HUD Housing Programs: Tenants’ Rights (The Green Book): 14.8.3.1 Overview
Rule 23 of the FRCP establishes the required criteria for maintaining a class action.
Rule 23 of the FRCP establishes the required criteria for maintaining a class action.
Rule 23(a) requires that (1) the class be so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims of the named plaintiffs are typical of the claims of the class; and (4) the plaintiffs will fairly and adequately protect the interests of the class.481 Cases involving federally subsidized housing are often recognized as a “perfect” type of case for class certification.
A class must be sufficiently large that joinder is impracticable.483 This standard requires only difficulty or inconvenience, not impossibility.484 The precise number should be stated if possible.485 But courts will estimate,486 because they “should not be so rigid as to depend upon mere numbers as a guideline to practicability of joinder.”487 In any cas
Class members must share a common question of law or fact for a class to be certified.496 The putative class members must further have a “central” commonality whereby their claims depend on a common contention capable of class-wide resolution such that “determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.”497 What matters “is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide
Under Rule 23(a)(3), the claims or defenses of the class representatives must also be typical of those of the class. The test for typicality is objective: there must be a sufficient nexus between the representative parties’ claim and that of the rest of the class.504 Generally, courts have found the typicality requirement satisfied in cases where the plaintiffs were challenging the same course of conduct by the defendant.
The representative party must demonstrate that she will diligently and thoroughly protect and pursue the interest of the class members so as to assure them of due process. Courts in federal housing cases have found that the named plaintiff is representative by looking at the quality of counsel and by finding that the representative will vigorously prosecute the action.512 Only the latter issue has given rise to any lengthy legal discussion.
If the moving party is able to establish that all the prerequisites of Rule 23(a) have been met, then it must also demonstrate that the class action falls in one or more of the three types of classes outlined in Rule 23(b).
Certification under Rule 23(b)(2) is appropriate when the “party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive or corresponding declaratory relief with respect to the class as a whole.”529 This subsection is satisfied when the party opposing the class either has acted in a consistent manner toward members of the class so that its actions may be viewed as part of a pattern of activity, or has established or acted pursuant to a regulatory scheme common to
PHA Plans and Section 8 Administrative Plans are local policies adopted by local housing agencies. Because the content of the Plans vary by PHA and are updated regularly, advocates and tenants should seek the latest copies from their local PHA. This section reviews the required content of these Plans, and their binding effect on PHAs.
The Low Income Housing Tax Credit (LIHTC) program consists of tax credits allocated to the various states, which are then awarded to project owners pursuant to the state’s Qualified Allocation Plan (QAP), which contains the standards and selection criteria. The minimum content and selection criteria that each state agency must address in its QAP are outlined in the Internal Revenue Code.910 States may adopt additional requirements that are not inconsistent with federal law.
State and local laws are increasingly important in providing tenants additional bases for legal claims or defenses against PHAs or private landlords.912 In addition, state law claims may be available against private parties administering federal benefits.913 For example, tenants may have claims based on implied warranty of habitability for substandard housing conditions914 or other contract claims under state law.
In addition to identifying legal sources of individual rights, tenants or applicants must identify one or more vehicles to enforce those claims in court. In many cases, plaintiffs’ rights to bring their claims may not be challenged. In others, where defendants or the courts raise the issue, tenants must demonstrate that the asserted right is privately enforceable in court.
The Administrative Procedure Act (APA)957 imposes certain duties on federal agencies and provides for judicial review of certain agency actions. Tenants can use the APA as an enforcement vehicle to seek declaratory or injunctive relief for violation of their federal rights, where HUD or other federal agency actions958 are contrary to law, an abuse of discretion, or evidence a failure to follow proper decision-making procedures.
Common APA claims in federal housing cases include: (1) the federal agency violated an applicable statute, regulation or constitutional provision, or made erroneous legal conclusions; (2) the agency used improper procedures; and (3) the agency’s decision was arbitrary, capricious, or an abuse of discretion.996 Although the difficulty of a particular type of APA claim obviously depends upon the specific laws and facts involved, bear in mind that because courts generally defer to agency interpretations of law and findings of fact,
In addition to the federal Administrative Procedure Act, tenants may have procedural rulemaking claims under HUD’s own “mini-APA” regulation or related administrative claims under state law.
Section 1983 (42 U.S.C. § 1983) is a vital enforcement vehicle for tenants who seek redress for violation of their federal rights by defendants acting under color of state law (usually PHAs and state agencies). Section 1983 states, in pertinent part:
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
If a class fails to meet the requirements of Rule 23(b)(1) or (b)(2), the class may still be certified under Rule 23(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
Class actions must be certified “[a]t an early practicable time after a person sues or is sued as a class representative.”555 In some jurisdictions, an injunction granting class relief cannot be entered before the class is certified.556 In other federal tenants’ rights cases, courts have allowed a reasonable delay in the certification process.
This section examines the various mootness issues that can arise in class actions involving federal housing programs.
A plaintiff must be a member of the class that she purports to represent.
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.
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.