497 F.2d 626 | D.C. Cir. | 1973
This case is one of three related cases decided today which involve the procedural rights of tenants of housing, constructed under various provisions of the Federal housing legislation, prior to official approval of rent increases. In the case at bar, we hold that tenants of low-rent public housing are entitled not only to receive notice of proposed rent increases but also to participate in the process of official consideration of rent increases by making written presentations. In Marshall v. Romney, No. 71-1786, we hold that the same opportunities must be afforded tenants of low- and moderate-income housing constructed pursuant to § 221(d)(3) of the National Housing Act, with both FHA mortgage insurance and below-market-interest-rate loans. In Tenants’ Council of Tiber Island v. Lynn, No. 71-1931, we hold that the opportunity to participate need not be accorded tenants of housing constructed under § 220 of the Housing Act, as part of area redevelopment plans.
The case at bar is a class action for injunctive and declaratory relief, brought in 1969 by Chester H. Thompson on behalf of tenants ofapproximately 6000 rental units of the National Capital Housing Authority (NCHA). Plaintiff complained of failure to accord the tenants the procedural requisites for approval of the rental increases in low-rent public housing programs established under the United States Housing Act (Act) as amended, 42 U.S.C. 1401 et seq. The suit named as defendants “Mayor” Washington, Commissioner of the District of Columbia, and his Assistant, in their capacity as the members of the NCHA (see E.O. 11401, 33 F.R. 4559), certain NCHA subordinates, and the Secretary of the Department of Housing and Urban Development (HUD) and two subordinates. Plaintiffs sought to enjoin a major modification of the rent schedule approved by those officials, scheduled to become effective January, 1970. The plaintiff class consists of the majority of NCHA tenants, who pay according to a “graded rent” schedule, and does not include certain welfare recipients, elderly tenants, and others, paying so-called flat rents, who were not affected by this rental increase.
This is the second time this litigation has come before this court. In McKinney v. Washington, 143 U.S.App.D.C. 4, 442 F.2d 726, decided November 25, 1970, the court affirmed the denial of a preliminary injunction on the ground that appellants were unlikely to prevail on the merits. The case now comes before the court on appeal from the District Court’s order of October 15, 1971, granting the defendants’ motion to dismiss the amended complaint. The plaintiff class raises two distinct claims: (1) The summary procedures used by NCHA and HUD — wholly excluding notice to the tenants of the proposed rent increases (by NCHA), or opportunity for tenants to express views, or to present evidence in opposition, on review of rent increase proposals (by HUD) — violate the Act and administrative due process. (2) A rent increase which is beyond “the financial reach of families of low income” violates the Act. The District Court dismissed the complaint on the grounds that it was a suit against the United States to which it had not consented, and failed to state a claim on which relief could be granted. We reverse the dismissal of the complaint and remand for further proceedings.
The program of low-rent public housing was established by the United States Housing Act of 1937.
The history of NCHA’s economic affairs in the 1960’s illustrates the current financial crisis generally affecting pub-lie housing.
In the years immediately preceding the requested rental increase of 1969, the NCHA was running operating deficits in its current budget and was required to spend $2.4 million in reserve funds to supplement income derived from rents.
To understand the nature of the rent increases some explanation of the graded rent structure is needed.
Submissions by the parties furnish contradictory information as to the precise impact of the new rent schedule on tenants. For example, appellants assert that the average amount of increase is $23.17 per month for the 6,000 units affected (Reply Br. 3), while, the Government brief (p. 6) claims the increase is $11.16 per unit month. We cannot resolve such matters on the record before us, particularly since neither the Government nor the District Court developed its legal position on the basis of such factual refinements. On a motion to dismiss we must accept the averments of the complaint, that NCHA’s proposed rent increases (between $10 and $44 per month) amount to between 17 and 38% of the previous rent (par. 7), and that the new rents are beyond the financial means of plaintiffs. Appellants assert (Br. 13) that the increased rents force many members of plaintiff class to fore-go basic necessities of life.
In December, 1969, Congress enacted an amendment to the 1937 Housing Act, known' as the Brooke Amendment,
II. JURISDICTION AND STANDING
Jurisdiction of this action lies under 28 U.S.C. § 1361,
We also find standing, under the standards established in Ass’n of Data Processing Service Organizations v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L. Ed.2d 184 (1970) and Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970). The approval and imposition of the rent increase supplies the adversariness and ripeness required for constitutional standing. There is injury in fact. The claim asserted is “arguably” within the zone of interest protected by the Housing Act, Hahn v. Gottlieb, supra, in view of the provision establishing the goal of “a decent home” for every citizen, 42 U.S.C. § 1441 (1970), and of §§ 1 and 2 of the Housing Act of 1937, 42 U.S.C. § 1401-02, which indicate that the purpose of public housing is to make housing available to “families of low income.”
