broadcast taken as a whole but has selectively isolated certain passages as disparaging reaching this result often by resorting to innuendo. Plaintiff, in his complaint and his Brief in Opposition repeatedly asserts that the broadcast attributed Ms. Mundel’s plight to his alleged accusation that she was a communist. Although the words: “Tagged as a Red, she couldn’t find a job anywhere.” (Exhibit A to the Complaint, p. 7.) are dramatically stated, the broadcast made it clear who had caused Ms. Mundel’s dismissal in its opening lines:

“My name is Luella Mundel, and I was in this courtroom about 30 years ago. I had been accused of being a security risk and an atheist by the president of the school board, and as a result I lost my job.” Exhibit A to the Complaint, p. 5 (emphasis added).

The sentence relied upon by plaintiff occurred later in the broadcast. Its meaning becomes clear when it is placed in the context of the two sentences immediately following it. The entire paragraph — the only one with the phrase “Tagged as a Red”— reads as follows:

“Tagged as a Red, she couldn't find a job anywhere. She was running out of money. And in desperation she filed suit for slander against the woman who had called her a security risk, and that woman was to be represented by bible-thumping, flamboyant United States Senator Mansfield Neely of West Virginia.” Exhibit A to the Complaint, p. 7.

Read in its entirety and against the background of the earlier Mundel quote, the paragraph plainly, inescapably and indisputably refers not to plaintiff but to the female president of the school board as the one who had caused Mundel’s dismissal.

The broadcast was a historical presentation of a period in American life when First Amendment concepts of freedom of thought, speech and association were on a collision course with a widely held public perception that communists were a clear and present danger to the body politic and that this alien conspiracy must be eradicated whenever found. The documentary explored the manner in which a small town in West Virginia tried to preserve the “American way of life.”

This Court is of the opinion that under current New York law the alleged Nazi-communist exchange of Lasky and Mundel at the American Legion meeting thirty years ago would not be held defamatory but rather protected speech. See discussion by Judge Oakes of First Amendment gloss upon libel law after New York Times v. Sullivan, in Buckley v. Littell, 539 F.2d 882 (2d Cir.1976).

The recollections of Mr. Lasky, Ms. Mundel, Legionnaire Michael and others concerning the American Legion meeting presented a vivid picture of a community gathering, enlivened by a forceful speaker, discussing a matter of paramount public concern. Legionnaire Michael recalled that both Mr. Lasky and Ms. Mundel engaged in a shouting match in which Lasky called Mundel a communist and she called him a Nazi. It is precisely this type of exchange which has been characterized in the law of libel as the expression of opinion, or more specifically, epithets which express a speaker’s emotions rather than assertions of fact. Such name calling, in the context of public debate, is protected speech because of the “profound national commitment to the principle that debate on public issues should be uninhibited, robust and wide-open and ... it may well include vehement, caustic and sometimes unpleasant sharp attacks.” New York Times v. Sullivan, 376 U.S. at 270, 84 S.Ct. at 720. Such speech has been characterized in other opinions by the Supreme Court as “no more than rhetorical hyperbole, a vigorous epithet ... Greenbelt Cooperative Publishing Assn. v. Bresler, 398 U.S. 6, 14, 90 S.Ct. 1537, 1541, 26 L.Ed.2d 6 (1970), or “a lusty and imaginative expression ... of contempt,” Letter Carriers v. Austin, 418 U.S. 264, 286, 94 S.Ct. 2770, 2782, 41 L.Ed.2d 745 (1974).

In National Association of Government Employees v. Central Broadcasting, 396 N.E.2d 996 (Mass.1979) cert. denied, 446 U.S. 935, 100 S.Ct. 2152, 64 L.Ed.2d 788 (1980) the Court explained that accusing another of being a communist is not libel when it occurs in the midst of public debate in which voices are expected to be raised in sloganeering invective. In any event even if we were to assume the alleged Lasky accusation was defamatory of Ms. Mundel, such a finding would not advance the analysis of this complaint since Mr. Lasky, not Ms. Mundel, is the plaintiff. The grave-men of plaintiff’s complaint is that the defendant broadcast a false assertion that plaintiff had maliciously called Ms. Mundel a communist for the purpose, aim and effect of showing that plaintiff was responsible for her discharge and subsequent unemployment while omitting to publish, at the same time, plaintiff’s alleged denial of the accusation and that defendant had possession of a letter showing plaintiff was sympathetic to Ms. Mundel.

The strength of the complaint's allegations are not factors for this Court to consider at this time. The office of a motion under Rule 12(b)(6) is solely to determine the legal feasibility of the complaint. Geisler v. Petrocelli, 616 F.2d 636 (2d Cir. 1980). Although this Court finds that plaintiff’s assessment of the broadcast is strained, this Court cannot say as a matter of law that the Program is susceptible of only one meaning nor can we say that it appears to a certainty that plaintiff is entitled to no relief under any state of facts which could be proved in support of the claim. Although defendant correctly observes that the Geisler Court’s decision was in the context of deciding the “of and concerning” element of a libel claim, which is traditionally a factual issue, the latest case in this Circuit, Davis, has cautioned the district courts of the narrow lense through which it must look when viewing a libel complaint under a Rule 12(b)(6) focus.

For the above reasons, defendant’s motion to dismiss the complaint under Fed. R.Civ.P. 12(b)(6) is denied. Plaintiff seeks counsel fees alleging that defendant’s motion is frivolous and groundless. This application is denied. The issues raised by defendant were not only meritorious but caused this Court considerable concern. It was only after this Court was apprised of the Davis v. Ross, litigation pending before the Second Circuit that this Court decided to await that decision before deciding the motion herein.

Defendants’ motion to dismiss the complaint is in all respects denied, plaintiff’s motion for counsel fees is in all respects denied.

It Is So Ordered.

      . Since federal jurisdiction is based upon diversity of citizenship, New York Libel law governs this action except to the extent that it is modified or limited by federal constitutional standards.

      . The transcript of the Program is attached to the complaint as Exhibit A.

      . Plaintiff pleads in his complaint that he has been recognized as a responsible but vigorous opponent of the Soviet Union and of communism both in practice and in theory. (Comp, para. 4). This Court on consent dismissed the first claim which alleged plaintiff had been libeled as a private person.

      . On the Program, Ms. Mundel also related her impressions of the American Legion meeting and stated that:
      When I got there I thought some of the remarks were asinine. For instance, some speaker referred to The New York Times as a pink sheet. I thought that was absurd and I think I said so. There were a number of other comments that were made that I think I challenged.

      . According to Ms. Mundel's statements, the woman who called her a security risk was the president of the school board.

      . Plaintiff does not dispute the fact that in his complaint he pleads that he is a public figure who thrust himself into the middle of the anticommunist crusade in order to affect public opinion. Nor is it disputed that it was in this role that plaintiff was invited to West Virginia to address the Legionnaires’ meeting.

      . Immediately after the Legionnaire stated his recollection of the meeting, Mr. Lasky said:
      All I know is that an hysterical woman got up and began to assail me or — and the rest of the speakers. And I had to respond to try to calm her down. If anything I was a calming influence. Believe me, she was hysterical. Ex. A, p. 7.
      Toward the end of the Program, Mr. Lasky again appeared and stated that:
      I have no feeling one way or the other, I feel sorry for her. I feel sorry for her very much. I mean, I didn’t have nothing to do with it. I didn’t ask her to come to the meeting. I didn’t ask her to shoot off her mouth. I have no idea why she was there. She was there with a claque and she rather enjoyed being Joan of Arc. I don't — I didn’t set the fire to Joan of Arc. Ex. A, p. 9.

