Billington v. Underwood

• Decision Date: 06 March 1980
• Docket Number: No. 79-2669,79-2669
• Citation: 613 F.2d 91
• Parties: Johnnie Lee BILLINGTON, Plaintiff-Appellant, v. Lewis C. UNDERWOOD, individually and as Executive Director of the Housing Authority of the City of Tifton, Georgia, et al., Defendants-Appellees. Summary Calendar. *
• Court: U.S. Court of Appeals — Fifth Circuit

Page 91

613 F.2d 91

Johnnie Lee BILLINGTON, Plaintiff-Appellant, v. Lewis C. UNDERWOOD, individually and as Executive Director of the Housing Authority of the City of Tifton Georgia, et al., Defendants-Appellees.

No. 79-2669

Summary Calendar. ^*

United States Court of Appeals Fifth Circuit.

March 6, 1980.

Fred L. Cavalli, R. Graham Clarke, Valdosta, Ga., Lois R. Goodman, John L. Cromartie, Jr., Atlanta, Ga., for plaintiff-appellant.

Crosby & Kelley, David J. Kelley, Tifton, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before GEE, HENDERSON and HATCHETT, Circuit Judges.

PER CURIAM:

In April 1978, appellant Johnnie Lee Billington applied to the Housing Authority of the City of Tifton, Georgia, ¹ for an apartment in a publicly subsidized housing project. On April 20, 1978, Mr. Billington's counsel informed the housing authority that his current landlord had filed a dispossessory warrant against him but that the action had been dismissed by a justice of the peace after a hearing. On June 1, 1978, the housing authority informed Mr. Billington by letter that he had been found ineligible ² for public housing because his "previous housing records and habits indicate a detrimental effect on tenants and project environment." Five days later Mr. Billington, through his attorney, requested a hearing on his denial of public housing eligibility. On June 14 a meeting was held at the offices of Mr. David Kelley, legal counsel for the Tifton Housing Authority. Present at this meeting, in addition to Mr. Kelley, were the housing authority's executive officer, Mr. Lewis Underwood, and its office manager, Ms. Bobbie Green, Mr. Billington, and Mr. Billington's counsel. None of the housing authority officials participated in the meeting in the role of impartial hearing officer.

At the meeting, housing authority legal counsel Kelley informed Mr. Billington that the denial of his eligibility for public housing was final and asserted that Mr. Billington was ineligible because allegedly he had failed to pay an unidentified bill approximately five years earlier, had illegally lived in a housing authority project at some unspecified time, had been declared a "bad" tenant by his former landlord, and had been accused by a former sheriff of illegally selling liquor. Mr. Billington was not informed of the specific factual bases underlying these accusations, nor was he accorded a subsequent hearing at which to present evidence refuting the charges first unveiled to him at the June 14 meeting. Mr. Billington, unable to prepare evidence specifically countering the charges levied against him, contended generally that the stated bases for denying his eligibility had no basis in fact or law.

Having received no favorable action from the housing authority, Mr. Billington filed suit in district court under the Civil Rights Act of 1871, 42 U.S.C. § 1983, challenging the housing authority's procedures for determining eligibility as violative of the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq. (1970), and of the regulations promulgated thereunder. He also claimed that the housing authority's post-rejection hearing was inadequate under the due process clause of the fourteenth amendment and that as a result he was unlawfully deprived of his property interest in being fairly considered for public housing eligibility. Mr. Billington sought injunctive relief that would provide, among other things, written notice of the factual basis of his ineligibility and an evidentiary hearing in which he would be accorded an opportunity to refute any evidence relied upon by the housing authority in rejecting his application for public housing.

The court below granted the housing authority's motion for summary judgment on the pleadings and ruled against Billington. It found that the housing authority had complied with its own regulations for according post-denial eligibility hearings and that Mr. Billington had not demonstrated any deprivation of due process rights. Because we find that the Tifton Housing Authority did not accord appellant Billington the "informal hearing" mandated by federal law and regulations, we reverse without reaching the constitutional issues raised in this case.

