Yesler Terrace Community Council v. Cisneros

• Decision Date: 12 September 1994
• Docket Number: No. 92-35603,92-35603
• Citation: 37 F.3d 442
• Parties: YESLER TERRACE COMMUNITY COUNCIL, a non-profit corporation organized and existing under the laws of the State of Washington; and Eric Bolden, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Henry G. CISNEROS, * in his official capacity as Secretary, United States Department of Housing and Urban Development; U.S. Department of Housing and Urban Development, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 442

37 F.3d 442

YESLER TERRACE COMMUNITY COUNCIL, a non-profit corporation

organized and existing under the laws of the State of

Washington; and Eric Bolden, individually and on behalf of all others similarly situated, Plaintiffs-Appellants, v. Henry G. CISNEROS, ^* in his official capacity

as Secretary, United States Department of Housing

and Urban Development; U.S. Department

of Housing and Urban

Development,

Defendants-Appellees.

No. 92-35603.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 1993.

Decided Sept. 12, 1994.

David Girard, Evergreen Legal Services, Seattle, WA, for plaintiffs-appellants.

Bruce G. Forrest, Robert Zemer, U.S. Dept. of Justice, Washington, DC, for defendants-appellees.

Appeal from the United States District Court for the Western District of Washington.

Before: GOODWIN, CANBY, and KOZINSKI, Circuit Judges.

CANBY, Circuit Judge.

The Department of Housing and Urban Development (HUD) determined that Washington's state court eviction procedures satisfy the basic elements of due process, thereby allowing public housing authorities in Washington to evict tenants accused of criminal activity without first affording them an informal grievance hearing. Yesler Terrace Community Council sued, contending that HUD's determination is invalid because it was made without giving public housing tenants notice and an opportunity to comment. The district court granted summary judgment for HUD. We reverse.

I

Plaintiffs Yesler Terrace Community Council and Eric Bolden (collectively "Yesler") represent a class of tenants in public housing projects in Washington state. ¹ Public housing tenants ordinarily may be evicted only after a grievance hearing before the public housing authority (PHA) that administers their residence. 42 U.S.C. Sec. 1437d(k). In cases of eviction for drug-related or certain other criminal activity, however, PHAs may omit the otherwise mandatory grievance procedures, but only if HUD has determined that state court eviction procedures satisfy the elements of due process as defined in 24 C.F.R. Sec. 966.53(c). Id.

In December 1991, HUD advised the governor of Washington that it had determined that Washington's state court eviction procedures satisfy the elements of due process, and that Washington's PHAs therefore could dispense with grievance hearings for crime-related evictions. Several Washington PHAs subsequently amended their leases and grievance procedures to take advantage of HUD's determination. Then, on March 24, 1992, the Seattle Housing Authority served Marla Davison with an eviction notice stating that she would not be afforded a grievance hearing because her eviction was due to alleged criminal activity.

A few days later, Yesler and Davison brought this action, seeking injunctive and declaratory relief on the ground that HUD violated 42 U.S.C. Sec. 1437d(k), the Administrative Procedure Act (APA), 5 U.S.C. Sec. 551 et seq., and HUD's own regulations, 24 C.F.R. Sec. 10.1, when it issued its due process determination without first providing notice and opportunity to comment. ² The district court granted summary judgment for HUD, and this appeal followed.

II

As a threshold matter, HUD challenges Yesler's standing to bring this action. Ordinarily, a plaintiff must establish three elements to have standing. First, the plaintiff must point to a concrete injury which the plaintiff personally has suffered or with which it is imminently threatened (an "injury in fact"). Lujan v. Defenders of Wildlife, --- U.S. ----, ----, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Second, the plaintiff must show that the alleged injury is "fairly traceable" to the defendant's action. Id. Third, the plaintiff must demonstrate that a favorable decision is likely to redress that injury. Id. When a plaintiff challenges an agency action under the APA, it also must show that the interests it seeks to protect are "arguably within the zone of interests to be protected" by the statute in question. Association of Data Processing Service Orgs., Inc. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970). We conclude that Yesler satisfies all of these requirements.

