Grayden v. Rhodes

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
September 17, 2003
No. 02-10218
THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 00-00888 CV-ORL-22B

DEBORAH GRAYDEN,
CHARLES JACKSON, et al.,

Plaintiffs-Appellees,

versus

MIKE RHODES, individually,

Defendant-Appellant.
________________________

Appeal from the United States District Court
for the Middle District of Florida
_________________________

(September 17, 2003)

Before BIRCH and COX, Circuit Judges, and GEORGE*, District Judge.

COX, Circuit Judge:

*
Honorable Lloyd D. George, United States District Judge for the District of Nevada, sitting
by designation.
 This case comes to us on interlocutory appeal following the district court’s

rejection of a city code enforcement officer’s claim of qualified immunity. In this

appeal, we must determine whether the Due Process Clause of the Fourteenth

Amendment is violated when a code enforcement officer condemns an apartment

complex and evicts the tenants without providing the tenants with contemporaneous

notice of their right to appeal the condemnation decision. If we conclude that such

conduct violates the Due Process Clause, we must then determine whether the

tenants’ right to contemporaneous notice was established with such clarity at the time

of eviction in this case that the chief of the City of Orlando’s Code Enforcement

Bureau is not entitled to qualified immunity.

I. BACKGROUND & PROCEDURAL HISTORY

Beginning on March 7, 2000, city officials inspected all of the units of

Lafayette Square, a residential apartment complex located in Orlando, Florida (“the

City”).1 Based on these inspections, the City notified the owner of Lafayette Square

that city code violations at the complex presented a serious and continuing danger to

its occupants, and threatened to declare the building unfit for human occupancy if the

1
Our recitation of the facts is based primarily on the admitted facts contained in the
parties’ joint pretrial statement. To the extent that material facts are in dispute, we present these
facts in the light most favorable to the plaintiffs, as we must when the issue of qualified immunity
is raised in a summary judgment motion. Priester v. City of Riviera Beach, Fla., 208 F.3d 919, 925-
26 n.3 (11th Cir. 2000).

2
violations were not corrected.2 The owner was informed that the City of Orlando

Code Enforcement Board (“the Board”), an independent administrative body created

under Florida law,3 would conduct a hearing on July 12, 2000, to consider the

conditions at Lafayette Square.

The code violations were not corrected. On June 29, two weeks before the

scheduled Board hearing, city officials posted notices on each apartment door at

Lafayette Square directing residents to vacate the property by 5:00 p.m. on June 30.

They also posted a condemnation notice on the main doors of each building of the

complex that declared the complex to be unsafe, directed residents to vacate the

buildings, and informed them that they would be subject to possible arrest or

prosecution if they did not vacate immediately. The condemnation decision was

made by Mike Rhodes, the chief of the City’s Code Enforcement Bureau, and he

signed the condemnation notices. The notices did not inform the tenants of any right

to a hearing to challenge the condemnation decision.

On June 30, Richard Cato, an attorney for Greater Orlando Area Legal

Services, notified the city attorney that several tenants requested a hearing pursuant

2
The evidence suggests that Lafayette Square apartments were plagued by serious
problems, including collapsed ceilings, major leaks, constant mold and mildew, water leakage from
light fixtures, and roach and other insect infestations.
3
Fla. Stat. § 162.03. The Board has the authority to issue final orders having the force
of law, id. § 162.08(5), and may adopt rules for the conduct of its hearings, id. § 162.08(1).

3
to Section 30A.11 of the Orlando City Code (“the City Code” or “the Code”). Under

that section,

Any person affected by any notice which has been issued in connection
with the enforcement of any provision of this Code or of any rule or
regulation adopted pursuant thereto may request and shall be granted a
hearing on the matter before the Code Enforcement Board pursuant to
Chapter 5 of the City Code.

Orlando, Fla. City Code § 30A.11. Cato also indicated that the tenants would seek

an injunction if the City refused to stay its code enforcement activity.

The City continued its enforcement efforts, and on July 12 three former tenants

of Lafayette Square filed a complaint in federal district court. The complaint alleged

a 42 U.S.C. § 1983 procedural due process claim and a Fair Housing Act claim

against the City and against Rhodes in his individual capacity. 4 The tenants also filed

a motion for a temporary restraining order that would prohibit any further code

enforcement action regarding Lafayette Square until they had a meaningful

opportunity to challenge the condemnation decision.

On that same day, July 12, the Board conducted its previously-scheduled

hearing regarding the violations at Lafayette Square. A notice of this hearing had

been published in the Orlando Sentinel on July 2 and July 9. Cato and one of the

4
The complaint also named the owner of Lafayette Square as a defendant, but he was
voluntarily dismissed from this action.

4
plaintiffs attended and testified at the hearing.5 At the hearing, the Board ultimately

concluded that Lafayette Square was in violation of the City Code.

At the July 12 hearing, Cato asked the Board to schedule a second hearing to

allow the tenants to address the Board. The Board agreed to do so, and scheduled a

hearing for July 26. Notice of this hearing was mailed to every tenant’s last known

address on July 19 or 20, although at least one tenant asserts that he never received

the notice. Notice was posted on the Lafayette Square property, and it also was

published in the July 23 edition of the Orlando Sentinel. Because a hearing had been

scheduled for July 26, the district court denied the plaintiffs’ motion for a temporary

restraining order.

On July 26, the Board conducted the second hearing. Cato attended the hearing

and he was joined by five former tenants of Lafayette Square, two of whom testified.6

At the conclusion of the hearing, the Board decided to allow the decision rendered at

the July 12 hearing (finding Lafayette Square to be in violation of the City Code) to

stand.

5
A tenant who was later added as a plaintiff also attended the July 12 hearing but did
not testify.
6
Only one of the tenants in attendance was among the group of three that filed the
complaint. The other four tenants at the hearing were added as plaintiffs, along with several other
tenants, later in the proceedings. See infra note 7.

5
 Several months later, the complaint was amended to add several additional

plaintiffs7 and new claims. The amended complaint alleges two claims against

Rhodes: a Fair Housing Act claim that has since been dismissed8 and the § 1983

procedural due process claim that is the focus of this appeal. The complaint also

alleges claims against the City and the Board,9 but these claims are not implicated by

Rhodes’ interlocutory appeal on the issue of qualified immunity.

Rhodes filed a motion for summary judgment on the § 1983 procedural due

process claim based on qualified immunity, and his motion was referred to a

magistrate judge. The magistrate judge identified three possible procedural due

7
After the complaint was amended, the plaintiffs included Deborah Grayden, Charles
Jackson, Magdaly Laurenceau, Mervil Celissa, Ducace Vilne, Vileine Previl, Carolyn Gude, John
McIntosh, Patricia Robotham, Angela Latimer, Jamell Myers, Peter Williams, Carolyn Moore,
Sandra Freeman, Veronica Gaines, Ladonna May, Tiffany May, Eileen Burwell, Thomas Jackson,
Constance Lawrence and Salisa Manning. All of the plaintiffs were evicted from Lafayette Square
when the complex was condemned.
Moore was voluntarily dismissed from this action. During the course of litigation, plaintiffs’
counsel withdrew from the representation of five plaintiffs (Laurenceau, Latimer, Myers, Manning,
and Thomas Jackson). The claims of Laurenceau, Myers, Manning and Thomas Jackson have been
dismissed for failure to prosecute. The remaining plaintiffs are represented by counsel with the
exception of Latimer, who is pro se. Latimer did not file a brief in this appeal. They will be referred
to collectively as “the plaintiffs.”
8
This claim was voluntarily dismissed by the represented plaintiffs, and the district
court dismissed Latimer’s pro se Fair Housing Act claim.
9
The first count of the plaintiffs’ amended complaint alleges a § 1983 procedural due
process claims against the City as well as Rhodes. The second and third counts allege a § 1983 due
process claim against the City based on its written policy and a § 1983 claim against the Board for
its failure to provide a timely and meaningful hearing, respectively. (The district court ruled that the
City’s Code Enforcement Board is an autonomous entity subject to suit under § 1983.)

6
process violations alleged against Rhodes: (1) a violation of the plaintiffs’

constitutional right to be timely notified of the initial code violations; (2) a violation

of their constitutional right to due process at the time of eviction (pre-deprivation due

process); and (3) a violation of their constitutional right to due process following

eviction (post-deprivation due process). As to the first alleged violation, the

magistrate judge concluded that the plaintiffs had not demonstrated that they had a

clearly established right to notice of the initial code violations. The magistrate judge

held that Rhodes was entitled to qualified immunity as to the second allegation as

well, reasoning that a tenant is not entitled to pre-deprivation notice or a pre-

deprivation hearing if exigent circumstances exist and finding that Rhodes’ belief that

exigent circumstances existed in this case was reasonable.

But the magistrate judge reached a different result with regard to the plaintiffs’

post-deprivation due process claim. The judge found that when a pre-deprivation

hearing cannot be conducted due to exigent circumstances, immediate post-

deprivation notice is constitutionally required. Because Rhodes did not provide the

tenants with personal notice of their right to seek review of the condemnation

decision, the magistrate judge concluded that Rhodes was not entitled to qualified

7
immunity as to the plaintiffs’ claim of inadequate post-deprivation notice.10 The

district court adopted the magistrate judge’s report and recommendation, and Rhodes

appeals.

II. ISSUE ON APPEAL & STANDARD OF REVIEW

The only issue on appeal is whether Rhodes is entitled to qualified immunity

as to the plaintiffs’ post-deprivation due process claim. More specifically, the issue

is whether Rhodes is entitled to qualified immunity as to the plaintiffs’ claim of

constitutionally-inadequate post-deprivation notice; the plaintiffs allege that the City

and the Board, but not Rhodes, are responsible for the alleged failure to provide a

meaningful hearing.11

10
In another part of the magistrate judge’s report and recommendation, the judge
concluded that the notices in the newspaper were both procedurally and substantively deficient. The
judge also held that, with respect to the other types of notice provided (e.g., notice by mail, notice
posted on the property), there was a genuine dispute as to the adequacy of these notices.
11
Admittedly, it is not entirely clear from the complaint whether the plaintiffs allege
that Rhodes failed to provide them with a meaningful hearing. The allegations in Count One, the
§ 1983 procedural due process count, do not differentiate between the City and Rhodes for the
purpose of specifying which party (or parties) is responsible for the alleged notice deficiency and
which party (or parties) is responsible for the alleged hearing deficiency. However, the factual
allegations regarding the denial of an opportunity to be heard focus almost exclusively on the Board,
not Rhodes, as the responsible party.
The plaintiffs’ response to Rhodes’ motion for summary judgment resolves any ambiguity.
On no fewer than nine occasions, the plaintiffs contend that Rhodes is not entitled to qualified
immunity on their claims of constitutionally-inadequate notice without mentioning any allegations
that Rhodes denied them a meaningful opportunity to be heard. In fact, the plaintiffs expressly state
in their memorandum in opposition to Rhodes’ motion that “[t]he Plaintiffs’ claims against Rhodes
stem from his failure to provide them constitutionally adequate notice of their right to seek a hearing
on his condemnation order.” (R.2-49 at 5.)
The plaintiffs reaffirm the scope of their claim against Rhodes in their appellate brief:

8
 We review the district court’s denial of qualified immunity de novo. Lambert

v. Fulton County, Ga., 253 F.3d 588, 596 (11th Cir. 2001). Because the issue of

qualified immunity was raised in Rhodes’ summary judgment motion, we view the

facts in the light most favorable to the plaintiffs. Priester v. City of Riviera Beach,

Fla., 208 F.3d 919, 925-26 n.3 (11th Cir. 2000).

III. DISCUSSION

In Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727 (1982), the Supreme

Court observed that qualified immunity shields government officials who perform

discretionary functions12 from liability for civil damages as long as their conduct does

not violate clearly established statutory or constitutional rights. Id. at 818, 102 S. Ct.

at 2738. Five years later, in Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034

(1987), the Court clarified that “[t]he contours of the right must be sufficiently clear

“Plaintiffs’ claim against Rhodes is for his failure to notify plaintiffs of their right to seek a hearing
on the order to vacate their apartments.” (Pls.’ Br. at 16.) The plaintiffs frame the issues on appeal
in terms of Rhodes’ failure to provide adequate notice, (id. at 1), and they reaffirm later in the brief
that “Plaintiffs’ claim against Rhodes is that his failure to provide notice denied them adequate post-
deprivation process.” (Id. at 28.) Thus, even if the plaintiffs’ complaint could be construed to plead
a claim that Rhodes failed to provide a constitutionally-adequate hearing, we have no difficulty
concluding, based on the proceedings in the district court and the briefs on appeal, that such a claim
has been abandoned.
12
“A government official acts within his or her discretionary authority if objective
circumstances compel the conclusion that challenged actions occurred in the performance of the
official’s duties and within the scope of this authority.” Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d
1176, 1185 n.17 (1994). The district court found, and the parties do not dispute, that Rhodes was
acting within his discretionary authority in this case.

