Stephen Furtick and his three children Sanhita Veronica and Crystal (the "Furticks") commenced this action against the Medford Housing Authority (the "Authority") the Department of Housing and Urban Development ("HUD") and the present secretary of HUD Andrew M. Cuomo ("Cuomo") in his official capacity. *fn1 The Furticks claim that the defendants' policies practices and procedures have created and perpetuated racial discrimination within the federal Section 8 Existing Housing Program. *fn2 Specifically the Furticks allege that 1) the residency preference used by the Authority in distributing Section 8 vouchers has a disparate impact on African-Americans because the majority of Medford residents are white; 2) HUD has failed to fulfill its constitutional and statutory obligations to monitor the criteria used by the Authority to determine who may receive a Section 8 voucher; and 3) Cuomo breached his duty to ensure HUD's compliance with the law. *fn3 The Furticks seek declamatory and injunctive relief *fn4 monetary damages *fn5 Counsels' fees and costs against all defendants.

Cuomo and HUD have moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). *fn6 They contend that 1) the Furticks lack standing to pursue their claims for injunctive and declamatory relief; 2) the Furticks may not pursue their claims for monetary damages under the United States Housing Act 42 U.S.C. SEC.(s) 1437 1441 and 1441a because those provisions do not confer a private right of action; and 3) all of the Furticks' claims for monetary damages are barred by sovereign immunity.

I. BACKGROUND

Under the Section 8 Existing Housing Program HUD authorizes local public housing authorities ("PHA's") to issue federally-funded vouchers to eligible low income families. 42 U.S.C. SEC. 1437f(b). A Section 8 voucher entitles a family to have the PHA pay a portion of its rent directly to its landlord provided that the landlord meets certain eligibility requirements. Id. Under HUD's supervision the PHA's determine which applicants receive the vouchers and which privately-owned residences meet the eligibility criteria for leasing to qualified applicants. 42 U.S.C. SEC. 1437f(c) (o). *fn7

To obtain a Section 8 voucher an eligible family must apply directly to a PHA such as the Authority. 42 U.S.C. SEC. 1437f. The PHA then places the family on a waiting list according to the date of application and certain selection preferences. Some of these preferences known as "federal preferences " are statutorily mandated (e.g. preferences for families who have been involuntarily displaced and are homeless families who live in substandard housing and families that pay more than fifty percent of their income for rent). 42 U.S.C. SEC. 1437f(o)(B). "Non-federal preferences " in contrast are those preferences which are proposed by a local PHA and if approved by HUD incorporated into the PHA's administrative plan. Id.; 24 C.F.R. SEC. 982.207. The residency preference at issue in this case is an example of a non-federal preference.

On October 20, 1992 Stephen Furtick on behalf of himself and two of his daughters *fn8 submitted an application to the Authority for a Section 8 voucher. *fn9 On January 11, 1993 the Authority placed the Furticks' application on the waiting list for two-bedroom apartments. At that time the Authority ranked applicants on its waiting list in the following order: 1) residents of Medford who qualify for a federal preference; 2) non-residents who qualify for a federal preference; 3) residents of Medford who do not qualify for a federal preference; and 4) non-residents who do not qualify for a federal preference. At the time of their application the Furticks qualified for a federal preference but did not live in Medford and thus were placed in the second category.

On September 28, 1993 the Furticks filed an administrative complaint with HUD claiming that the Authority's residency preference discriminated against them on the basis of race in violation of the Fair Housing Act 42 U.S.C. SEC.(s) 3601-3619. On April 11, 1995 HUD issued a Determination of Reasonable Cause and Charge of Discrimination against the Authority. HUD found that 1) whites constituted 72% of the Authority's applicant pool and received 89% of the vouchers while African-Americans constituted 17% of the applicant pool but received only 9% of the available vouchers and 2) the residency preference used by the Authority accounts for this racially disproportionate allocation of Section 8 benefits. But on July 25,1995 HUD withdrew its Determination of Reasonable Cause and Charge of Discrimination and in August 1995 HUD dismissed the Furticks' administrative complaint.

The Furticks lived in homeless shelters and transitional housing in the Greater Boston area from August 1992 until July 1995 when they received a voucher from another public housing authority and secured a residence with that voucher. On October 18 1995 the Furticks filed suit in this Court.

