The opinion of the court was delivered by: Amy Berman Jackson United States District Judge
In this case, plaintiff Lauderhill Housing Authority ("LHA") asks the Court to intervene in an ongoing administrative process by ordering the U.S. Department of Housing and Urban Development ("HUD") to recognize LHA's sole and exclusive jurisdiction to distribute housing vouchers for the city of Lauderhill, Florida, or at a minimum, to transfer vouchers from other housing authorities that do not contest LHA's jurisdiction. For the reasons set forth below, the Court declines to do so. Therefore, defendants' motion to dismiss [Dkt # 12] will be granted, plaintiff's motion for partial summary judgment [Dkt # 13] will be denied as moot, and defendants' cross motion for partial summary judgment [Dkt # 19] will be denied as moot.
The Section 8 Program HUD administers the Section 8 Housing Choice Voucher Program ("Section 8 program" or "the program"), which provides rental assistance in the form of housing vouchers to low income households. Compl. Â¶ 7. HUD does not directly issue the vouchers to qualifying families but distributes them through public housing authorities ("PHAs") located in or near the communities in which the families reside. Id. Because Congress wanted to encourage local decision-making about housing policy, PHAs are entities of state and local governments. See 42 U.S.C. Â§ 1437a(b)(a6); see also Baker v. Cincinnati Metro. Hous. Auth., 675 F.2d 836, 840 (6th Cir. 1982) ("It is the policy of the United States . . . to vest in public housing agencies the maximum amount of responsibility in the administration of their housing programs.") (internal citations and quotation marks omitted). Under HUD regulations, HUD must defer to state and local law in determining a PHA's jurisdiction to administer vouchers for a particular area. 24 C.F.R. Â§ 982.4(b) (defining jurisdiction under the Section 8 program as "[t]he area in which the PHA has authority under state and local law to administer the program").
To fund the voucher program, HUD enters into a separate agreement with each PHA called an Annual Contributions Contract ("ACC"), which serves as the funding mechanism for the Section 8 program. Compl. Â¶Â¶ 8--9. The ACC sets forth a specific dollar amount that is awarded to a PHA for each voucher they administer. Id. Â¶ 9.
Under HUD regulations, housing vouchers must be "portable," meaning that a qualifying family must be able to move to another jurisdiction and still be able to use that same voucher. Id. Â¶ 10; see also 24 C.F.R. Â§ 982.355. HUD regulations also authorize the agency to transfer funds from one PHA to another when a family moves to a different PHA's jurisdiction. Compl. Â¶ 13; see 24 C.F.R. Â§ 982.355(f). Because the regulation uses permissive and not mandatory language, the decision to transfer funds is subject to the agency's discretion. 24 C.F.R. Â§ 982.355(f) ("(1) HUD may transfer funds for assistance to portable families . . . (3) HUD may provide additional funding (e.g., funds for incremental units) to the receiving PHA for absorption of portable families") (emphasis added).
In Florida, the state legislature established public housing authorities to address the "shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford." Fla. Stat. Â§ 421.04(2)(b). Under this statute, the jurisdiction or "area of operation" for housing authorities under state law is defined as:
(a) [The jurisdiction in] the case of a housing authority of a city having a population of less than 25,000, shall include such city and the area within 5 miles of the territorial boundaries thereof; and
(b) [The jurisdiction in] the case of a housing authority of a city having a population of 25,000 or more shall include such city and the area within 10 miles from the territorial boundaries thereof; provided however, that the area of operation of a housing authority of any city shall not include any area which lies within the territorial boundaries of some other city . . . and further provided that the area of operation shall not extend outside of the boundaries of the county in which the city is located and no housing authority shall have any power or jurisdiction outside of the county in which the city is located.
Lauderhill Housing Authority
Plaintiff Lauderhill Housing Authority ("LHA") is a public housing authority in Lauderhill, Florida, a city in Broward County. Compl. Â¶ 1; Ex. 4 to Compl. LHA was established by the Lauderhill City Commission in 2002. Compl. Â¶ 20. There are approximately 1,200 rentals under the Section 8 program in Lauderhill. Id. Â¶ 19. Before 2002, Section 8 vouchers for Lauderhill were administered by other housing authorities located in Broward County. Id. Â¶ 19. *fn1
LHA claims that during the years before this lawsuit was filed, it "tirelessly pursued" HUD's approval for the program but that HUD never definitively approved or denied the request. Id. Â¶ 22. The complaint alleges the LHA's lack of an ACC has impeded its ability to participate in other federal assistance programs. Id. Â¶ 39. Although the timeline is not clearly set forth in the complaint, LHA states generally that it has participated in numerous meetings with HUD officials to discuss the issue and that it has responded promptly to every request for information HUD has made. Id.
