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SIMS v. KEMP

July 11, 1991

LARRY SIMS, Plaintiff,
v.
JACK KEMP, et al., Defendants


James F. Holderman, United States District Judge.


The opinion of the court was delivered by: HOLDERMAN

JAMES F. HOLDERMAN, UNITED STATES DISTRICT JUDGE

 Plaintiff Larry Sims brought this action against Jack Kemp, the Secretary of the United States Department of Housing and Urban Development ("HUD"), Lake County Housing Authority (the "Authority"), *fn1" and Alon Jeffrey, the Executive Director of the Authority ("defendants") claiming that defendants' termination of Sims' tenancy in Conventional Low-Income Public Housing without the opportunity to request a grievance hearing violated his due process rights and his rights under the United States Housing Act of 1937 (the "Housing Act") and the regulations promulgated thereunder.

 FACTS

 The undisputed facts are as follows: Plaintiff Sims is a tenant in and beneficiary of Conventional Low-Income Public Housing administered by defendant Authority. HUD is responsible for the operation and administration of the Conventional Low-Income Public Housing Program.

 In March 1990 Sims plead guilty to making false statements to the federal government by failing to properly report his income to the Authority. Sims was sentenced to serve five years probation and ordered to make restitution.

 On June 25, 1990, the Authority issued a "30-Day Notice to Quit" to terminate Sims' lease with the Authority. On July 2, 1990, HUD issued a Limited Denial of Participation ("LDP") against Sims denying his participation for a twelve month period in all HUD housing programs within the jurisdiction of the Chicago region. Sims did not receive the LDP since it was addressed incorrectly. However, the Authority received the LDP on July 9, 1990. On August 6, 1990, the Authority filed an action in the Illinois Circuit Court in forcible entry and detainer based upon the June 25th Notice to Quit. The Authority voluntarily dismissed the action against Sims on November 21, 1990, one week after Sims filed a motion for summary judgment in the eviction action.

 On December 7, 1990 HUD "reissued" the July 2nd LDP denying Sims' participation for a twelve month period in all HUD housing programs within the jurisdiction of the Chicago region. The LDP stated

 
The specific reason for the imposition of this official sanction by the Chicago Regional Office is:
 
You were charged by the U.S. Attorney with having submitted false statements to the Government.
 
After a guilty plea, you were sentenced to five (5) years probation, and ordered to make restitution totaling $ 15,370.00.

 Sims did not receive the December 7th LDP until the first week of January, 1991. The LDP was effective from the date of its issuance -- December 7, 1990 -- and stated that Sims was entitled to a conference if he made a written request within thirty days of receipt of the LDP. On January 4, 1991, the Authority issued a 30-Day Notice to Quit terminating Sims' lease. A letter dated January 9, 1991 requested a conference with HUD concerning the LDP. A conference was scheduled for February 8, 1991. Counsel for the Authority informed Sims that it intended to file a state court action against Sims in forcible entry and detainer on or anytime after February 6, 1991 despite the fact that the LDP conference was not scheduled until February 8.

 On February 4, 1991, Sims filed this action and withdrew his request for a conference pending resolution of this suit. Before the court is Sims' motion for summary judgment pursuant to Fed. R. Civ. P. 56.

 DISCUSSION

 Sims argues that the use of an LDP to terminate the lease and evict a public housing tenant violates the United States Constitution, the Housing Act, and the regulations promulgated under the Housing Act. Since the statutory and regulatory issues presented here are sufficient for resolving the controversy at hand, the court need not address the constitutional question. See U.S. v. Marshall, 908 F.2d 1312, 1318 (7th Cir. 1990) (concerning preference for avoiding constitutional adjudication).

 I. THE LIMITED DENIAL OF PARTICIPATION

 A. LDP'S APPLICATION TO PUBLIC HOUSING TENANTS

 Sims contends that the LDP sanction does not apply to public housing tenants. A determination of this issue must begin with the language of the regulation itself. U.S. v. On Leong Chinese Merchants Ass'n Building, 918 F.2d 1289, 1297 (7th Cir. 1990).

 The LDP is provided for in 24 C.F.R. Part 24 entitled "Government Debarment and Suspension and Governmentwide Requirements for Drug-Free Workplace (Grants)." An LDP is an action taken to immediately exclude from participation, or to immediately impose conditions on the participation, of any person in a program or programs of HUD within a limited geographical region. 24 C.F.R. § 24.105(aa). An LDP may be imposed if "adequate evidence" exists that any one of numerous situations have occurred. 24 C.F.R. § 24.705. These situations include "irregularities in a participant's or contractor's past performance in a HUD program" and "failure to honor contractual obligations or ...


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