382 F.3d 412 (3rd Cir. 2004), 03-4356, Three Rivers Center for Independent Living v. Housing Authority of City of Pittsburgh

Docket Nº:03-4356.
Citation:382 F.3d 412
Party Name:THREE RIVERS CENTER FOR INDEPENDENT LIVING, INC.; Dana Washington, on behalf of herself and all others similarly situated, Appellants v. HOUSING AUTHORITY OF THE CITY OF PITTSBURGH; Keith Kinard, in his official capacity as the Executive Director of the Housing Authority of the City of Pittsburgh.
Case Date:August 30, 2004
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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382 F.3d 412 (3rd Cir. 2004)

THREE RIVERS CENTER FOR INDEPENDENT LIVING, INC.; Dana Washington, on behalf of herself and all others similarly situated, Appellants

v.

HOUSING AUTHORITY OF THE CITY OF PITTSBURGH; Keith Kinard, in his official capacity as the Executive Director of the Housing Authority of the City of Pittsburgh.

No. 03-4356.

United States Court of Appeals, Third Circuit

August 30, 2004

Argued May 12, 2004.

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Stephen F. Gold (Argued), Philadelphia, PA, Mark J. Murphy, Robin Resnick, Disabilities Law Project, Philadelphia, PA, David Kahne, Houston, Paul O'Hanlon, Disabilities Law Project, Pittsburgh, PA, for Appellants.

Susan A. Yohe (Argued), Buchanan Ingersoll P.C., Pittsburgh, PA, for Appellee.

Before NYGAARD, McKEE and CHERTOFF, Circuit Judges.

CHERTOFF, Circuit Judge.

This is a suit seeking declaratory and injunctive relief compelling the Housing Authority of the City of Pittsburgh to comply with regulations the Department of Housing and Urban Development promulgated pursuant to Section 504 of the Rehabilitation Act. The regulations require the Pittsburgh Housing Authority to effect certain systemic reforms in order to provide accessible public housing to handicapped individuals. They require, among other things, that five percent of the dwelling

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units in any newly constructed public housing project be accessible to persons with ambulatory disabilities and an additional two percent of the units be accessible to persons with hearing or vision impairments.

The Housing Authority-and this appears to be undisputed-has continually failed to comply with HUD's regulations. Plaintiffs allege that, as a result, the Pittsburgh Housing Authority has denied accessible housing to disabled individuals. As troubling as this may be, however, our task here is to determine whether appellants may properly maintain a suit to enforce the HUD regulations, by way of either a private right of action under the Rehabilitation Act or under Section 1983. There are certainly steps HUD itself can and should take to effect compliance. But the District Court partially dismissed appellants' complaint because it determined that they did not have a private right of action to enforce the HUD regulations.

Our analysis requires a careful review and discussion of the law governing when private parties can sue to enforce a legislative or regulatory mandate. For the following reasons, we will affirm the denial of a right of action to enforce the regulations.

I.

Section 504 of the Rehabilitation Act of 1973 is commonly referred to as the "civil rights bill of the disabled," ADAPT v. Skinner, 881 F.2d 1184, 1187 (3d Cir. 1989) (en banc), or the "cornerstone of the civil rights movement of the mobility-impaired." Id. at 1205 (Mansmann, J., concurring in part and dissenting in part). Generally, the statute "prohibits any program or activity receiving federal funds from discriminating against persons with disabilities." Bowers v. National Collegiate Athletic Ass'n, 346 F.3d 402, 432 (3d Cir. 2003). It provides:

No otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.

29 U.S.C. § 794(a). 1

HUD promulgated regulations to effectuate Section 504 in 1988. The provisions that address accessibility in public housing projects and facilities appear among the regulations at 24 C.F.R. §§ 8.20-33.

When a public housing authority that receives federal funds constructs new housing or "substantially alters" existing housing, 2 the HUD regulations require that five percent of the dwelling units in those facilities be accessible to persons with mobility disabilities and two percent be accessible to persons with hearing or vision impairments. See 24 C.F.R. §§ 8.22(a)-(b), 8.23(a). When one or more dwelling units in an existing facility are altered-but the alterations do not rise to the level of "substantial alterations"-the units must be made accessible to the mobility impaired, until five percent of the

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units in the facility are accessible. See 24 C.F.R. § 8.23(b) (1). 3

In addition, accessible dwelling units must, to the "maximum extent feasible," be distributed throughout projects. 24 C.F.R. § 8.26. And they must "be available in a sufficient range of sizes and amenities so that a qualified individual with handicaps' choice of living arrangements is, as a whole, comparable to that of other persons eligible for housing assistance under the same program." Id.

