Nogess v. Housing Authority of Jefferson Parish

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JAS NOGESS CIVIL ACTION

VERSUS No. 19-13147

HOUSING AUTHORITY OF SECTION I

JEFFERSON PARISH

ORDER & REASONS

Before the Court is plaintiff Jas Nogess’s (“Nogess”) motion1 for a temporary

restraining order and preliminary injunction to enjoin the termination of Nogess’s

Section 8 benefits by the Housing Authority of Jefferson Parish (“HAJP”). For the

following reasons, the request for a temporary restraining order is denied. A hearing

on a preliminary injunction shall be scheduled at a later date.

I.

The Section 8 Housing Choice Voucher Program (“Section 8”) provides federal

housing assistance to help low-income individuals obtain and maintain a decent place

to live. See 42 U.S.C. § 1437f(a). Public housing agencies determine whether

individuals are eligible to participate in the program and provide housing vouchers

to approved individuals for subsidized rental assistance payments.2 See 24 C.F.R. §§

982.201 & 982.302; 42 U.S.C. § 1437f. All recipients of Section 8 housing vouchers are

responsible for contributing 30% of their family’s monthly adjusted income or 10% of

their family’s gross monthly income, whichever is greater, towards their monthly

1 R. Doc. No. 3.

2 The Court will refer to Section 8 participants as “tenants.”

rent. 42 U.S.C. § 1437f(o)(2). If the monthly rent of their unit exceeds the established

“payment standard,” tenants must also pay the amount by which their rent exceeds

that payment standard.3 42 U.S.C. § 1437f(o)(2)(B). In either situation, the Section 8

housing subsidy covers the remaining balance of the rent.

Tenants are required to provide information requested by a public housing

agency or the United States Department of Housing and Urban Development

(“HUD”) that is necessary for the administration of the program. 24 C.F.R. §

982.551(b)(1). This information includes the tenant’s income, employment, and

household composition.4 All such information must be “true and complete,” 24 C.F.R.

§ 982.551(b)(4), and any relevant changes must be promptly reported by the tenant.5

If a tenant does not comply with program requirements, either through “action or

failure to act,” her Section 8 housing assistance may be terminated. 24 C.F.R. §§

982.552(a)(1) & 982.552(c)(1).

Nogess is a participant in the Section 8 program administered by HAJP. Her

Section 8 participation began on March 7, 2018 when she completed a Personal

Declaration for Section 8 Rental Assistance, certifying that her total income was $600

per month in family contributions from her mother.6 Nogess’s current benefits are set

to be terminated on October 31, 2019 for her failure to comply with her tenant

3 A tenant’s Section 8 housing subsidy is based on a local “payment standard” that

“reflects the cost to lease a unit in the local housing market.” 24 C.F.R. § 982.1(a)(3).

The payment standard is established pursuant to 42 U.S.C. § 1437f(o)(1)(B).

4 R. Doc. No. 12-8, at 12.

5 Id.

6 R. Doc. No. 3-1, at 2 ¶¶ 7–8.

obligations. Pursuant to federal regulations, Nogess’s termination from the Section 8

program will occur on January 28, 2020 if HAJP does not provide continued rental

assistance.7

At the time of her intake on March 7, 2018, Nogess was seeking employment.8

During her intake interview, HAJP informed Nogess that she was to promptly report

any new employment and submit paycheck stubs to verify and process a change in

income.9 The next day, March 8, 2018, Nogess was hired by the Downtown

Development District of New Orleans.10 On that same day, Nogess completed and

signed an Employment Verification Request with HAJP, but she did not provide any

information with respect to the name or contact information of her employer.11

Pursuant to Section 8 regulations and HAJP policy, tenants must report any

changes in income and provide relevant documentation to HAJP within ten days of

such change.12 See 24 C.F.R. § 982.55(b); 42 U.S.C. § 1427f(o)(5). According to Nogess,

she called the HAJP office to inform them of her new job and was again told that she

needed to submit paycheck stubs in order to calculate her Section 8 rental subsidy.13

7 See R. Doc. No. 24.

8 Id.

9 Id.

10 Id. at 2 ¶ 9.

11 The sections of the form requesting this information were left blank. See R. Doc.

No. 12-3, at 2.

12 R. Doc. No. 12-8, at 12.

13 Id. at 3 ¶ 10. It is unclear to the Court the date on which Nogess made this alleged

call to HAJP.

