Aponte-Rosario v. Acevedo-Vilá

United States Court of Appeals
For the First Circuit
No. 09-1200
ARCADIO APONTE-ROSARIO, as Resident of Las Gladiolas Public
Housing Project; MIRTA COLÓN-PELLICIER, as Resident of
Las Gladiolas Public Housing Project; IRIS MARGARITA APONTE-
MARRERO, as Resident of Las Gladiolas Public Housing Project,
Plaintiffs, Appellants,
ROSSANA DE LEÓN-RIVERA, as Resident of Las Gladiolas Public
Housing Project; LUZ ELENA RAMOS-AYALA, as Resident of
Las Gladiolas Public Housing Project,
Plaintiffs,
v.
ANÍBAL ACEVEDO-VILÁ, Governor of The Commonwealth of
Puerto Rico; JORGE RIVERA, Secretary of the Department of
Housing of the Commonwealth of Puerto Rico; CARLOS LABOY,
Director of the Puerto Rico Public Housing Administration,
Defendants, Appellees,
ALPHONSO JACKSON, Secretary of the United States Department of
Housing and Urban Development; MICHAEL COLÓN, Director,
Field Office; OLGA SÁEZ, Housing Director of the Office for
the Puerto Rico/Virgin Islands of the United States Department
of Housing and Urban Development; AMERICAN MANAGEMENT, INC.,
Defendants.
No. 09-1362
ARCADIO APONTE-ROSARIO, as Resident of Las Gladiolas Public
Housing Project; MIRTA COLÓN-PELLICIER, as Resident of
Las Gladiolas Public Housing Project; IRIS MARGARITA APONTE-
MARRERO, as Resident of Las Gladiolas Public Housing Project,
Plaintiffs, Appellants,
ROSSANA DE LEÓN-RIVERA, as Resident of Las Gladiolas Public
Housing Project; LUZ ELENA RAMOS-AYALA, as Resident of
Las Gladiolas Public Housing Project,
Plaintiffs,
v.
ALPHONSO JACKSON, Secretary of the United States Department of
Housing and Urban Development; MICHAEL COLÓN, Director,
Field Office; OLGA SÁEZ, Housing Director of the Office for
the Puerto Rico/Virgin Islands of the United States Department
of Housing and Urban Development,
Defendants, Appellees,
ANÍBAL ACEVEDO-VILÁ, Governor of The Commonwealth of
Puerto Rico; JORGE RIVERA, Secretary of the Department of
Housing of the Commonwealth of Puerto Rico; CARLOS LABOY,
Director of the Puerto Rico Public Housing Administration.
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen Consuelo Cerezo, U.S. District Judge]
Before
Torruella, Selya, and Lipez,
Circuit Judges.
Myrta Morales-Cruz, for appellants.
Susana I. Peñagarícano-Brown, Assistant Solicitor General,
with whom Irene S. Soroeta-Kodesh, Solicitor General, Leticia
Casalduc-Rabell, Deputy Solicitor General, and Zaira Z. Girón-
Anadón, Deputy Solicitor General, were on brief for appellees
Acevedo-Vilá, Rivera, Laboy and American Management, Inc.
Patricia Sharing Flagg, Special Assistant United States
Attorney, U.S. Department of Housing and Urban Development, with
whom Rosa Emilia Rodríguez-Vélez, United States Attorney, and
Nelson Pérez-Sosa, Assistant United States Attorney, Chief,
Appellate Division, were on brief for appellees Jackson, Colón, and
Sáez.
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July 28, 2010
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TORRUELLA, Circuit Judge. Plaintiff-Apellants, several
residents of Las Gladiolas I and II public housing project (Las
Gladiolas), appeal the district court's grant of summary judgment
in favor of several officers of the Commonwealth of Puerto Rico and
the Puerto Rico Public Housing Administration (PRPHA) and the
dismissal of their claims against the Department of Housing and
Urban Development (HUD).1 Appellants claim that in preparing and
approving an application for demolition of Las Gladiolas the PRPHA
and HUD violated their statutory right to resident consultation
under section 1437p of the United States Housing Act of 1937, 42
U.S.C. § 1437p(a),2 and their constitutional right to procedural
due process under the Fifth and Fourteenth Amendments of the United
States Constitution. Finally, Appellants claim that there is a
genuine issue of material fact as to whether the Commonwealth
1
Plaintiff-Appellants, Arcadio Aponte-Rosario, Mirta Colón-
Pellecier, and Iris Margarita Aponte-Marrero, (collectively,
Appellants), filed the present case as a class action suit. Class
certification was never granted as the district court dismissed all
of Appellants' claims.