      . Reeves involved an ABC news report of a pending Grand Jury and SEC investigation. New York has a similar statute, Civil Rights Law ¶74 which is limited, as is the California statute, to a fair and true report of any judicial, legislative or other official proceeding.

      . Plaintiff, through discovery, may ascertain facts which would make the privilege inapplicable.

      . Specifically, plaintiff alleges that defendant intentionally excluded from the Program, his "unequivocal denial” of the American Legion incident as well as a letter addressed to plaintiff by one of Ms. Mundel's close friends. This denial, as broadcast by defendant on July 16, 1983 stated:
      I did not label her a Communist. I never did. And I don’t think she would have told you that I did. Or did she? I never labeled her anything. I can’t believe I would have labeled her anything — because I have never labeled anybody unless they were Communist.

      . Davis involved a libel complaint made by a private person. Since the instant case involves a conceded public figure plaintiff, a fourth standard must be added under New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, viz, that the complaint must plead that the defamatory matter was published with malice. Because plaintiff has pleaded malice, this fourth standard will require no further discussion. Charles Atlas Ltd. v. Time-Life Books, Inc., 570 F.Supp. 150-155 (S.D.N.Y.1983).

      . Judge Oakes explained in Buckley v. Littell, supra, at p. 888 that the Supreme Court in New York Times and subsequent holdings has recognized that the law of libel "has enormous First Amendment implications ... which may constitute an intrusion upon the prohibitions of that Amendment. The law of defamation has in effect been rewritten in light of the Constitutional imperatives.” The central interest of a court, Judge Oakes stated, is to examine the whole record so as to assure that the judgment does not constitute a forbidden intrusion on the field of free expression.


author: WARRINER, District Judge.

text:
    Johnnie Mack GRIFFIN v. COMMONWEALTH OF VIRGINIA, et al.
    Civ. A. No. 84-0939-R.
    United States District Court, E.D. Virginia, Richmond Division.
    March 12, 1985.

      Griffin, pro se.
    Frank S. Ferguson, Asst. Atty. Gen., Richmond, Va., for Com. of Va., et al.
   OPINION

WARRINER, District Judge.

On 21 December 1984, petitioner, proceeding pro se and in forma pauperis, filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. On 11 January 1985, respondents submitted a motion to dismiss. By order of this Court dated 17 January, petitioner was informed of an opportunity to submit rebuttal materials. Petitioner’s rebuttal was received on 4 February. This motion is now ripe for consideration. The Court’s jurisdiction is conferred by 28 U.S.C. § 2254.

As a preliminary matter, petitioner makes a motion for appointment of counsel pursuant to 28 U.S.C. § 1915(d). Finding that petitioner has alleged no “exceptional circumstances” warranting appointment, petitioner’s motion is hereby DENIED. See Cook v. Bounds, 518 F.2d 779, 780 (4th Cir.1975).

Petitioner is currently detained at the United States Penitentiary in Lewisburg, Pennsylvania. He faces future incarceration in the Commonwealth of Virginia as a result of judgments rendered by the Circuit Court of the County of Sussex wherein petitioner was convicted of abduction, two counts; grand larceny; use of a firearm in the commission of a felony, three counts; and entering a banking house while armed with a deadly weapon with the intent to commit larceny. Petitioner attacks the aforementioned convictions by making the following allegations:

(1) Petitioner was denied his right to a speedy trial as guaranteed by the sixth amendment of the Constitution. Specifically:
(a) The Commonwealth of Virginia failed to carry its burden of proof to show the delay in bringing the petitioner to trial was justified.
(b) The charges should have been dismissed under Va.Code § 19.2-243 because the delay exceeded Virginia’s statutorily prescribed maximum time period.
(2) The trial court erred in finding petitioner guilty of violating Va.Code § 18.2-93 because there was no proof that the building that petitioner entered was a bank possessed of a corporate charter.
(3) The trial court erred in permitting an in-Court identification of petitioner because of the “suggestiveness.”
(4) The trial court erred in allowing any identification of petitioner by any witness after reviewing the line-up photos of petitioner taken in violation of a federal court order.
(5) The trial court erred in denying petitioner’s motion to restrict the Commonwealth from using any evidence called for in discovery which was not produced to the petitioner prior to trial.
(6) The trial court erred in refusing petitioner’s motion to require the Commonwealth to produce any exculpatory material or any statement made by any witness.
(7) The trial court erred in allowing any money into evidence because it was not proved to belong to the F.D.I.C.
(8) The trial court erred in denying the petitioner’s motion to disqualify an Assistant U.S. Attorney from participating in the prosecution of the State court charges.
(9) The trial court erred in allowing the introduction of certain letters from the U.S. Marshal’s Office.
(10) The trial judge erred in “testifying” as to his personal conversations with a federal judge concerning petitioner’s federal prosecution.
(11) The trial court erred in aiding the prosecution by calling for the production of a letter addressed to the Commonwealth’s Attorney from a federal judge.
(12) The trial court erred in allowing the introduction of a letter from a federal judge.

Petitioner presented these same issues in his direct appeal to the Supreme Court of Virginia. Finding no reversible error, the petition for appeal was denied by an order of that court dated 30 January 1984. See Respondents’ Exhibit II. Accordingly, available State remedies have been exhausted regarding all claims presented herein. 28 U.S.C. § 2254(b).

I. Denial of Right to Speedy Trial

To the extent that allegation (1) deals with matters regarding the Constitution of Virginia and Virginia statutory laws (specifically, the five month limit on trials imposed by Va.Code § 19.2-243), these issues are matters of State law not cognizable in a federal habeas corpus proceeding. Petitioner’s claims regarding denial of his right to a speedy trial must be analyzed solely in terms of the sixth amendment’s federal constitutional guarantee.

The standard of review concerning a claim of denial of speedy trial was announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The Barker balancing test delineates four factors necessary to determine if a delay constitutes a denial of the sixth amendment right to speedy trial: (1) length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. Id. at 530, 92 S.Ct. at 2192.

On 6 May 1982, petitioner was indicted for bank robbery by the Circuit Court of the County of Sussex. The offenses in question occurred on 19 January 1982; petitioner was taken into custody by federal agents on 25 January 1982. Petitioner was convicted of various federal offenses and was sentenced by this Court on 22 June 1982. Petitioner was placed in federal custody at F.C.I. Petersburg.

Petitioner’s case in Sussex County went to the grand jury on 6 May 1982. The capias to answer the indictments was returnable to the Circuit Court of Sussex County at its next term commencing 13 July 1982. Petitioner’s case was placed on the docket of that Court.

Although not reflected in the record of the trial, the Sheriff of Sussex reported to the presiding trial judge that petitioner was housed in the federal penitentiary in Leavenworth, Kansas, and that the United States Marshal had failed to honor the Sussex detainers.

At the 14 September 1982, term of court for the Circuit Court of the County of Sussex, it became apparent that the Commonwealth would have to attempt to gain custody of petitioner by utilizing the Interstate Agreement on Detainers (I.A.D.). Va.Code § 53.1-210, et seq. Appropriate requests were made pursuant to Article IV of the I.A.D. and petitioner was taken into custody by the Sussex County Sheriff’s Department on 5 November 1982.

