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YEARSLEY v. SCRANTON HOUS. AUTH.

November 8, 1979

William A. YEARSLEY, on behalf of himself and all other persons similarly situated
v.
SCRANTON HOUSING AUTHORITY; Paul J. Cusick, Individually and in his capacity as Executive Director of the Scranton Housing Authority; Their Agents, Employees, Successors in Office, and All Persons Acting in Concert or Cooperation with them or at their direction or under their control.



The opinion of the court was delivered by: NEALON

MEMORANDUM AND ORDER

I. Facts

 Plaintiff William A. Yearsley has resided in the city of Scranton since March 17, 1977. *fn1" Defendant Scranton Housing Authority ("S.H.A.") is a public corporation formed to build, operate, and maintain living accommodations under the terms of the United States Housing Act of 1937, 42 U.S.C. § 1437, et seq. S.H.A. maintains the following policy in apportioning vacancies among eligible applicants:

 
This authority will give preference in the selection of tenants to applicants who reside and/or have been residents of the City of Scranton for a minimum period of one (1) year, except in the event this Authority has units available and no Scranton residents, then second preference will be given to residents of Lackawanna County who have been residents or resided there for a minimum of one (1) year. *fn2"
 
Yearsley submitted to S.H.A. an application for low-income housing on the same day he established residency in Scranton. Four days later, the plaintiff received a letter stating that he had been found eligible for "a dwelling with efficiency bedrooms." The notification, however, also explained that there was "no way of knowing the housing needs of future applicants who may be in a category of preference that supersedes yours, and whose eligibility may change your position on the waiting list." *fn3" Thus, Yearsley was forced to wait for housing without understanding exactly where he stood in the order of priorities. Until March 1978, any yearlong resident of Scranton who was considered eligible for S.H.A. housing automatically received a more desirable spot on the waiting list for vacancies than that occupied by the plaintiff.
 
In this suit, brought under 42 U.S.C. § 1983 and 28 U.S.C. § 1343, Yearsley challenges the legality of the S.H.A. policy which creates a priority in favor of persons who have maintained city residence for one year or more. His rationale is twofold. Initially, the plaintiff contends that the procedure violates the regulations promulgated by the Agency of Housing and Urban Development ("H.U.D."). Second, he asserts that the preference amounts to an unconstitutional infringement of the fundamental right to travel. Presently before the Court are motions by Yearsley to certify the suit as a class action under Federal Rule of Civil Procedure 23(b)(2) and to grant summary judgment in favor of the plaintiff.
 
II. Class Certification and Mootness
 
The Rule 23 motion must be considered in conjunction with the question of mootness, because under the facts of the instant case the two issues dovetail. On March 15, 1978, approximately one year after his move to Scranton, Yearsley obtained low-income housing with payment assistance furnished by S.H.A. Furthermore, even if he had not received such accommodations, any adverse effect of the challenged policy would have terminated long ago. The defendants, therefore, imply that the action should be dismissed as moot. The plaintiff has attempted to avoid such a harsh result by seeking class certification. Upon consideration of the issue, this Court shall grant the Rule 23 motion under the principles announced in Inmates of Lycoming County Prison v. Strode, 79 F.R.D. 228 (M.D.Pa.1978).
 
The normal requirements for class certification outlined in Rule 23(a) are certainly present in the instant action. First, joinder of all parties in the same "class" as Yearsley would be "impracticable" if not impossible. The defendant admits that a substantial number of S.H.A. applicants otherwise eligible for low-income housing have not resided in the city for one year and thus are placed in the lesser priority pool. *fn4" Furthermore, as in the Lycoming case, persons are constantly entering and leaving the relevant class creating an "apparent rapid turnover" of members. The list of genuinely interested plaintiffs can change on almost every given day. Joinder would be highly difficult no matter what the number of aggrieved applicants might be "at any particular moment." Id. at 232. Second, there is a major question of law common to the class; namely, the legality of the residency preference. Third, the plaintiff's twofold assault on S.H.A.'s policy is a typical claim among the lower priority applicants. Dawes v. Philadelphia Gas Commission, 421 F. Supp. 806, 813 (E.D.Pa.1976). Finally, this Court is satisfied that Yearsley will protect the interests of the class fairly and adequately. *fn5"
 
Once a suit has qualified for general class action status, it still must be examined for classification under Rule 23(b). Only litigation which meets this additional requirement can be certified as a class action. The plaintiff has moved that this case specifically be designated under Rule 23(b)(2) which requires that "the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole." The test for this provision is that "the interests of the class members must be so like those of the individual representative that injustice will not result from their being bound by said judgment in the application of the principles of res judicata." Martin v. Easton Publishing Company, 73 F.R.D. 678, 683 (E.D.Pa.1977).
 
Yearsley and those whom he would represent have an identical goal: to strike down the S.H.A. vacancy preference for yearlong residents. The issue is purely a question of law and factual distinctions among the applicants are irrelevant to the outcome. Rather than effecting an injustice, application of res judicata in this case would further the ends of judicial economy by resolving the controversy while avoiding piecemeal litigation. Accordingly, classification under Rule 23(b)(2) is appropriate.
 
Only one obstacle remains to favorable action on this motion. The defendants note that Yearsley's suit technically became moot before the Court had an opportunity to rule on the Rule 23 issue. *fn6" They rely on Bradley v. Housing Authority of Kansas City, Missouri, 512 F.2d 626, 628-29 (8th Cir. 1975) for the proposition that certification as a class action cannot at this point cure the mootness. This contention, however, is incorrect. Many cases have held in derogation of the Bradley rationale that under the appropriate circumstances application of Rule 23 may "relate back" to the time of the motion and eliminate the mootness problem according to the doctrine of Sosna v. Iowa, 419 U.S. 393, 397-403, 95 S. Ct. 553, 556-559, 42 L. Ed. 2d 532 (1975). See Gerstein v. Pugh, 420 U.S. 103, 110 n. 11, 95 S. Ct. 854, 861, 43 L. Ed. 2d 54 (1975); DeBrown v. Trainor, 598 F.2d 1069, 1071-72 (7th Cir. 1979); Susman v. Lincoln American Corp., 587 F.2d 866, 869-871 (7th Cir. 1978); Jones v. Diamond, 519 F.2d 1090, 1097-99 (5th Cir. 1975); Frost v. Weinberger, 515 F.2d 57, 62-65 (2d Cir. 1975), cert. denied, 424 U.S. 958, 96 S. Ct. 1435, 47 L. Ed. 2d 364 (1976); Tedeschi v. Blackwood, 410 F. Supp. 34, 38-41 (D.Conn.1976); Inmates of Lycoming County Prison v. Strode, 79 F.R.D. at 231-232. The real question before the Court is whether this case presents appropriate facts for the relation back principle.
 
This suit is controlled by Lycoming. The latter precedent found that Rule 23 certification should "relate back" when two factors are present: (1) a continual turnover of class members which renders the allegedly wrongful acts capable of repetition yet evading review, and (2) the probability that "there will be a constant existence of a class suffering the alleged deprivations." Id. Both of these conditions exist in the instant litigation. Accordingly, the plaintiff's motion for Rule ...

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