Supreme Court, of Maine, United States District Court, Central District of Illinois,
March 24, 1982
RITA WEEMS, ON HER OWN BEHALF AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
SAMUEL PIERCE, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Robert D. Morgan, Chief Judge.
DECISION AND ORDER
Plaintiff, a tenant, seeks injunctive and declaratory relief
to compel defendants to implement and administer the Rent
Supplement Program, 12 U.S.C. § 1701s, at Cedar Point
Apartments. Cedar Point Apartments is a housing development
subsidized under section 236 of the National Housing Act.
12 U.S.C. § 1715z-1. Alternatively, plaintiff seeks injunctive and
declaratory relief to compel the Department of Housing and
Urban Development (HUD) to implement an alternative program of
rent reduction, if HUD determines that such program would
provide greater benefits than the Rent Supplement Program.
E.g., 12 U.S.C. § 1715z-1(f)(2) and 42 U.S.C. § 1437f.
Further, plaintiff seeks an order compelling Southwest
Development Company (Southwest) and certain officers of the
Illinois Housing Development Authority (HDA) to contract with
HUD to provide rent supplement or alternative rent subsidy
payments on behalf of qualified tenants at Cedar Point.*fn1
The section 236 interest reduction contract for Cedar Point
was executed on February 27, 1973, pursuant to a preliminary
reservation of contract authority dated August 7, 1972. In
January 1973, one month prior to the execution of the Cedar
Point contract, HUD suspended section 236 and the Rent
Supplement Program, 12 U.S.C. § 1701s, as well as other federal
housing programs. See Commonwealth of Pennsylvania v. Lynn,
501 F.2d 848, 851 n. 6 (D.C. Cir. 1974). Apparently, sections 1701s
1715z-1 are still suspended as concerns contracts for section
236 interest reduction after 1973. Allen v. Pierce, No.
A-79-CA-279 (W.D.Tex., Oct. 15, 1981).
The focus of plaintiff's position is the contention that HUD
has a mandatory duty under the National Housing Act of 1934, as
amended, 12 U.S.C. § 1701 et seq., and the Housing and Urban
Development Act of 1965, 12 U.S.C. § 1701s, to implement the
Rent Supplement Program, or an alternative program, on behalf
of eligible tenants at Cedar Point Apartments. The defendants
deny that such a duty exists as pertains to them, respectively.
The matter is before the court on cross-motions for summary
It appears that if the alternative programs specifically
discussed by the parties are available or otherwise appropriate
to the situation at Cedar Point, the plaintiff's case rises or
falls on the single issue of whether assistance under any of
the programs discussed is mandated. Thus, the court addresses
the alternative programs first.
12 U.S.C. § 1715z-1(f)(2)
The court is satisfied that the "deep subsidy" (Rental
Assistance Payments) program established in section
1715z-1(f)(2) is unavailable to plaintiff, as a tenant at Cedar
Point, on the basis of the facts. That section specifically
provides that the "deep subsidy" program is available to "any
project made subject to a contract under this section after
August 22, 1974. . . ." 12 U.S.C. § 1715z-1(f)(2). Plaintiff
concedes that the Cedar Point Apartments were constructed prior
to August 22, 1974. It is clear that, initially at least,
section 1715z-1(f)(2) could only be implemented for projects
constructed after August 22, 1974.*fn2 Abrams v. Hills,
547 F.2d 1062, 1067 (9th Cir. 1976); Sicuro v. Hills, 415 F. Supp. 553
(C.D.Cal. 1976), rev'd on other grounds, 597 F.2d 1235
In 1979, HUD amended its regulations and made the deep
subsidy payments available to section 236 projects that were
completed prior to the August 1974 date. 24 C.F.R. § 236.701
(1981). While that regulation says that the "Secretary shall
enter into Rental Assistance Contracts" with such projects, it
does so only when those projects "are reprocessed with rental
assistance pursuant to an Agreement between the sponsor, the
State or local agency providing additional aid to the project,
and the Secretary." 24 C.F.R. § 236.701 (1981). The court has
seen no indication that Cedar Point has been "reprocessed with
rental assistance pursuant to an Agreement" between the
relevant parties. Further, the preamble to the regulation
clearly states that Rental Assistance Payments for older
section 236 projects was "at the discretion of the sponsors,
state or local agencies financing the projects and the
Secretary." 44 F.R. 61177 (10/24/79).
Thus, while Cedar Point technically may be eligible for
section 1715z-1(f)(2)*fn3 assistance, the court is unaware of
any facts that warrant a conclusion that the defendants have
abused their discretion in this regard. The court cannot avoid
the conclusion that it has no basis in law under the facts of
this case to require implementation of section 1715z-1(f)(2) at
Cedar Point Apartments, as an alternative to section 1701s.
