The Brooke Amendment to the Housing Act of 1937 imposed a
ceiling on rents charged to low-income persons living in public
housing projects, and, as later amended, provides that a low-income
family "shall pay as rent" a specified percentage of its income.
The Department of Housing and Urban Development (HUD) has
consistently considered "rent" to include a reasonable amount for
the use of utilities. Petitioners, tenants living in low-income
housing projects owned by respondent, brought suit in Federal
District Court under 42 U.S.C. § 1983, alleging that respondent
overbilled them for their utilities and thereby violated the rent
ceiling imposed by the Brooke Amendment and implementing
regulations. The District Court granted summary judgment for
respondent, holding that a private cause of action was unavailable
to enforce the Brooke Amendment. The Court of Appeals affirmed,
holding that, while the Brooke Amendment confers rights on tenants,
these rights are enforceable only by HUD.
Held:
1. Nothing in the Housing Act or the Brooke Amendment evidences
that Congress intended to preclude petitioners' § 1983 claim
against respondent. Not only are the Brooke Amendment and its
legislative history devoid of any express indication that exclusive
enforcement authority was vested in HUD, but also both
congressional and agency actions have indicated that enforcement
authority is not centralized, and that private actions were
anticipated. Neither are the remedial mechanisms provided by the
statute sufficiently comprehensive and effective to raise a clear
inference that Congress intended to foreclose a § 1983 cause of
action for the enforcement of tenants' rights secured by federal
law. Pp.
479 U. S.
423-429.
2. There is no merit to respondent's argument that the provision
for a "reasonable" allowance for utilities is too vague and
amorphous to confer on tenants an enforceable "right" within the
meaning of § 1983, and that the matter of utility allowances must
be left to the public housing authorities, subject to HUD's
supervision. The benefits Congress intended to confer on tenants
are sufficiently specific and definite to qualify
Page 479 U. S. 419
as enforceable rights under § 1983, and are not beyond the
judiciary's competence to enforce. Pp.
479 U. S.
429-430.
771 F.2d 833, reversed.
WHITE, J., delivered the opinion of the Court, in which BRENNAN,
MARSHALL, BLACKMUN, and STEVENS, JJ., joined. O'CONNOR, J., filed a
dissenting opinion, in which REHNQUIST, C. J., and POWELL and
SCALIA, JJ., joined,
post, p.
479 U. S.
432.
JUSTICE WHITE delivered the opinion of the Court.
Petitioners in this case, tenants living in low-income housing
projects owned by respondent, brought suit under 42 U.S.C. § 1983,
[
Footnote 1] alleging that
respondent overbilled them for their utilities, and thereby
violated the rent ceiling imposed by the Brooke Amendment to the
Housing Act of 1937 and the implementing regulations of the
Department of Housing and Urban Development (HUD). The District
Court,
605 F.
Supp. 532 (WD Va. 1984), and the Court of Appeals for the
Fourth Circuit, 771 F.2d 833 (1985), concluded that petitioners did
not have a cause of action under § 1983. We granted certiorari, and
now reverse.
I
Respondent is one of many public housing authorities (PHA's)
established throughout the country under the United
Page 479 U. S. 420
States Housing Act of 1937, ch. 896, 50 Stat. 888, 42 U.S.C. §
1401
et seq. (1970 ed.), to provide affordable housing for
low-income people. In 1969, the Housing Act was amended in a
fundamental respect: the Brooke Amendment, Pub. L. 91-152, § 213,
83 Stat. 389, imposed a ceiling for rents charged to low-income
people living in public housing projects, and, as later amended,
Pub. L. 97-35, § 322, 95 Stat. 400, provides that a low-income
family "shall pay as rent" a specified percentage of its income.
[
Footnote 2] HUD has
consistently considered "rent" to include a reasonable amount for
the use of utilities, which is defined by regulation as that amount
equal to or less than an amount determined by the PHA to be a
reasonable part of the rent paid by low-income tenants. [
Footnote 3]
Page 479 U. S. 421
In their suit against respondent, petitioners alleged that
respondent had overcharged them for their utilities by failing to
comply with the applicable HUD regulations in establishing the
amount of utility service to which petitioners were entitled. Thus,
according to petitioners, respondent imposed a surcharge for
"excess" utility consumption that should have been part of
petitioners' rent, [
Footnote 4]
and deprived them of their
Page 479 U. S. 422
statutory right to pay only the prescribed maximum portion of
their income as rent. [
Footnote
5] The District Court granted summary judgment for respondent
on petitioners' § 1983 claim, holding that a private cause of
action was unavailable to enforce the Brooke Amendment. The Court
of Appeals for the Fourth Circuit affirmed. Relying primarily on
two of its earlier decisions,
Perry v. Housing Authority of
Charleston, 664 F.2d 1210 (1981), and
Phelps v. Housing
Authority of Woodruff, 742 F.2d 816 (1984), the Court of
Appeals held that, while the Brooke Amendment confers certain
rights on tenants, these rights are enforceable only by HUD, not by
the individual tenant: "[T]he situation is very analogous to the
one in which a trustee [that is, HUD], not the
cestui que
trust, must bring suit." 771 F.2d at 836. [
Footnote 6]
Page 479 U. S. 423
II
Maine v. Thiboutot, 448 U. S. 1 (1980),
held that § 1983 was available to enforce violations of federal
statutes by agents of the State.
