Opinion
Civil Action No. 98-4609.
August 10, 2004
MEMORANDUM
Before the court is the "intervenor petition" of Resident Advisory Board Inc. ("RAB"). It characterizes the petition as "in the nature of a motion for injunctive relief and motion to disqualify counsel for plaintiff based on an irreconcilable conflict of interest with petitioners." RAB 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." The plaintiffs, ADAPT of Philadelphia ("ADAPT"), Liberty Resources, Inc. ("LRI"), Marie Watson, Marshall Watson, and Diane Hughes, oppose the petition.
As we have stated on previous occasions, this litigation has had a long and tortured history, filled with some very contentious chapters. At the core of plaintiffs' case were allegations the Philadelphia Housing Authority ("PHA") had failed to provide scattered site housing for mobility impaired persons so that they could be fully integrated with the rest of society. After extensive hearings, the parties entered into a settlement agreement in January, 2002 which was subsequently approved by the court. The settlement agreement provided for a certain number of accessible units to be dispersed throughout the City of Philadelphia and to be made available in phases.
As described in the settlement agreement, LRI "is a federally funded social service and advocacy non-profit corporation that is mandated, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 796f-4, to provide services and `systems advocacy' for people with disabilities" and ADAPT "is an organization that advocates on behalf of individuals with disabilities." Settlement agreement at 1-2. The original suit was brought "with regard to the accessibility of PHA's `scattered site' housing for persons with mobility impairments." Id. at 2. Under the settlement agreement, PHA was to create a certain number of "accessible public housing rental units (which may include rentals with sale options for resident households including a person with a mobility impairment)," some of which were to be "accessible and otherwise ready for occupancy no later than December 31, 2003."Id. ¶ B at 3. The units delineated in the settlement agreement were in addition to the five percent accessibility requirement under 24 C.F.R. Part 8. All of the units were required to comply with the Uniform Federal Accessability Standards. See 24 C.F.R. § 8.32.
Under the section entitled "Utilization of Accessible Units by Persons with Mobility Impairments," the settlement agreement requires that PHA "take reasonable non-discriminatory steps to maximize utilization of such units by eligible households that include an individual whose disability requires the accessibility features of the particular unit, in accordance with 24 C.F.R. § 8.27." Id. ¶ C at 8. Paragraph P of the settlement agreement is entitled "Reporting and Monitoring" and provides that "[e]very four months, PHA shall provide Plaintiffs with a report (with a copy to the Court) regarding the implementation and status of Paragraph B, Accessible Units, above, and upon reasonable request by counsel for Plaintiffs or PHA, counsel shall meet to discuss the report." Nowhere in the settlement agreement is the term "mobility impairments" specifically defined.
Plaintiffs have moved to enforce the settlement agreement and to compel disclosure by the PHA of the location of accessible units. Based on the information in their possession, they also contend that PHA has failed to lease some of the scattered site accessible housing to occupants who require the accessibility features set forth in the settlement agreement. Plaintiffs seek further information about the medical or physical condition of persons living in accessible units but without the personal identifying information of these persons. RAB wishes to intervene on behalf of the PHA handicapped residents and their families, who RAB contends are unrepresented in this litigation and whose rights and interests RAB argues are being violated by plaintiffs seeking their medical records and private personal information.
Rule 24(a) of the Federal Rules of Civil Procedure provides, in relevant part:
Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action . . . when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.
There are thus four requirements for intervention of right under Rule 24(a)(2): "first, a timely application for leave to intervene; second, a sufficient interest in the litigation; third, a threat that the interest will be impaired or affected, as a practical matter, by the disposition of the action; and fourth, inadequate representation of the prospective intervenor's interest by existing parties to the litigation." Kleissler v. United States Forest Service, 157 F.3d 964, 969 (3d Cir. 1998).
First, we must determine whether RAB's petition is timely. There are three factors which we must consider in making this determination: "(1) the stage of the proceeding; (2) the prejudice that delay may cause the parties; and (3) the reason for the delay." Mountain Top Condominium Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 369 (3d Cir. 1995). The history of this action is long. Beginning in 1998, the parties litigated and then settled this case in 2002. At issue now is enforcement of the settlement agreement and the privacy of PHA residents living in units designed and equipped for persons with mobility impairments. RAB has not offered an explanation as to why it has not previously sought to intervene. Nevertheless, although the litigation is at a late stage, "[t]he mere passage of time . . . does not render an application untimely. . . . The critical inquiry is: what proceedings of substance on the merits have occurred?" Id. RAB's petition came in response to plaintiffs' motion to enforce the settlement agreement in a manner that RAB views as violating the privacy rights of its clients. As the privacy issue at hand has first arisen with the motion to enforce, RAB, in our view, has acted in a timely manner.
