Knox Hill Tenant Council v. Walter E. Washington, Individually and as Commissioner of the District of Columbia

MacKINNON, Circuit Judge

(concurring in part and dissenting in part):

The opinion for the court concludes (1) that the doctrine of sovereign immunity does not stand as a bar to the exercise of jurisdiction in this case, and (2) that the complaint states a claim for which judicial relief may be granted. I respectfully dissent from this latter conclusion insofar as it upholds the attempt to obtain judicial review of the maintenance and repair policies and practices of NCHA.

As to the contention that the doctrine of sovereign immunity, as a blanket matter, precludes the exercise of jurisdiction in this case, it may be noted at the outset that the judicially developed concept of governmental immunity from suit has for a long time been under attack. 1 The Supreme Court has joined in the assault at least to the extent of from time to time adding its own pronouncements against the principle, 2 but however discredited the doctrine is considered to be by legal writers, in practice Supreme Court decisions have tended to expand its reach. 3 The result of course is a condition of hopeless confusion in judicial opinions, and an invitation to Government attorneys to assert the applicability of the doctrine whenever the opportunity reasonably presents itself. 4 A federal trial court is faced with a thankless task whenever it is called upon to decide whether the doctrine is applicable in a particular case.

It is difficult to reconcile the prior decisions on sovereign immunity on the basis of the abstract principles they announce. A close comparison of the facts in each case is the only approach that can be relied upon with any degree of confidence. 5 The appropriate inquiry then is whether the factual circumstances of this case are sufficiently similar to those *1060 of any prior case involving the application of the sovereign immunity doctrine to require its invocation here.

Numerous attempts have been made, none with complete success, to separate sovereign immunity decisions into categories based on similar factual patterns.® One grouping of cases which has gained a degree of general acceptance as a discrete category is the class of cases seeking to in some manner dispossess the Government of property of which it is in possession or to which it holds title. The argument has been pressed that cases which fall into that category should control decision in the present case, but the majority opinion refutes that contention. The short answer, as the majority opinion makes clear, is that the relief presently sought would not interfere with the Government’s title to or possession of the public housing facilities in question.

An exhaustive examination of other possible categories and their similarities and dissimilarities to the facts of the present case would extend this opinion unnecessarily. It is sufficient to say that no case has been cited by the parties to this litigation, nor has independent research disclosed any, of sufficiently comparable factual circumstances to compel a holding that the doctrine of sovereign immunity rules out the exercise of jurisdiction here. To the contrary, assuming that the complaint otherwise makes out an appropriate case for judicial review of the official action in question, this court has held that the Administrative Procedure Act renders the doctrine of sovereign immunity inapplicable. Scanwell Laboratories, Inc. v. Shaffer, 137 U.S.App.D.C. 371 , 385-386, 424 F.2d 859, 873-874 (1970); see also IWW v. Clark, 128 U.S.App.D.C. 165 , 171 n. 10, 385 F.2d 687 , 693 n. 10 (1967), cert. denied, 390 U.S. 948 , 88 S.Ct. 1036 , 19 L.Ed.2d 1138 (1968).

However, that conclusion, rather than disposing of this appeal, only sets the stage for the real inquiry which is called for. It remains to be seen whether dismissal of the suit, insofar as it seeks to subject the maintenance and repair practices and obligations of NCHA to judicial scrutiny and control, should be upheld on the alternate ground stated by the District Court. The District Court dismissed the complaint for two reasons: (1) that the doctrine of sovereign immunity deprived the court of jurisdiction in the matter and (2) that the complaint failed to state a claim for which relief may be granted. The majority opinion characterizes the District Court’s conclusion as to (2) as relying in substantial part on its conclusion as to (1), and concludes that the complaint does state a claim for which relief may be granted. Assuredly, the order of the District Court is typical in that it does not specify exactly why it was thought that no claim for relief was made out by the complaint, and as the court suggests the brief on behalf of HUD and the NCHA officials offers little help on this point. But in my judgment the conclusion is inescapable that a valid reason does exist for upholding the dismissal of the complaint on that basis.

