                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-5-1999

American Disabled v. US Dept Housing Dev
Precedential or Non-Precedential:

Docket 98-1308




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Filed March 5, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1308

AMERICAN DISABLED FOR ATTENDANT PROGRAMS
TODAY; DISABILITY RIGHTS ACTION COALITION FOR
HOUSING; PENNSYLVANIA COALITION OF CITIZENS
WITH DISABILITIES; CONCRETE CHANGE; DISABLED IN
ACTION OF PENNSYLVANIA; PENNSYLVANIA COUNCIL
INDEPENDENT LIVING; NATIONAL FEDERATION OF THE
BLIND PENNSYLVANIA; AFRICAN-AMERICANS WITH
DISABILITIES; AMERICAN DISABLED FOR ATTENDANT
PROGRAMS TODAY OF PENNSYLVANIA; CHICAGO
AMERICAN FOR DISABLED FOR ATTENDANT PROGRAMS
TODAY; PROGRESS CENTER; THREE RIVERS CENTER
OF INDEPENDENT LIVING; NATIONAL COUNSEL ON
INDEPENDENT LIVING,
       Appellants

v.

UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 96-cv-5881)
District Judge: Honorable Thomas N. O'Neill, Jr.

ARGUED JANUARY 13, 1999

BEFORE: NYGAARD, ALITO, and LEWIS, Circuit Judges.

(Filed March 5, 1999)
       Stephen F. Gold (Argued)
       125 South 9th Street
       Suite 700
       Philadelphia, PA 19107

        Attorney for Appellants

       Deborah R. Kant (Argued)
       Marleigh D. Dover
       United States Department of Justice
       Civil Division, Appellate Staff
       10th and Pennsylvania Avenue, NW
       Washington DC 20530-0001

        Attorneys for Appellee

OPINION OF THE COURT

NYGAARD, Circuit Judge.

Several organizations that represent and advocate for
disabled individuals, sued under the Administrative
Procedure Act alleging that the United States Department of
Housing and Urban Development has abdicated its duty
under the Fair Housing Act Amendments ("FHAA") and
violated its own regulations under the Rehabilitation Act.
ADAPT1 alleges that HUD has not fulfilled its statutory duty
to ensure that multi-family housing is accessible and
adaptable to persons with disabilities. ADAPT also claims
that HUD fails to conduct adequate compliance reviews of
recipients of federal aid, fails to conduct prompt
investigations, and fails to take enforcement action when
non-compliance is discovered. The District Court dismissed
the claim under Rule 12(b)(6) for failure to state a claim
upon which relief may be granted, finding that review was
barred by sections 701 and 704 of the APA.2 We will affirm.
_________________________________________________________________

1. Although there are several parties to the appeal, for ease of
reference,
when referring to the Appellants, we will refer only to the first party,
American Disabled for Attendant Programs Today ("ADAPT").
2. We exercise plenary review of the District Court's grant of the
12(b)(6)
motion for failure to state a claim upon which relief may be granted. See
Ditri v. Coldwell Banker Residential Affiliates, Inc., 954 F. 2d 869, 871
(3d Cir. 1992).

                                  2
I.

Recognizing the need for accessible housing for people
with physical disabilities, Congress enacted legislation that
attempts to ensure that accessible housing is available to
them. HUD has been charged with the duty to ensure that
such housing is available. In June 1988, HUD issued
specific regulations, implemented under Section 504 of the
Rehabilitation Act, requiring that multi-family housing,
newly constructed or substantially altered with the help of
federal funding, must accommodate persons with physical
disabilities. These regulations require that the building,
common areas, and a minimum number of the housing
units be accessible to people with physical disabilities.

Congress passed the Fair Housing Act ("FHA") in 1968 to
prevent housing discrimination. In 1988, it added the FHAA
to include people with physical disabilities. The FHAA
contains general design requirements for all multi-family
housing with four or more units constructed after March
13, 1991, regardless of whether the housing is federally
funded. In addition to the requirement that all buildings
and common areas be accessible, it also mandates that all
dwelling units (as opposed to a minimum percentage under
section 504) be accessible if they are on "accessible routes"
(i.e., on floors accessible via building entrances or elevator).
See 42 U.S.C. S 3604(f)(3)(C). The FHAA therefore attempts
to make multi-family housing generally accessible to
individuals with disabilities with a minimum impact on the
design of the housing.