III. TENANTS’ RIGHT TO HEARING BY WRITTEN PRESENTATIONS
A. The Statutory Interest Underlying Plaintiffs’ Hearing Claim
The plaintiffs claim that they are entitled to an opportunity to be heard before their rents for public housing are increased. They assert that the right to be heard arises from the Housing Act and from the mandate of the Due Process clause.
We begin by assessing the definition and scope of plaintiffs’ interest under the statute. Examination of the statute is necessary even to resolve plaintiffs’ claim that a hearing is constitutionally required, for the mandate of the Due Process Clause is triggered by the deprivation of some “interest” created by law. In Goldberg v. Kelly, the Court noted that welfare benefits are a matter of “statutory entitlement for persons qualified to receive them.” 397 U.S. 254, 262, 90 S.Ct. 1011, 1017, 25 L.Ed.2d 287 (1970) (emphasis added). Although the right-privilege distinction may have limited utility, there must be an interest to which due process protection will attach.
The “Declaration of Policy” contained in Section 1 of the 1937 Housing Act, 42 U.S.C. § 1401 (1970), provides:
It is declared to be the policy of the United States to promote the general welfare of the Nation by employing its funds and credit ... 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, rural nonfarm, and Indian areas, that are injurious to the health, safety, and morals of the citizens of the Nation.
Section 1401 further provides that, in the first instance, responsibility is to vest in local public housing agencies for “administration of the low-rent housing program, including responsibility for the establishment of rents and eligibility requirements (subject to the approval of the [Federal Housing] Authority), with due consideration to accomplishing the objectives of this chapter while effecting economies.”
(1) The term “low-rent housing” means decent, safe, and sanitary dwellings within the financial reach of families of low income, and developed and administered to promote serviceability, efficiency, economy, and stability, and embraces all necessary appurtenances thereto. The dwellings in low-rent housing shall be available solely for families of low income. . [I]neome limits for occupancy and rents shall be fixed by the public housing agency and approved by the Authority after taking into consideration (A) the family size, composition, age, physical handicaps, and other factors which might affect the rent-paying ability of the family, and (B) the economic factors which affect the financial stability and solvency of the project. ... (2) The term “families of low income” means families (including elderly and displaced families) who are in the lowest income group and who cannot afford to pay enough to cause private enterprise in their locality or metropolitan area to build an adequate supply of decent, safe, and sanitary dwellings for their use. .
These provisions make it clear that rent limitation is the prime feature of these programs, and that the purpose of public housing is to make housing available to the “families of low income.” The very premise of the program is that the rents will be substantially lower than those obtainable in the private market; otherwise public housing would not be necessary. While the NCHA and HUD have discretion under §§ 1401 and 1402 to determine the levels and structure of rents in public housing, these agencies must be guided by the general directive that the rents be “within the financial reach of families of low income.”
B. Tenants’ Claim of Right to Hearing
In providing for controlled rents, Congress plainly intended to create a benefit in favor of tenants to enjoy subsidized housing at less than market price. The Housing Act is silent on the question whether Congress intended to provide the tenant beneficiaries with procedural rights to assert further their interests during the process of rent-fixing by LHAs. We uphold the tenants’ claim of a right to be heard, as set forth in Section E of this opinion, finding such rights in the statute, albeit by implication rather than express provision. While a disposition on statutory grounds sometimes allows a court to bypass constitutional questions, the statutory interpretation advanced in the present case is based in material degree on the strength of the plaintiffs’ constitutional contentions, leading us to perform “our duty in the interpretation of federal statutes to reach a conclusion which will avoid serious doubt of their constitutionality.” Richmond Co. v. United States, 275 U.S. 331, 346, 48 S.Ct. 194, 198, 72 L.Ed. 303 (1928). Our ruling avoids a decision on the constitutional claims, in furtherance of the settled. practice of the Federal courts to construe Federal statutes to avoid troublesome constitutional issues.
C. The Due Process Issues
Justice Brennan’s opinion in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), holding that welfare benefits could not be terminated without a hearing, and Justice Harlan’s opinion in Boddie v. Connecticut, 401
The right-privilege distinction, once the touchstone for confining the protection of due process, has given way to a more flexible approach.