9
that a reasonable official would understand that what he is doing violates that right.”

Id. at 640, 107 S. Ct. at 3039. In sum, a government official is not entitled to

qualified immunity if his or her conduct violated a clearly established statutory or

constitutional right and if the contours of the right were defined with such clarity that

a reasonable official would have understood, at the time, that the conduct at issue

violated that right.

With these principles in mind, the Supreme Court formulated a two-step

qualified immunity analysis in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001),

which we must follow. Under the Saucier approach, we first ask if the facts alleged,

taken in the light most favorable to the plaintiffs, show that Rhodes’ conduct violated

the plaintiffs’ Fourteenth Amendment due process rights. Id. at 201, 121 S. Ct. at

2156. Second, if we conclude that the plaintiffs’ constitutional rights have been

violated under the facts alleged, we must determine whether their rights were clearly

established – that is, whether the state of the law at the time of eviction would have

made clear to a reasonable city code enforcement officer that Rhodes’ conduct was

unlawful. Id. at 202, 121 S. Ct. at 2156. To determine whether a right is clearly

established under the second step, we examine cases that articulate constitutional

rules of general application as well as those cases that apply these general rules in

circumstances similar to those encountered in this case. See Vinyard v. Wilson, 311

10
F.3d 1340, 1350-52 (11th Cir. 2002). In so doing, the Supreme Court has cautioned

that we should not be unduly rigid in requiring factual similarity between prior cases

and the case under consideration, noting that the “salient question” is whether the

state of the law gave the official “fair warning” that the alleged conduct was

unconstitutional. Hope v. Pelzer, 536 U.S. 730, ___, 122 S. Ct. 2508, 2516 (2002).

We address the two Saucier inquiries in turn. In Part A, we evaluate the

plaintiffs’ procedural due process allegations in light of the balancing test established

in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893 (1976) and the standard for

notice set forth in Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70

S. Ct. 652 (1950), and conclude that the plaintiffs have alleged a violation of their

right to constitutionally-adequate notice under the Fourteenth Amendment. In Part

B, we examine the relevant caselaw at the time of eviction and conclude that a

reasonable public official could have believed that § 30A.11 of the City Code

provided constitutionally-adequate notice to the plaintiffs of their right to challenge

the condemnation decision and thus that Rhodes did not violate a clearly established

constitutional right.

A. Do the plaintiffs allege facts that establish a constitutional violation?

There can be no doubt that, at a minimum, the Due Process Clause requires

notice and the opportunity to be heard incident to the deprivation of life, liberty or

11
property at the hands of the government. Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 313, 70 S. Ct. 652, 656-57 (1950). And it is equally clear that the

government must provide the requisite notice and opportunity for a hearing “at a

meaningful time and in a meaningful manner,” although in “extraordinary situations”

the provision of notice and a hearing may be postponed until after the deprivation has

occurred. Fuentes v. Shevin, 407 U.S. 67, 80, 90, 92 S. Ct. 1983, 1994, 1999 (1972).

If the government fails to comply with the dictates of the Due Process Clause, the

aggrieved party can seek compensatory damages and equitable relief under 42 U.S.C.

§ 1983. McKinney v. Pate, 20 F.3d 1550, 1555, 1557 (11th Cir. 1994) (en banc).

In this circuit, a § 1983 claim alleging a denial of procedural due process

requires proof of three elements: (1) a deprivation of a constitutionally-protected

liberty or property interest; (2) state action; and (3) constitutionally-inadequate

process. Cryder v. Oxendine, 24 F.3d 175, 177 (11th Cir. 1994). In this case, the first

two elements are not in dispute. The tenants enjoyed a constitutionally-protected

property interest in their continued residency at Lafayette Square, and they were

deprived of that interest. See Greene v. Lindsey, 456 U.S. 444, 450-51, 102 S. Ct.

1874, 1878 (1982) (concluding that continued residency in leasehold property is a

“significant interest in property” subject to due process protection); Ward v.

Downtown Dev. Auth., 786 F.2d 1526, 1530, 1531 (11th Cir. 1986) (holding that

12
under Florida law, continued occupancy, even pursuant to a tenancy at will, is a

protected property interest within the meaning of the Takings Clause and the Due

Process Clause of the Fifth Amendment). And none of the parties question the fact

that Rhodes’ conduct, as the chief of the City’s Code Enforcement Bureau, constitutes

“state action” for the purposes of § 1983 liability.

Because the plaintiffs have alleged that they were deprived of a

constitutionally-protected property interest as a result of state action, due process is

implicated and the question becomes what process is due. Morrissey v. Brewer, 408

U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972). The Supreme Court has often noted that

due process is a flexible concept that varies with the particular circumstances of each

case, and to determine the requirements of due process in a particular situation, we

must apply the balancing test articulated in Mathews v. Eldridge, 424 U.S. 319, 96

S. Ct. 893 (1976). See, e.g., Gilbert v. Homar, 520 U.S. 924, 931-32, 117 S. Ct. 1807,

1812 (1997) (applying the Mathews test to determine what process is constitutionally

due); Zinermon v. Burch, 494 U.S. 113, 127, 110 S. Ct. 975, 984 (1990) (same);

United States v. Wattleton, 296 F.3d 1184, 1198 (11th Cir. 2002) (same). Under the

Mathews test,

identification of the specific dictates of due process generally requires
consideration of three distinct factors: First, the private interest that will
be affected by the official action; second, the risk of an erroneous

13
 deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function involved
and the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.

Mathews, 424 U.S. at 335, 96 S. Ct. at 903. We examine each of the Mathews factors

to determine what process was due in this case.

1. The Mathews Factors

The tenants’ primary interest is one of undeniably great magnitude: they seek

to protect their interest in enjoying uninterrupted occupancy in their residence of

choice. United States v. James Daniel Good Real Prop., 510 U.S. 43, 53-54, 114 S.

Ct. 492, 501 (1993) (concluding that the right to maintain control over one’s home

is “a private interest of historic and continuing importance”); United States v. All

Assets of Statewide Auto Parts, Inc., 971 F.2d 896, 902 (2d Cir. 1992) (noting, under

the Mathews test, that the interest in one’s home “merits special constitutional

protection”); United States v. 141st Street Corp. by Hersh, 911 F.2d 870, 875 (2d Cir.

1990) (observing that the home occupies a privileged place in the eyes of the law).

One’s home certainly ranks among the most cherished property interests that due

process protects, and the uninterrupted enjoyment of its comforts and security is

undoubtedly a significant private interest.

14
 But inherent in the tenants’ interest in their uninterrupted occupancy at

Lafayette Square is another important concern: their interest in maintaining their

residence, in the long term, at Lafayette Square. With less than thirty-six hours to

vacate the complex, the tenants were forced to secure alternate housing on short

notice. Several of them, unaware of their opportunity to challenge the condemnation

order, acquiesced in the decision and made binding commitments (e.g., signed a

lease) to reside elsewhere. By doing so, these tenants unknowingly chose to forgo the

option of securing temporary housing while contesting the condemnation, and they

forfeited, for all practical purposes, any opportunity to return in short order to

Lafayette Square if the deprivation proved to be erroneous. Simply stated, the

tenants’ interest in maintaining their long-term residence at Lafayette Square

translated into an interest in knowing, when the complex was condemned and before

they made alternate long-term housing arrangements, that they could challenge the

condemnation decision. Thus, we identify two private interests under the Mathews

test: (1) the tenants’ interest in uninterrupted occupancy at Lafayette Square; and (2)

their interest in residing at Lafayette Square in the long term which, for all intents and

purposes, amounts to an interest in being informed at the time of eviction that the

condemnation order can be challenged.

15
 Turning to the second Mathews factor, we conclude that the risk of erroneous

deprivation in this case is relatively low. In the context of a condemnation and

resulting eviction, an “erroneous deprivation” occurs when a code enforcement

officer like Rhodes evicts tenants from a building that actually is fit for human

occupancy. The City Code guides Rhodes in his efforts to monitor code compliance

and to wield his condemnation power appropriately, and to evaluate the risk of

erroneous deprivation in this case, we must identify the process that Rhodes must

follow under the Code to effectuate an emergency eviction.

The City Code empowers Rhodes with a right of entry and inspection.

Orlando, Fla. City Code § 30A.09. If Rhodes determines that a building is in

violation of the Code, he must notify the person responsible for correcting the

violations, in writing, of the violations and provide a schedule for completing

improvements that would bring the building into compliance. Id. §§ 30A.10(1), (3),

(4). If the violations are not corrected in the time and manner specified in the initial

notice, the violations may be referred to the Board, which then conducts a hearing and

may, if necessary, issue an order vacating the building. Id. §§ 5.06(5), (6); §

30A.10(7).13

13
The property owner must be notified of, and may testify at, the Board hearing.
Orlando, Fla. City Code §§ 5.04(5), 5.05(5). At the conclusion of the hearing, the Board must issue
an administrative order affording proper relief, which may include levying a fine, commanding steps

16
 But Rhodes need not rely on Board action to vacate a building. The City Code

alerts property owners that “[m]ajor or cumulative minor violations which are

deteriorating into hazardous or nuisance conditions may also be subject to

proceedings under Article IV,” id. § 30A.10(7), and pursuant to Article IV of the City

Code, Rhodes has the authority – independent of the Code Enforcement Board – to

require that buildings be vacated when nuisance conditions exist to the extent that

vacating the building is necessary for public health, safety and welfare. Id. §§

30A.38, 30A.42. In determining whether a building is unfit for human occupation

and should be condemned under Article IV, id. § 30A.42, Rhodes can rely upon the

Code’s definition of a “nuisance,” which includes:

(3) Physical or unsanitary conditions or conditions so lacking
illumination or ventilation as to be dangerous to human life or
detrimental to health of persons on or near the premises where the
condition exists.

(4) Major or minor violations of this Code which cumulatively impact
upon premises to the point whereby conditions endanger human life or
substantially and detrimentally affect the safety or security of occupants,
nearby occupants or passers-by.

(5) Whatever renders air, food or drink unwholesome or detrimental to
the health of human beings.

to bring the building into compliance, or securing, repairing, vacating, or demolishing the structure.
Id. §§ 5.06(5), (6). The City Code permits an “aggrieved party” to appeal the Board’s order to
Circuit Court, id. § 5.08(1), but it is unclear whether the tenants of a condemned building would be
“aggrieved parties” entitled to appeal such an order.

17
 (6) Fire hazards.

Id. § 30A.12.

If Rhodes exercises his authority to condemn a building under Article IV, he

must serve the property owner and tenants with a notice to vacate the structure (as he

did in this case), id. § 30A.42(A), and the property owner and the tenants may request

a hearing on the matter before the Board. Id. § 30A.11. If the tenants make such a

request, a hearing “shall be granted,” id., but the parties disagree about whether the

Board would have the authority at that hearing to overrule Rhodes’ condemnation

order. Additionally, it is unclear whether the Board would render a “final

administrative order” at the conclusion of this hearing. If the Board did issue a final

administrative order at the conclusion of such a hearing, an “aggrieved party” would

have the right to appeal the Board’s order to state circuit court, but it is not entirely

clear whether the tenants would qualify as an “aggrieved party.” Id. § 5.08(1).

Based on our review, we conclude that, at the very least, the standards and

procedures for inspection and condemnation under the City Code provide some

protection against the risk of erroneous deprivation. Furthermore, the Code’s

definition of “nuisance,” while somewhat vague, can guide Rhodes as he employs his

condemnation power. Accordingly, we conclude that the risk of erroneous

18
deprivation – i.e., the risk that Rhodes will vacate a building fit for habitation – is

relatively low.

But this is not to suggest that a code enforcement officer like Rhodes could

never be mistaken. Notwithstanding the procedures established under the City Code

to protect tenants from an erroneous deprivation, we must also consider under the

second prong of the Mathews test whether additional or different procedures would

afford marginally better protection against the possibility of an erroneous deprivation.

