Cole v. Harris

571 F.2d 590, 187 U.S. App. D.C. 156

Opinions

Opinion for the Court filed by BAZELON, Chief Judge.

Dissenting opinion filed by WILKEY, Circuit Judge.

BAZELON, Chief Judge:

The central issue on appeal is whether appellees, former tenants of the Sky Tower apartments in Southeast Washington, D.C., qualify for relocation assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act.¹ A subsidiary issue is whether, if they qualify, they should receive the full benefits of the Act or only some prorated portion of them. We hold that they qualify for full benefits under the statute.

I. STATEMENT OF THE CASE

Sky Tower was built in the 1950s under a program which provided Federal Housing Administration (FHA) insurance for veterans. It consisted of 19 buildings of garden-type apartments containing 217 one- and two-bedroom units. In 1970, a non-profit corporation purchased Sky Tower and secured a mortgage insured by the Department of Housing and Urban Development (HUD) under Section 236 of the National Housing Act.² The corporation undertook to rehabilitate Sky Tower and transform it into a 150-unit complex of larger apartments to serve low and moderate income families. HUD subsidized the interest rate on the mortgage³ and undertook to pay rent supplements for up to 60 households. In addition, 20 units were to be leased to the National Capital Housing Authority which would re-lease them at public housing rents to eligible households.⁴

By November, 1972, the original and a second general contractor had both defaulted in their performance of the rehabilitation work. The mortgagee then foreclosed on the mortgage and conveyed title to the project to HUD in exchange for mortgage insurance benefits as authorized by statute.⁵ At that time, 8 buildings had been completely rehabilitated, 3 were approximately half rehabilitated, and work had not yet begun on 8 others.

HUD took title to Sky Tower on June 15, 1973, and hired a management firm to operate the project. New month-to-month leases were executed with the tenants under the same terms as formerly. But by September, 1974 the agency had concluded that further rehabilitation was futile; it decided to demolish Sky Tower and sell the vacant land to developers for the construction of single family homes for middle-income families. On September 27, 1974, HUD’s property manager sent notices to the 72 families then residing at Sky Tower informing them of HUD’s decision and giving them 30 days notice to vacate the premises.⁶ Nine of Sky Tower’s 19 buildings were demolished in December, 1974, and January, 1975. Departing tenants who were not in arrears in their rent were given $300 for moving expenses and exempted from paying their last month’s rent. HUD also claims to have assisted them in finding suitable new homes, but that is vigorously disputed by the tenants.⁷

On December 23, 1974, appellees brought suit on behalf of the tenants who had left Sky Towers pursuant to the eviction notices and the few tenants who remained there. They challenged HUD’s decision to raze rather than rehabilitate the complex on several grounds and they sought declaratory and injunctive relief, as well as damages. One of their claims was that HUD had failed to comply with the Uniform Relocation Act.

On January 28, 1975, the District Court issued a temporary restraining order against any further demolition. .On February 7, the TRO was expanded into a preliminary injunction. Severely castigating HUD for reaching an irrational decision and failing “to weigh the human values was created by Congress to protect,”⁸ the trial judge enjoined any further demolition or evictions and ordered HUD to (1) clean up the rubble around the site; (2) restore the undemolished buildings to a condition at least as decent, safe, and sanitary as that existing as of September 17, 1974; (3) permit all former tenants who had left Sky Tower subsequent to September 17,1974, to return to the restored buildings at HUD’s expense; and (4) provide security services adequate to prevent vandalism.⁹ The trial judge noted that these affirmative directives were necessary because “[ojnly by filling the buildings with qualified needy tenants can the project remain viable pending final determination;” otherwise “vandalism, empty apartments and continuing unsafe conditions would, as a practical mat-' ter, effectively accomplish demolition by a process of erosion.”¹⁰ it

HUD appealed from the portions of the preliminary injunction requiring it to restore the buildings and arrange for the return of the tenants. But both the District Court and this court refused to stay the order pending appeal, and, after HUD had complied with its terms, the appeal was dismissed as moot.¹¹

But compliance was slow in coming. The trial judge repeatedly noted HUD’s “continuing definance” of the order and took numerous steps to compel obedience, including finally an order to show cause why the government should not be held in contempt.¹² Six months passed before any tenant was returned to Sky Tower.

