IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 97-50657
__________________________
MARIA LUISA RAMIREZ,
Plaintiff-Appellee,
versus
THE HOUSING AUTHORITY OF
THE CITY OF EL PASO,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(EP-96-CV-543)
___________________________________________________
August 31, 1998
Before GARWOOD, JONES, and WIENER, Circuit Judges.
PER CURIAM*:
Defendant-Appellant The Housing Authority of the City of El
Paso (“the Housing Authority”) appeals the district court’s adverse
conclusions of law, entered following a bench trial on Plaintiff-
Appellee Maria Luisa Ramirez’s claim under 42 U.S.C. § 1983.
Ramirez brought suit after the Housing Authority terminated her
federal rental assistance, which she had been receiving under
Section 8 of the United States Housing Act of 1937, as amended by
the Housing and Community Development Act of 1974 (“the Housing
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
Act”).2 She sought declaratory and injunctive relief, alleging
that the Housing Authority had violated her civil rights when it
failed to comply with Department of Housing and Urban Development
(“HUD”) regulations governing benefits termination procedures,
thereby implicating § 1983.
The district court concluded as a matter of law that (1)
Ramirez had asserted a viable claim under § 1983, as the HUD
regulations at issue create federal rights in favor of section 8
participants, and (2) the Housing Authority violated those rights.
We reverse the district court on its second conclusion,
determining, as a matter of law, that the Housing Authority
complied with HUD’s procedural regulations in terminating Ramirez’s
benefits. For purposes of our resolution of this appeal, we assume
—— but do not hold —— that those regulations create federal rights
enforceable by tenants participating in the section 8 Housing
Voucher Program (“the Program”).
I
FACTS AND PROCEEDINGS
Ramirez began participating in the Program in September 1994.
The Program was created by Congress “[f]or the purpose of aiding
lower-income families in obtaining a decent place to live and . .
. promoting economically mixed housing[.]”3 HUD, through public
housing agencies (“PHAs”), which are not federal agencies, provides
2
42 U.S.C. § 1437f (1994).
3
42 U.S.C. § 1437f(a).
2
rent subsidies for eligible participants.4 PHAs review proposed
leases between private landlords and participants to ensure that
rental rates and other aspects of the landlord-tenant relationship
comply with federal regulations. If a PHA finds such compliance,
it then enters into a “Housing Assistance Payments Contract” with
the landlord and agrees to subsidize the rent in an amount based on
the applicant’s income.5 As the local PHA, the Housing Authority
had processed Ramirez’s application for federal housing assistance
and thereafter oversaw her participation in the Program.
By virtue of her participation, Ramirez agreed to use her
rental unit solely as a residence for her family. The Assisted
Lease Agreement provides, in pertinent part: “Tenant agrees not to
. . . give accommodation to boarders or lodgers without written
consent of the Landlord and the El Paso Housing Authority . . . .
This provision does not apply to reasonable accommodation of
Tenants’ guests or visitors whose stay is less than thirty (30)
days.” In October 1996, a complaint was filed with the Housing
Authority alleging that Ramirez was accommodating an unauthorized
dweller without its knowledge or permission.
On November 5, following an investigation, the Housing
Authority notified Ramirez of its decision to terminate her rental
assistance. She was informed, in a letter written in English, that
the termination decision was based on her “[a]llowing persons not
in family composition to live with [her]” in violation of section
4
42 U.S.C. § 1437f(b)(1).
5
42 U.S.C. § 1437a(a).
3
4-A(4) of her Housing Voucher. The notice letter also apprised
Ramirez of her right to request an informal hearing within ten
days, and of her rights at that hearing.6
Ramirez requested an informal hearing, which was held on
November 25. The hearing officer was Rebecca Murillo, a Housing
Authority employee in the Management Section. Murillo had not
participated in the rental assistance termination decision under
review, and, as an employee in the Management Section, she did not
report to anyone in the Section 8 Eligibility Section. At the
hearing, a brief explanation of the proceedings and of Ramirez’s
rights with regard to the hearing was presented, in accordance with
the Housing Authority’s Section 8 Administrative Plan. Prior to
the hearing, Ramirez had been told orally, in Spanish, that she
could bring witnesses, and at the hearing she was given an
opportunity to present witnesses and evidence. She was also given
the opportunity to ask questions of the Housing Authority’s
witnesses, all of whom she knew.
