United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 6, 2006
Charles R. Fulbruge III
Clerk
No. 04-31201
CATRICE JOHNSON, ET AL.
Plaintiffs-Appellants,
versus
HOUSING AUTHORITY OF JEFFERSON PARISH, ET AL.
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Eastern District of Louisiana
--------------------
Before REAVLEY, DAVIS, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
The sole question for us to decide in this appeal is whether
participants in the federal Housing Act voucher program (the
“voucher program”) may bring a private action under 42 U.S.C. §
19831 to challenge the calculation of their utility allowances by
public housing authorities under § 1437f(o)(2) of the United States
1
Section 1983 provides in relevant part:
Every person who, under color of [state law] subjects or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities,
secured by the Constitution and laws shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress.
Housing Act2 and implementing regulations.3 In answering this
question, we need not and therefore do not reach the merits of the
participating tenants’ underlying challenge; our inquiry is limited
to whether Plaintiffs-Appellants have a private right of action.4
Concluding that they do, we reverse the district court and remand
for further proceedings consistent with this opinion.
I. FACTS AND PROCEEDINGS
Plaintiffs-Appellants live in Jefferson Parish, Louisiana, and
participate in the voucher program under Section 8. Their
residential rents and utility expenses are subsidized through
federally-funded vouchers provided by the U.S. Department of
Housing and Urban Development (HUD), administered locally by
Defendant-Appellee Housing Authority of Jefferson Parish, a public
housing authority created by state law. Another Defendant-
Appellee, the Louisiana Housing Development Corporation, is a
privately held corporation that contracts with the Housing
Authority to operate the voucher program in Jefferson Parish.
This “tenant-based” voucher program differs from traditional
“project-based” public housing programs by assisting families
2
United States Housing Act of 1937, 42 U.S.C. § 1437 et seq.
(2005).
3
24 C.F.R. § 982.517 et seq.
4
See Morse v. Republican Party, 517 U.S. 186, 234-35 (1996)
(deciding only whether there existed a private cause of action and
“postpon[ing] any consideration of the merits until after they have
been addressed by the District Court”).
2
meeting the statute’s low-income standard in renting housing in the
private market. The voucher program thus gives participants the
flexibility to choose among a variety of housing options. Further,
unlike earlier tenant-based programs, which featured a statutory
cap that limited a family’s permissible housing costs to 30 percent
of adjusted monthly income, the current voucher program contains no
such cap. It gives participants even greater flexibility in the
housing market as well as access to more expensive units that
better meet their needs. Under the current program, participating
families must contribute at least 30 percent of their adjusted
monthly incomes to housing costs, and they may —— but need not ——
spend more. Therefore, the choice of renting a costlier unit is
entirely theirs.
In administering the voucher program, the public housing
authority issues vouchers that are payable directly to a
participant’s landlord under a housing assistance payment contract
(“HAP contract”), the terms of which are governed by the statute
and regulations.5 Generally, the amount of this payment is
calculated as “the amount by which the rent (including the amount
allowed for tenant-paid utilities) exceeds ... 30 percent of the
monthly adjusted income of the family.”6 The “amount allowed for
5
See 42 U.S.C. § 1437f(c)-(h); 24 C.F.R. § 982.451-456.
6
42 U.S.C. § 1437f(o)(2). Any excess housing costs above a
limit referred to as the “payment standard,” which is established
by HUD and based on fair market value, are borne by the
participant. In that situation the family’s contribution would be
3
tenant-paid utilities” is determined by the public housing
authority, which is directed by regulation to base the utility
allowance “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 ... us[ing] normal patterns of
consumption for the community as a whole and current utility
rates.”7 The public housing authority is further required to
“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.”8
Plaintiffs-Appellants filed the instant lawsuit in the Eastern
District of Louisiana in April of 2004, alleging that Defendants-
Appellees (collectively, the “Housing Authority”) had not provided
them appropriate utility allowances as required by the statute and
regulations. Specifically, they contend that the Housing Authority
has failed to use current utility rates in calculating the utility
allowance, and that it had not revised its utility allowance
schedule from 1995 to 2004 despite annual increases in utility
greater than 30 percent of adjusted income, which the voucher
program permits at the participant’s option. See id. §
1437f(o)(2)(B).
7
24 C.F.R. § 982.517(b)(1).
8
Id. § 982.517(c)(1).
