Brown v. Housing Authority of City of McRae, Ga.

• Decision Date: 25 March 1986
• Docket Number: No. 85-8186,85-8186
• Citation: 784 F.2d 1533
• Parties: Mary BROWN, et al., Plaintiffs-Appellants, v. HOUSING AUTHORITY OF the CITY OF McRAE, GEORGIA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1533

784 F.2d 1533

54 USLW 2502

Mary BROWN, et al., Plaintiffs-Appellants, v. HOUSING AUTHORITY OF the CITY OF McRAE, GEORGIA, et al.,

Defendants-Appellees.

No. 85-8186.

United States Court of Appeals, Eleventh Circuit.

March 25, 1986.

Howard Sokol, Macon, Ga., M. Ayers Gardner, Atlanta, Ga., for plaintiffs-appellants.

R. William Buzell, II, Macon, Ga., Lawrence B. Lee, Savannah, Ga., Edwin B. Brading, Dept. of Housing & Urban Dev., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Georgia.

Before HILL and FAY, Circuit Judges, and TUTTLE, Senior Circuit Judge.

PER CURIAM:

Plaintiffs, tenants of public housing projects owned and operated by the defendant Housing Authority of the City of McRae, Georgia, appeal from an order of dismissal by the district court. Plaintiffs sought injunctive, declaratory and monetary relief against defendants, the Housing Authority; its Executive Director and Board of Commissioners (hereinafter "the local defendants"); and the Secretary of Housing and Urban Development (hereinafter "HUD"), for alleged inaccuracies in the computation of plaintiffs' utility allowances by the Housing Authority. The district court dismissed plaintiffs' complaint as to all the defendants for failure to state a claim upon which relief can be granted. We affirm.

I.

In this action, filed July 23, 1984, plaintiffs and the class they had hoped to represent ¹ alleged that the defendants violated the Brooke Amendment to the United States Housing Act of 1937, 42 U.S.C. Sec. 1437a (1982 & Supp. I 1983), which limits the rent which can be charged to public housing tenants to a fixed portion of their income. ² HUD's regulations implementing the Brooke Amendment, provide that rent shall include allowances for utility charges. See 24 C.F.R. Secs. 965.470-.480 (1985). In the instant case, plaintiffs specifically allege that the local defendants established utility allowances which were not in accordance with applicable HUD regulations, i.e., the utility allowances were set unreasonably low and were not periodically revised, and that defendant HUD failed to properly monitor and obtain compliance of the local defendants with the Brooke Amendment and its implementing regulations. In addition to their claims for relief under the United States Housing Act, (hereinafter "USHA"), the Brooke Amendment thereto, and HUD's implementing regulations, plaintiffs asserted claims for relief under 42 U.S.C. Sec. 1983 (1982); and the Administrative Procedure Act, 5 U.S.C. Secs. 701-706 (1982 & Supp. II 1984)) (hereinafter "APA").

On October 10, 1984, the local defendants filed a motion to dismiss and on October 19, 1984, defendant HUD filed a motion to dismiss or, in the alternative, for summary judgment. The basis for the defendants' motions was their contention that the plaintiffs' complaint failed to state a claim upon which relief could be granted. Essentially, the local defendants maintained that there was no implied private right of action to enforce the Brooke Amendment nor was there a cause of action to enforce the Brooke Amendment under section 1983. Defendant HUD also maintained that there was no implied private right of action and further argued that the APA did not provide for judicial review of HUD's enforcement activity because that was committed to agency discretion under 5 U.S.C. Sec. 701(a)(2) (1982). On December 13, 1984 the district court granted the defendants' motions and dismissed with prejudice the case as to all defendants. This timely appeal followed.

II.

We are mindful at the outset of the scope of our review. As this matter is before us on a dismissal for failure to state a claim upon which relief can be granted, we must determine whether the plaintiffs could prove no set of facts in support of their claims which would entitle them to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) (footnote omitted). For the purposes of our review, we treat all of the allegations in plaintiffs' complaint as true. See Stone Mountain Game Ranch, Inc. v. Hunt, 746 F.2d 761, 763 n. 4 (11th Cir.1984). (citation omitted). We consider initially whether the district court erred as a matter of law in ruling that plaintiffs (1) failed to state a claim for relief against the local defendants under section 1983 and (2) failed to state a claim for relief against the local defendants and HUD in an implied private right of action under the Brooke Amendment. We then turn to consider whether the district court erred as a matter of law in ruling that plaintiffs had not stated a claim for relief against HUD for judicial review of agency action under the APA.

