Appeal from the United States District Court for the Northern District of Illinois, Eastern Division - No. 73 C 1419 William J. Lynch, Judge.
Barnes, Senior Circuit Judge,*fn** and Cummings and Tone, Circuit Judges.
This is an appeal from a District Court's order granting an injunction and other relief. Plaintiffs, individual tenants of the Chicago Housing Authority ("CHA"), and the Chicago Housing Tenants Organization, a not-for-profit corporation, all of whose members are tenants of CHA, brought this action individually and on behalf of all others similarly situated against CHA and its Executive Director. In their two-count complaint, plaintiffs sought declaratory and injunctive relief. Count I of the complaint alleges that certain actions of the defendants violated plaintiffs' constitutional right to due process. Count II, based upon the same factual allegations as those contained in Count I, alleges as an alternative basis of relief that defendants' action violated U.S. Department of Housing and Urban Development ("HUD") Circulars RHM 7465.6, RHM 7465.8, and RHM 7465.9 ("Circulars 6, 8, and 9").
The District Court, by order of November 21, 1973, denied plaintiffs' request that the cause be maintained as a class action, granted plaintiffs' motion for summary judgment as to Count II, found Circulars 6, 8, and 9 enforceable against CHA, and ordered the defendants and their agents to follow the provisions of the circulars. On December 3, 1973, the defendants moved to amend the District Court's order to make additional findings of fact with reference to Count I of the complaint and to enter judgment upon that count, or, in the alternative, to amend the order as permitted by 28 U.S.C. § 1292(b) to include a statement that the question of whether there is a conflict between Illinois law and the grievance procedure contained in the circulars was a controlling question of law as to which there was substantial ground for difference of opinion, decision of which might materially advance the ultimate termination of the litigation. The District Court denied this motion. Defendants then appealed from the order of November 21, 1973.
We must first determine whether we are reviewing a final judgment or a preliminary injunction order. The District Court's order required only that defendants and their agents comply with Circulars 6, 8, and 9. The court did not rule on other prayers for relief in Count II. These include requests for a declaration that CHA's standard Dwelling Lease (which, we are advised, has been amended during the pendency of the case) violated the United States Housing Act of 1937, 42 U.S.C. § 1401, et seq., or regulations issued thereunder, and for a declaration "that any action taken or about to be taken by defendants against the plaintiffs . . . other than pursuant to the requirements of" Circulars 6, 8, and 9 is "null and void and unenforceable." To rule on the latter request the court would have been required to adjudicate the legality of past actions, which it did not attempt to do. When the court does rule on that request it will presumably specify the past actions that were violative of the circulars.
Count I, which alleges violation of plaintiffs' due process rights, has not been ruled on by the District Court. Although this count is based on the same factual allegations and seeks essentially the same relief as Count II, the court refused to grant summary judgment on the count or to dismiss it, and plaintiffs have not withdrawn it despite defendants' motion to amend the order of November 21, 1973, to include disposition of Count I.
In view of the foregoing, it cannot be said that the order leaves nothing to be done in the case except to superintend, ministerially, execution of the judgment. Accordingly, the order is not a final judgment. See, e.g., John Simmons Co. v. Grier Bros. Co., 258 U.S. 82, 88, 66 L. Ed. 475, 42 S. Ct. 196 (1921); First National Bank in Dodge City v. Johnson County National Bank & Trust Co., 331 F.2d 325, 327 (10th Cir. 1964).
It is also to be noted that the order appealed from deals with matters other than permanent or final relief. It not only grants summary judgment as to Count II and orders defendants to comply with the circulars but denies defendants' motion to dismiss pursuant to Rule 12(b) and their motion to strike affidavits and also denies plaintiffs' request that the action be maintained as a class action. The record on appeal indicates that no separate document setting forth a judgment was ever filed. Rule 58, Fed. R. Civ. P., provides: "Every judgment shall be set forth on a separate document." Nor was a separate judgment recorded on the civil docket. See Rule 79(a), Fed. R. Civ. P. Failure to observe the separate-document requirement, which is designed to make certain the matter of appealability, see United States v. F. & M. Schaefer Brewing Co., 356 U.S. 227, 232-233, 2 L. Ed. 2d 721, 78 S. Ct. 674 (1958); 9 J. Moore, Federal Practice, P 110.08 (2d ed. 1973), is at the very least a reason for resolving any doubts against finality.
Further confirmation, if any were needed, of our conclusion that the order before us is not a final judgment may be found in defendants' motion to amend the order to include a certification under 28 U.S.C. § 1292(b) of the question whether or not Illinois law and the grievance procedure contained in Circulars 6, 8, and 9 were in conflict. While the District Court's refusal, without explanation, may be ambiguous, the filing of the motion indicates that defendants considered certification a prerequisite to appealability.
Two consequences follow from the status of the order under review as an interlocutory order granting a preliminary injunction: First, except to the extent that our judgment may operate as a constraint, the District Court retains the power to modify the terms of the order, and may, in framing its final decree, take into account any change in circumstances, such as use of a different dwelling lease by the CHA or modifications of Circulars 6, 8, and 9, which has taken place since the entry of the order. See Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 47, 87 L. Ed. 1731, 63 S. Ct. 1393 (1943); Fidelity Trust Co. v. Board of Education, 174 F.2d 642, 645 (7th Cir. 1949). Second, our review is limited to a determination of whether the District Court abused its discretion in issuing the injunction, which must be regarded as interlocutory. United States v. Corrick, 298 U.S. 435, 437-438, 80 L. Ed. 1263, 56 S. Ct. 829 (1936). We turn now to that review.
Defendants challenge the plaintiffs' standing to bring the action. To decide whether any of the seven named plaintiffs have standing, we must consider whether they are injured in fact by the actions of which they complain and whether their interests are arguably within the zone of interests to be protected by the Housing Act of 1937, supra, under the authority of which HUD issued the circulars. Sierra Club v. Morton, 405 U.S. 727, 733, 31 L. Ed. 2d 636, 92 S. Ct. 1361 (1972). Turning first to the latter test, since all the individual plaintiffs were tenants in public housing at the time the complaint was filed, their interests are within the zone of interests protected by the Act. It is unnecessary for present purposes to determine whether that is also true of the Chicago Housing Tenants Organization.
The injury-in-fact requirement is also satisfied. Several of the six individual plaintiffs have sufficiently alleged that they were injured in fact by the defendants' actions:
Plaintiff Cowan asked to be transferred from her present apartment to another apartment for health reasons. Her request was denied without written reason, and she has been unable to obtain a review of the decision. She is harmed by the defendants' ...