Simmons v. Drew, No. 82-2773

CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)
Writing for the CourtBefore CUMMINGS; CUMMINGS; PELL
Citation716 F.2d 1160
PartiesHosea SIMMONS and Andrea Williams, Plaintiffs-Appellants, v. William Ryan DREW and the Housing Authority of the City of Milwaukee, Defendants-Appellees.
Docket NumberNo. 82-2773
Decision Date12 September 1983

Page 1160

716 F.2d 1160
Hosea SIMMONS and Andrea Williams, Plaintiffs-Appellants,
v.
William Ryan DREW and the Housing Authority of the City of
Milwaukee, Defendants-Appellees.
No. 82-2773.
United States Court of Appeals,
Seventh Circuit.
Argued April 19, 1983.
Decided Sept. 12, 1983.

Page 1161

James A. Gramling, Jr., Louis J. Mestre, Legal Action of Wisconsin, Inc., Milwaukee, Wis., for plaintiffs-appellants.

Michael A.I. Whitcomb, Asst. City Atty., Milwaukee, Wis., for defendants-appellees.

Before CUMMINGS, Chief Judge, NICHOLS * and PELL, Circuit Judges.

CUMMINGS, Chief Judge.

Plaintiffs are two participants in a public rent assistance program who claim that the Fourteenth Amendment entitles them to a hearing before the administering state agency may expel them from it. They commenced this civil rights suit under 42 U.S.C. Sec. 1983 as a class action and seek money damages, declaratory and injunctive relief. Because summary judgment was granted against them before the class was certified, the only issues before us are those germane to the claims each asserts on her own behalf. Roberts v. American Airlines, Inc., 526 F.2d 757 (7th Cir.1975), certiorari denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195.

Section 8 of the United States Housing Act of 1937, 42 U.S.C. Sec. 1437f, authorizes the Secretary of the United States Department of Housing and Urban Development ("HUD") to establish various programs to "aid[ ] lower-income families in obtaining a decent place to live and [to] promot[e] economically mixed housing." These programs are financed by the federal government, regulated by HUD, and administered by state public housing agencies ("PHA's"). One such program--the rent assistance program--helps low-income families to obtain rental housing in the open market. Briefly, the program works as follows: HUD contracts with a local PHA to make available each year a sum of money for the payment of rent on behalf of a specified number of families with incomes below a certain amount. The PHA then distributes this money by contracting to pay each person who agrees to rent housing to one of these families a fixed percentage of the family's rent.

Before a PHA will begin to make rental payments on behalf of a family eligible to receive them, four things must happen. First, the family must be admitted into the rent program. Families apply to their PHA for admission; those admitted receive a certificate authorizing them to participate in the program. When the program is full, eligible applicants are placed on a waiting list. Second, once a family is admitted, it must within a stated period of time find someone willing to rent to it and submit a proposed lease to the PHA for its approval. Third, the PHA must approve the proposed lease if it finds, after an inspection, that the dwelling to be leased is in decent, safe, and sanitary condition and that the terms of the proposed lease conform with the requirements set forth in regulations issued by HUD. Fourth, and last, the necessary papers must be signed: the lessor and family must sign the lease and the lessor and the PHA must sign a contract containing the terms and conditions of the PHA's promise to pay the lessor a fixed percentage of the family's rent.

Page 1162

Plaintiff Andrea Williams had completed the first of these steps when the defendant Housing Authority of the City of Milwaukee ("Milwaukee PHA") 1 sent her written notice that it had expelled her from the program; plaintiff Hosea Simmons was sent a similar notice after having completed three of the four steps. The notices informed plaintiffs why they had been expelled--each was alleged to have violated a lease she had previously received through the program, Williams by permitting a person not named in the lease to reside with her and Simmons by moving into her new residence two weeks before her lease on her old residence expired. The notices also advised each plaintiff that she had a right to an informal hearing conducted by the Milwaukee PHA. Although the notices did not say so, the purpose of those hearings would not be, as it probably seemed to plaintiffs, to determine whether they had in fact committed the alleged lease violations but rather to determine whether the Milwaukee PHA should forgive the violations and readmit plaintiffs into the program. Simmons and Williams both requested and were granted hearings and both were readmitted into the program some two months after having been expelled.