See Dusenbery v. United States, 534 U.S. 161, 167, 122 S. Ct. 694, 699 (2002)

(referring to the second prong of the Mathews test as “a cost-benefit analysis of the

risks of an erroneous deprivation versus the probable value of additional

safeguards”). In essence, we must examine the extent to which a hearing that

provides a forum for tenants to voice their concerns about a condemnation order

could reduce the likelihood of an erroneous deprivation.

We conclude that such a hearing could afford marginally better protection

against an erroneous deprivation, and the circumstances of this case illustrate the

potential value of such a hearing. Several tenants argue that their individual units

were habitable and, as a consequence, the entire Lafayette Square complex should not

have been condemned. Rhodes acknowledged that city officials did not conduct a

formal unit-by-unit inspection of the complex in June prior to the condemnation

19
decision, and a Code Enforcement Bureau employee testified that as of July 12, 2000,

the Bureau had not been able to assess the structural damage at Lafayette Square.

Moreover, a city official testified that some units at Lafayette Square were “in good

condition” at the time of condemnation, which presented Rhodes with a “major

dilemma.” (Tr. of Board Hr’g of July 12, 2000, at 10.) And Rhodes conceded that

if tenants had approached him at the time of eviction and claimed special

circumstances, and “[i]f another inspection of their unit had been done and showed

their unit to be in reasonably good shape,” he might have considered allowing those

tenants to remain in their units beyond the date of condemnation.14 (Rhodes Dep. at

151.) These observations suggest that the risk of erroneous deprivation, even if low,

is not so negligible as to be unworthy of consideration. And while we do not suggest

that tenants necessarily have the expertise and experience to evaluate the extent to

which the buildings in which they live are fit for human occupancy, we acknowledge

that they are intimately familiar with their homes and may, in some circumstances, be

able to provide information that will assist the City and its officials in evaluating a

condemnation order. Therefore, although the risk of erroneous deprivation is

14
Although Rhodes contradicts this testimony later in his deposition, we must view the
facts in the light most favorable to the plaintiffs.

20
relatively low, there is at least some value in conducting a hearing at which tenants

can challenge a condemnation order.

The third Mathews factor requires us to examine the City’s interest. In this

case, the City’s interest is of the highest order: protecting the public from dangerous

and potentially life-threatening living conditions. We need not belabor the obvious

importance of this interest, which none of the parties question. But under the third

prong of the Mathews test, we must also consider the fiscal and administrative burden

that additional procedural safeguards would impose.

The additional fiscal and administrative cost of notice is negligible. To

effectuate an eviction, a city must inform the tenants of a condemned building that

they have until a specified day and time to vacate. In the city of Orlando, this must

be done in two ways: (1) by delivering a notice to vacate to the occupants of a

condemned building personally, by leaving the notice at the occupants’ place of

abode, or by delivering the letter to the occupants’ last known address; and (2) by

placarding the building as unfit for human occupancy in a conspicuous place.

Orlando, Fla. City Code § 30A.42(B). To include a one-sentence statement of a

tenant’s right to appeal the condemnation order in this notice to vacate would not be

burdensome. In fact, Rhodes testified that the City amended its standard eviction

notice to include a statement regarding the tenants’ right to appeal the condemnation

21
order, which suggests that the fiscal and administrative burden of such notice is not

prohibitive. Accordingly, we note that while the City’s interest in protecting the

public is exceptional, the City would assume almost no additional financial or

administrative burden by providing notice of the right to a hearing at the same time

it provides the notice to vacate.

The burden of conducting a hearing, of course, is likely greater than the cost

of adding another sentence to the City’s standard notice-to-vacate form. But this cost

is hardly daunting, and there is no doubt in our minds that the tenants are entitled to

a meaningful hearing at some point in time to contest the condemnation decision.

The fiscal and administrative burden of conducting a pre-deprivation hearing,

however, could be more pronounced, particularly if the hearing must be convened on

short notice independent of any regularly-scheduled meeting.

2. Results of the Mathews Balancing: What Process is Due?

Having identified the Mathews factors, we now must balance these factors to

determine the process that was due to the tenants of Lafayette Square. As a general

rule, an eviction must be preceded by notice and an opportunity to be heard. Fuentes

v. Shevin, 407 U.S. 67, 81-82, 92 S. Ct. 1983, 1994-95 (1972); Thomas v. Cohen, 304

F.3d 563, 576 (6th Cir. 2002) (“Due process generally requires notice and a hearing

prior to eviction.”). But there are “extraordinary situations” in which some valid

22
governmental interest is at stake that justifies postponing the hearing until after the

deprivation. Fuentes, 407 U.S. at 90, 92 S. Ct. at 1999. The Supreme Court has

recognized that such extraordinary situations, which we will refer to as “exigent

circumstances,” are marked by three characteristics: (1) the seizure of property is

necessary to secure an important governmental or general public interest; (2) there is

a special need for prompt action; and (3) the person initiating the seizure is a

government official responsible for determining, under the standards of a narrowly

drawn statute, that the seizure was necessary and justified in the particular instance.

Id. at 91, 92 S. Ct. at 2000.

We conclude, as have many other courts, that the emergency evacuation of

tenants from a dangerous and potentially life-threatening structure qualifies as an

“extraordinary situation.” As a consequence, when such exigent circumstances exist,

tenants can be evicted from a building reasonably judged to be unfit for human

occupancy without a pre-deprivation hearing.15 See, e.g., Flatford v. City of Monroe,

17 F.3d 162, 167, 168 (6th Cir. 1994) (“Protecting citizens from an immediate risk

of serious bodily harm falls squarely within those ‘extraordinary situations’ . . . .

[W]here the need to protect lives is the basis for [an emergency eviction], government

15
For the purposes of this appeal, we assume that exigent circumstances existed
because the district court, in adopting the magistrate judge’s report and recommendation, concluded
that Rhodes’ belief that there were exigent circumstances was reasonable.

23
officials should not be made to hesitate in performing their duties, particularly where

postdeprivation remedies can immediately correct any errors in judgment.”);

Richmond Tenants Org., Inc., v. Kemp, 956 F.2d 1300, 1307 (4th Cir. 1992) (holding,

in a federal public housing case, that “in the absence of exigent circumstances, the

Due Process Clause of the Fifth Amendment requires the government to provide for

notice and an opportunity to be heard before a tenant may be evicted”). When the

immediate safety of tenants is placed in jeopardy by hazardous and possibly life-

threatening living conditions, a city’s interest in protecting its citizens outweighs the

tenants’ interest in enjoying uninterrupted occupancy at their residence of choice.16

But exigent circumstances do not justify the postponement of notice until after

the eviction. In this regard, the tenants’ interest in being informed immediately of

their right to challenge the condemnation decision outweighs any countervailing

government interest. Without the benefit of pre-deprivation notice, tenants may

acquiesce in the condemnation decision and secure alternate long-term housing even

though they might prefer to remain temporarily in “housing limbo” and secure short-

16
We base our conclusion primarily on the weighing of a city’s interest in protecting
the public against the tenants’ interest in uninterrupted occupancy. However, the fiscal and
administrative burdens associated with a pre-deprivation hearing reinforce our conclusion. If a pre-
deprivation hearing were required before a city could complete an emergency evacuation, the city
would undoubtedly wish to convene that hearing promptly to ensure that the dangerous structure
could be vacated as quickly as possible. There is no doubt that the fiscal and administrative burdens
attendant to such an urgent, previously-unscheduled hearing could be significant.

24
term housing while contesting the condemnation decision. If the deprivation proves

to be erroneous – i.e., the building is habitable, and thus should not have been

condemned despite the existing code violations – these tenants would have no

recourse because of their binding commitment to take up residence elsewhere. And

while pre-deprivation notice would serve the tenants’ interest, it would not hinder any

identifiable government interest. Providing such notice does not obstruct the City’s

legitimate interest in protecting the public from inhabiting dangerous buildings

because the tenants are still required to vacate the premises, and pre-deprivation

notice could be provided, as we note above, at little extra cost.

When exigent circumstances prompt an emergency eviction, contemporaneous

pre-deprivation notice is required but a pre-deprivation hearing is not. By

“contemporaneous,” we mean that the tenants must receive notice of their right to

challenge the condemnation decision when they are provided with the notice to vacate

the building. We further hold that a post-deprivation hearing is not automatically

required because evicted tenants may acquiesce in a condemnation decision, but if the

tenants do exercise their right to challenge a condemnation order, a meaningful post-

deprivation hearing should be conducted promptly. Flatford, 17 F.3d at 169. We

have no occasion to articulate in any greater detail the requirements of a post-

deprivation hearing because the plaintiffs only allege that Rhodes failed to provide

25
them with constitutionally-adequate notice and, as a result, the constitutional

adequacy of a post-deprivation hearing is not before us. See supra note 11.

3. Did Statutory Notice Satisfy the Contemporaneous Notice Requirement
in This Case?

Having concluded that the tenants were entitled to contemporaneous notice of

their right to seek review of Rhodes’ condemnation decision, we must now consider

what type of notice is required to meet this due process requirement.17 Rhodes

concedes that he did not provide the tenants with personal notice prior to the eviction

deadline of their right to a hearing; city officials did not tell the tenants in-person of

their right to challenge the condemnation order, nor were they informed of this right

in the notice-to-vacate forms posted on their doors or on the placard displayed at the

main entrances to the complex.18 But Rhodes points out that the Orlando City Code

17
Notice comes in many shapes and sizes, and the events surrounding this case illustrate
the various types of notice that can be employed. Notice may be personal, including a conversation
(either in-person or by telephone), a letter delivered by mail, or by posting or delivery at one’s place
of abode. Notice may also be more general; it can be published in a newspaper, posted on the
property, or provided in a state statute or city code. See Dusenbery v. United States, 534 U.S. 161,
176, 122 S. Ct. 694, 704 (2002) (describing various types of notice).
18
Rhodes contends that notice of the post-deprivation hearings was provided after the
eviction. He argues that publication notice of these scheduled hearings was provided as early as July
2, notice by mail was provided as early as July 19, and posted notice was provided on the Lafayette
Square property prior to the July 26 hearing. Obviously, these forms of notice were provided after
the eviction, and thus do not satisfy the requirement of contemporaneous notice.
Rhodes vigorously contends that these post-deprivation notices “cured” the original notice
deficiency. Citing McKinney v. Pate, 20 F.3d 1550 (1994) (en banc), he argues that a state may cure
a procedural deprivation by providing a later procedural remedy. Id. at 1557. He contends that the
provision of a post-deprivation hearing cured any possible injury that resulted from the failure to

26
informed the tenants, as “person[s] affected by any notice which has been issued in

connection with the enforcement of any provision of this Code,” of their right to

request a hearing “on the matter” before the Board. Orlando, Fla. City Code §

30A.11. His argument has force because several Lafayette Square tenants exercised

their right to a hearing under § 30A.11 on June 30, before the eviction deadline, when

their counsel sent a letter to the city attorney invoking their right to a hearing. We

must decide whether the statutory notice of the right to a hearing provided by §

30A.11 of the City Code is sufficient to satisfy the contemporaneous notice

requirement that we have derived from our application of the Mathews balancing test.

For one hundred years, the Supreme Court has declared that a publicly

available statute may be sufficient to provide such notice because individuals are

presumptively charged with knowledge of such a statute. Reetz v. Michigan, 188 U.S.

505, 509, 23 S. Ct. 390, 392 (1903); North Laramie Land Co. v. Hoffman, 268 U.S.

276, 283, 45 S. Ct. 491, 494 (1925) (“All persons are charged with knowledge of the

provisions of statutes and must take note of the procedure adopted by them . . . .”);

provide constitutionally-adequate process prior to the eviction. We disagree. As we noted in detail
earlier, the failure to provide pre-deprivation notice of the right to a hearing can work a uniquely
final deprivation because evicted tenants may enter into binding, long-term commitments to reside
elsewhere. Providing post-deprivation notice and a post-deprivation hearing cannot cure the pre-
deprivation due process violation in such a circumstance. Accordingly, even if Rhodes provided
adequate post-deprivation notice and the Board provided a meaningful post-deprivation hearing (two
hotly disputed issues), this process is not “sufficient to remedy the procedural deprivation.” Id.

