Crochet v. Housing Authority of City of Tampa

Decision Date04 November 1994
Docket NumberNo. 93-2983,93-2983
Citation37 F.3d 607
PartiesVera CROCHET, on behalf of themselves and others similarly situated; Mary Alice Brown, on behalf of themselves and others similarly situated; Annette Reddick, on behalf of themselves and others similarly situated; Michelle Russ, on behalf of themselves and others similarly situated; Lula Williams, on behalf of themselves and others similarly situated, Plaintiffs-Appellants, v. HOUSING AUTHORITY OF the CITY OF TAMPA, a public body corporate; Audley Evans, in his official capacity as Executive Director of the Housing Authority of the City of Tampa, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Eugenia Lee Williamson, Bay Area Legal Services, Inc., Robert Joel Shapiro, State's Asst. Atty., Tampa, FL, for appellants.

Ricardo L. Gilmore, Morrison, Gilmore & Clark, Tampa, FL, for appellees.

Appeal from the United States District Court for the Middle District of Florida.

Before EDMONDSON and COX, Circuit Judges, and JOHNSON, Senior Circuit Judge.

PER CURIAM:

I. Background and Procedural History

The Housing Authority of the City of Tampa ("THA") is a public housing authority (a "PHA") which owns and operates federally subsidized public housing projects in Tampa, Florida. Vera Crochet, Mary Alice Brown, Annette Reddick, Michelle Russ, and Lula Williams (the "Tenants") are tenants living in THA properties. Tampa Electric Company ("TECO"), which is not a party, is an electric utility supplier in the Tampa area.

At the present time, THA employs two methods for handling its tenants' utilities consumption. In approximately 18% of its housing units, THA uses what is called "retail service." 1 Under retail service, THA tenants purchase their electrical power directly from TECO. See 24 C.F.R. Sec. 965.402(h) (1993). Thus, the tenants in these housing units maintain separate, individual accounts as customers of TECO and are individually responsible for paying their monthly TECO bill.

THA then provides these tenants with a utilities reimbursement, a fixed dollar amount representing "reasonable" electrical consumption. Normally, the utilities allowance is reflected in a rent reduction to the tenant, although in cases where rents are extremely low, THA will issue a check to tenants to cover the difference between the utilities allowance and the rent payment. If a tenant consumes more electricity than contemplated by the utilities allowance and has a TECO bill higher than the allowance, the tenant is not reimbursed for the excess. Thus, the excess comes out of the tenant's pocket, not THA's.

In its remaining housing units, THA uses what is called a "checkmeter" system. Under the checkmeter system, TECO supplies electricity to a THA housing project through a "central meter." THA then supplies the power to each unit in the project. Under this system, THA is TECO's only customer; the tenants are not TECO customers. THA's electric bill is based on the monthly readings taken from the project's central meter.

THA, in turn, measures each individual unit's electrical consumption using devices called checkmeters. See 24 C.F.R. Sec. 965.402(b) (1993). THA provides the monthly utility allowance for electricity by computing the "reasonable" usage level and not charging the tenants if their usage is equal to or below that level; a "reasonable" usage level is included in each unit's rent for the month. If a unit uses more electricity than permitted by the utility allowance, THA imposes a surcharge on the tenant for the excess power used. Thus, the excess again is ultimately paid out of the tenant's pocket, not THA's.

The tenants who are plaintiffs in this case reside in units where THA uses the checkmeter system. In June 1991, THA informed the plaintiffs and other residents living in THA's publicly-owned conventional housing developments that it planned to convert their units from checkmetering to retail service. THA's initial letter stated that the residents would be required to pay a deposit and connection fee to initiate service with the utility companies. A second letter stated that TECO would require any resident who had an arrearage from previous electrical service at a non-THA residence to make arrangements to pay the arrearage.

In May 1993, THA notified the residents of Ponce deLeon Courts that they were to make arrangements to pay their deposits and arrearages before July 1, 1993 so that utility service would not be discontinued. The letter threatened that if electric or gas service were cut off, the residents could face eviction. In late July 1993, THA delivered a "Notice of Adverse Action" to tenants in Ponce deLeon Courts who had not paid their utility deposits. The notice stated that the tenants' failure to pay their utility deposits violated their leases, and if arrangements had not been made within seven days of the notice, their leases would be canceled.