4
rates of 10 percent or more in several years during that period.9
The result, insist Plaintiffs-Appellants, is that their rent
burdens have been higher than they would have been had the Housing
Authority complied with the statute and the implementing
regulations, which these participants seek to enforce through their
lawsuit.
In October of 2004, the district court, without oral argument
or hearing, granted the Housing Authority’s motion to dismiss under
Rules 12(b)(1) and (6).10 The district court held that the portions
of the voucher program statute and implementing regulations
pertaining to the utility allowance do not create individual
federal rights that may be enforced by private participants through
a § 1983 action. The district court also denied Plaintiffs-
Appellants’ motion for leave to file a second amended complaint
raising the same challenge.
II. STANDARD OF REVIEW
9
Plaintiffs-Appellants note in their brief on appeal that the
housing authorities of neighboring New Orleans and Kenner had
raised their utility allowances at least three times since 1995.
10
Fed. R. Civ. P. 12(b)(1) (lack of subject matter
jurisdiction); Fed. R. Civ. P. 12(b)(6) (failure to state a claim
upon which relief can be granted).
5
We review a district court’s dismissal of a complaint under
Rules 12(b)(1) and (6) de novo, taking the allegations of the
dismissed complaint to be true.11
III. ANALYSIS
Private individuals may bring lawsuits against state actors
under 42 U.S.C. § 1983 to enforce not only constitutional rights
but also rights created by federal statutes.12 It is essential to
a private enforcement action under § 1983, however, that the
federal statute in question unambiguously give rise to privately
enforceable, substantive rights.13 The inquiry in this context is
virtually the same as that involved in private rights of action
implied directly from a federal statute rather than by way of §
11
Vander Zee v. Reno, 73 F.3d 1365, 1368 (5th Cir. 1996).
12
Maine v. Thiboutot, 448 U.S. 1, 4 (1980) (reasoning that the
plain language of § 1983 provides a right of action for persons
deprived by state action “of any rights, privileges, or immunities
secured by the Constitution and laws,” which would include federal
statutes).
13
See, e.g., Suter v. Artist M., 503 U.S. 347, 363 (1992)
(concluding that “the language relied upon by respondents, in the
context of the entire Act ... does not unambiguously confer an
enforceable right ....”); Pennhurst State Sch. & Hosp. v.
Halderman, 451 U.S. 1, 28 n.21 (1981) (“Because we conclude that §
6010 confers no substantive rights, we need not reach the question
whether there is a private cause of action under that section or
under 42 U.S.C. § 1983 to enforce those rights.”).
6
1983.14 In either instance, Congressional intent to create
privately enforceable rights is the key.15
The Supreme Court applies the three-part test that it
enunciated in Blessing v. Freestone to determine whether, in
enacting a particular statutory provision, Congress intended to
create rights enforceable by private parties: (1) Congress must
have intended that the provision in question benefit the private
plaintiff; (2) the right assertedly protected by the statute must
not be so “vague and amorphous” that its enforcement would strain
judicial competence; and (3) the statute must unambiguously impose
a binding obligation on the states, with the asserted right couched
in mandatory rather than precatory terms.16
The Court’s approach to § 1983 enforcement of federal statutes
has been increasingly restrictive; in the end, very few statutes
are held to confer rights enforceable under § 1983. The narrowness
of the doctrine is typified in Gonzaga University v. Doe, the
Court’s most recent pronouncement on this point, in which it made
clear that it “reject[s] the notion that our cases permit anything
short of an unambiguously conferred right to support a cause of
14
See Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“[T]he
initial inquiry [in a § 1983 case] —— determining whether a statute
confers any right at all —— is no different from the initial
inquiry in an implied right of action case ....”).
15
See id. at 283-84.
16
520 U.S. 329, 340-41 (1997).
7
action brought under § 1983.”17 In Gonzaga, in which the three
Blessing factors were applied in evaluating a provision of the
Family Educational Rights and Privacy Act, the Court unsurprisingly
held that the statutory language on which the plaintiffs relied
does not support an action under § 1983.18
We recognize at the outset, therefore, that the result we
reach in this case is a rarity, particularly after Gonzaga. We are
nevertheless convinced that its resolution is controlled by the
Supreme Court’s pre-Gonzaga decision in Wright v. City of Roanoke
Redevelopment & Housing Authority.19 In that case, the Court
interpreted a provision of the Housing Act that is virtually
identical to the one at issue here, to support (1) a § 1983
challenge (2) brought by public housing tenants concerning (3) the
calculation of their utility allowances. As Wright predated
Blessing by a decade the Court could not have applied the “Blessing
test” under that name, yet the Court’s analysis in Wright is wholly
consistent with that employed in more recent cases, and indeed
constitutes an indispensable element of the current methodology.20
Moreover, Gonzaga expressly relied on Wright, pointing to it as a
17
536 U.S. 273, 283 (2002).
18
See id. at 287-90.