2
42 U.S.C. § 1437p(b)(2) provides:
"The Secretary shall disapprove an application [for
demolition or disposition] . . . if the Secretary
determines that (1) any certification made by the public
housing agency under that subsection is clearly
inconsistent with information and data available to the
Secretary or information or data requested by the
Secretary; or (2) the application was not developed in
consultation with-- (A) residents who will be affected by
the proposed demolition or disposition; (B) each resident
advisory board and resident council . . . that will be
affected by the proposed demolition or disposition; . .
. ." (emphasis added).
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abandoned upkeep of Las Gladiolas in an effort to justify the
demolition of some of the buildings. After careful consideration,
we affirm the district court's dismissal of Appellants' claims.
I. Facts and Procedural Background
The Las Gladiolas project has two high-rise buildings
that house 676 apartment units. On April 28, 2005, the PRPHA
submitted its application to HUD for demolition of Las Gladiolas
stating that structural tests revealed that the buildings were no
longer suited for public housing purposes and that no reasonable
and cost-effective plan for repairs or "modernization" was
feasible.3
Prior to submitting its application for demolition, the
PRPHA held five public hearings to discuss its Annual Plans. Each
Annual Plan included demolition of Las Gladiolas as one of the
agency's objectives, and demolition of Las Gladiolas was discussed
in each of the five annual hearings. The hearings were held on
April 2, 2001, March 27, 2002, March 28, 2003, March 25, 2004, and
March 30, 2005. The hearings were announced in local newspapers.
The published notices included the dates and locations of the
3
The primary statutory criteria for demolition of a public
housing project are: (i) that the project is obsolete as to
physical condition, location, or other factors, making it
unsuitable for housing purposes; and (ii) no reasonable program of
modifications is cost-effective to return the public housing
project or portion of the project to useful life. 42 U.S.C. § 1437p(a)(1)(A). Appellants have not challenged the PRPHA's
certification that Las Gladiolas met the criteria for demolition.
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hearings; provided directions to a location where residents could
view the plans; and informed residents that transportation to the
hearings would be provided. Many Las Gladiolas residents attended
these public hearings and voiced their concerns.4
On February 22, 2005, the PRPHA held a two hour and
forty-five minute meeting with Las Gladiolas I & II's residents'
council and Las Gladiolas residents to discuss, among other
matters, the proposed demolition. After this meeting, the PRPHA
formally filed its application for demolition of the housing
project with HUD. HUD approved the PRPHA's application for
demolition on February 2, 2006.
Following HUD's approval of the application for
demolition, Appellants filed a class action suit on behalf of all
residents of Las Gladiolas seeking to stop or delay the demolition
of Las Gladiolas. The complaint sought declaratory and injunctive
relief against the Governor of the Commonwealth of Puerto Rico; the
Secretary of the Department of Housing of Puerto Rico; and the
Director of the PRPHA in their official capacities (collectively,
Commonwealth defendants); and against three HUD officers in their
official capacities, namely, the Secretary of HUD; HUD's Field
Office Director for Puerto Rico and the Virgin Islands; and HUD's
Director of Public Housing for Puerto Rico and the Virgin Islands.
4
During a March 11, 2002 meeting with residents, the PRPHA's
plans for demolition were discussed. The minutes of this last
meeting, however, were not submitted to the district court.
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The complaint alleged that Plaintiffs had been deprived of their
due process right to consultation and of their statutory right to
consultation as recognized in 42 U.S.C. § 1437p. Appellants also
brought a claim under 42 U.S.C. § 1437p and 24 C.F.R. § 970.12,
asserting that through inaction and neglect, the Commonwealth
defendants had kept two of the four buildings at Las Gladiolas in
a state of disrepair that amounted to the de facto or constructive
demolition of those buildings. As to HUD, the complaint claimed
that the agency's approval of the PRPHA's application for
demolition was illegal because the application was not developed in
consultation with residents as required by section 1437p.5
In due course, the Commonwealth defendants moved for
summary judgment. The HUD defendants filed a Motion In Support of
[the] Commonwealth Defendants' Motion for Summary Judgment arguing
that if the Commonwealth was found to have complied with the
statutory requirements for resident consultation, HUD's approval of
the application for demolition would also be in compliance with the
regulations and therefore summary judgment should be granted in
HUD's favor.
