Professional Documents
Culture Documents
Doris Holbrook v. Henry C. Pitt, and Third-Party v. Secretary, United States Department of Housing and Urban Development, Third - Party, 643 F.2d 1261, 3rd Cir. (1981)
Doris Holbrook v. Henry C. Pitt, and Third-Party v. Secretary, United States Department of Housing and Urban Development, Third - Party, 643 F.2d 1261, 3rd Cir. (1981)
2d 1261
"Contracts"). Appellants contend they are entitled to these rent subsidies within
a reasonable time after the effective date of the Contracts between HUD and the
various project owners. The tenants also argue that the rent subsidies should be
made retroactive to the effective dates of the respective Contracts. Appellants
further claim that HUD's procedures for making rental assistance payments
violate the Due Process clause of the Fifth Amendment to the United States
Constitution.
2
The district court granted summary judgment in favor of the Secretary of HUD
(the "Secretary"), who was the third-party defendant, finding that the tenants
had no claim under the Contracts since no provisions of the Contracts were
breached. The district court also found that the tenants' interest in receiving
housing assistance payments was only a "subjective expectancy" which was not
entitled to due process protection. We hold that the Contracts were breached
and that the tenants can recover retroactive benefits as third-party beneficiaries;
we also find that tenants in existing HUD-insured projects assisted under
Section 8 are generally entitled to housing assistance benefits within a
reasonable time after the effective date of the applicable Section 8 Contract. We
further determine that appellants have a legitimate claim of entitlement to
housing assistance payments as of the effective dates of the Contracts. We
therefore reverse and remand.
The Case
3
After the district court granted Holbrook's motion to amend her complaint, the
original complaint was redesignated as Count I. In Count II, Holbrook then
asserted a class claim for declaratory judgment and damages on behalf of the
class of tenants in multifamily projects in Wisconsin who had been certified for
Section 8 assistance payments by the owners of their dwelling units. 1 Count II
was based on the theory that the members of the tenant class were third-party
beneficiaries of the Contracts executed between HUD and the owners of the
projects in question, and that the class was thereby entitled to Section 8 benefits
retroactive to the effective dates of the Contracts, payable within a reasonable
time after the dates of execution.
In Count III, the plaintiff class alleged that they were denied retroactive
assistance payments in violation of the Due Process clause of the Fifth
Amendment to the United States Constitution.2 The tenants argued that they
had a legitimate claim of entitlement to the receipt of Section 8 benefits as of
the date of Contract execution and that the provision of such benefits must
commence not later than thirty days after the execution date. To enforce these
rights, plaintiffs requested, inter alia, that HUD be ordered to provide a
meaningful opportunity for all class members to challenge HUD's procedures
regarding administration of the Contracts.
The district court found that, because of the payment to Holbrook, Count I had
become moot. As to Count II, the district court held that, even assuming that
plaintiffs were third-party beneficiaries, they were bound by the terms of the
Section 8 Contracts, which HUD had not breached. With respect to Count III,
the court found that plaintiffs possessed only an "inchoate property interest" in
the receipt of housing assistance payments, which was merely a "subjective
expectancy" not entitled to due process protection. HUD's motion for summary
judgment was therefore granted.3
Plaintiff Holbrook lived with her four minor children in Milwaukee, Wisconsin
in Main Street Gardens, a housing development owned by Henry Pitt. On June
10, 1976, HUD and Pitt executed a Section 8 Contract under which housing
assistance payments were to be paid to Pitt's eligible tenants, including
Holbrook. Under the Contract, HUD committed funds to make housing
assistance payments on behalf of eligible tenants as of June 1976. Funds were
not disbursed under the Contract, however, until Pitt certified to HUD the
names of the eligible tenants and the amount of subsidy to which each was
entitled.4
The federal policy of providing decent, safe and sanitary housing for all
families, first articulated in the United States Housing Act of 1937, ch. 896, 50
Stat. 888 (codified in scattered sections of 42 U.S.C.), has inspired numerous
programs designed to increase the availability of housing for lower income
families.6 The Section 8 lower income housing assistance program, which was
enacted as part of the Housing and Community Development Act of 1974,
Pub.L. 93-383, 88 Stat. 633 (codified in scattered sections of 5, 12, 20, 31, 42,
49 U.S.C.), is one of the most ambitious of these efforts.7 This program was
enacted for the dual purposes "of aiding lower-income families in obtaining a
decent place to live and of promoting economically mixed housing." 42 U.S.C.
1437f(a) (1976). Section 8 was designed to achieve these goals by providing
rent subsidies to lower income families living in housing owned primarily by
private developers. All tenants whose incomes do not exceed 80 percent of the
median income for their area are eligible for Section 8 assistance.8
11
12
13
14
14
15
16
HUD also maintains a project account "to assure that housing assistance
payments will be increased on a timely basis to cover (HUD-approved)
increases in Contract rents or decreases in Family Incomes." 24 C.F.R.
