NAACP, Boston Chapter v. Pierce

Decision Date31 December 1985
Docket NumberCiv. A. No. 78-850-S.
Citation624 F. Supp. 1083
PartiesNAACP, BOSTON CHAPTER, Plaintiff, v. Samuel R. PIERCE, Jr., Secretary of Housing and Urban Development, et al., Defendants.
CourtU.S. District Court — District of Massachusetts

Edward Barhsak, Sugarman, Rogers, Barshak & Cohen, Boston, Mass., Michael Sussman, NAACP Special Contr. Fund, Brooklyn, N.Y., for plaintiff.

Anthony J. Ciccone, HUD, Washington, D.C., Melissa Jad, Stephen Kaye, City of Boston Law Dept., Richard Welch, III, Asst. U.S. Atty., Kathy Machan, HUD, Boston, Mass., for defendants.

MEMORANDUM AND ORDER ON FEDERAL DEFENDANTS' MOTION TO DISMISS FOR LACK OF JURISDICTION

SKINNER, District Judge.

In this action plaintiff, the National Association for the Advancement of Colored People, Boston Chapter ("NAACP"), claimed that the Secretary of the Department of Housing and Urban Development and the local administrators of the Department (hereinafter collectively referred to as "HUD") had failed to take measures mandated by various statutes and the Constitution of the United States to prevent racial discrimination and promote fair housing in the administration of federal grants to the City of Boston ("the City"). I made findings and conclusions of fact and rulings of law after a trial on the merits of plaintiff's claims against HUD. 567 F.Supp. 637 (D.Mass.1983). All findings, conclusions and rulings contained therein are hereby incorporated and restated herein.

In summary, I concluded that HUD itself did not intentionally discriminate in administering its programs and that the evidence did not warrant a finding that HUD financed City programs that were either intentionally discriminatory or had a discriminatory impact. Consequently, I found no violations of § 109 of Title I of the Housing and Community Development Act of 1974 (42 U.S.C. § 5309), § 601 of Title VI of the Civil Rights Act of 1964 (42 U.S.C. § 2000d) or the Fifth Amendment to the Constitution.

However, I did find that HUD was violating its own regulations by failing to condition receipt by the City of CDBG funds on preparation of a Community Development and Housing Plan identifying the "special needs" of the lower income population. 24 C.F.R. § 570.300(b). This failure was found seriously to impede HUD in carrying out its statutory mandate under Title VIII of the Civil Rights Act of 1968 (42 U.S.C. § 3601 et seq.) ("Title VIII" or the "Fair Housing Act") to promote fair housing in all federally financed projects. This issue is no longer in the case, however, because the City did submit to HUD a 180-page minority needs assessment on September 7, 1982, and HUD is no longer in violation of its own regulations.

I found that HUD's mandate under Title VIII, to "administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter", 42 U.S.C. § 3608(d)(5), requires effective fair housing enforcement. Shannon v. HUD, 436 F.2d 809 (3rd Cir.1970); Garrett v. City of Hamtramck, 503 F.2d 1236 (6th Cir.1974). I found that HUD did not satisfy the minimum levels of compliance required by this section in two respects. First, it had not required the City to establish an effective fair housing enforcement program in the face of knowledge of pervasive racial discrimination in the City. Second, HUD had knowledge that there was and is a housing emergency in the City of Boston which had a disproportionate impact on low income black families and nevertheless did not condition its UDAG grants on the construction of low income housing.

I noted in the opinion that it was "extremely difficult to quantify HUD legal obligations" under these statutes. The nature of these legal obligations is being challenged in this motion. HUD requests the court to dismiss this action for lack of jurisdiction. Based on the violations found, HUD argues that: (1) HUD has cured its violation of its own regulations because the City has submitted a Community Development Housing Plan; (2) plaintiff has eschewed reliance on the Administrative Procedure Act ("APA") as a basis for judicial review of HUD's actions; (3) sovereign immunity bars plaintiff's suit; and (4) plaintiff has no right of action against HUD under Title VIII.

