In Younger v. Harris, the Supreme Court held that federal courts must abstain from interference with pending state court criminal proceedings.1  The Fifth Circuit has long held that federal courts should abstain under Younger only in very limited, narrow circumstances.2  Ten years after Younger, the Supreme Court ruled that the Younger abstention applies in civil proceedings if there is an ongoing state judicial proceeding, the proceedings implicates important state interests, and there is an adequate opportunity in the state proceedings to raise constitutional challenges; this is known as the Middlesex test.3

In 2013 the Supreme Court clarified that “even in the presence of parallel state proceedings, abstention from the exercise of federal jurisdiction is the ‘exception, not the rule.’”4  Prior to conducting the Middlesex test, the federal court must first determine if the proceeding falls into one of the “exceptional circumstances” that “justif[ies] a federal court’s refusal to decide a case in deference to the States.”5  These circumstances include ongoing state criminal prosecutions, certain civil enforcement proceedings, and pending “civil proceedings involving certain orders . . . uniquely in furtherance of the state courts’ ability to perform their judicial functions.”6  This test arguably restricts the ability of federal courts to abstain in eviction cases.7  As a practical matter, a federal suit seeking to enjoin an eviction must be filed before the eviction action is filed to avoid Younger abstention issues.

• 1401 U.S. 37, 53 (1971).
• 2Morial v. Judiciary Comm’n of La., 565 F.2d 295, 299 (5th Cir. 1977) (“The Younger principles simply are not . . . a broad, discretionary, device for the evasion of the responsibility of federal courts to protect federal rights from invasion by state officials.”).
• 3Middlesex Cty. Ethics Comm. v. Garden State Bar Ass’n, 457 U.S. 423, 432 (1982).
• 4Sprint Commc’ns, Inc. v. Jacobs, 571 U.S. 69, 81–82 (2013) (quoting Haw. Hous. Auth. v. Midkiff, 467 U.S. 229, 236 (1984)).
• 5Id. at 78 (quoting New Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 U.S. 350, 368 (1989)).
• 6Id.
• 7For examples of housing cases (non-FHA) where tenants have defeated Younger abstention, see Kemp v. Chi. Hous. Auth., No. 10 C 3347, 2010 WL 2927417 (N.D. Ill. 2010) (termination of public housing assistance); Ayers v. Phila. Hous. Auth., 908 F.2d 1184, 1195 n. 21 (3d Cir. 1990) (due process); McNeill v. N.Y.C. Hous. Auth., 719 F. Supp. 233, 255 (S.D.N.Y. 1989) (procedures for terminating rent subsidy).

The Anti-Injunction Act bars federal courts from enjoining an already filed state court action except as expressly authorized by Act of Congress, where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.1  The courts are divided over whether the Anti-Injunction Act applies to Fair Housing Act claims.2  Although the Anti-Injunction Act would not apply if the defendant were a “state actor” subject to suit under 42 U.S.C. § 1983, Younger abstention may still bar the federal injunction.3

• 128 U.S.C. § 2283.
• 2Compare Casa Marie, Inc. v. Superior Ct. of P.R., 988 F. 2d 252 (1st Cir. 1993) with Oxford House, Inc. v. City of Albany, 819 F. Supp. 1168 (N.D.N.Y. 1993).
• 3Younger v. Harris, 401 U.S. 37 (1971).

The Rooker-Feldman doctrine deprives a federal court of jurisdiction to review state court judgments in cases brought by state-court losers complaining of injuries caused by a state court judgment rendered before the federal suit began.1  Rooker-Feldman does not apply to Fair Housing Act claims based on conduct that predates the state court judgment.2  However, some courts, including the Fifth Circuit, may apply Rooker-Feldman more broadly to bar actions that require reviewing the validity of a state court eviction judgment.3

• 1The doctrine is enunciated in two U.S. Supreme Court cases. See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983).
• 2Poindexter v. Allegheny Cnty. Hous. Auth., 329 F. App’x 347 (3d Cir. 2009); Long v. Shore Bank Dev. Corp., 182 F.3d 548 (7th Cir. 1999).
• 3See, e.g., Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 390-91 (5th Cir. 2012); Babalola v. B.Y. Equities, Inc., 63 F. App’x 534 (2d Cir. 2003); Chambers v. Habitat Co., 215 F.3d 1329 (7th Cir. 2000).

Eviction of tenants based on unlawful discrimination can be enjoined under the Fair Housing Act1  and 42 U.S.C. § 1982.2

Housing discrimination cases involving contested factual issues and a discriminatory eviction may be better litigated in state district court where lis pendens will require the eviction to be litigated in district court if the tenant’s affirmative lawsuit is filed first.3

• 142 U.S.C. § 3601, et seq. For a more extensive discussion of the FHA, see Section 13.
• 2See, e.g., Bill v. Hodges, 628 F.2d 844, 845 (4th Cir. 1980). The Anti-Injunction Act does not prohibit a federal court from enjoining a landlord from filing a state court eviction lawsuit. However, the courts are split as to whether a federal court may enjoin a state court eviction lawsuit that was filed before the tenant obtained an injunction in a federal Fair Housing Act lawsuit.
• 3Cf. Spallino v. Monarch Sign, 2000-447 (La. App. 3 Cir. 10/11/00), 771 So. 2d 784.