In December 2008, the district court granted summary
judgment in the Commonwealth defendants' favor, finding that the
5
In November 2005, Aponte filed an administrative complaint
before HUD challenging the alleged unlawful actions taken by the
Commonwealth defendants and requesting HUD's intervention. At the
time the briefs were filed in this case, HUD had not officially
responded to Aponte's administrative complaint.
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PRPHA had complied with the resident consultation requirement as
prescribed in section 1437p and that Appellants had failed to show
that there were genuine issues of material fact as to whether the
Commonwealth defendants had failed to maintain Las Gladiolas.
Approximately one month later, the district court dismissed
Appellants' claims against HUD, finding that HUD "did not act
unlawfully in approving the demolition." Aponte-Rosario v.
Acevedo-Vilá, No. 06-1578, slip op. at 3 (D.P.R. Jan. 29, 2009).
Appellants filed this timely appeal challenging the district
court's dismissal of their claims.
II. Preliminary Issues and Standard of Review
A. Appellants' Right of Action Under 42 U.S.C. § 1983 and 5 U.S.C.
§ 702Appellants' main claim on appeal is that they were
deprived of their right to consultation as recognized in section
1437p of the United States Housing Act. Appellants asserted
jurisdiction for the resident consultation claim against the
Commonwealth defendants under 42 U.S.C. § 1983 and against HUD
under section 702 of the Administrative Procedure Act, 5 U.S.C.
§ 702.
The district court did not consider whether section 1437p
provides Appellants a right enforceable under section 1983 and the
parties did not raise the question on appeal.6 While we harbor
6
The issue, however, was raised by this court at oral argument
and the parties filed supplemental letters under Rule 28j
discussing whether a private right of action exists.
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doubts as to whether section 1473p confers upon Appellants a
private right of action, and at least one circuit has held that
residents of a public housing complex do not have such an
unambiguous and "privately enforceable federal right to prevent the
demolition of their housing developments," Anderson v. Jackson, 556
F.3d 351, 356, 358 (5th Cir. 2009), we decline to address the issue
here. We thus assume, without deciding, that Appellants may pursue
a cause of action under section 1437p.
The question whether determination of the existence of a
private cause of action is a jurisdictional inquiry or instead one
that goes to the merits of the claim is a thorny one. Although we
are obliged to decide as a threshold matter certain jurisdictional
questions that implicate our authority to hear a dispute under
Article III, see Steel Co. v. Citizens for a Better Env't, 523 U.S.
83, 94, 101-02 (1998), we are not so constrained where, as here,
issues of statutory jurisdiction are in play, Restoration Pres.
Masonry, Inc. v. Grove Eur. Ltd., 325 F.3d 54, 59-60 (1st Cir.
2003); see also Davignon v. Clemmey, 322 F.3d 1, 11 (1st Cir. 2003)
(appellate court remains free to bypass problematic jurisdictional
issues provided those issues do not implicate Article III
requirements); Kelly v. Marcantonio, 187 F.3d 192, 197 (1st Cir.
1999) (same).
We also assume, without deciding, that Appellants have a
valid claim under section 702 of the Administrative Procedure Act
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(APA) against HUD and proceed accordingly.7 See Air Courier
Conference of Am. v. Am. Postal Workers Union, 498 U.S. 517, 523
n.3 (1991) ("Whether a cause of action exists [under the APA] is
not a question of jurisdiction, and may be assumed without being
decided." (citing Burks v. Lasker, 441 U.S. 471, 476 n.5 (1979));
see also R.I. Dep't. of Envtl. Mgmt. v. United States, 304 F.3d 31,
40 (1st Cir. 2002) ("[W]hether the APA provides for judicial review
of [a] nonfinal ruling is not [a question] that, precisely
speaking, implicates the subject-matter jurisdiction of the
court.").
