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HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.3.2 Acting under Color of State Law

Tenants and applicants seeking to enforce federal rights under Section 1983 must prove that the defendant is a person who acted “under color of state law.”1056 Persons acting under state law are those “who carry a badge of authority of a State and represent it in some capacity, whether they act in accordance with their authority or misuse it.”1057 Generally, “a public employee acts under color of state law while acting in his official capacity or while exercising his responsibilities pursuan

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.4.4 Combined Rule 23(b)(2) and (b)(3)

Generally, class actions that meet the requirements of Rule 23(b)(1) or (b)(2), as well as (b)(3), should be certified as one of the former.547 The reasons for this preference include: (1) the res judicata effect of any court order (with no party having the right to opt out)548 and (2) to avoid the expense of notice that would be required under Rule 23(b)(3).549 However, there may be cases where certifying under both (b)(2) and (b)(3) woul

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.6.3 Timing

Timing can be critical in class action cases. The timing between when a named plaintiff’s claim becomes moot and when a motion for class certification is filed can affect the survival of both individual and class claims. One extreme example demonstrates this point. In Salter v. Philadelphia Housing Authority,570 the plaintiff filed a class action challenging termination of Section 8 subsidies without notice and a hearing.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.6.4 Live issues

A key factor in determining the mootness of a class claim is whether the issues before the court are still live and there is subject matter upon which the court can rule. In Lewis v. Housing Authority of Talladega,573 the defendant rescinded the eviction notices and, upon appeal, rescinded the challenged policy and substituted a new policy.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.6.7 Claimants leave housing programs

Claims of mootness have arisen in situations where the named plaintiffs have moved out of the housing in question and defendants contended that plaintiffs had no further interest in the action. For example, in Carson v. Pierce,595 the tenants’ claim that the landlord was unlawfully discriminating against families with children was rendered moot before the class was certified when the plaintiffs voluntarily moved out and did not assert a desire to move back.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.3.3 Blessing and Gonzaga Analysis for Enforceable RIghts

Section 1983, by its own terms, is limited to enforcing “rights, privileges, or immunities secured by the Constitution and laws” of the United States.1076 The Supreme Court has confirmed that Section 1983 provides an express right of action to redress violations of rights conferred by the federal laws and Constitution.1077 To enforce a statute or constitutional provision through Section 1983, the Court has further required a showing that the provision “creates an individually enforceable rig

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.3.4 Housing Cases

Section 1983 applies to enforcing “rights, privileges, or immunities secured by the Constitution and laws” of the United States.1109 Most housing cases involving enforceable federal rights under Section 1983 concern statutory rights. The following discussion examines cases in which litigants have used Section 1983 to enforce housing rights. The discussion briefly reviews pre-Gonzaga housing cases.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.4.1 Overview

Advocates may need to assert an implied right of action when seeking to affirmatively enforce a statute or constitutional provision: (1) when there is no express right of action available in the statute or constitutional provision, nor any other available under another statute such as Section 1983 or the Administrative Procedure Act, (2) as an alternative enforcement vehicle, where an express right of action is unclear, or (3) when other causes of action do not afford complete relief.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.4.2 Bivens Actions

Current State of Bivens Actions. A Bivens action is a suit for damages against a federal actor acting in her individual capacity under color of federal law who has allegedly violated the plaintiff’s constitutional rights.1173 Claimants do not need Bivens actions when they already have available a statute authorizing the relief sought. For example, Bivens actions are not necessary for claims under the Tucker Act and the Federal Tort Claims Act, which both authorize damages.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.4.3 Federal Preemption as an Affirmative Claim

Tenant advocates seeking to enforce federal laws against state and local governmental defendants may be able to use federal preemption as an alternative to 42 U.S.C. § 1983, when Section 1983 is unavailable or in question because of a lack of rights-creating language. However, because preemption does not confer substantive rights and the affirmative claim is equitable in nature, it provides only injunctive and declaratory relief and plaintiffs cannot recover damages or attorney’s fees.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.4.4 Implied Private Right of Action to Enforce Federal Statutes

Where other enforcement vehicles are unavailable or limited, it is often necessary or valuable to enforce federal housing statutes through a direct implied private right of action. This subsection provides a brief review of the doctrine and the applicable housing cases.

In 1975, in Cort v. Ash,1203 the Supreme Court established a four-part test for finding an implied cause of action. The test asks whether:

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.5.1 Overview

Many federal housing programs use contracts to specify important rights and duties of HUD, administrative agencies and owners, often including the obligation to comply with all federal agency requirements. For example, these contracts include Annual Contributions Contracts (ACCs), regulatory agreements, use agreements, rent supplement contracts, Housing Assistance Payment (HAP) contracts, and LIHTC regulatory agreements. Tenants and applicants are not signatories to these program contracts.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.5.2 Third-Party Beneficiary Rights Analysis

If the program contract at issue does not contain express enforceability rights, tenants may have to prove that they are intended third-party beneficiaries with enforceability rights in order to pursue a claim for breach.1237 The general rule is that a third party acquires enforceable contract rights when the contracting parties intend to confer a benefit on the third party, so that the third party is not merely an incidental beneficiary.1238 The standard for determining whether a third part

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.3.5.3 Enforcing HUD Program Contracts: ACCs, Regulatory Agreements, Use Agreements and HAP Contracts

Depending on the HUD housing program, a tenant’s unit may be regulated under an ACC, HAP contract, regulatory agreement, use agreement, rent supplement contract, RAP contract, or other program contract. The application of contract principles, including third-party beneficiary analysis, is the same for each of these contracts. However, the language of these contracts may differ, and each type of contract is governed by separate statutes and regulations.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.5.1 Overview

Litigating federal housing cases will often take advocates beyond the traditional lawsuit characterized by private disputes that typically involve a small number of individuals. In contrast, federal housing cases are often aptly described as “public law litigation,” which seeks to reform or correct systemic or institutional problems.1421

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.5.2 Remedy Formulation and Implementation

Whether through a consent decree or a permanent injunction, the main objective of the relief is to eliminate the wrongful conduct or condition giving rise to the litigation. Because prohibitory orders generally fall short of providing such relief, often the decree that is issued attempts to realize affirmative goals by requiring some overall pattern of reform by the defendant. Thus, court-appointed agents are often used to administer the remedy.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.5.3 Masters and Receivers

Managing judicial relief in the context of federal housing cases will occasionally involve the use of either a master or a receiver.1424 Because these roles tend to merge, it may be more helpful to think of a master or receiver as an extra-judicial court officer appointed with broad, flexible duties to formulate remedies and implement decrees protecting constitutional or statutory rights. Usually, the master’s role is to obtain information and make recommendations to the court.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.5.4 Consent Decrees and Settlement Agreements

Many housing rights cases are resolved by settlement agreements or consent decrees, which are settlement agreements that are entered as a court order.1436 In fact, many precedent-setting housing decisions were issued in cases that ultimately settled.1437 Settlement agreements and consent decrees can be used to get relief that a court may not be able to grant, or to effect institutional change.