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. e du/thir dc ir c uit_1996/15UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 96-1286

LATICIA FARLEY

v.

PHILADELPHIA HOUSING AUTHORITY; FLOYD BA KER; PAMELA DUNBAR; CLAUDE ROSS

Philadelphia Housing Autho rity, Floyd Baker, Pamela Dunbar and *Claude Ross, Appellants

*Amended Notice of Appeal filed 4/8/96

On Appeal from the United States District Court for the Eastern District of Pennsylvan ia (D.C. No. 95-cv-06616)

Argued October 28, 1996

BEFORE: SCIRICA and COWEN, Circuit Jud ges and FEIKENS, District Judge**

(Filed December 17, 1996)

Denise J. Baker, Esq. (Argued) Philadelphia Housing Authority
2012 Chestnut Street Philadelphia, PA 19103

COUNSEL FOR APPELLANT

** Honorable John Feikens, United States District J udge for the Eastern District of Michigan, sitting by designa tion.Michael Donahue, Esq. (Argued)

Community Legal Services
1424 Chestnut Street Philadelphia, PA 19102

COUNSEL FOR APPELLEES

OPINION

COWEN, Circuit Judge.

Appellants, the Philadelphia Housing Authority and its housing management personnel, Floyd Baker, Pamela Dunbar, and Claude Ross (collec tively "the PHA"), appeal the March 8, 1996, order of the district court granting summary judgment to Laticia Farley, a public housing tenant, and denying their cross-motion for summary judgment. The district court held that Farley had a cognizable claim under 42 U.S.C. § 1983, and ordered the PHA to fully comply with the arbitration award that directed it to make repairs to Farley's apartment.
The PHA contends that the district court did not have jurisdiction to enf orce the arbitration award, and erred in holding that Farley had a cognizable federal cause of actio n under § 1983 to enforce a public housing grievance award pursuant to 42 U.S.C. §§ 1437d(k) a nd 1983. We hold that the parties did not intend to limit enforcement of grievance awards to state court. We also hold that Farley can bring a § 1983 action to enforce her federal right to implement the grievance procedure provided for in the Housing Act.

I.

A. The United States Housing Act, 42 U.S.C. § 143 7 et seq., was designed to provide "decent, safe, and sanitary dwellings" within the f inancial reach of
families of low income. 42

U.S.C. § 1437 (1994). In order to encourage the construct ion and operation of low-income housing, the Act authorizes the Department of Housing and Urban Development (HUD) to provide grants, low-interest loans and tax exemptions to local publ ic housing agencies
known as PHAs. Becausethey receive federal subsidies, the PHAs are able t o charge below-market

rent to eligible lowincome tenants. In exchange for receiving public f unding, the local PHAs are required to operate public housing in compliance with the provisions of the Act. Section 1437d(k) is the provision at issue in this appeal. As amended in 1983, this section provides that each public housing agency mu st implement an administrative grievance procedure for the resolution of all tenant disputes concerning adverse PHA
action. It sets forth the grievance/arbitration procedure that the local PHAs must follow, as well as the rights to which tenants are entitled under that procedure. The history of § 1437d(k) and its accompanying regulations dates back to 1971, when HUD issued a series of public housing circulars req uiring the PHAs to recognize certain minimum tenant rights and provide an administrative grievance forum for tenant complaints concerning adverse PHA action. See U.S. Dept. Of H ousing and Urban Development Circulars RHM 7465.8 and 7465.9. In 1975, HUD codified the r equirements from the
circulars in the Code of Federal Regulations. The circulars are cur rently codified in 24 C.F.R. § 966 (1994). These regulations require the local PHAs to establi sh and implement grievance procedures that provide tenants with hearings if they dispute any P HA action or inaction concerning lease provisions or local regulations. See 24 C.F.R. §§ 9 66.50, 966.51(a), 966.53(a)(1994). The City of Philadelphia's specific grievance procedure is o utlined in the consent
decree entered in Brown v. Philadelphia Housing Authority, No. 72-2083 (E.D . Pa. Mar. 15, 1974)("Brown consent decree"); see also Stipulation and Order Supplement ing and Clarifying the Stipulation and Order of June 14, 1974, Brown v. Philadelphia Housing Aut hority, 72-2083 (E.D. Pa. Apr. 24, 1978). Farley seeks to enforce a specific regulation which states that grievance awards are binding on the local housing authorities and requir es them to "take all actions, or refrain from any actions, necessary to carry out the decision [o f the hearing officer]." 24 C.F.R. § 966.57(b) (1994). Her cause of action arises strictly under § 1437d(k). Regulation § 966.57(b) merely interprets that section.

