Johnson v. United States Petition for a Writ of Certiorari to the US Court of Military Appeals

    I n  th e

Unittb £>tatru Court of Kppmb
F ob the F ifth Circuit

No. 26274

E va Pearl R ichardson,

v.
Appellant,

T he H ousing A uthority of the City of 
B essemer, A labama, et al.,

Appellees.

A P PE A L  FROM  T H E  U N IT E D  STATES D ISTRICT COURT FOR T H E  

N O R T H E R N  D ISTRICT OF ALAB A M A

BRIEF FOR APPELLANT

Oscar W . A dams, Jr .
Harvey B urg

1630 North Fourth Avenue 
Birmingham, Alabama 35203

Jack Greenberg 
J ames M. Nabrit, III 
Gabrielle A. K irk 
Michael Davidson

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



I N D E X

Statement of tlie Case ............ .......................................... 1

Specification of Errors ......................................................  5

Argument:

I. The Constitution Prohibits Arbitrary, Dis­
criminatory or Capricious Action by the Hous­
ing Authority in Terminating a Tenant’s Ben­
efits Under the Public Housing Laws ...........  6

A. A  Public Housing Authority Can Only
Evict Its Tenants for Constitutionally 
Permitted Reasons ......................................... 6

B. A  Tenant in a Public Housing Project
Is Entitled to Notice of the Reasons for 
Eviction....................................   13

C. A  Tenant in a Public Housing Project
Is Entitled to a Pair Hearing Prior to 
Eviction .........      16

II. The Housing Authority’s Asserted Compliance 
With the February 7, 1967 Circular Does Not 
Comport With the Guarantees of the Con­
stitution ..................................................................  21

Conclusion .....................................................   23

Certificate of Service ........................................................  24

Appendix:

Opinion of the Court of Appeals ........................... la

Order of Temporary Injunction ......    14a

PAGE



11

T able of Cases

page

Banks v. Housing Authority of City and County of 
San Francisco, 120 Cal.App.2d 1, 260 P.2d 668
(1953), cert, denied 347 U.S. 974 ............................... 6

Berman v. Parker, 348 U.S. 26 ....................................... 19

Chicago Housing Authority v. Blackman, 4 111. 2d 319,
122 N.E,2d 522 (1954) ..................................................  8

Detroit Housing Commission v. Lewis, 226 F.2d 180
(6th Cir. 1955) ..............................................................  6

Dixon v. Alabama State Bd. of Ed., 294 F.2d 150 
(5th Cir. 1961), cert, denied, 368 U.S. 930 ....11,15,16,18

Frost Trucking Co. v. R.R. Comm., 271 U.S. 583 .......  7

Goldsmith v. United States Board of Tax Appeals,
270 U.S. 117 ......................................................................  17

Gonzales v. Freeman, 334 F.2d 570 (D.C. Cir. 1964) ....16,18
Gonzales v. United States, 348 U.S. 407 .......................  15
Greene v. McElroy, 360 U.S. 474 ................................... 17
Griswold v. Connecticut, 381 U.S. 479 ............................ 12
Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U.S.

150 ...................................................................................... 8,13

Hanover Fire Insurance Co. v. Carr, 272 U.S. 494 .... 7
Harper v. Virginia State Bd. of Elections, 383 U.S.

663 ......................................................................................  8
Holmes v. New York City Housing Authority, No.

31972 (2nd Cir., July 18, 1968) .............................. 8-9,13
Holt v. Richmond Redevelopment and Housing Au­

thority, 266 F. Supp. 397 (E.D. Va. 1966) ...............8,14
Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964) ...........16,18



Ill

Housing Authority of Los Angeles v. Cordova, 130 
Cal.App.2d 883, 279 P.2d 215 (App. Dept. Super.
Ct. 1955) .............. .■.............................................. ...........  8

In the Matter of Yinson v. Greenburgh Housing Au­
thority, 29 App.Div.2d 338, 288 N.Y.S.2d 159 (1968) 11

Joint Anti-Fascist Refugee Comm. v. McGrath, 341
U.S. 123 ....................................... ..................................15,18

Jones v. City of Hamtramck, 121 F. Supp. 123 (E.D.
Mich. 1954) .......................................... ...........................  6

Jordan v. American Eagle Fire Insurance Co., 169 
F.2d 281 (D.C. Cir. 1948) .......................................... 21, 22

PAGE

Keyishian v. Board of Regents of the University of
the State of New York, 385 U.S. 589 ........................... 17

Kutcher v. Housing Authority of Newark, 20 N.J. 181,
119 A.2d 1 (1955) ..........................................................  8

Lawson v. Housing Authority of City of Milwaukee,
270 Wise. 269, 70 N.W.2d 605 (1955), cert, denied
350 U.S. 882 ......... ...... .................................................. 8

Londoner v. Denver, 210 U.S. 373 ....................... 11,17, 22

Morgan v. United States, 304 U.S. 1 ........................... 15,17

Quevedo v. Collins et al., C.A. 3-2626-C (N.D. Tex.,
July 12, 1968) ..................................................................  18

Rudder v. United States, 226 F.2d 51 (D.C. Cir. 
1955) ............................................ ................................8,11,13

Shelton v. Tucker, 364 U.S. 479 .................................. 7,17
Sherbert v. Verner, 374 U.S. 398 .................................. 7,17
Simmons v. United States, 348 U.S. 397 .......................  15



IV

Slochower v. Board of Higher Education, 350 U.S.

PAGE

551 ......................................................................................7,18
Southern R. Co. v. Virginia, 290 U.S. 190 ................... 17
Specht v. Patterson, 386 U.S. 605 ................................... 22
Speiser v. Randall, 357 U.S. 513 ................................... 17

Taylor v. Leonard, 30 N.J. Super. 116, 103 A.2d 632
(1954) ................................................................................  6

Thomas v. Housing Authority of the City of Little
Rock, 282 F. Supp. 575 (E.D. Ark. 1967) ............... 8

Thorpe v. Housing Authority of the City of Durham,
No. 20, Oct. Term 1968 ..................................................  6

Thorpe v. Housing Authority of the City of Durham,
386 U.S. 670 ...................................................................... 9,13

Torcaso v. Watkins, 367 U.S. 488 ................................... 7
Tucker v. Texas, 326 U.S. 517 ....................................... 12

United Public Workers v. Mitchell, 330 U.S. 7 5 ...........  7

V ann v. Toledo Metropolitan Housing Authority, 113 
F. Supp. 210 (N.D. Ohio 1953) ................................... 6

Wieman v. Updegraff, 344 U.S. 183 ...............................7,17
Willner v. Committee on Character and Fitness, 373

U.S. 9 6 ........................................................... ...... 15,17, 21, 22
Wong Yang Sung v. McGrath, 339 U.S. 33 ...................  17

Statutes

24 C.F.R. Subtitle A, Part I ..........................................  7

Civil Rights Act of 1964, Title VI, 78 Stat. 252, 42 
U.S.C. Sec. 2000d ..........................................................  6

Civil Rights Act of 1968, Title VIII, 82 Stat. 81 
(April 11, 1968) ............ .......... .......................................  7



V

Code of Alabama, Title 25, § 5 ....................................... 10

Executive Order No. 11063, 27 Fed. Reg. 11527 (1962) 6

42 U.S.C. §§ 1401 et seq.................................................5, 9,10

42 U.S.C. § 1404a ................................................................ 10

42 U.S.C. § 1410(g)( 3 ) .............. ......................................... 10

Other A uthorities

1 Davis, Administrative Law Treatise, Sec. 8.05 .......  16

Gellliorn and Byse, Administrative Law, Cases and 
Comments (1960) ........    16

Note, Public Landlords and Private Tenants: The 
Eviction of “ Undesirables”  From Public Housing 
Projects, 77 Yale L.J. 988 (1968) ..............................  20

O’Neil, Unconstitutional Conditions: Welfare Bene­
fits With Strings Attached, 54 Calif. L. Rev. 443 
(1966) ................................................................................ 7

Report of the National Advisory Commission on Civil 
Disorders (Bantam ed. 1968) ..........    19

Rosen, Tenants’ Rights in Public Housing, “Housing 
for the Poor: Rights and Remedies,”  Project in 
Social Welfare Law, Supp. No. 1, N.Y.TT. School 
of Law, New York, N. Y. (1967) ..............................  20

PAGE



I n' th e

Inttfd #tat£g (Emirt of Appeals
F or the F ifth Circhit 

No. 26274

E va P earl R ichardson,

v.
Appellant,

T he H ousing A uthority of the City of 
B essemer, A labama, et al.,

Appellees.

appeal from the united states district court for the
N O R T H E R N  DISTRICT OF AL A B A M A

BRIEF FOR APPELLANT

Statement of the Case

On October 12, 1966, appellant Mrs. Eva Pearl Richard­
son, a Negro, became a tenant in one of the public housing 
projects in the City of Bessemer. This project is a fed­
erally assisted low-rent public housing project owned and 
operated by the Housing Authority of Bessemer, Alabama, 
a state agency (R. 4-8). On February 17, 1967, appellant 
received a notice from appellee cancelling her lease as of 
March 1, 1967 (R. 49, 74). At no prior time to the is­
suance of this notice to vacate was appellant notified of 
the reason for the cancellation nor was she given an op-



2

portunity to explain any conduct upon which the housing 
authority might have relied to issue these notices, although 
appellant, in person and by her attorney, requested the 
authority to state the reason for the termination (R. 76).

