United States Court of Appeals,
Fifth Circuit.
No. 91-2454.
RESIDENT COUNCIL OF ALLEN PARKWAY VILLAGE, et al., Plaintiffs-Appellees,
v.
UNITED STATES DEPARTMENT OF HOUSING & URBAN DEVELOPMENT, et al., Defendants-Appellants.
Jan. 13, 1993.
Appeal from the United States District Court for the Southern District of Texas.
Before KING, JOHNSON and DUHÉ, Circuit Judges.
KING, Circuit Judge:
This appeal arises from a lawsuit filed by residents of Allen Parkway Village, a Houston public
housing project, to prevent the proposed demolition of that project. The Housing Authority of the
City of Houston appeals the district court's April 4, 1991 order awarding permanent injunctive relief
against it and the United States Department of Housing and Urban Development. Because we
conclude that the residents of Allen Parkway Village have not stated a claim for which such relief
could be granted and are not, at this time, entitled to judicial review under the Administrative
Procedure Act, we reverse the district court's April 4, 1991 order granting permanent injunctive relief
and remand with instructions to dismiss the residents' complaint.
I. BACKGROUND
Allen Parkway Village (APV), which was built in the 1940s, is one of Houston's oldest public
housing projects. It is owned and operated by the Housing Aut hority of the City of Houston
(HACH), a state agency established to provide low income persons with safe and affordable housing.
See TEX.LOC.GOV'T CODE ANN. § 392.011 (Vernon 1988). Under the terms of HACH's long term
annual contributions contract with the United States Department of Housing and Urban Development
(HUD), HACH receives federal funds to subsidize low-income housing.
In 1979, under the Public Housing Urban Initiative Program, HUD provided $10 million to
HACH for the modernization of APV. The funds were specifically reserved for HACH's use. See 24 C.F.R. Part 868 (1979). During the next five years, HACH used approximately $1.5 million of
the federal modernization funds.
In August 1984, pursuant to the procedures set forth in 42 U.S.C. § 1437p, HACH submitted
an application to HUD to demolish APV. According to HACH, demolition of APV was necessary
because the housing project was "obsolete," "physically deteriorated," and "located in a neighborhood
which is blighted." The demolition application also contained, as required by § 1437p, a relocation
plan for residents and a replacement housing plan to compensate for the loss of APV's 1,000 housing
units.
Before HUD had acted on HACH's application to demolish APV and before any demolition
had occurred, on December 27, 1987, Congressmen Marvin Frost and Mickey Leland introduced an
amendment to an appropriations bill for HUD. The Frost-Leland Amendment, which was passed by
Congress, provides as follows:
None of the funds provided by this Act or any other Act for any fiscal year shall be used for demolishing George Lovi ng Place, at 3320 Rupert Street, Edgar Ward Place, at 3901 Holystone, Elmer Scott Place, at 2600 Morris, in Dallas, Texas, or Allen Parkway Village, 1600 Allen Parkway, in Houston, Texas.
United States Department of Housing and Urban Development—Independent Agencies
Appropriations Act, 1988, Pub.L. No. 100-202, Title IV, § 415, 101 Stat. 1329-213 (emphasis
added).
Two years after the passage of the Frost-Leland Amendment, on January 25, 1989, the
Resident Council of Allen Parkway Village (Resident Council) and two individual residents of APV
(collectively, Plaintiffs) filed suit against HUD and HACH in federal district court. The purpose of
the suit was to enforce the Frost-Leland Amendment and to prevent both HUD and HACH from
using federal funds to "prepare, revise and advance" the APV demolition application. The Plaintiffs
asserted jurisdiction under 28 U.S.C. § 1331 and sought declaratory and injunctive relief under the
Frost-Leland Amendment itself, under 42 U.S.C. § 1983, and under the Administrative Procedure
Act, 5 U.S.C. § 501 et seq.
The district court granted the Plaintiffs' request for a preliminary injunction against HACH
on April 13, 1989. No preliminary injunction was requested against HUD, however, because HUD had agreed to keep the Plaintiffs advised of the progress of HACH's demolition application. In
granting the preliminary injunction against HACH, the district court first held that the Plaintiffs had
"standing" under 42 U.S.C. § 1983 to bring this action. The district court noted that implicit in 42
U.S.C. § 1437p(b) "is the right of the tenant, or the tenant council, to bring suit to protect the status
of residents who would be affected by any demolition and displacement" of a public housing facility.
The district court further reasoned that, once it is established that a plaintiff is a resident of a public
housing facility, "that tenant may enforce any federal statutory right appertaining to that status and
the facility, particularly where the activity complained of falls into an area protected or regulated by
statute." The district court then defined the phrase "for demolishing" in the Frost-Leland Amendment
as referring not only to the physical act of destruction, but also "to the process by which destruction
is commenced and finished." Id. Finally, because it concluded that the Plaintiffs were likely to prevail
on their § 1983 claim, the district court granted their application for a temporary injunction.
On December 5, 1989, HUD returned HACH's application for t he demolition of APV as
unapproved. In the letter returning the application, HUD reminded HACH that it had a legal
obligation to operate the development as public housing. HUD also informed HACH that federal
funds were available for modernization of APV and set a deadline for HACH to decide on future
development. As HUD had requested, HACH submitted its plan for developing APV on January 12,
1990. The plan called for either new construction or comprehensive rehabilitation of 150 units. The
remaining units, according to the plan submitted by HACH, were "slated for removal." After this plan
was submitted, HUD requested that HACH take immediate action (i.e., within 90 days) to furnish a
formal application for approval with respect to any long term modernization, demolition and/or
disposition of APV. HACH never responded to HUD's request.