Uniformly, critics of the sovereign immunity doctrine have complained of the extent to which the necessity to wrestle with the doctrine distracts the courts from the real business at hand — the inquiry as to whether for other reasons judicial review should be sharply limited or entirely withheld in the particular circumstances of the immediate case. 6

7 Non-reviewability issues are directed analytically to the question of whether a remedy exists “in appropriate federal courts of first instance,” Stark v. Wickard, 321 U. S. 288, 316 , 64 S.Ct. 559 , 88 L.Ed. 733 (1943), and in appropriate instances are *1061 properly for resolution at the complaint stage of litigation. 8 If it is determined that there is an absence of remedy, then the complaint fails to state a claim for which relief may be granted.

When all has been said and done, whether particular agency action is reviewable in the courts must largely depend on whether Congress intended that rights it has created be protected by judicial remedies. Stark v. Wiekard, supra, 321 U.S. at 306 , 64 S.Ct. 559 . Though it remains true that as a general rule there is a presumption in favor of judicial review, see Abbott Laboratories v. Gardner, 387 U.S. 136, 141 , 87 S.Ct. 1507 (1967), nevertheless there are exceptions to the rule, and each case must be resolved in light of its own peculiar circumstances. 9 Whether review is sought under the authority of a specific statutory provision or pursuant to a general review provision such as section 10 of the Administrative Procedure Act, the essential question is the same: Has Congress directed that judicial review be available in the particular case ? 10 When Congress confers upon individuals certain rights as here, it is under no obligation to provide a remedy for infringement of those rights through the courts. See, e. g., Stark v. Wickard, supra, 321 U.S. at 306 , 64 S.Ct. 559 ; Lynch v. United States, 292 U.S. 571, 582 , 54 S.Ct. 840 , 78 L.Ed. 1434 (1934); United States v. Babcock, 250 U.S. 328, 331 , 39 S.Ct. 464 , 63 L.Ed. 1011 (1919); cf. Tutun v. United States, 270 U.S. 568, 576 , 46 S.Ct. 425 , 70 L.Ed. 738 (1926). Thus, it must be determined whether the right to judicial review was conferred by Congress in cases such as the present one.

To facilitate this inquiry, it is necessary to understand exactly what is placed at stake by the complaint in this case. Paragraph 9 of the complaint states that

plaintiffs contend that defendants have failed or refused to make necessary repairs in their dwellings. Defendants have failed to correct the following defects and conditions: broken windows and doors, absence of weather stripping, absence of door sills, holes and cracks in plaster, in walls, and in ceilings, defective furnaces, refrigerators and stoves, stopped-up commodes and tubs, presence of roaches and other vermin, peeling interior and exterior paint, loose and missing exterior siding, absence of heat during the winter months, water seepage and excessive dampness. Defendants have further failed and refused to maintain the common grounds of projects and have permitted the existence of abandoned automobiles, uncollected trash, broken glass, weeds and uncut grass. 11

Paragraph 5 of the “Prayer for Relief” requests

That this Court permanently enjoin the defendants, and each of them, from failing and refusing to perform their duty to maintain and repair the premises of plaintiffs and their class in a decent, safe and sanitary condition. * * *

*1062 The complaint does not allege that NCHA officials have acted in affirmative bad faith in carrying out their repair and maintenance obligatio ns . 12 ials acted arbitrarily and capriciously in their asserted failure and refusal to repair and maintain the public housing facilities in question. 13 The complaint does not allege that the asserted failure and refusal of NCHA officials to repair and maintain the housing facilities in question raises nonfrivolous constitutional issues. 14 The complaint does not, as it realistically could not, allege that NCHA officials are under an absolute statutory obligation to repair and maintain the housing facilities in question under any and all circumstances. However, the complaint does allege that the asserted failure and refusal of NCHA officials to carry out repair and maintenance obligations violates “the United States Housing Act * * * the District of Columbia Alley Dwelling Law * * * and the Housing Regulations of the District of Columbia. * * * ” The question then is: Does an action lie in a federal district court for declaratory relief and a mandatory injunction under these circumstances, or — stated another way — does the complaint identify the ease as one seeking judicial review of nonreviewable agency action?