On 14 December 1982, the Circuit Court heard petitioner’s motion to dismiss for lack of speedy trial. The Court denied petitioner’s motion. A trial was held on 21 January 1983.

Petitioner was held in the custody of the Commonwealth without trial from 5 November 1982, to 21 January 1983, a period of 77 days. Thus, there was no violation of the “120 day rule” prescribed by the I.A.D. Va.Code § 53.1-210, Article IV(c).

A period of approximately eight and one half months elapsed between petitioner’s state court indictment and his trial. Applying the Barker balancing test to these facts, the record does not indicate that the petitioner made a demand for trial prior to his motion to dismiss. Furthermore, petitioner has not shown the specific manner in which he was prejudiced in presenting his defense.

The length of delay presented in this petition contrasts sharply with periods of delay which have, in the past, been found presumptively prejudicial. See Morrison v. Jones, 565 F.2d 272 (4th Cir.1977) (three years). See also United States v. John son, 579 F.2d 122, 123 (1st Cir.1978) (an eight month delay warranted further inquiry into the Barker factors only because of the simple “garden variety” nature of the charge against appellant).

In light of the serious offenses for which petitioner was charged and petitioner’s inability to present evidence supporting any actual prejudice caused by this delay, petitioner has failed to show that the eight month delay in question was “presumptively prejudicial.” Accordingly, petitioner’s claims regarding a denial of his right to speedy trial shall be DISMISSED.

II. The Wainwright Doctrine

Petitioner’s second claim is that his trial should have been dismissed because the Commonwealth failed to prove that the building in which petitioner committed his acts was a “bank” as defined by Virginia statutory law. Respondents argue that this issue may not be considered on federal habeas corpus review because there was no objection made at trial.

Under the doctrine of Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), a procedural default in the State courts precludes federal habeas review. Where a State Supreme Court refuses to consider the merits of a claim because of a failure to make a contemporaneous objection as required by State law, federal courts may not consider the claim in the absence of cause for and prejudice from such failure. Wainwright, 433 U.S. at 87-90, 97 S.Ct. at 2506-2508.

On the other hand, where a procedural default is ignored or waived in the State court and a decision is rendered on the merits of the claim, the Wainwright limitations do not apply. See Ulster County Court v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979). Unfortunately, it is not always clear whether a State court has ruled on the merits of a Constitutional claim or has interposed a procedural bar to its consideration.

Like many States, Virginia has a “contemporaneous objection rule.” See Rule 5:21, Rules of the Supreme Court of Virginia. Except for good cause shown or to tenable it to do justice, the Virginia Supreme Court will not consider alleged errors not contemporaneously objected to at trial. See Satterfield v. Zahradnick, 572 F.2d 443, 446 (4th Cir.1978), cert. denied, 436 U.S. 920, 98 S.Ct. 2270, 56 L.Ed.2d 762 (1978).

Initially, the Fourth Circuit indicated that the failure of the Virginia Supreme Court to enumerate its reasons for denying relief would preclude application of Wainwright principles. See Williams v. Zahradnick, 632 F.2d 353, 359 (4th Cir.1980). However, the holding in the subsequent case of Tweety v. Mitchell, 682 F.2d 461, 464 (4th Cir. 1982), apparently contradicted this principle.

“In this case, the Virginia Supreme Court failed to state the basis for its dismissal of Tweety’s habeas petition ... thus we are left to speculate whether the Virginia Supreme Court dismissed the case on State procedural grounds which would preclude federal habeas corpus review under Wainwright v. Sykes, supra, or whether the Court dismissed the opinion upon consideration of the merits in which case a review of the merits by this Court will be appropriate.” [fn. omitted.]

Elaborating on this point, the Fourth Circuit stated,

“[W]e are not prepared to presume that the Court dismissed Tweety’s petition on the merits simply because the Court failed to state the grounds for its decision and we agree with the district court that the Virginia Supreme Court probably dismissed Tweety’s State habeas petition for failure to make a contemporaneous objection.”

682 F.2d at 464.

Perhaps relying on the Tweety standard, respondents argue that this Court should not presume that the Virginia Supreme Court addressed petitioner’s claim number (2) on the merits. This case, however, does not present the difficult question concerning the proper effect to be given to a holding of the Virginia Supreme Court asserting the State’s procedural bar but alternatively, dismissing the merits of petitioner’s claim.

In this petition a review of the order entered by the Virginia Supreme Court dismissing petitioner’s direct appeal makes no mention of a procedural bar. The order of the Virginia Supreme Court dated 30 January 1984, Record No. 830975, contains language which is generally relied on by that Court to reject not only a petition for a writ of error on direct appeal but also a petition for a writ of habeas corpus. That language, “... the Court is of the opinion that there is no reversible error in the judgments complained of,” is simply insufficient to trigger the limitations of the Wainwright doctrine.

Virginia case law indicates that a denial of a petition for a writ of error on direct appeal is a denial on the merits. See Saunders v. Reynolds, 214 Va. 697, 204 S.E.2d 421, 424 (1974). Accordingly, respondents’ Wainwright argument must be rejected. Until such time as the Supreme Court of Virginia abandons the aforementioned language and clearly gives the federal courts an indication that they are enforcing the procedural bar of their contemporaneous objection rule, this Court is required by Fourth Circuit precedent to ignore the Wainwright limitations argued by respondents and address the merits of all such claims.

The issue of the bank’s corporate charter is solely a matter of State law. Absent circumstances impinging on fundamental fairness a matter of State law is not the proper subject of a federal habeas corpus proceeding under 28 U.S.C. § 2254. See Grundler v. North Carolina, 283 F.2d 798 (4th Cir.1960). A State’s statutory definition of its corporate banking institutions is not a fundamental constitutional issue. Accordingly, petitioner’s claim is not cognizable by this Court and shall be DISMISSED.

III. Adequacy of the Identification Procedures

Petitioner’s claim that the trial court erred in permitting a “suggestive” in-court identification of petitioner fails to specifically demonstrate impermissible suggestiveness. The petitioner merely avers that the Commonwealth required petitioner to wear not only a false beard but also a cap and sunglasses when posing for a photograph to be used in a photographic “lineup.”

Applying the test announced in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), plaintiff has failed to show that this disguise was, in the context of the identification procedure used, so suggestive as to create a likelihood of irreparable misidentification.

Petitioner received a bench trial, thus lessening any prejudice that possibly could have been created if the identification procedures were defective in any way. Patler v. Slayton, 503 F.2d 472, 476 (4th Cir.1974). Furthermore, any prejudice received from these identification procedures is negated by the fact that petitioner’s fingerprints were found on a briefcase carrying the stolen money. Tr. at 270. On the record presented, applying the Stovall test, petitioner has failed to show the degree of suggestiveness warranting habeas relief.

IV. Non-Disclosure of Brady Material

Petitioner next complains that the trial court denied him a fair trial by failing to restrict the Commonwealth from using any evidence called for in discovery which was not produced to the petitioner prior to trial. Although petitioner does not specifically allege which evidence was not disclosed, a review of the record shows that the only evidence objected to at trial was a fingerprint card (Tr. at 78), an enlargement of a bank photo showing the guns used in the robbery (Tr. at 166), and evidence secured through two search warrants which defense counsel became aware of upon the day of trial (Tr. at 221-223, 231-232).

