Brenda Edwards v. District of Columbia, a Municipal Corporation

821 F.2d 651, 261 U.S. App. D.C. 163, 1987 U.S. App. LEXIS 7529

• Court: Court of Appeals for the D.C. Circuit
• Decided: June 12, 1987
• Docket: 85-6150
• Status: Published

Opinions

WALD, Chief Judge:

The United States Housing Act of 1937, as amended, provides that the Secretary of the Department of Housing and Urban Development may only approve an application from a local public housing agency for demolition of a federally funded housing project if the local agency complies with certain conditions set out in the statute. In this case, the District of Columbia’s local public housing agency has submitted a demolition application without complying with the conditions, and, accordingly, the Secretary has not approved the application. Plaintiffs maintain, however, that the conditions in the statutory section on demolition themselves impose independent duties on the local agency and secure to the affected tenants correlative rights to the performance of those duties, regardless of whether or not the Secretary has approved the application. We disagree, and affirm the District Court’s dismissal of plaintiffs’ complaint.

I. Background

A. The Demolition Schema

The United States Housing Act of 1937 (USHA), Pub.L. No. 75-412, 50 Stat. 888 (codified as amended at 42 U.S.C. §§ 1437-1440) (1982 & Supp. III 1985), is a fairly typical federal grant-in-aid program: in exchange for various types of federal funds, local public housing agencies (PHAs) must comply with an assortment of conditions. Among other things, the Act regulates rent calculation, 42 U.S.C. § 1437a, lease provisions, 42 U.S.C. § 1437d(l), tenant selection, 42 U.S.C. § 1437d(c)(4)(A), and demolition or disposition of housing projects, 42 U.S.C. § 1437p.

At issue in this case are the requirements for demolition of public housing projects. Section 1437p of 42 U.S.C., titled “Demolition and disposition of public housing,” reads, in relevant part, as follows:

(a) ...

The Secretary may not approve an application by a public housing agency for permission ... to demolish ... a public housing project or a portion of a public housing project unless the Secretary has determined that—

(1) ... the project or portion of the project is obsolete as to physical condition, location, or other factors, making it unusable for housing purposes, or no reasonable program of modifications is feasible to return the project or portion of the project to useful life; or in the case of an application proposing the demolition of only a portion of a project, the demolition will help to assure the useful life of the remaining portion of the project;

(b)

The Secretary may not approve an application or furnish assistance under this section ... unless—

(1) the application from the public housing agency has been developed in consultation with tenants and tenant councils, if any, who will be affected by the demolition or disposition and contains a certification by appropriate local government officials that the proposed activity is consistent with the applicable housing assistance plan; and

(2) all tenants to be displaced as a result of the demolition or disposition will be given assistance by the public housing agency and are relocated to other decent, safe, sanitary, and affordable housing, which is, to the maximum extent practicable, housing of their choice, including housing assisted under section 1437f of this title.

This section is implemented by regulations published at 24 C.F.R. § 970 (1986).

B. The Proceedings in This Case

Fort Dupont, consisting of approximately 300 units in southeast Washington, D.C., is one of the District of Columbia’s (District) federally subsidized low income housing projects. Although the Department of Housing and Urban Development (HUD) had approved modernization funds for twenty-eight Fort Dupont units in 1977, the rehabilitation work was not performed, and by 1981 escalating costs led the District, through the local PHA, to apply instead for permission to demolish the units. Two years later, the District updated this application to seek permission for demolition of 112 units. HUD has neither approved nor denied the District’s request for demolition.

Plaintiffs’ factual assertions, which we accept as true in reviewing a dismissal on the pleadings for failure to state a claim, allege “de facto, ” PI. Br. passim, or “constructive” demolition. According to plaintiffs, (1) HUD has not made the determination required by § 1437p(a)(l), and the District has (2) not consulted with the affected tenants, as required by § 1437p(b)(l), (3) not provided for the decent, safe, sanitary, and affordable relocation of these tenants, taking their choices for new quarters into account as much as possible, as required by § 1437p(b)(2), (4) not kept the vacant units in a state of good repair, and (5) made no attempt to rerent these units. Even though HUD has yet to approve the application and the units still stand, plaintiffs assert that the District has “embarked upon a program to demolish public housing,” PI. Rep. Br. at x, without fulfilling the statutory prerequisites.

Plaintiffs, nine current and former residents of Fort Dupont,¹ sued both HUD and the District for declaratory and injunctive relief and damages. Using 42 U.S.C. § 1983 (1982) as a vehicle, plaintiffs asserted that the District violated their rights secured by § 1437p of the USHA, its implementing regulations, 24 C.F.R. § 970 (1986), and the due process clause of the fifth amendment. Plaintiffs claimed additionally, under the Administrative Procedure Act (APA), 5 U.S.C. § 706 (1982), that HUD acted illegally in failing to deny the District’s demolition application. Finally, plaintiffs argued that both the District and HUD infringed their rights as third-party beneficiaries of the Annual Contributions Contract (ACC) between the District and HUD, pursuant to which public housing is operated.²

The District Court dismissed the entire complaint on the pleadings. Edwards v. District of Columbia, 628 F.Supp. 333 (D.D.C.1985). The court’s treatment of plaintiffs’ § 1983 claim against the District for violation of alleged § 1437p rights was somewhat confusing, however. The court first noted that it would not reach this claim, 627 F.Supp. at 338-39 n. 4, but later expressly concluded that § 1437p(b)(2), requiring appropriate relocation, fails to provide a right against constructive demolition. 628 F.Supp. at 342-43. It held that § 1437p(b)(2) “is only relevant once a demolition application has been approved and plaintiffs are displaced pursuant to the approved demolition.” 628 F.Supp. at 342. The court also rejected plaintiffs’ due process argument. 628 F.Supp. at 343.