In its complaint, ADAPT alleges that HUD has received
complaints of nationwide non-compliance with the
accessibility requirements of its Section 504 regulations,
including a 1994 complaint by advocates for the disabled in
response to which HUD officials allegedly acknowledged
widespread compliance problems. ADAPT alleges that,
despite these complaints, HUD has failed to (1) collect data
on whether disabled persons benefit from its funding; (2)
monitor grants before or after funds are spent to determine
whether they are used to create accessible housing; (3)
conduct prompt investigations of possible noncompliance;
or (4) take enforcement action upon notice of
noncompliance. ADAPT asserts that this inaction amounts

                               3
to an abdication by HUD of its duty to enforce its own
Section 504 regulations. ADAPT also claims that this
inaction is in violation of the agency's duty under the FHAA
to "administer the programs and activities relating to
housing and urban development in a manner affirmatively
to further the policies" of the Act. 42 U.S.C. S 3608(e)(5).

ADAPT sought review under the APA, 5 U.S.C. SS 701-
710. The relief sought by ADAPT includes a declaration that
HUD is violating both Section 504 and the FHAA, and an
injunction forcing HUD to "(1) administer its housing and
urban development programs and activities so as
affirmatively to further the Fair Housing Act's policy of
promoting integration of people with physical disabilities
into the community through the creation of accessible
housing" and "(2) assure that recipients of HUD funding
comply with Section 504's housing accessibility
requirements."

The District Court held that the APA prevented judicial
review of the type ADAPT was requesting. The court
concluded that ADAPT had not rebutted the presumption
that HUD's actions were unreviewable under section 701 of
the APA. In addition, the court found that ADAPT could not
demonstrate that it was appealing from a final agency
action for which there is no other adequate remedy in
court, as required by section 704 of the APA. Finally, the
court ruled that ADAPT had failed to properly plead its
argument that HUD discriminated directly against disabled
individuals. The District Court dismissed these direct
claims, but granted ADAPT leave to amend their complaint.
ADAPT instead appealed.

II.

The APA establishes a framework that permits courts to
review agency actions. It waives federal sovereign immunity
in certain circumstances to allow equitable relief from
agency action or inaction. See 5 U.S.C. S 702. If review is
allowed, a court may "compel agency action unlawfully
withheld or unreasonably delayed" or "hold unlawful and
set aside agency action" that is determined to be "arbitrary,
capricious, an abuse of discretion," or "short of statutory

                                4
right." Id. S 706. The APA allows judicial review of agency
actions unless the "(1) statute[ ] preclude[s] judicial review;
or (2) [the] agency action is committed to agency discretion
by law." 5 U.S.C. S 701(a). Whether an agency action falls
under prong (2) and is "committed to agency discretion by
law" is determined by a "construction of the substantive
statute involved to determine whether Congress intended to
preclude judicial review of certain decisions." Heckler v.
Chaney, 470 U.S. 821, 828-29, 105 S. Ct. 1649, 1654
(1985).

Agency actions are typically presumed to be reviewable
under the APA. Importantly however, the Supreme Court
has established a presumption against judicial review of
agency decisions that involve whether to undertake
investigative or enforcement actions.3 See Chaney, 470 U.S.
_________________________________________________________________

3. In Chaney, the Supreme Court explained its hesitance to review
agency decisions not to enforce as such:

       This Court has recognized on several occasions . . . that an
agency's
       decision not to prosecute or enforce . . . is a decision generally
       committed to an agency's absolute discretion. This recognition of
the
       existence of discretion is attributable in no small part to the
general
       unsuitability for judicial review of agency decisions to refuse
       enforcement.

         The reasons for this general unsuitability are many. First, an
agency
       decision not to enforce often involves a complicated balancing of a
       number of factors which are peculiarly within its expertise. Thus,
       the agency must not only assess whether a violation has occurred,
       but whether agency resources are best spent on this violation or
       another, whether the agency is likely to succeed if it acts,
whether
       the particular enforcement action requested bestfits the agency's
       overall policies, and, indeed, whether the agency has enough
       resources to undertake the action at all. An agency generally
cannot
       act against each technical violation of the statute it is charged
with
       enforcing. The agency is far better equipped than the courts to
deal
       with the many variables involved in the proper ordering of its
       priorities.