B. Farley is a tenant of a building in Philadelph ia that is managed by the PhiladelphiaHousing Authority. She filed administrative grieva nces with PHA, seeking

a number of repairs to her rental unit. She also sought an abatement o f rent. Farley claimed that the repairs sought were necessary to prevent water from leaking into t he basement of her rental unit. These repairs included repair or replacement of the heater, repla cement of the windows, repair of the holes in the basement walls, repair of the leaking pipe in t he basement, and repairs as necessary to remedy the low water pressure throughout her unit. An arbitrator held a grievance hearing and ent ered an award in Farley's favor. The award
stated: 1. The Philadelphia Housing Authority shall inspect and repair
all items of a non-contract nature within thirty (30) days of the date of this Award. Any matters which re quire contract work
shall be noted and written advice thereof shall be provided Ms. Farley and
her counsel within thirty (30) days of this Award. All contracted work shall be completed within ninety (90) days of the date of this A ward.

2. Ms. Farley is awarded a Ten (10%) percent abatement of
rent for the period July 1, 1995 through such time as the requested repairs are completed. The
abatement shall be credited to Ms. F arley's rent account.

App. at 159. The PHA did not make the required repairs; nor did it give Farley the
rent abatement. Thereafter, Farley filed an action in the district court to enforce her grievance award. The matter was brought for resolution in the district court by cross-motions for summary judgment. The PHA argued that the district court lacked jurisdict ion to enforce the award or grant relief on what was basically a garden-variety state landlord/tenan t dispute. Holding that it had jurisdiction to hear the matter, the district court granted Farley' s motion for summary judgment and denied the PHA's cross-motion for summary judgment. This appe al followed.

II. The jurisdiction of the district court to hear this matter and enter judgment on the arbitrator's award, is the issue on appeal. The di strict court entertained subject matter jurisdiction over the action pursuant to 28 U.S.C. §§ 1331, 1337, 1343(a)(2),(3),(4) and §§ 2201,2202. We have appellate jurisdiction pursuant to 2 8 U.S.C. § 1291. We

exercise plenary review over questions of subject matter jurisdiction and t he district court's grant or denial of summary judgment. See Clark v. Clabaugh, 20 F.3d 1290, 129 2 (3d Cir. 1994); see also Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 ( 3d Cir. 1994); Brown v. Francis, 75 F.3d 860, 864 (3d Cir. 1996).

