Opinion
Civil Action No: 04-1128 Section: "D" (3).
October 27, 2004
Before the court are the following motions:
(1) "Motion to Dismiss Pursuant to Rule 12 (b)" filed by Defendants, Housing Authority of Jefferson Parish (HAJP), Louisiana Housing Development Corporation (LHDC), and Jeffrey Trahan, Executive Director of HAPJ; and
(2) "Motion for Leave to File Second Amended and Supplemental Complaint" filed by Plaintiffs.
The motions, set for hearing on Wednesday, October 13, 2004, are before the court on briefs, without oral argument. Now, having reviewed the memoranda of counsel and the applicable law, the court finds that the matter should be dismissed. I. Background of this lawsuit
Plaintiffs are allegedly low-income tenants who live in Section 8 subsidized apartments and have vouchers provided under the federal Housing Choice Voucher program. Defendant, the Jefferson Parish Housing Authority (JPHA), allegedly receives federal funds to supplement the rent and the utility costs of these low income tenants. Defendant, Jeffrey Trahan, is allegedly the Executive Director of the JPHA, and Defendant, the Louisiana Housing Development Corporation, was allegedly responsible for operating the Section 8 federally subsidized housing program for the JPHA.
In their opposition to Defendants' Motion to Dismiss, Plaintiffs make clear that they sue Defendant Trahan in his official capacity only, not in his personal capacity. (Plaintiffs' Opp. at 3; see also Plaintiffs' proposed Second Amended Complaint at ¶ 6).
In their First Amended Complaint, Plaintiffs claim that "[t]he Jefferson Parish Housing Authority has not raised its utility allowances since 1995 even though rate hikes have caused utility costs to increase many times since then," and thus Plaintiffs "seek to enforce their right to have the Jefferson Parish Housing Authority ("JPHA") increase their utility allowance as required by federal law." ( See Plaintiffs' First Amended Complaint, Doc. No. 2, ¶ 1).
More specifically, Plaintiffs contend that JPHA has not followed the mandate of 24 C.F.R. § 982.517(c) "to revise its allowance for a utility category if there has been a change of 10 percent or more from the rates on which such allowances were based." ( Id. Plaintiffs' Memorandum in Support of their Motion for Leave to File Second Amended and Supplemental Complaint, pp. 12, 14).
After Plaintiffs filed this suit on December 29, 2003, JPHA issued a revised Utility Allowance Schedule (effective March 15, 2004) which raised the total allowance for most apartment sizes and utility configurations. In their Motion for Leave to File Second Amended and Supplemental Complaint, Plaintiffs contend that even if JPHA is now using current utility rates (which Plaintiff do not concede), JPHA did not calculate allowances in accordance with the directive given in 24 C.F.R. § 982.517(b) to base allowances on "typical cost of utilities and services paid by energy-conservative households that occupy housing of similar size and type in the same locality," and Defendant made unrealistic assumptions about how well typical households are able to conserve energy and/or what are normal patterns of consumption. ( See Plaintiff's Motion for Leave, pp. 5-6, quoting 24 C.F.R. § 982.417(b)).
And thus, if allowed to proceed under their proposed Second Amended Complaint, Plaintiffs are still seeking to enforce their alleged right to have the JPHA increase their utility allowances. Plaintiffs maintain that their actual utility costs greatly exceed and, absent judicial intervention, will continue to exceed the utility allowances afforded by Defendants.
In bringing this suit, Plaintiff claim to "have a private right of action under the United States Housing Act of 1937, 42 U.S.C. § 1437 et seq., to challenge defendants illegal failure to make payments and a private right of action under 42 U.S.C. § 1983 for deprivation of substantial federal rights under color of state law." ( See Plaintiffs' First Amended Complaint at ¶ 25 proposed Second Amended Complaint at ¶ 26).
In their First Amended Complaint, Plaintiffs also assert that they are third party beneficiaries of JPHA's contractual agreements with HUD to abide by the requirements of the Housing Act of 1937 and implementing regulations, and Defendants violated their contractual agreements with HUD thereby causing Plaintiffs to pay more rent than is required by law. ( See Plaintiffs' First Amended Complaint at ¶¶ 30-32).
