2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-19-2003

Brown v. Phila Housing Auth

Precedential or Non-Precedential: Precedential

Docket No. 03-1061

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PRECEDENTIAL

Filed November 19, 2003

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-1061

ERNEST and EUNICE BROWN; and their child, EARNEST

LAMAR; ROBERTA DOYLE, and her children; SANDRADENNIS; JOANNE; JIMMY; and MYRA, on behalf of

themselves and all others similarly situated

v.

PHILADELPHIA HOUSING AUTHORITY; GILBERT STEIN,

sued individually and in his official capacity as Executive

Director, Philadelphia Housing Authority; WILLIAM L.

RAFSKY, sued individually and in his official capacity as

Acting Chairman, Board of Directors, Philadelphia

Housing Authority; MITCHELL SMITH, JR., sued

individually and in his official capacity as Housing

Manager, Richard Allen Homes; KENNETH BLACKMUN,

sued individually and in his official capacity as Assistant

Housing Manager, Richard Allen Homes; EDWARD A.

GREEN, sued individually and in his official capacity as

Landlord and Tenant Officer.

Philadelphia Housing Authority,

Appellant.

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

Civil Action No. 72-2803

District Judge: Honorable Marvin Katz

Argued October 2, 2003

Before: ALITO, WEIS, and GARTH, Circuit Judges
(Opinion Filed: November 19, 2003)

Alan C. Kessler

Susan J. French (Argued)

Virginia Lynn Hogben

Wolf, Block, Schorr & SolisCohen LLP

1650 Arch Street, 22nd Floor

Philadelphia, Pennsylvania

19103-2097

Attorneys for Appellant,

Philadelphia Housing Authority

Paul A. Brooks (Argued)

George Gould

Michael Donahue

Community Legal Services, Inc.

1424 Chestnut Street

Philadelphia, Pennsylvania 19102

Attorneys for Appellee

OPINION OF THE COURT

GARTH, Circuit Judge:

This appeal presents us with the question: should a

Consent Decree entered in 1974 be vacated (1) where

statutes and regulations have been enacted and

promulgated curing the alleged due process deficiencies

addressed by the Consent Decree, and (2) where no

originally named plaintiff remains a party to the Complaint

and Consent Decree and no class was ever certified? 

In this action brought by appellant Philadelphia Housing

Authority and others (collectively “PHA”) to vacate the June

14, 1974 Consent Decree, appellees Ernest and Eunice

Brown and others (hereinafter “the Browns”) argue through

their counsel that a class was certified “by implication”

when the Consent Decree was entered. They claim that

there were subsequent modifications to that Decree and no

objections were raised by PHA during any of the intervening

years. The Browns contend that PHA always treated the

2
action as a de facto class action. They therefore argue that

PHA has waived any mootness defense. 

On the other hand, PHA charges that the District Court

erred in its ruling on the merits which rejected PHA’s

motion to vacate the Consent Decree, and that the instant

appeal is moot. Thus, PHA asserts that we lack subject

matter jurisdiction. PHA emphasizes that subject matter

jurisdiction cannot be waived and cannot be created even

where the parties have expressly consented to do so. 

We agree with PHA that this appeal is moot and that the

1974 Consent Decree entered by the District Court should

be vacated. Subject matter jurisdiction is lacking now, and

became so at the time the then-Plaintiffs terminated their

tenancies (see discussion, infra). The lack of subject matter

jurisdiction may be raised even at this late stage. 

Accordingly, we are obliged to reverse the District Court’s

Order which denied PHA’s motion to vacate the 1974

Consent Decree and which was entered on December 16,

2002. In doing so, we will direct that the proceeding be

remanded to the District Court so that the District Court

may vacate the 1974 Consent Decree and dismiss the

Complaint filed by the Browns in 1972.

I.

The present action, which commenced with PHA filing the

October 15, 2002 motion to vacate the Consent Decree, had

its genesis in the action filed by the Browns on October 21,

1972. That Complaint, which was filed as a class action

Complaint, alleged that the Browns were tenants of PHA

and that PHA had evicted them and other PHA tenants with

little, if any, notice and no opportunity for a hearing, all in

violation of their due process rights. The Browns alleged

that PHA had violated certain HUD Circulars, which gave

tenants the right to notice and a grievance hearing before

PHA could send lease termination notices.1 They therefore

claimed that they were denied due process because they did

not receive the necessary notice or grievance procedure

1. See HUD Circulars 7465.8 and 7465.9 (eff. Feb. 22, 1971), now

codified at 24 C.F.R. §§ 966.1-966.7 & 966.50-966.57. 

