                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-31-2006

Turner v. Secretary HUD
Precedential or Non-Precedential: Precedential

Docket No. 05-2169




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"Turner v. Secretary HUD" (2006). 2006 Decisions. Paper 986.
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                                           PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                             No. 05-2169


                       DEANNA TURNER,

                                                  Appellant

                                 v.

              THE SECRETARY OF THE UNITED
             STATES DEPARTMENT OF HOUSING
                AND URBAN DEVELOPMENT


          On Appeal from the United States District Court
             for the Western District of Pennsylvania
                   (D.C. Civ. No. 04-cv-01379)
           Honorable Gary L. Lancaster, District Judge


            Submitted under Third Circuit LAR 34.1(a)
                         March 6, 2006

     BEFORE: ROTH and GREENBERG, Circuit Judges, and
              BUCKWALTER, District Judge*

                       (Filed May 31, 2006)


Donald Driscoll
Evalynn B. Welling
Community Justice Project
1705 Allegheny Building
429 Forbes Avenue
Pittsburgh, PA. 15219
   Attorneys for Appellant

*Honorable Ronald L. Buckwalter, Senior Judge of the United States
District Court for the Eastern District of Pennsylvania, sitting by
designation.
Mary Beth Buchanan
United States Attorney
Laura S. Irwin
Assistant United States Attorney
700 Grant Street, Suite 4000
Pittsburgh, PA. 15219

   Attorneys for Appellee


                    OPINION OF THE COURT


GREENBERG, Circuit Judge.


                        I. INTRODUCTION

        This matter comes on before the court on an appeal by Deanna
Turner from an order of the district court entered March 30, 2005,
dismissing her action against the Secretary of the United States
Department of Housing and Urban Development (“HUD”). In this
case Turner alleged that HUD failed to perform mandatory duties that
the Fair Housing Act (“FHA”), 42 U.S.C. § 3601 et seq., imposed on
it with respect to her status as a residential lessee.1 In particular,
Turner alleged that in ruling on a complaint she filed with HUD
against her landlord, HUD did not determine from an analysis of the
facts whether she had been a victim of a discriminatory housing
practice. Instead, relying on the res judicata effect of a judgment in
favor of her landlord in a state court proceeding, HUD dismissed her
complaint as it found no reasonable cause for the complaint. That
unfavorable outcome in the HUD proceeding led Turner to bring this
action against HUD. The district court dismissed Turner’s action as it
believed that the Administrative Procedure Act (“APA”), 5 U.S.C. §
701 et seq., did not provide for judicial review of HUD’s
determination. For the reasons set forth below, we will affirm the
order of dismissal.



       1
        We discuss the history of the FHA in Mitchell v. Cellone, 389
F.3d 86 (3d Cir. 2004).

                                   2
           II. FACTUAL AND PROCEDURAL HISTORY

        Turner filed the complaint with HUD leading to this litigation
on December 14, 2001, alleging that she was the victim of various
discriminatory housing practices in which her landlord, Crawford
Square Apartments III, L.P. (“Crawford Square”), engaged in
violation of the FHA.2 Prior to and after filing her HUD complaint,
Turner was involved in proceedings before the Court of Common
Pleas of Allegheny County, Pennsylvania, stemming from Crawford
Square’s attempts to evict her and her attempts to thwart her eviction.
Crawford Square initiated the state court proceedings by reason of
Turner’s delinquency in rent payments, and Turner responded in the
state court with various state law counterclaims and a petition for
injunctive relief to block her eviction. Turner, however, did not raise
the FHA claims underlying her HUD complaint in the state court. On
September 30, 2003, following a four-day trial, the court of common
pleas found in favor of Crawford Square, rejecting all of Turner’s
claims and defenses on the merits.



       2
         Turner’s December 14, 2001 HUD complaint was her second
such complaint; she filed the first with HUD on January 5, 2001. She
specifies, however, that the December 14, 2001 complaint forms the
basis for this action and appeal.