However, in response to Defendants' Motion to Dismiss, Plaintiffs concede that they cannot enforce the Annual Contributions Contract (ACC) between HUD and the Housing Authority because the ACC itself excludes third party rights. ( See Plaintiffs' Opp. at 2, and ACC attached to Defendants' Motion to Dismiss). In their proposed Second Amended Complaint, Plaintiffs have deleted their claim based on their alleged status as third party beneficiaries to the ACC.
In their Motion to Dismiss now before the court, Defendants argue that:
(1) the Housing Choice Voucher Program, 42 U.S.C. § 1437f, does not create an enforceable right to challenge the calculation of the utility allowance schedule;
(2) neither the Housing Choice Voucher Program, 42 U.S.C. § 1437f, nor 42 U.S.C. § 1983 creates a private right of action to enforce a particular calculation of the utility allowance schedule; and
(3) the standards set for determining utility allowance schedules leave wide discretion in the public housing agency and are incapable of judicial application and interpretation.
For reasons discussed below, the court finds that Defendants' arguments have merit.
II. Background of the Housing Choice Voucher Program
Pursuant to the Housing Act of 1937, Congress enacted various types of "Section 8" programs to provide an adequate supply of decent, affordable housing for low-income families. See generally 42 U.S.C. § 1437f; 24 C.F.R. § 982. The Secretary of Housing and Urban Development (HUD) funds the Section 8 programs, and the local Public Housing Authorities (PHAs) administer them.
The particular Section 8 program at issue here is the Housing Choice Voucher Program, which is tenant-based (as opposed to project-based) rental assistance. Under the program, qualified tenants pay a portion of their income to landlords and the public housing authorities, like the Housing Authority of Jefferson Parish, make additional assistance payments to the landlords with federal funds that are received from HUD. See 42 U.S.C. 1437f(b), (c) (o).
HUD is authorized to enter into an annual contributions contracts (ACC) with a public housing agency (PHA), which permits the PHA to obtain federal funding to enable low-income families to enter the housing market. 42 U.S.C. § 1437f(b) (1); 24 C.F.R. § 982.151.
The public housing agency in turn enters into a housing assistance payment (HAP) contract with the owner of the dwelling selected by the participant, and the public housing agency makes assistance payments directly to the landlord. 42 U.S.C. § 1437f(b)(1); 24 C.F.R. § 982.456.
Neither the ACC nor the HAP contract confers third party beneficiary rights on Housing Choice Voucher program participants. The language of the ACC contract (between HUD and a PHA) is mandated by HUD on Form HUD-52520, and paragraph 20 of the contract between HUD and HAJP provides:
20. Exclusion of Third Party Rights
(a) A family that is eligible for housing assistance under this consolidated ACC is not a party beneficiary of the consolidated ACC.
(b) Nothing in the consolidated ACC shall be construed as creating any right of any third party to enforce any provision of this consolidated ACC, or to assert any claim against HUD or the HA.
( See Defendants' Motion, Affidavit of Bobbie Robinson, Program Director for the Jefferson Parish Office LHDC attached Exhibit 3, Consolidated Annual Contributions Contract, p. 4, § 20).
And by HUD regulation, 24 C.F.R. § 982.456, the HAP contract (between a PHA and owner) does not create any third party beneficiary rights:
(b) (1) The family is not a party or third party beneficiary of the HAP contract . . . [T]he family may not exercise any right or remedy against the owner under the HAP contract.
. . .
(c) The HAP contract shall not be construed as creating any right of the family or other third party (other than HUD) to enforce any provision of the HAP contract, or to assert any claims against HUD, the PHA or the owner under the HAP contract.24 C.F.R. § 982.456.
