Decision Date29 October 1990
Docket NumberCiv. No. 90-1410.
Citation749 F. Supp. 622
PartiesHOUSING AUTHORITY OF THE CITY OF JERSEY CITY, Plaintiff, v. Sheila JACKSON, Defendant/Third Party Plaintiff, v. Jack KEMP, in his capacity as Secretary of the United States Department of Housing and Urban Development, Third Party Defendant.
CourtU.S. District Court — District of New Jersey

Gregory G. Diebold, Claudette L. St. Romain, Hudson County Legal Services Corp., Jersey City, N.J., for Sheila Jackson, defendant/third party plaintiff.

Michael Chertoff, U.S. Atty. by Susan C. Cassell, Asst. U.S. Atty., Deputy Chief, Civ. Div., Newark, N.J., for Jack Kemp, Secretary of the U.S. Dept. of Housing and Urban Development, third party defendant.

Charles Centinaro, Shaljian, Cammarata, O'Connor & Messano, Jersey City, N.J., for the Housing Authority of the City of Jersey City, plaintiff.


DEBEVOISE, District Judge.

This case raises the question of whether a public housing tenant must be afforded an administrative grievance hearing before eviction proceedings may be brought against her in state court. The tenant in this case has brought a counter-claim and a third party complaint challenging a determination of the Secretary of the United States Department of Housing and Urban Development, which allows housing authorities in New Jersey to exclude from their grievance hearing procedures any evictions brought in the Special Civil Part of the New Jersey Superior Court. The Secretary and the housing authority which brought the eviction action have moved for summary judgment dismissing the counterclaim and third party complaint, and the tenant has crossmoved for summary judgment. For the reasons explained below, I find that the Secretary's determination was erroneous, and that housing authorities must afford their tenants administrative grievance hearings before instituting eviction proceedings against them in the Special Civil Part. Therefore, the Secretary's and the housing authority's motions for summary judgment are denied, and the tenant's cross-motion for summary judgment is granted.


This case began in New Jersey state court, specifically, in the Superior Court, Law Division: Special Civil Part ("Special Civil Part"). Plaintiff, the Housing Authority of the City of Jersey City (the "Housing Authority"), brought a summary eviction proceeding against one of its tenants, defendant Sheila Jackson ("Jackson").1 Jackson wanted to file a counterclaim, as well as join a third party to the action, both of which are prohibited in summary landlord-tenant proceedings. See N.J.Ct.R. 6:3-4. Therefore, Jackson moved, successfully, to transfer the proceedings to the Superior Court, Law Division ("Law Division"). Once the case was transferred, Jackson served her answer, together with a two count counterclaim, on the Housing Authority. In addition, Jackson brought a two count third party complaint against the Secretary of the United States Department of Housing and Urban Development (the "Secretary"). Thereafter, the Secretary removed the entire proceeding to this court, pursuant to 28 U.S.C. § 1441.

The Housing Authority and the Secretary each moved for summary judgment, seeking dismissal of Jackson's counterclaim and third party complaint, respectively, and Jackson cross-moved for summary judgment.2

The central dispute in this case is over the circumstances under which a public housing tenant, such as Jackson, is entitled to a prior administrative grievance hearing before summary eviction proceedings may be brought against her in court. It is agreed that Jackson was not afforded such a hearing in this case, and that if she is entitled to such a hearing, the eviction action was improperly brought.

The availability of a prior administrative grievance hearing is important for at least two reasons. First, administrative hearings can "avoid costly and divisive public housing litigation by channeling tenant-management disputes into a decentralized, informal, and relatively non-adversarial administrative process." Samuels v. District of Columbia, 770 F.2d 184, 189 (D.C.Cir. 1985). Second, because most public housing tenants lack the specialized training of a lawyer,3 they may find the formality and complexity of judicial proceedings somewhat daunting, and may best be able to defend themselves in the context of relatively informal and flexible administrative proceedings. Cf. Escalera v. New York City Housing Authority, 425 F.2d 853, 864 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970) ("cost of defending in court and the hazards envisioned by a public housing tenant in refusing to pay rent, would probably dissuade all but the boldest tenant from" defending in court against housing authority suit for rent).

