Barry Farm Tenants and Allies Association, Inc. v. District of Columbia Housing Authority ( 2018 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
BARRY FARM TENANTS AND ALLIES )
ASSOCIATION, INC., et. al. )
)
Plaintiffs, )
)
v. )
)
DISTRICT OF COLUMBIA HOUSING ) Civil Action No. 17-1762 (EGS)
AUTHORITY, et.al. )
)
Defendants. )
)
MEMORANDUM OPINION
I. Introduction
Barry Farm is a historic public housing property located east
of the Anacostia River in Southeast District of Columbia
(“D.C.”). The property was purchased in 1867 and developed as
one of the first communities for African-American homeowners
after the Civil War. In 2006, the D.C. Council approved a
redevelopment plan to transform Barry Farm from a public housing
property into a mixed-income, mixed-use community. Pursuant to
the redevelopment plan, the existing 444 Barry Farm units will
be demolished and over 1,000 mixed-use, mixed-income units will
be built in their place. The D.C. Housing Authority (“DCHA”)
hired private developers Preservation of Affordable Housing
(“POAH”) and A&R Development (“A&R”) to implement the approved
plan (collectively, “defendants”).
1
Plaintiffs are individuals who will be displaced and
organizations that will be affected by the redevelopment plan.
The plaintiffs’ four-count complaint alleges that the
defendants’ redevelopment plan discriminates against Barry Farm
tenants based on their familial status in violation of: (1) the
Fair Housing Act (“FHA”), 42 U.S.C. § 3601, et seq.; and (2) the
D.C. Human Rights Act (“DCHRA”), D.C. Code §§ 2-1402.21(a)(1),
2-1402.68. Plaintiffs also allege that DCHA: (3) failed to
maintain the Barry Farm property in violation of the United
States Housing Act (“USHA”), 42 U.S.C. § 1437p; and (4)
discriminated against Barry Farm tenants based on their place of
residence in violation of the DCHRA, D.C. Code §§ 2-
1402.21(a)(4). All four counts are alleged against DCHA; the
first and second counts are also alleged against POAH and A&R.
Pending before the Court are: (1) DCHA’s motion to dismiss the
four claims against it, see ECF No. 18; 1 and (2) A&R’s and POAH’s
motion to dismiss the two claims against them, see ECF No. 13.
After careful consideration of the motions, the consolidated
response, the replies thereto, the oral argument at the January
1 DCHA originally filed its motion to dismiss on October, 30,
2017. See ECF No. 12. However, it filed a substitute filing on
December 7, 2017. See ECF No. 18. The substitute filing merely
added a table of contents and a table of authorities. Id.2
9, 2018 motions hearing, and the applicable law, the defendants’
motions to dismiss are GRANTED. 2
II. Background
A. The Parties
Associational plaintiffs are: (1) the Barry Farm Tenants and
Allies Association, Inc. (“BFTAA”), a non-profit corporation
created by Barry Farm residents to address issues related to the
Barry Farm redevelopment; and (2) Empower DC, a non-profit
corporation that seeks to improve the lives of low- and
moderate-income D.C. residents. Compl., ECF No. 1 ¶¶ 13, 14.
Individual plaintiffs are Ismael Vasquez 3, Jacqueline Thrash, and
Brenda Lucas, current and former Barry Farm residents who bring
the complaint individually and on behalf of two proposed classes
of similarly-situated persons. Id. ¶¶ 15-20. The first proposed
class consists of Barry Farm families with children, who allege
that the redevelopment plan discriminates against them based on
their familial status. Id. ¶¶ 106, 112. The second proposed
class consists of Barry Farm residents whose units have not been
2 Consequently, the Court need not evaluate the plaintiffs’
motion for a preliminary injunction, which encompasses the same,
now-dismissed claims. See Pls.’ Mot. for PI, ECF No. 21. The
plaintiffs’ motion for a preliminary injunction briefing
schedule and hearing is also denied as moot. See ECF No. 27.
3 In the complaint, Mr. Vasquez’ last name is spelled as both
“Vasquez” and “Vazquez.”
3
maintained, allegedly in violation of the USHA and the DCHRA.
Id. ¶¶ 106, 113.
Plaintiffs bring this action against the entities responsible
for implementing the Barry Farm redevelopment plan and
maintaining Barry Farm units. DCHA is a D.C. government agency
that owns and manages public housing units. Id. ¶ 21. In 2013,
DCHA hired private developers POAH and A&R to redevelop the
Barry Farm property. Id. ¶ 33. POAH is a non-profit developer
that focuses on housing for low- and moderate-income residents,
while A&R is a private developer. Id.; see also id. ¶¶ 22, 23.
B. First-Stage Redevelopment Plan
In 2005, the D.C. government created the New Communities
Initiative to “revitalize severely distressed subsidized housing
and redevelop communities plagued with concentrated poverty,
high crime, and economic segregation.” Id. ¶ 28. The program
targeted four neighborhoods, one of which is Barry Farm. Id. In
seeking to create “vibrant mixed-income neighborhoods,” the New
Communities Initiative established four principles to guide
redevelopment. Id. ¶ 30. Pursuant to these principles, a
redevelopment plan must: (1) ensure one-for-one replacement of
affordable housing units in the neighborhood; (2) create
opportunities for residents to return to or stay in the
community; (3) build mixed-income housing to end the
concentration of low-income housing and poverty; and (4) “build
4
first” to make new housing available before existing housing is
demolished. Id. With these principles in mind, the D.C. Council
created and approved the Barry Farm redevelopment plan in 2006.
Id. ¶¶ 31, 32. In 2013, DCHA hired POAH and A&R to develop the
property. Id. ¶ 33.
In February 2014, the defendants filed with the D.C. Zoning
Commission a “first-stage Planned Unit Development application”
(“first-stage PUD”). Id. ¶ 34. The first-stage PUD application
sets forth the general parameters for the Barry Farm
redevelopment. Id. ¶ 35; see generally Z.C. Order No. 14-02
(“Z.C. Order”), ECF No. 12-2. 4 For example, the PUD application
outlined the redevelopment project’s goals and phases and laid
out the general demolition and construction plans. See Z.C.
Order, ECF No. 12-2. The Zoning Commission approved and adopted
the defendants’ PUD application in December 2014. 5 Id. Pursuant
4 The plaintiffs do not attach the Zoning Commission’s Order
approving the first-stage PUD application to their complaint.
See generally Compl., ECF No. 1. However, the Court may take
judicial notice of the Order because it is a frequently-cited
document “upon which the plaintiff's complaint necessarily
relies.” Ward v. District of Columbia Dep't of Youth Rehab.
Servs., 768 F. Supp. 2d 117, 119 (D.D.C. 2011) (quoting Hinton
v. Corr. Corp. of Am., 624 F. Supp. 2d 45, 46 (D.D.C. 2009));
Marshall v. Honeywell Tech. Sols., Inc., 536 F. Supp. 2d 59, 65
(D.D.C. 2008)(“[W]here a document is referred to in the
complaint and is central to the plaintiff's claim, such a
document attached to the motion papers may be considered without
converting the motion [to dismiss] to one for summary
judgment.”).
5 The District of Columbia Court of Appeals vacated the Zoning
Commission’s Order approving the defendants’ first-stage PUD
5
to the Zoning Commission’s Order, the defendants will demolish
the existing 444 Barry Farm units and replace them with 1,400
residential units of various types. Compl., ECF No. 1 ¶ 38. Of
these new units, 344 will be dedicated as low-income,
“replacement” units. Id. ¶ 38. The remaining units will be a mix
of affordable rental units, affordable homeownership units,
market-rate rental units, and market-rate homeownership units.