An eligible participant in the Housing Choice Voucher program receives a voucher from a PHA and then must find a private landlord willing to accept the voucher. The rent the landlord requires generally may not exceed by more than 10% the fair market rental levels established periodically by HUD. 42 U.S.C. § 1437f(c)(1). The fair market rental value adopted by HUD includes the cost of utilities. 24 C.F.R. § 982.4(b).
Under the voucher program, codified at 42 U.S.C. § 1437f(o), HUD provides assistance to the PHAs for tenant-based assistance using a payment standard that is between 90 percent and 110 percent of the fair market rent for the area served by the housing agency. 42 U.S.C. § 1437f(o) (1) (B); 24 C.F.R. § 982.503 (b). The payment standard is subject to approval and review by HUD. 42 U.S.C. § 1437f(o)(1) (DE).
Families who receive assistance through the Housing Choice Voucher program are required to pay a minimum monthly rent in an amount to be determined by the housing agency "of not more than $50 per month." 42 U.S.C. § 1437f(o) (2); 42 U.S.C. § 1437a(a)(3). Subject to this requirement, the monthly assistance payment for a family receiving assistance under the voucher program shall be determined as follows:
(A) Tenant-based assistance, rent not exceeding payment standard
For a family receiving tenant-based assistance, if the rent for the family (including the amount allowed for tenant-paid utilities) does not exceed the applicable payment standard established under paragraph (1), the monthly assistance payment for the family shall be equal to the amount by which the rent (including the amount allowed for tenant-paid utilities) exceeds the greatest of the following amounts, rounded to the nearest dollar:
(i) 30 percent of the monthly adjusted income of the family.
(ii) 10 percent of the monthly income of the family.
(iii) If the family is receiving payments for welfare assistance from a public agency and a part of those payments, adjusted in accordance with the actual housing costs of the family, is specifically designated by that agency to meet the housing costs of the family, the portion of those payments that is so designated.
(B) Tenant-based assistance, rent exceeding payment standard
For a family receiving tenant-based assistance, if the rent for the family (including the amount allowed for tenant-paid utilities) exceeds the applicable payment standard established under paragraph (1), the monthly assistance payment for the family shall be equal to the amount by which the applicable payment standard exceeds the greatest amounts under clauses (i), (ii), and (iii) of subparagraph (A).42 U.S.C. § 1437f(o)(2) (emphasizing tenant-paid utilities).
Participants in the voucher program are able to choose a dwelling that rents for more than the payment standard, but the family must pay that excess rent as part of the family share. However, the public housing agency "may not give approval for the family of the assisted tenancy" until the PHA has determined that the following requirement has been met:
At the time a family initially receives tenant-based assistance for occupancy of a dwelling unit, and where the gross rent of the unit exceeds the applicable payment standard for the family, the family share does not exceed 40 percent of the family's monthly adjusted income.24 C.F.R. § 982.305(a)(5). See also 42 U.S.C. § 1437f(o)(3) ("40 percent limit").
The portion of rent and utilities paid by the family is known as the "family share," and it is calculated by subtracting the amount of the housing assistance payment from the gross rent. 24 C.F.R. §§ 982.4(b) 982.515(a). "Gross rent" is the sum of the rent to owner plus any utility allowance. 24 C.F.R. § 982.4(b) (emphasis added).
The definition of "utility allowance" is found in 24 C.F.R. § 5.603(b), which provides:
Utility allowance. If the cost of utilities (except telephone) and other housing services for an assisted unit is not included in the tenant rent but is the responsibility of the family occupying the unit, an amount equal to the estimate made or approved by a PHA or HUD of the monthly cost of a reasonable consumption of such utilities and other services for the unit by an energy-conservative household of modest circumstances consistent with the requirements of a safe, sanitary, and healthy living environment.24 C.F.R. § 5.603(b).
Further, HUD instructs public housing authorities participating in the Housing Choice Voucher program, how to maintain and determine a utility allowance schedule through its regulation, 24 C.F.R. § 982.517, which provides:
(a) Maintaining schedule.
(1) The PHA must maintain a utility allowance schedule for all tenant-paid utilities (except telephone), for cost of tenant-supplied refrigerators and ranges, and for other tenant-paid housing services (e.g., trash collection (disposal of waste and refuse)).
