Gautreaux, Dorothy v. Chicago Housing , 475 F.3d 845 ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-3968
DOROTHY GAUTREAUX, ODELL JONES,
DOREATHA R. CRENCHAW, et al.,
Plaintiffs,
v.
CHICAGO HOUSING AUTHORITY and
TERRY PETERSON,
Defendants-Appellees,
and
DANIEL E. LEVIN and THE HABITAT
COMPANY LLC,
Receiver-Appellees.
APPEAL OF:
CENTRAL ADVISORY COUNCIL
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 66 C 1459—Marvin E. Aspen, Judge.
____________
ARGUED JUNE 9, 2006—DECIDED JANUARY 19, 2007
____________
Before RIPPLE, MANION and SYKES, Circuit Judges.
2 No. 05-3968
RIPPLE, Circuit Judge. Central Advisory Council (“CAC”),
not a party to this action in the district court, appeals the
district court’s denial of its motion to amend a 1996
order entered by the district court as part of its ongoing
remedial relief in this class action brought against the
Chicago Housing Authority for de jure segregation in
public housing. Because CAC is not a “party” for purposes
of appeal, we dismiss this appeal.
I
BACKGROUND
A. History of the Gautreaux Action
In 1966, a class of individuals who either were living
in Chicago public housing or on the wait list for public
housing (“Gautreaux plaintiffs”) brought this action
against the Chicago Housing Authority (“CHA”). They
alleged that CHA was practicing de jure housing segrega-
tion. See generally Gautreaux v. Chicago Hous. Auth., 296 F.
Supp. 907 (N.D. Ill. 1969). In 1969, the district court
granted summary judgment to the Gautreaux plaintiffs,
finding that CHA had selected housing sites using race
as a criteria in violation of the Fourteenth Amendment.
Id. at 913-14.
In the remedial phase of the proceedings, the district
court entered an order that required the construction of
three housing units in an area where the population is
less than 30% non-white (“General Public Housing Area”)
for every unit built in an area where the population is
greater than 30% non-white (“Limited Public Housing
Area”). See Gautreaux v. Chicago Hous. Auth., 304 F. Supp.
736, 737-38 (N.D. Ill. 1969). In the decades following, this
No. 05-3968 3
order has been modified several times to reflect changes
in neighborhoods, circumstances and community housing
needs.
In 1987, the district court appointed Daniel E. Levin as
the Receiver (“Receiver”) for the development of all new,
non-elderly housing by the CHA. The Receiver was
given broad power to develop and administer the new
housing developments.
B. The Central Advisory Council
CAC is an organization representing tenants currently
residing in CHA public housing. Tenants in each public
housing development, including the Cabrini Green Homes
and Robert Taylor Homes, have formed resident councils
whose memberships are limited to those persons resid-
ing in that housing development, as provided in the
applicable United States Department of Housing and
Urban Development (“HUD”) regulations. See 24 C.F.R.
§§ 964.115, 964.125. Each of these councils elects a presi-
dent. CAC is a jurisdiction-wide council comprised of the
presidents of each of these tenants’ councils. See 24 C.F.R.
§ 964.105 (setting forth the composition and role of the
jurisdiction-wide resident council). CAC is comprised of
approximately twenty-three council presidents; this
number includes three presidents of the resident coun-
cils of CHA senior public housing developments for
elderly residents.
In 2000, a “Relocation Rights Contract” was negotiated
between CAC and CHA. This agreement guaranteed to
all CHA leaseholders residing in CHA properties as of
October 1, 1999, the right to return to newly constructed or
4 No. 05-3968
rehabilitated housing as old housing was demolished. See
R.85, Ex.B.
On June 27, 2000, the district court entered an order that
stated that no revitalizing order could be entered or
modified that would restrict or limit the opportunity of
displaced CHA residents to return to a CHA property
without CAC first being afforded an opportunity to pre-
sent evidence and to be heard on the matter. A revitaliz-
ing order is a limited waiver of the 1969 injunction; such
an order allows the construction of new housing in a
Limited Public Housing Area when “a responsible fore-
cast of economic integration, with a longer term possi-
bility of racial desegregation, could be made” with respect
to that area. R.64 at 2.
