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New Orleans Fair Housing Dt. Ct. decision
In a suit against the federal Department of Housing and Urban Development (HUD) and the Housing Authority of New Orleans (HANO), a district court in Louisiana held that claims under the Fair Housing Act could be enforced under 42 U.S.C. § 1983. The court also permitted the plaintiffs’ claim under the Due Process Clause of the Constitution to go forward. However, the court held that there was no private right of action to enforce claims under the U.S. Housing Act and found that plaintiffs did not submit adequate evidence of discriminatory impact or intent. Anderson v. Jackson, 2007 WL 458232 (E.D. La. Feb. 6, 2007).In a suit against the federal Department of Housing and Urban Development (HUD) and the Housing Authority of New Orleans (HANO), a district court in Louisiana held that claims under the Fair Housing Act could be enforced under 42 U.S.C. § 1983. The court also permitted the plaintiffs’ claim under the Due Process Clause of the Constitution to go forward. However, the court held that there was no private right of action to enforce claims under the U.S. Housing Act and found that plaintiffs did not submit adequate evidence of discriminatory impact or intent. Anderson v. Jackson, 2007 WL 458232 (E.D. La. Feb. 6, 2007). The judge, Ivan Lemelle, is a Clinton appointee.
The plaintiffs formerly lived in public housing developments in New Orleans that were damaged by Hurricane Katrina, but most of them left the developments due to the damage. Plaintiffs filed suit to prevent demolition of the developments. In the alternative, plaintiffs alleged that the defendants constructively demolished the developments by failing to perform the minor repairs needed to make the developments habitable. Plaintiffs alleged violations of the Fair Housing Act, the US Housing Act, international law, the 5th and 14th Amendments to the Constitution, and state contract law.
The court began by analyzing jurisdiction over HUD under § 3608(e)(5) of the Fair Housing Act which provides that HUD “shall” administer “programs and activities relating to housing and urban development in a manner affirmatively to further the policies” of the Fair Housing Act. HUD argued that the Administrative Procedure Act, 5 U.S.C. § 701(a), precludes review of agency actions that are committed to agency discretion by law. The court found that “numerous cases have exercised subject matter jurisdiction over claims brought against HUD under § 3608.” The court stated that those cases finding otherwise were “factually dissimilar from the present action,” because they challenged broad agency policies rather than specific agency decisions. Since in the New Orleans case the plaintiffs challenged the propriety of the specific decision to demolish the developments, the court concluded that judicial review is proper.
The court then analyzed whether plaintiffs could sue HANO under § 1983 to enforce § 3608(e)(5). The court stated: “Since Gonzaga [University v. Doe, 536 U.S. 273 (2002)], the Fifth Circuit continues to apply the Blessing [v. Freestone, 520 U.S. 329 (1997)] test to determine whether or not Congress intended to confer a private right of action to enforce a particular statute, but now recognizes that Gonzaga has severely limited the finding of private rights of action under most federal statutes.”
The court held that § 3608(e)(5) is enforceable under § 1983. The court relied heavily on the holding that § 3608(e)(5) is enforceable in Langlois v. Abington Hous. Auth., 234 F.Supp.2d 33 (D.Mass. 2002) and Wallace v. Chicago Housing Authority, 298 F.Supp.2d 710 (N.D.Ill. 2002). The court incorrectly characterized Langlois as preceding Gonzaga. In fact, both cases were decided subsequent to Gonzaga. The court also cited a number of pre-Gonzaga cases finding the provision enforceable.
The court does not cite (was it unaware of?) the unpublished case of Thomas v. Butzen, 2005 WL 2387676 (N.D.Ill. 2005), which criticized Langlois and Wallace for failing to follow the directives of Gonzaga and held that § 3608(e)(5) does not meet the Gonzaga test for creating enforceable rights. (On a side note, Thomas explains that the explicit private right of action in the Fair Housing Act does not cover § 3608.)
For the plaintiffs’ claims under § 3608, the court held that there were factual disputes and summary judgment was not proper.
While the court found the Fair Housing Act claims enforceable under § 1983, the court rejected plaintiffs’ claim that § 1437p(d) of the U.S. Housing Act implies a private cause of action for their constructive demolition claims. The court noted that the Fifth Circuit held in Banks v. Dallas Housing Authority, 271 F.3d 605 (5th Cir. 2001) that another provision of the U.S. Housing Act, 42 U.S.C. 1437f(3), did not contain a private right of action, and in that same case, the Fifth Circuit cited with approval a D.C. Circuit case holding that 1437p does not create an enforceable right against constructive demolition. Edwards v. District of Columbia, 821 F.2d 651 (D.C. Cir. 1987). The court stated:
The Court recognizes that § 1437p contains a multitude of provisions that, when read standing alone, could reasonably be interpreted as rights/benefits-granting language because they are “phrased in terms of persons benefited.” However, when read in context, it is clear that these provisions are intended to regulate the public housing agency and ensure that it has fulfilled basic requirements before HUD is authorized to approve any demolition application.”
The court granted the defendants’ motion for summary judgment on the constructive demolition claims.
The court held that plaintiffs lacked standing to assert their actual demolition claims, because HANO had not actually applied to HUD for approval to demolish the developments. The plaintiffs submitted evidence of statements from HUD that HUD expected HANO to apply for approval to demolish the developments in the future and noted that defendants had represented to the court that demolition was imminent. Nevertheless, since HANO had not submitted an application for approval to demolish the developments, the court held that the actual demolition claims were not ripe.
The court went straight to the merits of plaintiffs’ claim under § 3604 of the Fair Hearing Act, since the statute contains a private right of action to enforce that provision. Section 3604 makes it unlawful to deny housing because of race or to discriminate against any person in the provision of services for rental housing. Plaintiffs alleged that since all of the residents of the developments were African-American, the decision to demolish necessarily has a discriminatory effect. The court found that the legal standard is whether the agency decision perpetuates segregation, and noted that ironically, maintaining the developments “may actually perpetuate segregation more so than HANO’s plans for demolitions and redevelopment.” The court concluded that plaintiffs had not offered relevant or material evidence to sustain a claim for disparate treatment or disparate impact under § 3604(a) and granted summary judgment to the defendants on those claims. For the same reason, the court also granted summary judgment on plaintiffs’ equal protection claim.
Nevertheless, the court found that the plaintiffs had stated a claim upon which relief can be granted for violating Constitutional Due Process requirements. HUD alleged that it had sovereign immunity from the due process claim. The court rejected that contention, noting that the APA, 5 U.S.C. § 702, waives sovereign immunity of the federal government in most suits seeking injunctive relief. The court further held that plaintiffs have a property interest in continued public housing assistance, even though they were not presently living in the developments. The court concluded that there were factual disputes regarding the due process claim which precluded summary judgment.
The court dismissed the plaintiffs’ breach of contract and international law claims.