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HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.1.4 Temporary Restraining Orders

Federal Rule of Civil Procedure 65(a) requires a hearing before a preliminary injunction may be issued, but tenants often require more immediate relief to prevent irreparable injury. Federal Rule of Civil Procedure 65(b) permits the issuance of a temporary restraining order (TRO) on the applicant’s ex parte motion to preserve the status quo until the hearing on the preliminary injunction. If the opposing party has notice of the application for a TRO, then the hearing may also be treated as one on a preliminary injunction.1356

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.1.5 Consolidating the Preliminary Injunction with Trial on the Merits

The Federal Rules of Civil Procedure allow the hearing on a preliminary injunction to be consolidated with the trial on the merits, effectively turning the request for preliminary injunction into one for permanent injunction.1362 To avoid prejudice, such consolidation cannot occur without clear and unambiguous notice to the parties.1363 If a court attempts an unannounced consolidation, then advocates should object.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.2 Monetary Relief: Abatement, Restitution and Damages

In many cases, prospective injunctive relief will not adequately correct the effects of unlawful actions taken by HUD, PHAs or private landlords, so it will be necessary to seek some form of financial relief. This can include forgiveness of unpaid rent, refund of excess rents illegally charged, restitution of subsidy benefits wrongfully withheld, and awards of damages as compensation for injury suffered as a result of a defendant’s breach of contract, tort, statutory or constitutional duties.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.3 Declaratory Relief

Tenants may seek judgments that “declare the rights and other legal relations” of the parties.1393 Declaratory judgments provide a useful remedy by which rights and obligations may be judicially determined in cases involving an actual controversy that has not yet reached the point requiring a corrective remedy.1394 One of the purposes of declaratory judgments is to avoid multiplicity and circuity of actions.1395 Declaratory relief is proper w

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.10.4 Remand to the Agency

In cases challenging an administrative determination under the Administrative Procedure Act (APA),1413 courts may vacate an agency decision and remand the case to the agency if it is determined that the agency failed to consider relevant factors or where there is a clear error of judgment.1414 Federal courts have ordered remands after finding that HUD’s decisions were arbitrary or lacked support in the administrative record.1415 The court may

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.2.3.5 First Amendment Speech, Association and Religion Protections

Tenants in public and subsidized housing have basic rights of speech, free association and religion guaranteed by the First and Fourteenth Amendments.745 These rights provide that tenants cannot be prohibited from speaking out or congregating within their home for purposes related to the condition, policies and practices of the project in which they reside746 or for other political or community-related issues.747 First Amendment issues often arise

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.3.1 Overview

The most common sources of tenants’ claims are the federal housing statutes and their corresponding regulations. The statutes and regulations upon which tenants can base their claims will differ depending on the housing program involved. Thus, the first step in determining the statutory or regulatory provisions at issue in a tenant’s or applicant’s claim is to determine what housing program, or combination of programs, applies to the unit.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.3.2 The Federal Housing Acts and Related Statutes

The federal housing statutes are an important foundation for tenants’ claims against landlords, PHAs, HUD, or other program participants. These statutes govern the creation, funding and basic structure for major federal housing programs, outline the relationship and responsibilities of federal agencies, non-federal administrators (such as PHAs or state agencies) and landlords, and, in some cases, identify some tenants’ rights and responsibilities.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.3.2 Amount of EAJA Fee

Several EAJA cases have discussed issues concerning the calculation of the amount of the fee award.1557 Unlike some other fee-shifting statutes, EAJA provides that “attorney fees shall not be awarded in excess of [a fixed amount] unless the court determines that an increase in cost of living or special factors justifies a higher fee.”1558 This statutory presumption has been increased, and the current figure is $125.1559 The inflation rate may

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.3.3 Timing Requirement for EAJA Fee Petition

The statute requires that the fee petition be submitted within 30 days of final judgment.1565 One court has held that a petition was timely as long as it was submitted within 30 days after expiration of the time for appeal or 30 days after final determination of the case upon appeal.1566 Another court has held that the 30-day period begins to run after the final administrative decision upon remand from the agency.1567 Again, it is also critic

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.4 Bad Faith, Common Fund and Substantial Benefit

Where the statutory provisions discussed above are inapplicable, advocates should examine the exceptions to the traditional American rule, which denies fee awards to successful parties in the absence of statutory or contractual authority to the contrary, for a possible source of an award of attorney’s fees. There are three exceptions: (1) bad faith, (2) the “common fund,” and (3) the “common or substantial benefit” theory.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.4 Sub-Regulatory Issuances: HUD Handbooks, Notices and Other Directives

In addition to the regulations published in the Federal Register, HUD regulates the various housing programs through an extensive body of program rules, known as the “Directives System.”848 HUD creates directives to communicate policies, instructions, procedures and guidance for administering different housing programs to HUD officials and non-federal program participants.849 The HUD Directive System Handbook states that the purpose of these directives (sometimes called “issuances”) is

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.5.1 Overview

In addition to published regulations, the federal government uses several regulatory devices to administer its housing programs: program contracts, PHA Plans (including Section 8 Administrative Plans), and Low Income Housing Tax Credit (LIHTC) Qualified Allocation Plans. These documents help define the relationships between federal agencies, state agencies and landlords, and outline the parties’ responsibilities in administering the various housing programs. These documents can also provide bases for tenants’ claims against a federal agency, PHA or landlord.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.9.2.5.2 Program Contracts: ACCs, HAP Contracts, Regulatory Agreements, Use Agreements and LIHTC Agreements

Throughout the history of the federal housing programs, the federal government has opted to regulate the non-federal participants more by contractual arrangements than through published regulations. HUD program contracts, such as Annual Contributions Contracts (ACCs), regulatory agreements, and Housing Assistance Payment (HAP) contracts, are between HUD and local agencies or private landlords; the tenants are not signatories. However, the contracts often impose duties upon PHAs and landlords that benefit the tenants.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.2.3 Governmental Immunity and HUD Approval

The issue of immunity arises in attorney fee awards against HUD or a PHA under statute or contract. In determining the amount of an award, sovereign immunity may bar the use of current rates for prior work or interest1490 unless specifically authorized. By contrast, the Eleventh Amendment does not immunize PHAs, as state-created agencies, from Section 1988 fee awards because it does not immunize states from such awards.1491

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.11.2.4 Special Circumstances Making Fee Award Unjust

Courts generally agree that the prevailing plaintiff will be awarded fees unless special circumstances would make such an award unjust.1493 Courts have rejected as special circumstances claims that: (1) plaintiff’s lawsuit was too simple,1494 (2) an award should not be given to a nonprofit legal services office,1495 (3) the action was promptly settled after filing of the complaint,1496 (4) the