Johnson v. Housing Authority of Jefferson Parish, 04-31201.

• Decision Date: 06 March 2006
• Docket Number: No. 04-31201.,04-31201.
• Parties: Catrice JOHNSON, et al., Plaintiffs-Appellants, v. HOUSING AUTHORITY OF JEFFERSON PARISH, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

442 F.3d 356

Catrice JOHNSON, et al., Plaintiffs-Appellants, v. HOUSING AUTHORITY OF JEFFERSON PARISH, et al., Defendants-Appellees.

No. 04-31201.

United States Court of Appeals, Fifth Circuit.

March 6, 2006.

Reagan W. Simpson (argued), King & Spalding, Houston, TX, Charles Marshall Delbaum, New Orleans Legal Assistance, New Orleans, LA, for Plaintiffs-Appellants.

Wayne Douglas Mancuso, Harahan, LA, for Housing Authority of Jefferson Parish and Trahan.

Rande Kay Herrell (argued), Austin, TX, for Louisiana Housing Development Corp.

Barbara Bea McDowell, Legal Aid Society for the District of Columbia, Washington, DC, for AARP and Texas Tenants' Union, Amici Curiae.

Fred J. Fuchs, Texas Rural Legal Aid, Austin, TX, for Texas Tenants' Union, Amicus Curiae.

Lisa Walker Scott, Housing & Development Law Institute, Washington, DC, for Housing & Development Law Institute, Amicus Curiae.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before REAVLEY, DAVIS, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

The sole question for us to decide in this appeal is whether participants in the federal Housing Act voucher program (the "voucher program") may bring a private action under 42 U.S.C. § 1983¹ to challenge the calculation of their utility allowances by public housing authorities under § 1437f(o)(2) of the United States Housing Act² and implementing regulations.³ In answering this question, we need not and therefore do not reach the merits of the participating tenants' underlying challenge; our inquiry is limited to whether Plaintiffs-Appellants have a private right of action.⁴ Concluding that they do, we reverse the district court and remand for further proceedings consistent with this opinion.

I. FACTS AND PROCEEDINGS

Plaintiffs-Appellants live in Jefferson Parish, Louisiana, and participate in the voucher program under Section 8. Their residential rents and utility expenses are subsidized through federally-funded vouchers provided by the U.S. Department of Housing and Urban Development (HUD), administered locally by Defendant-Appellee Housing Authority of Jefferson Parish, a public housing authority created by state law. Another Defendant-Appellee, the Louisiana Housing Development Corporation, is a privately held corporation that contracts with the Housing Authority to operate the voucher program in Jefferson Parish.

This "tenant-based" voucher program differs from traditional "project-based" public housing programs by assisting families meeting the statute's low-income standard in renting housing in the private market. The voucher program thus gives participants the flexibility to choose among a variety of housing options. Further, unlike earlier tenant-based programs, which featured a statutory cap that limited a family's permissible housing costs to 30 percent of adjusted monthly income, the current voucher program contains no such cap. It gives participants even greater flexibility in the housing market as well as access to more expensive units that better meet their needs. Under the current program, participating families must contribute at least 30 percent of their adjusted monthly incomes to housing costs, and they may — but need not — spend more. Therefore, the choice of renting a costlier unit is entirely theirs.

In administering the voucher program, the public housing authority issues vouchers that are payable directly to a participant's landlord under a housing assistance payment contract ("HAP contract"), the terms of which are governed by the statute and regulations.⁵ Generally, the amount of this payment is calculated as "the amount by which the rent (including the amount allowed for tenant-paid utilities) exceeds ... 30 percent of the monthly adjusted income of the family."⁶ The "amount allowed for tenant-paid utilities" is determined by the public housing authority, which is directed by regulation to base the utility allowance "on the typical cost of utilities and services paid by energy-conservative households that occupy housing of similar size and type in the same locality ... us[ing] normal patterns of consumption for the community as a whole and current utility rates."⁷ The public housing authority is further required to "review its schedule of utility allowances each year, and must revise its allowance for a utility category if there has been a change of 10 percent or more in the utility rate since the last time the utility allowance schedule was revised."⁸

Plaintiffs-Appellants filed the instant lawsuit in the Eastern District of Louisiana in April of 2004, alleging that Defendants-Appellees (collectively, the "Housing Authority") had not provided them appropriate utility allowances as required by the statute and regulations. Specifically, they contend that the Housing Authority has failed to use current utility rates in calculating the utility allowance, and that it had not revised its utility allowance schedule from 1995 to 2004 despite annual increases in utility rates of 10 percent or more in several years during that period.⁹ The result, insist Plaintiffs-Appellants, is that their rent burdens have been higher than they would have been had the Housing Authority complied with the statute and the implementing regulations, which these participants seek to enforce through their lawsuit.