Pennhurst State School and
Hospital v. Halderman, 451 U. S. 1 (1981),
and
Middlesex County Sewerage Authority v. National Sea
Clammers Assn., 453 U. S. 1 (1981),
however, recognized two exceptions to the application of § 1983 to
remedy statutory violations: where Congress has foreclosed such
enforcement of the statute in the enactment itself and where the
statute did not create enforceable rights, privileges, or
immunities within the meaning of § 1983. In
Pennhurst, a §
1983 action did not lie because the statutory provisions were
thought to be only statements of "findings" indicating no more than
a congressional preference -- at most a "nudge in the preferred
directio[n]," 451 U.S. at
451 U. S. 19, and
not intended to rise to the level of an enforceable right. In
Sea Clammers, an intent to foreclose resort to § 1983 was
found in the comprehensive remedial scheme provided by Congress, a
scheme that itself provided for private actions, and left no room
for additional private remedies under § 1983. Similarly,
Smith
v. Robinson, 468 U. S. 992,
468 U. S.
1012 (1984), held that allowing a plaintiff to
circumvent the Education of the Handicapped Act's administrative
remedies would be inconsistent with Congress' carefully tailored
scheme, which itself allowed private parties to seek remedies for
violating federal law. Under these cases, if there is a state
deprivation of a "right" secured by a federal statute, § 1983
provides a remedial cause of action unless the state actor
demonstrates by express provision or other specific evidence from
the statute itself that Congress intended to foreclose such private
enforcement. "We do not lightly
Page 479 U. S. 424
conclude that Congress intended to preclude reliance on § 1983
as a remedy" for the deprivation of a federally secured right.
Ibid.
Here, the Court of Appeals held that the statute and the Brooke
Amendment clearly manifested congressional intention to vest in HUD
the exclusive power to enforce the benefits due housing project
tenants, and hence the intention to foreclose both a private cause
of action under the Housing Act and any private enforcement under §
1983. For the Court of Appeals, the barrier was not the lack of
statutory right or its quality or enforceability -- "the plaintiffs
under 42 U.S.C. § 1437a have certain rights," 771 F.2d at 837 --
but the fact that Congress had not intended tenants to have the
authority themselves to sue:
"HUD alone may, as
quasi trustee, take legal action,
for the right is explicitly tailored not to allow the
beneficiaries, the low cost housing tenants, to do so."
Ibid.
We disagree with the Court of Appeals' rather summary conclusion
that the administrative scheme of enforcement foreclosed private
enforcement. The Court of Appeals merely relied on one of its prior
cases which had referred to HUD's authority to enforce the annual
contributions contracts between PHA's and HUD,
see 42
U.S.C. § 1437c, to conduct audits and to cut off funds. HUD
undoubtedly has considerable authority to oversee the operation of
the PHA's. We are unconvinced, however, that respondent has
overcome its burden of showing that
"the remedial devices provided in [the Housing Act] are
sufficiently comprehensive . . . to demonstrate congressional
intent to preclude the remedy of suits under § 1983."
Sea Clammers, supra, at
453 U. S. 20.
They do not show that "Congress specifically foreclosed a remedy
under § 1983."
Smith v. Robinson, supra, at
468 U. S.
1004-1005, n. 9. Not only are the Brooke Amendment and
its legislative history devoid of any express indication that
exclusive enforcement authority was vested in HUD, but there have
also been both congressional and agency actions indicating that
Page 479 U. S. 425
enforcement authority is not centralized, and that private
actions were anticipated. Neither, in our view, are the remedial
mechanisms provided sufficiently comprehensive and effective to
raise a clear inference that Congress intended to foreclose a §
1983 cause of action for the enforcement of tenants' rights secured
by federal law.
In 1981, Congress changed the maximum percentage of income that
could be paid as "rent" from 25 percent to 30 percent. Omnibus
Budget Reconciliation Act of 1981, Pub. L. 97-35, § 322, 95 Stat.
400. In making this change, Congress gave the Secretary of HUD
discretion to raise tenants' rent incrementally over a 5-year
period to ease the burden on low-income tenants during the
transition. § 322(i), 95 Stat. 404. To avoid a potential multitude
of litigation over the way in which the Secretary implemented the
phased-in rate increase, Congress specifically made the Secretary's
decisions effectuating the phase-in immune from judicial review. §
322(i)(3). At congressional hearings in which this specific and
limited exception to judicial review was discussed, HUD
representatives explained that this exception had no effect on
tenants' ability to enforce their rights under the Housing Act in
federal court other than the limited exception concerning the
phase-in. [
Footnote 7]
Apparently dissatisfied with even a temporary
Page 479 U. S. 426
preclusion of judicial review, Congress repealed it two years
later. Pub. L. 98-181, § 206(e), 97 Stat. 1181.
Also at odds with the holding that HUD has exclusive authority
to enforce the Brooke Amendment is the enactment in 1985 of 42
U.S.C. § 1437d(k) (1982 ed., Supp. III), which directed HUD to
continue its longstanding regulatory requirement that each PHA
provide formal grievance procedures for the resolution of tenant
disputes with the PHA arising out of their lease or PHA
regulations. These procedures, which Congress ordered continued,
include informal and formal hearings and administrative appeals,
conducted within each PHA by impartial decisionmakers, to consider
adverse decisions taken against tenants by the PHA. Congress' aim
was to provide a "decentralized, informal, and relatively
nonadversarial administrative process" for resolving
tenant-management disputes.
Samuels v. District of
Columbia, 248 U.S.App.D.C. 128, 133, 770 F.2d 184, 189 (1985).
The procedures are open to individual grievances, but not to class
actions.
See 24 CFR § 966.51(b) (1986). HUD itself has
never provided a procedure by which tenants could complain to it
about the alleged failures of PHA's to abide by their annual
contribution contracts, the Brooke Amendment, or HUD regulations;
nor has it taken unto itself the task of reviewing PHA grievance
procedure decisions. Moreover, § 966.57(c) of HUD's grievance
procedure regulations provides that a decision terminating a
grievance proceeding shall in no way affect the rights of a tenant
either to seek "trial
de novo or judicial review in any
judicial proceedings, which may thereafter be brought in the
matter." HUD thus had no thought that its own supervisory powers or
the grievance system that it had established foreclosed resort to
the courts by tenants who claimed that a PHA was not observing the
commands of the Brooke Amendment.