HAJP informed Nogess on June 27, 2018 that her Section 8 rental application

had been approved.14 Notably, the caseworker’s note on Nogess’s Request for Tenancy

Approval form states, “NO INCOME CHANGE.”15 The HUD Family Report for

Section 8 tenants, generated on July 5, 2018, similarly indicates that Nogess’s

reported income was still only $600 per month from Nogess’s mother.16

Nogess contends that after she found an apartment and her landlord submitted

the appropriate paperwork, she brought in her paycheck stubs to the HAJP office and

signed-in with the front desk at each visit.17 However, Nogess has not provided any

information regarding the date she informed HAJP of her new job or the date when

she first began providing paycheck stubs to HAJP.

The next year, in May 2019, Nogess completed her annual Section 8

recertification application and provided information on her employment with the

Downtown Development District.18 Nogess stated in the application that she had

been hired in May 2018 and that her hourly wage was $11.25.19 However, according

to Nogess’s own affidavit, as well as HUD’s Enterprise Income Verification report

(“EIV”), Nogess’s employment start date was March 8, 2018.20 In addition, Nogess’s

14 Id. at 3 ¶ 14.

15 R. Doc. No. 12-6, at 2.

16 R. Doc. No. 3-2, at 29.

17 Id. at 3 ¶ 12.

18 See R. Doc. No. 12-8.

19 Id. at 5.

20 R. Doc. No. 12-9, at 2; R. Doc. No. 3-2, at 3 ¶ 7.

official earnings statement for the pay period of April 21, 2019 to May 4, 2019

indicates that her regular hourly wage was, in fact, $13.52.21

After receiving this information regarding Nogess’s employment and income,

HAJP reduced Nogess’s Section 8 rental subsidy based on HUD payment standards

and sent Nogess a letter of its proposed intent to terminate her housing voucher at

the end of August 2019, for failure to timely report changes in employment and

income as required by law.22 Thereafter, Nogess asked for an informal hearing to

contest HAJP’s decision and requested “all video and or phone recording [sic] as well

as sign in sheets from March 18, 2018 to July 18, 2018.”23 HAJP later informed

Nogess that the sign-in sheets were inaccessible in storage, but it provided Nogess

and her counsel with a pre-hearing discovery packet that included Nogess’s Section

8 application documents and the HUD Family Report.24

The informal hearing before a Hearing Officer took place on August 23, 2019

with Nogess represented by legal counsel. Nogess testified that she had reported her

income between March and July 2018, and she presented phone records of calls she

made to HAJP during that time period.25 These phone records list the incoming and

outgoing calls she made between March 6, 2018 to June 24, 2018.26 Following the

hearing, HAJP provided Nogess and her counsel with additional documents that they

21 R. Doc. No. 12-10, at 2.

22 R. Doc. No. 12, at 3.

23 R. Doc. No. 3-2, at 11.

24 Id. at 20–21.

25 Id. at 20 ¶¶ 10–11.

26 See id. at 12–15.

requested, including the electronic case notes from Nogess’s file starting from May

2019.27 HAJP also informed Nogess that she could provide supplemental documents

for the Hearing Officer’s consideration before a final decision was issued.28

On September 5, 2019, the HAJP Hearing Officer made a formal decision to

terminate Nogess’s Section 8 benefits as of October 31, 2019 because Nogess failed to

properly report her income.29 Nogess then filed suit, claiming that HAJP violated

her due process rights under the Fourteenth Amendment of the U.S. Constitution

and that it failed to follow proper procedures when reviewing her benefits eligibility,

thereby reaching a legally erroneous decision to terminate her housing assistance.

II.

Pursuant to Federal Rule of Civil Procedure 65(b)(1), the court may issue a

temporary restraining order (“TRO”) without written or oral notice to the adverse

party only if:

(A) specific facts in an affidavit or a verified complaint clearly show

that immediate and irreparable injury, loss, or damage will result

to the movant before the adverse party can be heard in opposition;

and

(B) the movant’s attorney certifies in writing any efforts made to give

notice and the reasons why it should not be required.

27 Id. at 20 ¶¶ 10–11.

28 R. Doc. No. 3-2, at 33.

29 See id. at 37.

Nogess has provided notice to HAJP, and HAJP has filed a response in

opposition to the motion for a temporary restraining order and preliminary

injunction.30 Both parties have also filed reply memoranda.31

Injunctive relief is “an extraordinary remedy that may only be awarded upon

a clear showing that the plaintiff is entitled to such relief.” Winter v. Nat. Res. Def.

