Edwards v. District of Columbia, 85-6150
| Decision Date | 12 June 1987 |
| Docket Number | No. 85-6150,85-6150 |
| Citation | 821 F.2d 651 |
| Parties | , 55 USLW 2687 Brenda EDWARDS, et al., Appellants, v. DISTRICT OF COLUMBIA, a municipal corporation, et al. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Richard Gladstein, with whom Lynn Cunningham, Washington, D.C., was on the brief, for appellants.
Beverly J. Burke, Asst. Corp. Counsel, with whom John H. Suda, Acting Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on brief for appellee, the District of Columbia.
Nathan Dodell, Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth and R. Craig Lawrence, Asst. U.S. Attys. and Gershon M. Ratner, Associate Counsel for Litigation, Anthony J. Ciccone, Jr., Trial Atty., U.S. Dept. of Housing and Urban Development, Washington, D.C. were on brief, for federal appellees, Pierce and White.
Before WALD, Chief Judge, WILLIAMS, Circuit Judge, and WILL, * Senior District Judge.
Opinion for the Court filed by Chief Judge WALD.
The United States Housing Act of 1937, as amended, provides that the Secretary of the Department of Housing and Urban Development may only approve an application from a local public housing agency for demolition of a federally funded housing project if the local agency complies with certain conditions set out in the statute. In this case, the District of Columbia's local public housing agency has submitted a demolition application without complying with the conditions, and, accordingly, the Secretary has not approved the application. Plaintiffs maintain, however, that the conditions in the statutory section on demolition themselves impose independent duties on the local agency and secure to the affected tenants correlative rights to the performance of those duties, regardless of whether or not the Secretary has approved the application. We disagree, and affirm the District Court's dismissal of plaintiffs' complaint.
The United States Housing Act of 1937 (USHA), Pub.L. No. 75-412, 50 Stat. 888 () (1982 & Supp. III 1985), is a fairly typical federal grant-in-aid program: in exchange for various types of federal funds, local public housing agencies (PHAs) must comply with an assortment of conditions. Among other things, the Act regulates rent calculation, 42 U.S.C. Sec. 1437a, lease provisions, 42 U.S.C. Sec. 1437d(l ), tenant selection, 42 U.S.C. Sec. 1437d(c)(4)(A), and demolition or disposition of housing projects, 42 U.S.C. Sec. 1437p.
At issue in this case are the requirements for demolition of public housing projects. Section 1437p of 42 U.S.C., titled "Demolition and disposition of public housing," reads, in relevant part, as follows:
(a) ...
The Secretary may not approve an application by a public housing agency for permission ... to demolish ... a public housing project or a portion of a public housing project unless the Secretary has determined that--
(1) ... the project or portion of the project is obsolete as to physical condition, location, or other factors, making it unusable for housing purposes, or no reasonable program of modifications is feasible to return the project or portion of the project to useful life; or in the case of an application proposing the demolition of only a portion of a project, the demolition will help to assure the useful life of the remaining portion of the project;
....
(b) ...
The Secretary may not approve an application or furnish assistance under this section ... unless--
(1) the application from the public housing agency has been developed in consultation with tenants and tenant councils, if any, who will be affected by the demolition or disposition and contains a certification by appropriate local government officials that the proposed activity is consistent with the applicable housing assistance plan; and
(2) all tenants to be displaced as a result of the demolition or disposition will be given assistance by the public housing agency and are relocated to other decent, safe, sanitary, and affordable housing, which is, to the maximum extent practicable, housing of their choice, including housing assisted under section 1437f of this title.
This section is implemented by regulations published at 24 C.F.R. Sec. 970 (1986).
Fort Dupont, consisting of approximately 300 units in southeast Washington, D.C., is one of the District of Columbia's (District) federally subsidized low income housing projects. Although the Department of Housing and Urban Development (HUD) had approved modernization funds for twenty-eight Fort Dupont units in 1977, the rehabilitation work was not performed, and by 1981 escalating costs led the District, through the local PHA, to apply instead for permission to demolish the units. Two years later, the District updated this application to seek permission for demolition of 112 units. HUD has neither approved nor denied the District's request for demolition.
Plaintiffs' factual assertions, which we accept as true in reviewing a dismissal on the pleadings for failure to state a claim, allege "de facto, " Pl. Br. passim, or "constructive" demolition. According to plaintiffs, (1) HUD has not made the determination required by Sec. 1437p(a)(1), and the District has (2) not consulted with the affected tenants, as required by Sec. 1437p(b)(1), (3) not provided for the decent, safe, sanitary, and affordable relocation of these tenants, taking their choices for new quarters into account as much as possible, as required by Sec. 1437p(b)(2), (4) not kept the vacant units in a state of good repair, and (5) made no attempt to rerent these units. Even though HUD has yet to approve the application and the units still stand, plaintiffs assert that the District has "embarked upon a program to demolish public housing," Pl. Rep. Br. at x, without fulfilling the statutory prerequisites.
Plaintiffs, nine current and former residents of Fort Dupont, 1 sued both HUD and the District for declaratory and injunctive relief and damages. Using 42 U.S.C. Sec. 1983 (1982) as a vehicle, plaintiffs asserted that the District violated their rights secured by Sec. 1437p of the USHA, its implementing regulations, 24 C.F.R. Sec. 970 (1986), and the due process clause of the fifth amendment. Plaintiffs claimed additionally, under the Administrative Procedure Act (APA), 5 U.S.C. Sec. 706 (1982), that HUD acted illegally in failing to deny the District's demolition application. Finally, plaintiffs argued that both the District and HUD infringed their rights as third-party beneficiaries of the Annual Contributions Contract (ACC) between the District and HUD, pursuant to which public housing is operated. 2 The District Court dismissed the entire complaint on the pleadings. Edwards v. District of Columbia, 628 F.Supp. 333 (D.D.C.1985). The court's treatment of plaintiffs' Sec. 1983 claim against the District for violation of alleged Sec. 1437p rights was somewhat confusing, however. The court first noted that it would not reach this claim, 627 F.Supp. at 338-39 n. 4, but later expressly concluded that Sec. 1437p(b)(2), requiring appropriate relocation, fails to provide a right against constructive demolition. 628 F.Supp. at 342-43. It held that Sec. 1437p(b)(2) "is only relevant once a demolition application has been approved and plaintiffs are displaced pursuant to the approved demolition." 628 F.Supp. at 342. The court also rejected plaintiffs' due process argument. 628 F.Supp. at 343.
The court further held that plaintiffs' APA claim against HUD for failing to deny the demolition application is not ripe, since the application is admittedly incomplete, and HUD is therefore under no obligation to do anything. 628 F.Supp. at 338-39. Finally, the court dismissed plaintiffs' third-party beneficiary claim, holding that 628 F.Supp. at 345.
Plaintiffs' case turns on whether or not Sec. 1437p provides them rights against constructive demolition of their public housing units. Plaintiffs' channel for enforcing their alleged Sec. 1437p rights is 42 U.S.C. Sec. 1983, which provides that
[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or ... the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
(emphasis added). In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that Sec. 1983 means what it says, and provides a remedy for the deprivation not only of rights secured by the federal Constitution but also of rights secured by federal laws. 3 Thiboutot did not, though, indicate how a court should determine whether or not a law secures a right. 4
One year later, the Court had occasion to flesh out the contours of Thiboutot. At issue in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), was the "bill of rights" provision, 42 U.S.C. Sec. 6010, of the Developmentally Disabled Assistance and Bill of Rights Act (DDA), which declares that
Congress makes the following findings respecting the rights of persons with developmental disabilities:
(1) Persons with...
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