The Montgomery Improvement Association, Inc. v. The United States Department of Housing and Urban Development

JAMES C. HILL, Circuit Judge,

dissenting:

Once again this court, while “interpreting” an Act of the United States Congress, has seen fit to create a private cause of action where none has been provided. Once again I dissent. I have expressed my general disapproval of such judicial action elsewhere, see Wilson v. First Houston Investment Corp., 566 F.2d 1235, 1243-45 (5th Cir. 1978) (Hill, J., dissenting), vacated and remanded, 444 U.S. 959 , 100 S.Ct. 442 , 62 L.Ed.2d 371 (1979), so I will only briefly indicate why I find it particularly inappropriate here.

Courts can, wisely or otherwise, permit private parties to premise an action upon a statute which does not expressly authorize a private lawsuit. Transamerica Mortgage Advisors, Inc. (TAMA) v. Lewis, 441 U.S. 11 , 100 S.Ct. 242 , 62 L.Ed.2d 146 (1979); Cannon v. University of Chicago, 441 U.S. 677 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979); Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33 , 36 S.Ct. 482 , 60 L.Ed. 874 (1916). Courts do so by deciding that the language and history of that statute imply that Congress intended to create a private enforcement action (or perhaps, as Justice Powell has suggested, by deciding that “Congress absentmindedly forgot to mention an intended private action.” Cannon v. University of Chicago, 441 U.S. at 741 , 99 S.Ct. at 1981 (Powell, J., dissenting)). The framework for making such a decision, ably outlined by the majority, at pages 294, 295 supra, was established in Cort v. Ash, 422 U.S. 66, 78 , 95 S.Ct. 2080, 2087 , 45 L.Ed.2d 26 (1975); the Transamerica and Cannon decisions emphasize that the court’s primary focus should be on the intent of Congress.

In my opinion, nothing in the language or history of the Housing and Community Development Act of 1974, 42 U.S.C. § 5301 , et seq. compels the conclusion that Congress contemplated or condoned the type of lawsuit which confronts us today. Indeed, sections 5309 and 5311 suggest to me that Congress envisioned an entirely different enforcement scheme. Appellants earnestly insist that the administrative enforcement *298 scheme prescribed in the Act does not apply to the lawsuit before us. The statutory enforcement scheme, appellants argue, “provides remedies which HUD may decide to pursue against a community which is receiving community development funding, but which is not carrying out the program set forth in its application, or otherwise is failing to carry out its commitment.” Appellants’ Brief at 34. The lawsuit here, they insist, challenges “HUD’s own unconditional approval of an illegal application.” Id. Appellants may be correct. I fail to understand, however, why we ought to conclude that Congress intended the courts to create a different enforcement scheme simply because the enforcement scheme Congress expressly created does not embrace appellants’ claim. But cf. Cannon v. University of Chicago, 441 U.S. at 706 n.41, 99 S.Ct. at 1962 -63 n.41.

Additionally, section 5304(a)(6) suggests that Congress did contemplate participation by private citizens in the statutory scheme. It seems particularly patronizing for this court to conclude that Congress would explicitly provide for private participation in one aspect of the statutory scheme but only implicitly contemplate private participation in the enforcement aspect of the statute. I am not suggesting that this is a conclusive indication of Congressional intent; it does, however, seem a compelling indication.

Nor do I think that appellants satisfy the first of the Cort factors; they do not impress me as members “ ‘of the class for whose especial benefit the statute was enacted ....’” Cort v. Ash, 422 U.S. at 78 , 95 S.Ct. at 2087 (quoting Texas & Pacific R. Co. v. Rigsby, 241 U.S. 33, 39 , 36 S.Ct. 482, 484 , 60 L.Ed. 874 (1916)). Although the Act is replete with references to “persons of low and moderate income,” it is clear to me that such persons are more accurately described as incidental, not especial, beneficiaries. The Act was passed for the especial benefit of entire urban communities. Any who has a legitimate interest in the welfare of Montgomery is as entitled as another to whatever remedy may be found. When it is realized that all are to benefit, it clearly appears that none is the “especial beneficiary.”

Furthermore, as a factual matter and quite apart from the issue raised by the first Cort factor, both the record and appellants’ brief demonstrate that persons of low and moderate income were indeed the principal (albeit incidental) beneficiaries of Montgomery’s development plan. The complainants challenge relatively small percentages of the city’s total expenditures, expenditures which would seem to inure to the benefit of the entire urban community despite the fact that they were not earmarked to develop areas where persons of low or moderate income reside. The Act facially requires no more.

Finally, appellants argue that section 5309(a), the section prohibiting discrimination in any program funded under the Act, supports their assertion that they are entitled to bring this private action. They point out that section 5309(a) essentially tracks the language of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1976) and that courts have held that the latter section implies a private cause of action. See Bossier Parish School Bd. v. Lemon, 370 F.2d 847 (5th Cir. 1967); see generally Cannon v. University of Chicago, 441 U.S. 677 , 99 S.Ct. 1946 , 60 L.Ed.2d 560 (1979). Appellants are correct. However, appellants have failed to assert evidence upon which it could be found that either the federal or municipal defendants here have discriminated against them. As I have said, the evidence before us demonstrates that the appellants were the principal beneficiaries of Montgomery’s community development program. There is no evidence that they have been “excluded from participation in” or “denied the benefits of” the program because of their “race, color, national origin, or sex .. .. ” Cf. Cannon v. University of Chicago, 441 U.S. at 1980 , 99 S.Ct. at 1949 (in which it was settled that Cannon “was excluded from participation in the respondents’ medical education programs because of her sex.”) Thus I believe that even if section 5309(a) implies a private cause of action, it does not imply this private cause of action.

So I dissent.