E.D.N.Y.: Housing, inspection standards not enforceable

A New York federal district court held that a provision of the Housing Act concerning inspections of public housing units, and the Housing Quality Standards contained in federal regulations, do not create individual rights enforceable through 42 U.S.C. § 1983. Bose v. City of New York, 2008 WL 564761 (E.D.N.Y. Feb. 27, 2008) (No. 07-2431).

                Bose was a public housing tenant with a long-running “antagonistic relationship” with her landlord. She sued following her eviction, alleging that the city’s failure to enforce federal housing standards led to her eviction and to lead poisoning in her children. The defendants argued that her complaint was too broad and conclusory and failed to sufficiently identify the particular federal rights upon which it was based. The district court followed Second Circuit precedent that § 1983 does not impose a higher pleading standard than the Federal Rules of Civil Procedure. Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). The court further held that although Bose failed in her complaint to identify the particular provisions of federal law at issue, as required by Blessing v. Freestone, 520 U.S. 329 (1997), Bose sufficiently clarified this question in her written and oral arguments.

 

                The court then considered whether, under Blessing, Bose could assert federal rights under 42 U.S.C. § 1437f(o)(8), which states requirements for inspections of public housing units. The court stated the Blessing test: To be enforceable under § 1983, a statute must: 1) show that the plaintiff is its intended beneficiary, 2) not be so “vague and amorphous” that courts cannot enforce it, and 3) clearly impose a binding obligation on states. The court observed that “the Supreme Court’s ‘approach to § 1983 enforcement of federal statutes has been increasingly restrictive.’” Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d 356, 360 (5th Cir. 2006). The court then noted that under Gonzaga Univ. v. Doe, 536 U.S. 273 (2002), a statute must contain “explicit rights-creating language” and have a individual, not aggregate focus to be enforceable

 

                The court held that

Section 1437f(o)(8) does not by its plain terms create individual rights. As clearly indicated by its title, this provision of the Housing Act regulates inspections by PHAs [public housing authorities]. Although the broad purpose of the Housing Act may be directed at ensuring adequate, habitable housing for low-income families… the focus of § 1437f(o)(8) is on regulating when a local PHA should inspect Section 8 premises. …Subparagraph (C) specifically notes that the agency's performance in meeting the 15-day inspection deadline will be considered in evaluating the agency. Other than providing for a tenant to request an inspection, the statute makes no reference to any right of an individual tenant. Similar to the statutes in Blessing and Gonzaga, the statute here addresses “systemwide performance” and dictates “institutional policy and practice.” There is no reference to what action should follow if a landlord fails an inspection, or to the consequences if a local PHA fails to comply with its inspection obligations. Certainly, there is nothing in the statute to suggest that a tenant, such as plaintiff, is entitled to relief under such circumstances. Put simply, these provisions of the Housing Act lack any individualized focus; they speak instead to the public housing agency, directing when it must make inspections of Section 8 premises.

The court noted the Sixth Circuit’s holding that Section 1437f as a whole is not privately enforceable. Johnson v. City of Detroit, 446 F.3d 614 (6th Cir. 2006).

 

                As to the Housing Quality Standards, 24 C.F.R. § 982.401 et seq., the court stated, first, that “it is not clear” that federal regulations can form a basis for a § 1983 claim, and that in any event Part 982 as a whole cannot be enforced by public housing residents because it states that it “does not create any rights of the family, or any party other than [the Department of Housing and Urban Development] or the PHA, to require enforcement” of the Standards. 24 C.F.R. § 982.406.