Page 479 U. S. 427
There is other evidence clearly indicating that, in HUD's view,
tenants have the right to bring suit in federal court to challenge
housing authorities' calculations of utility allowances. Among
HUD's 1982 proposed regulations was § 865.476(d), 47 Fed.Reg.
35249, 35254 (1982), which would have confined tenant utility
allowance challenges to the procedures available in state court.
The final regulation, however, contained no such limitation, and
contemplated that tenants could challenge PHA actions in federal,
as well as state, courts. 24 CFR § 965.473(e) (1985). As the
comment accompanying the final regulation explained, the proposal
to limit challenges to state court actions had been abandoned. The
final "provision does not preclude Federal court review." 49
Fed.Reg. 31403 (1984). HUD's opinion as to available tenant
remedies under the Housing Act is entitled to some deference by
this Court.
See Jean v. Nelson, 472 U.
S. 846,
472 U. S. 865
(1985);
Chevron U.S.A. Inc. v.
Natural Resources Defense Council, Inc.,
467 U. S. 837,
467 U. S. 844
(1984).
In both
Sea Clammers and
Smith v. Robinson.,
the statutes at issue themselves provided for private judicial
remedies, thereby evidencing congressional intent to supplant the §
1983 remedy. There is nothing of that kind found in the Brooke
Amendment or elsewhere in the Housing Act. Indeed, the only private
remedy provided for is the local grievance procedures which the Act
now requires. These procedures are not open to class grievances;
and even if tenants may grieve about a PHA's utility allowance
schedule, which petitioners dispute, [
Footnote 8] the existence of a state administrative
Page 479 U. S. 428
remedy does not ordinarily foreclose resort to § 1983.
See
Patsy v. Board of Regents of Florida, 457 U.
S. 496,
457 U. S. 516
(1982).
The Court of Appeals and respondents rely on HUD's authority to
audit, enforce annual contributions contracts, and cut off federal
funds. But these generalized powers are insufficient to indicate a
congressional intention to foreclose § 1983 remedies.
Cf.
Cannon v. University of Chicago, 441 U.
S. 677,
441 U. S.
704-707 (1979);
Rosado v. Wyman, 397 U.
S. 397,
397 U. S. 420
(1970). HUD has the authority to audit, but it does not do so
frequently, and its own Handbook requires audits only every eight
years. [
Footnote 9] There are
no other mechanisms provided to enable HUD to effectively oversee
the performance of the some 3,000 local PHA's across the country.
The statute does not require, and HUD has not provided, any formal
procedure for tenants to bring to HUD's attention alleged PHA
failures to abide by the Brooke Amendment and HUD regulations.
Hence, there will be little occasion to exercise HUD's power to sue
PHA's to enforce the provisions of the
Page 479 U. S. 429
annual contributions contracts. Respondent asserts PHA's must
annually file their utility allowance schedules with HUD, and that
HUD must approve them, but the final regulations eliminated HUD's
duty to approve these schedules before their effective date. 24 CFR
§ 965.473(d) (1986). Review of the schedules would be done in the
course of audits or reviews of PHA operations. [
Footnote 10]
Lastly, it is said that tenants may sue on their lease in state
courts, and enforce their Brooke Amendment rights in that
litigation. Perhaps they could, but the state court remedy is
hardly a reason to bar an action under § 1983, which was adopted to
provide a federal remedy for the enforcement of federal rights.
In sum, we conclude that nothing in the Housing Act or the
Brooke Amendment evidences that Congress intended to preclude
petitioners' § 1983 claim against respondent.
III
Although the Court of Appeals read the Brooke Amendment as
extending to housing project tenants certain rights enforceable
only by HUD, respondent asserts that neither the Brooke Amendment
nor the interim regulations gave the
Page 479 U. S. 430
tenants any specific or definable rights to utilities, that is,
no enforceable rights within the meaning of § 1983. We perceive
little substance in this claim. The Brooke Amendment could not be
clearer: as further amended in 1981, tenants could be charged as
rent no more and no less than 30 percent of their income. This was
a mandatory limitation focusing on the individual family and its
income. The intent to benefit tenants is undeniable. Nor is there
any question that HUD interim regulations, in effect when this suit
began, expressly required that a "reasonable" amount for utilities
be included in rent that a PHA was allowed to charge, an
interpretation to which HUD has adhered both before and after the
adoption of the Brooke Amendment. HUD's view is entitled to
deference as a valid interpretation of the statute, and Congress,
in the course of amending that provision, has not disagreed with
it. [
Footnote 11]
Page 479 U. S. 431
Respondent nevertheless asserts that the provision for a
"reasonable" allowance for utilities is too vague and amorphous to
confer on tenants an enforceable "right" within the meaning of §
1983, and that the whole matter of utility allowances must be left
to the discretion of the PHA, subject to supervision by HUD. The
regulations, however, defining the statutory concept of "rent" as
including utilities, have the force of law,
Chrysler Corp. v.
Brown, 441 U. S. 281,
441 U. S.
294-295 (1979), they specifically set out guidelines
that the PHAs
Page 479 U. S. 432
were to follow in establishing utility allowances, and they
require notice to tenants and an opportunity to comment on proposed
allowances. In our view, the benefits Congress intended to confer
on tenants are sufficiently specific and definite to qualify as
enforceable rights under
Pennhurst and § 1983, rights that
are not, as respondent suggests, beyond the competence of the
judiciary to enforce. [
Footnote
12]
The judgment of the Court of Appeals is accordingly
Reversed.
[
Footnote 1]
"[42 U.S.C.] § 1983. Civil action for deprivation of
rights:"
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for redress."