Those portions of the complaint quoted above identify the present case as partly one for judicial review of the conformance of agency action to statutory requirements and to the requirements of regulations promulgated pursuant to statutory authority. The absence of judicially discoverable and manageable guides to decision is, of course, one very significant factor which suggests that court review of agency action was not contemplated by Congress. Cf., e. g., Baker v. Carr, 369 U.S. 186, 217 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). Further, unless the determination the court is asked to make is one which can be made in the “usual common-law manner,” 15 the inference is strong that judicial review was not intended. This suggests as a starting point for analysis an examination of the exact language of the applicable statutory sections and regulations.

Appellants first rely on the Housing Act of 1937, 50 Stat. 888 , as amended, 42 U.S.C. § 1401 et seq., specifically the stated purpose of Congress to provide “decent, safe, and sanitary dwellings” 16 for low-income families. These words must, of necessity, express the general objectives of Congress in instituting a federally-assisted public housing program; they cannot have been intended to impose a fixed, absolute obligation on the part of local public housing administrators. 17 In addition, it should be noted that the quoted declarations of the statute obviously set forth broad future goals which even a cursory examination of the Act indicates were to be accomplished over a great many years. 18 All recognize that such congressional declarations are meaningless if they are not backed by adequate annual appropriations. The true intent of Congress in such cases, to the extent it can be said to be controlling on administrative officials, is thus to be garnered not solely from broad policy declarations but also from the indications that Congress gives by its current supporting appropriations. *1063 To the extent that its appropriations are inadequate to carry out a declared policy, no clear duty can be said to be imposed upon the administrative officials to accomplish all the stated objectives of the program; in such circumstances such administrators may be forced by the realities of limited resources into making alternative judgments. 19 Viewed in this light, the statutorily expressed intention of Congress provides little if any guidance to a court faced with the problem of determining whether day-to-day administrative implementation in a specific instance is or is not consistent with the statutory mandate.

Reliance is also placed on the District of Columbia Alley Dwelling Act, D.C. Code § 5-103 et seq., under which NCHA is constituted as a local housing authority for purposes of the Housing Act of 1937. Pursuant to the terms of the Alley Dwelling Act, there exists between NCHA and HUD a “Consolidated Annual Contributions Contract.” Under that contract, NCHA is again obligated to provide “decent, safe, and sanitary dwellings” but in addition there is the obligation to “maintain each Project in good repair, order and condition.” Although the language “good repair, order and condition” may add something to the meaning of “decent, safe, and sanitary,” it does not add much. Both phrases are extremely general in terms, and are of little help in deciding concrete cases. 20

Most importantly, it is asserted that the provisions of the District of Columbia Housing Code are applicable to public housing owned by the United States and operated by NCHA, and that these regulations provide precise standards by which to judge the adequacy of NCHA’s repair and maintenance activities. Doubtless this is true if the Housing Code is applicable to low-income public housing in the District, but that conclusion is unwarranted. The opinion for the court finds it unnecessary to decide the question, but to my mind the correct resolution of the nonreviewability issue requires decision of that question.

