Daily Development for
Thursday, November 20, 1997
by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
firstname.lastname@example.org HOUSING; PUBLIC HOUSING; GRIEVANCE PROCEDURES: Public housing tenant can bring a cause of action under 42 U.S.C. § 1983 to enforce administrative grievance award against the housing authority and the District Court has jurisdiction to enforce the award.
Farley v. Philadelphia Housing Authority, 102 F.3d 697 (3rd Cir. 1996).
The tenant's grievance had to do with defects in the premises - essentially water in her basement. She proceeded to arbitration on her claim pursuant to a procedure established under a 1978 consent decree in a case against the Housing Authority. Federal law and HUD regulations mandate public housing authorities to have such grienvance procedures.
The arbitrator found for the tenant, issued an order to repair and awarded rent abatement. The Housing Authority failed to comply witht the order, and the tenant brought an action under federal statute Section 1983, alleging that she had a private right of action to redress when a public agency fails to abide by a federal statute. The court here agreed with the tenant.
The Housing Authority asserted that the proper enforcement mechanism for the grievance award was the Pennsylvania state court system, since the consent decree had incorporated specifically the Pennsylvania Arbitration Act, which provides for enforcement of arbitrator's awards in state court. Further, the Housing Authority claimed that Section 1983 was not intended to provide a private right of action in cases involving "garden variety" landlord tenant disputes.
The court saw the issue of whether the consent decree required resort to state courts as simply a matter of contract construction, and it construed the contract to permit federal enforcement notwithstanding the reference to state arbitration statutes. Although the consent decree stated specifically: "[i]f either party should appeal an arbitration award, such appeal shall be governed by the provisions of the Pennsylvania Arbitration Act of 1927," there was no equivalent language stating that enforcement was governed by the Act. Further, the Act itself indicates that arbitration awards may be enforced ". . . as a judgment . . . in accordance with existing law." The court refused to read this language as precluding resort to federal court.
On the issue of whether Section 1983 provides a vehicle to enforce such judgments, the Third Circuit ruled that there is a very high standard required to show that no private right of action is intended when Congress creates a statutory scheme designed to provide protection to individual interests, such as it did when it mandated grievance procedures in public housing. Since the Housing Authority could not show any specific language in federal law denying a private right, and since the enforcement scheme for the federal policy set forth in the Act did not involve a unique comprehensive mechanism that would be hindered by recognizing private enforcement rights.
Comment: Prior authority has in some cases shown a reluctance to impose private rights of action against federal agencies for breach of the implied warranty of habitability. Compare: Alexander v. HUD, 555 F.2d 166 (7th Cir. 1977) (no federal implied warranty in federal subsidized housing project) with Conille v. Secretary of Housing and Urband Development, 840 F.2d 105 (1st Cir. 1988) (tenants have private right to force HUD to maintain premises it owns and controls).
The federally mandated grievance procedure is the equivalent of the implied warranty. Housing Authorities can "beat up" tenants just as effectively as private landlords. Tenants in these authorities have, if anything, less private bargaining power and less sophistication than poor private tenants, and the housing authorities, are, if anything, more resourceful than slum landlords. Although state court doctrines perhaps are not the key to redress the imbalance here, federal statutory and regulatory policy clearly is warranted. It does seem incongruous that a statute with such grand applications as Section 1983 should be used to provide access to federal court for a poor tenant with a leaky basement, but the problem may be that federal policy otherwise had been unable to address this tenant's problem.
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