On March 1, 1967, appellant filed a complaint, motion 
for temporary restraining order and a motion for prelim­
inary injunction in the United States District Court for 
the Northern District of Alabama, Southern Division, seek­
ing injunctive and declarative relief (R. 6, 17 and 19). 
On March 1, 1967, the Honorable H. H. Grooms entered 
an order restraining the housing authority from evicting 
or threatening to evict the appellant (R. 21). Oh March 7, 
1967, the district court continued the temporary restrain­
ing order until April 3, 1967. On February 12, 1968, this 
cause came on for trial (R. 23).

At his deposition, Mr. A. W. Kuhn, Executive Director 
and Secretary of the Housing Authority, testified that 
appellant had never been given a reason for the can­
cellation of her lease (R. 30). However, at the time of 
the trial, Mr. Kuhn stated that after the notices were 
issued to appellant, she “came to the office and in an in­
direct way was told of the reasons why we were taking 
this action” (R. 80).

The complete reason for the cancellation of her lease 
has not yet been given appellant. Mr. Kuhn stated that 
the “ tenant [appellant] was becoming troublesome to the 
community” (R. 34) and on the basis of inter-office memo­
randums and as a result of contacts with the tenants, the 
housing authority began an investigation and finally dis­
covered that a contractor fired an employee who visited 
Mrs. Richardson in her apartment during working hours. 
All of the complaints received by the housing authority 
were oral—either in person or in the form of telephone



3

calls. Mrs. Richardson was never given the names of 
the persons who made the complaints and was not given 
an opportunity to confront these persons or explain her 
conduct (R. 34-35).

Appellant, at the time she received the notices of can­
cellation, satisfied all the requirements for admission and 
continued occupancy in the housing project (R. 29). The 
housing authority relied on the provision of the lease 
which permits the management to terminate the lease by 
giving the tenant 10 days prior notice in writing (R. 33). 
Since 1963 or 1964, the housing authority has maintained 
a policy fep not advising tenants of the reasons for their 
eviction because it has found that it is extremely difficult 
to point out the reasons for the lease cancellation and be­
cause the tenant would argue with the housing authority 
and either deny or otherwise refuse to accept the reasons 
given them (R. 31-32).

On February 7, 1967, the Department of Housing and 
Urban Development issued a circular to all public housing 
projects receiving federal funds declaring:

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 hous­
ing. Such records are to be available for review from 
time to time by HUD representatives and shall contain 
the following information:



4

1. Name of tenant and identification of unit occupied.
2. Date of notice to vacate.

3. Specific reason(s) for notice to vacate. For ex­
ample, if a tenant is being evicted because of un­
desirable actions, the record should detail the ac­
tions 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 appellee housing authority received this circular on 
or about February 15, 1967 (R. 66). However, the housing 
authority did not comply with this circular in the issuance 
of the notice of cancellation to appellant (R. 51). Since 
the circular had been issued, the housing authority, at the 
time of trial, had not evicted any tenant for other than 
non-payment of rent. One eviction for misrepresentation 
was pending (R. 87). The Executive Director of the Hous­
ing Authority testified that the authority would comply 
with the circular in all future evictions (R. 111). However, 
no written notice of the reasons for eviction would be 
given a tenant (R. 107), and the authority would not 
permit any person (neither an attorney nor any lay per­
son) to accompany the tenant at the conference notifying 
the tenant of the reason for the eviction (R. 109).

On February 12, 1968, an order was entered and filed 
directing the Housing Authority to comply with the terms 
and provisions of the circular; dissolving the temporary 
restraining order; denying injunctive relief sought by ap­
pellant ; retaining jurisdiction of the cause to determine 
compliance by the Housing Authority with the circular in



5

any future evictions of appellant and taxing costs against 
the Housing Authority (It. 53). Notice of appeal was filed 
on March 13, 1968 (R. 54).

Specification of Errors

1. The court below erred in denying appellants an in­
junction enjoining the appellee housing authority from 
evicting or threatening to evict tenants living in any one 
of its public housing projects without first notifying them 
of the reasons for the eviction and giving them a fair 
hearing on the alleged charges prior to the eviction. 2

2. The court below erred in denying appellants a declara­
tory judgment that the appellee housing authority’s policy 
and practice of evicting or threatening to evict tenants 
without first notifying them of the reasons for the eviction 
and giving them a fair hearing on the alleged charges prior 
to the eviction violates rights secured by the due process 
and equal protection clauses of the Constitution of the 
United States and by the United States Housing Act, 
42 U.S.C. §§1401 et seq.



6

ARGUMENT

I.

The Constitution Prohibits Arbitrary, Discriminatory 
or Capricious Action by the Housing Authority in Ter­
minating a Tenant’s Benefits Under the Public Housing 
Laws.1 2

A. A Public Housing Authority Can Only Evict Its Tenants 
for Constitutionally-Permitted Reasons.

The Housing Authority of the City of Bessemer, a fed­
erally assisted low-rent public housing project, is subject 
to constitutional limitations, for the government, acting 
as landlord, dispenser of benefits or in any other capacity, 
must not contravene guarantees of the Constitution. It is 
manifest, for example, that denial of benefits on the ground 
of race violates the Constitution. This principle has fre­
quently been applied to racial discrimination in public 
housing, despite the government’s status as “ landlord.” 
Detroit Housing Commission v. Lewis, 226 F.2d 180 (6th 
Cir. 1955); Jones v. City of Hamtramck, 121 F. Supp. 
123 (E.D. Mich. 1954); Vann v. Toledo Metropolitan Hous­
ing Authority, 113 F. Supp. 210 (N.D. Ohio 1953); Banks 
v. Housing Authority of City and County of San Francisco, 
120 Cal. App.2d 1, 260 P.2d 668 (1953), cert, denied, 347 
U.S. 974; Taylor v. Leonard, 30 N.J. Super. 116, 103 A.2d 
632 (1954).2

1 See Thorpe v. Housing Authority of the City of Durham, No. 
20, October Term, 1968 pending before the Supreme Court of 
the United States; scheduled for oral argument on October 22, 
1968.

2 See also, Executive Order No. 11063, 27 Fed. Reg. 11527 
(1962), prohibiting racial discrimination in federally-assisted hous­
ing; Title VI of the Civil Rights Act of 1964, 78 Stat. 252, 42



7

Similarly, the government may not, in any capacity, 
place conditions upon providing benefits which operate to 
deter or infringe the exercise of rights and freedoms 
guaranteed by the Constitution. See, e.g., Sherbert v. 
Verner, 374 U.S. 398, 404, where the Supreme Court stated 
(with respect to the denial of unemployment compensa­
tion) :

It is too late in the day to doubt that the liberties 
of religion and expression may be infringed by the 
denial of or placing of conditions upon a benefit or 
privilege. American Communications Ass’n. v. Douds, 
339 U.S. 382, 390; Wiemann v. Updegraff, 344 U.S. 
183, 191, 192; Hannegan v. Esquire, Inc., 327 U.S. 146, 
155, 156 . . .  In Speiser v. Randall, 357 U.S. 513, 
we emphasized that conditions upon public benefits 
cannot be sustained if they so operate, whatever their 
purpose, as to inhibit or deter the exercise of First 
Amendment freedoms. (Emphasis added.)3

This principle, too, has been applied to public housing. 
It has been held that public housing authorities may not 
deny the benefits of public housing to persons solely be­

U.S.C., See. 2000d, and the implementing regulations (24 C.F.R., 
Subtitle A, Part I), prohibiting discrimination in federally-assisted 
programs, including low-rent housing projects; and Title VIII of 
the Civil Rights Act of 1968, 82 Stat. 81 (April 11, 1968).