Because plaintiffs were expelled from the program, it is quite likely--although not certain--that they did not begin to receive rent assistance until some two months later than they would have had they not been expelled. The Milwaukee PHA refused to compensate plaintiffs for that loss, not because it found that it had just cause to expel them or because it found that the payments had not in fact been withheld for two months, but because it claims it has no power to make any retroactive payments of rent assistance benefits. It is this fact that is the heart of plaintiffs' claim that the Milwaukee PHA was constitutionally required to afford them a hearing before it expelled them.

Plaintiffs can complain about lack of process only if the Milwaukee PHA deprived them of property protected by the Fourteenth Amendment when it expelled them from the rent assistance program for two months. Issuing a family a certificate admitting it into the rent assistance program is much the same as conferring job tenure upon a public school teacher. Tenure restricts the power of a state to terminate the employment of one of its teachers; it gives the teacher the right to continue teaching so long as the state lacks just cause to fire him. See Smith v. Board of Education, 708 F.2d 258 (7th Cir.1983). A certificate limits the power of a PHA to deny rent assistance to the family that holds it; until the certificate expires, it gives the family the right to continue participating in the program so long as the PHA lacks just cause to expel it. Both the Milwaukee PHA's own internal operating rules and a regulatory handbook put out by HUD list the grounds sufficient to constitute just cause for expelling a family from the program. It is unclear whether the provisions in HUD's handbook are binding upon PHA's, see Nichols v. Landrieu, No. 79-3094 (D.D.C. Sept. 12, 1980), and that raises the question whether the right of participating in the program that vests when a certificate is issued is federally or state created. But whichever is the case, it is plain that just as job tenure is a species of property protected by the Fourteenth Amendment, Perry v. Sinderman, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570, so too is "program tenure," the right of certificate holders to participate in a rent assistance program by seeking out persons willing and able to rent them housing pursuant to the rules of the program. Ferguson v. Metropolitan Development & Housing Agency, 485 F.Supp. 517 (M.D.Tenn.1980); Brezina v. Dowdall, 472 F.Supp. 82 (N.D.Ill.1979); Watkins v. Mobile Housing Board, No. 79-0067-p (S.D.Ala. May 14, 1979). Cf. Holbrook v. Pitt, 643 F.2d 1261, 1278 and n. 35 (7th Cir.1981).

It might be argued, and there are traces of this argument in the district court's memorandum opinion awarding defendants summary judgment, that because plaintiffs

Page 1163

were readmitted into the program two months after having been expelled, they were not deprived of this property. It is conceivable, though extremely unlikely, that the signing of Simmons' lease and rent assistance contract effective May 8, 1980, and the processing of Williams' alternative requests for approvals of proposed leases of two units 2 might have been held up for two months even had they not been expelled from the program. Thus, goes the argument, it is possible that neither plaintiff suffered any loss of rent assistance benefits.

The PHA's argument assumes that there can be no constitutional deprivation if there is no demonstrable loss of benefits. However logical that assumption may seem, the Supreme Court squarely rejected it in Carey v. Piphus, 435 U.S. 247, 98 S.Ct. 1042, 55 L.Ed.2d 252, when it held that persons deprived of property without due process could sue under Section 1983 for nominal damages. The rationale is that it is more important that procedural rights guaranteed by the Constitution be protected than that the public be spared the cost, and state agents the inconvenience, of litigating claims worth little or no money. Thus regardless of whether plaintiffs lost any benefits or whether the Milwaukee PHA had a legitimate ground for expelling them, expelling plaintiffs from the program for two months deprived them of property protected by the Fourteenth Amendment.