As of February, 1975, 17 households were still living at Sky Tower and 55 households had moved out. Most of those who had been displaced had relocated in units that were more expensive, smaller, or otherwise less desirable than the units they had left at Sky Tower. When HUD determined to evict the tenants from Sky Tower, it thrust them into a housing market that could not accommodate them. Instead, it was the acute shortage of housing in the District of Columbia for low-income persons with large families — the very class Sky Tower served — that made the decision to demolish so shocking to the trial judge.

The record shows 'that tenants experienced considerable difficulty in securing replacement housing.¹³ One tenant’s rent increased from $84 to $189.50 — out of a total income of $243 per month for herself and two children. Another had to spend $185 for rent out of a total monthly income of $207 — compared to $98 for rent at Sky Tower.¹⁴

The practical effect of the preliminary injunction on these tenants was notification in July, 1975, that they could return to Sky Tower. HUD would pay their moving expenses and any expenses incurred in breaking their new leases. But the letter also stated:

The future of Sky Tower Apartments is not yet known. As a result of the Court case, HUD is taking a new look at the question of demolition of Sky Tower. If HUD should still decide to demolish, that decision would be reviewed by the Court. While it is possible that Sky Tower will ultimately be demolished, it is also possible that it will not. In the meantime, the Court’s order requiring HUD to rehabilitate the units and move tenants back into the restored units will remain in effect.¹⁵

Faced with this uncertainty and the very real possibility of being uprooted yet again, only 18 families decided to return to Sky Tower.

On September 12,1975, the District Court granted partial summary judgment for the tenants, holding that the tenants who had vacated Sky Tower were entitled to benefits under the Uniform Relocation Act. Specifically, the court entered a declaratory order that any person who was a tenant of Sky Tower on September 27, 1974, and who had vacated his or her apartment as a result of HUD’s notice, was entitled to a prorated portion of the benefits provided under Sec-tion 204 of the Act¹⁶ for the period between the date that tenant left Sky Tower and the date the tenants were permitted to return pursuant to the court’s preliminary injunction (i. e., August 1, 1975). The government took this appeal from the holding that the Uniform Relocation Act applies. The tenants cross-appeal from the termination of benefits on August l.¹⁷

II. APPLICABILITY OF THE UNIFORM RELOCATION ACT

The Uniform Relocation Act was passed in 1970 to establish a uniform policy for the fair and equitable treatment of all persons displaced as a result of any federal or federally assisted program.¹⁸ It replaced a patchwork of piecemeal relocation statutes. For displaced tenants, it provides the following benefits: (1) actual reasonable moving expenses, or a moving expense allowance of up to $300 and a dislocation allowanee of $200,¹⁹ and (2) a payment of the amount necessary to rent a comparable decent, safe, and sanitary dwelling for up to four years, but not to exceed $4,000.²⁰ Most importantly, the Act provides that:

No person shall be required to move from his dwelling on or after January 2, 1971, on account of any Federal project, unless the Federal agency head is satisfied that replacement housing, in accordance with section 4625(c)(3) of this title, is available to such person.²¹

Section 4625(c)(3) specifies that such replacement housing must be “in areas not generally less desirable in regard to public utilities and public and commercial facilities and at rents or prices within the financial means of the families and individuals displaced, . . and reasonably accessible to their places of employment . . . .”