Yesler asserts that it was injured when HUD, without following notice and comment rulemaking procedures, determined Plaintiffs here do not live across the country; they live in Washington in the very housing that HUD's decision affects. As a consequence of HUD's decision, they, personally, now are subject to the threat of eviction for alleged criminal activity without recourse to an informal grievance hearing. The interests protected by the notice and comment rulemaking to which plaintiffs claim they are entitled are concrete and personal. Their geographical nexus to HUD's action is clear.

that Washington PHAs can dispense with grievance hearings in crime-related evictions. There is no question that a "procedural injury" can constitute an injury in fact for the purpose of establishing standing. See Defenders, --- U.S. at ---- n. 7, 112 S.Ct. at 2142 n. 7; Dellums v. Smith, 797 F.2d 817, 821 (9th Cir.1986). However, not every procedural injury will do. To have standing, a plaintiff must be seeking "to enforce a procedural requirement the disregard of which could impair a separate concrete interest." Defenders, --- U.S. at ----, 112 S.Ct. at 2142; see also Salmon River Concerned Citizens v. Robertson, 32 F.3d 1346, ---- (9th Cir.1994). Thus the Court opined in Defenders that someone living next door to the site of a proposed federally licensed dam would have standing to challenge the licensing agency's failure to prepare an environmental impact statement, whereas someone living across the country from the proposed dam would not have standing. Id. at ----, 112 S.Ct. at 2142 n. 7; see also Pacific Northwest Generating Co-op v. Brown, 25 F.3d 1443, 1449 (9th Cir.1994) (plaintiffs whose way of conducting business may be affected by agencies' failures to comply with Endangered Species Act "can be compared to the person living next to the proposed dam"); City of Davis v. Coleman, 521 F.2d 661, 670-71 (9th Cir.1975) ("The procedural injury implicit in agency failure to prepare an EIS--the creation of a risk that serious environmental impact will be overlooked--is itself a sufficient 'injury in fact' to support standing, provided this injury is alleged by a plaintiff having a sufficient geographical nexus to the site of the challenged project.").

We also find that the threat to plaintiffs' interests is sufficiently real; it is neither imaginary nor speculative. See Blum v. Yaretsky, 457 U.S. 991, 1000, 102 S.Ct. 2777, 2783, 73 L.Ed.2d 534 (1982). On March 27, 1992, the Seattle Housing Authority served Marla Davison with notice that she would be evicted and that she had no right to a grievance hearing. The Housing Authority voluntarily rescinded this notice only after Yesler and Davison brought this action. Then, on April 27, 1992, the Tacoma Housing Authority served Eric Bolden with notice that he was to be evicted and that he had no right to a grievance hearing. Only after Yesler amended its complaint, substituting Bolden as a named plaintiff, did the Authority voluntarily rescind that notice. The fact that Bolden and Davison were served with such notices establishes that there is an immediate threat to plaintiffs' concrete interests. See id. That the eviction notices served on Bolden and Davison were rescinded does not alter our conclusion. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S.Ct. 894, 897, 97 L.Ed. 1303 (1953) (voluntary cessation of a challenged activity is not ground for dismissing an action as moot). We conclude that Yesler has alleged an injury sufficient to confer standing.

As to the other Article III standing requirements, HUD notes that it did no more than provide an opportunity for the PHAs--third parties--to act; PHAs, not HUD, actually initiate evictions. HUD contends, therefore, that it cannot be the cause of Yesler's alleged injury, and that a favorable decision on our part cannot redress that injury. We agree that it usually is difficult to establish causation and redressibility when a plaintiff's alleged injury depends on the actions of a third party not before the court. See Defenders, --- U.S. at ----, 112 S.Ct. at 2137. Because neither the court nor the defendant can control the third party's actions, the causal link between the defendant's challenged actions and the plaintiff's threatened injuries may be only speculative, as will the possibility that a favorable decision will redress those injuries. Id. In the present case, however, there is no need to speculate whether or not the PHAs will act upon HUD's decision. Several PHAs already have moved to eliminate pre-eviction grievance Finally, we conclude that plaintiffs' interests in the terms and conditions of their tenancies fall squarely within the zone of interests protected by the statutes it alleges HUD violated. HUD does not argue to the contrary. Yesler, therefore, has standing to bring this action.

                hearings in cases involving allegations of criminal activity, and at least two have initiated evictions in which they informed the tenant that there would be no grievance hearing. 3  Nor is there any doubt that the PHAs will have to reinstitute grievance hearings for all attempted evictions if we invalidate HUD's ruling.  We conclude that there is a sufficiently clear connection between HUD's actions and the injury with which plaintiffs are threatened to satisfy the remaining standing requirements of Article III.  See id.  (when standing hinges on choices made by a third party, plaintiff must "adduce facts showing that those choices have been or will be made in such manner as to produce causation and permit redressibility of injury"). 4
                

III

The APA rulemaking requirements do not apply to agency rules "relating to ... public property, loans, grants, benefits, or contracts." 5 U.S.C. Sec. 553...