19
479 U.S. 418 (1987).
20
See Blessing, 520 U.S. at 340-41 (citing Wright as direct
authority for the first two factors to be considered in the
enforceable rights analysis); see also Gonzaga, 536 U.S. at 280
(approving of the analysis and outcome in Wright).
8
paradigmatic example of an appropriate case for finding the
presence of a private right of action under § 198321 and leaving no
doubt that Wright survives as good law.
A. Wright Dictates the Outcome in this Case
The plaintiffs in Wright were tenants in low-income housing
projects owned by the City of Roanoke Redevelopment and Housing
Authority. They sued the Authority under § 1983, alleging that it
over-billed them for their utilities and thereby violated the
statutory rent ceiling that limited their rent to 30 percent of
their adjusted monthly income. The statutory language at issue,
commonly referred to as the Brooke Amendment, stated that “[a]
family shall pay as rent for a dwelling unit assisted under this
chapter (other than a family assisted under section 1437f(o)22 of
this title) ... 30 per centum of the family’s monthly adjusted
income ....”23 The implementing HUD regulation, in turn, specified
that the statutory term “rent” included “reasonable amounts of
utilities determined in accordance with the [public housing
21
See Gonzaga, 536 U.S. at 280.
22
Section 1437f(o), which is expressly set apart and excluded
from coverage under the Brooke Amendment, applies to the housing
choice voucher program and is the provision at issue in the present
case.
23
42 U.S.C. § 1437a(a) (1982) (quoted in Wright, 479 U.S. at
420 n.2) (footnote added).
9
authority’s] schedule of allowances for utilities supplied by the
project.”24
The Supreme Court in Wright concluded that “it is clear that
the regulations gave low-income tenants an enforceable right to a
reasonable utility allowance and that the regulations were fully
authorized by the statute.”25 The Court found “nothing in the
Housing Act or the Brooke Amendment evidenc[ing] that Congress
intended to preclude petitioners’ § 1983 claim ....”26 It
emphasized that “[t]he Brooke Amendment could not be clearer ....
[It] was a mandatory limitation focusing on the individual family
and its income. The intent to benefit tenants is undeniable.”27
The Court expressly determined that “the benefits Congress intended
to confer on tenants are sufficiently specific and definite to
qualify as enforceable rights under Pennhurst and § 1983, rights
that are not ... beyond the competence of the judiciary to
enforce.”28 The Court was also unconvinced that “the remedial
mechanisms provided [in the Housing Act were] sufficiently
comprehensive and effective to raise a clear inference that
24
24 C.F.R. § 860.403 (1982) (quoted in Wright, 479 U.S. at
420 n.3). The Supreme Court observed that “HUD has consistently
considered ‘rent’ to include a reasonable amount for the use of
utilities ....” 479 U.S. at 420.
25
479 U.S. at 420 (emphasis added).
26
Id. at 429.
27
Id. at 430.
28
Id. at 432.
10
Congress intended to foreclose a § 1983 cause of action for the
enforcement of tenants’ rights secured by federal law.”29
Plaintiffs-Appellants in the instant case rely heavily on the
Wright precedent in arguing that they, too, have an enforceable
right under the Housing Act to challenge the calculation of the
utility allowance schedule. The Housing Authority’s responsive
attempt to distinguish Wright is unconvincing. Although there are
differences between the statutory provision involved in Wright and
the one at issue here, our careful review of both convinces us
beyond cavil that, in adopting the voucher program, Congress
intended to create enforceable rights in participating tenants to
the same extent as it did in enacting the statute implicated in
Wright.
The key distinction upon which the Housing Authority relies is
the statutory cap limiting a participating family’s rent to 30
percent of adjusted monthly income under the Brooke Amendment (the
provision at issue in Wright), while under § 1437f(o) (the voucher
program at issue here) a family may choose to pay a greater
percentage of its income for housing. This is a classic
distinction without a difference. In no way does it compel the
conclusion that § 1437f(o)(2) does not create a federal right that
can be enforced through § 1983.