         In addition to these administrative concerns, we note that when an
         agency refuses to act it generally does not exercise its coercive
       power over an individual's liberty or property rights, and thus
does
       not infringe upon areas that courts often are called upon to
protect.
       . . . Finally, we recognize that an agency's refusal to institute

                               5
at 838, 105 S. Ct. at 1659. Noting that "an agency decision
not to enforce often involves a complicated balancing of a
number of factors which are peculiarly within its expertise,"
the Court stated that "[t]he agency is far better equipped
than the courts to deal with the many variables involved in
the proper ordering of its priorities." Id. at 831-32, 105 S.
Ct. at 1655-56. This presumption of enforcement decision
unreviewability may be rebutted, however, "where the
substantive statute has provided guidelines for the agency
to follow in exercising its enforcement powers." Id. at 832-
33, 105 S. Ct. at 1656. Thus, we may review HUD's
enforcement decisions only if Congress has granted us
power to review by providing us with guidelines or"law to
apply."

A. Section 504

In June 1988, under section 504 of the Rehabilitation Act,4
HUD issued regulations addressing the accessibility of
multi-family housing projects built or substantially altered
with federal financial assistance. ADAPT's argument
revolves around HUD's alleged failure to investigate and
enforce violations of one of these regulations - 24 C.F.R.
S 8.22. This regulation directs that, in addition to accessible
buildings and common areas, 5% (but not less than 1) of
the units in each covered building must be accessible and
adaptable to individuals with mobility impairments. In
_________________________________________________________________

       proceedings shares to some extent the characteristics of the
decision
       of a prosecutor in the Executive Branch not to indict--a decision
       which has long been regarded as the special province of the
       Executive Branch, inasmuch as it is the Executive who is charged
       by the Constitution to "take Care that the Laws be faithfully
       executed."

Chaney, 470 U.S. at 831-32, 105 S. Ct. at 1655-56.

4. Section 504 provides "No otherwise qualified handicapped individual
. . . shall, solely by reason of his handicap, be excluded from the
participation in, be denied the benefits of, or be subjected to
discrimination under any program or activity receiving Federal financial
assistance or under any program or activity conducted by any Executive
agency." 29 U.S.C. S 794.

                               6
addition, 2% (but not less than 1) of the units must be
accessible to hearing and vision impaired individuals.5

ADAPT claims that HUD has completely abdicated its
responsibility by failing to initiate investigations and
enforcement actions to ensure that housing providers that
receive federal funding are obeying the 5%-2% requirement.
Because this is precisely the type of agency decision that is
presumed unreviewable under Chaney, the question before
us is whether ADAPT can overcome the Chaney
presumption by demonstrating that Congress intended to
permit review by providing courts with law to apply.

       1. Investigation

ADAPT's strongest argument is that HUD's refusal to
investigate pursuant to the section 504 regulations is
reviewable under the APA. 24 C.F.R. S 8.56(b) states that
HUD "shall make a prompt investigation whenever a
compliance review, report, complaint or any other
information indicates a possible failure to comply with this
part." 24 C.F.R. S 8.56(b) (emphasis added). The 5%-2%
mandate is included in the part, and so covered by the
regulation. See id. S 8.22. "[S]hall" indicates that a non-
discretionary duty to investigate arises when HUD receives
information concerning a possible failure to comply.6

The District Court agreed that a mandatory duty was
created by section 8.56(b). The court, however, held that
"the regulations do[ ] not set forth significant, substantive
standards as to the circumstances in which HUD willfind
`possible failure to comply.' " Dist. Ct. at 18. In other words,
the court found that Congress did not supply the
substantive standards to judge the conduct necessary to
rebut the Chaney presumption against review. ADAPT
argues that the 5%-2% mandate does provide substantive
standards, i.e., 5% and 2% of the units must be accessible.
_________________________________________________________________

5. The parties and the District Court refer to section 8.22 as the "5%-2%"
regulation. For consistency, we will use this term as well.

6. At oral argument, counsel for HUD suggested that "shall" in fact
created only a discretionary duty as interpreted by HUD. An agency can
not avoid a mandatory duty, however, simply by averring that it
interprets clearly mandatory language as discretionary.

                               7
ADAPT confuses the existence of a standard restricting
federal funding recipients with the existence of a standard
by which to judge HUD's conduct. In this case, the 5%-2%
mandate is not adequate "law to apply" to help us discern
guidelines to apply to HUD's enforcement and investigation
decisions.