Z.C. Order, ECF No. 12-2 ¶ 78d. In January 2017, the U.S.
Department of Housing and Urban Development (“HUD”) approved the
defendants’ application to demolish Barry Farm pursuant to the
USHA. Compl., ECF No. 1 ¶ 65; see also Mot. Hearing Tr., ECF No.
25 at 4:15-19; HUD Approval, ECF No. 24-1 (January 20, 2017).
At issue in this case is the future “unit mix”—or, the number
of one-, two-, three-, four-, and six-bedroom units that will
comprise the public housing replacement units. Specifically, the
plaintiffs allege that the defendants’ plan to dramatically
increase the number of one-bedroom replacement units will reduce
the number of units that can accommodate returning families.
application on April 26, 2018. See Barry Farm Tenants & Allies
Ass’n v. District of Columbia Zoning Comm’n, Civ. Case No. 15-
AA-1000. The next day, this Court ordered the parties to provide
their views regarding what impact, if any, the decision had on
the instant case. The plaintiffs stated that the decision “does
not affect the motions pending,” while the defendants asserted
that the opinion “provides further support for their motions to
dismiss.” Joint Status Report, ECF No. 32. In light of these
positions, the Court need not evaluate the decision further.
6
Compl., ECF No. 1 ¶¶ 40, 41. The plaintiffs allege that the
defendants “proposed” a unit mix for the replacement units in a
July 2014 letter to the Zoning Commission, which included “post-
hearing materials” in support of the PUD application. Id. ¶ 40
(citing 2014 Letter, Compl. Ex. A, ECF No. 1-1). Ultimately, the
Zoning Commission’s Order did not contain a future unit mix. See
generally Z.C. Order, ECF No. 12-2.
In approving the defendants’ first-stage PUD application, the
Zoning Commission found that the redevelopment plan was suitable
in part because it will “meet the needs of the returning
residents,” who “will be able to return to a unit that includes
a bedroom size consistent with their needs.” Id. ¶ 110. The
Zoning Commission found, among other things, that: (1) the
redevelopment plan “will provide a one-for-one replacement of
all public housing units that are removed from the PUD site; 6”
and (2) the defendants will “undertake an extensive relocation
and return process to ensure that current residents have a place
to live during redevelopment . . . and to guarantee that those
residents can return to the PUD Site after redevelopment if they
6 100 public housing replacement units been built or are in the
process of being built for Barry Farm families – 60 have been
built at Matthews Memorial Terrace and 40 are under construction
at Sheridan Station Phase III. Compl., ECF No. 1 ¶ 39; Z.C.
Order, ECF No. 12-2 ¶ 59. These, together with the 344
replacement units set forth in the PUD application, account for
the one-for-one replacement of all public housing units removed
from the site. Z.C. Order, ECF No. 12-2 ¶ 59.
7
choose to do so.” Id. ¶ 95c. The Zoning Commission conditioned
its approval on, among other things: (1) that the 344 dedicated
replacement units “shall remain as replacement public housing
units for the period required . . . which will be no less than
40 years;” and (2) that the defendants include in each second-
stage application “a detailed description of the affordable
housing . . . [and] a breakdown of how the affordable housing is
distributed in terms of unit type (by number of bedrooms . .
.).” Id. at 60-61; see also Mot. Hearing Tr., ECF No. 25 at
75:15-76:8 (stating that the unit mix for the replacement units
will be submitted for approval in second-stage applications).
Second-stage PUD applications are due every two years; there
will be four second-stage applications in total. Id. at 64. The
first second-stage application for the first four land parcels
is currently due by May 2019, 7 while the fourth and final second-
stage application for all remaining land parcels is currently
due by May 2025. Id. Each second-stage application is subject to
approval by the Zoning Commission. Id.
C. DCHA’s Alleged Failure to Maintain Barry Farm Units
Barry Farm has fallen into a “deep state of disrepair.”
Compl., ECF No. 1 ¶ 58. For example, residents allege that there
are holes in the floor and walls, leaking ceilings, broken
7 The Court understands that deadlines may be subject to change.
See Compl., ECF No. 1 ¶ 49.
8
appliances and fixtures, broken doors and windows, persistent
rodent and insect infestations, broken heating, water damage,
and sewage leaks. Id. ¶¶ 58, 60. The plaintiffs allege that DCHA
is either “non-responsive” or “slow” to fix these many issues,
especially when compared to its maintenance record at other
public housing properties. Id. ¶¶ 55-60. According to the
plaintiffs, this is increasingly the case now that the
defendants’ first-stage PUD application was approved and Barry
Farm is slated for demolition. Id. ¶ 50. The plaintiffs allege
that DCHA has “systematically failed to maintain Barry Farm
units in an attempt to clear the property for redevelopment,”
driven by its decision to “disinvest” in Barry Farm. Id. ¶¶ 50,
63. The “uninhabitable” conditions have allegedly caused some
tenants to leave; DCHA has allegedly kept those units vacant in
anticipation of demolition. Id. ¶¶ 50, 58.
III. Standards of Review
A. Federal Rule of Civil Procedure 12(b)(1)
“A federal district court may only hear a claim over which it
has subject-matter jurisdiction; therefore, a Rule 12(b)(1)
motion for dismissal is a threshold challenge to a court's
jurisdiction.” Gregorio v. Hoover, 238 F. Supp. 3d 37, 44
(D.D.C. 2017) (internal citation and quotation omitted). To
survive a Rule 12(b)(1) motion, the plaintiff bears the burden
of establishing that the court has jurisdiction by a
9
preponderance of the evidence. Lujan v. Defenders of Wildlife,
504 U.S. 555, 561 (1992). “Because Rule 12(b)(1) concerns a
court's ability to hear a particular claim, the court must
scrutinize the plaintiff's allegations more closely . . . than
it would under a motion to dismiss pursuant to Rule 12(b)(6).”
Schmidt v. U.S. Capitol Police Bd., 826 F. Supp. 2d 59, 65
(D.D.C. 2011)(internal citations omitted). In so doing, the
court must accept as true all of the factual allegations in the
complaint and draw all reasonable inferences in favor of the
plaintiff, but the court need not “accept inferences unsupported
by the facts alleged or legal conclusions that are cast as
factual allegations.” Rann v. Chao, 154 F. Supp. 2d 61, 64
(D.D.C. 2001). In reviewing a motion to dismiss pursuant
to Rule 12(b)(1), the court “may consider materials outside the
pleadings” in determining whether it has jurisdiction to hear
the case. Jerome Stevens Pharm., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005).
B. Federal Rule of Civil Procedure 12(b)(6)
A motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(6) tests the legal sufficiency of a complaint.
Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002). A
complaint must contain “a short and plain statement of the claim
showing that the pleader is entitled to relief, in order to give
the defendant fair notice of what the . . . claim is and the
10
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (internal quotations and citations
omitted).
Despite this liberal pleading standard, to survive a motion to
dismiss, a complaint “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal quotations and citations omitted). A claim is facially
plausible when the facts pled in the complaint allow the court
to “draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id. The standard does not amount to
a “probability requirement,” but it does require more than a
“sheer possibility that a defendant has acted unlawfully.” Id.“[W]hen ruling on a defendant’s motion to dismiss [pursuant to
Rule 12(b)(6)], a judge must accept as true all of the factual
allegations contained in the complaint.” Atherton v. D.C. Office
of the Mayor, 567 F.3d 672, 681 (D.C. Cir. 2009) (internal
quotations and citations omitted). In addition, the court must
give the plaintiff the “benefit of all inferences that can be
derived from the facts alleged.” Kowal v. MCI Commc’ns Corp., 16
F.3d 1271, 1276 (D.C. Cir. 1994). Even so, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements” are not sufficient to state a claim.