Applying the test announced in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), and as later applied in Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 845, 51 L.Ed.2d 30 (1977), it is clear that there is no constitutional right to discovery of evidence which is not exculpatory. Even relying on the broadest construction of the Brady standard, that calling for disclosure of all “material” evidence, petitioner must still show some prejudice flowing from the Commonwealth’s non-disclosure in order to meet the “materiality” standard.

A review of the evidence in question shows that a fingerprint analysis was sent to petitioner’s attorney well in advance of trial (Tr. at 167). Respondents’ Exhibit III. The questioned photo enlargement was merely an enlargement of a photograph which was available to defense counsel. The enlargement was also available in the public file of petitioner’s appeal pending in the Fourth Circuit Court of Appeals.

Since defense counsel had equal knowledge of and access to this evidence, the Commonwealth’s failure to provide the evidence to the defendants fails to state a constitutional claim. Rosenberg v. United States, 360 U.S. 367, 371, 79 S.Ct. 1231, 1234, 3 L.Ed.2d 1304 (1959). Smith v. United States, 375 F.Supp. 1244, 1247 (E.D.Va.1974).

For the same reason, the material secured by the search warrants of which defense counsel was not aware until the day of trial fails to state a cognizable claim. If counsel for defendant had wished to check the record in the Fourth Circuit at any time prior to trial, he would have been made aware of this evidence. The Commonwealth’s Attorney clearly informed defense counsel of the existence of this evidence. See Respondents’ Exhibit III.

Petitioner’s claim regarding the Commonwealth’s failure to order disclosure of “any statement made by any witness” fails to state a basis for federal habeas relief. Petitioner has failed to show any prejudice flowing from the Commonwealth’s failure to comply with this ambiguous request. Weatherford v. Bursey, 429 U.S. at 559, 97 S.Ct. at 845. These claims shall be DENIED.

V. Admissibility of the Evidence

Petitioner’s claim that the trial court erred in permitting the stolen money to be entered into evidence is solely a matter of State law and does not impinge fundamental fairness. Accordingly, it does not state grounds cognizable in a federal habeas petition. See Grundler v. North Carolina, 283 F.2d 798 (4th Cir.1960). Similarly, petitioner’s claims regarding the participation of the Assistant U.S. Attorney, the introduction of letters from the U.S. Marshal’s Office, the trial judge’s comments from the bench regarding his personal conversations with a federal judge, and the introduction of a letter addressed to the Commonwealth’s Attorney from the federal judge are matters of State evidentiary law. Even in the aggregate, these alleged errors are insufficient to impinge upon the fundamental fairness of petitioner’s trial. Accordingly, petitioner’s petition for a writ of habeas corpus shall be DENIED.

An appropriate judgment shall issue.

      . Rule 5:21, Rules of the Supreme Court of Virginia, provides "Error will not be sustained to any ruling below unless the objection was stated with reasonable certainty at the time of the ruling ...”

      . In a recent case, Briley v. Bass, 750 F.2d 1238 (4th Cir.1984), the Fourth Circuit indicated, sub silencio, that the Tweety standard may no longer be the controlling precedent. In analyzing a decision of the Virginia Supreme Court in which that Court denied Briley’s habeas claims on the alternate basis of a procedural forfeiture and a resolution of the issues on the merits, the Fourth Circuit ignored the Wainwright bar stating that, “[S]ince the Virginia courts reached the substantive merits on collateral review, we will do so here.” at 1242, fn. 6. For purposes of this decision, this Court will assume that Tweety is still the law.


author: CLEMON, District Judge.

text:
    Brenda NELSON, et al., Plaintiffs, v. GREATER GADSDEN HOUSING AUTHORITY, et al., Defendants.
    Civ. A. No. 82-C-0857-M.
    United States District Court, N.D. Alabama, M.D.
    March 12, 1985.
    Legal Services Corp. of Alabama, James S. Sledge, Gadsden, Ala., Legal Services Corp. of Alabama, Mobile, Ala., for plaintiffs.
    William D. Russell, Jr., Gadsden, Ala., for defendants.
   MEMORANDUM OF OPINION

CLEMON, District Judge.

On April 15, 1982, plaintiff Brenda Nelson filed this action against the Greater Gadsden Housing Authority of Gadsden, Alabama (“GGHA”) and two of its officials, alleging that they had consistently overcharged public housing tenants for excess utility charges, in violation of the applicable federal statutes and regulations; and that as a result of these overcharges, she was about to be evicted. The defendants were temporarily restrained from evicting plaintiffs; and the temporary restraining order was merged into a preliminary injunction following a hearing.

By subsequent leave of court, additional plaintiffs were added. By agreement of the parties and upon a showing that the named plaintiffs satisfy all of the requirements of FRCP 23(a) and (b)(2), the case was certified as a class action with the following subclasses:

(a) Tenants of GGHA for whom it has supplied electricity (1,000 units) since January 1, 1979;

(b) Tenants of GGHA for whom it has supplied gas (750 units) since January 1, 1979; and

(c) Tenants of GGHA who supply or have supplied their own gas (250 units) since April 15, 1976.

GGHA is a public housing authority organized under the laws of Alabama. § 24-1-1 et seq. of the Code of Alabama of 1975. It receives federal assistance- under the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq. Individual defendants Ray Ingleheart and Mildred Gilchrist are the executive director and housing director of GGHA, respectively. GGHA is required by law to provide the plaintiff class with reasonable amounts of utility usages, in return for the payment of rent. The United States Department of Housing and Urban Development (HUD), with its oversight responsibilities for public housing authorities receiving federal assistance, has promulgated rules and regulations which define reasonable utility usage.

The plaintiff class contends that the defendants have failed and refused to provide them with reasonable utility usages, thereby denying their substantive and due process rights under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. The class further claims that the defendants have violated binding provisions of 42 U.S.C. § 1437 et seq. and the relevant regulations, as well as the annual Contributions Contract between the defendants and HUD.

The defendants virtually concede that they are not in compliance with the applicable regulations governing utility allowances. Therefore, following a hearing on the motion of the plaintiff class for a preliminary injunction, the Court enjoined the defendants to set utility allowances at substantially higher rates, and to reimburse tenants who supply their own gas by the amount that the allowance exceeded the rent. The allowances have since been adjusted twice.

The injunctive relief having been disposed of, the remaining issue is the plaintiff class’ entitlement vel non to compensatory damages. Pending before the Court are the parties’ cross motions for summary judgment.

Based on the pleadings, affidavits and attachments thereto, exhibits, depositions, admissions, interrogatories and answers thereto, the Court makes the following findings of fact and conclusions of law. Based thereon, the plaintiff class is entitled to judgment as a matter of law.

I. History And Overview Of Utility Allowances In Conventional Public Housing

The conventional public housing program originated with the United States Housing Act of 1937 (USHA), Pub.L. No. 412, 50 Stat. 888 (Sept. 1, 1937) (now codified, as amended, at 42 U.S.C. §§ 1437 et seq.). The avowed goal of this Act is “to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe and sanitary dwellings for families of lower income____” 42 U.S.C.A. § 1437 (West Supp.1984). According to USHA, lower income housing means decent, safe and sanitary dwellings; public housing is lower income housing and all necessary appurtenances thereto. 42 U.S.C.A. § 1437a(b)(l) (West Supp.1984).