[
Footnote 2]
The Brooke Amendment in its present form reads as follows:
"§ 1437a. Rental payments"
"(a) Families included; amount"
"Dwelling units assisted under this chapter shall be rented only
to families who are lower income families at the time of their
initial occupancy of such units. Reviews of family income shall be
made at least annually. A family shall pay as rent for a dwelling
unit assisted under this chapter (other than a family assisted
under section 1437f(o) of this title) the highest of the following
amounts, rounded to the nearest dollar:"
"(1) 30 per centum of the family's monthly adjusted income;"
"(2) 10 per centum of the family's monthly income; or"
"(3) if the family is receiving payments for welfare assistance
from a public agency and a part of such payments, adjusted in
accordance with the family's actual housing costs, is specifically
designated by such agency to meet the family's housing costs, the
portion of such payments which is so designated."
42 U.S.C. § 1437a (1982 ed. and Supp. III).
The language of the original Brooke Amendment required that
low-income tenant's rent "may not exceed one-fourth of the family's
income, as defined by the Secretary."
[
Footnote 3]
The complaint was filed December 8, 1982. The regulations in
effect at that time defined "contract rent," that is, the amount
actually charged to low-income tenants, as follows:
"Contract rent means the rent charged a tenant for the use of
the dwelling accommodation and equipment (such as ranges and
refrigerators but not including furniture), services, and
reasonable amounts of utilities determined in accordance with the
PHA's [public housing authority's] schedule of allowances for
utilities supplied by the project. Contract rent does not include
charges for utility consumption in excess of the public housing
agency's schedule of allowances for utility consumption, or other
miscellaneous charges. . . ."
24 CFR § 860.403 (1982).
The relevant regulations were originally promulgated as an
interim rule on September 9, 1980. 46 Fed.Reg. 59502 (1980). As
there noted, HUD had previously regulated the way in which utility
charges were dealt with in HUD's Local Housing Authority Management
Handbook, pt. 2, § 9, Controlling Utility Consumption and Costs
(1963).
Ibid. On August 13, 1982, HUD published a proposed
rule to amend the interim regulations, commenting as follows with
respect to the inclusion of utilities in the calculation of
rent:
"In administering the low-income public housing program under
the United States Housing Act of 1937,
as amended, HUD
historically has considered 'rent' to include shelter cost plus a
reasonable amount for utilities. As a result, even prior to
adoption of the 'Brooke Amendment' in 1969 (limiting the amount of
'rent' chargeable to public housing tenants to a stated percentage
of income, then 25 percent), HUD provided for a system under which
allowances were established as part of the rent schedule showing
the amounts of electricity in kilowatt-hours to which tenants were
entitled."
47 Fed.Reg. 35249-35250 (1982).
The regulation was finally amended on August 7, 1984. 49
Fed.Reg. 31399 (1984). The Supplementary Information section of the
published regulation contains a discussion which underscores the
fact that HUD has traditionally treated "rent" to include a
reasonable amount of utility usage.
Id. at 31400. That
section also provides an overview of the development of the utility
regulations at issue here.
The dissent may have a different view, but to us it is clear
that the regulations gave low-income tenants an enforceable right
to a reasonable utility allowance, and that the regulations were
fully authorized by the statute.
[
Footnote 4]
The applicable regulations, 24 CFR § 865.470
et seq.
(1983), require housing authorities like respondent to,
inter
alia, recalculate their utility allowances on the basis of
current data, to set the allowances in such a fashion that 90
percent of a particular authority's dwelling units do not pay
surcharges, and to review tenant surcharges quarterly and consider
revision of the allowances if more than 25 percent of any category
of units are being surcharged.
[
Footnote 5]
The complaint also contained a claim against respondent for
breach of paragraph 4 of the standard lease agreement
providing:
"Utilities: Management Agent agrees to furnish at no charge to
the Resident the following utilities as reasonably necessary: hot
and cold water, gas for cooking, and electricity for lighting and
general household appliances and heat at appropriate times of the
year, and also range and refrigerator. Resident will be required to
pay for all excess consumption of utilities above the monthly
allocated amount as developed by the Authority and determined by
the individual check meter servicing the leased unit. The schedule
of allocations and charges for excess consumption is posted on the
bulletin board of each Housing Development office."
Record, Exh. H.
The original complaint asked for both injunctive relief and
recovery of whatever amount respondent allegedly overcharged
petitioners. Pursuant to new HUD regulations, respondent revised
its allowances for reasonable utility use. Petitioners are now
seeking only recovery of alleged past improper charges. Brief for
Petitioners 8.
Petitioners asserted that, while their right to sue on the lease
derives from state law, the lease claim is controlled by federal
law, and hence is within the jurisdiction of the federal courts
under 28 U.S.C. § 1331.
[
Footnote 6]
The court acknowledged that its conclusion that the Brooke
Amendment created no enforceable rights in petitioners conflicted
with the Second Circuit's decision in
Beckham v. New York City
Housing Authority, 756 F.2d 10 74 (1985). The court stated,
however, that this decision "must yield to the authority of
Perry and
Phelps, supra, from our own circuit."
771 F.2d at 837, n. 8.
[
Footnote 7]
In response to a question by Congressman Vento concerning the
reason for the exception to judicial review, a representative of
HUD explained that this limited exception had no effect on tenants'
ability to protect their rights other than limiting their right to
challenge the Secretary's actions in implementing the phase-in:
"MR. VENTO. Well, has this been a special problem? Usually we
don't exempt people from going to the district court unless there
has been some problem that has developed. Has there been that type
of a problem in the past?"
"MR. HOVDE. I will call upon Mr. Hipps for a response."
"MR. HIPPS. In direct answer to your question, yes, we have had
a lot of litigation involving tenants rights over the past several
years. The provision that you have raised a question about is
addressed only at the 5-year phase-in of the increase, and is not
intended, as I understand, to eliminate any tenant's rights beyond
that point."