42 U.S.C. § 1437f
As was true in the discussion above of the deep subsidy
payments, plaintiff does not contend that implementation of
section 1437f is mandated. Rather, plaintiff contends
that section 1437 is one alternative to implementing a rent
supplement program under 12 U.S.C. § 1701s. Thus, the court,
for the purposes of this case, need only decide if section
1437f is a viable alternative to section 1701s.
Section 1437f provides, inter alia, as follows:
"For the purpose of aiding lower-income families
in obtaining a decent place to live and of
promoting economically mixed housing,
assistance payments may be made with respect to
existing, newly constructed, and substantially
rehabilitated housing in accordance with the
provisions of this section. 42 U.S.C. § 1437f(a)
In 1979, section 1701s was amended so that HUD has the
authority to "convert" rent supplement contracts to programs
receiving assistance under section 8 of the Housing Assistance
Payments Program, codified at 42 U.S.C. § 1437f. 12 U.S.C. § 1701s(j).
Since Cedar Point does not receive assistance under
section 1701s, the court cannot compel a "conversion" from
section 1701s to section 1437f.
Further, section 1437f is replete with references to "annual
contributions contracts." Clearly, in this case no such
contract exists. While it may be true that courts, under
appropriate circumstances, may consider whether section 1437f
has been complied with (see Holbrook v. Pitt, 479 F. Supp. 990
(E.D.Wis. 1979), this court is loathe to order that parties
enter into a contract when every indication points to the fact
that the parties are either unwilling or unable to do so. It is
not the role of the courts to write contracts for parties. The
court has not been guided to any authority which would permit
court-compelled implementation of section 1437f. While section
1437f appears to be an administrative alternative to section
1701s, this court will not order participation in section 1437f
absent a clear showing that such action is somehow necessary.
12 U.S.C. § 1701s
The principal thrust of plaintiff's position is that by
participating in section 236, 12 U.S.C. § 1715z-1, the
defendants are mandated to implement the Rent Supplement
Program, 12 U.S.C. § 1701s, or an alternative.
In the National Housing Act of 1949, Congress established the
national housing goal of "the realization as soon as feasible
of . . . a decent home and suitable living environment for
every American family. . . ." 42 U.S.C. § 1441. This goal was
reiterated in 1968. 12 U.S.C. § 1701t. In keeping with this
objective, section 236 itself was enacted "for the purpose of
reducing rentals for lower income families. . . ." 12 U.S.C. § 1715z-1(a).
Additionally, the Housing and Urban Development Act
of 1965 established a rent supplement program to further
provide rental assistance for lower income tenants of
subsidized projects. 12 U.S.C. § 1701s and 1701s(h)(1)(D).
It seems clear to the court that section 1701s establishes a
duty on the part of HUD to make available rent supplement
programs on a nationwide basis. However, this general
obligation, clearly in furtherance of Congressional goals, does
not answer the question of whether a particular project must be
a part thereof. Initially, it must be noted that the court
finds no explicit mandate of implementation of section 1701s
(or any other program) at a given housing project merely
because that project receives assistance under section 236.
Thus, any duty to do so would have to come from a finding of
Congressional intent to that end, as gleaned from the various
federal housing statutes. This, of course, "is not a simple
matter of tallying the `shalls' and `mays'. . . ."
Commonwealth of Pennsylvania v. Lynn, 501 F.2d 848, 854 (D.C.
Plaintiff relies heavily on Sicuro v. Harris, 597 F.2d 1235
(9th Cir. 1979), for the proposition that implementation of
section 1701s, or an alternative, is mandatory. This court is
not persuaded by plaintiff's reading of Sicuro, and disagrees
with plaintiff's conclusion. In fact, the court does not read
Sicuro to mandate rental assistance of
any form at Cedar Point. Rather, the court reads
Sicuro merely to hold that the Secretary has "limited
discretion to decide whether to make rent supplement
payments. . . ." Sicuro v. Harris, 597 F.2d 1235, 1236 (9th
Cir. 1979). The district court was reversed and the case
remanded for the sole purpose of determining "whether the
Secretary abused her discretion when she refused to implement
the rent supplement program. . . ." Id. The court simply is not
convinced that the defendants are under a duty to provide rent
assistance at each and every project that has received the
benefit of section 236. For example, HUD, by virtue of
providing rental assistance, is not required to provide safe
and decent housing under the theory of a warranty of
habitability. See Alexander v. Dept. of Housing and Urban
Development, 555 F.2d 166 (7th Cir. 1977); Federal Property
Management Corp. v. Harris, 603 F.2d 1226 (6th Cir. 1979). The
court finds itself asking how HUD has any more of a duty to
provide rental assistance to particular projects than it does
to guarantee that federally assisted housing is maintained in
decent condition. See Allen v. Pierce, No. A-79-CA-279
(W.D.Texas, Oct. 15, 1981).
