City of Boston v. Patricia Harris, Etc., Marion Hart, Plaintiffs-Intervenors

KUNZIG, Judge,

concurring:

I concur in the result and opinion of the court and indeed participated fully in the per curiam. However, due to the magnitude and importance of this case I wish to add my personal reasoning a bit more in depth as to why the approach taken by the court in analyzing the preemption issue is the correct one.

As the court states, the ultimate issue' regarding HUD’s preemption of Boston’s local rent control is whether the Secretary had the authority to promulgate the regulation. See text accompanying note 18 supra. Like the majority of the court in Kargman v. Sullivan, 552 F.2d 2 (1st Cir. 1977), however, I am concerned with which preemption analysis we should use in light of the multiplicity of Supreme Court cases in this area of law. Id. at 10-14. Since the early case of Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 6 L.Ed. 23 (1824), there have been many cases analyzing the interplay of federal and state law in light of the Supremacy Clause, U.S.Const. art. IV, § 2. In Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963), the Supreme Court described three traditional grounds for preemption of state law under the Supremacy Clause: (1) there exists clear evidence that Congress intended to preempt the field, (2) the actual subject matter of the federal legislation demands exclusive federal regulation, or (3) there is an actual conflict between the two schemes of regulation. Id. at 141-42, 83 S.Ct. at 1216-17.1

This circuit applied the third test presented in Florida Lime & Avocado Growers in Kargman v. Sullivan, 552 F.2d 2 (1st Cir. 1977). No specific federal statutes or regulations indicated the application of another approach. The court determined that no actual conflict existed between the operation of HUD’s subsidized-insured housing programs and Boston’s rent control because the court was unconvinced that HUD rents were the minimum necessary to ensure project viability. Kargman v. Sullivan, 552 F.2d 2, 6-7 (1st Cir. 1977). It stated that the “mere fact that Boston’s rents were lower, does not, of itself, present an impermissible actual conflict with federal law.” Id. at 7. Because there was no proof presented showing that Boston’s rent regulation caused mortgage defaults in HUD insured projects, the court concluded that the laws could coexist. In large part, the *97case turned upon the burden of proof and evidence presented. The court specifically left open the question of the effect of a regulation preempting local law. Id. at 5.

The question left open in Kargman is precisely the issue presented in this case. The Secretary has determined that preemption of local rent control is necessary to protect HUD insured-subsidized projects from default. 40 Fed.Reg. 8189 (1975). Moreover, this issue with which we are faced does not fit neatly into one of the three categories outlined in Florida Lime, supra.2 Rather, the case involves preemptive effect of a federal regulation promulgated under federal law. Consequently, the case is most appropriately analyzed under the relatively modern line of cases dealing with these issues beginning with Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962).3

Free v. Bland considered whether Treasury regulations creating a right of surviv-orship in United States Savings Bonds preempted any inconsistent Texas community property laws. Under the Treasury regulations, when the co-owner of a bond issued to “Mr. or Mrs.” dies, the survivor becomes the absolute owner. Mr. Free claimed the full value of the bonds, but Mrs. Free’s son and heir claimed one-half community property interest his mother owned by virtue of Texas community property law. The Court found the Treasury regulation preempted local law. In doing so, the Court utilized a two-step approach. First, it determined whether the regulation was a valid federal law. If so, then its second step was to determine whether it conflicted with state law. Assuming a valid federal regulation and a conflict, the federal law prevails. Id. at 666, 82 S.Ct. at 1092.

In this case, plaintiffs challenged the validity of the regulation by arguing that the Secretary was without authority to promulgate them and that they were unnecessary and unreasonable. They also argued that HUD must show an actual conflict as the court required in Kargman v. Sullivan, 552 *98F.2d 2 (1st Cir. 1977), despite a concession that the regulation actually conflicts with Boston’s rent control.

The Secretary promulgated her regulations under the authority of 42 U.S.C. § 3535(d) (1976). That section gives the Secretary broad powers under the NHA to “make such rules and regulation as may be necessary to carry out [her] functions, powers, and duties.” Id. Moreover, as stated earlier, Congress gave the Secretary broad administrative powers over each of the subsidized-insured programs.

As this Circuit has noted before, the success of these federal programs “requires a flexible exercise of administrative discretion.” Hahn v. Gottlieb, 430 F.2d 1243, 1246 (1st Cir. 1970). While I do not find an express provision in HUD’s enabling legislation providing that the Secretary may preempt local rent control law, it is implicit in the statutory scheme. As other courts reviewing this problem have noted, the NHA, in addition to providing general authority to implement the Act, also requires that rents, charges and methods of operation of subsidized-insured housing be subject to HUD regulation. Note, HUD preemption of Local Rent Control Ordinances — Tenants Entitled to Due Process Rights, 30 Rutgers L.Rev. 1025, 1044 (1977) (hereinafter “Preemption of Local Rent Control ”). Federal regulation of rents can implement the goals of national housing policy by insuring the continued economic viability of federally subsidized-insured housing. Thus, the Secretary’s decision, in light of Congress’ delegation, is consistent with the NHA.4 See Kargman v. Sullivan, 552 F.2d 2, 14 (1st Cir. 1977) (Campbell, J., concurring).

