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FITZGERALD v. DISTRICT OF COLUMBIA HOUSING FINANCE AGENCY

August 17, 2005.

KEVIN B. FITZGERALD, et al., Plaintiffs,
v.
DISTRICT OF COLUMBIA HOUSING FINANCE AGENCY, Defendant.



The opinion of the court was delivered by: GLADYS KESSLER, District Judge

MEMORANDUM OPINION

Plaintiffs are tenants and a tenant association in a housing project financed by the District of Columbia Housing Finance Agency ("HFA").*fn1 Defendant is HFA.*fn2 Plaintiffs bring suit challenging HFA's creation of HFA-financed housing projects "in the absence of regulations required under [District of Columbia] law to establish procedures for evictions and protections from retaliatory action," claiming that these actions violate their Fifth Amendment procedural due process rights and District of Columbia law under 42 U.S.C. § 1983. Am. Compl. ¶ 71.

This matter is before the Court on HFA's Motion to Dismiss. Upon consideration of the Motion, Opposition, Reply, oral argument on August 15, 2005, and the entire record herein, and for the reasons stated below, HFA's Motion to Dismiss is granted.

  I. BACKGROUND*fn3

  In 1979, HFA was established as "a corporate instrumentality of the District [of Columbia] . . . to generate funds from private and public sources to increase the supply and lower the cost of funds available for residential mortgages and construction loans and thereby help alleviate the shortage of adequate housing." D.C. Code § 42.2701.01(b). HFA "does not currently own any of the projects, but merely issues municipal bonds to enable the low-interest rate financing of multi-family rental housing." Def.'s Mot. at 1-2.

  Plaintiffs claim that "[w]hen they began their residencies in two buildings in Southwest Washington, D.C., the buildings were not HFA-assisted, and they enjoyed the benefits of D.C.'s extensive rental housing laws. When their homes became an HFA-assisted housing project, however, they lost the protection of those laws."*fn4 Pl.s' Opp'n at 1 (citing D.C. Code § 42-2703.08(a)).*fn5 According to Plaintiffs, "[b]y law, they remained entitled to `procedures for eviction and protection from retaliatory action,' D.C. Code § 422-703.08(b);*fn6 but in reality, they were deprived of those procedures because HFA had failed to engage in mandatory rulemaking." Pl.s' Opp'n at 1. Plaintiffs maintain that "because of HFA's misconduct, tenants in HFA-funded housing do not benefit from established procedures for eviction and protections from retaliatory actions in the way that all other DC tenants do, to which they are lawfully entitled."*fn7 Am. Compl. ¶ 27. Plaintiffs also allege that they "have complained to HFA that they are suffering from unlawful retaliatory action, but [HFA] has taken no action to adjudicate these complaints or enforce [their] rights." Id. ¶ 30. According to Plaintiffs, "[t]he conditions [they] were facing and describing to HFA were quite severe. They complained of lack of heating facilities during the winter, boarded up windows and deactivated ventilation and air conditioning systems during the summer, vermin infestations, mold, demolition activities causing severe dust and noise, and doors that could not be locked." Id. ¶ 31. Plaintiffs maintain that "Defendant HFA, by letter dated July 3, 2003, and signed by Executive Director Milton Bailey, confirmed that it `has received numerous calls and correspondence' complaining of `management activities, rent increases, and the renovation.'" Id. ¶ 46. Plaintiffs claim that "[t]he July 3 letter from HFA confirmed that HFA had no procedure in place for dealing with tenant complaints. The July 3 letter from HFA directs tenants to filter their complaints through their tenant associations. It suggests that such a process is necessary because HFA does not even have procedures in place sufficient to track tenant complaints as they come in to the Agency." Id. ¶¶ 47, 48.

