Truss v. Housing Authority of the City of Talladega, Alabama Brief for Appellants

    \___________________________________

I n the

#tat0s (Enurt of Ap;iraiB
F or the F ifth Circuit

No. 25172

E verline Lewis and Margaret Truss,

Appellants,
V.

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

Appellees.

appeal from the united states district court 
FOR THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

P eter A. H all 
Orzell B illingsley, J r.

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack Greenberg 
Charles H. J ones, J r.
Charles S tephen Ralston 
Gabrielle a . K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



I N D E X

PAGE

Statement of the Case .................................................... 1

Specifications of E r ro r .................................................... 3

A egument—

I. The Withdrawal of the Appellants’ Notices to 
Terminate and Vacate Does Not Sender This 
Action M oot...........................................................  4
A. Appellants’ Individual Claims Are Not Moot 4

B. The Action on Behalf of the Class Is Not
Moot ................................................................. 7

C. The Resolution of the Recurring Issues Pre­
sented by This Case is of Tremendous Pub­
lic Im portance.................................................. 8

II. The Housing Authority’s Assertion of Future 
Compliance with the February 7, 1967 Depart­
ment of Housing and Urban Development Cir­
cular Does Not Make This Action Moot .............. 10

Conclusion ......................................................................  12

Certificate of Service .....................................................  13



11

Table of Cases

PAGE

Bailey v. Patterson, 323 F.2d 201 (5th. Cir. 1963), cert, 
den. 376 U.S. 910 (1964) ............................................  6

Cypress v. Newport News General and Nonsectarian 
Hospital Association, 375 F.2d 648 (4th Cir. 1967)—.6,11

Dixon V. Alabama State Board of Education, 294 F.2d 
150 (5th Cir. 1961) ...................................................... 11

Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966) ....... 7
Lewis et al. v. Housing Authority of the City of Talle- 

daga, Alabama, C.A. No. 67-106 (N.D. Ala.) ............  8

Eva Pearl Eichardson v. Housing Authority of the 
City of Bessemer, C.A. No .67-148 (N.D. Ala.) ....... 8

Eichardson v. Housing Authority of the City of New 
Bern, C.A. No. 678 (E.D. N.C.) .................................  8

Terry v. Housing Authority of the City of Florence, 
Alabama, C.A. No. 67-232 (N.D. Ala.) ...................... 8

Thomas, et al. v. Housing Authority of the City of 
Little Eock, Arkansas, C.A. No. L.E. 66-C-230 (M.D. 
Ark.) .............................................................................. 8

Thorpe v. Housing Authority of the City of Durham,
No. 712, Oct. Term 1966 ..............................................  3

Thorpe v. Housing Authority of the City of Durham,
35 L.W. 4366 ...............................................................  10

United States v. W. T. Grant Co., 345 U.S. 629 (1953)—5,11

Williams v. Housing Authority of the City of Atlanta, 
Georgia, C.A. No. 10796 (N.D. Ga.) ........................  8



Ill

PAGE

Rules

Federal Rules of Civil Procedure, Rule 23(b)(2) ......... 2,7

Federal Rules of Civil Procedure, Rule 23(e) ..............  8

Other Authorities:

Department of Housing and Urban Development Cir­
cular, February 7, 1967 .................................... 3,4,10,12



I n  the

(Eourt of Appeals
F or the F ifth Cibcuit 

No. 25172

E veeline Lewis and Maegabet T russ,

Appellants,
V.

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

Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOE THE NORTHERN DISTRICT OF ALABAMA

BRIEF FOR APPELLANTS

Statement of the Case

This appeal is from an order of the United States Dis­
trict Court for the Northern District of Alabama, dated 
July 14, 1967, dismissing appellants’ complaint on the 
ground that the action was moot.