Iqbal, 556 U.S. at 678.
11
A dismissal of a claim brought pursuant to Section 1983 for
lack of an enforceable right amounts to dismissal for failure to
state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6). See Duberry v. District of Columbia, 824 F.3d 1046,
1050-51 (D.C. Cir. 2016)(“Our review of the Rule 12(b)(6)
dismissal of the[] amended complaint [for lack of an enforceable
right] is de novo.”).
IV. Analysis
Defendant DCHA moves to dismiss the complaint, arguing that:
(1) the plaintiffs’ two claims for discrimination based on
familial status (Counts I and II) are not ripe for adjudication,
or alternatively, the plaintiffs fail to state a disparate
impact discrimination claim; (2) the plaintiffs’ constructive
demolition claim (Count III) must be dismissed for lack of an
enforceable federal right; and (3) the plaintiffs’ claim for
discrimination based on place of residence (Count IV) must be
dismissed for failure to state a claim. See generally DCHA’s
Mot., ECF No. 18. 8 Defendants POAH and A&R move to dismiss the
two counts alleged against them for discrimination based on
familial status (Counts I and II) because the claims are not
ripe for adjudication, or alternatively, for failure to state a
8 When citing electronic filings throughout this opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
12
disparate impact discrimination claim. POAH’s/A&R’s Mot., ECF
No. 13. The Court analyzes each argument in turn.
A. The Court Lacks Jurisdiction Over Counts I and II Because
the Plaintiffs’ Claims are Not Ripe for Judicial Review
1. The Plaintiffs’ Allegations
In Count I, the plaintiffs allege that the defendants have
violated the FHA “by designing and undertaking implementation of
a redevelopment plan that will significantly reduce the number
of two-, three-, four-, and six-bedroom apartment units at Barry
Farm, and thus will have a disparate impact or disproportionate
effect on families with children.” Compl., ECF No. 1 ¶ 130. The
plaintiffs further allege that the “[d]efendants, individually
and through their agents, adopted a redevelopment plan that . .
. [will] mak[e] housing unavailable to families with children,”
which “will have a disparate impact on families who live at
Barry Farm based on their family status.” Id. ¶¶ 133, 134. In
Count II, the plaintiffs allege the same facts to be in
violation of the DCHRA. Id. ¶¶ 142, 145-46.
The plaintiffs’ allegations are based entirely on a July 2014
letter that the defendants sent to the Zoning Commission
containing “post-hearing materials” in support of their first-
stage PUD application. 2014 Letter, Compl. Ex. A, ECF No. 1-1 at
2 (attached to complaint). This letter provides information
“regarding unit mix and targets” in order to “inform the [Zoning
13
Commission of] future unit sizes.” Id. at 4-6. To that end, it
included a “possible housing mix” for the Barry Farm replacement
units. Id. If adopted, the possible mix would add almost 100
one-bedroom units to the existing unit mix, resulting in 163
fewer units with more than one bedroom. Id. at 5-6. This
possible unit mix was developed after the defendants surveyed
current Barry Farm tenants and D.C. residents on the public
housing waiting list to learn about their future housing needs.
Id. at 6.
The possible unit mix described in the July 2014 letter was
not incorporated into the Zoning Commission’s Order. See
generally Z.C. Order, ECF No. 12-2. Rather, the Zoning
Commission explained that “[a] first-stage PUD involves (i)
general review of a site’s suitability . . . ; (ii) the
appropriateness, character, scale, mixture of uses, and design
of the uses proposed; and (iii) the compatibility of the
proposed development city-wide . . . and other goals of the PUD
process.” Id. ¶ 150. The Zoning Commission ordered the
defendants to include “a detailed description of the affordable 9
housing . . . [and] a breakdown of how the affordable housing is
9 “Affordable housing” includes the replacement public housing
units. See Mot. Hearing Tr., ECF No. 25 at 75:15-76:8 (stating
that the unit mix for the replacement units will be submitted
for approval in second-stage PUD applications).
14
distributed in terms of unit type (by number of bedrooms . . .)”
in their second-phase PUD applications. Id. at 61.
2. Familial Status Disparate Impact Discrimination
The plaintiffs contend that the defendants discriminated
against Barry Farm families on the basis of familial status by
“adopt[ing]” a redevelopment plan that will reduce the number of
available larger units. Compl., ECF No. 1 ¶¶ 127-149. The FHA
prohibits “mak[ing] unavailable ... a dwelling to any person
because of ... familial status.” Borum v. Brentwood Vill., LLC,
218 F. Supp. 3d 1, 20-21 (D.D.C. 2016) (quoting 42 U.S.C. §
3604(a)). “‘Familial status' means one or more individuals (who
have not attained the age of 18 years) being domiciled with ...
a parent or another person having legal custody of such ...
individuals,’ or the parent's designee.” Id. (quoting 42 U.S.C.
§ 3602(k)). Therefore, to state a claim for “familial status”
disparate impact discrimination, plaintiffs must “offer
sufficient evidence to support a finding that the challenged
policy actually disproportionally affected a protected class,”
in this case families with minor children. 2922 Sherman Ave.
Tenants' Ass'n v. District of Columbia, 444 F.3d 673, 681 (D.C.
Cir. 2006)(emphasis in original).
3. The Parties’ Arguments
The defendants move to dismiss these two disparate impact
counts for lack of jurisdiction. Since the allegations are based
15
“solely” on the “proposed unit mix numbers” presented in the
July 2014 letter, the defendants argue that the claims are not
ripe for judicial review. According to the defendants, the
possible mix set forth in the letter does not necessarily
reflect the actual unit mix that defendants will build. DCHA’s
Mot., ECF No. 18 at 12-14; POAH’s/A&R’s Mot., ECF No. 13 at 20-
24. Instead, the defendants contend that the possible mix was
meant to inform the Zoning Commission of the potential needs of
the returning residents. See id. The defendants state that they
have not determined the final unit mix and are not required to
do so at this time. DCHA’s Mot., ECF No. 18 at 12-13. They also
state that they will “consider the needs of Barry Farm
residents” in determining and submitting to the Zoning
Commission for approval the future unit mix. Id. at 13. 10
The plaintiffs respond that they have presented a concrete
dispute fit for judicial review because the defendants have
“publicly outlined their current expectations of the unit mix,”
which will substantially reduce the number of available units
10The DCHA Board of Commissioners promulgated a Resolution
formally adopting their “relocation and re-entry policies for
[New Communities Initiative] developments.” See DCHRA Resolution
16-06. The Resolution “establishes guidelines under which
residents are eligible to return to their original development,”
and mandates that “eligible residents have a right to a unit
[that] fits their household size . . . even if their household
grows during the relocation period.” Id. ¶ 2. The Court may take
judicial notice of such public records. See Kaempe v. Myers, 367
F.3d 958, 965 (D.C. Cir. 2004).
16
suitable for families. Pls.’ Opp’n, ECF No. 16 at 13, 12-20.
According to the plaintiffs, they will be harmed if they are
“dispossessed” and told to “wait and see,” without any guarantee
that they will be able to return to an appropriately-sized unit.