III.

Whether plaintiffs have a section 1983 cause of action and an implied private right of action to enforce the rent provisions of the Brooke Amendment represent questions of first impression in this circuit. The Fourth Circuit has recently ruled on these precise questions in a similar action alleging violations of the Brooke Amendment and HUD's regulations, relating to utility allowances, promulgated pursuant thereto. See Wright v. City of Roanoke Redevelopment & Housing Authority, 771 F.2d 833 (4th Cir.1985), cert. granted, --- U.S. ----, 106 S.Ct. 848, 88 L.Ed.2d 889 (1986). ³ We concur with that court's well reasoned analysis and its conclusion that alleged violations of the rent provisions of the Brooke Amendment do not give rise to a section 1983 cause of action nor does there exist an implied private right of action to enforce the Brooke Amendment.

1. The Section 1983 Claim

The section 1983 remedy, which applies expressly to deprivations of "rights ... secured by the Constitution and laws" under color of State "statute, ordinance, regulation, custom, or usage," 42 U.S.C. Sec. 1983, may also be applied to redress violations of federal statutory law. Maine v. Thiboutot, 448 U.S. 1, 4, 100 S.Ct. 2502, 2504, 65 L.Ed.2d 555 (1980). In determining whether a violation of a particular federal statute may lead to section 1983 liability, the court must find that (1) the statute which was allegedly violated was the kind that created enforceable "rights," within the meaning of section 1983 and (2) that Congress in enacting the statute and its scheme of enforcement, did not foreclose private enforcement for violations thereunder. Wright, 771 F.2d at 835 (footnote omitted) (citing to 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) and Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 28, 101 S.Ct. 1531, 1545, 67 L.Ed.2d 694 (1981)). In Wright, the Fourth Circuit properly applied these two tests in determining that the Brooke Amendment does not give rise to a section 1983 cause of action.

In analyzing the first test, whether enforceable rights within the meaning of section 1983 were created, the Fourth Circuit in Wright relied on its earlier holdings in Perry v. Housing Authority, 664 F.2d 1210 (4th Cir.1981) and Phelps v. Housing Authority, 742 F.2d 816 (4th Cir.1984) in determining that the Brooke Amendment creates no enforceable rights, within the meaning of section 1983, in those tenants who occupy public housing projects. In Perry, plaintiffs sought to use section 1983 to correct allegedly unsafe and unsanitary housing conditions, by asserting a substantive right in the broad policy clauses of USHA, 42 U.S.C. Secs. 1437, 1441, 1441a. The court held that although the tenants were the intended beneficiaries of USHA, the generalized policy statements of the Act did not alone create any legally cognizable rights in the tenants. 664 F.2d at 1217 (footnote omitted). Similarly, in Phelps, the court held that the preference and notice provisions established under USHA, 42 U.S.C. Sec. 1437d(c)(4)(A) and Sec. 1437d(c)(3)(ii) respectively, although more specific provisions than those involved in Perry, also did not create the kind of rights actionable under section 1983. 742 F.2d at 822 (footnote omitted). The court found it "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.' " Wright, 771 F.2d at 836 (quoting Phelps, 742 F.2d at 822). In Wright, the court extended the reasoning of Perry and Phelps and found that section 1437a, the rent provisions of the Brooke Amendment at issue in the instant case, were likewise not the kind of rights enforceable under section 1983. Although finding in the Brooke Amendment an intent to benefit generally public housing tenants, the Wright court stated "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." 771 F.2d at 836-37. We agree.

As regards the second test, the foreclosure of private enforcement, the court in Wright concluded, as it did in Phelps, that Congress had designated HUD, rather than the tenants themselves, as the enforcer of USHA thereby intending to foreclose private enforcement. Id. at 836 & n. 7 (citations omitted). " 'Apart from the obvious lack of any affirmative statutory language indicating a Congressional intention to allow private remedial suits, [USHA] is replete with indications of an intention to entrust HUD with the means and the responsibility for effective enforcement.' " Id. at 836 (quoting Phelps, 742 F.2d at 821). Part of the statutory enforcement scheme includes the Annual Contributions Contract executed between HUD and each local housing authority. See 24 C.F.R. Sec. 941.103 (1985) (defining Annual Contributions Contract). Pursuant to these contracts, HUD disburses federal funds to the local authorities provided that the local authorities comply with USHA and...