that the relief sought is barred by the Eleventh Amendment to the United States Constitution, and that plaintiffs lack standing.
The argument that plaintiffs are in effect "arms" of the State is based on the fact that they are "created" under enabling legislation contained in N.J.S.A. 55:14A-4. We find this argument unpersuasive because of the sui generis nature of a Housing Authority.
As noted in O'Keefe v. Dunn, 89 N.J. Super. 383, 396, 215 A. 2d 66 (Law Div. 1965), aff'd per curiam, 47 N.J. 210, 219 A. 2d 872 (1966), a Housing Authority "is unique because it is to be simultaneously an agency of municipal, state and federal government." It is an independent entity which contracts (as a principal) with both the state and federal governments. Cf. City of Paterson v. Housing Authority of City of Paterson, 96 N.J. Super. 394, 233 A. 2d 98 (Law Div. 1967). The State here may have passed the enabling legislation, but the actual "creator" of the Housing Authority was the county or municipality in which it is located. In addition, federal control is dominant in certain areas. Cf. Lehigh Const. Co. v. Housing Authority of City of Orange, 56 N.J. 447, 267 A. 2d 41 (1970).
We deal here with the interrelationships between the Authorities and the Division of Public Welfare. As such, the issue is closer to that presented in East Orange v. Palmer, 47 N.J. 307, 220 A.2d 679 (1966) than it is to the series of cases typified by City of Newark v. State of New Jersey, 262 U.S. 192, 43 S. Ct. 539, 67 L. Ed. 943 (1922) which are relied on by defendants. Cf. Township of River Vale v. Town of Orangetown, 403 F.2d 684 (2 Cir. 1968).
As to the Eleventh Amendment issue, the State asserts that the named defendants Cahill, Clifford, and Engelman are but nominal parties and in fact the suit seeks a money judgment against the State treasury.
An examination of the complaint discloses that plaintiffs seek a declaratory judgment that the FAM and its "flat grant" system are illegal and also seek appropriate injunctive relief. They further ask for readoption of the "as paid" system and funds to make up their losses incurred under the "flat grant" system.
We find that no Eleventh Amendment problem exists as to the declaratory and injunctive relief which is sought because an action against state officers to enjoin allegedly unconstitutional acts is not barred by that Amendment. Ex Parte Young, 209 U.S. 123, 28 S. Ct. 441, 52 L. Ed. 714 (1908); Williams v. Eaton, 443 F.2d 422 (10 Cir. 1971). Cf. Pennsylvania Environmental Council, Inc. v. Bartlett, 454 F.2d 613, 624-625 (3 Cir. 1971).
As to the portion of the complaint which seeks reimbursement, we feel that any decision on this issue should be deferred pending final hearing on the merits. At that time, if necessary, the substantial issues of the juridical nature of the plaintiffs, consent to suit, and remedy will be decided.
We reject the State defendants' claim that plaintiffs lack standing. To say the least, plaintiffs have alleged an economic injury and their interests are certainly within that zone of protection conferred by the interrelationship of the Social Security and Housing Acts. Association of Data Processing Service Organizations v. Camp, 397 U.S. 150, 152-153, 90 S. Ct. 827, 25 L. Ed. 2d 184 (1970). Undisputably plaintiffs are less solvent than before. Their duty to remain solvent is at issue here.
We further find that jurisdiction is present under 28 U.S.C. § 1331. While the precise losses of each Housing Authority are unclear at this time, it is impossible to conclude "to a legal certainty" that each Authority has not suffered in excess of $10,000 in damages. St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-290, 58 S. Ct. 586, 82 L. Ed. 845 (1938); Davis v. Shultz, 453 F.2d 497 (3 Cir. 1971). Cf. Opelika Nursing Home v. Richardson, 448 F.2d 658 (5 Cir. 1971); Marquez v. Hardin, 339 F. Supp. 1364 (N.D. Cal. 1969).