3 The doctrine prohibiting the imposition of unconstitutional 
conditions is not limited to the above cases, Torcaso v. Watkins, 
367 U.S. 488; Shelton v. Tucker, 364 U.S. 479; United Public 
Workers v. Mitchell, 330 U.S. 75, 100; Slochower v. Board of 
Higher Education, 350 U.S. 551, 555; Wiemann v. Updegraff, 344 
U.S. 183, 191 (all public employment), or to cases involving the 
First Amendment. See, e.g., Frost Trucking Co. v. R. R. Comm., 
271 U.S. 583 (use of public highways); Hanover Fire Insurance 
Co. v. Carr, 272 U.S. 494 (foreign corporations doing business in 
a State). See generally, O'Neil, Unconstitutional Conditions: Wel­
fare Benefits With Strings Attached, 54 Calif. L. Rev. 443 (1966).



8

cause of their exercise of guaranteed rights of free speech 
and association. Holt v. Richmond Redevelopment and 
Housing Authority, 266 F. Supp. 397 (E.D. Ya. 1966); 
Rudder v. United States, 226 F.2d 51 (D.C. Cir. 1955); 
Kutcher v. Housing Authority of Newark, 20 N.J. 181, 119 
A.2d 1 (1955); Housing Authority of Los Angeles v. Cor­
dova, 130 Cal. App.2d 883, 279 P.2d 215 (App. Dep’t. 
Super. Ct. 1955); Lawson v. Housing Authority of City 
of Milwaukee, 270 Wis. 269, 70 N.W.2d 605 (1955); cert, 
denied, 350 U.S. 882; Chicago Housing Authority v. Stock­
man, 4 I11.2d 319, 122 N.E.2d 522 (1954).

Moreover, the Fourteenth Amendment requires that the 
action of government be rationally related to the purposes 
of the legislation. Thus, in Gulf, Colorado and Santa Fe 
Ry. v. Ellis, 165 U.S. 150, 155, the Supreme Court held that 
a classification:

. . . must always rest upon some difference which 
bears a reasonable and just relation to the act in 
respect to which the classification is proposed, and 
can never be made arbitrarily and without any such 
basis.

See also, Harper v. Virginia State Ed. of Elections, 383 
U.S. 663. This principle, too, is applicable to public hous­
ing. Action taken to deny the benefits of low-income hous­
ing must be rationally related to that purpose or its 
implementation. Thus, in Thomas v. Housing Authority of 
the City of Little Rock, 282 F. Supp. 575 (E.D. Ark. 1967), 
the housing authority’s action denying access to public 
housing on the ground that the applicant had an illegiti­
mate child was held unconstitutional in that there was no 
rational connection between that ground and the purposes 
of the legislation. Likewise in Holmes v. New York City



9

Housing Authority, No. 31972 (2nd Cir., July 18, 1968) 
a Court of Appeals held:

It hardly need be said that the existence of an ab­
solute and uncontrolled discretion in an agency of 
government vested with the administration of a vast 
program, such as public housing would be an in­
tolerable invitation to abuse.

The expressed purposes of the state-federal low-income 
housing program is:

. . .  to promote the general welfare of the Nation by 
employing its fund and credit, . . .  to assist the sev­
eral States and their political subdivisions to alleviate 
present and recurring unemployment and to remedy 
the unsafe and insanitary housing conditions and the 
acute shortage of decent, safe, and sanitary dwellings 
for families of low income, in urban and rural non­
farm areas, that are injurious to the health, safety, 
and morals of the citizens of the Nation. 42 TJ.S.C. 
§1401.

The program is an exercise of the general governmental 
power to protect the health, safety, and welfare of an 
economically disadvantaged segment of the citizenry. The 
initiation of the program rested on explicit recognition 
of the fact that without public housing large numbers of 
persons would be condemned to live in urban and rural 
slums, suffering all the indignities and despair stemming 
from unsafe, overcrowded and unsanitary dwellings. 
Surely, the power to exclude persons arbitrarily and with­
out reason from the benefits of the housing program cannot 
be reconciled with these enunciated purposes and concerns. 
Thorpe v. Housing Authority of the City of Durham, 386 
U.S. 670.



1 0

This conclusion is supported by the fact that there is 
nothing in either the federal4 or state acts creating the 
publicly supported low-income housing program adminis­
tered by the Housing Authority which confers such an 
arbitrary power to evict or otherwise withhold the benefits 
of the program. Neither of the two provisions of the 
federal law which authorize the local agencies to require 
tenants to move from low-income projects (42 U.S.C. 
§1410(g) (3) and 42 U.S.C. §1404a) grants arbitrary power; 
both provisions are related to a policy of limiting occu­
pancy to low-income families. Likewise, the policy of the 
State of Alabama is to provide:

safe, sanitary and uncongested dwelling accommoda­
tions at such rentals that persons who now live in 
unsafe or unsanitary or congested dwelling accom­
modations can afford to live in safe, sanitary and un­
congested dwellings. . . . Code of Alabama, Tit. 25, §5.

Nor are there any existing administrative regulations un­
der either the federal or state legislation which confer 
the power to evict without accountability. The only ad­
ministrative pronouncement directly bearing on the prob­
lem is the HUD circular of February 7, 1967, which re­
quires local authorities to afford tenants notice and an 
opportunity to be heard.

Finally, government action affecting vital interests may 
not be arbitrary in the sense of being without factual 
foundation. The Court of Appeals for the Fifth Circuit 
stated, with regard to school expulsions:

The possibility of arbitrary action is not excluded by 
the existence of reasonable regulations. There may be 
arbitrary application of the rule to the facts of a

4 The United States Housing Act of 1937, as amended, 42 U.S.C. 
§1401 et seq.



11

particular case. Dixon v. Alabama State Bd. of Educ., 
294 F.2d 150, 157 (5th Cir. 1961), cert, denied 368 
U.S. 930.

Thus, even if a legitimate reason is advanced for denial 
of a benefit, due process requires that there be a factual 
foundation making the reason applicable to the specific 
individual. This principle, too, has been applied to public 
housing:

The government as landlord is still the government. 
It must not act arbitrarily, for, unlike private land­
lords it is subject to the requirements of due process 
of law. Arbitrary action is not due process. Rudder 
v. United States, 226 F.2d 51, 53 (D.C. Cir. 1955).

See, In the Matter of Vinson v. Greenburgh Housing Au­
thority, 29 App. Div. 2d 338, 288 N.Y.S.2d 159 (1968), 
holding on constitutional grounds, that notice of reasons 
for an eviction must be given. Indeed, it is the principle 
forbidding arbitrary action which serves as the logical 
premise for the general rule that administrative and judi­
cial determinations be supported by “ evidence” after notice 
and a hearing on the issues. Cf. Londoner v. Denver, 210 
U.S. 373.

The question here is whether, under these vital consti­
tutional principles, a government agency may evict for 
no reason at all, i.e. reliance upon the lease provision 
permitting the management to cancel the lease upon 
10 days notice or for an unreasonable, arbitrary and 
capricious reason. The answer to that question must be 
negative if there is to be any protection at all for the 
civil rights and civil liberties of public housing tenants. 
Rudder v. United States, 226 F.2d 51 (D.C. Cir. 1955). 
Otherwise, housing project managers would be granted



12

“ full authority to regulate the conduct of those living in 
the [project].” Tucker v. Texas, 326 U.S. 517, 519.

Additionally, the February 7, 1967 circular now requires 
housing authorities to notify tenants of the reason for 
evictions. Thus, appellee’s policy of relying on its lease 
cancellation power on 10 days notice is no longer per­
missible. It is also submitted that the Housing Authority 
may not constitutionally evict appellant on the basis of 
the reasons which it has asserted.

All of the complaints received by the Housing Authority 
against appellant have been oral—either in person or over 
the telephone (R. 34-35). The Executive Director does not 
remember the names of any persons in the project who 
have made complaints against appellant (R. 83). Yet, he 
reached the decision that Mrs. Richardson has disturbed 
the community and neighbors (R. 36). The single com­
plaint that has been specified is not a complaint against 
Mrs. Richardson, but against an employee of the contractor 
who allegedly was fired because he visited appellant dur­
ing working hours (R. 34). The Executive Director has 
not been able to give the name of either the contractor 
or the employee who was fired. Thus, the Housing Au­
thority has failed factually to give a reason for appellant’s 
eviction. Assuming, arguendo, that the authority was able 
to document this visit with names and witnesses, this is 
not a valid reason which can support the eviction.

