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Brooks v. Carson

United States District Court, W.D. Virginia, Roanoke Division

October 17, 2019

BEN CARSON, in his official capacity as Secretary of the UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants.


          Elizabeth K. Dillon, United States District Judge.

         On February 13, 2018, Rebecca Dare Brooks filed a complaint against Ben Carson, in his official capacity as Secretary of the United States Department of Housing and Urban Development (HUD), and Melinda S. Moore Housing, Inc. (MSM), asserting several violations of the lease between Brooks and MSM, HUD regulations, and the Virginia Residential Landlord Tenant Act (VRLTA). (Compl., Dkt. No. 2.) This matter is before the court on HUD's motion to dismiss the counts in which it is named-counts one, two, and eight-pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Dkt. No. 10.) Since HUD filed its motion, Brooks filed, and the court granted, a motion to dismiss counts two and eight of the complaint. (Dkt. Nos. 37, 44.) Accordingly, the court need consider only whether to grant HUD's motion as to count one.

         For the reasons set forth below, the court finds that HUD did not take any final action as required to waive sovereign immunity under the Administrative Procedures Act (APA) and will therefore dismiss count one against HUD for lack of subject matter jurisdiction.

         I. BACKGROUND

         At the time she filed her complaint, Brooks was sixty-six and relied on Social Security benefits and food stamps as her only income. (Compl. ¶ 3.) Her lawsuit stems from efforts by her landlord, MSM, to terminate her lease and evict her, allegedly in violation of Section 202 of the National Housing Act of 1959. 12 U.S.C. § 1701q.

         As part of the Section 202 program, HUD contributes funding through capital advances to provide housing for low-income elderly individuals. Id. § 1701q(b). A landlord operating under Section 202 may enter contracts with HUD for project rental assistance, pursuant to which HUD pays a portion of rent for qualifying low-income individuals. Id. § 1701q(c). Brooks alleges that MSM used capital-advance assistance from HUD to build Melinda's Melody Apartment Complex (Melinda's Melody), where Brooks resided at the time of filing. (Compl. ¶¶ 6-9, 13.) MSM further entered a rental-assistance contract with HUD that ultimately helped pay for a portion of Brooks' rent. (Id. ¶¶ 7-14.) Brooks notes in her complaint that “HUD provides pervasive supervision of the operation of a Section 202 landlord, ” including oversight regarding “financial, conditions of tenancy, operations, physical condition of the project and maintenance.” (Id. ¶ 8.)

         On July 17, 2015, Brooks entered into a Section 202 lease agreement with MSM for an apartment at Melinda's Melody. (Id. ¶ 13.) The terms of the lease provide that “unless terminated or modified as provided for by the lease and HUD regulations, it will automatically renew and continue on the same terms.” (Id. ¶ 16.) The lease “may only be terminated as provided for by HUD regulations, ” which allow termination for material noncompliance with the terms of the lease, failure to carry out obligations under state landlord and tenant law, criminal activity or alcohol abuse, and good cause. (Id. ¶¶ 17-18.)

         During the fall of 2015, Brooks began voicing concerns over poor drainage at the apartment complex and potential mold issues in some of the units. Based on that concern and her belief that MSM was not acting to correct the issues, Brooks sent a constituent statement to Congressman Morgan Griffith on November 10, 2015. (Id. ¶¶ 24-25.) HUD responded to the constituent statement, and Congressman Griffith's office provide Brooks with a copy of the response and a phone number for Ron Fitch, a HUD employee. Brooks alleges that she attempted to contact Fitch and left him messages, but Fitch did not call her back. (Id. ¶ 32.)

         In January 2016, Brooks received a notice that her lease was being terminated and that she had thirty days to vacate her unit. By a separate letter, MPM informed Brooks that she needed to remove plants and fish tanks from her unit, as they created a safety and health concern. Brooks' allegations indicate that after she received the termination letter, she followed up with MPM, MSM, and HUD about the termination. She further alleges that HUD received copies of the termination notice and that a HUD representative had been in contact with MPM regarding the termination of Brooks' lease and was involved in meetings regarding the termination. (Id. ¶¶ 39-48.)

         Brooks did not move out of her apartment by the deadline in the termination letter, and MPM sent Brooks a notice that her lease would not be renewed. MPM instructed Brooks to vacate her unit by the end of July 2016. Brooks argues that MPM and MSM decided not to renew her lease after consulting with and under the supervision of HUD, and that their decision constituted a violation of Brooks' lease, HUD regulations, and the VRLTA. (Id. ¶¶ 52-54.) On June 30, 2016, Brooks filed a complaint for declaratory judgment in state court against MSM. (Id. ¶ 57.)

         Brooks alleges that sometime between March 2017 and March 2018, HUD terminated payment of her Section 202 subsidy without notice or opportunity for hearing or appeal of that decision. She notes that “HUD had decided to no longer exercise forbearance and allow the subsidy to continue and was requiring MSM to pay back [$3, 249.00].” (Id. ¶ 58.) HUD has not reinstated her subsidy or corrected MSM or MPM's failure to extend her lease.[1] Brooks thus points out that she may not be able to obtain another Section 202 or similar lease based on the lapse of benefits and may ultimately become homeless. She claims HUD knew or should have known of MSM and MPM's actions and should have ensured that its regulations were followed. (Id. ¶¶ 58-67.)

         In count one of her complaint, Brooks seeks review of HUD's actions under the APA. Specifically, she argues that HUD violated the APA through actions or inactions taken regarding the non-renewal of Brooks' lease.[2] Accordingly, she seeks declaratory and injunctive relief prohibiting HUD from violating either its regulations or “guidance that provides for the procedures and cause for the non-renewal of Plaintiff's Section 202 tenancy and subsidy.” (Id. ¶¶ 69-75.)


         A. ...

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