The court further held that plaintiffs’ APA claim against HUD for failing to deny the demolition application is not ripe, since the application is admittedly incomplete, and HUD is therefore under no obligation to do anything. 628 F.Supp. at 338-39. Finally, the court dismissed plaintiffs’ third-party beneficiary claim, holding that “[pjlaintiffs have simply not demonstrated a cognizable claim against HUD for the alleged breach of the ACC by the District. Should plaintiffs have any claims for breach of contract, they would lie against the District, not HUD.” 628 F.Supp. at 345.

II. Constructive Demolition

A. When Do Federal Statutes Create “Rights”?

Plaintiffs’ case turns on whether or not § 1437p provides them rights against constructive demolition of their public housing units. Plaintiffs’ channel for enforcing their alleged § 1437p rights is 42 U.S.C. § 1983, which provides that

[ejvery person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or ... the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

(emphasis added). In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 65 L.Ed.2d 555 (1980), the Supreme Court held that § 1983 means what it says, and provides a remedy for the deprivation not only of rights secured by the federal Constitution but also of rights secured by federal laws.³ Thiboutot did not, though, indicate how a court should determine whether or not a law secures a right.⁴

One year later, the Court had occasion to flesh out the contours of Thiboutot. At issue in Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981), was the “bill of rights” provision, 42 U.S.C. § 6010, of the Developmentally Disabled Assistance and Bill of Rights Act (DDA), which declares that

Congress makes the following findings respecting the rights of persons with developmental disabilities:

(1) Persons with developmental disabilities have a right to appropriate treatment, services, and habilitation for such disabilities.

(2) The treatment, services, and habilitation for a person with developmental disabilities should be designed to maximize the developmental potential of the person and should be provided in the setting that is least restrictive of the person’s personal liberty.

(3) The Federal Government and the States both have an obligation to assure that public funds are not provided to any institutio[n] ... that — (A) does not provide treatment, services, and habilitation which is appropriate to the needs of such person; or (B) does not meet the following minimum standards____

(emphases added). Despite the specific language of rights and obligations, the Court concluded that § 6010

does no more than express a congressional preference for certain kinds of treatment. It is simply a general statement of “findings” and, as such, is too thin a reed to support the rights and obligations read into it by the court below. The closest one can come in giving § 6010 meaning is that it justifies and supports Congress’ appropriation of money under the Act and guides the Secretary in his review of state applications for federal funds.

451 U.S. at 19, 101 S.Ct. at 1541.

The Court’s restrictive reading of the bill of rights provision is best understood in relation to its explication of how Congress must speak if it wishes to create rights under its spending power through grant-in-aid programs:

The legitimacy of Congress’ power to legislate under the spending power ... rests on whether the State voluntarily and knowingly accepts the terms of the “contract.” ... There can, of course, be no knowing acceptance if a State is unaware of the conditions or is unable to ascertain what is expected of it. Accordingly, if Congress intends to impose a condition on the grant of federal monies, it must do so unambiguously____ By insisting that Congress speak with a clear voice, we enable the States to exercise their choice knowingly, cognizant of the consequences of their participation.

451 U.S. at 17, 101 S.Ct. at 1540. Applying this mandate to the bill of rights provision of the DDA, the Court evidently gave greater weight to the precatory portion of the provision, “Congress makes the following findings and less weight to the explicit language of rights and obligations contained within the three subsections of § 6010.

Pennhurst, it seems, attempts to distinguish statutory provisions that announce broad policy goals or general preferences from those that dictate specifically what the relevant governmental officials may and may not do. While policy goals and general preferences leave much room for governmental officials to determine the means by which these goals and preferences are to be carried out, and therefore are ambiguous regarding what duties are owed to which citizens, specific language of obligation narrowly cabins the discretion of officials, and, by the same terms, secures rights to a specific class of people. The task for each court in determining whether a provision in a grant-in-aid program secures rights is to ask whether Congress has spoken with a “clear voice” so that states and local governmental units may “exercise their choice knowingly.”

Indeed, the courts of appeals in the aftermath of Pennhurst have, for the most part, upheld rights claims in statutes that dictate specific action and leave little room for choice, while rejecting rights claims in statutes that merely indicate broad preferences. For example, this circuit held that 42 U.S.C. § 1437d(k), which provides that HUD “shall by regulation require each public housing agency receiving assistance under this chapter to establish and implement an administrative grievance procedure ...,” does secure public housing tenants a right to an administrative grievance procedure. Samuels v. District of Columbia, 770 F.2d 184 (D.C.Cir.1985). While not mandating the precise method by which the administrative grievance procedure must be carried out, the statute still constrains official discretion in a significant and clear fashion.⁵

On the other hand, Boatowners and Tenants Association v. Port of Seattle, 716 F.2d 669 (9th Cir.1983), found the declaration in 33 U.S.C. § 551 (1982) “that water terminals are essential at all cities and towns located upon harbors ... and that at least one public terminal should exist ... open to the use of all on equal terms” to be too general to provide a right to plaintiffs to challenge the defendants’ rates. Similarly, in Perry v. Housing Authority, 664 F.2d 1210 (4th Cir.1981), the court held that 42 U.S.C. § 1437, which provides that Congress’ purpose in passing the USHA was “to assist the ... States ... to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of low income fails to secure rights. The provision is simply a “precatory statement[] of Congress’ designs.” 664 F.2d at 1215.

