3
In determining whether a statute confers an implied right of action, the Sandoval
Court ascertained the individuals whom the statute addressed directly. According to this
approach, if the statutory text focuses on a class of beneficiaries, then the statute contains
rights-creating language that indicates a congressional intent to create a private right of
action for members of that class. If, however, the text focuses on individuals being
regulated or an agency enacting the regulation, an implied right of action is unlikely for
those who benefit from the regulations. See Sandoval, 532 U.S. at 288–89.
Also, the Court in Sandoval held that regulations alone cannot confer implied
rights of action. Rather, the right of action must be implied by an agency’s governing
statute. Therefore, no matter how many protections a regulatory scheme appears to
confer, these protections do not provide an implied right of action without statutory
provisions to specifically support them. See id. at 291.
Here, the tenant organization regulations that the Whites cite are authorized by
two statutory provisions: 12 U.S.C. § 1715z–1b and 42 U.S.C. § 3535(d). See Tenant
Participation in Multifamily Housing Projects, 61 Fed. Reg. 57,960, 57,961 (1996) (final
rule) (citing rulemaking authority). Section 3535(d) merely provides broad rulemaking
authority for the HUD Secretary and does not confer any actual rights or remedies.
Section 1715z–1b contains a statement of purpose, § 1715z–1b(a); general rights of
tenants, § 1715z–1b(b); and rulemaking authority, § 1715z–1b(c). In its entirety, §
1715z–1b(b), the most likely source of an implied right of action, states:
(b) Rights of tenants
The Secretary shall assure that--
(1) where the Secretary's written approval is required
with respect to an owner's request for rent increase,
conversion of residential rental units to any other use
(including commercial use or use as a unit in any
condominium or cooperative project), partial release of
security, or major physical alterations or where the Secretary
proposes to sell a mortgage secured by a multifamily housing
project, tenants have adequate notice of, reasonable access to
relevant information about, and an opportunity to comment
on such actions (and in the case of a project owned by the