886.108(c) (1980). According to HUD's regulations, this project account is
established and maintained "out of amounts by which the maximum annual
Contract commitment per year exceeds amounts paid under the Contract for
any year." 24 C.F.R. 886.108(c)(1) (1980). It appears from the record,
however, that HUD actually deposits the entire amount of the maximum
contract commitment in a segregated account at the time the Contract is
executed.
17
18
After the effective date of a Contract, but before the initiation of housing
assistance payments, HUD provides no administrative process for determining
a tenant's eligibility to receive housing assistance payments. Nor does an
administrative procedure exist whereby an eligible (whether certified or
uncertified) family may, in appropriate circumstances, challenge either a
project owner's initial delay in certifying eligible tenants for payments or an
owner's unwillingness or refusal to certify tenants for payments retroactive to
the Contract date.
Discussion
1. Tenants' Third-Party Beneficiary Claim
19
In Count II, the tenant class asserted their rights as third-party beneficiaries of
the Contracts executed between HUD and the owners. The tenants sought
prompt implementation of the Contracts as well as the receipt of retroactive
benefits. The district court declined to rule on the third-party beneficiary issue
but found that, in any event, the Contracts had not been breached since HUD
had no contractual duty to pay benefits from the effective dates of the
Contracts. Holbrook v. Pitt, 479 F.Supp. 990, 994 (E.D.Wis.1979).
20
Plaintiffs' approach in this case seems to have made analysis of their claims for
retroactive benefits unnecessarily difficult. They argue that HUD has
improperly administered the Section 8 program by totally delegating
certification responsibilities to the owners. While this argument may have merit
in the context of a claim that HUD has failed to meet its Section 8 obligations,
it is only obliquely related to plaintiffs' claim that HUD has breached the
Contracts before us.
21
In her original action, Holbrook had named Pitt, the owner of her building, as
defendant. Pitt was dismissed from this action when he certified Holbrook for
retroactive benefits and those benefits were paid to Holbrook by HUD. The
other Wisconsin project owners who had executed Contracts with HUD were
not named as defendants, however, when plaintiff subsequently asserted her
class claim. Yet, since the Contracts place the obligation to certify tenants on
the owners, it is not HUD but the owners who have most clearly breached the
duty to properly certify the tenants. Despite this discrepancy, however, we have
concluded that tenants can recover retroactive benefits because HUD breached
its obligation to properly administer the Contracts by accepting non-retroactive
certifications from the owners.
22
Under settled principles of federal common law,16 a third party may have
22
enforceable rights under a contract if the contract was made for his direct
benefit. Crumady v. The Joachim Hendrik Fisser, 358 U.S. 423, 428, 79 S.Ct.
445, 448, 3 L.Ed.2d 413 (1959); Williams v. Fenix & Scisson, Inc., 608 F.2d
1205, 1208 (9th Cir. 1979); Owens v. Haas, 601 F.2d 1242, 1248-50 (2d Cir.),
cert. denied, 444 U.S. 980, 100 S.Ct. 483, 62 L.Ed.2d 407 (1979); Roberts v.
Cameron-Brown Co., 556 F.2d 356, 362 (5th Cir. 1977); Olzman v. Lake Hills
Swim Club, Inc., 495 F.2d 1333, 1339 (2d Cir. 1974); Euresti v. Stenner, 458
F.2d 1115, 1118-19 (10th Cir. 1972); Inglewood v. Los Angeles, 451 F.2d 948,
955-56 (9th Cir. 1971); Bossier Parish School Board v. Lemon, 370 F.2d 847
(5th Cir.), cert. denied, 388 U.S. 911, 87 S.Ct. 2116, 18 L.Ed.2d 1350 (1967).
If the agreement was not intended to benefit the third party, however, he is
viewed as an "incidental" beneficiary, having no legally cognizable rights under
the contract.17 German Alliance Insurance Co. v. Home Water Supply Co., 226
U.S. 220, 33 S.Ct. 32, 57 L.Ed. 195 (1912); Williams v. Fenix & Scisson, Inc.,
608 F.2d at 1208; 4 A. Corbin, Corbin on Contracts, 776 at 18-19 (1951);
Restatement of Contracts, 133 at 151-52 (1932).
23
24
Congress did not establish the Section 8 housing assistance program merely to
limit claims on HUD's insurance fund that might be occasioned by assignments
or foreclosures of HUD-insured mortgages. Congress authorized Section 8
payments "(f)or the purpose of aiding lower-income families in obtaining a
decent place to live and of promoting economically mixed housing." 42 U.S.C.