Under the current Supreme Court doctrine, the existence and extent of due process procedural requirements turn upon consideration of three factors, which may, but need not, be interrelated: (1) the nature of the forum through which the Government acts; (2) the source of the “interest” of the citizen upon which Government action impinges; (3) the extent, in fact, of the deprivation which the Government action occasions.
1. Nature of forum.
The core of due process as a right to be heard was originally rooted in the judicial forum, where it has been vigilantly supervised to assure that the opportunity given is a reality and not a gesture.
While many procedural due process cases involve the judicial process, the principles are fully applicable to any executive or administrative forum entrusted with determinations of significant rights. That was held as long ago as Londoner v. City of Denver, 210 U.S. 373, 28 S.Ct. 708, 52 L.Ed. 1103 (1908), where the duty of making street improvement assessments and apportioning of taxes was vested in a board of equalization. The Court held that notice and hearing by the board were required before the tax was irrevocably fixed, although “[m]any requirements essential in strictly judicial proceedings may be dispensed with . . ..” 210 U.S. at 386, 28 S.Ct. at 714. Application of due process protection to executive and administrative action has followed from recognition of the basic principle that “the constitutional right to be heard is a basic aspect of the duty of government
2. Source of interest.
The scope of due process protection also takes into account the source of the interest for which the citizen asserts the protection. It has long been clear that the protected interests include those interests in personal liberty and property nurtured at common law. See Windsor v. McVeigh, 93 U.S. 274, 23 L.Ed. 914 (1876). Protection of property interests has never been in doubt, but the extent of the protection has recently been extended. See Sniadach v. Family Finance Corp., 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969) (wage garnishment); Fuentes v. Shevin, supra (summary repossession). And Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L.Ed.2d 515 (1971) establishes that a person’s interest in his own reputation merits procedural due process protection.
Sound analysis and authoritative precedent conjoin to make it clear that the zone of interests protected by due process procedural requirements includes interests created by statute in favor of a generally-defined class.
It is the essence of law to define what interests or values are entitled to legal protection, as compared with moral, ethical or voluntary sanctions of approval, and that the discharge of this quintessential function of the law rests not only in those evolving the scope of the common law but in the duly elected legislatures who may, within the limits set by constitutional restraints, enlarge on or supplant common law rules and protections.
As for precedent, it suffices to call the roll of the prominent decisions of the past decade: Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (unemployment compensation); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958) (tax exemption); Goldberg v. Kelly, supra (welfare benefits); Bell v. Burson, 402 U.S. 535, 91 S.Ct. 1586, 29 L.Ed.2d 90 (1972) (drivers’ licenses); Department of Agriculture v. Murry, 413 U.S. 508, 93 S.Ct. 2832, 37 L.Ed.2d 767 (June 25, 1973) (food stamps).
The significance of statutory protection is illuminated by the denial of procedural rights in the case of interests that have not been secured by statute, or authoritative regulation. In Board of Regents v. Roth, the Court declined to attach due process guarantees to the refusal to renew the one-year contract of a professor at a public university. 408 U.S. 564, 578, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). The opinion, however, stresses the related consideration of lack of significant deprivation, and we move to that element.
3. Extent of deprivation.
What constitutes a deprivation of constitutional significance remains an abiding question. Long ago Mr. Justice Frankfurter expressed the view that a
In examining the extent of deprivation, the Court has looked at the deprived party’s ability to recover from it, at alternatives and self-help available.
The extent of deprivation has a qualitative and not a mere quantitative character. In the case of the poor, deprivations that may seem modest to the bulk of society may take on the character of “grievous loss” identified as a core factor in providing procedural protections. This feature of the law has been prominent in those cases which have overturned long settled practices by which commercial interests used summary legal procedures that had particularly weighty consequences in situations involving the poor. Sniadach v. Family Finance Corp., 395 U.S. 337, .89 S.Ct. 1820, 33 L. Ed.2d 349 (1969); Fuentes v. Shevin, 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556 (1972).
D. Constitutional Issues in the Housing Context
We turn now to the cases that have considered the due process hearing issues in a housing context.
The first cases decided by the circuit courts of appeals have involved housing for low- and middle-income families, owned by private landlords, but subsidized under § 221(d)(3) of the National Housing Act, 12 U.'S.C. § 17151, by federal mortgage insurance assistance and
The tenants before us make a more modest request, not for a hearing with all the trappings of adjudication, but simply for “a fair opportunity to present their objections to any requested rental increases and to rebut any presentation made by the owner.” We believe the proper course to follow in appraising the constitutional claim here is to consider first whether due process requires that the tenants be given some opportunity to be heard, and if some hearing is required, then to flesh out its characteristics after due consideration of the exigencies of the administrative process. See Davis, Administrative Law Treatise § 7.01 at 407-08 (1958).
