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Federal Deception Law: 3.1.1a.10 Claims Should Focus on Statutory Violations, Not Violations of The Statute’s Implementing Regulations

While courts consistently uphold the CFPB’s funding mechanism, there is a risk that a court, faced with a challenge to the CFPB’s funding, will stay litigation based on a CFPB rule until the Supreme Court decides the issue, rather than a trial court making its own judgment.35 This delay can be avoided by basing the litigation not on a CFPB rule, but on the underlying statute that the rule is implementing. Any ruling on the CFPB’s funding has no impact on the underlying statute.

Federal Deception Law: 3.1.1a.11 UDAP and Other State Statutory and Common Law Claims as Alternatives

The CFPB’s analysis in the supplemental information accompanying a rule provision may indicate why a practice is unfair, deceptive, or abusive. This same analysis may prove convincing to a court that the practice violates a state unfair and deceptive acts and practices (UDAP) statute. Every state has enacted a UDAP statute that prohibits deceptive and often unfair practices, and some have added a prohibition on abusive or unconscionable conduct. UDAP statutes were designed to be liberally and expansively interpreted.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.1 Introduction

This chapter provides a starting point for advocates researching certain basic legal issues that appear repeatedly in federal housing litigation. Please refer to the Table of Contents for a list of the subjects covered in this chapter. While housing cases are mentioned whenever available, the discussion on some issues draws more generally on other federal cases and treatises. Since none of these issues have been researched exhaustively, do not rely on the illustrative information provided here as anything more than a place to begin your research.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.2.2 Accessing Records without a FOIA Request

Since FOIA requires agencies to publish actively and keep current certain information,6 advocates may be able to find what they need without submitting a formal FOIA request. For example, HUD’s E-FOIA reading room can provide important information.7 The E-FOIA reading room contains documents such as frequently requested materials, final opinions and orders, housing policies, administrative staff manuals, HUD’s online library, and HUD’s annual FOIA report.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.2.4 Filing a HUD Administrative Complaint

In complex cases, a formal administrative complaint is more appropriate than requesting an opinion letter. Tenants and advocates with fair housing complaints may submit an online form to HUD’s Office of Fair Housing and Equal Opportunity (FHEO).95 Advocates and voucher tenants or residents in HUD multifamily housing may also report fair housing concerns to HUD by email, mail, or speaking with somone at FHEO.96 Generally, there is no required format for administrative complaints.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.2.5 Sending HUD the Court Complaint before Filing

Advocates who want to file a lawsuit against a PHA or owner could also send HUD a copy of the complaint to be filed in court. The approach may help get HUD to convince the PHA or owner to settle out of court. This strategy was successful in cases challenging inadequate utility allowances98 and HUD’s preliminary position that a PHA could no longer include the cost of air conditioning in the utility allowance.99

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.3 Exhaustion of Administrative Remedies

Advocates should consider pursuing administrative relief with HUD or the PHA before filing litigation. Courts generally look more favorably on the claims of a plaintiff who has been unable to secure adequate administrative relief despite good faith efforts.100 In some situations, an agency’s repeated failures to respond to reasonable requests by tenants can convince the court that judicial involvement is necessary.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.5 Involving the Press

Finally, effective advocacy may include using the press to assist in providing well-documented criticism of improper operation of the housing programs.117 For example, tenants organizing in Hawaii used the media in their struggle to gain recognition by the PHA as a resident advisory board.118 Tenants and advocates should carefully consider the potential benefits and costs to engaging the press.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.4.1 Overview

The law of standing derives from the “case and controversy” requirement of Article III of the United States Constitution.119 As Justice Douglas wisely stated, “[g]eneralizations about standing to sue are largely worthless as such.”120 Taking this cue, this section addresses only the basic principles of standing, and raises some suggestions for overcoming a standing defense, based upon those housing cases involving standing.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.4.3 “Prudential” Standing Limitations

In addition to the three-pronged constitutional minimum, the Supreme Court has imposed three “prudential” limitations on standing, to ensure the plaintiff is sufficiently connected with the controversy and thus appropriately suited to bring the claim.129 First, the plaintiff’s claim must be within the zone of interest protected by the statute or constitutional guarantee in question.130 Second, the plaintiff generally must assert her own rights and not those of third parties.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.4.4 Common Standing Issues in Housing Cases

In tenants’ rights cases, defendants have rarely challenged standing, and even when they have, courts often have given short shrift to their arguments.139 In those cases, courts rejected the standing defenses because it was clear that the tenants had suffered a concrete injury or threat of injury and because it was clear that the statutes or other laws in question were designed to protect the tenants’ or applicants’ interests.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.5.1 Overview

A threshold question in every lawsuit is whether a particular court has jurisdiction over a case. Federal court jurisdiction depends directly upon the claims that tenants and advocates assert. In federal housing cases, jurisdiction over a party’s claims will commonly fall into one or more of several well-defined categories: federal question, Commerce Clause, mandamus, civil rights, supplemental, removal or, occasionally, diversity jurisdiction. The Tucker Act may also establish jurisdiction in the U.S. Court of Federal Claims for certain cases.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.5.2 Federal Question (28 U.S.C. § 1331)

Federal courts can hear any claim “arising under the Constitution, laws, or treaties of the United States.”197 A civil action “arises under” these federal laws when there is a substantial federal question and the federal element is part of the plaintiff’s “well-pleaded complaint,” and not just in an actual or anticipated defense or counterclaim.198 In Grable & Sons Metal Products, the U.S.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.5.3 Commerce Clause Jurisdiction (28 U.S.C. § 1337)

Section 1337 empowers the federal courts to hear claims “arising under any Act of Congress regulating commerce” and no jurisdictional amount is required.212 Acts of Congress regulating commerce are those statutes whose constitutional basis is the Commerce Clause of the United States Constitution.213 The Commerce Clause does not have to be the exclusive basis of the federal power, but it must be a significant one.214 The courts have held that Sectio

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.5.4 Mandamus Jurisdiction (28 U.S.C. § 1361)

Similar to Commerce Clause jurisdiction, the importance of mandamus as a stand-alone jurisdictional basis has faded since the removal of the amount-in-controversy requirement of Section 1331.222 The mandamus statute empowers district courts to hear claims “in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff,”223 often providing jurisdiction for claims against federal defendants.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.5.5 Civil Rights Jurisdiction (28 U.S.C. § 1343)

Although civil rights jurisdiction is also superfluous230 since the elimination of the amount-in-controversy requirement for Section 1331, claimants still invoke it along with Section 1331 in civil rights cases.231 Among other things, Section 1343 gives federal district courts jurisdiction over civil actions challenging actions taken under color of state law that deny constitutional or statutory rights to equality or enforcing federal civil rights statutes.2