Our opinion in Harmon Cove Condominium Association v.
Marsh, 815 F.2d 949 (3d Cir. 1987), is instructive. In
Harmon Cove, a condominium association brought an
action against the Secretary of the Army to compel the
Secretary to enforce a permit issued to the condominium
developers. The association claimed that section 404 of the
Federal Water Pollution Control Act, which included
language similar to section 8.56(b),7 imposed a duty on the
Secretary to enforce compliance with the conditions of the
permit. See id. at 952. The permit contained explicit terms
that bound the recipients, much like the section 504
regulations contain specific terms that bind housing
providers that receive federal funding. Despite these explicit
terms, we found that the APA did not allow us to review the
agency's decision not to enforce the terms of the permit. We
stated that "[t]he statute imposes no duty on the Secretary
to make a finding of violation, because it contains no
guidelines for the Secretary to follow in choosing to initiate
enforcement activity." Id.

We rejected the association's argument that it would be
"anomalous" to issue a permit and then not enforce the
conditions of the permit. This argument mirrors ADAPT's
claim that HUD has a duty to ensure that the conditions of
the funding grants are followed by housing providers. As we
noted in Harmon Cove, "[t]he short answer is that in the
_________________________________________________________________

7. The relevant portion of section 404 provided,

       Whenever on the basis of any information available to him the
       Secretary finds that any person is in violation of any condition or
       limitation set forth in a permit issued by the Secretary under this
       section, the Secretary shall issue an order requiring such person
to
       comply with such condition or limitation, or the Secretary shall
       bring a civil action in accordance with paragraph (3) of this
       subsection.

Harmon Cove, 815 F.2d at 952 (emphasis added).

                               8
absence of some guidelines binding the [agency's]
enforcement decisions, [we] are bound by the Supreme
Court's ruling that such determinations are left to the
[agency]." Id. at 953.

ADAPT asks us to review whether HUD has
systematically failed to investigate in the face of national
noncompliance with the 5%-2% requirement. Congress has
provided no guidelines, or law to apply, to constrain HUD's
decision to investigate violations of its regulations.
Therefore, we have no choice but to conclude that these
decisions are committed exclusively to agency discretion.8
_________________________________________________________________

8. ADAPT asserts that HUD has received complaints about nationwide
noncompliance with the 5%-2% mandate, that HUD officials have
privately acknowledged awareness of noncompliance, but that HUD has
not responded by launching the requisite investigation. ADAPT contends
that HUD has therefore violated 24 C.F.R. S 8.56(b), which, as noted,
provides in pertinent part that HUD "shall make a prompt investigation
whenever a . . . complaint . . . or any other information indicates a
possible failure to comply with [the 5%-2% requirement]." Id. ADAPT
argues that 24 C.F.R. S 8.56(b) is sufficiently specific to permit a court
to review HUD's enforcement program because that regulation imposes
upon HUD an inflexible duty to "make an investigation" whenever it
receives any sort of "complaint" or any other sort of "information"
indicating a possible failure to comply with the requirement in question.

We cannot accept this argument. For one thing, HUD has discretion to
interpret its own regulation, and in practice it has not given the
regulation the rigid -- and almost certainly unworkable -- interpretation
that ADAPT advances. Agencies charged with investigative and
enforcement responsibilities receive all sorts of complaints and other
information -- ranging from vague, anonymous tips to hard evidence
from reliable sources -- concerning possible noncompliance with the
laws that they are charged with enforcing. No such agency could
function if it were duty-bound to undertake any sort of extensive
investigation whenever any sort of complaint or information regarding a
possible violation came to its attention. Reasonably read, 24 C.F.R.
S 8.56 obligates HUD to undertake an investigation (of some sort) when
the complaint or information it receives meets some standard of
substantiality, and because this standard is not spelled out in any
statute or regulation, HUD's decisions regarding the initiation of
investigations are, under Chaney, not subject to APA review.

Moreover, the concept of an investigation is itself broad, and we see no
reason why HUD cannot interpret that concept as including the

                               9
       2. Enforcement

Review of HUD's decisions whether to bring enforcement
actions under the section 504 regulations is governed
squarely by Chaney. The regulations promulgated under
section 504 make it clear that HUD has discretion whether
to bring enforcement actions in specific cases. See 24
C.F.R. S 8.55(b) (HUD "may" require compliance reports
from funding recipients "at such times, and in such form
and containing such information, as the responsible civil
rights official or his or her designee may determine to be
necessary to enable him or her to ascertain whether the
recipient has complied or is complying"); id. S 8.56(a) (HUD
"may periodically review the practices of recipients to
determine whether they are complying with this part and
where he or she has a reasonable bases to do so may
conduct on-site reviews"); id. S 8.57 (If actual or threatened
non-compliance is found, HUD "may" refer the case to the
Department of Justice for legal action or initiate
proceedings for debarment or termination of federal
funding).