In Langevin v. Chenango Court, Inc., 447 F.2d 296 (1971), the Second Circuit also rejected the claim that tenants of § 221(d) housing were entitled to a hearing before rent increases. For Judge Friendly, writing for the majority, the crucial fact was that the FHA was not increasing the rent but merely approving the landlord’s proposal ;
The most recent decision, and the one that, like the case at bar, involved public housing, is Burr v. New Rochelle Municipal Housing Authority, 479 F.2d 1165 (2d Cir. 1973), in which tenants of a municipal public housing project asserted the right to a hearing before the housing authority imposed across-the-board rent increases. The Second Circuit, without dissent, held that the tenants were constitutionally entitled to present views to the Authority opposing the increases before they became effective. The court relied on Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970) which had held that tenants in municipal housing projects were entitled to an adjudicative hearing prior to a decision to refuse to renew their leases.
Our own analysis of due process principles and precedents underscores the strength of the Second Circuit’s result
1. The injury alleged by plaintiff-tenants in this case presents a substantial deprivation — the inability to pay the increased rentals or to find satisfactory substitute housing. While the tenants may be able to bear the burden of higher rentals by foregoing other purchases, the plaintiffs allege that this would cause them to forego necessities, reducing their welfare below a tolerable minimum. This, they argue, is exactly the situation Congress intended to alleviate by establishing a housing program for low-income families.
2. The interest which the plaintiffs have in obtaining adequate, decent housing is one conferred by the Housing Act. The scheme of rent control in public housing projects and annual Federal contributions to public housing projects, reviewed in Section A, supra, was designed to benefit low-income tenants. It differs in technique but not in ultimate objective from the benefit at issue in Goldberg v. Kelly, an income supplement to needy families. In the public housing program, Congress has chosen to reduce the price which needy families must pay for shelter, an essential commodity. In each case, an improvement in family welfare was the intended result.
3.Notwithstanding the substantiality of the tenants’ interest and the seriousness of the alleged deprivation, a due process right to be heard would be inappropriate if the process of rent increases were such that tenants could make no contribution relevant to decision-making. The propriety of affording due process protection requires an assessment of the issues presented for decision when rent increases are sought and the capacity of tenants to present material relevant to resolution.
The Housing Act, 42 U.S.C. § 1402, prescribes the following factors to be considered in setting rents: “(A) the family size, composition, age, physical handicaps, and other factors which might affect the rent-paying ability of the family, and (B) the economic factors which affect the financial stability and solvency of the project.” Inclusion of the tenants’ ability to pay as one factor to be considered means that tenants can make some material contribution to the process of fixing rents. Tenants may also be able to supply relevant information about the “economic factors,” which would include the landlord’s factor costs, the level of services which generate them, and the alternative sources of income which affect the project’s balance sheet.
It is thus apparent that we regard the due process claim of a public housing tenant to a hearing prior to government approval of rent increases as posing a substantial constitutional question.
E. Existence and Nature of Tenants’ Statutory Right to Hearing Prior to Approval of Rent Increases
We hold that the tenants of public housing constructed under the National Housing Act are entitled under that statute to an opportunity to be heard before rents are increased.
Our discussion of constitutional issues in the previous section of this opinion has not resulted in a constitutional ruling, but it has informed our construction of the statute. We have already adverted to the doctrine of interpretation that avoids serious questions as to the constitutionality of Federal statutes. Furthermore, our construction of the Act furthers its purpose to provide public housing tenants with satisfactory and secure shelter, by surrounding the benefit with such procedural protection as comports with basic fairness, discerned in the light of the contemporary regulatory climate. By declining to place our holding on constitutional grounds, however, we preserve an opportunity for Congress to reexamine the issue, and to restructure opportunities for tenant participation so as to comport with what it regards as administrative necessity, without inhibition by this ruling. Congress may, after thorough examination, conclude that tenant participation must yield to other interests. In that event, we may eventually be compelled to decide the constitutional question. For now, however, we believe that predicating the tenants’ right to participate on the statute represents a sound approach.
Having concluded that the tenants have a right to be heard, we turn now to such specific considerations as the timing, forum, and specific methods of tenant participation. The fleshing out of these requirements, like the determination of a due process right itself, begins with a weighing of “the precise nature of the government function involved as well as of the private interest that has been affected' by governmental action.” Cafeteria & Restaurant Workers Union v. MeElroy, 367 U.S. 886, 895, 81. S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961), cited with approval in Goldberg v. Kelly, 397 U.S. 254, 263, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).
