(dissenting).
If I read the majority opinion correctly, this Court now declares that the laws of North Carolina do not provide for “due process” hearings in public housing eviction cases. Specifically, they say: The plaintiff’s right, if any, to litigate the issues in the state courts appears more theoretical than real.
They reached this conclusion by examining and construing the North Carolina General Statutes, § 42-26, to confine the issue before the magistrate to the simple question of whether the tenant was holding, over and continuing in possession after her term had expired and because § 42-34 failed to disclose any provision for waiver of the bond requirements in an amount equal to one-year’s rent to perfect an appeal.
I cannot concur because the decision is contrary to the findings of the District Court and there is no evidence in this record to support it.
The District Court found that the tenant knew why she was being evicted and that she could challenge these reasons and raise any constitutional issues in the state court proceeding. These findings are binding on this Court unless they are plainly erroneous — and no such finding was here made. See Rule 52, F.R. Civ.P.
The record discloses that the tenant— upon receipt of the notice of termination of her lease — filed suit in the United States District Court for injunctive and declaratory relief.
Her complaint sought only a declaration that she was denied due process by the termination of her lease, absent specific reasons and without a hearing at which the complainants would be required to give their testimony in her presence and be subjected to cross-examination.
The heart of her complaint was the refusal of the Housing Authority to disclose the names of the other tenants in *1005the project who had reported immoral acts on the part of her children, and to require their presence at the conference for cross-examination.
She made no attempt to secure a temporary restraining order to prohibit her eviction until some ten days after ejectment proceedings had been commenced in the North Carolina state courts. The state court proceedings were then held in abeyance until the United States District Court could hear the matter.
Upon dismissal by the District Judge —after reserving all questions for determination by the state courts — the Housing Authority proceeded in the magistrate’s court and obtained an order of summary eviction.
We have been told this order has been appealed to the Superior Court of North Carolina — and that bond has not been posted — We have not been told what defenses, if any, were raised in the magistrate’s court — -and we have not been told whether the tenant has asked the Superior Court of North Carolina to waive the appeal bond requirement due to her indigency.
We do know, however, from the record in this case that the defendants agreed that the tenant could deposit the monthly rent in escrow, in lieu of bond, during the pendency of the state action, and that this was in fact done.
Although the records of the state court proceeding are not before us — we do know that the tenant in this case was told the reasons for her eviction — her attorney admits she was — and the District Court found she was.
Former Chief Justice Warren said in Thorpe v. Housing Authority of Durham, 393 U.S. 268, 89 S.Ct. 518, 21 L.Ed.2d 474 (1969):
“ * * * We have no reason to believe that once petitioner is told the reasons for her eviction she cannot effectively challenge their legal sufficiency in whatever eviction proceedings may be brought in the North Carolina courts. * * * ”
Justice White, dissenting in the same case heard in 1967 (386 U.S. 670, 87 S.Ct. 1244, 18 L.Ed.2d 394), said the tenant had the opportunity (in the lower court) to explain fully why she was evicted.
Judge Gordon, in his memorandum opinion in this case, was equally positive when he stated
“If a state judge found that the Housing Authority has not complied with Thorpe it is unthinkable that he would allow summary ejectment — and if he found that the Housing Authority had violated due process of law it is equally unthinkable that he would allow summary ejectment.”
The majority say — even if she [tenant] would be permitted to question the validity of the termination of her term at the de novo proceeding — she has been denied that right here — because she was unable to post the required appeal bond and the North Carolina statutes do not permit waiver.
What the North Carolina court would 1 have done in this case we do not know— We do not even know whether the tenant asked for a waiver. State courts in this circuit have in the past waived statutory requirements for appeal, and this Court should not speculate what North Carolina would have done in this case.