Polchowski v. Gorris, 714 F.2d 749 (7th Cir.1983), is particularly helpful here because in construing contiguous statutory provisions the court held that one secures rights and the other doesn’t. Section 3789g of the Justice System Improvement Act controls the confidentiality of information obtained under the Act. 42 U.S.C. § 3789g (1982 & Supp. III 1985). Section 3789g(a), which the court held does secure a right, provides that “no recipient of assistance under the provisions of this chapter shall use or reveal any research ... information furnished under this chapter by any person and identifiable to any specific private person for any purpose other than the purpose for which it was obtained in accordance with this chapter.” Section 3789g(b), which the court held does not secure a right, provides that “the Office of Justice Programs shall assure that the security and privacy of all information is adequately provided for....” While the latter subsection is “essentially administrative in nature,” the former subsection “clearly imposes an affirmative obligation upon every person possessing statistical information to use it only for its intended purpose.” 714 F.2d at 751.⁶

Finally, contrary to the dissent, we read the Supreme Court’s recent decision in Wright v. City of Roanoke Redevelopment and Housing Authority, — U.S. -, 107 5. Ct. 766, 93 L.Ed.2d 781 (1987), as consistent with both Pennhurst and our holding today. In Wright, the Court held that the combination of the Brooke Amendment to the USHA, § 1437a, which provides that a low-income family “shall pay as rent” a specified percentage of its income, and the accompanying HUD regulations, which construe “rent” to include a reasonable amount for the use of utilities, afford public housing tenants a cause of action under § 1983 for overbilling by the local PHA for their utilities. The Court cited Thiboutot, Pennhurst, and Middlesex as establishing the basic rules of decision for determining whether § 1983 can be utilized to remedy violations of federal statutes. 107 S.Ct. at 770, 775. It explicitly rejected defendant’s claim that § 1437a and the implementing HUD regulations provide no enforceable rights, by explaining that the Brooke Amendment itself contains a “mandatory limitation” on rent, while the regulations “expressly require[]” a reasonable utility charge. The Court concluded that “the benefits Congress intended to confer on tenants are sufficiently specific and definite to qualify as enforceable rights under Pennhurst and § 1983, rights that are not, as [defendant] suggests, beyond the competence of the judiciary to enforce.” 107 S.Ct. at 775.

The dissent construes Wright as departing from Pennhurst’s mandate that local governmental units be made cognizant of the specific nature of their obligations under federal grant-in-aid programs, arguing that “there is no such requirement when the statute at issue uses mandatory, rather than merely precatory, language.” Diss. op. at 668. We, however, read Pennhurst and Wright together as standing for the proposition that Congress must employ “sufficiently specific and definite” statutory language in order to create rights and, at the same time, give notice to the relevant governmental unit of its obligations in relation to such rights. The issue to be decided in each case, of course, is whether the statute is in fact “sufficiently specific and definite” so as to create the rights alleged by the plaintiffs; while we agree with the dissent that “the statute in Wright sets forth specific obligations,” diss. op. at 668, i.e., an enforceable rent ceiling, we are obviously in disagreement with the dissent as to the obligations that § 1437p creates.

B. Does § 14S7p Secure Public Housing Tenants Rights Against Constructive Demolition?

The specific question before us in this case is whether there is a cause of action under § 1983 when a PHA intentionally seeks to circumvent the carefully crafted prerequisites of § 1437p in order to pave the way for demolishing units in a federally funded housing project, regardless of whether the Secretary approves the demolition application or the units are actually (or about to be) demolished. As we have discussed above, in detailing how courts have construed federal grant-in-aid statutes in response to rights claims, the statutory language in question must be such that the affected state or local governmental unit can accept federal funds with the knowledge that it is undertaking certain obligations, with correlative rights being secured to the affected citizens. We hold that the language of § 1437p does not provide the type of right that plaintiffs seek, and that the legislative history is likewise of no help to their argument.

As quoted above, 42 U.S.C. § 1437p provides, in relevant part, that HUD “may not approve an application” for demolition “unless”

(1) the Secretary has determined that the units in question are unusable for housing purposes, or it is not reasonable to restore the units in question, or the demolition of the units in question will help preserve the remaining units, and

(2) the PHA’s application has been developed in consultation with the tenants, and

(3) the affected tenants are aided by the PHA and relocated to decent, safe, sanitary, and affordable housing, which is of their choice, if at all possible.

It is clear from § 1437p that Congress intended the demolition of public housing units to occur only after the Secretary’s determination regarding the physical state of the units, the PHA’s consultation with the affected tenants and provision for their appropriate relocation, and the Secretary’s approval of the demolition application. However, the language of § 1437p creates only one independent obligation:⁷ “The Secretary may not approve an application ... unless ...” he has made the relevant determination and the PHA has consulted with the tenants and provided for their appropriate relocation. Were the Secretary to approve a demolition application without these prerequisites having been satisfied, the affected tenants would have a strong case against the Secretary under the APA to rescind the approval.⁸ See 5 U.S.C. § 706(2)(A) (“The reviewing court shall hold unlawful and set aside agency action ... found to be ... not in accordance with law — ”). Likewise, if the statute had provided that “A PHA shall not seek to demolish a public housing project or units thereof except by consulting with tenants and providing for their decent, safe, sanitary, and affordable relocation,” then the plaintiffs in this case would prevail in a § 1983 action against the District, because the language in this hypothetical statute prescribes an obligatory method of seeking demolition approval and is specific enough to warn the PHA about what it is getting into before it accepts federal funds. Section 1437p as written, however, does not establish independent duties on the part of the PHAs; instead, it creates conditions precedent that must occur before the Secretary approves a demolition application (and, necessarily, before actual demolition). As in contract law, these conditions precedent do not, by themselves, constitute independent duties.⁹

The legislative history that plaintiffs cite does not permit any different reading of § 1437p. Plaintiffs correctly point out that the relevant legislative history does indicate that Congress clearly intended demolition as a last resort. See S.Rep. No. 142, 98th Cong., 1st Sess. 38, reprinted in 1983 U.S.Code Cong. & Admin.News 1768, 1809, PI. Br. Add. at 12 (“[T]he Committee believes that every effort should be made to retain the present stock of public housing.”); H.R.Rep. No. 123, 98th Cong., 1st Sess. 36, PL Br. Add. at 14 (“The purpose of this provision is to ensure that the public housing stock remains available for housing low income families.”); Staff of the House Subcommittee on Housing and Community Development of the Committee on Banking, Finance and Urban Affairs, 98th Cong., 1st Sess., Compilation of the Domestic Housing and International Recovery and Financial Stability Act of 1983, at 319 (Comm. Print 1984), PL Br. Add. at 18 (“[I]t must be emphasized that the demolition or sale of any public housing project in this country should only be permitted as a last resort.”). However, neither these documents nor the floor debate reveals any congressional intention to create independent duties for the PHAs in § 1437p.¹⁰

