Wright v. Roanoke Redevelopment & Housing Authority

• Decision Date: 21 December 1984
• Docket Number: Civ. A. No. 82-0908.
• Parties: Brenda E. WRIGHT, et al., Plaintiffs, v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY, Defendant.
• Court: U.S. District Court — Western District of Virginia

605 F. Supp. 532

Brenda E. WRIGHT, et al., Plaintiffs, v. CITY OF ROANOKE REDEVELOPMENT AND HOUSING AUTHORITY, Defendant.

Civ. A. No. 82-0908.

United States District Court, W.D. Virginia, Roanoke Division.

December 21, 1984.

Henry L. Woodward, Claude M. Lauck, Legal Aid Society of Roanoke Valley, Roanoke, Va., for plaintiffs.

Thomas T. Lawson, Bayard E. Harris, Mary M. Hutcheson, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., for defendant.

MEMORANDUM OPINION

TURK, Chief Judge.

On December 8, 1982, Plaintiffs, who are tenants of public low-cost housing, filed suit in this court against their landlord, the City of Roanoke Redevelopment and Housing Authority¹ ("RRHA"). In their complaint, Plaintiffs alleged that RRHA violated the Brooke Amendment of the United States Housing Act of 1937, 42 U.S.C. § 1437a (1983), and its implementing regulations, 24 C.F.R. §§ 865.470-.482 (1983), in that it had set the utility allowances unreasonably low and failed to revise them, so that RRHA might collect greater excess consumption surcharges from the majority of tenants. They also claimed that RRHA had disregarded federal law prescribing how such allowances are to be maintained. The Brooke Amendment provides that public housing tenants be charged no more than twenty-five to thirty percent of their adjusted income for rent, which by definition includes an established amount of utilities.² Plaintiffs based their claims for relief upon 42 U.S.C. § 1983 and the lease contracts between Plaintiffs and Defendant RRHA.

On May 14, 1984, Defendant RRHA moved for judgment on the pleadings, pursuant to Rules 12(c) and (h)(2) of the Federal Rules of Civil Procedure. In its motion, RRHA challenges the legal sufficiency of plaintiffs' cause of action. RRHA asserts that: 1) the plaintiffs have no private right of action under the Brooke Amendment and that enforcement depends solely on the action of the United States Department of Housing and Urban Development ("HUD"), 2) the Housing Act does not create any substantive rights which would allow the plaintiffs to proceed under § 1983, and 3) HUD is an indispensable party to the action and the plaintiffs' failure to join it mandates dismissal. Since matters outside the pleadings have been submitted to and considered by this court, the defendant's motion shall be treated as one for summary judgment and disposed of in accordance with Rule 56 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 12(c), 56.

I. INTRODUCTION

In Home Health Services, Inc. v. Currie, 706 F.2d 497 (4th Cir.1983), a provider of home health services brought suit against a physician and the state medical university for alleged violations of the Medicare Act, 42 U.S.C. § 1395a (1983), and federal civil rights statutes. The Fourth Circuit Court of Appeals found that Home Health had no implied right of action under the Medicare Act, and went on to state that "the conclusion that Home Health has no right of action ... under 42 U.S.C. § 1395a compels the conclusion that Home Health likewise has no cause of action under §§ 1983 and 1985." Home Health, 706 F.2d at 498.³ Thus this court feels that under the Fourth Circuit's analysis, a determination of whether the plaintiffs have been deprived of "rights, privileges, or immunities" within the meaning of § 1983⁴ should begin with a determination of whether an implied right of action exists under the Brooke Amendment.

II. PRIVATE RIGHT OF ACTION UNDER THE BROOKE AMENDMENT

In determining whether a private right of action may be implied from a statute when legislation does not provide expressly for such a remedy, a court must focus on congressional intent. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 377, 102 S.Ct. 1825, 1838, 72 L.Ed.2d 182 (1982). Since 1975, the prevailing standard for determining whether Congress intended to imply such a right of action is that set forth in Cort v. Ash:

First, is the plaintiff "one of the class for whose especial benefit the statute was enacted" ... that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? ... Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal laws?

422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) (citations omitted). Although later cases favored a somewhat different but related approach, see, e.g., Transamerica Mortgage Advisor, Inc. (TAMA) v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979); Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979), the Supreme Court has recently reaffirmed the use of the Cort analysis. Daily Income, Inc. v. Fox, 464 U.S. 523, 104 S.Ct. 831, 839, 78 L.Ed.2d 645 (1984).

