Thetford Properties IV Ltd. Partnership v. U.S. Department of Housing & Urban Development
Opinion of the Court
Thetford Properties IV Limited Partnership (“Thetford”) and Baker Street Associates (“Baker”) appeal from the district court’s order dismissing their claims for failure to exhaust their administrative remedies. Finding no error, we affirm.
I.
A. Statutory Background
In 1961, Congress incorporated into § 221(d)(3) of the National Housing Act a program to encourage the private development of low- to moderate-income (“lower income”) housing. 12 U.S.C. § 1715Z(d)(3). The program, administered by the Department of Housing and Urban Development (“HUD”), made insured low interest 40-year mortgages available to developers to facilitate the construction and maintenance of qualified housing. Pursuant to regulatory agreements between HUD and the developers, the savings from these mortgages had to be passed on in the form of lower rents for the tenants, who were required to be of lower income. These agreements, however, as well as the mortgages themselves, expressly allowed the owners of the properties, without HUD’s prior consent, to prepay their mortgages at the end of 20 years, thereby terminating HUD insurance and withdrawing the properties from the program. See 24 C.F.R. § 221.524(a) (1989). The property owners would then be free to sell or rent their properties on the open market.
By its own terms, the Act was to expire two years after its effective date, on February 5, 1990. Id. at § 203(a). The expiration date was recently extended by Congress until September 30, 1990, through the Department of Housing and Urban Development Reform Act of 1989. Pub.L. No. 101-235, 103 Stat.1987 (1989).
B. The Instant Dispute
Thetford owns a multi-family housing project in Raleigh, North Carolina, which participates in the program. Baker owns a participant project in Dover, New Jersey. Thetford filed its notice of intent to prepay on September 21, 1988; Baker filed on May 9, 1988. Although HUD gave both parties the necessary information to file a plan of action, neither has taken any steps to do so. On October 25, 1988, appellants filed this action in district court, on behalf of themselves and a class of property owners who are unable to prepay because of the Act.
II.
Appellants urge us to find that the unique circumstances of their case remove them from the long-standing rule that a litigant must exhaust his administrative remedies before seeking redress in federal court. They argue that where, as here, the only issue in dispute is the constitutionality of a statute, exhaustion is not required because an administrative agency cannot make such a constitutional determination. They further contend that exhaustion should not be required because to make them vindicate their contractual rights through the administrative process is part and parcel of the due process violation caused by the loss of their unconditional right to prepay. They also contend that the Act’s administrative procedures are inadequate and, consequently, that they should not be burdened by having to see them through. Lastly, they maintain that their submission to the Act’s administrative procedures would be futile because, under the existing regulations, they cannot quali
We begin by acknowledging the “long settled rule of judicial administration that no one is entitled to judicial relief for a supposed or threatened injury until the prescribed administrative remedy has been exhausted.” Meyers v. Bethlehem Shipbuilding Corp., 303 U.S. 41, 50-51, 58 S.Ct. 459, 463-64, 82 L.Ed. 638 (1938). The exhaustion requirement serves many purposes, see, e.g., McKart v. United States, 395 U.S. 185, 193-95, 89 S.Ct. 1657, 1662-63, 23 L.Ed.2d 194 (1969), not the least of which are to allow an agency the opportunity to use its discretion and expertise to resolve a dispute without premature judicial intervention and to allow the courts to have benefit of an agency’s talents through a fully developed administrative record. We find these prudential considerations no less weighty when an administrative litigant raises a constitutional challenge to a statute which an agency is charged with enforcing.
First, as we made clear in American Fed. of Gov’t Employees, AFL-CIO v. Nimmo, 711 F.2d 28, 31 (4th Cir. 1983), "exhaustion is particularly appropriate when the administrative remedy may eliminate the necessity of deciding constitutional questions.” See also Aircraft & Diesel Equip. Corp. v. Hirsch, 331 U.S. 752, 772, 67 S.Ct. 1493, 1503, 91 L.Ed. 1796 (1947); Public Utilities Commission of California v. United States, 355 U.S. 534, 539-40, 78 S.Ct. 446, 450-51, 2 L.Ed.2d 470 (1958) (“If ... an administrative proceeding might leave no remnant of the constitutional question, the administrative remedy plainly should be pursued.”) This principle is nothing more than a necessary corollary to the “fundamental rule of judicial restraint” that a court “ought not to pass on questions of constitutionality unless such adjudication is unavoidable.” Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997, 86 L.Ed.2d 664 (1985). Although appellants contend otherwise, both the statute and the implementing regulations make clear that, under certain circumstances, HUD has the authority to grant them the ultimate economic relief that they seek — prepayment and withdrawal from the program. See 12 U.S.C. § 1715Z note § 225; 24 C.F.R. § 248.221. Further, if they choose to remain in the program, the statute also allows HUD to offer appellants economic incentives to give them a “fair return” on their investment. 12 U.S.C. § 1715Z note § 224; 24 C.F.R. § 248.231. Thus, requiring exhaustion here may very well lead to a satisfactory resolution of this controversy without having to reach appellants’ constitutional challenge.
Even if HUD and appellants cannot resolve this dispute, exhaustion will still have served vital purposes. Aside from the readily apparent benefits of a fully developed administrative record, the reviewing court will also have the considerable benefit of the agency's interpretation of the Act as applied to appellants’ plans of action.