The interest of the tenants in participátion is substantial, since they face grievous loss in a rent increase — even one that is small in absolute dollar amount. However, because the number of tenants potentially involved is quite large, we must be careful to shape procedures to protect the tenants’ interests that avoid their becoming unduly burdensome.
1. Timing and forum
Tenants might make their case in one or both of two forums — before NCHA or HUD. Under the statutory scheme, the local housing authority takes the initiative in most matters of project management.
Presentation of the tenants’ views before the local authority has the added advantage that submissions by the tenants will become part of the record which the LHA submits to HUD for review, thereby allowing HUD an opportunity to make a more informed decision. This approach is congruent with that of the Fourth Circuit in Appalachian Power Co. v. EPA, 477 F.2d 495 (4th Cir. 1973), approving a procedure for EPA approval of a state implementation plan under § 110 of the Clean Air Act. No hearings were held by EPA but it consulted hearings held at the state level in reaching its decision whether to approve the state plan.
Once the LHA decision is reached, HUD should permit tenants to submit expeditiously any objections to the LHA decision, so that HUD may be fully informed of tenant views. Ordinarily, at least, this will not constitute a right to present new evidentiary material to HUD.
2. Procedures
In several prior cases, tenants coupled their demand for a right to be heard with the assertion that only an adjudicative hearing — replete with cross-examination, discovery, and inspection of evidence — would suffice. The courts, understandably troubled by such expansive claims, shied away from requiring hearings altogether. See Hahn v. Gottlieb, supra. The Second Circuit however, while holding in Burr v. New Rochelle Municipal Housing Authority, supra, that tenants have a right to be heard prior to rent increases, has limited the tenants’ role to filing written objections to proposed increases after due notice is given. The court concluded that evidence in a rent increase proceeding would consist largely of technical financial data, evidence which could be most easily grasped in written form and for which the protection of spontaneous testimony was unnecessary.
Most of the cases which established a due process right to hearing were concerned with individualized determinations — suspension or revocation of licenses, termination of statutory benefits to individuals, dispossession of property. In those cases individual hearings, with some oral presentation, were well nigh indispensable to the airing of the critical questions. Where, as here, the issues involved affect a class of citizens, there is a need to impose some limits to keep the proceeding manageable. While it is impossible to anticipate all the issues which could be raised in a rent-increase dispute, tenants are most likely to
We have on occasion voiced the view that basic considerations of fairness may under exceptional circumstances require oral submissions even in a legislative-type proceeding. E.g., American Airlines v. CAB, 123 U.S.App.D.C. 310, 317, 359 F.2d 624, 631-632 (en banc 1966), cert. denied, 385 U.S. 843, 87 S.Ct. 73, 17 L.Ed.2d 75 (1966); Walter Holm & Co. v. Hardin, 145 U.S.App.D.C. 347, 449 F.2d 1009 (1971).
We hold that tenants of NCHA are entitled by the Housing Act to notice of proposed rent increases and an opportunity to respond in writing before rent increase proposals are forwarded to HUD for approval. Since no such opportunities were afforded the tenants here, the judgment of the District Court must be reversed.
IV. THE CLAIM THAT RENTS “BEYOND FINANCIAL REACH” ARE UNAUTHORIZED
Appellants’ second claim on appeal is that HUD was legally obligated by statute to increase its annual contributions to NCHA to cover the operating deficit rather than requiring NCHA to increase rents. Appellants point to 42 U.S.C. § 1402(1), that “ ‘low-rent housing’ means decent, safe, and sanitary dwellings within the financial reach of families of low income . . . ,”'
There is no doubt that HUD has authority to use annual contributions to meet operating deficits. Section 1410(a) of the Housing Act provides that HUD “may make annual contributions to public housing agencies to
The Housing Act has never prescribed income limits for eligibility of low income tenants. Prior to 1969, § 1402(1) provided that
income limits for occupancy and rents shall be fixed by the public housing agency and approved by the Authority after taking into consideration (A) the family size, composition, age, physical handicaps, and other factors which might’ affect the rent-paying ability of the family, and (B) the economic factors which affect the financial stability and solvency of the project.
Plainly, there are no income limits for occupants here. Nor did the statute, at the time of these increases, impose any ceiling for rents in public housing. The Brooke Amendment set such a limit for the first time — providing that rents “may not exceed one-fourth of the family’s income, as defined by the Secretary” —but this provision is not applicable to the 1969 rent increase before us.