Plaintiffs also argued that the regulations were unreasonable and unnecessary.

In administering its subsidized and insured projects across the country, HUD has experienced substantial financial difficulties in projects subject to local rent control. Some 55% of the projects in Boston have suffered financial difficulty and had their insured mortgages assigned to HUD for insurance benefits. In New Jersey, sixteen projects in Newark, Atlantic City or Pleas-antville required mortgage modification, foreclosure or were in default. See also 515 Associates v. Newark, 424 F.Supp. 984 (D.N.J.1977). These experiences and others led the Secretary to conclude that local rent control was a substantial factor in causing mortgage default in subsidized-insured housing. 40 Fed.Reg. 8189 (1977); Preemption of Local Rent Control, supra at 1044. HUD also determined that local rent control deterred private industry in further developing subsidized-insured housing. See 515 Associates v. Newark, 424 F.Supp. at 991. Finally, the Secretary also examined the prejudicial effects of the local rent control regulations upon its housing projects. Judge Connor analyzed this reasoning in Gramercy Spire Tenant’s Ass’n v. Harris, 446 F.Supp. 814 (S.D.N.Y.1977). In finding these regulations a valid exercise of the Secretary’s powers, he wrote:

*99Prior to the adoption of the rent control regulation in its final form, the evidence available to HUD suggested that local rent control ordinances threatened, on occasion, seriously to undermine [HUD’s interest in mortgagor’s continuing solvency]. HUD was informed that annual increase percentages under local rent control regulations often “bore no relationship to the actual costs incurred by a mortgagor in operating and maintaining a residential rental property,” and, further, that applications for hardship increases by mortgagors often involved them in cumbersome and time-consuming procedures, with the result that even if an increase was approved, “it was often too late to prevent the project from going into default”.

Id. at 822; 40 Fed.Reg. 49319 (1975).

On the basis of the evidence which HUD encountered and considered, I cannot find that the regulations promulgated to solve the mortgage default problem were either unnecessary or unreasonable. Accord, Gramercy Spire Tenant’s Ass’n v. Harris, supra; Argo v. Hills, 425 F.Supp. 151 (E.D.N.Y.1977), aff’d 578 F.2d 1366 (2d Cir. 1978); 515 Associates v. Newark, 424 F.Supp. 984 (D.N.J.1977); Levin-Sanger-Orange v. Rent Leveling Board, 142 N.J.Super. 429, 434, 361 A.2d 616, 619 (1976).

Finally, plaintiffs argued that HUD was required to show an actual conflict between its regulations and Boston’s rent control laws. While the court reached that result in Kargman v. Sullivan, 552 F.2d 2 (1st Cir. 1977), both the per curiam and I have noted that the court specifically left open the question we face here where the regulation specifically preempts local law. Moreover, plaintiffs admitted that HUD’s regulations purport to occupy the entire field of rent regulation for subsidized-insured housing. Thus, as I analyze Free v. Bland, 369 U.S. 663, 82 S.Ct. 1089, 8 L.Ed.2d 180 (1962), once we have found the regulations to be validly promulgated, they preempt local law since they have the full force and effect of federal law. Consequently, we reach the same destination as the per curiam by a somewhat different route.

The question of whether an actual conflict exists between federal and state laws is generally limited to those situations where the federal law fails to state its preemptive effect, e. g., New York State Department of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973), or Congress specifically directs an agency to adhere to state law in some instances but potential conflicts arise, e. g., California v. United States, 438 U.S. 645, 98 S.Ct. 2985, 57 L.Ed.2d 1018 (1978). Neither situation is present here. Rather, the HUD regulations are clear in their intent to preempt local rent control laws. As Jones v. Rath Packing Co., 430 U.S. 519, 530-31, 97 S.Ct. 1305, 1312-13, 51 L.Ed.2d 604 (1977), relied on by the district court and per cu-riam, makes clear, an express preemption provision obviates the need to examine whether an actual conflict exists.

Consequently, after thoroughly considering the relevant Supreme Court doctrine, I come to the same issue that we all reached in the per curiam : did the Secretary have the power to promulgate the regulations? Since we find that she did, they validly preempt conflicting local laws.

Accordingly, for all the above reasons, I would affirm the decision of the district court.

. Florida Lime & Avocado Growers, id., dealt with whether a California statute gauging the ripeness of avocados was constitutional insofar as it excluded federally approved Florida avocados from California. The California statute determined avocado maturity on the basis of oil content. Federal regulations applicable to Florida avocados made no distinction on the basis of oil content. Moreover, Florida avocados often do not meet the California standards until after maturity. Nevertheless, the California statute, the Court held, was not preempted because the two statutes did not actually conflict and there was no indication of a federal intent to occupy the field. Id. at 141, 83 S.Ct. at 1216.