3
before they were evicted. The case was treated by the

District Court as a class action, although no class was ever

certified. Nor was any motion for certification ever filed. 

On June 14, 1974, with the approval of the District

Court, the parties, the Browns and PHA, entered into a

Consent Decree setting forth notice and grievance

procedures to be followed by PHA when it terminated leases

or evicted tenants. The provisions in the Consent Decree

were based on tenant rights set forth in the aforementioned

HUD Circulars. PHA asserts, without contradiction, that

the Browns are no longer PHA tenants, and were not PHA

tenants when the Consent Decree was entered. On April 17,

1978, the District Court approved certain agreed-upon

amendments to the Consent Decree, which are not relevant

to this appeal. The Consent Decree has not been altered

since that date. 

On October 15, 2002, PHA moved to vacate the Consent

Decree pursuant to Fed. R. Civ. P. 60(b)(6), arguing that

certain 1975 and 1991 HUD regulations and a 1983 statute

constituted significant changes warranting vacatur.2 See

Building & Construction Trades Council v. NLRB, 64 F.3d

880 (3d Cir. 1995); Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367, 378 (1992). PHA claimed that the amended

regulations and statute provided broader protections to

PHA tenants than did the Consent Decree. The Browns

opposed vacatur of the Consent Decree, contending that it

2. HUD promulgated regulations governing public housing tenant

grievance rights and procedures in 1975 and in 1991. The 1975 HUD

regulations set forth notice provisions for lease termination. Those

provisions required the notice to state the reason(s) for lease termination

and required that the tenant be informed of the right to request a

grievance hearing. The 1975 HUD regulations also set forth the criteria

for grievance procedures to be implemented by public housing agencies,

and required tenants to initially attempt informal settlements with the

public housing agency, before requesting a grievance hearing. 

The 1991 HUD regulations promulgated certain provisions concerning

pre-eviction notice and tenants’ post-termination grievance rights. In

addition, Congress modified the U.S. Housing Act in 1983. The 1983

Congressional legislation set forth administrative grievance procedure

regulations and requirements for notice and conditions of lease

termination. See 42 U.S.C. §§ 1437d(k)-(l). 

4
did not conflict with HUD regulations or any current federal

law, and that the law governing a PHA tenant’s grievance

rights had not changed. 

The District Court examined whether a “conflict” existed

between the terms of the Consent Decree and the

provisions of the subsequent federal regulations and

statutes, holding that vacatur could be ordered only if such

a conflict existed. Citing Building & Construction Trades

Council v. NLRB, 64 F.3d 880, 888 (3d Cir. 1995), the

District Court held that there was no conflict between the

Consent Decree and subsequent statutes and regulations,

and that in a number of instances PHA had not complied

with the Consent Decree in its entirety. On those grounds,

the District Court denied PHA’s motion to vacate the

Consent Decree. 

PHA timely appealed from the District Court’s denial of

its motion to vacate the Consent Decree.

II.

We have jurisdiction to hear this appeal pursuant to 28

U.S.C. § 1292(a)(1), as an appeal from an interlocutory

order refusing to dissolve or modify an injunction. We

review a district court’s denial of a Rule 60(b) motion for

abuse of discretion. See Reform Party of Allegheny County

v. Allegheny County Dept. of Elections, 174 F.3d 305, 311

(3d Cir. 1999); see also, United States v. WheelingPittsburgh Steel Corp., 866 F.2d 57, 59 (3d Cir. 1988). 

III.

Our focus is upon the argument, first raised by PHA in

its reply brief,3 that this appeal is moot because none of the

3. At oral argument, counsel for PHA was asked why PHA failed to raise

the mootness issue in the nearly 30 years since the Consent Decree was

entered, and why the issue was not raised in PHA’s moving brief. PHA’s

counsel responded that it 

was retained by the [Philadelphia] Housing Authority in 2002 to look

at the issue of whether the Brown[’s] Consent Decree could be

vacated. In doing so, we prepared the motion that we filed in the

5
original Plaintiffs who brought the lawsuit currently reside

in PHA housing.4 In response, the Browns admit that the

class was never formally certified by the District Court, but

urge this Court to adopt a doctrine of “implied class

certification.” In addition, the Browns contend that because

PHA had not sought vacatur of the Consent Decree on

mootness grounds during the previous 30 years, PHA has

waived the right to make this argument now. 

