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August 15, 1983

MARY STONE, et al., Plaintiffs,
DISTRICT OF COLUMBIA, et al., Defendants

The opinion of the court was delivered by: FLANNERY

 This matter is before the court on the motion of defendants Pierce and Chisholm for judgment on the pleadings, the motion of defendant District of Columbia to dismiss, and on plaintiffs' second motion for a preliminary injunction. For the reasons set forth below, defendants' motions are granted, plaintiffs' motion is denied, and this case is dismissed.


 The United States Housing Act of 1937, as amended, 42 U.S.C. § 1437a et seq., provides in part that tenants of public housing projects assisted under the Act shall pay as rent no more than 30 percent of the family's monthly adjusted income, or 10 percent of the family's monthly income, or that portion of the family's welfare assistance (if it is receiving any) designated for housing. 42 U.S.C. § 1437a. *fn1" By regulation the United States Department of Housing and Urban Development has provided that "rent" as limited by the statute shall include utility charges. For those public housing tenants who pay their utility charges directly to utility companies, the local housing authority calculates utility allowances, an estimate of actual utility charges, which is applied as a credit to reduce rent payments to the authorities so that the total of payments to the authority and to the utility company does not exceed the statutory ceiling on "rent".

 In 1980 HUD promulgated an interim rule, codified at 24 C.F.R. § 865.470 et seq., establishing uniform standards for calculating utility allowances. The rule requires local housing authorities to monitor utility rates and, in the event of a cumulative increase in those rates of 10 percent or more, to revise utility allowances accordingly. The rule required the local authorities to implement revised utility allowances, calculated as explained in the rule, no later than February 1, 1981, or such later date as HUD might allow.

 From 1977 through September 30, 1982 the District of Columbia accorded public housing tenants utility allowances based on 1977 consumption data. The District concedes that in the period from 1977 through the date HUD promulgated its interim rule, utility rates for both gas and electricity increased 10 percent or more. The District did increase the allowances twice, once for gas effective April 1, 1979, and once for electricity effective October 1, 1982. In neither instance did the District submit the allowances to HUD for review or approval.

 HUD claims that it consistently reminded the District of Columbia, beginning in 1980, of the District's obligation under the interim rule to revise its utility allowances to reflect increased utility costs, but plaintiffs dispute whether HUD in fact adequately discharged the duty plaintiffs claim HUD had to enforce the regulation. In any event, in the fall of 1982 HUD notified the District that it must develop a new schedule of utility allowances by April 30, 1983 and implement it by May 31, 1983. In January, 1983 the District submitted its new schedule to HUD and, after some modification following HUD comments, implemented the schedule as of April 1, 1983 pursuant to a stipulation reached with plaintiffs by which plaintiffs agreed to drop their first motion for a preliminary injunction in exchange for implementation of the new schedule.

 Meanwhile, on February 15, 1983 defendants Pierce and Chisholm of HUD filed a motion for judgment on the pleadings or, in the alternative, for summary judgment. Because of the negotiations among the parties which resulted in the stipulation just mentioned, and several intervening discovery disputes, plaintiffs' opposition to HUD's motion was not filed until June 7, 1983. Due to a court order deferring consideration of HUD's alternative motion for summary judgment, plaintiff's opposition addressed only the legal arguments raised in HUD's motion for judgment on the pleadings. Meanwhile, on May 13, 1983 plaintiffs filed a second motion for a preliminary injunction seeking a prohibition of the eviction by the District of any members of the plaintiff class until final resolution of this case. On June 9, 1983 the District of Columbia opposed the motion for a preliminary injunction by filing a motion to dismiss the complaint for failure to state a claim upon which relief may be granted. Finally, on June 23, 1983 plaintiffs filed a motion for partial summary judgment against all defendants, which the court deferred consideration of until resolution of the pending dispositive motions. The three motions now before the court -- HUD's motion for judgment on the pleadings, the District's motion to dismiss, and plaintiff's motion for a preliminary injunction -- are discussed below.


 HUD's motion for judgment on the pleadings

 In their complaint plaintiffs seek only prospective relief against HUD, asking for a declaratory judgment that HUD has failed to discharge its duty to enforce the utility allowance regulation and an injunction ordering HUD to force compliance with the regulation by the District.

 When HUD filed its motion for judgment on the pleadings, the parties had not yet entered into the stipulation providing for implementation of the revised utility allowances on April 1, 1983. In its reply, HUD argues that because plaintiffs have obtained the prospective relief sought against HUD, their complaint as to HUD has become moot. The court agrees.

 Article III of the Constitution limits the jurisdiction of the federal courts to cases or controversies. The controversy must be "definite and concrete, touching the legal relations of parties having adverse legal interests." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 240-41, 81 L. Ed. 617, 57 S. Ct. 461 (1937). Plaintiffs have obtained from the District of Columbia housing authority a utility allowance revised in accordance with HUD regulations. Plaintiffs therefore no longer have any legal interest adverse to HUD. Plaintiffs deny this case is moot and insist that this court find that HUD violated a statutory duty to enforce the utility allowance regulations and to order HUD to obey that duty in the future. But the court's jurisdiction is predicated on the existence of "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Id. at 241. To accept plaintiffs' invitation would be to issue an advisory opinion, based on the state of ...

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