See also Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520, 79 S.Ct. 962, 3 L.Ed.2d 1003 (1959) (no evidence of inevitable collision); San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775 (1959) (not an area demanding exclusive federal control); Note, A Framework for Preemption Analysis, 88 Yale L.J. 363 (1978). Cf., Hunt v. State Apple Advertising Comms’n, 432 U.S. 333, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977); City of Burbank v. Lockheed Air Terminal, Inc., 411 U.S. 624, 93 S.Ct. 1854, 36 L.Ed.2d 547 (1973) (area of exclusive federal control).

. Another rule frequently entering into preemption cases is that where the federal government enters into a field traditionally occupied by the states, greater deference is given to state law. See Ray v. Atlantic Richfield Co., 435 U.S. 151, 98 S.Ct. 988, 55 L.Ed.2d 179 (1978); Service v. Dulles, 354 U.S. 363, 388, 77 S.Ct. 1152, 1165, 1 L.Ed.2d 1403 (1957); Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 1152, 91 L.Ed. 1447 (1947). Since HUD is regulating a landlord-tenant relationship, traditionally a matter of state concern, at first blush it appears that great deference should be provided state law with an increased burden upon defendants to show a federal intent to preempt. This case does not, however, deal with a traditional landlord-tenant relationship. Rather, because of a shortage in low and middle income rental housing, Congress has stimulated the private sector to provide the housing with which we are concerned.

Seemingly, plaintiffs would agree that if HUD owned and operated the projects local governments would be precluded from regulation absent federal permission, U.S.Const. art. IV, § 3, cl. 2; Gibson v. Chouteau, 80 U.S. (13 Wall.) 92, 99, 20 L.Ed. 534 (1872). Likewise, these particular landlord-tenant relationships, while not involving complete federal ownership, contain significant incidents of ownership and involvement. See Hahn v. Gottlieb, 430 F.2d 1243, 1247 n.5 (1st Cir. 1970); Gramercy Spires Tenant’s Ass’n v. Harris, 446 F.Supp. 814 (S.D.N.Y.1977). In fact, by definition, these landlord-tenant relationships would not exist but for the federal legislation. Thus, it does not appear that state law deserves special deference because the federal law is not impinging upon an area of traditional state involvement. Cf. Nat’l League of Cities v. Usery, 426 U.S. 833, 96 S.Ct. 2465, 49 L.Ed.2d 245 (1976); New York State Dep’t of Social Services v. Dublino, 413 U.S. 405, 93 S.Ct. 2507, 37 L.Ed.2d 688 (1973).

. Merrill Lynch, Fenner & Smith v. Ware, 414 U.S. 117, 94 S.Ct. 383, 38 L.Ed.2d 348 (1973) (whether New York Stock Exchange rule promulgated under 15 U.S.C. § 78(f) preempted local employee relief law. Federal regulation not designed to exclude state laws); United States v. Georgia Public Service Commission, 371 U.S. 285, 83 S.Ct. 397, 9 L.Ed.2d 317 (1963) (General Services Administration regulations prevail over state law); Campbell v. Hussey, 368 U.S. 297, 82 S.Ct. 327, 7 L.Ed.2d 299 (1961) (Secretary of Agriculture’s regulations prevail over Georgia labeling law); First Federal Savings & Loan Assoc. of Boston v. Greenwald, 591 F.2d 417, 425-26 (1st Cir. 1979) (bank board’s regulation preempts state law); Penagaricano v. Allen Corp., 267 F.2d 550 (1st Cir. 1959) (FHA programs not susceptible to Puerto Rican repair laws). See also Confederated Tribes of the Colville Indian Reservation v. Washington, 591 F.2d 89 (9th Cir. 1979) (Indian tribe regulations may preempt local law).

. This decision that HUD’s regulations are within the strictures of the NHA is further buttressed by the same holding of several other courts. Three district court decisions involving federally insured housing in New York and New Jersey held that 24 C.F.R. §§ 403.1-403.9 (1979) were a proper exercise of power under the NHA.

The first case to address this question was 515 Associates v. City of Newark, 424 F.Supp. 984 (D.N.J.1977). The projects under consideration were unable to meet their mortgage payments and HUD was required to pay. HUD resold the buildings and plaintiffs, who were unable to adjust the rentals as contemplated in the bid prospectus due to local rent control, sought a certificate of preemption. The district court laid out its three-part inquiry as follows: “(1) Are the rules within the delegated authority? (2) Are the rules reasonable? (3) Were the rules issued pursuant to proper procedures?” Id at 991. It went on to conclude that “the unambiguous language of the statute and the expressed purposes of the Act compel the conclusion that the regulations here at issue are properly within the rule-making authority granted to the Secretary.” Id at 992.

Similar results were reached in Gramercy Spires Tenant’s Ass’n v. Harris, 446 F.Supp. 814 (S.D.N.Y.1977) and Argo v. Hills, 425 F.Supp. 151 (E.D.N.Y.1977), aff’d 578 F.2d 1366 (2nd Cir. 1978).

Recently, Snyder v. Axelrod Management Co., 471 F.Supp. 308 (S.D.N.Y.1979) stated “[HUD has] congressionally delegated authority to promulgate 24 C.F.R. pt. 403 and that 24 C.F.R. pt. 403 takes precedence over local rent control laws.” Id. at 312.