Lewis v. HOUSING AUTHORITY OF CITY OF TALLADEGA, ALABAMA

• Decision Date: 26 June 1968
• Docket Number: No. 25172.,25172.
• Citation: 397 F.2d 178
• Parties: Everline LEWIS and Margaret Truss, Appellants, v. The HOUSING AUTHORITY OF the CITY OF TALLADEGA, ALABAMA, et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

397 F.2d 178 (1968)

Everline LEWIS and Margaret Truss, Appellants, v. The HOUSING AUTHORITY OF the CITY OF TALLADEGA, ALABAMA, et al., Appellees.

No. 25172.

United States Court of Appeals Fifth Circuit.

June 26, 1968.

Orzell Billingsley, Jr., Peter A. Hall, Birmingham, Ala., Charles H. Jones, Jr., New York City, Gabrielle A. Kirk, Jack Greenberg, Charles Stephen Ralston, New York City, for appellants.

Byron D. Boyett, Talladega, Ala., Reid B. Barnes, Birmingham, Ala., for appellees.

Before AINSWORTH and SIMPSON, Circuit Judges, and SINGLETON, District Judge.

AINSWORTH, Circuit Judge:

Appellants, who are Negro tenants of Knoxville Homes, a public housing project of the City of Talladega, Alabama, brought this class action, as plaintiffs, under Rule 23(b) (2) of the Federal Rules of Civil Procedure against the Housing Authority of the City of Talladega, Alabama, and its Executive Director, for declaratory and injunctive relief, to redress the alleged deprivation of constitutional rights under the due process and equal protection clauses, and their rights under the United States Housing Act (42 U.S.C. § 1401 et seq.) and the Civil Rights Act of 1964, Section 601 (42 U.S.C. § 2000d).

According to the allegations of their complaint, appellants sought an injunction enjoining defendants from:

A. Continuing to enforce its policy of automatically evicting any family living in any one of its public housing projects if a member of that family has or is expecting an illegitimate child;

B. Continuing to evict or threatening to evict tenants living in any one of its public housing projects without indicating the reasons for the eviction and without giving them a fair hearing on the alleged charges for the eviction;

C. Instituting any proceedings to evict or further threatening to evict plaintiffs and the classes they represent;

D. Continuing to segregate the said public housing projects on the basis of race or color;

E. Failing to comply with federal regulations relating to the operation of public housing projects constructed with the aid of federal funds; in particular, those regulations that require that notices be posted stating that all projects are open to all applicants regardless of race or color.

They allege that the practices complained of also entitled them to a declaratory judgment.

Plaintiffs received letters dated January 23, 1967 from the Housing Authority, notifying them to move and vacate the premises in 10 days. Subsequently they were notified to vacate by February 10, 1967. Though no reason was stated in the letters to the tenants to vacate, the ostensible reason why plaintiff Everline Lewis was being required to vacate was that her daughter was expecting an illegitimate child although the daughter did not live with the tenant. Plaintiff Margaret Truss was being required to vacate for the reason that she was expecting an illegitimate child.

Defendant adopted a rule on February 21, 1964, effective December 1, 1964, that any illegitimate child born to any member of a tenant family would automatically bring eviction of that family, and if it became apparent that a person is expecting an illegitimate child, the family would be evicted immediately.¹

On February 10, 1967, the present complaint was filed and the District Judge granted a temporary restraining order stopping the threatened eviction. Thereafter, the Housing Authority filed a motion to dismiss and a supplemental motion to dismiss to which was attached a copy of the revocation of the eviction notices. The Authority then contended that cancellation and revocation of the notices to vacate rendered the case moot and plaintiffs' action should be dismissed. The District Judge granted the motion to dismiss, and on plaintiffs' motion to vacate and set aside the order, the District Judge again held that the suit should be dismissed but without prejudice. The District Judge stated in his order that it appeared "there is no present threat to evict either of the plaintiffs or any other party for violation of the rule referred to." The Court noted plaintiffs' insistence upon a hearing to test the constitutionality of the rule, but stated it did not feel it should meet this issue under the undisputed facts. The Court stated it would permit a reopening of the case "without the necessity of the institution of a new suit at any time that the rights of the plaintiffs might be impaired by any wrongful or unconstitutional acts on the part of the defendants" and that "The plaintiffs will be permitted on proper notice and upon good cause shown to reinstate this action." The effect of the Court's order was to reaffirm its dismissal of the suit (without prejudice) on the ground of mootness.

On February 7, 1967, subsequent to the mailing of the original notices to vacate, the Department of Housing and Urban Development issued a directive to local authorities requiring that no tenant in a federally assisted housing project be given notice to vacate without being told by the local authority, in a private conference or other appropriate manner, the reasons for the eviction, and be given an opportunity to make such reply or explanation as he may wish. The circular is noted in the Supreme Court's decision in Thorpe v. Housing Authority of City of Durham, 386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394 (1967). In his order finally dismissing the plaintiffs' suit the District Judge said, "The counsel for the Housing Authority has stated in open court that the Authority is complying with the circular of the Department of Housing and Urban Development which was involved in the decision of Thorpe v. Housing Authority of the City of Durham * * * and that the aforesaid rule will further in all respects be subordinated to the circular referred to."

Appellants complain that their suit was dismissed with many of the important allegations of their complaint untried and unheard. As to the...