In The

Supreme Court of the United States




Decided January 14, 1987

Justice O’Connor, Dissenting

Topic: Judicial Power*Court vote: 5–4
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Joining O'Connor opinion: Justice POWELL Justice POWELL Chief Justice REHNQUIST Chief Justice REHNQUIST Justice SCALIA Justice SCALIA
Citation: 479 U.S. 418 Docket: 85–5915Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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As the Court's opinion acknowledges, there must be a deprivation "of a right' secured by a federal statute" before 42 U.S.C. § 1983 provides a remedial cause of action. Ante at 479 U. S. 423. Petitioners' claim of a federally enforceable "right" raises three distinct questions. The first question is whether the Brooke Amendment to the Public Housing Act of 1937, Pub.L. 91-152, § 213, 83 Stat. 389 (1969), itself has created an enforceable right to utilities. The second is whether, in the absence of any indication of congressional intent to create a right to utilities, administrative regulations can create such a right. The third is whether, assuming administrative regulations alone could create a right enforceable in a § 1983 action, the regulations at issue in this case have established standards capable of judicial interpretation and application.

Whether a federal statute confers substantive rights is not an issue unique to § 1983 actions. In implied right of action cases, the Court also has asked, since Cort v. Ash, 422 U. S. 66, 422 U. S. 78 (1975), whether "the statute create[s] a federal right in favor of the plaintiff." In determining whether a statute creates enforceable rights, the "key to the inquiry is the intent of the Legislature." Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U. S. 1, 453 U. S. 13 (1981). We have looked first to the statutory language to determine whether it is "phrased in terms of the persons benefited," Cannon v. University of Chicago, 441 U. S. 677, 441 U. S. 692, n. 13 (1979), and is cast in mandatory, rather than precatory, terms. See Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 451 U. S. 18 (1981). We then have reviewed the legislative history of the statute and other traditional aids of statutory interpretation to determine congressional intent to create enforceable rights. See Sea Clammers, supra, at 453 U. S. 13.

Petitioners in this case assert that the Brooke Amendment creates an enforceable right to have "reasonable utilities" included in the limitation on the "rent" they may be charged by a public housing authority (PHA). The Brooke Amendment, as amended, Pub. L. 97-35, § 322, 95 Stat. 400, provides that a low-income family "shall pay as rent" a specified percentage of its monthly income for publicly assisted housing. The Court concludes that the statute's language satisfies the standards we have used in ascertaining an intent to create substantive rights: it is phrased in mandatory, and not merely precatory, terms, and it places an unmistakable focus on the benefited class. Ante at 479 U. S. 430. The statute also is phrased using right-creating language, rather than being framed "simply as a general prohibition or a command to a federal agency." University Research Assn. v. Coutu, 450 U. S. 754, 450 U. S. 772 (1981).

Assuming, as the Court finds, that Congress intended to create an enforceable right to a limitation on the amount PHA's may charge "as rent," the question remains whether petitioners' claim to reasonable utilities comes within the scope of the right that Congress intended to confer. On the face of the statute, there is nothing to suggest that Congress intended that utilities be included within the statutory entitlement. "Rent" in ordinary usage simply means consideration paid for the use or occupation of property, and the statute does not suggest congressional intent to adopt a broader construction of the term.

The legislative history of the Brooke Amendment, far from indicating an intent to create a statutory right to utilities, shows that Congress was presented with, and ultimately rejected, a proposal to create an enforceable right to "reasonable utilities." As originally reported out of the Senate, Senator Brooke's bill enumerated a range of shelter costs in addition to "rent" that were to be subject to the statutory rent limit. The Senate bill provided that the term "rental" was to include

the proportionate share attributable to the unit of the total shelter costs to be borne by the tenants in a low-rent housing project, including any separate charges to a tenant for reasonable utility use, and for public services and facilities.

115 Cong.Rec. 26726 (1969) (emphasis added). In the bill reported out of Conference, however, this reference to utilities was deleted. The Conference Report stated that the substitute bill "retain[ed] the basic concept" of the Senate bill by "generally limiting rents that may be charged to no more than 25% of [the tenant's] income," but it included no reference to the utilities charges provided for in the Senate bill. See H.R.Conf.Rep. No. 91-740, p. 30 (1969). In adopting the Brooke Amendment, therefore, Congress deliberately refrained from including "charges to a tenant for reasonable utility use and for public services and facilities" within the statutory entitlement.