27
Texaco, Inc. v. Short, 454 U.S. 516, 532, 102 S. Ct. 781, 793 (1982) (“It is well

established that persons owning property within a State are charged with knowledge

of relevant statutory provisions affecting the control or disposition of such

property.”). This principle of statutory notice was announced with the greatest force

in Atkins v. Parker, 472 U.S. 115, 105 S. Ct. 2520 (1985), when the Court wrote, “All

citizens are presumptively charged with knowledge of the law . . . . The entire

structure of our democratic government rests on the premise that the individual

citizen is capable of informing himself about the particular policies that affect his

destiny.” Id. at 130-31, 105 S. Ct. at 2529-30.19

As early as 1905, the Supreme Court applied the principle of statutory notice

to charge a plaintiff with notice of the right to an opportunity to be heard regarding

a deprivation. In Reetz v. Michigan, the plaintiff had been convicted for violating a

19
It is true that in many of the Supreme Court cases just cited, the question was not
whether the statute at issue provided citizens with adequate notice of their right to challenge a
deprivation; rather, the question was whether the statute provided adequate notice of the potential
deprivation itself. See Texaco, 454 U.S. at 531, 102 S. Ct. at 793 (whether Indiana’s Mineral Lapse
Act adequately notified affected individuals of the actions that must be taken to avoid the
extinguishment of mineral rights); Atkins, 472 U.S. at 129-30, 105 S. Ct. at 2529 (whether a statutory
amendment to the Food Stamp Act provided sufficient notice to food-stamp households of an
adjustment of benefit levels); United States v. Locke, 471 U.S. 84, 108, 105 S. Ct. 1785, 1799-1800
(1985) (whether the Federal Land Policy and Management Act of 1976 adequately notified claimants
of the recording actions that must be taken to avoid the abandonment of a mining claim). Unlike
those cases, the tenants in this case were quite aware that they were being deprived of their property
but they were not informed by the City of their right to appeal the deprivation. This distinction
makes no difference, however, because as we note in the following paragraphs, the Court has also
held that a statute can provide notice of the right to an opportunity to be heard.

28
Michigan statute that prohibited unregistered individuals from practicing medicine.

188 U.S. at 505-06, 23 S. Ct. at 391. Under Michigan law, a board of registration

issued certificates of registration to practice medicine. To obtain a certificate, the

plaintiff sent to the board copies of his registration under the prior statute and his

diploma from a medical college, but the board denied his application. The plaintiff

filed suit, contending that the Michigan statute did not provide him with notice, a

hearing, or the power to summon witnesses and compel their testimony before the

board. The Court rejected the plaintiff’s claim because the state statute provided for

semiannual meetings of the board at specified times, the plaintiff did not appear at

these meetings to present his application, and if the plaintiff had attended a meeting

and applied for a hearing, the board would have been compelled to grant it.

Accordingly, the Court declared that “[w]hen a statute fixes the time and place of

meeting of any board or tribunal, no special notice to parties interested is required.

The statute is itself sufficient notice.” Id. at 509, 23 S. Ct. at 392.

Just four years ago, in City of West Covina v. Perkins, 525 U.S. 234, 119 S. Ct.

678 (1999), the Supreme Court revisited the issue of statutory notice and reaffirmed

its conviction that statutes can provide notice of an opportunity to be heard. In that

case, police officers seized the plaintiffs’ personal property, including photos, an

address book, a shotgun, a starter pistol, ammunition, and over $2,600 in cash,

29
pursuant to a valid search warrant. The warrant related to another individual, a

subject in a homicide investigation, who had been a boarder in the plaintiffs’ home.

The officers left a notice of the search and an itemized list of the property seized. The

plaintiffs’ attempts to recover the items by contacting the police department and by

attempting to obtain a court order were unsuccessful, and they filed suit against the

city of West Covina, arguing that the city failed to provide them notice of the

remedies available under state law to obtain the seized property.

The Supreme Court rejected their claim because California law provided

adequate remedies for the return of the plaintiffs’ property, including motions brought

under two sections of the California Penal Code. The Court concluded that the police

officers were required to provide notice that they had seized the property, because

without such notice, property owners could not ascertain who was responsible for

their loss. But after the property owners were informed that the police had seized

their property, the California statutes placed the property owners on notice of their

right to file a motion in court to obtain the release of their property. The Court stated:

No . . . rationale justifies requiring individualized notice of state-law
remedies which . . . are established by published, generally available
state statutes and case law. Once the property owner is informed that his
property has been seized, he can turn to these public sources to learn
about the remedial procedures available to him. The City need not take
other steps to inform him of his options.

30
Id. at 241, 119 S. Ct. at 681-82. Thus, the Supreme Court’s view of statutory notice,

reflected in its decisions from Reetz to West Covina, provides the basis for a

compelling argument that § 30A.11 of the Orlando City Code, standing alone,

provides contemporaneous notice to the tenants of their right to challenge the

condemnation order and thus satisfies due process.

But the plaintiffs contend that the Supreme Court’s decision in Memphis Light,

Gas & Water Division v. Craft, 436 U.S. 1, 98 S. Ct. 1554 (1978), placed an

affirmative obligation on Rhodes to advise the tenants of the availability of a

procedure for protesting the condemnation order. In Memphis Light, the plaintiffs

erroneously believed that their municipal utility was “double billing” them for its

services, and the plaintiffs’ utility service was terminated on several occasions for

nonpayment as a result of this misunderstanding. They sought in good faith to

resolve the “double billing” problem, but the procedure for obtaining an opportunity

to speak with the utility’s management was not adequately explained, nor did the

plaintiffs receive an adequate explanation for the possible duplicate charges. They

filed suit against the utility, alleging that the utility failed to provide them with an

adequate opportunity to be heard before their utility service was terminated.

The Supreme Court agreed with the plaintiffs. The Court concluded that the

utility’s notification procedure, while adequate to notify the plaintiffs of the threat of

31
termination of service, was not adequate to inform them of the availability of a

procedure to object to their utility bills. The Court held that “[n]otice in a case of this

kind does not comport with constitutional requirements when it does not advise the

customer of the availability of a procedure for protesting a proposed termination of

utility service as unjustified.” Memphis Light, 436 U.S. at 14-15, 98 S. Ct. at 1563.

In a footnote, the Court observed that due process is flexible and identified two

factors on which it appeared to base its decision, at least in part: the utility’s notice

of termination of services was “given to thousands of customers of various levels of

education, experience, and resources,” and the uninterrupted continuity of electric

service is essential to health and safety. Id. at 15 n.15, 98 S. Ct. at 1563 n.15.

The tenants vigorously contend that Memphis Light controls this case and

dictates that Rhodes had an affirmative obligation to advise them of their right to

challenge the condemnation and the procedure for doing so. They argue that the

City’s notice to vacate was adequate to notify them of the pending eviction but was

not adequate to inform them of their right to a hearing. Moreover, they note that the

two factors upon which the Memphis Light Court arguably relied – the education and

experience of those people affected by the deprivation and the fact that the property

interest at issue is essential for health and safety – are present in this case.

32
 We reject the plaintiffs’ reliance on Memphis Light. One could arguably read

footnote 15 of Memphis Light to hold that notice of the right to and procedure for

requesting a hearing, which goes above and beyond the “skeletal notice” that informs

individuals of the deprivation itself, is required when uneducated or inexperienced

people are deprived of a property interest essential to health and safety. But after the

Supreme Court’s decision in West Covina, it is clear that these factors (the

sophistication of the affected individuals and the health and safety implications of the

deprivation), standing alone, are not sufficient to impose an affirmative obligation on

city officials. In West Covina, the Court made clear that the affirmative obligation

imposed in Memphis Light was predicated upon the fact that there were no publicly

available sources that would provide notice to those utility customers who, upon

learning of the threatened termination of their utility services, wished to contest it:

In requiring notice of the administrative procedures [for resolving a
billing dispute with the utility company], however, we relied not on any
general principle that the government must provide notice of the
procedures for protecting one’s property interests but on the fact that the
administrative procedures at issue were not described in any publicly
available document. A customer who was informed that the utility
planned to terminate his service could not reasonably be expected to
educate himself about the procedures available to protect his interests .
. . . While Memphis Light demonstrates that notice of the procedures for
protecting one’s property interests may be required when those
procedures are arcane and are not set forth in documents accessible to
the public, it does not support a general rule that notice of remedies and
procedures is required.

33
West Covina, 525 U.S. at 242, 119 S. Ct. at 682. In reaching this conclusion, the

Court acknowledged that notice of the right to a hearing can be provided by

“published, generally available state statutes and case law,” “public sources,” “any

publicly available document,” and “documents accessible to the public.” Id. at 241,

242, 119 S. Ct. at 681, 682. The tenants in this case, unlike the utility customers in

Memphis Light, could have turned to § 30A.11 of the Orlando City Code to learn of

their right to a hearing and the method for exercising this right. On this basis, we

conclude that Memphis Light is distinguishable from this case and does not impose

an affirmative obligation on Rhodes to advise the tenants of the availability of a

procedure to challenge the condemnation.

Although we conclude that Memphis Light does not impose an affirmative

notice obligation on Rhodes, we nonetheless conclude that such affirmative notice is

mandated by due process. In reaching this decision, we rely on the standard for

notice established by the Supreme Court in Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 70 S. Ct. 652 (1950), as well as our practical understanding of

statutory notice. We acknowledge that this decision may, at first glance, appear to

conflict with the Supreme Court’s reasoning in West Covina, but we explain below

why we believe that statutory notice was insufficient, given the circumstances of this

case, to satisfy due process.

34
 The Mathews balancing test, which we employ to determine the “dictates of

due process,” helps us determine at what point in time notice of the opportunity to be

heard is constitutionally required. Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct.

893, 903 (1976). In this case, based on our balancing of the Mathews factors, we

concluded that the tenants were entitled to contemporaneous notice. But when we are

called on to consider what type of notice is adequate to meet the contemporaneous

notice requirement, we eschew the balancing test in Mathews and adopt a “more

straightforward” approach. Dusenbery v. United States, 534 U.S. 161, 167, 122 S.

Ct. 694, 699 (2002). The Supreme Court, when asked in a recent case to apply the

Mathews test to evaluate the adequacy of a particular method of providing notice,

declined to apply Mathews and indicated that the standard announced in Mullane v.

Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652 (1950), provides the

proper analytical framework:

[W]e have never viewed Mathews as announcing an all-embracing test
for deciding due process claims. Since Mullane was decided, we have
regularly turned to it when confronted with questions regarding the
adequacy of the method used to give notice. . . . We see no reason to
depart from this well-settled practice.

Dusenbery, 534 U.S. at 168, 122 S. Ct. at 699-700 (citing seven Supreme Court cases

dating back almost fifty years that have applied the Mullane standard to assess the

adequacy of a particular method of providing notice). Based on the Supreme Court’s

35
guidance, we apply the Mullane standard to evaluate the adequacy of statutory notice

in this case.

Under the Mullane standard, notice must be “reasonably calculated, under all

the circumstances, to apprise interested parties of the pendency of the action and

afford them an opportunity to present their objections.” 393 U.S. at 314, 70 S. Ct. at

657. “Th[e] right to be heard has little reality or worth unless one . . . can choose for

himself whether to appear or default, acquiesce or contest.” Id.; see also West

Covina, 525 U.S. at 240, 119 S. Ct. at 681 (citing Mullane for this proposition). In

determining whether the Orlando City Code apprised the tenants of their right to

choose whether to “acquiesce or contest,” we reiterate that, for all practical purposes,

the tenants lose their ability to meaningfully contest the condemnation order when

they make alternate housing commitments. Therefore, for a notice to be reasonably

calculated to apprise them of their choices, as Mullane requires, the notice must be

reasonably calculated to apprise them of this right before they make alternate long-

term housing arrangements. Moreover, we assume that if the tenants are unaware of

their right to challenge the condemnation decision, there is a substantial likelihood

that they will make such alternate plans before the deadline to vacate the premises,

which, in this case, was 5:00 p.m. on June 30. Thus, under the Mullane standard, we

must ask whether § 30A.11 of the Orlando City Code was reasonably calculated,

36
under all of the circumstances of this case, to provide the tenants with notice of their

right to seek review of Rhodes’ decision before the eviction deadline arrived at 5:00

p.m. on June 30.

