Estrada v. Hills

• Decision Date: 08 August 1975
• Docket Number: No. 74 C 2418.,74 C 2418.
• Citation: 401 F. Supp. 429
• Parties: Jesus ESTRADA et al., Plaintiffs, v. Carla HILLS, Secretary, Department of Housing and Urban Development, et al., Defendants.
• Court: U.S. District Court — Northern District of Illinois

401 F. Supp. 429

Jesus ESTRADA et al., Plaintiffs, v. Carla HILLS, Secretary, Department of Housing and Urban Development, et al., Defendants.

No. 74 C 2418.

United States District Court, N. D. Illinois, E. D.

August 8, 1975.

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Thomas J. Grippando, Chicago, Ill., Joyce Gradel (Senior Law Student), for plaintiffs.

Michael D. Stevenson, Asst. U. S. Atty., Chicago, Ill., for defendants.

MEMORANDUM OPINION

MARSHALL, District Judge.

The issue pending in this motion for summary judgment is whether defendants, who are federal Government officials, are immune from liability for money damages. The gravamen is that defendants maliciously and wilfully violated Department of Housing and Urban Development (HUD) regulations,¹ Illinois statutes, and Chicago ordinances with respect to the maintenance of a vacant HUD building in Chicago. Plaintiffs alleged that they notified defendants repeatedly of the hazardous condition of the building, but that defendants failed to take ameliorative action. Ultimately these violations allegedly led to a fire in the HUD building, causing the adjacent building, which housed plaintiffs, to burn down. Defendants are the Secretary of HUD, three Chicago area HUD officials, the Chicago Area Management Broker for HUD, and the Broker's owner, Milton Worsek. The Broker is under contract with HUD to perform maintenance work on HUD buildings. Plaintiffs seek monetary relief against all defendants except the Secretary of HUD, who was the only HUD defendant not sued personally. See Poindexter v. Woodman, 357 F. Supp. 443 (D.Kan.1973).

Jurisdiction

Plaintiffs originally brought this action in the Circuit Court of Cook County and defendants removed under 28 U.S.C. § 1442(a)(1) (1970). This statute permits federal officers sued or prosecuted to remove actions to federal court whether or not the federal court would have had original jurisdiction, and reflects a congressional judgment that federal officers should be able to defend any action in a federal forum. Section 1442(a)(1) is the sole basis of jurisdiction here. Accordingly, the appropriate source of relief, if any, is under Illinois law. Plaintiffs have alleged wilful and malicious conduct giving rise to common law tort liability. They also claim defendants violated Chicago municipal ordinances, and that they may bring an action to correct or abate the violation pursuant to Ill.Rev.Stat. ch. 24, § 11-13-15 (1973), which provides in part:

... any owner or tenant of real property, within 500 feet in any direction or the property on which the building or structure in question is located who shows that his property or person will be substantially affected by the alleged violation, in addition to other remedies, may institute any appropriate action or proceeding . . . (3) to prevent any illegal act, conduct, business, or use in or about the premises, or (4) to restrain, correct, or abate the violation. ...

* * * * * *

An owner or tenant need not prove any specific, special or unique damages to himself or his property or any adverse effect upon his property from the alleged violation in order to maintain a suit under the foregoing provisions.

In addition, plaintiffs allege that defendants violated HUD regulations, which may create an enforceable duty under federal law. Compare Brown v. Lynn, 385 F.Supp. 986, 998 (N.D.Ill. 1974) with Brown v. Housing Authority of Milwaukee, 471 F.2d 63 (7th Cir. 1972).

Although this action sounds in tort, jurisdiction is not and need not be present under the Federal Tort Claims Act, 28 U.S.C. § 1346(b) (1970). In addition, federal question jurisdiction is not present, despite defendants' assertion to the contrary in the removal petition, because each plaintiff failed to allege that over $10,000 was in controversy.² Zahn v. International Paper, 414 U.S. 291, 94 S.Ct. 505, 38 L.Ed. 2d 511 (1973).

Statutory Waiver of Sovereign Immunity

According to 12 U.S.C. § 1702, defendants are amenable to suit. Section 1702 provides that the Secretary of HUD may be sued in his official capacity in connection with carrying out the provisions of the National Housing Act. This section is an effective waiver of sovereign immunity³ and federal courts have the power to enforce the provisions of this Act against the federal government. Baker v. F & F Investment Co., 489 F.2d 829 (7th Cir. 1973); Brown v. Lynn, 385 F.Supp. 986, 991 (N.D.Ill. 1974). Furthermore, § 1702 authorizes actions against government officials for money damages. Baker v. F & F Investment Co., supra, at 834.