On January 23, 1967, appellants, Negro tenants in the 
Knoxville Homes, a housing project operated by the Hous­
ing Authority for the City of Talladega, were notified by 
mail that they would be required to vacate their tenancy 
within ten days of the date of the letter. They were sub­
sequently notified that they would have until February 10, 
1967 to vacate the premises (R. 5). The Housing Authority



gave no reason for these notices, nor did it indicate that 
the appellants would receive a hearing before eviction. 
However, it has been subsequently made clear that appel­
lant Everline Lewis was asked to vacate because her 
daughter (who was not at that time living with her) was 
expecting an illegitimate child and appellant Margaret 
Truss was asked to vacate because she was expecting an 
illegitimate child (R. 49). These notices to terminate and 
vacate were issued pursuant to a current Housing Author­
ity regulation adopted on February 21, 1964 which re­
quires the automatic eviction of a tenant family if any 
member of that tenant family is expecting or has an il­
legitimate child (R. 12).

On February 10,1967 appellants 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, Eastern Division (R. 1, 
13 and 16). In their complaint appellants sought an in­
junction against the Housing Authority’s policy and prac­
tice of automatically evicting a family living in one of its 
public housing projects if a member of that family is ex­
pecting or has an illegitimate child and from instituting 
any further eviction proceedings pursuant to the com­
plained of policies without indicating the reasons for the 
eviction and providing an opportunity for a fair hearing 
prior to eviction. A declaratory judgment was also sought 
declaring this regulation and policy to be violative of 
constitutionally and statutorily protected rights. The suit 
was brought as a class action pursuant to Rule 23(b)(2) 
of the Federal Rules of Civil Procedure.

On February 10, 1967 the Hon. H. H. Grooms entered 
an order restraining the Housing Authority from evicting 
or threatening to evict the appellants (R. 20). On Feb­



ruary 20, 1967, the district court continued the temporary 
restraining order previously entered on February 10th 
until such time as either party made application for a 
further hearing (R. 25). The Housing Authority, on Feb­
ruary 28, 1967, filed a motion to dismiss and appellants 
filed a motion in opposition (R. 32). A hearing on these 
motions was set on the regular motion calendar for June 2, 
1967. In a supplemental motion to dismiss dated May 31st, 
the Housing Authority attached a copy of the revocation 
of these eviction notices and contended this revocation 
rendered the case moot (R. 34). On June 2, 1967, the dis­
trict court dismissed appellants’ complaint on the basis 
that the action had been rendered moot by the Housing 
Authority’s recision of these notices (R. 38). Appellants 
subsequently filed a motion for relief from the June 2nd 
dismissal and a motion in response to the Housing Au­
thority’s supplemental motion to dismiss (R. 40 and 43). 
On July 14, 1967 the district court amended its order of 
dismissal of June 2nd but refused to decide the constitu­
tional issues raised by appellants because it appeared to 
the court that the action was rendered moot by the recision 
of the eviction notices and because counsel for the Housing 
Authority stated it intended to comply with the circular 
of the Department of Housing and Urban Development 
which was involved in the decision of Thorpe v. Housing 
Authority of the City of Durham, No. 712, October Term, 
1966 (R. 49 and 50). Notice of appeal was filed on Au­
gust 3, 1967.

Specifications of Error

1. The court below erred in finding that the Housing 
Authority’s recision of the appellants’ notices to terminate 
and vacate rendered the action moot.



2. The court below erred in finding that the Housing 
Authority’s compliance with the February 7, 1967 Depart­
ment of Housing and Urban Development circular ren­
dered the action moot.

ARGUMENT

The Withdrawal of the Appellants’ Notices to Termi­
nate and Vacate Does Not Render This Action Moot.

A. Appellants’ Individual Claims Are Not Moot.

In their complaint appellants sought injunctive relief 
against the Housing Authority from evicting tenant fam­
ilies because of its regulation calling for the automatic 
eviction of tenants if any member of the tenant family is 
expecting or has an illegitimate child; evicting or threaten­
ing to evict without indicating the reasons for the eviction 
and affording an opportunity for a fair hearing prior to 
eviction; segregating the public housing projects on the 
basis of race or color, and failing to comply with federal 
regulations relating to the operation of public housing 
projects, particnlarly those regulations that require notices 
to be posted stating that the projects are open to all appli­
cants regardless of race or color. A declaratory judgment 
that the complained of policies and practices were contrary 
to rights guaranteed by constitutional and statntory pro­
visions was also sought. The only action that the Housing 
Authority took with respect to these complained of policies 
and practices was to rescind appellants’ notices to termi­
nate and vacate. This single act, according to the court 
below, rendered the complete action moot and thus the 
complaint was dismissed. It is clear that there are a num­
ber of issues remaining which have not been resolved;



namely, the constitutionality of the Housing Authority’s 
regulation, the racial segregation of its housing projects, 
and its failure to post notices indicating that the housing 
projects are open to all persons regardless of race or color. 
With respect to these issues which appellants have raised 
in their complaint, they have not had their day in court.

