Williams v. Pierce

• Decision Date: 12 May 1983
• Docket Number: 968,D,Nos. 884,s. 884
• Citation: 708 F.2d 57
• Parties: Roy WILLIAMS, Plaintiff-Appellant, and Joseph Christian, as Chairperson of the New York City Housing Authority, New York City Housing Authority, Defendants-Appellants, v. Samuel R. PIERCE, Jr., as Secretary of the United States Department of Housing and Urban Development, United States Department of Housing and Urban Development, Defendants-Appellees. ockets 82-6299, 82-6301.
• Court: U.S. Court of Appeals — Second Circuit

Page 57

708 F.2d 57

Roy WILLIAMS, Plaintiff-Appellant,

and

Joseph Christian, as Chairperson of the New York City

Housing Authority, New York City Housing

Authority, Defendants-Appellants, v. Samuel R. PIERCE, Jr., as Secretary of the United States

Department of Housing and Urban Development,

United States Department of Housing and

Urban Development, Defendants-Appellees.

Nos. 884, 968, Dockets 82-6299, 82-6301.

United States Court of Appeals, Second Circuit.

Argued Jan. 21, 1983.

Decided May 12, 1983.

David W. Wiltenburg, New York City (William H. Voth, Hughes, Hubbard & Reed, Kalman Finkel and John E. Kirklin, The Legal Aid Society, New York City, on brief), for plaintiff-appellant.

Mary McCorry, New York City (Frederick A.O. Schwarz, Jr., Corp. Counsel of the City of New York, and Walter A. Kretz, Jr., New York City, on brief), for defendants-appellants.

Mark C. Rutzick, Washington, D.C. (J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., John S. Martin, Jr., U.S. Atty., New York City, Gershon M. Ratner, Dennis G. Linder, Penny Q. Seaman, Washington, D.C., and Jonathan Strong, New York City, on the brief) for defendants-appellees.

Before MANSFIELD and MESKILL, Circuit Judges, and NEAHER, District Judge. ^*

NEAHER, District Judge:

The question presented by this expedited appeal is whether the district court abused its discretion in denying appellants' motions for a preliminary injunction barring the Secretary of the Department of Housing and Urban Development ("HUD") from enforcing interim rules he promulgated in order to carry out his responsibilities pursuant to the Omnibus Budget Reconciliation Act ("OBRA"), which became effective October 1, 1981. Pub.L. No. 97-35, 95 Stat. 357 (1981). That the case is here at all is somewhat ironic in view of Congress' explicit direction in enacting OBRA that:

"The Secretary's actions and determinations and the procedures for making determinations pursuant to this subsection shall not be reviewable in any court."

Id., Sec. 322(i)(3), 95 Stat. at 400. Since we agree that appellants' claims are not likely to succeed on the merits, we affirm.

Facts

Appellant Roy Williams is a tenant in a federally subsidized low income housing project. Appellant New York City Housing Authority ("NYHA") is his landlord. Prior to the enactment of OBRA, the rental payable by a low income housing tenant such as Williams could not "exceed one-fourth [i.e., 25%] of the family's income as defined by the Secretary." 42 U.S.C. Sec. 1437a. Following the enactment of OBRA, the Secretary of HUD on May 4, 1982, published interim rules required by OBRA's amendments to the United States Housing Act of 1937, as amended. Those amendments provided for increases in the rent of tenants in public and Section 8 housing commencing October 1, 1981, which could be spread over a five-year period with exceptions hereinafter noted.

Under his lease with NYHA Williams' rent may be redetermined annually or for interim periods according to amended rent schedules posted by NYHA. His landlord's present schedule of compliance with the Secretary's new regulations will not lead to a rent increase for Williams until February 1, 1984. Nonetheless, he brought this action as a class plaintiff to enjoin the implementation of the Secretary's regulations, naming NYHA as a co-defendant and claiming violation of the due process clauses of the fifth and fourteenth amendments, the Administrative Procedure Act ("APA"), 5 U.S.C. Sec. 551 et seq., HUD's own regulations, 24 C.F.R. Sec. 10.1 et seq., and the civil rights laws, 42 U.S.C. Sec. 1983. NYHA elected to join its tenant in seeking a preliminary injunction, hence its appearance as a co-defendant.

Statutory Background

Pursuant to the United States Housing Act, the Secretary of HUD has been authorized since 1937 to make grants of federal funds to state public housing agencies for low income housing programs. He was also empowered to

"prescribe regulations fixing the maximum contributions available under different circumstances, giving consideration to cost, location, size, rent-paying ability of prospective tenants, or other factors bearing upon the amounts and periods of assistance needed to achieve and maintain low rentals."