The doctrine of mootness requires that “an actual

controversy must be extant at all stages of review, not

merely at the time the complaint is filed.” New Jersey

Turnpike Authority v. Jersey Cent. Power, 772 F.2d 25, 31

(3d Cir. 1985) (citing Steffel v. Thompson, 415 U.S. 452,

459 n. 10 (1974); Roe v. Wade, 410 U.S. 113, 125 (1973);

District Court [to vacate the Consent Decree] and after the District

Court ruled and denied our motion to vacate the Consent Decree,

Appellees’ counsel submitted a Petition for Counsel Fees. And in

reviewing that Petition for Counsel Fees, they supplied us with a[n]

invoice, if you will, or a statement of the services that they

performed in responding to our motion. And when we looked at that

statement, the name of the client identified on the statement was

not any of the named plaintiffs. 

So at that point, we called appellees’ counsel and said, “who is

this person” and at that point in time appellees’ counsel said, “Well

they’re a tenant of PHA who has a grievance with PHA. We no longer

represent the named plaintiffs in this case and we don’t know where

they are.” So, at that point, the next thing that we filed was our

appeal brief. . . . We didn’t list it as an issue [in our moving brief]

because at that point we hadn’t confirmed all of the facts. We went

back to the client to confirm that none of the named plaintiffs lived

in PHA housing presently, and investigated to make sure that — if

we asserted that there was no subject matter of jurisdiction — that

we were correct in doing so. 

In light of the sequence of events related by counsel for PHA, it was

evident that the issue of mootness was never raised by PHA in the

District Court. 

4. Counsel for the Browns admitted at oral argument that after the

Complaint was filled in 1972 — but before the Consent Decree was

entered into in 1974 — the Browns “subsequently moved out” of PHA

housing. 

6
Golden v. Zwickler, 394 U.S. 103, 108 (1969)). Mootness

has two aspects: (1) the issues presented are no longer live,

or (2) the parties lack a cognizable interest in the outcome.

Id. (citing United States Parole Commission v. Geraghty, 445

U.S. 388, 396 (1980)). In the class action context, special

mootness rules apply. “Once a class has been certified,

mooting of the class representative’s claims does not moot

the entire action because the class acquires a legal status

separate from the interest asserted by its named plaintiff.”

Lusardi v. Xerox Corp., 975 F.2d 964, 974 (3d Cir. 1992)

(internal quotations omitted). Litigation may continue

because the stake of other class members is attributed to

the class representative.5 However “when claims of the

named plaintiffs become moot before class certification,

dismissal of the action is required.” Id. (internal citations

omitted). 

We conclude that this appeal is moot because it is

uncontradicted that the Browns are not tenants in PHA

housing. Their failure to meet this threshold status

eliminates any case or controversy they might have

concerning notice and hearing procedures for PHA tenants

and thus precludes subject matter jurisdiction on this

appeal. The record before us is unclear as to the time or

times when the Browns were PHA tenants and therefore

available to be actionable parties to the Complaint.

Nevertheless, we are satisfied that if indeed the Browns

were not tenants at the time the Complaint was filed or

when the Consent Decree was entered, as is conceded,

subject matter jurisdiction was also lacking in the District

Court. 

However, the Browns urge us to adopt a doctrine of

“implied class certification.” They refer us to other courts,

which have seen fit to certify a case as a class action at the

appellate level even though no Fed. R. Civ. P. 23 analysis

was conducted at the district level. See, e.g., Navarro-Ayala

5. The special rules of mootness in the class action context are based on

the theory that a controversy may continue to exist between a named

defendant and a member of a certified class represented by a named

plaintiff, even after the claim of the named plaintiff has become moot.

Sosna v. Iowa, 419 U.S. 393, 399 (1975). 

7
v. Hernandez Colon, 951 F.2d 1325 (1st Cir. 1991), Bing v.

Roadway Express, Inc., 485 F.2d 441 (5th Cir. 1973),

Senter v. General Motors Corp., 532 F. 2d 511 (6th Cir.

1976), and Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001),

cert denied, 534 U.S. 1004 (2002). 

Rule 23 prescribes its own prerequisites to a class action

certification: “(1) the class is so numerous that joinder of all

members is impracticable, (2) there are questions of law or

fact common to the class, (3) the claims or defenses of the

representative parties are typical of the claims or defenses

of the class, and (4) the representative parties will fairly and

adequately protect the interests of the class.” Fed. R. Civ. P.