An injunction looks to the future and it is ordinarily 
granted or denied on the basis of whether it appears needed 
in order to protect the rights of the complainant. Discon­
tinuance of alleged violations must be weighed in light of 
all of these surrounding circumstances in order that a 
reasonable prediction may be made as to the danger of a 
future violation. The court, in exercising its discretion as 
to whether or not to issue the injunction, should rely on 
evidence surrounding these factors which can only be 
adduced after a hearing. It is submitted that the court 
below erred in refusing appellants an opportunity to dem­
onstrate by a hearing that there was a danger of renewed 
and future violations of their rights as well as those of 
the class they represent. Under certain circumstances a 
case may be rendered moot by discontinuance of alleged 
unlawful acts if the defendant can demonstrate that there 
is no reasonable expectation that the wrong will be re­
peated. However, this burden is a heavy one. United 
States V. W. T. Grant Co., 345 U.S. 629, 632-633 (1953). 
The simple act of rescinding appellants’ notices to termi­
nate and vacate hardly meets this burden.

It has long been recognized in this circuit that the volun­
tary cessation of the alleged unlawful acts, without more, 
does not render an action moot. The reason for this doctrine 
is clear for:

What has been adopted can he repealed and what has 
been repealed can be readopted. We conclude there­
fore that the plaintiffs are entitled to have their in-



6

junction against state action depriving them of their 
constitutional rights based on the record at the time 
the case was tried. Anderson v. City of Albany, 321 
F.2d 649, 657 (5th Cir. 1963).

Likewise, in Bailey v. Patterson, 323 F.2d 201, 205 (5th 
Cir. 1963), cert. den. 376 U.S. 910 (1964), the court held 
that plaintiffs were entitled to injunctive relief notwith­
standing defendant’s cessation of the acts plaintiffs com­
plained of because;

The threat of continued or resumed violations of ap­
pellants’ federally protected rights remains actual. De­
nial of injunctive relief might leave appellees ‘free to 
return to [their] old ways.’ United States v. W. T. 
Grant, 345 U.S. 629. . . .

In Cypress v. Newport News General and Nonsectarian 
Hospital Association, 375 F.2d 648 (4th Cir. 1967), the 
acts of the defendant subsequent to the filing of the suit 
were viewed thusly;

Such a last minute change of heart is suspect, to say 
the least. We recently had occasion to observe in 
Lankford v. Gelston, 364 F.2d 197, 203 (4th Cir. 1966), 
under somewhat different circumstances, that ‘pro­
testations of repentance and reform timed to anticipate 
or to blunt the force of a lawsuit offer insufficient as­
surance’ that the practice sought to be enjoined will 
not be repeated. See United States v. Oregon State 
Medical Soc’y, 343 U.S. 326, 333 (1952).

The need for injunctive relief is not to be judged 
in a vacuum. Just as it is an equitable axiom that an 
injunction will not issue merely because no demon­
strable harm will result from its issuance, so an equity 
court will unliesitatingly grant this relief where in its



estimation the circumstances reasonably indicate its 
necessity. Onr appraisal must take into consideration 
more than the single, tardy, reluctant, and incomplete 
step—the admission of Dr. Cypress.

Also see Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966).

However, in the instant case the Housing Authority has 
in fact not discontinued the policy and practice of which 
appellants complain, since the regulation which entitles 
it to evict persons to whom illegitimate children are born 
still exists (R. 12). Thus, appellants are still subjected to, 
the ever present threat of eviction. It wonld seem that if 
the Housing Authority really intended to cease this policy, 
the regnlation itself would be rescinded. However, no such 
action has been taken by the Housing Anthority.

