Boykin v. Alabama Brief for the NAACP Legal Defense, and Educational Fund and the National Office for the Rights of the Indigent, as Amicus Curiae

    IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF NEW YORK

X
ARTHUR, et al.,

Plaintiffs,
HERNDON,

Plaintiff-Intervenor,

CIVIL ACTION NO.
79 Civ. 3096 (ERN)

V. COMMENTS OF THE UNITED
STATES AS AMICUS CURIAE ON

STARRETT CITY ASSOCIATES, et al., THE PROPOSED CONSENT DECREE
Defendants.

X

On May 2, 1984 the parties in the above-captioned case 
presented to the Court a proposed settlement of this class action.
Or. May 7, 1984 the Court scheduled a hearing to be held on July 17,
1984 to assist the Court in deciding whether to approve the settle­
ment, and provided class members until June 28, 1984 to file with
the Court written objections to the terms of the settlement. The 
United States has requested leave to file, as amicus curiae, these 
comments, which are intended to assist the Court in its considera­
tion of the proposed settlement.

In this filing we inform the Court of the Title VIII law­
suit, alleging unlawful discrimination in the tenant selection 
practices at Starrett City, which we are filing simultaneously 
with these comments. We also suggest that the Court strike para-



graph 31 from the proposed settlement. This paragraph could be 
interpreted as an advisory opinion directed toward the practices 
which we are challenging as illegal in our lawsuit. The strik­
ing of paragraph 31 is in the public interest and will not 
affect in any way the obligations of the parties to the settle­
ment.

STATEMENT
The plaintiffs filed their class action complaint in 

this case on December 5, 1979. The plaintiffs challenged as 
discriminatory the use of racial quotas to limit the numbers of 
minority tenants at the defendants' apartment complex. Named as 
defendants were Starrett City Associates, Starrett City, Inc., and 
Delmar Management Company, (hereafter Starrett defendants) and the 
Commissioner, State of New York Division of Housing and Community 
Renewal (DHCR). Plaintiffs alleged, among other things, that the

_̂/ On June 22, 1983 the Court certified the class as "all blacks 
who have submitted apartment applications at Starrett City and 
were informed that they were financially eligible but have allegedly 
been maintained on the waiting lists due to the operation of 
Starrett City's racial quota system." Arthur v. Starrett City 
Associates, 98 F.R.D. 500, 505 (E.D.N.Y. 1983). Paragraph 7 of the 
proposed Stipulation of Settlement and Consent Decree closes the 
class as of May 2, 1984, the date the Stipulation of Settlement was 
submitted to the Court for approval. As we understand it, blacks 
who either apply or are informed they are financially eligible, or 
are placed on waiting lists due to the quota system, after May 2, 
1984, are not intended to be bound by the terms of the settlement.

2



Starrett defendants limited the number of apartments available to 
blacks in each building and on each floor of each building; that 
those defendants discouraged blacks from applying for apartments 
at Starrett City; that eligible black applicants were informed 
that in order to fulfill the goals of an affirmative fair housing 
marketing plan, such applicants were placed on a waiting list; 
and that black applicants were often victims of misstatements 
and incorrect factual analyses of application data. The relief 
sought by the plaintiffs included a declaration that the establish­
ment and implementation of racial quotas at Starrett City violated 
federal and state law and an injunction permanently enjoining the 
defendants from implementing racial quotas at Starrett City. The 
plaintiffs also requested that the Court order the defendants to 
develop a non-discriminatory tenant selection plan at Starrett City 
and to take appropriate steps to remedy the effects of past dis­
crimination. Substantial compensatory and punitive damages were 
also sought.