Id. at 13. Additionally, the plaintiffs argue that a claim is
ripe under the FHA even if an injury has not yet occurred, so
long as there is a threat of a future injury. See id. at 14-15.
Because the defendants have purportedly taken “concrete steps”
to implement the redevelopment plan, the plaintiffs contend that
there is a sufficient threat of future injury. Id. at 16.
4. Analysis
When a claim is not ripe for judicial review, a court lacks
subject matter jurisdiction and must dismiss the claim pursuant
to Federal Rule of Civil Procedure 12(b)(1). See Delta Airlines,
Inc. v. Exp.-Imp. Bank, 85 F. Supp. 3d 250, 269 (D.D.C. 2015).
"Ripeness is a justiciability doctrine designed ‘to prevent the
courts, through avoidance of premature adjudication, from
entangling themselves in abstract disagreements over
administrative policies, and also to protect the agencies from
judicial interference until an administrative decision has been
formalized and its effects felt in a concrete way . . . .’”
Nat'l Park Hosp. Ass'n v. Dep't of Interior, 538 U.S. 803, 807–
08 (2003) (quoting Abbott Labs. v. Gardner, 387 U.S. 136, 148–49
(1967)). “A claim is not ripe for adjudication if it rests upon
17
contingent future events that may not occur as anticipated, or
indeed may not occur at all.” Texas v. United States, 523 U.S.
296, 300 (1998)(citations and quotations omitted).
“Determining whether [an action] is ripe for judicial review
requires [the Court] to evaluate (1) the fitness of the issues
for judicial decision and (2) the hardship to the parties of
withholding court consideration.” Nat'l Park Hosp. Ass'n, 538
U.S. at 808. “The fitness of an issue for judicial [review]
depends on . . . whether consideration of the issue would
benefit from a more concrete setting, and whether the agency's
action is sufficiently final.” Atl. States Legal Found. v.
Envtl. Prot. Agency, 325 F.3d 281, 284 (D.C. Cir. 2003)
(citations and quotations omitted). The requirement is therefore
“primarily meant to protect the agency's interest in
crystalizing its policy before that policy is subjected to
judicial review and the court's interests in avoiding
unnecessary adjudication . . . .” Am. Petroleum Inst. v. Envtl.
Prot. Agency, 683 F.3d 382, 387 (D.C. Cir. 2012) (citations and
quotations omitted).
Here, the plaintiffs have not presented an issue that is
currently fit for judicial review. Their allegations that the
defendants designed, begun implementing, and adopted a
redevelopment plan that discriminates against them are belied by
both the July 2014 letter and the Zoning Commission’s Order
18
approving the first-stage PUD application. Thus, their
allegations are not supported by the very facts that they
reference. While the plaintiffs are deservedly anxious about
their ability to return to their community, the unit mix is
clearly not final; it has neither been proposed to the Zoning
Commission, nor adopted by it. As stated in the July 2014
letter, “[t]he bedroom count for the 344 Barry Farm/Wade Road
replacement public housing units . . . will be determined by the
bedroom needs of the returning DCHA households.” 2014 Letter,
Compl. Ex. A, ECF No. 1-1 at 6 (emphasis added).
This understanding was confirmed in the Zoning Commission’s
Order, in which the defendants were directed to include in
“subsequent second-stage applications” “a detailed description
of the affordable housing . . . as well as a breakdown of how
the affordable housing is distributed in terms of unit type (by
number of bedrooms . . .).” Z.C. Order, ECF No. 12-2 at 61. By
mandating that the defendants include the unit mix in the
future, the Zoning Commission confirmed that it neither
considered the “possible” mix in the 2014 letter a proposal, nor
approved it as such. See generally id.; 2014 Letter, Compl. Ex.
A, ECF No. 1-1. The plaintiffs acknowledge this lack of finality
in their complaint: “[the Zoning Commission made it] clear that
defendants can continue to change the unit mix they propose for
the redevelopment.” Compl., ECF No. 1 ¶ 47.
19
Because the unit mix has not yet been determined, this
controversy is the very type of “abstract disagreement” that the
ripeness doctrine was designed to prevent. Nat’l Park Hosp.
Ass’n, 538 U.S. at 807-08. For example, if the defendants
include a unit mix in their second-stage applications that
comports with the needs of returning families, those families
will not have been discriminated against on the basis of
familial status. This result is consistent with the “unspoken
element of the rationale underlying the ripeness doctrine: if
[the Court] do[es] not decide [the case] now, [it] may never
need to.” Nat’l Treasury Emps. Union v. United States, 101 F.3d
1423, 1431 (D.C. Cir. 1996). This rationale not only “protect[s]
the expenditure of judicial resources, but it [also] comports
with [the courts’] theoretical role as the governmental branch
of last resort.” Id. (citation omitted).
The plaintiffs argue that the possible bedroom mix is
“concrete and being implemented” because the defendants have
“embarked on concrete steps to redevelop” Barry Farm. Pls.’
Opp’n, ECF No. 16 at 14-16. As examples, the plaintiffs point to
the ninety-day eviction notices that the defendants began
issuing to Barry Farm residents and the fact that HUD approved
the defendants’ raze application, allowing them to demolish the
property. Id. at 16.
20
The plaintiffs rely on Mt. Holly Citizens in Action, Inc. v.
Township of Mount Holly, for the proposition that an FHA case is
ripe if a defendant takes substantial steps toward implementing
a plan, even if an injury has not yet occurred. Id. at 17-18
(citing and discussing Civ. Case No. 08-2584, 2008 WL 4757299(D.N.J. Oct. 28, 2008)). In that case, the plaintiffs’ FHA claim
was found to be ripe even though the defendants’ plan to acquire
and demolish their homes was not final and had not been fully
implemented. 2008 WL 4757299 at *3-4. The claim was ripe because
the town had taken significant action to force the plaintiffs
from their homes. Id. For example, the town council passed an
ordinance that authorized eminent domain, declaring that the
defendant “is or will be the owner of all the homes in the
redevelopment area.” Id. at *3. In light of this action, it was
abundantly “clear” that the defendants intended to take the
plaintiffs’ homes. Id. at *4.
In the instant case, however, the plaintiffs have not alleged
that the defendants have taken any action that suggests that the
possible unit mix will be implemented. See generally Compl., ECF
No. 1. Unlike the defendants’ plan in Mt. Holly, it is merely
speculative that the possible unit mix described in the July
2014 letter will be proposed or adopted. Although the defendants
have taken concrete steps to implement the redevelopment plan
by, for example, submitting the PUD application for approval,
21
the plaintiffs are not challenging as discriminatory the
redevelopment plan in general. Rather, the plaintiffs
specifically challenge as discriminatory the possible unit mix
submitted to the Zoning Commission in the 2014 letter. See
Compl., ECF No. 1 ¶¶ 127-149; 2014 Letter, Compl. Ex. A, ECF No.
1-1. Unlike the redevelopment plan generally, the defendants
have taken no action to implement this “possible” mix.
Citing Cabrini-Green Advisory Council v. Chicago Housing
Authority, the plaintiffs also argue that their claim is ripe
notwithstanding the fact that there are some outstanding
“uncertain contingencies.” Pls.’ Opp’n, ECF No. 16 at 17. In
Cabrini-Green, a Northern District of Illinois district court
found that the plaintiff’s case was ripe even though the city
housing authority’s redevelopment plan was not final. Civ. Case
No. 96-6949, 1997 WL 31002 at *5-7 (N.D. Ill. Jan. 22, 1997).