B. Standard of Review
We review de novo the district court's grant of summary
judgment, "taking the facts and all reasonable inferences therefrom
in the light most favorable to [Appellants]." Hoyos v. Telecorp
Commc'ns, Inc., 488 F.3d 1, 5 (1st Cir. 2007). Summary judgment is
appropriate if there are no genuine issues as to any material fact
and the moving party is entitled to judgment as a matter of law.
7
In an order issued on February 7, 2007, the district court
denied HUD's Federal Rule of Civil Procedure Rule 12(b) motion to
dismiss Appellants' claims for failure to state a cause of action
against HUD. In its motion, HUD argued that the decision to
approve the PRPHA's application for demolition was committed to the
Secretary's discretion and was thus unreviewable pursuant to
section 701(a)(2) of the APA. The district court, however, never
considered whether Appellants had a valid claim under APA section
702, which provides a cause of action for any "person suffering
legal wrong because of agency action, or adversely affected or
aggrieved by agency action within the meaning of a relevant
statute. . . ." 5 U.S.C. § 702.
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Fed. R. Civ. P. 56(c); see, e.g., Collazo v. Nicholson, 535 F.3d
41, 44 (1st Cir. 2008).
III. Discussion
A. Resident Consultation Claim Against the Commonwealth Defendants
Appellants challenge the adequacy and sufficiency of the
procedures employed by the PRPHA to consult with residents. They
contend that neither the annual hearings held by the PRPHA nor the
February 25, 2005 meeting with Las Gladiolas residents satisfied
the statutory requirement of consultation. Appellants argue that
the notices that announced both the annual hearings and the
February 25th meeting were inadequate because they did not specify
that demolition of Las Gladiolas was to be discussed. They also
claim that residents were not afforded a meaningful opportunity to
be heard because the annual meetings covered a panoply of issues
apart from demolition, and the final meeting with residents was
held just a few months prior to the filing of the application for
demolition and other topics like relocation were discussed.
Section 1437p governs demolition of a public housing
project and provides that the Secretary of HUD shall not approve an
application for demolition unless certain conditions are met. 42
U.S.C. § 1437p. Section 1437p(b) provides that
[t]he Secretary shall disapprove an
application [for demolition] if the Secretary
determines that . . . (2) the application was
not developed in consultation with (A)
residents who will be affected by the proposed
demolition or disposition; (B) each resident
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advisory board and resident council, if any,
of the project (or portion thereof) that will
be affected by the proposed demolition or
disposition; and (C) appropriate government
officials.
(emphasis added).8 The statute does not define "consultation," and
it does not provide specific requirements as to what type of notice
must be given, how many times consultation must occur, how many
residents must be present when demolition is discussed, or what
opportunities residents must be provided to voice their opinions as
to demolition before the local housing authority may be deemed to
have satisfied the general consultation requirement.
Following the general guidelines set forth by section
1437p, the PRPHA held five public hearings from 2001 to 2005 to
discuss the PRPHA's Annual Plans. The Annual Plans of those five
years indicated that there was a planned application for demolition
of Las Gladiolas and included a time line for the anticipated start
and end dates for demolition. Las Gladiolas residents were present
at these annual hearings9 and voiced their concerns regarding the
8
The regulation that was in effect when the PRPHA submitted its
application for demolition provided that the public housing
authority's application for demolition should include "[a]
description of the PHA's consultations with tenants and any tenant
organizations . . . with copies of any written comments which may
have been submitted to the PHA and the PHA's evaluation of the
comments." 24 C.F.R. § 970.8 (2005).
9
Approximately eighty Las Gladiolas residents attended the April
2001 hearing; twenty-nine residents attended the March 2002
hearing; thirty-one residents attended the March 2003 hearing; one
resident attended the March 2004 hearing; and six residents
attended the March 2005 hearing.
