Aponte-Rosario v. Vila, 06-1578CCC.

476 F.Supp.2d 74

Arcadio APONTE-ROSARIO, Mirta Colon-Pellicier, Rosanna De-Leon-Rivera, Iris Margarita Aponte-Marrero, Luz Elena Ramos Ayala, on behalf of themselves and all others similarly situated, as residents of Las Gladiolas Public Housing Project, Plaintiffs v. Honorable Anibal Acevedo VILA, Governor of the Commonwealth of Puerto Rico, Honorable Jorge Rivera, Secretary of Housing of the Commonwealth of Puerto Rico, Carlos Laboy, Director of the Puerto Rico, Public Housing Administration, Honorable Alphonso Jackson, Secretary of the United States Department of Housing and Urban Development, Michael Colon, Field Office Director, and Olga Saez, Public Housing Director of the Office for Puerto Rico/Virgin Islands of the United States Department of Housing and Urban Development, All in Their Official and Representative Capacities and American Management, Inc., Defendants.

No. 06-1578CCC.

United States District Court, D. Puerto Rico.

February 7, 2007.

Manuel A. Rodriguez-Banchs, Rio Piedras, PR, Ricardo Alfonso-Garcia, E studio Legal y Notaria, San Juan, PR, for Plaintiffs.

Harold A. Frye-Maldonado, P.R. Department of Justice, Jose Enrico Valenzuela-Alvarado, Department of Justice, Office of the Solicitor General, Agnes I. Cordero, United States Attorney's Office, San Juan, PR, for Defendants.

ORDER

CEREZO, District Judge.

Although plaintiffs have yet to establish compliance with the requirements of a class action, the Court is concerned at this time with a Motion to Dismiss filed on November 19, 2006 by defendants U.S. Department of Housing and Urban Development (HUD) and three of its officers, Alphonso Jackson, Michael Colon and Olga Saez (docket entry 16), supported by an amended Memorandum of Law filed on November 14, 2006 (docket entry 19). Plaintiffs filed their opposition on December 29, 2006 (docket entry 28), which was followed by an authorized reply by defendants on January 25, 2007 (docket entry 32). Also included in this action are Commonwealth defendants, i.e. the Governor and other government officials.

Plaintiffs describe themselves as residents of a public housing project known as Las Gladiolas I and II who will be affected in the eventuality of its demolition and who are now being affected by lack of safe and sanitary housing conditions at the site. Although at ¶ 14 of the complaint they make reference to a deprivation of their statutory right to representation in the public agency development of its five (5) year and annual plans, citing 42 U.S.C. §§ 1437c-1, the reality is that there are no factual allegations against the federal defendants in support of such a claim. Plaintiffs have so acknowledged in their opposition to dismissal. See p. 23 of Opposition (docket entry 28).

The second claim for relief set forth in the complaint is against the HUD defendants for violations of 42 U.S.C. § 1437p and the Fifth Amendment right to due process of law. Plaintiffs seek judicial review of HUD actions under the APA, 5 U.S.C. § 702, and a declaration that the HUD defendants disregarded the clearly mandated duty under 42 U.S.C. § 1437p(b)(1) & (2) which required them to act upon information that they provided regarding an application for demolition of the housing project made by the Commonwealth housing agency. Plaintiff residents claim they submitted information to the HUD defendants which was inconsistent with the application for demolition made by the public housing agency but which defendants chose to ignore as they also chose to ignore the circumstance that the application for demolition was not developed in consultation with them or other residents as required by the federal statute.¹

The primary argument raised by the HUD defendants is that the claims against them are not subject to judicial review under APA's section 701(a)(2) for the agency action in this case is committed to agency discretion by law. They describe plaintiffs' actions as a challenge to their discretionary agency action which is precluded by the exception to reviewability found in § 701(a)(2). Specifically, they contend that there is no "language in the statute that creates a mandatory duty on the part of the Secretary to make the determinations described in § 1437p(b)," Memorandum (docket entry 19), at p. 9., following within the Secretary's discretion to decide whether or not to make such determinations. Invoking the language of § 1437p(b), plaintiffs counter that "the statute's language is undeniably mandatory in tone and structure; its intention clear, as it requires the Secretary to take certain actions or determinations before he approves an application for demolition of a housing project." Opposition (docket entry 28), at p. 16 (emphasis in original). They discuss several cases in support of their position that agency action in this case is not committed to agency discretion by law, rather, that it is reviewable for the federal statute in question provides guidance and a law for the courts to apply.

Section 702 of the APA provides:

A person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof. An action in a court of the United States seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority shall not be dismissed nor relief therein be denied on the ground that it is against the United States or that the United States is an indispensable party. The United States may be named as a defendant in any such action, and a judgment or decree may be entered against the United States: Provided, That any mandatory or injunctive decree shall specify the Federal officer or officers (by name or by title), and their successors in office, personally responsible for compliance. Nothing herein (1) affects other limitations on judicial review or the power or duty of the court to dismiss any action or deny relief on any other appropriate legal or equitable ground; or (2) confers authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.

5 U.S.C. § 702.

Reviewability must overcome the hurdle of § 701(a)(2) which makes it inapplicable when agency action is committed to agency discretion by law. Citizens to Preserve Overton Park Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), addressed this exception to reviewability of actions committed to agency discretion, referring to the same as a "very narrow exception." Id., at 820. Overton Park established' the "law to apply" standard which makes the exception for action committed to agency discretion of (a)(2) inapplicable. The Court cited specific provisions of the two federal statutes involved in that case, the Department of Transportation Act and the Federal-Aid Highway Act, which provided "clear and specific directives" (id., at 821) to the agency regarding the use of federal funds for construction of highways through parks. The Court found that the statutes in plain language provided the "law to apply" and that "[i]f the statutes [were] to have any meaning, the Secretary [could] not approve the destruction of parkland unless he [found] that alternative routes present[ed] unique problems." Id., at 822.

HUD defendants rely primarily on Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985) obviously because in that case the Court concluded that the agency's decision not to take enforcement action should be presumed immune from judicial review under section 701(a)(2). Id., at 1656. They disregard the fact that the case before us, like Overton Park, is not an enforcement action. Comparing an agency's decision not to enforce to the decision of a prosecutor in the Executive Branch not to indict, the Court recognized that such a decision is "generally committed to an agency's absolute discretion." Id., at 1655. The difference between Chaney and Overton Park in this sense is acknowledged at page 1655 where the Court refers to the clear guidelines present in that case for determining when approval of a program using public parkland should be given. The "law to apply standard" of Overton Park is incorporated in the Court's analysis of the federal statutes before it in Chaney. Citing Overton Park, at 820-21, on the (a)(2) exception, the Court reasserted that "the legislative history of the APA indicates that it is applicable in those rare instances where `statutes are drawn in such broad terms that in a given case there is no law to apply.'" Chaney, 105 S.Ct. at 1655. The focus turns, therefore, on the statute in question. Thus, Chaney clearly states that "the statute ("law") can be taken to have `committed' the decisionmaking to the agency's judgment absolutely" only when "the statute is drawn so that a court would have no meaningful standard against which to...