N.D.Cal.: Housing Act notice provision enforceable under § 1983

A California federal district court held that a provision of the U.S. Housing Act, 42 U.S.C. § 1437p(a)(4) – which guarantees that residents receive notice and relocation assistance in the event their housing is demolished or sold – creates individual rights enforceable under 42 U.S.C. § 1983. Arroyo Vista Tenants Ass’n v. City of Dublin, 2008 WL 2338231 (N.D.Cal. May 23, 2008) (No. C 07-05794).

The court focused on the provision’s repeated use of the terms “each family” and “each resident,” which it said was “unmistakably focused” on benefitting public housing residents. The court rejected as “not determinative” the provision’s history of amendments, and the conflicting court decisions that accompanied them. 

            The plaintiffs are residents of a public housing development, which the city had contracted to sell, demolish and turn into mixed-income housing. Section 1437p(a)(4) states that the local authority “will notify each family” 90 days prior to displacement; “will not commence [demolition] until each resident…is relocated”; “will…offer[ ] comparable housing” to “each family displaced by such action”; and “will provide for…relocation expenses of each resident.”

            When first enacted, the section’s language was shorter and more general, and it was held not to be privately enforceable. Edwards v. D.C., 821 F.2d 651 (D.C. Cir. 1987). Congress then amended the section, expressly disapproving of Edwards and adding subsection (d), which stated that housing authorities “shall not take any action to demolish or dispose of a public housing project….without obtaining the approval of the Secretary and satisfying” the general condition of relocation assistance. Several courts subsequently allowed enforcement under § 1983, relying on subsection (d). In 1998, however, Congress removed subsection (d) and substantially rewrote the section into its current state. Subsequent courts have disagreed on its enforceability. The district court held that none of this history or precedent was dispositive here, because 1) Edwards was expressly rejected by Congress; 2) post-Edwards decisions relied on language no longer present in the statute; and 3) post-1998 decisions finding § 1437p enforceable “did not engage in a thorough analysis” under Blessing v. Freestone, 520 U.S. 329 (1997) (three-part test for enforceable rights), and Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (provisions must contain “unambiguous” “rights-creating language”).

            Applying the Blessing and Gonzaga standards, the court stated that “repeated use of variations of the phrase ‘family’ or ‘resident displaced’ throughout section 1437p(a)(4), as well as the articulation of specific and detailed entitlements regarding rights to notification and relocation assistance, demonstrates” that the provision was intended to create federal rights. The court likened §1437p(a)(4) to a Medicaid provision held enforceable in Ball v. Rodgers, 492 F.3d 1094 (9th Cir. 2007) (summary here) (provisions “repeated use of the word ‘individuals’ and specific articulation of the entitlements guaranteed” satisfied Gonzaga). “In sum, Congress intended the statute today, like the statute at the time of the Edwards decision, to give rise to individual rights, and the creation of those rights does not hinge on the presence or absence of former subsection (d).”

            The court noted that HUD regulations incorporated the language of former subsection (d), and in doing so the agency stated that the regulation “was not intended to create any private right of action.” The court said this statement was of no importance: “Agency regulations cannot nullify rights legitimately conferred by Congress any more than regulations alone can give rise to rights.” See Price v. City of Stockton, 390 F.3d 1105, 1109 (9th Cir. 2004) (relocation assistance regulations did not create right of action).

            The court went on to conclude that the requirements of § 1437p(a)(4) were sufficiently specific to be enforceable, and that their “repeated and consistent use of the term ‘will’ indicates” that its terms “are mandatory, not precatory.” Finally, it held that HUD’s ability to disapprove a housing authority’s plan for demolition or disposition “is not inconsistent with and does not foreclose private section § 1983 actions against” the housing authority.