29
Id. at 425.
11
We discern no meaningful difference between the statutory
entitlement of the plaintiffs in Wright and that of Plaintiffs-
Appellants here, regardless of the fact that the latter entitlement
gives participants more choices. The effect of an insufficient
utility allowance is the same in either case: Participants are
forced to pay more out of pocket than 30 percent of their incomes
for housing.30 Further, even though the government housing
assistance provided under the voucher program is located in a
different section of the Housing Act, when we take the entirety of
the legislative enactment into account,31 we see that Congress acted
30
Even a voucher program participant who is willing to pay
more than 30 percent of his income for housing might still be
affected by an insufficient utility allowance. For such
participants, the monthly assistance payment is equal to the amount
of the payment standard established by HUD, minus 30 percent of
income. 42 U.S.C. § 1437f(o)(2)(B).
Although a participant whose rent alone (exclusive of the
utility allowance) exceeds the payment standard is not at all
affected by the utility allowance, one whose rent is below the
standard but by an amount less than the properly-calculated utility
allowance, might be affected by an insufficient allowance. To
illustrate this point, assume hypothetically a payment standard of
$1000, apartment rent of $800, utility allowance of $150, and a
monthly income of $666.67. Under these assumptions, the monthly
assistance payment would be $750 ((800+150) - (30% of 666.67)).
If, however, it were later determined that the assumed $150 utility
allowance was improperly calculated, and that it should have
instead been $275, the monthly assistance payment would rise to
$800; the participant could now “max out” his benefit even though
he would be paying more than 30% of his income towards housing
costs. He would get the full amount of the payment standard minus
30% of income and would be responsible for any costs above the
payment standard, $75 in this example.
31
See Suter, supra note 13, at 357 (“The opinion[ ] in ...
Wright ... took pains to analyze the statutory provisions in
detail, in light of the entire legislative enactment, to determine
whether the language in question created ‘enforceable rights,
12
with precisely the same overarching intent in both sections, viz.,
to assist low-income families in obtaining a decent place to live.32
Logic prevents the conclusion that Congress could have intended to
create enforceable rights for one group of Housing Act rental
assistance recipients but not the other. Indeed, in the voucher
program Congress essentially validated Wright’s holding.33 The
Supreme Court’s holding in Wright that Congress intended for the
complaining tenants to have an enforceable right under the Housing
Act and thus be able to challenge the calculation of the utility
allowance schedule, applies with equal force to the instant case.
(1) Congressional Intent to Benefit Plaintiffs
Congress’s intent to provide meaningful housing assistance
benefits to individual families participating in the voucher
program is just as undeniable as it was with respect to families
privileges, or immunities within the meaning of § 1983.”) (emphasis
added).
32
See 42 U.S.C. § 1437f(a) (statement of purpose for low
income housing assistance); see also id. § 1437(a) (declaration of
policy for general program of assisted housing).
33
In determining the legislative intent underlying the
enactment of the voucher program, we assume that Congress was aware
of the Supreme Court’s prior decision in Wright and that the
Court’s interpretation of the Brooke Amendment in that decision is
reflected in the voucher program statute. See Cannon v. Univ. of
Chicago, 441 U.S. 677, 696-97 (1979) (“It is always appropriate to
assume that our elected representatives, like other citizens, know
the law.”). Indeed, Congress’s awareness of Wright is evidenced by
its express provision —— in the language of the voucher program
statute itself —— for the “amount allowed for tenant-paid
utilities,” which was not present in the Brooke Amendment but was
implied by the Court in Wright. See Wright, 479 U.S. at 420.
13
covered under the Brooke Amendment. The statutory language could
not be clearer in providing for “the monthly assistance payment for
a family receiving assistance.”34 Still, the Housing Authority
argues in its appellate brief that Congress did not so clearly
intend to benefit voucher program participants because the
statutory language “addresses rights and duties that flow between
the [public housing authority] and the landlord, while the
participants are indirect beneficiaries.”35 According to the
Housing Authority, the statute’s “focus is on fair compensation to
the landlord. Rather than being concerned with the needs of these
individuals, the statute is concerned with requiring these
individuals to pay what Congress has determined to be their fair
share of the rent.”
