§ 1437p(b)(2). They maintain that the ACC imposes an obligation on HUD to monitor and enforce the District's performance of its obligations under the ACC and, as third party beneficiaries of the ACC, they have the right to bring an action to enforce it against HUD. Plaintiffs sue not on grounds that the ACC provides them with an implied private right of action against HUD but on the theory that as third party beneficiaries, they can directly assert an action against HUD for its breach of obligations under the ACC.
In opposition, the federal defendants argue that the ACC simply memorializes the terms and conditions under which the federal government agrees to provide assistance to the particular local housing authority and it does not create any obligations owed to plaintiffs by HUD. The federal defendants conclude that if plaintiffs have any remedy for breach of contract, it lies exclusively against the District, not the federal defendants.
Plaintiffs cite no provision of the ACC which would impose an obligation on HUD to ensure that plaintiffs are provided with standard housing. Rather, the provisions cited by plaintiffs direct the District, not HUD, to operate the projects for the purpose of providing decent, safe, and sanitary dwellings
and to maintain its projects in good order, repair, and condition.
The only provision of the USHA which appears to afford tenants any opportunity to contest the condition of housing is 42 U.S.C. § 1437d(l) which directs the District to utilize leases that require that housing be maintained in a decent, safe, and sanitary condition. Plaintiffs have not argued that the District has failed to use such leases, only that the District has not complied with the lease terms.
Nevertheless, plaintiffs contend that Ashton v. Pierce, 230 U.S. App. D.C. 252, 716 F.2d 56 (D.C. Cir. 1983), as amended, 232 U.S. App. D.C. 367, 723 F.2d 70 (D.C. Cir. 1983), stands for the proposition that plaintiffs are third party beneficiaries of the ACC and, therefore, they are entitled to bring an action against HUD to enforce and monitor the "decent, safe, and sanitary" standard set forth in the ACC, the USHA, and HUD regulations. The Court finds, however, that Ashton is distinguishable. In Ashton, the plaintiff tenants brought an action seeking an order to require HUD to monitor and enforce the local PHA's compliance with its Lead-Based Paint Prevention Act (LPPA), 42 U.S.C. §§ 4801-4846, and its regulations. The court determined that the tenants could require HUD to monitor PHA compliance with the LPPA under a third party beneficiary theory similar to the one raised here by plaintiffs; however, the court "did so . . . only in light of Congress' clear intent to require such enforcement." Samuels v. D.C., at 201, n. 14. It appears that what persuaded the court was not simply a finding that plaintiffs were third party beneficiaries under the ACC but that the LPPA itself, and its legislative history, expressly mandated that the Secretary establish procedures to eliminate the dangers of lead poisoning. In other words, the enforceable duty which permitted the plaintiffs in Ashton to proceed against HUD on a breach of contract theory stemmed from the express command of the LPPA, not the terms of the ACC or plaintiffs' status as third party beneficiaries.
With respect to the instant case, as stated heretofore, the Court is not convinced that plaintiffs can proceed against HUD solely on the grounds that they derive benefits from the ACC. Perry v. Housing Authority, 664 F.2d 1210, 1218 (4th Cir. 1981). Unlike the statutory provision in Ashton, there is no similar express obligation on HUD to monitor and enforce the policy provision set forth in section 1437.
In this regard, the Court of Appeals noted in Samuels v. D.C.: "To the extent that plaintiffs' third-party beneficiary theory could be extended to establish a federal cause of action for such discrete and random disputes, we think it would be plainly inconsistent with the structure of federal housing law." At 201, n.14. Without any evidence of any duty on HUD, the Court is reluctant to read one into the contract. Plaintiffs have simply not demonstrated a cognizable claim against HUD for the alleged breach of the ACC by the District. Should plaintiffs have any claims for breach of contract, they would lie against the District, not HUD.
In view of the dismissal of plaintiffs' federal claims, the Court declines to exercise pendent jurisdiction over plaintiffs' local law claims. United Mine Workers of America v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966); Stone v. D.C., 572 F. Supp. 976, 981, n.4 (D.C. Cir. 1983).
Based on the foregoing and finding that plaintiffs' claims are not properly before this court, the Court will grant the motions of the defendants to dismiss this entire action on the grounds that subject matter jurisdiction is lacking.
An Order consistent with this Memorandum Opinion will be entered this date.
DATED: October 31, 1985
ORDER - October 31, 1985, Filed
Upon consideration of the motions of all defendants to dismiss, the supporting and opposing memoranda, the argument of counsel, the entire record herein, and consistent with the Memorandum Opinion of even date, and it appearing to the Court that subject matter jurisdiction is lacking, it is this 31st day of October, 1985,
ORDERED that the motions of defendants to dismiss be, and hereby are, granted; it is further
ORDERED that this action be, and hereby is, dismissed as to Samuel Pierce and I. Margaret White of the United States Department of Housing and Urban Development; and it is further
ORDERED that this action be, and hereby is, dismissed against the District of Columbia and its officials.