Pollard v. Romney
| Decision Date | 24 February 1975 |
| Docket Number | No. 74-1336,74-1336 |
| Citation | 512 F.2d 295 |
| Parties | Mrs. Anna POLLARD, an Individual, Appellant, v. George W. ROMNEY, Individually, and in his capacity as Secretary of Housing and Urban Development, et al. |
| Court | U.S. Court of Appeals — Third Circuit |
Frank I. Smizik, Neighborhood Legal Services Ass'n, Braddock, Pa., Michael A. Donadee, Neighborhood Legal Services Ass'n, Pittsburgh, Pa., for appellant.
Carla A. Hills, Asst. Atty. Gen., Richard L. Thornburgh, U. S. Atty., William Kanter, Anthony J. Steinmeyer, Attys., Dept. of Justice, Washington, D. C., for appellees.
Before ADAMS, GIBBONS and WEIS, Circuit Judges.
This appeal presents the question whether the federal courts have jurisdiction to review a decision of the Secretary of Housing and Urban Development, fashioned under section 518 of the National Housing Act, denying funds for the repair of a dwelling that is subject to a mortgage guaranteed by HUD.
On November 27, 1970, Anna Pollard purchased a single-family residence in North Braddock, Pennsylvania. A note, secured by a mortgage on the premises, provided $9,200 of the $12,000 purchase price of that home. The mortgage was insured by HUD under the Existing-Home Program of section 235 of the National Housing Act. 1 As part of the benefits provided by that program Mrs. Pollard received from HUD a monthly subsidy of $43. to assist her in meeting the monthly mortgage installments of $74.15.
Mrs. Pollard claims that she was led to believe that prior to her purchasing the house representatives of HUD had inspected the dwelling and determined that it complied with all applicable health and building codes. However, as related by Mrs. Pollard, shortly after moving into the house in December, 1970, she began noticing latent defects affecting, inter alia, the plumbing, the heating system, the roof, and the electrical wiring. Within "one year after the insurance of the mortgage" by HUD, Mrs. Pollard claims she requested HUD to provide, pursuant to subsection 518(b) of the Housing Act, 2 financial assistance for making the necessary repairs. A month later a HUD inspector, having visited the residence while Mrs. Pollard was not present, apparently left a message which Mrs. Pollard never received. 3
Mrs. Pollard's attorney wrote HUD on December 18, 1972, requesting another inspection. Then on January 29, 1973, Mrs. Pollard initiated this action in the district court. She asserted that HUD had failed to inspect the dwelling to determine whether it conformed to local health and housing codes, and had thereby not complied with the requirements of the section 235 Existing Home Program. 4 Mrs. Pollard further alleged that by refusing to repair the defects in her house, HUD violated section 518 of the Act, which provided for repair of defects seriously affecting use and livability, and also transgressed the regulations promulgated by the Secretary under that section. Following commencement of the suit, HUD again visited the Pollard home and this time inspected the alleged defects. HUD then informed counsel for Mrs. Pollard that it believed that lack of proper maintenance had contributed to the defective condition of the residence, but offered financial aid in correcting ten defects. Mrs. Pollard's counsel responded, requesting financial aid with respect to seventeen additional defects as well. There have apparently been no further attempts to settle amicably the dispute between HUD and Mrs. Pollard.
In the district court Mrs. Pollard sought (1) a declaratory judgment stating that HUD had a duty to ascertain that all housing insured under the section 235 Existing Home Program complied with the local health and housing codes; (2) a writ of mandamus ordering HUD to reimburse Mrs. Pollard for the cost of rehabilitating her house so that it might comply with the standards of the Allegheny County Health Department; (3) as an alternative to the writ of mandamus, damages in the amount necessary to bring her home into conformity with the County's standards; and (4) such other relief as the court deemed just and equitable. 5
The Secretary filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. Mrs. Pollard moved for partial summary judgment. The district court granted summary judgment for the Secretary.