To qualify for benefits under the Act, a tenant must come within the statutory definition of “displaced person.” Reduced to its essential language, that definition reads:

The term “displaced person” means any person who . . . moves from real property ... as a result of the acquisition of such real property, . . . or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency . . ,²²

The section sets out two alternative grounds of eligibility: having moved as a result of the acquisition of property for a federal program or project (the acquisition clause); or having moved as a result of a written order of the acquiring agency to vacate the property for a federal program or project (the notice clause). The District Court ruled that appellees clearly fell within the second or notice definition:

[B]y having come into possession of the Sky Tower Apartment project as the result of a mortgage default, HUD was “the acquiring agency” within the meaning of the Act;

. the notices of September 27, 1974 advising Sky Tower tenants to vacate were the “written order of the acquiring agency to vacate real property” within the meaning of the Act; and the notices aforesaid were “for a program or project undertaken by a federal agency” within the meaning of the Act, to wit, the demolition of Sky Tower . . . ²³

We agree that appellees qualify as “displaced persons” under the notice alternative. It is undisputed that HUD is an “agency,” and that HUD “acquired” Sky Tower within the common meaning of that word. It is undisputed that HUD, having acquired Sky Tower, served upon each tenant a written order to vacate.²⁴ And it is undisputed that some 55 households moved from Sky Tower “as the result of” HUD’s written order.

Moreover, it is clear that the Sky Tower tenants were ordered to vacate their apartments “for a program or project undertaken by a Federal agency,” namely, the demolition of the buildings. Although there is some suggestion in the government’s brief that a “program or project” means only “a federal construction or rehabilitation project, such as public works or urban renewal, ²⁵ there is no warrant m the statute for this limiting interpretation. Obviously, construction and rehabilitation projects will frequently be preceded by demolition. If the government means that demolition is a “project” within the Act when the agency constructs a building in its place but not when the agency simply tears down without building up, the anomaly is obvious. HUD’s mandate is to increase the stock of decent, sanitary housing for low-income families — not to destroy existing housing. Congress clearly did not intend that tenants displaced by a simple decision to wreck their homes would receive less protection than tenants displaced by a constructive urban renewal project.

In sum, appellees qualify as “displaced persons” within the plain terms of the notice clause. This common sense interpretation is reinforced by consideration of the policies of the Relocation Act. A basic purpose of the Act is to ensure that displaced persons do not “suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.”²⁶ Equally important, by providing relocation benefits for persons displaced by programs or projects for the general welfare, the Act ensures that federal officials take the costs of relocation into account before embarking on such programs.

Clearly, the Sky Tower tenants were displaced for a federal project “designed for the benefit of the public as a whole.” In proceedings before the district court, HUD admitted that the demolition of Sky Tower was part of a program to “eliminate blight.” It stated that Sky Tower had become “blighted, vandalized, unattractive and unsafe” and that the area needed to be “revitalized” by the construction of single-family dwellings in accordance with the District of Columbia government’s master plan.²⁷ Thus, unless relocation benefits are paid to the former Sky Tower residents, they will be forced to bear a disproportionate share of the costs of a project for the benefit of the general public, and federal officials will be able to ignore relocation costs in considering whether to proceed with the project.

Although the Sky Tower tenants appear to qualify for benefits under the plain terms of the notice definition, the government nevertheless maintains that this definition is subject to a restriction not apparent from the face of the statute. Specifically, it contends that the tenants do not qualify as “displaced persons” because, at the time Sky Tower was acquired, HUD had not determined to use it for a federal program or project. We find the arguments advanced in support of this implied restriction unpersuasive.

First, the government argues that this restriction is required by Caramico v. Secretary of Dept. of Housing and Urban Development, 509 F.2d 694 (2d Cir. 1974), which held that “random and involuntary” acquisitions of property due to default and foreclosure are not acquisitions for a federal program or project.²⁸ As the government concedes, Caramico was concerned solely with the acquisition definition, rather than the one upon which the Sky Tower tenants rely; the notice definition.²⁹ But it finds significance in the phrase “acquiring agency” contained in the notice definition. Invoking the principle that the same word used in different parts of a statute is presumed to have the same meaning each time it is used,³⁰ it argues that “acquiring agency” should be interpreted to mean an agency making an “acquisition” as that term was construed by Caramico. In other words, that the notice definition, like the acquisition definition, should not apply where property is acquired due to default and foreclosure and only later is committed to use in a federal program or project.