The Supreme Court of the United States refused to speculate in a similar situation — because of an ambiguity in the record of a Connecticut proceeding concerning the underlying reason appellants were denied an opportunity to appeal. See Simmons v. West Haven Housing Authority, 399 U.S. 510, 90 S.Ct. 1960, 26 L.Ed.2d 764 (1970).
The Supreme Court — in Simmons— has refused to decide whether the Connecticut General Statutes requiring a bond for the protection of his landlord from a tenant who wished to appeal from a judgment in a summary eviction proceeding, offend either the due process or equal protection clauses of the Fourteenth Amendment if applied to foreclose appellate review for those too poor to post bond.
*1006We should likewise refuse to decide that question in this case.
State courts are the sole tribunal having jurisdiction to hear and determine eviction suits. They are duty bound to follow the Constitution of the United States and the decisions of the Supreme Court of the United States — and I have no reason to doubt that the North Carolina courts would not have so done here had they been given the opportunity.
Assuming that the Housing Authority has now obtained a final judgment in the North Carolina courts and has in fact evicted the tenant from the demised premises — which, of course, is not disclosed by the record in this case — I still am of the opinion that the District Court lacked authority to enjoin the North Carolina proceeding for the reasons more succinctly stated by Justice Black in the Atlantic Coast case [Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers], 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970):
“* * * a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings merely because those proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear. This rule applies regardless of whether the federal court itself has jurisdiction over the controversy * * *. Second, if the District Court does have jurisdiction, it is not enough that the requested injunction is related to that jurisdiction, but it must be ‘necessary in aid of’ that jurisdiction. * * * [L]ower federal courts possess no power whatever to sit in direct review of state court decisions. * * * Unlike the Federal District Court, this Court does have potential appellate jurisdiction over federal questions raised in state court proceedings, and that broader jurisdiction allows this Court correspondingly broader authority to issue injunctions ‘necessary in aid of its jurisdiction.’ ”
On the premise that the due process clause applies, the majority here rule that Goldberg1 is equally applicable to the hearing to be afforded tenants of public housing before the termination to evict them.
My quarrel is not whether the due process clause applies in the eviction procedure — it clearly does. What troubles me is equating the termination of welfare benefits, as described in Goldberg, with the constitutional requirements necessary to the determination of a housing authority lease and the subsequent eviction of the tenant.
There is a substantial differenece between these two types of cases. In the welfare case benefits were terminated by certain review officials — The recipient then had to request a post-termination “fair” hearing before an independent state hearing officer. The pre-notice conference in this case does not evict the tenant — a full judicial hearing is required before she can be evicted.
Justice Brennan, in Goldberg, held the welfare recipient must be afforded an evidentiary hearing before termination of benefits — In so doing, in footnote 14 on page 267, on page 1020 of 90 S.Ct., he pointed out—
Due process does not, of course, require two hearings. If, for example, a State simply wishes to continue benefits [here, possession] until after a “fair” hearing there will be no need for a preliminary hearing.
Justice Douglas took substantially the same position in his concurring opinion in Thorpe when he questioned whether there was a constitutional requirement for an administrative hearing in the case where a tenant can have a full judicial hearing when the Housing Authority attempts to evict him.
Judge Sobeloff took the same position in Johnson v. Tamsberg, 430 F.2d 1125, decided by another panel of this Court on July 31, 1970.
*1007The majority get around Johnson by concluding the Housing Authority in this case proceeded before the magistrate on the basis of the final notice of termination [of the lease]. This has to be an assumption — because the record of what took place before the magistrate was not before us.
Notwithstanding the abhorrence of faceless informers — I do not agree that the Housing Authority should be required to give the tenant the names of all the neighbors who filed complaints of misconduct against her — That would create and only intensify neighborhood quarrels and dignify them by converting them into constitutional controversies.
Neither can I agree that this case should be retained and determined by the District Court. Because the plaintiff’s attorney thought he could present the issues he was interested in more clearly in the federal court — is not persuasive.
For these reasons I must respectfully note my dissent.
. Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970).