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June 15, 1982

Barbara Ann EDGE, Edward Jacoby, Richard Cassel, on behalf of themselves and all others similarly situated, Plaintiffs,
Samuel R. PIERCE, Jr., in his capacity as Secretary of the Department of Housing and Urban Development of the United States of America; Lutheran Housing, Inc.; Howard H. Leber; Pauline Thomas; Applied Housing Management, Inc., doing business as South Village 2; and Joan Millen, Defendants

The opinion of the court was delivered by: THOMPSON

This case, which the named plaintiffs propose to maintain as a class action, is brought against Samuel Pierce, Secretary of Housing and Urban Development, and against entities and individuals involved in the so-called "Section 202" housing program for the elderly and handicapped. It is the plaintiffs' contention that the Secretary has interpreted, and the other defendants have applied the applicable federal law in a discriminatory fashion. The case is before me today on plaintiffs' motion for certain preliminary injunctive relief. The following constitutes the court's findings of fact and conclusions of law, pursuant to Fed.R.Civ.P. 52(a), arrived at after consideration of the record in this case, the briefs and oral argument of counsel.

 In City of Boston v. Harris, 619 F.2d 87, 89-90 (1st Cir. 1980), the First Circuit described the Section 202 program:

 Defendant Lutheran Housing, Inc. is a non-profit corporation which operates a Section 202 housing project called Luther Arms Housing Development, located at 323 South Broad Street in Trenton. Defendant Applied Housing Management, Inc. operates a housing project for the elderly and handicapped called South Village 2, located on Stokely Avenue in Trenton. South Village 2 was not organized under Section 202, it appears, but rather by means of the federal mortgage insurance provided for in Section 221(d) of the National Housing Act. 12 U.S.C. § 1715l (d); City of Boston, supra, 619 F.2d at 90. This appears to be a distinction without a difference for the purposes of this case, however, since as with Section 202 projects, the Secretary of HUD has "broad discretion to manage and control the rental housing." Id.

 In their complaint filed on January 5, 1982, the plaintiffs claim that they are persons who are or who are perceived to be chronically mentally ill. It is the plaintiffs' allegation that they have been or will be denied the opportunity to live in either Luther Arms or South Village 2 solely because of their mental illness. Plaintiffs also believe that they have thereby been the victims of a national policy promulgated by HUD and put in effect at all Section 202 housing projects. Plaintiffs believe that HUD has interpreted the applicable federal statutes and regulations to exclude the mentally ill from residence in Section 202 projects. (Verified complaint, P 26).

 Plaintiff Barbara Edge is presently a resident of Luther Arms, having resided there since January 1980. *fn1" Although the administrators of Luther Arms, in reliance upon their understanding of HUD regulations, made some attempt in 1981 to have Ms. Edge vacate her apartment, these efforts have apparently ceased, at least for the time being. Plaintiff Richard Cassel, who is presently living in a boarding home in Trenton, believes that he would enjoy and appreciate living at South Village 2. (Verified complaint, PP 39, 40, 43, 44, 45). Although he has applied for residence at South Village 2, he claims that he "feels that his application will be denied due to his not being elderly or having a physical disability but solely because he has a psychiatric disability." (Verified complaint, P 46). Plaintiff Edward Jacoby currently lives in a government subsidized apartment in Trenton; he has applied on more than one occasion for residence at Luther Arms. He claims he has been turned down because the administrators tell him that they cannot house persons who are chronically mentally ill.

 Plaintiffs allege that the refusal or potential refusal to admit them by those administering Luther Arms and South Village 2 violates various of their rights. Furthermore, they claim that the refusals were based on a nationwide HUD policy, which bars all persons who are or who are perceived to be chronically mentally ill from residence in Section 202 projects. This also transgresses against rights, both of the plaintiffs and of those whom they claim to represent.

 Plaintiffs set forth the following causes of action: first, they claim that the defendants' actions violate Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, which prohibits discrimination against an "otherwise qualified handicapped individual" in federally funded programs "solely by reason of his handicap." (Verified complaint, P 65). Second, plaintiffs claim that the defendants' actions violate their due process rights under the Fifth Amendment. (Verified complaint, P 66). Third, plaintiffs claim that their right to Equal Protection has been violated. (Verified complaint, P 67). Plaintiffs claim that the defendants have conspired to deprive them of the equal protection of the laws, violating 42 U.S.C. § 1985(3). Finally, plaintiffs have pleaded a number of pendent state law claims, including allegations of violations of the New Jersey State Constitution, the New Jersey Law Against Discrimination, and the New Jersey Fair Eviction Notice Statute. (Verified complaint, PP 69, 70).

 The plaintiffs are before the court today to request the issuance of a preliminary injunction. The terms of the injunction which they seek would do the following: The Luther Arms defendants would be enjoined from evicting plaintiff Edge. All local defendants would be directed to solicit, maintain and accept applications for housing from persons who are chronically mentally ill. Defendant Pierce would be directed to order all Section 202 projects to solicit, maintain and accept housing applications from persons who are chronically mentally ill.


 The standard by which we must judge the plaintiffs' request for a preliminary injunction has been most recently expressed by the Third Circuit in Kershner v. Mazurkiewicz, 670 F.2d 440, 443 (3d Cir. 1982):

A preliminary injunction is not granted as a matter of right. Eli Lilly & Co. v. Premo Pharmaceutical Laboratories, Inc., 630 F.2d 120, 136 (3d Cir.), cert. denied, 449 U.S. 1014 (101 S. Ct. 573, 66 L. Ed. 2d 473) (1980). It may be granted, however, if the moving party demonstrates both a reasonable probability of eventual success in the litigation and that the party "will be irreparably injured pendente lite if relief is not granted." Id. at 136; Kennecott Corp. v. Smith, 637 F.2d 181, 187 (3d Cir. 1980). The trial court may also consider the possibility of harm to other interested persons from the grant or denial of the injunction, as well as harm to the public interest. Eli Lilly & Co., 630 F.2d at 136. The grant or denial of a preliminary injunction is committed to the sound discretion of the trial judge, who must balance all of these factors in making a decision. Penn Galvanizing Co. v. Lukens Steel Co., 468 F.2d 1021, 1023 (3d Cir. 1972).

 In a case such as the one at bar, where the plaintiff is seeking a mandatory injunction, as opposed to a prohibitory injunction, the burden is accordingly greater; such mandatory injunctions are generally disfavored. Punnett v. Carter, 621 F.2d 578 (3d Cir. ...

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