HUD eviction rules violate the Due Process Clause

The Department of Housing and Urban Development from time to time decides that its apartments needed to be rehabilitated. So HUD would issue a notice to tenants advising them to leave the premises, i.e., a notice to vacate on relatively short notice. The tenants had no idea why HUD was throwing them out of the apartments. HUD said that, while it must comply with due process in evicting some of its residents in other contexts, apartment rehabilitation cases require no such compliance. A federal judge disagreed on January 3, 2008.

The case is Linares v. Jackson, 06 Civ. 876, 2008 U.S. Dist. LEXIS 342 (E.D.N.Y.). In striking down the rules allowing for "no cause" evictions, Judge Block noted that tenants never had the opportunity to argue that their apartments were in good condition and that HUD had no reason to evict them for the purposes of rehabilitating them. As suggested in the exchange between Judge Block and HUD's lawyer, the court seemed perplexed by HUD's position in this case:

THE COURT: How do they get to the stage where they can say, my place is in perfect condition. I don't see why this has to be rehabilitated. I recognize that you have the right to rehabilitate these premises. I don't think that the plaintiffs are saying that a rat infested place has to remain that way. But, you're wrong here, my place - - come visit me - - it's in perfect shape. I have marble floors, I have Picasso paintings on the wall, everything's perfect. When do they have the opportunity to say that to HUD?

[HUD's COUNSEL]: They can certainly petition the Agency. But to the extent that the agency has made a determination that this is for rehabilitation, that is committed to the Agency.

THE COURT: So you're saying it's the[] absolute right of the Agency with no effective power of review and no opportunity to be heard, by the person who is losing his or her home. Is that the position?

[HUD's COUNSEL]: We take the position that that is what Congress has determined with respect to this issue.

As any student of constitutional law knows, due process requires notice and a hearing before the government deprives you of a property or liberty interest. The case law holds that HUD benefits confer a property interest which generally cannot be taken away without notice and a chance to be heard. Under the HUD rules in this case, the agency certainly provided tenants with notice (to vacate), but no opportunity to be heard. This was all the more curious in light of Second Circuit cases over the years holding social welfare agencies to the "notice and opportunity to be heard" requirement, particularly in the context of subsidized housing. For some reason, HUD thought those precedents did not apply here. In striking down these HUD regulations, Judge Block set the agency straight, reasoning:

It is difficult to fathom why, in the face of this spate of judicial authority, HUD has taken the position, embodied in § 247.10, that by determining that premises it owns are in need of substantial rehabilitation, it can take poor peoples' homes without telling them why and without affording there a meaningful opportunity to be heard. It is beyond cavil that "[a]n essential principle of due process is that a deprivation of life, liberty, or property 'be preceded by notice and opportunity for hearing appropriate to the nature of the case.'" Section 247.10 is, simply put, patently unconstitutional.