Nash v. Washington

• Decision Date: 16 July 1976
• Docket Number: No. 9885.,9885.
• Citation: 360 A.2d 510
• Parties: Robert E. NASH, Appellant, v. Walter E. WASHINGTON et al., Appellees.
• Court: D.C. Court of Appeals

360 A.2d 510

Robert E. NASH, Appellant, v. Walter E. WASHINGTON et al., Appellees.

No. 9885.

District of Columbia Court of Appeals.

Argued January 6, 1976.

Decided July 16, 1976.

COPYRIGHT MATERIAL OMITTED

Robert Beckerman, Washington, D.C., with whom Harold M. Thurston, III, Washington, D.C., Joanne Sgro, and Louis L. Joseph, Washington, D.C., were on the brief, for appellant.

James B. McDaniel, Sp. Asst. Corp. Counsel, Washington, D.C., with whom C. Francis Murphy, Corp. Counsel at the time the brief was filed, Louis P. Robbins, Principal Asst. Corp. Counsel, Richard W. Barton, Asst. Corp. Counsel, and James A. Price, Washington, D.C., Sp. Asst. Corp. Counsel, were on the brief, for appellees.

Before REILLY, Chief Judge, and YEAGLEY and MACK, Associate Judges.

MACK, Associate Judge:

This is an appeal from a decision by the trial court, on cross-motions for summary judgment, that the National Capital Housing Authority (NCHA) was not required to give appellant an administrative hearing prior to his eviction from a public housing apartment initially leased to his deceased mother and brother. The court reasoned that no pre-eviction hearing was required in view of the plenary hearing afforded in the Landlord and Tenant Branch of the Superior Court once a suit for possession was filed.¹ It refused to grant declaratory relief concerning appellant's substantive right to continued occupancy on the ground that this issue could be fully explored in the landlord-tenant proceeding. Because of new regulations promulgated during the pendency of this appeal, we reverse.

The relevant facts are that in November 1972 appellant, along with his mother Sallie R. Nash, his brother James M. Nash, and his sister Mary Thomas, moved into an apartment in a public housing project administered by appellee NCHA. Appellant's mother and brother signed a lease with NCHA on which appellant and his sister were listed as authorized residents. Sallie Nash and James Nash, the signatories to the lease, died in May 1973 and June 1974 respectively. Appellant notified NCHA of the deaths and continued to reside in the apartment with his sister (for whom he acts as legal guardian), making monthly rental payments to NCHA.

On January 29, 1975, appellant received a notice from NCHA stating that in accordance with the lease, the tenancy would terminate on March 1, 1975, due to changes in family size or composition² and that appellant had the right to file a complaint contesting the termination. On two occasions, appellant attempted to file a written complaint, but the complaints were not accepted on the ground that he had not signed a lease with NCHA. On February 24, 1975, he received a second notice which indicated that the tenancy would terminate on April 1, 1975, because he and his sister were no longer eligible for public housing.³ Portions of the notice form advising tenants of their rights to invoke the standard grievance procedure were crossed out by type. On March 21, 1975, appellant instituted this action seeking the opportunity for an administrative hearing, in accordance with NCHA standard grievance procedures, to determine whether there was good cause for an eviction.

The record indicates that appellant and his sister are both disabled adults who have a combined monthly income of approximately $288. NCHA does not dispute, for the purposes of this appeal, that they are eligible to reside in public housing or to occupy the particular apartment in which they now reside, but instead argues that they must reestablish their eligibility and priority status.

Appellant raises two main issues on appeal: (1) Whether he is entitled to a pre-eviction administrative hearing under federal regulations⁴ or as a matter of procedural due process; and (2) Whether, as a member of deceased tenants' family, he has a substantive right to continued occupancy of a public housing unit after the tenants' deaths under applicable federal laws⁵ or the due process clause of the Fifth Amendment.⁶ We hold that under current federal regulations promulgated by the Department of Housing and Urban Development (HUD),⁷ appellant is entitled to invoke NCHA grievance procedures to determine whether there is good cause to evict him. We also conclude that, due to the insufficiency of the record and the posture of this case, a decision on the extent of appellant's substantive rights would be premature.