The district court granted the permanent injunction at issue in this appeal on April 4, 1991.
In its order, the district court first held that, despite HUD's decision to return HACH's application for
demolition as unapproved, the case was not moot. The district court specifically stated that "[t]here
are live issues in this case as long as HACH fails to use allocated federal funds for their intended
purposes, maintenance and renovation of APV, and simultaneously insists on spending the allocated funds on studies that are designed to defeat those purposes." The district court then proceeded to
the merits of the Plaintiffs' claim for declaratory and injunctive relief and reaffirmed its prior definition
of the phrase "for demolishing" in the Frost-Leland Amendment as including studying, preparing, or
taking steps towards demolition. Ultimately, the district court:
(1) prohibited HACH from spending any federal funds on any activity that "promotes, advances, or explores the total demolition of APV," including activity designed to establish that rehabilitation and renovation of part or all of APV are useless;
(2) ordered HACH to furnish an accounting of all expenditures of federal funds allocated to HACH since 1979;
(3) ordered HACH to present, within 60 days, a plan to use federally appropriated funds for the repair and upgrading of all or part of APV;
(4) granted the permanent injunction requested to the full extent of the Frost-Leland Amendment;
(5) ordered HUD to set aside the funds remaining from the $10 million appropriation to HACH in 1979;
(6) ordered HACH to submit, under separate cover, an accounting of all expenditures of funds set aside for the repair and renovation of APV as well as all rent subsidies that are now and have been allocated and paid to HACH for the APV apartments; and
(7) ordered all discovery associated with the 42 U.S.C. § 1983 claims be completed within 90 days.
On May 2, 1991, HACH filed a timely notice of appeal from the district court's order. HUD
did not file any such notice. On August 27, 1991, however, this court granted HUD's uncontested
motion to be realigned as an appellant in this court for purposes of briefing.
II. JURISDICTIONAL PROBLEMS
Before we review the district court's April 4, 1991 order granting permanent injunctive relief
against HACH and HUD, we address two jurisdictional problems. The first jurisdictional problem
concerns the district court's power to award injunctive and declaratory relief. It requires us to decide
whether HUD's decision to return the APV demo lition application as unapproved renders the
controversy between the Plaintiffs and HUD and HACH moot. The second such problem concerns
our appellate jurisdiction, and in particular, our ability to review that portion of the district court's
order directed at HUD.
A. The Effect of HUD's Decision to Return the Demolition Application In district court, HUD and HACH contended that the Plaintiffs' request for declaratory and
injunctive relief was moot. They argued that the passage of time, and particularly, HUD's decision
to return the APV demolition application as unapproved, eliminated any justiciable controversy. For
the following reasons, we agree with the district court that there is still a live controversy between
the Plaintiffs and HUD and HACH under Article III of the Constitution.
A controversy becomes moot where, as a result of intervening circumstances, there are no
longer adverse parties with sufficient legal interests to maintain the litigation. Mills v. Green, 159
U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1859). Mootness can arise in one of two ways:
First, a controversy can become moot "when the issues presented are no longer "live.' " Powell v.
McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 1951, 23 L.Ed.2d 491 (1969). A controversy can
also become moot when "the parties lack a legally cognizable interest in the outcome." Id.
In this case, HUD's decision to return HACH's demolition application does not render the
Plaintiffs' request for injunctive relief moot. "Mere voluntary cessation of allegedly illegal conduct
does not moot a case" in which injunctive relief is sought. United States v. Concentrated Phosphate
Export Ass'n, 393 U.S. 199, 203, 89 S.Ct. 361, 364, 21 L.Ed.2d 344 (1968). And, although "[a] case
might become moot if subsequent events ma[k]e it absolutely clear that the allegedly wrongful
behavior could not reasonably be expected to recur," id., such is not the case here. HUD's decision
to return HACH's demolition application does not prevent HACH from subsequently filing another
such application. Nor does HUD's decision with respect to the first application foreclose the
possibility that a subsequent demolition application might be approved by HUD. In short, HUD's
decision to return HACH's demolition application as unappro ved simply does not "ma[k]e it
absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur."
Accordingly, there was, at the time the district court granted permanent injunctive relief, and still is,
a live controversy between the Plaintiffs and HUD and HACH.
B. The Effect of HUD's Failure to File a Notice of Appeal
The more complicated jurisdictional question, in our view, concerns HUD's failure to file a
timely notice of appeal. As we have already noted, HACH filed a timely notice of appeal, but HUD did not. HUD subsequently moved to be realigned as an "appellant" for purposes of briefing and was
permitted to file a brief and argue before this court. After explaining HUD's status before this court,
we must decide whether HACH may properly appeal the portion of the district court's order directed
to HUD.
1. HUD's status in this appeal
Under the Federal Rules of Appellate Procedure, an appeal "shall be taken by filing a notice
of appeal with the clerk of the district court within the time allowed by Rule 4." FED.R.APP.P. 3(a).