II. DISCUSSION

A motion for judgment on the pleadings tests the legal sufficiency of the complaint not the plaintiffs' likelihood of ultimate success. "The standard for evaluating a Rule 12(c) motion for judgment on the pleadings is essentially the same as the standard for evaluating a Rule (12)(b)(6) motion." Nedder v. Rivier College 944 F. Supp. 111 120 (D.N.H. 1996) (quoting Metromedia Steakhouses Co. v. Resco Management Inc. 168 B.R. 483 485 [D.N.H. 1994]). A court may grant a dismissal on the pleadings "only if 'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Gaskell 3 F.3d at 497-98 (quoting Conley v. Gibson 355 U.S. 41 45-46 2 L. Ed. 2d 80 78 S. Ct. 99 [1957]).

A. Standing for Declamatory and Injunctive Relief

Under the Constitution a federal court has but limited jurisdiction and can hear only disputes that raise an actual "case or controversy" between the parties before it. U.S. Const. art. 3 SEC. 2; see Allen v. Wright 468 U.S. 737 750 82 L. Ed. 2d 556 104 S. Ct. 3315 (1984). The standing requirement that arises from this language in Article III ensures that cases "will be presented in an adversary context and in a form historically viewed as capable of judicial resolution." Flast v. Cohen 392 U.S. 83 101 20 L. Ed. 2d 947 88 S. Ct. 1942 (1968). "It is for that reason that the emphasis in standing problems is on whether the party invoking federal court jurisdiction has 'a personal stake in the outcome of the controversy.'" Id. (quoting Baker v. Carr 369 U.S. 186 204 7 L. Ed. 2d 663 82 S. Ct. 691 [1962]).

A plaintiff satisfies the constitutional requirements for standing when she alleges a "personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." Allen 468 U.S. at 751 (citation omitted); see also Northeastern Fla. Chapter of the Associated Gen. Contractors of Am. v. City of Jacksonville 508 U.S. 656 663-64 124 L. Ed. 2d 586 113 S. Ct. 2297 (1993). "The responsibility for 'clearly and specifically setting forth facts sufficient to satisfy the Article III standing requirements' rests with the claimant." Adams v. Watson 10 F.3d at 915 919 (1st Cir. 1993) (quoting Whitmore v. Arkansas 495 U.S. 149 155-56 109 L. Ed. 2d 135 110 S. Ct. 1717 [1990]). *fn10

Cuomo and HUD argue that the Furticks lack standing to pursue their claims for declamatory and injunctive relief. *fn11 The Furticks already possess a Section 8 voucher -- albeit one obtained from another housing authority - and thus are free to live anywhere in the Commonwealth including Medford. See Williams v. Hanover Hous. Auth. 926 F. Supp. 10 12-13 (D. Mass. 1996) (citing Williams v. Hanover Hous. Auth. 871 F. Supp. 527 534 [D. Mass. 1991]) (noting that housing agencies agreed to accept prior ruling by this Court that policy of restricting where recipients of Section 8 vouchers may live violates state law). *fn12 Accordingly any order issued by this Court requiring HUD to prohibit the use of residency preferences in the application process for Section 8 vouchers would not redress harms presently being suffered by the Furticks. As the Supreme Court reiterated in Lujan v. Defenders of Wildlife 504 U.S. 555 119 L. Ed. 2d 351 112 S. Ct. 2130 (1992) "past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing present adverse effects." Id. at 564 (quoting O'Shea v. Littleton 414 U.S. 488 495-96 38 L. Ed. 2d 674 94 S. Ct. 669 [1974]).

The Furticks counter that even though they already possess a Section 8 voucher they stand to benefit from the equitable relief sought because there is a possibility that they will lose their current section 8 voucher apply for a new voucher with the Authority and again be subject to the residency preference. The Constitution however requires more than the mere possibility that the Furticks will be injured in the future. The plaintiffs must allege facts that indicate a "real or immediate threat that [they] will be wronged again -- a 'likelihood of substantial and immediate irreparable injury.'" City of Los Angeles v. Lyons 461 U.S. 95 111 75 L. Ed. 2d 675 103 S. Ct. 1660 (1983) (quoting O'Shea 414 U.S. at 502); see also Lujan 504 U.S. at 564 (threat of future injury must be "imminent"). In Lyons the Supreme Court held that the possibility that the plaintiff would again be stopped by a police officer and subjected to the choke hold he sought to enjoin was too speculative to confer standing. Id. at 105 111; see also American Postal Workers Union v. Frank 968 F.2d 1373 1377 (1st Cir. 1992) (current union members lack standing to challenge Postal Service policy of drug testing job applicants because as current employees the plaintiffs do not face "a realistic risk of future exposure" to the testing). *fn13 By the same token here the possibility that the Furticks will again be subject to the residency preference is "far too speculative " see Frank 968 F.2d at 1376 to confer standing. *fn14