1437f(a) (1976).
25
HUD has also recognized that the function of the Section 8 subprogram we are
considering is to assist low income families in securing decent, safe and
sanitary housing. Thus, HUD's introduction to the regulations that established
this subprogram provides:
29
30
The Contract terms also demonstrate that the tenants are intended beneficiaries
of the Contracts. Paragraph 1.3(b)(1) provides, in part:
Numerous other Contract provisions make it clear that the Contracts were
executed primarily for the tenants' benefit. Paragraph 1.7, for example, requires
the owners to "maintain and operate the Contract unit and related facilities so as
to provide Decent, Safe and Sanitary housing." See also paragraph 1.9(a)
(requiring affirmative action in owner's marketing of units and selection of
families); paragraph 1.9(b) (restricting owner's discretion regarding the
collection and refunding of utility and security deposits); paragraph 1.10
HUD, of course, perceives that the Section 8 program also serves to minimize
claims on its insurance fund. The creation of a separate Section 8 subprogram
exclusively for projects with HUD-insured mortgages is compelling evidence
of this perception. It is also apparent from the introduction to HUD's
Handbook, which reads:
36
Having concluded that plaintiffs have enforceable rights under the Contracts,
we must determine whether the Contracts have been breached. The district
court held that HUD did not violate any provision of the Contracts, since "it is
the owner who is given the responsibility to effect certifications of eligibility,
and there is no contract provision requiring HUD to make assistance payments
until the necessary certifications (including retroactive certifications) are
performed." Holbrook v. Pitt, 479 F.Supp. at 993.24 Because they are somewhat
distinct, we will consider first the question whether HUD breached the
Contracts because the tenants were not promptly certified, and second, the
question whether HUD breached the Contracts because the tenants were not
retroactively certified.
37
The district court refused to imply a Contract term that would require the
39
40
Since all the tenants in the class designated in Count II have been certified, it is
not necessary to determine what would be a reasonable time to perform
certification under the circumstances of this case. Cf. A. M. R. Enterprises, Inc.
v. United States Postal Savings Association, 567 F.2d 1277, 1281 (5th Cir.
1978). In any event, although we have implied a Contract term requiring
prompt certification, we believe that the owners, and not HUD, breached this
implied term, since HUD had no mechanism (in the Contracts before us) to
force the owners promptly to certify tenants.26
41
With respect to retroactive certification, the district court held that plaintiffs
could not recover retroactive benefits because HUD was not "required, by the
terms of the contract or otherwise, to pay retroactive benefits." Holbrook v. Pitt,
479 F.Supp. at 994. The court also refused to imply from the Contract that
retroactive certification was required, finding again that paragraph 1.9(c) set
"the terms and conditions of performance." Id. Yet we believe that paragraph
1.9(c) must be interpreted quite differently than the district court suggests.
Paragraph 1.9(c) provides only that the owner is "responsible for ...
computation of the amount of housing assistance payments on behalf of each
selected Family." It does not set forth the period for which housing assistance
payments are to be requested or paid. It certainly does not suggest that the
obligation to compute housing assistance payments includes the right to
arbitrarily deny to tenants benefits from the date of Contract execution. The
very use of the word "computation" connotes the application of a formula to
numbers, not the exercise of discretion either arbitrary or informed.
42
43
44
Although the owners may exercise limited discretion with regard to the
selection of those families that are to receive benefits,29 the owners' obligation
to "compute" the amount of housing assistance payments is entirely ministerial.
No reason has been suggested for allowing the owners to determine whether
tenants will or will not receive retroactive benefits.30 Therefore, by accepting
deficient computations from the owners, we believe HUD breached its
obligation to properly administer the Contracts, see 24 C.F.R. 886.120(a)
(1980), and its coordinate responsibility to third-party beneficiaries to fulfill the
purposes of the Contracts, i. e., to provide full assistance benefits to certified
The class of tenants designated in Count III of the complaint includes only
those tenants "who were certified or who will be certified pursuant to the
contracts for housing assistance payments but who did not or will not receive
the benefit of housing assistance payments as of the effective date of the
contracts."31 The narrow question before us, therefore, is whether the due
process clause requires HUD to establish procedures to provide already
certified tenants with notice and opportunity to be heard concerning the
provision of retroactive benefits.32
46
The existence and scope of appellants' due process rights depend on the
resolution of three issues. First, there must be governmental action sufficient to
invoke the guarantees of the fifth amendment. This requirement has clearly
been met here. See Jackson v. Metropolitan Edison Co., 419 U.S. 345, 95 S.Ct.
449, 42 L.Ed.2d 477 (1974); Joy v. Daniels, 479 F.2d 1236, 1238 (4th Cir.
