Hays, Anderson and Feinberg, Circuit Judges. Hays, Circuit Judge (dissenting).
This class action was brought on September 9, 1966 by 31 named plaintiffs on behalf of themselves and all others similarly situated under the Civil Rights Act, 42 U.S.C. § 1983, and the Federal Constitution, challenging the procedures employed by the defendant New York City Housing Authority in the admission of tenants to low-rent public housing projects administered by it in New York City. The jurisdiction of the district court is predicated upon 28 U.S.C. § 1343(3).
The New York City Housing Authority is a public corporation created pursuant to the Public Housing Law of the State of New York for the purpose of implementing the State Constitution by providing "low-rent housing for persons of low income as defined by law * * *" New York State Constitution, Art. XVIII, § 1. At the time of the complaint in this action, the Authority was providing housing facilities for more than 500,000 persons, in 152 public projects which it owned and administered in New York City. Approximately half of these were federal-aided projects, the remainder being supported by either State or local funds.
The eligibility requirements for prospective public housing tenants are set out in the Public Housing Law, and in resolutions adopted by the Authority pursuant to its rule-making power. Public Housing Law, § 37(1) (w). While these vary somewhat for federal, state, and local-aided projects two requirements common to all are that the applicant's annual income and total assets not exceed specified limits, and that, at the time of admission, the applicant have been a resident of New York City for not less than two years. In addition each candidate must be situated in an "unsafe, insanitary, or overcrowded" dwelling Resolution No. 62-7-473, § 3 (federal-aided projects), or living "under other substandard housing conditions," Resolution No. 56-8-433, § 4 (state-aided projects). Each of the plaintiffs in the present action is alleged to meet these requirements.
Each year the Authority receives approximately 90,000 applications out of which it is able to select an average of only 10,000 families for admission to its public housing projects. In doing so the Authority gives preference to certain specified classes of candidates, e.g., "site residents," families in "emergency need of housing," "split families," "doubled up and overcrowded families." Resolution No. 56-8-433, § 4.
In federal-aided projects the Authority is required to allocate the remaining apartments among non-preference candidates in accordance with "an objective scoring system" which is designed to facilitate comparison of the housing conditions of these applicants. Resolution No. 62-7,473, § 4(b). For state-aided projects, however, there is no similar regulation and we assume that this is also the case with local-aided projects.*fn1 The plaintiffs in this action are all non-preference candidates seeking admission to any of the public housing projects run by the defendant.
In the complaint the named plaintiffs allege that although they have filed with the Authority a total of 51 applications for admission to its housing facilities, 36 in 1965 or earlier, and some as long ago as 1961, none has been advised in writing at any time of his eligibility, or ineligibility, for public housing.
The complaint cites numerous claimed deficiencies in the admissions policies and practices of the Authority. Regulations on admissions (other than those pertaining to income level and residence) are not made available to prospective tenants either by publication or by posting in a conspicuous public place. Applications received by the Authority are not processed chronologically, or in accordance with ascertainable standards, or in any other reasonable and systematic manner. All applications, whether or not considered and acted upon by the Authority, expire automatically at the end of two years. A renewed application is given no credit for time passed, or precedence over a first application of the same date. There is no waiting list or other device by which an applicant can gauge the progress of his case and the Authority refuses to divulge a candidate's status on request. Many applications are never considered by the Authority. If and when a determination of ineligibility is made (on any ground other than excessive income level), however, the candidate is not informed of the Authority's decision, or of the reasons therefor.
The complaint charges that these procedural defects increase the likelihood of favoritism, partiality, and arbitrariness on the part of the Authority, and deprive the plaintiffs of a fair opportunity to petition for admission to public housing, and to obtain review of any action taken by the Authority. The deficiencies are alleged to deprive applicants of due process of law in violation of the Fourteenth Amendment to the Federal Constitution.*fn2
In the district court the defendant moved to dismiss the complaint for failure to state a claim within the court's civil rights jurisdiction. Alternatively it requested that the court refrain from the exercise of its jurisdiction under the doctrine of abstention.
On October 20, 1967, the motion was denied by the trial court which also refused abstention. Thereafter permission was granted to the defendant to take this interlocutory appeal under 28 U.S.C. § 1292(b). The issues here are whether the plaintiffs have stated a federal claim,*fn3 and, if so, whether the district court should proceed to the merits. We have concluded that the district judge was correct in answering each of these points in the affirmative and we, therefore, affirm his order.
Clearly there is sufficient in the complaint to state a claim for relief under § 1983 and the due process clause. One charge made against the defendant, which has merit at least in connection with state-aided projects where the Authority has adopted no standards for selection among non-preference candidates, is that it thereby failed to establish the fair and orderly procedure for allocating its scarce supply of housing which due process requires. It hardly need be said that the existence of an absolute and uncontrolled discretion in an agency of government vested with the administration of a vast program, such as public housing, would be an intolerable invitation to abuse. See Hornsby v. Allen, 326 F.2d 605, 609-610 (5 Cir. 1964). For this reason alone due process requires that selections among applicants be made in accordance with "ascertainable standards," id. at 612, and, in cases where many candidates are equally qualified under these standards, that further selections be made in some reasonable manner such as "by lot or on the basis of the chronological order of application." Hornsby v. Allen, 330 F.2d 55, 56 (5 Cir. 1964) (on petition for rehearing). Due process is a flexible concept which would certainly also leave room for the employment of a scheme such as the "objective scoring system" suggested in the resolution adopted by the Authority for federal-aided projects.*fn4
There is no merit in the Authority's contention that the plaintiffs are without standing to raise the due process objection. As applicants for public housing, all are immediately affected by the alleged irregularities in the practices of the Authority. Compare Thomas v. Housing Authority of City of Little Rock, 282 F. Supp. 575 (E.D.Ark.1967); Banks v. Housing Authority of City & County of San Francisco, 120 Cal.App.2d 1, 260 P.2d 668 (Dist.Ct.App.1953), cert. denied, 347 U.S. 974, 7 ...