Rev. Joseph Jones from Karen E. Hardy, OCC); Def.'s Statement of Material Facts at P 30.
On June 27, 1995, HUD closed plaintiff's complaint (forwarded to HUD by the OCC) against First National Bank of Lafayette. Def.'s Statement of Material Facts at P 31; Admin. Rec. at 1.
This case is plaintiff's second court challenge to the OCC's approval of FNBC's subsidiary acquisition and the OCC's failure "to perform its duty" under the FHA. See Petitioner's Response in Opp'n at 13; Def.'s Opp'n at 1. Plaintiff brought his first challenge to the United States Court of Appeals for the District of Columbia Circuit. Jones v. Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corp., Office of the Comptroller of the Currency, and Dep't of Housing and Urban Development, 1995 U.S. App. LEXIS 38539, D.C. Cir. No. 95-1359. By Order dated November 15, 1995, the court of appeals granted respondents' motion to dismiss that action without opinion.
Plaintiff is proceeding pro se and appears to object to: (1) the OCC's approval of First National Bank of Commerce's application to acquire an operating subsidiary (Wolcott Mortgage Group, Inc.) in the vicinity of plaintiff's residence; and (2) the OCC's alleged general failure to promote fair housing. See, e.g., Compl. PP 13, 20, 52, 59. Construed liberally, plaintiff's complaint is: (1) an action under 42 U.S.C. § 3613 to remedy discriminatory housing practices by the OCC; (2) a private right of action to remedy OCC's alleged failure to satisfy 42 U.S.C. § 3608(d); and (3) an action under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., alleging arbitrary and capricious or otherwise unlawful action by the OCC.
Plaintiff seeks the following relief: (1) a declaration that the OCC's non-enforcement of the FHA, including its failure to promulgate regulations for the statute's implementation, constitutes a deliberate and reckless disregard for the rights of African Americans; (2) an injunction against such non-enforcement of the FHA; (3) a direction to the OCC to submit for this Court's approval a detailed plan to affirmatively promote fair housing; and (4) a reversal of the OCC's September 29, 1994 decision to approve the FNBC acquisition of Wolcott. Complaint at "Wherefore" Clause.
Defendant maintains that plaintiff's complaint should be dismissed pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure because the Court lacks subject matter jurisdiction to grant relief.
Defendant also argues that summary judgment should be entered in its favor because it is entitled to judgment as a matter of law under Rule 56 of the Federal Rules of Civil Procedure. The Court will first analyze defendant's assertion that this Court lacks subject matter jurisdiction.
1. Alleged Violations of Section 3604 of the FHA
The Fair Housing Act provides that "it shall be unlawful . . . [to] make unavailable or deny a dwelling to any person because of race, color, religion, sex, familial status, or national origin." 42 U.S.C. § 3604(a). Any "aggrieved person" who claims to have been injured by such "discriminatory housing practices may bring a civil action in a United States district court" under Section 3613 of the FHA. See 42 U.S.C. §§ 3602(f), 3602(i), 3613.
Plaintiff argues that the language of Section 3604 extends to the alleged failures of the OCC to provide fair housing. Plaintiff is correct in pointing out that certain courts have been fairly liberal in interpreting the reach of Section 3604. See NAACP v. American Family Mutual Ins. Co., 978 F.2d 287, 297-301 (7th Cir. 1992) (discriminatory denial of insurance prohibited by Section 3604); McDiarmid v. Economy Fire and Cas. Co., 604 F. Supp. 105 (S.D. Ohio 1984) (same); Laufman v. Oakley Bldg. & Loan Co., 408 F. Supp. 489 (S.D. Ohio 1976) (discriminatory denial of financing prohibited by Section 3604(a)); but see Mackey v. Nationwide Ins. Cos., 724 F.2d 419 (4th Cir. 1984) (discriminatory denial of insurance not prohibited by Section 3604(a)). In all of these cases, however, the entity sued for alleged discrimination was an actor directly involved in providing housing or providing services, like homeowner's insurance or financing, that are directly connected to helping people acquire housing.
By contrast, defendant in this case merely supervises the financial institutions that provide credit.
Defendant has provided neither housing nor housing-related services to consumers, or to plaintiff in particular; it therefore could not have denied housing or made it unavailable to anyone. The impact of alleged discriminatory practices by the institutions the OCC supervises cannot be attributed to the OCC itself. The OCC's activities thus cannot fall within the strictures of Section 3604. Cf. Clifton Terrace Assoc., Ltd. v. United Technologies Corp., 289 U.S. App. D.C. 121, 929 F.2d 714, 719-20 (D.C. Cir. 1991) (alleged discriminatory refusal by third-party contractor to service elevators not prohibited by Section 3604(a)). In the absence of any direct participation in the provision of housing or housing services, the OCC cannot engage in discriminatory housing practices under Title VIII and plaintiff may not proceed against the OCC under 42 U.S.C. § 3613.
2. Alleged Private Right of Action to Enforce Section 3608(d) of the FHA
The Fair Housing Act also includes the following provision:
All executive departments and agencies shall administer their programs and activities relating to housing and urban development (including any Federal agency having regulatory or supervisory authority over financial institutions) in a manner affirmatively to further the purposes of this subchapter . . . .
42 U.S.C. § 3608(d). Plaintiff argues that there is an implied private right of action against any federal agency that fails to meet its responsibilities under this provision of the FHA. See Young v. Pierce, 544 F. Supp. 1010, 1017-19 (E.D.Tex. 1982).
The majority of courts that have considered this issue have concluded that there is no implied private right of action under Title VIII and that an aggrieved person not expressly granted the right to sue under Sections 3602 and 3613 of the FHA must seek relief not under Title VIII, but under the APA. See e.g. NAACP v. Secretary of Housing and Urban Development, 817 F.2d 149, 154 (1st Cir. 1987); Latinos Unidos de Chelsea v. Secretary of Housing and Urban Development, 799 F.2d 774, 792-93 (1st Cir. 1986); Lee v. Pierce, 698 F. Supp. 332, 342 (D.D.C. 1988). There are several reasons for this conclusion. First, Congress specifically created a judicial remedy for discrimination in housing under Sections 3604, 3605, 3606 and 3617 of Title VIII. Second, Title VIII provides avenues for relief through the Attorney General and the Secretary of HUD that may lead to judicial relief. Third, there is no indication that Congress intended that in addition to these statutory remedies, a grievant would also have a private right of action or that to infer such a cause of action would be consistent with the legislative scheme. Latinos Unidos de Chelsea v. Secretary of Housing and Urban Development, 799 F.2d at 792-93; see Cort v. Ash, 422 U.S. 66, 78, 45 L. Ed. 2d 26, 95 S. Ct. 2080 (1975).
This Court also concludes that plaintiff may not assert jurisdiction under 42 U.S.C. § 3608(d) through an implied private right of action.
3. Alleged Violations of the Administrative Procedure Act
The APA creates a presumption that agency action is subject to judicial review. See Abbott Laboratories v. Gardner, 387 U.S. 136, 140, 18 L. Ed. 2d 681, 87 S. Ct. 1507 (1967). An agency's refusal to take a particular requested enforcement action, however, is uniquely not susceptible to judicial review:
This Court has recognized on several occasions over many years that an agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion. This recognition is attributable in no small part to the general unsuitability for judicial review of agency decisions to refuse enforcement.