C. Background of the Current Action
The dispute before us today involves a development
called Lake Park Crescent, which is located in the North
Kenwood-Oakland area on the south side of Chicago. Lake
Park Crescent was built by a private developer and over-
seen by the Receiver. The North Kenwood-Oakland
neighborhood formerly had contained high-density,
dilapidated public housing; CHA demolished the high-rise
buildings in the neighborhood and sought adequate
housing alternatives.
On June 3, 1996, the district court issued a “revitalizing
order” for the North Kenwood-Oakland neighborhood.
This order stated that, in order to prevent a re-concentra-
tion of public housing, any new public housing in the
North Kenwood-Oakland neighborhood must be economi-
cally integrated; one-half of the units must be reserved
for low-income families earning 50-80% of the area
No. 05-3968 5
median income (“AMI”), while the other half could be
occupied by very low-income families earning 0-50% of
the AMI. See id. at 3.
The first phase of Lake Park Crescent was completed
and had sixty public housing units: thirty reserved for
families earning 50-80% of AMI, and thirty reserved for
families earning 0-50% of AMI. The developer had no
difficulty finding families to occupy the 0-50% units;
however, it did encounter difficulty identifying eligible
existing public housing tenants to occupy the 50-80% units.
Consequently, some of those units remained vacant. The
developer contacted all families on CHA’s waiting list
who satisfied the existing income limits; in August 2004,
an open house was held for CHA families at or above
50% AMI; in February 2005, CHA began an outreach ef-
fort to wait list families in the surrounding communities;
and, in March 2005, CHA began to contact the entire
wait list. As of May 20, 2005, nine of the thirty units
(requiring 50-80% AMI) were occupied, and eleven other
units were assigned to individuals whose applications
were being processed. R.110 at 10-11. Nevertheless, there
was still concern about filling the remaining 50-80% AMI
units.
D. District Court Proceedings
On May 3, 2005, CAC filed a motion to amend the 1996
revitalizing order to allow working public housing
families to occupy the units reserved for those who
make 50-80% of the AMI, even if their income was not as
high as 50% of the AMI. R.85 at 2. In that motion, CAC
expressed a concern that the developer was planning a site-
based wait list for Lake Park Crescent that would invite
6 No. 05-3968
members of the general community to live in Lake Park
Crescent. Id. CAC contended that such a list would
bypass the thousands of current and past CHA residents
who are currently on wait lists awaiting housing reloca-
tion. Id.
The Receiver opposed CAC’s motion and offered three
other options to the district court. The first option was to
continue efforts to locate qualified tenants (earning 50-80%
AMI) from the CHA wait list; the second option was to
locate qualified tenants (earning 50-80% AMI) from the
pool of existing CHA tenants who already had made
permanent housing relocation choices; the third option
was to create a site-based waiting list drawing from
members of the broader (non-CHA) community to fill any
units that would remain vacant due to insufficient numbers
of CHA wait listed families meeting the income criteria.
The Gautreaux plaintiffs filed a brief stating that there
was merit to the contentions of both CAC and the Receiver.
CHA also filed a brief, stating that it “supports and is
willing to implement” either the site-based wait list
strategy proposed by the developer or CAC’s proposal
to relax the income requirements and that “one or the
other plan should be adopted promptly.” R.109 at 5.
On July 7, 2005, the district court held a hearing. A
number of parties and interested persons testified, in-
cluding representatives of CAC, CHA, HUD, the
Gautreaux plaintiffs and the Receiver and North Kenwood-
Oakland community representatives. CAC was con-
cerned that a site-based wait list that drew in residents
from outside CHA housing would take away units owed
to CHA leaseholders under the 2000 Relocation Rights
Contract ever since the CHA began demolishment of their
high-rise homes. R.187 at 8.
No. 05-3968 7
The Receiver contended that CAC’s motion would
threaten his ongoing efforts to generate public support
for replacement public housing because he would be
breaking a promise he had made to the North Kenwood
neighborhood. He had said that the new housing would
be mixed-income housing. Id. at 16-19. The Receiver
submitted that, if the court allowed his promises to the
neighborhood to be breached, it would diminish his
credibility and hamper his efforts to get neighborhood
support for public housing for future developments.
Alderman Toni Preckwinkle, who represents the North
Kenwood-Oakland neighborhood, and Shirley Newsome,
chair of the North Kenwood-Oakland Conservation
Community Council, also testified and expressed their
disapproval of CAC’s plan. Both asserted that the com-
munity had been promised by the Receiver that any
new housing would be mixed income so as not to repeat
the concentrations of poverty caused by the previous, high-
rise public housing.