Because the Pittsburgh Housing Authority receives federal funding through HUD, it is subject to Section 504's requirements. The Housing Authority has altered existing facilities and built new ones since the time the HUD regulations went into effect, but it failed to satisfy the obligations the regulations impose. 4

As a consequence of the Housing Authority's failure to comply with the HUD regulations, the demand for accessible public housing in Pittsburgh exceeds the supply. Indeed, in 1995 the Housing Authority signed a "Voluntary Compliance Agreement" with HUD acknowledging "compliance deficiencies" and "civil rights deficiencies." It conceded the need for at least 546 accessible rental units, and it promised to provide them. In return, HUD agreed to continue to provide the Housing Authority with federal funding. By the Housing Authority's own admission, however, there were only 200 units accessible to people in wheelchairs as of March 2002.

As a result, when Dana Washington applied for public housing in 2001, the Housing Authority assigned her to a unit with stairs even though she suffers from near-paralysis of her lower left limb and must use a wheelchair. When Washington complained about the assignment, the Housing Authority re-assigned her to another unit. But again the sink and bathtub in the newly-assigned unit were inaccessible to Washington.

Similarly, Three Rivers Center for Independent Living, Inc. ("Three Rivers")-a non-profit corporation that advocates for the rights of individuals with disabilities-reports that many of its clients have a hard time finding accessible and affordable housing. 5 Consequently, Three Rivers expends considerable effort assisting people with disabilities in trying to locate accessible housing.

In June of 2002, Washington and Three Rivers filed the present suit against the Pittsburgh Housing Authority and its Executive Director, Keith Kinard, in his official capacity. They seek an order declaring the Pittsburgh Housing Authority in violation of the HUD regulations and enjoining the Housing Authority to comply

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with them. 6 Specifically, plaintiffs seek to enforce four requirements: (1) that a specific percentage of newly constructed public housing be accessible to the disabled, see 24 C.F.R. § 8.22(a)-(b); (2) that a specific percentage of substantially-altered public housing be accessible to the disabled, see 24 C.F.R. § 8.23(a); (3) that altered (but not substantially altered) public housing be made accessible until at least five percent of the units are accessible, see 24 C.F.R. § 8.23(b) (1); and (4) that accessible housing be distributed throughout projects and comparable to housing available to non-disabled individuals, see 24 C.F.R. § 8.26. 7

Defendants moved to dismiss plaintiffs' complaint "to the extent that it seeks relief for the violations of regulations promulgated by [HUD] to implement § 504 of the Rehabilitation Act." App. 25. They argued that plaintiffs did not have a private right of action to enforce the regulations because the regulations "are too far removed from Congressional intent as reflected in § 504 to constitute 'federal rights' privately enforceable under either § 504 or § 1983." App. 26-27. The District Court granted defendants' motion, relying largely on our opinion in South Camden Citizens in Action v. New Jersey Dep't of Envtl. Prot., 274 F.3d 771 (3d Cir. 2001), cert. denied, 536 U.S. 939, 122 S.Ct. 2621, 153 L.Ed.2d 804 (2002) and the Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). Plaintiffs timely appealed. 8

II.

The District Court, which exercised its jurisdiction under 28 U.S.C.§§ 1331 and 1343, did not dismiss plaintiffs' complaint in its entirety. Rather, it dismissed the complaint only insofar as plaintiffs sought to enforce the HUD regulations. The Court was of the opinion, however, that the partial dismissal involved a controlling question of law as to which there is substantial ground for difference of opinion-namely, "[w]hether Plaintiffs have a private right of action against Defendants for enforcement of regulations of the United States Department of Housing and Urban Development ... as set forth in 24 C.F.R. §§ 8.20-33 which mandate the number and distribution of accessible

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housing units for qualified handicapped individuals in publicly funded housing developments," App. 42-and that an immediate appeal may materially advance the ultimate termination of the litigation. We therefore exercise jurisdiction under 28 U.S.C. § 1292(b).

We review de novo the District Court's dismissal under Federal Rule of Civil Procedure 12(b) (6) for failure to state a claim. See, e.g., Pinker v. Roche Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). "In evaluating the propriety of dismissal, we accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief." Id.

A.

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