E-Alerts & Press Releases

Court Rules Tenants Have Right to Challenge Improper Utility Allowances

March 6, 2006

Johnson v. Housing Authority of Jefferson Parish, No. 04-31201, U.S. Court of Appeals for the Fifth Circuit. 

On March 6, 2006, the U.S. Court of Appeals for the Fifth Circuit has issued an unqualifiedly favorable decision to the plaintiffs in a case in which the Public Justice Center joined with counsel from Texas Rio Grande Legal Aid, Inc., the Legal Aid Society of D.C., the National Housing Law Project, and the AARP Foundation Litigation to submit an amicus curiae brief.  Our brief was filed on behalf of the AARP and Texas Tenants’ Union.
The issue in this appeal was whether participants in the federal Section 8 Voucher Program may seek relief under 42 U.S.C. § 1983 when a public housing agency improperly calculates the utility allowance provided to voucher holders as part of their monthly assistance payment, resulting in inadequate subsidies.  New Orleans Legal Assistance brought this case on behalf of 27 voucher holders, charging that the local public housing agency had failed to increase its utility allowances for nearly ten years to reflect current utility rates, in violation of the Section 8 statute and its implementing regulations.  The U.S. District Court for the Eastern District of Louisiana had dismissed the tenants’ claims, holding that neither the statute nor its implementing regulations create an enforceable right for tenants to challenge the calculation of the utility allowance. 

This case is representative of litigation nationwide in the wake of the Supreme Court’s decision in Gonzaga University v. Doe, 536 U.S. 273 (2002), which tightened the requirements for the enforcement of statutory rights under section 1983.  The amicus brief argued that Congress intended for the Voucher Program statute to confer individual rights to a properly calculated housing subsidy that would be enforceable under section 1983, relying on the history, purpose, and context of the statute.  The brief also discussed post-Gonzaga decisions from other circuits which have held enforceable under section 1983 statutory provisions similar to the Voucher Program statute, which mandate government benefits for a discrete class of individual beneficiaries.
The 5th Circuit decision is unequivocal:  As Plaintiffs and amici argued, this statute easily meets even the new stringent Supreme Court test for private enforceability of federal laws under section 1983.  As a result, Section 8 voucher holders who have been without adequate utility allowances for over a decade, driving their rents to illegal and unaffordable levels, can use the courts to force their public housing agency to correct that problem.
This is welcome news for the plaintiffs and their lawyers, all of whom were displaced while this case was pending by Katrina.  (Even the 5th Circuit itself was forced to evacuate New Orleans and hear this case in Houston months after it was originally scheduled.)
PJC's work on this case is another excellent example of collaborating with a national network of advocates on issues of importance to poor folks all around the country.  Former Murnaghan Fellow Beth Harrison and Legal Director Debra Gardner were principle authors for the coast-to-coast group that prepared the amicus brief.

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