On May 2, 1984, the parties submitted for the Court's con­
sideration a proposed Stipulation of Settlement and Consent Decree. 
Broadly stated, the proposed settlement requires Starrett City to 
make available to blacks and Hispanics over the next five years 
an additional 175 apartments. Additionally, "the Commissioner and

3



the DHCR will undertake an enforcement program to eliminate unlaw­
ful discrimination, to promote housing opportunities for minori­
ties, and to promote integration in covered DHCR projects" (II 42). 
The program contemplates an initial effort by the Commissioner to 
obtain voluntary open access programs at DHCR covered projects.
If such voluntary programs are not adopted, "DHCR will conduct an 
investigation to determine whether the covered DHCR project has 
impermissibly excluded or discriminated against minorities" (II 42 
(d)). The voluntary plans submitted by covered projects and the 
plans submitted by projects where discrimination is found are to 
provide an opportunity for the plaintiff class members to have 
certain priorities in selection for available apartments in the 
future. The proposed settlement does not provide damages to class 
members, require Starrett City to develop a non-discriminatory 
rental plan, or enjoin the Starrett defendants' use of racial 
quotas to limit the numbers of minority tenants at Starrett 
City. V

*_/ In fact, while they are not explicit on this point, para­
graphs 17(b) and 31 of the parties' proposal suggest that the 
practices complained of by the plaintiffs will continue at 
Starrett City.

4



DISCUSSION
In these comments, we do not address the question of whether 

the proposed settlement is fair, reasonable or adequate. The 
plaintiff class is well-defined and limited, and the Decree does 
not purport to bind any persons other than the individual plaintiffs 
or class members in this case. jV The individual class members and 
their representatives are the appropriate parties to inform the 
Court whether the Decree represents a reasonable compromise of their 
claims and is otherwise adequate. **/ Similarly, the State defendant 
and Starrett City defendants are in the best position to inform the 
Court of the adequacy of the settlement from their perspectives.

Likewise, these comments do not address the provisions of 
the Consent Decree concerning actions to be taken by the

*_/ The doctrine of collateral estoppel permits a party to plead 
a judgment in a prior case as a conclusive resolution of issues 
presented in a later action. However, such an earlier judgment is 
only binding against those who were parties in the earlier action, 
and only if, in the earlier action, the issue was actually con­
tested, actually determined, and necessary to the prior judgment, 
and if the party had a full and fair opportunity to litigate the 
issue. See IB Moore's Federal Practice % 0.411[1]; Cf., Cooper
v. Federal Reserve Bank of Richmond, _____ U.S. _____ (No. 83-185,
June 25, 1984).
**/ We do note, however, that the proposed Stipulation of 
Settlement and Consent Decree does not contain any provision which 
permits class members to opt out of the settlement, nor was such a 
provision included in the notice to class members. see Plummer v. 
Chemical Bank, 668 F.2d 654, 657 (2nd Cir. 1982); Cotton v. Hinton, 
559 F. 2d 1326 , 1333-1334 ( 5th Cir. 1977).

5



Commissioner and DHCR. The lawsuit which we have filed simultane­
ously with these comments does not involve the State defendant in 
this case. To the extent the State defendant has made commitments 
under the Decree, the commitments are too indefinite and contingent 
to evaluate at this time. Nor can it be determined with any degree 
of accuracy whether action to be taken by the State pursuant to 
those commitments might raise serious legal questions.V The 
fairness and adequacy of those commitments as a settlement of 
plaintiffs' claims are again issues more appropriately addressed 
by the parties and class members.

These comments are thus narrowly directed to a single 
paragraph —  paragraph 31 —  of the Decree. That paragraph 
states, in pertinent part, "The Starrett defendants may continue 
to maintain racial integration through controlled tenant 
selection on the basis of race...." Read out of context, this 
paragraph could be interpreted as giving court approval to 
the Starrett defendants' current practices of tenant selection, 
which were challenged as unlawful in this case and which we have 
challenged as unlawful under Title VIII in our pending suit. Read

*/ There is a potential for the adoption of open access programs 
which might unlawfully infringe upon the rights of third parties, 
in order to avoid such a result, we suggest that the Court, should 
it determine to approve the Decree, note in its opinion that any 
open access programs adopted pursuant to the Decree —  v/hether 
voluntarily or imposed by the Commissioner —  must be consistent 
with federal fair housing laws.