In United States v. Wittek, 337 U.S. 346 , 69 S.Ct. 1108 , 93 L.Ed. 1406 (1949), the Supreme Court held that the District of Columbia Emergency Rent Act, 55 Stat. 788 (1941), was inapplicable to Government-owned defense housing in the District of Columbia, partly because a contrary result would have required the Court to “hold it [Emergency Rent Act] applicable also to the United States as the landlord of low-rent housing.” 337 U.S. at 358 , 69 S.Ct. at 1114 . Although the holding in Wittek by itself does not resolve the question at hand, the Court there did indicate the nature of the inquiry which must be made: “The text, surrounding circumstances and legislative history of this District Act neither express nor imply a change in the authority already vested in permanent federal agencies in their management of the Government-owned housing in the District.” 337 U.S. at 359-360 , 69 S.Ct. at 1115 .

As the opinion of the panel majority notes, the same Congress that enacted the D.C. Alley Dwelling Act also authorized the D.C. government to promulgate the D.C. Housing Code regulations. The opinion then concludes that since the applicability of the regulations would be consistent with the objective of providing “decent, safe, and sanitary dwellings” Congress probably could not have consciously rejected the notion that public housing in the District should be subject to the regulations, although the opinion does not decide the question. Yet there are persuasive reasons why Congress *1064 might not have intended any such result, and in fact did not intend such a result.

Congress, in implementing social welfare programs, sometimes proceeds explicitly “upon the premise that public bodies organized as nonprofit agencies to perform a public purpose could be entrusted with the responsibility of conducting their operations in the best public interest.” 21 It is not at all unlikely that Congress would have the same thought in mind without explicitly saying so in the course of enacting social welfare legislation such as the Alley Dwelling Act 22 Congress with good reason may well have thought the NCHA and its predecessors did not present the same need for official scrutiny and regulation as did private landlords.

That Congress did not intend that NCHA be subject to the Housing Code regulations seems clear. D.C.Code § 5-103(c), 48 Stat. 930 (1934) explicitly requires that construction, alteration or demolition by NCHA “be in accordance with the laws and municipal regulations of the District of Columbia.” Thus when Congress has intended that the property of the United States be subject to District of Columbia regulation, it has explicitly so stated. As the Supreme Court noted in Wittek, supra, the operation and management of public housing in the District of Columbia was placed by Congress “in the control of a national or presidentially designated authority or official with authorization fitted to the particular and various purposes of that housing.” 337 U.S. at 356 , 69 S.Ct. at 1113 . There would be no reason for Congress to assume that NCHA would be so deficient in implementing the policies of the Housing Act of 1937 and the Alley Dwelling Act that parallel supervision by another governmental agency would be necessary. This conclusion is supported by D.C. Code § 5-115 , which provides generally for the cooperation of the District of Columbia government in effectuating the goals of the Alley Dwelling Act, and which authorizes the District and its instrumentalities to:

“(f) Enter into agreements with the Authority [NCHA] respecting the elimination of unsafe, insanitary, or unfit buildings. * * * ”

An authorization to enter voluntary agreements for the purpose with NCHA is obviously inconsistent with an intention that District instrumentalities exercise a power to impose regulations designed to eliminate “unsafe, insanitary, or unfit buildings.”

Even if the Housing Code regulations are not directly applicable to public housing in the District, appellants assert that indirectly the regulations can be resorted to by the court, as a gloss on the statutory standard of “decent, safe, and sanitary dwellings,” to provide the necessary guidance to judicial decision-making. However, as pointed out above, the threshold inquiry is whether Congress intended that judicial review be available, and that determination must revolve in significant part around the question whether there exist congressionally furnished guides to decision. It is clear to me that such guidelines do not exist and that conclusion of itself comes close to disposing of this part of the case. The brief for appellants at p. 26 recognizes this, by admitting that “[t]his action is limited to ensuring compliance with specific standards of safe and sanitary housing. * * * ” However, even absent congres-sionally furnished standards, if for other reasons it should clearly appear that Congress intended that a judicial remedy be available in the context of this case, then it might be proper for a court to resort to the Housing Code regulations for guidance. The question then recurs, did Congress intend that there be judicial review of NCHA’s day-to-day maintenance and repair practices ?