42 U.S.C. Sec. 1437 et seq. In 1969 the federal role and contributions for the support of public housing increased significantly when Congress authorized the Secretary to provide operating subsidies for public housing authorities and to extend assistance payments to owners who leased housing units to low or very low income families. In fiscal 1983 the amount appropriated by Congress for such purposes was $1,350,000,000. ¹

OBRA was enacted after considerable debate in Congress in order "to reverse the growth of federal spending by systematically reducing the level of expenditures in a wide range of federal programs." Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877, 878 (3d Cir.1982). One of the affected programs was federally-assisted housing. A step in this direction had already been taken in 1979 when, except for very low income families, the rental ceiling for such housing was raised to permit rental charges of up to 30% of monthly adjusted income. See 42 U.S.C. Sec. 1437a (Supp. IV 1980). Under OBRA, however, a uniform formula was adopted by Congress requiring all occupants of public and other federally-assisted housing to pay the highest of the following amounts: 30% of the family's monthly adjusted income, ² or 10% of the family's total income, or whatever portion of monthly welfare assistance payments was specifically designated for housing costs. OBRA, Sec. 322(a), 95 Stat. at 400 (codified at and superseding 42 U.S.C. Sec. 1437a).

Although Congress decreed that the new rent levels were to become effective as of October 1, 1981, it was not unmindful that its action would place a burden upon tenants in federally-assisted housing. To ease that burden, it gave the Secretary authority to "provide for delayed applicability, or for staged implementation" of the new rent levels for existing occupants and, under narrower circumstances, for new tenants, i.e., those who commenced occupancy after October 1, 1981. Sec. 322(i)(1) and (2). Moreover, annual rent increases for current tenants based upon OBRA were limited to 10% of the previous rent. Id. Finally, although Congress required that any phase-in for affected tenants must be fully applicable no later than five years from October 1, 1981, it also provided an exception in case of extraordinary hardship for any class of tenants. Sec. 322(i)(3).

The Interim Rules

In view of the October 1, 1981, effective date of the increased rent levels required by OBRA, the Secretary of HUD was obliged to effectuate the will of Congress by promulgating promptly appropriate rules and regulations to provide guidance to state housing authorities and other recipients of federal assistance grants. The record discloses that an initial draft of a proposed regulation had been prepared and circulated for internal agency review on or about September 22, 1981, some five weeks after the President had signed OBRA into law. In the course of that review questions arose as to whether the Secretary had good cause to forego prior notice and comment under HUD's own regulations, 24 C.F.R. Part 10, and could promulgate an interim rule rather than a proposed regulation. Those questions were complicated by a current district court decision in the Third Circuit which had invalidated and enjoined enforcement of "interim rules" issued by the Secretary of Health and Human Services (HHS) to implement OBRA as it applied to his agency. The district court had held that HHS in issuing interim rules had improperly avoided prior notice and comment procedures mandated by the APA, 5 U.S.C. Secs. 500-576. On appeal, however, the Third Circuit Court of Appeals reversed (one judge dissenting), holding that the Secretary had good cause to dispense with notice and comment procedures under the APA in light of his finding that congressional concern for immediate reduction in government spending, and the short time provided for implementing the statutory amendments, rendered such procedures impracticable. Philadelphia Citizens, 669 F.2d at 882, rehearing and rehearing in banc denied February 10, 1982.

Following the appellate ruling in Philadelphia Citizens, HUD prepared identical interim rules limited to implementing the statutory increases in rent contribution rates for public housing and Section 8 tenants, based upon current definitions of income and adjusted income. Exercising the flexibility provided in Sec. 322, the interim rules provided for gradual increases of rent for existing tenants and restricted the increase in any twelve-month period to a maximum of 10%. the 5% overall statutory increase based on adjusted income (25% to 30%) was to be phased in at 1% a year beginning with the federal fiscal year 1982, but in no case would the family's gross rent increase by more than 10% in any twelve-month period.

Pursuant to Executive Order and statute the proposed rules were submitted on March 5, 1982, for review by the Office of Management and Budget and subsequently transmitted to the House and Senate Banking Committees. Although HUD requested waiver of congressional deferral periods, none were granted. Publication in the Federal Register for purposes of comment was thus not possible until May 4, 1982. 47 Fed.Reg. 19120, 19128. The HUD notices fixed June 18, 1982, as the due date for comments but pointed out that the rules were not to become effective for 30 calendar days of continuous session of Congress after the rules were published as final. 47 Fed.Reg. 19121.

Further delay ensued when the House Committee on Banking, Finance and Urban Affairs reported out on June 2, 1982, a resolution of disapproval of the interim rules which, if valid, would have delayed their effective date for 90 days from the date of the resolution. See 42...