Colvin v. Housing Authority

United States Court of Appeals,

Eleventh Circuit.

No. 95-2455.

Deborah COLVIN, Individually and on behalf of all persons
similarly situated, Plaintiff-Appellant,

v.

HOUSING AUTHORITY OF the CITY OF SARASOTA, FLORIDA, Defendant-
Appellee.

Jan. 4, 1996.

Appeal from the United States District Court for the Middle
District of Florida. (No. 94-1119-CIV-T-25A), Henry Lee Adams, Jr.,
Judge.

Before EDMONDSON and COX, Circuit Judges, and FAY, Senior Circuit
Judge.

PER CURIAM:

This appeal arises from the District Court's judgment as a

matter of law in favor of the Sarasota Housing Authority. The

court held that Ms. Colvin had no right to an informal hearing

before her Section 8 assistance was terminated because she

participated in a state court eviction proceeding. That

proceeding, according to the District Court, provided procedural

due process. While we affirm the ruling regarding whether Ms.

Colvin's procedural due process rights were violated, we REVERSE

and REMAND for a further proceedings because federal regulations

require an informal hearing in this situation.1

1
We emphasize at the outset that no question has been raised
in this matter concerning whether or not there is a private cause
of action under the regulations at issue. There is no precedent
in our circuit and those that exist are split and far from clear.
See Wright v. Roanoke Redevelopment & Housing Authority, 479 U.S.
418, 107 S.Ct. 766, 93 L.Ed.2d 781 (1987); Loschiavo v. City of
Dearborn, 33 F.3d 548 (6th Cir.1994), cert. denied, --- U.S. ----
, 115 S.Ct. 1099, 130 L.Ed.2d 1067 (1995); Ritter v. Cecil
 I. BACKGROUND

On August 1, 1993, the Sarasota Housing Authority approved a

Section 8 lease between Deborah Colvin and a private landlord. In

November, Ms. Colvin requested assistance from the Housing

Authority in regard to extra security deposits her landlord was

forcing her to pay. Later that month, Rose Hunt, the Section 8

Director for the Housing Authority, wrote to Ms. Colvin, stating in

part:

I have called your landlord and I have explained the rules and
regulations on Security Deposit. He admits he was wrong and
that you will be given credit toward your rent with the $250
you have paid beyond what should have been paid of the
Security Deposit.

The $250 figure was a mathematical error; Colvin asserts that $150

was the correct figure.

At trial, Ms. Colvin introduced into evidence a cashier's

check for $78 made out to her landlord. The check was dated

January 1, 1994. According to Colvin, the $78 represented the

amount she owed for January after the security deposit credit was

taken into account; the $150 credit covered all of the December

rent ($114) and part of the January rent ($36).

The landlord denied receiving that cashier's check. In early

January he gave Ms. Colvin a notice to pay the full rent for

December and January or vacate. On January 13, the landlord sued

for eviction in state court.

Colvin testified that she telephoned Ms. Hunt (the Section 8

County Office of Housing and Community Development, 33 F.3d 323
(4th Cir.1994). This opinion should not be viewed as answering
that question. If it is a valid defense to this type of claim,
it has been waived in this case.
Director at the Housing Authority), and that Ms. Hunt advised her

to vacate the premises and to start looking for another place to

live. According to Colvin, Hunt told her that she would not lose

her Section 8 certificate if she moved out. Colvin did in fact

vacate the premises, but on January 28 the state court granted a

Writ of Possession to the landlord anyway.

Colvin testified at the District Court trial that she appeared

at the eviction proceeding, told the judge that she was current in

her rent, and that she had already vacated. The District Court

found that this proceeding was a state court bench trial where

Colvin was provided a full opportunity to present evidence and

argument.

On January 28, the Housing Authority notified Colvin that her

benefits were immediately terminated based on the state court

eviction, and that a hearing was "not available when evicted."

Colvin received a copy of this letter. The Housing Authority

falsely asserts in its brief that this letter advised Ms. Colvin of

her right to a hearing. The Housing Authority also claims that it

mailed a second letter to Colvin on the same date ("out of an

abundance of caution"), and that this letter advised Colvin of her
2
right to a hearing. Colvin says she received no such letter. No

hearing was held and the benefits were in fact terminated as of

January 28.

2
Although there was testimony about such a letter at trial,
no such letter was introduced into evidence or attached to the
Defendant's motion for summary judgment. Moreover, Ms. Hunt, the
Section 8 Director, testified that the letter in her files was
the original, raising the possibility that this second letter was
never mailed.
 Colvin then brought an action in federal court, alleging that

the Housing Authority, by not granting her an informal hearing

before terminating her Section 8 assistance, had violated, first,

her procedural due process rights under the Fourteenth Amendment to

the United States Constitution, and second, federal statutory and

regulatory law. The District Court granted a preliminary

injunction restoring Colvin's Section 8 assistance, but denied

Colvin's motion for class certification. The case was tried to a

jury on March 6 and 7, 1994. At the close of Colvin's case, the

court granted the Housing Authority's motion for a directed

verdict. The court found, as a matter of law, that Colvin's rights

could not have been violated because Florida's Summary Eviction

statute provided Colvin with all the process to which she was due.

This Court granted Colvin's subsequent motion to stay judgment

pending appeal.

II. STANDARD OF REVIEW

The standard of review for a judgment as a matter of law is

de novo. Sherrin v. Northwestern National Life Insurance Company,

2 F.3d 373, 377 (11th Cir.1993). The appellate court uses the same

standard that the District Court used in determining whether to

grant the motion: under applicable law, is the evidence,

considered in the light most favorable to the non-moving party,

such that no reasonable person could arrive at a contrary verdict?

Id.