6



in context, however, the paragraph is clearly either an advisory 
opinion or meaningless surplusage that does not affect any 
rights or obligations of the parties and, thus, can and should 
be stricken from the Decree. Alternatively, should the Court 
decide to sign the Decree as submitted, the Court should issue an 
opinion that clarifies the meaning of paragraph 31 so that it will 
not spawn any misunderstanding for the public or in our pending 
litigation.

A . Paragraph 31 is Either Meaningless Sur­
plusage or an Improper Advisory Opinion.

Although founded on the agreement of the parties, a con­
sent decree is nonetheless a judgment, enforceable by the full 
panoply of judicial sanctions, including citation for contempt, jV 
if it is violated. United States v. City of Miami, 664 F.2d 435,

*_/ While the parties' proposal is styled as a consent decree it 
is not clear whether the consent is directed toward dismissal of 
the action, or whether continuing Court jurisdiction is intended 
by the parties. The Court may wish to inquire what role, if any, 
the parties intend it to play in monitoring future events. We 
note that the parties agree to discontinue the action (page 1) and 
the plaintiffs withdraw with prejudice all claims (11 17(a) and 
67) -- thus suggesting dismissal. Additionally, there is no pro­
vision that the Court retain jurisdiction to enter such orders as 
may be necessary. However, other provisions suggest the possibil­
ity of future judicial action in some court. (1111 15, 44(c), 54, 
59(a), 62, 67) The only paragraph that refers to this Court with 
reference to possible future judicial action is II 68 regarding 
attorneys' fees.

7



, c

439-40 (5th Cir. 1981). A federal court, therefore, is bound to 
examine carefully a consent decree proposed by the parties "to 
ascertain not only that it is a fair settlement but also that 
it does not put the court's sanction on and power behind a decree 
that violates Constitution, statute or jurisprudence." I_d. at 
441; see United States v. City of Alexandria, 614 F.2d 1358,
1362 (5th Cir. 1980) (terms of decree cannot be "unreasonable, 
illegal, unconstitutional, or against public policy"); Kirkland 
v. New York State Department of Correctional Services, 711 F.2d 
1117, 1129 (2nd Cir. 1983) (terms of decree cannot be "unreason­
able, unlawful, or against public policy"); Grunin v. International 
House of Pancakes, 513 F.2d 114, 123 (8th Cir. 1975) cert. denied, 
423 U.S. 864 (1975) (terms must be fair, reasonable, and adequate); 
Armstrong v. Board of School Directors, 616 F.2d 305, 319 (7th Cir. 
1980) ("[I]mplicit in the class action settlement standard is a 
requirement that no settlement be approved which either initiates 
or authorizes the continuation of clearly illegal conduct"). 
Additionally, when the terms of the settlement include race con­
scious remedies which affect third parties, the court must insure 
that such remedies are neither unreasonable nor unlawful. Kirkland 
v. New York State Department of Correctional Services, supra at 
1129; United States v. City of Miami, supra at 441.

8



In performing this task, the court is required to make 
findings and conclusions with respect to controverted settlements 
to permit appropriate appellate review, and "those findings and 
conclusions should not be based simply on the arguments and recom­
mendations of counsel." *_/ Plummer v. Chemical Bank, 668 F.2d 
654, 659 (2nd Cir. 1982). Such determinations must be based "on 
the facts of record, whether established by evidence, affidavit, 
or stipulation." United States v. City of Miami, supra at 441.