The Furticks also assert that the continued use of the residency preference by the Authority perpetuates racially segregated housing patterns and denies them the "benefits of living in a racially integrated society." Plaintiffs' Opposition to Federal Defendants' Motion to Dismiss at 6; see generally Charles M. Haar Suburbs Under Seige: Race Space and Audacious Court 3-8 200-08 (1996). The Supreme Court however has long recognized that this type of "generalized grievance" is insufficient to confer standing. See Schlesinger v. Reservists Comm. to Stop the War 418 U.S. 208 216-27 41 L. Ed. 2d 706 94 S. Ct. 2925 (1974); Lujan 504 U.S. at 575 (quoting Ex parte Levitt 302 U.S. 633 634 82 L. Ed. 493 58 S. Ct. 1 [1937]) ("It is an established principle . . .'that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as the result of that action and it is not sufficient that he has merely a general interest common to all members of the public.'"). As the Furticks already possess a Section 8 voucher permitting them to live anywhere in the Commonwealth the only direct non-generalized harm asserted in the Complaint -- the alleged discrimination in the application process for Section 8 vouchers -- no longer impacts the Furticks in any way that this Court might redress through equitable relief. The Furticks' rights are to be free of invidious discrimination not to reorder society more to their liking. However desirable might be the Furticks' ultimate goal it is difficult to see what order this Court could enter that would affect their current living arrangements.

The Furticks have however pled another injury in fact which might conceivably form a basis for standing -- HUD's alleged mishandling of the investigation and adjudication of their administrative complaint. The Administrative Procedure Act provides that "[a] person suffering a legal wrong because of agency action or adversely affected or aggrieved by agency action within the meaning of a relevant statute is entitled to judicial review thereof." 5 U.S.C. SEC. 702; see also N.A.A.C.P. v. Secretary of Hous. & Urban Dev. 817 F.2d 149 152 (1st Cir. 1987). In order to maintain a claim pursuant to the Administrative Procedure Act however a plaintiff must satisfy the Article III requirements for standing. Simon v. Eastern Ky. Welfare Rights Org. 426 U.S. 26 38 48 L. Ed. 2d 450 96 S. Ct. 1917 (1976) (citing Association of Data Processing Serv. Orgs. Inc. v. Camp 397 U.S. 150 152 25 L. Ed. 2d 184 90 S. Ct. 827 [1970]). Although "there is no question that a 'procedural injury' can constitute an injury in fact for the purpose of establishing standing " such a procedural injury must also "impair a separate concrete interest." Yesler Terrace Community Council v. Cisneros 37 F.3d 442 446 (9th Cir. 1994) (citing Lujan 504 U.S. at 572). Here that interest is absent because he Furticks already possess a portable Section 8 voucher. As the Furticks have failed to demonstrate an injury likely to be redressed by declaratory or injunctive relief any exercise of jurisdiction by this Court "would be gratuitous and thus inconsistent with the Article III limitation." Simon 426 U.S. at 38. *fn15

B. The Furticks' Claims for Monetary Damages

1. The United States Housing Act Claims

In Count VIII of the Complaint the Furticks aver that Cuomo and HUD

by failing to administer the Section 8-Existing Housing Program in Medford in a manner which insures decent affordable housing and equal housing opportunities to all Americans and by failing to eradicate racial segregation in the Section 8 rental housing program in Medford have violated federal housing policy established by the United States Housing Act of 1937 42 U.S.C. SEC. (s) 1437 1441 and 1441a.

Compl. P 66. Cuomo and HUD argue that sections 1437 1441 and 1441a do not confer a private right of action to support the Furticks' claims for monetary damages. *fn16 The Furticks respond that although these provisions do not expressly provide for a private right of action one may properly be implied.*fn17