In compliance with these statutory goals and in conformance with statutory definitions requiring public housing to encompass all necessary appurtenances, public housing authorities (PHAs) have historically provided tenants with necessary utilities. See 49 Fed.Reg. 21476, 21483 (May 21, 1984) (HUD commentary upon final rule); 47 Fed.Reg. 35249-50 (August 13, 1982) (HUD commentary accompanying proposed rule making). In 1963, HUD issued a handbook with instructions to PHAs about the computation of utility allowances. HUD, Local Housing Authority Management Handbook, Section 9, “Controlling Utility Consumptions and Costs” (April 1963) (hereinafter entitled LHA Handbook ).

In 1969, USHA was amended so as to limit the rent that PHAs could charge tenants to 25% of adjusted family income. See Pub.L. No. 91-152, § 213(a), 83 Stat. 389 (1969) (the Brooke Amendment) (codified, prior to amendment, at 42 U.S.C. § 1437a).

In 1970 HUD, promulgating rules to effectuate the Brooke Amendment, defined rent to include the cost of reasonable amounts of utilities, so that when tenants leased units from PHAs, they were to be provided not merely with shelter, but also with the cost of reasonable utility usage. See HUD Circular, Implementation of Sections 212 and 213 of the Housing and Urban Development Act of 1969 (RHM 7465.1 and 7475.1) (March 16, 1970); 49 Fed.Reg. 21476, 21483 (May 21,1984) (HUD commentary to final rule). In 1975, these definitions were incorporated in substantially unchanged form in HUD regulations published in the Federal Register and have appeared since then in the Code of Federal Regulations. See 40 Fed.Reg. 44323, 44324-25 (September 26, 1975) (now codified at 24 C.F.R. §§ 860.403(a), (i) and (l)).

In January 1979, HUD proposed to place its regulations regarding the calculations of reasonable utility allowances in the Code of Federal Regulations. See 44 Fed.Reg. 1600 (January 5, 1979). Those proposed regulations were adopted, with revisions, on September 9, 1980. See 45 Fed.Reg. 59502-08 (September 9, 1980) (now codified at 24 C.F.R. § 865.470 {et seq.) (the interim rule). These regulations were based on those that had earlier appeared in the LHA Handbook. See id. at 59502 (therein called HUD Guide). The effective date of the regulations was October 1, 1980. PHAs were required to establish allowances based upon the regulations no later than 120 days after the effective date of the regulations. See 24 C.F.R. § 865.482. The allowances were, then, to have been in place by January 29, 1981.

II. The Method By Which Utility Allowances Are Computed

A. Pre-Interim Rule

Prior to January 29, 1981, the implementation date of the interim rule, HUD’s instructions to PHAs for computing utility allowances were contained in the LHA Handbook. Where tenants purchased gas or electricity directly from a utility company, the LHA Handbook directs that the reasonable costs of utilities are deducted from the gross rents to obtain the contract rents actually paid by the tenants to the PHA. In computing the allowances, a survey of actual costs to tenants should be made. PHAs are instructed to check the dollar allowances periodically to insure their reasonableness. If they are not reasonable, they should be revised. LHA Handbook, Part II, Section 9, Chapters 3 and 5.

Where the PHA provides tenants with utilities and surcharges the tenants if they exceed the utility allowance, the LHA Handbook states that allowances should normally be set at 20% above average use so as to prevent surcharging too many tenants. If more than 25% of the tenants are surcharged during any billing period, the allowance should normally be revised so that about 10% of the tenants will be surcharged. LHA Handbook, Part II, § 9, Chapter 2, paragraph 10; Chapter 4, paragraph 10.

B. The Interim Rule: 24 C.F.R. §§ 865.470 et seq.

The interim rule, with some exceptions, is essentially a more detailed statement of the methods and principles appearing in the LHA Handbook. For tenants who purchase their own utilities, PHAs are instructed to fix allowances at the average amount of consumption per month multiplied by the current utility rate.

Instances of unusually high tenant utility usage are excluded from the calculations. See 24 C.F.R. § 865.478. PHAs are instructed to revise the allowances at least once every three years. In addition, if a rate change which, by itself or together with prior rate changes not’adjusted for, results in a change of 10% or more, the PHA is instructed to revise the allowance to account for the change. Id. at § 865.-480(c).

Where the PHA provides tenants with utilities and surcharges the tenants if they exceed the utility allowance, PHAs are instructed to establish the allowances at a level sufficient to meet the requirements of 90% of the tenants. The allowances should be high enough so that only 10% of the tenants are surcharged.

In determining the allowances, PHAs may exclude instances of unusually high utility usage due to unusual individual circumstances, wasteful practices, or use of the utility for major tenant-supplied applianees. See 24 C.F.R. § 865.477. PHAs are instructed to determine at the end of each billing period the number and percentage of tenants who have been surcharged. If more than 25% have been surcharged and there is no reason of a non-recurring nature (such as weather extremes) to account for this, the PHA shall if appropriate revise the allowance in accordance with § 865.477. See id. at § 865.480(b).

III. The Allowance For Tenant Purchased Gas at GGHA

Defendant GGHA operates 1,000 units of public housing in six different projects. In each of the 1,000 units, GGHA provides tenants with electricity, i.e., GGHA contracts directly with the power company and demands tenant reimbursement only to the extent that the tenants use electricity above their allotted allowances.

In 750 units, GGHA provides tenants with gas, i.e., GGHA contracts directly with the gas company and demands tenant reimbursement only to the extent that the tenants use gas above their allotted allowance. In 250 units, however — those located at Campbell Court and Starnes Park — the tenants purchase their own gas directly from the gas company.

In the 250 units in which tenants buy their own gas, the heating system, hot water heater and stove and oven all run on gas.

The defendants provides these tenants with a gas allowance by giving them a credit toward their rent. Prior to the filing of this lawsuit, the credit allowance was $5.00 per month for a one bedroom apartment; $7.00 per month for a two bedroom apartment; and $8.00 per month for a three bedroom apartment. Prior to March 1, 1977, the credit allowance was $4.00 per month for all bedroom sizes.

The allowances were not adjusted between March 1, 1977 and March 4, 1983, the date of the preliminary injunction, despite the intervention of the “interim rule” and its implementation date of January 29, 1981.

When the amount of the allowance exceeded the rent, defendants would reduce the rent to zero, but would not pay the tenant the amount by which the allowance exceeded the rent. For example, if the allowance were $8.00, but a tenant’s rent were only $5.00, defendants would reduce the rent to zero, but would not pay the tenant the remaining $3.00. Thus, the tenants would not receive the full allowance.

The gas allowance at Campbell Court and Starnes Park has been inadequate throughout the period drawn into issue by this lawsuit. The parties have together computed the arithmetic means of dollar cost to tenants for gas consumption at Starnes Park and Campbell Court from April 1976 through May 1983. The parties agree that the underlying data (records of the gas company) is accurate and that the computations are correct. Moreover, the calculations were performed only after excluding instances of unusually high tenant usage, as agreed upon by the parties.