Lest there be any doubt that defendants were carrying out provisions of the National Housing Act in doing the acts alleged, 12 U.S.C. § 1710(g) (1970) gives the Secretary of HUD the power to

deal with, complete, rent, renovate, modernize, insure, or sell for cash or credit, in his discretion, any properties conveyed to him.

The purpose of this section is to enable the Secretary to acquire property in the event of a default or a foreclosure, so that he may market it, rehabilitate or otherwise dispose of it. Manners v. Secretary of HUD, 333 F.Supp. 829 (E.D.N. Y.1971). The ill-kept building at issue was HUD-owned, and in maintaining or failing to maintain it, defendants were acting under authority of the National Housing Act.⁴

Procedural Background

After defendants removed the action, they filed a motion to dismiss. On December 6, 1974, that motion was denied, but we held that defendants Waner, Miller, and Ice, the Chicago Area HUD officials, were not liable for money damages. On January 7, 1975, upon reconsideration, we dismissed the prayer for monetary relief against Worsek also. On February 18, 1975, we modified these orders and held that defendants' motion to strike the claim for damages must be denied. This ruling rests on Willingham v. Morgan, 424 F.2d 200 (10th Cir. 1970), in which the court held that immunity from monetary relief is an affirmative defense which must be pleaded and factually proven and consequently should not be granted on a motion to dismiss. Now, defendants Waner, Miller, Ice and Worsek have submitted affidavits which, they claim, establish their immunity and entitle them to summary judgment on the issue of money damages. The test for immunity from money damages will be discussed first, and then the test will be applied to the defendant officials.

The Test of Immunity

The test for whether an official shall be immune from liability for money damages is not mechanical. It requires a careful inquiry into the nature of the alleged wrongful acts and the scope of the accused official's duties. The need for a careful inquiry stems from the competing policies underlying official immunity from money damages. From the perspective of the individual citizen, some compensatory remedy must be available to vindicate injury inflicted by government officials whose actions exceed their authority. From the perspective of the public interest in effective government administration, officials must be free to exercise their duties, especially discretionary duties, without having to defend their actions in court. The doctrine of immunity reflects the view that an official may be excessively hampered if he is subject to the tedious and potentially embarrassing process of litigation, regardless of the ultimate outcome. Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959); Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir. 1949).

Accordingly, the first step of the inquiry is deciding whether the acts complained of were within the outer perimeter of the defendant's official duties. If the actions were beyond this boundary, clearly the officer is not immune. But does immunity automatically attach if the official was acting within the outer perimeter of his authority?

The Seventh Circuit has answered this question affirmatively, and granted immunity upon a showing that the defendant official was acting within the scope of his authority. Scherer v. Morrow, 401 F.2d 204 (7th Cir. 1968) cert. denied, 393 U.S. 1084, 89 S.Ct. 868, 21 L. Ed.2d 777 (1969); Scherer v. Brennan, 379 F.2d 609 (7th Cir. 1967) cert. denied, 389 U.S. 1021, 88 S.Ct. 592, 19 L. Ed.2d 666 (1967).

The Second Circuit, on the other hand, imposes an additional test before granting immunity. In Bivens v. Six Unknown Named Agents of Fed. Bur. of Narc., 456 F.2d 1339 (2d Cir. 1972), the court held that federal officers are immune only if they were acting within the scope of their authority and if their duties were discretionary.⁵ In developing the discretionary function test, the court relied upon language in Barr v. Matteo, supra, that officers are immune if they perform

discretionary acts at those levels of government where the concept of duty encompasses the sound exercise of discretionary authority. 360 U.S. 564, 575, 79 S.Ct. 1335, 1341, 3 L.Ed.2d 1434.

In Bivens, the court specifically found that the officers, who were sued in connection with making arrests, were acting within their authority but were not exercising discretion. The court then held that the officers were not immune from money damages.⁶

Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed. 912 (1972), provides additional authority for applying the discretionary function test in this circuit. In Doe, the immunity of the Public Printer and the Superintendent of Documents for Congress was at issue. Plaintiffs alleged that these officials invaded their privacy by publishing certain derogatory documents for use in Congress and distribution elsewhere. The Court found that the officials were acting within the scope of their duties but that their duties were not discretionary. The Court held that official immunity does not automatically attach to any conduct expressly or impliedly authorized by law, unless the official was exercising a discretionary function. This rule is appropriate because effective government is not severely impaired if officials with...