1973). Second, the asserted interest must be shown to be a "liberty" or a
"property" interest to which there is a claim of entitlement under the due
process clause. Morrissey v. Brewer, 408 U.S. 471, 481-83, 92 S.Ct. 2593,
2600-01, 33 L.Ed.2d 484 (1972). Third, assuming an entitlement is established,
what process is due? Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47
L.Ed.2d 18 (1976). See generally Coppenbarger v. Federal Aviation
Administration, 558 F.2d 836, 839 (7th Cir. 1977).
47
48 have a property interest in a benefit, a person clearly must have more than an
To
abstract need or desire for it. He must have more than a unilateral expectation of it.
He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the
ancient institution of property to protect those claims upon which people rely in their
daily lives, reliance that must not be arbitrarily undermined. It is a purpose of the
constitutional right to a hearing to provide an opportunity for a person to vindicate
those claims.
49
Property interests, of course, are not created by the Constitution. Rather, they
are created and their dimensions are defined by existing rules or understandings
that stem from an independent source such as state law rules or understandings
that secure certain benefits and that support claims of entitlement to those
benefits.
50
It is clear in the present case that appellants have established a legitimate claim
of entitlement.33 The tenants' interest in retroactive benefits rises above a
subjective expectancy or a "unilateral expectation," Board of Regents v. Roth,
408 U.S. at 577, 92 S.Ct. at 2709, since, as concluded above, certified tenants
have legally enforceable rights as beneficiaries under the Contracts to receive
retroactive benefits.34
51
52
53
The district court's analysis in the present case is inapposite because it is based
on the assumption that appellants were claiming due process protection for
tenants who had not yet been certified.37 The class designated in Count III,
however, is limited to those tenants who have already been certified and,
probably in addition, those who will be certified in the future under existing
Contracts.38 But see note 31, supra. Thus, tenants are included in the class
denominated in Count III only after they have been certified. We therefore do
not express any opinion on the district court's holding that non-certified tenants
do not have a legitimate claim of entitlement under the due process clause. But
55
56
But this analysis, which also underlies Harlib, supports rather than contradicts
the existence of a legitimate claim of entitlement in the instant case. Here the
rent subsidies are fashioned to fit the budgets of individual tenants. Section 8
was designed to benefit specific tenants by providing them with monthly rental
subsidies meeting their particularized needs. Once a family is selected to
receive Section 8 assistance, the only factors that determine the level of
assistance the family is to receive are the monthly rental charge for the unit and
the family's financial circumstances. Thus, in contrast to the Section 221(d)(3)
program, award of Section 8 benefits is geared to the rental assistance needs of
particular tenants. 39
57
The existence of owner discretion in the certification process does not suggest a
different conclusion. Although the owner may have limited discretion with
regard to the initial selection of tenants who are to be subsidized under the
Contracts, see note 12, supra, the owner may properly exercise no discretion
with regard to retroactive certification, see pages 1274-76, supra. Indeed, it is
the apparent decision by HUD to give owners the unreviewable right to decide
whether a certified tenant will receive retroactive benefits that offends the
concepts of fairness and nonarbitrariness which are at the heart of the
constitutional requirement of due process of law.
Greenholtz, 442 U.S. at 13, 99 S.Ct. at 2107 (citing Mathews v. Eldridge, 424
U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18 (1976)).
62
63
(I)dentification
of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will be affected
by the official action; second, the risk of an erroneous deprivation of such interest
through the procedures used, and the probable value, if any, of additional or
substitute procedural safeguards; and finally, the Government's interest, including
the function involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.
64
Mathews v. Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 903, 47 L.Ed.2d 18
(1976).41
65
The hardship upon tenants here consists in their being deprived, in their
necessitous circumstances, of housing assistance benefits for periods as long as
seven months. In this regard, the Supreme Court has recognized that "the
possible length of wrongful deprivation of ... benefits is an important factor in
assessing the impact of official action on the private interests." Mathews, 424
U.S. at 341, 96 S.Ct. at 905 (citing Fusari v. Steinberg, 419 U.S. 379, 389, 95
S.Ct. 533, 539, 42 L.Ed.2d 521 (1975)).
66
On the other hand, the fiscal and administrative burdens of elaborate procedural
requirements could become relatively onerous in comparison with the private
interests sought to be benefited. In this case, however, the burden of providing
procedural safeguards regarding the provision of retroactive payments to
already certified tenants would appear to be insubstantial. We note that HUD
has already provided notice, hearing and appeal procedures for applicants under
Section 8 subprograms that involve public housing authorities. See, e. g., 24
C.F.R. 881.603(b)(3) (1980) (substantially rehabilitated housing). See also
Ressler v. Landrieu, No. A77-228 (D.Alas. November 21, 1980) (requiring
HUD to establish tenant selection standards, waiting lists, and notice, hearing
and review procedures with regard to the selection of tenants to be certified
under the Section 8 subprogram for projects with HUD-insured mortgages).