We conclude that § 30A.11 of the Code, standing alone, is not reasonably

calculated to apprise the tenants of their right to choose to acquiesce or contest the

condemnation order. The Mullane standard requires us to consider “all the

circumstances,” 339 U.S. at 314, 70 S. Ct. at 657, and we find one aspect of this case

to be extremely important: the residents of Lafayette Square were provided with no

more than thirty-six hours to vacate their homes, and during this limited period of

time, they had to complete a multitude of tasks, which ranged from securing alternate

shelter to collecting their personal belongings to making accommodations for work

or school. Although the Orlando City Code is a publicly available document and

the law presumptively charged the evicted tenants of Lafayette Square with

knowledge of its provisions, the law does not presume that the tenants actually knew

of their right to challenge the condemnation when they received the notice to vacate

on June 29 and 30. The law does not entertain the legal fiction that every individual

has achieved a state of legal omniscience; in other words, there is no presumption that

all of the citizens actually know all of the law all of the time. Practically speaking,

citizens must educate themselves about the law before they can wield the rights

37
dedicated to them under it, and the Supreme Court’s approach to statutory notice

takes account of this reality. See West Covina, 525 U.S. at 241, 119 S. Ct. at 682

(noting that an individual “can turn to these public sources to learn about the remedial

procedures available to him”); id. at 242, 119 S. Ct. at 682 (noting that a citizen

“could not reasonably be expected to educate himself about the procedures available

to protect his interests”); United States v. Locke, 471 U.S. 84, 108, 105 S. Ct. 1785,

1799-1800 (1985) (noting that citizens need “a reasonable opportunity . . . to

familiarize themselves with the general requirements imposed” by a new law); Atkins

v. Parker, 472 U.S. 115, 130, 105 S. Ct. 2520, 2529 (1985) (noting that the

presumption that all citizens are charged with knowledge of the law arguably may be

overcome in cases in which the statute “does not allow a sufficient ‘grace period’ to

provide the persons affected by a change in the law with an adequate opportunity to

become familiar with their obligations under it”); Texaco, Inc. v. Short, 454 U.S. 516,

532, 102 S. Ct. 781, 793 (1982) (“Generally, a legislature need do nothing more than

enact and publish the law, and afford the citizenry a reasonable opportunity to

familiarize itself with its terms and to comply.”). We conclude, in the circumstances

of this case, that § 30A.11 of the Orlando City Code was not reasonably calculated

to inform the tenants of Lafayette Square, who faced the burdens associated with an

38
eviction and had less than thirty-six hours to vacate their homes, of their right to

choose between acquiescing in or contesting Rhodes’ condemnation order.

West Covina does not compel us to conclude that § 30A.11 provides

constitutionally-adequate notice, for several reasons. First, while West Covina

repudiates a general rule that the government always must provide affirmative notice

of the right to and procedures for requesting a hearing, West Covina does not stand

for the converse proposition that statutory notice is always sufficient to satisfy due

process. See 525 U.S. at 242, 119 S. Ct. at 682. Second, the holding in West Covina

was framed in terms of the specific deprivation at issue in that case, namely, the

deprivation of personal property by the police for a criminal investigation. Id. at 240,

119 S. Ct. at 681 (“When the police seize property for a criminal investigation,

however, due process does not require them to provide the owner with notice of state-

law remedies.”); see also id. at 242-43, 119 S. Ct. 682-83 (basing its conclusion in

part on the fact that neither the federal government nor any state has traditionally

required law enforcement agencies to provide notice of state-law remedies). Third,

it does not appear that the issue in our case (whether a public source provides

constitutionally-adequate notice when citizens have less than thirty-six hours, amidst

a sea of other obligations, to consult that source and learn of their rights) was

presented in West Covina; there is no indication in that opinion that the plaintiffs

39
would have forfeited their right to obtain the seized property if thye did not learn of

and exercise their right within a substantially-limited period of time. Fourth, the

holding in West Covina seems to implicitly support our conclusion. The Court’s

opinion, which holds that personal notice of procedures may be required if a

description of those procedures cannot be accessed by the public, acknowledges a

practical concern about the public’s ability to learn of its rights, and it is precisely that

concern which our decision attempts to address. Id. at 242, 119 S. Ct. at 682.

Finally, we note that West Covina, while citing Mullane, did not mention the

“reasonably calculated” standard or apply it. See West Covina, 525 U.S. at 240, 119

S. Ct. at 681. Based on the Court’s endorsement of the Mullane standard in

Dusenbery v. United States, 534 U.S. 161, 122 S. Ct. 694 (2002), three years after the

decision in West Covina, we believe that our “reasonably calculated” analysis is not

controlled by the Court’s decision in West Covina.

In conclusion, we hold that when the tenants of Lafayette Square were evicted

from their leasehold interests based on exigent circumstances and were given less

than thirty-six hours to vacate the premises, they were entitled under Mathews and

Mullane to affirmative, contemporaneous notice of their right to challenge the

condemnation order but they were not entitled to a pre-deprivation hearing. By

“affirmative” notice, we mean that they were entitled to notice above and beyond that

40
provided by § 30A.11 of the City Code. By “contemporaneous” notice, we mean that

they were entitled to notice of their right to challenge the condemnation at the same

time they were provided with the notice to vacate the premises.

B. Was the tenants’ right clearly established at the time of eviction?

Because the facts alleged by the plaintiffs show that Rhodes’ conduct violated

the plaintiffs’ due process rights under the Fourteenth Amendment, we now turn to

the second Saucier inquiry and ask whether the law at the time of eviction made clear

to a reasonable code enforcement officer that Rhodes’ conduct was unlawful. We

conclude that a reasonable code enforcement officer could have believed that Rhodes’

conduct was lawful, and therefore Rhodes was entitled to qualified immunity. In the

simplest terms, this decision is compelled by West Covina. In light of the Supreme

Court’s decision in West Covina, a reasonable code enforcement officer could readily

have concluded that Rhodes was under no obligation to provide notice, pre-

deprivation or otherwise, of the tenants’ right to challenge the condemnation decision

because the remedial procedure available to the tenants was established by a

published, generally available source, § 30A.11 of the City Code.

The plaintiffs make several arguments to support the claim that their right to

notice was clearly established. They cite Memphis Light for the proposition that

Rhodes had an affirmative obligation at the time of eviction to inform the tenants of

41
their right to challenge the condemnation decision, but we addressed and rejected this

argument, based on West Covina, in Part A. They also rely on Fuentes v. Shevin, 407

U.S. 67, 92 S. Ct. 1983 (1972), and Barry v. Barchi, 443 U.S. 55, 99 S. Ct. 2642

(1979), to contend that they were at least entitled to immediate post-deprivation

notice of their right to contest the condemnation. This might very well be true, but

these decisions have no bearing on the fact that, under West Covina, a reasonable

code enforcement officer could believe that § 30A.11 of the City Code provided the

tenants with constitutionally-adequate notice prior to the deprivation and thus

complied with Fuentes and Barry.

Finally, the plaintiffs point us to Flatford v. City of Monroe, 17 F.3d 162 (6th

Cir. 1994), a Sixth Circuit decision that addressed procedural due process

requirements in the context of an emergency eviction. Obviously, a Sixth Circuit

decision cannot clearly establish the law in this circuit. Marsh v. Butler County, Ala.,

268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc). The plaintiffs acknowledge that

Flatford cannot establish the law, but they argue that Flatford is “persuasive” because

the Sixth Circuit’s reasoning in Flatford was based entirely on the Supreme Court’s

opinions in Fuentes and Mathews. We reject the plaintiffs’ reliance on Flatford.

Although Flatford dealt with due process in the context of an exigent circumstances

eviction, that decision did not consider how statutory notice might affect the

42
obligations of a code enforcement officer under the Constitution. The Supreme Court

decisions upon which the plaintiffs contend Flatford relies do not address the effect

of statutory notice either. In fact, the Flatford decision predated the Supreme Court’s

decision in West Covina by five years, and as a consequence, the Sixth Circuit’s

decision in 1994 does not disturb our conclusion that a reasonable code enforcement

official could conclude, based on West Covina, that the City Code on its own

provided constitutionally-adequate notice of the tenants’ right to challenge the

condemnation decision.

The dissent suggests that Rhodes should have known that any appeal brought

by the tenants under § 30A.11 would have been futile. We disagree, and we explain

our reasoning in some detail. Under the Orlando City Code, the Board has the power

to “[h]ear appeals of any person affected by a notice issued in connection with

enforcement of . . . [the] Minimum Standards Code.” Orlando, Fla. City Code §

5.06(7). Affected persons who wish to pursue an appeal before the Board are

instructed to “explain the basis of the challenge to the administrative determination

or act” in their notice of appeal. Id. Thus, § 5.06(7) contemplates that the Board can

hear appeals challenging administrative determinations, and Rhodes’ issuance of a

notice to vacate triggers the right to such an appeal under § 30A.11. There is no

43
doubt then that the Orlando City Code, on its face, empowers the Board to consider

the tenants’ challenge to Rhodes’ condemnation order.

But the dissent concludes that the Board does not have the power to review or

to reverse Rhodes’ unilateral condemnation decision notwithstanding the provisions

of §§ 5.06 and 30A.11. In support of this conclusion, the dissent cites Fla. Stat. §

162.08, which states that code enforcement boards may (1) adopt rules for the

conduct of their hearings, (2) subpoena alleged violators and witnesses, (3) subpoena

evidence, (4) take testimony under oath, and (5) “[i]ssue orders having the force of

law to command whatever steps are necessary to bring a violation into compliance.”

Fla. Stat. § 162.08. This statute, the dissent argues, does not authorize a code

enforcement board to review or to reverse a city’s condemnation decision. We

believe this reading of § 162.08 may be too narrow.

The City Code is violated when individuals are permitted to occupy any

premises or dwelling units that contain “major violations” of the Code. Orlando, Fla.

City Code § 30A.21. Rhodes found that Lafayette Square contained major violations

of the Code, and he concluded that condemnation was the only appropriate

mechanism to ensure compliance with the Code. In bringing their appeal, the tenants

merely asked the Board to reconsider whether condemnation was the appropriate

measure to address the violations at Lafayette Square. If the Board ultimately were

44
to disagree with Rhodes’ condemnation decision, it would appear that the Board

would be called upon to issue an order that would command those steps (which would

not include condemnation) that the Board deemed necessary to bring the violations

at Lafayette Square into compliance. Such an order, while having the practical effect

of reversing Rhodes’ condemnation decision, would appear to fall squarely within the

Board’s power under Fla. Stat. § 162.08(5).

Thus, a fair argument could be made that the Board does have the power to

review and to reverse Rhodes’ condemnation decision. (Notably, § 162 of the Florida

statutes does not appear to contemplate that a city code enforcement officer like

Rhodes may be vested with the unilateral power to condemn a building. See Fla. Stat.

§ 162.06(4).) But the dissent’s competing view is well-taken, and it might well be

true that the Board lacks the power to review Rhodes’ unilateral condemnation order

under § 162.08. But that question is not before us today. Instead, we are called upon

to decide whether an objectively reasonable officer should have known in June 2000

that an appeal under § 30A.11 would be futile. This is an easier question, we believe,

and we decide it in Rhodes’ favor. The City Code explicitly entitles the tenants to

challenge Rhodes’ administrative decision in an appeal. The Florida statute, by

contrast, does not explicitly authorize a Board to review or to reverse Rhodes’

decision, but it does empower the Board to issue an order having the force of law to

45
achieve compliance through whatever steps the Board deems necessary. In light of

the clear right to an appeal established in the Orlando City Code and the possibility

that the Board’s exercise of review power falls within its statutory authority, it would

not have been self-evident to an objectively reasonable officer in Rhodes’ position

that the explicit right of appeal established in the City Code is illusory.

In reaching the opposite conclusion, the dissent relies extensively on Rhodes’

training and experience. But this training and experience could not come to his aid.

Although Rhodes has substantial experience in city government, has specific training

in due process, and has condemned over 400 buildings (including at least three

apartment complexes), the Board had never been asked to review one of Rhodes’

unilateral condemnation decisions pursuant to § 30A.11. The dissent admits as much,

but inexplicably goes on to conclude that Rhodes’ extensive experience could

somehow have helped him predict the Board’s interpretation of its powers.

The dissent also paints a stark, and quite inadequate, picture of the Board’s

understanding of its authority. Relying on the deposition testimony of the Board’s

chairman and select excerpts of testimony from the two Board hearings in this case,

the dissent implies that the entire Board believed that it lacked the power to review

or to reverse Rhodes’ decision. This characterization of the Board’s understanding

is inaccurate.