The notice of appeal must "specify the party or parties taking the appeal" and must "designate the
judgment, order or part thereof appealed from." Id. 3(c). A timely notice of appeal containing the
components set forth in Rule 3(c) is a mandatory precondition to exercise of jurisdiction by a court
of appeals. See Browder v. Director, Illinois Dep't of Corrections, 434 U.S. 257, 264, 98 S.Ct. 556,
560, 54 L.Ed.2d 521 (1978); Nelson v. Foti, 707 F.2d 170, 171 (5th Cir.1983).
Because HUD did not timely file and was not otherwise named in a notice of appeal, HUD
is not an "appellant" before this court. The notice of appeal filed by HACH, which specified only that
HACH desired to appeal from the district court's April 4, 1991 order, does not vest this court with
jurisdiction over an appeal by HUD. See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317, 108
S.Ct. 2405, 2409, 101 L.Ed.2d 285 (1988) (court of appeals had no jurisdiction over appeal by party
who did not file the functional equivalent of a notice of appeal and was never named or otherwise
designated in the notice of appeal filed by others). Nor does this court have jurisdiction over an
appeal by HUD merely because HUD was a party below and "realigned" itself for purposes of filing
a brief in support of HACH's appeal. See Farley Transp. Co. v. Santa Fe Trail Transp. Co., 778 F.2d
1365, 1369-70 (9th Cir.1985) (Federal Rules of Appellate Procedure do not mirror Supreme Court
Rules, under which "[a]ll parties to the proceeding in the court from whose judgment the appeal is
being taken" are deemed to be parties to the appeal absent written notification to the contrary); cf.
Diamond v. Charles, 476 U.S. 54, 63, 106 S.Ct. 1697, 1704, 90 L.Ed.2d 48 (1986) (status as a
"party" under Supreme Court Rules does not equate with status as an appellant; rather, "[t]o appear
before t he Court as an appellant, a party must file a notice of appeal, the statutory prerequisite to invoking [the] Court's jurisdiction.").
HUD's status before this court is more akin to the status of an amicus curiae. HUD has an
interest in HACH's appeal, but is not a party to the appeal. See New England Patriots Football Club,
Inc. v. University of Colorado, 592 F.2d 1196, 1198 n. 3 (1st Cir.1979) (an amicus is one who, not
as a party, gives information of some matter of law in regard to which the court is doubtful or
mistaken); see also Funbus Systems, Inc. v. State of California Public Utilities Comm'n, 801 F.2d
1120, 1125 (9th Cir.1986) ("[T]here is no rule that amici must be totally disinterested."). Under this
view, HUD's motion to be realigned as an appellant for purposes of briefing may be construed as a
motion to file an amicus brief under Rule 29 of the Federal Rules of Appellate Procedure. Because
Rule 29 provides that a federal agency such as HUD may file an amicus brief even without consent
of all parties or leave of court, see FED.R.APP.P. 29, we may properly consider the arguments raised
by HUD. We are constrained only by the rule that an amicus curiae generally cannot expand the
scope of an appeal to implicate issues that have not been presented by the parties to the appeal.1 See
Christopher M. v. Corpus Christi Indep. School Dist., 933 F.2d 1285, 1292 (5th Cir.1991) (amicus
curiae ordinarily cannot raise an issue that has not been raised by the parties absent exceptional
circumstances) (citing United Parcel Serv., Inc. v. Mitchell, 451 U.S. 56, 60 n. 2, 101 S.Ct. 1559,
1562 n. 2, 67 L.Ed.2d 732 (1981)). But compare Teague v. Lane, 489 U.S. 288, 300, 109 S.Ct.
1060, 1069, 103 L.Ed.2d 334 (1989) (addressing question of retroactivity of habeas petitioner's claim
despite fact that it was raised only in an amicus brief).
2. HACH's standing to appeal portions of the order directed at HUD
The real problem with HUD's failure to file a notice of appeal is o ne of HACH's standing.
While most of the district court's April 4, 1991 order is directed at HACH, at least one part is
specifically directed at HUD. In particular, the district court ordered HUD to set aside the funds
remaining from the $10 million appropriation to HACH in 1979. We must therefore determine
whether HACH has standing to appeal from this portion of the district court's April 4, 1991 order.
1 In this regard, we note that HUD, in its brief to this court, has not attempted to expand the scope of HACH's appeal. Instead, it has confined its arguments to those raised by HACH. If HACH does not have standing to assert that the district court erred in ordering HUD to set aside
the remainder of the 1979 modernization funds, then this portion of the district court's order must
stand. In the words of the Supreme Court, "[b]y not appealing the judgment below, [HUD] indicated
its acceptance of that decision...." Diamond, 476 U.S. at 63, 106 S.Ct. at 1704.
The Article III standing requirement stems from the limited power of federal courts to decide
only "cases" and "controversies." To establish Article III standing, a party seeking judicial resolution
of a dispute must show more than the presence of a disagreement. Diamond, 476 U.S. at 62, 106
S.Ct. at 1703. He must also "show that he personally has suffered some actual or threatened injury
as a result of the putatively illegal conduct...." Id. (quoting Gladstone, Realtors v. Village of
Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601, 1608, 60 L.Ed.2d 66 (1979)). In other words, he must
show that he is not just a "concerned bystander," see United States v. SCRAP, 412 U.S. 669, 687,
93 S.Ct. 2405, 2416, 37 L.Ed.2d 254 (1973), but someone with "a direct stake in the outcome," see
Sierra Club v. Morton, 405 U.S. 727, 740, 92 S.Ct. 1361, 1369, 31 L.Ed.2d 636 (1972).
