Gholston v. Housing Authority of City of Montgomery

Decision Date09 June 1987
Docket NumberNo. 85-7555,85-7555
Citation818 F.2d 776
PartiesDoris GHOLSTON, Ind. and on behalf of all others similarly situated, Plaintiffs-Appellants, v. The HOUSING AUTHORITY OF the CITY OF MONTGOMERY; J.C. Miller, Ind. and in his official capacity as Executive Director of the Housing Authority of the City of Montgomery; Jesse H. Griffin; Frank Parquette; Jerry Kyser; John F. McKnight, Jr. and Anne B. Upchurch, Ind. and in their official capacities as members of the Board of Commissioners of the Housing Authority of the City of Montgomery, Defendants-Appellees.
CourtU.S. Court of Appeals — Eleventh Circuit

Patricia E. Ivie, Robert J. Varley, Legal Services Corp. of Alabama, Montgomery, Ala., for plaintiffs-appellants.

Michael S. Jackson, Melton & Espy, Montgomery, Ala., for defendants-appellees.

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

Before TJOFLAT and ANDERSON, Circuit Judges, and MORGAN, Senior Circuit Judge.

TJOFLAT, Circuit Judge:

The appellants in this case are applicants for public housing who brought a class action against the Housing Authority of the City of Montgomery, Alabama and various officials of the housing authority (hereinafter referred to collectively as the MHA). Appellants contend that the MHA violated provisions of the United States Housing Act of 1937, 42 U.S.C. Secs. 1401-1440 (1982 & Supp. III 1985), and of the implementing regulations issued by the United States Department of Housing and Urban Development (HUD). Specifically, they allege that the MHA (1) categorically denied admission to public housing applicants whose rent payments would be one to twenty dollars per month and to those who would be entitled to zero or negative rent, see 24 C.F.R. Sec. 960.204(c)(1) (1986); (2) failed to implement statutorily mandated admission preferences for displaced families, families occupying substandard housing, and families paying more than fifty percent of their income for housing, see 42 U.S.C. Sec. 1437d(c)(4)(A) (1982 & Supp. III 1985); (3) held housing units vacant to await higher income tenants while lower income applicants remained on a waiting list, see id.; (4) failed to comply with the 1981 and 1983 amendments to the Housing Act, which limit the percentage of available housing units that can be filled by families other than very low income families, see 42 U.S.C. Sec. 1437n (1982 & Supp. III 1985) (codifying 1981 and 1983 amendments); and (5) failed to advise very low income families of an approximate occupancy date, in violation of 24 C.F.R. Sec. 960.207(b) (1986). Appellants sought injunctive and monetary relief for these violations under 42 U.S.C. Sec. 1983 (1982). 1

After a bench trial, the district court found that the MHA had not violated any provision of the Housing Act or HUD regulations, and therefore entered judgment for the appellees. This appeal followed.


Congress enacted the Housing Act "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." 42 U.S.C. Sec. 1437 (1982). To further these objectives, the Act authorizes HUD to provide low interest loans, grants, and other assistance for the construction and operation of housing for low income families. See, e.g., id. Secs. 1437b-d, 1437g & 1437i (1982 and Supp. III 1985). By subsidizing local housing authorities like the MHA, Congress enables, and requires, the housing authorities to set rents for eligible low income tenants below the market price. See id. Sec. 1437a(a). Other provisions of the Housing Act govern the housing authorities' admissions policies, see id. Sec. 1437d(c)(3)-(4)(A), administrative grievance procedures, id. Sec. 1437d(k), and lease terms and conditions, id. Sec. 1437d(l).

One general policy of the Housing Act is "to vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs." Id. Sec. 1437. Local housing authorities must, however, comply with the Housing Act's statutory directives and with HUD regulations.

This case concerns the MHA's compliance, since 1982, with the Housing Act's admissions provisions. The Housing Act permits housing authorities to rent dwelling units "only to families who are lower income families at the time of their initial occupancy" of the units. Id. Sec. 1437a(a); see also 24 C.F.R. Sec. 913.103 (1986). "Lower income families" are defined as families whose income, adjusted for family size, does not exceed eighty percent of the median family income for their geographic area. 42 U.S.C. Sec. 1437a(b)(2) (Supp. III 1985); 24 C.F.R. Sec. 913.102(e) (1986).