In addition to rights of privacy, Griswold v. Connecticut, 
381 U.S. 479, 515 (and cases cited therein), the housing 
authority cannot exclude persons from participating in 
the enjoyment of state benefits based upon factors that 
bear no rational relation to the purposes of the program. 
The purposes of low-income public housing have been dis­
cussed. Nowhere is there an iota of Congressional indica­



13

tion that otherwise eligible low-income families might be 
excluded or evicted for unrelated reasons. The Housing 
Authority has admitted that appellant satisfies the eligibil­
ity requirements for admission and continued occupancy 
(E. 29), but chooses to evict appellant for other reasons. 
It has, however, failed to establish any standards which 
could have apprised the appellant that her behavior might 
result in eviction from the project. This absence of stan­
dards renders the action arbitrary. “ . . . due process 
requires that selections among applicants be made in 
accordance with ‘ascertainable standards, . . .’ ”  Holmes v. 
New York City Housing Authority, supra; Rudder v. 
United States, supra; Thorpe v. The Housing Authority 
of the City of Durham, supra.

What is paramount, however, is that the appellant’s 
behavior outlined by the Housing Authority does not 
justify her eviction. The job of the Housing Authority 
is not to set moral standards for its tenants or to regulate 
visitations of its tenants, without a showing that the com­
munity within the housing project is in fact disrupted 
but to provide low-income housing for the needy. Ex­
amined in the light of the purposes of public housing, 
the attempted eviction of appellant for the reasons given 
is unreasonable and arbitrary, Gulf, Colorado and Santa 
Fe Ry. v. Ellis, supra, and violates appellant’s rights of 
due process and equal protection.

R. A Tenant in a Public Housing P roject Is Entitled to Notice 
of the Reasons fo r  Eviction.

Since certain kinds of reasons for terminating peti­
tioner’s lease are impermissible, including race, religion, 
speech, association, illegitimacy, and purely arbitrary or 
capricious reasons, it follows that petitioner must be told 
the basis for the termination of her lease. It is necessary



14

for petitioner to know what reasons are allegedly relied 
on in order to insure that impermissible reasons are not 
involved. I f  the Housing Authority is forced to disclose 
a reason for termination, it might readily appear that the 
Authority is relying on an illegal or, an arbitrary or 
capricious reason, i.e., no reason at all. Even if the reason 
asserted appears on its face to be a permissible ground 
for termination, the atfected individual must know it in 
order to contest the factual basis for applying that reason 
to him.5

Notice of reasons would at least offer a possibility of 
relief if an official is mistaken about the facts and he or 
some reviewing authority can be persuaded that he is 
mistaken, or if the official is mistaken about the law and 
it can be shown that the proposed action violates the law, 
or if the official acts contrary to policy established by 
superior administrative officials. A  requirement that the 
housing agency state its reasons for terminating low- 
income benefits serves the salutary function of requiring 
that the agency act responsibly and actually have a reason. 
It is a protection against capricious action.

Indeed, the policy of secrecy serves as a shield for 
arbitrariness. As Mr. Justice Frankfurter put it:

Secrecy is not congenial to truth-seeking and self- 
righteousness gives too slender an assurance of right­
ness. No better instrument has been developed for 
arriving at truth than to give a person in jeopardy 
of serious loss notice of the case against him and 
opportunity to meet it. Nor has a better way been

5 The tenant may even prove that the application is so lacking 
in factual foundation that it is probably a subterfuge for some 
illegal reason such as reprisal for exercise of a protected freedom. 
Cf. Holt v. Richmond Redevelopment and Housing Authority, 266 
F. Supp. 397 (E.D. Va. 1966).



15

found for generating the feeling, so important to a 
popular government, that justice has been done. Joint 
Anti-Fascist Refugee Com. v. McGrath, 341 U.S. 123, 
171-2 (concurring opinion).

The right to know a reason for official action is vital 
so long as there remains any conceivable method, however 
informal, of influencing that action. Gonzales United 
States, 348 U.S. 407, illustrates the point. In Gonzales, a 
draft registrant was held entitled to have a copy of an 
“ advisory recommendation” made by the Department of 
Justice to his Selective Service Appeal Board, and to an 
opportunity to file a reply. Though there was no hearing 
before the appeal board and the statute involved was 
silent on the right to know the recommendations, the 
Court found that this right was implicit in the Act, 
“viewed against our underlying concepts of procedural 
regularity and basic fair play” 348 U.S. at 412.6

It has long been recognized that it is an integral part 
of procedural due process, that notice must be given to 
an individual adversely affected by administrative action 
that is sufficiently specific to apprise the individual of the 
nature and grounds of the action against him.7 The general 
principle is well established that reasons for adverse ac­
tion by government must be disclosed even if a “benefit” 
or “privilege” is involved. Thus, for example, in Willner 
v. Committee on Character and Fitness, 373 U.S. 96, this

6 Cf. Simmons v. United States, 348 U.S. 397, finding a depriva­
tion of the fair hearing required by the selective service law in 
the failure to furnish a fair resume of an adverse FBI report con­
sidered by the hearing officer.

7 See Morgan v. United. States, 304 U.S. 1, 18, 19; Willner v. 
Committee on Character and Fitness, 373 U.S. 96, 105-106; Dixon 
v. Alabama State Bd. of Education, 294 F.2d 150, 157 (5th Cir. 
1961).



1 6

Court held that an applicant for admission to the New 
York State Bar had to be told the reasons for his ex­
clusion.8

Notice in modern administrative law is not a formalistic 
requirement. Formal pleadings setting forth reasons for 
action are, of course, unnecessary. Yet the Constitution 
requires that the functional purposes of notice he served— 
that a person affected adversely by government “ adjudica­
tory”  action be made aware of the issues in the case at 
some sufficiently early point in the proceedings to prepare 
a case. See, 1 Davis, Administrative Law Treatise, Sec­
tion 8.05; Gellhorn and Byse, Administrative Law, Cases 
and Comments, 840-41 (1960).

Mrs. Richardson has only been told in “ an indirect way” 
of the reasons for her eviction (R. 80). Thus, she has not 
yet received notice of the reasons for her eviction suffi­
ciently specific to apprise her of the charges against her.

C. A Tenant in a Public Housing Project Is Entitled to a 
Fair Hearing Prior to Eviction.

Appellant has been denied a fair hearing to contest the 
factual and legal adequacy of the Housing Authority’s 
decision to evict her. Her only explanation of the reasons 
for her eviction was a conversation with an official who 
told her the reasons in an “ indirect way.” More is re­
quired by the due process clause of the United States Con­
stitution. Appellant must be given an opportunity to be

8 Other eases which have required procedural due process as a 
prerequisite to denial or termination of “privileges” include: 
Gonzales v. Freeman, 334 F.2d 570 (D.C. Cir. 1964) (debarment 
from government contracts); Dixon v. Alabama State Bd. of Ed­
ucation, 294 F.2d 150 (5th Cir. 1961), cert, denied 368 U.S. 930 
(expulsion from state university); Hornsby v. Allen, 326 F.2d 
605 (5th Cir. 1964) (denial of liquor license).



17

heard to offer proof to contest the Authority’s cancellation 
of her low-income housing benefits.

The right to a hearing has long been regarded as one 
of the fundamental rudiments of fair procedure necessary 
where the government acts against a citizen’s vital in­
terests.9 Hearings are an important protection against 
arbitrariness. They are customary in our law where the 
decision about how government will treat the citizen turns 
on issues of fact. The expectable ordinary controversies 
that may lead to public housing evictions need fair proce­
dures for fact finding. They might involve various claims 
of misbehavior by tenants affecting other tenants or the 
property. Tenants should have the right to have decisions 
on such issues based on evidence and not on rumor or 
fancy. For the indigent, eviction is a serious penalty. The 
Supreme Court and lower federal courts have consistently 
held that no matter how certain interests are categorized,10 
a hearing is necessary to determine whether they may be 
terminated by the government. Thus, a hearing is neces­
sary before an individual may be denied admittance to the 
State Bar (Willner v. Committee on Character and Fitness,
373 U.S. 96); before a person may be denied the privilege 
of practicing before the Board of Tax Appeals {Gold­
smith v. United States Board of Tax Appeals, 270 TJ.S. 
117); before security clearance may be revoked {Greene 
v. McElroy, 360 IJ.S. 474); before a State College profes­

9 See, e.g., Londoner v. Denver, 210 U.S. 373; Wong Yang Sung 
v. McGrath, 339 U.S. 33; Southern R. Co. v. Virginia, 290 U.S. 
190; Morgan v. United States, 304 U.S. 1.

