Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Plaintiffs-appellants live in Jefferson Parish, La., and participate in the voucher program under �8. Their residential rents and utility expenses are subsidized through federally funded vouchers provided by the U.S. Department of Housing and Urban Development (HUD), administered locally by defendant-appellee Housing Authority of Jefferson Parish, a public housing authority created by state law. Another defendant-appellee, the Louisiana Housing Development Corp., is a privately held corporation that contracts with the housing authority to operate the voucher program in Jefferson Parish. The voucher program gives participants the flexibility to choose among a variety of housing options. Participating families must contribute at least 30 percent of their adjusted monthly incomes to housing costs, and they may, but need not, spend more. The public housing authority issues vouchers that are payable directly to a participant’s landlord under a housing assistance payment contract, the terms of which are governed by the statute and regulations. Generally, the amount of this payment is calculated as the amount by which the rent (including the amount allowed for tenant-paid utilities) exceeds 30 percent of the monthly adjusted income of the family. The amount allowed for tenant-paid utilities is determined by the public housing authority, which is directed by regulation to base the utility allowance on the typical cost of utilities and services paid by energy-conservative households that occupy housing of similar size and type in the same locality, using normal patterns of consumption for the community as a whole and current utility rates. The public housing authority is required to review its schedule of utility allowances each year, and must revise its allowance for a utility category if there has been a change of 10 percent or more in the utility rate since the last time the utility allowance schedule was revised. Plaintiffs-appellants filed this suit in the Eastern District of Louisiana in April 2004, alleging that defendants-appellees (collectively, the housing authority) had not provided them appropriate utility allowances as required by the statute and regulations. Specifically, they contend that the housing authority had failed to use current utility rates in calculating the utility allowance, and that it had not revised its utility allowance schedule from 1995 to 2004, despite annual increases in utility rates of 10 percent or more in several years during that period. The result, insist plaintiffs-appellants, is that their rent burdens had been higher than they would have been had the housing authority complied with the statute and the implementing regulations, which these participants seek to enforce through their suit. In October 2004, the district court, without oral argument or hearing, granted the housing authority’s motion to dismiss under Federal Rules of Civil Procedure 12(b)(1) and (6). The district court held that the portions of the voucher program statute and implementing regulations pertaining to the utility allowance do not create individual federal rights that may be enforced by private participants through a 42 U.S.C. �1983 action. The district court also denied plaintiffs-appellants’ motion for leave to file a second amended complaint raising the same challenge. HOLDING:The court reverses the order of the district court dismissing plaintiffs-appellants’ claim on grounds that they do not have a right to sue under �1983 to enforce the statute and regulations concerning the calculation and revision of their utility allowances. The court holds that in adopting �1437f(o)(2), Congress intended to grant to voucher program participants such as these plaintiffs-appellants, federal rights enforceable under �1983. “The result we reach in this case is a rarity, particularly after Gonzaga [University v. Doe, 536 U.S. 273, 283 (2002)]. We are nevertheless convinced that its resolution is controlled by the Supreme Court’s pre-Gonzaga decision in Wright v. City of Roanoke Redevelopment & Housing Authority[, 479 U.S. 418 (1987)]. In that case, the Court interpreted a provision of the Housing Act that is virtually identical to the one at issue here, to support (1) a �1983 challenge (2) brought by public housing tenants concerning (3) the calculation of their utility allowances. As Wright predated Blessing [v. Freestone, 520 U.S. 329, 340-41 (1997)] by a decade the Court could not have applied the ‘Blessing test’ under that name, yet the Court’s analysis in Wright is wholly consistent with that employed in more recent cases, and indeed constitutes an indispensable element of the current methodology.” OPINION:Wiener, J.; Reavley, Davis and Wiener, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.