(2) The PHA must give HUD a copy of the utility allowance schedule. At HUD's request, the PHA also must provide any information or procedures used in preparation of the schedule.
(b) How allowances are determined.
(1) The utility allowance schedule must be determined based on the typical cost of utilities and services paid by energy-conservative households that occupy housing of similar size and type in the same locality. In developing the schedule, the PHA must use normal patterns of consumption for the community as a whole and current utility rates.
(2) (i) A PHA's utility allowance schedule, and the utility allowance for an individual family, must include the utilities and services that are necessary in the locality to provide housing that complies with the housing quality standards. However, the PHA may not provide any allowance for non-essential utility costs, such as costs of cable or satellite television.
(ii) In the utility allowance schedule, the PHA must classify utilities and other housing services according to the following general categories: space heating; air conditioning; cooking; water heating; water; sewer; trash collection (disposal of waste and refuse); other electric; refrigerator (cost of tenant-supplied refrigerator); range (cost of tenant-supplied range); and other specified housing services. The PHA must provide a utility allowance for tenant-paid air-conditioning costs if the majority of housing units in the market provide centrally air-conditioned units or there is appropriate wiring for tenant-installed air-conditioners.
(3) The cost of each utility and housing service category must be stated separately. For each of these categories, the utility allowance schedule must take into consideration unit size (by number of bedrooms), and unit types (e.g., apartment, row-house, town house, single-family detached, and manufactured housing) that are typical in the community.
(4) The utility allowance schedule must be prepared and submitted in accordance with HUD requirements on th form prescribed by HUD.24 C.F.R. § 982.517(a) (b).
HUD also requires a public housing agency to revise its utility allowance schedule pursuant to 24 C.F.R. § 982.517(c), which provides:
(c) Revisions of utility allowance schedule.
(1) A PHA must review its schedule of utility allowances each year, and must revise its allowance for a utility category if there has been a change of 10 percent or more in the utility rate since the last time the utility allowance schedule was revised. The PHA must maintain information supporting its annual review of utility allowances and any revisions made in its utility allowance schedule.
(2) At HUD's direction, the PHA must revise the utility allowance schedule to correct any errors, or as necessary to update the schedule.24 C.F.R. § 982.517(c).
While HUD requires that a PHA give a participant family an opportunity for an informal hearing to consider whether the PHA's "determination of the appropriate utility allowance (if any) for tenant-paid utilities from the PHA utility allowance schedule" are in accordance with the law, HUD regulations and PHA policies, the PHA is not required to provide a participant family an opportunity for an informal hearing for the "establishment of the PHA schedule of utility allowances for families in the program." 24 C.F.R. § 982.555(a) (1) (ii) (b) (3).
In this lawsuit, Plaintiffs challenge the Housing Authority of Jefferson's failure to revise, properly calculate and/or increase the utility allowance schedule. However, as the court next discusses, Plaintiffs have no right to make such a challenge.
III. Neither the Housing Choice Voucher program, 42 U.S.C. § 1437f(o), nor its implementing regulations, namely 24 C.F.R. § 982.517, afford Plaintiffs an enforceable right to challenge the HAJP's determination of the utility allowance schedule through 42 U.S.C. § 1983.
"Section 1983 creates a cause of action against a state actor who deprives a person `of any rights, privileges, or immunities secured by the Constitution and laws.' 42 U.S.C. § 1983. Although most § 1983 claims involve constitutional violations, the provision also applies to rights created by federal statutes." Banks v. Dallas Housing Authority, 271 F.3d 605, 609 (5th Cir. 2001).
However, "[i]n order to seek redress through § 1983, . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997).
In Blessing, the Court set forth three "factors" to guide judicial inquiry into whether or not a statute confers a right enforceable through § 1983:
(1) Congress must have intended the provision in question benefit the plaintiff;
(2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its judicial enforcement would strain judicial competence; and
(3) the statute must unambiguously impose a binding obligation on the States, i.e., "the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms."Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997).