III. The PHA asserts that the district court had no jurisdiction under §
1983 to enforce Farley's grievance award. It argues that under the Brown consent agreement, the PHA consented only to the jurisdiction of the Pennsylvania state courts to enforce
arbitration awards. It further contends it had no reasonable expectation that it w ould be called upon to
defend arbitration enforcement proceedings in federal court. In support of its argument, the PHA states tha t the express terms of Brown incorporate the entire Pennsylvania Arbitration Act of 1927. I t also points to a provision in the 1978 amendment to Brown that reads, "[i]f either party s hould appeal an arbitrator's award, such appeal shall be governed by the provisions of the P ennsylvania Arbitration
Act of 1927." Stipulation and Order Supplementing and Clarifying the Stipulation and Order of June 14, 1974, App. at 55, para. 3. The PHA argues that inclusion of this paragraph in
the Brown consent agreement evidences the parties' intent to incorpor ate the entire Pennsylvania Arbitration Act of 1927. The PHA further cites a provision of the Pen nsylvania Arbitration Act that states, "[a]n appeal may be taken from an order confirming, modif ying, correcting, or vacating an award, or from a judgment entered upon an award, in accordanc e with the existing law in respect to appeals to the Supreme and Superior Courts." 5 P.S. § 175( a). Also brought to
our attention is a provision from the Pennsylvania Act stating that al l grievance awards
"shall have the same force and effect, in all respects as, and be subject to, all the provisions of law relating to a judgment in an action at law, and it may be enforced as such in accordance with existing law." 5 P.S. § 174. In addition, the PHA cites to a provision that stat es, "[t]he provisions of this act shall apply to any written contract to which the Commonwealth of P ennsylvania, or any agency or subdivision thereof, of any municipal corporation or political division of the
Commonwealth shall be aparty." 5 P.S. § 176. The PHA argues that, taken together, the abovecited provisions indicate that the parties consented solely to the jurisdicti on of Pennsylvania
state courts to enforce arbitration awards. We disagree. The Brown consent decree is a settlement agree ment between the PHA
and its tenants. We, therefore, construe it as a contract. See Penn walt Corp. v. Plough, Inc., 676 F.2d 77, 79 (3d Cir. 1982). The scope of the Brown decree "must be discerned within its four corners, and not by reference to what might satisfy the purposes of one of the parties to
it." United States v. Armour & Co., 402 U.S. 673, 682, 91 S.Ct. 1752, 175 7 (1971). Reading the above provisions (paragraph 3 of the Brown amendments and §§ 174, 17 5, and 176 of the Pennsylvania Act) and looking to the entire documents, we find nothing in the Brown consent agreement demonstrating that the parties intended that enforcement actions be brought exclusively
in state court. The Brown decree is completely silent concerni ng the method for
enforcement of arbitration awards. Paragraph 3 of the agreement d oes not incorporate the entire Pennsylvania Arbitration Act. It incorporates the Act only inso far as the Act concerns appeals of the award of
an arbitrator. The issue before the district court was not the propriety
of the arbitrator's resolution of the grievance, but only the enforceme nt of the award arising from that grievance. Looking to the four corners of the consent agreemen t, we conclude that the parties to that agreement intended that state court procedures woul d apply only to the appeal of arbitrators' awards, not the method by which awards were to be e nforced. Finally, we cannot accept the position of the PHA that the provisions
of the Arbitration Act are automatically incorporated into every contr act involving a Commonwealth agency. SeePennsylvania Turnpike Comm 'n v. Sanders & Thomas, Inc., 336 A.2d 609, 615 (Pa. 1975) (incorporation of Act has occurred only where the c ontract contained an arbitration clause); see also Monte v. Southern Delaware County Auth., 321 F .2d 870 (3d Cir. 1963). In Monte, this Court stated that it would not "oust federal jurisd iction . . . merely because the Authority, as an arm of the state, is a party to this agreement." I d. at 873. We held that under the specific Montecontract, arbitration awards could be confirmed only in the Pennsylvania Court of Common Pleas. We found that the parties in Monte intended to preclude federal court jurisdiction because the agreement in Monte contained a provision that i ncorporated the entire PennsylvaniaArbitration Act. Unlike the agreement in Monte, th e Brown consent decree

does not contain any such statement or any other indicia of intent to fo reclose the enforcement
of arbitration awards in
federal court. The PHA cites to DePaul v. Kauffman, 272 A.2d 500, 506 (Pa. 1971) for the proposition that statutory and regulatory provisions of law in force at the time the
Brown consent decree was entered became part of that agreement with the same effect as if expressly incorporated in its terms. Unlike the instant case, DePaul involved a constitutional challenge to the Pennsylvania Rent Withholding Act. The appellants in that case claimed the Act unconstitutionally impaired the obligation of contracts. The Pennsylvania Supr eme Court rejected their claim, stating, "[a]s applied to leases entered into or renewed after the effective date of the Act, there can be no ‘impairment', for the laws in force when a contract is entered into become part of the obligation of contract ‘with the same effect as if expressly i ncorporated in its terms.'" Id. (quoting Beaver County Bldg. & Loan Ass'n v. Winowich, 187 A. 481, 484 (Pa. 1936)). The