46
 The dissent states that the Board understood at the July 12 hearing that it could

only make a determination regarding code compliance. This is true, but not because

the Board lacked the power to review Rhodes’ condemnation decision. The Board’s

power was limited to evaluating code compliance at the July 12 hearing because the

Board was hearing Rhodes’ case against the owner of Lafayette Square, not the

tenants’ appeal. Accordingly, the statement regarding the Board’s limited power did

not necessarily reflect its understanding of its authority to review Rhodes’ order.

The dissent then suggests that the July 26 hearing was called as a courtesy,

arranged for the sake of good manners, to allow the tenants a venting session to

express their feelings. This statement implies that the Board understood, at that

hearing, that it could not review or reverse the condemnation order. But the transcript

of the hearing does not bear this out. At the hearing, a member of the Board asked

the City Attorney to frame the issues that the Board needed to decide. The City

Attorney testified, “This Board can have a hearing on whether it was – at least what

I understood, whether it’s appropriate for the people to have been required to move

and whether they should be allowed to move back in . . . . Now, there may be other

issues the tenants would like to present to this Board, but to me – I assume the thrust

of this would be the City made a mistake in asking us to leave, the building was safe,

let us go back.” (Tr. of Board Hr’g of July 26, 2000, at 26.) This statement, made by

47
the City Attorney in direct response to the Board’s inquiry about the nature of the

hearing, clearly calls into question the dissent’s suggestion that the Board’s conduct

at the July 26 hearing is indicative of its belief that it could not review Rhodes’

decision.

Later in the hearing, Cato, on behalf of the plaintiffs, asked the City to reverse

the condemnation decision and require reinspection of every apartment. This request

prompted the Board chairman to ask, “[I]f we reverse the decision and the order what

are we accomplishing?” (Id. at 49.) Another member of the Board stated, “[W]hat

they’re asking us to do is reverse our decision, which I, as one member, am not

willing to do.” (Id. at 52; emphasis added.) And another member said, “[I]f we

reverse the decision and require the City to go out and inspect, can we still keep the

order intact that nobody is allowed to move back into those properties?” (Id. at 54.)

These questions hardly suggest that the Board was steadfast in its collective belief

that it had no authority to reverse Rhodes’ decision; on the contrary, several members

of the Board appeared to have no qualms with reviewing the condemnation decision,

although they expressed their belief that the condemnation decision was appropriate.

After Cato and the plaintiffs testified before the Board, one of the members of

the Board suggested that the Board should not disturb the condemnation order, but

should require the City to reinspect the units at Lafayette Square and then have the

48
Board reconsider the matter. The Board chairman responded that the Board could

request, but could not require, the City to reinspect the apartments because the

Board’s “primary purpose” was to evaluate compliance with the Code. (Id. at 105.)

Although this statement hints at the boundaries of the Board’s power, the chairman

did not suggest that the Board lacked the power to reverse the condemnation decision

at that time. The July 26 hearing concluded with at least three members of the Board

stating, on the record, that the condemnation decision was appropriate, and with two

of the six members voting in favor of a motion that would have acknowledged the

City’s promise to reinspect the complex with an expert selected by the tenants.

In summary, we believe that the dissent oversimplifies this issue, and in doing

so, fails to appreciate the genuine uncertainty that surrounded the Board’s review

power at the time Rhodes condemned the complex. This case represents the first time

that the Board was called upon under § 30A.11 to review a unilateral condemnation

order. To the extent that the City Code and the Florida statute conflict – which we

do not decide today – it was impossible for Rhodes to know, even with his significant

experience, how this conflict would be reconciled. The dissent observes that the

Board “floundered” at the July 26 hearing; it would be more accurate to say that

neither the Board nor the City Attorney suggested during either hearing that the

Board lacked the power to reverse Rhodes’ condemnation decision. This perceived

49
limitation on the Board’s power was crystallized for the first time in the Board

chairman’s deposition testimony almost one year after Rhodes condemned the

complex. Our review of the record indicates that it was not self-evident to the Board

during the hearings that it lacked the authority to review Rhodes’ condemnation

order; thus, it is inappropriate to suggest that it would have been self-evident to a

reasonable code enforcement officer several weeks earlier.

The plaintiffs have failed to demonstrate that a reasonable code enforcement

officer would have believed that Rhodes’ conduct was unlawful. At the time of

eviction in June 2000, a reasonable code enforcement officer could reasonably have

concluded, in light of West Covina, that § 30A.11 of the Orlando City Code, a

publicly available document, placed the tenants on notice of their right to challenge

Rhodes’ condemnation decision.20 Although we conclude in Part A that this case is

20
In the dissent’s view, West Covina “sails alone.” But West Covina is not an aberrant
decision from a prior era that has not been formally overruled. Nor is it a decision that clearly
ignored relevant precedent in reaching a conclusion at odds with established law. Rather, West
Covina is the most recent Supreme Court due process opinion that addresses the constitutional
adequacy of statutory notice, and the West Covina Court, cognizant of its decision in Memphis Light,
took care to reconcile its decision with Memphis Light. While the dissent characterizes West Covina
as marginal and anomalous, such a characterization is premature. West Covina might prove to be
marginal and anomalous, as the dissent suggests. Or, if West Covina represents the departure from
prior law described by the dissent, it may signal the first step in a paradigm shift in due process
jurisprudence. Or it might, as we suggest, reflect nothing more than the extension of the principle
applied by the Supreme Court in Reetz almost a century ago. Only time will tell. But for the
purposes of this appeal, the only time that matters is June 29, 2000, when Rhodes ordered the
condemnation in this case. At that time, in light of the Supreme Court’s recent decision in West
Covina, a reasonable code enforcement officer could have believed that statutory notice was
constitutionally sufficient.

50
distinguishable from West Covina and warrants a different outcome, we cannot say

that a reasonable code enforcement officer would have believed in June 2000 that the

law clearly entitled the plaintiffs to notice above and beyond that already provided

in § 30A.11 of the City Code.

IV. CONCLUSION

We hold that the district court erred when it concluded that Rhodes was not

entitled to qualified immunity as to the plaintiffs’ post-deprivation due process

claims. Accordingly, we REVERSE the district court’s order to the extent that it

denied Rhodes’ claim of qualified immunity.

REVERSED.

51
BIRCH, Circuit Judge, concurring in part and dissenting in part:

I wholeheartedly agree with the majority’s conclusion that the tenants in this

case have alleged a violation of their constitutional right to contemporaneous and

personal notice of a right to appeal their evictions. I write separately because I

disagree with its wholesale rejection of the Supreme Court’s decision in Memphis

Light, as well as the decision to grant qualified immunity.

The majority conclude that a government official could not have reasonably

known that the summary condemnation of property and subsequent eviction of its

residents without providing them personal notice of their right to challenge the

decision was unconstitutional. A reasonable code enforcement officer, they argue,

could have readily concluded that such notice was not required “because the remedial

procedure available to the tenants was established by a published, generally available

source, § 30A.11 of the City Code.” Maj. Op. at ___. Section 30A.11 provides that

“[a]ny person affected by any notice which has been issued in connection with the

enforcement of any provision of this Code . . . may request and shall be granted a

hearing on the matter before the Code Enforcement Board [(“Board”)].” Though

facially appealing, the predicate for the majority’s conclusion unravels upon closer

inspection.

52
 In simplest terms, the futility of any appeal afforded by § 30A.11 would have

been self-evident to any reasonable code enforcement officer in Rhodes’s position.

It is clear that the Board has authority to condemn and vacate buildings. See Orlando,

Fla., Code § 30A.42. The City Code does not, however, grant the Board authority to

reverse, on appeal, an independent condemnation decision made by the City.1

Notwithstanding § 30A.11, the Board’s jurisdiction is limited to “affording the proper

relief consistent with the powers granted by Florida Statute and by this Chapter.” Id.,

§ 5.05(g). The Florida legislature, however, only empowers local enforcement

boards, in pertinent part, to “[i]ssue orders having the force of law to command

whatever steps are necessary to bring a violation into compliance,” Fla. Stat. Ann. §

162.08(5) (2003), and not, for example, to review a city’s unilateral condemnation

order.2

That limited jurisidiction is substantiated by the Board’s own understanding

of its role in the code enforcement process. As clarified by the testimony of its

chairman, Mr. Kuritzky, the Board is limited to the adjudication of the property

1
Such decisions are made pursuant to §§ 30A.42 (“Procedure for Vacating of Structures or
Premises”), 30A.45 (“Procedure for Emergency City Action”), or 30A.38 (“Public Nuisances”).
2
Under § 5.08, “[a]n aggrieved party . . . may appeal a final administrative order of the
[Board] to the Circuit Court.” Obviously, if the Board has no authority to reverse a city’s
condemnation decision, there is nothing to challenge on appeal. In addition, § 5.08 uses the term
“party” instead of “person affected,” as § 30A.11 does. While evicted tenants are certainly affected
by a condemnation decision, they are not an “aggrieved party.” See Kuritzky Dep. 29:13-15.

53
owner’s guilt or innocence on alleged code violations, and has no authority to reverse

a city official’s condemnation order. There is simply no way for an evicted tenant to

challenge such an order through Board action.3 As such, the Board has no obligation

to hear from evicted tenants, and the hearing provided to the tenants in this case was

a mere “courtesy.” The Board’s own conduct during those hearings suggests as

much. When some of the tenants petitioned the Board to defer its ruling at the first

scheduled hearing until all tenants were given an opportunity to speak Mr. Kuritzky

told them that the Board could “only make a determination whether or not the

property is or is not in compliance with the code.” 12 July Hr’g Tr. at 49:21-25. At

the second hearing called, Mr. Kuritzky again stated “all [the Board] can do is

determine if there is non-compliance.” 26 July Hr’g Tr. at 46:12-13. In fact, the

second hearing was called, not to take action, but merely for the sake of good

manners, “to allow the tenants . . . to express their feelings and observations,” Id. at

3:15-19. Board members floundered at this meeting, finding it difficult to

comprehend what relief could be afforded or even what the issue before them was.

A venting session is no substitute for a meaningful opportunity to be heard,

something the tenants were never afforded in this case. Without effective review, the

3
Likewise, the City provides no appeals process to review its own condemnation decisions.
Grandin Dep. 18:1-3 (City of Orlando, Director of Planning and Development).

54
City’s summary condemnation order was de jure final and unappealable, and

therefore constitutionally inadequate. In turn, statutory notice of the Board’s

impotence in this regard is similarly unsatisfactory, for notice of an ineffectual

opportunity to be heard is no notice at all.

Rhodes must have known this, as any code enforcement officer with his

training and experience would have. At the time of the eviction notices, he had

substantial experience at high levels of city government, and specific training in the

mandates of due process. He was Chief of the Code Enforcement Bureau, and the

official to whom the City delegated the important responsibility of declaring

dangerous structures uninhabitable. Over the years serving as the chief executive

officer of his division, he had condemned over 400 buildings. Indeed, he testified in

his deposition that he does not “ordinarily seek a condemnation order from the

[B]oard,” Rhodes Dep. 122:7-8, that in the three prior apartment condemnation

cases, the Board never reviewed his condemnation decisions, and that such a decision

becomes a Board case only “[w]hen the property owner fails to comply with the

original compliance schedule.” Rhodes Dep. 77:20-78:2. That the highest official

in a city’s building safety department could have reasonably concluded that statutory

notice of a sterile opportunity to be heard was constitutionally sufficient stretches the

imagination to an untenable degree. In light of these inferences, we should have

55
affirmed the denial of qualified immunity; at most, we should have remanded for fact

finding on this issue.

Equally troubling is the majority’s out-of-hand rejection of the principles and

clear import of the holding articulated by the Supreme Court in Memphis Light. It

is beyond question that the constitutional right to notice and an opportunity to be

heard before a person is finally deprived of property by government action is clearly

established. Mullane, 339 U.S. at 313, 70 S. Ct. at 656-57. Without relying on

Memphis Light, however, the majority distill a further due process requirement:

“[w]hen exigent circumstances prompt an emergency eviction, contemporaneous pre-

deprivation notice is required,” such that “tenants must receive notice of their right

to challenge the condemnation decision when they are provided with the notice to

vacate the building.” Maj. Op. at ___. In doing so, they distinguish the questions

whether and when such notice must be provided, from the method of delivering that

notice, whether it be statutory or personal.