We conclude that HACH has standing to attack the validity of all portions of the district
court's April 4, 1991 order, including the part that is nominally directed to HUD. The money the
district court ordered HUD to set aside is, after all, money that has already been appropriated to
HACH. In its April 4 order, then, the district court effectively instructed HUD to withhold or recover
money that had already been appropriated to HACH. Thus, HACH is more than just a "concerned
bystander" with respect to the district court 's instructions to HUD: HACH has a direct monetary
stake in attacking this portion of the district court's order. Accordingly, HUD's failure to file a timely
notice of appeal, while it precludes HUD from being an appellant in this court, has no effect on our
ability to reach the merits of all the complaints levelled by HACH against the district court's April 4,
1991 order.
III. THE DISTRICT COURT'S ORDER GRANTING INJUNCTIVE RELIEF
HACH and HUD argue that the district court's April 4, 1991 order granting permanent
injunctive relief against them cannot stand. They argue initially that the Plaintiffs have failed to state
a claim for which such relief may be granted. In this regard, they argue that the Plaintiffs (a) have not stated a claim for which relief can be granted under 42 U.S.C. § 1983, (b) have not stated a claim for
which relief can be granted under the Frost-Leland Amendment itself, and (c) are not entitled to
judicial review under the Administrative Procedure Act. HACH and HUD further contend that, even
if the Plaintiffs had stated a claim for which relief could be granted, the district court erred in
interpreting the Frost-Leland Amendment to prohibit the expenditure of federal funds for studying,
preparing, or taking steps towards demolition. Because we agree that the Plaintiffs have failed to
state a claim fo r which relief can be granted and are not entitled to judicial review under the
Administrative Procedure Act, we do not address the district court's interpretation of the Frost-
Leland Amendment.
A. Have the Plaintiffs' Stated a Claim for Which Relief Can Be Granted under Section 1983?
On appeal the Resident Council maintains that the Plaintiffs have stated a claim for which
relief can be granted under 42 U.S.C. § 1983. We disagree. To state a valid claim under § 1983, a
plaintiffs must (1) allege a violation of rights secured by the Constitution or laws of the United States
and (2) demonstrate that the alleged deprivation was committed by a person acting under color of
state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988) (citing
cases). With regard to their claim against HACH, the Plaintiffs have not alleged a violation of "rights
secured by the Constitution or laws of the United States." And, with regard to their claim against
HUD, the Plaintiffs cannot show that HUD has acted "under color of state law."
1. Against HACH?
Pointing to the Supreme Court's decision in Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502,
65 L.Ed.2d 555 (1979), the Resident Council argues that the Plaintiffs have stated a claim for which
relief may be granted against HACH. The Resident Council first notes that, according to the Court
in Thiboutot, § 1983 provides a cause of action for violations of federal statutes under color of state
law. The Resident Council reasons that, because the Frost-Leland Amendment is a federal statute,
a violation of that amendment by agents of the state such as HACH, is redressable under § 1983.
We recognize that, in Thiboutot, the Court concluded that § 1983 provides a cause of action
for violations of federal statutes, not just the Constitution, under color of state law. 448 U.S. at 4-8, 100 S.Ct. at 2504-2506. Since Thiboutot, however, the Supreme Court has recognized that not every
violation of a federal statute under color of state law is redressable under § 1983. See Golden State
Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448, 107 L.Ed.2d 420
(1989). First, no § 1983 cause of action for a violation of a federal statute will lie where "Congress
has foreclosed such enforcement of the statute in the enactment itself." Wright v. City of Roanoke
Redev. & Hous. Auth., 479 U.S. 418, 423, 107 S.Ct. 766, 770, 93 L.Ed.2d 781 (1987). Second, §
1983 will not provide a cause of action for a violation of a federal statute where the federal statute
in question does not "create enforceable rights, privileges, or immunities within the meaning of §
1983." Id. In this case, it is the second exception that is at issue. Accordingly, we must decide
whether the Frost-Leland Amendment creates an enforceable federal right within the meaning of §
1983.2
The Supreme Court set forth a framework for analyzing whether a federal statutory provision
creates an enforceable federal right within the meaning of § 1983 in Wilder v. Virginia Hospital
Association, 496 U.S. 498, 509, 110 S.Ct. 2510, 2517, 110 L.Ed.2d 455 (1990). The first and most
important question under this framework is "whether "the provision in question was intend[ed] to
benefit the putative plaintiff.' " Id. (citation omitted). If the answer to the first question is "yes," then
the federal statutory provision creates an enforceable right unless (1) it reflects merely a congressional
preference for certain kind of conduct rather than a binding obligation on the governmental unit or
(2) the interest the plaintiff asserts is too vague and amorphous, such that it is beyond the competence
of the judiciary to enforce. Id.