court went on to say, "[w]ith regard to leases that predate the effe ctive date of the Act,
it must be borne in mind that ‘the interdiction of statutes impairing the ob ligation of contracts does not prevent the state from exercising such powers as . . . are necessary for the general good of the public, though contracts previously entered into between individua ls may thereby be affected.'" Id. (quoting Home Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 437, 54 S.Ct. 231, 240 (1934)) (alteration in original). The resolution in DePaul is not precedent for the instant case. We
do not conclude that the Brown consent decree automatically incorporate s the Pennsylvania
Arbitration Act. In order to determine whether the Pennsylvania Act was incor porated into the Brown
consent decree we must consider the intent of the parties. See Halde rman v. Pennhurst State School & Hosp., 901 F.2d 311, 322 (3d Cir.), cert. denied, 498 U.S. 850 , 111 S.Ct. 140 (1990). Nothing in Brownevidences the intent of the parties to incorporate the entire Pennsylvania Act. Even if the parties did intend to incorporate the entire Pennsylvania A ct, (which we do not believe they did), the Pennsylvania Arbitration Act, like the Brown consen t decree, does not contain any provisions or procedures regarding enforcement. The Act provides only that awards that have been confirmed,modified or corrected shall be judgments which "may be enforced as such in

accordance with existing law." 5 P.S. § 174. Nothing in the Act r equires PHA tenants to
enforce their awards in

state court.

IV. Section 1983 provides a remedial device to enf orce rights under the
United States
Constitution and federal law. In Maine v. Thibouto t, 448 U.S. 1, 7-8, 100 S.Ct. 2502, 2506 (1980), the Supreme Court held that plaintiffs may invoke § 1983 to
redress violations of federal statutory law by state actors. The Supreme Court h as set forth two exceptions to this general rule. See Pennhurst State School and Hosp. v. Hald erman, 451 U.S. 1, 101 S.Ct. 1531 (1981); see also Middlesex County Sewerage Auth. v. Nationa l Sea Clammers Ass'n, 453 U.S. 1, 101 S.Ct. 2615 (1981). The Pennhurst exception applies where the statute did
not create enforceable rights within the meaning of § 1983. Pennhurst hol ds that Congress must
have intended for the federal statute at issue to create enforceable righ ts in the private party, not for it to merely state a preference or policy declaration. Id. at 19, 101 S .Ct. at 1541. Under the Sea Clammersexception, § 1983 cannot be invoked if Congress manifested
in the statute itself an intent to foreclose its private enforcement. In Sea Clammers , the Court found that in enacting the Federal
Water Pollution Control Act and the Marine Protecti on, Research, and
Sanctuaries Act of 1972 Congress devised comprehensive remedial schemes tha t provided for private
actions and left no room for additional private remedies under § 1983. See also Smith v. Robinson, 468 U.S. 992, 1012, 104 S.Ct. 3457, 3469 (1984)(indicating that a § 1983 action would be
inconsistent with Congress' carefully tailored remedial scheme in the Education of the Handicapped Act). Following this framework, we look to the Pennh urst and Sea Clammers exceptions to determine whether Farley has an enforceable federal right. In doing so, we must analyze the relevant statutory provisions "in light of the enti re legislative enactment." Suter v. Artist, M., 503 U.S 347, 357, 112 S.Ct. 1360, 1367 (1992). We must determine whether Congress intended the statutory provision to benefit the plaintiff. See Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106, 110 S.Ct. 444, 448 (198 9). Further, the statutory language must be mandatory, not merely precatory in nature. Pennhur st, 451 U.S. at 18, 101
S.Ct. at 1540.Finally, the right may not be "‘too vague and amorp hous' to be ‘beyond the

competence of the judiciary to enforce.'" Golden State, 493 U.S. at 106, 110 S.Ct. at 448 (quoting Wright v. City of Roanoke Redevelopment and Housing Auth., 479 U.S . 418, 431-32, 107 S.Ct. 766, 774-75 (1987)).

