Thorpe v. Housing Authority of Durham
Opinion of the Court
delivered the opinion of the Court.
This case raises the question whether a tenant of a federally assisted housing project can be evicted prior to notification of the reasons for the eviction and without an opportunity to reply to those reasons, when such a
On November 11, 1964, petitioner and her children commenced a month-to-month tenancy in McDougald Terrace, a federally assisted, low-rent housing project owned and operated by the Housing Authority of the City of Durham, North Carolina. Under the lease, petitioner is entitled to an automatic renewal for successive one-month terms, provided that her family composition and income remain unchanged and that she does not violate the terms of the lease.
On September 17,1965, the Housing Authority brought an action for summary eviction in the Durham Justice of the Peace Court, which, three days later, ordered petitioner removed from her apartment. On appeal to the Superior Court of Durham County, petitioner alleged that she was being evicted because of her organizational activities in violation of her First Amendment rights. After a trial de novo,
On February 7, 1967, while petitioner’s case was pending in this Court, HUD issued a circular directing that before instituting an eviction proceeding local housing authorities operating all federally assisted projects should inform the tenant "in a private conference or other appropriate manner” of the reasons for the eviction and give him “an opportunity to make such reply or explanation as he may wish.”
On remand, the North Carolina Supreme Court refused to apply the February 7 HUD circular and reaffirmed its prior decision upholding petitioner’s eviction. Analo
In support of the North Carolina judgment, the Housing Authority makes three arguments: (1) the HUD circular was intended to be advisory, not mandatory; (2) if the circular is mandatory, it is an unauthorized and unconstitutional impairment of both the Authority’s annual contributions contract with HUD
I.
Pursuant to its general rule-making power under § 8 of the United States Housing Act of 1937,
Despite the incorporation of the February 7 circular into the Management Manual in October 1967, the Housing Authority contends that on its face the circular purports to be only advisory. The Authority places particular emphasis on the circular’s precatory statement that HUD “believes” that its notification procedure should be followed. In addition to overlooking the significance of the subsequent incorporation of the circular into the Management Manual, the Authority’s argument is based upon a simple misconstruction of the language actually used. The import of that language, which characterizes the new notification procedure as “essential,” becomes apparent when the February 7 circular is contrasted with the one it superseded. The earlier circular, issued on May 31, 1966, stated: “[W]e strongly urge, as a matter of good social policy, that Local Authorities in a
That HUD intended the February 7 circular to be mandatory has been confirmed unequivocally in letters written by HUD’s Assistant Secretary for Renewal and Housing Assistance
Finding that the circular was intended to be mandatory does not, of course, determine the validity of the requirements it imposes.
“It does not . . . purport to change the terms of the lease provisions used by Housing Authorities, nor does it purport to take away from the Housing Authority its legal ability to evict by complying with the terms of the lease and the pertinent provisions of the State law relating to evictions. It does not deal with what reasons are acceptable to HUD .... Moreover, the Circular clearly does not say that a Housing Authority cannot terminate at the end of any term without cause as is provided in the lease.”30
The circular imposes only one requirement: that the Authority comply with a very simple notification procedure before evicting its tenants. Given the admittedly insubstantial effect this requirement has upon the basic lease agreement under which the Authority discharges its management responsibilities, the contention that the circular violates the congressional policy of allowing local authorities to retain maximum control over the administration of federally financed housing projects is untenable.
The Authority also argues that under the Due Process Clause of the Fifth Amendment HUD is powerless to impose any obligations except those mutually agreed upon in the annual contributions contract.
The respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged. Each provision of that contract is as enforceable now as it was prior to the issuance of the circular.
Likewise, the lease agreement between the Authority and petitioner remains inviolate. Petitioner must still pay her rent and comply with the other terms of the lease; and, as the Authority itself acknowledges, she is still subject to eviction.
Since the Authority does not argue that the circular is proscribed by any constitutional provision other than the Due Process Clause, the only remaining inquiry is whether it is reasonably related to the purposes of the
III.
The Housing Authority also urges that petitioner’s eviction should be upheld on the theory relied upon by the Supreme Court of North Carolina: the circular does not apply to eviction proceedings commenced prior to its issuance. The general rule, however, is that an appellate court must apply the law in effect at the time it renders its decision.
