Knox Hill Tenant Council v. Washington

• Decision Date: 04 February 1971
• Docket Number: No. 22781.,22781.
• Citation: 448 F.2d 1045
• Parties: KNOX HILL TENANT COUNCIL et al., Appellants, v. Walter E. WASHINGTON, Individually and as Commissioner of the District of Columbia, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

448 F.2d 1045 (1971)

KNOX HILL TENANT COUNCIL et al., Appellants, v. Walter E. WASHINGTON, Individually and as Commissioner of the District of Columbia, et al.

No. 22781.

United States Court of Appeals, District of Columbia Circuit.

Argued September 12, 1969.

Decided February 4, 1971.

Mr. Richard B. Stewart, Washington, D. C., with whom Messrs. Peter Smith and J. Kirkwood White, Washington, D. C., were on the brief, for appellants.

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for the District of Columbia appellees.

Mr. Frank B. Friedman, Atty., Department of Justice, with whom Messrs. George R. Hyde and Herbert Pittle, Attys., Department of Justice, were on the brief, for the federal appellees.

Before McGOWAN, LEVENTHAL and MacKINNON, Circuit Judges.

McGOWAN, Circuit Judge:

This appeal is from a judgment of the District Court denying a motion for a preliminary injunction and dismissing the complaint on the grounds of (1) failure to state a claim for which relief may be granted and (2) the action is an unconsented suit against the United States. Appellants are individual tenants (and associations of such tenants) of public housing facilities in the District of Columbia, suing on behalf of themselves and all others similarly situated (Fed.R. Civ.P. Rule 23), and complaining of the failure of such facilities to be properly maintained and repaired. Appellees are officials of (1) the Department of Housing and Urban Development of the United States (HUD), (2) the National Capital Housing Authority (NCHA), and (3) the District of Columbia Government concerned with enforcement of the D.C. Housing Regulations. The complaint seeks declaratory and injunctive relief. We are presently concerned only with the questions of (1) the District Court's jurisdiction to entertain the action at all, and (2) whether the complaint states a claim upon which relief can be granted. For the reasons hereinafter appearing, we reverse the judgment of dismissal and remand the case for trial.

I

Deeming it essential to an understanding of the issues raised by this appeal, we address ourselves first to the scheme under which public housing is provided in the United States generally, and in the District of Columbia in particular. The keystone statute is the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq., sponsored by Senator Wagner of New York, and strongly supported by Senator Taft of Ohio. It was a recognition by the Congress that the social evils inherent in substandard housing throughout the nation would yield only to a demonstration of federal interest and the provision of federal funds.¹ The substantive provisions of that Act are prefaced (§ 1401) by an explicit declaration that it is

"the policy of the United States to promote the general welfare of the Nation by employing its funds and credit, as provided in this chapter, to assist the several States and their political subdivisions to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income, in urban and rural nonfarm areas, that are injurious to the health, safety, and morals of the citizens of the Nation * * *."

The Act went on (§ 1402(1)) to define the "low-rent housing," which it was its purpose to provide, as "decent, safe, and sanitary dwellings within the financial reach of families of low income;" and it characterized the latter (§ 1402 (2)) as persons unable to procure in the private market "an adequate supply of decent, safe, and sanitary dwellings for their use." The Act authorized loans and grants of federal money for both the construction and the operation of such housing, to the end not only that its low-income nature should be preserved, but also its "decent, safe, and sanitary" character.

The making and administration of such loans and grants are vested in HUD. They are available to locally created housing agencies throughout the country under continuing contracts in which those agencies assume certain obligations (42 U.S.C. § 1415(4)). One of those obligations is operation calculated to maintain the "decent, safe, and sanitary" character of the dwellings. It is the responsibility of HUD to police the performance of these contracts; and the sanctions with which it is armed in this regard are those of (a) reducing or terminating the annual federal contributions (42 U.S.C. § 1415(3)), (b) increasing the interest rate on loans or declaring them in default (42 U.S.C. § 1415 (1)), or (c) assuming the actual management of a project. It is further authorized to make emergency financial grants "where necessary to eliminate a serious hazard to life, health, or safety of the occupants * * *."