Although appellants are free to reopen this case when 
they are again threatened with eviction, they should not 
be put to the burden of having to engage in a mnltiplicity 
of suits when the lawfulness of the regulation subjecting 
them to eviction can he determined in the present action. 
Since the appellants are still living in the housing project 
and still have illegitimate children in their family they are 
continually subject to eviction and the case is in no way 
moot.

B. The Action on Behalf of the Class Is Not Moot.

This action is brought pursuant to Rule 23(b)(2) of the 
Federal Rules of Civil Procedure authorizing class actions. 
Appellants are not only seeking relief for themselves hut 
for other persons similarly situated who have been sub­
jected or may in the future be subjected to the conse­
quences of the complained of policies. Therefore, even if 
their individual claims were satisfied by actions taken by 
the Housing Authority subsequent to the filing of the com-



8

plaint, those acts cannot render the entire case moot and 
thereby deny members of the represented class their right 
to have determined the constitutionality of the complained 
of policies and practices.

Inherent in a class action is the assumption that it will 
survive even if the representatives of the class have been 
satisfied and want to discontinue it. Eule 23(e) of the 
Federal Eules of Civil Procedure permits dismissal only 
with approval of the court and notice to all members of* 
the class.

C. The Resolution of the Recurring Issues Presented hy This 
Case is of Tremendous Public Importance.

Whether public housing tenants have the right to a 
formal statement of the reason for eviction and a fair 
hearing on that reason prior to eviction* and whether 
public housing tenants can be properly evicted because 
they (or members of their family) bear illegitimate chil­
dren** are issues which have been raised in numerous com­
plaints in federal courts. Therefore, the regulation and 
practices of the Talladega Housing Authority of which 
appellants complain in the present action are not isolated 
acts or policies limited to Talladega. These same policies

* Eva Pearl Bichardson v. Housing Authority of the City of Bessemer, 
C.A. No. 67-148 (N.D. A la .); Bichardson v. Housing Authority of the City 
of New Bern, C.A. No. 678 (E.D. N .C .); Terry v. Housing Authority of 
the City of Florence, Alabama, C.A. No. 67-232 (N.D. A la .); Thomas, 
et al. V. Housing Authority of the City of Little Bock, Arkansas, C.A. 
No. L.R. 66-C-230 (M.D. A rk .); Lewis et al. v. Housing Authority of 
the City of Talledaga, Alabama, C.A. No. 67-106 (N.D. Ala.) and Wil­
liams V. Housing Authority of the City of Atlanta, Georgia, C.A. No. 
10796 (N.D. Ga.).

** Lewis, et al. v. Hottsing Authority of the City of Talladega, Alabama, 
C.A. No. 67-106 (N.D. Ala.) ; Bichardson v. Housing Authority of New 
Bern, C.A. No. 678 (E.D. N.C.) and Thomas, et al. v. Housing Authority 
of the City of Little Bock, Arkansas, C.A. No. L.R. 66-C-230 (M.D. Ark.).



and practices are being challenged in a number of cases 
presently pending in this circuit as well as other circuits.

The question of whether a housing authority can effec­
tively insulate itself from suit by acting with respect to 
the named plaintiffs after a complaint is filed has a 
tremendous bearing on the types of results which can be 
gained through litigation. Housing authorities (as well as 
defendants generally) will be armed with an effective 
weapon to prevent their acts from ever being challenged 
if this court upholds the district court’s denial of a hearing 
which would at least have afforded appellants an oppor­
tunity to prove their claims.

President Johnson has said the dispossessed Negro poor 
“are another nation.” * The purpose of federally financed 
low income public housing is “to remedy the unsafe and 
insanitary housing conditions and the acute shortage of 
decent, safe and sanitary dwellings for families of low- 
income. . . 42 U.S.C. §1401. The slums are the only
alternative for the poor if they can be evicted from public 
housing arbitrarily by housing authorities whose policies 
can never be challenged.

* Remarks of President Lyndon B. Johnson, at Howard University, 
Washington, D.C., June 4, 1965, “To Fulfill These Rights,” p. 4:

“But for the great majority of Negro Americans—the poor, the 
unemployed, the uprooted and the dispossessed—there is a much 
grimmer story. They still are another nation. Despite the court 
orders and the laws, despite the legislative victories and the speeches, 
for them the walls are rising and the gulf is widening.”