6
Including:
1. Before the hearing, to examine and copy, (AT YOUR
EXPENSE), all documents, records, regulations of
[the Housing Authority] relevant to the proposed
eviction[;]
2. To have an impartial hearing officer who will hear
your case[;]
3. To be represented by a lawyer or person of your
choice. Residents should notify [the Housing
Authority] if he/she will have legal
representation[;]
4. To present evidence and arguments in your favor[;]
5. To confront and cross examine adverse witnesses[;
and]
6. To controvert or deny evidence relied upon by [the
Housing Authority].
4
On November 26, Murillo issued a Notification of Decision by
Hearing Officer, stating that the reason for her decision to affirm
the termination of Ramirez’s rental assistance was that the
“[d]welling unit is not used solely by the residents of the Ramirez
family.” The Housing Authority stopped making subsidy payments to
Ramirez’s landlord who, sometime thereafter, brought an eviction
suit against her in state court for nonpayment of rent.
While the eviction proceeding was pending, Ramirez filed the
instant suit against the Housing Authority, seeking declaratory and
injunctive relief aimed at reinstating her section 8 benefits. In
her section 1983 claim, Ramirez contended that the Housing
Authority had violated her federal rights as a section 8
participant by failing to comply with HUD regulations governing
benefits termination procedures. The Housing Authority filed a
motion to dismiss and a motion for summary judgment, asserting that
Ramirez had failed to state a cause of action. The district court
denied the motions. The Housing Authority then filed an amended
motion for summary judgment claiming that Ramirez had no standing
to sue and that no evidence existed of non-compliance with the
pertinent federal regulations. After this motion was denied, the
case was tried to the court. In July 1997, the court entered
findings of fact and conclusions of law favorable to Ramirez; no
separate judgment was entered. The Housing Authority timely
appealed.
5
II
ANALYSIS
“We review a district court’s factual findings for clear error
and its conclusions of law de novo.”7
Relying on the Supreme Court case of Wright v. City of Roanoke
Redev. and Hous. Auth.,8 Ramirez predicated her § 1983 claim on the
Housing Authority’s putative violations of HUD regulations
governing the termination of housing benefits. Specifically, she
alleged violations of 24 C.F.R. §§ 982.555(c)(2) & (e)(6)9
(“subsections (c)(2) and (e)(6)”, respectively). If, under
subsection (c)(2), a PHA should decide to terminate assistance
because of a participant family’s “action or failure to act,”10 “the
[PHA] must give the family prompt written notice that the family
may request a hearing.”11 The notice must:
(i) Contain a brief statement of reasons for the
decision,
(ii) State that if the family does not agree with the
decision, the family may request an informal hearing on
the decision, and
7
Weir v. Federal Asset Disposition Ass’n, 123 F.3d 281, 285
(citing Reeves v. AcroMed Corp., 103 F.3d 442, 445 (5th Cir.1997)
(citations omitted)).
8
479 U.S. 418, 430-32, 107 S.Ct. 766, 773-74, 93 L.Ed.2d 781
(1987) (holding that the Housing Act mandate, embodied in the
Brooke Amendment, limiting rent for low-income housing to 30% of a
tenant’s income, in conjunction with HUD regulations providing that
“reasonable utilities” costs were included in the rental figure,
created right under section 1983 to be charged no more than a
“reasonable” amount for utilities).
9
24 C.F.R. §§ 982.555(c)(2) & (e)(6) (1996).
10
§ 982.555(a)(1)(v) (referencing § 982.552).
11
§ 982.555(c)(2).
6
(iii) State the deadline for the family to request an
informal hearing.12
Ramirez alleged that the Housing Authority’s statement of reasons
in its notice of decision to terminate rental assistance was
insufficient under subsection (c)(2)(i).
With regard to informal hearings requested pursuant to
subsection (c)(2)(ii), subsection (e) provides that
[t]he family must be given the opportunity to examine
before the [Housing Authority] hearing any [Housing
Authority] documents that are directly relevant to the
hearing. The family must be allowed to copy any such
document at the family’s expense. If the [Housing
Authority] does not make the document available for
examination on request of the family, the [Housing
Authority] may not rely on the document at the hearing.13
The hearing may be conducted by any person designated by the
Housing Authority “other than a person who made or approved the
decision under review or a subordinate of this person.”14 “The
[Housing Authority] and the family must be given the opportunity to
present evidence, and may question any witnesses.”15 Finally, under
subsection (e)(6), “[t]he person who conducts the hearing must
issue a written decision, stating briefly the reasons for the
decision.”16 Ramirez alleged that the statement of reasons
contained in Murillo’s termination decision was insufficient under
subsection (e)(6).
12
Id.
13
§ 982.555(e)(2)(i).
14
§ 982.555(e)(4).
15
§ 982.555(e)(5).