A. Farley's § 1983 claim does not fall within the Pennhurst exception. We conclude that by enacting 42 U.S.C. § 1437d(k), Congress intended to give public housing tenants a right to enforceable grievance awards. First, Farley, as a public housing tenant,
is an intended beneficiary of the procedures outlined in § 1437d(k ) and its accompanying HUD regulations. In another case involving the very same issue, the Uni ted States Court of Appeals for the District of Columbia examined the legislative history of § 1437 d(k), as well as the enforcement history of the circulars that § 1437d(k) codified. See Samuel s v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985). The Samuels court found "Congress clea rly intended to require
local PHAs to provide an administrative grievance procedure for t enant complaints of adverse PHA action, and nothing in the structure or history of the [Housing ] Act indicates that Congress intended to foreclose private enforcement of that obligation." Id. at 198. Samuels also found support in the fact that the provision "uniformly speaks of a tena nt's entitlement to particular procedural protections in the face of adverse PHA action." Id . at 197. Second, the language of § 1437d(k) and 24 C.F. R. § 966.57(b) is mandatory, specific, and clear. The language is not too vague or amorphous to be enforced by
courts. The Samuels court noted that before the codification of § 1437d(k), s everal courts of appeal
entertained tenant challenges to PHA action and inaction under the ori ginal grievance procedures as set forth in the circulars that pre-dated § 1437d(k). See Samuels, 770 F.2d at 198. These courts uniformly held that the grievance procedures were mandatory and bi nding on the PHAs. Id. Likewise, we conclude that in enacting the grievance procedure u nder the Housing Act, Congress intended to impose mandatory obligations on PHAs. Section 1437 d(k) and the accompanying regulations plainly set forth the grievance procedure that PHAs must follow. Section 1437d(k) is not a general policy section or a "'nudge in the preferre d direction[].'" Pennhurst, 451 U.S. at 19, 101S.Ct. at 1541 (quoting Rosado v. Wyman, 397 U.S. 39 7, 413, 90 S. Ct. 1207,

1218 (1970)) (alteration added). Rather, § 1437 confers enforce able rights within the meaning of Pennhurstand § 1983.

B. Farley's claim also does not fall within the S ea Clammers exception. The Supreme Court has held that in enacting the U.S. Housing Act, Con gress did not specifically foreclose a § 1983 remedy by enactment of a comprehensive scheme of re medial mechanisms. See Wright v. City of Roanoke Redevelopment and Housing Auth., 479 U.S . 418, 107 S.Ct. 766 (1987). Although Wright dealt with the Brooke Amendment, a provision under the Housing Act that imposes a rent ceiling on public housing, the Court also spoke gen erally about the Housing Act. First, the Supreme Court cautioned that courts should not "‘lightly
conclude that Congress intended to preclude reliance on § 1983 as a remedy' for the deprivation of a federally secured right." Id. at 423-24, 107 S.Ct. at 770 (q uoting Smith v. Robinson, 468 U.S. at 1012, 104 S.Ct. at 3468.) The Court then found support i n the fact that "HUD itself has never provided a procedure by which tenants could complain to it a bout the alleged
failures of PHA's to abide by . . . HUD regulations; nor has it taken unto its elf the task of reviewing PHA grievance procedure decisions." Id. at 426, 107 S.Ct. at 772 . The Court continued,
"HUD thus had no thought that its own supervisory powers or the grie vance system that it
had established foreclosed resort to the courts by tenants." Id. The Court concluded that nothing in the Brooke Amendment or elsewhere in the Housing Act evidences that Congress intended to supplant the § 1983 remedy. Id. at 429, 107 S.Ct. at 773. It als o noted "the statecourt remedy is hardly a reason to bar an action under § 1983, which was ado pted to provide a federal remedy for the enforcement of federal rights." Id. Adhering to W right, we must reject the PHA's argument that Farley should have litigated this garden-variety la ndlord/tenant case in

