Thetford Properties IV Ltd. Partnership v. U.S. Dept. of Housing & Urban Development, 89-1778

• Decision Date: 02 July 1990
• Docket Number: No. 89-1778,89-1778
• Citation: 907 F.2d 445
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: THETFORD PROPERTIES IV LIMITED PARTNERSHIP, on behalf of itself and as representative of the class defined herein; Baker Street Associates, on behalf of itself and as representative of the class defined herein, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT; Jack Kemp, Secretary, Department of Housing and Urban Development, Defendants-Appellees.

Page 445

907 F.2d 445

THETFORD PROPERTIES IV LIMITED PARTNERSHIP, on behalf of itself and as representative of the class defined herein Baker Street Associates, on behalf of itself and as representative of the class defined herein, Plaintiffs-Appellants, v. U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT; Jack Kemp Secretary, Department of Housing and Urban Development, Defendants-Appellees.

No. 89-1778.

United States Court of Appeals Fourth Circuit.

Argued April 5, 1990.

Decided July 2, 1990.

Charles L. Edson (argued) (J. Robert Kirk, Harry J. Kelly, Kelley, Drye & Warren, Washington, D.C., Mark C. Kirby, Faison & Brown, Raleigh, N.C., Martin S. Kaufman, Douglas Foster, Atlantic Legal Foundation, Inc., New York City, on briefs), for plaintiffs-appellants.

John Samuel Koppel (argued) (Stuart M. Gerson, Asst. Atty. Gen., Michael Jay Singer, Civil Div., U.S. Dept. of Justice, Washington, D.C., Margaret P. Currin, U.S. Atty., Raleigh, N.C., Gershon M. Ratner, Associate Gen. Counsel for Litigation, Angelo Aiosa, Asst. Gen. Counsel, Richard M. Price, Office of Litigation, Dept. of Housing and Urban Development, Washington, D.C., on briefs), for defendants-appellees.

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

K.K. HALL, Circuit Judge:

Thetford Properties IV Limited Partnership ("Thetford") and Baker Street Associates ("Baker") appeal from the district court's order dismissing their claims for failure to exhaust their administrative remedies. Finding no error, we affirm.

I.

A. Statutory Background

In 1961, Congress incorporated into Sec. 221(d)(3) of the National Housing Act a program to encourage the private development of low- to moderate-income ("lower income") housing. 12 U.S.C. Sec. 1715l(d)(3). The program, administered by the Department of Housing and Urban Development ("HUD"), made insured low interest 40-year mortgages available to developers to facilitate the construction and maintenance of qualified housing. Pursuant to regulatory agreements between HUD and the developers, the savings from these mortgages had to be passed on in the form of lower rents for the tenants, who were required to be of lower income. These agreements, however, as well as the mortgages themselves, expressly allowed the owners of the properties, without HUD's prior consent, to prepay their mortgages at the end of 20 years, thereby terminating HUD insurance and withdrawing the properties from the program. See 24 C.F.R. Sec. 221.524(a) (1989). The property owners would then be free to sell or rent their properties on the open market.

In 1987, when it became evident that many property owners intended to prepay their mortgages and withdraw from the program, Congress acted to prevent the impending lower income housing shortage by enacting the Emergency Low Income Housing Preservation Act of 1987 ("Act"), 12 U.S.C. Sec. 1715l note. The Act conditioned the property owners' right to unilaterally prepay and withdraw from the program. Now, a property owner who wishes to prepay must file a notice of intent to prepay with HUD. Id. at Sec. 221(a). Upon receipt of the notice, HUD must provide the property owner with sufficient information to complete and file a "plan of action." Id. at Sec. 223(a). A plan of action is a detailed submission in which the property owner must address, inter alia, the effect of prepayment on low income affordability restrictions, the availability of any replacement state or local assistance, and the impact of prepayment on existing tenants and on the supply of lower income housing in the community as a whole. Id. at Sec. 223(b). Upon receipt of an acceptable plan of action, HUD is authorized, in certain circumstances, to offer property owners economic incentives to keep their properties in the program. Id. at Sec. 224. If offered, the incentives are to be sufficient to ensure that the property owners receive a "fair return" on their investment. Id. at Secs. 224(b), 225(b). If a property owner is not enticed by HUD's incentives, prepayment and withdrawal from the program are granted if HUD finds that such action "will not materially increase economic hardship for current tenants ... [or] involuntarily displace current tenants (except for good cause) where comparable and affordable housing is not readily available." Id. at Sec. 225(a)(1); see also Sec. 225(a)(2) (further necessary findings).