Hearings on Housing and Community Development Amendments before
the Subcommittee on Housing and Community Development of the House
Committee on Banking, Finance and Urban Affairs, 97th Cong., 1st
Sess., pt. 1, p. 654 (1981).
[
Footnote 8]
Petitioners assert that the grievance mechanism is not available
for challenges to the general utility allowance schedules. They
rely on HUD statements to this effect, the first in 1984 in
connection with the issuance of formal regulations, 49 Fed.Reg.
31407:
"Some legal services organizations recommended that grievance
procedures should apply to the utility allowance provisions.
Grievance procedures under former Part 866 (now Part 966) apply to
individual, not class, grievances, so that challenges to the
general utility allowance schedules would be precluded. The
Department believes that procedures to be followed on claims for
individual relief under § 965.479 should be left to PHA
determination."
The second statement by HUD was in connection with proposing new
grievance hearing regulations in 1986, 51 Fed.Reg. 26528:
"(a)
Purpose of informal hearing. (1) The grievance
procedure shall provide the Family an opportunity for an informal
hearing to review proposed PHA adverse action. The purpose of the
informal hearing shall be to review whether the proposed adverse
action by the PHA is in accordance with the lease, or with the law,
HUD regulations or PHA rules."
"(2) PHA action or nonaction concerning general policy issues or
class grievances (including determination of the PHA's schedules of
allowances for PHA-furnished utilities or of allowances for
Tenant-purchased utilities) does not constitute adverse action by
the PHA, and the PHA is not required to provide the opportunity for
a hearing to consider such issues or grievances."
[
Footnote 9]
United States Dept. of Housing and Urban Development, Field
Office Monitoring of Public Housing Agencies (PHAs) 6-1 (Handbook
7460.7, Rev. Sept. 9, 1985).
[
Footnote 10]
HUD explained, 49 Fed.Reg. 31403 (1984), as follows:
"In a related issue, legal service organizations expressed
concern about the absence of any HUD review of the PHA's allowance
determination."
"HUD's regulatory reform goals include the removal of
unnecessary reviews and approvals of actions by responsible parties
having equal or greater information at hand. This is particularly
appropriate in the case of public housing in view of the '37 Act's
injunction that"
"[I]t is the policy of the United States to vest in the local
public housing agencies the maximum amount of responsibility in the
administration of their housing programs."
"42 U.S.C. 1437. The Department believes that the definition of
standards in § 965.476, combined with the record and notice
provisions added to § 965.473, should adequately assure the
reasonableness of PHA determinations so as to obviate the necessity
or usefulness of HUD review and approval before implementation of
PHA-determined allowances."
[
Footnote 11]
We thus reject respondent's argument that the Brooke Amendment's
rent ceiling applies only to the charge for shelter, and that the
HUD definition of rent as including a reasonable charge for
utilities is not authorized by the statute.
The dissent misconstrues our discussion of the Omnibus Budget
Reconciliation Act of 1981 and the enactment of the grievance
procedures as codified at 42 U.S.C. § 1437d(k) (1982 ed., Supp.
III). Our conclusion that low-income tenants have a right to a
reasonable amount of utilities does not come from these two
congressional Acts. Rather, these Acts and their history show that
Congress did not close the courthouse door to low-income tenants by
establishing an alternative enforcement mechanism.
The dissent is also quite wrong in concluding that HUD's
"regulations indicate that, while it did not have the authority
finally to resolve the question, HUD viewed utilities
determinations as a matter for state, rather than federal
courts."
Post at
479 U. S. 440.
It is true that the 1982 proposed regulations would have confined
review of PHA utility allowances to state forums, but it was never
indicated that the governing law was state, rather than federal,
law; and in the final regulations, even the provision making PHA
determinations final unless overturned in state courts was deleted.
HUD thus abandoned any attempt to foreclose resort to federal
courts, and surely negated any conclusion that PHA determinations
were not judicially reviewable. The Supplemental Information
section to HUD's final regulations contains the following revealing
discussion, 49 Fed.Reg. 31403 (1984):
"
C. Review of PHA Decisions by State Courts"
"The National Housing Law Project and other legal service groups
challenged, as illegal, proposed § 865.476(d), which would make PHA
determinations of allowances and revisions thereof final unless
found, upon review pursuant to such procedures as may be available
under State or local law, to be arbitrary or capricious."
"The commenters challenged HUD's power (1) to prescribe a
standard of review for State courts, and (2) to divest Federal
court of jurisdiction over cases involving questions of compliance
with Federal statutes and regulations."
"State procedures for review of actions by administrative bodies
created under State law frequently have provided a forum for review
of agency determinations that involve questions of Federal law.
Such State law proceedings may be more accessible to public housing
tenants in some localities than a Federal court. Moreover, the
Department believes that State courts are fully competent to review
determinations by authorities created under State law."
"Nevertheless, the Department also recognizes that some
plaintiffs may prefer to challenge PHA determinations in Federal,
rather than State, court, and that the Department's power to
preclude access to Federal court is doubtful. The Department also
recognizes that not all States may have adopted procedures
providing for judicial review of administrative action.
Accordingly, this provision (transferred to § 965.473(e)) has been
revised (i) to expand the standard of review to 'arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance
with law' (
compare Section 706 of the Administrative
Procedure Act, 5 U.S.C. 706(2)), and (ii) to state that such
standard of review will govern 'except where a different standard
of review is applicable in review procedures governed by applicable
State law.' This provision does not preclude Federal court
review."
[
Footnote 12]
Petitioners also argue that the District Court has subject
matter jurisdiction to consider their breach-of-lease claims, given
the federal nature of the rights contained in their leases. In
light of our decision that petitioners have a § 1983 claim, the
District Court can certainly exercise pendent jurisdiction over
petitioners' breach-of-lease claims. We offer no opinion as to
whether the District Court has jurisdiction to consider only their
breach-of-lease claims, irrespective of their § 1983 claim.
JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE, JUSTICE POWELL,
and JUSTICE SCALIA join, dissenting.
As the Court's opinion acknowledges, there must be a deprivation
"of a
right' secured by a federal statute" before 42 U.S.C. §
1983 provides a remedial cause of action. Ante at
479 U. S. 423.
Petitioners' claim of a federally enforceable "right" raises three
distinct questions. The first question is whether the Brooke
Amendment to the Public Housing Act of 1937, Pub.L. 91-152, § 213,
83 Stat. 389 (1969), itself has created an enforceable right to
utilities. The second is whether, in the absence of any indication
of congressional intent to create a right to utilities,
administrative regulations can create such a right. The third is
whether, assuming administrative regulations alone could create a
right enforceable in a § 1983 action, the regulations at issue in
this case have established standards capable of judicial
interpretation and application.
Whether a federal statute confers substantive rights is not an
issue unique to § 1983 actions. In implied right of action
Page 479 U. S. 433
cases, the Court also has asked, since
Cort v. Ash,
422 U. S. 66,
422 U. S. 78
(1975), whether "the statute create[s] a federal right in favor of
the plaintiff." In determining whether a statute creates
enforceable rights, the "key to the inquiry is the intent of the
Legislature."
Middlesex County Sewerage Authority v. National
Sea Clammers Assn., 453 U. S. 1,
453 U. S. 13
(1981). We have looked first to the statutory language to determine
whether it is "phrased in terms of the persons benefited,"
Cannon v. University of Chicago, 441 U.
S. 677,
441 U. S. 692,
n. 13 (1979), and is cast in mandatory, rather than precatory,
terms.
See Pennhurst State School and Hospital v.
Halderman, 451 U. S. 1,
451 U. S. 18
(1981). We then have reviewed the legislative history of the
statute and other traditional aids of statutory interpretation to
determine congressional intent to create enforceable rights.
See Sea Clammers, supra, at
453 U. S. 13.
Petitioners in this case assert that the Brooke Amendment
creates an enforceable right to have "reasonable utilities"
included in the limitation on the "rent" they may be charged by a
public housing authority (PHA). The Brooke Amendment,
as
amended, Pub. L. 97-35, § 322, 95 Stat. 400, provides that a
low-income family "shall pay as rent" a specified percentage of its
monthly income for publicly assisted housing. The Court concludes
that the statute's language satisfies the standards we have used in
ascertaining an intent to create substantive rights: it is phrased
in mandatory, and not merely precatory, terms, and it places an
unmistakable focus on the benefited class.
Ante at
479 U. S. 430.
The statute also is phrased using right-creating language, rather
than being framed "simply as a general prohibition or a command to
a federal agency."
University Research Assn. v. Coutu,
450 U. S. 754,
450 U. S. 772
(1981).
Assuming, as the Court finds, that Congress intended to create
an enforceable right to a limitation on the amount PHA's may charge
"as rent," the question remains whether petitioners' claim to
reasonable utilities comes within the
Page 479 U. S. 434
scope of the right that Congress intended to confer. On the face
of the statute, there is nothing to suggest that Congress intended
that utilities be included within the statutory entitlement. "Rent"
in ordinary usage simply means consideration paid for the use or
occupation of property, and the statute does not suggest
congressional intent to adopt a broader construction of the
term.
The legislative history of the Brooke Amendment, far from
indicating an intent to create a statutory right to utilities,
shows that Congress was presented with, and ultimately rejected, a
proposal to create an enforceable right to "reasonable utilities."
As originally reported out of the Senate, Senator Brooke's bill
enumerated a range of shelter costs in addition to "rent" that were
to be subject to the statutory rent limit. The Senate bill provided
that the term "rental" was to include
"the proportionate share attributable to the unit of the total
shelter costs to be borne by the tenants in a low-rent housing
project,
including any separate charges to a tenant for
reasonable utility use, and for public services and
facilities."
115 Cong.Rec. 26726 (1969) (emphasis added). In the bill
reported out of Conference, however, this reference to utilities
was deleted. The Conference Report stated that the substitute bill
"retain[ed] the basic concept" of the Senate bill by "generally
limiting rents that may be charged to no more than 25% of [the
tenant's] income," but it included no reference to the utilities
charges provided for in the Senate bill.
See H.R.Conf.Rep.
No. 91-740, p. 30 (1969). In adopting the Brooke Amendment,
therefore, Congress deliberately refrained from including "charges
to a tenant for reasonable utility use and for public services and
facilities" within the statutory entitlement.
The Court does not find that the statute's language or
legislative history supports its conclusion that Congress intended
to create a statutory entitlement to reasonable utilities. Instead,
the Court concludes that the Department of Housing and Urban
Development (HUD) has so interpreted
Page 479 U. S. 435
the statute, and that "HUD's view is entitled to deference as a
valid interpretation" of the Brooke Amendment.
Ante at
479 U. S. 430.
In my view, HUD's treatment of utilities since enactment of the
Brooke Amendment will not bear the construction that the Court
places upon it. Before passage of the Brooke Amendment, HUD's Local
Housing Authority Management Handbook, pt. 2, § 9, Controlling
Utility Consumption and Costs (1963), which provided guidelines for
PHA's to use in calculating utility allowances, had established "no
mandatory Federal standards, leaving the establishment of
Allowances entirely to local discretion." 45 Fed.Reg. 59502 (1980).
After enactment of the Brooke Amendment, HUD did not immediately
promulgate new regulations fixing the amount of utilities that
should be provided under the statute. Instead, the Handbook
remained in effect for the next 11 years, until 1980, with the
PHA's retaining complete discretion in the establishment of
utilities allowances. Thus, HUD viewed the amount of utilities to
be included under the Brooke Amendment's rental limitation as a
question for local housing authorities -- it was not a matter of
federal entitlement.