We find little merit in this argument. Aside from the fact that “acquiring agency” is not the same word as “acquisition”— the former is an entity whereas the latter is an event — the government’s argument proves too much. If an “acquisition” as that term is used in the acquisition clause is also required under the notice clause, then the notice alternative would be rendered surplusage.

More fundamentally, the government’s argument fails to probe beyond the holding of Caramico to the rationale of that decision. Because the Relocation Act “contemplates a conscious government decision to dislocate some so that an entire area may benefit,” 509 F.2d 698, Caramico requires that an “acquisition” for purposes of the acquisition clause must be for a federal program or project. By parity of reasoning, the Act requires that an “order to vacate” in terms of the notice clause must be for a federal program or project, a requirement satisfied in this case. The government’s argument that the notice clause requires, in addition, that an agency acquire property for a government program or project, would artificially restrict the coverage of the Act in a way inconsistent with the policies recognized by Caramico.

The government’s second argument, vigorously pursued by the dissent, is that the legislative history of the Relocation Act indicates the notice definition was intended to apply when an agency issues an order to vacate before real property is acquired. Of course, resort may be had to legislative history when a statute is ambiguous, or where the ordinary meaning would lead to absurd or futile results.³¹ But “the plainer the langúage, the more convincing contrary legislative history must be.” United States v. United States Steel Corp., 482 F.2d 439, 444 (7th Cir.), cert. denied, 414 U.S. 909, 94 S.Ct. 229, 38 L.Ed.2d 147 (1973). Since the notice clause is clear on its face, and its common sense meaning is consonant with the purposes of the Act, we would accept the government’s interpretation of the clause only if supported by clear and convincing evidence from the legislative history-

In fact, there is very little legislative history expressly concerned with the meaning of the notice clause and the history that exists is, at best, inconclusive.³² The meager state of the legislative history suggests that in considering the definition of “displaced person” Congress’ attention was focused on the class of persons displaced by acquisitions or anticipated acquisitions of property, rather than the class of persons already living on government property and displaced by a federal program or project. But congressional inattention does not constitute the kind of convincing demonstration of contrary legislative intent required to overcome the plain language of the statute. In fact, considering the purposes of the Relocation Act, we are convinced that if Congress had explicitly considered the problem of persons ordered to vacate government property for a program or project, it would have approved an interpretation of the Act making benefits available for such persons. •

The government’s final argument is that the plain terms of the Uniform Relocation Act cannot be heeded because to do so would impose a financial burden on HUD. The essential point, however, is that any financial burden results not from our construction of the Act but rather from HUD’s own decision to displace people in order to demolish their homes. HUD appears to suggest that if the costs of relocation are too heavy for government funds, the displaced tenants should bear them. But the mandate of the Act is precisely contrary: if the costs are too much for HUD, then the demolition should not take place.³³

III. AMOUNT OF BENEFITS AVAILABLE

The District Court ruled that all persons who were tenants of Sky Tower on September 27, 1974, and who vacated their apartments as a result of HUD’s notice, were entitled to a prorated portion of the benefits provided under Section 204 of the Act³⁴ for the period between the date of their move and August 1, 1975 (or the date on which any such person actually returned to Sky Tower, if earlier than August 1, 1975). August 1 was selected as the cut-off date because by that date all former tenants had been given the opportunity to return to Sky Tower pursuant to the preliminary injunction. As we understand the District Court’s order, the Act’s moving expenses benefit and its requirement that replacement housing be available are fully applicable to appellees; however, under the order appellees are entitled to only a prorated portion of the Act’s rent benefits. As noted supra,³⁵ under the terms of the Act these latter benefits may amount to a maximum of $4000 over a four-year period. Under the District Court’s formula, however, these benefits would be limited to approximately $750 per tenant.