The first inquiry under Cort is whether Congress intended to create a special class of beneficiaries which includes the plaintiffs, and, if so, whether Congress intended to confer federal rights upon such beneficiaries. In construing sections 1437c and 1441, two general policy sections of the Housing Act, the Fourth Circuit Court of Appeals determined that: "First, the purpose of the legislation was to help the states; second, the purpose in helping the states was ultimately to benefit low income families. Thus the legislation had two beneficiaries-states as direct beneficiaries and low-income families as indirect beneficiaries." Perry v. Housing Authority of City of Charleston, 664 F.2d 1210, 1213 (4th Cir.1981). The Perry court also found that "there is clearly no indication in the legislation or in the history of the Housing Act that Congress intended to create in public housing tenants a federal right of action against their municipal landlords." Id.

The court, combining factors three and four of the Cort analysis, determined that:

it would plainly be inconsistent with any legislative scheme in the federal legislation to imply a private cause of action where the legal right involved is one traditionally left to state law. It would be hard to find an area of the law in which the states have a greater interest or have had greater involvement than in the legal area of landlord-tenant.

Id. at 1216. Thus, the court held that there was no implied cause of action under the Housing Act against a local housing authority.

In applying the Cort analysis to the provisions of the Brooke Amendment, this court sees no reason to deviate from the conclusions reached by the Fourth Circuit in Perry. The Brooke Amendment provided, at the time this suit was filed:

(a) Dwelling units assisted under this Act shall be rented only to families who are lower income families at the time of their initial occupancy of such units. A family shall pay as rent for a dwelling unit assisted under this Act the highest of the following amounts, rounded to the nearest dollar:

1) 30 per centum of the family's monthly adjusted income;

2) 10 per centum of the family's monthly income; or

3) if the family is receiving payments for welfare assistance from a public agency and a part of such payments, adjusted in accordance with the family's actual housing costs, is specifically designated by such agency to meet the family's housing costs, the portion of such payment which is so designated.

42 U.S.C. § 1437a(a) (1983). This relevant portion of the Brooke Amendment sets a limit on rent chargeable to tenants of low income housing. By definition, this rent includes utilities in an amount not to exceed that set by the Housing Authority, 24 C.F.R. §§ 860.403(a), 865.472 (1983), and approved by HUD. 24 C.F.R. § 865.473 (1983). The Brooke Amendment provisions apply only to lower income families who rent "dwelling units assisted under the United States Housing Act of 1937." 42 U.S.C. § 1437a(a) (1983) (emphasis added). Plaintiffs concede that the Housing Authority operates "its projects with federal subsidy pursuant to an Annual Contribution Contract"⁵ from HUD, and that "HUD retains general enforcement authority." Plaintiffs' Brief in Support of Summary Judgment p. 3, 18. Thus, although low income families are certainly one of the beneficiaries of the Brooke Amendment, they are not the only beneficiaries. Consistent with the other provisions of the Housing Act, "the legislation had two beneficiaries—states as direct beneficiaries and low-income families as indirect beneficiaries." Perry, 664 F.2d at 1213.

Although finding that an implied right of action existed under the Brooke Amendment against HUD, the United States Court of Appeals for the Sixth Circuit, in Howard v. Pierce, 738 F.2d 722 (6th Cir.1984), "could discern no justification for extending such a cause of action to a public housing agency...." Id. at 730. In so holding, the Sixth Circuit, applying the second Cort factor, found that "nowhere in the legislative history ... was there an expression of intent either to provide or deny a private means of enforcing the Brooke Amendment." Id. at 727. As the Fourth Circuit determined in Perry, "Congress need not fear that unless it specifically denies a cause of action, the courts will automatically imply one; when Congress is silent there is no presumption in favor of a legislatively created cause of action." Perry, 664 F.2d at 1213. Thus, under the Cort analysis, this court holds that there exists no implied right of action under the Brooke Amendment against a public housing authority such as RRHC.⁶

III. CAUSE OF ACTION UNDER 42 U.S.C. § 1983

42 U.S.C. § 1983 provides for the redress of deprivations of rights secured by the United States Constitution or statutes under color of state law. Though there is no constitutional right to...