NCHA is a public housing agency authorized to receive federal funds for the administration of low cost housing projects in the District of Columbia in accordance with the United States Housing Act of 1937, 42 U.S.C. § 1401 et seq. (1970). See D.C.Code 1973, § 5-103 et seq., as amended D.C.Code 1975 Supp., § 5-103 et seq. As such, it is required to comply with regulations concerning tenant grievance procedures promulgated by HUD pursuant to the Housing Act. Housing Authority of the City of Omaha 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); Braxton v. Poughkeepsie Housing Authority, 382 F.Supp. 992 (S.D.N.Y.1974). See also Thorpe v. Housing Authority of the City of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969). At the time of the trial court's decision in this case, neither HUD nor NCHA regulations prescribing grievance procedures, including an administrative hearing, specifically provided for use of the grievance mechanism by family members who resided in a public housing unit but who technically were not "tenants" because they had not signed the lease for the unit.⁸ However, since the issuance of the order on appeal, HUD has promulgated new regulations which require a public housing authority to grant "any lessee or the remaining head of the household of any tenant family" an opportunity for a pre-eviction hearing. Grievance Procedures and Requirements, 40 Fed.Reg. 33406, 33407 (Aug. 7, 1975), amending 24 C.F.R. § 866.53(f) (1975). Thus, under current regulations appellant, as the remaining head of a tenant household, would be entitled to invoke NCHA grievance procedures, including provisions for a pre-eviction hearing.

In a similar situation involving HUD regulations promulgated during the pendency of an appeal, the Supreme Court determined that as a general rule, an appellate court must apply the federal administrative regulations in effect at the time it renders its decision. See Thorpe v. Housing Authority of the City of Durham, supra at 281, 89 S.Ct. at 526. Accordingly, the Court remanded the case to the public housing authority for application of the new procedural requirements. Those requirements were set forth in a 1969 HUD Circular which is the precursor of the regulations at issue in this case. Subsequent changes in the procedural requirements have been uniformly applied to eviction proceedings commenced prior to their issuance by both state and federal courts. See, e. g., Glover v. Housing Authority of the City of Bessemer, 444 F.2d 158 (5th Cir. 1971); Chicago Housing Authority v. Harris, 49 Ill.2d 274, 275 N.E.2d 353 (1971); Housing Authority of the City of Milwaukee v. Mosby, 53 Wis.2d 275, 192 N.W.2d 913 (1972). Since we are aware of no special circumstances in this case requiring departure from the general rule enunciated in Thorpe,⁹ we conclude that the current regulations are applicable and require remand of this case to the housing authority for a fair hearing.¹⁰

In addition to asserting his procedural rights, appellant contends that as a resident of public housing, he has a statutory and constitutional right to continued occupancy of the public housing unit and may not be arbitrarily evicted solely because he was not a signatory to the lease. Although appellant presented this argument to the trial court in his cross-motion for summary judgment, appellees in their motion for summary judgment and the trial court in its initial order addressed only procedural issues concerning the question of whether a pre-eviction hearing was required.¹¹ After appellant filed a motion to amend the judgment, urging consideration of his substantive claims, the trial court issued a second order declining to grant declaratory relief with respect to the substantive issues because appellant's claims could be asserted as a defense in a suit instituted by appellees for possession of the leased premises.

For different reasons, we conclude that a determination of appellant's right to remain in public housing accommodations would be premature at this time. See Thorpe v. Housing Authority of the City of Durham, supra at 284, 89 S.Ct. at 527. First, the record does not clearly show that NCHA sought to evict appellant because he had not signed a lease. Rather we are left in doubt as to the actual reasons for the termination notices.¹² These reasons will come to light in the grievance proceedings. The hearing will also disclose whether there is any cause to evict other than the fact that the family members who originally signed the lease are now deceased.¹³

Even were we inclined to decide this matter before a controversy has been clearly established, we would he unable to do so on this appeal. Appellant's argument that he has a protected interest in continued occupancy of public housing finds considerable support in numerous cases holding that tenants of federally funded housing projects have a right or entitlement to continued occupancy under the United States Housing Act and related federal statutes or under the due process clause and may not be evicted at the expiration of a lease term without good cause. See, e. g., Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937 (2d Cir. 1974); Joy v. Daniels, 479 F.2d 1236 (4th Cir. 1973); Anderson v. Denny, 365 F.Supp. 1254 (W. D.Va.1973); McQueen v. Druker, 317 F. Supp. 1122 (D.Mass.1970), aff'd on other grounds, 438 F.2d 781 (1st Cir. 1971); Green v. Copperstone Limited Partnership, 28 Md.App. 498, 346 A.2d 686 (1975); Appel v. Beyer, ...