Council, Inc., 555 U.S. 7, 22 (2008). A temporary restraining order or preliminary

injunction should only be issued where: (1) there is a substantial likelihood that the

plaintiff will prevail on the merits; (2) there is a substantial threat that irreparable

harm will result if the injunction is not granted; (3) the threatened injury outweighs

the threatened harm to the defendant; and (4) the granting of injunctive relief will

not disserve the public interest. Clark v. Prichard, 812 F.2d 991, 993 (5th Cir. 1987);

Brock Servs., L.L.C. v. Rogillio, 936 F.3d 290, 296 (5th Cir. 2019). The Fifth Circuit

has cautioned that injunctive relief “should not be granted unless the party seeking

it has ‘clearly carried the burden of persuasion’ on all four requirements.” Lake

Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 196 (5th Cir. 2003) (quoting

Mississippi Power & Light Co. v. United Gas Pipe Line Co., 760 F.2d 618, 621 (5th

Cir. 1985)); see Clark, 812 F.2d at 993 (explaining that the plaintiff “must satisfy a

cumulative burden of proving each of the four elements enumerated” in order to

obtain a temporary restraining order or preliminary injunction).

30 See R. Doc. Nos. 3-3 & 12.

31 See R. Doc. Nos. 17 & 22.

i. Likelihood of Success on the Merits

Nogess advances both a procedural due process claim that HAJP violated her

Fourteenth Amendment rights and a statutory claim that HAJP’s decision-making

procedures violated 42 U.S.C. § 1437d(k). With respect to these claims, Nogess asserts

three transgressions by HAJP: 1) that it failed to provide her with the sign-in sheets

from her visits to the HAJP office, 2) that the Hearing Officer failed to reference or

consider the documents that she presented at the informal hearing in his statement

of reasons for terminating her Section 8 benefits, and 3) that the Hearing Officer

“relied on hearsay” to reach his decision.32 Because Nogess’s constitutional and

statutory claims arise from the same procedural allegations Nogess raises against

HAJP, the Court will address the claims concurrently when evaluating Nogess’s

likelihood of success on the merits.

The Due Process Clause of the Fourteenth Amendment imposes procedural

constraints on governmental decisions that deprive individuals of their liberty or

property interests. Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Section 8 tenants

have a property interest in their federal housing benefits upon an initial showing of

eligibility pursuant to the authorizing federal statute. See Bd. of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972); Nozzi v. Hous. Auth. of City of Los Angeles,

806 F.3d 1178, 1191 (9th Cir. 2015).

32 See R. Doc. No. 3-1, at 12–17.

Under the federal Housing Act, public housing agencies such as HAJP must

implement specific procedures for decisions such as the termination of a tenant’s

Section 8 benefits. Adhering to these procedures, tenants must:

(1) be advised of the specific grounds of any proposed adverse public

housing agency action;

(2) have an opportunity for a hearing before an impartial party upon

timely request within [the applicable period];

(3) have an opportunity to examine any documents or records or

regulations related to the proposed action;

(4) be entitled to be represented by another person of their choice at any

hearing;

(5) be entitled to ask questions of witnesses and have others make

statements on their behalf; and

(6) be entitled to receive a written decision by the public housing agency

on the proposed action.

42 U.S.C. § 1437d(k).

The federal regulations further provide that, before the hearing, tenants must

be given the opportunity to examine any public housing agency documents “that are

directly relevant to the hearing.” 24 C.F.R. § 982.555(e)(2)(i). If the public housing

agency does not make a specific document available, it cannot rely on that document

at the hearing. Id. In addition, the tenant and the public housing agency must be

allowed to present evidence at the hearing, and such evidence may be considered

without regard to its admissibility under the rules of evidence applicable to judicial

proceedings. 24 C.F.R. § 982.555(e)(5). After the hearing, the individual who

conducted the hearing must issue a written decision with a brief statement of reasons.

24 C.F.R. § 982.555(e)(6).

Based on the evidence presented, the Court finds that HAJP likely did not

violate procedural requirements in violation of Nogess’s constitutional due process or

statutory rights. Although Nogess was not provided with the sign-in sheets she

requested, HAJP affirmed that it did not rely on those sheets—or the lack thereof—

in connection with her hearing.33 And while Nogess characterizes the sign-in sheets

as “potentially exculpatory documents,”34 there has been no showing that the sign-in

sheets would demonstrate Nogess’s required documentation of her employment

income. The sign-in sheets would, presumably, only show the dates on which Nogess

visited the HAJP office—not any documents that she may have presented.

