The opinion of the court was delivered by: JOHNSON
NORMA HOLLOWAY JOHNSON, UNITED STATES DISTRICT JUDGE
Plaintiffs, residents and former residents of the Fort Dupont Housing Project (Fort Dupont) located in Southeast Washington, D.C., bring this action seeking declaratory and injunctive relief, as well as a retroactive and prospective award of damages from defendants, District of Columbia and Department of Housing and Urban Development (HUD), alleging that defendants have failed to operate Fort Dupont consistent with their duties under the United States Housing Act of 1937, as amended, 42 U.S.C. § 1437 et seq., the Housing Act of 1949, as amended, 42 U.S.C. § 1441, et seq., the Annual Contributions Contracts between HUD and the District of Columbia, and the lease agreements executed by plaintiffs and the District of Columbia. Plaintiffs' primary contentions are that District defendants have effectively demolished Fort Dupont by failing to maintain Fort Dupont in a "decent, safe, and sanitary condition" and have failed in their duties to ensure that plaintiffs are not relocated to substandard housing.
The United States Housing Act of 1937 (USHA), as amended, 42 U.S.C. § 1437 et seq., governs the lower income housing program. The general policy of the USHA is set forth in section 1437 which states in pertinent part:
It is the policy of the United States to promote the general welfare of the Nation by employing its funds and credit . . . to assist the several States and their political subdivisions to remedy the unsafe and unsanitary housing conditions and the acute shortage of decent, safe, and sanitary dwellings for families of lower income and . . . to vest in local public housing agencies the maximum amount of responsibility in the administration of their housing programs.
42 U.S.C. § 1437. To effectuate this policy, the Department of Housing and Urban Development (HUD) provides financial assistance to local public housing agencies (PHAs) through federal funding contracts (Annual Contributions Contracts) executed between HUD and local PHAs. Two types of funding programs are raised in plaintiffs' complaint: 42 U.S.C. §§ 1437l and 1437p. Section 1437l of the USHA establishes a comprehensive improvement assistance program which provides federal funding for the renovation of the physical condition of existing public housing and the upgrading of the management and operations of the projects, 42 U.S.C. § 1437l(a)(1) and (2). Section 1437p authorizes the Secretary of HUD (the Secretary) to make financial assistance available for demolition of any portion of a housing project, 42 U.S.C. § 1437p.
The legislative history of the USHA and the Housing Act reflects that their primary objective is to promote the general welfare by giving financial assistance to state and local entities attempting to improve housing. The actual development, maintenance, and management of public housing, however, resides with the local authorities. One court, examining the legislative history of the Housing Act, cited strong language from Congressional reports which supports the notion that local control was expected:
Although the housing problem is obviously national in scope, it is fundamentally a local problem, and that the first responsibility for its solution therefore rests with the local community . . . Federal assistance for the clearance of slums and blighted areas shall be available only for projects where there has been a local determination . . . that the project is needed and where the plans for such project are locally made and locally approved . . . and where such projects are locally initiated, locally developed, and locally managed. (footnote omitted).
Perry v. Housing Authority of the City of Charleston, 664 F.2d 1210, 1213-14 (4th Cir. 1981), citing 1949 U.S. Code Cong. Ser. 1550, 1551 (emphasis added). As evidenced by this passage and throughout the legislative history of the USHA and the Housing Act, the scheme designed by Congress contemplates that the local authorities retain primary control over public housing in their respective jurisdictions.
The District of Columbia, through its housing agency, the National Capital Housing Authority (NCHA), the predecessor agency to the Department of Housing and Community Development's Property Management Administration (DHCD/PMA), owns and operates low income housing projects pursuant to D.C. Code § 5-101 et seq. (1981). Fort Dupont exists by virtue of this authority. The District of Columbia public housing program is funded in part by HUD, pursuant to funding programs authorized by the USHA, and various instruments executed by HUD and the District, including Annual Contributions Contracts (ACCs).