Counsel for the Tenants then sent THA's lawyers a letter objecting to the Notice of Adverse Action. In response to the letter, THA rescinded the Notice. The Tenants subsequently filed suit in the district court. They request declaratory and injunctive relief and damages under 42 U.S.C. Sec. 1983 (1988), on behalf of a class composed of "all tenants of THA who are subject to THA's conversion from an individual checkmeter system to retail electrical and gas metering and who have been in the past, are now being, or will be in the future, required to pay to a utility company a utility deposit and any arrearage allegedly owed as a condition of continued tenancy at THA." (R.1-1 p 7.)

The Tenants' complaint alleges that THA's actions violate their rights under: (1) the United States Housing Act of 1937, 42 U.S.C. Secs. 1437 to 1437aaa-8 (1988 & Supp. IV 1992), and regulations promulgated thereunder; (2) the Brooke Amendment to the United States Housing Act of 1937, 42 U.S.C. Sec. 1437a (1988 & Supp. IV 1992); (3) the Due Process Clause of the Fourteenth Amendment, U.S. Const. amend. XIV, Sec. 1; and (4) the laws of the State of Florida. Along with the complaint, the Plaintiffs also filed motions for a temporary restraining order and a preliminary injunction to prevent THA from implementing the conversion to retail metering. After a hearing, the district court denied the Tenants' Motion for Preliminary Injunction, concluding that the Tenants had not demonstrated that they were substantially likely to succeed on the merits of their claims; it then denied the Motion for Temporary Restraining Order as moot. (R.1-26.) The Tenants now appeal pursuant to 28 U.S.C. Sec. 1292(a)(1) (1988) the denial of their Motion for Preliminary Injunction.

II. Standard of Review

A substantial likelihood of success on the merits is one of the conditions the Tenants must satisfy in order to justify a preliminary injunction. See United States v. Jefferson County, 720 F.2d 1511, 1519 (11th Cir.1983). A preliminary injunction is a "drastic" remedy, and we will disturb the denial of a preliminary injunction only if the district court abused its discretion. Cafe 207, Inc. v. St. Johns County, 989 F.2d 1136, 1137 (11th Cir.1993).

III. Discussion

A. United States Housing Act of 1937

The purpose of the United States Housing Act of 1937 ("the Act") is

to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter [42 U.S.C. Secs. 1404a-1440], to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income and, consistent with the objectives of this chapter, to vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs.

42 U.S.C. Sec. 1437 (Supp. IV 1992). The Tenants argue that THA's conversion from checkmetering to retail service will frustrate the purpose of the Act by imposing additional criteria for continued tenancy not authorized by the Act.

In response to the energy crisis of the 1970s and in order to promote energy conservation, the Department of Housing and Urban Development ("HUD") promulgated regulations "requiring that, to the extent practicable, all Utilities consumed directly by tenants shall be individually metered." 24 C.F.R. Sec. 965.401 (1993); see 24 C.F.R. Secs. 965.401-.410 (1993) (Individual Metering of Utilities for Existing PHA-Owned Projects). Prior to these regulations, many PHAs operated on a "mastermeter" system, where the PHA did not keep track of individual utility consumption, but simply paid one bill for all utilities supplied to a building or project through a system meter or meters. See 24 C.F.R. Sec. 965.402(d). All PHAs using mastermetering were required to convert to individual metering if the conversion was financially justified by a cost/benefit analysis described in 24 C.F.R. Sec. 965.404. See 24 C.F.R. Sec. 965.403.

The PHAs were permitted to convert from mastermetering to either retail service or checkmetering, see 24 C.F.R. Sec. 965.401, but the regulations stated no preference between the two systems of individual metering. As we noted previously, THA currently uses both systems, and assignment to units in one system or the other is completely random. In the district court, the Tenants argued that THA had not complied with the individual metering regulations. The district court concluded that the individual metering regulations did not apply to THA's proposed conversion because THA was converting from checkmetering to retail service, not from mastermetering to retail service. Thus, the district court concluded that "no showing has been made that THA is imposing conditions for eligibility inconsistent with the Housing Act of 1937." (R.1-29 at 6.)

The Tenants argue on appeal that while THA's proposed conversion may not violate the individual metering regulations, it nonetheless is inconsistent with the Act itself. In support...

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