Aponte-rosario v. Acevedo-vilÁ

• Decision Date: 28 July 2010
• Docket Number: No. 09-1200,09-1362.,09-1200
• Citation: 617 F.3d 1
• Parties: Arcadio APONTE-ROSARIO, as Resident of Las Gladiolas Public Housing Project; Mirta Colón-Pellicier, as Resident of Las Gladiolas Public Housing Project; Iris Margarita Aponte-Marrero, as Resident of Las Gladiolas Public Housing Project, Plaintiffs, Appellants,Rossana De León-Rivera, as Resident of Las Gladiolas Public Housing Project; Luz Elena Ramos-Ayala, as Resident of Las Gladiolas Public Housing Project, Plaintiffs,v.Aníbal ACEVEDO-VILÁ, Governor of The Commonwealth of Puerto Rico; Jorge Rivera, Secretary of the Department of Housing of the Commonwealth of Puerto Rico; Carlos Laboy, Director of the Puerto Rico Public Housing Administration, Defendants, Appellees,Alphonso Jackson, Secretary of the United States Department of Housing and Urban Development; Michael Colón, Director, Field Office; Olga Sáez, Housing Director of the Office for the Puerto Rico/Virgin Islands of the United States Department of Housing and Urban Development; American Management, Inc., Defendants.Arcadio Aponte-Rosario, as Resident of Las Gladiolas Public Housing Project; Mirta Colón-Pellicier, as Resident of Las Gladiolas Public Housing Project; Iris Margarita Aponte-Marrero, as Resident of Las Gladiolas Public Housing Project, Plaintiffs, Appellants,Rossana De León-Rivera, as Resident of Las Gladiolas Public Housing Project; Luz Elena Ramos-Ayala, as Resident of Las Gladiolas Public Housing Project, Plaintiffs,v.Alphonso Jackson, Secretary of the United States Department of Housing and Urban Development; Michael Colón, Director, Field Office; Olga Sáez, Housing Director of the Office for the Puerto Rico/Virgin Islands of the United States Department of Housing and Urban Development, Defendants, Appellees,Aníbal Acevedo-Vilá, Governor of The Commonwealth of Puerto Rico; Jorge Rivera, Secretary of the Department of Housing of the Commonwealth of Puerto Rico; Carlos Laboy, Director of the Puerto Rico Public Housing Administration, Defendants.
• Court: U.S. Court of Appeals — First Circuit

617 F.3d 1

Arcadio APONTE-ROSARIO, as Resident of Las Gladiolas Public Housing Project; Mirta Colón-Pellicier, as Resident of Las Gladiolas Public Housing Project; Iris Margarita Aponte-Marrero, as Resident of Las Gladiolas Public Housing Project, Plaintiffs, Appellants,

Rossana De León-Rivera, as Resident of Las Gladiolas Public Housing Project; Luz Elena Ramos-Ayala, as Resident of Las Gladiolas Public Housing Project, Plaintiffs,

v.Aníbal ACEVEDO-VILÁ, Governor of The Commonwealth of Puerto Rico; Jorge Rivera, Secretary of the Department of Housing of the Commonwealth of Puerto Rico; Carlos Laboy, Director of the Puerto Rico Public Housing Administration, Defendants, Appellees,Alphonso Jackson, Secretary of the United States Department of Housing and Urban Development; Michael Colón, Director, Field Office; Olga Sáez, Housing Director of the Office for the Puerto Rico/Virgin Islands of the United States Department of Housing and Urban Development; American Management, Inc., Defendants.

Arcadio Aponte-Rosario, as Resident of Las Gladiolas Public Housing Project; Mirta Colón-Pellicier, as Resident of Las Gladiolas Public Housing Project; Iris Margarita Aponte-Marrero, as Resident of Las Gladiolas Public Housing Project, Plaintiffs, Appellants,

Rossana De León-Rivera, as Resident of Las Gladiolas Public Housing Project; Luz Elena Ramos-Ayala, as Resident of Las Gladiolas Public Housing Project, Plaintiffs,

v.Alphonso Jackson, Secretary of the United States Department of Housing and Urban Development; Michael Colón, Director, Field Office; Olga Sáez, Housing Director of the Office for the Puerto Rico/Virgin Islands of the United States Department of Housing and Urban Development, Defendants, Appellees,Aníbal Acevedo-Vilá, Governor of The Commonwealth of Puerto Rico; Jorge Rivera, Secretary of the Department of Housing of the Commonwealth of Puerto Rico; Carlos Laboy, Director of the Puerto Rico Public Housing Administration, Defendants.

Nos. 09-1200, 09-1362.

United States Court of Appeals, First Circuit.

Heard March 4, 2010.

Decided July 28, 2010.

COPYRIGHT MATERIAL OMITTED

Myrta Morales-Cruz, for appellants.

Susana I. Peñagarícano-Brown, Assistant Solicitor General, with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-Anadón, Deputy Solicitor General, were on brief for appellees Acevedo-Vilá, Rivera, Laboy and American Management, Inc.

Patricia Sharing Flagg, Special Assistant United States Attorney, U.S. Department of Housing and Urban Development, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, were on brief for appellees Jackson, Colón, and Sáez.

Before TORRUELLA, SELYA, and LIPEZ, Circuit Judges.

TORRUELLA, Circuit Judge.

