Winningham v. U.S. Dept. of Housing & Urban Development

• Decision Date: 01 May 1975
• Docket Number: No. 74-1730,74-1730
• Citation: 512 F.2d 617
• Parties: Janice WINNINGHAM, on behalf of herself and all others similarly situated, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 617

512 F.2d 617

Janice WINNINGHAM, on behalf of herself and all others

similarly situated, Plaintiff-Appellant, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et

al., Defendants-Appellees.

No. 74-1730.

United States Court of Appeals, Fifth Circuit.

May 1, 1975.

R. Jackson B. Smith, Jr., U. S. Atty., Augusta, Ga., Lamar C. Walter, Asst. U. S. Atty., S. D. of Georgia, Savannah, Ga., for defendants-appellees.

William H. Pinson, Jr., Savannah, Ga., for Abbitt Realty Co. & Dorothy Atkinson.

Appeal from the United States District Court for the Southern District of Georgia.

Before THORNBERRY, COLEMAN and ROSENN ^*, Circuit Judges.

ROSENN, Circuit Judge:

Mrs. Winningham, a resident of a "section 236" housing project ¹ in Savannah, Georgia, applied under the Housing and Urban Development Act of 1965 ² for financial assistance to supplement her rental payments. Section 101 of that Act authorizes rent supplements for tenants moving to a "section 236" project from substandard housing; it does not authorize rent supplements for those, such as Mrs. Winningham, who did not move into a project from substandard housing. Mrs. Winningham's application therefore was denied. ³ Challenging the statute's constitutionality, she instituted a class action for a declaratory judgment in the United States District Court for the Southern District of Georgia. After determining that it had subject matter jurisdiction, the district court upheld the statute. We affirm.

I. Subject Matter Jurisdiction

Mrs. Winningham alleged subject matter jurisdiction in the district court under various statutory provisions. ⁴ 28 U.S.C. § 1331(a) (1970) (federal question); id. § 1337 (action arising under an act of Congress regulating commerce); id. § 1361 (action in the nature of mandamus); 5 U.S.C. § 701 et seq. (1970) (review under Administrative Procedure Act). The district court held that, although sections 1331(a) and 1337 did not provide a basis for jurisdiction, section 1361 did. The district court did not rule on the question of jurisdiction under the Administrative Procedure Act. ⁵ Winningham v. United States Dep't of Housing & Urban Development, 371 F.Supp. 1140 (S.D.Ga.1974).

We agree that jurisdiction could not have been exercised under the federal question statute. ⁶ Nor are we persuaded that the district court had subject matter jurisdiction under section 1361. We conclude, however, that section 1337 did constitute an appropriate basis for jurisdiction.

A. Absence of Jurisdiction Under Section 1361.

The legislative history of section 1361 reveals that the statute's construction turns upon traditional mandamus law. ⁷ As an extraordinary remedy, mandamus is reserved for extraordinary situations. Will v. United States, 389 U.S. 90, 107, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967) (common law writ of mandamus issued by court of appeals vacated); Carter v. Seamans, 411 F.2d 767, 773 (5th Cir. 1969), cert. denied, 397 U.S. 941, 90 S.Ct. 953, 25 L.Ed.2d 121 (1970) (action in nature of mandamus under section 1361 dismissed). It lies only to compel the performance of a legal duty which is free of doubt. State Highway Comm'n v. Volpe, 479 F.2d 1099, 1104 n. 6 (8th Cir. 1973).

This court discussed the federal mandamus statute at some length in Carter v. Seamans, supra.

The courts that have construed Section 1361 have uniformly held that its sole function was merely to extend to all district courts the mandamus jurisdiction formerly exercised only by the District Court for the District of Columbia. The same authorities also emphasize that the provision in question did not make any substantive change in the law of mandamus.

It is hornbook law that mandamus is an extraordinary remedy which should be utilized only in the clearest and most compelling of cases. Though it is a legal remedy, it is largely controlled by equitable principles and its issuance is a matter of judicial discretion. Generally speaking, before the writ of mandamus may properly issue three elements must coexist: (1) a clear right in the plaintiff to the relief sought; (2) a clear duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available.

411 F.2d at 773 (footnotes omitted).

We do not believe that the defendants herein are under a "clear duty" to declare Mrs. Winningham eligible under the rent supplement program. We recognize that some courts have construed section 1361 liberally where a constitutional duty is asserted. See Burnett v. Tolson, 474 F.2d 877, 882 (4th Cir. 1973); National Ass'n of Government Employees v. White, 135 U.S.App.D.C. 290, 418 F.2d 1126, 1129 (1969). We are unaware of any case in which an alleged constitutional duty has been held sufficiently "clear" to warrant the exercise of mandamus jurisdiction where a specific statutory provision negates that duty.