10 The verbal distinction between “rights” and “privileges” may 
not be allowed to impose unconstitutional conditions upon the re­
ceipt of “benefits” or “privileges.” See, e.g., Sherbert v. Verner,
374 U.S. 398; Speiser v. Randall, 357 U.S. 513; Shelton v. Tucker, 
364 U.S. 479; Wiemann v. Updegraff, 344 U.S. 183; Keyishian v. 
Board of Regents of the University of the State of New York, 385 
U.S. 589.



18

sor may be dismissed for invoking the privilege against 
self-incrimination (Slochower v. Board of Higher Educa­
tion, 350 U.S. 551); before individuals may be debarred 
from receiving government contracts (Gonzales v. Free­
man, 334 F.2d 570 (D.C. Cir. 1964)); before a student 
may be expelled from a state university (Dixon v. Alabama 
State Board of Education, 294 F.2d 150 (5th Cir. 1961), 
cert, denied 368 U.S. 930); and before a liquor license may 
be denied (Hornsby v. Allen, 326 F.2d 605 (5th Cir. 1964)).

At least one district court in Quevedo v. Collins, et al., 
C.A. 3-2626-C (N.D. Tex., July 12, 1968), has recognized 
this right by recently granting a temporary restraining 
order enjoining a state public housing authority from :

Seeking to evict plaintiff through summary judicial 
proceedings unless the plaintiff has first been afforded 
an opportunity to contest the reason for eviction at 
a fair hearing, whether before the agency or a court, 
which complies with the elements of due process and 
equal protection of the laws.

In his concurring opinion in Joint Anti-Fascist Refugee 
Com. v. McGrath, 341 U.S. 123, Mr. Justice Frankfurter 
stated what he thought were the proper considerations in 
determining whether there is a right to a hearing:

The precise nature of the interest that has been ad­
versely affected, the manner in which this was done, 
the reasons for doing it, the available alternatives to 
the procedures that were followed, the protection im­
plicit in the office of the functionary whose conduct is 
challenged, the balance of hurt complained of and 
good accomplished— these are some of the considera­
tions that must enter into the judicial judgment. 341 
U.S. at 163.



19

Appraising the circumstances of Mrs. Richardson’s case 
against the tests mentioned by Mr. Justice Frankfurter 
persuasively demonstrates her right to a hearing as a 
matter of fundamental fairness:

1. “ The precise nature of the interest that has adversely 
affected.”  Appellant’s interest involves the difference be­
tween living in a low-cost, decent, sanitary and stable 
environment, and being relegated to slums that “may in­
deed make living an almost insufferable burden.” Berman 
v. Parker, 348 U.S. 26, 32. In Mrs. Richardson’s case, 
the slum may well be a racial ghetto with the kind of 
dilapidated, overcrowded housing that the National Ad­
visory Commission identified as one of the most significant 
grievances leading to the recent riots and disorder.11

2. “ [T]he manner in which this was done, the reason 
for doing it.”  The eviction notice stated no reason for 
the action. The Housing Authority at first refused to give 
a reason for the eviction, although appellant, in person 
and through her attorney, so requested. Finally, she was 
told in an indirect way, the reasons for the eviction. This 
is sufficient commentary on the arbitrary manner in which 
she was treated.

3. “ [T]he available alternatives to the procedure that 
was followed.” The Housing Authority could have af­
forded Mrs. Richardson a written statement of the grounds 
for cancelling her lease, and an opportunity to present her 
version of any contested issues of fact affecting her right 
to remain in the housing project. Great formality of proce­
dures in the conduct of a hearing would not appear to be 
necessary so long as the procedures employed give Mrs. 
Richardson a fair chance to know and meet the issues, to

11 Report of the National Advisory Commission on Civil Dis­
orders, p. 472-3 (Bantam ed. 1968).



2 0

make her own position known, and to document or support 
that position factually. The Authority has made no effort 
to show that a hearing to resolve factual disputes deter­
minative of a tenant’s right to remain in a project would 
be burdensome or impractical. Surely some traditional 
safeguards are needed lest tenants be deprived of their 
low-income housing benefits on the basis of vicious and 
unfounded rumors about their personal lives or for any of 
a variety of invidious reasons.18

4. “ \T]he protection implicit in the office of the func­
tionary whose conduct is challenged.” Housing authority 
managers and supervisory officials ordinarily have no train­
ing in or special sensitivity to problems of constitutional 
law, are not directly responsive to an electorate, and are 
unlikely to be morally or intellectually superior to any 
other class of government administrators. They have no 
special distinction which makes them the safe repositories 
of arbitrary power.

5. “ [T\he balance of hurt complained of and good ac­
complished.”  The injury threatened to Mrs. Richardson 
has been discussed above. The Housing Authority’s refusal 
to give a full and complete explanation of its reasons for 
evicting her deprives the Court of any opportunity to 
appraise what good, if any, might be accomplished by 
evicting her. Denial of a hearing may plainly hide evil, 
but we are unable to perceive any useful public purpose 
that it might accomplish. 12

12 For full discussion of the issues, procedural and substantive, 
relating to rights of tenants in public housing, see, Rosen, Tenants’ 
Rights in Public Housing, in “ Housing for the Poor: Rights and 
Remedies,” Project on Social Welfare Law, Supp. No. 1, N.Y.U. 
School of Law, New York, N.Y. (1967). See also, Note, Public 
Landlords and Private Tenants: The Eviction of “ Undesirables”  
From Public Housing Projects, 77 Yale L.J. 988 (1968).



21

Thus, Mrs. Richardson’s right to her apartment should 
not be taken away without giving her a fair chance to be 
heard. And the hearing must be more than an empty 
formality.

II.

The Housing Authority’s Asserted Compliance With 
the February 7, 1967 Circular Does Not Comport 
With the Guarantees of the Constitution.

Mr. A. W. Kuhn, the Executive Director of the Housing 
Authority, testified that the Authority would not give a 
tenant written notice of the reasons for the eviction but 
would only notify the tenant in a “private discussion” 
(R. 107). In addition, the tenant would be prohibited from 
bringing either counsel or a lay person with her to this 
conference (R. 109). Appellant submits that this refusal 
to provide the tenant with a written statement of the 
reasons for eviction prior to the conference with the Au­
thority and the refusal to permit a tenant to be repre­
sented by legal counsel or other lay person at the con­
ference denies tenants of public housing the basic and 
fundamental due process right to a fair hearing. It is 
necessary that the individual be given a realistic oppor­
tunity to confront and come to grips with the reasons 
for adverse action by the government.

That the concept of a fair hearing includes, at the least, 
the right to subject the rationale of agency action to 
scrutiny was recognized before Willner v. Committee on 
Character and Fitness, 373 U.S. 96, and even earlier in 
Jordan v. American Eagle Fire Insurance Co., 169 F.2d 
281 (D.C. Cir. 1948). The Court of Appeals for the Dis­
trict of Columbia stated:



2 2

It is clear that the hearing afforded by the Super­
intendent was not valid as a quasi-judicial hearing. . . . 
Neither the bases nor the processes of the Superin­
tendent’s order were explored, because they were not 
revealed except in the most summary fashion. 169 
F.2d at 287.

In sum, due process requires some procedure that 
minimally provides certain safeguards for the adjudica­
tion of the basis for the governmental action challenged. 
The form and forum of the proceeding may vary. The 
hearing may take place before the agency or in court. 
See Jordan v. American Eagle Fire Insurance Co., supra. 
But whatever the nature of the proceeding, it must at 
least provide opportunity to know and to meet the evidence 
and the argument on the other side before the govern­
mental action becomes effective. This includes the oppor­
tunity to present evidence and arguments (Londoner v. 
Denver, 210 U.S. 373), to confront opposing witnesses 
(Willner v. Committee on Character and Fitness, 373 U.S. 
96), and effectively to present the tenant’s own version 
of the facts, with the decision to be based on the facts 
presented.13

The Housing Authority has not provided for a fair 
hearing in keeping with constitutional guarantees. Indeed, 
it has indicated that it has no intention of making such 
provision.

13 Cf. Specht v. Patterson, 386 U.S. 605, where the Court said 
that in a sentencing procedure

Due process . . . requires that [the person affected] . . . have 
an opportunity to be heard, he confronted with witnesses 
against him, have the right to cross-examine, and to offer 
evidence, on his own. And there must be findings adequate 
to make meaningful any appeal that is allowed. 386 U.S. at 
610.



