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February 3, 1984


The opinion of the court was delivered by: Shadur, District Judge.


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 artery, 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 to strike tenders to this Court the singularly uninviting task of combing plaintiffs' affidavits for insufficient showings of personal knowledge and for inadmissible hearsay.*fn7 VA sets out dozens of examples of passages allegedly defective in those respects, then asks for not just those passages but for all 13 affidavits to be stricken in their entirety. Moreover VA's supporting memorandum (the only one this Court requested) makes no attempt to anticipate even the first and most obvious response any lawyer would make: VA has not addressed which statements not based on personal knowledge are actually helpful statements of opinion or belief based on an adequate factual foundation (see Fed.R.Evid. 701) and, at least as to some affiants, based on expertise (see Fed.R.Evid. 702). Nor has VA addressed which statements reporting declarations by persons other than the affiant were non-hearsay because they were presented for a purpose other than to show the truth of the matter declared (see Fed.R.Evid. 801(c)). Instead VA has cited every (or nearly every) paragraph containing either the word "believe" or its functional equivalent, or any statement of another's declaration, and has provided a dearth of further analysis.

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[1], 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


VA attacks the sufficiency of plaintiffs' evidence supporting their standing to enforce the Act, while conversely plaintiffs argue the evidence confirms their standing as a matter of law.*fn10 Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) recently summarized the "irreducible minimum" constitutional standing requirements:

  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 ...

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