In addition to the absence of congressionally supplied guides to judicial decision, there are other reasons for concluding that judicial review was not in *1065 tended by Congress. First, there is the fact — adverted to briefly by the majority opinion — that Congress has explicitly conferred upon HUD responsibility for overseeing the operations of local housing authorities, including NCHA. Through the “Annual Contributions Contract,” HUD has the obligation to exert pressure on NCHA to secure its compliance with the contract and with the goals of “decent, safe, and sanitary dwellings.” To aid in implementing these goals, statutory authority is conferred on HUD to make “such rules and regulations as may be necessary to carry out” federally-assisted low-rent housing programs. Housing Act of 1937, § 8, 50 Stat. 891 , as amended, 42 U.S.C. § 1408 . See Thorpe v. Housing Authority, 386 U.S. 670 , 673 n. 4, 87 S.Ct. 1244 , 18 L.Ed.2d 394 (1967) (per curiam). Thus if NCHA or any local housing authority fails to meet its obligations, HUD has several alternative remedies. It can reduce or terminate the annual federal contributions, 23 increase the interest rate on loans or declare them in default, 24 or even assume the management of a project. 25 It is argued that HUD is either unable or unwilling to make effective use of these sanctions, but even assuming that is the case the fact remains that this is management machinery established by Congress which involves the exercise of a high degree of discretion, and its existence suggests that Congress did not intend that the machinery of the courts be available to superintend the day-to-day implementation of the low-income public housing program. If the sanctions available to HUD to induce compliance with the goals of the housing program are unsatisfactory, and if implementation of those goals by administrators falls short of what Congress has directed, it is presumably for Congress to take appropriate action to remedy the defects in the administration of the program. 26

Second, there is the nature of the official action sought to be reviewed. Whatever the amenability of purely regulatory agency action to judicial scrutiny, the problems are entirely different when the official action in question consists of “running, evaluating, and regulating enterprises simultaneously.” 27 Courts are ill-suited to engage in overseeing day-to-day activities of a judgmental and all-encompassing nature, such as the repair and maintenance practices followed by public housing administrators in specific cases. Such activities have traditionally been viewed as beyond the reach of the courts. 28

*1066 Finally, there is the very important consideration that courts should not be overburdened with an onslaught of litigation seeking review of administrative action. 29 Where a decision in favor of reviewability would have the effect of substantially increasing the workload of the courts, it is not to be lightly inferred that Congress intended such a result. If every asserted failure to promptly and adequately repair and maintain public housing facilities is to be subject to review in the courts, there can be little doubt that a potential for extensive recourse to the federal courts exists. That circumstance militates against a conclusion that judicial review could have been intended by Congress in the circumstances of this case.

It is thus my judgment that insofar as the complaint in this case seeks judicial review of the maintenance and repair practices of NCHA, and declaratory relief and a mandatory injunction to control those practices, it fails to state a claim for which judicial relief may be granted. The remaining parts of the complaint however stand on a different footing. The complaint also seeks a declaratory judgment that the asserted failure to repair and maintain the housing facilities is a breach of the lease contract between tenants of the facilities and NCHA, and a breach of the “Consolidated Annual Contributions Contract,” under which the appellants are entitled to sue as third-party beneficiaries. Also, the complaint seeks a declaration that certain charges for excess utility use violate specific statutory and regulatory requirements and are accordingly illegal. 30 The complaint in these respects presents issues traditionally resolved by the courts, and thus states a claim for which judicial relief may be granted. I would thus remand the case to the District Court for investigation of the merits of these claims only.

In my view the action should also be dismissed as against Elder Gunter, formerly Deputy Assistant Secretary of Housing Assistance, Department of Housing and Urban Development, because of his resignation; and the return of the service of summons quashed as against Warren P. Phelan and Vincent A. Marino, respectively, Regional and Assistant Regional Administrators, of the Department of Housing and Urban Development, because they have their residences and offices in Philadelphia and are not subject to service of process in the District of Columbia. Fed.R.Civ.P. 4, 25. The United States District Court in the District of Columbia, unless specially provided, does not have jurisdiction of a suit against a person “who is not resident or found within the District.” D.C. Code § 11-521 .

