Brenham Community Protective Ass'n v. US DEPT. OF AGR.

• Decision Date: 24 July 1995
• Docket Number: No. A-94-CA-317-SC.,A-94-CA-317-SC.
• Citation: 893 F. Supp. 665
• Parties: BRENHAM COMMUNITY PROTECTIVE ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.
• Court: U.S. District Court — Western District of Texas

893 F. Supp. 665

BRENHAM COMMUNITY PROTECTIVE ASSOCIATION, Plaintiff, v. UNITED STATES DEPARTMENT OF AGRICULTURE, et al., Defendants.

No. A-94-CA-317-SC.

United States District Court, W.D. Texas, Austin Division.

July 24, 1995.

COPYRIGHT MATERIAL OMITTED

Booker T. Hogan, Jr., Law Offices of B.T. Hogan, Jr., Brenham, TX, for plaintiff Brenham Community Protective Ass'n.

Daria J. Zane, U.S. Dept. of Justice, Env. & Natural Resources Div., Gen. Litigation Section, Washington, DC, Michaelyn Giebler, Office of Gen. Counsel, U.S. Dept. of Agriculture, Temple, TX, for defendants U.S.D.A., Farmers Home Admin., Neal Sox Johnson, and Robert Faris.

Robert E. Morse, III, Crain, Caton & James, Houston, TX, for defendants Larry C. Washburn and Brenham Rural Housing, Ltd.

MEMORANDUM OPINION AND ORDER

CAPELLE, United States Magistrate Judge.

The Court now considers FEDERAL DEFENDANTS' MOTION FOR SUMMARY JUDGMENT As To COUNT III, filed October 17, 1994 (Doc. # 26). All parties consented to this Court's jurisdiction under 28 U.S.C. § 636(c). As discussed below, the court finds that, while Plaintiff does have a right of action under the Administrative Procedure Act and does make a sufficient showing of injuries resulting from agency action, it does not show that it falls within the zone of interests protected by the Housing Act of 1949. Therefore, the Court finds as a matter of law that Plaintiff does not have standing and that Federal Defendants are entitled to summary judgment as to count III of Plaintiff's complaint.

I. Background

The Court discussed extensively the history of this suit and the circumstances leading to litigation in part I of its Memorandum Opinion and Order granting summary judgment to all Defendants on the first two causes of action stated in Plaintiff's complaint. For purposes of judicial economy, the Court incorporates part I of that Opinion here.

II. Plaintiff's Third Cause of Action

A. Plaintiff's Allegations against Federal Defendants¹

Plaintiff Brenham Community Protective Association (Plaintiff or BCPA)² styles its third cause of action as "Request to Set Aside Wrongful Administrative Decision." Federal Defendants are responsible for administering the application and approval process of the Rural Rental Housing Loan Program run pursuant to the Housing Act of 1949, 42 U.S.C. § 1485. Plaintiff generally claims that Federal Defendants made an improper decision to grant a loan to Larry C. Washburn and Brenham Rural Housing, Ltd. (BRH) (both of these Defendants are referred to as Private Defendants) for the purposes of constructing a forty-four unit, low-income apartment community for the elderly. Specifically, Plaintiff makes the following claims:

(1) Federal Defendants relied on an obsolete and erroneous marketing analysis when deciding a need existed for public assisted housing for low-income senior citizens;

(2) Members of Plaintiff BCPA advised FmHA that there actually was no market for low-income housing for the elderly;

(3) Approval of the loan application was unwarranted by the facts and constitutes an arbitrary and capricious decision;

(4) Federal Defendants exceeded their jurisdiction because Private Defendants were ineligible for the loan;

(5) Construction of the proposed apartment complex will lower the property values of the surrounding area, constituting a "Taking" in violation the Fifth Amendment to the United States Constitution; and

(6) Granting the loan will adversely affect all Texas citizens because private financial institutions will lose business as a result of their inability to compete for loans with the federal government. As a result, all citizens will involuntarily subsidize BRH and truly needed funds for elderly housing elsewhere will then become unavailable.

Plaintiff seeks declaratory and injunctive relief to prevent funding of the complex.

B. Federal Defendants Motion for Summary Judgment

Federal Defendants respond with a motion for summary judgment on count III. Federal Defendants argue that they are entitled to judgment as a matter of law on three grounds:

(1) The Housing Act of 1949, 42 U.S.C. § 1485, does not provide a private right of action because:

(a) Congress has not waived sovereign immunity in this statute, and

(b) There is no implied right of action;

(2) Plaintiff does not have standing to sue under the Administrative Procedures Act, 5 U.S.C. § 701, et seq., because:

(a) Plaintiffs have not shown a redressable injury, and

(b) Plaintiff does not fall within the zone of interests protected by the Housing Act;

and

(3) Plaintiff's members do not have standing to sue as taxpayers.