The Court does not find that the statute's language or legislative history supports its conclusion that Congress intended to create a statutory entitlement to reasonable utilities. Instead, the Court concludes that the Department of Housing and Urban Development (HUD) has so interpreted the statute, and that "HUD's view is entitled to deference as a valid interpretation" of the Brooke Amendment. Ante at 479 U. S. 430. In my view, HUD's treatment of utilities since enactment of the Brooke Amendment will not bear the construction that the Court places upon it. Before passage of the Brooke Amendment, HUD's Local Housing Authority Management Handbook, pt. 2, § 9, Controlling Utility Consumption and Costs (1963), which provided guidelines for PHA's to use in calculating utility allowances, had established "no mandatory Federal standards, leaving the establishment of Allowances entirely to local discretion." 45 Fed.Reg. 59502 (1980). After enactment of the Brooke Amendment, HUD did not immediately promulgate new regulations fixing the amount of utilities that should be provided under the statute. Instead, the Handbook remained in effect for the next 11 years, until 1980, with the PHA's retaining complete discretion in the establishment of utilities allowances. Thus, HUD viewed the amount of utilities to be included under the Brooke Amendment's rental limitation as a question for local housing authorities -it was not a matter of federal entitlement.

The 1980 interim regulations on which petitioners rely do not reflect a different understanding on the part of the agency. [ Footnote 2/1 ] The reason given for adopting a uniform federal rule was administrative: it would be in "the best interests of the program," because it would "alleviate confusion and controversy" arising under the nonmandatory regime. 45 Fed.Reg. 59502 (1980). Noting that "many PHAs have been establishing utility allowances based on the HUD Guide," the agency sought to develop a uniform standard following "the general concepts" of the 1963 Handbook. Ibid. However, the uniform standards promulgated in the interim regulations came under severe criticism, see 47 Fed.Reg. 35249, 35250 (1982), and, less than two years after adoption of the interim regulations, HUD enacted proposed regulations designed to return "broad administrative latitude" to the PHA's in setting utility allowances. See id. at 35252. The proposed regulations retained a general standard of

reasonable consumption of utilities by an energy-conservative household of modest circumstances consistent with the requirements of a safe, sanitary, and healthful living environment.

Id. at 35251. In light of HUD's experience with the interim regulations, however, HUD deemed it "inadvisable" to

attempt to prescribe more restrictively the means by which individual PHAs must realize the general standards for allowances described above.

Id. at 35251-35252. HUD also indicated that the mandatory standards in the interim regulations may have been

inconsistent with the general imperative of the United States Housing Act of 1937, to 'vest in local public housing agencies the maximum amount of responsibility in the administration of their housing program.'

Id. at 35252.

In 1984, HUD enacted its final utilities regulations, which follow the approach of the proposed regulations and replace the more specific requirements of the interim regulations with a "reasonable utilities" standard. In establishing allowances, PHA's should consider a host of factors such as climatic location; air temperature to be maintained in the dwelling unit; the temperature of domestic hot water, measured at the tap; and the physical condition of the housing project. See 24 CFR § 965.476(d) (1985). Apart from these general guidelines, the regulations "ves[t] full responsibility for setting and revising allowances in accordance with the prescribed standards in the [PHA's]." 49 Fed.Reg. 31399, 31400 (1984). Thus, HUD currently chooses to give the PHA's wide discretion in setting utilities allowances; from 1980-1984, it gave the PHA's somewhat less discretion; and from 1969-1980, it left the issue entirely in the hands of the PHA's. The reasons HUD has given for these changes are ministerial, not interpretive. HUD's treatment of utilities since enactment of the Brooke Amendment shows that the agency does not view the statute as creating an enforceable right to an ascertainable amount of utilities: the degree to which utilities are fixed by regulation has been a matter of agency discretion, not statutory entitlement.