The same concerns that persuaded the Supreme Court to
conclude the agency enforcement actions presumptively
unreviewable in Chaney are here too. HUD is charged with
monitoring and enforcing a broad array of housing anti-
discrimination regulations. HUD must balance a number of
factors, including, inter alia, expense, personnel resources,
and likelihood of success. Compared to the courts, HUD is
far more aware of its policies and priorities, and it should
have the discretion to balance them. Finally, Congress has
_________________________________________________________________

Department's internal consideration of the information that it receives in
light of all that it knows about the housing field, its enforcement
strategies, and its resources. If a court were to review whether HUD
complied with 24 C.F.R. S 8.56 upon the receipt of a particular complaint
or some other bit of "other information" indicating possible
noncompliance, the court would have to determine whether this sort of
purely internal inquiry was sufficient under the circumstances, and no
statute or regulation that has been called to our attention provides a
standard that the court could apply in making that determination. Thus,
for this additional reason, we conclude that ADAPT's claim is not
cognizable under the APA.

                               10
not provided any standards to limit HUD's discretion under
the section 504 regulations so as to rebut the presumption
of unreviewability, therefore, HUD's general investigative
and enforcement policies are not reviewable under
S 701(a)(2).

B. FHAA

ADAPT's claims under the FHAA are similar to its claims
under section 504. ADAPT, however, claims that 42 U.S.C.
S 3608(e)(5), which charges HUD to "administer the
programs and activities relating to housing and urban
development in a manner affirmatively to further the
policies" of the FHA, provides an independent source of law
for courts to apply. 42 U.S.C. S 3608(e)(5) (emphasis added).9

       1. Framework of the FHA

The FHA was enacted to address the problem of
discrimination by federally funded housing providers. The
FHA is similar to other civil rights laws in that it relies
heavily on individual civilian complaints for enforcement.
Congress passed the FHAA in 1988 to extend the FHA's
protections against discrimination to people with physical
disabilities.10 The FHAA provides that all common areas and
_________________________________________________________________

9. ADAPT also argues that HUD is required under 42 U.S.C. S 3608(e)(6)
to gather and disseminate information regarding compliance or
noncompliance with the 5%-2% mandate and with other related matters.
See Appellants' Br. at 13-14. However, ADAPT readsS 3608(e)(6) to mean
much more than its language says. Under this provision, HUD is
required "annually to report to the Congress, and make available to the
public, data on the . . . handicap . . . of persons and households who are
applicants for, participants in, or beneficiaries of [HUD programs]." In
other words, this provision concerns data on any disabilities possessed
by those who benefit or seek to benefit from HUD programs; the statute
says nothing about data regarding the construction of housing,
compliance with the 5%-2% mandate, or any of the other matters about
which ADAPT appears to complain. Thus, we see no basis for reviewing
ADAPT's data collection and dissemination claim under the APA.

10. The FHAA added disabled persons to the classes of persons protected
from both public and private housing discrimination, making it unlawful
to "discriminate in the sale or rental, or to otherwise make unavailable
or deny, a dwelling to any buyer or renter" on the basis of handicap. 42
U.S.C. S 3604(f)(1). Discrimination on the basis of handicap includes
failing to incorporate the accessibility and adaptability features
specified
in the Act. 42 U.S.C. S 3604(f)(3)(C).

                                 11
all units on accessible routes (i.e., on floors accessible via
building entrances or elevators) be made accessible to
individuals with disabilities. These standards apply to all
buildings, whether or not they are federally financed, built
after March 13, 1991, with four or more housing units. So,
the FHAA rejects the set aside approach of the section 504
regulations in favor of broader, more general regulation of
newly constructed multi-family housing.

The FHAA requirements may be enforced in four ways.
First, persons "aggrieved" by a discriminatory housing
practice may file an administrative claim with HUD. HUD
then has a mandatory duty to investigate these complaints.
If, after investigation, HUD finds a reasonable basis for the
complaint, it must bring a charge on behalf of the aggrieved
person. See 42 U.S.C. S 3610. Second, an "aggrieved"
person may completely bypass the administrative complaint
process and file suit directly in federal court against the
alleged discriminator. See id. S 3613. Under these two
provisions, aggrieved persons can obtain compensatory and
punitive damages, injunctive relief, attorneys' fees, and
costs.