By its own terms, the Act was to expire two years after its effective date, on February 5, 1990. Id. at Sec. 203(a). The expiration date was recently extended by Congress until September 30, 1990, through the Department of Housing and Urban Development Reform Act of 1989. Pub.L. No. 101-235, 103 Stat.1987 (1989).

B. The Instant Dispute

Thetford owns a multi-family housing project in Raleigh, North Carolina, which participates in the program. Baker owns a participant project in Dover, New Jersey. Thetford filed its notice of intent to prepay on September 21, 1988; Baker filed on May 9, 1988. Although HUD gave both parties the necessary information to file a plan of action, neither has taken any steps to do so. On October 25, 1988, appellants filed this action in district court, on behalf of themselves and a class of property owners who are unable to prepay because of the Act. ¹ They sought a declaration that the Act's abrogation of their unconditional contractual right to prepay their federally-insured mortgages violates due process. The district court dismissed the complaint on exhaustion grounds. This appeal followed.

II.

Appellants urge us to find that the unique circumstances of their case remove them from the long-standing rule that a litigant must exhaust his administrative remedies before seeking redress in federal court. They argue that where, as here, the only issue in dispute is the constitutionality of a statute, exhaustion is not required because an administrative agency cannot make such a constitutional determination. They further contend that exhaustion should not be required because to make them vindicate their contractual rights through the administrative process is part and parcel of the due process violation caused by the loss of their unconditional right to prepay. They also contend that the Act's administrative procedures are inadequate and, consequently, that they should not be burdened by having to see them through. Lastly, they maintain that their submission to the Act's administrative procedures would be futile because, under the existing regulations, they cannot qualify for prepayment. We address these contentions seriatim.

We begin by acknowledging the "long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted." Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). The exhaustion requirement serves many purposes, see, e.g., McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969), not the least of which are to allow an agency the opportunity to use its discretion and expertise to resolve a dispute without premature judicial intervention and to allow the courts to have benefit of an agency's talents through a fully developed administrative record. We find these prudential considerations no less weighty when an administrative litigant raises a constitutional challenge to a statute which an agency is charged with enforcing.

First, as we made clear in American Fed. of Gov't Employees, AFL-CIO v. Nimmo, 711 F.2d 28, 31 (4th Cir.1983), "exhaustion is particularly appropriate when the administrative remedy may eliminate the necessity of deciding constitutional questions." See also Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947); Public Utilities Commission of California v. United States, 355 U.S. 534, 539-40, 78 S.Ct. 446, 450-51, 2 L.Ed.2d 470 (1958) ("If ... an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy plainly should be pursued.") This principle is nothing more than a necessary corollary to the "fundamental rule of judicial restraint" that a court "ought not to pass on questions of constitutionality unless such adjudication is unavoidable." Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985). Although appellants contend otherwise, both the statute and the implementing regulations make clear that, under certain circumstances, HUD has the authority to grant them the ultimate economic relief that they seek--prepayment and withdrawal from the program. See 12 U.S.C. Sec. 1715l note Sec. 225; 24 C.F.R. Sec. 248.221. Further, if they choose to remain in the program, the statute also allows HUD to offer appellants economic incentives to give them a "fair return" on their investment. 12 U.S.C. Sec. 1715l note Sec. 224; 24 C.F.R. Sec. 248.231. Thus, requiring exhaustion here may very well lead to a satisfactory resolution of this controversy without having to reach appellants' constitutional challenge.

Even if HUD and appellants cannot resolve this dispute, exhaustion will still have served vital purposes. Aside from the readily apparent benefits of a fully developed administrative record, the reviewing court will also have the considerable benefit of the agency's interpretation of the Act as applied to appellants' plans of action.

The Act was intended by Congress as a temporary measure to deal with the intractable problem of affordable housing for lower income Americans. Orrego v. HUD, 701 F.Supp. 1384, 1386-88 (N.D.Ill.1988). It attempts to balance this concern against the property owners' contract right to prepay by allowing for prepayment whenever HUD determines that certain criteria have been met. HUD's application of the Act to appellants will necessarily involve consideration of these competing concerns and interpretation of the...