A. Section 1983 liability for violations of 24 C.F.R. § 982.311(b)
Caswell argues that DHC violated 24 C.F.R. § 982.311(b) by terminating Caswell’s housing
subsidies before his eviction proceeding was finalized in state court and while he continued residing
in the apartment. Under that regulation, the PHA “must continue to make housing assistance
payments to the owner in accordance with the [ ] contract until the owner has obtained a court
judgment or other process allowing the owner to evict the tenant. The PHA may continue such
payments until the family moves from or is evicted from the unit.” 24 C.F.R. § 982.311(b). Here,
DHC conceded that, had it known that Caswell intended to reside in his apartment until the state
court ordered him evicted, it would have been obligated to restore his rental subsidy or at least given
him a “moving” package. The DHC argues, however, that it was unaware that Caswell was residing
in the apartment, and that Caswell had an obligation to inform DHC of this fact if he wanted to
continue to receive any subsidies after the landlord had initiated eviction proceedings.
Consequently, both parties have framed this appeal as a dispute over whether the tenant bears the
burden of notifying the PHA that he intends on residing in the apartment during eviction proceedings
in order to continue receiving housing subsidies. Before we can consider what obligations DHC and
Caswell may have each had under the regulations, we must first determine whether a § 1983 claim
can lie against DHC for a violation of a federal regulation.
Section 1983 creates a federal cause of action against state and local officials who, while
acting under the color of state law, deprive an individual of a right secured to him by the
Constitution or federal law. 42 U.S.C. § 1983. Both the district court and Caswell relied upon this
Court’s decision in Loschiavo v. City of Dearborn, 33 F.3d 548 (6th Cir. 1994), for the proposition
that § 1983 creates a federal cause of action for the violation of a federal regulation, unless the
statute enabling said regulation forecloses enforcement. Id. at 551. However, the Supreme Court’s
decisions in Alexander v. Sandoval, 532 U.S. 275 (2001), and Gonzaga University v. Doe, 536 U.S.
273 (2002), have cabined Loschiavo’s holding.1 In Sandoval, the Supreme Court held that there was
no private cause of action to enforce Title VI regulations. 532 U.S. at 293. The Court stated that
“[l]anguage in a regulation may invoke a private right of action that Congress through statutory text
created, but it may not create a right that Congress has not. . . . Agencies may play the sorcerer’s
apprentice but not the sorcerer himself.” Id. at 291 (internal citation omitted). It is important to
note, however, that the plaintiffs in Sandoval had not pursued a cause of action under § 1983; rather,
the plaintiffs argued that an implied cause of action existed directly under Title VI and its
accompanying regulations. See id. at 299-300 (Stevens, J., dissenting) (“[T]o the extent that the
majority denies relief to the respondents merely because they neglected to mention 42 U.S.C. § 1983
in framing their Title VI claim, this case is something of a sport.”). Nevertheless, the Court in
Gonzaga shed further light on this issue by applying Sandoval’s logic to § 1983 cases:
[W]e further reject the notion that our implied right of action cases are separate and
distinct from our § 1983 cases. To the contrary, our implied right of action cases
should guide the determination of whether a statute confers rights enforceable under
§ 1983. We have recognized that whether a statutory violation may be enforced
through § 1983 is a different inquiry than that involved in determining whether a
private right of action can be implied from a particular statute. But the inquiries
overlap in one meaningful respect—in either case we must first determine whether
Congress intended to create a federal right. Thus we have held that the question
whether Congress . . . intended to create a private right of action is definitively
answered in the negative where a statute by its terms grants no private rights to any