Although courts, including the Fifth Circuit, have historically applied the three factors in Blessing as a "three-part test," the Gonzaga Court clarified that its language in Blessing should not be read "to suggest that something less than an unambiguously conferred right is enforceable by § 1983." Gonzaga, 536 U.S. at 282, 122 S.Ct. at 2275.
See e.g. Banks v. Dallas Housing Authority, 271 F.3d 605 (5th Cir. 2001), discussed infra, text, pp. 17-19).
The Gonzaga Court found that the Blessing Court may have created some confusion because in the same paragraph that the Blessing Court set forth its three factors, the Court emphasized that "it is only violations of rights, not laws, which give rise to § 1983 actions." Id., 536 U.S. at 283, 122 S.Ct. at 2275. The Gonzaga Court explained that:
This confusion has led some courts to interpret Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect; something less than what is required for a statute to create rights enforceable directly from the statute itself under an implied right of action. Fueling this uncertainty is the notion that our private right of action cases have no bearing on the standard for discerning whether a statute creates rights enforceable by § 1983.Id.
The Gonzaga Court then expressly rejected the notion that its cases "permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Gonzaga University v. Doe, 536 U.S. 273, 283, 122 S.Ct. 2268, 2275, 153 L.Ed.2d 309 (2002). "Accordingly it is rights, not the broader or vaguer "benefits" or "interests," that may be enforced under the authority of that section." Id.
The Court also recognized that both the inquiry into whether a statutory violation may be enforced through § 1983 and the inquiry into whether a private right of action can be implied from a particular statute overlap in one meaningful respect —" in either case, we must first determine whether Congress intended to create a federal right." Id., 536 U.S. at 283, 122 S.Ct. at 2275.
For a statute to create private rights, its text must be "phrased in terms of the persons benefitted." Id., 536 U.S. at 284, 122 S.Ct. at 2275. "Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action." Id., 536 U.S. at 286, 122 S.Ct. at 2277.
Further, "even where a statute is phrased in . . . explicit rights-creating terms, a plaintiff suing under an implied right of action still must show that the statute manifests an intent "to create not just a private right but also a private remedy." Id., 536 U.S. at 284, 122 S.Ct. at 2275-76. A. In Wright v. City of Roanoke Redevelopment Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), the Supreme Court found that tenants living in low-income housing projects could enforce alleged violation of a rent-ceiling provision of the Housing Act through § 1983.
Plaintiffs rely heavily on Wright v. City of Roanoke Redevelopment Housing Authority, 479 U.S. 418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987), to support their argument that here they have an enforceable right to challenge the calculation of the utility allowance schedule and have it increased. The Housing Act provision at issue in Wright, 42 U.S.C. § 1437a(a), is different from the provisions at issue here, and it provided that "tenants could be charged as rent no more and no less than 30 percent of their income." Wright, 479 U.S. at 430, 107 S.Ct. at 773-74.
Section 1437a(a), which was the subject of Wright, expressly excludes participants in the Housing Choice Voucher program (§ 1437f(o)). The rent-ceiling provision of § 1437a(a)(1) now reads:
Dwelling units assisted under this chapter shall be rented only to families who are low-income families at the time of their initial occupancy of such units. Reviews of family income shall be made at least annually. Except as provided in paragraph (2) and subject to the requirement under paragraph (3), a family shall pay rent for a dwelling unit assisted under this chapter (other than a family assisted under section 1437f(o) or (y) or paying rent under section 1437f(c)(3)(B) of this title) the highest of the following amounts:
(A) 30 per centum of the family's monthly adjusted income;
(B) 10 per centum of the family's monthly income; or
(C) 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 cots, the portion of such payments which is so designated.42 U.S.C § 1437a(a)(1) (emphasis added). Thus, the provision involved in Wright, cannot be used by Plaintiffs here as the basis of a federal right to support a § 1983 claim.