. E. g., 3 K. Davis, Administrative Law Treatise ch. 27 (1958, Supp.1965) ; Cram-ton, Nonstatutory Review of Federal Administrative Action; The Need for Statutory Reform of Sovereign Immunity, Subject Matter Jurisdiction, and Parties Defendant, 68 Mich.L.Rev. 389 (1970) ; Scalia, Sovereign Immunity and Nonstatutory Review of Federal Administrative Action; Some Conclusions from the Public-Lands Cases, 68 Mich.L.Rev. 867 (1970) ; Currie, The Federal Courts and the American Law Institute (pt. II), 36 U.Chi.L.Rev. 268 (1969) ; Byse, Proposed Reforms in Federal “Nonstatutory” Judicial Review: Sovereign Immunity, Indispensable Parties, Mandamus, 75 Harv.L.Rev. 1479 (1962) ; Carrow, Sovereign Immunity in Administrative Law— A New Diagnosis, 9 J.Pub.L. 1 (1960).

. See, e. g., National City Bank v. Republic of China, 348 U.S. 356, 359-360 , 75 S.Ct. 423 , 99 L.Ed. 389 (1955).

. H. Hart & H. Wechsler, The Federal Courts and the Federal System 1151 (1953) ; Cramton, supra note 1, at 417; Scalia, supra note 1, at 868-869. For example, compare Malone v. Bowdoin, 369 U.S. 643 , 82 S.Ct. 980 , 8 L.Ed.2d 168 (1962), with United States v. Lee, 106 U.S. 196 , 1 S.Ct. 240 , 27 L.Ed. 171 (1882), and Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682 , 69 S.Ct. 1457 , 93 L.Ed. 1628 (1949).

. See Cramton, supra note 1, at 420 — 421.

. See Scalia, supra note 1, at 918-920.

. See, e. g., 3 K. Davis, supra note 1, § 27.05, at 571-576 (1958) ; Cramton, supra note 1, at 401-404; Scalia, supra note 1, at 880-882; Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 705-732 , 69 S.Ct. 1457 (1949) (Frankfurter, J., dissenting).

. See Curran v. Laird, 136 U.S.App.D.C. 280, 288-289 , 420 F.2d 122, 130-131 (en lane, 1969).

. See, e. g., International Ass’n of Machinists and Aerospace Workers, AFL-CIO v. National Mediation Board, 138 U.S.App. D.C. 96, 111, 425 F.2d 527, 542 (1970).

Dismissal at the complaint stage is of course improper where the question of nonreviewability is necessarily “interrelated with the merits of the controversy,” Peoples v. United States Dep’t of Agriculture, 138 U.S.App.D.C. 291 , 296, 427 F.2d 561, 566 (1970), but as will be seen this is not the case with the present litigation.

. [E]ach statute in question must be examined individually; its purpose and legislative history as well as its text are to be considered in deciding whether the courts were intended to provide relief for those aggrieved by administrative action. Heikkila v. Barber, 345 U.S. 229, 233 , 73 S.Ct. 603, 605 , 97 L.Ed. 1371 (1953).

. See, e. g., Byse & Fiocca, Section 1361 of the Mandamus and Venue Act of 1962 and “Nonstatutory” Judicial Review of Federal Administrative Action, 81 Harv.L.Rev. 308 (1967).

. Under the lease between the parties the tenant agrees:

“3. (g) To keep the premises and adjacent grounds in good, orderly and clean condition * *

. Cf. Pence v. Tobriner, 121 U.S.App.D.C. 282 , 349 F.2d 717 (1965) ; Barger v. Mumford, 105 U.S.App.D.C. 188 , 265 F. 2d 380 (1959).