Third, HUD may bring charges alleging discriminatory
practices on its own initiative. See id. S 3610(a)(1)(A)(i). HUD
may also initiate investigations to determine whether to
bring enforcement complaints. Importantly, all provisions
that concern HUD-initiated prosecution and investigation
are couched with permissive language under the FHA. See
id. (HUD "may also file such a complaint"); id.
S 3610(a)(1)(A)(iii) (HUD "may also investigate housing
practices to determine whether a complaint should be
brought").

Fourth, the Attorney General may sue if she has
reasonable cause to believe that a housing provider has
been engaged in a pattern or practice of discrimination. See
id. S 3614.

       2. Impact of "Affirmatively to Further "

ADAPT argues that the "affirmatively to further" language
in the FHA provides a basis for courts to review the
investigative and enforcement actions (or, in this case,

                               12
inaction) of HUD under the FHAA. It claims that section
3608(e)(5) imposes on HUD a duty to investigate and
enforce the 5%-2% requirements of Section 504, a duty to
gather statistical information on housing discrimination
against disabled people, and a duty to take enforcement
action to secure compliance with the FHAA.

Were we to accept this argument we would be creating an
independent guideline to limit HUD's discretion that would
conflict with the plain text of the statute. The language of
the FHA clearly mandates HUD investigative and
enforcement action in only one instance -- when HUD is
presented with an administrative complaint filed by an
aggrieved person alleging discrimination. See id. S 3610.
Nowhere does ADAPT allege that HUD has failed to act
when presented with an administrative complaint of this
type. All HUD-initiated investigative and enforcement
actions under the FHA are accompanied by clearly
discretionary language.

Despite the plain language of the statute, ADAPT claims
that the "affirmatively to further" language of the FHA
places additional requirements on HUD regarding
investigation and enforcement. ADAPT believes that
Shannon v. HUD, 436 F.2d 809 (3d Cir. 1970), supports its
argument that the "affirmatively to further" language
creates a reviewable duty under the APA. In Shannon, we
held that HUD had not fulfilled its duties under the Civil
Rights Acts when it approved an apartment project in an
urban renewal area without considering the socio-economic
impact of its decision. See id. at 820-21. We held that to
ensure that it was affirmatively furthering integration, HUD
had a duty to make an informed decision and gather
material information concerning the socio-economic impact
of a specific land use. See id. at 822.

Shannon, decided approximately 15 years before the
Supreme Court's Chaney decision, does not support the
result proposed by ADAPT -- that HUD is required to
collect all relevant data and to investigate all possible
violations of the FHAA on a national level. In Shannon, we
undertook a review of a specific decision by HUD and found
that, when making the decision, HUD failed to consider all
the relevant factors. See id. at 819. There is no dispute

                                13
that, much like a prosecutor, once an agency undertakes
an enforcement action or makes an affirmative decision, it
must proceed fairly and consider the mandates of the
governing acts and regulations. In this case, HUD's
regulations recognize that data collection is important;
however, it has no affirmative duty under any statute or
regulation to initiate nationwide investigation and
prosecution of all potentially discriminatory housing
practices.

ADAPT also relies on the First Circuit Court of Appeals
decision in NAACP v. HUD, 817 F.2d 149 (1st Cir. 1987). In
NAACP, the court found that the APA allowed review of
HUD's grant activity in Boston. The court ruled that, under
the section 3608(e)(5) "affirmatively to further" language,
when taking action, HUD's duty includes more than the
obligation simply not to discriminate itself, the duty
extends to using its grant programs affirmatively to assist
in ending housing discrimination. See id. at 154-55. In
other words, under section 3608(e)(5), when taking specific
action, HUD had a duty to encourage, under the facts of
NAACP, desegregation of federally funded housing. The
court found that the pattern of specific examples of HUD's
failure to enforce Title VII requirements justified judicial
review.

The court in NAACP held that the section 3608(e)(5)
"affirmatively to further" language both created a duty and
provided a specific standard by which to evaluate HUD's
actions. There is, however, an essential difference between
the specific activity reviewed by the court in NAACP and the
all-encompassing review we are asked to undertake here.
Specifically, in NAACP, the court found that it was able to
review HUD's actions under the APA, in part, because the
"NAACP aske[ed] for review of a series of decisions to
determine, whether, taken together, they violate the
obligation to further the goals of Title VIII." Id. at 159
(emphasis added). ADAPT does not point to any specific
decision (or decisions) made by HUD that did not further
the polices of the FHAA. Rather ADAPT claims that after
initial funding decisions have been made and the funding
awarded, HUD has not investigated whether funding
recipients have continued to follow the HUD requirements.