The Gautreaux plaintiffs admitted that the decision
was a “tough one.” They did not want to take a position
contrary to the community’s wishes; nevertheless, they
were concerned that, although many of the Gautreaux
plaintiffs still were waiting for housing, the units in
question might be given to families who were not class
members and who were not on a CHA wait list. Id. at 12-16.
Despite this reservation, CHA again informed the district
court that it would implement either the CAC or the
site wait list plan. It also informed the court that, as of
the morning of July 7, fifteen of the thirty units reserved
for 50-80% AMI were still unfilled. Id. at 9.
A HUD representative, Janet Elson, testified that she
appreciated the positions of both CAC and the Receiver,
8 No. 05-3968
but that “the notion of a campaign to bring in people
who are not on the current CHA waiting list is prob-
lematic to HUD.” Id. at 36. Elson testified that there may
be a compromise position of lowering the AMI to 40%,
rather than eliminating it, because the 40% AMI families
are still “working,” “quality” families. Id. at 37.
The district court denied CAC’s motion to amend the
June 3, 1996 order. The court briefly summarized the
positions of the interested parties, and stated that it “[did]
not see an extraordinary change in circumstances at this
time which suggests we must modify our June 3, 1996
order by removing the 50-80% [AMI] provision.” R.136
at 2.
On July 14, 2005, the district court also issued an order
modifying various earlier orders to “permit the creation
of an on-site waiting list at the Lake Park Crescent [devel-
opment] . . . for households earning between 50% to 60%
of the area median income.” R.135-3 at 1. The waiting list
was to be comprised of tenants solicited from the general
public, households who are currently on CHA wait lists
for public housing and households currently in public
housing. Id. at 1-2. The court further ordered that priority
should be given to any person on the wait list who previ-
ously was listed on a CHA general wait list or who is
currently living in CHA housing. Id. at 2. The court
also ordered that CHA continue to mail notice of the
availability of the units to each individual on the CHA
wait lists. Id.
CAC then filed a motion requesting the district court
to clarify whether its July 14, 2005 order applied only to
the already-completed Phase I of Lake Park Crescent or
whether it applied to all public housing that will be built
under the North Kenwood 1996 revitalization order. See
No. 05-3968 9
R.137 at 4. The motion also requested clarification as to
whether the July 14, 2005 order waived certain HUD
regulations that CAC argued were violated by CHA’s
income requirements and by opening the wait list to the
general public. Id. at 3. The court denied CAC’s motion
on September 9, 2005 without any stated reason. See R.168.
CAC then filed this appeal, arguing that the district
court abused its discretion when it denied CAC’s motion
to modify the 1996 revitalization order.
II
DISCUSSION
Before we begin our analysis of the parties’ claims, it is
important to note the unique context in which this case
reaches us. CAC is the appellant in this case. Although
there is substantial overlap between the individuals
represented by the CAC and by the Gautreaux class
representatives, the membership of the two groups is not
the same. CAC represents all tenants currently in CHA
public housing, which includes the elderly tenants who
live in CHA senior housing developments. The Gautreaux
plaintiffs include those who currently live in CHA public
housing developments, but not including residents of
CHA senior housing. The Gautreaux plaintiffs also repre-
sent individuals currently on the CHA wait list, which is
a group of individuals that is not represented by CAC.
Both the Receiver and CHA filed briefs as appellees
in this case. The Gautreaux plaintiffs did not file a brief
or participate in the appeal.
The Receiver and CHA submit that CAC has no “stand-
ing” to appeal the district court’s denial of its motion to
10 No. 05-3968
modify the 1996 Revitalization order.1 CAC does not
contend that it was a party to the underlying litigation;
rather, it insists, both in its appellate briefing and at oral
argument, that it is a nonparty to the litigation. It did not
formally intervene in the district court proceedings; the
district court considered CAC’s motion without any sort
of formal intervention.2
It is well-established that, as a general rule, a nonparty
cannot challenge on appeal the rulings of a district court.
See, e.g., Marino v. Ortiz, 484 U.S. 301, 304 (1988) (per
curiam); B.H. ex rel. Pierce v. Murphy, 984 F.2d 196, 199 (7th
1
As discussed below, the right of a nonparty to appeal the
decision of the district court “does not implicate the jurisdiction
of the courts under Article III of the Constitution,” thus it is
not an issue of “standing.” Devlin v. Scardelletti, 536 U.S. 1, 6
(2001). The Supreme Court has noted that federal courts “have
been less than meticulous” in their use of the term “jurisdiction.”
