Furtick v. Medford Housing Authority, Civil Action No. 95-12283-WGY.

• Court: U.S. District Court — District of Massachusetts
• Writing for the Court: Young
• Citation: 963 F.Supp. 64
• Parties: Stephen FURTICK, Individually and as Father and Next Friend of Sahnita Furtick, Veronica Furtick, and Crystal Furtick, Plaintiffs, v. MEDFORD HOUSING AUTHORITY, United States Department of Housing and Urban Development, and Andrew M. Cuomo, in his Official Capacity as Secretary for the Department of Housing and Urban Development, Defendants.
• Decision Date: 06 May 1997
• Docket Number: Civil Action No. 95-12283-WGY.

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963 F.Supp. 64 Stephen FURTICK, Individually and as Father and Next Friend of Sahnita Furtick, Veronica Furtick, and Crystal Furtick, Plaintiffs,
v.
MEDFORD HOUSING AUTHORITY, United States Department of Housing and Urban Development, and Andrew M. Cuomo, in his Official Capacity as Secretary for the Department of Housing and Urban Development, Defendants. Civil Action No. 95-12283-WGY. United States District Court, D. Massachusetts. May 6, 1997.

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David H. Gibbs, Peabody & Brown, Boston, MA, for plaintiffs.

John L. Greco, Medford Housing Authority, Medford, MA, Michael Sitcov, Dept. of Justice, Civil Division, Washington, DC, for Medford Housing Authority.

Colleen B. Grzeskowiak, Federal Programs Branch, Civil Division, DOJ, Washington, DC, Michael Sitcov, Shirley Wang, Dept. of Justice, Civil Div., Washington, DC, for U.S. Dept. of Housing and Urban Development, Henry Cisneros.

MEMORANDUM AND ORDER

YOUNG, District Judge.

Stephen Furtick and his three children, Sanhita, Veronica, and Crystal (the "Furticks"), commenced this action against the Medford Housing Authority (the "Authority"), the Department of Housing and Urban Development ("HUD"), and the present secretary of HUD, Andrew M. Cuomo ("Cuomo"), in his official capacity.¹ The Furticks claim that the defendants' policies, practices,

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and procedures have created and perpetuated racial discrimination within the federal Section 8 Existing Housing Program.² Specifically, the Furticks allege that 1) the residency preference used by the Authority in distributing Section 8 vouchers has a disparate impact on African-Americans because the majority of Medford residents are white; 2) HUD has failed to fulfill its constitutional and statutory obligations to monitor the criteria used by the Authority to determine who may receive a Section 8 voucher; and 3) Cuomo breached his duty to ensure HUD's compliance with the law.³ The Furticks seek declaratory and injunctive relief,⁴ monetary damages,⁵ attorneys' fees, and costs against all defendants.

Cuomo and HUD have moved for judgment on the pleadings pursuant to Fed. R.Civ.P. 12(c).⁶ They contend that 1) the Furticks lack standing to pursue their claims for injunctive and declaratory relief; 2) the Furticks may not pursue their claims for monetary damages under the United States Housing Act, 42 U.S.C. §§ 1437, 1441, and 1441a, because those provisions do not confer a private right of action; and 3) all of the Furticks' claims for monetary damages are barred by sovereign immunity.

I. BACKGROUND

Under the Section 8 Existing Housing Program, HUD authorizes local public housing authorities ("PHA's") to issue federally-funded vouchers to eligible low income families. 42 U.S.C. § 1437f(b). A Section 8 voucher entitles a family to have the PHA pay a portion of its rent directly to its landlord, provided that the landlord meets certain eligibility requirements. Id. Under HUD's supervision, the PHA's determine which applicants receive the vouchers and which privately-owned residences meet the eligibility criteria for leasing to qualified applicants. 42 U.S.C. § 1437f(c), (o).⁷

To obtain a Section 8 voucher, an eligible family must apply directly to a PRA such as the Authority. 42 U.S.C. § 1437f. The PHA then places the family on a waiting list according to the date of application and certain selection preferences. Some of these preferences,

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known as "federal preferences," are statutorily mandated (e.g., preferences for families who have been involuntarily displaced and are homeless, families who live in substandard housing, and families that pay more than fifty percent of their income for rent). 42 U.S.C. § 1437f(o)(3)(B). "Non-federal preferences," in contrast, are those preferences which are proposed by a local PHA and, if approved by HUD, incorporated into the PHA's administrative plan. Id.; 24 C.F.R. § 982.207. The residency preference at issue in this case is an example of a non-federal preference.