The Supreme Court's most recent decision on the issue of whether a federal statute creates
an enforceable right within the meaning of § 1983, however, Suter v. Artist M., --- U.S. ----, 112
2 It is important to note that the Plaintiffs are seeking to enforce rights allegedly created by the Frost-Leland Amendment, and not rights secured by 42 U.S.C. § 1437p. In their brief on appeal, the Resident Council's first reply point states that "THE FROST LELAND AMENDMENT PROVIDES THE RESIDENT COUNCIL AND TENANTS OF APV WITH SUBSTANTIVE AND IMPLIED RIGHTS TO A PRIVATE CAUSE OF ACTION UNDER 42 U.S.C. SECTION 1983." Thus, while the district court may have been correct in stating that 42 U.S.C. § 1437p creates enforceable federal rights, the question is whether the Frost-Leland Amendment creates such rights. S.Ct. 1360, 118 L.Ed.2d 1 (1992), calls into question the continued viability of the framework set
forth in Wilder. In his dissenting opinion in Suter, Justice Blackmun argued that the majority did not
even apply t he framework set forth in Wilder. See Suter, --- U.S. at ----, 112 S.Ct. at 1371
(Blackmun, J., joined by Stevens, J., dissenting). According to the First Circuit, the Wilder
framework "fell on hard times" in the Supreme Court's Suter decision. Stowell v. Ives, 976 F.2d 65,
68 (1st Cir.1992).
The issue raised in Suter was whether private individuals had the right to enforce by suit a
provision of the Adoption Assistance and Child Welfare Act of 1980—a statute, the Court
emphasized, that was enacted pursuant to Congress' spending power. Id. --- U.S. at ----, 112 S.Ct.
at 1366. The specific provision sought to be enforced by the plaintiffs in Suter required the State—in
order to be eligible for reimbursement from the federal government for certain expenses incurred in
administering foster care and adoption services—to submit a plan to the Secretary which provided
that, prior to the placement of a child in foster care, "reasonable efforts" would be made to prevent
removal of a child from his home and to make it possible for the child to return to his home. 42
U.S.C. § 671(a)(15). In deciding whether the provision requiring the State to use "reasonable efforts"
created a federal right enforceable under § 1983, the Suter Court framed the question as follows:
Did Congress, in enacting the Adoption Act, unambiguously confer upon the child beneficiaries of the Act a right to enforce the requirement that the State make "reasonable efforts" to prevent a child from being removed from his home, and once removed to reunify the child with his family?
--- U.S. at ----, 112 S.Ct. at 1367 (emphasis added). The Court then proceeded to analyze exactly
what the statute required the State to do. Ultimately, the Court concluded that the language of the
statute did not "unambiguously confer" an enforceable right on the statute's beneficiaries. Id. at ----,
112 S.Ct. at 1370. It stated: "The term "reasonable efforts' in this context is at least as plausibly read
to impose only a rather generalized duty on the state, to be enforced not by private individuals, but
by the Secretary [of Health and Human Services] in the manner previously discussed." Id.
In this case, we need not decide whether Suter "effected a sea change in the Court's approach
to section 1983," Stowell, 976 F.2d at 68, because even under the Wilder framework, the Frost-
Leland Amendment does not create a federally enforceable right within the meaning of § 1983. Even if, under the first Wilder prong, the residents of APV were the intended beneficiaries of the Frost-
Leland Amendment, a straightforward reading of the provision indicates that the Frost-Leland
Amendment imposes no "binding obligation on the States." Wilder, 496 U.S. at 510, 110 S.Ct. at
2518. Although stated in mandatory terms, the Frost-Leland Amendment is an appropriations rider
directed solely to HUD, a federal agency. In our view, Congress, by directing its command to HUD,
expressed its intent that HUD—not private individuals such as the residents of APV—should enforce
the prohibition against using federal funds to demolish the specified public housing projects.3 Indeed,
it is difficult to believe that Congress would impose a binding obligation on the states in an
amendment to a bill appropriating funds to a federal agency. As the First Circuit recognized in
Stowell: "when a provision in a statute fails to impose a direct obligation on the States, instead
placing the onus of compliance with the statute's substantive provisions on the federal government,
no cause of action cognizable under section 1983 can flourish." 976 F.2d at 70.
Our conclusion that the Frost-Leland Amendment does not create federally enforceable rights
within the meaning of § 1983 is buttressed by the fact that it was enacted pursuant to Congress'
spending power. Indeed, this court has stated that the amendment "is strictly appropriational in
nature." Walker v. Unites States Dep't of Hous. & Urban Dev., 912 F.2d 819, 828 (5th Cir.1990).
And, as a general rule, courts have been reluctant to infer a congressional intent to create private
rights under appropriations measures. See, e.g., California v. Sierra Club, 451 U.S. 287, 297-98,
101 S.Ct. 1775, 1781-82, 68 L.Ed.2d 101 (1981) (concluding that Congress did not intend to create
a federal rights under section 10 of the Rivers and Harbors Appropriation Act); National Treasury
Employees' Union v. Campbell, 654 F.2d 784, 793-94 (D.C.Cir.1981) (finding no congressional
intent to create a private right of action under § 607(a) of the Postal Service and General Government
3 In interpreting the Frost-Leland Amendment, this court has already stated that it eliminates only federal funding of demolition, "not state or local financing." Walker v. United States Dep't of Hous. & Urban Dev., 912 F.2d 819, 829 (5th Cir.1990). The amendment does not, this court continued, "preclude demolitions generally or reverse HUD's approval of the demolitions.... Regardless of the sponsor[s'] obvious motivation to derail demolitions, the legislation only withdraws federal appropriations." Id. Appropriations Act of 1979).4
In sum, we hold that the Plaintiffs have not stated a cause of action against HACH under 42
U.S.C. § 1983. The statute the Plaintiffs seek to enforce—the Frost-Leland Amendment—is an
appropriations measure directed at HUD, a federal agency. It does not impose a binding obligation
on public housing agencies such as HACH, and therefore, it does not create federally enforceable
rights within the meaning of § 1983.