The calculations, therefore, represent the average reasonable dollar cost to the tenants for gas consumption at Starnes Park and Campbell Court. The result demonstrates that the gas allowance has been fundamentally inadequate. When averaged over annual periods, the computations, as compared to the annual GGHA allowances, reveal the following:

TABLE I
ONE BEDROOM APARTMENT
Actual Average Monthly Expenditure GGHA Monthly Allowance
1976 (based upon
9 months) $ 7.90 $ 4.00
1977 10.47 4.00
(prior to March 1) 5.00 (thereafter)
1978 12.01 5.00
1979 16.27 5.00
1980 18.23 5.00
1981 20.43 5.00
1982 23.31 5.00
1983 (based upon 5 months) 34.97 5.00
(prior to March 1) 13.00 (thereafter)
TABLE II
TWO BEDROOM APARTMENTS
Actual Average Monthly Expenditure
GGHA Monthly Allowance
1976 (based upon 9 months) $ 8.85 $ 4.00
1977 11.95 4.00
(prior to March 1) 7.00 (thereafter)
1978 13.88 7.00
1979 17.00 7.00
1980 20.23 7.00
1981 22.12 7.00
1982 25.22 7.00
1983 (based upon 5 months) 37.63 7.00
(prior to March 1) 17.00 (thereafter)
TABLE III
THREE BEDROOM APARTMENTS
Actual Average Monthly Expenditure
GGHA Monthly Allowance
1976 (based upon 9 months) $10.51 $ 4.00
1977 14.14 4.00
(prior to March 1) 8.00 (thereafter)
1978 17.06 8.00
1979 21.21 8.00
1980 24.07 8.00
1981 27.93 8.00
1982 32.45 8.00
1983 (based upon 5 months) 49.31 8.00
(prior to March 1) 21.00 (thereafter)

The gas allowances at Starnes Park and Campbell Court have lagged far behind the rates charged the tenants by the gas company. By letter of November 3, 1977, HUD had reminded GGHA that its allowances at Starnes Park and Campbell Court should be reviewed annually to insure that the rates did not change to such a degree as to render the allowance inadequate.

GGHA, however, did not revise its gas allowance so as to keep pace with the increasing cost of gas that was an ineluctable fact of life for the tenants at Starnes Park and Campbell Court. Inevitably, then, as the years passed, GGHA’s gas allowance was an ever-shrinking percentage of the tenants’ actual expenditures for gas. Even in 1976, the allowance was only approximately 50% of the actual, reasonable expenditures of tenants in one-bedroom apartments and was less than that for tenants living in two and three bedroom apartments.

By 1982 and 1983 the allowance was such a small percentage of the tenants’ actual, reasonable expenditures that it may, without exaggeration, be characterized as no more than a token.

IV. The Allowance For PHA Supplied Gas and Electricity at GGHA

In all 1,000 units of public housing operated by GGHA, it provides tenants with electricity. In 750 units, all units except those at Starnes Park and Campbell Court, GGHA provides tenants with gas.

Prior to January 1, 1979, those tenants for whom GGHA supplied electricity were assessed a flat charge for certain major tenant-supplied appliances. Other than this charge, no excess utility charges were assessed tenants for GGHA-supplied electricity. Prior to January 1, 1979, those units for which GGHA supplied gas were not assessed an excess utility charge of any sort. Plaintiffs in this action do not challenge the GGHA’s utility allowance structure for GGHA-furnished utilities pri- or to January 1, 1979.

In the spring of 1978, GGHA installed an individual check meter system for the 1,000 units for which GGHA supplied electricity and the 750 units for which GGHA supplied gas. Beginning January 1, 1979, GGHA began charging tenants in these units for utility consumption in excess of the allowanee structure that was also put into place on January 1, 1979.

Subsequent to the establishment of allowances and the inauguration of the surcharge system on January 1, 1979, the allowances were not altered or updated until this Court ordered defendants to do so on March 4, 1983 and March 17, 1983. Furthermore, defendants never monitored the allowance system to determine the number of percentage of tenants who were being surcharged each month.

From January 1979 through February 1983 a large percentage of tenants were surcharged for both gas and electricity usage. These surcharges may be summarized as follows:

TABLE IV
PERCENTAGE OF TENANTS SURCHARGED FOR EXCESS GAS USAGE (January 1979 through February 1983)
TOTAL MONTHS (January 1979 through February 1983)
NUMBER OF MONTHS THAT MORE THAN 10% OF TENANTS WERE SURCHARGED
NUMBER OF MONTHS THAT 25% OR MORE OF TENANTS WERE SURCHARGED
NUMBER OF MONTHS THAT 50% OR MORE OF TENANTS WERE SURCHARGED
One-Bedroom Apts 50 45 34 6
Two-Bedroom Apts 50 43 25 1
Three-Bedroom Apts 50 44 37 12
Four-Bedroom Apts 50 47 46 39
Five-Bedroom Apts 50 46 40 21
TABLE V
PERCENTAGE OF TENANTS SURCHARGED FOR EXCESS ELECTRICITY USAGE (January 1979 through February 1983)
TOTAL MONTHS (January 1979 through February 1983)
NUMBER OF MONTHS THAT MORE THAN 10% OF TENANTS WERE SURCHARGED
NUMBER OF MONTHS THAT 25% OR MORE OF TENANTS WERE SURCHARGED
NUMBER OF MONTHS THAT 50% OR MORE OF TENANTS WERE SURCHARGED
One-Bedroom Apts 50 43 12 0
Two-Bedroom Apts 50 46 16 0
Three-Bedroom Apts 50 49 39 2
Four-Bedroom Apts 50 50 42 14
Five-Bedroom Apts 50 39 28 5

Plaintiffs’ and defendants’ attorneys have gathered the data necessary to compute what the allowances should have been from January 1979 through February 1983. The parties have agreed that the underlying data is accurate and that the computations are correct. The parties also agreed upon what units should be excluded from the computations as instances of unusually high usage. The parties have disagreed upon only one point in computing the allowances as should be. Even using the figures representing defendants’ position, which are generally lower than the figures representing plaintiffs’ position, it is clear that for most months since January 1979 the GGHA allowance for both gas and electricity was lower than it should have been.

TABLE VI
NUMBER OF MONTHS IN WHICH GGHA’S ELECTRICITY ALLOWANCE WAS TOO LOW ACCORDING TO DEFENDANTS’ POSITION
TOTAL MONTHS (January 1979 through February 1983)
NUMBER OF MONTHS ALLOWANCE WAS TOO LOW
One-Bedroom Apts 50 30
Two-Bedroom Apts 50 45
Three-Bedroom Apts 50 47
Four-Bedroom Apts 50 49
Five-Bedroom Apts 50 20
TABLE VII
NUMBER OF MONTHS IN WHICH GGHA’S GAS ALLOWANCE WAS TOO LOW ACCORDING TO DEFENDANTS’ POSITION
TOTAL MONTHS (January 1979 through February 1983)
NUMBER OF MONTHS ALLOWANCE WAS TOO LOW
One-Bedroom Apts 50 41
Two-Bedroom Apts 50 40
Three-Bedroom Apts 50 43
Four-Bedroom Apts 50 47
Five-Bedroom Apts 50 44

The large number of tenants surcharged each month by GGHA demonstrates that GGHA’s allowances were insufficient to meet the needs of many of its tenants. This could not have been due to unusual or unreasonable usage by the tenants. The calculations performed by the parties, in which instances of unusually high or unreasonable usage were excluded, nevertheless show that the allowances for almost all months were set too low. It follows, then, that so many tenants were surcharged because the allowances were set too low to meet their reasonable needs.