The general right to contemporaneous notice was articulated in Memphis Light

with such clarity that a reasonable official would have realized that the tenants here

were entitled to this type of notice. After all, if the rule applies to basic necessities

in the home such as utilities, a fortiori, it clearly applies to the right to occupy a home

in the first place. At a minimum, then, Memphis Light clearly establishes that

56
contemporaneous notice of the right to appeal is constitutionally required before

tenants may be evicted from their homes without warning.4

4
Cases from other circuits also make this proposition abundantly clear. It is true that thus
far we look only to our own precedent and the decisions of the United States Supreme Court and the
supreme court of the relevant state in this Circuit to determine whether law is clearly established.
See Marsh v. Butler County, Ala., 268 F.3d 1014, 1031 n.9 (11th Cir. 2001) (en banc). Language
in a number of fairly recent Supreme Court opinions, however, has signaled a different approach.
See, e.g., Hope, 536 U.S. at 747 n.13, 122 S. Ct. at 2519 n.13 (2002) (noting in its qualified
immunity analysis that there were “apparently no decisions on similar facts from other Circuits”);
Wilson v. Layne, 526 U.S. 603, 617, 119 S. Ct. 1692, 1700 (1999) (refusing to find that “the law on
third-party entry into homes” was clearly established, in part because no cases either in the relevant
jurisdiction or from “a consensus of cases of persuasive authority” had been presented); United
States v. Lanier, 520 U.S. 259, 269, 117 S. Ct. 1219, 1226-27 (1997) (observing that, although
“disparate decisions in various Circuits might leave the law insufficiently certain even on a point
widely considered, such a circumstance may be taken into account in deciding whether the warning
[to government officials] is fair enough”); Id. at 269, 117 S. Ct. at 1226 (stating that when “applying
the rule of qualified immunity,” the Court has “referred to decisions of the Courts of Appeals when
enquiring whether a right was ‘clearly established’”) (emphasis added); Elder v. Holloway, 510 U.S.
510, 516, 114 S. Ct. 1019, 1023 (1994) (counseling a lower court to “use its ‘full knowledge of its
own [and other relevant] precedents’” in a qualified immunity analysis) (alteration in original)
(emphasis added) (citation omitted); Anderson v. Creighton, 483 U.S. 635, 646, 107 S. Ct. 3034,
3042 (1987) (referring to “current American law” when describing reasonableness for qualified
immunity purposes) (emphasis added).

Under “current American law,” the rule in Memphis Light is unmistakable. Sister courts
have held that those summarily evicted through condemnation procedures are entitled to
contemporaneous notice of their right to appeal. See, e.g., Flatford v. City of Monroe, 17 F.3d 162,
169 (6th Cir. 1994); McGee v. Bauer, 956 F.2d 730, 737-38 (7th Cir. 1992); Wilson v. Health &
Hosp. Corp., 620 F.2d 1201, 1214-15 (7th Cir. 1980) (“hav[ing] little difficulty in finding that
Mullane and the due process clause require personal notice of the individual’s right to a hearing prior
to the government’s depriving the individual of any property interest, notwithstanding the ‘notice’
provided by the public character of the ordinance itself. . . . [W]e do not believe it is adequate for
the government simply to rely upon the time worn adage that ‘ignorance of the law is no excuse.’”).

Persons deprived of other forms of property are also frequently entitled to such notice. For
cases requiring notice of the right to appeal a denial of statutory benefits, see, e.g., Sullivan v.
Barnett, 139 F.3d 158, 173 (3d Cir. 1998), rev’d on other grounds, 526 U.S. 40 (1999) (suspension
of employee medical benefits); Davis v. Mansfield Metro. Hous. Auth., 751 F.2d 180, 185 (6th Cir.
1984) (denial of eligibility for Section 8 housing program); Holbrook v. Pitt, 643 F.2d 1261, 1280-81
(7th Cir. 1981) (denial of retroactive housing assistance payments); Bliek v. Palmer, 102 F.3d 1472,

57
 But the majority also reject Memphis Light as clearly establishing that personal

notice of such a right is also compelled by due process, and this is the basis for their

decision to grant qualified immunity. For support, they refer to the Supreme Court’s

recent conclusion that owners of property seized in the course of a criminal

investigation have no constitutional right to “individualized notice of state-law

remedies” to contest the seizure, or procedures to petition for the return of property,

if those remedies and procedures “are established by published, generally available

state statutes and case law.” West Covina, 525 U.S. at 241, 119 S. Ct. at 682. The

Court distinguished Memphis Light because “the administrative procedures at issue

[there] were not described in any publicly available document.” Id. at 242, 119 S. Ct.

at 682.5

1476 (8th Cir. 1997) (reduction of food stamp benefits to cover prior overissuances); Gonzalez v.
Sullivan, 914 F.2d 1197, 1203 (9th Cir. 1990) (denial of disability benefits); Jordan v. Benefits
Review Bd. of the U.S. Dep’t of Labor, 876 F.2d 1455, 1459-60 (11th Cir. 1989) (denial of black
lung benefits). For cases requiring notice of possible exemptions to postjudgment seizures and the
procedures for claiming them, see, e.g., Dionne v. Bouley, 757 F.2d 1344, 1352 (1st Cir. 1985);
McCahey v. L.P. Investors, 774 F.2d 543, 549 (2d Cir. 1985); Finberg v. Sullivan, 634 F.2d 50, 62
(3d Cir. 1980); Cinea v. Certo, 84 F.3d 117, 122 (3d Cir. 1996); Reigh v. Schleigh, 784 F.2d 1191,
1196 (4th Cir. 1986); Aacen v. San Juan County Sheriff’s Dep’t, 944 F.2d 691, 699 (10th Cir. 1991).
For cases requiring notice of the right to challenge other types of seizures, see, e.g., Anderson v.
White, 888 F.2d 985, 992 (3d Cir. 1989) (interception of federal tax refunds to cover child support
delinquencies); DiCesare v. Stuart, 12 F.3d 973, 978 (10th Cir. 1993) (seizure of sick horses by
county official); but see Ramirez-Osorio v. INS, 745 F.2d 937, 945-46 (5th Cir. 1984) (Due process
does not require blanket notice by the INS to deportable detainees of the right to seek asylum.).
5
The distinction’s legitimacy is hardly indisputable. The Court in Memphis Light did note
that “the opportunity to invoke [a dispute resolution] procedure, if it existed at all, depended on the
vagaries of ‘word of mouth referral.’” 436 U.S. at 14 n.14, 98 S. Ct. at 1563 n.14. It did so,

58
 Seizing upon this questionable distinction, my esteemed colleagues view West

Covina as the culmination of a century-old line of cases standing for the proposition

that “a publicly available statute may be sufficient to provide . . . notice because

individuals are presumptively charged with knowledge of such a statute.” Maj. Op.

at ___. This, they argue, “provides the basis for a compelling argument that § 30A.11

of the Orlando City Code, standing alone, provides [sufficient] notice to the tenants

of their right to challenge the condemnation order and thus satisfies due process.”

Maj. Op. at ___.

The argument creates only the illusion of consistency, however. The cases

cited by the majority exclusively address self-executing statutes of limitations on

abandoned claims, or other generally applicable legislative enactments. They do not

however, in the course of determining whether the plaintiffs had actual notice of those procedures.
Id. at 13-14, 98 S. Ct. at 1562-63. That threshold finding was important because “the Due Process
Clause does not require notice where those claiming an entitlement to notice already knew the
matters of which they might be notified.” Moreau v. Fed. Energy Regulatory Comm’n, 982 F.2d
556, 569 (D.C. Cir. 1993); accord EEOC v. Pan American World Airways, Inc., 897 F.2d 1499, 1508
(9th Cir. 1990) (“Actual knowledge of the pendency of an action removes any due process concerns
about notice of the litigation.”); Crocker v. Fluvanna County Va. Bd. of Pub. Welfare, 859 F.2d 14,
16 (4th Cir. 1988) (concluding that failure of a government employer to inform discharged employee
of grievance rights where employee had actual knowledge of them did not violate due process); cf.
Codd v. Velger, 429 U.S. 624, 627-28, 97 S. Ct. 882, 884 (1977) (holding that a name-clearing
hearing, ordinarily required for an employee stigmatized by discharge, is not required where the
employee “does not challenge the substantial truth of the material in question”). Had there been
actual notice, the Court would not have needed to decide whether the notice provided was
constitutionally inadequate. The distinction in Memphis Light therefore had nothing to do with the
subsequent determination that the utility company had, in fact, violated the Due Process Clause.

59
address deprivations triggered by specific, individualized state action such as the

condemnation order in this case.6 The distinction is made even clearer in Texaco:

[A] series of cases . . . have required specific notice . . . before a driver’s
license is suspended for failure to post security after an accident, before
property is seized pursuant to a prejudgment replevin order, or before
service is terminated by a public utility for failure to tender payment of
amounts due [Memphis Light]. In each of those cases, however, the
property interest was taken only after a specific determination that the
deprivation was proper. In the instant case, the State of Indiana has
enacted a rule of law uniformly affecting all citizens that establishes the
circumstances in which a property interest will lapse through the
inaction of its owner.

6
See, e.g., Atkins, 472 U.S. at 129, 105 S. Ct. at 2528-29 (concluding that a congressional
modification to the food-stamp program is not subject to procedural due process because it “does
not concern the procedural fairness of individual eligibility determinations[, but r]ather . . . involves
a legislatively mandated substantive change in the scope of the entire program”) (emphasis added);
Locke, 471 U.S. at 108, 105 S. Ct. at 1799-1800 (upholding a federal statute because it adequately
notified claimants of actions necessary to avoid abandonment of a mining claim. “In altering
substantive rights through enactment of rules of general applicability, a legislature generally
provides constitutionally adequate process simply by enacting the statute, publishing it, and . . .
affording those within the statute’s reach a reasonable opportunity both to familiarize themselves
with the general requirements imposed and to comply with those requirements.”) (emphasis added);
Texaco, 454 U.S. at 523, 538, 102 S. Ct. at 789, 797 (upholding statutory return of abandoned
mineral interests to the owner of the surface rights without prior notice and opportunity to be heard);
Anderson Nat’l Bank v. Luckett, 321 U.S. 233, 241, 243-44, 64 S. Ct. 599, 604-05 (1944)
(upholding statute requiring banks to transfer funds from all inactive and unclaimed deposits to the
state without personal notice to depositors); North Laramie Land Co., 268 U.S. at 283, 45 S. Ct. at
494 (upholding statutory notice of time to file objections to, and a claim for damages from, a
legislative decision by a board of county commissioners to construct a new road in part because
“[s]uch statutes are universally in force and are general in their application”) (emphases added);
Reetz, 188 U.S. at 509, 23 S. Ct. at 392 (upholding as sufficient notice a “statute fix[ing] the time
and place of meeting of” a board of registration at which an applicant to practice medicine could
have requested an ex ante hearing prior to any board action on the application, but not addressing
in any way the statute’s failure to afford notice of an applicant’s right to challenge ex post the board’s
decision in any given case).

60
454 U.S. at 536-37, 102 S. Ct. at 796 (footnotes omitted) (emphasis added). Thus,

where a deprivation is not the result of an individualized judicial or quasi-judicial

determination, “[t]he Due Process Clause does not require a defendant to notify a

potential plaintiff that a statute of limitations is about to run.” Id. at 536, 102 S. Ct.

at 796. “The words ‘after notice and . . . hearing’ . . . connote a hearing appropriate

to adjudicatory action, not to legislation or rule making.” Philadelphia Co. v. S.E.C.,

175 F.2d 808, 818 (D.C. Cir. 1948), vacated as moot, 337 U.S. 901, 69 S. Ct. 1047

(1949) (mem.). In short, “a self-executing statute of limitations is [not]

unconstitutional.” Texaco, 454 U.S. at 536, 102 S. Ct. at 796.

However, like the seizure in West Covina, the condemnation order here was

not self-executing by virtue of the tenants’s failure to act. It was not the result of a

“rule of law uniformly affecting all citizens.” Id. at 537, 102 S. Ct. at 796. It arose

instead from an individualized, specific, and quasi-judicial agency determination by

Rhodes that the living conditions of the condemned dwellings were dangerous to

human health and potentially life-threatening. West Covina and the case here,

therefore, sit uneasily with the statute-of-limitations-cases on which the majority rely.

Instead, they fall more comfortably under the rubric that personal notice is required

where a deprivation is triggered by some case-specific government action.