                                14
This critical distinction between a focused review of specific
agency decisions and broad-based review of general agency
policies regarding investigation and enforcement is what
distinguishes NAACP and Shannon from this case. Even
assuming that once HUD undertakes a discretionary action,
and is required affirmatively to further the policies of the
FHA and the FHAA, we may review its actions to ensure
that it does, this is not such a case.

To reiterate, the Supreme Court held in Chaney that
there is a rebuttable presumption that agency decisions not
to enforce are unreviewable. Under the FHA, Congress
explicitly chose to give discretion to HUD when determining
whether to prosecute and investigate. The "affirmatively to
further" language cannot override the discretionary impact
of the explicit language of the statute.

Even though, in certain cases, the "affirmatively to
further" language may furnish the courts with a standard
of review, in this case Congress did not provide a
substantive standard to apply to constrain HUD's
enforcement and investigative decisions. We are not dealing
with a challenge to specific HUD conduct; instead, we are
faced with a broad-based attack on HUD's investigative and
enforcement scheme. The numerous ways that HUD can
allocate its resources and choose to affirmatively further the
policies of the FHA illustrate the fact that the "affirmatively
to further" language does not provide a meaningful
substantive standard against which to judge HUD's
generalized enforcement activities. The statutory language
as well as the general enforcement structure of the FHA
illustrate that discretion is given to HUD in all relevant
instances. As such, review is precluded by the statute and,
therefore, barred under section 701(a)(2) of the APA.11
_________________________________________________________________

11. ADAPT argues that the 3608(e)(5) "affirmatively to further" language
in the FHA should be construed to require that HUD actively enforce the
5%-2% requirements in its section 504 regulations. The section 504
regulations were promulgated to fulfill HUD's requirements under the
Rehabilitation Act, not the FHA. These two acts, while overlapping in
some areas, differ in both procedure and focus. See Dist. Ct. at 4 n.4
(District Court explanation).

ADAPT argues that the section 504 regulations were, in fact, enacted
to further the basic policy of the FHAA, which is to ensure equal access

                               15
III.

Even if review were not barred by section 701, section
704 of the APA would provide an independent barrier to
review in this case. Section 704 allows judicial review of an
agency action only if (1) the statute expressly authorizes it,
or (2) the action at issue is a "final agency action for which
there is no other adequate remedy in a court." 5 U.S.C.
S 704. In this case, ADAPT correctly does not argue that the
statute expressly authorizes review of the type it is seeking,
so our only question is whether ADAPT can point to afinal
HUD action for which no other adequate judicial remedy
exists.

Unlike, for example, in NAACP where the plaintiffs
pointed to a pattern of specific grant decisions by HUD, in
this case, no final agency action exists. ADAPT argues that
HUD has completely abdicated enforcement of the FHAA
and its regulations under section 504, particularly the
5%-2% mandate. However, it does not point to any HUD
action demonstrating this. As the District Court stated,

       [ADAPT] do[es] not claim that HUD has failed to issue
       regulations required by the FHAA, has issued
       regulations inconsistent with the statute, or has
       officially announced that it will not enforce the Act, and
       do[es] not identify any other agency action or inaction
       that has legal consequences, such as releasing third
       parties from their legal duty to comply with the FHAA's
       accessibility requirements.

Id. at 15 n.17.

ADAPT has neither exhausted, nor even resorted to, any
administrative proceedings. As the Supreme Court noted in
Chaney, "[w]hen an agency does act to enforce, that action
_________________________________________________________________

to housing. While the general intent may be the same, the language of
the FHA should not be construed to impute a duty to HUD under the
Rehabilitation Act.

However, even if the "affirmatively to further" language in the FHA
could be imputed to apply to the section 504 regulations, the result
would be the same as above. "Affirmatively to further" also provides no
substantive standard against which to judge HUD's general enforcement
scheme under the section 504 regulations.

                               16
itself provides a focus for judicial review, inasmuch as the
agency must have exercised its power in some manner. The
action at least can be reviewed to determine whether the
agency exceeded its statutory powers." 470 U.S. at 832,
105 S. Ct. at 1656. The lack of a final agency action in this
case makes evaluation of ADAPT's claims improper because
there is no decision on which we can focus.

Not only does ADAPT fail to point to a final agency action,
but an adequate judicial remedy also exists. They can
pursue their claims of housing discrimination directly
against federal-funding recipients, or they may bring
administrative claims to HUD and trigger HUD's mandatory
duty to investigate. If HUD refused to investigate afiled
administrative claim, it could result in a violation of its
duty under both the FHAA and the Rehabilitation Act, and
trigger review by a court.