Y. Leases And Annual Contributions Contract

In the form lease used by defendants, GGHA agrees to comply with requirements of applicable regulations of HUD. This promise by GGHA has appeared in the form lease used by GGHA during all periods at issue in this lawsuit.

The conventional public housing program is administered in part through a contractual agreement between HUD and public housing authorities. This agreement is called the Annual Contributions Contract (ACC). In the ACC the housing authority agrees to adhere to the United States Housing Act of 1937 and the regulations promulgated thereunder. See King v. Housing Auth. of Huntsville, 670 F.2d 952, 953 n. 1 (11th Cir.1982). The housing authority also agrees to operate its projects so as to maintain the economic and social well-being of its tenants and to maintain the low-rent character of its projects. The ACC further provides that the housing authority will comply with the rules and regulations adopted by HUD for computing utility allowances.

VI. The Responsibility of GGHA

Defendants admit that until 1981 they never monitored the utility allowances for PHA — or tenant-supplied utilities so as to keep abreast of the adequacy of the allowanees. They do not really dispute the accuracy of the computations that demonstrate the inadequacy of the utility allowances throughout the period encompassed by this lawsuit.

The only substantive defense proffered by the defendants is that their allowances were initially approved by HUD and that HUD never authorized them to change the allowances. They say that they are therefore not responsible for the inadequate allowances.

On one occasion the defendants submitted a proposal to HUD for an increase in the allowances. HUD did not respond to this proposal. The Court finds that the proposal did not comply with then-current HUD regulations in that it was not first submitted to the tenants. See 24 C.F.R. § 865.473(a) (1982). Moreover, the proposed allowances were not computed in accordance with the requirements of the interim rule. Further, the undisputed evidence shows that even if the proposed allowances had been accepted by HUD, they would have been inadequate under the existing regulations. The defendants never pursued their proposal with HUD; a year after the lawsuit was filed, the Housing Director did not know whether HUD had actually received the proposal.

The facts relied upon by defendants are essentially an assertion of good faith on their part. However, the plaintiff class does not seek punitive damages in this action. Plaintiffs seek only reimbursement for past overpayments to GGHA. Moreover, although Iglehart and Gilchrist are defendants, they have been sued only in their official capacities.

CONCLUSIONS OF LAW

1. The GGHA is bound by the duly promulgated HUD regulations which implement 42 U.S.C. § 1437. King v. Housing Authority of Huntsville, 670 F.2d 952, 954 (11th Cir.1982).

2. Further, it is the clear duty of GGHA to establish and administer utility allowances. 24 C.F.R. § 865.470 (1983). The inadequate utility allowances allotted by GGHA to the plaintiff class during the relevant period have effectively violated 42 U.S.C. § 1437a’s provision that the rent of a public housing tenant shall not exceed 25% of income in the case of a very low income family or 30% of income in the case of other families.

3. In enacting 42 U.S.C. § 1437, Congress did not foreclose private enforcement of the statute. Further, 42 U.S.C. § 1437a(l) is of the species that creates enforceable rights under § 1983. McGhee v. Housing Authority of Lanett, 543 F.Supp. 607, 608 (M.D. of Ala.1982). Therefore, the statutory claims of the plaintiff class under 42 U.S.C. § 1437a are cognizable under 42 U.S.C. § 1983. Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980).

4. On the pendant state claim of the plaintiff class,' the defendants have breached the contractual duty owed to the plaintiff class, under the terms of the form lease to comply with the applicable regulations of HUD. The plaintiff class has suffered damages in the form of increased rents due to this breach of contract; and it is entitled to recover those damages from the defendants.

5. The Court finds it unnecessary to reach plaintiffs’ contentions that a private right of ’action is available under the Brooke Amendment to the Federal Housing Act of 1937, that they may sue as third-party beneficiaries of the annual contributions contracts between GGHA and HUD, and that their property has been taken without just compensation and due process in violation of the Fifth and Fourteenth Amendments to the United States Constitution.

DECREE

Based on the accompanying Memorandum Of Opinion, it is hereby ORDERED, ADJUDGED, DECLARED and DECREED as follows:

1. The defendants GREATER GADSDEN HOUSING AUTHORITY, RAY INGLEHART, MILDRED GILCHRIST, their officers, agents, servants, employees, and those persons in active concert or participation with them who receive actual notice of this order are hereby PERMANENTLY ENJOINED FROM:

(a) Failing or refusing to immediately adopt and implement utility allowances for tenants in units of public housing at rates not less than those specified in “Exhibit A”, appended hereto.

(b) Failing or refusing to alter or amend the utility allowances in the future in accordance with 24 C.F.R. § 865.477 (1983) or such subsequent regulation outlining standards for utility allowances as may be promulgated by the Secretary of Housing and Urban Development. These allowances shall be computed at least annually.

(c) Failing or refusing to otherwise comply with the regulations relating to the establishment of Tenant Allowances for Utilities as promulgated by the Secretary of Housing and Urban Development, presently codified at 24 C.F.R. § 865.470-865.-482 (1983).

2. The plaintiff class shall have and recover of defendants GREATER GADSDEN HOUSING AUTHORITY, RAY INGLEHART and MILDRED GILCHRIST, in their official capacities, as such damages as the Court may deem them to be entitled by separate order. A hearing on damages shall be held at the Federal Courthouse in Gadsden, Alabama, commencing at 9:00 A.M. on Friday, April 5, 1985.

3. The plaintiff class shall be entitled to a reasonable attorney’s fee, the amount of which shall be set by the Court in a separate order. A hearing on this issue shall commence upon the completion of the hearing on damages. By March 29, 1985, counsel for the class shall serve on defendants’ counsel and file with the Court a statement of their claim for fees and expenses, together with the date(s) on which service was rendered or costs incurred, a description of the services rendered or costs incurred, and the time required for the services rendered.

4. Plaintiff shall recover her costs herein.

EXHIBIT A

UTILITY ALLOWANCES

I. ALLOWANCES FOR TENANT-PURCHASED GAS

ONE BEDROOM $25.50/month

TWO BEDROOMS $29.00/month

THREE BEDROOMS $36.50/month

II. ALLOWANCES FOR GGHA-FURNISHED ELECTRICITY

Quarterly Allowance (KWH)

1 BR 2 BR 3 BR 4 BR 5 BR

799 1080 1448 1854 First Quarter (January-March) 1820

Second Quarter (April-June) 806 1097 1461 1865 1697

Third Quarter (July-September) 1207 1783 2066 2634 2550

Fourth Quarter (October-December) 837 1100 1428 1812 1825

III. ALLOWANCES FOR GGHA-FURNISHED GAS

Quarterly Allowance (CCF)

1 BR 2 BR 3 BR 4 BR 5 BR

First Quarter (January-March) 279 322 414 605 598

Second Quarter (April-June) 126 148 191 285 281

Third Quarter (July-September) 66 90 117 173 163

Fourth Quarter (October-December) 153 179 232 364 , 332

      . Congress has also stated as its national housing policy that "the general welfare and security of the Nation and the health and living standards of its people require housing production and related community development sufficient to remedy the serious housing shortage, the elimination of substandard and other inadequate housing through the clearance of slums and blighted areas, and the realization as soon as feasible of the goal of a decent home and a suitable living environment for every American family, thus contributing to the development and redevelopment of communities and to the advancement of the growth, wealth and security of the Nation. 42 U.S.C. § 1441.