We believe the trial judge was correct to prorate the benefits to those tenants who actually returned to Sky Tower in the summer of 1975. Their return to their original homes made the provision of money towards rent for comparable replacement housing unnecessary. Indeed such payments could not have been reconciled with the statute.³⁶

We cannot agree, however, that benefits to those tenants who did not choose to return to Sky Towers should terminate on the date they were given leave to return. We can understand the trial judge’s disappointment that only 18 of the 55 displaced families chose to return. He felt that the remainder had “walked away from what they brought suit for, and now they want money,” not housing.³⁷ But while this reaction is understandable, it overlooks a critical'fact — the court’s issuance of a preliminary injunction did not grant to appellees the right to return to the quiet enjoyment of their homes; rather, it gave them only the limited right to return pendente lite to a half demolished and decimated community which might still have been demolished in the near future.³⁸ A decision to return would mean giving up new homes found only after arduous search, undergoing the disruption of a second move some nine months after the first, and assuming the very substantial risk of being uprooted yet again should the demolition decision be upheld.

The affidavits in the record amply demonstrate that the tenants were motivated by these concerns, not a desire to “walk away” from the lawsuit.³⁹ Faced with the uncertainty of the situation, it was not unreasonable for some of the families to decline to return. We hold that the offer to return pendente lite pursuant to the preliminary injunction did not cut off the rights of relocation payments of those tenants who did not return.⁴⁰

Accordingly the decision below is

Affirmed in part and reversed in part.

1 . 42 U.S.C. § 4601 et seq. (1970) (hereinafter referred to as the Uniform Relocation Act).

2 . 12 U.S.C. § 1715Z-1 (1970).

3 . Pursuant to § 236, 12 U.S.C. § 1715z-l (1970).

4 . Pursuant to 42 U.S.C. § 1401 et seq. (1970).

5 . 12 U.S.C. §§ 1713(g) and (k) (1970).

6 . The deadline was later extended to January 31, 1975.

7 . See, e. g., JA 19, 21, 24, 26, 27, 32, 34, 37, 40, 64.

8 . Cole v. Lynn, 389 F.Supp. 99, 105 (D.D.C. 1975).

9 . Id. at 106.

10 . Id. at 105.

11 . Cole v. Lynn, No. 75-1543 (D.C. Cir., dismissed Sept. 29, 1975).

12 . JA 79. See also Cole v. Hills, 396 F.Supp. 1235 (D.D.C.1975).

13 . See note 7 supra.

14 . JA 64 and 29.

15 . Joint letter sent to all former tenants of Sky Tower, July 16, 1975.

16 . 42 U.S.C. § 4624 (1970).

17 . Subsequently, the District Court, with the consent of the parties, remanded the question of the disposition of Sky Tower to HUD for reconsideration in light of the concerns expressed in the court’s opinion on the preliminary injunction. On December 17, 1976, HUD reported to the court that it had decided not to demolish the buildings but rather to transfer them to the District of Columbia, with HUD continuing to contribute substantial rent subsidies.

18 . 42 U.S.C. § 4621 (1970).

19 . 42 U.S.C. § 4622(a)(1) and 4622(b) (1970).

20 . 42 U.S.C. § 4624(1) (1970). The payment is equal to the difference between the displaced person’s former rent and the rent for a comparable replacement dwelling. 24 C.F.R. § 42.-95(c) (1977). The Act also offers, as an alternative not relevant here, up to $4000 towards a downpayment on the purchase of a dwelling. 42 U.S.C. § 4624(2) (1970).

21 . 42 U.S.C. § 4626(b) (1970).