This distortion of the statute flies in the face of its plain
language. The fact that the assistance payments happen to be
disbursed directly to the landlord rather than to the tenant is of
no consequence. Congress plainly expressed its intent to provide
housing assistance for the benefit of the low-income families
34
42 U.S.C. § 1437f(o)(2).
35
The Housing Authority also notes that HUD regulations
expressly deny voucher program participants third party beneficiary
rights in the HAP contract between the public housing authority and
the landlord, citing 24 C.F.R. § 982.456. The effect of this
limitation, however, is only that voucher recipients are precluded
from “assert[ing] any claim ... under the HAP contract,” id. §
982.456(c) (emphasis added); it has no bearing on Congress’s intent
to provide housing assistance for their benefit.
14
participating in the program36; it would be absurd to treat the
voucher program as a landlords’ relief act!
If anything, the benefit to participants under § 1437f(o)(2)
is even more direct than the benefit that the Supreme Court so
construed in Wright. The Court observed that the Brooke Amendment
“was a mandatory limitation focusing on the individual family and
its income.”37 The language of that amendment that the Court held
to provide an undeniable benefit stated only that “[a] family shall
pay as rent ... 30 per centum of the family’s monthly adjusted
income”38; the government assistance to cover any remaining housing
costs was merely implied. In contrast, the benefit provided by the
statutory language of the voucher program is undeniably direct.
Its object is the “monthly assistance payment for a family,” a
tangible, government-funded benefit focused directly on the family.
Even though the voucher is made payable to the landlord, Congress’s
obvious intent was for such payment to benefit the participating
tenant.
The Housing Authority also asserts that, unlike in Wright,
when “resort to the HUD regulation was not necessary to establish
36
The text of the statute, in providing for “the monthly
assistance payment for a family,” is undoubtedly “phrased in terms
of the persons benefited.” See Gonzaga, 536 U.S. at 284 (quoting
Cannon, 441 U.S. at 692 n.13).
37
479 U.S. at 430 (emphasis added).
38
42 U.S.C. § 1437a(a) (1982) (quoted in Wright, 479 U.S. at
420 n.2).
15
the right,” Plaintiffs-Appellants in the present case “must reach
through the statute to find the right to a utility allowance
schedule that is created by a regulation ....” Yet, once again,
the statutory basis for private enforcement is even stronger here
than it was in Wright. In fact, the Housing Authority’s argument
gets it exactly backwards.39 The statutory language at issue in
Wright made no mention at all of the utility allowance. It
provided only for “rent,” which was subsequently defined —— by
regulation —— to include “reasonable amounts of utilities
determined in accordance with the [public housing authority’s]
schedule of allowances for utilities supplied by the project.”40
In contrast, the statutory language of the voucher program
unmistakably provides —— in the text of the act itself —— for an
“amount [to be] allowed for tenant paid utilities.”41 Contrary to
the Housing Authority’s assertion, the HUD regulations are not
necessary to establish Plaintiff-Appellants’ right to the utility
allowance, and certainly no more so than they were in Wright, where
such an allowance was not even mentioned in the text of the statute
39
The argument overlooks the Supreme Court’s statement in
Wright that “it is clear that the regulations gave low-income
tenants an enforceable right to a reasonable utility allowance
....” 479 U.S. at 420 (emphasis added). Contrary to the Housing
Authority’s assertion, therefore, resort to the HUD regulation was
necessary to establish the right in Wright.
40
24 C.F.R. § 860.403 (1982) (quoted in Wright, 479 U.S. at
420 n.3).
41
42 U.S.C. § 1437f(o)(2)(A), (B).
16
itself. Congress’s intent to benefit Plaintiffs-Appellants here
cannot be gainsaid.
(2) Enforcement Not Beyond Judicial Competence
The regulatory commands to public housing authorities —— (1)
to base the utility allowance “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 ... us[ing] normal
patterns of consumption for the community as a whole and current
utility rates,”42 and (2) to “review [the] schedule of utility
allowances each year, and ... revise [the] 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”43 —— are not beyond the competence of the judiciary to
enforce. As the Supreme Court observed in Wright, “[t]he
regulations ... specifically set out guidelines that the [public
housing authorities] were to follow in establishing utility
allowances”; and the Court concluded that this mandate was not so
vague and amorphous as to exceed the ability of the judicial branch
to enforce.44
The Housing Authority argues further that the discretion it
enjoys in calculating the utility allowance schedule renders the
42
24 C.F.R. § 982.517(b)(1).
43
Id. § 982.517(c)(1).