The court reached this conclusion in part because the
defendants’ process for creating its redevelopment plan was
unlawful and denied the plaintiff the opportunity to
participate. Id. at *6-7. The plaintiff and the defendants had
entered into a memorandum of agreement that provided, among
other things: (1) that the residents would be relocated in the
redevelopment area; and (2) that the plaintiff would be
permitted to meet with the defendant to develop the plan for the
property. Id. at *1. The defendants failed to meet these
22
obligations when it alone developed a plan that would have
demolished 1,300 public housing units and rebuilt only 300
replacement units. Id. at *7. The defendants’ actions therefore
presented a concrete dispute for judicial resolution because
they breached the agreement, resulting “inevitably” in the
violations alleged in the complaint. Id.Unlike Cabrini-Green—in which the “crucial issue” was not
“whether the plan is merely in outline or final form”—the
crucial issue here is whether the proposed bedroom mix reflects
what will eventually be built. Id. at *7. Without knowing the
final proposed unit mix, the Court cannot assess whether it has
a discriminatory impact on families.
Having found the plaintiffs' claims unfit for judicial
resolution, the Court need not determine whether the plaintiffs
will suffer hardship without review. See Delta Airlines, Inc. v.
Exp.-Imp. Bank, 85 F. Supp. 3d 250, 272 (D.D.C. 2015). At this
early stage in redevelopment, the plaintiffs cannot challenge a
unit mix that does not yet exist. Because these claims are not
yet ripe for judicial review, the Court lacks subject matter
jurisdiction over them. Pursuant to Federal Rule of Civil
Procedure 12(b)(1), Counts I and II are DISMISSED. 11
11Because the Court finds that the plaintiffs’ claims are not
ripe, it need not evaluate whether the plaintiffs stated a
disparate impact claim pursuant to the FHA and the DCHRA.
23
B. Count III is Dismissed Because the Applicable Provisions of
the USHA Do Not Confer a Federal Right Enforceable Through
42 U.S.C. § 1983The plaintiffs allege that DCHA violated the USHA by
constructively demolishing Barry Farm units without HUD approval
as required by 42 U.S.C. § 1437p (“Section 1437p”) and 24 C.F.R.
§ 970.25. Compl., ECF No. 1 ¶¶ 150-156. The plaintiffs allege
that DCHA had an obligation to maintain their units until HUD
approved DCHA’s demolition application in January 2017. 12 Id. ¶
152. By failing to do so, the plaintiffs allege that DCHA
constructively demolished Barry Farm units. Id. ¶ 153. The
plaintiffs seek to vindicate their alleged federal right under
the USHA via 42 U.S.C. § 1983 (“Section 1983”). Id. ¶ 155.
DCHA argues that the plaintiffs’ claim should be dismissed
because Section 1437p does not create a federal right to pursue
a construction demolition claim through Section 1983. DCHA’s
Mot., ECF No. 18 at 18-21. Whether the current version of
Section 1437p creates a federal right enforceable through
Section 1983 is an issue of first impression in this Circuit.
12Because HUD approved DCHA’s demolition application in January
2017, the plaintiffs seek only damages for DCHA’s alleged
constructive demolition predating January 20, 2017. Compl., ECF
No. 1 ¶ 65; Mot. Hearing Tr., ECF No. 25 at 94:5-18 (stating
that the claim is not moot because damages are available).
24
1. Private Rights of Action Enforceable Via Section 1983
Section 1983 imposes liability on anyone 13 who, under color of
state law, deprives a person “of any rights, privileges, or
immunities secured by the Constitution and laws.” 42 U.S.C. §
1983. Section 1983 thus confers a private right of action to
safeguard certain rights created by federal statutes. Therefore,
to bring a Section 1983 claim, a plaintiff must assert a
violation of a federal right, not merely a violation of federal
law. See Golden State Transit Corp. v. Los Angeles, 493 U.S.
103, 106 (1989).
To determine whether a federal statute gives rise to an
enforceable right, the Supreme Court established a three-part
test: (1) “Congress must have intended that 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 enforcement would strain
judicial competence”; and (3) “the statute must unambiguously
impose a binding obligation on the States.” Blessing v.
Freestone, 520 U.S. 329, 340-41 (1997)(citations and quotations
omitted).
13It is undisputed that DCHA may be subject to liability under
Section 1983. See generally DCHA Mot., ECF No. 18; see also Long
v. District of Columbia Hous. Auth., 166 F. Supp. 3d 16, 32-34
(D.D.C. 2016)(analyzing the plaintiff’s procedural due process
claim against DCHRA pursuant to Section 1983).
25
In 2002, the Supreme Court clarified the first factor, finding
that Congress must do more than clearly confer a benefit upon a
plaintiff, but rather must clearly confer a right upon
individuals. Gonzaga v. Doe, 536 U.S. 273, 283 (2002) (finding
that Section 1983 confers a remedy only for deprivations of
“rights, privileges, or immunities secured by the Constitution
and laws of the United States, ... not the broader or vaguer
‘benefits' or ‘interests’”). The statute at issue must therefore
be “unmistakabl[y] focus[ed] on the benefitted class.” Id. at
284. “Statutes that focus on the person regulated rather than
the individuals protected create no implication of an intent to
confer rights on a particular class of persons.” Alexander v.
Sandoval, 532 U.S. 275, 289 (2001)(quotations and citations
omitted). Therefore, to find that Section 1437p meets the first
Blessing factor, the Court must determine whether Congress
manifested an unambiguous intent to confer an individual right
via Section 1983. The burden to “demonstrate[] that a statute
confers an individual right” rests with the plaintiff. Gonzaga,
536 U.S. at 284.
Since Blessing, “[the Supreme] Court's approach to [Section]
1983 enforcement of federal statutes has been increasingly
restrictive; in the end, very few statutes are held to confer
rights enforceable under [Section] 1983.” Long v. District of
Columbia Hous. Auth., 166 F. Supp. 3d 16, 29 (D.D.C. 2016)
26
(quoting Johnson v. Hous. Auth. of Jefferson Parish, 442 F.3d
356, 360 (5th Cir. 2006)).
2. The USHA and 42 U.S.C. § 1437p
The USHA is a federal grant-in-aid program, pursuant to which
the government provides funds to local public housing
authorities (“PHAs”) and in exchange, the PHAs comply with an
assortment of conditions. Edwards v. District of Columbia, 821
F.2d 651, 652 (D.C. Cir. 1987). Among other things, the USHA
regulates rent calculation, leases, tenant selection, and
demolition or disposition of housing projects. Id. The provision
relevant here, Section 1437p, regulates the “demolition and
disposition of public housing.” 42 U.S.C. § 1437p.
The current version of Section 1437p was passed by Congress
and signed into law in 1998. See Pub. L. No. 105-276 (1998). In
Edwards v. District of Columbia, the Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) determined that a
prior version of Section 1437p did not create a federal right
such that a public housing tenant may pursue a constructive
demolition claim via Section 1983. 821 F.2d 651, 659-60
(1987)(“In short, neither the language nor the legislative
history of [Section] 1437p creates rights in public housing
tenants against the constructive demolition of their units.”).
Shortly thereafter, however, Congress amended Section 1437p to
27
legislatively overrule Edwards. 14 See Pub. L. No. 100-242 (1988);
see also H.R. Conf. Rep. 100-426, at 172 (1987)(the legislation
“contains a provision clarifying that no PHA shall take any
steps toward demolition and disposition without having satisfied
the statutory criteria. This provision is intended to correct an
erroneous interpretation of the existing statute by the United
States Court of Appeals for the D.C. Circuit in Edwards v.