A. RIGHT OF ACTION OTHER THAN UNDER THE APA
1. Lack of Jurisdiction.

It is well settled that no action will lie against an agency of the United States unless sovereign immunity has been waived either expressly or by clear implication. Absence of waiver goes to the subject matter jurisdiction of the court and may be raised at any time by a party or by the court. United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 769, 85 L.Ed. 1058 (1941); see generally Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction 2d § 3654-5. The only surviving claim in the present action is one under Title VIII of the Civil Rights Act of 1968, 42 U.S.C. § 3608(d), which does not contain an express waiver of sovereign immunity. The defendants correctly state that the waivers of sovereign immunity found in 42 U.S.C. § 1404a and 12 U.S.C. § 1702 do not apply to this case. The analysis found in the numerous cases cited by the defendants would lead to the conclusion that sovereign immunity has not been waived. The defendants' memorandum fails to account for the Supreme Court's opinion in Hills v. Gautreaux, 425 U.S. 284, 301-06, 96 S.Ct. 1538, 1548-50, 47 L.Ed.2d 792 (1976), however.

In Hills v. Gautreaux, the Supreme Court ruled that the district court had the authority to require HUD to carry out the duties mandated by Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968. 425 U.S. at 301-06, 96 S.Ct. at 1548-50. The district court had originally granted HUD's motion to dismiss for lack of jurisdiction. 425 U.S. at 289, 96 S.Ct. at 1542. The court of appeals reversed. The Supreme Court affirmed the judgment of the court of appeals without discussion of jurisdiction or waiver of sovereign immunity.

The opinion contains neither analysis nor discussion of subject matter jurisdiction or sovereign immunity. The issue of subject matter jurisdiction had been raised in the case, however, and could hardly have been ignored. The case must stand for the proposition that subject matter jurisdiction exists in the federal courts to require HUD to carry out the mandates of Title VI of the Civil Rights Act of 1964 and Title VIII of the Civil Rights Act of 1968, specifically 42 U.S.C. § 3608(d), even though no analytical basis for the exercise of jurisdiction is apparent in the opinion. It is true, of course, that in Hills v. Gautreaux the Court found that HUD itself had participated in a discriminatory housing program. The significance of that fact, however, was that it provided a basis for a remedy cutting across municipal lines, distinguishing that case from Milliken v. Bradley, 418 U.S. 717, 94 S.Ct. 3112, 41 L.Ed.2d 1069 (1974). 425 U.S. at 297, 96 S.Ct. at 1546. It would seem to have no bearing on the issue of whether sovereign immunity is waived for claims against HUD under Title VI and Title VIII.

In summary, there has been no explicit waiver of sovereign immunity by Congress which would govern this case. The application of traditional analysis would lead to the conclusion that there had been no waiver of sovereign immunity and hence no subject matter jurisdiction. Hills v. Gautreaux, however, implicitly holds that jurisdiction exists to require HUD to carry out the mandate of Title VIII of the Civil Rights Act of 1968, even though no analytical basis for the exercise of jurisdiction appears in the opinion. Accordingly, insofar as the defendants' motion seeks dismissal on the basis of lack of subject matter jurisdiction, it is denied.

2. Implied Right of Action Under Title VIII.

HUD argues that plaintiff may not maintain this action because there is no implied private right of action under Title VIII. As discussed above, I found that HUD had not fulfilled its duty to "administer the programs and activities relating to housing and urban development in a manner affirmatively to further the policies of this subchapter". 42 U.S.C. § 3608(d)(5). The question is whether private relief against HUD is available for violations of this section. Both parties agree that there is no express statutory private right of action against HUD.

A challenge to the existence of a private right of action, unlike the issue of sovereign immunity, does not implicate subject matter jurisdiction but challenges the existence of a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6). The same issues also may be reviewed at the close of the evidence by a motion under Fed.R. Civ.P. 12(h)(2). The defendants raise it now after I have already made findings of fact on the issue of liability, when the only issue remaining is whether the court should order injunctive relief, or alternately appoint a special master for the purpose of fashioning appropriate injunctive relief. Accordingly, I shall treat this motion as being limited to the context in which it is raised and consider only the narrow issue of whether there is an implicit private right of action under 42 U.S.C. § 3608(d)(5) to secure injunctive relief.

Plaintiff first asserts that the court of appeals decision on the standing issues in this suit constitutes approval of its theory that a private right of action under Title VIII exists because the opinion does not tie the decision on the standing of the parties to the APA. See N.A.A.C.P. Boston Chapter v. Harris, 607 F.2d 514, 517 n. 4, 519 (1st Cir.1979). That decision involved the standing of particular parties to contest UDAG grants on a number of different grounds. The issue of a private right of action under Title VIII was not presented to or considered by the court nor was resolution of this issue necessary to its decision.1 The court of appeals has often reminded us not to read into its opinions views on...

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