III. Summary Judgment

Rule 56(c) of the Federal Rules of Civil-Procedure provides for summary judgment "if the pleading, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show the moving party to be entitled to summary judgment as a matter of law." Rule 56(e) states: "When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but must set forth specific facts showing there is a genuine issue for trial."

Both movants and non-movants bear burdens of proof in the summary judgment process. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant with the burden of proof at trial must establish every essential element of its claim or affirmative defense; however, where the movant does not bear the burden of proof at trial, summary judgment is warranted if the non-movant fails to make a sufficient showing to establish the existence of elements essential to its case. Id. at 322-23, 106 S.Ct. at 2552. In so doing, the moving party without the burden of proof need only point to the absence of evidence on an essential element of the non-movant's claims or affirmative defenses. Celotex, 477 U.S. at 323-24, 106 S.Ct. at 2554. At that point, the burden shifts to the non-moving party to produce evidence in support of its claims or affirmative defenses by affidavits or by "`depositions, answers to interrogatories and admissions on file,' designating `specific facts showing that there is a genuine issue for trial.'" Id. at 324, 106 S.Ct. at 2553. The non-moving party with the burden of proof must produce "specific facts" showing a genuine issue for trial, not mere general allegations. Fed.R.Civ.P. 56(e); Tubacex v. M/V Risan, 45 F.3d 951, 954 (5th Cir.1995). The non-movant has failed to meet this standard if its response merely shows that "there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). If no such evidence is produced, "the moving party is entitled to a judgment as a matter of law." Id. at 323, 106 S.Ct. at 2552.

In deciding whether to grant summary judgment, the court should view the evidence in the light most favorable to the party opposing summary judgment and indulge all reasonable inferences in favor of that party. Burgos v. Southwestern Bell Telephone Co., 20 F.3d 633, 635 (5th Cir. 1994) (emphasis added); Int'l Shortstop, Inc. v. Rally's, Inc., 939 F.2d 1257, 1263 (5th Cir.1991), cert. denied, 502 U.S. 1059, 112 S.Ct. 936, 117 L.Ed.2d 107 (1992).

The Court must substantively evaluate the evidence offered by the moving and non-moving parties to determine whether the evidence raises a "material" fact question which is "genuine." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986) A fact question is "material" if it involves "disputes over facts that might effect the outcome of the suit under the governing law." Id. at 248, 106 S.Ct. at 2510; Burgos, 20 F.3d at 635. Thus, the focus of the Court is upon disputes over material facts as supported by the evidence submitted by the parties.

The material fact dispute must be such that a reasonable jury could return a verdict for the nonmoving party. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. The Fifth Circuit has concluded "the standard of review is not merely whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational trier of fact could find for the non-moving party based upon the record evidence before the court." James v. Sadler, 909 F.2d 834, 837 (5th Cir.1990) (citing Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356).

In this case, before the Court will consider the merits of Plaintiff's suit, the Plaintiff bears the burden of proving it has a right of action and that it has standing to sue. Under the rules of summary judgment, Plaintiff, as the non-movant with the burden of proof, must bring forth factual evidence which will support a favorable ruling. So, Plaintiff must produce affidavits, depositions, interrogatories, or other evidentiary items that would carry its trial burden of showing that:

(1) Plaintiff has a right of action, and

(2) Plaintiff has standing to sue.

IV. Discussion

A. Does Plaintiff Have a Right of Action?

Federal Defendants argue that Plaintiff has not alleged a legitimate cause of action because Congress has not waived sovereign immunity from suit under the Housing Act of 1949. Unless Congress has waived sovereign immunity, the United States, its departments, and its employees acting in their official capacities are immune from suits. See Williamson v. U.S. Department of Agriculture, 815 F.2d 368, 373 (5th Cir.1987). For example, the Federal Tort Claims Act acts as a vehicle of consent, waiving sovereign immunity. Id. at 374.

The Housing Act of 1949, however, does not appear to waive sovereign immunity. Several circuits have noted this and ruled that the Housing Act does not explicitly, or even implicitly, grant a right of action. See Falzarano v. United States, 607 F.2d 506 (1st Cir.1979) (holding that tenants in a public assisted housing complex do not have a right...