In short, neither the language nor the legislative history of § 1437p creates rights in public housing tenants against the constructive demolition of their units.¹¹ Although an actual demolition may not occur without the Secretary’s approval, which in turn requires a physical condition determination, tenant consultation, and provision for appropriate relocation, nothing in the statute prevents the District from seeking such demolition in the allegedly insensitive way it has chosen.¹²

This conclusion regarding § 1437p permits us to reject plaintiffs’ entire complaint. We initially dispose of two claims against the District. First, plaintiffs’ claim through § 1983 to vindicate alleged § 1437p rights against constructive demolition falls directly under our main ruling. Second, plaintiffs argue, again through § 1983, that “[t]he demolition and relocation requirements located at ... § 1437p ... provide the plaintiffs with clear substantive rights, the deprivation of which require procedural Due Process protections.” PI. Br. at 38-39. Because we reject plaintiffs’ contention regarding the rights that § 1437p provides, we also reject their due process claim based on those alleged rights.¹³

Next, we dispose of plaintiffs’ third-party beneficiary claim against both HUD and the District under the Annual Contributions Contract (ACC). In their complaint, plaintiffs claimed that “[ujnless enjoined by this Court, all defendants will continue to breach the ACC by failing to provide standard housing to tenants living at and relocated from Fort Dupont.” Pl.Comp. at 15, J.A. at 22. The ACC provisions named by the plaintiffs read as follows:

Section 201. Use of Projects

The Local Authority shall at all times operate each project (1) solely for the purpose of providing decent, safe and sanitary dwellings (including necessary appurtenances thereto) within the financial reach of Families of Low Income, (2) in such manner as to promote serviceability, efficiency, economy, and stability, and (3) in such manner as to achieve the economic and social well-being of the tenants thereof.

Section 209. Repair, Maintenance, and Replacement

The Local Authority shall at all times maintain each Project in good repair, order, and condition.

Although this cause of action might be read broadly to assert a third-party beneficiary claim to “standard housing” based on the ACC only, or perhaps also the closely related general policy section of the statute, § 1437, plaintiffs on appeal have made quite clear that their third-party beneficiary claim is more narrowly circumscribed:

Plaintiffs do not assert on appeal that they can enforce an express obligation either upon HUD or the District in federal court solely upon the policy provisions set forth in section 1437 of the Act. Rather, plaintiffs claim that as third party beneficiaries they are entitled to enforce compliance with the explicit protections afforded against unwarranted demolition and arbitrary relocation in § 1437p of the Act and applicable HUD regulations, 24 C.F.R. § 970 et seq.

PL Br. at 48. Because plaintiffs’ third-party beneficiary claim hinges on our conclusion regarding the alleged “protections” afforded by § 1437p, our rejection of § 1437p rights based on a theory of constructive demolition necessitates our rejection of the third-party beneficiary claim as well.¹⁴

Only plaintiffs’ cause of action against HUD under the APA for failing to deny the District’s demolition application remains. In their complaint, plaintiffs claimed that HUD has acted “arbitrarily, capriciously, abused their discretion, or otherwise acted contrary to law by failing to deny [the District’s] present application.” Pl. Comp, at 18, J.A. at 25. Before us, plaintiffs argue that “HUD has both failed to prevent the District from engaging in de facto demolition at the project, and has unreasonably delayed agency action.” Pl. Br. at 39. This argument appears to go beyond the complaint, but in any case we may dismiss it quickly. Regarding the District’s failure to prevent constructive demolition,¹⁵ our rejection of the plaintiffs’ principal constructive demolition theory mandates a rejection of any duty HUD might have to prevent such behavior. As to the plaintiffs’ argument regarding delay, we echo the District Court’s response: “The Court finds plaintiffs’ position puzzling. If the applications are incomplete as plaintiffs allege, then HUD is precluded from taking any action on them.” 628 F.Supp. at 339 n. 5.

III. Conclusion

What the District of Columbia is doing to the public housing tenants in the Fort Dupont project is difficult to ascertain.¹⁶ Plaintiffs might find recourse in local law from the District’s alleged neglect and violation of its contractual obligations; however, because § 1437p does not secure rights to stop a PHA from seeking demolition approval without consulting with tenants or providing for their appropriate relocation, plaintiffs’ claims in this case must fall.

Accordingly, the judgment of the District Court dismissing plaintiffs’ complaint in its entirety is hereby

Affirmed,,¹⁷

1 . Plaintiffs brought this lawsuit as a class action pursuant to Fed.R.Civ.P. 23(b)(1) & (2), "on behalf of themselves and on behalf of a class consisting of all current Fort Dupont public housing tenants, and all such tenants who have been or will be relocated to substandard housing from Fort Dupont____ [T]he class consists of approximately one hundred and fifty ... households.” PI. Comp, at 8, J.A. at 15. The District Court dismissed the entire complaint on the pleadings, and did not rule on the motion for class certification.

2 . Plaintiffs also asserted, initially, that HUD had failed to approve modernization funds for Fort Dupont. They claimed that HUD violated the APA in so doing, and that the District violated plaintiffs’ rights under 42 U.S.C. § 1437l by failing to apply properly for such funds. After realizing that HUD had in fact approved the funds, plaintiffs dropped these claims.

Plaintiffs also claimed that the District violated its lease agreements with them by failing to maintain the project in a decent, safe, and sanitary condition, and by terminating tenancies without following statutory prerequisites. These claims arise under 42 U.S.C. § 1437d(l), which stipulates that "[e]ach public housing agency shall utilize leases which” require such maintenance and termination. The District Court dismissed these claims, holding that “actions for breach of lease agreements belong in the stated courts....” 628 F.Supp. at 342.