        Turner stated in her district court complaint that she filed her
December 14, 2001 HUD complaint against “Crawford Square.”
Although she has not included the complaint in her appendix on this
appeal, we have examined the complaint which is included in the
appendix filed in Turner’s related appeal, Turner v. Crawford Square
Apartments III, L.P., et al., No. 05-1979, and observe that it shows that
Turner filed the December 14, 2001 complaint against “McCormick [sic]
Baron Mngmnt t/a Crawford Square.” The reference to McCormack
Baron was to McCormack Baron Management Services, Inc., Crawford
Square’s management company. Her designation of the respondent in
her complaint is consistent with the HUD Determination of No
Reasonable Cause, which identified McCormack Baron as the
respondent in the December 14, 2001 complaint. Turner’s failure to
identify precisely the party she named as respondent in the underlying
HUD proceeding does not impair our ability to adjudicate this appeal
because for our purposes it does not matter whether the respondent was
Crawford Square or McCormack Baron, or even whether both entities
were respondents.

                                   3
        After the state court adjudication, HUD sent Turner a
“Determination of No Reasonable Cause,” dated August 12, 2004, in
which HUD explained that “[b]ased on the evidence obtained during
the investigation, [HUD] has determined that reasonable cause does
not exist to believe that a discriminatory housing practice has
occurred” and that her complaint therefore must be dismissed. S.A. at
1.3 HUD enclosed with its letter a “determination” on which it based
its decision in which it explained “that the present investigation
should be dismissed under the legal doctrine of res judicata,”
predicated on the state court proceedings because “HUD conclude[d]
that this constitute[d] a successful defense against the present
complaint.” Id. at 7.

         Nevertheless, HUD informed Turner that “[n]otwithstanding
this dismissal by HUD, the [FHA] provides that the complainant may
file a civil action in an appropriate federal district or state court.” Id.
at 1. A few days later, on August 18, 2004, Turner did just that,
bringing a private action (“Turner I”) against her landlord, Crawford
Square, and its management company, McCormack Baron
Management Services, Inc., (“McCormack Baron”), in the district
court alleging violations of the FHA. The district court, however,
granted summary judgment in favor of the defendants in Turner I by
an order entered March 22, 2005, on the basis of the Rooker-Feldman
doctrine. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16, 44
S.Ct. 149, 150 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462, 483-84, 103 S.Ct. 1303, 1316 (1983). In the
district court’s view, application of that doctrine barred Turner from
challenging the state court adjudication and thereby deprived the
district court of subject matter jurisdiction over her action against
Crawford Square and McCormack Baron. Turner then appealed, and
we are affirming the dismissal of her action on the ground of res
judicata inasmuch as Turner’s FHA claims in the district court in
Turner I involved the same cause of action as her previously-
adjudicated state court claims that had been resolved against her. See
Turner v. Crawford Square Apartments III, L.P., No. 05-1979, Turner
I. Nevertheless, as we explain in our opinion in Turner I, we are
rejecting the district court’s view that the Rooker-Feldman doctrine
barred Turner’s action in Turner I.

       On September 10, 2004, Turner filed the present action
(“Turner II”) against HUD, alleging that it failed to undertake certain


        3
        S.A. refers to the supplemental appendix that HUD filed.

                                     4
mandatory duties affecting her interests that the FHA and its
implementing regulations imposed on it. In particular, Turner alleged
that HUD’s dismissal of her complaint based on res judicata
principles violated the statutory mandate requiring it to complete an
investigation and determine, based on the facts concerning the alleged
discriminatory practices, whether there was reasonable cause to
believe that she had been the victim of discriminatory practices.
Turner claims that HUD completed its investigation but wrongfully
withheld the mandated determination of whether there was reasonable
cause to believe that there were discriminatory housing practices.

        On November 10, 2004, HUD moved to dismiss Turner’s
complaint in this case, Turner II, under Federal Rules of Civil
Procedure 12(b)(1) and 12(b)(6). The district court granted the
motion, concluding that the APA did not include a provision from
which the court could find a basis for allowing judicial review of
HUD’s disposition of Turner’s complaint. In particular, the district
court determined that the APA permitted judicial review only for
“final agency action for which there is no other adequate remedy in a
court,” and that Turner “had an adequate remedy” in court, as
evidenced by her district court suit against Crawford Square and
McCormack Baron in Turner I. See App. at 8-10.4 The district court
also noted that even if review were appropriate under the APA, there
was a “strong presumption” against judicial review of agency
decision concerning whether to undertake enforcement actions. Id. at
9-10. Lastly, the district court, acting consistently with its
adjudication in Turner I, explained that application of the Rooker-
Feldman doctrine provided an alternative ground compelling
dismissal.