22 . 42 U.S.C. § 4601(6) (1970). Section 4601(6) reads in full:

The term “displaced person” means any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as the result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance; and solely for the purposes of sections 4622(a) and (b) and 4625 of this title, as a result of the acquisition of or as the result of the written order of the acquiring agency to vacate other real property, on which such person conducts a business or farm operation, for such program or project.

23 . JA 89.

24 . Letter sent to all tenants of Sky Tower, Sept. 27, 1974.

25 . Government brief at 15.

²⁶

27 . Government memorandum, quoted 396 F.Supp. at 1236. This purpose distinguishes the instant case from Alexander v. U. S. Dept. of Housing and Urban Development, 555 F.2d 166 (7th Cir. 1977). There the decision to terminate, but not demolish, a housing project was held not to be a federal program or project. HUD had made no plans for the future of the buildings. The court said,

We fail to see how a decision to terminate a project can itself become a project in the absence of some indication that the decision to terminate and the order to vacate constitute a prelude to some governmental undertaking amounting to a program designed for the benefit of the public as a whole.

Id. at 170. (emphasis added)

28 . Because we conclude that appellees qualify as “displaced persons” under the notice clause, we need not reach the difficult question whether they also qualify under the acquisition clause. Thus, although we agree with Caramico that the acquisition clause requires an acquisition for a federal program or project, 509 F.2d at 697, we express no opinion as to whether HUD’s acquisition of Sky Tower, or any similar acquisition, can be so described.

29 . Harris v. Lynn, 411 F.Supp. 692 (E.D.Mo. 1976), aff'd, 555 F.2d 1357, 1359 (8th Cir. 1977), relied upon by the dissent, also appears only to construe the acquisition clause of the Relocation Act. To the extent that that case can be interpreted as requiring an acquisition for a federal program or project under the notice clause, we disagree.

30 . Citing Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87, 55 S.Ct. 50, 79 L.Ed. 211 (1934).

31 . See, e. g., United States v. Public Utilities Comm., 345 U.S. 295, 315, 73 S.Ct. 706, 97 L.Ed. 1020 (1953); United States v. Missouri Pac. R. Co., 278 U.S. 269, 278, 49 S.Ct. 133, 73 L.Ed. 322 (1929).

32 . The dissent emphasizes the fact that the original Senate bill defined a “displaced person” as one who moves “as a result of the acquisition or reasonable expectation of acquisition.” 115 Cong. Rec. 31372 (1969). The dissent concludes that in adopting the House bill, which deleted the reference to “reasonable expectation of acquisition,” and added the notice clause, Congress intended only “to provide a more concrete standard than ‘reasonable expectation’ of acquisition.” Dis. op. at 175 of 187 U.S.App.D.C., at 609 of 571 F.2d. However, there is little evidence in the legislative history that sheds light on Congress’ intent in enacting the House version, and what evidence exists is ambiguous.

The House Report contains only one sentence directly applicable to the notice clause. This says: “If a person moves as the result of such notice to vacate, it makes no difference whether or not the real property actually is acquired.” H.R.Rep.No.1656, 91st Cong., 2d Sess. (1970), reprinted in [1970] U.S.Code Cong. & Admin.News pp. 5850, 5853. This implies that one circumstance in which the notice clause applies is when an agency orders someone to vacate property before the agency acquires it. But the Report does not say that this is the only situation in which the notice clause applies. In fact, the conditional language of the quoted sentence implies just the opposite.

The dissent also relies on a statement in an executive branch memorandum stating that the Senate version was “broader” than the House version. Dis. op. at 174 of 187 U.S.App.D.C., at 608 of 571 F.2d, quoting 116 Cong.Rec. 42139 (1970). This too is inconclusive. The “reasonable expectation of acquisition” language in the Senate bill would indeed cover some situations not covered by the notice definition, i. e., where the government has not acquired property and has not sent notice but there is a reasonable expectation of acquisition. But it does not necessarily follow that Congress, as opposed to the executive, intended the notice definition to be narrower than the Senate definition in all respects.