In the absence of any indication in the language, legislative history, or administrative interpretation of the Brooke Amendment that Congress intended to create an enforceable right to utilities, it is necessary to ask whether administrative regulations alone could create such a right. This is a troubling issue not briefed by the parties, and I do not attempt to resolve it here. The Court's questionable reasoning that, because, for four years, HUD gave somewhat less discretion to the PHA's in setting reasonable utilities allowances, HUD understood Congress to have required enforceable utility standards, apparently allows it to sidestep the question. I am concerned, however, that, lurking behind the Court's analysis, may be the view that, once it has been found that a statute creates some enforceable right, any regulation adopted within the purview of the statute creates rights enforceable in federal courts, regardless of whether Congress or the promulgating agency ever contemplated such a result. Thus, HUD's frequently changing views on how best to administer the provision of utilities to public housing tenants becomes the focal point for the creation and extinguishment of federal "rights." Such a result, where determination of § 1983 "rights" has been unleashed from any connection to congressional intent, is troubling indeed.

Even assuming that agency regulations of the sort at issue here could create rights enforceable in a § 1983 action, the temporary regulations involved in this case are not capable of judicial enforcement. The provisions remained subject to the exercise of wide discretion by the local housing authorities, thereby rendering it difficult or impossible to determine whether a violation occurred. Moreover, the regulations were cast as overall standards, rather than as a method for determining the utilities rates for particular tenants, making it impossible to fashion appropriate relief for individual plaintiffs. Thus, under the interim regulations, PHAs were to establish allowances which could "reasonably be expected" to meet the requirements of "about 90%" of the dwelling units in a particular "dwelling unit category." In making this calculation, the housing authorities were to exclude from consideration cases of "unusual individual circumstances," "wasteful practices," or use of major appliances. Adjustments also could be made, "if warranted," for "abnormal weather conditions or other changes in circumstances affecting utility consumption." See 24 CFR § 865.477 (1981). The housing authorities were to revise their utility allowances if more than 25% of the tenants in a particular dwelling unit category were being surcharged, if there was "no reason of a nonrecurring nature (such as weather extremes) to account for this," and if it was otherwise "appropriate." § 865.480(b). Provisions such as these, which provide no basis for calculating an individual tenant's utility allowance or for providing a remedy if there is a violation, simply defy judicial enforcement.

The Court's only response to the legislative and regulatory history of the utility regulations is to suggest that other actions taken by Congress and HUD show that they were of the view that low-income tenants could resort to federal courts when claiming that a PHA violated the utility regulations. See ante at 479 U. S. 424 -427, 479 U. S. 430, n. 11. That is simply not the case. The three actions by Congress and HUD identified in the Court's opinion are the congressional hearings preceding the Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35, § 322, 95 Stat. 400; the 1985 enactment of 42 U.S.C. § 1437d(k) (1982 ed., Supp. III) and HUD's implementing regulations, 24 CFR § 966.50 et seq. (1986); and HUD's comments accompanying its final utilities regulations, 49 Fed.Reg. 31399 (1984). The hearings preceding the 1981 Act merely address the effect of that legislation on tenants' general ability to enforce their rights under the Housing Act; they provide no assistance in determining whether those rights include reasonable utilities. As for the enactment of § 1437d(k), HUD has consistently taken the view, as the Court acknowledges, that "the grievance mechanism is not available for challenges to the general utility allowance schedules." Ante at 427 U. S. 427, n. 8. HUD's comments in 1986 in connection with proposing new grievance hearing regulations do not suggest that HUD believes low-income tenants have an enforceable right to reasonable utilities:

PHA action or nonaction concerning general policy issues or class grievances (including determination of the PHA's schedules of allowances for PHA-furnished utilities or of allowances for Tenant-purchased utilities) does not constitute adverse action by the PHA, and the PHA is not required to provide the opportunity for a hearing to consider such issues or grievances.

