                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             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Precedential or Non-Precedential: Precedential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; SANDRA-
   DENNIS; 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
                             2


           (Opinion Filed: November 19, 2003)
                      Alan C. Kessler
                      Susan J. French (Argued)
                      Virginia Lynn Hogben
                      Wolf, Block, Schorr & Solis-
                       Cohen 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
                               3


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.
                                    4


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).
                                   5


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. Wheeling-
Pittsburgh 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
                                    6


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.
                                   7


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).
                               8


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
                              9


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
                             10


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.
                              11


   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.
                             12


  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
                             13


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
                                   14


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.
                                   15


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.
