Skip to main content

Search

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.

Federal Deception Law: 3.1.1a.7a Responding to Defendants’ Late Attempts to Raise the Appropriations Clause Question

As consumer law cases based on CFPB rules go up on appeal, there is a risk that defendants for the first time will raise the CFPB funding issue either on appeal or when the case is remanded back to the trial court. Nevertheless, courts should not consider the funding issue if it was never raised in the case below.32 The Community Financial Services decision does not justify failing to raise the issue previously.

Fair Debt Collection: 15.1.1a Damage Requirements for Common Law Torts

Whether a showing of harm or damage is an element of a common law tort is not only important for practitioners asserting these claims, but is also highly relevant to the question whether consumers have standing to assert claims under the FDCPA and other consumer law statutes in federal court. Accordingly, in its discussion of individual tort claims this chapter pays particular attention to whether they impose a requirement to show actual damage.

Fair Debt Collection: 15.7.1a False Imprisonment

A false arrest or false imprisonment claim may be viable if a creditor or collector wrongfully restricts the debtor’s freedom of motion in some way483 or causes the debtor to be arrested.484 The elements of false imprisonment are an act intended to confine the plaintiff, which results directly or indirectly in confinement, and that plaintiff is aware of the confinement or is injured by it.

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.1 Overview

In certain circumstances, advocates should consider involving HUD, elected officials, or the press in an effort to resolve a particular issue. This attempt can be made before or after engaging in the grievance procedure with the PHA or the private owner. However, before contacting HUD for the first time, advocates and tenants should be aware of HUD’s structure.84

HUD Housing Programs: Tenants’ Rights (The Green Book): 14.3.2.1 Overview

Depending upon the type of issue involved, advocates or tenants may want to begin at the regional or local level in the Office of General Counsel or the appropriate regional or local program management office. For disputes involving a claim of discrimination, advocates may want to begin with HUD’s Office of Fair Housing and Equal Opportunity. In trying to decide whether the program management office or the legal office is most appropriate, advocates should first consider the past responsiveness of each office to tenants’ concerns.