Plaintiff-Appellants, several residents of Las Gladiolas I and II public housing project (Las Gladiolas), appeal the district court's grant of summary judgment in favor of several officers of the Commonwealth of Puerto Rico and the Puerto Rico Public Housing Administration (PRPHA) and the dismissal of their claims against the Department of Housing and Urban Development (HUD). ¹ Appellants claim that in preparing and approving an application for demolition of Las Gladiolas the PRPHA and HUD violated their statutory right to resident consultation under section 1437p of the United States Housing Act of 1937, 42 U.S.C. § 1437p(a),² and their constitutional right to procedural due process under the Fifth and Fourteenth Amendments of the United States Constitution. Finally, Appellants claim that there is a genuine issue of material fact as to whether the Commonwealth abandoned upkeep of Las Gladiolas in an effort to justify the demolition of some of the buildings. After careful consideration, we affirm the district court's dismissal of Appellants' claims.

I. Facts and Procedural Background

The Las Gladiolas project has two high-rise buildings that house 676 apartment units. On April 28, 2005, the PRPHA submitted its application to HUD for demolition of Las Gladiolas stating that structural tests revealed that the buildings were no longer suited for public housing purposes and that no reasonable and cost-effective plan for repairs or “modernization” was feasible. ³

Prior to submitting its application for demolition, the PRPHA held five public hearings to discuss its Annual Plans. Each Annual Plan included demolition of Las Gladiolas as one of the agency's objectives, and demolition of Las Gladiolas was discussed in each of the five annual hearings. The hearings were held on April 2, 2001, March 27, 2002, March 28, 2003, March 25, 2004, and March 30, 2005. The hearings were announced in local newspapers. The published notices included the dates and locations of the hearings; provided directions to a location where residents could view the plans; and informed residents that transportation to the hearings would be provided. Many Las Gladiolas residents attended these public hearings and voiced their concerns. ⁴

On February 22, 2005, the PRPHA held a two hour and forty-five minute meeting with Las Gladiolas I & II's residents' council and Las Gladiolas residents to discuss, among other matters, the proposed demolition. After this meeting, the PRPHA formally filed its application for demolition of the housing project with HUD. HUD approved the PRPHA's application for demolition on February 2, 2006.

Following HUD's approval of the application for demolition, Appellants filed a class action suit on behalf of all residents of Las Gladiolas seeking to stop or delay the demolition of Las Gladiolas. The complaint sought declaratory and injunctive relief against the Governor of the Commonwealth of Puerto Rico; the Secretary of the Department of Housing of Puerto Rico; and the Director of the PRPHA in their official capacities (collectively, Commonwealth defendants); and against three HUD officers in their official capacities, namely, the Secretary of HUD; HUD's Field Office Director for Puerto Rico and the Virgin Islands; and HUD's Director of Public Housing for Puerto Rico and the Virgin Islands. The complaint alleged that Plaintiffs had been deprived of their due process right to consultation and of their statutory right to consultation as recognized in 42 U.S.C. § 1437p. Appellants also brought a claim under 42 U.S.C. § 1437p and 24 C.F.R. § 970.12, asserting that through inaction and neglect, the Commonwealth defendants had kept two of the four buildings at Las Gladiolas in a state of disrepair that amounted to the de facto or constructive demolition of those buildings. As to HUD, the complaint claimed that the agency's approval of the PRPHA's application for demolition was illegal because the application was not developed in consultation with residents as required by section 1437p.⁵

In due course, the Commonwealth defendants moved for summary judgment. The HUD defendants filed a Motion In Support of [the] Commonwealth Defendants' Motion for Summary Judgment arguing that if the Commonwealth was found to have complied with the statutory requirements for resident consultation, HUD's approval of the application for demolition would also be in compliance with the regulations and therefore summary judgment should be granted in HUD's favor.

In December 2008, the district court granted summary judgment in the Commonwealth defendants' favor, finding that the PRPHA had complied with the resident consultation requirement as prescribed in section 1437p and that Appellants had failed to show that there were genuine issues of material fact as to whether the Commonwealth defendants had failed to maintain Las Gladiolas. Approximately one month later, the district court dismissed Appellants' claims against HUD, finding that HUD “did not act unlawfully in approving the demolition.” Aponte-Rosario v. Acevedo-Vilá, No. 06-1578, slip op. at 3 (D.P.R. Jan. 29, 2009). Appellants filed this timely appeal challenging the district court's dismissal of their claims.

II. Preliminary Issues and Standard of Review

A. Appellants' Right of Action Under 42 U.S.C. § 1983 and 5 U.S.C. § 702

Appellants' main claim on appeal is that they were deprived of their right to consultation as recognized in section 1437p of the United States Housing Act. Appellants asserted jurisdiction for the resident consultation claim against the Commonwealth defendants under 42 U.S.C. § 1983 and against HUD under section 702 of the Administrative Procedure Act, 5 U.S.C. § 702.

The district court did not consider whether section 1437p provides Appellants a right enforceable under section 1983 and the parties did not raise the question on appeal.⁶ While we harbor doubts as to whether section 1437p confers upon Appellants a private right of action, and at least one circuit has held that residents of a public housing complex do not have such an unambiguous and “privately enforceable federal right to prevent the demolition of their housing developments,” Anderson v. Jackson, 556 F.3d 351, 356, 358 (5th Cir.2009), we decline to address the issue here. We thus assume, without deciding, that Appellants may pursue a cause of action under section 1437p.

The question whether determination of the existence of a private cause of action is a jurisdictional inquiry or instead one that goes to the merits of the claim is a thorny one. Although we are obliged to decide as a threshold matter certain jurisdictional questions that implicate our authority to hear a dispute under Article III see Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 94, 101-02, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998), we are not so constrained where, as here, issues of statutory jurisdiction are in play Restoration Pres. Masonry, Inc. v. Grove Eur. Ltd., 325 F.3d 54, 59-60 (1st Cir.2003); see also Davignon v. Clemmey, 322 F.3d 1, 11 (1st Cir.2003) (appellate court remains free to bypass problematic jurisdictional issues provided...