The Supreme Court has articulated a four-part inquiry to determine if a statute implies a private right of action: 1) whether the plaintiff is a member of the class for whose "especial benefit" the statute was enacted; 2) whether there is any indication of legislative intent to create or deny the remedy sought; 3) whether an implied remedy would be "consistent with the underlying purposes" of the statutory scheme; and 4) whether "the cause of action [is] one traditionally relegated to state law" such that it would be inappropriate to imply a federal remedy. Cort v. Ash 422 U.S. 66 78 45 L. Ed. 2d 26 95 S. Ct. 2080 (1975) (citations omitted). The second factor however is of primary importance. See Thompson v. Thompson 484 U.S. 174 179 98 L. Ed. 2d 512 108 S. Ct. 513 (1988) (holding that the other Cort factors are useful only as "guides to discerning [Congressional] intent"). Furthermore in assessing these factors there is a presumption against an implied right of action. Stowell v. Ives 976 F.2d 65 70 n.5 (1st Cir. 1992); see also Sterling Suffolk Racecourse Ltd. Partnership v. Burrillville Racing Ass'n 989 F.2d 1266 1271 (1st Cir.) cert. den. 510 U.S. 1024 126 L. Ed. 2d 593 114 S. Ct. 634 (1993) ("a statutory provision phrased as a command to specific people is unlikely to breed an implied private right of action because such language usually evinces a congressional concern with instructing the putative violator rather than with providing a remedy to the putative victim").

Applying these principles this Court holds that although low income families in need of affordable housing are intended beneficiaries of sections 1437 1441 and 1441a see Falzarano v. United States 607 F.2d 506 509 (1st Cir. 1979) these provisions contain only broad declarations of housing policy which Congress did not intend be transferred into a private right of action for monetary damages. "Unless congressional intent to allow the private right of action 'can be inferred from the language of the statute the statutory structure or some other source the essential predicate for implication of a private remedy simply does not exist.'" Royal Bus. Group Inc. v. Realist Inc. 933 F.2d 1056 1060 (1st Cir. 1991) (quoting Thompson 484 U.S. at 179). Other courts that have examined the language structure and legislative history of sections 1437 1441 and 1441a have similarly concluded that Congress did not intend to create a private right of action. See Perry v. Housing Auth. Of Charleston 664 F.2d 1210 1216-17 (4th Cir. 1981) (no private right of action under sections 1437 1441 and 1441a); Cedar-Riverside Assocs. Inc. v. City of Minneapolis 606 F.2d 254 257-59 (8th Cir. 1979) (no private right of action under sections 1441 and 1441a); Edwards v. District of Colombia 628 F. Supp. 333 340 (D.D.C. 1985) aff'd 261 U.S. App. D.C. 163 821 F.2d 651 (D.C. Cir. 1987) (no private right of action under section 1437); West Zion Highlands v. City of Zion 549 F. Supp. 673 676 (N.D. Ill. 1982) (no private right of action under section 1441); Thompson v. Binghamton Hous. Auth. 546 F. Supp. 1158 1181-83 (N.D.N.Y. 1982) (no private right of action under section 1437). *fn18

2. Sovereign Immunity for the Remaining Damage Claims

The Furticks also seek to recover monetary damages from Cuomo and HUD for their alleged violations of 42 U.S.C. SEC.(s)1981 and 1982 42 U.S.C. SEC.(s) 3604 and 3608 42 U.S.C. SEC. 2000d et seq. and the Fifth Amendment. Cuomo and HUD contend that all of these remaining claims are barred under the doctrine of sovereign immunity. *fn19 The Furticks counter that the United States has waived its sovereign immunity with respect to these claims.

A waiver of sovereign immunity must be "unequivocally expressed in [the] statutory text." Lane v. Pena 135 L. Ed. 2d 486 __U.S. __ 116 S. Ct. 2092 2096 (1996) (citing United States v. Nordic Village Inc. 503 U.S. 30 33-34 117 L. Ed. 2d 181 112 S. Ct. 1011 [1992]). "To sustain a claim that the Government is liable for awards of monetary damages the waiver of sovereign immunity must extend unambiguously to such monetary claims." Id. at 2096-97 (citation omitted). Such a waiver will not be implied and will be strictly construed in favor of the sovereign. Id. at 2096 (citation omitted). *fn20

In arguing that the United States has waived its sovereign immunity with respect to all of their claims for monetary damages the Furticks rely exclusively upon 42 U.S.C. SEC. 1404a. That provision however merely provides that "the Secretary of [HUD] may sue and be sued only with respect to its functions under the United States Housing Act of 1937 as amended [42 U.S.C. SEC.1437 et seq.]." *fn21 As Section 1404a does not "unequivocally express" an intent to extend this waiver to claims alleging violations of other housing acts or more generalized civil rights statutes this Court holds that the Furticks' remaining claims for monetary damages are barred by sovereign immunity. *fn22

III. CONCLUSION

For the foregoing reasons the motion of Cuomo and HUD for judgment on the pleadings is hereby GRANTED in its entirety.

WILLIAM G. YOUNG

UNITED STATES DISTRICT Court