       Turner then filed a timely notice of appeal in Turner II on
April 11, 2005. By this opinion we adjudicate the appeal.



       III. JURISDICTION AND STANDARD OF REVIEW

        The parties dispute whether the district court had jurisdiction,
Turner asserting that it had jurisdiction under 28 U.S.C. §§ 1331
(federal question) and 1361 (All Writs Act), and HUD claiming that it
did not have jurisdiction. We, however, have jurisdiction under 28


       4
        “App.” refers to the appendix that Turner filed.

                                   5
U.S.C. § 1291, and we exercise plenary review over the district
court’s dismissal on the grounds that the APA barred judicial review.
See Raymond Proffitt Found. v. United States Army Corps. of Eng’rs,
343 F.3d 199, 203 (3d Cir. 2003).



                          IV. DISCUSSION

        The APA provides that agency actions are judicially
reviewable if they are “made reviewable by statute,” or if there was a
“final agency action for which there is no other adequate remedy in a
court.” 5 U.S.C. § 704. Neither party points to any statute making
HUD’s determination with respect to Turner’s complaint reviewable,5
but they disagree as to whether HUD rendered a “final agency action
for which there is no other adequate remedy in a court.” This
question implicates section 813 of the FHA, 42 U.S.C. § 3613(a)(2),
which authorizes private suits directly against perpetrators of
allegedly discriminatory practices, even if, as here, HUD renders a
determination that there was no reasonable cause to believe that there
had been discrimination. See 42 U.S.C. § 3613(a)(2).6


       5
         In fact, HUD’s determination was not reviewable pursuant to
statute. See Godwin v. Sec’y of Hous. and Urban Dev., 356 F.3d 310,
312 (D.C. Cir. 2004) (per curiam).
       6
         Although we uphold the district court’s order dismissing this
action because we conclude that Turner had another “adequate remedy”
in court, we consider the Rooker-Feldman doctrine in accordance with
the explanation of the doctrine that the Supreme Court set forth in Exxon
Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 125 S.Ct. 1517
(2005). We hold that the Rooker-Feldman doctrine is inapplicable in
this case for, as the Court set forth in Exxon Mobil, the Rooker-Feldman
doctrine “is confined to cases of the kind from which the doctrine
acquired its name: cases brought by state-court losers complaining of
injuries caused by state-court judgments rendered before the district
court proceedings commenced and inviting district court review and
rejection of those judgments.” Id. at 284, 125 S.Ct. at 1521-22.
Inasmuch as, in light of Exxon Mobil, there is no possible way that the
Rooker-Feldman doctrine could be applicable in this case, we summarily
reject HUD’s reliance on it without further discussion. We, however,
point out that the district court did not have the benefit of Exxon Mobil
when it released its memorandum order dismissing this action as the

                                   6
       Other courts that have confronted situations like those arising
from Turner’s action against HUD, have held that section 813
provides an “other adequate remedy in a court,” barring judicial
review under the APA.7 See Godwin v. Sec’y of Hous. and Urban
Dev., 356 F.3d 310, 312 (D.C. Cir. 2004) (per curiam); Marinoff v.
U.S. Dept. of Hous. and Urban Dev., 892 F. Supp. 493, 497 (S.D.N.Y.
1994), aff’d, 78 F.3d 64 (2d Cir. 1996) (per curiam). We agree with
those courts.