2. Against HUD?
As explained above, to state a valid claim under § 1983, a plaintiff must (1) allege a violation
of rights secured by the Constitution or laws of the United States and (2) demonstrate that the alleged
deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42,
48, 108 S.Ct. 2250, 2254, 101 L.Ed.2d 40 (1988). The Plaintiffs' § 1983 claim against HUD fails on
the second element. In Broadway v. Block, 694 F.2d 979 (5th Cir.1982), we held that federal
officials, acting under color of federal law rather than state law, are not subject to suit under § 1983.
Id. at 981 (citing cases). Because HUD is a federal agency acting under color of federal law, we hold
that the Plaintiffs have not stated a claim against it under § 1983.
B. Have the Plaintiffs' Stated a Claim for Which Relief Can Be Granted under the Frost-Leland Amendment?
The Plaintiffs argue that, even if they have not stated a claim for which relief can be granted
under § 1983, they have stated a cognizable claim under the Frost-Leland Amendment itself. They
specifically argue that Congress, in passing the amendment, intended to provide the residents of APV
with a private right of action against HACH and HUD. For the following reasons, we disagree.
Initially, we note that the Plaintiffs carry a heavy burden in demonstrating that Congress
intended to create a private right of action directly under the Frost-Leland Amendment. As this court
has recognized: "To establish an implied private right of action under a federal statute, a plaintiff
4 Although the courts in these cases specifically addressed claims that Congress intended to create a private cause of action under the federal statute itself, see infra Part III.B., in doing so, the courts also discussed the question of whether the appropriations statutes created federally enforceable private rights. Thus, these cases are relevant to the determination of whether Congress intended to create a federally enforceable right within the meaning of § 1983. bears the relatively heavy burden of demonstrating that Congress affirmatively contemplated private
enforcement when it passed the relevant statute." Victorian v. Miller, 813 F.2d 718, 721 (5th
Cir.1987) (en banc). Thus, to state a claim under the Frost-Leland Amendment itself, the Plaintiffs
must overcome the presumption that Congress did not intend to create a private right of action.5
In determining whether Congress intended to create a private right of action under a federal
statute, courts rely on the familiar test of Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26
(1975). Under this test, courts are t o consider (1) whether the plaintiffs are within the class for
whose especial benefit the statute was enacted, (2) whether there is evidence of explicit or implicit
legislative intent to create or deny a private remedy, (3) whether a private remedy is consistent with
or necessary to the purposes underlying the statutory scheme, and (4) whether a federal remedy is
inappropriate because the subject matter involves an area that is primarily of concern to the states.
Id. at 68, 95 S.Ct. at 2083. Applying this test to the Frost-Leland Amendment, we conclude that
there is insufficient, if any, evidence to overcome the presumption that Congress did not intend to
create a private right of action under the amendment itself.
Once the Supreme Court in Suter determined that the provision of the Adoption Assistance
and Child Welfare Act of 1980 created no federally enforceable rights against the state agency under
§ 1983, the Court "quickly" disposed o f the argument that the federal statutory provision itself
created an implied right of action against the state agency. See --- U.S. at ----, 112 S.Ct. at 1370.
The Court recognized that the crucial inquiry under Cort, like the crucial inquiry under § 1983, is
whether Congress intended to create the private remedy sought by the plaintiffs. Id. The Court
reasoned that, where Congress does not intend to create federally enforceable rights against a state
agency, Congress could not have impliedly created a private cause of action against such an agency.
See id.; see also Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1, 28 n. 21, 101 S.Ct.
5 The presumption is reversed in the context of claims brought under 42 U.S.C. § 1983. If a federal statute creates federally enforceable rights, privileges, or immunities under the framework set forth in Wilder, as modified by Suter, then a violation of the federal statute under color of state law is redressable under § 1983 unless the defendant establishes that Congress intended to withdraw such a remedy. See Victorian, 813 F.2d at 720-21. 1531, 1545 n. 21, 67 L.Ed.2d 694 ("Because we conclude that [the statute] confers no substantive
rights, we need not reach the question whether there is a private cause of action under [the
statute]....").
We can similarly dispose of the Plaintiffs' argument that the Frost-Leland Amendment creates
a private right of action against HACH. As already explained, see supra Part III.A.1., in passing the
Frost-Leland Amendment, Congress intended HUD—not private individuals like the residents of
APV—to enforce the prohibition against using federal funds to demolish the specified public housing
projects. Because the Frost-Leland Amendment does not create any federally enforceable right
against HACH under § 1983, there can be no implied right of action against HACH under the
amendment itself. In short, we conclude that Congress did not intend to create a private right of
action against public housing authorities such as HACH in passing the Frost-Leland Amendment.
