The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Both sides have now moved for summary judgment under
Fed.R.Civ.P. ("Rule") 56. Apparently concerned lest plaintiffs'
summary judgment affidavits pose factual issues, VA has also
moved to strike those affidavits as not meeting the requirements
of Rule 56(e). For the reasons stated in this memorandum opinion
and order, all three motions are denied, except that plaintiff
Edward Keate ("Keate") is dismissed for lack of standing.
This action was filed February 18, 1977 by 21 Marquette Park
area plaintiffs against both VA and the United States Department
of Housing and Urban Development and its Secretary (collectively
"HUD"). HUD was dismissed without prejudice October 14, 1977 when
it agreed, in connection with its Federal Housing Administration
("FHA") insured mortgage program, to institute a purchaser
counseling program intended to promote integration in housing.
On October 3, 1978 plaintiffs filed their Amended Complaint
(the "Complaint"). Count I charged VA, through Service, with
failing to fulfill its affirmative duty to Marquette Park
residents as imposed by Section 3608(c):
All executive departments and agencies shall
administer their programs and activities relating to
housing and urban development in a manner
affirmatively to further the purposes of [the Act,
42 U.S.C. § 3601-3619] and shall cooperate with the
Secretary [of HUD] to further such purposes.
Count II claimed VA had engaged in or condoned housing
discrimination or racial steering*fn1 in violation of various
provisions of the Act. As a result of various 1982 dismissals
only Count I and six representative plaintiffs remain.*fn2
Plaintiffs say Service falls under Section 3608(c)'s phrase
"programs and activities relating to housing and urban
development." It was established as part of the Servicemen's
Readjustment Act of 1944, 58 Stat. 284, and is now codified at
38 U.S.C. § 1801-1829. Under Service the VA guarantees 60% of a
home loan for any qualifying veteran (up to a $27,500 limit),
reducing the down payment that otherwise would have to be made.
VA acknowledges it does not take into account Service's effects
on the integrated or segregated condition of the neighborhoods in
which it operates. Instead VA points to its efforts to assure
Service is operated in a nondiscriminatory manner. Service
collects housing discrimination complaints from participating
veterans, requires institutional participants such as lenders to
certify they do not discriminate, and publicizes those efforts.
In addition it analyzes racial, ethnic and gender data collected
from participating veterans to assure no groups of veterans are
under-represented and institutional participants comply with
their certifications of nondiscriminatory practices.
Plaintiffs challenge Service's operation in one area ("Area A")
that has experienced white flight in the past decade. Area A is a
long (1 1/2 miles), narrow (about 3/16 of a mile) tract of
residential housing in Marquette Park between a major traffic
Western Avenue, on the west and a rail corridor on the east.*fn3 For
comparison's sake plaintiffs have designated as "Area B-1" an
adjacent and identically shaped tract of housing immediately to
the west of Area A.*fn4 Statistics depict the tumultuous nature of
white flight in Area A: During the decade beginning in 1970 its
population changed from 4,101 whites and 2 blacks to 535 whites
and 4,458 blacks. Over the same decade Area B-1 began with
5,193 whites and 1 black and ended with 5,042 whites and 1 black.
Tables 1-6 in the Appendix set out the statistical underpinning
for plaintiffs' argument Service contributed to white flight in
Area A. Over the 7 years for which plaintiffs submitted data, the
rate of turnover in Area A was 111% (that is, homes were sold an
average of 1.11 times per home), while turnover in Area B-1 was
48.5%. Notably in 1976, when 36.9% of the homes in Area A changed
hands (compared with 7.6% in Area B-1), VA financed 28.0% of
those transactions (compared with 6.8 in Area B-1). Put another
way, 1 in 10 homes in Area A changed hands with VA financing in
1976, while at the same time only 1 in 200 homes in Area B-1
changed hands with VA financing.
Many of the plaintiffs reside not in Areas A or B-1 but
elsewhere in the area designated "Area B," made up of Area B-1
and most of the Marquette Park community.*fn5 While the plaintiffs
who live or have lived in Area A claim they have experienced
white flight and have been injured by it, plaintiffs residing in
Area B*fn6 assert a different concern. They do not now live in an
integrated community (their neighborhood is 99.6% white), but
they claim fear of white flight and its attendant neighborhood
deterioration is an obstacle to integration.