Tenants have a right of action under 42 U.S.C. § 1983 for a number of violations of the United States Housing Act.1  These claims typically arise in the context of public or other subsidized housing evictions in violation of statutory and constitutional procedural requirements.2 Specifically, federal courts have repeatedly found that certain subsidized tenants have a cause of action under 24 C.F.R. § 1983 if their subsidies are terminated without proper notice and an opportunity to respond in violation of 42 U.S.C. § 1437d(k).3 The U.S. Supreme Court has also recognized that certain subsidized tenants can sue under § 1983 for violations of the Brooke Amendment, 42 U.S.C. § 1437a(a)(1), which limits the rent and utility burden in several HUD subsidy programs.4 Advocates should be sure to follow developments in the law that may limit use of § 1983 to enforce federal rights.

• 142 U.S.C. § 1437, et seq.
• 2For more complete discussion of these requirements, see this manual's chapter on federally subsidized housing.
• 3Poole v. Hous. Auth. for the Town of Vinton, 202 F. Supp. 3d 617, 624 (W.D. La. 2016); Farley v. Phila. Hous. Auth., 102 F.3d 697, 698 (3d Cir. 1996); Stevenson v. Willis, 579 F. Supp. 2d 913, 923 (N.D. Ohio 2008); Conway v. Hous. Auth. of City of Asheville, 239 F. Supp. 2d 593, 599 (W.D.N.C. 2002); Gammons v. Mass. Dep’t of Hous. & Cmty. Dev., 523 F. Supp. 2d 76, 84 (D. Mass. 2007).
• 4Wright v. City of Roanoke Redevelopment & Hous. Auth., 479 U.S. 418 (1987) (regarding utility allowances).

Filing bankruptcy may be a remedy for some tenants in default. The Bankruptcy Code requires that the trustee assume or reject unexpired leases within a period of time.1  If assumed, the debtor’s default must be cured.2

Evictions are automatically stayed by the filing of a bankruptcy petition.3  The landlord’s efforts to evict, seize tenant property, or collect rent after the tenant has filed a petition in bankruptcy violates the automatic stay and justifies the award of damages and attorney’s fees.4  Attorneys acting on behalf of landlords or other creditors may be personally held in contempt for their participation in stay violations.

There are two exceptions to a § 362 bankruptcy stay of evictions: the eviction judgment was obtained prior to bankruptcy filing5  and an eviction based on “endangerment” of property or illegal drug use on the property by tenant.6  The latter exception requires that a certification be filed with the bankruptcy court.

A landlord may move for relief from the automatic stay in certain cases.7  Many housing issues will be litigated through opposition to relief from the stay or motions to vacate the stay.

The Bankruptcy Code prohibits a governmental entity from denying, revoking, or suspending a grant based on nonpayment of discharged pre-petition debt.8  As such, bankruptcy petitions, particularly Chapter 13 reorganizations,9  can be a powerful remedy for public housing tenants who face eviction for nonpayment of rent because their subsidy may be considered a government grant.10

• 111 U.S.C. § 365(a).
• 211 U.S.C. § 365(b).
• 311 U.S.C. § 362 (a)(3); see In re Smith Corset Shops, Inc., 696 F.2d 971, 976 (1st Cir. 1982); In re Burch, 401 B.R. 153 (Bankr. E.D. Pa. 2008).
• 4See In re Ozenne, 337 B.R. 214 (9th Cir. BAP 2006); Pettite v. Baker, 876 F.2d 456 (5th Cir. 1989).
• 511 U.S.C. § 362(b)(22); In re Brown, No. 95 B 16825, 1995 WL 904913, at *3 (Bankr. N.D. Ill. Dec. 19, 1995) (holding that a lease is not unexpired and therefore subject to assumption if it was terminated prior to the bankruptcy filing, but also that the point in the eviction process when a lease “terminates” is determined by state law).
• 611 U.S.C. § 362(b)(23).
• 711 U.S.C. § 362(d).
• 811 U.S.C. § 525(a).
• 9For additional discussion of Chapter 13 bankruptcy, see Section 5.1 of the chapter on defending home ownership.
• 10In re Stoltz, 315 F.3d 80, 89 (2d Cir. 2002) (finding that eviction of public housing tenant for pre-petition rent debt would revoke a protected government grant in violation of 11 U.S.C. § 525(a)); contra Hous. Auth. v. Eason, 2009-992 (La. 6/26/09), 12 So. 3d 970 (declining to follow Stoltz where pre-petition debt was discharged in a Chapter 7 bankruptcy), rev’g 2008-0525 (La. App. 4 Cir. 03/04/09); In re Valentin, 309 B.R. 715 (Bankr. E.D. Pa. 2004) (finding that 11 U.S.C. § 525(a) prohibits Housing Authority from barring future participation in the public housing program based on discharged rent debt, but does not bar eviction for nonpayment).