Becker v. Fudge

1

KIRK BECKER, Plaintiff, v. MARCIA FUDGE, Secretary of Housing and Urban Development, et al., Defendants.

Civil Action No. 22-3670 (RDM)

United States District Court, District of Columbia

March 21, 2024

MEMORANDUM OPINION

RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE

In this case, Plaintiff Kirk Becker, proceeding pro se challenges the lawfulness of a rule promulgated nearly eight years ago by the Department of Health and Human Services (“HUD”) prohibiting smoking in public housing units (“the Smoke-Free Rule” or “the Rule”). See Dkt. 1 at 2 (Compl. ¶ 1); 81 Fed.Reg. 87,430 (Dec. 5, 2016). In particular, Becker alleges that the Smoke-Free Rule runs afoul of the Administrative Procedure Act (“APA”), 5 U.S.C. § 551 et seq., in multiple respects. Now before the Court is HUD's motion to dismiss for lack of subjectmatter jurisdiction and for failure to state a claim, Dkt. 6.

For the reasons explained below, the Court concludes that Becker lacks standing to challenge the Rule. The Court will accordingly, GRANT HUD's motion to dismiss, Dkt. 6, and will DISMISS the case for lack of subject-matter jurisdiction.

I. BACKGROUND

Congress enacted the United States Housing Act of 1937 to alleviate “the acute shortage of decent and safe dwellings for low-income families” and to remedy “unsafe housing conditions[.]” 42 U.S.C. § 1437(a)(1)(A). The Act provides federal funding to locally operated public housing agencies (“PHAs”) that manage housing under habitability and safety standards promulgated by HUD through notice and comment rulemaking. Id. § 1437d(f)(2); § 1437a(b)(6)(A); see N.Y.C. Clash, Inc. v. Fudge, 47 F.4th 757, 760 (D.C. Cir. 2022) (“Clash III”). In 1974, Congress amended the 1937 Act by creating the Section 8 housing program, which funds housing vouchers that can be used towards rent payments at participating private landlords. See id. § 1437f(a); id. § 1437f(o); Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 12 (1993). Like the public housing program, Section 8 is also administered by local PHAs that possess certain administrative authority over participating landlords.

Beginning in 2009, HUD issued guidance documents that encouraged PHAs to ban smoking in public housing units subject to their authority, but the Department did not require them to do so. See, e.g., Smoke-Free Policies in Public Housing, PIH Notice No. 2012-25 (May 29, 2012).^[1]In 2015, the PHA for Austin, Texas-known as the Housing Authority of the City of Austin (“HACA”)-banned smoking in Austin's “residential public housing properties.” See Housing Auth. of the City of Austin, Public Housing Admissions and Continued Occupancy Policy, Smoke-Free Housing Policy, Ch 13, at 218 (2016).^[2]

Later that year, HUD announced its own policy, the Smoke-Free Rule, which is at issue here and which requires PHAs to prohibit the use of lit tobacco products indoors in public housing. See Instituting Smoke-Free Public Housing, 80 Fed.Reg. 71,762 (proposed Nov. 17, 2015). The final rule was promulgated in December 2016 and became effective in February 2017. 81 Fed.Reg. 87,430 (Dec. 5, 2016) (codified at 24 C.F.R. pts. 965, 966). In the final rule, HUD expressly excluded Section 8 housing from the new requirement. 24 C.F.R. § 965.651 (“This subpart applies to public housing units . . . other than assistance under section 8 of the 1937 Act.” (emphasis added)).

In 2020, a smoker-activist group sued HUD, seeking vacatur of the Smoke-Free Rule based on a number of asserted statutory and constitutional defects. See NYC C.L.A.S.H. v. Carson, 442 F.Supp.3d 200 (D.D.C. 2020) (“C.L.A.S.H. I”). Becker moved to intervene in that case, and the Court (Huvelle, J.) denied Becker's motion on the ground that he lacked Article III standing. See NYC C.L.A.S.H. v. Carson, 2019 WL 2357534, at * 3 (D.D.C. June 4, 2019) (“C.L.A.S.H. II”). In particular, the Court explained that because the HACA ban was in place before the Smoke-Free Rule took effect, Becker's alleged injury was caused by the HACA ban- and not the Smoke-Free Rule-and, thus, even if the Smoke-Free Rule were set aside, Becker's alleged injury “would likely remain.” Id. at *2. As a result, Becker had failed to clear the jurisdictional hurdles of causation and redressability. Id. Subsequently, the Court granted HUD's motion for summary judgment and upheld the Smoke-Free Rule against the plaintiffs' challenges. C.L.A.S.H. 1, 442 F.Supp.3d at 221-23. The D.C. Circuit affirmed, and the Supreme Court denied certiorari. C.L.A.S.H. III, 47 F.4th at 757, cert. denied, 143 S.Ct. 1045 (2023).