23(a). These prerequisites must be satisfied, and in addition

other findings are required by the district court pertaining

to whether questions of law or fact common to the members

of the class predominate over questions affecting only

individual members and whether a class action is superior

to other available methods. See Fed. R. Civ. P. 23(b)(3).

Additional required findings include the interest of

members of the class in individually controlling the

prosecution or defense of separate actions; the extent and

nature of any litigation concerning the controversy already

commenced by or against members of the class; the

desirability or undesirability of concentrating the litigation

of the claims in the particular forum; and the difficulties

likely to be encountered in the management of a class

action. See id. 

Because these findings are essential to the maintenance

of a class action, the Rule requires that “[a]s soon as

practicable after the commencement of an action brought

as a class action, the court shall determine by order

whether it is to be so maintained.” Fed. R. Civ. P. 23(c)(1).

And, one of the primary functions of the District Court is to

“describe those whom the court finds to be members of the

class,” and to specify who is to get notice — a notice which

must be given to all members of the class at all relevant

times. Fed. R. Civ. P. 23(c)(3). 

The importance of this Rule and adherence to it cannot

be underestimated. We observe that since the class action

Rule was initially promulgated there has been extensive

study devoted to the amendment of this Rule by the Rules

8
and Practice Committees of the Judicial Conference of the

United States. These efforts have led to additional

provisions of the Rule, which both reinforce and clarify its

operation. See, e.g., Report of Proposed Amendments to

Federal Rule of Civil Procedure 23 (effective December 1,

2003). Significantly, many of the new requirements

strengthen particular provisions of the Rule, but none have

indicated any tendency to lessen the Rule’s prescriptions to

include an “implied class certification” devoid of the

mandated fact findings and requirements which are the

foundation of Rule 23. 

Accordingly, we are neither attracted to, nor persuaded

by, the cases cited to us by the Browns. Two of those cases

— Bing v. Roadway Express, Inc., 485 F.2d 441 (5th Cir.

1973) and Senter v. General Motors Corp., 532 F. 2d 511

(6th Cir. 1976) — were filed before the Supreme Court

issued its decision in Pasadena City Bd. of Educ. v.

Spangler, 427 U.S. 424 (1976), in which it summarily

dismissed any doctrine of “implied class certification” in

dicta:

[Defendant’s arguments] that this litigation was filed as

a class action, that all the parties have until now

treated it as a class action, and that the failure to

obtain the class certification required under Rule 23 is

merely the absence of a meaningless “verbal recital”

which counsel insists should have no effect on the

facts of this case . . . overlook the fact that the named

parties whom counsel originally undertook to represent

in this litigation no longer have any stake in its

outcome. As to them the case is clearly moot. 

Spangler, 427 U.S. at 430. The remaining two cases,

Navarro-Ayala and Bush, are clearly distinguishable. 

In Navarro-Ayala v. Hernandez Colon, 951 F.2d 1325 (1st

Cir. 1991), the First Circuit addressed a situation similar to

that addressed by the Supreme Court in Spangler, but

declined to follow the Supreme Court’s lead in dismissing

the argument that a class action can be certified “by

implication.” 

Navarro-Ayala brought suit on behalf of himself and the

other inpatients at a public mental health institution in

9
Puerto Rico in 1974. Id. at 1327. The action named the

mental health institution and other officials as defendants.

Id. No class was certified, and before trial in 1977 the

parties executed a stipulation that ended the dispute

(although no notice of the dispute was given to patients or

their guardians), and Navarro-Ayala was transferred to a

new facility. Id. at 1330. A Special Master was appointed to

monitor the defendants’ compliance with the stipulation. Id.

at 1329. 

More than ten years after the stipulation was entered,

Navarro-Ayala alleged that he and other patients at the new

facility were not receiving adequate treatment. Id. at 1331.

In response, the defendants disputed the court’s

jurisdiction over the new facility because Navarro-Ayala’s

1974 suit was not a class action. Id. The district court

found that the requirements for class certification were met

when the stipulation was approved by the court in 1977,

and no notice to the class was required. Id. at 1333. As

PHA points out, Navarro-Ayala was clearly a member of the

class at the time the district court’s order was entered and

it was never charged that Navarro-Ayala’s claim or the case

itself was moot. 

The First Circuit distinguished Navarro-Ayala from

Spangler, finding it significant that Navarro-Ayala expressly

sued on behalf of a group of persons similarly situated and

that the 1977 stipulation described the class members and

provided for class-wide relief. Id. at 1335. That court also

found it relevant that in Spangler the class certification

issue was raised for the first time on appeal, whereas in

Navarro-Ayala defendants had contested the class action

status of the litigation before the district court. Id.

