Wright v. City of Roanoke Redevelopment and Housing Authority

• Decision Date: 26 August 1985
• Docket Number: No. 85-1068,85-1068
• Citation: 771 F.2d 833
• Parties: Brenda E. WRIGHT; Geraldine H. Broughman; Sylvia P. Carter; individually and on behalf of all persons similarly situated, Appellants, v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 833

771 F.2d 833

Brenda E. WRIGHT; Geraldine H. Broughman; Sylvia P Carter; individually and on behalf of all persons similarly situated, Appellants, v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY, Appellee.

No. 85-1068.

United States Court of Appeals Fourth Circuit.

Argued June 6, 1985.

Decided Aug. 26, 1985.

Henry L. Woodward, Roanoke, Va. (Renae Reed Patrick, Legal Aid Society of Roanoke Valley, Roanoke, Va., on brief), for appellants.

Bayard E. Harris, Roanoke, Va. (Woods, Rogers & Hazelgrove, Roanoke, Va., on brief), for appellee.

Before WIDENER and MURNAGHAN, Circuit Judges, and GORDON, Senior United States District Judge for the Middle District of North Carolina, sitting by designation.

MURNAGHAN, Circuit Judge.

Tenants of public low-cost housing brought an action against their landlord, the Roanoke Redevelopment and Housing Authority ("RRHA"). Their complaint was based on the alleged deprivation of the tenants' rights under the Brooke Amendment of the United States Housing Act of 1937, 42 U.S.C. Sec. 1437a, ¹ and particular United States Housing and Urban Development ("HUD") regulations pertaining to utility allowances issued pursuant to that statute. Specifically, the tenant class alleged that the RRHA disregarded HUD regulations governing the establishment of "reasonable" electric utility allowances and the periodic revision of unreasonably low allowances. Thus, the tenants claimed that they were wrongfully overcharged for electrical consumption in excess of their designated allotments. ²

First, we must consider the correctness of the route which the plaintiffs sought to follow in their quest for injunctive and monetary relief, ³ namely, 42 U.S.C. Sec. 1983. ⁴ It is now widely recognized that 42 U.S.C. Sec. 1983 may be invoked to redress certain violations of federal statutory law by state actors. Maine v. Thiboutot 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980). Not all violations of federal law, however, give rise to Sec. 1983 actions. In order to determine whether a violation of a particular federal statute constitutes a basis for Sec. 1983 liability, a court must make two inquiries: 1) whether Congress had foreclosed private enforcement of the pertinent statute in the enactment itself, and 2) whether the statute at issue was the kind that created enforceable "rights" under Sec. 1983. Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981); Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981). ⁵

We have recently ruled that violations of the Housing Act of 1937 do not give rise to a Sec. 1983 cause of action. See Perry v. Housing Authority of City of Charleston, 664 F.2d 1210, 1217-1218 (4th Cir.1981); Phelps v. Housing Authority of Woodruff, 742 F.2d 816, 820-822 (4th Cir.1984). In Perry, low income tenants brought an action for declaratory and injunctive relief and damages against the local housing authority. The tenants based their action on 42 U.S.C. Sec. 1437 ⁶ and on 42 U.S.C. Sec. 1983. The tenants claimed that the landlord failed to keep the premises safe and clean as required by 42 U.S.C. Sec. 1437. We ruled that although the tenants were intended beneficiaries of the Act, the benefit was not without limits. It did not include the right to sue for what Congress had conferred. That is to say, there was no implied private right of action under Sec. 1437. "[T]he legislative history indicates no intention to create in the Housing Act a federal remedy in favor of tenants but does indicate quite clearly the intention to place control of and responsibility for these housing projects in the local Housing Authorities." Perry, supra, at 1213. We also rejected the tenants' argument that they had a cause of action pursuant to 42 U.S.C. Sec. 1983 since the tenants had failed to indicate "any substantive provisions of the various housing acts which [gave] them a tangible right, privilege, or immunity." Id. at 1217. While we acknowledged that "the Act was designed to help low income families" we emphasized that "the actual assistance went not to the tenants, but to the states." Id. We therefore concluded that Sec. 1437 did "not create any legally cognizable rights in tenants of programs funded under the housing statutes." Id. We noted though that our disposition of the tenants' Sec. 1437 and Sec. 1983 claims did not deprive the tenants of a remedy. "The lease between the plaintiffs and [the local housing authority] creates a landlord-tenant relationship. Plaintiff's rights are based on this lease and their remedy, if any, lies in the [State] courts." Id. at 1217-1218, n. 15.

