5th Cir.: No § 1983 rights re: public housing demolitions

The Fifth Circuit held that U.S. Housing Act’s criteria for approving housing project demolitions do not create enforceable rights under 42 U.S.C. § 1983.

 This is the first circuit court decision interpreting the provision since it was amended a decade ago. The court also held that the provision could not be enforced against the federal government under the Administrative Procedures Act (APA), because it does not provide monetary relief and the buildings at issue were substantially demolished during the appeal. Finally, the court held denial of a preliminary injunction was proper, because Housing Act criteria were apparently met. Anderson v. Jackson, --- F.3d ----, 2009 WL 162412 (5th Cir. Jan. 26, 2009) (No. 07-31138).

 

          Plaintiffs are displaced public housing residents, challenging the planned demolition of four developments in New Orleans. They brought claims under the Fair Housing Act, the Constitution, state law, and public lease agreements, which the district court dismissed. The district court did permit plaintiffs to proceed with claims relating to their right to vouchers or other rental assistance, and granted class certification on those claims. However, on December 31 the Fifth Circuit reversed and remanded that decision, holding that “the district court abused its discretion by certifying a class based on claims not pleaded in the complaint.” --- F.3d ----, 2008 WL 5412870.

 

This separate appeal concerns alleged violations of 42 U.S.C. § 1437p (criteria for demolition approvals), which plaintiffs sought to enforce against the city housing authority (HANO) through § 1983, and against the Department of Housing and Urban Development (HUD) through the APA. The district court also dismissed these claims. 2007 WL 4163669 (E.D.La. 2007). The Fifth Circuit refused to order interim relief or expedite the appeal, and during the appeal three of the buildings were razed and one partially demolished.         

          Section 1983

 

          The D.C. Circuit previously held that § 1437p, as then written, was not enforceable under § 1983. Edwards v. D.C., 821 F.2d 651 (D.C.Cir. 1987). Congress thereafter amended the section to make it privately enforceable. See, e.g., Velez v. Cisneros, 850 F.Supp. 1257 (E.D.Pa.1994). In 1998 Congress removed the previously added subsection, though the legislative history does not indicate why. Some district courts have continued to hold § 1437p enforceable. Givens v. Butler Metro. Hous. Auth., 2006 WL 3759702 (S.D.Ohio 2006); Arroyo Vista Tenants Ass'n v. City of Dublin, 2008 WL 2186438 (N.D.Cal. 2008). The Fifth Circuit held that § 1437p does not clearly bestow rights on residents. “The entire provision,” the court said, is aimed at the Secretary of HUD and “is framed in terms of when the Secretary should approve or disapprove a demolition application.” Although the statute “indirectly notifies” local authorities like HANO of what they must show to get federal approval, the courts said that “it is HUD that receives the direct command, and HUD ultimately controls compliance with the statute by either approving or disapproving the applications.” Thus, according to the court the only “remedy” under § 1437p is denial of federal approval for demolition.

 

          Notably, subsection (a)(4) of the statute requires the local authority to guarantee that it “will notify each [displaced] family,” “will provide for the payment of the…relocation expenses of each resident” as well as necessary counseling, and “will ensure” that they are offered comparable housing. The court acknowledged this “language referencing the individual residents,” but said that “the overall structure of the statute shows that these sub-provisions are intended as an administrative checklist.” Because the entire statute is prefaced by “[T]he Secretary shall approve the application, if the public housing agency certifies-,” the court said that it focuses on the entity being regulated (HUD) rather than on residents. “The logical inference from this action,” the court said, “is that Congress intended to remove the private right of action that the provision created.” The court concluded that this history, along with its textual analysis, “makes it at least ambiguous as to whether Congress intended for the current version of § 1437p to create a federal right” – thus failing to meet the “unambiguous” standard of Gonzaga Univ. v. Doe, 536 U.S. 273 (2002).

 

          Administrative Procedures Act

 

          The court acknowledged that the APA, 5 U.S.C. § 702, creates a right of action for the enforcement of § 1437p against HUD. The district court therefore erred in dismissing the claim on the same basis as the § 1983 claim. But the panel said this error was “of no consequence,” because the subsequent demolition of the housing developments rendered relief under the APA impossible.  The court noted that § 702 authorizes only “relief other than money damages,” and said that since the demolition is now substantially complete, “injunctive relief is no longer availing.”

 

          The court said that, moreover, the district court’s denial of preliminary injunctive relief on the merits was not an abuse of discretion, because “it was reasonable for the district court to conclude that there were no illegalities in the demolition application approval process.” According to the court, “HANO’s demolition application indicates that each of the requirements of § 1437p were met.” (Given this conclusion, one might question why the court spends most of its opinion on the right-of-action question.)