67
It is a sine qua non that all tenants receive prompt notification of their right to
receive such payments retroactively. See Memphis Light, Gas & Water
Division v. Craft, 436 U.S. 1, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978). Due
process would also seem to require that the tenants receive a written statement
setting forth the reasons for any denial of retroactive benefits and the
opportunity to challenge the sufficiency of HUD's reasons. See Perry v.
Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972); Mullane v.
Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94
L.Ed. 865 (1950); T. A. Moynahan Properties, Inc. v. Lancaster Village
Cooperative, Inc., 496 F.2d 1114, 1118 (7th Cir. 1974); Brezina v. Dowdall,
472 F.Supp. 82, 85 (N.D.Ill.1979). In addition, appellants must receive some
sort of hearing before retroactive benefits are finally denied, since the
"fundamental requirement of due process is the opportunity to be heard at a
meaningful time and in a meaningful manner." Mathews v. Eldridge, 424 U.S.
at 333, 96 S.Ct. at 901 (citing Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct.
1187, 1191, 14 L.Ed.2d 62 (1965)). See also Memphis Light, Gas & Water
Division v. Craft, 436 U.S. at 16, 98 S.Ct. at 1564. On remand, the district
court should determine the precise contours of the requirements of procedural
due process in the context of this case, giving whatever regard is appropriate to
the contract remedy we have provided to presently certified tenants.42
68
The Honorable John F. Kilkenny, Senior Circuit Judge of the Ninth Circuit
The Honorable John F. Kilkenny, Senior Circuit Judge of the Ninth Circuit
Court of Appeals, is sitting by designation
The class certified in Count II includes all families in Wisconsin who resided in
certain dwelling units when Section 8 Contracts were executed between HUD
and the owners of these dwelling units and who were certified for housing
assistance payments pursuant to these Contracts, but who did not receive the
benefit of payments as of the effective dates of the Contracts
The class certified in Count III includes all families in Wisconsin who resided
or will reside in dwelling units when Section 8 Contracts were executed or will
be executed between HUD and the owner of these dwelling units and who were
certified or will be certified pursuant to these Contracts for housing assistance
payments, but who did not or will not receive the benefit of such payments as of
the effective dates of the Contracts
After the instant appeal was filed, plaintiffs orally moved (on the basis of Pitt's
certification of Holbrook and tender of full payment of claimed retroactive
payments) to dismiss defendant Pitt from the appeal, and this motion was
granted
At the time the Contract between HUD and Pitt was executed, Holbrook paid
$182.03 per month in rent; she also paid for electric service. Her total housing
costs allegedly consumed nearly 50 percent of her monthly income. Under the
Section 8 program she was entitled to subsidies from HUD that would limit her
housing costs to 25 percent of her monthly income
With respect to the Contracts executed between 1976 and 1979 between HUD
and the forty-nine multifamily project owners in Wisconsin, HUD made
housing assistance payments on behalf of 1,736 certified families, who are
members of the class certified in Count II. Of these, 336 families (19.3 percent)
waited longer than ninety days after the effective dates of their respective
Contracts to be certified and to receive initial housing assistance payments,
including Holbrook and twelve other families at Main Street Gardens. An
additional 188 families (10.8 percent) waited sixty days to receive payments
and 772 families (44.5 percent) waited less than thirty days. The record is
unclear concerning the delay in initial payments for the remaining 440 certified
families (25.4 percent)
Implementation of Contracts at the following projects illustrates the
inconsistent manner in which HUD initiated housing assistance payments on
behalf of certified families:
(a) At West View Apartments:
These programs include, inter alia, the Housing Act of 1949, ch. 338, 63 Stat.
413 (codified in scattered sections of 12, 42 U.S.C.), the Housing Act of 1961,
Pub.L. 87-70, 75 Stat. 149 (codified in scattered sections of 12, 42 U.S.C.), the
Housing and Urban Development Act of 1965, Pub.L. 89-117, 79 Stat. 451
(codified in scattered sections of 12, 15, 20, 38, 40, 42, 49 U.S.C.), the Housing
and Urban Development Act of 1968, Pub.L. 90-448, 82 Stat. 476, (codified in
scattered sections of 42 U.S.C.), and the Housing and Community Development
Act of 1974, Pub.L. 93-383, 88 Stat. 633 (codified in scattered sections of 5,
12, 20, 31, 40, 42, 49 U.S.C.)
