ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Before: WEIS, BECKER, Circuit Judges, and CAHN, District Judge*fn*
At issue in this appeal is that part of a district court order which requires appellant Secretary of Housing and Urban Development ("HUD") to implement a tenant-comment procedure for identifying unreasonable provisions in leases of federally subsidized housing. Because we find that neither the governing statute nor HUD's own rulemaking regulations provide for this additional procedure, we will reverse that part of the district court's order. The remainder of the order will be affirmed.
Lutul Love and Larry Brown are tenants of Westgate Village Properties, a Pittsburgh housing project subsidized by HUD pursuant to sections 221(d) and 236 of the National Housing Act, as amended, 12 U.S.C. §§ 17151(d), 1715z-1 (1976 & Supp. V 1981), and section 8 of the Housing Act of 1937, as amended, 42 U.S.C.§ 1437(f) (1976 & Supp. IV 1980).*fn1 In early 1980, their landlords instituted summary eviction proceedings because appellees were keeping dogs*fn2 in their apartments in violation of the "no pets" provision in their leases.*fn3 Judgments of possession were entered against both Mr. Love and Mr. Brown.
On July 29, 1980, appellees filed suit in district court to enjoin enforcement of the judgments of possession. They alleged three grounds for relief. First, appellees contended that their landlord had violated the eviction procedures prescribed by HUD regulations. See 24 C.F.R. §§ 886.122, 450.1-.7 (1982). Second, they alleged that the eviction procedures, as well as other terms, specified in their lease agreements were unreasonable.*fn4 Finally, appellees argued that HUD had failed to comply with sections 202(b)(3) and 202(c) of the Housing and Community Development Amendments of 1978, 12 U.S.C. § 1715z-1b(b)(3), (c) (Supp. V 1981). Those sections require the Secretary of HUD to promulgate regulations prohibiting unreasonable lease provisions in rental agreements for HUD-subsidized housing:
(b) The Secretary shall assure that --
(3) leases approved by the Secretary provide that tenants may not be evicted without good cause or without adequate notice of the reasons therefor and do not contain unreasonable terms and conditions. . . .
(c) The Secretary shall promulgate regulations to carry out the provisions of this section not later than 90 days after October 31, 1978.
In addition to an injunction against the commencement, prosecution, or enforcement of any eviction proceeding against them, appellees sought (1) a declaratory judgment that HUD's failure to promulgate regulations in accordance with the mandate of section 220(c) violated appellees' statutory right to have their rental agreements free of unreasonable terms; and (2) preliminary and permanent injunctive relief requiring HUD to promulgate and enforce appropriate regulations.*fn5 Appellees' complaint did not request that any particular procedure be used in drafting the regulations.
On December 9, 1980, the district court ruled that the eviction proceedings violated the notice provisions established by HUD regulations,*fn6 and the court therefore issued a preliminary injunction against eviction of appellees and all tenants of section 221(d)(3) and section 236 housing projects in Allegheny County, Pennsylvania.*fn7
On August 14, 1981, before the district court had ruled on appellees' allegation that HUD had failed to comply with its statutory mandate, HUD wrote to its Pittsburgh and Philadelphia field offices directing them to instruct all owners of section 236 and 221(d)(3) housing projects to remove certain unreasonable provisions from current or proposed ...