Federal Regulation 24 C.F.R. § 860.207(a) (1979), promulgated pursuant to the United States Housing Act of 1937, as amended, 42 U.S.C. § 1401 et seq. (1970), requires the housing authority to

promptly notify any applicant determined to be ineligible for admission to a project of the basis for such determination and . . . (to) provide the applicant upon request, within a reasonable time after the determination is made, with an opportunity for an informal hearing on such determination.

Clearly the housing authority must follow its own procedure. Morton v. Ruiz, 415 U.S. 199, 235, 94 S.Ct. 1055, 1074, 39 L.Ed.2d 270 (1974); Vitarelli v. Seaton, 359 U.S. 535, 539-40, 79 S.Ct. 968, 972-973, 3 L.Ed.2d 1012 (1959); Hollingsworth v. Harris, 608 F.2d 1026, at 1027 (5th Cir. 1979). Therefore, Mr. Billington was certainly entitled to the "informal hearing" mandated by the applicable federal regulation.

Our understanding of the essential elements of the informal hearing is shaped by the statutory policy that safe and sanitary housing be provided for eligible low-income families. United States Housing Act of 1937, as amended, 42 U.S.C. § 1437 (1976) (formerly section 1401 (1937)). See Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). This policy dictates that persons eligible for public housing have their applications fully and fairly considered. Cf. id. 89 S.Ct. at 525-26 ("One of the specific purposes of the federal housing acts is to provide 'a decent home and a suitable living environment for every American family' that lacks the financial means of providing such a home without governmental aid. A procedure requiring housing authorities to explain why they are evicting a tenant who is apparently among those people in need of such assistance certainly furthers this goal," quoting section 2 of Housing Act of 1949, 42 U.S.C. § 1441 (footnote omitted)). While the regulatory phrase "informal hearing" is not explicit in its requirements, we interpret it in light of decisions in other contexts specifying minimal procedures deemed necessary to promote the accuracy of administrative agencies' factual determinations of the sort involved here. See Robbins v. United States Railroad Retirement Board, 594 F.2d 448, 451-53 (5th Cir. 1979) (interpreting nonprecise "fair hearing" provision of the Railroad Unemployment Insurance Act, 45 U.S.C. § 355(c) (1976), to require at least advance notice of the exact adverse information upon which the government relied in making its decision and an opportunity to rebut that evidence).

The June 14, 1978, meeting was defective as an "informal hearing" in several respects. First, Mr. Billington was not provided with an adequate statement of the basis for the housing authority's determination that he was ineligible for public housing. Such a statement must be sufficiently specific for it to enable an applicant to prepare rebuttal evidence to introduce at his hearing appearance. See id. at 451. See also Mathews v. Eldridge, 424 U.S. 319, 345-46, 96 S.Ct. 893, 907-908, 47 L.Ed.2d 18 (1976) (noting, in approving procedure for determining entitlement to disability insurance payments under the Social Security Act, 42 U.S.C. § 423 (1956), that the information relevant to the entitlement decision is identified with particularity and the disability recipient's representative is allowed full access to all information relied upon by the state agency); Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 2978, 41 L.Ed.2d 935 (1974) ("Part of the function of notice is to give the charged party a chance to marshal the facts in his defense and to clarify what the charges are, in fact."); Greene v. McElroy, 360 U.S. 474, 496, 79 S.Ct. 1400, 1413, 3 L.Ed.2d 1377 (1959) ("where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government's case must be disclosed to the individual so that he has an opportunity to show that it is untrue."). Indeed, another federal regulation governing the housing authority requires it to document information relevant to the acceptance or rejection of an applicant and to include in such documentation "(a)s a minimum, . . . the date, the source of the information, including the name and title of the individual contacted, and a resume of the information received." 24 C.F.R. § 860.260(a) (1979). The purpose of safeguarding against error in housing authority eligibility decisions that undergirds regulation section 860.260(a) also animates the 24 C.F.R. § 860.207(a) requirement that the agency notify the rejected applicant of the basis for its determination. Therefore, equivalent detail in the statement of reasons given the rejected applicant is required in order to...