393 U.S. 268 (1969), 20, Thorpe v. Housing Authority of the City of Durham

Docket Nº:No. 20
Citation:393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474
Party Name:Thorpe v. Housing Authority of the City of Durham
Case Date:January 13, 1969
Court:United States Supreme Court

Page 268

393 U.S. 268 (1969)

89 S.Ct. 518, 21 L.Ed.2d 474



Housing Authority of the City of Durham

No. 20

United States Supreme Court

Jan. 13, 1969

Argued October 23, 1968



Petitioner had a month-to-month tenancy in a federally assisted public housing project operated by respondent, the lease providing for termination by either party on 15 days' notice. She received a lease cancellation notice, with no reasons being given, the day after being elected president of a tenants' organization. Petitioner, who fruitlessly tried to determine why she was being evicted, refused to vacate. Respondent brought an eviction action, and the State Supreme Court affirmed the lower court's eviction order, which held that the reasons for cancellation were immaterial, notwithstanding petitioner's contention that she was being evicted because of her organizational activities in violation of her First Amendment rights. This Court granted certiorari. Thereafter, on February 7, 1967, the Department of Housing and Urban Development (HUD) issued a circular requiring local housing authorities to give tenants the reasons for eviction and to afford them an opportunity for explanation or reply. Following this Court's remand for further proceedings in the light of the HUD circular (386 U.S. 670), the State Supreme Court upheld petitioner's eviction on the ground that the parties' rights had "matured" before issuance of the circular, which the court held applied only prospectively. The court stayed execution of its judgment pending this Court's decision. Respondent urges that the circular (1) is only advisory; (2) if mandatory, constitutes an unconstitutional impairment of respondent's contract with HUD and its lease agreement with petitioner, and (3) if constitutional, does not apply to eviction proceedings commenced before its issuance.


1. Housing authorities of federally assisted public housing projects must follow the requirements of the February 7, 1967, HUD circular before evicting any tenant residing in such projects on the date of this Court's decision herein. Pp. 274-284.

(a) The circular, which originally supplemented and later became incorporated in HUD's Low-Rent Management Manual issued under the agency's general rulemaking powers pursuant to § 8 of the United States Housing Act of 1937, was intended by HUD to be mandatory. Pp. 274-276.

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(b) The simple notification procedure required by the circular, which has only nominal effect on respondent's administration of the housing project, does not violate the congressional policy set forth in the Act for local control of federally financed housing projects. Pp. 277-278.

(c) The respective obligations of HUD and respondent under the annual contributions contract between them, and the lease agreement between petitioner and respondent, remain unchanged by the circular, which therefore does not involve any impairment of contractual obligations in violation of the Due Process Clause of the Fifth Amendment. Pp. 278-280.

(d) The circular furthers the Act's remedial purpose. Pp. 280-281.

(e) The circular applies to eviction proceedings commenced before its issuance under the general rule that a court must apply the law (here that of an administrative agency acting pursuant to legislative authorization) in effect at the time it renders decision, and that rule is particularly applicable here, where ascertainment of the reason for eviction is essential to enable a tenant to defend against eviction for activity claimed to be constitutionally protected. Pp. 281-283.

2. It would be premature to decide, as petitioner urges, that this Court must establish guidelines to insure that she is given not only the reasons for her eviction, but also a hearing comporting with due process requirements. Pp. 283-284.

271 N.C. 468, 157 S.E.2d 147, reversed and remanded.

WARREN, J., lead opinion

MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.

This case raises the question whether a tenant of a federally assisted housing project can be evicted prior to notification of the reasons for the eviction and without an opportunity to reply to those reasons, when such a

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procedure is provided for in a Department of Housing and Urban Development (hereinafter HUD) circular issued after eviction proceedings have been initiated.