“[I]f subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. If the law be constitutional, ... I know of no court which can contest its obligation. It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns . . . the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”39
This same reasoning has been applied where the change was constitutional,
To the contrary, the general rule is particularly applicable here. The Housing Authority concedes that its power to evict is limited at least to the extent that it may not evict a tenant for engaging in constitutionally
IV.
Petitioner argues that in addition to holding the HUD circular applicable to her case, we must also establish guidelines to insure that she is provided with not only
“This lease shall be automatically renewed for successive terms of one month each at the rental last entered and acknowledged below .... Provided, there is no change in the income or composition of the family of the tenant and no violation of the terms hereof. In the event of any change in the composition or income of the family of the tenant, rent for the premises shall automatically conform to the rental rates established in the approved current rent schedule which has been adopted by the Management for the operation of this Project ...”
“This lease may be terminated by the Tenant by giving to Management notice in writing of such termination 15 days prior to the last day of the term. The Management may terminate this lease by giving to the Tenant notice in writing of such termination fifteen (15) days prior to the last day of the term. Provided, however, that this paragraph shall not be construed to prevent the termination of this lease by Management in any other method or for any other cause set forth in this lease.”
The Housing Authority construes this provision to authorize termination upon the giving of the required notice even if the tenant has not violated the terms of the lease and his income and family composition have not changed. Petitioner, however, insists that since the Authority is a government agency, it may not constitutionally evict “for no reason at all, or for an unreasonable, arbitrary and capricious reason . . . .” Brief for Petitioner 27. We do not, however, reach that issue in this case. See n. 49, infra.
The text of the notice is as follows:
“Your Dwelling Lease provides that the Lease may be cancelled upon fifteen (15) days written notice. This is to notify you that your Dwelling Lease will be cancelled effective August 31, 1965, at which time you will be required to vacate the premises you now occupy.”
One of those attempts was made on September 1. In an affidavit filed with the Superior Court of Durham County, petitioner alleged that on that day members of the Housing Authority met with a Durham police detective who had been investigating petitioner’s conduct. Although petitioner’s attorney met with Housing Authority representatives on this same day to request a hearing, the attorney was not informed what information had been uncovered by the police investigation or whether it had any bearing on petitioner’s eviction.
All of the essential facts were stipulated in the Superior Court, including:
“that if Mr. C. S. Oldham, the Executive Director of the Housing Authority of the City of Durham, were present and duly sworn and were testifying, he would testify that whatever reason there may have been, if any, for giving notice to Joyce C. Thorpe of the termination of her lease, it was not for the reason that she was elected
*272 president of any group organized in McDougald Terrace, and specifically it was not for the reason that she was elected president of any group organized in McDougald Terrace on August 10, 1965 .. . .”
267 N. C. 431, 148 S. E. 2d 290 (1966).
385 U. S. 967.
The full text of that circular is as follows:
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT Washington, D. C. 20410
Circular
2-7-67
Office of the Assistant Secretary For Renewal and Housing Assistance TO: Local Housing Authorities
Assistant Regional Administrators for
Housing Assistance HAA Division and Branch Heads
FROM: Don Hummel
SUBJECT: Terminations of Tenancy in Low-Rent Projects
Within the past year increasing dissatisfaction has been expressed with eviction practices in public low-rent housing projects. During*273 that period a number of suits have been filed throughout the United States generally challenging the right of a Local Authority to evict a tenant without advising him of the reasons for such eviction.
Since this is a federally assisted program, we believe it is essential that no tenant 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 given an opportunity to make such reply or explanation as he may wish.
In addition to informing the tenant of the reason (s) for any proposed eviction action, from this date each Local Authority shall maintain a written record of every eviction from its federally assisted public housing. Such records are to be available for review from time to time by HUD representatives and shall contain the following information:
1. Name of tenant and identification of unit occupied.
2. Date of notice to vacate.
3. Specific reason(s) for notice to vacate. For example, if a tenant is being evicted because of undesirable actions, the record should detail the actions which resulted in the determination that eviction should be instituted.
4. Date and method of notifying tenant with summary of any conferences with tenant, including names of conference participants.
