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The Freedom to Display the American Flag Act does not contain an enforcement mechanism for Plaintiffs

10/3/24

By: Jack Doyle

HOAs across the country have passed restrictive covenants pertaining to members flying flags outside of their home. Many Plaintiffs all over the country have tried to assert a declaratory action against HOAs for passing a covenant or restriction that violates the Freedom to Display the American Flag Act of 2005.  

The law is clear that no enforcement mechanism is contained in the Freedom to Display the American Flag Act of 2005 that would allow such declaratory relief.  

The Freedom to Display the American Flag Act of 2005, codified at 4 U.S.C. §5 does not convey any protection in the form of a private enforcement mechanism or cause of action or empower a Court to enforce the statute against an HOA or any other private party.  

No court anywhere in the country has found such a private right exists. This exact question was answered in Murphree v. Tides Condominium at Sweetwater by Del Webb Master Homeowner’s Ass’n, Inc., 2014 WL 1293863 where the Court decided that “Upon review, the Court determines that the Freedom to Display the American Flag Act of 2005 does not provide any enforcement mechanism, or explicitly create a private right of action for individuals such as Murphree to bring a lawsuit against a condominium association.”  

Courts have determined that the plain text of Freedom to Display the American Flag Act of 2005 very simply does not provide a mechanism for this category of Plaintiffs to assert a declaratory action.  

“Noticeably absent from the text of the Act is an express creation of a private right of action, any explicit enforcement mechanism or remedy, or any reference to penalties or sanctions to be imposed for violations. The Act is simply an example of poor draftmanship.” Costanza v. Tchefuncte Harbour Ass’n, Inc, 31 F.Supp.3d 849, 851 (E.D. La. 2014). 

With no plain language allowing for a private enforcement mechanism, there could only be a cause of action if one was implied by Congress – which is also a question for the Courts to decide. Touche Ross & Co. v. Redington, 442 U.S. 560, 568 (1979).  

However, courts cannot determine cause of action “unless this congressional intent can be inferred from the language of the statute, the statutory structure, or some other source, the essential predicate for implication of private remedy simply does not exist.” Northwest Airlines, Inc. v. Transport Workers, 451 U.S. 77, 94 (1981). 

Without an enforcement mechanism available to the Courts, these declaratory relief claims should be dismissed for lack of subject matter jurisdiction.  

For more information, please contact Jack Doyle at nicholas.doyle@fmglaw.com or your local FMG attorney.