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PRPHA's plan for demolition. For example, Aponte voiced his
opposition to the demolition on at least three of the hearings.10
Besides holding annual hearings in each of the five years
prior to the filing of the PRPHA's application for demolition,
PRPHA officials met with members of Las Gladiolas residents'
council on October 18, 2001. Among other issues, they discussed an
implosion update for Las Gladiolas. An additional and final
meeting specifically for Las Gladiolas residents was held on
February 22, 2005 to discuss "important matters for the benefit of
the community." The attendance sheet shows that approximately 170
Las Gladiolas residents attended this meeting to discuss relocation
concerns, the possibility of the building's rehabilitation, and
issues regarding demolition. Although the meeting's minutes show
that relocation was the residents' principal concern, they also
reveal that residents, including Aponte, were able to express their
concerns as to why the PRPHA had opted for demolition.11
We note that the PRPHA's efforts to consult with
residents were by no means ideal or extensive. For example, the
published notices for both the annual hearings and the February
10
Aponte testified at the April 2, 2001, March 27, 2002, and March
28, 2003 hearings and stated his opposition to the proposed
demolition. He also acknowledged that some residents favored
demolition.
11
The minutes show that Aponte questioned the agency's explanation
that rehabilitation or remodeling was not feasible due to budgetary
constraints.
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22nd meeting did not indicate that demolition of Las Gladiolas was
to be discussed, and there is no indication in the record that the
PRPHA informed residents in any other manner that demolition would
be discussed in the annual hearings. Cf. Anderson, 556 F.3d at 360(finding no abuse of discretion in district court's denial of
preliminary injunction where the record showed that the local
housing authority notified residents by mail of a meeting on the
proposed demolition which residents attended and where an
additional meeting was held with resident leaders to discuss
demolition); Project B.A.S.I.C. v. Kemp, 721 F. Supp. 1501, 1511
(D.R.I. 1989) (noting that consultation was met where the local
housing authority informed members of the tenant association of the
plan for demolition; established a modernization committee with
tenants; and allowed tenants to comment on the proposed demolition
during public meetings held by the Board of Commissioners).
Furthermore, the annual hearings were not the ideal forum in which
demolitions should be addressed as the hearings were held to
discuss a broad range of public housing issues.
Despite the limitations of the consultation performed by
the PRPHA, the record shows that the PRPHA took affirmative actions
to inform residents about the plans for demolition, and residents
were afforded the opportunity, throughout the course of five years,
to voice their concerns and provide comments regarding demolition.
Moreover, the procedures employed by the PRPHA were effective as
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the residents, including Aponte, attended these meetings and were
put on notice of the PRPHA's plan for demolition. Residents not
only provided comments to the PRPHA in the annual hearings and the
February 22nd meeting, but they also requested and were granted a
meeting with the Secretary of the Commonwealth's Department of
Housing to discuss demolition,12 and were able to voice their
concerns regarding demolition in other forums such as a committee
of the Puerto Rico legislature.13
Although the process employed by the PRPHA was far from
exemplary, the record clearly supports the conclusion that,
throughout the course of five years, the PRPHA obtained comments
from several residents and met with residents and the appointed
residents' council on several occasions. We find that this is
sufficient to satisfy the consultation requirement set forth in
section 1437p(b).14
12
In his testimony at the 2002 annual hearing, Aponte explained
that a group of residents requested and was granted a meeting with
the Secretary of the Department of Housing of the Commonwealth of
Puerto Rico, Ileana Echegoyen, to discuss demolition.
13
The record shows that residents voiced their opposition to
demolition before a legislative committee and they also enlisted
the help of the School of Social Work of the University of Puerto
Rico in submitting alternative proposals to the PRPHA. The PRPHA
also established a support center that provided information and
counseling on demolition and relocation. However, the record does
not reveal whether the center was established prior to the filing
of the PRPHA's application for demolition.
14
Appellants argue there is a genuine issue of material fact as
to whether the PRPHA consulted with the resident organization Las
Gladiolas Vive. Appellants, however, have not offered any evidence
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B. Due Process Claim
Appellants also claim that their rights to constitutional
procedural due process were infringed. Appellants due process
argument is inextricably bound to their contention that the PRPHA
did not develop its application in consultation with Las Gladiolas
residents. They concede that the statutory consultation
requirement complies with the minimum due process guarantees, but
contend that these procedural guarantees were not afforded in this
case.
The threshold question in any claim for denial of
procedural due process is whether plaintiffs were deprived of a
liberty or property interest protected by the United States
Constitution. Lowe v. Scott, 959 F.2d 323, 334 (1st Cir. 1992).