Nogess’s argument with respect to the Hearing Officer’s failure to reference

the phone records she presented at the hearing is also inapposite. HAJP’s September

5, 2019 letter to Nogess informing her of its termination decision lists the evidence it

considered and specifically includes “[e]xhibits presented by the participant.”35

Additionally, these phone records, like the sign-in sheets, do not provide any evidence

of any income or employment records that Nogess may have presented to HAJP.

Nogess’s contention that the Hearing Officer improperly relied on hearsay

evidence, in violation of her rights, also fails to support her claim. As stated

previously, the rules of evidence for judicial proceedings do not apply to the

admissibility of evidence in Section 8 benefits hearings. See 24 C.F.R. § 982.555(e)(5).

Furthermore, the so-called hearsay evidence to which Nogess objects, the Request for

Tenancy Approval form that Nogess’s caseworker completed, was not the sole

33 See R. Doc. No. 12, at 7.

34 R. Doc. No. 3-1, at 13.

35 R. Doc. No. 12-15, at 4.

evidentiary basis for the Hearing Officer’s decision.36 The caseworker’s note on

Nogess’s Request for Tenancy Approval form reporting “NO INCOME CHANGE” as

of June 27, 2018 from Nogess’s initial reported income of $600 per month, which

HAJP highlighted in its initial termination notification letter,37 coupled with the

employment and income information HAJP gathered through other sources,

supported HAJPs finding that Nogess failed to properly report her income as required

by the federal regulations and HAJP policy. See 24 C.F.R. § 982.551(b)(2) (requiring

tenant to submit “true and complete” income information as requested by the public

housing agency). In the annual recertification application she completed in May 2019,

it also appears that Nogess may have misreported her employment start date and

hourly wage.38

HAJP appears to have complied with the federal regulations and procedural

requirements in reaching its decision to terminate Nogess’s Section 8 assistance.

Upon a review of Nogess’s Section 8 recertification application, HAJP notified Nogess

of its proposed decision, as well as the substantive basis for such decision, and

informed her of her right to an informal hearing to contest it.39 HAJP further

informed Nogess of her rights at the hearing, including the right to present

36 The cases that Nogess cites in support of her hearsay argument are distinguishable

from Nogess’s situation because in those cases, as Nogess herself acknowledges, the

termination decisions were based solely on hearsay evidence. See R. Doc. 3-1, at 15.

As discussed herein, HAJP’s decision was based on a review of multiple documents

and sources of information, including Nogess’s self-reporting—not only the “hearsay”

evidence that Nogess contends is objectionable.

37 R. Doc. No. 12-12, at 2.

38 R. Doc. No. 12-8, at 5.

39 R. Doc. No. 12-12, at 2.

objections,“[e]xamine the documents in [her] file, which are the basis for HAJP’s

action and all documents submitted to the Hearing Officer,” present her own evidence

and witnesses, and be represented by legal counsel.40 HAJP provided Nogess and her

counsel with Nogess’s entire case file and the available documents she requested.41

At the August 23, 2019 hearing, Nogess had the opportunity to present arguments

and her own evidence, and she was told that she could submit additional documents

after the hearing that she believed would be helpful to her case.42

The termination letter on September 5, 2019 stated the specific reasons for

HAJP’s decisions and the evidence it reviewed to reach that decision.43 HAJP found

that Nogess was in violation of federal regulations and agency policy requiring

tenants to provide written notice to HAJP of any change in income within ten days of

the change and to report all requested information truthfully and completely.44 See

24 C.F.R. § 982.551(b)(2); 24 C.F.R. § 982.552(a)(1).

Based on the foregoing, the Court finds that Nogess did not meet her burden

of demonstrating a likelihood of success on the merits of her claims.

40 R. Doc. No. 12-14, at 2.

41 HAJP was not able to give Nogess her sign-in sheets because they were

inaccessible, but the law does not require a public housing agency to rummage

through its entire storage of files to uncover materials whose relevance has not been

demonstrated.