Plaintiffs had initially acknowledged that normally these lease-based claims belong in local court, but argued that a distinction be drawn in this case to permit suits alleging particularly egregious lease violations to be maintained in federal court. Rec. No. 33 at 49-51. We disagree. Such a distinction would recognize the existence of § 1437d(l) rights to the very things that § 1437d(l) merely stipulates must be required in each lease. That is, the only rights created by § 1437d(l) itself are rights to a lease that in turn requires proper maintenance and termination. Plaintiffs do not claim that their leases fail to require these things; rather, they argue that the District has breached its duties regarding proper maintenance and termination contained within those leases. We agree with the District Court that § 1437d(l) does not create federal rights to proper maintenance and termination, and that these claims belong in local court.

3 . In Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435 (1981), the Court emphasized that two separate questions must be asked when a plaintiff alleges through § 1983 that her rights secured by a federal law have been violated. The question that most immediately concerns us is "whether the statute at issue ... [is] the kind that create[s] enforceable ‘rights’ under § 1983." 453 U.S. at 19, 101 S.Ct. at 2625-26. The other question asks "whether Congress ha[s] foreclosed private enforcement of [the] statute in the enactment itself.” 453 U.S. at 19, 101 S.Ct. at 2626. This latter inquiry serves as a reminder that § 1983 is a congressional enactment to enforce federal rights against state actors, and can therefore be supplanted by another congressionally created enforcement scheme. In other words, this latter inquiry buttresses separation of powers principles, reminding the courts that they must follow Congress’ lead in enforcing federal statutory rights.

The District maintains that Congress, by providing that HUD shall not approve a demolition application unless certain conditions are met, has foreclosed private § 1983 enforcement of § 1437p. However, while HUD certainly can withhold demolition approval until the District meets the requisite conditions, plaintiffs' constructive demolition claim is that regardless of HUD’s actions the District’s behavior violates their § 1437p rights. Were plaintiffs correct in their contention that § 1437p secures rights against constructive demolition, HUD’s power to withhold demolition approval would be of little value.

4 . This question comprises the first of four factors used to determine whether to imply a cause of action from a federal statute. See Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). Although now the second factor of the Cort test, which emphasizes a more direct and rigorous search for congressional intent, is given the greatest weight, see Merrell Dow Pharmaceuticals Inc. v. Thompson, — U.S. -, 106 S.Ct. 3229, 3234 n. 9, 92 L.Ed.2d 650 (1986) (listing post-Cort Supreme Court cases stressing strict fidelity to congressional intent in implied cause of action field), the first factor of the Cort test does look to whether "the plaintiff [is] ‘of the class for whose especial benefit the statute was enacted’ ... — that is, does the statute create a federal right in favor of the plaintiff?” 422 U.S. at 78, 95 S.Ct. at 2088 (quoting Texas & Pac. Ry. v. Rigsby, 241 U.S. 33, 39, 36 S.Ct. 482, 484, 60 L.Ed. 874 (1916) (emphasis added)). Supreme Court cases that employed the Cort test initially emphasized this first factor, and concentrated particularly on whether or not the statute in question speaks in terms of specific rights and duties. See, e.g., Cannon v. University of Chicago, 441 U.S. 677, 690 n. 13, 99 S.Ct. 1946, 1954-55 n. 13, 60 L.Ed.2d 560 (1979); see also Brown, Pennhurst as a Source of Defenses for State and Local Governments, 31 Cath.U.L.Rev. 449, 458-59 (1982). Similarly, our discussion below will also focus on the presence of such language, as well as its specificity.

We believe the analogy to be sound despite the Court's subsequent movement in implied cause of action jurisprudence away from Cort’s first factor and toward its second factor. This movement toward an exclusive focus on whether Congress intended to create a private cause of action indicates the Court’s growing realization that it ought not conflate the question of whether a statute creates rights with the question of whether it creates a private cause of action to enforce those rights. However, in a case like ours, where a separate congressionally created cause of action, § 1983, clearly exists, then the focus on whether the statute creates rights is appropriate, and the value of the first Cort factor is retained. See also note 11, infra.

5 . Other cases that point to narrow language of obligation in holding that federal laws secure rights include Coos Bay Care Center v. Oregon Dep't of Human Resources, 803 F.2d 1060 (9th Cir.1986) (Section 1396(a)(13)(A) of 42 U.S.C. (Supp. III 1985) provides that "[a] State plan for medical assistance must provide for payment ... of the hospital ... through the use of rates ... which ... are reasonable and adequate ... to assure that individuals eligible for medical assistance have reasonable access ... to inpatient hospital services of adequate quality....”); Student Coalition for Peace v. Lower Merion School Dist. Bd. of School Directors, 776 F.2d 431 (3d Cir.1985) (Section 4071(a) of 20 U.S.C. (Supp. III 1985) provides that "[i]t shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access ... to ... any students who wish to conduct a meeting within that limited open forum on the basis of the ... political ... content of the speech at such meetings."); Alexander v. Polk, 750 F.2d 250 (3d Cir.1984) (7 C.F.R. § 246.24(a) (1978) provides that "[w]henever a person is determined to be ineligible to participate in the [Supplemental Food Program for Women, Infants, and Children, 42 U.S.C. § 1786 (1982),] the person shall be notified in writing of the reason for his ineligibility and his right to a fair hearing.”).

6 . It should be noted that the courts of appeals have decided other Thiboutot -type cases that do not look so carefully at the specificity of the obligations involved. A section of the USHA provides that "[é]very contract for annual contributions shall provide that the public housing agency shall comply with ... requirements pertaining to [t]he establishment of tenant selection criteria which gives preference to [certain types of families] and which is designed to assure that ... the project will include [other types of families]...." 42 U.S.C. § 1437d(c)(4)(A). Despite the apparent narrowing of the dictates to the local PHAs through the specification of preferences, the court in Phelps v. Housing Auth., 742 F.2d 816 (4th Cir.1984), held that the section creates no rights.