5. Date and description of final action taken.
The Circular on the above subject from the PHA Commissioner, dated May 31, 1966, is superseded by this Circular.
s/ Don Hummel Assistant Secretary for Renewal and Housing Assistance
386 U. S. 670, 673-674 (1967).
271 N. C. 468, 471, 167 S. E. 2d 147, 150 (1967).
390 U. S. 942 (1968).
The Supreme Court of North Carolina stayed the execution of its judgment pending our decision. As a result, petitioner has not yet vacated her apartment.
Under § 10 (a) of the United States Housing Act of 1937, 50 Stat. 891, as amended, 42 U. S. C. § 1410 (a) (1964 ed., Supp. Ill), HUD is required to enter into an annual contributions contract with the local housing authorities. In that contract, HUD guarantees to provide a certain amount of money over a certain number of years.
50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III).
Housing Assistance Administration, HUD, Low-Rent Management Manual.
Id., §0 (preface) (April 1962).
Ibid.
Housing Assistance Administration, HUD, Low-Rent Housing Manual § 100.2, at 2 (Sept. 1963).
Ibid.
Circular from Commissioner Marie C. McGuire to Local Authorities, Regional Directors, and Central Office Division and Branch Heads, May 31, 1966.
“[W]e intended it to be followed. . . . The circular is as binding in its present form as it will be after incorporation in the manual. . . . HUD intends to enforce the circular to the fullest extent of its ability. . . .”
Letter from Assistant Secretary Don Hummel to Mr. Charles S. Ralston of the NAACP Legal Defense and Educational Fund, Inc., July 25,1967.
HUD’s Chief Counsel stated that his “views are the same as those expressed” by Assistant Secretary Hummel. Letter from Mr. Joseph Burstein to Mr. Charles S. Ralston, Aug. 7, 1967.
Accord, Udall v. Tollman, 380 U. S. 1 (1965). See Zemel v. Rusk, 381 U. S. 1 (1965).
See Udall v. Tollman, supra.
3 86 U. S. 670, 673, n. 4 (1967).
This rule-making power was transferred from the Public Housing Administration to HUD by § 5 (a) of the Department of Housing and Urban Development Act, 79 Stat. 669, 42 U. S. C. § 3534 (a) (1964 ed., Supp. III).
50 Stat. 891, as amended, 42 U. S. C. § 1408 (1964 ed., Supp. III). Such broad rule-making powers have been granted to numerous other federal administrative bodies in substantially the same language. See, e. g., 72 Stat. 743, 49 U. S. C. § 1324 (a) (Civil Aeronautics Board); 49 Stat. 647, as amended, 42 U. S. C. § 1302 (Department of Health, Education, and Welfare); 52 Stat. 830, 15 U. S. C. § 717o (Federal Power Commission).
Section 1 of the United States Housing Act of 1937, 50 Stat. 888, as amended by § 501 of the Housing Act of 1959, 73 Stat. 679, 42 U. S. C. § 1401.
Brief for Respondent 21, 23.
Although the constitutional prohibition of the impairment of contracts, U. S. Const. Art. I, § 10, applies only to the States, we have held that “[v]alid contracts are property, whether the obligor be a private individual, a municipality, a State or the United States. Rights against the United States arising out of a contract with it are protected by the Fifth Amendment.” Lynch v. United States, 292 U. S. 571, 579 (1934).
Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398, 431 (1934). The statute challenged in Lynch v. United States, supra, fell into the first of these two categories. It repealed “all laws granting or pertaining to yearly renewable [War Risk term] insurance . . . .” 292 TJ. S., at 575.
A far different case would be presented if HUD were a party to this suit arguing that it could repudiate its obligations under the annual contributions contract because the Authority had failed to apply the circular. Cf. Lynch v. United States, supra.
Cf. Home Bldg. & Loan Assn. v. Blaisdell, supra, at 425.
Penniman’s Case, 103 U. S. 714, 720 (1881). See El Paso v. Simmons, 379 U. S. 497, at 508 (1965); Home Bldg. & Loan Assn. v. Blaisdell, supra.
We have consistently upheld legislation that affects contract rights far more substantially than does the HUD circular. E. g., El Paso v. Simmons, supra, upheld a state statute that placed a time limit on the right to reinstate a claim in previously forfeited public lands; East N. Y. Sav. Bank v. Hahn, 326 U. S. 230 (1945), upheld a New York statute suspending mortgage foreclosures for the 10th year in succession; and Blaisdell upheld a statute that extended mortgagors’ redemption time.
