N.A.A.C.P. v. Secretary of Housing and Urban Development, 86-1111

Decision Date19 March 1987
Docket NumberNo. 86-1111,86-1111
Citation817 F.2d 149
PartiesN.A.A.C.P., Boston Chapter, Plaintiff, Appellant, v. SECRETARY OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Natasha C. Lisman, with whom Edward J. Barshak, Sugarman, Rogers, Barshak & Cohen, P.C., Boston, Mass., Grover G. Hankins, General Counsel, Kansas City, Mo., and Rachel S. Susz, Asst. Gen. Counsel, were on brief for plaintiff, appellant.

Howard S. Scher, Dept. of Justice, with whom Anthony J. Steinmeyer, Dept. of Justice, Richard K. Willard, Asst. Atty. Gen., Washington, D.C., William F. Weld, U.S. Atty., Boston, Mass., Gershon M. Ratner, Associate Gen. Counsel for Litigation, Howard M. Schmeltzer, Sp. Asst. to the Associate Gen. Counsel for Litigation, and Anthony J. Ciccone, Jr., Washington, D.C., were on brief for defendants, appellees.

Before BOWNES, BREYER and TORRUELLA, Circuit Judges.

BREYER, Circuit Judge.

The Federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968) declares as its "policy" the provision of "fair housing throughout the United States." 42 U.S.C. Sec. 3601. Its substantive provisions prohibit discrimination related to the rental or sale of places of dwelling. 42 U.S.C. Secs. 3604-3606. In addition, it instructs the Secretary of Housing and Urban Development to

administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this [Fair Housing Act]....

42 U.S.C. Sec. 3608(e)(5). The specific question raised in this appeal is whether federal courts have the legal authority to review claims that the Secretary has failed to carry out this last instruction. The district court believed that, at least where the Secretary has not acted with a discriminatory purpose, the Secretary's compliance with Sec. 3608(e)(5) is a matter that Congress has "committed to agency discretion by law." 5 U.S.C. Sec. 701(a)(2). Accordingly, it held that it could not legally review the appellant's claims of violation and it dismissed the case. We believe, however, that the court has the power to review appellant's claim that the Secretary has not "administer[ed]" certain HUD programs "in a manner affirmatively to further" the Act's basic policy. Hence, we reverse the district court's dismissal and remand the case for further proceedings.

I Background

Nearly nine years ago, in April 1978, the NAACP sued the Secretary and other officials of the Department of Housing and Urban Development (collectively "HUD"), claiming that HUD had failed "to enforce constitutional and statutory proscriptions against discrimination in Federally-assisted programs." Its complaint listed various acts and omissions related to HUD's administration of its Community Development Block Grant (CDBG) and Urban Development Action Grant (UDAG) programs in the City of Boston, which acts and omissions, it said, taken together, established violations of various civil rights statutes, including HUD's duty "affirmatively to further" the Fair Housing Act's policies.

In 1983, the district court after trial found, as factual matters, that Boston has a history of racial discrimination in housing; that Boston suffers from a shortage of low-income family housing; that a higher proportion of black than white families are renters and a higher proportion of black than white renters are families with children (and thus that the housing shortage impacts more heavily on blacks than on whites); that Boston's neighborhoods are racially separate; and that "at least in part [as] the result of the lack of safe, desegregated housing in white neighborhoods" black families find it difficult to move out of black areas. NAACP v. Harris, 567 F.Supp. 637, 640-41 (D.Mass.1983). The court also found that both city and federal officials were aware of these facts; that the city had not effectively enforced fair housing requirements; that neither the city nor HUD had sought to obtain or to provide UDAG funds for low-income housing; and that HUD had not obtained from the city the assessment of "any special needs of identifiable segments of the lower income population" that HUD regulations then required. Id. at 641-43.

In the court's view, these facts added up both to a violation of HUD's "minority housing needs" regulation and to a violation of HUD's Title VIII duty "affirmatively to further" the Act's policy. In particular, it wrote that HUD's failure to use its "immense leverage under UDAG" to provide "desegregated housing so that the housing stock is sufficiently large to give minority families a true choice of location," in the context of Boston's history and practices, violated HUD's Title VIII obligations. Id. at 644.