42 See R. Doc. No. 3-2, at 33.

43 See R. Doc. No. 12-15, at 3–5.

44 Id. at 3.

ii. Irreparable Harm

Nogess argues that she will suffer irreparable harm through the loss of housing

if HAJP is not enjoined from terminating her Section 8 benefits. Nogess also alleges

immediate injuries in the form of “economic loss, homelessness, mental anguish, and

possible loss of employment.”45 Fearing eviction, Nogess vacated her apartment

before the end of August, and she has been staying temporarily with friends and

family.46 Nogess also alleges irreparable harm in the form of automatic termination

from the Section 8 program if she does not receive any assistance by January 28,

2020, which would allegedly render her lawsuit “moot.”47

Pursuant to 24 C.F.R. § 982.55, a Housing Assistance Payment (“HAP”)

contract between the public housing agency and the owner of a unit rented by a

Section 8 tenant “terminates automatically 180 calendar days after the last housing

assistance payment to the owner.”48 Based on the date that HAJP made its last rental

assistance payment on behalf of Nogess, HAJP’s contract with the apartment owner

will terminate on January 28, 2020.49

The Court agrees that the loss of subsidized housing may constitute

irreparable harm warranting injunctive relief under certain circumstances, but

Nogess has not demonstrated such circumstances in her case. Nogess’s current

45 R. Doc. No. 3-1, at 18.

46 R. Doc. No. 3-2, at 4 ¶ 24.

47 R. Doc. No. 14, at 4; R. Doc. No. 24.

48 Nogess mischaracterizes this regulation in her reply memorandum—the 180-day

period for automatic termination applies to the date of the last payment to the owner,

not the tenant, of the unit. See R. Doc. No. 14, at 4; 24 C.F.R. § 982.55.

49 See R. Doc. No. 24-1, at 1.

Section 8 housing assistance payment, based on Nogess’s May 10, 2019 earnings

statement, is $38.00 per month.50 Accordingly, the share of rent due from Nogess for

her most recent apartment was $732.00 per month.51

Although Nogess argues that she may qualify for a higher subsidy in the future

because the fair market rent for Jefferson Parish has increased from the previous

year and her income has decreased “because she has been offered less overtime,”52

Nogess has not demonstrated that she has been or would be unable to secure decent

housing in the absence of the Section 8 housing subsidy. Furthermore, despite her

contention that she is unable to afford market rent for a one-bedroom apartment in

Jefferson Parish and would thereby face homelessness without Section 8 assistance,

Nogess has not addressed alternative housing options, such as a studio apartment or

living with a roommate.

The Court is sympathetic to Nogess’s situation, but it finds that she has not

satisfied this requirement for injunctive relief.

iii. Balance of Harm to the Parties

The Court finds that the balance of harm is a neutral factor. If injunctive relief

were granted, HAJP would simply be required to continue with the status quo—that

is, providing Nogess with a housing assistance subsidy based on her income and cost

50 R. Doc. No. 12, at 3.

51 Id. at 9.

52 R. Doc. No. 14, at 5. The Court notes that this contention was not alleged in

Nogess’s affidavit, but rather in the reply in support of the motion for injunctive relief,

and that it lacks evidentiary support. The Court also notes that Nogess has not stated

that she reported this change in income to HAJP.

of rent—while absent injunctive relief, Nogess faces the prospective loss of her

Section 8 benefits. However, as previously stated, Nogess has not yet convinced the

Court that affordable housing is unattainable in her situation.

iv. Public Interest in Granting Injunctive Relief

The public has an interest in ensuring that individuals in need are not

unlawfully terminated from public assistance benefits. In a parallel vein, the public

has an interest in ensuring that benefits recipients conscientiously comply with the

policies that govern public assistance programs. The Court acknowledges the

financial burden that Nogess may experience without the Section 8 housing subsidy,

but the record appears to demonstrate that she did not properly report her income as

required by HAJP policy and federal law. Moreover, Nogess has not demonstrated

that HAJP’s termination decision likely violated her due process rights or statutory

requirements. Government assistance funds are limited, and, according to HAJP,

Nogess’s misreporting of her income has resulted in a rental assistance overpayment

of $7,917.53 The Court finds that the public interest factor does not support the

granting of injunctive relief.

III.

Because Nogess has not met her burden with respect to all four requirements

for injunctive relief,

IT IS ORDERED that the motion for a temporary restraining order is

DENIED.

53 See R. Doc. No. 12-15, at 4.

IT IS FURTHER ORDERED that Nogess’s request for a waiver of the bond

requirement under Federal Rule of Civil Procedure 65(c) is DENIED AS MOOT.

IT IS FURTHER ORDERED that a hearing on a preliminary injunction shall

be scheduled at a later date.

New Orleans, Louisiana, October 31, 2019.

NCE M. AFRICK

UNITED STATES DISTRICT JUDGE

16