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February 23, 1989


The opinion of the court was delivered by: WOLIN

 This is an action pursuant to 42 U.S.C. § 1983 for alleged violation of plaintiff's asserted right to a public housing preference. Before the Court are plaintiff's and defendant's cross-motions for summary judgment. The Court will deny the cross-motions.


 On January 4, 1986, plaintiff Ginger Pruticka filed an application for public housing with the Bayonne Housing Authority ("BHA"), of which defendant Charles Posner is the Executive Director. She had recently become estranged from her husband John Pruticka and was living sometimes with relatives and sometimes out of a car. Although defendant has offered evidence that plaintiff's husband had custody of their daughter Lisa at the time, plaintiff alleges that she in fact had custody of Lisa at the time or alternatively, that she would have been able to obtain custody of Lisa had she been afforded public housing.

 On July 30, 1987, plaintiff filed another application with the BHA, in which she applied for housing for herself only. On that application Pruticka listed her monthly income as $ 210 and her monthly rent as $ 525. She stated that she was about to be without housing because of her inability to afford the rent. Again, there is dispute as to whether or not plaintiff had custody of Lisa at the time of the second application. Although the BHA initially declined this second request for housing, it is undisputed that after Amanda's birth some six months following the submission of the July 1987 application the BHA did make an offer of Section 8 existing housing assistance to plaintiff. This offer plaintiff declined. Thereafter she brought the instant action for declaratory and injunctive relief, damages and attorney's fees. Subsequently plaintiff accepted an offer of housing from the BHA. The instant action has proceeded on plaintiff's claim for damages.


 The statute under which plaintiff has brought suit, 42 U.S.C. § 1983, provides in part as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

 Plaintiff claims two grounds on which she was allegedly deprived of "rights, privileges, or immunities" secured by the Constitution and laws of the United States, the first of which is based on the United States Housing Act of 1937 ("Housing Act"), as amended and codified in part at 42 U.S.C. §§ 1437-1437j, and the second of which is based on that Act in conjunction with the Due Process Clause of the Fourteenth Amendment. Pruticka alleges a direct violation of the Housing Act because of defendant's failure to grant her a housing preference despite her homelessness at the time of her January 1986 application and the fact that she paid more than 50% of her income to rent as of her July 1987 application. For her asserted due process violation, plaintiff alleges that she had a property right under the BHA's own tenant selection criteria enacted pursuant to the Housing Act and 24 C.F.R. § 960.204 and that she was not granted a hearing before or after defendant's denial of her request. It is important to note that the first asserted ground for relief under § 1983 does not depend on the Due Process Clause but relies directly on the alleged violation of plaintiff's statutory rights. Therefore, whether an appropriate hearing was held is of no issue to the first asserted basis for relief, although it is of issue to the second asserted basis.

 I. Plaintiff's Rights Under the Housing Act Directly

 As explained and expanded by Congress in 1974, the Housing Act was enacted "to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income." Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 201(a), 88 Stat. 653 (codified at 42 U.S.C. § 1437). In furtherance of these goals, the Act authorizes the Department of Housing and Urban Development ("HUD") to provide low interest loans, grants and other assistance for the construction and operation of housing for families with low incomes. 42 U.S.C. § 1437b. In return, housing authorities such as the BHA must comply with statutes and regulations governing public housing. See, e.g., Thorpe v. Housing Authority of Durham, 393 U.S. 268, 277-78, 89 S. Ct. 518, 523-24, 21 L. Ed. 2d 474 (1969).

 Congress amended the Act in 1974 to require that public housing authorities consider "economic mix" in the selection of tenants. Housing and Community Development Act of 1974, supra (codified at 42 U.S.C. § 1437d(c)(4)(A)). Under a 1979 amendment, Congress established two "preferences": one for families occupying substandard housing; another for families that had been involuntarily displaced. Housing and Community Development Amendments of 1979, Pub. L. No. 96-153, § 206(a), 93 Stat. 1108 (codified at 42 U.S.C. § 1437d(c)(4)(A)). In 1981, in the face of the budget cuts early in the Reagan Administration, Congress amended the Housing Act to focus limited federal resources on the neediest of families -- i.e., those of "very low income." Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 323, 95 Stat. 404 (codified at 42 U.S.C. § 1437n); see S. Rep. No. 139, 97th Cong., 1st Sess. 229-30, reprinted in 1981 U.S. Code Cong. & Admin. News 396, 525-26. Two years later, in 1983, Congress added a third "preference," which favors families that pay more than 50 percent of their income on rent. Domestic Housing and International Recovery and Financial Stability Act, Pub. L. No. 98-181, § 203(a), 97 Stat. 1153, 1178. See generally Gholston v. Housing Authority of Montgomery, 818 F.2d 776, 778-79 (11th Cir. 1987); id. at 789 (Anderson, J., concurring in part and dissenting in part). Thus, in its present state, as codified at 42 U.S.C. § 1437d(c)(4)(A), the Housing Act provides that contracts between HUD and every public housing agency must provide that

the public housing agency shall comply with such procedures and requirements as the Secretary may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to . . . the establishment of tenant selection criteria which gives [sic] preference to families which occupy substandard housing, are paying more than 50 percent of family income for rent, or are involuntarily displaced at the time they are seeking assistance under this chapter and which is [sic] designed to assure that, within a reasonable period of time, the project will ...

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