In late 1985, after the parties had submitted proposed forms of judgment, the district court decided that it could not enter an order granting relief from the legal violations that it had found. The court noted that in 1982 HUD had obtained from the city an acceptable "minority needs assessment," and held that HUD had thereby cured the violation of its own regulations, rendering further relief inappropriate. NAACP v. Pierce, 624 F.Supp. 1083, 1085 (D.Mass.1985). The court also determined that it could not grant relief from the Title VIII violation because it did not have the legal authority to review the Secretary's compliance with the "affirmative furtherance" mandate. Id. at 1086-93. It held that Congress had not created any "private right of action" to enforce Title VIII's legal obligation, and that it could not review the Secretary's actions under the Administrative Procedure Act, 5 U.S.C. Secs. 551 et seq., because Congress had "committed" compliance with the obligation "to agency discretion," 5 U.S.C. Sec. 701(a)(2). The court accordingly dismissed the NAACP's claims. The NAACP now appeals this dismissal.

II Private Right of Action

The NAACP argues that the district court's dismissal of its case is wrong because Congress, in enacting Title VIII, implicitly created a "private right of action" allowing it to enforce "directly" the obligations that Title VIII imposes upon the federal government. See Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). The short, conclusive answer to this argument, however, is that this court has recently held that Congress did not create any such direct private cause of action under Title VIII. Latinos Unidos de Chelsea en Accion v. Secretary of Housing and Urban Development, 799 F.2d 774, 791-93 (1st Cir.1986).

In fact, it is difficult to understand why a court would ever hold that Congress, in enacting a statute that creates federal obligations, has implicitly created a private right of action against the federal government, for there is hardly ever any need for Congress to do so. That is because federal action is nearly always reviewable for conformity with statutory obligations without any such "private right of action." See Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 87 S.Ct. 1507, 1511, 18 L.Ed.2d 681 (1967) ("judicial review of a final agency action ... will not be cut off unless there is persuasive reason to believe that such was the purpose of Congress"); American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 110, 23 S.Ct. 33, 39, 47 L.Ed. 90 (1902) (where agency makes "a clear mistake of law ... the courts ... must have power in a proper proceeding to grant relief"); 5 K. Davis, Administrative Law Treatise Sec. 28.1, at 254-56 (1984); L. Jaffe, Judicial Control of Administrative Action 339-53 (1965). This "presumption" of judicial reviewability, now codified in the Administrative Procedure Act, 5 U.S.C. Secs. 701 et seq., applies not only to "[a]gency action made reviewable by statute," but also to any other "final agency action for which there is no other adequate remedy in a court," 5 U.S.C. Sec. 704. Any person "adversely affected or aggrieved by agency action," 5 U.S.C. Sec. 702, may ask a court to "set aside agency action ... not in accordance with law" or to "compel agency action unlawfully withheld," 5 U.S.C. Sec. 706.

Given these (and related) principles of administrative law, as set forth in the APA, it is not surprising that cases discussing a "private right of action" implied from a federal statute do not involve a right of action against the federal government. Rather, they typically involve statutes that impose obligations upon a nonfederal person (a private entity or a nonfederal agency of government). The statute typically provides that the federal government will enforce the obligations against the nonfederal person. The "private right of action" issue is whether Congress meant to give an injured person a right himself to enforce the federal statute directly against the nonfederal person or whether the injured person can do no more than ask the federal government to enforce the statute. See, e.g., California v. Sierra Club, 451 U.S. 287, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981) (finding no private right of action to enforce Section 10 of the Rivers and Harbors Appropriation Act of 1899 against a state); Cannon v. University of Chicago, 441 U.S 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (finding private right of action to enforce Title IX of the Education Amendments of 1972 against private university); Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) (finding no private right of action in shareholder to enforce 18 U.S.C. Sec. 610 against corporation). Cort v. Ash, the leading case on the subject, simply lays down a set of rules to help the courts determine what Congress intended when the statute itself is silent.

One can imagine a few instances in which a court might, notwithstanding the APA, wonder whether Congress meant to create a private right of action against the federal government. The APA, for example, does not award attorney's fees to a successful litigant. But see 28 U.S.C. Sec. 2412(b) (authorizing award...

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