Moreover, in reviewing settlements, courts should not try 
the case -- that is, reach ultimate conclusions of the issues of 
fact and law which underlie the merits of the dispute. Grunin v. 
International House of Pancakes, supra at 123-124; Armstrong v. 
Board of School Directors, supra at 314. The parties to the pro­
posed Stipulation of Settlement and Consent Decree, in fact, 
expressly provide that the Court is not deciding the underlying

_̂/ Paragraph 18 of the proposed Stipulation of Settlement and 
Consent Decree provides that "[t]he Court has made no findings of 
fact except those set forth below in the "Findings of Fact" section. 
While it is not clear why the parties believe each finding is 
necessary to support the decree or why additional findings would 
be inappropriate, that decision is not theirs to make. We suggest 
that the Court consider the proposed findings as stipulations of 
the parties and treat them accordingly.

9



issue in the case and leave open the question of the legality of
Starrett's practices. Paragraph 14 provides:

The Court has made no findings of violation 
of law or erf the legality of the practices 
complained of. No party, by entering into 
this settlement, admits or is deemed to 
admit any violation of law or the legality 
of the practices complained of at Starrett 
City (emphasis added).

Indeed, since all claims in the case will be withdrawn with preju­
dice (IIII 17(a), 63), there could be nothing left for the Court to 
decide. Yet, contrary to the assertion in paragraph 14, paragraph 
31 could be interpreted as placing the Court's stamp of approval 
on a practice which was the underlying issue in the case. */ The 
paragraph provides:

31. The Starrett defendants may continue to 
maintain racial integration through controlled 
tenant selection on the basis of race so long 
as they comply with and carry out their obli­
gations under other paragraphs of this Part 
and of Part B. All parties agree that the 
ultimate goal at Starrett City is maintenance 
of an integrated community without resort to 
controlled tenanting. **/

*_/ Paragraph 17(b) contains similar language to paragraph 31 but 
in our view merely reflects the parties' agreement and does not 
necessarily place judicial approval on the practice. In contrast, 
paragraph 31 is described as an operative provision.
**/ Part B of the settlement requires Starrett to pay the costs 
of the class notices.

10



If paragraph 31 were interpreted as giving court approval to
the Starrett defendants' tenant selection practices, this Court could 
not, consistent with the above authorities, enter the proposed Decree. 
First, as indicated by the lawsuit filed simultaneously with these 
comments, we believe that the Starrett defendants' tenant selection 
practices are illegal; *_/ thus, the Court cannot properly authorize 
the continuation of those practices. Kirkland, supra. Second, not­
withstanding any ultimate determination of the legality of the Starrett 
defendants' tenant selection practices, the illegality of those 
practices is the sole basis for plaintiffs' suit. The parties have 
provided the Court no factual basis on which to determine the legality 
of those practices. Since they have settled their suit without 
enjoining those practices, the legality of the practices is no longer 
an issue between them. Thus, any provision of the Decree which pur­
ports to declare the legality of the practices cannot properly be a

*_/ The question of the legality of Starrett City's tenant selec­
tion practices is not now before this Court and, for the reasons 
discussed infra (pp. 11-14), it would be improper for the Court to 
decide that question in this proceeding. As we expect to develop 
fully in our pending lawsuit, Starrett City's practices include the 
use of a racially discriminatory quota system, designed to limit the 
numbers of minority tenants. The racial quota is used because white 
tenants will, according to the Starrett defendants, move from and 
refuse to rent units at Starrett City if the quota is exceeded.
This practice denies housing opportunities to minorities in violation 
of the Fair Housing Act, 42 U.S.C. §3604. Such a denial of rights 
to minorities cannot be justified by a purported need to give effect 
to the racial prejudices of others. See Palmore v. Sidoti, U.S.
____, 52 U.S.L.W. 4497, 4498 (April 25, 1984).

11



declaratory judgment _̂/ and thus would be an unauthorized advisory 
opinion.