In their complaint, plaintiffs maintain that the District defendants have failed in their duty to maintain Fort Dupont in a "decent, safe, and sanitary condition" as some of the living conditions pose hazards to their life, health, and safety. The alleged hazards relate to such things as damage to the structure of the buildings, defective plumbing, inadequate heating, and the lack of barricades on vacant dwellings to protect against the threat of vandalism, fires, or squatters. Plaintiffs argue that the deterioration of Fort Dupont constitutes constructive demolition. Plaintiffs are also opposed to plans to relocate them from Fort Dupont to locations which they allege are substandard. Finally, plaintiffs maintain that the District defendants have submitted inadequate applications for funds to upgrade units at Fort Dupont and have, to the detriment of plaintiffs' interests, attempted to secure HUD's approval of an application to demolish several buildings at the project.
Before examining the merits of the complaint, the Court must determine, as a threshold matter, whether it has proper jurisdiction over the subject matter of plaintiffs' claims. See, West Chicago v. United States Nuclear Regulatory Commission, 701 F.2d 632 (7th Cir. 1983); Reynolds v. Sheet Metal Workers, Local 102, 226 U.S. App. D.C. 242, 702 F.2d 221, 226 (D.C. Cir. 1981); Tuck v. Pan American Health Organization, 215 U.S. App. D.C. 201, 668 F.2d 547 (D.C. Cir. 1981). Although plaintiffs may have cognizable claims for relief, the preliminary question is whether they may sue in federal court. Absent a showing that proper jurisdiction lies in the federal court, the court must dismiss the action for want of jurisdiction.
Plaintiffs offer several arguments in support of the position that their rights should be vindicated in federal court. As an initial basis for this court's jurisdiction, plaintiffs maintain that as third party beneficiaries of the ACC between the District and HUD, they have a private right of action against HUD on breach of contract grounds. Their ability to sue HUD, plaintiffs argue, stems from the obligation the ACC imposes on HUD to monitor and enforce the District's performance of its obligations to ensure that plaintiffs reside in decent, safe, and sanitary housing.
Next, plaintiffs maintain that they have stated two valid claims for relief under 42 U.S.C. § 1983. The first claim is based on the District's alleged failure to submit an acceptable application for modernization funds to renovate Fort Dupont pursuant to 42 U.S.C. § 1437l(a).
The second claim concerns the alleged failure of HUD to disapprove pending applications submitted by the District to demolish units at Fort Dupont. Plaintiffs contend that the applications fail to satisfy the prerequisites of 42 U.S.C. § 1437p and applicable HUD regulations, 24 C.F.R. § 970 et seq., which require tenant consultation prior to approval of any demolition application. Plaintiffs maintain that these two statutory provisions of the USHA subject the District of Columbia defendants to certain mandatory federal obligations. As an alternative to their section 1983 claims, plaintiffs argue that they have an implied right of action to enforce these provisions of the USHA against all defendants.
As additional basis for this court's jurisdiction, plaintiffs assert that HUD's failure to deny the demolition applications submitted by the District constitutes arbitrary and capricious action in violation of the Administrative Procedure Act (APA), 5 U.S.C. § 706. Plaintiffs further submit that the failure of the District to provide tenants with the opportunity to contest proposed relocations prior to assignment to another unit violates the due process clause of the Fifth Amendment to the Constitution. Finally, plaintiffs request the court to exercise pendent jurisdiction over their local law claims against the District for alleged breach of the lease agreements executed between plaintiffs and the District which establish certain habitability requirements.
A. Demolition Application Requirements and the Administrative Procedure Act
The record reflects that PMA submitted applications to the area HUD office for approval to demolish certain units at Fort Dupont.
Plaintiffs contend, in Count IV of the complaint, that the demolition applications, as submitted, fail to satisfy the statutory and regulatory prerequisites for demolition. See 42 U.S.C. § 1437p(b).
Although HUD has neither approved nor disapproved the proposed demolition applications, plaintiffs speculate, without any supporting evidence, that the applications will be approved. In other words, plaintiffs maintain that HUD's failure to disapprove the allegedly inadequate applications constitutes arbitrary and capricious agency action as defined by section 706 of the Administrative Procedure Act (APA). 5 U.S.C. § 706.
In opposition, the federal defendants maintain that because the demolition applications are still pending, plaintiffs' claims are not ripe for adjudication. Defendants acknowledge that HUD may not approve a demolition application unless certain prerequisites are satisfied. They contend, however, that the statute merely sets forth the prerequisites to approval rather than prerequisites to submission. As there is nothing in the statute that can be ...