44
479 U.S. at 431-32.
17
statute and regulations unenforceable in the courts. It
characterizes as “inherently imprecise [the] task to determine the
amorphous ‘typical cost of utilities and services paid by energy-
conservative households that occupy housing of similar size and
type’ in Jefferson Parish.” Although the calculation and
maintenance of the utility allowance schedule may not be an exact
science, courts surely are capable of at least reviewing the
actions taken by public housing authorities to ensure that they
have acted within their discretion.45 Additionally, the requirement
that public housing authorities review their allowances each year
and revise them “if there has been a change of 10 percent or more
in the utility rate” since the last revision, admits of no
discretion at all and could easily be determined and enforced by a
court. In short, just as the Supreme Court held in Wright, we hold
that the statute and regulations pertaining to the utility
allowance are not so vague and amorphous as to be beyond the
competence of the judiciary to enforce.
(3) Statute Unambiguously Imposes A Binding Obligation In Mandatory
Terms
45
See Wilder v. Va. Hosp. Ass’n, 496 U.S. 498, 519-20 (1990)
(“That the [Boren] Amendment gives the states substantial
discretion in choosing among reasonable methods of calculating
rates may affect the standard under which a court reviews whether
the rates comply with the Amendment, but it does not render the
Amendment unenforceable by a court. While there may be a range of
reasonable rates, there certainly are some rates outside that range
that no State could ever find to be reasonable and adequate under
the Act.”).
18
Together, the plain statutory provision for “the amount
allowed for tenant-paid utilities,” and, in turn, the wording of
the implementing regulation specifying the method and calculation
to be used in setting the allowance, unambiguously impose a binding
obligation on public housing authorities. Referring our attention
back to the first step of the analysis, the Housing Authority
argues that somehow it is not bound by the obligation to maintain
the utility allowance in conformity with the regulation, arguing
that its only obligation is to HUD, and that it has none to program
participants. This argument fails for the reasons we have already
discussed.46
The Housing Authority next contends that its obligations are
not binding because HUD may waive them for good cause.47 This
argument fails, however, for the simple reason that there is no
record evidence (or contention) that the Housing Authority ever
applied for any such waiver, much less received one. The
regulations are binding on the Housing Authority unless and until
HUD should grant it a waiver. Moreover, the extent of any waiver
relating to the utility allowance that the Housing Authority might
obtain would be restricted to the requirement that the Housing
Authority revise the allowance when there is an annual utility rate
increase of 10 percent or more: HUD has never provided for waivers
46
See supra text accompanying notes 40-43.
47
See HUD Notice 2005-9, at 3.
19
of the other regulatory requirements that the Housing Authority is
alleged to have violated.48 The statute and regulations
unambiguously impose binding obligations on public housing
authorities vis-à-vis the calculation, maintenance, and revision of
utility allowances.
(4) No Comprehensive Enforcement Scheme
Even when, as here, our analysis of the Blessing factors leads
to the conclusion that Congress intended to create privately
enforceable rights, “there is only a rebuttable presumption that
the right is enforceable under § 1983.”49 This is because the
possibility exists that Congress could have foreclosed that remedy
by providing another.50 “When the remedial devices provided in a
particular Act are sufficiently comprehensive, they may suffice to
demonstrate congressional intent to preclude the remedy of suits
under § 1983.”51 The Housing Authority argues in its appellate
brief that here, “[t]he remedy for a [public housing authority’s]
failure to comply with HUD regulations ranges from a reduction in
the amount of funds paid to [it] by HUD up to a complete
termination from the program.”52 The Housing Authority advances
48
See id.
49
Blessing, 520 U.S. at 341.
50
Id.
51
Middlesex County Sewerage Auth. v. Nat’l Sea Clammers Ass’n,
453 U.S. 1, 20 (1981).
52
See 42 U.S.C. § 1437g(j)(4)(A).
20
further that even though the regulations require public housing
authorities to provide an opportunity for informal hearings
concerning the application of the utility allowance schedule to a
particular family’s needs, these regulations do not require such
hearings concerning the establishment of the utility allowance
schedule itself.53
As in Wright, however, there is absolutely no indication in
the statute that Congress intended for exclusive enforcement
authority to be vested in HUD.54 “HUD’s authority to audit, enforce
annual contributions contracts, and cut off federal funds ... are
generalized powers [that] are insufficient to indicate a
congressional intention to foreclose § 1983 remedies.”55 Both
methods of enforcement, i.e., HUD oversight and private actions
under § 1983, may coexist if Congress so intends. And, even though
Gonzaga emphasized Pennhurst’s observation that Spending Clause
legislation is most often enforced by the withholding of federal
funds rather than by private lawsuits,56 the Court recognized and
approved of Wright as an exception to this general rule. The Court
53
See 24 C.F.R. § 982.555(b)(3).
