The Second Circuit summarily held that disability discrimination regulations of the Department of Housing and Urban Development (HUD) could not be enforced under the implied right of action in the Rehabilitation Act nor via 42 U.S.C. § 1983.
The court simply referenced the district court decision below without substantive analysis of the statute and regulations. Taylor v. Housing Authority of the City of New Haven, 2011 WL 1663443, No. 10–1144–cv (2d Cir. May 4, 2011). The per curiam opinion was issued by judges Kearse, Miner, and Chin. Judge Kearse was nominated by President Carter, Judge Miner was nominated by President Reagan, and Judge Chin was nominated by President Obama. The details referenced below come from the district court decision summarily accepted by the Second Circuit. 267 F.R.D. 36 (D.Conn. 2010).
Public housing tenants who used wheelchairs brought a lawsuit claiming the Housing Authority of New Haven had discriminated against them in administrating New Haven’s Section 8 housing program. They alleged that the Housing Authority had violated federal rights provided in the Fair Housing Act, the Rehabilitation Act, and regulations promulgated under the Rehabilitation Act. Specifically, they claimed violations of 42 U.S.C. § 3604(d) and (f) of the Fair Housing Act, 28 U.S.C. § 794, of the Rehabilitation Act, and 24 C.F.R. §§ 8.28 and 100.204. The regulations require that people with disabilities receive a list of available, accessible apartments and mobility counseling services. These services are not listed in the Rehabilitation Act.
The Connecticut District Court held that the regulations did not create private rights that could be enforced under either the Rehabilitation Act or § 1983. It noted that neither the Supreme Court nor the Second Circuit had yet addressed whether regulations could provide enforceable private rights, but that the Supreme Court suggested that regulations cannot provide rights that are privately enforceable under an implied private right of action, citing Alexander v. Sandoval, 532 U.S. 275, 291 (2001).
Section 504 of the Rehabilitation Act, 29 U.S.C. § 794, is enforceable under an implied right of action. But the statute, according to the court, only provides a general private right of access to benefits free from discrimination and does not provide a private right to any “specific components of a benefit, program, or activity.”
Any private rights promulgated under Section 504 regulations cannot be broader than the rights conferred by Section 504. The plaintiffs’ claim under the regulation was that they were denied access to specific accommodations. Since Section 504 did not provide a private right of action to specific accommodations, the regulations promulgated under Section 504 could not either. Therefore the plaintiffs could not enforce the regulations under 42 U.S.C. § 1983.
The court also examined whether the regulation, 24 C.F.R. § 8.28, could be privately enforceable under 42 U.S.C. § 1983 even if it were not constrained by the limits of the right of action under Section 504. Citing Gonzaga University v. Doe, 536 U.S. 273 (2002), it concluded that the regulation “does not speak with the clarity necessary to conclude that it unambiguously confers any enforceable rights on Plaintiffs.” It emphasized that private rights must be clearly conferred by the text of a law. It decided that the regulation’s language did not provide private rights for two reasons. First, several of the substantive provisions of the regulation in § 8.28(a) either did not indicate any intent to benefit people like the Plaintiffs or were too vague and amorphous for courts to be able to adjudicate claims based on those rights. Second, the enforcement scheme described in § 8.28(b) provided for administrative enforcement, not private enforcement. The administrative enforcement scheme weighed in favor of finding no private enforcement right in the regulation. For these reasons, the court held that 24 C.F.R. § 8.28 did not confer private rights that could be enforced by private lawsuits.
The Second Circuit’s brief opinion cites both Sandoval and Gonzaga for the general proposition that the enforceability of a regulation under a private right of action may not extend further than the plain language of the statute.