Many of these programs were enacted because of the perceived failure of
existing legislation to provide decent housing for lower income families. The
Housing and Urban Development Act of 1968, for example, which set
ambitious goals for the preservation of existing housing as well as the creation
of additional housing through construction and rehabilitation, included the
congressional finding that the supply of housing was not increasing rapidly
enough to realize "the goal of a decent home and suitable living environment
for every American family." 42 U.S.C. 1441a (1976).
7
Congress has described the Section 8 program as "the Nation's major tool for
assisting the construction of lower income housing." S.Rep. No. 94-749, 94th
Cong., 2nd Sess. 3, reprinted in (1976) U.S.Code Cong. & Ad.News 1885,
1887. See also S.Rep.No. 93-693, 93rd Cong., 2nd Sess., reprinted in (1974)
U.S.Code Cong. & Ad.News 4273 et seq
Under the Section 8 program, the monthly rent an owner may charge is
generally limited to 110 percent of the fair market rental of the units. 42 U.S.C.
1437f(c)(1) (Supp. III 1979). Eligible families are required to pay not more
than 25 percent of their income for rent (or 15 percent in the case of certain
tenants). 42 U.S.C. 1437f(c)(3) (1976). The difference between the amount
payable by eligible families and the total rental amount due to the owner is the
amount subsidized by HUD in the form of housing assistance payments.
Owners do not receive an increase in rental income as the result of Section 8
Contracts. Rather, the rent payable by each certified tenant is apportioned
between the tenant and HUD based on both the tenant's income and family size
Pursuant to 202 of the Housing and Community Development Amendments
of 1979, 42 U.S.C. 1437f(c)(3) (Supp. III 1979) was amended to increase the
tenant's share of the rent to a maximum of 30 percent of income. However,
tenants currently in occupancy are exempt from this increase.
12 U.S.C. 1715z-1(a) (1976) sets forth the purpose of the Section 236
program:
For the purpose of reducing rentals for lower income families, the Secretary is
authorized to make, and to contract to make, periodic interest reduction
payments on behalf of the owner of a rental housing project designed for
occupancy by lower income families, which shall be accomplished through
payments to mortgagees holding mortgages meeting the special requirements
specified in this section.
Tenants residing in Section 236 developments are required to pay, as rent, the
greater of either one-fourth of their monthly income, as defined, or a "basic
rental charge determined on the basis of operating the project with (the Section
236 mortgage interest subsidies)." 12 U.S.C. 1715z-1(f)(1) (1976).
For 20 percent of the units in projects assisted by Section 236 after August 22,
1974, HUD is authorized to make "additional assistance payments to the project
owner on behalf of tenants whose incomes are too low for them to afford the
basic rentals ... with 25 per centum of their income." 12 U.S.C. 1715z-1(f)(2)
(1976).
10
11
12
This responsibility would only arise if, at the time certification occurs, the
number of units occupied by eligible tenants is greater than the number of units
authorized to be assisted under the Contract
13
Paragraph 1.9(c) of the Contract, which contains the basic provision pertaining
to certification of eligible tenants, reads as follows:
9 Leasing of Units
c. Eligibility, Selection and Admission of Families.
(1) The Owner shall be responsible for determination of eligibility of
applicants, selection of families from among those determined to be eligible,
and computation of the amount of housing assistance payments on behalf of
each selected Family in accordance with schedules and criteria established by
the Government.
14
15
percent of such number if the number is 10 or more, rounded to the next higher
number.
This provision is an incentive to project owners to lease Contract units to
eligible lower income families. There is no other express requirement for
owners, detailed in the Contract, concerning either certification of eligible
families within any specific time period or retroactive certification to the
Contract date.
16
17
Consistent with the scheme set forth in the Restatement of Contracts 133
(1932), most court decisions have recognized three classes of third-party
beneficiaries donee, creditor and incidental with different rules governing the
rights of each class. It has been suggested, for example, that a contracting
party's "intent to benefit" a third party is relevant if the third party is viewed as
a donee beneficiary, but not if the third party is viewed as a creditor
beneficiary. Isbrandtsen Co. v. Local 1291, Int'l Longshoremen's Ass'n, 204
F.2d 495, 497 n.11 (3d Cir. 1953)
We decline to follow this approach, since it fails to focus on the central
interpretative question involved in third-party beneficiary problems: did the
contracting parties intend that the third party benefit from the contract? We
prefer the approach of the Restatement (Second) of Contracts 133 (Tent.
Draft No. 4, 1968), which divides beneficiaries into two classes intended and
incidental. Section 133 provides:
(1) Unless otherwise agreed between promisor and promisee, a beneficiary of a
promise is an intended beneficiary if recognition of a right to performance in
the beneficiary is appropriate to effectuate the intention of the parties and either
(a) the performance of the promise will satisfy an obligation of the promisee to
pay money to the beneficiary; or
(b) the promisee manifests an intention to give the beneficiary the benefit of the
promised performance.
