Godwin v. Secretary of Housing & Urban Development

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Decided February 6, 2004

No. 03-1215

GAIL GODWIN,
PETITIONER

v.

SECRETARY OF HOUSING AND URBAN DEVELOPMENT,
RESPONDENT

On Petition for Review of an Order of the
Secretary of Housing and Urban Development
–————
Gail Godwin, pro se, filed a response to this court’s show-
cause order on behalf of petitioner.
Barbara C. Biddle, Assistant Director, U.S. Department of
Justice, and Anne Murphy, Attorney, filed a response to this
court’s show-cause order on behalf of respondent.
Before: ROGERS, TATEL, and ROBERTS, Circuit Judges.
Opinion for the Court filed PER CURIAM.
PER CURIAM: Petitioner Gail Godwin lived for eleven years in
the Harbor Village Apartments in Richmond, Virginia. In
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
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2002, Harbor Village initiated eviction proceedings against
her for failing to pay her rent on time. On the day of her
eviction hearing, Godwin arrived twenty minutes late to the
housing court and was apparently unable to enter the court-
room because the doors were locked. In her absence, the
court awarded possession of the apartment to Harbor Village.
Charging that Harbor Village evicted her because the
previous year she had lodged a housing discrimination griev-
ance against it, Godwin filed a timely complaint with the
Secretary of Housing and Urban Development (HUD). See
42 U.S.C. § 3610(a)(1)(A)(i) (2000) (‘‘An aggrieved person may
TTT file a complaint with the Secretary alleging [a] discrimi-
natory housing practice.’’). HUD notified Godwin that it
would refer her case to the Virginia Real Estate Board, see
id. § 3610(f) (authorizing such referrals), which concluded
that Harbor Village evicted Godwin because of her late rent
payments, not because of her discrimination complaint or her
status in any protected class. Based on the Board’s conclu-
sion, a HUD official wrote to Godwin informing her that the
agency would close the case. This letter was apparently
intended to represent the Secretary’s determination ‘‘that no
reasonable cause exists to believe that a discriminatory hous-
ing practice has occurred or is about to occur.’’ Id.
§ 3610(g)(3). Such a determination requires the Secretary to
dismiss the complaint. See id.
Godwin petitioned this court to review the Secretary’s
action. On our own motion, we ordered the parties to show
cause why we should not transfer the case to the Fourth
Circuit, given that venue in Fair Housing Act (FHA) cases
lies ‘‘in the judicial circuit in which the discriminatory housing
practice is alleged to have occurred.’’ Id. § 3612(i)(2) (2000).
In his response, the Secretary argues not only that venue
could not be proper in this circuit, but also that no statute
authorizes any court to hear a petition like Godwin’s. Ac-
cording to the Secretary, the FHA creates no cause of action
in cases like this and, moreover, the Administrative Proce-
dure Act bars judicial review both because his refusal to issue
a discrimination charge is an enforcement decision committed
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to agency discretion and because Godwin has an adequate
alternative remedy—a private civil action against Harbor
Village under FHA section 813 (codified at 42 U.S.C. § 3613
(2000)).
We agree with the Secretary that we lack jurisdiction to
consider Godwin’s petition. To begin with, the FHA creates
no explicit cause of action in cases like this. Although section
812 authorizes judicial review when the Secretary charges
discriminatory housing practices, see id. § 3612(i), it confers
no right to review when, as here, the Secretary declines to
issue a charge. Nor do we see anything suggesting that the
law implicitly confers such a right of action against the
Secretary. ‘‘In fact, it is difficult to understand why a court
would ever hold that Congress, in enacting a statute that
creates federal obligations, has implicitly created a private
right of action against the federal government, [as] there is
hardly ever any need for Congress to do so’’ given that
agency action can normally be reviewed by a district court
pursuant to its federal question jurisdiction. NAACP v. Sec’y
of HUD, 817 F.2d 149, 152 (1st Cir. 1987) (Breyer, J.)
(emphasis omitted). Although we conclude below that the
APA bars a federal question lawsuit in cases like this, that
conclusion only reinforces our view that the FHA creates no
implied right of action, for it would be quite odd to hold that
Congress implicitly created a cause of action despite another
statute’s preclusion of such an action. See id. at 153. Given
Congress’s presumed awareness of the APA’s provisions, we
believe—in accordance with the holdings of other circuits—
that Congress would make explicit any intent to create a
cause of action in these circumstances. See Marinoff v.
HUD, 78 F.3d 64, 64 (2d Cir. 1996) (per curiam), aff’g 892 F.
Supp. 493 (S.D.N.Y. 1995); NAACP, 817 F.2d at 153. Put
simply, then, we lack authority to consider Godwin’s petition.
This brings us to the question of transfer. Our lack of
jurisdiction does not preclude us from transferring the case if
the court to which we transfer would have subject matter
jurisdiction. See 28 U.S.C. § 1631 (2000). Because we could
transfer the case to a federal district court, which normally
has federal question jurisdiction to entertain challenges to
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agency actions, see, e.g., Robbins v. Reagan, 780 F.2d 37, 42–
43 (D.C. Cir. 1985) (per curiam) (‘‘Even though the APA itself
TTT grants no jurisdiction, power to review any agency action
under the APA exists under 28 U.S.C. § 1331.’’), we must
address the Secretary’s argument that the APA precludes
any judicial review at all.
We agree with the Secretary that the private action author-
ized by FHA section 813 constitutes an adequate alternative
remedy, rendering judicial review unavailable under the APA.
See 5 U.S.C. § 704 (2000) (limiting review to ‘‘final agency
action for which there is no other adequate remedy in a
court’’). We have deemed similar private rights of action
adequate, see, e.g., Council of & for the Blind v. Regan, 709
F.2d 1521, 1531–33 (D.C. Cir. 1983) (en banc), and a private
action remains available to Godwin because the two-year
statute of limitations in her case—which was tolled during the
administrative proceedings, see 42 U.S.C. § 3613(a)(1)(B)—
has not run. Hence any district court, like any other court of
appeals, would lack jurisdiction to hear Godwin’s petition,
meaning that there is no court to which we can transfer the
case. Here too we are in agreement with other circuits. See
Am. Disabled for Attendant Programs Today v. HUD, 170
F.3d 381, 389 (3d Cir. 1999); Marinoff, 78 F.3d at 64.
The petition for review is dismissed for want of subject
matter jurisdiction.
So ordered.