This situation is very similar to that in Larson v. General 
Motors Corp., 134 F.2d 450 (2d Cir. 1943) cert. denied 319 U.S.
762 (1943). There, after the plaintiffs brought a patent infringe­
ment action, the defendant counterclaimed for a declaration that 
the plaintiffs' patent was invalid. Before trial, the plaintiffs 
consented to entry of judgment against them on the merits of their 
infringement claim. The trial court went on to try the defendant's 
counterclaim and entered a declaratory judgment that the patent 
was invalid. The Second Circuit reversed, holding that the dis­
missal of the plaintiffs' infringement claim had put an end to the 
present controversy between the parties, thus rendering the entry of 
a declaratory judgment improper.

*_/ Paragraph 31 does not meet the requirements for the issuance 
of a declaratory judgment. Such a judgment may be granted only in 
"a case of actual controversy," 28 U.S.C. §2201, U.S. Const, art. 
Ill, §2. The controversy must be of "sufficient immediacy and 
reality," Maryland Casualty Co. v. Pacific Coal and Oil Co., 312 
U.S. 270, 273 (1941); a decl aratory judgment may not be granted 
upon a hypothetical set of facts, "the effect of which .in concrete 
situations, not yet developed, cannot now be definitely perceived." 
Electric Bond and Share Co. v. Securities and Exchange Commission, 
303 U.S. 419, 443 (1938). Where a party seeks a declaratory judg­
ment to bar some action by an opposing party, there must be an 
actual threat that the opposing party intends to take such action, 
Preiser v. Newkirk, 422 U.S. 395 (1975). Where subsequent events 
or disclaimer by the opposing party make the threat of action 
mere speculation, a declaratory judgment should be denied, Preiser 
v. Newkirk; Eccles v. Peoples Bank of Lakewood Villaqe,
333 U.S. 426 (1948).

12



Here, too, the balance of the Consent Decree —  and in parti­
cular paragraphs 17(a), 32 ("this Decree, which terminates the 
current legal controversy") and 63 —  explicitly ends the contro­
versy between the parties. Not only is there no actual threat that 
the plaintiffs or the class will renew their challenge to the defen­
dants' practices; they are specifically barred from doing so by the 
Decree. Paragraph 31 thus has no operative effect in this proposed 
Decree; it is merely an advisory opinion which should not be entered 
by the Court. Flast v. Cohen, 392 U.S. 83, 94-97 ( 1968).

Since it is clear that paragraph 31 is not an injunction jV 
and cannot properly be a declaratory judgment, **/ the elimination 
of that paragraph from the proposed Decree will not alter the 
rights or obligations of the parties under the Decree in any way.
The paragraph thus is meaningless surplusage in the Decree.***/

*L/ Paragraph 31 is not an injunction because it does not order 
any party to do or to refrain from doing anything. All injunc­
tions ". . . require a party either to do or to refrain from doing
some act." Wright & Miller, Federal Practice and Procedure: Civil 
§2941, p. 361. Moreover, the provision is too general to meet the 
requirements of Rule 65(d), Federal Rules of Civil Procedure, which 
requires that every injunction "shall be specific in terms; shall 
describe in reasonable detail, and not by reference to the com­
plaint or other document, the act or acts sought to be restrained

**/ See note V, p.12.
paragraph 31 is intended to mean that plaintiffs and the 

class members who are bound by the Consent Decree cannot challenge 
Starrett City's racial quota system so long as the Starrett defen­
dants comply with their obligations under the Decree, that meaning 
should be made clear before the Court considers entering the 
Decree.

13



It is, however, surplusage that has the potential for causing 
misunderstanding and other mischief in future proceedings. 
Therefore, the Court should, if possible, eliminate paragraph 31 
from the Decree.