. See Gonzalez v. Freeman, 118 U.S.App. D.C. 180, 185, 334 F.2d 570, 575 (1964).

. See Norwalk CORE v. Norwalk Redevelopment Agency, 395 F.2d 920, 929-930 (2d Cir. 1968).

. Attorney General’s Comm. on Administrative Procedure in Government Agencies, S.Doc.No.8, 77th Cong., 1st Sess. 80-81 (1941).

. 42 U.S.C. §§ 1401 , 1402(1), 1402(2).

. Cf. Rosado v. Wyman, 397 U.S. 397, 413 , 90 S.Ct. 1207 , 25 L.Ed.2d 442 (1970) ; Dandridge v. Williams, 397 U.S. 471, 476-481 , 90 S.Ct. 1153 , 25 L.Ed.2d 491 (1970).

. See S.Rep.No.84, 1949 U.S.Code Cong. Serv. pp. 1550, 1558-1560.

. The legislative history of the Housing and Urban Development Act of 1968, Pub. L. 90-448, 82 Stat. 504, gives explicit recognition to problems of this nature:

“Progress [in the housing program] has been repeatedly interrupted by periods of tight money and budgetary pressures on the Federal Government.”

H.R.No.1585, 1968 U.S.Code Cong. & Adm.News, p. 2873.

. See generally Cahn & Cahn, The New Sovereign Immunity, 81 Harv.L.Rev. 929 (1968).

. S.Rep.No.1656 to accompany H.R. 7664, p. 4, 83d Cong., 2d Sess. (1954).

. Cf., e. g., Cappadora v. Celebrezze, 356 F.2d 1, 6 (2d Cir. 1966).

. 42 U.S.C. § 1415 (3).

. Id. § 1415(1).

. Id. § 1413(a).

. Congress has indicated a continuing interest in questions of this sort, and has expressed the intention to take legislative action in response to problems as they are revealed. The Housing and Urban Development Act of 1968, § 5, 82 Stat. 477 , provides:

“The Secretary [of HUD] shall, as early as practicable in the calendar year 1969 and in the calendar year 1970, make a report to the respective Committees on Banking and Currency of the House of Representatives and the Senate identifying specific areas of program administration and management which require improvement, describing actions taken and proposed for the purpose of making such improvements, and recommending such legislation as may be necessary to accomplish such improvements.”

Section 110 of the same Act, 82 Stat. 497 , sets up a National Advisory Commission on Low Income Housing, and § 110(b) (1) provides as follows :

“The Commission shall undertake a comprehensive study and investigation, to further the policy set forth in section 2 of this Act, of practicable and effective ways of bringing decent, safe, and sanitary housing within the reach of low income families. Such study shall evaluate existing housing programs designed to assist such families, and explore new ways by which public and private resources may be more effectively utilized in meeting the housing needs of such families.”

. Cahn & Cahn, supra note 20, at 969.

. See generally, e. g., Cramton, supra note 1.

. See Rosado v. Wynn, 397 U.S. 397, 435 , 90 S.Ct. 1207 (1970) (Black, J., dissenting) ; Saferstein, Nonreviewability: A Functional Analysis of “Committed to Agency Discretion,” 82 Harv.L.Rev. 367, 371 (1968).

. Under the lease the tenant agrees: “3 (h) * * * to pay, as additional rent when hilled, charges for utilities used in excess of established allowances * * For non-payment of such charges NCHA proceeds in court by way of eviction. Appellants assert that failure to provide an “administrative hearing” in such cases is a denial of due process. NCHA by uncontested affidavit asserts that prior to institution of eviction proceedings the tenant is notified of the proposed action; the reason therefor and given an opportunity to make response. Only after a failure to respond or to justify alternative arrangements is the matter referred to court where the tenant may interpose any defense permitted by law and have a regular judicial trial. Under such circumstances, to my view, the requirements of due process are fully satisfied. Whether the charges made for utilities were excessive is another question.