We are equally unpersuaded by the dissent’s citation to other sections of the Relocation Act referring to persons displaced because of “acquisitions.” Dis. op. at 175 of 187 U.S.App.D.C., at 609 of 571 F.2d. This shorthand cross-reference is obviously more convenient than repeating the entire definition. The explanation for the particular choice of words most consistent with the purpose of the Act is that Congress assumed displacements would occur more frequently from acquisitions than from notices to vacate government property.

Similarly misguided is the dissent’s reliance on § 217 of the Act, 42 U.S.C. § 4637 (1970). The dissent concludes that there would have been no need to enact § 217 if Congress had intended the notice clause to have its common sense meaning, since persons displaced under the programs referred to in this section “would undoubtedly have been given notices to vacate ‘for’ these projects and would have been qualified under the notice clause . ..” Dis. op. at 178 of 187 U.S.App.D.C., at 612 of 571 F.2d. The basis for this assertion is not apparent. In fact, written notice is not required by either program referred to in § 217. See 42 U.S.C. § 1455(c)(1) (1970) (title I of the Housing Act of 1949); 42 U.S.C. § 3307 (1970) (title I of the Demonstration Cities and Metropolitan Development Act of 1966). Congress could quite reasonably conclude that even under the notice definition it was uncertain that persons displaced by these programs would be eligible for benefits. The explanation for § 217 most congruent with the legislative purpose is that it was enacted “out of uncertainty, understandable caution, and a desire to avoid litigation.” National Petroleum Refiners Ass’n v. FTC, 157 U.S.App.D.C. 83, 107, 482 F.2d 672, 696 (1973), cert. denied, 415 U.S. 951, 94 S.Ct. 1475, 39 L.Ed.2d 567 (1974).

33 .“It is no longer proper to require the displaced person, rather than the displacing project, to bear the cost of relocation. If this cost becomes prohibitive and necessitates some re-thinking about a particular project, then so be it, just as if the cost of land or labor and materials were prohibitive.” Abramowitz, Uniform Relocation Act Defended, 29 Journal of Housing 279, 281 (1972).

It should be noted that, in a situation like the instant one, where there is a shortage of suitable replacement housing, see 42 U.S.C. §§ 4626(b) and 4625(c)(3) (1970), the costs of relocation to be borne by HUD might include the expense of constructing replacement housing. Section 4626(a) provides:

If a federal project cannot proceed to actual construction because comparable replacement sale or rental housing is not available, and the head of the Federal agency determines that such housing cannot otherwise be made available he may take such action as is necessary or appropriate to provide such housing by use of funds authorized for such project.

³⁴

35 . See n. 19 supra and accompanying text.

³⁶

37 . The following colloquy took place:

THE COURT: No, I am not talking about the returning tenants. I am talking about the majority of your class that doesn’t want to come back — that is the group I am talking about. The great bulk of these people listed in the report don’t want to have anything to do with Skytower. They walked away from what they brought suit for, and now they want money, and that is where we are at.

MRS. ROISMAN: Well—

THE COURT: And I want to know how that is going to be handled.

MRS. ROISMAN: Well, to be fair, Your Honor, I do want to say that it is not that they have walked away—

THE COURT: They certainly have. They certainly have, and it has been a great disappointment after the extraordinary effort the Court made on representations as to their need — they all walked away from it.

Now I don’t want to argue that, but they did.

JA 99.

38 . This message was made explicit in the letter, approved by counsel for both sides, sent to all former tenants pursuant to the preliminary injunction. See text at note 14 supra.

39 . JA 49, 72, 84.

40 . HUD’s own Handbook on providing replacement housing states: “In no case shall referral be made to a unit from which it can reasonably be anticipated that the family or individual may subsequently be displaced.” HUD Relocation Handbook 1371.1 REV. at 2-15 (Feb., 1975). The offer to return to Sky Tower did not satisfy this requirement.