Kontrick v. Ryan, 540 U.S. 443, 454 (2004). The Court noted that
“[c]larity would be facilitated if courts and litigants used the
label ‘jurisdiction’ . . . only for prescriptions delineating the
classes of cases (subject matter jurisdiction) and the persons
(personal jurisdiction) falling within a court’s adjudicatory
authority.” Id. at 455. In the same vein, we shall refrain in this
opinion from using the jurisdictional term of art, “standing,” to
describe the right of a nonparty to seek appellate review of a
district court’s decision.
2
We recognize that the district court did issue an order in 2000
allowing CAC the right to “be heard” and “present evidence”
before any revitalizing order was entered or modified. Order
of June 27, 2000. However, this order did not formally allow
CAC to intervene, nor did it establish CAC as a “party” to the
litigation. Therefore, any right CAC has to appeal does not
stem from this order.
No. 05-3968 11
Cir. 1993). CAC relies on a recognized exception to this
rule that allows unnamed class members to participate in
an appeal of a class action settlement without formal
intervention. See Devlin v. Scardelletti, 536 U.S. 1, 14 (2002);
In re Bridgestone/Firestone, Inc., Tires Prod. Liab. Litig., 333
F.3d 763, 768 (7th Cir. 2003). In Devlin, the Supreme Court
announced that “nonnamed class members . . . who have
objected in a timely manner to approval of the settle-
ment at the fairness hearing have the power to bring
an appeal without first intervening.” 536 U.S. at 14. A
nonnamed member of a class action lawsuit, Devlin,
objected to a proposed settlement; the district court ap-
proved the settlement over the objections it heard, includ-
ing those advanced by Devlin. Id. at 5. Devlin then ap-
pealed, challenging the fairness of the settlement. Id. at 6.
The Supreme Court considered whether Devlin, as a
nonnamed class member, could appeal the settlement. The
Court first stated that the question was not one of Article
III standing because Devlin had an interest in the settle-
ment sufficient to meet the “case or controversy” test. Id. at
6-7. It further stated that appeals by nonnamed class
members do not raise prudential standing concerns. See id.
Instead, the Court classified the question as “whether
[Devlin] should be considered a ‘party’ for purposes of
appealing the approval of the settlement.” Id. at 7; see also
Fed. R. App. P. 3(c)(1)(A) (stating that, on appeal, the
notice of appeal must “specify the party or parties taking
the appeal”).
The Supreme Court held that the nonnamed class
member was a “party” for purposes of appeal, allowing
him to appeal the “aspect of the District Court’s order
that affects him.” Devlin, 536 U.S. at 9. The Court stated
that such an appeal “cannot be effectively accomplished
12 No. 05-3968
through the named class representative,” because, once
the class representative had approved the settlement,
its interests had diverged from those class members
who had objected to the settlement. Id. The Court noted
that “[w]hat is most important to this case is that
nonnamed class members are parties to the proceedings
in the sense of being bound by the settlement.” Id. at 10.
We must determine whether CAC is a “party” for
purposes of appeal. We do not believe that the Supreme
Court’s holding in Devlin supports our permitting CAC
to appeal in this case. The present action is different from
Devlin in several important ways. First, CAC cannot be
charactered as an “unnamed” class member. Assuming
that CAC may represent the interests of a number of
unnamed class members, it also represents individuals
who are not class members and who are not affected by
the remedial orders—the elderly tenants in senior citizen
CHA housing. Additionally, unlike the situation in Devlin,
there is no indication here that the Gautreaux plaintiffs,
who represent the class, have interests antagonistic to
those of CAC and, therefore, are impaired from represent-
ing effectively CAC’s membership. Cf. Devlin, 536 U.S. at 9.
The Gautreaux plaintiffs have every incentive to ensure
that those currently in CHA housing, as well as those on
CHA wait lists, are given priority in filling any public
housing vacancies.3
Moreover, in Devlin, the Supreme Court stated that
“[w]hat is most important to this case is that nonnamed
class members are parties to the proceedings in the sense of
3
The Gautreaux plaintiffs actually testified before the district
court in support of CAC’s position. See R.187 at 12-16.