District of Columbia and shall be fully enforceable by tenants
of and applicants for the housing that is threatened”).
Approximately ten years later in 1998, Congress amended the
USHA again. Relevant to the claims in the instant case, the
amendments “changed both the general standard for approval of
applications for demolition or disposition of public housing
stock, and many of the specific procedures for these actions,”
14The amendment added the following subsection: “A public housing
agency shall not take any action to demolish or dispose of a
public housing project or a portion of a public housing project
without obtaining the approval of the [HUD] Secretary and
satisfying the conditions specified in subsections (a) and
(b)[listing certification criteria].” Pub. L. No. 100-242, § 121
(1988). The implementing regulations set forth at 24 C.F.R.
970.12 provided as follows: “A PHA may not take any action to
demolish or dispose of a public housing project or a portion of
a public housing project without obtaining HUD approval under
this part. Until such time as HUD approval may be obtained, the
PHA shall continue to meet its ACC obligations to maintain and
operate the property as housing for low-income families. This
does not, however, mean that HUD approval under this part is
required for planning activities, analysis, or consultations,
such as project viability studies, comprehensive modernization
planning or comprehensive occupancy planning.” 53 Fed. Reg.
30989 (1988).
28
69 Fed. Reg. 75188 (2006), by “chang[ing] . . . the burden of
proof required for HUD approval of an application for demolition
or disposition. Rather than HUD having to independently make
certain findings, as long as the PHA certifies truthfully to the
relevant factors, HUD will approve the application.” 71 Fed.
Reg. 62354 (2006). Critically, Congress did not include the
language that had been added to overrule the Edwards decision to
clarify that the then-existing statute created a private right
of action enforceable through Section 1983. See Pub. L. No. 105-
276 (1998). The legislative history does not explain why that
provision was not included in the amended USHA. See generally
H.R. Conf. Rep. 105-789 (1998).
In 2006, HUD announced the final rules implementing the
amended statute. Relevant to the constructive demolition claim,
the regulations provide:
A PHA may not take any action to demolish or
dispose of a public housing development or a
portion of a public housing development
without obtaining HUD approval under this
part. HUD funds may not be used to pay for the
cost to demolish or dispose of a public
housing development or a portion of a public
housing development, unless HUD approval has
been obtained under this part. Until the PHA
receives HUD approval, the PHA shall continue
to meet its ACC obligations to maintain and
operate the property as housing for low-income
families. However, the PHA may engage in
planning activities, analysis, or
consultations without seeking HUD approval.
Planning activities may include project
viability studies, capital planning, or
29
comprehensive occupancy planning. The PHA must
continue to provide full housing services to
all residents that remain in the development.
24 C.F.R. § 970.25. These regulations are substantially similar
to the prior implementing regulations. Compare 24 C.F.R. §
970.12 (2005), with 24 C.F.R. § 970.25 (2018).
In promulgating this regulation, HUD noted that the
amendment that legislatively overruled Edwards had been removed
from the new version of the statute:
Former section 18(d) of the 1937 Act was
removed. That section provided that a PHA
could not “take any action” to demolish a
public housing project, or portion of a
project, without HUD approval. Similar
language in 24 CFR 970.7(a) and 970.25(a) is
designed to make certain that HUD can track
units being phased out for funding purposes.
That language is not intended to create any
private right of action.
71 Fed. Reg. 62354 (2006). Of course, HUD’s view of whether a
statute creates an enforceable right is not determinative. The
Court must evaluate whether the statute itself creates the
right. See Sandoval, 532 U.S. at 291 (confirming that the
enforceable right must exist in the statute).
3. The Current Version of Section 1437p Does Not Confer a
Federal Right Enforceable through Section 1983
DCHA argues that Section 1437p does not create an enforceable
right because the statute is directed at the HUD Secretary and
“only relates to the relationship between HUD and PHAs.” DCHA’s
30
Mot., ECF No. 18 at 20-21. It does not implicate the plaintiffs’
relationship with DCHA, as Blessing and Gonzaga require. See id.Furthermore, DCHA argues that because Congress “intentionally
removed” subsection (d) of the 1987 statute—the provision that
overruled Edwards and created a private right of action—the
“logical inference” is that Congress intended to remove the
enforceable right that it had created. Id. at 20.
The plaintiffs respond that because “no new right of action
was created by the 1987 Amendment, none was taken away when the
1998 Amendments removed the ‘new’ subsection (d) language.” Id.
at 40 (discussing H.R. Conf. Rep. 100-426 (1987)(“[the amendment
was] intended to correct an erroneous interpretation of the
existing statute”)). The plaintiffs also argue that the 1998
“comprehensive overhaul” of the USHA actually “elevated the
private rights of public housing residents.” Id. at 41-42. They
point to the General Provisions section of the 1998 amended
legislation, which declares that the policy of the United States
is to, among other things, include “appropriate accountability
to public housing residents,” and “to promote and protect the
independent and collective actions of private citizens to
develop housing and strengthen their own neighborhoods.” Id.
(quoting Pub. L. No. 105-276 (1998)). Finally, the plaintiffs
argue that HUD’s implementing regulations, which codify the
31
duties owed by PHAs to tenants, create enforceable rights as
federal law. Id. at 42.
To the Court’s knowledge, whether certain provisions of the
amended version of Section 1437p create enforceable rights has
only been considered in two cases, both outside of this
Circuit. 15
Anderson v. Jackson is the only case in which a court examined
whether the current version of Section 1437p provides a private
right of action for a constructive demolition claim. 556 F.3d
351, 358 (5th Cir. 2009). Without specifying which specific
subsections in Section 1437p were relevant to a constructive
demolition claim, the Fifth Circuit concluded that Section 1437p
did not create an enforceable right because the provision was
15There are two other cases in which courts found that Section
1437p conferred a federal right enforceable through Section
1983. However, these cases interpreted the post-1998 statute as
if it had not been amended and relied entirely on cases that
interpreted the 1987 provision. See English Woods Civic Ass'n v.
Cincinnati Metro. Hous. Auth., Civ. Case No. 1:03-186, 2004 WL
3019505 (S.D. Ohio Dec. 17, 2004); Givens v. Butler Metro. Hous.
Auth., Civ. Case No. 1:03-502, 2006 WL 3759702 (S.D. Ohio Dec.
19, 2006). Thus, this precedent is of limited use. Other courts
have encountered the issue, but were unable to resolve it. In
Long v. District of Columbia Housing Authority, Judge Contreras
was not able to determine whether Section 1437p conferred an
enforceable right because the parties’ briefing did not
adequately address this “key issue.” 166 F. Supp. 3d 16, 29
(D.D.C. 2016). The First Circuit also did not evaluate whether
Section 1437p conferred an enforceable right because the issue
was not raised on appeal and the case could be dismissed on
other grounds. See Aponte-Rosario v. Acevedo-Vila, 617 F.3d 1,
5-6 (1st Cir. 2010). However, the First Circuit noted that it
“harbored doubts” as to whether a private right existed. Id.32
directed explicitly at HUD, placing the “onus of compliance on
the federal government.” Id. Therefore, the provision did not
confer a private right of action because it was focused on the
entity regulated—HUD—and not the residents of the housing
development. Id. The Fifth Circuit also determined that it was
logical to infer that Congress intended to remove the
enforceable right that it had created when it removed subsection
(d) in 1998. Id. Ultimately, the Fifth Circuit concluded that
“the repeal of the provision added in 1987, combined with the
text and structure of the current statute, makes it at least
ambiguous as to whether Congress intended for the current
version of § 1437p to create a federal right.” Id.