16
§ 982.555(e)(6).
7
The district court agreed that the Housing Authority had
violated subsections (c)(2) and (e)(6) in terminating Ramirez’s
benefits, concluding that (1) the notice of termination was
inadequate as it failed to inform Ramirez of the allegations
against her with enough specificity to enable her to prepare a
sufficient defense, and (2) the decision issued by the hearing
officer was a mere conclusion.17 The Housing Authority challenges
these conclusions of law on appeal, arguing that (1) Ramirez has
not asserted a viable § 1983 claim, as federal regulations alone
are an insufficient basis from which to infer enforceable federal
rights,18 and (2) the Housing Authority complied with the HUD
17
The court stated that a final decision requires more than a
mere conclusion, relying on HUD comments to another provision
regarding final decisions:
The statement of decision required by the regulation must
be truly informative as to the reason for the decision.
This would include a short statement of the elements of
fact or law on which the decision is actually based. A
bare and conclusory statement of the hearing decision
which does not let the participant know the reasons for
the decision will not satisfy the regulatory requirement.
49 Fed. Reg. 12230 (March 29, 1984).
18
The Authority submits that rights created by regulation alone
probably cannot form the basis for a section 1983 action, citing
Wright, 479 U.S. at 438 (O’Connor, J., dissenting) (expressing
concern that “lurking behind the Court’s analysis may be the view
that, once it has been found that a statute creates some
enforceable right, any regulation adopted within the purview of the
statute creates rights enforceable in federal courts, regardless of
whether Congress or the promulgating agency ever contemplated such
a result.”); Suter v. Artist M., 503 U.S. 347, 112 S.Ct. 1360, 118
L.Ed.2d 1 (1992); Gracia v. Brownsville Housing, 105 F.3d 1053,
1057 (5th Cir.) (stating that “it is not clear that regulations can
be considered ‘laws’ for purposes of creating a right actionable
under section 1983")(citations omitted), cert. denied, 118 S. Ct.
171, 139 L. Ed. 2d 114 (1997); Ritter v. Cecil County Office of
Housing and Community Dev., 33 F.3d 323, 327 n.3 (4th Cir.
8
regulations at issue. We choose not to address the viability of
Ramirez’s § 1983 claim as we are convinced that the Housing
Authority did not violate subsections (c)(2) and (e)(6) and that
the district court erred in concluding as a matter of law that such
violations occurred.
As an initial observation, we note that the district court
appears to have framed the compliance issue in terms of procedural
due process. It prefaces its analysis of subsections (c)(2) and
(e)(6) by noting that “federal regulations must comply with the
requirements set forth by the Supreme Court in Goldberg v. Kelly.”19
In Goldberg, the Supreme Court held that the Due Process Clause of
the Fourteenth Amendment requires that a welfare recipient be
afforded an evidentiary hearing prior to the termination of
benefits.20 By measuring the Housing Authority’s compliance with
the HUD regulations at issue in reference to the strictures of
Goldberg and its progeny, the district court actually engaged in a
constitutional analysis of Ramirez’s benefits termination.21
1994)(stating that “[r]ights created by regulation alone, if rights
can be so created, probably cannot form the basis for a § 1983
action.”) (citing Wright, 479 U.S. 437-38) (O’Connor, J.,
dissenting)).
19
397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), citing
55 Fed.Reg. 133 at 28, 541 (July 11, 1990) (“PHAs must adopt
written informal pretermination hearing procedures for
participants, which fully meet the requirements of Goldberg v.
Kelly.”).
20
Id. at 264-265.
21
For instance, the district court cites Escalera v. New York
City Hous. Auth., 425 F.2d 853, 862 (2d Cir.), cert. denied, 400
U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970)) —— in support of
its conclusion that the notice of termination was inadequate under
9
Although HUD undoubtedly intended to codify Goldberg in
promulgating subsections (c)(2) and (e)(6), those regulatory
provisions and the Due Process Clause are not coextensive: PHA
procedures that comply with federal regulations may nonetheless
violate the Due Process Clause as applied.
