Opinion
Civil Action No. 98-4609.
September 3, 2004
MEMORANDUM
Before the court are the second and third motions of plaintiffs "to compel disclosure of accessible housing units."
This case has now been before us for a number of years, peppered with periods of acrimony and discord. Plaintiffs brought this action in August, 1998 against the Philadelphia Housing Authority ("PHA") and Carl Greene, in his official capacity as the executive director of the PHA, pursuant to § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and certain regulations which implement § 504, including 24 C.F.R. §§ 8.23, 8.24, and 8.26. Plaintiffs sought a declaration that defendants violated § 504 because they had failed to make a sufficient number of scattered site units accessible for persons with mobility impairments. They also requested injunctive relief. After proceeding to trial in December, 1999 the parties were finally able to reach a settlement agreement in January, 2002, which was approved by the court in May, 2002.
PHA oversees a public housing stock comprised of two basic types of dwelling units: (1) "scattered site" units; and (2) "conventional" units. Scattered site units are usually located in individual row houses scattered among or surrounded by private homes, although some scattered site units are in houses that are adjacent to other PHA scattered site buildings. Most of PHA's scattered site houses have only one dwelling unit, while others are divided into two or more different apartments. In contrast, conventional dwelling units, generally, are those located in one or more buildings in a contiguous area. They include not only apartments in highrise buildings but also units in "garden style" buildings, which look much like townhouses. See ADAPT of Philadelphia v. Philadelphia Hous. Auth., Civ. A. No. 98-4609, 2000 WL 433976 (E.D. Pa. Apr. 14, 2000).
As required by the court-approved settlement agreement, PHA was required to create a certain number of accessible units to be dispersed throughout the City of Philadelphia and made available in phases — half by December 31, 2003, and half by December 31, 2005. These units were required "in addition to units PHA is otherwise required to make accessible in accordance with 24 C.F.R. Part 8 (including its 5% accessibility requirements)." Settlement Agreement and Release § B. The settlement agreement further provided, "[i]f the parties are not able to resolve any dispute, either party may seek judicial relief by motion submitted to the Court." Id. at § G.
The first deadline has now passed. Plaintiffs' recent motions seek information "to verify compliance" with the Settlement Agreement. Specifically, in their second motion, plaintiffs seek "the street addresses and specific identification of the apartment units that [PHA] claims to have made accessible" at the locations of Mt. Olivet and Suffolk Manor. Through their third motion, plaintiffs seek "the specific housing units that [PHA] claims to have made accessible under the `5% accessibility requirement' of the Settlement Agreement" at the following locations: Richard Allen — Phase III, Martin Luther King, Raymond Rosen, Schuylkill Falls, and Cambridge. Plaintiffs want to be sure that the scattered site housing is in addition to the five percent requirement under 24 C.F.R. Part 8, as is provided in the settlement agreement.
In the record are declarations made under penalty of perjury to the effect that PHA has not fully complied with the terms of the settlement agreement. According to these declarations, between May 21, 2004 and June 19, 2004, counsel for plaintiff and counsel's employee visited a number of addresses previously provided by PHA as scattered site accessible housing. They determined that certain units were not occupied and/or the construction was incomplete. Decl. of Stephen Gold, June, 28, 2004, Exh. A to Pl.'s Motion to Enforce the Settlement Agreement, filed July 6, 2004; Decl. of Jessica Shapiro, July 2, 2004, Exh. B to Pl.'s Motion to Enforce the Settlement Agreement, filed July 6, 2004. Counsel and counsel's employee were able to speak with an adult resident at other addresses provided by PHA who "did not claim occupancy by a person with a disability who needed the accessibility features, and [declarant] did not observe such a person." Id. At some locations, it appeared that occupants may have had disabilities but did not necessarily require the accessibility features. Id. Finally, counsel and counsel's employee found that at least one address provided by PHA did not exist. Id.
PHA argues that plaintiffs are not entitled to the information they seek to compel. PHA takes the position that plaintiffs are trying to rewrite the settlement agreement to appoint themselves overseers of PHA's policies and practices. Further, it maintains that plaintiffs have stepped beyond the language of the settlement agreement in asking for information related to the five percent accessibility requirement under federal regulations to which, defendants contend, they are not entitled.
RAB, an intervenor, is a "non-profit corporation organized and existing for the purpose of representing and advocating on behalf of all public housing residents and rent-subsidized residents within the City and County of Philadelphia." It argues that providing the addresses of accessible housing units infringes on the rights of residents in the units at issue by invading their privacy, jeopardizing their status as handicapped persons, and discriminating against them.
Without passing judgment on the allegations contained in the declarations submitted by plaintiffs' counsel and counsel's employee, we recognize that they raise serious concerns about PHA's compliance with the settlement agreement. As provided in Rule 26(b)(1) of the Federal Rules of Civil Procedure, "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in any action." Plaintiffs are not engaging in a fishing expedition. They have shown good cause. Indeed, we can think of no way that the court can determine whether there is compliance with the settlement agreement if PHA is not required to reveal where the scattered units for the mobility impaired are located.
While we are mindful of the privacy concerns of public housing tenants', requiring PHA to disclose to plaintiffs the locations of the compliant units has become unavoidable. The parties entered the settlement agreement after a significant amount of litigation, which was brought on by plaintiffs seeking to provide mobility impaired persons with appropriate public housing. Preventing plaintiffs from knowing whether PHA is actually abiding by the terms of that agreement would render the agreement meaningless.
Moreover, we hardly think that ensuring compliance with a settlement agreement designed to ensure sufficient housing for persons with mobility impairment can be construed as discriminatory. Determinations about whether particular residents fit the definition of mobility impaired, their status as handicapped, and how they will be affected should the court find PHA in breach of the settlement agreement cannot be made on the record before us. However, we will never be able to make those determinations if PHA does not disclose what units are purportedly in compliance. Allowing PHA to refuse to provide the requested information would put its actions out of reach of judicial review. This simply cannot be. Therefore, we will grant plaintiffs' second and third motions to compel disclosure of accessible housing units.
ORDER
AND NOW, this day of September, 2004, it is hereby ORDERED that:(1) the second motion of plaintiffs to compel disclosure of accessible housing units is GRANTED;
(2) within ten days of the date of this order, defendants shall provide plaintiffs' counsel and counsel for intervenor with the street address and apartment unit number of each accessible residence and housing unit at the Mt. Olivet and Suffolk Manor projects that comply with the December 31, 2003 requirements set forth in Paragraph B of the Settlement Agreement;
(3) the third motion of plaintiffs to compel disclosure of accessible housing units is GRANTED; and
(4) within ten days of the date of this order, defendants shall provide plaintiffs' counsel and counsel for intervenor with the street address and apartment unit of each accessible residence and housing unit which defendants are have made accessible in accordance with 24 C.F.R. Part 8, including the five percent requirements, at the following locations: Richard Allen — Phase III (13 units), Martin Luther King (7 units), Raymond Rosen (35 units), Schuylkill Falls (7 units), Cambridge (2 units), Mt. Olivet, and Suffolk Manor.