      . The 25% limit was amended in 1981 so as to raise the rent limit to the highest of 30% of adjusted family income; 10% of total family income; and that portion of a family’s welfare assistance payment designated to meet the family’s housing costs. See 42 U.S.C. § 1437a(a) (West Supp.1984). For families admitted after August 1, 1982, the new rent limits are effective immediately. For families who were already tenants on August 1, 1982, the increase- is being effected at the rate of 1% per year. For these families, the rate now stands at 28%. See 24 C.F.R. § 860.404 (1983); 49 Fed.Reg. 24176, 21488 (May 21, 1984) (to be codified at 24 C.F.R. § 913.107).

      . Several definitions of rent occur in 24 C.F.R. § 860.403. The different definitions are designed to address the two methods by which public housing authorities (PHAs) may provide tenants with reasonable amounts of utilities.
      First, "rent", that is the rent that according to the Brooke Amendment cannot exceed 25%-30% of family income, is defined as "gross rent.” Id. at § 860.403(1). Second, “gross rent” is defined as "contract rent plus the PHAs estimate of the cost to the tenant of reasonable quantities of utilities determined in accordance with the PHAs’ schedule of allowances for such utilities, where such utilities are purchased by the tenant and not included in the contract rent.” Id. at § 860.403(i). "Last, ‘contract rent’ is defined as 'the rent charged a tenant for the use of the dwelling accommodation and equipment (such as ranges and refrigerators but not including furniture), services and reasonable amounts of utilities determined in accordance with the PHAs’ schedule of allowances for utilities supplied by the project.’" Id. at Section 860.403(a).
      Thus, contract rent is the amount the tenant actually pays to the PHA pursuant to the lease. According to the Brooke Amendment, this amount cannot exceed 25%-30% of the tenant’s income. The definition of contract rent guarantees that in exchange for this payment, the PHA is to provide tenants with reasonable amounts of utilities. Only if the tenants use exceeds this reasonable amount, i.e., exceeds the utility allowance, may the PHA charge the tenant for his/her utility use. On the other hand, if the PHA charges the tenant for reasonable amounts of usage, i.e., if the utility allowance is too low, the PHA is charging the tenant more than the Brooke Amendment permits.
      Some PHAs, however, require tenants to contract directly with the utility company. The definition of gross rent guarantees that the sum of the actual rent paid to the PHA (the contract rent) and the reasonable cost of utility usage charged the tenant by the utility company cannot exceed the Brooke Amendment levels. As a practical matter, PHAs determine 25%-30% of family income and then subtract from this figure the amount that the PHA has determined to be the reasonable cost of utility usage (the utility allowance).
      The difference is the amount the PHAs charge as rent. If the allowance is not sufficient to cover the amounts the tenant pays to the utility company for reasonable usage, then the tenant will pay contract rent to the PHA in excess of that permitted by the Brooke Amendment. If the tenant’s income is so low that 25%-30% of the tenants family income is smaller than the allowance, the PHA provides the tenant with the full allowance by reducing the rent to zero and paying the tenant the amount by which the allowance exceeded the rent. See HUD, Public Housing Occupancy Handbook, 7465.1 REV, Paragraph 3-4 (October 1978); Hud, Rent Adjustment Required by Section 213 of the Housing and Urban Development Act of 1969, Paragraph 12 (RHM 7465.3 and 7465.1).
      HUD has recently promulgated new regulations replacing those that now appear at 24 C.F.R. §§ 860.401 to .406. See 49 Fed.Reg. 21476 et seq. (May 21, 1984) (effective July 1, 1984). The new regulations also require PHAs to provide reasonable amounts of utilities to tenants. Id. at 21485-86 (to be codified at 24 C.F.R. § 913.102) (definitions of “tenant rent," "utility allowance" and "utility reimbursement”). The new regulations also explicitly require a PHA to reimburse a tenant for whom the PHA does not supply a utility in the amount by which the utility allowance exceeds the rent. Id. at 21485-86 and 21488 (to be codified at 24 C.F.R. §§ 913.102 and 913.108). See infra text accompanying note 4.

      . Effective March 28, 1984, HUD reorganized its regulatory scheme. See 49 Fed.Reg. 6712 et seq. (February 23, 1984). In this reorganization, 24 C.F.R. Part 865 was redesignated 24 C.F.R. Part 965. Id. at 6714. In this opinion reference will be made to the "865” designation rather than the new "965” designation.

       The increase in allowances on March 1, 1983 for all three apartment sizes occurred as a result of this Court’s preliminary injunction of March 4, 1983.

       The increase in allowances on March 1, Í983 for all three apartment sizes occurred as a result of this Court’s preliminary injunction of March 4, 1983.

       The increase in allowances on March 1, 1983 for all three apartment sizes occurred as a result of this Court’s preliminary injunction of March 4, 1983.

      . According to HUD’s Local Housing Authority Management Handbook, the allowance for utilities furnished by the public housing authority (PHA) should be computed at 125% of average usage. If more than 25% of the tenants are surcharged in any month, however, the allowance should be recomputed so that approximately 10% are surcharged. By agreement, the parties omitted the first step — computing the allowances at 125% of average usage — and computed the allowance such that 10% of the tenants would be surcharged after excluding instances of unusually high usage. The first step was omitted because it appeared to the parties that should the allowance be computed at 125% of average usage, more than 25% of the tenants would have been surcharged for most months. Defense counsel’s cooperation in computing these allowances did not constitute an admission of liability or waiver of defenses. His participation does, however, constitute his admission that the allowances were computed accurately in accordance with the standards contained in the HUD handbook for periods prior to January 29, 1981 and with the interim rule for computing utility allowances, 24 C.F.R. § 865.470 et seq., whose effective date was January 29, 1981, for periods on and after January 29, 1981.

      . Defendants point to HUD statements indicating HUD’s opinion that the LHA Handbook is non-mandatory. See e.g. 45 Fed.Reg. 59502 (September 9, 1980). The Court need not reach this issue since the number of tenants surcharged each month and the parties' determination, after excluding instances of unreasonable usage, that the allowances were set too low for most months demonstrate that the allowances contravened the Brooke Amendment and HUD implementing regulations by failing to meet the reasonable needs of its tenants.
      Moreover, even if the LHA Handbook were not intended to be mandatory when published in 1963, the intervening passage of the Brooke Amendment and HUD implementing regulations altered the status quo by explicitly requiring PHAs to provide tenants with utilities sufficient to meet their needs in exchange for a statutorily fixed rental payment. The LHA Handbook obviously contains HUD’s opinion of the allowance required to meet the reasonable needs of public housing tenants. This is confirmed by HUD’s adoption of the handbook standards, substantially unchanged, in the interim rule. The Court therefore adopts as its own HUD’s interpretation of what constitutes a reasonable utility allowance under the Brooke Amendment and HUD’s implementing regulations.

      . Defendants have not cited to this Court any authority for the proposition that bad faith is an element of any of plaintiffs’ causes of action, or that good faith is a defense available to defendants. In fact, a qualified, good faith, immunity defense is not available to a local government entity in a § 1983 action. See Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).