The nature and structure of the FHA, together with its
legislative history, indicate that the FHA was designed to
operate like other civil rights laws. The focus of the APA is
on individual actions against specific discriminators, not
national enforcement by HUD. Congress has provided
sufficient alternative remedies to physically disabled
individuals victimized by housing discrimination. As the
D.C. Circuit Court of Appeals noted, "[t]o the extent
Congress' assessment of alternate remedies is relevant,
moreover, [Supreme Court precedent] suggests that
Congress considered private suits to end discrimination not
merely adequate but in fact the proper means for
individuals to enforce Title VI and its sister
antidiscrimination statutes." Women's Equity Action League
v. Cavazos, 906 F.2d 742, 751 (D.C. Cir. 1990) (emphasis
added).

In Women's Equity Action League, the court was
considering a broad-based challenge to the Department of
Education's alleged failure to enforce various civil rights
statutes against educational institutions that received
federal funds. The court declined to review the actions
under the APA because of the existence of the opportunity
for individuals to bring direct actions against
discriminators. See id.

                               17
While noting that direct suits may be "more arduous . . .
and less effective" than judicial oversight of government
enforcement, "situation-specific litigation affords an
adequate, even if imperfect, remedy." Id. at 750. The court
went on to state that "an APA suit to compel investigation
and fund termination, although available `if no private
remedy exists,' `is far more disruptive of [an agency's]
efforts efficiently to allocate its enforcement resources . . .
than a private suit against the recipient of federal aid.' " Id.
(quoting Cannon v. University of Chicago, 441 U.S. 677, 707
n.41, 99 S. Ct. 1946, 1962 n.41 (1979)). In this case, a
private right of action against individual housing providers
that receive federal funding is provided for in the text of the
statute. This remedy is clearly "adequate" in the section
704 sense, and so judicial review is inappropriate on all
counts.

ADAPT argues that individual suits are not as effective as
a review of HUD's national investigation and enforcement
practices. While this may be true, section 704 does not
require an equally effective remedy, only an adequate one.
In this case, direct actions will be adequate to deter
individual discriminators. Any HUD failure to initiate
investigation or enforcement activities can be adequately
remedied by the filing of individual administrative
complaints. Once a complaint is filed, HUD must
investigate and, if reasonable grounds are found, enforce
the statutory regulations.12
_________________________________________________________________

12. The District Court also dismissed ADAPT's claim that HUD directly
discriminates in violation of Section 504 of the Rehabilitation Act. ADAPT
argued that HUD directly discriminates against individuals with physical
disabilities by maintaining unlawfully inaccessible housing in projects
administered by the agency itself and by failing to collect data
concerning disabled individuals while collecting data on the race and
gender of individuals in HUD-financed housing. See Appellants' Brief at
21-28. The District Court found that the claims and ADAPT's standing
were not supported by the factual allegations in the record and so he
dismissed the claim with leave to amend. See Dist. Ct. Op. at 5 n.5.
ADAPT has not amended its complaint.

A review of the complaint reveals that both of ADAPT's claims explicitly
stated that the relief was being sought under the APA. See Appendix at
31-36 (Second Amended Complaint). There is no mention of a direct

                               18
IV.

In this case, ADAPT brought a broad claim challenging
HUD's alleged nationwide failure to initiate investigations of
housing discrimination against physically disabled
individuals and its alleged failure to initiate enforcement of
its regulations. Under the APA, this is not the type of claim
that is appropriate for judicial review because it attacks a
discretionary decision for which Congress has not provided
reasonable standards to constrain HUD's actions. In
addition, ADAPT has not met the requirement under
section 704 that it identify a final agency action for which
no other judicial remedy exists. Therefore, we affirm.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

action against HUD. The District Court did not err when it concluded
that ADAPT failed to allege a direct discrimination claim. In addition,
ADAPT was granted leave to amend the complaint if it chooses to do so.

It is not clear whether, even if they had properly asserted a direct
claim, such a claim would be viable. The First Circuit in NAACP dealt
with a similar direct challenge to HUD. The plaintiffs in that case
characterized their claim as an "implied right of action" under the FHA.
See NAACP, 817 F.2d at 152. The Court declined to allow such an
action, finding that Congress provided for review of agency action with
the APA and that no special circumstances existed to support the
extension of a special private right of action in that case. See id. at
152-54. However, we do not have to decide this aspect
because ADAPT did
not properly bring the claim before the District Court.

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