In recognition of the constitutional lens through which the
district court analyzed Ramirez’s claim, the Housing Authority
argues that its compliance with subsections (c)(2) and (e)(6) is
the only question before the court. In arguing for an affirmative
answer to that question, the Housing Authority supports its
compliance by observing that its notice of decision comports with
subsection (c)(2), as: (1) it is in writing; (2) it contains a
brief statement of the reasons for the decision; (3) it states that
if the family does not agree with the decision, an informal hearing
may be requested; and (4) it specifies a deadline by which an
informal hearing may be requested. The Housing Authority disputes
the district court’s assessment of subsection (c)(2)(i) as
requiring termination notices to “specifically inform” tenants of
the allegations against them, arguing that the regulation simply
subsection (c)(2) —— for the proposition that “[a] tenant must be
given notice so that ‘[he] is adequately informed of the nature of
the evidence against him so that he can effectively rebut that
evidence.’” The PHA procedures at issue in Escalera, however, were
challenged on constitutional grounds, as violations of the Due
Process Clause rather than of federal regulations. See id. at 861
(“Although the termination of tenancy procedures afforded by the
[PHA] in this case admittedly satisfy the requirements of the [HUD]
circular of February 7, 1967, considered by the Supreme Court in
Thorpe v. Housing Authority of City of Durham, 393 U.S. 268, 89
S.Ct. 518, 21 L.Ed.2d 474 (1969), this is not dispositive of the
question of whether the procedures satisfy the due process
requirements of the Fourteenth Amendment.”).
10
requires “a brief statement of the reasons for the decision,” which
was provided when the Housing Authority informed Ramirez that her
benefits were being terminated because she was “[a]llowing persons
not in the family composition to live with [her].”
In addition, the Housing Authority contends that it complied
with subsection (e)(2), as it adhered to the regulation’s hearing
officer and evidence requirements, and it informed Ramirez that she
had a right to examine and copy documents relevant to the hearing.
Furthermore, the hearing officer’s decision complied with
subsection (e)(6), asserts the Housing Authority, as it (1) is
based on a preponderance of the evidence; (2) is in writing; and
(3) briefly states the reason for the decision: “Dwelling unit is
not used solely by the residents of the Ramirez family.” The
Housing Authority disagrees with the district court’s determination
that reason given for the decision is conclusional.
Ramirez’s response to the Housing Authority’s compliance
arguments reveals the true nature of her § 1983 claim. She states:
The [Housing Authority] misunderstands
[Ramirez’s] claims and the decision of the
court below, both of which are supported by
precedent in this and other courts. Although
the provisions of 24 C.F.R. § 982.555 are
promulgated to comply with due process, the
due process to which [Ramirez], a Section 8
voucher recipient, is entitled is not
satisfied merely by promulgation of said
regulations. For “[t]he very nature of due
process negates any concept of inflexible
procedures universally applicable to every
imaginable situation”22 . . . . Contrary to
22
Caulder v. Durham Hous. Auth., 433 F.2d 998, 1004 n.3 (4th
Cir. 1970) (quoting Cafeteria & Restaurant Workers Union, Local 473
v. McElroy, 367 U.S. 886 (1961)), cert. denied, 401 U.S. 1003, 91
11
[the Housing Authority’s] contention, the
essence of due process is such that the mere
existence of and adherence to the words of the
regulations at 24 C.F.R. § 982.555, which
themselves may encompass the minimal
requirements of Goldberg, cannot satisfy due
process in every context.
Ramirez’s argument makes clear that she is actually relying on the
due process protections of the Fourteenth Amendment in bringing her
§ 1983 claim, rather than on federal rights embodied in HUD
regulations. We are satisfied that the Housing Authority complied
with subsections (c)(2) and (e)(6) in terminating Ramirez’s
benefits.
Even if we were we to accept the constitutional gloss applied
by the district court in its compliance analysis, however, we would
remain convinced that Ramirez’s federal rights have not been
violated; under the circumstances of this case, she has not been
deprived of her right to procedural due process.23 Ramirez claims
that the notice of decision terminating her benefits is
constitutionally infirm inasmuch as it fails to state the period of
time over which the alleged violation occurred, identify the number
and identity of the alleged violators, or provide the source of the
evidence on which the decision was based. Although such additional
information might have provided Ramirez with a better preview of
what to expect at the informal hearing, we conclude that the
S. Ct. 1228, 28 L. Ed. 2d 539 (1971).
23
The protections necessary to satisfy the Due Process Clause
vary depending on the time, place, and circumstances of the
deprivation. Mathews v. Eldridge, 424 U.S. 319, 334, 96 S.Ct. 893,
902, 47 L.Ed.2d 18 (1976).
12
explanation she was given provided notice adequate for her to
prepare a meaningful defense: Perfection is not required. We
likewise conclude that the reason stated by Ramirez’s hearing
officer in affirming the termination decision was sufficient to
pass muster under the Due Process Clause.
III
CONCLUSION
For the foregoing reasons, the opinion of the district court
is reversed and a take nothing judgment is rendered, dismissing
Ramirez’s claims.
REVERSED and RENDERED.
13