We also may dispose "quickly" of the argument that, in passing the Frost-Leland Amendment,
Congress intended to create a private right of action against HUD. The First Circuit, in addressing
a similar argument—namely, that the Federal Fair Housing Act created a pri vate right of action
against HUD—stated:
[I]t is difficult to understand why a court would ever hold that Congress, in enacting a statute that creates federal obligations, has implicitly created a private right of action against the federal government, for there is hardly ever any need for Congress to do so. That is because federal action is nearly always reviewable [under the Administrative Procedure Act] for conformity with statutory obligations without any such "private right of action."
N.A.A.C.P. v. Secretary of Hous. & Urban Dev., 817 F.2d 149, 152 (1st Cir.1987). Because the
obligations imposed on HUD under the Frost-Leland Amendment, like the obligations imposed on
HUD under the Federal Fair Housing Act, are reviewable under the Administrative Procedure Act,
the First Circuit's reasoning is applicable. If HUD has failed to comply with command of the Frost-
Leland Amendment, the appro priate course of action for the Plaintiffs is to seek review of the
agency's action under the Administrative Procedure Act. See infra Part III.C. In short, there is no
language in the amendment itself indicative of a congressional intent to create a private cause of
action against HUD outside of the Administrative Procedure Act. In addition to the availability of judicial review under the Administrative Procedure Act, HUD
points out, the doctrine of sovereign immunity militates against a finding of congressional intent to
create a private right of action under the Frost-Leland Amendment. Citing United States v. Mitchell,
445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980), HUD argues persuasively that,
because the Frost-Leland Amendment does not expressly waive sovereign immunity, no right of
action against it may be implied. See also Miller v. United States, 710 F.2d 656, 668 (10th Cir.)
(relying on doctrine of sovereign immunity in refusing to imply a private right of action against the
Department of Transportation under the Federal Highway Safety Act), cert. denied, 464 U.S. 939,
104 S.Ct. 352, 78 L.Ed.2d 316 (1983). Thus, we hold that Congress did not intend to create a
private right of action against HUD when it passed the Frost-Leland Amendment.
C. Are the Plaintiffs' Entitled to Judicial Review Under the Administrative Procedure Act?
Having concluded that the Plaintiffs have not stated a claim for which relief can be granted
under § 1983 or under the Frost-Leland Amendment itself, we now turn to the Plaintiffs' final
argument in support of the district court's April 4, 1991 order. In particular, we address the argument
that the residents of APV are entitled to judicial review of HACH and HUD's actions under the
Administrative Procedure Act (APA). We conclude, for the following reasons, that they are not.
Section 702 of the APA gives certain persons the right to obtain judicial review of particular
agency actions. It provides, in pertinent part, that
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....
5 U.S.C. § 702. The Plaintiffs cannot obtain judicial review of HACH's actions under § 702, because
HACH is not an "agency" within the terms of the statute. The Plaintiffs are not at this time entitled
to review of HUD's actions, because HUD has not engaged in any "agency action"—or more
appropriately, final agency action—within the meaning of § 702.
1. Of HACH's actions?
HACH argues that the Plaintiffs could not possibly be entitled to review of its actions under
the APA, because it is not an "agency" within the terms of § 702. We agree. In Vieux Carre Property Owners, Residents & Associates, Inc. v. Brown, 875 F.2d 453 (5th Cir.1989), cert. denied,
493 U.S. 1020, 110 S.Ct. 720, 107 L.Ed.2d 739 (1990), we identified the "APA as a route through
which private plaintiffs can obtain federal court review of the decisions of federal agencies." 875
F.2d at 456 (emphasis added). We emphasized that the right of review under section 702 does not
give district courts the "jurisdiction to enjoin such nonfederal entities as the Audobon Park
Commission." Id.; see also 5 U.S.C. § 701(b)(1) (defining term "agency" as "each authority of the
Government of the United States, whether or not it is within or subject to review by another agency")
(emphasis added). Because HACH is a nonfederal entity, the district court lacked the power to enjoin
it under the APA.
2. Of HUD's actions?
HACH and HUD also argue that the Plaintiffs are not entitled to judicial review of HUD's
actions under the APA. They argue specifically that HUD has not engaged in any final agency action
that is subject to review under § 702. Again, we agree.
The term "agency action" under section 702 is broadly defined as "the whole or part of an
agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act." 5
U.S.C. § 551(13). In Lujan v. National Wildlife Federation, 497 U.S. 871, 110 S.Ct. 3177, 111
L.Ed.2d 695 (1990), however, the Supreme Court made clear that "[w]hen, as here, review is sought
not pursuant to specific authorization in the substantive statute, but only under general review
provisions of the APA, the "agency action' in question must be "final agency action.' " Id. at ----, 110
S.Ct. at 3185 (citing 5 U.S.C. § 704). Whether agency action is "final," in turn, depends on several
pragmatic factors: whether the challenged action is a definitive statement of the agency's position;
whether the action has the status of law with penalties for noncompliance; whether the impact on the
plaintiff is direct and immediate; and whether immediate compliance is expected. See Abbott Labs.
v. Gardner, 387 U.S. 136, 150-52, 87 S.Ct. 1507, 1516-17, 18 L.Ed.2d 681 (1967), overruled on
other grounds by Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977).
