Plaintiffs cannot sue to enforce housing regulation

Disabled plaintiffs in New Haven sued the Housing Authority of New Haven for instituting and failing to correct policies that violated their right to certain reasonable accommodations. The Court of Appeals affirms the district court's order dismissing the case because the regulations under which plaintiffs bring this action cannot be enforced under 42 U.S.C. sec. 1983.

The case is Taylor v. New Haven Housing Authority, decided on May 4. The Second Circuit's ruling is quite short, particularly for a published opinion. The Court of Appeals (Kearse, Miner and Chin) is so impressed with the district court's thorough reasoning that the Second Circuit simply adopts Judge Arterton's reasoning in pinpoint fashion, stating, "We adopt the district court's carefully considered and thorough discussion of these issues. See, Taylor v. Housing Authority of New Haven, 267 F.R.D. 36, 40-47, 52-54 (D. Conn. 2010)." Why reinvent the wheel?

The district court ruling tells the story. Plaintiff claimed that the housing authority failed to provide them reasonable accommodations under a regulation that requires private landlords to, i.e., encourage families to locate an available accessible dwelling unit and approve a family request for certain rent exceptions. Plaintiffs' claim draws from a regulation, not an actual statute. There is a difference. You may have to go to law school and take an administrative law class to really understand this, but regulations cannot give rise to a private claim distinct from that conferred by the statute itself. In addition, under Alexander v. Sandoval, 532 U.S. 275 (2001), "language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not crate a right that Congress has not." In other words, agencies that create the regulations intended to enforce statutes "may play the sorcerer's apprentice but not the sorcerer itself."

This case failed in the district court because the Rehabilitation Act of 1973 -- a federal statute -- speaks broadly in terms of access to benefits but does not speak in terms of specific components of a benefit, program or activity. So, even though the regulations that enforce that statute, may provide that level of specificity, they do not create a private cause of action. The regulations are certainly there for a reason, to provide guidance in the provision of Section 8 benefits, and they certainly may help the disabled in their public housing. But the regulations at issue here, 24 C.F.R. sec. 8.28(a), cannot give rise to this lawsuit.