If a protected interest is found, we must then determine what
process was due. Goss v. López, 419 U.S. 565, 577 (1975). "[D]ue
process is flexible and calls for such procedural protections as the
particular situation demands." Morrissey v. Brewer, 408 U.S. 471,
481 (1972). Despite this flexibility, it is well-settled that the
showing that Las Gladiolas Vive is a resident advisory board or
residents' council that should be consulted under
section 1437p(b)(2). Instead, they claim they are not required to
offer proof at this stage in the proceedings regarding the
organization's existence. Appellants' conclusory and unsupported
assertion is insufficient to overcome the Commonwealth defendants'
motion for summary judgment. Martínez-Rodríguez v. Guevara, 597
F.3d 414, 419 (1st Cir. 2010). Moreover, the record shows that the
PRPHA met with the established residents' council of Las Gladiolas
I and II prior to submitting the application for demolition.
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essential requirements of procedural due process include adequate
notice and an opportunity to be heard "at a meaningful time and in
a meaningful manner." Amsden v. Moran, 904 F.2d 748, 753 (1st Cir.
1990)(citation and internal quotation marks omitted); see also
Jordan Hosp., Inc. v. Shalala, 276 F.3d 72, 78 (1st Cir. 2002). In
evaluating the adequacy of the procedures employed we "balanc[e] a
number of factors, including the nature of the private and public
interests involved; the risk of erroneous deprivation accruing under
the procedures used by the state; and the probable benefit of
demanding additional procedural safeguards." Amsden, 904 F.2d at
753; see also Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
Appellants rely on persuasive authority to show that they
have a protected property interest that would trigger procedural due
process protections. See Geneva Towers Tenants Org. v. Federated
Mortg. Investors, 504 F.2d 483, 488-92 (9th Cir. 1974) (holding that
tenants of federally subsidized housing project had a protected
interest in continued receipt of low cost housing). Assuming that
Appellants have a protected property interest in the form of an
expectation to remain in their public housing units, we do not
believe that the process residents were afforded ran afoul of this
constitutional guarantee.
Appellants' interest in participating in the decision
process regarding demolition of their public housing units is
significant. Undoubtedly, the residents' input is an important
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component in the development of an application for demolition and
their comments assist the local housing authority in, for example,
considering alternatives to demolition and assessing the impact
demolition will have on residents. But the government also has a
significant interest in preserving flexibility when evaluating
whether demolition of a public housing building is appropriate.
These competing interests are adequately balanced and honored
through a process in which residents are notified of the proposal
for demolition and given a meaningful opportunity to provide
comments that the housing authority can consider.
"[P]rocedural due process is simply a guarantee of fair
procedure," Amsden, 904 F.2d at 753 (citation and internal
quotations omitted), and in this case Appellants were put on notice
of the PRPHA's decision to demolish; were afforded the opportunity
to participate in a series of hearings and meetings where PRPHA
officials discussed the plans for demolition; and were given the
opportunity to comment on the proposed demolition before the PRPHA
filed its application for demolition. More importantly,
consultation was done over the course of five years, a reasonable
time span that gave residents a meaningful opportunity to be heard.
Viewing the competing interests involved in a public housing
authority's decision to request authorization to demolish a public
housing building, we cannot say that Appellants were deprived of the
minimum procedural constitutional guarantees to which they were
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entitled. Appellants were afforded a fair procedure that also met
the general statutory requirement of consultation.
As there are no genuine issues of material fact regarding
the PRPHA's compliance with resident consultation prior to filing
an application for demolition with HUD, we affirm the district
court's decision dismissing Appellants' claims against the
Commonwealth defendants.
C. APA Claim Against HUD
Appellants claim that HUD violated section 1437p(b) in
approving the PRPHA's application for demolition. They contend that
the PRPHA developed its application for demolition without meeting
the resident consultation requirement, and that therefore HUD's
approval of the application was unlawful. They also allege that the
evidence included in the administrative record is insufficient to
establish that the PRPHA complied with the consultation requirement.
They argue that the only documents appended to the application for
demolition included the minutes of the February 22, 2005 meeting and
a newspaper announcement for the 2004 public hearing.