On the other hand, § 5(f) of the Hawaiian Admission Act, Pub.L. No. 86-3, 73 Stat. 4, 6 (1959), provides that Hawaii must hold certain lands “as a public trust ... for the betterment of the conditions of native Hawaiians ... and their use for any other object shall constitute a breach of trust for which suit may be brought by the United States." Despite the great breadth of this obligation, especially in the concept of public trust, the court in Keaukaha-Panaewa Community Ass'n v. Hawaiian Homes Comm’n, 739 F.2d 1467 (9th Cir.1984), held that the section does create rights.

7 . Of course, the very existence of § 1437p entails that a PHA may not raze a federally funded housing project without complying with § 1437p procedures. See note 12 infra and accompanying text.

8 . In a case decided before the demolition provision of the USHA was enacted, HUD was ordered, pursuant to the National Housing Act, 12 U.S.C. §§ 1715z-3(a)(2) & 1713(l) (1982), to “act in an appropriate manner and for a rational reason related to the achievement of the statutory objectives" in deciding to demolish a HUD-owned project. Cole v. Lynn, 389 F.Supp. 99, 102 (D.D.C.1975). But see Sadler v. 218 Hous. Corp., 417 F.Supp. 348, 359 (N.D.Ga.1976) (permitting HUD to demolish a federally subsidized project because its "decision ... was reached only after full consideration of the alternatives ... and was wholly consistent with its obligations under the National Housing Act”). Besides not being § 1437p cases. Cole, which plaintiffs cite in their favor, and Sadler, are inapposite here because they involved review of HUD’s demolition approval, whereas here, of course, HUD has failed to grant such approval.

9 . See 3A A. Corbin, Corbin on Contracts § 634 (1960) ("If the condition consists of some action by some person, it may properly be said not to be performed; but such non-performance is not a breach of contract unless he promised to render the performance — to perform the condition.").

10 . Section 1437p was added to the USHA by the Housing and Urban-Rural Recovery Act of 1983 and by the Domestic Housing and International Recovery and Financial Stability Act, both enacted as part of the Supplemental Appropriations Act of 1984, Pub.L. No. 98-181, § 214(a), 97 Stat. 1153, 1184 (1983). Prior to this enactment, Congress provided in § 202(a) of the Housing and Community Development Act of 1980, Pub.L. No. 96-399, 94 Stat. 1614, 1628 (1980) (codified at 42 U.S.C. § 1437l(f), repealed by § 1437p) that

[w]here an application made pursuant to this section proposes demolition of any low-rent housing project or any portion of such a project, the Secretary may not approve such application unless the Secretary determines that—

(1) timely replacement of the units in such project will be undertaken by the public housing agency;

(2) the total cost of providing such replacement housing is less than the total cost of rehabilitation of such project, except that the Secretary may waive such requirement where the Secretary determines that the demolition is necessary to meet the purposes of this section; and

(3) lower income families displaced by such proposed demolition will be provided with decent, safe, sanitary, and affordable housing.

The accompanying conference report merely restated the statutory language. H.R.Conf.Rep. No. 1420, 96th Cong., 2d Sess. 90 (1980). Thus, even the predecessor to § 1437p was written as a conditions statute, prescribing no independent duties to the local PHAs.

Plaintiffs cite one other aspect of the legislative history to support their argument that the District’s attempt to relocate Fort Dupont tenants is illegal. The report accompanying the 1983 House bill suggests that the Secretary determine that the PHA has not "engaged in a policy or practice of vacating the units” in order to meet the requirement that the project be "substantially unoccupied” before demolition. H.R.Rep. No. 123, 98th Cong., 1st Sess. 37 (1983), Pl. Br. Add. at 15. However, the requirement that a project be substantially unoccupied before demolition approval did not make it into the final law. Plaintiffs acknowledge this, but maintain that "the prohibitions in both the House and Senate bills against relocating tenants prior to approval were retained.” Pl. Rep. Br. at 4. Plaintiffs do not indicate where such prohibitions appear, but rather seem to be reiterating their constructive demolition argument, which we reject in the text. For a discussion of how the implementing regulations appear to address preapproval relocation, see note 13, infra.

11 . In the only case to resolve a § 1983 claim to federal statutory rights against the demolition of public housing, the court held that the provisions relied upon “are broad statements of purpose, not substantive provisions creating new federal rights." Hernandez v. Pierce, 512 F.Supp. 1154, 1159 (S.D.N.Y.1981) (rejecting claims versus New York City by tenants of city-owned, nonfederally funded buildings that had been approved for demolition). The provisions, 42 U.S.C. § 1441a(c) (1982), 42 U.S.C.S. § 5313 historical note (1982), and 42 U.S.C.S. § 1441 historical note (Supp.1986), all contain clearly precatory language, involving congressional declarations and findings about preserving existing housing, minimizing displacement of tenants, and conserving existing neighborhoods.

We should note that although the Hernandez court did explicitly rule on the issue of whether the statutes in question create federal rights, the court also held that since plaintiffs concededly could not imply a private cause of action under the statutes, they could therefore not bring a § 1983 action. The court argued that otherwise “a party that could not bring a private suit under a particular statute could simply restyle its grievance as a section 1983 action for violation of the very same statute.” 512 F.Supp. at 1159. Hernandez, decided a year after Thiboutot had held that § 1983 can serve as a cause of action to remedy rights secured by federal laws, is clearly incorrect in stating that the absence of a cause of action in the statute upon which plaintiffs rely for their rights claims necessitates the dismissal of a § 1983 cause of action based on those alleged rights. As we stated in Samuels v. District of Columbia, 770 F.2d 184, 194 (D.C.Cir.1985), § 1983 itself is an express congressionally created cause of action that plaintiffs may use to remedy rights secured by federal laws. Whereas in implied cause of action cases plaintiffs must demonstrate both that the relevant federal law secures rights and that Congress intended to create a cause of action to enforce those rights, in § 1983 cases plaintiffs need only show that the statute in question indeed secures the appropriate rights. See also note 4, supra.