23

CONCLUSION

For all the foregoing reasons, appellant submits that 
the order of the trial court denying an injunction and 
declaratory judgment should be reversed.

Respectfully submitted,

Oscar W. A dams, Jr.
Harvey B urg

1630 North Fourth Avenue 
Birmingham, Alabama 35203

Jack Greenberg 
James M. Nabrit, III 
Gabrielle A. K irk 
Michael Davidson

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant



24

Certificate of Service

This is to certify that the undersigned, one of Appel­
lant’s attorneys, on this date,---------------- , 1968, has served
two copies of the foregoing Brief for Appellant on J. W. 
Patton, Jr., Huey, Stone & Patton, Realty Building, Bes­
semer, Alabama 35020, by mailing same to said address 
by United States air mail, postage prepaid.

Attorney for Appellant



APPENDIX



UNITED STATES COURT OF APPEALS

F or the Second Circuit

Opinion of Court of Appeals

No. 442— September Term, 1967.

(Argued April 24, 1968 Decided July 18, 1968.)

Docket No. 31972

James H olmes, et al.,

Plaintiff s-Appellees,
—-v.—

New Y ork City H ousing A uthority,

Defendant-Appellant.

B e f o r e  :
H ays, A nderson and F einberg,

Circuit Judges.

Appeal from an order of the United States District Court 
for the Southern District of New York, Thomas P. Murphy, 
Judge, denying the defendant’s motion to dismiss an action 
brought against it under the Civil Rights Act, 42 U. S. C. 
§1983. Affirmed.

H arold W e i n t r a u b , Esq., New York, N. Y. 
(Harry Levy, Esq., New York, N. Y., on the 
brief), for Defendant-Appellant.

la



2a

Nancy E. L bBlanc, Esq., New York, N. Y. 
(Harold J. Rothwax, Esq., and Michael B. 
Rosen, Esq., New York, N. Y., on the brief), 
for Plaintiffs-Appellees.

O pinion  o f  C ou rt o f  A p p ea ls

A n d e b s o n , Circuit Judge:

This class action was brought on September 9, 1966 by 
31 named plaintiffs on behalf of themselves and all others 
similarly situated under the Civil Rights Act, 42 U. S. C. 
§1983, and the Federal Constitution, challenging the pro­
cedures employed by the defendant New York City Hous­
ing Authority in the admission of tenants to low-rent pub­
lic housing projects administered by it in New York City. 
The jurisdiction of the district court is predicated upon 28 
U. S. C. §1343(3).

The New York City Housing Authority is a public cor­
poration created pursuant to the Public Housing Law of 
the State of New York for the purpose of implementing 
the State Constitution by providing “ low-rent housing for 
persons of low income as defined by law . . . ” New York 
State Constitution, Art. XVIII, §1. At the time of the com­
plaint in this action, the Authority was providing housing 
facilities for more than 500,000 persons, in 152 public proj­
ects which it owned and administered in New York City. 
Approximately half of these were federal-aided projects, 
the remainder being supported by either State or local 
funds.

The eligibility requirements for prospective public hous­
ing tenants are set out in the Public Housing Law, and in 
resolutions adopted by the Authority pursuant to its rule- 
making power. Public Housing Law, §37(1) (w). While



3a

these vary somewhat for federal, state, and local-aided 
projects, two requirements common to all are that the 
applicant’s annual income and total assets not exceed speci­
fied limits, and that, at the time of admission, the applicant 
have been a resident of New York City for not less than 
two years. In addition each candidate must be situated 
in an “ unsafe, insanitary, or overcrowded” dwelling, Reso­
lution No. 62-7-473, §3 (federal-aided projects), or living 
“under other substandard housing conditions.” Resolution 
No. 56-8-433, §4 (state-aided projects). Each of the plain­
tiffs in the present action is alleged to meet these require­
ments.

Each year the Authority receive approximately 90,000 
applications out of which it is able to select an average of 
only 10,000 families for admission to its public housing 
projects. In doing so the Authority gives preference to 
certain specified classes of candidates, e.g., “ site residents,” 
families in “emergency need of housing,” “ split families,” 
“ doubled up and overcrowded families.” Resolution No. 
56-8-433, §4.

In federal-aided projects the Authority is required to 
allocate the remaining apartments among non-preference 
candidates in accordance with “an objective scoring sys­
tem” which is designed to facilitate comparison of the 
housing conditions of these applicants. Resolution No. 
62-7-473, §4(b). For state-aided projects, however, there is 
no similar regulation and we assume that this is also the 
case with local-aided projects.1 The plaintiffs in this action 
are all non-preference candidates seeking admission to any 
of the public housing projects run by the defendant.

O pinion  o f  C ourt o f  A p p ea ls

1 Resolutions of the Authority governing admissions to local- 
aided projects have not been made a part of the record on appeal.



4a

In the complaint the named plaintiffs allege that although 
they have filed with the Authority a total of 51 applica­
tions for admission to its housing facilities, 36 in 1965 or 
earlier, and some as long ago as 1961, none has been ad­
vised in writing at any time of his eligibility, or ineligibility, 
for public housing.

The complaint cites numerous claimed deficiencies in the 
admissions policies and practices of the Authority. Regula­
tions on admissions (other than those pertaining to income 
level and residence) are not made available to prospective 
tenants either by publication or by posting in a conspicuous 
public place. Applications received by the Authority are 
not processed chronologically, or in accordance with ascer­
tainable standards, or in any other reasonable and system­
atic manner. All applications, whether or not considered 
and acted upon by the Authority, expire automatically at 
the end of two years. A  renewed application is given no 
credit for time passed, or precedence over a first applica­
tion of the same date. There is no waiting list or other 
device by which an applicant can gauge the progress of 
his case and the Authority refuses to divulge a candidate’s 
status on request. Many applications are never considered 
by the Authority. I f  and when a determination of ineligi­
bility is made (on any ground other than excessive income 
level), however, the candidate is not informed of the Au­
thority’s decision, or of the reasons therefor.

The complaint charges that these procedural defects in­
crease the likelihood of favoritism, partiality, and arbitrari­
ness on the part of the Authority, and deprive the plain­
tiffs of a fair opportunity to petition for admission to 
public housing, and to obtain review of any action taken 
by the Authority. The deficiencies are alleged to deprive

O pinion  o f  C ou rt o f  A p p ea ls



5a

applicants of due process of law in violation of the Four­
teenth Amendment to the Federal Constitution.2

In the district court the defendant moved to dismiss 
the complaint for failure to state a claim within the court’s 
civil rights jurisdiction. Alternatively it requested that 
the court refrain from the exercise of its jurisdiction under 
the doctrine of abstention.

On October 20, 1967, the motion was denied by the trial 
court which also refused abstention. Thereafter permis­
sion was granted to the defendant to take this interlocutory 
appeal under 28 U. S. C. §1292 (b). The issues here are 
whether the plaintiffs have stated a federal claim,3 and, if 
so, whether the district court should proceed to the merits. 
We have concluded that the district judge was correct in 
answering each of these points in the affirmative and we, 
therefore, affirm his order.

Clearly there is sufficient in the complaint to state a 
claim for relief under §1983 and the due process clause. 
One charge made against the defendant, which has merit 
at least in connection with state-aided projects where the 
Authority has adopted no standards for selection among 
non-preference candidates, is that it thereby failed to es­
tablish the fair and orderly procedure for allocating its

O pinion  o f  C ourt o f  A p p ea ls

2 The constitutional claims in the complaint are directed at local 
Resolutions or regulations (or the lack thereof) issued by the 
Authority, which have effect only within the City of New York. 
Public Housing Law §31. No specific provision of the Public Hous­
ing Law or any other statute of general statewide application is 
called into question. Accordingly, a three-judge court is not re­
quired by 28 U. S. C. §2281. See e.g., Moody v. Flowers, 387 U. S. 
97, 101-102 (1967).

3 While this issue was not specifically mentioned in the defen­
dant’s §1292 (b) papers, we have decided to consider it in view of 
its close relationship to the other question, both of which have been 
fully briefed by the parties.