The Wright Plaintiffs, who were housing project tenants (unlike the Plaintiffs here who live in private housing through the voucher program), sought to challenge the housing authority's surcharge for "excess" utility consumption. The Wright Plaintiffs claimed that the surcharge should have been part of their rent and to make them pay the surcharge "deprived them of their statutory right to pay only the prescribed maximum portion of their income as rent." Wright, 479 U.S. at 421-22, 107 S.Ct. at 769.
The Court agreed finding that the subject rent-ceiling provision unambiguously conferred a "mandatory limitation focusing on the individual family and its income." Id., 479 U.S. at 430, 107 S.Ct. at 766. As the Court later explained in Gonzaga, the key to its inquiry in Wright "was that Congress spoke in terms that `could not be clearer,' and conferred entitlements `sufficiently specific and definite to qualify as enforceable rights. . . .'" Gonzaga, 536 U.S. at 280, 122 S.Ct. at 2273 (citations omitted).
B. In Banks v. Dallas Housing Authority, 271 F.3d 605 (5th Cir. 2001), the Fifth Circuit found that tenants could not enforce alleged Section 8 violations through § 1983.
In Banks v. Dallas Housing Authority, 271 F.3d 605 (5th Cir. 2001), the statute at issue was yet a different provision of the Housing Act, i.e., former 42 U.S.C. § 1437f(e), which provided that public housing authorities could make assistance payments to only those property owners "who agree[d] to upgrade housing so as to make and keep such housing decent, safe, and sanitary." Banks, 271 F.3d at 608.
The Fifth Circuit conducted a Blessing analysis and concluded that former 42 U.S.C. § 1437f(e) did not create a federal right enforceable under § 1983. In applying the first Blessing factor, the court found that "to the extent § 1437f(e) confers a benefit upon residents of public housing, the provision operates in an indirect and attenuated manner," and concluded that "Congress enacted § 1473f(e) for the purpose of placing conditions upon property owners' receipt of assistance payments, not to confer a benefit upon tenants of public housing." Banks, 271 F.3d at 609-10.
As the court previously discussed in the text, supra, pp., the Blessing Court set forth three "factors" to guide judicial inquiry into whether or not a statute confers a right enforceable through § 1983:
(1) Congress must have intended the provision in question benefit the plaintiff;
(2) the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its judicial enforcement would strain judicial competence; and
(3) the statute must unambiguously impose a binding obligation on the States, i.e., "the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms."Blessing v. Freestone, 520 U.S. 329, 340-41, 117 S.Ct. 1353, 1359, 137 L.Ed.2d 569 (1997).
And in Gonzaga, the Court clarified that its language in Blessing should not be read "to suggest that something less than an unambiguously conferred right is enforceable by § 1983." Gonzaga, 536 U.S. at 282, 122 S.Ct. at 2275.
In applying the second Blessing factor, the Fifth Circuit distinguished Wright and found that the plaintiffs' asserted right to "decent, safe, and sanitary" public housing was too vague to be judicially enforceable. Id. at 610. The court reasoned that:
[The subject Housing Act provision in Wright, i.e., Section 1437a] provided that "tenants could be charged as rent no more and no less than 30 percent of their income." The Court pointed out that this mandatory provision "could not be clearer" and that it was "focus[ed] on the individual family and its income." The specificity of § 1437a, coupled with its focus on the tenants, suggested that Congress intended to create a right enforceable under § 1983. In this case, on the other hand, the imprecision of the alleged statutory right to "decent, safe, and sanitary" housing suggests that Congress did not intend to create a judicially enforceable right.Id. at 610 (citations omitted).
And, in applying the third Blessing factor, the Fifth Circuit found that "the owner's statutory obligation to maintain decent housing runs to the public housing authorities, not to the residents of the housing project" and that the "obligation is binding only in the sense that proper maintenance of the rental units is a condition that Congress placed upon receipt of Section 8 rent assistance. Id. at 610. C. Here, the court finds that Plaintiffs cannot enforce alleged Section 8 violations through § 1983, because the provisions at issue do not unambiguously confer upon them the rights they seek to enforce.