In 1981, Congress amended the Housing Act in order to redirect limited housing funds to the neediest of families. Omnibus Budget Reconciliation Act of 1981, Pub.L. No. 97-35, Title III, Sec. 323, 95 Stat. 404 (codified as amended at 42 U.S.C. Sec. 1437n (1982 & Supp. III 1985)); see S.Rep. No. 139, 97th Cong., 1st Sess. 229-30, reprinted in 1981 U.S.Code Cong. & Admin.News 396, 525-26. The new provision of the Housing Act provided as follows:

Not more than 10 per centum of the dwelling units which were available for occupancy under public housing annual contributions contracts ... under [the Housing Act] before October 1, 1981, and which will be leased on or after October 1, 1981, shall be available for leasing by lower income families other than very low-income families.

42 U.S.C. Sec. 1437n(a) (1982) (amended 1983). 2 Two years later, Congress amended this provision to permit housing authorities to rent up to twenty-five percent of dwelling units to families other than "very low-income families." Domestic Housing & International Recovery & Financial Stability Act, Pub.L. No. 98-181, Title II, Sec. 213, 97 Stat. 1184 (1983) (codified at 42 U.S.C. Sec. 1437a (Supp. III 1985)); see also 24 C.F.R. Sec. 913.104 (1986). The term "very low-income families," as used in the Housing Act, refers to lower income families whose income, adjusted for family size, does not exceed fifty percent of the median family income in the relevant geographic area. 42 U.S.C. Sec. 1437a(b)(2) (1982 & Supp. III 1985); 24 C.F.R. Sec. 913.102(e) (1986). Thus, to comply with section 1437n(a), as amended, a housing authority must lease at least seventy-five percent of its dwellings to very low income families; the housing authority may lease the remainder of its dwellings to low income families.

In addition to setting eligibility requirements for applicants for public housing, the Housing Act permits HUD to establish "preferences" among otherwise eligible applicants and to set goals for local housing authorities:

Every contract for annual contributions [between HUD and the local housing authority] shall provide that ... the public housing agency shall comply with such procedures and requirements as the Secretary may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to ... the establishment of tenant selection criteria which gives preference to families which occupy substandard housing or are involuntarily displaced at the time they are seeking assistance under this chapter or are paying more than 50 per centum of family income for rent and which is designed to assure that, within a reasonable period of time, the project will include families with a broad range of incomes and will avoid concentrations of lower income and deprived families with serious social problems, but this shall not permit maintenance of vacancies to await higher income tenants where lower income tenants are available....

42 U.S.C. Sec. 1437d(c)(4)(A) (Supp. III 1985). Under this provision, HUD is authorized to promulgate four tenant selection criteria: (1) a preference for families occupying substandard housing; (2) a preference for families who are involuntarily displaced; (3) a preference for families who are paying more than fifty percent of their income for rent; and (4) criteria designed to establish an economic mix of tenants, avoiding "concentrations of lower income and deprived families with serious social problems," but constrained by the requirement that the public housing authority cannot maintain vacancies to await higher income tenants when lower income tenants are available.

Finally, HUD regulations require that local housing authorities follow prescribed procedures for informing applicants of their eligibility for low-income housing and of the availability of such housing. Those regulations provide as follows:

(a) The [local housing authority] shall promptly notify any applicant determined to be ineligible for admission to a project of the basis for such determination and shall provide the applicant upon request, within a reasonable time after the determination is made, with an opportunity for an informal hearing on such determination.

(b) When a determination has been made that an applicant is eligible and satisfies all requirements for admission including the tenant selection criteria, the applicant shall be notified of the approximate date of occupancy insofar as that date can be reasonably determined.

24 C.F.R. Sec. 960.207(a)-(b) (1986).


We begin our review of the district court's decision by noting that there is some question whether the admissions provisions of the Housing Act and HUD's implementing regulations establish rights enforceable under 42 U.S.C. Sec. 1983 (1982), and whether Congress has established a comprehensive enforcement scheme in lieu of section 1983 enforcement. See generally Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981); Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981). The Supreme Court, in its recent decision in...

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