APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before: GIBBONS, HUNTER, Circuit Judges and GERRY,*fn* District Judge
1. The plaintiff in this case, Beverly Allen, was denied participation in the Section 8 Existing Housing program by the Housing Authority of the County of Chester ("HACC") because she was allegedly in arrears in rent to HACC. In denying her a certificate of eligibility for participation, HACC applied its Resolution 168, which requires an applicant to obtain a certificate showing that the applicant has no outstanding balance due the Authority for rent or other charges.*fn1 The district court, sitting without a jury, enjoined HACC from denying a certificate of eligibility to plaintiff, and entered a judgment declaring Resolution 168 invalid on statutory grounds. For the reasons that follow, we will uphold the injunction, vacate the declaratory judgment, and remand the case to the district court for proceedings consistent with this opinion.
2. Under the Section 8 Existing Housing program, applicants found eligible for participation by a local housing authority, such as HACC, receive a Certificate of Family Participation which enables them to enter agreements for housing with private landlords. The tenant pays only a portion of his or her rent, with the remainder contributed by the housing authority. In denying plaintiff a certificate of participation in this case, HACC applied a criterion for eligibility embodied in its Resolution 168. In Vandermark v. Housing Authority of York, 663 F.2d 436 (3d Cir. 1981), we described the statutory and regulatory background underlying the promulgation by York Housing Authority of an eligibility criterion quite similar to Resolution 168. 663 F.2d at 437-38. That background discussion is applicable to the instant case, and we will not repeat it here.
3. In addition to administering the Section 8 Existing Housing program, defendant HACC also acts as landlord for publicly owned housing made available to low-income tenants. In 1978, while living in such housing, plaintiff applied to HACC for participation in the Section 8 Existing Housing program. On May 19, 1978, plaintiff received a letter advising her that she was eligible for the program. On January 15, 1979, plaintiff was advised by letter that her application had been accepted and that her certification of participation was ready. However, when plaintiff went to pick up her certificate, she was informed that she would not receive one because she was in arrears in rent to HACC. The alleged arrearage consisted of $1011.50 in rent for the HACC owned apartment in which plaintiff then lived. Plaintiff had withheld this rent, on the advice of counsel, on the grounds that her apartment was uninhabitable for a substantial portion of a one-year period during her tenancy.
4. In denying plaintiff a certificate of eligibility, HACC acted pursuant to Resolution 168, which had been promulgated by the board of the housing authority as one of its criteria for admission to the Section 8 Existing Housing program.Under Resolution 168, HACC denies certification to families who are otherwise eligible on the basis that they allegedly owe HACC "rent or other charges" arising from their current tenancy in public housing. The resolution provides in part:
Applicants who, at the time they are selected for participation, are heads of families residing in Public Housing in the County of Chester, shall be required to provide a signed statement from the Controller of the Housing Authority of the County of Chester or his/her designee, to the effect that they have no outstanding balance due the Authority for rent or other charges. No certificate will be issued to such applicants without this statement.
If the applicant does have an outstanding balance, he/she will be advised that at such time as the balance has been paid, he/she may secure a statement to that effect from the Controller and a certificate will be issued as soon as one is available.