(2) An incidental beneficiary is a beneficiary who is not an intended
beneficiary.
We also decline to adopt the Restatement's position to the extent it may suggest
that only the intentions of the "promisee" (the party through whom the
beneficiary claims) and not the "promisor" (the party obligated to render
performance that benefits the third party) are relevant to a determination of the
third-party beneficiary's rights. Contracts are the product of shared intentions,
and a promisor should be bound only by those objectively manifested intentions
of the promisee to which the promisor has implicitly or explicitly assented. It is
improper to neglect the reasonable expectations of the promisor, since the
burden of the agreement to the promisor, and therefore the consideration he
will require, may vary according to the number of parties who have enforceable
rights under the contract. See generally Jones, Legal Protection of Third Party
Beneficiaries: On Opening Courthouse Doors, 46 Cinn.L.Rev. 313 (1977).
18
We believe the legislative history and purpose of the Section 8 program may
properly be used to interpret the parties' intentions. It is evident from the terms
of the Contract that HUD, in executing the Contract, is acting to fulfill the
objectives of the Section 8 program. The Contract itself is entitled "Section 8
Housing Assistance Payments Program" and Part I of the Contract expressly
states that the "contract is entered into pursuant to the United States Housing
Act of 1937." Cf. Inglewood v. Los Angeles, 451 F.2d 948, 955 (9th Cir. 1972);
Feir v. Carabetta Enterprises, Inc., 459 F.Supp. 841, 848 n.3 (D.Conn.1978)
19
is based on the project's financial circumstances, not the tenants' incomes and
rental assistance needs. 12 U.S.C. 1715z-1(f) (Supp. III 1979)
20
The only priority for acceptance of Contract applications set forth in the statute
is geared toward realizing the Section 8 program's second express purpose of
promoting economically integrated housing. Under 42 U.S.C. 1437f(c)(5)
(1976), the Secretary "may give preference to applications for assistance
involving not more than 20 per centum of the dwelling units in a project."
21
22
We note in this regard that the Senate Banking, Housing and Urban Affairs
Committee's Report on the Housing Authorization Act of 1976 disapproved of
HUD's efforts to direct Section 8 funds toward financially troubled FHAinsured projects:
The Committee recognized the merits of HUD's plan to help these projects, but
disagreed with HUD's use of Section 8 funds for this purpose because it
detracts from the basic intent of Congress that such funds be used to provide
additional housing units for low and moderate income families.
S.Rep.No.94-749, 94th Cong., 2nd Sess. 12, reprinted in (1976) U.S.Code
Cong. and Ad.News 1896 (emphasis supplied).
23
24
We agree with the district court that the tenants, as third-party beneficiaries, are
bound by the terms and conditions of the Contracts. See Holbrook v. Pitt, 479
F.Supp. at 993. See also Trans-Bay Engineers and Builders, Inc. v. Hills, 551
F.2d 370, 378 (1976); Rotermund v. United States Steel Corp., 474 F.2d 1139,
1142 (8th Cir. 1973)
25
26
Once owners did submit certifications, however, HUD was liable for the failure
to provide retroactive benefits to tenants, since the owner should no longer have
had any meaningful discretion with regard to the computation of the amount of
the payments to be made on behalf of the tenants. As discussed below, we
believe HUD improperly allowed owners to exclude retroactive benefits from
their computations
27
The district court apparently concluded that the tenants were bound by the
failure of their project owners to submit retroactive certifications to HUD. But
we think the binding effect of the owners' nonfeasance must be drastically
tempered by the economic realities of the transactions. The owners have no
economic stake in retroactive certification (except to the extent which the
record does not disclose that accumulated financial burdens might force tenants
sooner or later to default in rent payments). Indeed, the benefit of retroactive
certification is almost entirely to the tenants. Thus, there is no direct financial
incentive to owners to perform certifications in a way which will be
advantageous to tenants. We think the purpose of the Contracts to assist tenants,
who may be paying as much as 50 percent of their income for shelter expenses,
ought not to be frustrated by the owners' failure to perform financially profitless
acts. To accord weight, in this regard, to the owners' discretion is to convert the
statutory scheme into a game of chance
28
29
30
the owner breaches his obligation to promptly certify tenants. As the record in
this case demonstrates, it is often possible for owners to certify tenants by the
effective dates of their Contracts. See note 5, supra. In such cases, an owner
would have the opportunity to choose whether tenants are to receive retroactive
benefits only if he failed to promptly certify the tenants in the first instance. It
is unreasonable to assume that the parties intended for the owner to have such a
choice when the choice exists only because of the owner's initial breach of his
contractual obligation of prompt certification
31
The class designated in Count III would appear to include Wisconsin tenants
who will be certified in the future under existing Contracts. In their brief on
appeal, however, appellants assert that "all class members claiming
entitlements to housing assistance payments as of the effective dates of the
respective Section 8 Contracts have already been certified and received benefits
under the contracts." Appellant's brief at 30 (emphasis supplied)
On remand, the district court should determine whether due process protection
should be extended to tenants certified in the future or whether appellants have
waived such a claim.
