dissenting:
With deference I dissent. As noted in the Court's opinion, the Supreme Court has granted certiorari in the case of Wright v. Roanoke Redevelopment & Housing Authority, 771 F.2d 833 (4th Cir.1985). It is apparent that the Court has taken this case to resolve a dispute between the Court of Appeals for the Fourth Circuit in Wright and the Courts of Appeals for the Second Circuit in Beckham v. New York City Housing Authority, 755 F.2d 1074 (2d Cir.1985), and the District of Columbia Circuit in Samuels v. District of Columbia, et al., 770 F.2d 184 (D.C.Cir.1985). In view of the pendency of the Wright case in the Court, I would await its outcome, rather than attempt to resolve the dispute between the Fourth Circuit on the one hand and the Second and D.C. Circuits on the other.
However, since the majority has decided to proceed to a decision, I must express my view that the decision of the Second Circuit in Beckham and the D.C. Circuit in Samuels are correct and should guide our action.
The 1983 Claim
The Wright case, which has been adopted by the majority, clearly errs in my opinion in its determination that a § 1983 claim does not exist because “the tenants had failed to indicate ‘any substantive provisions of the various housing acts which [gave] them a tangible right, privilege, or immunity,’ ” citing Perry v. Housing Authority of City of Charleston, 664 F.2d 1210, 1217-18 (4th Cir.1981). The Wright Court opined: “While we acknowledged [in Perry] that ‘the Act was designed to help low income families’ we emphasized that ‘the actual assistance went not to the tenants, but to the states.’ Id. We therefore concluded that § 1437 did ‘not create any legally cognizable rights in tenants or programs funded under the housing statutes.” Id., 771 F.2d 833, 835.
The majority’s acceptance of this reasoning, controls, wrongly, I think, its decision with respect to the existence of a § 1983 claim. Unless the congressional act creates a “right” in the tenants involved, they, of course, cannot proceed under § 1983, which provides a remedy for a person who is deprived under color of any state law or, now since Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), any federal law, of any “rights, privileges, or immunities secured by the Constitution and laws.”
In order for a statutory violation to permit a victim to proceed by a § 1983 action, two factors must be satisfied: (1) The un*1541derlying statute must create enforceable rights; and (2) Congress must not have foreclosed private enforcement of that statute in the statute itself. Middlesex County Sewerage Authority v. Sea Clammers, 453 U.S. 1, 19, 101 S.Ct. 2615, 2625, 69 L.Ed.2d 435 (1981).
Because of the explicit provisions of the Housing Act and the regulations issued thereunder establishing the rent and the manner by which it is to be computed, I am fully of the opinion that not only are the tenants of such housing members of a class intended to be benefitted by the Act, but they have been granted an “enforceable right,” which may be vindicated under § 1983. I agree with the opinion of the Court of Appeals for the Second Circuit in Beckham, supra:
According to the teaching of Pennhurst, the first question to be asked is: ‘Did Congress intend [in § 1437a] to create enforceable rights and obligations in favor of private parties? ’ 451 U.S. at 15, 101 S.Ct. at 1539. Trial courts in this circuit have recognized that section 1402(1), the predecessor statute of section 1437a, established an enforceable right of public housing tenants to pay as rent no more than the percentage of their incomes prescribed by federal law. See, e.g., Owens v. Housing Authority of the City of Stamford, 394 F.Supp. 1267, 1273 (D.Conn.1975); Barber v. White, 351 F.Supp. 1091, 1097 (D.Conn.1972). Both Owens and Barber held that section 1402(1) established enforceable rights against local housing authorities and housing authority officials who set rents at higher than twenty-five percent of the tenant’s income.
The rent limits set forth in the Brooke Amendment thus stand in sharp contrast to the funding statute interpreted in Pennhurst. There, the Court described the pertinent section as doing no more ‘than expressing] a Congressional preference for certain kinds of treatment’ and as a declaration of policy serving only as a ‘nudge in the preferred direction.’ 451 U.S. at 19, 101 S.Ct. at 1541 (quoting Rosado v. Wyman, 397 U.S. 397, 413, 90 S.Ct. 1207, 1218, 25 L.Ed.2d 442 (1970)).