Plaintiff's First Amended Complaint and proposed Second Amended Complaint do no specifically identify which sections of " 42 U.S.C. § 1437 et seq." create federal rights. Their causes of action generally refer to Defendants' alleged violations of 42 U.S.C. § 1437 et seq. and its "implementing regulations," which have allegedly caused Plaintiffs to pay more rent than is required by law.
In their opposition to Defendants' Motion to Dismiss, Plaintiffs argue that as Section 8 Housing Choice Voucher program tenants, they have "a right under 42 U.S.C. § 1983 to enforce the federal statute and regulations which specify how and when Public Housing Authorities must calculate the subsidies to which these tenants are entitled, including a utility allowance." (Plaintiffs' Opp. at 3). Plaintiffs further clarify their position, that it is under 42 U.S.C. § 1437f(o)(2) (the statutory provision that governs the amount of monthly assistance payments the PHA's make to landlords), and its implementing regulation, 24 C.F.R. § 982.517 (which sets forth how a PHA determines the utility allowance schedule), that Plaintiffs have such a right. (Plaintiffs' Opp. at 16-20).
However, the court finds that while Congress may well have intended tenants in the Housing Choice Voucher Program to receive a benefit from the statutory formula set forth in 42 U.S.C. § 1437f(o)(2), Congress did not intend to create a federal right to bring the type of challenges that Plaintiffs make in this case, including the challenge to the calculation of monthly assistance payments under § 1437f(o)(2) and the challenge to the determination of the utility allowance schedule under 24 C.F.R. § 982.517.
42 U.S.C. § 1437f(o)(2) — "Amount of Monthly Assistance Payment"
In essence, 42 U.S.C. § 1437f(o)(2) sets forth how the "monthly assistance payment" for the family must be calculated. The monthly assistance payment is paid by the PHA to the landlord. While the Plaintiffs fall within the general zone of interest that this statute is intended to protect, the statutory language does not contain the sort of rights-creating language which reveals Congressional intent to permit Plaintiffs to challenge the calculation of the monthly assistance payment set forth in the statute.
The text of 42 U.S.C. § 1437f(o)(2), quoted in the text of this Minute Entry, supra pp. 8-9, is again quoted here for easy reference:
(A) Tenant-based assistance; rent not exceeding payment standard
For a family receiving tenant-based assistance, if the rent for the family (including the amount allowed for tenant-paid utilities) does not exceed the applicable payment standard established under paragraph (1), the monthly assistance payment for the family shall be equal to the amount by which the rent (including the amount allowed for tenant-paid utilities) exceeds the greatest of the following amounts, rounded to the nearest dollar:
(i) 30 percent of the monthly adjusted income of the family.
(ii) 10 percent of the monthly income of the family.
(iii) If the family is receiving payments for welfare assistance from a public agency and a part of those payments, adjusted in accordance with the actual housing costs of the family, is specifically designated by that agency to meet the housing costs of th family, the portion of those payments that is so designated.
(B) Tenant-based assistance; rent exceeding payment standard
For a family receiving tenant-based assistance, if the rent for the family (including the amount allowed for tenant-paid utilities) exceeds the applicable payment standard established under paragraph (1), the monthly assistance payment for the family shall be equal to the amount by which the applicable payment standard exceeds the greatest amounts under clauses (i), (ii), and (iii) of subparagraph (A).42 U.S.C. § 1437f(o)(2).
In short, the statute simply does not "unambiguously confer [a] right to support [Plaintiffs'] cause of action under § 1983." Gonzaga, 536 U.S. at 283, 122 S.Ct. at 2275. And a general claim that a statute creates an enforceable right is not sufficient to support a claim for deprivation of civil rights under § 1983. Blessing, 520 U.S. at 346.
[I]n Wright . . . we held that tenants of public housing projects had a right to have their utility costs included within a rental payment that did not exceed 30 percent of their income. We did not ask whether the federal housing legislation gave rise to rights; rather, we focused our analysis on a specific statutory provision limiting `rent' to 30 percent of a tenant's income.Id. at 342.