Our review of HUD's decision to approve the application
for demolition is governed by the highly deferential standard of
review set forth in section 706(2)(A) of the APA. 5 U.S.C.
§ 706(2)(A). We may only disturb HUD's decision if the
administrative record as a whole reveals the decision was
"arbitrary, capricious, an abuse of discretion, or not in accordance
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with law." Id. We presume HUD's decision is valid and may only
disturb it if there is no rational basis to support it. See River
Street Donuts, LLC v. Napolitano, 558 F.3d 111, 114 (1st Cir. 2009);
Conservation Law Found. of New England v. Sec'y of the Interior, 864
F.2d 954, 957 (1st Cir. 1989).
Given our conclusion that the PRPHA's efforts to consult
with residents met the minimum procedural requirements of section
1437p(b), we cannot hold that HUD's approval of the application was
arbitrary or capricious or otherwise not in accordance with the law.
We acknowledge that the PRPHA's application provided scant
documentation on consultation to support the agency's application
for demolition. We cannot conclude, however, that in relying on the
documents that were included in the administrative record -- which
include documents showing that PRPHA officers met with Las Gladiolas
residents and with the certified residents' council, meeting
notices, sign-in sheets, and the minutes of the February 25th
meeting -- HUD acted in an arbitrary or capricious manner.
We have reviewed the administrative record and are
convinced it shows that the PRPHA engaged in efforts to inform
residents of the proposed demolition and that the PRPHA procured and
received comments from residents and the appropriate residents'
council. We affirm the district court's dismissal of Appellants'
claim as to HUD.
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D. De facto Demolition Claim
Appellants' final claim on appeal is that the district
court erred in dismissing their claim that since the year 2001, the
PRPHA failed to properly maintain Las Gladiolas in an effort to
force demolition of the project in violation of 42 U.S.C. § 1437(p)
and its accompanying regulations.15
The only evidence that Appellants offer to support their
claim that the PRPHA intentionally rendered Las Gladiolas
uninhabitable by failing to maintain the buildings in safe, decent,
and sanitary conditions, is a sworn statement given by Aponte on
July 6, 2007 which generally addresses the buildings' condition at
15
Appellants ground their constructive demolition claim on a
series of cases that recognized a private right of action for
constructive demolition under a repealed version of section
1437p(d), which required HUD approval before a public housing
authority could "take any action to demolish or dispose of a public
housing project." United States Housing Act of 1937, amended by
Pub. Law No. 100-242, § 121(d), 101 Stat. 1815 (1988). Courts
applying the former § 1437p(d) framework held that neglect of a
development could establish a de facto demolition claim. See,
e.g., Tinsley v. Kemp, 750 F. Supp. 1001 (W.D. Mo. 1990); Concerned
Tenants Ass'n of Father Panik Village v. Pierce, 685 F. Supp. 316,
321 (D.Conn. 1988). In 1998, the Quality Housing and Work
Responsibility Act eliminated the requirement of prior HUD
Secretary approval. Pub. Law No. 105-276, § 531(a), 112 Stat.
2461, 2570 (1998). However, the regulation that was in effect when
the PRPHA filed its application for demolition, 24 C.F.R. § 970.12,
53 Fed. Reg. 30984 (1988) (repealed, October 24, 2006), stated that
a Public Housing Authority (PHA) may not take any action to
demolish a building without prior HUD approval. Similarly, the
current regulation, 24 C.F.R. § 970.25 (effective November 24,
2006), requires a PHA to obtain HUD approval prior to taking any
action to demolish a public housing unit. We need not decide
whether a right of action for constructive demolition exists under
the applicable regulations. As the district court did, we assume
that such an enforceable right exists.
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and around 2007, one year after the application for demolition had
been submitted to HUD.16 Some portions of the statement address the
buildings' condition prior to 2006, stating that Las Gladiolas had
been deteriorating since 2001 and that prior to 2001, the apartments
were allegedly in compliance with regulations and received
"satisfactory ratings on the annual inspections." However, the
statement lacks specificity as to the extent of the deterioration,
when it started, its causes, or whether the conditions existed at
the time the PRPHA filed its application with HUD.