Under the second and third requirements, we must determine whether RAB has a sufficient interest in the litigation, and if so, whether it will be significantly impaired by disposition of the present action, that is, the motion to enforce the settlement. "The applicant must demonstrate that there is a tangible threat to a legally cognizable interest to have the right to intervene." Id. at 366. As stated by RAB, the medical records of the public housing residents sought by plaintiffs were submitted to PHA "for the sole purpose of qualifying for accessible units." RAB Intervenor Pet. ¶ 14. No one disputes that PHA residents have a legally cognizable privacy interest in their medical records. In response, counsel for plaintiffs has suggested PHA provide them only with records from which names and other personal identifying information would be redacted.
Additionally, "[i]nterests in property are the most elementary type of right that Rule 24(a) is designed to protect, and many of the cases in which a sufficient interest has been found under amended Rule 24(a)(2) have been cases in which there is a readily identifiable interest in land, funds, or some other form of property." Mountain Top Condominium Ass'n, 72 F.3d at 367 (quoting Wright, Miller Kane, Federal Practice Procedure § 1908, at 263 (1986)). If the court were to find that non-mobility impaired persons are living in accessible housing, PHA would be faced with the prospect of remedying the situation in what is already a crowded public housing market, possibly resulting in the displacement of some residents. Thus, it is clear that persons who are currently residing in accessible housing units have a sufficient interest in the present litigation.
Finally, we must examine the adequacy of representation. As stated by our Court of Appeals:
The most important factor in determining adequacy of representation is how the interest of the absentee compares with the interest of the present parties. If the interest of the absentee is not represented at all, or if existing parties are adverse to him, then he is not adequately represented. If his interest is identical to that of one of the present parties, or if there is a party charged by law with representing his interest, then a compelling showing should be required to demonstrate why this representation is not adequate.Mountain Top Condominium Ass'n, 72 F.3d at 368-69. RAB contends that handicapped PHA residents and their families are not effectively represented by plaintiffs "in that plaintiffs seek to obtain the privileged and private medical records of said residents, without their consent, for the express purpose of disputing the rights of these residents to their leaseholds, disqualifying the residents' classification as handicapped, and seeking to remove these residents from their homes." RAB Intervenor Pet. ¶ 8.
However, at least one of the parties is "charged by law" to represent the interests of the disabled. See Mountain Top Condominium Ass'n, 72 F.3d at 368-69. As stated above, plaintiff LRI "is a federally funded social service and advocacy non-profit corporation that is mandated, pursuant to the Rehabilitation Act of 1973, 29 U.S.C. § 796f-4, to provide services and `systems advocacy' for people with disabilities." Plaintiffs are legally bound to represent the persons on behalf of whom RAB seeks to intervene. See id. Thus, without a compelling showing why this representation is not adequate, RAB is not entitled to intervene. See id.
There is, however, a potential conflict within the representation responsibilities of LRI, whose task it is to advocate on behalf of "persons with disabilities." Because the disposition of the enforcement action may depend, at least in part, on the definition (or lack thereof) of the term "mobility impairment," plaintiffs may be faced with advocating the elimination from that definition and from accessible housing of persons who may be disabled in some sense but do not qualify as "mobility impaired." Although plaintiffs have represented that they will not argue close cases, it is impossible to determine what a close case will be. It is quite possible that the gradations of "disabled" approaching the blurry line of "mobility impaired" may be great in number and impossible fully to appreciate at this time. It is certain that plaintiffs will argue for the removal of "non-disabled" persons. RAB is charged with the representation of all public housing residents, and this group by definition includes those plaintiffs might seek to remove from accessible housing. Therefore, we find there is a compelling reason to allow RAB to intervene on behalf of all PHA residents, whose interests are not adequately represented by the existing parties.
We have also considered whether PHA adequately represents the interests of all residents of accessible housing. We note that although PHA now takes the position that all such tenants meet the standard of "mobility impaired," PHA is not charged with the representation of its tenants in this action. Although their interests are presently aligned, they may not always be. Therefore, we think it wiser to allow the participation of a representative designated for advocacy solely on behalf of the tenants.
While we are permitting RAB to intervene, we will not disqualify counsel for plaintiff. He has a right to represent the mobility impaired and to take steps to protect their right to public housing. Without his representation, there would be no check on whether PHA is complying with the settlement agreement.
RAB also seeks to enjoin the production of any medical records of the tenants. Whether the medical records of tenants are to be produced and with what, if any, restrictions, is a matter for another day.
ORDER
AND NOW, this day of August, 2004, for the reasons set forth in the accompanying Memorandum, it is hereby ORDERED that:(1) the intervenor petition of Resident Advisory Board Inc. ("RAB") is GRANTED;
(2) the motion of RAB to disqualify counsel for plaintiff is DENIED; and
(3) the motion for injunctive relief is DENIED without prejudice.