51 Fed.Reg. 26528 (1986).

Moreover, HUD's proposed utilities regulations in 1982 stated that a PHA's determination of utilities allowances was subject to review "pursuant to such procedures as may be available under State or local law." 47 Fed.Reg. 35249, 35254. In 1984, responding to comments challenging its "power... to divest Federal courts of jurisdiction," 49 Fed.Reg. 31399, 31403, HUD amended the provision to state that PHA allowance determinations are valid unless found to be arbitrary, capricious, an abuse of discretion, "or otherwise not in accordance with law." 24 CFR § 965.473(e) (1986). The agency's explanation for this change was that "the Department's power to preclude access to Federal court is doubtful." 49 Fed.Reg. 31403 (1984). Thus, HUD did not express the view that there is a right to reasonable utilities enforceable in federal courts; it simply recognized that it lacked authority to determine federal jurisdiction. Indeed, the regulations indicate that, while it did not have the authority finally to resolve the question, HUD viewed utilities determinations as a matter for state, rather than federal, courts.

In my view, petitioners do have a remedy in seeking to secure utilities from respondent: they may sue on their leases. [ Footnote 2/2 ] Pursuant to its authority to ensure the lower rental character of publicly assisted housing, see 42 U.S.C. §§ 1437c and 1437d (1982 ed. and Supp. III), HUD requires PHA's to set forth in their leases that they will

supply running water and reasonable amounts of hot water and reasonable amounts of heat at appropriate times of the year (according to local custom and usage),

24 CFR § 966.4(e)(7) (1986), and will

maintain in good and safe working order and condition electrical, plumbing, sanitary, heating, ventilating, and other facilities and appliances, including elevators, supplied or required to be supplied by the PHA.

§ 966.4(e)(5). HUD has developed a standard lease reflecting these requirements, see HUD Circular RHM 7465.8 (Feb. 22, 1971), which respondent's leases closely follow. Thus, respondent is contractually obligated to furnish, "as reasonably necessary,"

hot and cold water, gas for cooking, and electricity for lighting and general household appliances and heat at appropriate times of the year, and also range and refrigerator.

If respondent fails to fulfill these obligations, petitioners may, like any other tenants, bring suit for breach of contract.

For the reasons given above, however, in my view petitioners do not also have a statutory entitlement enforceable in federal courts by virtue of 42 U.S.C. § 1983. Neither the Brooke Amendment's language, nor its legislative history, nor its interpretation by HUD supports the conclusion that Congress intended to create an entitlement to reasonable utilities when it enacted the statute; and even if agency regulations, standing alone, could create such a right, the temporary regulations relied upon by petitioners in this case are not susceptible of judicial enforcement. On that basis, I believe that the judgment of the Court of Appeals for the Fourth Circuit should be affirmed. Accordingly, I respectfully dissent.


[ Footnote 2/1 ]

The interim regulations provided:

§ 865.477. Standards for allowances for PHA-furnished utilities. The Allowances for PHA-Furnished Utilities for each dwelling unit category and unit size shall be established in terms of consumption units, sufficient to meet the requirements of about 90% of the dwelling units in the category. Conversely, the Allowances should be such as are likely to result in surcharges for about 10% of the dwelling units. The basic method of determining the Allowances should be as follows:

(a) The dwelling unit consumption data for all units within each dwelling unit category and unit size should be listed in order from low to high consumption for each billing period.

(b) The PHA should determine whether there are any unusually high instances of consumption which might be due to unusual individual circumstances, wasteful practices, or use of the Utility for tenant-supplied major appliances. The PHA should exclude such cases from consideration in calculating the amount of the allowance.

(c) Where the available data covers two or more years, averages should be computed and adjustments made, if warranted, by reason of abnormal weather conditions or other changes in circumstances affecting utility consumption.

(d) The Allowances should then be established at the level which can reasonably be expected to meet the requirements of 90% of the dwelling units in the category.

24 CFR § 865.477 (1981).

[ Footnote 2/2 ]

Paragraph 4 of respondent's standard lease provides:

Utilities: Management Agent agrees to furnish at no charge to the Resident the following utilities as reasonably necessary: hot and cold water, gas for cooking, and electricity for lighting and general household appliances and heat at appropriate times of the year, and also range and refrigerator. Resident will be required to pay for all excess consumption of utilities above the monthly allocated amount as developed by the Authority and determined by the individual check meter servicing the leased unit. The schedule of allocations and charges for excess consumption is posted on the bulletin board of each Housing Development office.

Record, Exh. H.

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