  Plaintiffs allege that on July 22, 2003, HFA issued a report entitled "Capital Park Plaza and Twin Towers Resident Tour." Id. ¶ 52. According to Plaintiffs, "[t]his July 22 report includes hundreds of pages of correspondence from tenants complaining of conditions that appear to violate the housing code, as well as what appear to be dozens of formal complaints using the [Department of Consumer and Regulatory Affairs] Tenant Petition/Complaint form." Id. ¶ 53. Based on the findings of this report, HFA asked the landlords to develop a "plan" to remedy the problems it identified. See id. ¶¶ 54, 55. Plaintiffs allege that when HFA found the landlords' plan inadequate, it "merely demanded another `plan.'" Id. ¶ 56.

  By letter dated September 30, 2003, HFA acknowledged that there were serious issues concerning "health, safety, security, and maintenance issues," but stated that it would accept the landlords' plan to resolve these issues. Id. ¶ 58. Plaintiffs contend that "HFA offered no redress or further process relating to past violations of tenant rights." Id. ¶ 59.

  Plaintiffs maintain that they have complained to HFA that (1) "their landlord is failing to conduct maintenance and correct dangerous conditions that are in violation of the housing code," id. ¶ 63; and (2) "despite their written pleas to the landlord to bring their housing into compliance with the housing code," the landlord continues to increase rents, to reduce services to tenants, and to seek to evict tenants. Id. ¶¶ 64, 65, 66. According to Plaintiffs, "[a]t no point did HFA determine that the tenant's complaints were unfounded; yet it never awarded them any relief." Id. ¶ 67.

  Plaintiffs allege that "[b]eyond its consistent non-responsiveness, it appears that HFA now fails even to read complaints from tenants." Id. ¶ 62.

  On December 20, 2004, Plaintiffs filed the instant action alleging a violation of their Fifth Amendment procedural due process rights and District of Columbia law under 42 U.S.C. § 1983. On February 7, 2005, they filed an Amended Complaint which included the same allegations as their Original Complaint. In Count I, Plaintiffs claim that "[a] legal cause of action constitutes a species of property protected by the Due Process Clause[.]" Id. ¶ 70. According to Plaintiffs, "[b]y creating assisted housing projects in the absence of regulations required under DC law to establish procedures for evictions and protections from retaliatory action, HFA, under color of law, deprived Plaintiffs, and members of the associational Plaintiff, of their property rights." Id. ¶ 71. Plaintiffs claim that "[s]uch deprivation of [their] property by Defendant HFA was unlawful and in violation of [their] Constitutional rights." Id. ¶ 72.

  In Count II, Plaintiffs contend that "DC law requires HFA to oversee procedures for eviction and protections from retaliatory actions for tenants in HFA-assisted housing, including Plaintiffs and members of Plaintiff NCPPTA." Id. ¶ 74. Plaintiffs claim that they "complained to HFA of violations of their rights in HFA-assisted housing." Id. ¶ 75. According to Plaintiffs, "[u]nder color of law, HFA asserted control over [their] housing, but denied [them], and members of Plaintiff NCPPTA, any adjudicatory procedure or meaningful opportunity to be heard upon their claimed rights." Id. ¶ 76. Plaintiffs claim that "[s]uch deprivation of any meaningful opportunity to be heard upon their claimed rights was unlawful and in violation of [their] Constitutional rights." Id. ¶ 77.

  In Count III, Plaintiffs allege that "DC law entitles tenants in HFA-assisted housing, including Plaintiffs and members of Plaintiff NCPPTA, to a set of regulations establishing procedures for eviction and protections from retaliatory actions." Id. ¶ 79. According to Plaintiffs, "[u]nder color of law, HFA deprived [them] of their statutory rights by failing to undertake the action required by law." Id. ¶ 80. Plaintiffs claim that "[s]uch total denial of any legally established procedures was unlawful and in violation of [their] Constitutional rights." Id. ¶ 81. Plaintiffs seek: (1) compensatory damages; (2) the entry of a declaratory order that HFA has violated their constitutional rights; (3) the entry of a permanent injunction requiring HFA "to adopt and follow rules that are approved by this Court that adequately establish procedures for eviction and protections ...


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