On this appeal Mrs. Pollard claims that in denying her compensation for the expense necessary to bring her HUD-insured home into conformity with the local codes HUD violated the regulations 6 the agency itself has issued pursuant to subsection 518(b). Mrs. Pollard further contends that the district court erred in concluding that it had no jurisdiction to review the Secretary's decision regarding reimbursement authorized by section 518(b).
In her brief, Mrs. Pollard also had argued that the district court erred in concluding that she was not entitled to declaratory, injunctive, mandamus or damage relief because of HUD's failure, as required by § 235, to inspect her home to determine whether it complied with the local codes. However, in his letter of July 3, 1974, addressed to the Clerk of the Court, Mrs. Pollard's attorney Inasmuch as counsel for Mrs. Pollard has eliminated all claims for relief based on section 235, we do not have before us the question whether the district court should have granted declaratory judgment under section 235, similar to that afforded in Davis v. Romney. 7
In response to Mrs. Pollard's assertion that the district court erred in concluding that it had no jurisdiction to re-evaluate HUD's denial of her claims for compensation under subsection 518(b), the agency argues that judicial review of decisions pertaining to the disbursement of funds pursuant to section 518 is precluded by subsection 518(c).
In Abbott Laboratories v. Gardner 8 the Supreme Court articulated the precept governing judicial review of administrative actions:
(J)udicial review of a final agency action by an aggrieved person will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress.... (T)he Administrative Procedure Act .. embodies the basic presumption of judicial review to one "... adversely affected or aggrieved by agency action ...," ... so long as no statute precludes such relief or the action is not one committed by law to agency discretion, 5 U.S.C. § 701(a). 9
The Supreme Court explicitly recognized in Abbott Laboratories that, although there is a presumption favoring judicial review, re-evaluation of the agency's decision is foreclosed where Congress has expressed an intent to preclude it. In Barlow v. Collins 10 the Court stated "Whether agency action is reviewable often poses difficult questions of congressional intent; and the Court must decide if Congress has in express or implied terms precluded judicial review or committed the challenged action entirely to administrative discretion."
Federal agencies should not be able to retreat behind the concept of no judicial review unless Congress has specifically authorized such a ban. However, where Congress has expressly provided that an agency's action is final and conclusive, the courts of appeals have applied the principle enunciated in Abbott Laboratories and Barlow, and have declared that the federal courts do not have jurisdiction to review a statutory challenge to an administrative decision on the distribution of benefits. For example, federal courts are not available, this Court decided in Hoffmaster v. Veterans Administration, 11 to hear challenges to determinations by the VA of claims for veterans' benefits. Congress had stipulated that "the decisions of the (Veterans') Administrator on any question of law or fact concerning a claim for benefits or payments ... shall be final and conclusive and no other official or any court of the United States shall have power or jurisdiction to review any such decision." 12 In a per curiam opinion the Third Circuit concluded that "(a)ppellant's claims are directly under the above language" and therefore "(t)he trial judge had no alternative but to deny the motion for an injunction and dismiss the case for lack of jurisdiction." 13
In this case then Mrs. Pollard is asking the federal courts to overrule the Secretary's decision refusing to grant her financial assistance, or benefits, under subsection 518(b). 14 Subsection 518(c) 15 provides in pertinent part:
The Secretary('s) ... decisions regarding such expenditures or payments (made under the provisions of this section), and the terms and conditions under which the same are approved or disapproved, shall be final and conclusive and shall not be subject to judicial review.
Mrs. Pollard's claim for compensation for the cost of repairing her home is clearly a request for "expenditures or payments" under subsection 518(b), as those terms are used in subsection 518(c). Since Congress has declared that the decisions of the Secretary regarding such disbursements "shall be final and conclusive and shall not be subject to judicial review," the district court properly concluded that it did not have jurisdiction over Mrs. Pollard's requests for compensation under section 518.
The argument Mrs. Pollard presses on appeal is unlike that presented in Davis v. Romney. 16 There, this Court held that the district court was within its discretion in granting plaintiffs a declaratory judgment stating that HUD had a statutory duty under section 1715l (d)(2) to make reasonable efforts to ascertain that homes securing insured mortgages complied with local codes. Davis, however, unlike the present case, 17 did not...
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