While HUD must act in a manner consistent with the national
housing goals, United States v. Winthrop Towers, 628 F.2d 1028
(7th Cir. 1980), this court does not consider
non-implementation of the Rent Supplement Program at one
particular project inconsistent with that goal. The court must
recognize that HUD has some discretion, albeit limited, in
operating the various housing programs under its authority.
Sicuro v. Hills, 415 F. Supp. 553 (C.D.Cal. 1976), rev'd,
597 F.2d 1235 (1979); Commonwealth of Pennsylvania v. Lynn,
501 F.2d 848 (D.C. Cir. 1974); Alexander v. Dept. of Housing and
Urban Development, 555 F.2d 166 (7th Cir. 1977), aff'd on other
grounds, 441 U.S. 39, 99 S.Ct. 1572, 60 L.Ed.2d 28 (1979). Cf.
United States v. Winthrop Towers, 628 F.2d 1028 (7th Cir. 1980)
(HUD has broad discretion). The court is not convinced that the
defendants have abused the discretion allowed them. It is not
without sympathy to plaintiff's situation that the court
reaches this conclusion. There just does not appear to be any
requirement that projects assisted by section 236 must also
receive rental assistance. In fact, the court notes that
section 236 is itself a form of rental assistance. 12 U.S.C. § 1715z-1.
42 U.S.C. § 1983
The thrust of this argument is that IHDA and Southwest have
a duty to apply for and implement a rent supplement program, or
an alternative, at Cedar Point, and that by failing to do so,
IHDA and Southwest have violated plaintiff's civil rights as
protected under 42 U.S.C. § 1983.
For there to have been a violation of section 1983, two
elements must be present: (1) the conduct complained of must
have been by a person acting under color of state law, and (2)
the conduct deprived a person of rights, privileges and
immunities secured by the Constitution or laws of the United
States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68
L.Ed.2d 420 (1981). The court finds no constitutional right to
low-income housing. Further, as indicated below, the court
finds no violation of plaintiff's constitutional right to due
process. Thus, the court is left to consider whether the
actions of IHDA and Southwest were in violation of federal
statutes. See Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502,
65 L.Ed.2d 555 (1980). For plaintiff to state a successful
claim of statutory violation under section 1983, there must be
a determination that (1) Congress, in enacting the statutes and
their enforcement schemes, supplanted a private remedy, and (2)
that the statutes relied on created "rights, privileges or
immunities" within the scope of section 1983. Middlesex City
Sewer Authority v. National Sea Clammers Ass'n, 453 U.S. 1, 101
S.Ct. 2615, 69 L.Ed.2d 435 (1981); Perry v. Housing Authority
of the City of Charleston, 664 F.2d 1210, (4th Cir., 1981). The
court finds no basis for a claim of statutory violation under
section 1983. See, e.g., Perry, supra; Grand Boulevard
Improvement Ass'n v.
City of Chicago, No. 80-C-4760, slip op. (N.D.Ill., Oct. 14,
IHDA is under a general obligation to act in a manner so as
to assist in providing "decent, safe, and sanitary housing
available at low and moderate rentals to persons and families
of low and moderate income." Ill.Rev.Stat. ch. 67 1/2, ¶¶ 303
and 312 (1979). It further appears that IHDA has, at the very
least, attempted to do so. See note 3, supra. However, the
court does not find an obligation in the statutes cited by
plaintiff to provide, or seek to provide, rental assistance to
each and every "low-income housing project" in Illinois.
There are no guarantees that the housing goals announced by
Congress will be achieved. Additionally, the court does not
find a "property interest in a benefit" based on a "legitimate
claim of entitlement to it." Board of Regents v. Roth,
408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 (1972). Since
this court has indicated that rent supplement is not a
mandatory obligation on the part of HUD, the court is not now
in a position to conclude that there is a statutory,
constitutional or contractual basis for plaintiff to claim an
entitlement to participation in a rental assistance program.
Thus, a hearing and notice of the type contemplated by
plaintiff would be pointless. See, e.g., Davis v. Ball Memorial
Hospital Ass'n, 640 F.2d 30 (7th Cir. 1980); Harlib v. Lynn,
511 F.2d 51 (7th Cir. 1975); Medlin v. Fickling & Walker
Development, Inc., 420 F. Supp. 811 (N.D.Ga. 1976).
Accordingly, IT IS ORDERED that plaintiff's motion for
summary judgment is DENIED, that defendants' motions for
summary judgment are ALLOWED, and that judgment shall enter in
favor of the defendants.