Outside the District of Columbia, local housing agencies characteristically come into being under authority deriving ultimately from the state legislatures. Within the District, and in order to enable its residents to share in the purposes of the Housing Act of 1937, the Congress acted to create a qualified local housing agency. The resulting statute is contained in the District of Columbia Alley Dwelling Law, 5 D.C.Code § 103 et seq. It designates NCHA as "a public housing agency within the meaning of, and to carry out the purposes of," the Housing Act of 1937. As such, it is authorized to receive grants or loans from HUD for the "construction, maintenance, or operation" of public housing projects, to enter into contracts incident to such receipt, and to comply with conditions contained in such contracts.

There is presently in being an agreement between NCHA and HUD entitled the "Consolidated Annual Contributions Contract." That contract provides that NCHA shall at all times (1) "operate each Project * * * solely for the purpose of providing decent, safe, and sanitary dwellings * * *" and (2) "maintain each Project in good repair, order, and condition." These undertakings appear to be common to every such contract between HUD and a local housing agency. What is different between the District of Columbia and elsewhere is that, in the former, legal title to the physical facilities constituting a project is in the United States.

II

The complaint in the District Court alleged that, despite repeated efforts by tenants to call attention to, and to secure correction of, defects creating hazards to health and safety, appellees have failed to respond in compliance with their various statutory, regulatory, or contractual responsibilities, including what are asserted to be implied covenants in the formal leases entered into between each tenant and NCHA.² It is alleged that inspectors of the D.C. Department of Licenses and Inspections have visited the premises and have served notices on NCHA of violations and deficiencies in respect of the D.C. Housing Regulations. Such notices have allegedly been ignored by the recipient, and not further pursued by the D.C. officials ultimately responsible for their enforcement. This last is said to be in contrast with enforcement actions taken against private landlords, and thereby to constitute a denial to appellants by the District officials involved of the constitutional right to equal protection guaranteed by the Fifth Amendment. The other appellees are variously charged with violating the Housing Act of 1937, the D.C. Alley Dwelling Law, the D.C. Housing Regulations, the annual contributions contract, and the individual leases.

The declaratory relief prayed for was that appellees be adjudged (1) under a duty to repair and maintain the premises in a decent, safe, and sanitary condition "as required by the United States Housing Act, the District of Columbia Alley Dwelling Law, and the Lease agreement, in compliance with the Housing Regulations of the District of Columbia," and (2) to have failed to discharge this duty. Injunctive relief to the same end was requested against all appellees; and, in addition, the D.C. officials were sought to be enjoined from failing or refusing to enforce the Housing Regulations against NCHA.

Appellants filed a motion for a preliminary injunction, accompanied by affidavits of individual tenants describing substandard conditions. The federal officials and the District officials countered with separate motions to dismiss.³ Affidavits were submitted at this juncture by officials of NCHA. Upon these papers and the arguments of counsel, the District Court concluded that it was "without jurisdiction to maintain this action" and dismissed the complaint. It wrote no opinion but entered findings of fact and conclusions of law in the form proposed by appellees.

These findings of fact are in large part a recital of what the NCHA affidavits are said by the court to "establish." These are enumerated by the court as follows:

a. That NCHA has pending before the Department of Housing and Urban Development an application for $2,722,000 for the modernization of the Frederick Douglass Housing Project;

b. That in the absence of approval of the application so pending, NCHA has no funds available to permit maintenance of NCHA properties beyond the maintenance which is now being carried on throughout the properties operated by NCHA;

c. NCHA has not failed or refused to provide adequate screens on windows and doors of its housing properties but that to the contrary, NCHA has made significant expenditures of money in providing screens on windows and doors with respect to three of the four properties named in the complaint and with respect to the fourth, Knox Hill, a determination to rehabilitate a portion of Knox Hill was made some time ago, and NCHA has been installing jalousies in lieu of screen doors in the exterior doors of that project.

d. Adequate weather stripping has been

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