54
See 479 U.S. at 424.
55
Id. at 428.
56
“In legislation enacted pursuant to the spending power, the
typical remedy for state noncompliance with federally imposed
conditions is not a private cause of action for noncompliance but
rather action by the Federal Government to terminate funds to the
State.” Gonzaga, 536 U.S. at 280 (quoting Pennhurst, 451 U.S. at
28).
21
reasoned that the lack of a sufficient federal review mechanism
permitting tenants to complain of purported noncompliance weighed
against a conclusion that Congress intended to preclude enforcement
under § 1983.57 Here, as acknowledged by the Housing Authority,
voucher program participants are not entitled under the regulations
to a hearing concerning establishment of the utility allowance
schedule, and no other avenue of relief is provided. There simply
is no comprehensive federal remedial scheme provided for the
voucher program that would demonstrate Congressional intent to
preclude Plaintiffs-Appellants’ right to bring a § 1983 suit.
B. Banks v. Dallas Housing Authority
We turn briefly to the Housing Authority’s contention that
this case is not governed by Wright but by our decision in Banks v.
Dallas Housing Authority, in which we considered a different
provision of the Housing Act and determined that it did not create
a right enforceable under § 1983.58 The Housing Authority’s
reliance on Banks is misplaced: The statutory provision at issue
in that case does not even resemble the one that Plaintiffs-
Appellants seek to enforce here. Banks dealt with an earlier
version of 42 U.S.C. § 1437f(e), which authorized HUD to “make
assistance payments ... pursuant to a contract with owners ... who
57
See id. at 280, 290.
58
271 F.3d 605 (5th Cir. 2001).
22
agree to upgrade housing so as to make and keep such housing
decent, safe, and sanitary ....”59
Banks is helpful in the present case only as a reference point
along the continuum of decisions concerning § 1983 enforcement of
asserted federal statutory rights. The obvious differences between
the statutory provision considered in Banks and the one at issue
here plainly put Banks at the opposite end of the spectrum, indeed
very near Gonzaga.60 Congress’s requirement in the former §
1437f(e) that owners keep and maintain their properties “decent,
safe, and sanitary” as a condition of their receipt of funds, is
easily distinguished from its provision in § 1437f(o)(2) for a
“monthly assistance payment for the family,” including a reasonable
utility allowance, obviously a tangible government benefit that is
directly focused on the family and its income. This provision much
more closely resembles the Brooke Amendment at issue in Wright than
it does the former § 1437f(e). Banks simply has no bearing on this
case.
IV. CONCLUSION
59
42 U.S.C. § 1437f(e) (1990) (quoted in Banks, 271 F.3d at
606, with emphasis).
60
Compare Gonzaga, 536 U.S. at 280 (emphasizing that in
conditional spending legislation the typical remedy for state
noncompliance with conditions is termination of federal funds),
with Banks, 271 F.3d at 610 (“obligation is binding only in the
sense that [it] is a condition that Congress placed upon the
[landlord’s] receipt of Section 8 rent assistance”).
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We reverse the order of the district court dismissing
Plaintiffs-Appellants’ claim on grounds that they do not have a
right to sue under § 1983 to enforce the statute and regulations
concerning the calculation and revision of their utility
allowances. Although the statutory provision sought to be enforced
in this case and that involved in Wright are not the same verbatim,
the differences between them are immaterial to the issue of § 1983
enforcement, and the Supreme Court’s decision and reasoning in
Wright control the outcome here. The Housing Authority’s attempts
to distinguish Wright, and to liken this case to our decision in
Banks, are unpersuasive. Application of the Blessing factors
bolsters our conclusion that the Congressional intent underlying
the Brooke Amendment at issue Wright, as discerned by the Supreme
Court, is equally present here. We hold that in adopting §
1437f(o)(2), Congress intended to grant to voucher program
participants like these Plaintiffs-Appellants, federal rights
enforceable under § 1983. For these reasons, the decision of the
district court is reversed, and the case is remanded for further
proceedings consistent with this opinion.
REVERSED and REMANDED.
24