On October 20, 1992, Stephen Furtick, on behalf of himself and two of his daughters,⁸ submitted an application to the Authority for a Section 8 voucher.⁹ On January 11, 1993, the Authority placed the Furticks' application on the waiting list for two-bedroom apartments. At that time, the Authority ranked applicants on its waiting list in the following order: 1) residents of Medford who qualify for a federal preference; 2) non-residents who qualify for a federal preference; 3) residents of Medford who do not qualify for a federal preference; and 4) non-residents who do not qualify for a federal preference. At the time of their application, the Furticks qualified for a federal preference but did not live in Medford, and thus were placed in the second category.

On September 28, 1993, the Furticks filed an administrative complaint with HUD, claiming that the Authority's residency preference discriminated against them on the basis of race in violation of the Fair Housing Act, 42 U.S.C. §§ 3601-3619. On April 11, 1995, HUD issued a Determination of Reasonable Cause and Charge of Discrimination against the Authority. HUD found that 1) whites constituted 72% of the Authority's applicant pool and received 89% of the vouchers, while African-Americans constituted 17% of the applicant pool but received only 9% of the available vouchers, and 2) the residency preference used by the Authority accounts for this racially disproportionate allocation of Section 8 benefits. But on July 25, 1995, HUD withdrew its Determination of Reasonable Cause and Charge of Discrimination, and in August, 1995, HUD dismissed the Furticks' administrative complaint.

The Furticks lived in homeless shelters and transitional housing in the Greater Boston area from August, 1992 until July, 1995, when they received a voucher from another public housing authority and secured a residence with that voucher. On October 18, 1995, the Furticks filed suit in this Court.

II. DISCUSSION

A motion for judgment on the pleadings tests the legal sufficiency of the complaint, not the plaintiffs' likelihood of ultimate success. "The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as the standard for evaluating a Rule (12)(b)(6) motion." Nedder v. Rivier College, 944 F.Supp. 111, 120 (D.N.H.1996) (quoting Metromedia Steakhouses Co. v. Resco Management Inc., 168 B.R. 483, 485 [D.N.H.1994]). A court may grant a dismissal on the pleadings "only if `it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Gaskell, 3 F.3d at 497-98 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 [1957]).

A. Standing for Declaratory and Injunctive Relief

Under the Constitution, a federal court has but limited jurisdiction and can hear only disputes that raise an actual "case or controversy" between the parties before it. U.S. Const. art. 3, § 2; see Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984). The standing requirement that arises from this language in Article III ensures that cases "will be presented

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in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen, 392 U.S. 83, 101, 88 S.Ct. 1942, 1953, 20 L.Ed.2d 947 (1968). "It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has `a personal stake in the outcome of the controversy.'" Id. (quoting Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7 L.Ed.2d 663 [1962]).

A plaintiff satisfies the constitutional requirements for standing when she alleges a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen, 468 U.S. at 751, 104 S.Ct. at 3324 (citation omitted); see also Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville, 508 U.S. 656, 663-64, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993). "The responsibility for `clearly and specifically setting forth facts sufficient to satisfy the Article III standing requirements' rests with the claimant." Adams v. Watson, 10 F.3d at 915, 919 (1st Cir.1993) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1723, 109 L.Ed.2d 135 [1990]).¹⁰

Cuomo and HUD argue that the Furticks lack standing to pursue their claims for declaratory and injunctive relief.¹¹ The Furticks already possess a Section 8 voucher — albeit one obtained from another housing authority — and thus are free to live anywhere in the Commonwealth, including Medford. See Williams v. Hanover Hous. Auth., 926 F.Supp. 10, 12-13 (D.Mass.1996) (citing Williams v. Hanover Hous. Auth., 871 F.Supp. 527, 534 [D.Mass.1991]) (noting that housing agencies agreed to accept prior ruling by this Court that policy of restricting where recipients of Section 8 vouchers may live violates state law).¹² Accordingly, any order issued by this Court requiring HUD to prohibit the use of residency preferences in the application process for Section 8 vouchers would not redress harms presently being suffered by the Furticks. As the Supreme Court reiterated in Lujan v. Defenders of Wildlife, 504 U.S. 555, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), "[p]ast exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ... if unaccompanied by any continuing, present adverse effects." Id. at 564, 112 S.Ct. at 2138 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S.Ct. 669, 675-76, 38 L.Ed.2d 674 [1974]).

The Furticks counter that even though they already possess a Section 8 voucher, they stand to benefit from the equitable relief sought because there is a possibility that they will lose their current section 8 voucher, apply for a new voucher with the Authority, and again be subject to the residency preference. The Constitution, however,...