32
33
In response to the need for insuring that government programs are not
administered in an arbitrary or irrational fashion, courts have extended due
process protections to a wide variety of governmentally conferred benefits. See,
e. g., Greenholtz v. Inmates of Nebraska Penal & Correctional Complex, 442
U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) (parole application); Willner v.
Committee on Character & Fitness, 373 U.S. 96, 83 S.Ct. 1175, 10 L.Ed.2d 224
(1967) (application for bar admission); Wright v. Califano, 587 F.2d 345, 354
(7th Cir. 1978) (social security benefits); Freitag v. Carter, 489 F.2d 1377 (7th
Cir. 1973) (chauffeur's license application); Holmes v. New York City Housing
Authority, 398 F.2d 262 (2d Cir. 1968) (public housing application)
As court decisions have extended the notion of protected rights under the due
process clause beyond traditional concepts of "liberty" and "property,"
however, it is often difficult to discern the boundaries of due process
protection. Compare Geneva Towers Tenants Organization v. Federated
Mortgage Investors, 504 F.2d 483 (9th Cir. 1974), with Geneva Towers, 504
F.2d at 494 (Hufstedler, J., dissenting) and Harlib v. Lynn, 511 F.2d 51 (7th
Cir. 1975).
34
Indeed, HUD does not dispute that certified tenants have a legitimate claim of
entitlement. Its brief on appeal states:
In this case, a property interest did not arise until the owners certified plaintiffs
as being eligible to participate in the Section 8 program. Prior to certification
plaintiffs had merely an inchoate property interest. Only after certification by
the owner did a property interest become choate. Therefore, plaintiffs'
subjective expectancy is not constitutionally protected by the due process
clause.
Thus, at most HUD challenges only the scope or magnitude of entitlement of
certified tenants (i. e., whether the entitlement extends to retroactive benefits).
35
applicants); Wright v. Califano, 587 F.2d 345, 354 (7th Cir. 1978) (social
security applicants); White v. Roughton, 530 F.2d 750 (7th Cir. 1976) (general
assistance applicants); Freitag v. Carter, 489 F.2d 1377 (7th Cir. 1973)
(chauffeur's license applicants); Like v. Carter, 448 F.2d 798 (8th Cir. 1971),
cert. denied, 405 U.S. 1045, 92 S.Ct. 1309, 31 L.Ed.2d 588 (1972) (AFDC
applicants); Holmes v. New York City Housing Authority, 398 F.2d 262 (2d
Cir. 1968) (public housing applicants); Meyer v. Niles Township, 477 F.Supp.
357, 361-62 (N.D.Ill.1979) (general assistance applicants); Davis v. United
States, 415 F.Supp. 1086 (D.Kan.1976) (worker's compensation applicant);
Alexander v. Silverman, 356 F.Supp. 1179 (E.D.Wis.1973) (general relief
applicant); Neddo v. Housing Authority of Milwaukee, 335 F.Supp. 1397
(E.D.Wis.1971) (public housing applicant); Custom v. Trainor, 74 F.R.D. 409
(N.D.Ill.1977) (general assistance applicants)
36
37
38
39
specifically as the tenants who are to receive payments under the Contracts.
Also, by the terms of the Contracts, HUD has already committed sufficient
funds to provide assistance payments to the tenants from the effective dates of
the Contracts. The tenants' receipt of retroactive benefits is therefore
conditioned solely upon the owners' certification of the tenants for retroactive
benefits (and we have held, in effect, that this retroactive certification cannot
properly be withheld). The single factual determination that may be required,
therefore, is whether, during the period for which the retroactive benefits
would be paid, the tenants' incomes exceeded the maximum income limits set
forth in the statute, 42 U.S.C. 1437f(c)(4), 1437f(f)(1) (1976), and in the
regulations, 24 C.F.R. 886.102, 886.109, and 886.117 (1980).
40
See, e. g., Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725
(1975); Carey v. Quern, 588 F.2d 230, 232 (7th Cir. 1978); Winston v. United
States Postal Service, 585 F.2d 198, 209 (7th Cir. 1978); Klein v. Mathews,
430 F.Supp. 1005, 1008 (D.N.J.1977)
41
Accord, Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711
(1977); Winston v. United States Postal Service, 585 F.2d 198, 200 (7th Cir.
1978)
42
On remand, the district court may also decide to fashion due process protection
for tenants who will be certified in the future. See note 31, supra