Glover v. Housing Authority of City of Bessemer, Ala.

• Decision Date: 09 June 1971
• Docket Number: No. 30931.,30931.
• Parties: Evelyn GLOVER, Plaintiff-Appellant, v. The HOUSING AUTHORITY OF the CITY OF BESSEMER, ALABAMA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

444 F.2d 158 (1971)

Evelyn GLOVER, Plaintiff-Appellant, v. The HOUSING AUTHORITY OF the CITY OF BESSEMER, ALABAMA, et al., Defendants-Appellees.

No. 30931.

United States Court of Appeals, Fifth Circuit.

June 9, 1971.

Demetrius C. Newton, Birmingham, Ala., Jack Greenberg, Sylvia Drew, James M. Nabrit, III, Melvin L. Watt, New York City, for plaintiff-appellant.

J. W. Patton, Jr., Huey, Stone & Patton, Bessemer, Ala., for defendants-appellees.

Before TUTTLE, WISDOM and INGRAHAM, Circuit Judges.

WISDOM, Circuit Judge:

This case involves the procedural protections to be accorded a tenant before eviction from a public housing project.

Evelyn Glover was a resident for over eight years in a project operated by the Housing Authority of Bessemer, Alabama. March 17, 1970, Mrs. Glover met with Mrs. Vines, the superintendent of the project in which she lived, at the latter's request. Mrs. Vines said that the Authority had heard rumors that a man was living with Mrs. Glover and had free access to her apartment; that for this reason the Authority was going to terminate Mrs. Glover's month to month lease. The lease bound the tenant:

Not to assign this lease, nor to sublet or transfer possession of the premises; nor to give accommodations to boarders or lodgers; nor to use or permit the use of the dwelling for any other purpose than as a private dwelling, solely for the tenant and his family as specifically recorded in the tenant file.

Mrs. Glover denied the accusation and asked for the names of her accusers. Mrs. Vines refused this information, handing her a written notice to vacate the premises. The notice contained no specification of reasons for the eviction.

March 31 Mrs. Glover requested through an attorney a full hearing on the accusations. The Authority's Executive Director refused the request on the ground that she had already been given a hearing. At the time, the Authority was in substantial compliance with the existing regulations of the United States Department of Housing and Urban Development (HUD).¹ Mrs. Glover tendered April rent. The Authority refused to accept the rent and delivered a second notice to vacate the premises.

The Housing Authority then filed an action for unlawful detainer in Alabama state court. April 29, 1970, Mrs. Glover found a summons to appear in this action taped to her door. Before the hearing on the matter, Mrs. Glover was temporarily forced to vacate her apartment because of flooding from heavy rainfall. During her absence the Housing Authority had the lock on the door changed so that she could not return to her apartment. The Authority then dismissed the unlawful detainer action.

Mrs. Glover sued in the district court for an injunction, enjoining the Authority from evicting her, refusing to renew her lease, denying her the opportunity for a fair hearing before eviction, and maintaining segregated housing units.² The court held that the Authority had complied with the applicable requirements of Housing and Urban Development Department regulations and that the evidence was convincing that Mrs. Glover had violated her lease by having someone other than a member of her family living in her apartment.³ The court also concluded that if the plaintiff had desired a hearing on the reasons for terminating her lease, she could have had one in the state courts;⁴ that, in any event, any lack of due process was cured by the trial in the district court.

On appeal Mrs. Glover argues that she has a constitutional right not to be evicted from public housing without prior notification of the reason and an opportunity for a hearing in which she can confront her accusers and put on evidence in support of her position. In support of this contention, Mrs. Glover cites Escalera v. New York City Housing Authority, 2 Cir. 1970, 425 F.2d 853, and Caulder v. Durham Housing Authority, 4 Cir. 1970, 433 F.2d 998, as persuasive authority. These cases applied the teaching of Goldberg v. Kelly, 1970, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287, to eviction from public housing. Goldberg v. Kelly held that due process requires that before public assistance payments may be terminated the recipient is entitled to timely notice, a hearing with the opportunity to confront and cross-examine adverse witnesses, assistance of counsel, and an impartial decision-maker.

Because of intervening events we do not have to decide the constitutional issue asserted by Mrs. Glover. February 22, 1971, HUD issued a new circular (RHM 7465.9)⁵ superseding the 1967 circular considered in Thorpe v. Housing Authority of Durham, 1969, 393 U.S. 268, 89 S.Ct. 518. This new regulation is obviously based on Goldberg v. Kelly, Escalera, and Caulder. The required procedures include a hearing before an impartial official or hearing panel concerning any disputed action or inaction by the housing authority adverse to the tenant's rights (3a); representation of tenants on any such panel established (3b); notice prior to hearing of the reasons or grounds for the authority's disposition of the tenant's complaint or grievance (3c); opportunity at such a hearing to call witnesses, cross-examine adverse witnesses and to be represented by counsel or another person of his choice (3e); notification in writing of the decision and reasons therefor (3f); and judicial review of the decision of the hearing panel (3g).

We think these requirements should apply to all cases still under consideration. Thus, in Thorpe the Court gave retroactive effect to the 1967 circular which was issued after the eviction proceedings were commenced. The Authority urges that Thorpe is distinguishable because there the tenant still resided in the housing at the time of the new regulations while here Mrs. Glover had vacated the housing. Mrs. Glover, however, left her apartment temporarily because of flooding. The Housing Authority had the locks on the apartment changed so that she could not return. Her absence therefore cannot be characterized as a voluntary relinquishment of her rights to the status quo ante.

The Authority argues further that there is no need for a Housing Authority hearing in this case because the district court conducted an evidentiary hearing. But we think this argument misses the point that it is a hearing within the administrative framework to which Mrs. Glover is entitled. As this Court said about due process...