In the absence of any statutory provision defining income limits for eligible families or imposing rent ceilings, it is difficult to make the claim that HUD was prohibited from increasing the rents and thereby causing some low-income families to forego purchasing this housing. Appellants rely on the general language of § 1402(1) (A) that low rent housing be “within the financial reach of families of low income.” But this general language must be read together with the language requiring HUD to set rents in view of “the financial stability and solvency of the project.”
Similarly, plaintiffs would have to supplement and update their pleadings if they wish to present the contention that the rent schedules under attack were in violation of the Brooke Amendment. The case was presented on the theory that the schedules were illegal when set, and we cannot on our own reconstitute the pleadings to allege that the rent ceilings, however'lawful when set, became illegal when they were maintained after the passage of the Brooke Amendment.
* * *
For the reasons set forth in Section III E of this opinion, the judgment of the District Court is reversed and the case is remanded for further proceedings not inconsistent with this opinion.
So ordered.
. 42 U.S.O. § 1401 et seq., as amended (Supp.1973).
. See National Institute for Education in Law and Poverty, Handbook on Housing Law, ck. IV, Pt. II, at 5-9 (1971).
. 42 U.S.O. § 1410(a) (1970).
. 42 U.S.O. § 1415(12). In addition to payments made under the annual contributions contract, special subsidies are authorized for the elderly, handicapped families, or families displaced by urban renewal or a low-rent housing project.
. 42 U.S.O. § 1411 (1970) provides for “Capital grants in assistance of low rentals.” See, Low-rent Housing, The Modernization Program Handbook, RHA 7485.1 (June 1969).
. 42 U.S.O. § 1415(10) (1970). These services consist of counseling on such problems as money management and job referrals.
. 42 U.S.O. § 1409 (1970).
. See 42 U.S.O. § 1413(c) (1970).
. See R. Pozen, The Financing of Local Housing Authorities: A Contract Approach for Public Corporations, 82 Tale L.J. 1208 (1973). The District of Columbia has been allowed to participate in the low-rent housing program from its inception as if the District were a state, 42 U.S.C. § 1402(12). Therefore, the Alley Dwelling Act, 5 D.C. Code §§ 103-116 (1973), empowers the National Capital Housing Authority to accept funding and operate low-rent housing projects.
. See R. Pozen, note 9 supra at 1208.
. Affidavit of Lawrence M. Cox, Assistant Secretary for Renewal and Housing Assistance, HUD, filed Ocfc. 30, 1969¡ with Dkt. Entry 17.
. Affidavit of Edward Aronov, Secretary and Executive Director of the National Capital Housing Authority, filed Oct. 30, 1969, with Dkt. Entry 17) ; Letter to tenants of NCHA, from Montería Ivery, Sr., Acting Executive Director, filed October 30, 1969, with Dkt. Entry 17).
. Cox Affidavit, supra note 11.
. Letter of June 26, 1969, from Thomas W. Fletcher, Deputy Mayor-Commissioner, District of Columbia to Edward Aronov, filed October 30, 1969, with Dkt. Entry 17.
. Letter of June 27, 1969 from Robert Lifsliin, Acting Director, Tenant and Operations Services Division, HUD, to Edward Aronov, filed October 30, 1969.
. Letter from Vincent A. Marino, Assistant Regional Administrator for Housing Assistance, HUD, to Edward Aronov, filed October 30, 1969, with Dkt. Entry 17.
. The new rent schedule was embodied in NCHA Order No. 69-18 which replaced Order No. 69-10, issued on May 16, 1969.
. The revised rent schedule is at JA 30-32. This represented the only change in the graded rent structure since 1962. A copy of the 1962 graded rent schedule is in the record, as filed December 2, 1969, with Dkt. Entry 34.
. This calculation reflects no special assistance from HUD to reduce the impact of the rent increase. The record is silent regarding special assistance.
. It should be noted, without importing any conclusion or ruling by this court on the matter, that the complaint relies on 42 U.S. C. § 1402(1), which provides that rent shall be fixed and approved only after considering
. Pub.L. 91-152, 83 Stat. 379 (1969), sec. 213.
. H.Rep.No.91-740, 91st Cong., 2d Sess. 31 (1969).
. Brief of Appellees at 6.
. See R. Pozen, note 9 supra, at 1208-09.