On November 11, 1964, petitioner and her children commenced a month-to-month tenancy in McDougald Terrace, a federally assisted, low-rent housing project owned and operated by the Housing Authority of the City of Durham, North Carolina. Under the lease, petitioner is entitled to an automatic renewal for successive one-month terms, provided that her family composition and income remain unchanged and that she does not violate the terms of the lease.1 The lease also provides, however, that either the [89 S.Ct. 520] tenant or the Authority may terminate the tenancy by giving notice at least 15 days before the end of any monthly term.2

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On August 10, 1965, petitioner was elected president of a McDougald Terrace tenants' organization called the Parents' Club. On the very next day, without any explanation, the executive director of the Housing Authority notified petitioner that her lease would be canceled as of August 31.3 After receiving notice, petitioner attempted through her attorneys, by phone and by letter, to find out the reasons for her eviction.4 Her inquiries went unanswered, and she refused to vacate.

On September 17, 1965, the Housing Authority brought an action for summary eviction in the Durham Justice of the Peace Court, which, three days later, ordered petitioner removed from her apartment. On appeal to the Superior Court of Durham County, petitioner alleged that she was being evicted because of her organizational activities in violation of her First Amendment rights. After a trial de novo,5 the Superior Court affirmed the

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eviction, and the Supreme Court of North Carolina also affirmed.6 Both appellate courts held that, under the lease, the Authority's reasons for terminating petitioner's tenancy were immaterial. On December 5, 1966, we granted certiorari7 to consider whether petitioner was denied due process by the Housing Authority's [89 S.Ct. 521] refusal to state the reasons for her eviction and to afford her a hearing at which she could contest the sufficiency of those reasons.

On February 7, 1967, while petitioner's case was pending in this Court, HUD issued a circular directing that, before instituting an eviction proceeding, local housing authorities operating all federally assisted projects should inform the tenant "in a private conference or other appropriate manner" of the reasons for the eviction, and give him "an opportunity to make such reply or explanation as he may wish."8 Since the application of

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this directive to petitioner would render a decision on the constitutional issues she raised unnecessary, we vacated the judgment of the Supreme Court of North Carolina and remanded the case

for such further proceedings as may be appropriate in the light of [89 S.Ct. 522] the February 7 circular of the Department of Housing and Urban Development.9

On remand, the North Carolina Supreme Court refused to apply the February 7 HUD circular and reaffirmed its prior decision upholding petitioner's eviction. Analogizing

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to the North Carolina rule that statutes are presumed to act prospectively only, the court held that, since "[a]ll critical events"10 had occurred prior to the date on which the circular was issued "[t]he rights of the parties had matured, and had been determined before. . ." that date.11 We again granted certiorari.12 We reverse the judgment of the Supreme Court of North Carolina, and hold that housing authorities of federally assisted public housing projects must apply the February 7, 1967, HUD circular before evicting any tenant still residing in such projects on the date of this decision.13

In support of the North Carolina judgment, the Housing Authority makes three arguments: (1) the HUD circular was intended to be advisory, not mandatory; (2) if the circular is mandatory, it is an unauthorized and unconstitutional impairment of both the Authority's annual contributions contract with HUD14 and the lease agreement between the Authority and petitioner, and (3) even if the circular is mandatory, within HUD's power, and constitutional, it does not apply to eviction proceedings commenced prior to the date the circular was issued. We reject each of these contentions.


Pursuant to its general rulemaking power under § 8 of the United States Housing Act of 1937,15 HUD has

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issued a Low-Rent Management Manual,16 which contains requirements that supplement the provisions of the annual contributions contract applicable to project management.17 According to HUD, these requirements "are the minimum considered consistent with fulfilling Federal responsibilities" under the Act.18 Changes in the manual are initially promulgated as circulars. These circulars, which have not yet been physically incorporated into the manual, are temporary additions or modifications of the manual's requirements, and "have the same effect."19 In contrast, the various "handbooks" and "booklets" issued by HUD contain mere "instructions," "technical suggestions," and "items for consideration."20

Despite the incorporation of the February 7 circular into the Management Manual in October, 1967, the Housing Authority contends that, on its face, the [89 S.Ct. 523] circular purports to be only advisory. The Authority places particular emphasis on the circular's precatory statement that HUD "believes" that its notification procedure should be followed. In addition to overlooking the significance of the subsequent incorporation of the circular into the Management Manual, the Authority's...

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