In Phelps, tenants challenged the legality of the local housing authority's policies regarding the admission of new tenants. The tenants claimed that such policies deprived them of their "right" to be selected under the tenant preference provisions outlined in the Act and that therefore they had a cause of action pursuant to Sec. 1983. In evaluating the viability of the Sec. 1983 action in light of Middlesex and Pennhurst, supra, we first considered whether Congress foreclosed private enforcement of the Housing Act in the enactment itself. On that score, we concluded:

[A]lthough [the statutory sections in question] clearly manifest Congressional intent to benefit generally applicants who are involuntarily displaced or who occupy substandard housing, its chosen means of accomplishing that end is plainly that HUD, rather than private litigants, is to be the enforcer of the statutory directive. Apart from the obvious lack of any affirmative statutory language indicating a Congressional intention to allow private remedial suits, the statute is replete with indications of an intention to entrust HUD with the means and the responsibility for effective enforcement. The statutory scheme requires the Secretary to include in all Annual Contributions Contracts a requirement that public housing authorities adopt tenant selection criteria which include express preferences and a requirement that eligible applicants be notified of expected occupancy dates "insofar as ... can be reasonably determined." Under the statute the Secretary performs extensive audits to verify the authorities' compliance with the conditions of the ACC, and HUD is authorized, as contract promisee, to enforce compliance by the most drastic possible means: termination of the federal subsidies under the contract. In sum, the whole of the legislative scheme, we think, indicates Congress's intention that HUD should continue to enforce required conditions by means of asserting its rights under the ACC, thereby intending "to foreclose private enforcement" of the requirements of the Housing Act.

Phelps, supra, 742 F.2d at 821 (emphasis added). In sum, the situation is very analogous to the one in which a trustee, not the cestui que trust, must bring suit. See, e.g., In Re Romano, 426 F.Supp. 1123, 1128 (N.D.Ill.1977), modified, 618 F.2d 109 (7th Cir.1980) ("trustee is the only party who can sue a tenant for back rent even if the beneficiary has the right to the land's proceeds"). ⁷

As to the second Middlesex inquiry, i.e., whether the rights allegedly conferred by the preference and notice provisions were the kind of "rights" enforceable under Sec. 1983, we concluded that no such "rights" were involved. Phelps, supra, 742 F.2d at 821-822. We ruled that it was highly unlikely that Congress intended federal courts to "make the necessary balancing of inevitably conflicting interests as between different applicants and possibly opposing statutory purposes that would be required to adjudicate individual claims of right." Id. at 822. Likewise, in the instant case, we consider it highly unlikely that Congress intended federal courts to make the necessary computations regarding utility allowances that would be required to adjudicate individual claims of right.

To conclude, the plaintiffs under 42 U.S.C. Sec. 1437a have certain rights but the remedy to enforce them is not conferred on them. Under 42 U.S.C. Sec. 1983, conversely, the statute itself creates no right, but for rights elsewhere created of a certain character the statute provides a remedy. It will not suffice, however, simply to put the Sec. 1437 right and the Sec. 1983 remedy together to enable the case the plaintiffs assert to proceed. The Sec. 1437 right is simply incompatible with the Sec. 1983 remedy, for a characteristic of the Sec. 1437 right is precisely that the plaintiffs are not to have the authority themselves to sue. HUD alone may, as quasi trustee, take legal action, for the right is explicitly tailored not to allow the beneficiaries, the low cost housing tenants, to do so. ⁸

Thus, in light of Perry and Phelps, supra, the action of the district judge, 605 F.Supp. 532 (D.C.Va.1984), in granting summary judgment in favor of the RRHA on the Sec. 1983 action and in dismissing the claim based on the lease without prejudice to pursuit by the plaintiffs of any state court cause of action which they may be entitled to assert is affirmed. ⁹

AFFIRMED.

GORDON, Senior District Judge, concurring.

I concur in the analysis and the result of the panel's opinion. I write this brief concurrence to emphasize and, I hope, to clarify a point upon which the precedent has become a bit unclear, and which I found troubling. In considering the briefs, oral arguments, and the district court's decision in this case, it became apparent that the proper Sec. 1983 analysis has become mistakenly entangled with the analysis for an implied private right of action. While the two analyses are closely related, they are separate and distinct. My purpose is to disentangle them.

As discussed in the panel's opinion, Perry v. Housing Authority of Charleston, 664 F.2d 1210 (4th Cir.1981), and Phelps v. Housing Authority of Woodruff, 742 F.2d 816 (4th Cir.1984), are the controlling...