10

II
The Housing Authority’s Assertion of Future Com­

pliance with the February 7, 1967 Department of Hous­
ing and Urban Development Circular Does Not Make 
This Action Moot.

In the decision of the court below, the Hon. Judge H. H. 
Grooms recognized that the Housing Authority had stated 
in open court that it would in the future comply with the 
[February 7, 1967] circular of the Department of Housing 
and Urban Development considered in Thorpe v. Housing 
Authority of the City of Durham, 35 L.W. 4366. Com­
pliance with this circular, however, has relevance only to 
one of the many policies and practices of which appellants 
complain, namely, eviction without indicating the reasons 
and without affording a hearing to challenge those reasons. 
The many other issues raised in appellants’ complaint, 
particularly the constitutionality of the Housing Author­
ity’s regulation entitling it to evict persons simply because 
such persons or members of their family have an il­
legitimate child, are in no way resolved. However, this 
promise of compliance does not even render moot appel­
lants’ constitutional claim of a right to notice of reasons 
and a hearing.

First, it has not yet been decided whether this circular 
is binding on local housing authorities. This issue was 
raised in Thorpe v. Housing Authority of the City of Dur­
ham, stipra, and the Supreme Court remanded this case 
to the Supreme Court of North Carolina to resolve the 
question of whether, and to what extent, local housing 
authorities are bound by this circular.

Second, even if the circular were binding on the Housing 
Authority, the type of hearing to be afforded a public



11

housing tenant has likewise not yet been resolved. Is the 
tenant entitled to a full evidentiary-type hearing with all 
of the safeguards offered by a court of law? May the 
tenant bring an attorney or other representative with her? 
Or, is a simple conference between the housing manager 
and tenant sufficient? Appellants submit the type of hear­
ing to be afforded public housing tenants may well vary 
with the factual circumstances involved. However, in the 
instant case appellants should at least have been given a 
notice containing a statement of the specific charges and 
grounds of eviction (which they were not) which, if proven, 
would entitle the Housing Authority to evict the tenants 
and an opportunity to contest the truth of the allegations 
and/or question the propriety of eviction for these rea­
sons by affidavits or testimony. See Dixon v. Alabama 
State Board of Education, 294 F.2d 150 (5th Cir. 1961).

Third, just as the Housing Authority’s sudden recision 
of appellants’ notices to terminate and vacate only after 
suit was brought is rather suspect—Cypress v. Newport 
News General and Nonsectarian Hospital Ass’n, supra— 
its assertion of intended future compliance with the HUD 
circular must be weighed and considered in light of its 
timing.

Fourth, in their complaint appellants have sought an 
injunction and declaratory judgment for their own benefit 
and for the benefit of other persons similarly situated and 
are thus entitled to a hearing on these claims. They should 
not be denied this hearing by promises of the appellee 
to comply Avith a HUD circular but should be given an 
opportunity to prove they are in need of an injunction 
and declaratory judgment protecting their rights and those 
of members of the class they represent. United States 
V. W. T. Grant Co., supra.



12

For these reasons, appellants submit that the Housing 
Authority’s assertion of intended future compliance with 
the February 7, 1967 circular issued by the Department of 
Housing and Urban Development does not make this action 
moot.

CONCLUSION

For all the foregoing reasons, appellants submit that 
the order of the trial court dismissing this action for 
mootness should be reversed.

Kespectfully submitted.

P eter A. H all 
Oezell B illiitgsley, J r.

1630 Fourth Avenue, North 
Birmingham, Alabama

J ack Greenberg 
Charles H. J ones, J r.
Charles S tephen R alston 
Gabrielle a . K irk

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellants



13

Certificate of Service

This is to certify that the undersigned, one of appellants’
attorneys, on this da te ,............................. , 1967, has served
two copies each of the foregoing Brief for Appellants on 
Byron D. Boyett, Esq., Dixon, Wooten and Boyett, and 
Eeid Barnes, Esq., c/o Byron D. Boyett, Esq., P.O. Drawer 
646, Talladega, Alabama 35160, by mailing same to said 
address by United States air mail, postage prepaid.

Attorney for Appellants



MEILEN PRESS JNC —  N. Y. C. 219