12 . The dissent construes § 1437p as going further than establishing the necessary procedures for the actual demolition of federally funded public housing, while the concurrence states that this section falls short of even that mark. The dissent maintains that § 1437p “imposes an affirmative duty on PHAs not to abandon public housing projects” unless the prerequisites are met and HUD has approved, diss. op. at 669, adding that “the statute creates in tenants a right to keep their public housing tenancies so long as the PHA has failed to comply with these statutory prerequisites.” Id. Yet, § 1437p nowhere speaks of a duty “not to abandon" or a right “to keep”; it merely lays out the procedure for "demolition,” which is defined as the "destruction of structures.” Webster's Third New International Dictionary 600 (1976).

The concurrence, in contrast, argues that on the one hand the statute does not clearly require a PHA to seek HUD approval prior to demolition, but on the other hand that "Congress intended that HUD would secure a promise from the PHAs not to demolish" without applying to the Secretary. Cone. op. at 664 (emphasis added). Even if it were possible to parse a difference between two such levels of congressional intent, neither the legislative history nor the logic of the statutory scheme lends any support to the concurrence’s novel distinction; rather, both sources reveal that Congress clearly intended demolition to occur only after HUD approval of a PHA request.

' The House and the Senate Reports refer pointedly to the restrictions that the bill itself placed on demolition of federally funded housing. The House Report states that ”[t]he bill places certain restrictions on the demolition, sale or disposal of public housing projects____” H.R.Rep. No. 123, 98th Cong., 1st Sess. 36 (1983). The Senate Report adds that ”[t]he bill ... includes reasonable and workable restrictions which nevertheless allow the demolition and/or disposition of public housing projects____" S.Rep. No. 142, 98th Cong., 1st Sess. 38 (1983), 1983 U.S.Code Cong. & Admin.News, 1809. There is not a clue that the drafters and sponsors thought that the Secretary’s approval for demolition was optional with HUD. Indeed, such a provision would be nonsensical on its face. Finally, the housing amendments containing § 1437p had been enacted as part of the Supplemental Appropriations Act of 1984, so that there was no conference report and almost no floor debate on them. Representative St. Germain, Chairman of the House Committee on Banking, Finance and Urban Affairs (which had reported the initial bill), clarified the purpose of the housing amendments to his House colleagues in a floor statement. That clarification left no doubt about the need for the Secretary’s approval for any demolition:

[T]he Committee does not intend to encourage the sale of public housing projects____

The demolition ... of these extremely vital housing units should only be undertaken as a last resort and only if each and every condition for such [a] transaction[ ] [has] been met.

... This bill is intended to set standards limiting the circumstances under which pub-lie housing can be demolished or otherwise disposed. It is our intention that the standards in this bill be fully enforceable by tenants, tenants councils and through certification by local government officials.

Staff of the House Subcommittee on Housing and Community Development of the Committee on Banking, Finance and Urban Affairs, 98th Cong., 1st Sess., Compilation of the Domestic Housing and International Recovery and Financial Stability Act of 1983, at 319 (Comm. Print 1984) (reporting statement of Rep. St. Germain on House floor, November 18, 1983).

This legislative history supports the only reading of § 1437p that makes the section meaningful; under the concurrence’s interpretation, § 1437p procedures would not even come into play unless HUD required PHAs to agree to follow them. But it defies rational statutory construction to contend that Congress would enact a section entitled "Demolition and disposition of public housing,” provide for a particular procedure for demolition of public housing, and include no exception to that procedure, only as a discretionary option for HUD or local PHAs to follow or even only with the "expectation” that HUD would require local PHAs to follow it.

In short, we read § 1437p, titled "Demolition and disposition of public housing,” as covering no more and no less than its name implies.

13 . Plaintiffs’ claim that the District violated the implementing regulations, 24 C.F.R. § 970 (1986), suffers the same fate. The regulations, which basically track the statutory terms, only come close to prohibiting one of the actions that the District has taken by providing that the application must include "a plan for the relocation of tenants who would be displaced by the proposed demolition.” 24 C.F.R. § 970.8(d) (emphasis added). This requirement indicates that HUD does not expect the relocation itself to take place before demolition approval, as plaintiffs allege the District has attempted to do. However, this requirement does not rise to the level of a proscription of such preapproval relocation; moreover, as with the statute, the regulations are conditions precedent to demolition approval (and, therefore, actual demolition), not independent duties.

14 . Since plaintiffs’ third-party beneficiary argument plainly relies upon their § 1437p rights claims, we need not address, as the District Court did, 628 F.Supp. at 343-45, whether plaintiffs could receive more general relief, such as obtaining "standard housing,” as third-party beneficiaries of the ACC. See Samuels v. District of Columbia, 770 F.2d 184, 201 n. 14 (D.C.Cir.1985) (suggesting, but not holding, that such relief should not be available in the absence of clear congressional intent to the contrary).

15 . Plaintiffs cite letters from HUD to the Augusta, Georgia Housing Authority regarding the proposed sale of a public housing project. PI. Br. at 26, PI. Br. Add. at 22-23. These letters warned the authority not to encourage tenants to vacate their dwellings and not to fail deliberately to fill vacancies. Plaintiffs want HUD to instruct the District similarly. While we agree that HUD might do well to tell the District that its behavior is not bringing it any closer to gaining approval of its demolition request, we also agree with HUD that Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), applies here and forecloses review under the APA. In Chaney, the Court held that “an agency’s decision not to take enforcement action should be presumed immune from judicial review under § 701(a)(2),” 105 S.Ct. at 1656, which forecloses APA review when "agency action is committed to agency discretion by law.” 5 U.S.C. § 701(a)(2). Although "the presumption may be rebutted where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers,” 105 S.Ct. at 1656, it is clear that § 1437p does not address how, or even if, HUD must supervise the local PHAs with regard to pending demolition applications. As we have stated in the text, § 1437p’s only requirement with regard to HUD is that it not approve a demolition application without certain conditions precedent being satisfied. HUD has appropriately failed to approve the District’s application here, and we can demand no more of it under § 1437p.