B. Striking Paragraph 31 Would Not
Prevent Entry of the Consent Decree.

Generally the "district court judge should not take it upon 
himself to modify the terms of the proposed settlement decree, nor 
should he participate in any bargaining for better terms, [cita­
tions omitted]. However, a dissatisfied judge may, with circum­
spection, 'edge' the parties in what he believes to be the right 
direction." Plummer v. Chemical Bank, 668 F.2d 654, 656, n. 1 
(2nd Cir. 1982). However, this does not mean that the making of 
insignificant changes in a proposed consent decree by a court, 
even when over the objection of one or more of the parties, is 
an abuse of discretion. In Liddell v. Board of Education of the 
City of St. Louis, 667 F .2d 626, 635 (8th Cir. 1982) cert, denied
-------- U.S._______ , 103 S.Ct. 172 (1982), the Court of Appeals
upheld a district court’s modification of a proposed consent decree 
in ways which "simply were not significant;" and held that the 
parties were bound by it. The district court had: "(1) added 
certain quotations from previous court opinions; (2) fleshed out 
and updated the procedural history culminating in the consent 
decree and 12(b) plan; (3) discussed the general legal principles

14



applicable to consent decrees; (4) held that the 12(b) plan was fair, 
reasonable, adequate and constitutionally sufficient; (5) ordered 
the SSD, city board and state to file an interim progress report 
by July 15, 1983; and (6) added various funding provisions... 
along with several nonsubstantive editorial changes." Since para­
graph 31 does not affect the rights or obligations of the parties, 
it too is of no significance to the agreement. We suggest that the 
Court strike the paragraph from the parties' proposal. By striking 
the paragraph, the Court will avoid any implication that its order 
approves the continued use of Starrett's quota. Such approval 
would be illegal; in the context of this settlement, as the parties 
have drawn it, it is unnecessary.

Finally, the public interest would be served if the Court 
were to strike paragraph 31 from the proposed settlement. Class 
members are unlikely to object to the inclusion of paragraph 31 
since it does not affect their rights, if they find the remainder 
of the agreement acceptable. As previously stated, paragraph 17(b) 
acknowledges that these parties have agreed that Starrett City may 
continue to use controlled tenant selection on the basis of race. 
However, other persons who are not parties and who may be affected 
by such practices have not agreed to be excluded from Starrett City 
on the basis of race. Paragraph 31 may be construed by such per-

15



sons -- although the construction would be erroneous -- to mean 
that the Court has approved and authorized Starrett City's racially 
controlled tenant selection practices and that they are precluded 
from seeking relief. A court's duty to safeguard the public 
interest to ensure that affected persons are not misled by a court 
order is especially important in cases such as this where class 
members are unlikely to object. Jones v. Amalgamated Warbasse 
Houses, Inc.f 721 F. 2d 881, 884 (2nd Cir. 1983).

CONCLUSION
For the reasons stated above, the Court should, if it 

determines that the proposed Consent Decree is otherwise accept­
able, strike paragraph 31 prior to entry of the Decree. Alterna­
tively, if the Court should determine to enter the Consent Decree 
as submitted, the Court should clarify the meaning and implica­
tions of paragraph 31 consistent with the comments herein.

Respectfully submitted,
RAYMOND J. DEARIE 
United States Attorney

ROBERT L. BEGLEITER 
Assistant U.S. Attorney 
225 Cadman Plaza East 
Brooklyn, New York 
(212) 330-7974

WM. BRADFORD REYNOLDS 
Assistant Attorney General

Housing and Civil
Enforcement Section 

Civil Rights Division 
U.S. Department of Justice 
Washington, D.C. 20530 
(202) 633-4716



CERTIFICATE OF SERVICE

I certify that copies of the foregoing Comments of the 
United States were mailed to the counsel listed below, this 
day of June, 1984.

James Meyerson, Esq.
351 Broadway
New York, New York 10013
Paul, Weiss, Rifkind, Wharton & Garrison 
Peter Buscemi, Esq.
345 Park Avenue
New York, New York 10154
New York State Attorney General's Office 
Litigation Bureau 
Stephen M. Jacoby, Esq.
Two World Trade Center, 4th Floor 
New York, New York 10049

Linda F. Thome 
Attorney
Housing and Civil Enforcement

Section
Civil Rights Division 
U. S. Department of Justice 
Washington, D. C. 20530 
(202) 633-2310