. We think the defense of sovereign immunity raised by the Government is precluded by our disposition in Knox Hill Tenant Council v. Washington, 145 U.S.App.D.C. 122, 448 F.2d 1045 (1971) which held there was no sovereign immunity from a claim against NCHA alleging failure to observe statutory, contractual, and regulatory obligations.
. 28 U.S.C. § 1361 (1970) provides as fol- ' lows:
The district court shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency thereof to perform a duty owed to the plaintiff.
. The suits against private landlords in which the sufficiency of state involvement has been questioned have been brought under the Civil Rights Act, 28 U.S.C. § 1343(3).
. See Burr v. New Rochelle Municipal Housing Authority, 479 F.2d 1165 (2d Cir. 1973) ; King v. New Rochelle Municipal Housing Authority, 442 F.2d 646 (2d Cir.) cert. denied, 404 U.S. 863, 92 S.Ct. 113, 30 L.Ed.2d 107 (1971) (low-income persons perceived as beneficiaries of public housing).
. See, e. g., United States v. Rumely, 345 U.S. 41, 45, 73 S.Ct. 543, 97 L.Ed. 770 (1953) ; Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1932) ; Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 73 L.Ed. 851 (1929) ; United States v. Jin Fuey Moy, 241 U.S. 394, 401, 36 S.Ct. 658, 60 L.Ed. 1061 (1916) ; United States v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909).
. Compare Adams v. Egley, 338 F.Supp. 614 (S.D.Cal., 1972) (California Commercial Code Section 9-503, 9-504 invalidated) with Lebowitz v. Forbes Leasing and Financing Corporation, 456 F.2d 979 (1972), cert. denied, 409 U.S. 843, 93 S.Ct. 42, 34 L.Ed.2d 82 (1972).
. See Graham v. Richardson, 403 U.S. 365, 374, 91 S.Ct. 1848, 29 L.Ed.2d 534 (1972) ; Board of Regents v. Roth, 408 U.S. 564, 571, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).
. In invalidating a procedure for notice only by publication to absent beneficiaries of a common trust fund, Justice Jackson said for the court in Mullane v. Central Hanover Tr. Co.:
“Many controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.
But when notice is a person’s due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt to accomplish it.” 339 U.S. 306, 313-315, 70 S.Ct. 652, 656-657, 94 L.Ed. 865 (1950).
. See 407 U.S. at 81, 92 S.Ct. at 1994:
The requirement of notice and an opportunity to be heard raises no impenetrable barrier to the taking of a person’s possessions. But the fair process of decision-making that it guarantees works, by itself, to protect against arbitrary deprivation of property. For when a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented. It has long been recognized that “fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights. [And n]o better instrument as been devised 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.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 170-172, 71 S.Ct. 624, 647, 95 L.Ed. 817 (Frankfurter, J., concurring).
. Exclusivity of the government benefit was most clearly presented in Boddie v. Connecticut, supra, in which the Court viewed the state as “monopolizing” the means by which the parties could adjust the marital relationship. See 401 U.S. at 374, 91 S.Ct. 780. More recent decisions indicate that the Court will not regard alternatives to receipt of a government benefit unavailable simply because the benefit is more attractive or convenient. In United States v. Kras, 409 U.S. 434, 93 S.Ct. 631, 34 L.Ed.2d 626 (1973), the Court upheld a filing fee for bankruptcy cases, stating that “the government’s control over the establishment, enforcement, or dissolution of debts [is not] nearly so exclusive as Connecticut’s control over the marriage relationship in Boddie.” 409 U.S. at 445, 93 S.Ct. at 638.
. Slochower v. Board of Education, supra, (public college professor dismissed from an office held under tenure provisions) and Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1973) (de facto tenure arising through implied promise of continued employment).
. Board of Regents v. Roth, 408 U.S. 564, 575, 92 S.Ct. 2701, 2708, 33 L.Ed.2d 548 (1972), where Mr. Justice Stewart for the majority stated: “Hence, on the record before us, all that clearly appears is that the respondent was not rehired for one year at one University. It stretches the concept too far to suggest that a person is deprived of ‘liberty’ when he simply is not rehired in one job but remains as free as before to seek another,” citing Cafeteria Workers v. McElroy, 367 U.S. 886, 895-896, 81 S.Ct. 1743, 6 L.Ed.2d 1230 (1961).
. Sniadach involved garnishment, almost exclusively used against poor, which can “drive a wage-earning family to the wall”, 395 U.S. at 342, 89 S.Ct. at 1823. Fuentes involved summary replevin of household goods.
. See 430 F.2d at 1247.