16 . It is possible that there is neither rhyme nor reason behind the District’s behavior, but merely neglect. A recent report issued by the District’s auditor reveals that many public housing units in the District are left vacant for months, and that many needed repairs are left undone. Office of the District of Columbia Auditor, Review of Department of Housing and Community Development’s Property Management Administration’s System of Maintenance, Practices, and Financial Controls: FY 1983-FY 1985 (Nov. 26, 1986). Both types of inaction lead to vandalism, the report notes, exacerbating the problem. Except for the allegation that the District’s attempts to relocate the Fort Dupont tenants failed to meet § 1437p(b)(2)’s requirements regarding displacement, plaintiffs’ complaint mostly alleges various types of inaction, such as failure to consult with the tenants, failure to keep the vacant units in a state of good repair, and failure to rerent vacant units. These problems,' as the auditor’s report makes plain, may well exist on a city-wide basis and without regard to whether a demolition application is pending. In this case the existence of a pending demolition application cannot convert an apparently endemic state of District neglect into the deprivation of federal rights under § 1437p.

17 . Though we agree with the District Court’s ultimate conclusion, we find parts of its reasoning somewhat obscure, and, in the interest of clarifying future law in the circuit, point out here our areas of agreement and disagreement with its rationale. The court began by construing plaintiffs’ “Count IV” claim against HUD under the APA as a claim that “the demolition applications ... fail to satisfy the statutory and regulatory prerequisites for demolition.” 628 F.Supp. at 338. Actually, plaintiffs’ claim in the first part of Count IV, which they had dropped, see note 2, supra, was that HUD improperly denied modernization funds "without assisting [the District] to comply with the statutory and regulatory prerequisites for granting the application.” PI. Comp, at 18, J.A. at 25. The court then went on to the second part of Count IV, where plaintiffs argued that HUD violated the APA by "failing to deny [the District’s] present application to demolish 112 units at Fort Dupont,” Pl. Comp, at 18, J.A. at 25, and dismissed the entire count as not ripe because the prerequisites for approval of a demolition application had not been satisfied. 628 F.Supp. at 338. This resolution was incorrect, since plaintiffs' contention was that HUD’s current failure to deny the application, albeit incomplete, nevertheless constitutes illegal action. The court apparently recognized this, for in a footnote it responded to what it termed an alternative argument, that HUD had unlawfully delayed agency action. 628 F.Supp. at 339 n. 5. The court’s response to this version, on the merits, makes sense; and in the text following note 14, we agree with it.

Next, the court held that plaintiffs’ supposed source of jurisdiction, 28 U.S.C. § 1337 (commerce clause jurisdiction), "does not have its own jurisdiction conferring provision,” 628 F.Supp. at 339, misinterpreting, we fear, the Second Circuit’s opinion in IIT v. Vencap, Ltd., 519 F.2d 1001, 1015 (1975), which merely held that "[w]hile ... § 1337 ... is important when the Act of Congress does not have its own jurisdiction conferring provision ..., it adds nothing to one that does.” The District Court reasoned that “[f]or federal jurisdiction to exist pursuant to [§ 1337], some federal right ... must be present," 628 F.Supp. at 339, citing Perry v. Housing Auth., 486 F.Supp. 498, 500-01 (D.S.C.1980), aff'd, 664 F.2d 1210 (4th Cir.1981). Perry actually held only that "[t]he federal district courts have jurisdiction pursuant to § 1337 over claims arising from acts of Congress regulating commerce," and that an act regulates commerce "when its constitutional basis is the Commerce Clause....” 486 F.Supp. at 500.

The District Court, then finding it necessary to locate a federal right to support § 1337 jurisdiction, went on to reject a private right of action under § 1437, 628 F.Supp. at 339-40, which plaintiffs had denied they were asserting. See, e.g., Rec. No. 33 at 2-3.

Turning to the § 1983 claims, the court rejected yet another claim plaintiffs never raised, that of a § 1437 right to decent, safe, and sanitary housing. 628 F.Supp. at 341. It also rejected plaintiffs’ claim that § 1437d(/) creates a right to the enforcement of terms contained within leases, a ruling with which we agree in note 2, supra, 628 F.Supp. at 341-42. The court also rejected the nonexistent claim that the Constitution guarantees housing of a particular quality. 628 F.Supp. at 342.

The court then properly addressed plaintiffs’ constructive demolition argument, holding that § 1437p(b)(2) “is only relevant once a demolition application has been approved and plaintiffs are displaced pursuant to the approved demolition.” 628 F.Supp. at 342. As discussed in part II.B., we essentially agree with this. We also agree, in the text at note 13, with the court’s conclusion that the plaintiffs have not been deprived of procedural due process. 628 F.Supp. at 343. Having found no rights upon which it could support § 1337 jurisdiction, the court, however, returned to its erroneous view of commerce clause jurisdiction by holding that it does not exist in this case. 628 F.Supp. at 343.

Finally, the court "decline[d] to exercise pendent jurisdiction over plaintiffs’ local law claims,” 628 F.Supp. at 345, which can only be the ones under the Annual Contributions Contract that the court had already resolved against the plaintiffs on the merits. The court’s ultimate conclusion that it would "dismiss the entire action on the grounds [sic] that subject matter jurisdiction is lacking,” 628 F.Supp. at 345, is also mistaken. Plaintiffs’ § 1983, APA, and constitutional claims quite clearly arise under the Constitution and federal laws, as required by 28 U.S.C. § 1331, cited by plaintiffs as a source of jurisdiction along with § 1337. Thus, the court clearly had jurisdiction over the subject matter of the action, even though no valid cause of action was ultimately found.