The text of the rent-ceiling provision of the Public Housing Act at issue in Wright, which stated that a low-income family "shall pay as rent" a specified percentage of its monthly income for publicly assisted housing, was "phrased in terms of the persons benefited" and "explicitly conferred specific monetary entitlements upon the plaintiffs." Gonzaga, 536 U.S. at 280, 284, 122 S.Ct. at 2274, 2275.
Unlike the statute in Wright, the statute here (42 U.S.C. § 1347f(o)(2)) is not phrased using right-creating language, but rather is framed as a command on how the monthly assistance payments are to be determined.
24 C.F.R. § 982.517 — "Utility Allowance Schedule"
Plaintiffs submit that HUD regulation, 24 C.F.R. § 982.517, "is at the heart of this case." ( See Plaintiffs' Opp. at p. 10). However, at the outset, the court questions whether this regulation can on its own accord create an enforceable right under § 1983. Banks, 271 F.3d at 610 n. 4 ("[t]he existence of specific HUD regulations should not be relevant to the overriding question whether Congress intended to create a federal right enforceable through § 1983").In any event, assuming administrative regulations alone could crate a right enforceable in a § 1983 action, 24 C.F.R. § 982.517 focuses on what the PHA must do in determining the utility schedule allowance, rather than containing the unambiguous rights-creating text required under Gonzaga to allow Plaintiff to challenge the calculation of the utility schedule allowance and have it increased. Gonzaga, 536 U.S. at 286-87, 122 S.Ct. 2268.
Further, the standards set forth in 24 C.F.R. § 982.517 regarding how utility schedule allowances are to be determined, are subject to the exercise of wide discretion to the public housing agency, thereby making it difficult or impossible to determine whether a violation occurred. Moreover, the language of the regulation is cast as an overall standard, rather than as a method for determining utility allowance for particular tenants, making it impossible to fashion appropriate relief for individual plaintiffs if there was a violation. Wright, 479 U.S. at 438-39, 107 S.Ct. at 778 (O'Connor, J., dissenting). Thus, the court concludes that the rights Plaintiffs assert are protected by 42 U.S.C. § 1437f(o) (2) and its implementing regulation, 29 C.F.R. § 982.517, simply defy judicial enforcement.
Indeed, pursuant to HUD's own regulations, the PHA isnot required to provide a participant family an opportunity for an informal hearing for the "establishment of the PHA schedule of utility allowances for families in the program." 24 C.F.R. § 982.555 (b)(3). Thus, because the PHA retains complete discretion in establishing the utility schedule allowance, the court concludes that HUD views the determination of the utility schedule allowance "as a question for local housing authorities [and] not a matter of federal entitlement." Wright, 479 U.S. at 435, 107 S.Ct. at 776 (O'Connor, J., dissenting).
Finally, Congress has made no provision that would allow participants in the Housing Choice Voucher program to usurp HUD's supervisory control over a public housing agency's calculation of the utility allowance schedule. Rather, Congress specifically made provision for the States to receive funding for the Housing Choice Voucher program through an annual contribution contract (ACC). See 42 U.S.C. § 1437f(b)(1), quoted supra p.
HUD regulations control the ACC, and require a public housing agency "to administer the program in accordance with HUD regulations and requirements." 24 C.F.R. § 982.151(a). And pursuant to both the ACC between HUD and the Housing Authority of Jefferson Parish, and the Housing Assistance Payment (HAP) contract between the Housing Authority of Jefferson Parish and the landlord, third party rights are specifically excluded. ( See discussion, supra pp. 6-7, regarding exclusion of third-party rights under both the ACC and HAP contract).
IV. Conclusion
For reasons set forth above,
IT IS ORDERED that Defendants' "Motion to Dismiss Pursuant to Rule 12(b)" be and is hereby GRANTED; and
IT IS FURTHER ORDERED that Plaintiffs' "Motion for Leave to File Second Amended and Supplemental Complaint" be and is hereby DENIED.