Newman v. US Dept of Housing Urban Development

Background

Damon Newman, proceeding without a lawyer, sued the U.S. Department of Housing Urban Development (HUD). He alleged that HUD had denied him Section 8 vouchers since 2009 so he could move from his current apartment to another apartment. He said that violence, harassment, and alleged unlawful entries by employees of Kraus Management had caused him health problems. He sought an order requiring HUD to help him relocate.

Newman attached part of a Bronx Housing Court decision concerning claims against his landlords, Kraus Inc. and Kraus Management Inc., and the New York City Department of Housing Preservation and Development. That decision stated that he had failed to plead a colorable harassment claim, but the federal court said it could not determine from the partial decision what happened to his claims against the city agency or his request for a transfer. Newman also attached a New York City Police Department incident information slip concerning a reported petit-larceny crime.

Court’s Analysis

The court explained that the federal government and its agencies are generally protected from suit by sovereign immunity, unless the government has agreed to be sued. The Administrative Procedure Act provides a limited waiver of that immunity for certain requests for non-monetary relief based on agency action.

For that waiver to apply, a plaintiff must identify agency action that is final. Final agency action must mark the end of the agency’s decision-making process and determine rights or obligations or produce legal consequences. The court found that Newman did not allege facts showing that he directly applied to HUD for vouchers or that HUD issued a final decision determining that he was not entitled to them. The complaint instead focused largely on the alleged harassment in his apartment and appeared to name HUD because it funds the Section 8 program through public housing agencies.

The court therefore concluded that Newman had not adequately alleged agency action by HUD, much less final agency action reviewable under the Administrative Procedure Act. The court also noted that, to the extent Newman was attempting to assert a claim under the Housing Act of 1937 concerning the quality of his Section 8 apartment, courts in the Second Circuit had not found a private right to sue HUD or another defendant under that statute and its regulations for poor housing quality.

Disposition

The court dismissed Newman’s claims against HUD under sovereign immunity and for lack of subject-matter jurisdiction. Because it was not clear that amendment would be futile, the court granted Newman 30 days’ leave to file an amended complaint. Any amended complaint must allege facts showing that HUD took final agency action for which Newman seeks judicial review.

The court stated that if Newman did not file an amended complaint within the permitted time, the Clerk of Court would be directed to enter judgment dismissing the action. The court also certified that any appeal would not be taken in good faith and denied Newman fee-free status for purposes of an appeal.