The provision for grievance hearings dates back to the 1960's. After the Supreme Court granted certiorari to consider a challenge to a housing authority's failure to provide a preeviction hearing, the Department of Housing and Urban Development ("HUD") issued a directive to local housing authorities, requiring them to comply with certain procedures before evicting their tenants. See Thorpe v. Housing Authority of Durham, 386 U.S. 670, 672, 87 S.Ct. 1244, 1245, 18 L.Ed.2d 394 (1967). This directive was subsequently upheld against challenge, as an appropriate means to further the goal of providing "`a decent home and a suitable living environment for every American family.'" Thorpe v. Housing Authority of Durham, 393 U.S. 268, 281, 89 S.Ct. 518, 525, 21 L.Ed.2d 474 (1969) (quoting 42 U.S.C. § 1441). In 1971, HUD issued further directives, specifically requiring an administrative grievance hearing regarding any planned adverse action taken by a housing authority. See Circular RHM 7465.9 at 2 (Feb. 22, 1971), Statutory Addendum at 22. Again, these directives were upheld over a challenge that HUD had exceeded its authority. See Omaha Housing Authority v. United States Housing Authority, 468 F.2d 1 (8th Cir.1972), cert. denied, 410 U.S. 927, 93 S.Ct. 1360, 35 L.Ed.2d 588 (1973). In 1975, HUD readopted and published these regulations in the Code of Federal Regulations.

The current version of the regulations, codified at 24 C.F.R. Part 966, requires each housing authority to establish and implement a grievance process that provides tenants with a hearing if they dispute any action or inaction of the housing authority concerning lease provisions or local or federal regulations. See 24 C.F.R. § 966.50. The grievance procedure mandated by the regulations includes an informal settlement conference, id., § 966.54, and, failing settlement, an informal proceeding before an impartial hearing officer. Id., § 966.55(b). Pursuant to the regulations, the grievance procedure must provide "the basic safeguards of due process which shall include:"

(1) The opportunity to examine before the hearing and, at the expense of the complainant, to copy all documents, records and regulations of the PHA public housing agency that are relevant to the hearing. Any document not so made available after request therefor by the complainant may not be relied on by the PHA at the hearing;
(2) The right to be represented by counsel or other person chosen as his or her representative;
(3) The right to a private hearing unless the complainant requests a public hearing;
(4) The right to present evidence and arguments in support of his or her complaint, to controvert evidence relied on by the PHA or project management, and to confront and cross-examine all witnesses on whose testimony or information the PHA or project management relies; and
(5) A decision based solely and exclusively upon the facts presented at the hearing.

Id., § 966.56(b).

Finally, the regulations provide that a housing authority may exclude grievance hearings for a limited class of evictions, see id., § 966.51(a), but only "in those jurisdictions which require that, prior to eviction, a tenant be given a hearing in court containing the elements of due process," where "the following procedural safeguards are required:"

(1) Adequate notice to the tenant of the grounds for terminating the tenancy and for eviction;
(2) Opportunity for the tenant to examine all relevant documents, records and regulations of the PHA prior to the trial for the purpose of preparing a defense;
(3) Right of the tenant to be represented by counsel;
(4) Opportunity for the tenant to refute the evidence presented by the PHA including the right to confront and cross-examine witnesses and to present any affirmative legal or equitable defense which the tenant may have;
(5) A decision on the merits.

Id., § 966.53(c).

In 1982, however, the Secretary proposed to restrict the availability of grievance procedures to disputes concerning rent calculation and tenant selection. See 47 Fed.Reg. 55,689, 55,692 (1982). In response, Congress amended the Housing Act to require housing authorities to maintain grievance procedures regarding all tenant disputes.

The Secretary shall by regulation require each public housing agency receiving assistance under this chapter to establish and implement an administrative grievance procedure under which tenants will —
(1) be advised of the specific grounds of any proposed adverse public housing agency action;
(2) have an opportunity for a hearing before an impartial party upon timely request within any period applicable under subsection (l) of this section;
(3) have an opportunity to examine any documents or records or regulations related to the proposed action;
(4) be entitled to be represented by another person of their choice at any hearing;
(5) be entitled to ask questions of witnesses and have others make statements on their behalf;
(6) be entitled to receive a written decision by the public housing agency on the proposed action.

42 U.S.C. § 1437d(k). However, Congress also provided that:

An agency may exclude from its procedure any grievance concerning an eviction or termination

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