755 F.2d at 1077.
We next look at the second exception to enforcement of federal statutory rights through § 1983. That is, “when the remedial devices in a particular act are sufficiently comprehensive [so] they may suffice to demonstrate congressional intent to preclude the remedy of suits under section 1983.” National Sea Clammers, supra.
Again, I agree with the opinion in Beck-ham:
In National Sea Clammers, the Court found that the ‘elaborate enforcement provisions’ contained in the Federal Water Pollution Control Amendments (FWPCA), 33 U.S.C. § 1251 et seq., fell under this exception and, therefore, concluded ‘that the existence of these express remedies demonstrates not only that Congress intended to foreclose implied private actions but also that it intended to supplant any remedy that otherwise would be available under section 1983.’ Id. [451 U.S.] at 14, 21, 101 S.Ct. at 1538, 1542. The FWPCA provided that suits could be brought in the courts of appeals by ‘any interested person’ seeking judicial review of various actions by the Administrator of the Environmental Protection Agency. The FWPCA also contained express citizen-suit provisions authorizing private persons to seek injunctions to enforce these statutes. Id. at 13-14, 101 S.Ct. at 1537-38.
The Brooke Amendment, by contrast, contains no comprehensive enforcement mechanism to enforce statutory rent limitations. See McGhee v. Housing Authority of Lanett, 543 F.Supp. 607, 609 (M.D.Ala.1982).
755 F.2d at 1077.
The only conceivable remedial device contained under the relevant housing laws for the tenants’ relief in a case such as this, is the ability of the Department, of Housing & *1542Urban Development to cut off the funding of the local housing authority. In discussing this particular remedy against violations of the statute, the majority opinion states: “Part of the statutory enforcement scheme includes the Annual Contributions Contract executed between HUD and each local housing authority____ Pursuant to these contracts, HUD disburses federal funds to the local authorities provided that the local authorities comply with USHA and HUD regulations. Thus, HUD can enforce these requirements by way of the Annual Contributions Contract, including enforcing ‘compliance by the most drastic possible means; termination of the federal subsidies under the contract,’ ” citing Phelps, 742 F.2d at 821. It is not surprising that the court accepted the language of Phelps as calling this remedy “the most drastic possible means.” It is, in fact, so drastic, that it has been thoroughly criticized not only in Samuels, supra, but in what I consider to be a comparable situation, by the Supreme Court in Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979). There, the Court after stating that Congress wanted, first, to avoid the use of federal resources to support discriminatory practices and, second, to provide individual citizens with protection against these practices, said:
The first purpose is generally served by the statutory procedure for the termination of federal financial support for institutions engaged in discriminatory practices. That remedy is, however, severe and often may not provide an appropriate means of accomplishing the second purpose if merely an isolated violation has occurred. In that situation, the violation might be remedied more efficiently by an order requiring an institution to accept an applicant who had been improperly excluded. Moreover, in that kind of situation it makes little sense to impose on an individual, whose only interest is in obtaining a benefit for herself, or on HEW, the burden of demonstrating that an institution’s practices are so pervasively discriminatory that a complete cutoff of federal funding is appropriate. The award of individual relief to a private litigant who has prosecuted her own suit is not only sensible but is also fully consistent with — and in some cases even necessary to — the orderly enforcement of the statute.
441 U.S. 705-06, 99 S.Ct. at 1962.
Also, as stated in Samuels, “terminating federal funds is á drastic remedy, rarely imposed, that only serves to injure the intended beneficiaries.” 770 F.2d at 196. It certainly cannot be said here that making this one “drastic” remedy available, together with the right of an administrative grievance procedure which does not permit a class claim, would constitute the adoption of “enforcement mechanisms of the Act [that] are sufficiently comprehensive to indicate that Congress specifically foreclosed a remedy under section 1983.” Samuels, 770 F.2d at 195. (Emphasis added.)
I agree, therefore, with the Second and D.C. Circuits in their conclusion that the complaint here adequately alleges a § 1983 action against both the local and federal defendants.
I therefore respectfully dissent.