The 1980 interim regulations on which petitioners rely do not
reflect a different understanding on the part of the agency.
[
Footnote 2/1] The reason given for
adopting a uniform federal
Page 479 U. S. 436
rule was administrative: it would be in "the best interests of
the program," because it would "alleviate confusion and
controversy" arising under the nonmandatory regime. 45 Fed.Reg.
59502 (1980). Noting that "many PHAs have been establishing utility
allowances based on the HUD Guide," the agency sought to develop a
uniform standard following "the general concepts" of the 1963
Handbook.
Ibid. However, the uniform standards promulgated
in the interim regulations came under severe criticism,
see 47 Fed.Reg. 35249, 35250 (1982), and, less than two
years after adoption of the interim regulations, HUD enacted
proposed regulations designed to return "broad administrative
latitude" to the PHA's in setting utility allowances.
See
id. at 35252. The proposed regulations retained a general
standard of
"reasonable consumption of utilities by an energy-conservative
household of modest circumstances consistent with the requirements
of a safe, sanitary, and healthful living environment."
Id. at 35251. In light of HUD's experience with the
interim regulations, however, HUD deemed it "inadvisable" to
"attempt to prescribe more restrictively the means by which
individual PHAs must realize the general standards for allowances
described above."
Id. at 35251-35252. HUD also indicated that the
mandatory standards in the interim regulations may have been
"inconsistent with the general imperative of the United States
Housing Act of 1937, to 'vest in local public housing agencies the
maximum amount of responsibility in
Page 479 U. S. 437
the administration of their housing program.'"
Id. at 35252.
In 1984, HUD enacted its final utilities regulations, which
follow the approach of the proposed regulations and replace the
more specific requirements of the interim regulations with a
"reasonable utilities" standard. In establishing allowances, PHA's
should consider a host of factors such as climatic location; air
temperature to be maintained in the dwelling unit; the temperature
of domestic hot water, measured at the tap; and the physical
condition of the housing project.
See 24 CFR § 965.476(d)
(1985). Apart from these general guidelines, the regulations
"ves[t] full responsibility for setting and revising allowances in
accordance with the prescribed standards in the [PHA's]." 49
Fed.Reg. 31399, 31400 (1984). Thus, HUD currently chooses to give
the PHA's wide discretion in setting utilities allowances; from
1980-1984, it gave the PHA's somewhat less discretion; and from
1969-1980, it left the issue entirely in the hands of the PHA's.
The reasons HUD has given for these changes are ministerial, not
interpretive. HUD's treatment of utilities since enactment of the
Brooke Amendment shows that the agency does
not view the
statute as creating an enforceable right to an ascertainable amount
of utilities: the degree to which utilities are fixed by regulation
has been a matter of agency discretion, not statutory
entitlement.
In the absence of any indication in the language, legislative
history, or administrative interpretation of the Brooke Amendment
that Congress intended to create an enforceable right to utilities,
it is necessary to ask whether administrative regulations
alone could create such a right. This is a troubling issue
not briefed by the parties, and I do not attempt to resolve it
here. The Court's questionable reasoning that, because, for four
years, HUD gave somewhat less discretion to the PHA's in setting
reasonable utilities allowances, HUD understood Congress to have
required enforceable utility standards, apparently allows
it to sidestep the
Page 479 U. S. 438
question. I am concerned, however, that, lurking behind the
Court's analysis, may be the view that, once it has been found that
a statute creates some enforceable right,
any regulation
adopted within the purview of the statute creates rights
enforceable in federal courts, regardless of whether Congress or
the promulgating agency ever contemplated such a result. Thus,
HUD's frequently changing views on how best to administer the
provision of utilities to public housing tenants becomes the focal
point for the creation and extinguishment of federal "rights." Such
a result, where determination of § 1983 "rights" has been unleashed
from any connection to congressional intent, is troubling
indeed.
Even assuming that agency regulations of the sort at issue here
could create rights enforceable in a § 1983 action, the temporary
regulations involved in this case are not capable of judicial
enforcement. The provisions remained subject to the exercise of
wide discretion by the local housing authorities, thereby rendering
it difficult or impossible to determine whether a violation
occurred. Moreover, the regulations were cast as overall standards,
rather than as a method for determining the utilities rates for
particular tenants, making it impossible to fashion appropriate
relief for individual plaintiffs. Thus, under the interim
regulations, PHAs were to establish allowances which could
"reasonably be expected" to meet the requirements of "about 90%" of
the dwelling units in a particular "dwelling unit category." In
making this calculation, the housing authorities were to exclude
from consideration cases of "unusual individual circumstances,"
"wasteful practices," or use of major appliances. Adjustments also
could be made, "if warranted," for "abnormal weather conditions or
other changes in circumstances affecting utility consumption."
See 24 CFR § 865.477 (1981). The housing authorities were
to revise their utility allowances if more than 25% of the tenants
in a particular dwelling unit category were being surcharged, if
there was "no reason of a nonrecurring nature (such as weather
extremes) to account for this," and if
Page 479 U. S. 439
it was otherwise "appropriate." § 865.480(b). Provisions such as
these, which provide no basis for calculating an individual
tenant's utility allowance or for providing a remedy if there is a
violation, simply defy judicial enforcement.
The Court's only response to the legislative and regulatory
history of the utility regulations is to suggest that other actions
taken by Congress and HUD show that they were of the view that
low-income tenants could resort to federal courts when claiming
that a PHA violated the utility regulations.
See ante at
479 U. S.
424-427,
479 U. S. 430,
n. 11. That is simply not the case. The three actions by Congress
and HUD identified in the Court's opinion are the congressional
hearings preceding the Omnibus Budget Reconciliation Act of 1981,
Pub. L. 97-35, § 322, 95 Stat. 400; the 1985 enactment of 42 U.S.C.