Applying these pragmatic factors to the case at hand, we conclude that the Plaintiffs do not
seek review of any final agency action by HUD. The Plaintiffs are not seeking review of HUD's decision to return HACH's demolition application. Nor are they seeking review of an order or rule
that defines the phrase in question under the Frost-Leland Amendment. Rather, at best they are
seeking review of HUD's internal administrative interpretation of the Frost-Leland Amendment.6
In Taylor-Callahan-Coleman Counties District Adult Probation Department v. Dole, 948
F.2d 953, 957-59 (5th Cir.1991), this court addressed the question of whether opinion letters issued
by the United States Department of Labor constituted "final agency action." We held that such letters
did not constitute final action, because they were "threshold determinations." Id. at 959. We
reasoned that the opinion letters did not definitively set out agency policy, did not have the status of
law with penalties for noncompliance, did not have an immediate impact on the plaintiff, and did not
require immediate compliance. Id. at 959; see also Air California v. United States Dep't of Transp.,
654 F.2d 616, 619-20 (9th Cir.1981) (holding that an interpretive letter sent by the Chief Counsel of
the Federal Aviation Administration was not final agency action).
6 The Plaintiffs also suggest that they are entitled to judicial review of HUD's failure to prohibit HACH from spending the 1979 modernization funds to study demolition—or more generally, HUD's failure to require HACH to spend the 1979 funds in a particular way. To the extent that the Plaintiffs are complaining about HUD's refusal to require HACH to spend the remainder of the 1979 modernization funds in a particular way, HUD is correct in arguing that no action under the APA will lie. In Heckler v. Chaney, 470 U.S. 821, 105 S.Ct. 1649, 84 L.Ed.2d 714 (1985), the Supreme Court held that "an agency's decision not to take enforcement action should be presumed immune from judicial review under 5 U.S.C. § 701(a)(2)" Id. at 832, 105 S.Ct. at 1656; see also Hill v. Group Three Hous. Dev. Corp., 799 F.2d 385, 396 (8th Cir.1986) (holding that HUD's decision not to enforce provisions of Housing Act against private landlords was not reviewable under the APA). "[T]he presumption may be rebutted," the Court continued, "where the substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers." Heckler, 470 U.S. at 832-33, 105 S.Ct. at 1656.
The presumption against reviewability has not rebutted in this case. Indeed, in its brief, HUD notes that "there are no standards for a court to enforce with respect to HUD enforcement of the [modernization] grant to [HACH]." In fact, the only "enforcement action" that HUD may apparently take with regard to such funds is to revise HACH's modernization budget. See 24 C.F.R. 868.12 (1979). Moreover, there are no requirements concerning when such a revision action must be taken. Accordingly, we conclude that the Plaintiffs cannot seek review under the APA of HUD's refusal to require HACH to use the 1979 funds for modernizing APV.
Furthermore, we note that the Plaintiffs have sought relief with respect to the 1979 modernization funds in a separate lawsuit filed in 1987. See Allen Parkway Village Residents v. Housing Authority of the City of Houston, No. H-87-564 (S.D.Tex) (APV I ). This lawsuit, which has been stayed by the district court, was filed two years prior to the lawsuit giving rise to this appeal. We trust that the district court will now move to resolve the issues in APV I concerning HACH's use of the 1979 modernization funds. Like the opinion letters at issue in Taylor-Callahan-Coleman, HUD's internal and informal
administrative interpretation of the Frost-Leland Amendment is not final agency action. The
interpretation does not definitely set out HUD's policy on the issue of what constitutes "demolishing"
within the terms of the Frost-Leland Amendment. Moreover, the interpretation does not have the
status of law, does not have a direct and immediate impact on t he Plaintiffs, and does not require
immediate compliance by HACH. Thus, HUD and HACH are correct in arguing that the Plaintiffs
have no right of review with respect to HUD's internal administrative interpretation of the Frost-
Were HUD to formally define the phrase "for demolishing" under the Frost-Leland
Amendment or approve an application by HACH to demolish all or part of APV, the residents of
APV would undoubtedly have the right to review HUD's final agency action under § 702 for
compliance with the Frost-Leland Amendment. The residents would, in such a case, be entitled to
a judicial determination of whether the agency's definition of "for demolishing" co mplied with the
principles set forth by the Supreme Court in Chevron, U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1988), or whether any federal funds
were being expended "for demolishing" APV. As this case now stands, however, HUD has simply
not engaged in any final agency action that is reviewable under § 702. Thus, the district court was
without power to award permanent injunctive relief against HUD under the Administrative Procedure
Act.
IV. CONCLUSION
Because the Plaintiffs have not stated a claim for which relief can be granted and are not, at
this time, entitled to judicial review under the APA, we do not reach the question of whether the
district court erred in interpreting the phrase "for demolishing" in the Frost-Leland Amendment. See
California v. Sierra Club, 451 U.S. 287, 298, 101 S.Ct. 1775, 1781, 68 L.Ed.2d 101 (1981) (a ruling
that there is no private claim under a federal statute disposes of the case, because a court "cannot
consider the merits of a claim which Congress has not authorized"); Taylor-Callahan-Coleman
Counties, 948 F.2d at 956 (a determination that there is no final agency action under the APA means that there is no subject matter jurisdiction over dispute). For the foregoing reasons, we REVERSE
the district court's April 4, 1991 order awarding permanent injunctive relief against HACH and HUD
and REMAND the case with instructions that the Plaintiffs' complaint be dismissed.