In order to survive a motion for summary judgment, the
non-moving party "must . . . set out specific facts showing a
16
Aponte declared under oath the following:
The living conditions in Las Gladiolas are very far from
being sanitary and decent. Before 2001, when the process
of relocation started, all the apartments received
satisfactory ratings on the annual inspections. Since
2001 the condition of the 4 towers has deteriorated
rapidly. The vacated apartments are filled with debris,
dirty water, and old clothes left there by the previous
tenants. Overall, most apartments have broken sinks and
water filtrations [sic]. The complex is experimenting
[sic] an infestation of plagues that include rats,
cockroaches, mosquitoes and bees. There has been almost
no efforts to fumigate, only one, but it was only a few
apartments. The handrails are rotting, there is a
deficient illumination of the premises (especially in
common areas) and the storage rooms on every floor are
filled with debris and dead animals. The parking area
has no illumination and the grass around it is not
trimmed as it should be. The sewers constantly overflow,
the recreation areas for the children are completely
abandoned and vandalized, and the basketball courts are
semi-painted [sic]. . . . Out of the ten (10) elevators
only two (2) are partially working. It is getting worse
and worse with the passing of time. It was not like this
before they decided to implode the complex.
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genuine issue for trial." Fed. R. Civ. P. 56(e). "With respect to
each issue on which the nonmoving party has the burden of proof at
trial, that party must 'present definite, competent evidence to
rebut the motion.'" Martínez-Rodríguez, 597 F.3d at 419 (citations
omitted). "If the evidence is merely colorable, or is not
significantly probative, summary judgment may be granted." Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 (1986) (citations
omitted). The non-moving party "may not rest upon conclusory
allegations, improbable inferences, and unsupported speculation."
Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st Cir. 2008) (internal
quotation marks omitted).
Drawing all inferences in favor of Appellants, we can
conclude that Aponte's statement details a series of conditions
which show that proper maintenance was generally not provided at the
time the statement was made. We can also conclude that after the
PRPHA began to consider a plan for demolition in 2001, the buildings
deteriorated. However, Aponte's statement does not specify which
conditions existed prior to the PRPHA's application for demolition,
nor does it state whether the PRPHA was made aware of the specific
conditions, or whether the PRPHA purposefully declined to address
the conditions Aponte detailed in his statement.17
17
In his deposition testimony, the Director of the PRPHA, Mr.
Carlos Laboy-Díaz, recognized that as of 2007, the PRPHA had
received complaints from residents regarding problems with the
buildings' elevators and water system and complaints regarding
security issues in Las Gladiolas. Mr. Laboy explained that the
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Even assuming, without deciding, that a claim for
constructive demolition is available in these circumstances,
Aponte's statement is insufficient to overcome summary judgment as
it includes general allegations and lacks specificity regarding the
conditions that existed in Las Gladiolas prior to the filing of the
PRPHA's application for demolition. Though conditions in Las
Gladiolas seemed to be far from ideal in 2007, Appellants have
failed to show that the Commonwealth defendants' purposefully
created and maintained these conditions in order to bring about a
de facto demolition.
As Appellants have failed to produce evidence to show
that Las Gladiolas was rendered uninhabitable due to the PRPHA's
intentional acts or inaction, we cannot hold that the district court
erred in dismissing this claim.18
PRPHA had expended funds to repair the elevators and to fix
problems with the water system. He also explained that in 2005,
security cameras were installed.
18
Given that Appellants failed to shoulder the burden of showing
that a triable issue exists as to their de facto demolition claim,
we need not examine whether the district court abused its
discretion in admitting and considering the maintenance expense
reports of Las Gladiolas submitted by the Commonwealth defendants
which do not appear to have been properly authenticated as required
by Federal Rule of Civil Procedure 56(e). See Carmona v. Toledo,
215 F.3d 124, 131 (1st Cir. 2000) ("To be admissible at the summary
judgment stage, documents must be authenticated by and attached to
an affidavit that meets the requirements of Rule 56(e)." (citations
and internal quotation marks omitted)).
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IV. Conclusions
Because we find there are no genuine issues of material
fact as to PRPHA's compliance with resident consultation prior to
filing an application for demolition with HUD, we affirm the
district court's decision to dismiss Appellants' claim against the
Commonwealth defendants and HUD. We also affirm the dismissal of
Appellants' de facto demolition claim.
Affirmed.
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