Expedited appeal from an order of the United States District Court for the Southern District of New York, Mary Johnson Lowe, Judge, denying plaintiff-appellant's motion for a preliminary injunction, joined in by defendant-appellant New York City Housing Authority, seeking to bar implementation of a regulation promulgated by defendant-appellee Samuel R. Pierce, Jr., as Secretary of the United States Department of Housing and Urban Development, in order to effectuate Congressionally mandated rent increases in federally assisted housing.
Mansfield and Meskill, Circuit Judges, and Neaher, District Judge.*fn* Mansfield, Circuit Judge (Dissenting).
The question presented by this expedited appeal is whether the district court abused its discretion in denying appellants' motions for a preliminary injunction barring the Secretary of the Department of Housing and Urban Development ("HUD") from enforcing interim rules he promulgated in order to carry out his responsibilities pursuant to the Omnibus Budget Reconciliation Act ("OBRA"), which became effective October 1, 1981. Pub. L. No. 97-35, 95 Stat. 357 (1981). That the case is here at all is somewhat ironic in view of Congress' explicit direction in enacting OBRA that:
"The Secretary's actions and determinations and the procedures for making determinations pursuant to this subsection shall not be reviewable in any court."
Id., § 322(i)(3), 95 Stat. at 400. Since we agree that appellants' claims are not likely to succeed on the merits, we affirm.
Appellant Roy Williams is a tenant in a federally subsidized low income housing project. Appellant New York City Housing Authority ("NYHA") is his landlord. Prior to the enactment of OBRA, the rental payable by a low income housing tenant such as Williams could not "exceed one-fourth [ i.e., 25%] of the family's income as defined by the Secretary." 42 U.S.C. § 1437a. Following the enactment of OBRA, the Secretary of HUD on May 4, 1982, published interim rules required by OBRA's amendments to the United States Housing Act of 1937, as amended. Those amendments provided for increases in the rent of tenants in public and Section 8 housing commencing October 1, 1981, which could be spread over a five-year period with exceptions hereinafter noted.
Under his lease with NYHA Williams' rent may be redetermined annually or for interim periods according to amended rent schedules posted by NYHA. His landlord's present schedule of compliance with the Secretary's new regulations will not lead to a rent increase for Williams until February 1, 1984. Nonetheless, he brought this action as a class plaintiff to enjoin the implementation of the Secretary's regulations, naming NYHA as a co-defendant and claiming violation of the due process clauses of the fifth and fourteenth amendments, the Administrative Procedure Act ("APA"), 5 U.S.C. § 551 et seq., HUD's own regulations, 24 C.F.R. § 10.1 et seq., and the civil rights laws, 42 U.S.C. § 1983. NYHA elected to join its tenant in seeking a preliminary injunction, hence its appearance as a co-defendant.
Pursuant to the United States Housing Act, the Secretary of HUD has been authorized since 1937 to make grants of federal funds to state public housing agencies for low income housing programs. He was also empowered to
"prescribe regulations fixing the maximum contributions available under different circumstances, giving consideration to cost, location, size, rent-paying ability of prospective tenants, or other factors bearing upon the amounts and periods of assistance needed to achieve and maintain low rentals."
42 U.S.C. § 1437 et seq. In 1969 the federal role and contributions for the support of public housing increased significantly when Congress authorized the Secretary to provide operating subsidies for public housing authorities and to extend assistance payments to owners who leased housing units to low or very low income families. In fiscal 1983 the amount appropriated by Congress for such purposes was $1,350,000,000.*fn1
OBRA was enacted after considerable debate in Congress in order "to reverse the growth of federal spending by systematically reducing the level of expenditures in a wide range of federal programs." Philadelphia Citizens in Action v. Schweiker, 669 F.2d 877, 878 (3d Cir. 1982). One of the affected programs was federally-assisted housing. A step in this direction had already been taken in 1979 when, except for very low income families, the rental ceiling for such housing was raised to permit rental charges of up to 30% of monthly adjusted income. See 42 U.S.C. § 1437a (Supp. IV 1980). Under OBRA, however, a uniform formula was adopted by Congress requiring all occupants of public and other federally-assisted housing to pay the highest of the following amounts: 30% of the family's monthly adjusted income,*fn2 or 10% of the family's total income, or whatever portion of monthly welfare assistance payments was specifically designated for housing costs. OBRA, § 322(a), 95 Stat. at 400 (codified at and superseding 42 U.S.C. § 1437a).
Although Congress decreed that the new rent levels were to become effective as of October 1, 1981, it was not unmindful that its action would place a burden upon tenants in federally-assisted housing. To ease that burden, it gave the Secretary authority to "provide for delayed applicability, or for staged implementation" of the new rent levels for existing occupants and, under narrower circumstances, for new tenants, i.e., those who commenced occupancy after October 1, 1981. § 322(i)(1) and (2). Moreover, annual rent increases for current tenants based upon OBRA were limited to 10% of the previous rent. Id. Finally, although Congress required that any phase-in for affected tenants ...