. The court relied on this fact to distinguish earlier cases, such as Escalera v. New York Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970), which had held that tenants in public housing are entitled to a hearing before their leases are terminated for breach of project regulations. The landlords in these cases were the government housing agencies.
. Other decisions were in accord with Escalara. See, e. g., Caulder v. Durham Housing Authority, 433 F.2d 998 (4th Cir.), cert. denied, 401 U.S. 1003, 91 S.Ct. 1228, 28 L.Ed. 2d 539 (1971) ; Ruffin v. Housing Authority of New Orleans, 301 F.Supp. 251 (E.D.La.1969).
. McKinney v. Washington, supra, p. 628.
. While many of the recent due process decisions have involved decisions about the status, rights, or obligations of single individuals, the determination which emerges from the governmental process under scrutiny here is not so individualized. We do not, however, regard this difference as determinative. We believe the correct approach is to ascertain whether tenants can make relevant contribution to the issues presented for decision, notwithstanding the fact that they apply to a potentially large class. Compare BiMetallic Investment Company v. State Bd. of Equalization, 239 U.S. 441, 36 S.Ct. 141, 60 L.Ed. 372 (1915) with Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 167, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (Frankfurter, J., concurring).
In BiMetallic Investment Company v. State Bd. of Equalization, supra, which held that taxpayers had no right to a hearing before execution of the agency’s order to increase the valuation of taxable property, Mr. Justice Holmes said that “[w]here a rule of conduct applies to more than a few people it is impracticable that every one should have a direct voice in its adoption.” 239 U.S. at 445, 36 S.Ct. at 142. But there the Court perceived the agency to be engaged in making general policy, of such a nature that the petitioners had no legitimate contribution. As Mr. Justice Frankfurter said, concurring in Anti-Fascist Refugee Committee v. Mc-Grath, 341 U.S. at 167, 71 S.Ct. at 646, the BiMetallic holding stands for the proposition that “when decisions of administrative officers in execution of legislation turn exclusively on considerations similar to those on which the legislative body could itself have acted summarily, notice and hearing may not be commanded by the Constitution.”
. We agree with Judge Friendly that these matters constitute “adjudicative” rather than
. Since 1959, the 1937 Housing Act has provided that “the maximum amount of responsibility in the administration of the low-rent housing program, including responsibility for the establishment of rents . . . ” should be vested in local public
.Although it is true that in this case HUD first suggested a rent increase, the details of the proposal were the initial responsibility of the NOHA.
. See Goldberg v. Kelly, supra, in which the Court emphasized that presentation of opposing views at an early stage is particularly important.
. In Appalachian Power Co. v. EPA, supra, the court found Congressional intent to avoid the delay of a subsequent and authority to remand for EPA to hear further evidence. 477 F.2d at 504.
. There may be need, as well, for cross-examination by interested parties, at least if the proceeding involves specific issues of critical importance that cannot be adequately ventilated under a written statement procedure. Compare International Harvester Co. v. Ruckelshaus, 155 U.S.App.D.C. 411, 478 F.2d 615, 629-631 (1972) with id. at 650-652 (concurring opinion).
. See E. Gellhorn, Public Participation in Administrative Proceedings, 81 YALE L.J. 359, 376-83. Fears of administrative impracticability tend to be overstated, as then Judge Burger noted in Office of Communication of United Church of Christ v. FCC, 123 U.S.App.D.C. 328, 340, 359 F.2d 994, 1006 (1966). Ad hoc rules of procedure can generally be devised to keep a hearing manageable under foreseeable contingencies — such as a congestion of witnesses or an unanticipated impasse.
.This language was amplified by the 1969 Brooke Amendment, inapplicable to this case.
.The Brooke Amendment of 1969, which took effect after this litigation began, placed a ceiling on the annual contributions to a project, irrespective of their purpose. Amendments added in 1972 abolished the ceiling, since funds were authorized specifically for financing operating deficits. P.L. 92-503, 86 Stat. 906, sec. 3. Congress increased by $150 million the authority of HUD .to enter into annual contribution contracts, and the Senate Report stated:
The new authority may be used by the Secretary either to finance additional public housing units or to provide additional subsidies to housing authorities to meet current justifiable operating deficits.
S.Rep.No.92-1261, 92nd Cong., 2d Sess. 3 (1972).
. 42 U.S.C. § 1402(1).
. A different question would be presented if rents were increased so much that the housing could no longer be characterized as “low rent housing”; that question is not presented by the case before us.
. See R. Pozen, note 9 supra, at 1227 Appendix, showing that, based on information from the National Association of Housing