In the second case, a Northern District of California district
court considered whether a specific subsection of Section 1437p
conferred an enforceable right. See Arroyo Vista Tenants
Association v. City of Dublin, Civ. Case No. 07-5794, 2008 WL
2338231 (N.D. Cal. May 23, 2008). In that case, the plaintiffs
sued a PHA for failing to notify tenants of upcoming public
housing demolition and for failing to provide them with
relocation assistance, as the PHA had certified to HUD it would
do pursuant to Subsection (a)(4) of Section 1437p. Id. at *6.
Judge Patel examined the text of the relevant subsection, which
lists the criteria that a PHA must certify in its demolition
application regarding notification and relocation assistance,
33
and found that the subsection contained “individually-focused
terminology” and “right-creating language unmistakably focused
on the benefitted class, i.e. the residents of the public
housing project who will be displaced if an application for
disposition or demolition is approved.” Id. at *11 (discussing §
1437p(a)(4)). Judge Patel was also “persuaded that Congress
intended section 1437p to create individually enforceable
rights” because the legislative history implied that the private
right of action existed prior to the 1987 amendment. Id. at *12.
Judge Patel did not consider whether there was a private right
of action available for a constructive demolition claim because
that claim was not before her. See id. at *6 (“To be clear, . .
. the court need not decide whether other subsections of 1437p .
. . also create individually enforceable rights.”).
This Court must first determine whether Congress unambiguously
intended to create a federal right. Gonzaga, 536 U.S. at 285. To
create an enforceable right, Congress must “speak[] with a clear
voice and manifest[] an unambiguous intent to confer individual
rights.” Id. at 280 (citations and quotations omitted). The
provision at issue “must be ‘phrased in terms of the persons
benefitted.’” Id. at 284 (quoting Cannon v. Univ. of Chicago,
441 U.S. 677, 692 n. 13 (1979)). If the “statute by its terms
grants no private rights to any identifiable class,” the
“question whether Congress intended to create a private right of
34
action is definitively answered in the negative.” Id. at 283-84
(citations and quotations omitted).
The Court must begin by identifying the alleged federal right
and the specific statutory provisions relevant to that right.
“Only when the complaint is broken down into manageable analytic
bites can a court ascertain whether each separate claim
satisfies the various criteria we have set forth for determining
whether a federal statute creates rights.” Blessing, 520 U.S. at
342 (internal citation omitted). After isolating the specific
claim, the court focuses on the specific statutory provision at
issue. Id. at 342, 346. Some paragraphs in a code section may
confer individually enforceable rights even if others do not.
Arroyo, 2008 WL 2338231 at *3.
The plaintiffs’ core allegation underlying this claim is that
DCHA “was prohibited from taking any action to demolish Barry
Farm without obtaining HUD’s approval, as such actions were
contrary to its obligation ‘to maintain and operate the property
as housing for low-income families’ . . . . [its] actions and
omissions have resulted in the de facto demolition of units
within Barry Farm in violation of 42 U.S.C. § 1437p and 24
C.F.R. § 970.25.” Compl., ECF No. 1 ¶ 154. The plaintiffs
acknowledge that “[t]his express prohibition is not contained in
the current text of the [USHA] itself, but in the HUD
regulations promulgated thereunder.” Pls.’ Opp’n, ECF No. 16 at
35
38. Indeed, the plaintiffs do not specify which provision of
Section 1437p creates the right that they seek to enforce.
It is well-settled that “[l]anguage in a regulation may invoke
a private right of action that Congress through statutory text
created, but it may not create a right that Congress has not.”
Sandoval, 532 U.S. at 291. Therefore, the Court considers which
specific provisions in Section 1437p could conceivably give rise
to an enforceable constructive demolition claim. There are two
subsections in Section 1437p potentially relevant to plaintiffs’
claims. Subsection (a)(1)(A) and Subsection (a)(3) provide in
relevant part:
[U]pon receiving an application by a public
housing agency for authorization, with or
without financial assistance under this
subchapter, to demolish . . . a public housing
project . . . the Secretary shall approve the
application, if the [PHA] certifies – (1) in
the case of – (A) an application proposing
demolition of a public housing project . . .,
that – (i) the project . . . is obsolete as to
physical condition, location, or other
factors, making it unsuitable for housing
purposes; and (ii) no reasonable program of
modification is cost-effective to return the
public housing project . . . to useful life;
and . . . (3) that the [PHA] has specifically
authorized the demolition or disposition in
the public housing agency plan, and has
certified that the actions contemplated in the
public housing agency plan comply with this
section[.]
36
42 U.S.C. § 1437p(a). Subsection (b) requires that the HUD
Secretary reject an application if it lacks any of the necessary
certifications. § 1437p(b).
Section 1437p(a)(1)(A) and (a)(3) are directed at the HUD
Secretary, mandating that the Secretary approve a PHA’s
demolition application if the PHA makes the required
certifications. These subsections, unlike subsection (a)(4),
which was analyzed in detail in Arroyo, lack the “right-
creating” language critical to demonstrating unambiguous
congressional intent to create an enforceable right. See
Gonzaga, 536 U.S. at 287. In Arroyo, Judge Patel found that
subsection (a)(4), which is not relevant to the constructive
demolition claim before this Court, “contains right-creating
language unmistakably focused on the benefitted class, i.e., the
residents of the public housing project.” Arroyo, 2008 WL
2338231 at *11 (discussing terminology found in the subsection
including: “each family residing in a project subject to
demolition,” “each resident to be displaced,” “residents who are
displaced,” “residents residing in the building”). In contrast,
the provisions relevant to the constructive demolition claim do
not mention the public housing residents at all. Compare §
1437p(a)(1)(A), (a)(3) with § 1437p(a)(4).
Indeed, the subsections relevant to the plaintiffs’
constructive demolition claim read like “an administrative
37
checklist” of the certifications that the PHA must make for the
Secretary to approve the application for demolition. Anderson,
556 F.3d at 358; see 42 U.S.C. § 1437p(a)(1)(A), (a)(3). The
provision is focused on the entity regulated—HUD—and not the
public housing residents. See § 1437p(a)(1)(A), (a)(3); see also
Sandoval, 532 U.S. at 289 (“Statutes that focus on the person
regulated rather than the individuals protected create no
implication of an intent to confer rights on a particular class
of persons.”)(citations and quotations omitted). While the
relevant subsections list the information that a PHA must
certify in a demolition application, they command action only
from the HUD Secretary. See § 1437p(a)(1)(A),(a)(3). “By
directing the statutory command to the Secretary of HUD,
Congress placed the onus of compliance on the federal
government.” Anderson, 556 F.3d at 357.
The relevant subsections of Section 1437p are similar to the
provision at issue in Gonzaga v. Doe. In that case, a student
sued a private university for releasing his private records in
violation of the Family Educational Rights and Privacy Act of
1974. 536 U.S. at 277. The Supreme Court concluded that there
was “no question” that the provision at issue failed to confer
enforceable rights. Id. at 287. Like the relevant subsections of
Section 1437p, the provisions lacked “rights-creating language”
and spoke “only to the Secretary of Education” in directing that
38
no funds shall be made available to an institution that
discloses private records in violation of the Act. Id. As with
the relevant subsections of Section 1437p, the focus of the
provision was “removed” from the interests of the affected
individuals, and thus did not confer an enforceable individual
entitlement under Section 1983. Id.Moreover, in both Blessing and Gonzaga, the Supreme Court
examined the “mechanism that Congress chose to provide for
enforcing [the relevant] provisions.” Gonzaga, 536 U.S. at 289;
Blessing, 520 U.S. at 344. In Gonzaga, Congress “expressly
authorized the Secretary of Education to deal with violations of
the Act,” suggesting that the remedy for violations was not
individual suits but withholding federal funds from the school.
