Bromley-Heath Modern. Com. v. Boston Housing Auth., No. 72-1012.

• Decision Date: 10 May 1972
• Docket Number: No. 72-1012.
• Citation: 459 F.2d 1067
• Parties: BROMLEY-HEATH MODERNIZATION COMMITTEE et al., Plaintiffs-Appellants, v. BOSTON HOUSING AUTHORITY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — First Circuit

459 F.2d 1067 (1972)

BROMLEY-HEATH MODERNIZATION COMMITTEE et al., Plaintiffs-Appellants, v. BOSTON HOUSING AUTHORITY et al., Defendants-Appellees.

No. 72-1012.

United States Court of Appeals, First Circuit.

Heard April 4, 1972.

Decided May 10, 1972.

COPYRIGHT MATERIAL OMITTED

Marshall D. Stein, Roxbury, Mass., with whom Michael Feldman, Boston, Mass., and Alan Laufman were on brief, for appellants.

George F. Mahoney, First Asst. Counsel, Boston, Mass., with whom Paul F. Liston, Gen. Counsel, Boston, Mass., was on brief, for appellees.

Before ALDRICH, Chief Judge, Mc-ENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

This is a challenge to the alleged failure of the Boston Housing Authority to provide adequate security for persons at three adjoining low-rent housing projects, Bromley Park, Heath Street, and Bickford Street, all established under the National Housing Act and subject to regulation by the Department of Housing and Urban Development (HUD). Plaintiffs are the Bromley-Heath Modernization Committee, named tenants in each of the projects, and named employees in the Martha Eliot Health Clinic, located on project grounds. Defendants are the Boston Housing Authority, the members of its board of directors, and several of its managerial employees.

Plaintiffs' claims, brought under 42 U.S.C. §§ 1408, 1441, 1983 and 2000d-1, and regulations promulgated thereunder, with jurisdiction based on 28 U.S.C. §§ 1331, 1343(3) and 1343(4), fall into two groups. The first of these concerns primarily a HUD circular entitled "The Social Goals of Public Housing", issued on March 22, 1968, and addressed to various persons including "Public Housing Authorities". Plaintiffs contend that the circular obligated the defendants to supply adequate security, and that their failure to do so is a violation of the circular, a breach of leases alleged to incorporate the circular, an act of negligence, and a nuisance. The district court, finding the circular merely advisory, dismissed these allegations for failure to state a claim upon which relief could be granted.¹ Plaintiffs' second group of claims arises out of an assertedly disproportionate allocation of security forces to the housing for the "elderly" as compared with those provided for the "family" units. Plaintiffs discern both a denial of equal protection to those in the family section and a denial of equal protection to blacks, who allegedly constitute a large percentage of those in the family section but a small percentage of those in the elderly section. As to these claims, the district court declined to grant a motion to dismiss, but later, on the basis of affidavits, granted summary judgment for the defendants. Plaintiffs appeal from the court's rulings on both groups of claims.

The circular on which plaintiffs rely begins in a tone hardly suggestive of compulsion:

"This circular is intended to spell out the major social objectives of the low-rent housing program, and to stress the urgency of an intensive new effort to achieve them.

"We are convinced that more can and must be done to improve the quality of life for residents of public housing. The Department is committed to an all-out effort to bring this about.

"A thorough and searching examination of our policies, practices, and priorities is called for to see that they are in line with our social objectives. We ask for your full support in this effort."

Plaintiffs would have it that, after a listing of social objectives, the circular gets down to business:

"I would like you to begin immediately to implement the following specific recommendations.

Updating Management Policies and Practices

There are a number of policies and practices which should be reviewed and when appropriate, the following changes made:

The provision of adequate measures for safety and security of tenants."

We simply do not read "I would like you to begin" as more than exhortation. And, though plaintiffs put great stock in it, "immediately" does not transform the wish into a command. The subsequent use of "should", which supplies the only even arguable support for the proposition that the circular was meant to be mandatory, is undermined by the indefiniteness of "when appropriate", a standard which could presumably be applied either by HUD or by the local housing authority.

No more persuasive is plaintiffs' argument by internal contrast. The section "Tenant Participation", which follows "Updating Management Policies and Practices", begins:

"Management should assume the responsibility for encouraging and assisting tenants to get together to solve problems, pool ideas and expand their capacities through self-help and self-determination. Some suggestions follow:"

At base, plaintiffs' argument is that HUD would have used "suggestions" to introduce "Updating Management Policies and Practices" if it had meant the items listed there to be merely precatory. If anything, however, plaintiffs' position is further weakened by the quoted language. In particular, "should" is used here as well, even though tenants could manifestly not by suit compel defendants to encourage tenants to "expand their capacities through self-help". Moreover, the fact that "Tenant Participation" is parallel to "Updating Management Policies and Practices" within the structure of the circular suggests that they ought to be given similar constructions.²

Other aids to construction do not alter what seems apparent from the face of the circular. The circular found mandatory by the Supreme Court in Thorpe v. Housing Authority, 393 U.S. 268, 272 n. 8, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969), was terse and specific, used "essential" and "shall", was later incorporated into the HUD Low-Rent Management Manual, and had been preceded by an advisory circular ("We strongly urge, as a matter of good social policy. . . .") not incorporated into the Manual. In that case HUD itself "confirmed unequivocally" its view that the circular was mandatory. 393 U.S. at 276, 89 S. Ct. 518. In contrast, the present circular is discursive, was not made part of the Manual or its replacements and resembles less the Thorpe circular than its predecessor. And though aware for some time of the present case, HUD has not affirmed that the circular is mandatory. While none of these items, standing alone, is dispositive, together they weigh heavily against the plaintiffs' claim.³

Plaintiffs direct our attention to a number of other circulars and to the 1970 Amendments to the Housing and Urban Development Act. Cast as supporting players, later circulars do not change the role of the lead. The mere circumstances that the "Social Goals" circular has subsequently been referred to and that it has not apparently been cancelled do not make it mandatory— there is nothing in the nature of an advisory circular to preclude a long life.⁴ Plaintiffs' argument, citing legislative history, that the "Social Goals" circular "carries out the clear congressional intent to provide a safe environment" relates to HUD's authority to issue a mandatory circular, not to whether this circular is mandatory.

Plaintiffs' affidavits attesting to beatings, rapes, thefts and other crimes at Bromley-Heath portray a tragically fear-filled community. Yet the issue before us is not the seriousness of the conditions, but whether HUD, by its "Social Goals" circular, intended to compel action by the Housing Authority. To interpret this circular as being mandatory would be to deprive...