Thorpe v. Housing Authority of City of Durham, 20

• Citation: 21 L.Ed.2d 474,393 U.S. 268,89 S.Ct. 518
• Decision Date: 13 January 1969
• Docket Number: No. 20,20
• Parties: Joyce C. THORPE, Petitioner, v. HOUSING AUTHORITY OF the CITY OF DURHAM
• Court: United States Supreme Court

393 U.S. 268

89 S.Ct. 518

21 L.Ed.2d 474

Joyce C. THORPE, Petitioner,

v HOUSING AUTHORITY OF the CITY OF DURHAM.

No. 20.

Argued Oct. 23, 1968.

Decided Jan. 13, 1969.

James M. Nabrit, III, New York City, for petitioner.

Daniel K. Edwards, Durham, N.C., for respondent.

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 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 re ain unchanged and that she does not violate the terms of the lease.¹ The lease also provides, however, that either the tenant or the Authority may terminate the tenancy by giving notice at least 15 days before the end of any monthly term.²

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 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 refusal to state the reasons for her eviction and to afford her a hear ng 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 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 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. Analo- gizing to the North Carolina rule that statutes are presumed to act prospectively only, the court held hat 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.

I.

Pursuant to its general rulemaking power under § 8 of the United States Housing Act of 1937,¹⁵ HUD has 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 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 argument is based upon a simple misconstruction of the language actually used. The import of that language, which characterizes the new notification procedure as 'essential,' becomes apparent when the February 7 circular is contrasted with the one it superseded. The earlier circular, issued on May 31, 1966, stated: '(W)e strongly urge as a matter of good social policy, that Local Authorities in a private conference inform any tenants who are given * * * (termination) notices of the reasons for this action.'²¹ (Emphasis added.) This circular was not incorporated into the Management Manual.

That HUD intended the February 7 circular to be mandatory has been confirmed unequivocally in letters written by HUD's Assistant Secretary for Renewal and Housing Assistance²² and by its Chief Counsel.²³ As we stated in Bowles v. Seminole Rock Co., 325 U.S. 410, 414, 65 S.Ct. 1215, 1217, 89 L.Ed. 1700 (1945), when construing an administrative regulation, 'a court must necessarily look to the administrative construction of the regulation if the meaning of the words used is in doubt. * * * (T)he ultimate criterion is the administrative interpretation, which becomes of controlling weight unless it is plainly erroneous or inconsistent with the regulation.'²⁴ Thus, when the language and HUD's treatment of the February 7 circular are contrasted with the language and treatment of the superseded circular, there can be no doubt that the more recent circular was intended to be mandatory, not merely advisory as contended by the Authority.

II.

Finding that the circular was intended to be mandatory does not, of course, determine the validity of the requirements it imposes.²⁵ In our opinion remanding this case to the Supreme Court of North Carolina to consider the HUD circular's applicability, we pointed out that the circular was issued pursuant to HUD's rule-making power under § 8 of the United States Housing Act of 1937, ²⁶ which authorizes HUD²⁷ 'from time to time (to) make, amend, and rescind such rules and regulations as may be necessary to carry out the provisions of this Act.'²⁸ The Housing Authority argues that this authorization is limited by the Act's express policy of 'vest(ing) in the local public housing agencies the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of * * * (HUD)), with due consideration to accomplishing the objectives of this Act while effecting economies.'²⁹ But the HUD circular is not inconsistent with this policy. Its minimal effect upon the Authority's 'responsibility in the administration' of McDougald Terrace is aptly attested to by the Authority's own description of what the circular does not require:

'It does not * * * purport to change the terms of the lease provisions used by Housing Authorities, nor does it purport to take away from the Housing Authority its legal ability to evict by complying with the terms of the lease and the pertinent provisions of the State law relating to evictions. It does not deal with what reasons are acceptable to HUD * * *. Moreover, the Circular clearly does not say that a Housing Authority cannot terminate at the end of any term without cause as is provided in the lease.'³⁰

The circular imposes only one requirement: that the Authority comply with a very simple notification procedure before evicting its tenants. Given the admittedly insubstantial effect this requirement has upon the basic lease agreement under which the Authority discharges its management responsibilities, the contention that the circular violates the congressional policy of allowing local authorities to retain maximum control over the administration of federally financed housing projects is untenable.

The Authority also argues that under...