There is no reason why the principles that control legislation that affects contractual rights should not also control administrative rule making that affects contractual rights. Cf. Permian Basin Area Rate Cases, 390 U. S. 747, 779-780 (1968), which upheld a Federal Power Commission order limiting the application of “escalation clauses” in contracts for the sale of natural gas; and 24 CFR §§ 1.1-1,12 (1968), which proscribe a wide range of racially discriminatory practices by both governmental and private interests that receive any federal financial assistance whether or not pursuant to a preexisting contract. This regulation was promulgated under § 602 of the Civil Rights Act of 1964, 78 Stat. 252, 42 U. S. C. § 2000d-l, which directs each federal agency that administers federal financial assistance “by way of grant, loan, or contract other than a contract of insurance or guaranty ... to effectuate the provisions of section 601 [which prohibits racial discrimination in the administration of any program receiving federal financial assistance] ... by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.”
See, e. g., FCC v. Schreiber, 381 U. S. 279, 289-294 (1965); American Trucking Assns., Inc. v. United States, 344 U. S. 298 (1953).
Section 2 of the Housing Act of 1949, 63 Stat. 413, 42 U. S. C. § 1441. That section further directs all agencies of the Federal Government “having powers, functions, or duties with respect to housing . . . [to] exercise their powers, functions, and duties under this or any other law, consistently with the national housing policy declared by this Act . . . .” Ibid.
“A change in the law between a nisi prius and an appellate decision requires the appellate court to apply the changed law.” Ziffrin, Inc. v. United States, 318 U. S. 73, 78 (1943). Accord, e. g., Vandenbark v. Owens-Illinois Glass Co., 311 U. S. 538 (1941); United States v. Chambers, 291 U. S. 217 (1934).
United States v. Schooner Peggy, 1 Cranch 103, 110 (1801).
See, e. g., United States v. Chambers, supra.
See, e. g., Carpenter v. Wabash R. Co., 309 U. S. 23 (1940).
See, e. g., Vandenbark v. Owens-Illinois Glass Co., supra.
See Greene v. United States, 376 U. S. 149 (1964), in which we held that the petitioner’s right to recover lost pay for a wrongful discharge was “vested” as a result of our earlier decision in Greene v. McElroy, 360 U. S. 474 (1959), which we construed to have made a “final” and “favorable” determination, 376 U. S., at 159, that petitioner had been wrongfully deprived of his employment.
“We do not contend that, in the case of Housing Authority leases if the purpose of the notice of termination of the lease is to proscribe the exercise of a constitutional right by the tenant the notice would be effective; the notice would be invalid, and the term of the lease and its automatic renewal would not thereby be affected.” Brief for Respondent 11.
See generally Thorpe v. Housing Authority of the City of Durham, 386 U. S. 670, 674-681 (1967) (Douglas, J., concurring).
Transcript of Argument 28. Despite this admission, counsel for the Authority insisted throughout his oral argument that HUD has no power to require compliance with the circular. See id., at 26-27, 28, 30-32, 48-49. He even expressly suggested that the Authority could depart from its requirements “without violating any kind of Federal law.” Id., at 48.
Alabama State Federation of Labor v. McAdory, 325 U. S. 450, 461 (1945). Cf. Zemel v. Rusk, supra, at 13-20; United States v. Fruehauf, 365 U. S. 146 (1961).
Moreover, if the procedure followed by the Authority proves inadequate, HUD may well decide to provide for an appropriate hearing. Cf. 24 CFB, §§1.1-1.12 (1968), which establish a detailed procedure to dispose of complaints of racial discrimination in any federally assisted program.
These same considerations lead us to conclude that it would be equally premature for us to reach a decision on petitioner’s contention that it would violate due process for the Authority to evict her arbitrarily. That issue can be more appropriately considered if petitioner is in fact evicted arbitrarily. See Alabama State Federation of Labor v. McAdory, supra.
Concurring Opinion
concurring.
The Court here uses a cannon to dispose of a case that calls for no more than a popgun. The Durham Housing
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