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 This fundamental requirement was clearly enunciated over fifty years ago in

Mullane. The statute there authorized the establishment of common trust funds and

provided “for accountings twelve to fifteen months after the establishment of a fund

and triennially thereafter.” Mullane, 339 U.S. at 308-09, 70 S. Ct. at 654-55. Thus,

the beneficiaries of the trust, like “[t]he tenants in this case, . . . could have turned to

[the statute] to learn of their right[s],” Maj. Op. at ___, concerning the impending

judicial settlement of their trust accounts. Yet, the Court deemed this minimalist

approach incompatible with due process. 339 U.S. at 320, 70 S. Ct. at 660. The

Court held that, for those beneficiaries whose individual whereabouts were known,

personal notice was required. 339 U.S. at 318, 70 S. Ct. at 659.

[W]hen notice is a person’s due, process which is a mere gesture is not
due process. The means employed must be such as one desirous of
actually informing the absentee might reasonably adopt to accomplish
it . . . , [and], where conditions do not reasonably permit such notice, .
. . the form chosen [must] not [be] substantially less likely to bring home
notice than other of the feasible and customary substitutes.

Id. at 315, 70 S. Ct. at 657-58. “Certainly sending [the beneficiaries] a copy of the

statute months and perhaps years in advance does not answer this purpose.” Id. at

318, 70 S. Ct. at 659. If mailing the statute is insufficient, then obviously notice

under the statute itself, without more, also shrinks under the unwavering gaze of due

process scrutiny.

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 A little more than a decade later in Schroeder v. City of New York, 371 U.S.

208, 83 S. Ct. 279 (1962), the Court applied Mullane to a nonclaim statute of

limitations and found statutory notice wanting. The statute in that case authorized

government acquisition and diversion of certain river waters. It required notice by

publication and posting only, and provided a three-year limitations period within

which a property owner could claim damages from the diversion. Id. at 209-10, 83

S. Ct. at 280-81. “Neither the newspaper publications nor the posted notices

explained what action a property owner might take to recover for damages caused by

the city’s acquisition, nor did they intimate any time limit upon the filing of a claim

by an affected property owner.” Id. at 210, 83 S. Ct. at 281.

The Court rejected these forms of notice, acknowledging “[t]he general rule

that emerges from the Mullane case . . . that notice by publication is not enough with

respect to a person whose name and address are known or very easily ascertainable

and whose legally protected interests are directly affected by the proceedings in

question.” Id. at 212-13, 83 S. Ct. at 282. Even if the property owner had

constructive notice, the Court said, it “is far short of notice . . . that the appellant had

a right to be heard on a claim for compensation for damages . . . . That was the

information which the city was constitutionally obliged to make at least a good faith

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effort to give personally to the” property owner. Id. at 213-14, 83 S. Ct. at 283

(emphasis added) (footnote omitted).

The ensuing decisions in Tulsa Professional Collection Services, Inc. v. Pope,

485 U.S. 478, 108 S. Ct. 1340 (1988), and Mennonite Board of Missions v. Adams,

462 U.S. 791, 103 S. Ct. 2706 (1983), are also instructive. In Mennonite, the Court

held that due process requires personal notice to the recorded mortgagee of a

proceeding to sell secured property at public auction for nonpayment of taxes. 462

U.S. at 798, 103 S. Ct. at 2711. The statute at issue explained the procedures for

holding the tax sale, as well as the procedures by which the mortgagee could redeem

the property within two years of the sale. In rejecting the statutory notice provisions,

the Court stated that it “ha[d] adhered unwaiveringly to the principle announced in

Mullane.” Id. at 797, 103 S. Ct. at 2710-11 (citing, inter alia, Memphis Light, 436

U.S. at 13-15, 98 S. Ct. at 1562-63). Noting that the case was “controlled by the

analysis in Mullane,” the Court articulated the applicable standard: “Notice by mail

or other means as certain to ensure actual notice is a minimum constitutional

precondition to a proceeding which will adversely affect the liberty or property

interests of any party, whether unlettered or well versed in commercial practice, if its

name and address are reasonably ascertainable.” Id. at 798, 800, 103 S. Ct. at 2711,

2712.

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 At issue in Tulsa was another nonclaim statute extinguishing all creditor claims

against an estate if they were not brought within two months of the commencement

of probate proceedings. The statute provided for notice through publication only. Id.

at 479, 108 S. Ct. at 1342. In holding that the statute violated the creditors’s due

process rights, the Supreme Court acknowledged that “the State’s involvement in the

mere running of a general statute of limitations generally [is in]sufficient to implicate

due process.” Id. at 485-86, 108 S. Ct. at 1345. Yet, it found that the probate court’s

“involvement [in triggering the limitations period wa]s so pervasive and substantial

that it must be considered state action,” id. at 487, 108 S. Ct. at 1346, in contrast to

the “‘self-executing feature’ of a statute of limitations.” Id. at 486, 108 S. Ct. at 1345.

As such, due process rights applied, and where a creditor was “known or ‘reasonably

ascertainable,’” personal notice by mail was required. Id. at 488, 491, 108 S. Ct. at

1346, 1348 (citing Mennonite and Memphis Light).

There is a common thread running through all these cases. With limited

exceptions such as abandonment, impossibility, or other measures likely to impart

actual notice, personal notice is required when a deprivation is threatened by specific

state action in individual cases. Notice by statute under these circumstances is

inadequate, even if, at first glance, it appears to be a nonclaim statute of limitations.

The principle applies with substantial force where a summary deprivation has already

65
occurred, or there is a high risk of an erroneous determination and the cost of

notifying interested parties is relatively low. “[P]articularly extensive efforts to

provide notice may often be required when the State is aware of a party’s

inexperience or incompetence.” Mennonite, 462 U.S. at 799, 103 S. Ct. at 2712

(citing Memphis Light, 436 U.S. at 13-15, 98 S. Ct. at 1562-64).7

The decision in West Covina sails alone in these waters. It floats adrift from

any legal flotilla, tethered neither to the rule of personal notice forged in Mullane,

Schroeder, Memphis Light, Mennonite, and Tulsa, nor to the principle developed in

Reetz and its progeny exempting laws of general applicability from the dictates of due

process. This alienation is explained by the notable differences between it and other

due process cases. For example, the Court found it important in West Covina that

“neither the Federal Government nor any State requires officers to provide

individualized notice of the procedures for seeking return of seized property.” 525

7
As the majority point out, whether the content of the notice at issue is the right to challenge
a deprivation or the potential deprivation itself “makes no difference.” Maj. Op. at ___. Just as the
opportunity to defend substantial rights and interests that are to be adjudicated in an impending
hearing is wasted if the defendant is not made aware of it, so is the opportunity to challenge a
deprivation if the challenger is unaware of the ability, and the procedures by which, to do so. In this
respect, due process applies whether adjudication is used as a sword or a shield. See Tulsa, 485 U.S.
at 488, 108 S. Ct. at 1346 (observing that whether “notice [of an impending probate court
proceeding] seeks only to advise creditors that they may become parties rather than that they are
parties [is irrelevant], for if they do not participate in the . . . proceedings, the nonclaim statute
terminates their property interests.”); Boddie v. Connecticut, 401 U.S. 371, 376-77, 91 S. Ct. 780,
785 (1971) (noting that “[r]esort to the judicial process by . . . plaintiffs is no more voluntary in a
realistic sense than that of the defendant called upon to defend his interests in court.”).

66
U.S. at 242-43, 119 S. Ct. at 682. By contrast, the vast majority of circuits have held

that persons deprived of property through civil government action are entitled to

personal notice of their right to appeal the deprivation.8 The distinctions between the

condemnation order of an administrative officer in the context of a civil code

violation and the seizure of property by police grappling with the inherent exigencies

of a criminal homicide investigation are stark indeed. Moreover, the sense of urgency

and confusion associated with the permanent and irretrievable loss of a person’s

home, land or other basic necessity, and the cardinal importance of intelligible

procedures designed to prevent unwarranted deprivations, did not exist in West

Covina. See 525 U.S. at 236, 119 S. Ct. at 679 (stating that the police seized mainly

small items of personal property including guns, ammunition and some cash).

Finally, there is no indication in that opinion that a failure by the property owners to

activate their state-law remedies would have resulted in a permanent deprivation of

the property seized as in these other cases.

In fact, the holding in West Covina applies only to the narrow context of a

search and seizure performed during routine criminal law enforcement. The decision

therefore restricts due process principles only insofar as it rejects a “general rule that

notice of remedies and procedures is required” for every deprivation. Id. at 242, 119

8
For case holdings, see infra note 4.

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S. Ct. at 682. We advance no such rule. Instead, we conclude the opposite: the

entitlement to such notice is not necessarily foreclosed merely because the remedies

and procedures are delineated in statutory form. See Maj. Op. at ___. As my

colleagues express so effectively, “[t]he law does not entertain the legal fiction that

every individual has achieved a state of legal omniscience,” or that every citizen

“know[s] all of the law all of the time.” Maj. Op. at ___. Indeed, low-income

tenants evicted from their homes without prior notice cannot be charged with

knowledge of narrow statutory procedures buried deep within city ordinances; under

those circumstances, they would have all the clarity of a byzantine cathedral.

In light of these differences, West Covina did not muddy otherwise clear

waters. Under the bright illumination of Supreme Court thought on due process and

constitutionally sufficient notice, West Covina pales. By comparison, it is marginal

and anomalous. A reasonable code enforcement officer with Rhodes’s rank and

experience would neither have been confused by it, nor would have relied on it.9

Instead, a responsible government official, acting rationally, would have looked to

the deeply ingrained case law springing from Mullane. The majority itself follow this

path in concluding that Rhodes had an affirmative constitutional obligation to provide

9
Interestingly, Rhodes failed to cite West Covina either to the district court or to us in his
briefs.

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tenants with contemporaneous and personal notice of their right to appeal his

condemnation decision. In doing so, they rely on the notice standard in Mullane, as

well as their “practical understanding of statutory notice”: “the residents of Lafayette

Square were provided with no more than thirty-six hours to vacate their homes, and

during this limited period of time, they had to complete a multitude of tasks, which

ranged from securing alternate shelter to collecting their personal belongings to

making accommodations for work or school.” Maj. Op. at ___. As such, they did not

have a reasonable opportunity to educate themselves on the niceties of their,

presumably efficacious, statutorily protected right of appeal. Maj. Op. at ___.

One could think that a high-ranking government official like Rhodes, who had

condemned over 400 buildings, would have understood this. Yet, somehow, the

majority finds this unclear.10

[S]ome broad statements of principle in case law are not tied to
particularized facts and can clearly establish law applicable in the future
to different sets of detailed facts. For example, if some authoritative
judicial decision decides a case by determining that “X Conduct” is
unconstitutional without tying that determination to a particularized set

10
The majority opinion rejects the factors in Memphis Light: that “the notice is given to
thousands of customers of various levels of education, experience, and resources” concerning a
deprivation of basic necessities “the uninterrupted continuity of which is essential to health and
safety.” 436 U.S. at 14 n.15, 98 S. Ct. at 1563 n.15. Ironically, the exigencies identified by the
majority in this case are important, in large part, because shelter is a basic necessity, the guarantee
of which is diminished by the relative lack of “education, experience, and resources” at the tenants’s
disposal.

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 of facts, the decision on “X Conduct” can be read as having clearly
established a constitutional principle.

Vinyard v. Wilson, 311 F.3d 1340, 1351 (11th Cir. 2002) (citation omitted). “[I]n the

absence of fact-specific case law, the plaintiff may overcome the qualified immunity

defense when the preexisting general constitutional rule applies ‘with obvious clarity

to the specific conduct in question.’” Id. at 1352 (quoting United States v. Lanier, 520

U.S. 259, 271, 117 S. Ct. 1219, 1227 (1997)). Under Mullane, “X Conduct” is the

case-specific civil deprivation of substantial property rights, permanently and

irreversibly, without prior, personal notice “reasonably certain to inform those

affected,” whose identity and whereabouts are known, even in the case where the

substance and frequency of the proceedings are published by statute and publicly

promulgated. 339 U.S. at 315, 318-320, 70 S. Ct. at 657, 659-60. “X Conduct” is

also what happened here: the drumhead condemnation of, and eviction from, house

and home with minimal, and questionable, statutory notice that assaults the letter and

spirit of the uncompromising demands in Mullane, Schroeder, Memphis Light,

Mennonite, and Tulsa, all of which apply in this case with “obvious clarity.” Rhodes

is not entitled to qualified immunity.

In this regard, I respectfully dissent.

70