To us, these are distinctions without differences. The

First Circuit in Navarro-Ayala failed to heed the Supreme

Court’s pointed indication in Spangler that where a class

was not certified by the district court and the named

plaintiff had lost his stake in the outcome of the litigation,

the case is moot. Moreover, as PHA contends and as we

agree, Navarro-Ayala is inapposite because mootness was

not at issue there, as it is here. Thus, Navarro-Ayala is

unpersuasive. 

10
In Doe v. Bush, 261 F.3d 1037 (11th Cir. 2001), cert

denied, 534 U.S. 1004 (2002), the final case cited by the

Browns in favor of a doctrine of “implied class certification,”

plaintiffs were thirteen developmentally disabled people on

the waiting list for entry into intermediate care facilities

who brought a § 1983 suit on behalf of themselves and

those similarly situated against officials of the Florida

Department of Health and Rehabilitative Services in 1992,

alleging that the long waiting lists violated the Medicaid Act

and the Social Security Act. 261 F.3d at 1041-42. Plaintiffs

filed a motion for class certification in 1992, but the court

took no action on this request for four years. In 1996, the

magistrate judge issued a report and recommendation that

the class should be certified. Id. at 1043. Two days later,

the district court granted summary judgment for the

plaintiffs and denied as moot all of the plaintiffs’ pending

motions — including, presumably, the motion for class

certification. Id. at 1043. The Eleventh Circuit affirmed. Id.

Thereafter, plaintiffs sought to enforce the summary

judgment order by filing a motion for contempt, the district

court found the defendants in contempt, and the

defendants appealed, claiming that they were not obligated

to comply with the order on a class-wide basis, because the

suit was never certified as a class action. Id. at 1048. Then

in 2000, the district court, sua sponte and without notice

to the parties, entered an order adopting the magistrate

judge’s report and recommendation and certifying the class.

Id. at 1043. 

The Eleventh Circuit concluded that “although we

recognize that the district court failed to properly certify a

class, we conclude, nevertheless, that an “implied class”

exists.” Id. at 1049. We find Bush inapplicable here, not

only because no issue was ever raised in Bush that the

plaintiffs’ claims had become moot, but also because the

plaintiffs in Bush had sought certification, the magistrate

judge had recommended certification, and the district court

had certified the class. Here, class certification was neither

sought by the Browns nor granted by the District Court,

and none of the requirements and findings necessary to

certify a class have ever been met or made here. 

11
In particular, one of the more basic requirements of class

certification — the requirement that the district court

define or identify the class — has never been satisfied in

this case. PHA points out that 

the Supreme Court in Board of School Commissioners

v. Jacobs, 420 U.S. 129 (1975), held that for an order

to constitute a class certification sufficient to protect a

case from mootness, the order must, at a minimum,

define the class. 420 U.S. at 130. As [the Browns’]

appellee counsel themselves concede (Letter Brief at 2)

even the implied [class] certification cases on which

they rely require that the court’s orders define or

identify the class. See, e.g., Doe, 261 F.3d at 1051;

Navarro-Ayala, 951 F.2d at 1334-35; Senter, 532 F.3d

at 523; Bing, 485 F.2d at 447-48. 

PHA Letter Brief at 5. We agree that, among other

fundamental requirements, a class definition is missing

from this proceeding and the record. Even if the record

could supply that definition and cure the other findings

that are missing from a proper class certification — it does

not do so. 

Hence, we hold that no implied class certification

doctrine can take the place of, or be deemed a substitute

for, an appropriate grant of class certification. Instead, the

requirements and findings of Rule 23 must be met.

IV

We have held in Part III above that at the time the

Consent Decree was entered in 1974 the Browns were not

parties, nor had any class been certified. PHA has therefore

asserted that we have no subject matter jurisdiction. The

Browns, as we have noted, claim that PHA’s argument of

mootness/no subject matter jurisdiction has been waived

because PHA, through the years following 1974,

participated as a party in the proceedings without objection

and without raising any issue of mootness or lack of

jurisdiction. 

The difficulty with the Browns’ argument is that subject

matter jurisdiction is not a waiveable defense. Indeed, it is

12
well-settled that a party can never waive lack of subject

matter jurisdiction. The Supreme Court has noted that

Subject-matter jurisdiction, then, is an Art. III as well

as a statutory requirement; it functions as a restriction

on federal power, and contributes to the

characterization of the federal sovereign. Certain legal

consequences directly follow from this. For example, no

action of the parties can confer subject-matter

jurisdiction upon a federal court. Thus, the consent of

the parties is irrelevant, principles of estoppel do not

apply, and a party does not waive the requirement by

failing to challenge jurisdiction early in the

proceedings. 

Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites

de Guinee, 456 U.S. 694, 702 (1982) (internal citations

omitted). See also, Ruhrgas AG v. Marathon Oil Co., 526

U.S. 574 (1999) (“subject-matter jurisdiction . . . is

nonwaivable and delimits federal-court power.”); Okereke v.

United States, 307 F.3d 117, 120 fn. 1 (3d Cir. 2002) (citing

Pennsylvania v. Union Gas Co., 491 U.S. 1, 26 (1989)

(Stevens, J., concurring) (“the cases are legion holding that

a party may not waive a defect in subject-matter

jurisdiction or invoke federal jurisdiction simply by

consent.”)); Mennen Co. v. Atlantic Mut. Ins. Co., 147 F.3d

287, 293-94 (3d Cir. 1998) (“it is axiomatic that a party

may not confer or defeat jurisdiction by mere pleading.”);

Board of Trustees of Trucking Employees of North Jersey

Welfare Fund, Inc. - Pension Fund v. Centra, 983 F.2d 495,

506 fn. 12 (3d Cir. 1992). Indeed, Fed. R. Civ. P. 12(h)(3)

provides, “[w]henever it appears . . . that the court lacks

jurisdiction of the subject matter, the court shall dismiss

the action.” 

It is of no moment, therefore, that the defense of lack of

subject matter jurisdiction was raised by PHA for the first

time in its reply brief on appeal. See note 3, supra. The fact

that PHA did not raise its mootness claim earlier in the

proceedings cannot and does not confer jurisdiction on this

Court, nor in the absence of a live Article III controversy

can it provide District Court jurisdiction in this case.

Defenses relating to subject matter jurisdiction can be

raised at any time. Sansom Committee by Cook v. Lynn, 735

13
F.2d 1535, 1538 (3d Cir. 1984) (defense that district court

lacked subject matter jurisdiction to enforce consent decree

may be raised for the first time on appeal). 

Accordingly, we reject the Browns’ waiver argument

because the Browns are not tenants in PHA housing, no

class was ever certified, no Article III controversy exists, the

instant appeal is moot, and subject matter jurisdiction is

lacking.

V

In United States v. Munsingwear, Inc., 340 U.S. 36

(1950), the Supreme Court addressed a situation in which

a suit was mooted during its pendency. The Court wrote:

The established practice of the Court in dealing with a

civil case from a court in the federal system which has

become moot while on its way here or pending our

decision on the merits is to reverse or vacate the

judgment below and remand with a direction to

dismiss. That was said in Duke Power Co. v.

Greenwood County, 299 U.S. 259 (1936), to be ‘the

duty of the appellate court.’

Munsingwear, Inc., 340 U.S. at 40. We will reverse the

District Court’s December 13, 2002 order refusing to vacate

the Consent Decree, remand the case to the District Court,

and direct the District Court to vacate the Consent Decree

and dismiss the case.6

6. In normal course, having held that the case was moot and that we

lacked subject matter jurisdiction, we would proceed no further.

Firestone Tire & Rubber Co. v. Risjord, 450 U.S. 1028 (1981). Here,

however, we digress from that principle because we believe that some

guidance should be afforded to the bench and bar pertaining to the test

for determining when a court ordered decree challenged under Rule 60(b)

should be set aside as having lost its utility. The District Court in this

case looked to whether a conflict existed between the provisions of the

Consent Decree and the subsequently enacted regulations and statute.

Having determined that no conflict existed, the Consent Decree’s

operation was continued and the challenge to it was rejected. 

14
A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

Under the teachings found in Building & Construction Trades Council

v. NLRB, 64 F.3d 880 (3d Cir. 1995), and Rufo v. Inmates of Suffolk

County Jail, 502 U.S. 367, 378 (1992), there need not be a “conflict” to

justify vacatur of a consent decree; a “significant change” with no

attendant conflict constitutes sufficient grounds for vacatur. Our review

of the federal statute and regulations promulgated after 1974 reveals

that not only did they significantly change the relevant due process

landscape (originally sought to be cured by the Consent Decree) but that

they gave broader and more comprehensive protection to PHA residents

than had been available under the Consent Decree. 

Thus, the Consent Decree no longer had force or utility, and there was

no reason for the Consent Decree to remain operative. 

15