In the present case, no doubt exists that Mrs. Winningham is ineligible for a rent supplement under section 101(c)(2)(D). The defendants' statutory duty to deny eligibility is clear. Nonetheless, Mrs. Winningham essentially asks this court to find a clear constitutional duty on the part of the defendants to ignore their statutory mandate. This we may not do.

Mrs. Winningham's constitutional claim is grounded in the equal protection component of the due process clause of the fifth amendment. She asserts that, unless she receives a rent supplement, she will be forced to relocate in substandard housing. Therefore, she maintains, no rational basis exists for classifying her differently from those presently residing in substandard housing or from those who moved into "section 236" housing from substandard housing. As we indicate later in our discussion of the merits of this action, the "clarity" of the constitutional duty urged by Mrs. Winningham is not apparent to us. We therefore hold that section 1361 does not provide a jurisdictional basis for this action.

B. Jurisdiction Under Section 1337.

We believe that the district court had subject matter jurisdiction under section 1337. This section confers jurisdiction on district courts over certain actions involving commerce.

The district courts shall have original jurisdiction of any civil action or proceeding arising under any Act of Congress regulating commerce or protecting trade and commerce against restraints and monopolies.

28 U.S.C. § 1337 (1970).

Mrs. Winningham's action arises under section 101 of the Housing and Urban Development Act of 1965 which created the rent supplement program. Pub.L.No. 89-117, 79 Stat. 451-454, as amended, 12 U.S.C. § 1701s (1970). She asserts a right to receive rent supplement payments.

(This) right, if it exists, comes into being from the Federal Act and the effectual enforcement of that right depends on the validity, construction or effect of that statute.

Caulfield v. United States Dep't of Agriculture, 293 F.2d 217, 222 (5th Cir. 1961) (en banc) (dictum), citing Gully v. First Nat'l Bank, 299 U.S. 109, 112-14, 57 S.Ct. 96, 81 L.Ed. 70 (1936). Moreover, section 1337 does not require that a minimum amount be in controversy. 293 F.2d at 222 n. 10. Thus subject matter jurisdiction existed in the district court if the Housing and Urban Development Act of 1965 is an "act regulating commerce."

The phrase "act regulating commerce" has been interpreted in more recent years to encompass all acts whose constitutional basis is the commerce clause of the United States Constitution. Murphy v. Colonial Federal Savings & Loan Ass'n, 388 F.2d 609, 614 (2d Cir. 1967); Imm v. Union R.R., 289 F.2d 858, 860 (3d Cir.), cert. denied, 368 U.S. 833, 82 S.Ct. 55, 7 L.Ed.2d 35 (1961). Moreover, "to found jurisdiction upon § 1337, it is not requisite that the commerce clause be the exclusive source of Federal power; it suffices that it be a significant one." 388 F.2d at 615; see Moreno v. United States Dep't of Agriculture, 345 F.Supp. 310, 313 (D.D.C.1972) (three-judge court), aff'd, 413 U.S. 528, 93 S.Ct. 2821, 37 L.Ed.2d 782 (1973).

We believe a broad construction of section 1337 is both appropriate and desirable. Federal jurisdiction over actions arising under acts of Congress governing the conduct of federal officials is conducive to more uniform decisions by tribunals which have acquired experience and expertise in dealing with national legislation. The mere fortuity that the requisite jurisdictional amount is not present has little bearing on the desirability of federal jurisdiction. Murphy v. Colonial Federal Savings & Loan Ass'n, supra, 388 F.2d at 615. When, as here, the constitutionality of a federal statute administered by a federal agency is attacked, the case for federal jurisdiction is especially compelling.

Even under the liberal construction of section 1337, however, the district court had jurisdiction in the present case only if the commerce clause was a "significant" source of federal power to enact the rent supplement program. We therefore must assess the constitutional underpinnings of the rent supplement program. To do so, we must review the historical background of our national housing legislation.

Congress originally enacted the National Housing Act in 1934. Act of June 27, 1934, ch. 847, 48 Stat. 1246. Subsequent amendments have added new housing programs such as the one authorized by section 236. ⁸ The rent supplement program, however, is not part of the National Housing Act, but rather was created by section 101 of the Housing and Urban Development Act of 1965.

Were section 101 an amendment to the National Housing Act, we would have less difficulty in classifying it as an act regulating commerce. The Third Circuit recently has held that the "commerce power clearly is a significant source of federal power for the National Housing Act ...." Davis v. Romney, 490 F.2d 1360, 1365-66 (3d Cir. 1974). Although Davis dealt only with sections 221(d) (2) and 235, we believe the court's reasoning applies equally to other sections of the act, including ...