Shortly before Williams was expelled, a Wisconsin court evicted her from the rented dwelling she then occupied because it found that she had permitted more people to live there than the lease allowed. The court made its finding after a bench trial at which Williams appeared and had ample opportunity to present her version of the facts....

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30 practice notes
  • Long v. D.C. Hous. Auth., Civil Action No.: 15-00605 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • February 29, 2016
    ...Development (“HUD”), and administered by state and local public housing agencies (“PHAs”). See 42 U.S.C. § 1437f ; Simmons v. Drew , 716 F.2d 1160, 1161 (7th Cir.1983). Through the Program, HUD distributes federal funds to PHAs, and the PHAs, in turn, distribute the funds by contracting wit......
  • Khan v. Bland, No. 09–1735.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 13, 2010
    ...have a property interest in the assistance and must be heard before being expelled from the program, [630 F.3d 528] Simmons v. Drew, 716 F.2d 1160, 1162 (7th Cir.1983), but Section 8 housing applicants who have been deemed eligible do not have a protected right that entitles them to due pro......
  • Glidden v. Chromalloy American Corp., No. 86-1867
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 1986
    ...should be certified at a later time. See also Peritz v. Liberty Loan Corp., 523 F.2d 349, 354 n. 4 (7th Cir.1975). Cf. Simmons v. Drew, 716 F.2d 1160, 1161 (7th Cir.1983) (similar disposition, but without an explicit statement of the rationale). See also Pharo v. Smith, 621 F.2d 656, 664 (5......
  • Moore v. Dena Hunt & Milwaukee Cnty., Case No. 14-CV-1101-JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • August 20, 2015
    ...Ms. Moore was not entitled to a hearing under either authority. 2.2.2.1 Constitutionally Sufficient Process First, under Simmons v. Drew, 716 F.2d 1160 (7th Cir. 1983), Ms. Moore had no constitutional right to a pre-termination hearing. In Simmons, the Seventh Circuit considered a situation......
  • Request a trial to view additional results
30 cases
  • Long v. D.C. Hous. Auth., Civil Action No.: 15-00605 (RC)
    • United States
    • U.S. District Court — District of Columbia
    • February 29, 2016
    ...Development (“HUD”), and administered by state and local public housing agencies (“PHAs”). See 42 U.S.C. § 1437f ; Simmons v. Drew , 716 F.2d 1160, 1161 (7th Cir.1983). Through the Program, HUD distributes federal funds to PHAs, and the PHAs, in turn, distribute the funds by contracting wit......
  • Khan v. Bland, No. 09–1735.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • September 13, 2010
    ...have a property interest in the assistance and must be heard before being expelled from the program, [630 F.3d 528] Simmons v. Drew, 716 F.2d 1160, 1162 (7th Cir.1983), but Section 8 housing applicants who have been deemed eligible do not have a protected right that entitles them to due pro......
  • Glidden v. Chromalloy American Corp., No. 86-1867
    • United States
    • United States Courts of Appeals. United States Court of Appeals (7th Circuit)
    • December 23, 1986
    ...should be certified at a later time. See also Peritz v. Liberty Loan Corp., 523 F.2d 349, 354 n. 4 (7th Cir.1975). Cf. Simmons v. Drew, 716 F.2d 1160, 1161 (7th Cir.1983) (similar disposition, but without an explicit statement of the rationale). See also Pharo v. Smith, 621 F.2d 656, 664 (5......
  • Moore v. Dena Hunt & Milwaukee Cnty., Case No. 14-CV-1101-JPS
    • United States
    • United States District Courts. 7th Circuit. United States District Court of Eastern District of Wisconsin
    • August 20, 2015
    ...Ms. Moore was not entitled to a hearing under either authority. 2.2.2.1 Constitutionally Sufficient Process First, under Simmons v. Drew, 716 F.2d 1160 (7th Cir. 1983), Ms. Moore had no constitutional right to a pre-termination hearing. In Simmons, the Seventh Circuit considered a situation......
  • Request a trial to view additional results

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