III. ANALYSIS

First of all, we affirm the District Court's ruling that the

Housing Authority did not violate Ms. Colvin's procedural due
process rights. The state court eviction proceeding provided

Colvin with all the process to which she was due. Under Florida

law, Colvin was entitled to present a defense in the eviction

action,3 and Colvin's testimony at trial indicated that she did

indeed have a full opportunity to present evidence in a state court

bench trial. There is no reason to believe that the Housing

Authority could better determine whether Colvin failed to pay her

rent and there is no reason to believe that Colvin was not fully

able to present evidence to the state court. The Housing Authority

was not constitutionally required to conduct a second hearing. See

Simmons v. Drew, 716 F.2d 1160 (7th Cir.1983).

However, federal regulations (specifically 24 C.F.R. §

882.216) do grant Ms. Colvin the right to an informal hearing

regarding the termination of her Section 8 assistance. Although

the state court eviction proceeding is sufficient to satisfy

constitutional due process requirements, it does not satisfy 24

C.F.R. § 882.216, which requires the decision-maker at the informal

hearing to consider whether the Housing Authority's decision is in

accordance with the law, HUD regulations, and Public Housing

Authority rules. The judge in the eviction proceeding obviously

did not consider the Housing Authority's action at all because that

action had not yet been taken and was never an issue.

In other situations, Congress has expressly granted Public

3
Colvin's counsel argued at trial and on appeal that Colvin
had no opportunity to present evidence in the state court
eviction proceeding because she had not paid into the court the
disputed rent payments. However, Colvin's counsel misreads
Florida law. Under Florida Statutes § 83.60, if the tenant
raises any defense other than payment, that tenant shall pay into
the court the accrued rent. Colvin's defense was payment.
Housing Authorities the right to deny a hearing to a tenant after

a valid state court eviction that complies with basic due process.

42 U.S.C. § 1437d(k); see also the corresponding regulation at 24

C.F.R. 966.51(a)(ii). Congress has not given that power to Public

Housing Authorities under this part of Section 8. 42 U.S.C. §

1437f.4 Thus Colvin did have a right to a hearing under 24 C.F.R.

§ 882.216, and the state court proceeding did not satisfy that

right.

The Housing Authority argues that the nature of the Section 8

program requires termination of benefits when a tenant is evicted

because there is no landlord to whom the Housing Authority may make

payments.5 This argument fails because the regulations clearly

distinguish between Section 8 "payments" and Section 8

"assistance". 24 C.F.R. § 882.105 requires that Section 8
payments

be made by the Housing Authority to the landlord. 24 C.F.R. §

882.216 requires a hearing when the Housing Authority makes a

4
42 U.S.C. § 1437d(k) expressly does not apply to the
housing assistance provided for under 1437f. 42 U.S.C. §
1437f(h).
5
The Housing Authority cites Simmons v. Drew, 716 F.2d 1160,
1165 (7th Cir.1983) in support of this argument. First of all,
that cite is for the dissenting part of Judge Pell's opinion.
Second, in any event, Judge Pell does not support the Housing
Authority's position:

Because of the structure of the program, payments
cannot be made unless there is an existing contract
with the landlord.... However, it seems to me that in
reality the way the program is now run an interruption
of benefits is not a "termination" of eligibility in
the program.

Simmons, 716 F.2d at 1166 (Judge Pell's opinion, concurring
in part and dissenting in part) (quoting from the
unpublished District Court's opinion).
decision to terminate Section 8 assistance. The regulations

contemplate situations where a family may receive Section 8

assistance, yet the Housing Authority makes no payments to a

landlord. For example, a family becomes a participant in the

Section 8 program as soon as it receives a Certificate. See 24

C.F.R. § 882.209; Ellis v. Ritchie, 803 F.Supp. 1097, 1099

(E.D.Va.1992). The family then has at least 60 days, sometimes up

to 120 days, in which to find housing. 24 C.F.R. § 882.209.

During that time, the family is a Section 8 participant, and may

even receive help in finding suitable housing, while no payments

are made to a landlord. See 24 C.F.R. § 882.209. Thus a tenant

must receive a hearing under § 882.216 before Section 8 assistance

can be terminated, even if that tenant has been evicted and the

payments to the landlord have ceased.

The Housing Authority further argues that under Simmons v.

Drew, 716 F.2d 1160 (7th Cir.1983), Colvin was not entitled to a

hearing. The sole issue inSimmons was the tenant's constitutional

procedural due process rights. Id. After Simmons was decided, 24

C.F.R. § 882.216 was enacted. 24 C.F.R. § 882.216 has the force of

law, see Wright v. City of Roanoke Redevelopment and Housing

Authority, 479 U.S. 418, 431, 107 S.Ct. 766, 774, 93 L.Ed.2d 781

(1987), and grants Colvin the right to an informal hearing even

after a state court eviction. That federal regulation was not at

issue in Simmons.

Finally, the Housing Authority argues that it sent Colvin

notice of her right to a hearing, and that she waived that right by

not requesting a hearing within the required time limit. However,
the District Court Judge found, in his order denying a motion for

a new trial, that the Housing Authority notified Colvin that she

did not have a right to a hearing, and then terminated her

assistance effective immediately. Of course, judgment was granted

at the close of the Colvin's case; on remand, the Housing

Authority will have a chance to present evidence in its defense.6

IV. CONCLUSION

The decision of the District Court to grant judgment as a

matter of law to the Housing Authority is AFFIRMED in part and

REVERSED in part and the case REMANDED for further proceedings

consistent with this opinion.

6
As noted earlier, this second letter does not appear in the
record. Although the Defendant moved for summary judgment, no
such letter was attached to the motion or presented at the
hearing.