The opinion
BIGGS, Circuit Judge
(concurring in part and dissenting in part).
The decision of the Supreme Court in Thorpe v. Housing Authority of the City of Durham, 386 U.S. 670 , 87 S.Ct. 1244 , 18 L.Ed.2d 394 , was handed down on April 17, 1967 and can be of no avail to the tenant-appellants for it was stated that “[TJhere is no suggestion that the *158 basic procedure it [the HUD circular of February 7, 1967] prescribes is not to be followed in all eviction proceedings that have not become final.” Id. at 673 . The “Summary Ejectment Proceedings” were concluded in the Essex County District Court on October 10, 1966.
I agree with all statements of the majority opinion except as to the directions to the court below embraced in the final paragraph of the opinion. I would amend those directions by providing that the temporary restraining order issued by this court on April 21, 1967, enjoining the evictions of tenant-appellants Avent and Durant, should not be vacated. Under the circumstances of this case I would adopt the unusual procedure of continuing the restraint until the case at bar has finally been disposed of because I believe that if the premises are vacated it would be very difficult for the Newark Housing Authority to displace new tenants in favor of Avent and Durant should they prevail in the instant case. Moreover, as I see the instant case, if the evictions are not stayed the case at bar will become moot.