6a

scarce supply of housing which due process requires. It 
hardly need be said that the existence of an absolute and 
uncontrolled discretion in an agency of government vested 
with the administration of a vast program, such as public 
housing, would be an intolerable invitation to abuse. See 
Eornsby v. Allen, 326 F. 2d 605, 609-610 (5 Cir. 1964). 
For this reason alone due process requires that selections 
among applicants be made in accordance with “ ascertainable 
standards,”  icl. at 612, and, in cases where many candi­
dates are equally qualified under these standards, that 
further selections be made in some reasonable manner 
such as “by lot or on the basis of the chronological order 
of application.” Hornsby v. Allen, 330 F. 2d 55, 56 (5 Cir. 
1964) (on petition for rehearing). Due process is a flexible 
concept which would certainly also leave room for the em­
ployment of a scheme such as the “ objective scoring sys­
tem” suggested in the resolution adopted by the Authority 
for federal-aided projects.4 * * * * * * * 12

There is no merit in the Authority’s contention that the 
plaintiffs are without standing to raise the due process 
objection. As applicants for public housing, all are im­
mediately affected by the alleged irregularities in the prac­
tices of the Authority. Compare Thomas v. Housing Au­
thority of City of Little Rock, 282 F. Supp. 575 (E. D. 
Ark. 1967); Banks v. Housing Authority of City of San 
Francisco, 120 Cal. App. 2d 1, 260 P. 2d 668 (Dist. Ct. App.

4 The possibility of arbitrary action is not excluded here, how­
ever, by the. existence of this reasonable regulation. The “ scoring
system” scheme will hardly assure the fairness it was devised to
promote if, as the plaintiffs allege, some applicants, but not others,
are secretly rejected by the Authority, are not thereafter informed
of their ineligibility, and are thereby deprived of the opportunity
to seek review of the Authority’s decision, as provided by New
York law under CPLR §7803(3). Cf. Griffin v. Illinois, 351 U. S
12 (1955).

O pin ion  o f  C ou rt o f  A p p ea ls



7 a

1953), cert, denied, 347 U. S. 974 (1954); cf., Norwalk 
Core v. Norwalk Redevelopment Agency, Slip Opinion p. 
2599 (2 Cir. June 7, 1968).

The mere fact that some of the allegations in the com­
plaint are lacking in detail is not a proper ground for 
dismissal of the action. Harman v. Valley National Bank 
of Arizona, 339 F. 2d 564, 567 (9 Cir. 1964); 2A Moore’s 
Federal Practice 1)12.08, at 2245-2246 (2d ed. 1968). A 
case brought under the Civil Rights Act should not be 
dismissed at the pleadings stage unless it appears “ to a 
certainty that the plaintiff would be entitled to no relief 
under any state of facts which could be proved in support 
of his claim.” Barnes v. Merritt, 376 F. 2d 8, 11 (5 Cir. 
1967). This strict standard is consistent with the general 
rule. See 2A Moore’s, supra at 2245. Clearly it has not 
been met here.

The principal argument which the Authority has pressed 
on this appeal is that the district court should have re­
fused to exercise its jurisdiction under the judicially- 
created “ abstention” doctrine, which recognizes circum­
stances under which a federal court may decline to proceed 
with an action although it has jurisdiction over the case 
under the Constitution and the statutes. See generally 
Wright on Federal Courts §52, at 169-177 (1963). We 
agree with the district judge that this is not an appro­
priate case for abstention.

At least in actions under the Civil Rights Act the power 
of a federal court to abstain from hearing and deciding 
the merits of claims properly brought before it is a closely 
restricted one which may be invoked only in a narrowly 
limited set of “ special circumstances.”  Zwickler v. Koota, 
389 U. S. 241, 248 (1967); cf. Allegheny County v. Mashuda 
Co., 360 U. S. 185, 188-189 (1959). In enacting the pred­
ecessor to §1983 Congress early established the federal

O pinion  o f  C ou rt o f  A p p ea ls



8a

courts as the primary forum for the vindication of fed­
eral rights, and imposed a duty upon them to give “due 
respect” to a suitor’s choice of that forum. Zwickler v. 
Koota, supra at 247-248; Harrison v. N. A. A. C. P., 360 
U. S. 167, 180-181 (1959) (dissenting opinion). As a con­
sequence it is now widely recognized that “cases involving 
vital questions of civil rights are the least likely candi­
dates for abstention.” Wright v. McMann, 387 F. 2d 519, 
525 (2 Cir. 1967). See also McNeese v. Board of Educa­
tion, 373 U. S. 668, 672-674 (1963); Stapleton v. Mitchell, 
60 F. Supp. 51, 55 (D. Kan.), appeal dismissed per stipu­
lation, 326 IT. S. 690 (1945); Note, Federal-Question Ab­
stention: Justice Frankfurter’s Doctrine in an Activist 
Era, 80 Harv. L. Rev. 604, 607-611 (1967); Note, Judicial 
Abstention from the Exercise of Federal Jurisdiction, 59 
Col. L. Rev. 749, 768-769 (1959). Where a district judge 
chooses to exercise his equitable discretion in favor of re­
taining such an action it will be unusual indeed when an 
appellate court refuses to uphold his decision. Cf., Har­
rison v. N. A. A. C. P., supra; Note, Federal Judicial Re­
view of State Welfare Practices, 67 Col. L. Rev. 84, 98-100 
(1967).

Nevertheless the Authority vigorously contends that the 
district court should have deferred to the courts of the 
State of New York, where an adequate remedy is said to 
be provided under state law, in order to avoid “ possible 
disruption of complex state administrative processes,” 
Zwickler v. Koota, supra at 249 n. 11, which it envisions 
as the inevitable result of an attempt by the federal court 
to resolve the issues presented in the complaint.

We fail to see how federal intervention in the present 
case will result in any substantial way in the disruption 
of a complex regulatory scheme of the State of New York,

O pin ion  o f  C ou rt o f  A p p ea ls



9a

or in interference from the outside with problems of 
uniquely local concern. The Authority clearly does direct 
and control a complex administrative process, much of 
which is concerned with the establishment of standards and 
policies for the admission of tenants, a function which 
Congress has recognized that localities are “ in a much bet­
ter position than the Federal Government”  to perform. S. 
Rep. No. 281, 87th Cong., 1st Sess. (1961) in 2 U. S. Code 
Cong. & Ad. News, pp. 1943-1944. But the complaint in 
this action wages only a very limited attack on that proc­
ess, and in no sense does it seek to interpose the federal 
judiciary as the arbiter of purely local matters. Rather the 
plaintiffs assert a narrow group of constitutional rights 
based upon overriding federal policies, and ask federal in­
volvement only to the limited extent necessary to assure 
that state administrative procedures comply with federal 
standards of due process. This fundamental concept 
hardly can be said to be “ entangled in a skein of state law 
that must be untangled before the federal case can pro­
ceed,” McNeese v. Board of Education, supra at 674. Nor 
do we see here any “ danger that a federal decision would 
work a disruption of an entire legislative scheme of regu­
lation.” Hostetter v. Idlewild Bon Voyage Liquor Corp., 
377 U. S. 324, 329 (1964). In fact the issue in the present 
case arises out of a total lack of any system for the orderly 
processing of applications and notification to applicants 
outside of the few categories mentioned.

The ground for federal abstention upon which the Au­
thority relies derives from the Supreme Court’s decisions 
in Burford v. Sun Oil Co., 319 U. S. 315 (1943), and Ala­
bama Public Service Commission v. Southern Railway Co., 
341 IT. S. 341 (1951), discussed in Note, 59 Col. L. Rev.,

O pinion  o f  C ou rt o f  A p p ea ls



10a

supra at 757-762.5 But in those cases the federal courts 
were asked to resolve problems calling for the comprehen­
sion and analysis of basic matters of state policy, see 319 
U. S. at 332; 341 U. S. at 347, which were complicated 
by non-legal considerations of a predominantly local na­
ture, and which made abstention particularly appropriate. 
In contrast to the present case which presents only issues 
of federal constitutional law, Burford and Alabama in­
volved situations to which concededly the “ federal courts 
can make small contribution.” 319 U. S. at 327. Equally 
important as a distinguishing factor is the fact that the 
state legislatures in those cases had specially concentrated 
all judicial review of administrative orders in one state 
court, see 319 U. S. at 325-327; 341 U. S. at 348; Note, 59 
Col. L. Rev., supra at 759-760, in effect designating the 
state courts and agencies as “working partners” in the 
local regulatory scheme. 319 U. S. at 326. While this might 
be said to hold true in future cases in New York where 
the Authority makes a specific determination of ineligi­
bility affecting a particular applicant for public housing,* 6

O pinion  o f  C ou rt o f  A p p ea ls

6 Burford involved an attack in the district court on a proration 
order issued by the Texas Railroad Commission as part of a com­
plex state regulatory program devised for the conservation of oil 
and gas in Texas. Alabama was an action in the federal court 
challenging an order of a state regulatory commission in which a 
railroad was refused permission to discontinue certain of its intra­
state train service. In each case the Supreme Court ordered the 
federal suit dismissed on the ground that it involved issues of a 
peculiar local interest regarding which the particular state con­
cerned had established a specialized regulatory system for both 
decision and review.

