Jaimes v. Lucas Metropolitan Housing Authority (LMHA)

WELLFORD, Circuit Judge,

dissenting in part and concurring in part:

In Selden Apartments v. U.S. Dept. of Housing & Urban Development, 785 F.2d 152, 158 (6th Cir.1986), we made it clear that a civil rights action seeking damages does not lie against HUD, “based on the limitations Burr1 placed on the waiver of HUD’s sovereign immunity.” The record in this case establishes that any “award” or judgment imposing affirmative relief in requiring an expenditure of funds against HUD is in effect an imposition of damages against that agency of the United States and is barred by the rationale of Selden.

In addition, our prior opinion in this case expressed our view that there was no persuasive finding of a direct relationship between the racially discriminatory conduct of LMHA and its officials, and the actions of HUD or its officials. In our previous treatment of this case, we directed the district court to make a finding concerning HUD’s waiver of sovereign immunity because we felt there was an insufficient link between the action of LMHA and its officials, and HUD.2 Jaimes v. Toledo Metropolitan Housing Auth., 758 F.2d 1086 (6th Cir.1985). This was not done, and I do not believe plaintiffs are entitled to yet another remand to establish such a liability claim.

This is not to say that HUD cannot be liable under certain limited circumstances. Plaintiff is entitled to make HUD a defendant for the purposes of receiving declaratory or injunctive relief, such as assisting LMHA to change its policies towards desegregating housing units. HUD and its officials do not, however, have “an affirmative legal duty to correct injustice wherever it exists,” but rather to “supply ‘technical’ assistance to ... organizations that are concerned with the problem of fair housing,” or to “ ‘withhold funds or defer action in the name of desegregation.’ ” Jaimes, 758 F.2d at 1104 (quoting Anderson v. City of Alpharetta, 737 F.2d 1530 (11th Cir.1984)) (emphasis added).

*1210 I would also limit the affirmative action order in this case to the type and extent of relief such as specified by Chief Judge Horton in Hale v. Department of Housing and Urban Development, No. C-73-410 (W.D.Tenn. August 23, 1985) [Available on WESTLAW, DCT database]. Particularly, I would limit its reach and effectiveness to six years as in that case because an “open ended” or indefinite term order of the type ordered by the district court here is inappropriate.

Therefore, I concur that prompt implementation of a limited and “narrowly tailored” affirmative action plan to assist in bringing about desegregation is permissible with primary liability directed against LMHA and its officials. I concur in the holding that HUD may not be liable for LMHA’s failure to construct low-income housing in municipalities outside Toledo. I dissent from the decision to remand for consideration of the liability of HUD to provide funding for additional LMHA staff people or for transfer expenses.

. F.H.A. v. Burr, 309 U.S. 242, 60 S.Ct. 488, 84 L.Ed. 724 (1940). Also cited in support of that ruling were United States v. Yonkers Board 594 F.Supp. 466 (S.D.N.Y.1984), and Little Earth v. HUD, 584 F.Supp. 1292 (D.Minn.1983).

. "A waiver of sovereign immunity 'cannot be implied but must be unequivocably expressed.’ ” Selden at 156, quoting United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969).