        We hold that section 813 provided Turner with another
“adequate remedy” which, in fact, she pursued by filing her action in
the district court against Crawford Square and McCormack Baron in




order was dated March 29, 2005, and was entered on March 30, 2005,
the date that the Court decided Exxon Mobil.
       7
         We have had occasion to note, albeit in dictum, that the FHA
provides an adequate judicial remedy barring APA review. See Am.
Disabled for Attendant Programs Today v. U.S. Dept. of Hous. and
Urban Dev., 170 F.3d 381, 390 (3d Cir. 1999) (“ADAPT”) (“Not only
does ADAPT fail to point to a final agency action, but an adequate
judicial remedy also exists.”). While ADAPT arose in an administrative
context different from that here, it is worth noting Turner’s misplaced
reliance on the case. In particular, Turner mistakenly relies on dictum
in that case that reads: “If HUD refused to investigate a filed
administrative claim, it could result in a violation of its duty . . . and
trigger review by a court,” id. at 390 (emphasis added). Appellant’s br.
at 10. But this dictum is clearly inapplicable here because, as Turner
correctly concedes in her complaint in Turner II, HUD did undertake–
and complete– an investigation. Thus, Turner uses the dictum regarding
“refus[al] to investigate a filed administrative claim,” to bootstrap an
argument regarding HUD’s decision not to bring an enforcement action,
an issue which we did not address in ADAPT.

        We also note that Turner points to our statement in ADAPT that
following the filing of an administrative complaint HUD has a
“mandatory” duty to investigate the complaint and if it finds in the
investigation that there is a reasonable basis for the complaint, it “must
bring a charge on behalf of the aggrieved person.” Id. at 387. That
language cannot help Turner because HUD did investigate the complaint
but it concluded the proceeding before it with a “Determination of No
Reasonable Cause.”

                                    7
Turner I.8 We further hold that she has not been deprived of her
“adequate remedy” merely because the district court in Turner I
dismissed her complaint in an order we are affirming. In this regard
we agree with the Court of Appeals for the First Circuit which held
that “[a] legal remedy is not inadequate for purposes of the APA
because it is procedurally inconvenient for a given plaintiff, or
because plaintiffs have inadvertently deprived themselves of an
opportunity to pursue that remedy.” Town of Sanford v. United
States, 140 F.3d 20, 23 (1st Cir. 1998); see also Martinez v. United
States, 333 F.3d 1295, 1319-20 (Fed. Cir. 2003) (“The fact that the
complaint was untimely filed . . . does not mean that that court could
not offer a full and adequate remedy; it merely means that [plaintiff]
did not file his complaint in time to take advantage of that remedy.”);
Sable Commc’ns of California, Inc. v. FCC, 827 F.2d 640, 642 (9th
Cir. 1987).

         The decisions of the Courts of Appeals for the Federal Circuit
in Martinez and for the Ninth Circuit in Sable Communications are
illustrative of the principle that, for purposes of section 813, another
remedy is not inadequate merely because the complainant cannot
pursue it successfully. In each case the court of appeals held that the
plaintiff had an adequate judicial remedy barring APA review
notwithstanding the fact that the plaintiff had forfeited the right to that
remedy by failing to pursue it in a timely manner. Martinez, 333 F.3d
at 1320; Sable Commc’ns, 827 F.2d at 642. Like the plaintiffs in
Martinez and Sable Communications, Turner was not successful in
her section 813 action under the FHA, though for a different reason.
Nevertheless, she had an opportunity to bring her case and her lack of
success in it was attributable to her loss in the underlying action
between her and Crawford Square and McCormack Baron in the state
court.9


       8
         Our result would have been the same even if Turner had not
filed suit in Turner I as her failure to seek her remedy would not have
meant that she did not have an “adequate remedy in a court.”
       9
          To the extent that Godwin, 356 F.3d at 312-13, may be read as
being inconsistent with this opinion because it indicates that “a private
action remains available . . . because the two-year statute of limitations
. . . has not run” we decline to follow that case. On the other hand,
Godwin, by observing that the statute of limitations had not run on a
private action, might not have been implying that its result would have
been different if it had run. In that event our result would be consistent

                                    8
                         V. CONCLUSION

        Inasmuch as we have concluded that 5 U.S.C. § 704 bars the
judicial review sought in this action, we need not address the question
of whether 5 U.S.C. § 701(a)(2), which precludes review of agency
action “committed to agency discretion by law,” compels dismissal of
Turner’s complaint. For the foregoing reasons we will affirm the
order of March 30, 2005.




with Godwin.

                                   9