state court. The PHA argues that Wright is "not worthy of r eliance," and we should disregard it. Appellant's Br. at 17. The PHA also implies that W right has been put into question by a line of cases that has come after it, and is no longer good law. In making this assertion, the PHA cites specifically to Suter v. Artist M., 503 U.S. 347, 1 12 S.Ct. 1360 (1992). The PHA contends, first,that Suter changed the state of the law by announci ng that Congressional

intent is the most important factor in implying a private right of act ion. We do not find this argument persuasive. Prior to Suter, the Supreme Court certainly found i mportance in ascertaining whether Congress intended to create private rights. Indeed, in Wrig ht, the Court based its decision on its finding that Congress did not intend to preclude a § 1983 c ause of action for the
enforcement of tenants' rights secured by the Housing Act. Wright, 479 U.S . at 425, 107 S.Ct. at
771. Second, the PHA argues that in the years follo wing the Wright decision, the Supreme Court has disfavored implying private rights of act ion in spending statutes. Appellant's Br. at 43 (citing Suter v. Artist M, 503 U.S. 347, 112 S.Ct. 1360 (1992)(specific language in the Adoption Assistance and Child Welfare Act, a spending statut e, did not create a federally enforceable right under § 1983)). Although Congress's key purpose be hind the Housing Act was to provide funding for local housing authorities, the Supreme Court and other courts
have found that Congress also intended to establish tenant rights. See Wright v. City of Roanoke Redevelopment and Housing Auth., 479 U.S. 418, 107 S.Ct. 766 (198 7)(plaintiffs could bring a § 1983 action to enforce Brooke Amendment of Housing Act which impos es a rent ceiling); see
also Samuels v. District of Columbia, 770 F.2d 184 (D.C. Cir. 1985) (plaintiffs could bring § 1983 action to enforce grievance procedure under 1437d(k)); Concer ned Tenants Ass'n of Father Panik Village v. Pierce, 685 F. Supp. 316 (D. Conn. 1988)(plainti ffs could bring § 1983 action to enforce § 1437p, which mandates that local authorities obtain HUD approval of demolition). Moreover, although Suter, like this case, invo lved a spending statute, the specific statutory language at issue in Suter is completely distinguishable from the language in § 1437d(k). Suter involved a provision of the Adop tion Assistance and Child Welfare Act, 42 U.S.C. § 671(a)(15), which provides that states mus t make "reasonable efforts" to prevent
removal of children from their homes and to facilit ate reunification of
families where removal has occurred. The Court held that this language do es not confer an enforceable right upon the Act's beneficiaries. Instead, it found that the st atutory language "impose[d] only a rather generalized duty on the State."Suter, 503 U.S. at 363, 112 S.Ct. at 1370. By cont rast, § 1457d(k) does

not merely impose a general duty. Instead, it mandates the very grieva nce process that PHAs
must follow and details the rights to which the tenants are entitled. The Supreme Court did not sub silentio overrul e Wright in Suter. It remains good law. Wright held that by enacting the Housing Act, Congr ess intended to grant enforceable rights to tenants of public housing. Nothing in Suter or any other case alters this
conclusion.

V. The district court was correct that it had jur isdiction to enforce Farley's public housing
arbitration award. Nowhere in the Brown consent de cree did the parties
intend to limit
enforcement of awards to state court. The district court was also correct that Farley, a public housing tenant, could maintain a § 1983 action to e nforce her federal right to an enforceable grievance procedure as provided for in the Housing Act. We will affirm the May 8, 1996, order of the district court granting Farley's motion for summary judgment and denying the PHA's cross-motion for summary judgment.