Several months after the D.C. Circuit's decision, Becker brought this case challenging the Rule under the APA. Compare Dkt. 1 (Compl.) (filed December 8, 2022), with C.L.A.S.H. III, 47 F.4th at 757 (decided August 26, 2022). HUD moves to dismiss under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for lack of subject-matter jurisdiction and failure to state a claim, respectively. Because Becker is proceeding pro se, the Court issued a Fox/Neal order advising him of his obligation to respond. Dkt. 8. The Court explained that if he “file[d] an opposition to a dispositive motion and addresse[d] only certain arguments raised by the defendant,” the Court might “treat those arguments that the plaintiff failed to address as conceded.” Id. at 1-2 (quoting Xenophon Strategies, Inc. v. Jernigan Copeland & Anderson, PLLC, 268 F.Supp.3d 61, 72 (D.D.C. 2017)). Becker filed a brief in opposition, Dkt. 10, and HUD filed a reply, Dkt. 11. The matter is ripe for decision.

II. LEGAL STANDARD

Because the Court concludes that it lacks subject-matter jurisdiction under Rule 12(b)(1), it does not reach HUD's argument that Becker has failed to state a claim as required under Rule 12(b)(6). With respect to subject-matter jurisdiction, HUD's primary argument is that Becker lives in Section 8 housing-and not public housing-and that, accordingly, he lacks standing to challenge the Smoke-Free Rule, which applies only to public housing. Dkt. 6-1 at 16-17.

When a defendant moves to dismiss under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing the factual predicates of jurisdiction by a preponderance of the evidence. See Erby v. United States, 424 F.Supp. 180, 182 (D.D.C. 2006); In re Swine Flu Immunization Prods. Liab. Litig., 880 F.2d 1439, 1442-43 (D.C. Cir. 1989); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 555, 561 (1992). But unlike challenges to jurisdiction raised later in a proceeding, a Rule 12(b)(1) motion may take one of two forms. First, it may raise a “facial” challenge to the Court's jurisdiction, which contests the legal sufficiency of the jurisdictional allegations contained in the complaint. See Erby, 424 F.Supp.2d at 182. When framed in this manner, the Court must accept the allegations of the complaint as true and must construe “the complaint in the light most favorable to the non-moving party.” Id.; see I.T. Consultants, Inc. v. Republic of Pakistan, 351 F.3d at 1184, 1188 (D.C. Cir. 2003). Alternatively, a Rule 12(b)(1) motion may assert a “factual” challenge to the Court's jurisdiction.

Erby, 424 F.Supp.2d at 182-83. When framed in this way, the Court “‘may not deny the motion to dismiss merely by assuming the truth of the facts alleged by the plaintiff and disputed by the defendant,' but ‘must go beyond the pleadings and resolve any disputed issues of fact the resolution of which is necessary to a ruling upon the motion to dismiss.'” Id. (quoting Phoenix Consulting Inc. v. Republic of Angola, 216 F.3d 36, 40 (D.C. Cir. 2000)). In this context, the factual allegations of the complaint are not entitled to a presumption of validity, and the Court is required to resolve factual disputes between the parties. Id. at 183. The Court may consider the complaint, any undisputed facts, and, to the extent the record permits, the contested facts. Id. (quoting Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992)).

Here, HUD's challenge to the Court's jurisdiction raises a factual challenge. Considered in that light, the Court finds that Becker has failed to carry his burden of showing by a preponderance of the evidence that he has standing to challenge the Smoke-Free Rule, which does not apply to his residence.

III. ANALYSIS

A.

As a preliminary matter, the Court must distinguish between two HUD programs. “Public housing” refers to “housing assisted under the 1937 Act, other than under Section 8.” 24 C.F.R. § 5.100. “Public housing” properties are owned by local PHAs and rent directly to tenants. In contrast, Section 8 authorizes HUD to provide financial assistance to “aid[] low-income families in obtaining a decent place to live.” 42 U.S.C. § 1437f(a). HUD can disburse that financial assistance in a variety of ways, including by providing assistance to individual tenants or by making payments to the owners of the housing units at which they reside. See Sandpiper Residents Assoc. v. U.S. Dep't of Housing & Urban Dev., 2022 WL 1604717, at *1-2 (D.D.C. May 21, 2022). Although Section 8 housing is still administered by local “public housing agencies,” the units are not “public housing” because they are privately owned and subject to a separate set of requirements. See, e.g., 24 C.F.R. § 886.123.

The Smoke-Free Rule does not apply to Section 8 housing and instead, applies only to “public housing units,” which the Rule defines as “low-income housing, and all necessary appurtenances (e.g., community facilities, public housing offices, day care centers, and laundry rooms) thereto, assisted under the U.S. Housing Act of 1937 (the 1937 Act), other than assistance under section 8 of the 1937 Act.” 24 C.F.R § 965.651 (emphasis added). As HUD points out, the agency considered and rejected...