§ 1437d(k) (1982 ed., Supp. III) and HUD's implementing
regulations, 24 CFR § 966.50
et seq. (1986); and HUD's
comments accompanying its final utilities regulations, 49 Fed.Reg.
31399 (1984). The hearings preceding the 1981 Act merely address
the effect of that legislation on tenants' general ability to
enforce their rights under the Housing Act; they provide no
assistance in determining whether those rights include reasonable
utilities. As for the enactment of § 1437d(k), HUD has consistently
taken the view, as the Court acknowledges, that "the grievance
mechanism is not available for challenges to the general utility
allowance schedules."
Ante at
427 U. S. 427,
n. 8. HUD's comments in 1986 in connection with proposing new
grievance hearing regulations do not suggest that HUD believes
low-income tenants have an enforceable right to reasonable
utilities:
"PHA action or nonaction concerning general policy issues or
class grievances (including determination of the PHA's schedules of
allowances for PHA-furnished utilities or of allowances for
Tenant-purchased utilities) does not constitute adverse action by
the PHA, and the PHA is not required to provide the opportunity for
a hearing
Page 479 U. S. 440
to consider such issues or grievances."
51 Fed.Reg. 26528 (1986).
Moreover, HUD's proposed utilities regulations in 1982 stated
that a PHA's determination of utilities allowances was subject to
review "pursuant to such procedures as may be available under State
or local law." 47 Fed.Reg. 35249, 35254. In 1984, responding to
comments challenging its "power . . . to divest Federal courts of
jurisdiction," 49 Fed.Reg. 31399, 31403, HUD amended the provision
to state that PHA allowance determinations are valid unless found
to be arbitrary, capricious, an abuse of discretion, "or otherwise
not in accordance with law." 24 CFR § 965.473(e) (1986). The
agency's explanation for this change was that "the Department's
power to preclude access to Federal court is doubtful." 49 Fed.Reg.
31403 (1984). Thus, HUD did not express the view that there is a
right to reasonable utilities enforceable in federal courts; it
simply recognized that it lacked authority to determine federal
jurisdiction. Indeed, the regulations indicate that, while it did
not have the authority finally to resolve the question, HUD viewed
utilities determinations as a matter for state, rather than
federal, courts.
In my view, petitioners do have a remedy in seeking to secure
utilities from respondent: they may sue on their leases. [
Footnote 2/2] Pursuant to its authority to
ensure the lower rental character of publicly assisted housing,
see 42 U.S.C. §§ 1437c and
Page 479 U. S. 441
1437d (1982 ed. and Supp. III), HUD requires PHA's to set forth
in their leases that they will
"supply running water and reasonable amounts of hot water and
reasonable amounts of heat at appropriate times of the year
(according to local custom and usage),"
24 CFR § 966.4(e)(7) (1986), and will
"maintain in good and safe working order and condition
electrical, plumbing, sanitary, heating, ventilating, and other
facilities and appliances, including elevators, supplied or
required to be supplied by the PHA."
§ 966.4(e)(5). HUD has developed a standard lease reflecting
these requirements,
see HUD Circular RHM 7465.8 (Feb. 22,
1971), which respondent's leases closely follow. Thus, respondent
is contractually obligated to furnish, "as reasonably
necessary,"
"hot and cold water, gas for cooking, and electricity for
lighting and general household appliances and heat at appropriate
times of the year, and also range and refrigerator."
If respondent fails to fulfill these obligations, petitioners
may, like any other tenants, bring suit for breach of contract.
For the reasons given above, however, in my view petitioners do
not also have a statutory entitlement enforceable in federal courts
by virtue of 42 U.S.C. § 1983. Neither the Brooke Amendment's
language, nor its legislative history, nor its interpretation by
HUD supports the conclusion that Congress intended to create an
entitlement to reasonable utilities when it enacted the statute;
and even if agency regulations, standing alone, could create such a
right, the temporary regulations relied upon by petitioners in this
case are not susceptible of judicial enforcement. On that basis, I
believe that the judgment of the Court of Appeals for the Fourth
Circuit should be affirmed. Accordingly, I respectfully
dissent.
[
Footnote 2/1]
The interim regulations provided:
"§ 865.477. Standards for allowances for PHA-furnished
utilities."
"The Allowances for PHA-Furnished Utilities for each dwelling
unit category and unit size shall be established in terms of
consumption units, sufficient to meet the requirements of about 90%
of the dwelling units in the category. Conversely, the Allowances
should be such as are likely to result in surcharges for about 10%
of the dwelling units. The basic method of determining the
Allowances should be as follows:"
"(a) The dwelling unit consumption data for all units within
each dwelling unit category and unit size should be listed in order
from low to high consumption for each billing period."
"(b) The PHA should determine whether there are any unusually
high instances of consumption which might be due to unusual
individual circumstances, wasteful practices, or use of the Utility
for tenant-supplied major appliances. The PHA should exclude such
cases from consideration in calculating the amount of the
allowance."
"(c) Where the available data covers two or more years, averages
should be computed and adjustments made, if warranted, by reason of
abnormal weather conditions or other changes in circumstances
affecting utility consumption."
"(d) The Allowances should then be established at the level
which can reasonably be expected to meet the requirements of 90% of
the dwelling units in the category."
24 CFR § 865.477 (1981).
[
Footnote 2/2]
Paragraph 4 of respondent's standard lease provides:
"Utilities: Management Agent agrees to furnish at no charge to
the Resident the following utilities as reasonably necessary: hot
and cold water, gas for cooking, and electricity for lighting and
general household appliances and heat at appropriate times of the
year, and also range and refrigerator. Resident will be required to
pay for all excess consumption of utilities above the monthly
allocated amount as developed by the Authority and determined by
the individual check meter servicing the leased unit. The schedule
of allocations and charges for excess consumption is posted on the
bulletin board of each Housing Development office."
Record, Exh. H.