6 Judicial review in the- New York courts is available to any re­
jected public housing applicant under CPLR §7803(3), where he 
may question “ whether a determination was made in violation of. 
lawful procedure, was affected by an error of law or was arbitrary 
and capricious or an abuse of discretion . . . .” Once an adminis-



11a

it is certainly not so here where the very concern of the 
plaintiffs is that no such determinations have been made, 
and where New York law provides a remedy for the plain­
tiffs’ ills which is dnbions at the very best.7 What we have 
just said also serves to distinguish the recent case of 
Randell v. Newark Housing Authority, 384 F. 2d 151 (3 
Cir. 1967), cited by both parties, where the federal court * S.

O pinion  o f  C ou rt o f  A p p ea ls

trative procedure has been instituted by the Authority which in 
all respects complies with Federal constitutional standards, then 
the great majority of claims arising out of the acceptance or re­
jection of applicants by the Authority will be matters entirely 
within the purview of the State courts, which sit in a “much better 
position . . .  to ascertain the myriad factors that may be involved 
in a particular situation and to determine their proper weight.”
S. Rep. No. 281, 87th Cong., 1st Sess. (1961) in 2 U. S. Code 
Cong. & Ad. News, at 1944; cf., Austin v. NYCHA, 40 Misc. 2d 
206, 267 N. Y. S. 2d 300 (1965); Sanders v. Cruise, 10 Misc. 2d 
533, 173 N. Y. S. 2d 871 (1965).

7 The only possibility for relief in the state courts in the present 
case where no determination as to the eligibility of any of the 
plaintiffs has been made, is by way of mandamus under §7803(1), 
brought to compel the Chairman or Executive Director of the 
Authority “ to perform a duty enjoined upon [him] by law,” i.e., 
to issue regulations to remedy the procedural defects alleged in 
the complaint, as he is empowered to do under Resolutions ap­
plicable to both federal and state-aided projects. See Res. No. 
56-8-433, §9(i ) , (iii), and (iv) ; Res. No. 62-7-473, §10(i), (ii), 
and (iv). We do not think, however, that this section would pro­
vide the plaintiffs a “plain, adequate and complete” remedy in the 
state courts, Potwora v. Dillon, 386 F. 2d 74, 77 (2 Cir. 1967), a 
necessary precondition to abstention. Compare Wright v. McMann, 
387 F. 2d 519, 523-524 (2 Cir. 1967). The restrictive New York 
case law supports this conclusion. See, e.g., Gimprich v. Board of 
Ed. of City of New York, 306 N. Y. 401, 118 N. E. 2d 578 (1954) 
(mandamus does not lie to compel an act of administrative discre­
tion) ; Grand Jury Ass’n of New York County, Inc. v. Schweitzer, 
11 A. D. 2d 761, 202 N. Y. S. 2d 375 (1960) (petitioner must show 
“clear legal right” to mandamus) ; C. S. D. No. 2 of Towns of 
Cosy mans, et al. v. New York State Teachers Retirement System, 
46 Misc. 2d 225, 250 N. Y. S. 2d 535 (1965) (even then, relief 
may be denied in court’s discretion).



12a

action was “ closely tied” to various landlord and tenant 
actions already pending before the courts of New Jersey. 
384 F. 2d at 157, n. 15.

Equitable considerations also favor the result reached 
by the district judge. The 31 named plaintiffs speak not 
only for themselves, but also for thousands of New York’s 
neediest who may have been unfairly entrenched in squalor 
due to the alleged inadequacies of the Authority’s proce­
dures. The need for relief is thus immediate, and should 
not be aggravated further by delay in the courts. See 
Baggett v. Bullitt, 377 U. S. 360, 378-379 (1964); Allegheny 
County v. Mashuda Co., supra at 196-197; England v. 
Louisiana State Bd. of Medical Examiners, 375 U. S. 411, 
425-427 (1964) (Justice Douglas concurring); Note, 80 
Harv. L. Rev., supra at 606-607.

The order of the district court is affirmed.

O pinion  o f  C ou rt o f  A p p ea ls

H ays, Circuit Judge (dissenting) :

I  dissent.
The plaintiffs allege that applicants for public housing 

are not notified as to whether they are eligible, that they 
must refile their applications every two years and do not 
get priority because of earlier filing, and that the Housing 
Authority has not published and posted its regulations 
regarding selection of tenants. These complaints hardly 
seem to raise federal constitutional questions. See Chaney 
v. State Bar, 386 F. 2d 962 (9th Cir. 1967), cert, denied, 
36 H. S. L. W. 3390 (April 8, 1968); Powell v. Workmen’s 
Comp. Board, 327 F. 2d 131 (2d Cir. 1964); Sarelas v. 
Sheehan, 326 F. 2d 490 (7th Cir. 1963), cert, denied, 377 
H. S. 932 (1964).



13a

But even if we assume that some constitutional issues 
are raised, there are no allegations which tend to show 
that the individual plaintiffs have been denied rights. We 
should not entertain such a vague, uncertain, abstract and 
hypothetical complaint. See Birnbaum v. Trussell, 347 
F. 2d 86 (2d Cir. 1965).

O pinion  o f  C ou rt o f  A p p ea ls



14a

Order of Temporary Injunction

IN THE UNITED STATES DISTRICT COURT

F oe the Northern D istbict of T exas 

Dallas D ivision 

Civil A ction No. CA 3-2626-C

Mbs. Dominga Q u e v e d o , and on behalf o f all others 
similarly situated,

Plaintiffs,
vs.

Me. W illiam W. Collins, Jr,, Individually and as Regional 
Administrator of the Department of H ousing and U r­
ban Development, Mb. J. W. Simmons, Jb,, Individually 
and in his capacity as Chairman of the Board of Di­
rectors of the H ousing A uthority of the City of Dal­
las, Mb. James L. Stephenson, Individually and in his 
capacity as Executive Director of the H ousing A uthor­
ity of the City of Dallas and in his capacity as Secre­
tary to the Board of Directors of the H ousing A uthor­
ity of the City of Dallas, and Me. K eith B eard, 
Individually and as Manager of Elmer Scott Housing 
Project, 1600 Morris Street, Dallas, Texas,

Defendants.

On the 19th day of June, 1968, came on to be heard the 
above styled and numbered cause, and came the plaintiff 
in person and by attorney and announced ready for trial, 
and the defendants having been duly served appeared in 
person and by attorney and announced ready for trial;



15a

Order of Temporary Injunction

And it appearing to the Court from an inspection of the 
pleadings herein and from the argument of counsel for 
plaintiff and of counsel for defendants that the Court has 
jurisdiction over all parties hereto except defendant Wil­
liam C. Collins and of the issues raised by the pleadings, 
and no jury having been demanded by either of the parties 
hereto, the Court proceeded to try said cause; and there­
upon all matters in controversy as well of facts as of law, 
were submitted to the Court, and the Court having heard 
the pleadings and the evidence and argument of counsel, 
is of the opinion that the material facts alleged in the 
Plaintiff’s Petition have been proven by full and satis­
factory evidence, and that plaintiff is entitled to a tem­
porary injunction against the defendants,

I t i s , t h e r e f o r e , o r d e r e d , a d j u d g e d  a h d  d e g r e e d  by the 
Court that the named defendants, their agents, employees, 
successors, and all persons in active concert with them be 
temporarily enjoined from:

Seeking to evict plaintiff through summary judicial 
proceedings unless the plaintiff has first been afforded 
an opportunity to contest the reason for eviction at a 
fair hearing, whether before the agency or a court, 
which complies with the elements of due process and 
equal protection of the laws.

The Court further orders that plaintiff be enjoined from 
taking any action against any person named as a com­
plainant at a certain hearing at Elmer Scott Housing 
Project on May 10, 1968, and whose name was divulged 
at this trial.

Finally, the Court declares that the policies and prac­
tices of the defendants regarding eviction procedures vio­



16a

late the rights of the plaintiff secured by the Constitution 
and laws of the United States, and therefore suspends any 
action by the Housing Authority of the City of Dallas 
against the plaintiff pending final hearing herein. This 
cause is set for trial August 23, 1968, at 9 :30 o’clock A.M.

E ntered this the 12th day of July, 1968.

O rd er  o f  T em p o ra ry  In ju n ction

W . M. T aylor
United States District Judge



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