After its formation in 2002, LHA asked HUD to enter into an ACC and to transfer to it all Section 8 vouchers used within the city of Lauderhill but being administered by neighboring public housing authorities. Id. Â¶Â¶ 21--22. The request was based on LHA's contention that it has sole and exclusive jurisdiction for the city of Lauderhill under Fla. Stat. Â§ 421.03(6). Id. Â¶ 23. HUD responded that there was no "public housing development funding available" at that time and suggested that LHA work with the other PHAs in Broward County "to discuss a local partnership that would enable [LHA] staff to become familiar with HUD regulations and requirements should Section 8 funding become available." A.R. at 1; 3. *fn2
In April 2003, after continued conversation between the parties, HUD again told LHA that it could not simply transfer vouchers from one agency to another because of its contractual relationships with existing PHAs. Id. at 4. HUD also said that it could not give LHAs any new vouchers that were created because in order to receive those, a PHA must have an existing program and be able to demonstrate "capacity." Id. In order to develop capacity, HUD suggested that LHA work as a sub-contractor for an existing agency and apply for disability voucher programs, which do not require PHAs to have an existing program in order to participate. Id.
At some point, HUD told LHA that it needed to obtain a public housing authority number before it could participate in the Section 8 program, and LHA procured one in 2007. Compl. Â¶ 22. HUD still did not approve LHA's participation in the program, but instead it asked LHA to demonstrate that it had jurisdiction to serve as the PHA for Lauderhill under Florida law. Id. Â¶ 23.
LHA provided HUD with a copy of the City Council's 2002 resolution establishing it as a public housing authority. It also proffered legal opinions from its counsel and the city attorney for Lauderhill stating that LHA had sole and exclusive jurisdiction for the area pursuant to Fla. Stat. Â§ 421.03(6). Id. Â¶ 22; see also Compl. at Ex. 5. Because PHA jurisdiction is a matter of state and local law, 24 C.F.R. Â§ 982.4(b), in February 2010, HUD sought a legal opinion from the Attorney General of Florida on the issue, but the Attorney General's Office took the position that it would only respond to a request from a Florida entity. Compl. Â¶ 23; A.R. at 170--77. HUD first asked that the other PHAs in Broward County seek the opinion from the Attorney General in order to resolve the question, but when none would do so, HUD asked LHA to make the request. Compl. Â¶ 23. To date, LHA has declined to do so. Id.
Unable to secure a definitive statement from the Attorney General, HUD surveyed the PHAs already operating in Lauderhill to determine if there was any objection to LHA's assertion of exclusive jurisdiction. On July 2, 2010, it sent letters to the Deerfield Beach Housing Authority, the Housing Authority of the City of Ft. Lauderdale, the Dania Beach Housing Authority, the Housing Authority of Pompano Beach, and the Broward County Housing Authority which stated:
LHA submitted documentation dated October 6, 2009, in the form of a legal opinion and attachments stating that LHA has legal authority to exclusively administer the Housing Choice Voucher Program within the City of Lauderhill . . . . The Attorney General declined to render an opinion on the grounds that the authority of such an opinion would extend only to a request made by an interested party, which in this case would be one or more PHAs located in the state of Florida. Please feel free to communicate any comments or concerns that you may have regarding LHA's interpretation of Florida state law . . . . Absent any legal opinion to the contrary received within the 30-day deadline, HUD will recognize the legal opinion issued by LHA, proceed with its evaluation of LHA's capacity to administer a Section 8 program and render a decision based on that evaluation.
At the same time, HUD informed LHA that the letters had been sent and stated: "Should the PHAs neither respond within the established timeframe, nor provide a legal opinion stating that they have authority to also operate in Lauderhill under state law, we will provide you with instructions on demonstrating administrative capacity at that time." A.R. at 206. The Administrative Record reveals that some, but not all, of the PHAs communicated an objection to plaintiff's legal opinion within the specified time period. See A.R. at 257--69, opinion letter submitted on behalf of Broward County Housing Authority and Dania Beach Housing Authority on July 29, 2010. HUD viewed this legal opinion as an indication that ...