On September 17, 1980 Judge Crowley (in the "Opinion,"
500 F. Supp. 460) denied VA's motions to dismiss for lack of standing
(Rule 12(b)(1)) and for failure to state a claim upon which
relief can be granted (Rule 12(b)(6)). Those denials held
plaintiffs had alleged the requisite injuries and violations of
Section 3608(c). Now that discovery has closed, those issues
arise again in proof terms: whether there are disputed issues of
material fact sufficient to preclude judgment in favor of either
side at this time.
VA's Motion To Strike Affidavits
VA's motion that all 13 affidavits be stricken in their
entirety is denied for three reasons:
1. That motion is formally deficient because its
objections sweep much too broadly. In suggesting its
objections apply to every word plaintiffs submitted
via affidavit, VA stretches beyond the point of
credibility any claim it has fulfilled its obligation
to "state specifically the portions of the affidavit
to which objection is being made, and the grounds
therefor." 6 Moore, Moore's Federal Practice ¶
56.11, at 56-1332 (2d ed. 1982). As Perma Research
& Development Co. v. Singer Co., 410 F.2d 572, 579
(2d Cir. 1969) so colorfully put it, VA should "do
more than swing its bludgeon wildly."
2. Even were the motion well-founded, the
appropriate relief would be to strike only parts of
the affidavits. While perhaps "the entire affidavit
may be disregarded if inadmissible matter is so
interwoven or inextricably combined with the
admissible portions that it is impossible, in the
practical sense, to separate them" (Southern Concrete
Co. v. United States Steel Corp., 394 F. Supp. 362,
381 (N.D.Ga. 1975)), the mere assertion of that
proposition does not make it applicable here. VA may
rest assured this Court will consider neither
inadmissible matter nor matter "inextricably
combined" with inadmissible matter.
3. This Court has already stated its ultimate
conclusion summary judgment is inappropriate for
either side, except as to Keate's obvious lack of
standing. In that light judicial (and litigants')
economy precludes issuance of an order forcing
affidavits to be recast to cure merely formal
deficiencies.*fn8 And clearly an opportunity to cure
would be appropriate before foreclosing a formally
deficient party's rights. Although Gordon v. Watson,
622 F.2d 120 (5th Cir. 1980) concerned the failure of
a pro se litigant to comply with the Rule 56(e)
standards, its reasoning applies equally here (id. at
Summary judgment is an excellent device by which
district courts may make expedited dispositions of
those cases in which a trial would be fruitless.
When summary judgment is inappropriate because the
supporting or opposing materials are improper, the
district court has ample discretion to call upon
the parties to remedy the defects, by submitting
supplemental affidavits or otherwise.
For the present, then, formal deficiencies may be
Art. III requires the party who invokes the court's
authority to "show that he personally has suffered
some actual or threatened injury as a result of the
putatively illegal conduct of the defendant,"
Gladstone Realtors v. Village of Bellwood,
441 U.S. 91, 99 [99 S.Ct. 1601, 1607, 60 L.Ed.2d 66] (1979),
and that the injury "fairly can be traced to the
challenged action" and "is likely to be redressed by
a favorable decision," Simon v. Eastern Kentucky
Welfare Rights Org., 426 U.S. 26, 38, 41, 96 S.Ct.
1917, 1924, 1925, 48 L.Ed.2d 450 (1976).
There are also prudential limitations on the exercise of federal
jurisdiction — limitations the Opinion, 500 F. Supp. at 463-64
found inapplicable to this case.
Although the parties have addressed the standing requirements
as threefold — injury, causation and redressability — the most
problematic to plaintiffs is that of causation. Indeed, if
causation is not shown they cannot establish injury and
redressability either. As for injury, whatever injury plaintiffs
assert must be "as a result of the putatively illegal conduct of
the defendant." If the injury is only threatened, as in the case
of plaintiffs residing in Area B, their subjective fear of injury
does not qualify as an injury unless it actually ...