The Act was intended by Congress as a temporary measure to deal with the intractable problem of affordable housing for lower income Americans. Orrego v. HUD, 701 F.Supp. 1384, 1386-88 (N.D.Ill. 1988). It attempts to balance this concern against the property owners’ contract right to prepay by allowing for prepayment whenever HUD determines that certain criteria have been met. HUD’s application of the Act to appellants will necessarily involve consideration of these competing concerns and interpretation of the very prepayment provisions which appellants challenge. These interpretations will be due great deference, e.g., Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843-45, 104 S.Ct. 2778, 2781-82, 81 L.Ed.2d 694 (1984), and will provide valuable insight as to the Act’s constitutionality in practice. Thus, even though HUD cannot rule on the Act’s ultimate constitutionality, exhaustion will nonetheless be an important step if a reviewing court must make that determination.
Consequently, we must reject appellant’s argument that, as a general rule, exhaustion is not necessary where administrative litigants raise constitutional challenges. Of course, in the rare case when a statute is patently unconstitutional or an agency has taken a clearly unconstitutional posi
In sum, the constitutional focus of appellants’ claim does not relieve them of their obligation to pursue and exhaust their remedies before HUD.
III.
Appellants’ argument that exhaustion should not be required because submission to the administrative process is part of the alleged due process violation confuses the issue. The gravamen of appellants’ due process challenge is not the procedure for approving prepayment itself, but rather is Congress’ ability to constitutionally condition prepayment at all. Appellants’ claim, as we understand it, is that, in an effort to shift the cost of housing lower-income Americans to appellants, Congress has repudiated its contractual obligation to allow prepayment and withdrawal from the program in violation of the due process clause of the Fifth Amendment. See Perry v. United States, 294 U.S. 330, 55 S.Ct. 432, 79 L.Ed. 912 (1935); Lynch v. United States, 292 U.S. 571, 54 S.Ct. 840, 78 L.Ed. 1434 (1934). Thus, this is not a case where the adequacy of the administrative remedy is “for all practical purposes identical” to the merits of the underlying claim, such that exhaustion is not required. See Gibson v. Berryhill, 411 U.S. 564, 575, 93 S.Ct. 1689, 1696, 36 L.Ed.2d 488 (1973). The adequacy of this procedure is an issue wholly separate from the constitutionality of Congress’ conditioning of prepayment. Furthermore, as previously discussed, remedies before HUD may very well ameliorate any damages suffered because of this alleged constitutional violation. Consequently, appellants are not relieved of the exhaustion requirement.
IV.
Neither do we find support for appellants’ contentions that HUD’s procedures are inadequate or that resort to them would be futile. To be sure, no litigant is obliged to exhaust inadequate administrative procedures. Greene v. United States, 376 U.S. 149, 163, 84 S.Ct. 615, 623, 11 L.Ed.2d 576 (1964); Sanders v. McCrady, 537 F.2d 1199, 1201 (4th Cir. 1976). Appellants, however, have made no showing that the remedies made available by HUD are inadequate. As discussed above, the administrative process is certainly adequate in that it can give appellants what they ultimately seek, prepayment and withdrawal from the program. And, unlike the situation in Coit Independence Joint Venture v. Federal Savings and Loan Insurance Corp., 489 U.S. 561, 109 S.Ct. 1361, 103 L.Ed.2d 602 (1989), where the FSLIC’s process for adjudicating claims in effect denied claimants their day in court by imposing no well-defined time limits for agency action, HUD’s regulations demand prompt processing of submitted plans of action. See, 24 C.F.R. §§ 248.212(c), 248.215, 248.-219(a).
V.
In sum, we find no reason why appellants should not fully litigate their claims before HUD. Accordingly, the district court’s order dismissing the case for failure to exhaust administrative remedies is affirmed.
AFFIRMED.
. Although filed as a class action, appellants never moved to certify the class. Thus, the only property owners directly affected by the outcome of this case are appellants.
. The Supreme Court's holding in Public Utilities is not to the contrary. In ruling that the federal government was excused from exhausting the state agency’s administrative remedies, the Court stated that "where the only question is whether it is constitutional to fasten the administrative procedure onto the litigant, the administrative agency may be defied and judicial relief sought as the only effective way of protecting the asserted constitutional right.” Id. 355 U.S. at 540, 78 S.Ct. at 451. That statement, however, was expressly conditioned on the Court’s finding that proceedings before the state agency could not possibly obviate the need to decide the constitutional question. Id. at 539, 78 S.Ct. at 450. As demonstrated above, the proceedings contemplated by the Act most certainly do present that possibility. Consequently, in the words of the Public Utilities Court, “the administrative remedy plainly must be pursued." Id. at 539, 78 S.Ct. at 450.
. Appellants rely on the fact that as of September 1989, HUD had approved only 3 of 32 submitted plans of action, and allowed only one prepayment to argue that this process is inadequate. Only Three Plans of Action Approved Under 1987 Law, 17 Housing & Dev. Rptr. 398.
Reference
- Full Case Name
- THETFORD PROPERTIES IV LIMITED PARTNERSHIP, on behalf of itself and as representative of the class defined herein Baker Street Associates, on behalf of itself and as representative of the class defined herein v. U.S. DEPARTMENT OF HOUSING & URBAN DEVELOPMENT Jack Kemp, Secretary, Department of Housing and Urban Development
- Cited By
- 1 case
- Status
- Published