No. 05-3968 13
being bound by the settlement.” 536 U.S. at 10. Devlin
therefore reflects a concern that, without an opportunity
to appeal, unnamed class members will have no other
recourse than to accept the terms of a settlement and to
forfeit further pursuit of their claim. Indeed, some cir-
cuits have noted a hesitation to extend Devlin beyond
the procedural context of a class action settlement agree-
ment to which class members do not have the opportunity
to opt out. See P.A.C.E. v. Sch. Dist. of Kansas City, 312
F.3d 341, 342-43 (8th Cir. 2002) (holding that Devlin was
inapplicable to a situation where class members wanted
to “challenge individual litigation decisions by class
counsel during the pendency of the suit”); In re Gen. Am.
Life Ins. Co. Sales Practices Litig., 302 F.3d 799, 800 (8th Cir.
2002) (noting, in dicta, that there is “considerable merit” to
the contention that Devlin does not apply to class actions
certified under Federal Rule of Civil Procedure 23(b)(3),
from which class members may opt out). The Eleventh
Circuit has stressed that Devlin “allow[s] appeals by
parties who are actually bound by a judgment, not parties
who merely could have been bound by a judgment.” AAL
High Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d
1305, 1310 (11th Cir. 2004) (emphasis in original). Because
CAC is not “bound” by a final judgment, it does not
qualify as a party to the litigation for purposes of appeal.
The task of a district court faced with the task of ad-
ministering a decree for equitable relief in an institutional
case such as this one is a difficult one. The federal con-
stitutional or statutory violation must be eliminated, but,
at the same time, the district court must be careful to
limit its intrusion into local matters to those circum-
stances in which federal law is offended. Indeed, this
type of institutional remedial litigation “differs in almost
14 No. 05-3968
every relevant characteristic from relief in [a] traditional
model of adjudication” because orders like the 1969 order
“prolong[] and deepen[], rather than terminate[], the
court’s involvement with the dispute.” Abram Chayes, The
Role of the Judge in Public Law Litigation, 89 Harv. L. Rev.
1281, 1298 (1976); see also id. at 1301-02 (noting that, in “an
ongoing remedial regime,” the district court is involved
in “actively shaping and monitoring the decree, mediat-
ing between the parties, [and] developing [its] own
sources of expertise and information,” with the district
court becoming a “policy planner and manager”). In this
case, the district court has been monitoring the parties’
actions for nearly forty years. In order to monitor effec-
tively the CHA’s selection of housing development sites,
the district court had to be able to modify its earlier orders
as circumstances, especially city demographics, change.
This task required that the court gather and assess infor-
mation and tailor its orders to maintain the delicate
balance between legitimate federal judicial authority and
the right of local authorities to fulfill their vital responsi-
bilities.4 In accomplishing this task, it is important that the
district court carefully examine and weigh the impact on
the legitimate interests on all affected groups. See Barnett
v. Daley, 32 F.3d 1196, 1203 (7th Cir. 1994). Therefore, it
is quite understandable that the district court considered
4
See, e.g., New York State Ass’n for Retarded Children, Inc. v. Carey,
706 F.2d 956, 969 (2d Cir. 1983) (stating that “in institutional
reform litigation . . . judicially-imposed remedies must be
open to adaptation when unforseen obstacles present them-
selves, to improvement when a better understanding of the
problem emerges, and to accommodation of a wider constella-
tion of interests than is represented in the adversarial setting
of the courtroom”).
No. 05-3968 15
the concerns of organizations like CAC regarding the
Lake Park Crescent development.
Here, the district court was trying to determine a feasi-
ble solution to the difficulty that the Receiver was facing
in filling certain units at Lake Park Crescent. Unfortu-
nately, permitting CAC to participate in the proceedings
by way of a formal motion led to misapprehension on the
part of that nonparty that it could appeal the district
court’s decision. CAC suggested one solution to the dis-
trict court, which the court considered and rejected
after soliciting testimony from others interested in the
development of public housing in the North Kenwood-
Oakland Neighborhood. However, listening to an organiza-
tion’s views in the search for a practical, workable solu-
tion does not vest that organization with the right to
appeal the district court’s ultimate decision on the course
that the parties must take.
Conclusion
For the foregoing reasons, the appeal is dismissed.
APPEAL DISMISSED
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-19-07