In October of 2004, the district court, without oral argument or hearing, granted the Housing Authority's motion to dismiss under Rules 12(b)(1) and (6).¹⁰ The district court held that the portions of the voucher program statute and implementing regulations pertaining to the utility allowance do not create individual federal rights that may be enforced by private participants through a § 1983 action. The district court also denied Plaintiffs-Appellants' motion for leave to file a second amended complaint raising the same challenge.

II. STANDARD OF REVIEW

We review a district court's dismissal of a complaint under Rules 12(b)(1) and (6) de novo, taking the allegations of the dismissed complaint to be true.¹¹

III. ANALYSIS

Private individuals may bring lawsuits against state actors under 42 U.S.C. § 1983 to enforce not only constitutional rights but also rights created by federal statutes.¹² It is essential to a private enforcement action under § 1983, however, that the federal statute in question unambiguously give rise to privately enforceable, substantive rights.¹³ The inquiry in this context is virtually the same as that involved in private rights of action implied directly from a federal statute rather than by way of § 1983.¹⁴ In either instance, Congressional intent to create privately enforceable rights is the key.¹⁵

The Supreme Court applies the three-part test that it enunciated in Blessing v. Freestone to determine whether, in enacting a particular statutory provision, Congress intended to create rights enforceable by private parties: (1) Congress must have intended that the provision in question benefit the private plaintiff; (2) the right assertedly protected by the statute must not be so "vague and amorphous" that its enforcement would strain judicial competence; and (3) the statute must unambiguously impose a binding obligation on the states, with the asserted right couched in mandatory rather than precatory terms.¹⁶

The Court's approach to § 1983 enforcement of federal statutes has been increasingly restrictive; in the end, very few statutes are held to confer rights enforceable under § 1983. The narrowness of the doctrine is typified in Gonzaga University v. Doe, the Court's most recent pronouncement on this point, in which it made clear that it "reject[s] the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983."¹⁷ In Gonzaga, in which the three Blessing factors were applied in evaluating a provision of the Family Educational Rights and Privacy Act, the Court unsurprisingly held that the statutory language on which the plaintiffs relied does not support an action under § 1983.¹⁸

We recognize at the outset, therefore, that the result we reach in this case is a rarity, particularly after Gonzaga. We are nevertheless convinced that its resolution is controlled by the Supreme Court's pre-Gonzaga decision in Wright v. City of Roanoke Redevelopment & Housing Authority.¹⁹ In that case, the Court interpreted a provision of the Housing Act that is virtually identical to the one at issue here, to support (1) a § 1983 challenge (2) brought by public housing tenants concerning (3) the calculation of their utility allowances. As Wright predated Blessing by a decade the Court could not have applied the "Blessing test" under that name, yet the Court's analysis in Wright is wholly consistent with that employed in more recent cases, and indeed constitutes an indispensable element of the current methodology.²⁰ Moreover, Gonzaga expressly relied on Wright, pointing to it as a paradigmatic example of an appropriate case for finding the presence of a private right of action under § 1983²¹ and leaving no doubt that Wright survives as good law.

A. Wright Dictates the Outcome in this Case

The plaintiffs in Wright were tenants in low-income housing projects owned by the City of Roanoke Redevelopment and Housing Authority. They sued the Authority under § 1983, alleging that it overbilled them for their utilities and thereby violated the statutory rent ceiling that limited their rent to 30 percent of their adjusted monthly income. The statutory language at issue, commonly referred to as the Brooke Amendment, stated that "[a] family shall pay as rent for a dwelling unit assisted under this chapter (other than a family assisted under section 1437f(o)²² of this title) ... 30 per centum of the family's monthly adjusted income...."²³ The implementing HUD regulation, in turn, specified that the statutory term "rent" included "reasonable amounts of utilities determined in accordance...