Id. at 289. In Blessing, a violation of the Social Security Act
was not enforceable through individual litigation, but rather by
reducing the state’s federal grant funding. 520 U.S. at 344. The
Secretary could not “command the State to take any particular
action or to provide any services to certain individuals.” Id.Therefore, the provision was intended to trigger penalty
provisions, not confer an individual right. So here too. If a
PHA fails to provide the required certifications, the remedy is
HUD’s denial of the faulty application. 42 U.S.C. § 1437p(a).
Citing the “Declaration of Policy” section of the amended
USHA, the plaintiffs argue that the new statute elevates the
39
rights of public housing residents. Pls.’ Opp’n, ECF No. 16 at
41-42 (citing Pub. L. No. 105-276, § 505). However, the Court
cannot use a “blanket approach” in determining whether a statue
creates enforceable rights. Gonzaga, 536 U.S. at 294 (Stevens,
J. dissenting)(quoting Blessing, 520 U.S. at 344)). The Court
must, as it did here, examine the “precise statutory provision
at issue” for such “rights-creating” language. Id. And as
discussed above, the specific provisions at issue do not contain
rights-creating language. See 42 U.S.C. § 1437p.
The crux of the plaintiffs’ argument is that the enforceable
right existed somewhere in the statute before it was amended in
response to Edwards. Therefore, their alleged federal right
continues to exist even though the post-Edwards clarifying
provision is not in the current version of the statute. See
Pls.’ Opp’n, ECF No. 16 at 39 (“it was Congress’ view that [a
private right of action] existed prior to the 1987 Amendment,
and as such, continues to exist even though the statutory
language that was added in 1987 was later removed in 1998”).
True, Congress clearly intended to overrule Edwards to create a
private right of action when it added subsection (d) in 1987.
H.R. Conf. Rep. 100-426, at 172 (1987). However, it does not
necessarily follow that the private right of action was not
“taken away” when the provision was removed in 1998. Pls.’
Opp’n, ECF No. 16 at 40. By amending the statute and consciously
40
repealing the rights-creating language, Congress may have
intended to remove the enforceable right. Since Blessing and
Gonzaga, Congress has been “on notice” of the language required
to create an enforceable right. See Goldring v. District of
Columbia, 416 F.3d 70, 76 (D.C. Cir. 2005)(finding that a
statute did not allow shifting of expert fees because Congress
did not use the “precise language” that the Supreme Court
required). At the very least, the Court cannot conclude that
Congress manifested an “unambiguous intent” to create an
enforceable right. Gonzaga, 536 U.S. at 283.
Relying on the similarities in the implementing regulations
before and after the 1998 Amendment, the plaintiffs also argue
that the enforceable right continues to exist because the
regulations “giv[e] rise to the duty owed by a PHA to tenants to
refrain from demolition activity without first obtaining HUD
approval.” Pls.’ Opp’n, ECF No. 16 at 42-43 (discussing 24
C.F.R. § 970.25). However, as explained, a regulation cannot
create a right that Congress has not created in statutory text.
Sandoval, 532 U.S. at 291 (“Language in a regulation may invoke
a private right of action that Congress through statutory text
created, but it may not create a right that Congress has not.”).
In sum, the plaintiffs have failed to cite any statutory
language in support of their claim. See generally Pls.’ Opp’n,
ECF No. 16. They have therefore not met their burden to
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“demonstrate that [the] statute confers an individual right.”
Gonzaga, 536 U.S. at 284. In independently reviewing Section
1437p, the Court has been unable to identify any language that
creates a federal right for plaintiffs to enforce a constructive
demolition claim. As discussed, public housing tenants are not
mentioned at all in the only sections that could conceivably be
relevant to a constructive discharge claim. See 42 U.S.C. §
1437p(a)(1)(A), (a)(3). Consequently, by amending the statute
and not including the post-Edwards clarifying language or any
other rights-creating language, the Court cannot conclude that
Congress manifested an “unambiguous intent” to create an
enforceable right. Gonzaga, 536 U.S. at 283. Because the Court
finds that Congress did not intend for these specific provisions
to benefit the plaintiffs, the Court does not need to consider
the remaining two Blessing factors. 16
Because Section 1437p(a)(1)(A) and (a)(3) do not confer a
federal right to enforce a constructive discharge claim through
Section 1983, the plaintiffs have failed to state a claim
pursuant to Federal Rule of Civil Procedure 12(b)(6). Count III
is therefore DISMISSED.
16As the Court noted at the January 9, 2018 motions hearing, the
plaintiffs could have filed an action for housing code
violations in the Superior Court of the District of Columbia,
but chose not to avail themselves of that remedy. Mot. Hearing
Tr., ECF No. 25 at 95:11-97:3.
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C. The Court Declines to Exercise Supplemental Jurisdiction
Over Count IV
In Count IV, the plaintiffs allege that DCHA discriminated
against them based on their place of residence in violation of
the DCHRA. See Compl., ECF No. 1 ¶¶ 157-167. The plaintiffs
argue that DCHA has not been responding or has been responding
more slowly to maintenance requests ever since Barry Farm was
slated for redevelopment. See id. The DCHRA provides that it
“shall be an unlawful discriminatory practice to [refuse or
restrict facilities, services, repairs, or improvements for a
tenant or lessee] wholly or partially for a discriminatory
reason based on the actual or perceived . . . place of residence
or business of any individual." D.C. Code § 2-1402.21(a),(a)(4).
Upon dismissal of Counts I, II, and III, the plaintiffs’
complaint contains no remaining federal cause of action over
which this Court has original subject matter jurisdiction. 17 See
28 U.S.C. § 1331. “Whether to retain jurisdiction over pendant
... claims after dismissal of the federal claims is a matter
left to the sound discretion of the district court.” Ali Shafi
v. Palestinian Auth., 642 F.3d 1088, 1097 (D.C. Cir. 2011)
(quotations and citations omitted). The factors enumerated in 28
U.S.C. § 1367(c)—judicial economy, convenience, fairness, and
17Diversity jurisdiction is not available because the parties
are all D.C. citizens. See 28 U.S.C. § 1332.
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comity—guide the Court's discretion in determining whether to
dismiss the state law claims. Shekoyan v. Sibley Int'l, 409 F.3d
414, 423 n.4 (D.C. Cir. 2005).
In this case, the factors weigh in favor of declining to
exercise supplemental jurisdiction. Just as in Fouch v. District
of Columbia, the Court has not invested significant time or
resources on the state law claims, as compared to the
significant time that it has devoted to the federal law claims.
10 F. Supp. 3d 45, 53 (D.D.C. 2014). Furthermore, because there
are “few cases interpreting the place of residence provisions of
the D.C. Human Rights Act,” Pls.’ Opp’n, ECF No. 16 at 36,
considerations of comity and efficiency weigh in favor of
allowing D.C. courts to interpret their local law. Accordingly,
the Court declines to exercise supplemental jurisdiction.
V. Conclusion
For the reasons set forth in this Memorandum Opinion, the
defendants’ motions to dismiss the plaintiffs’ complaint are
GRANTED. A separate Order accompanies this Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
April 30, 2018
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