Yarbrough v. Decatur Housing Authority

Filing 41

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 3/6/2017. (KAM, )

FILED
2017 Mar-07 AM 10:18
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
SHEENA YARBROUGH,
Plaintiff,
v.
DECATUR HOUSING
AUTHORITY,
Defendant.

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Civil Action Number
5:15-cv-2325-AKK

MEMORANDUM OPINION
Sheena Yarbrough brings this action against Decatur Housing Authority
(“DHA”) pursuant to 42 U.S.C. § 1983,1 alleging violations of her federally
protected rights under Section 8 of the U.S. Housing Act of 1937, 42 U.S.C. §
1437 (“Section 8”) and various amendments to the United States Constitution.
Doc. 1 at 3. The court has for consideration DHA’s motion for summary judgment,
doc. 30, which is fully briefed, docs. 31; 34; 35, and Yarbrough’s motion for
summary judgment, doc. 40, which raises the same arguments she raised in her
opposition to DHA’s own motion. For the reasons stated below, DHA’s motion is
due to be granted and Yarbrough’s motion is due to be denied.

1

See Doe v. Sch. Bd., 604 F.3d 1248, 1265 (11th Cir. 2010) (“Section 1983 does not create any
substantive federal rights in and of itself; it is merely a vehicle to bring such suits. Therefore, a §
1983 plaintiff must allege a specific federal right violated by the defendant.”) (citation omitted).
1

I.

STANDARD OF REVIEW

Under Fed. R. Civ. P. 56(a), summary judgment is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” To support a summary judgment motion,
the parties must cite to “particular parts of materials in the record, including
depositions,

documents,

electronically

stored

information,

affidavits

or

declarations, stipulations, admissions, interrogatory answers, or other materials.”
Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who
fails to make a showing sufficient to establish the existence of an element essential
to that party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the
initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the
pleadings” to establish that there is a “genuine issue for trial.” Id. at 324 (citation
and internal quotation marks omitted). A dispute about a material fact is genuine
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The court must construe the evidence and all reasonable inferences arising
from it in the light most favorable to the non-moving party. Adickes v. S. H. Kress
2

& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 255 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports the non-moving party’s version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276 (11th Cir. 2002) (a court is not
required to resolve disputes in the non-moving party’s favor when that party’s
version of events is supported by insufficient evidence). However, “mere
conclusions and unsupported factual allegations are legally insufficient to defeat a
summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir.
2005) (per curiam) (citing Bald Mountain Park, Ltd. v. Oliver, 863 F.2d 1560,
1563 (11th Cir. 1989)). Furthermore, “[a] mere ‘scintilla’ of evidence supporting
the opposing party’s position will not suffice; there must be enough of a showing
that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573,
1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
“The standards governing cross-motions for summary judgment are the
same, although the court must construe the motions independently, viewing the
evidence presented by each moving party in the light most favorable to the nonmovant.” Lozman v. City of Riviera Beach, 39 F. Supp. 3d 1392, 1404 (S.D. Fla.
2014) (citing Shazor v. Professional Transit Management, Ltd., 744 F.3d 948 (6th
Cir. 2014)); see also U.S. v. Oakley, 744 F.2d 1553, 1555 (11th Cir. 1984)
3

(applying the Rule 56 summary judgment standard where both parties moved for
summary judgment). However, “cross-motions for summary judgment will not, in
themselves, warrant the court in granting summary judgment unless one of the
parties is entitled to judgment as a matter of law on facts that are not genuinely
disputed.” Bricklayers, Masons & Plasterers Int’l Union v. Stuart Plastering Co.,
512 F.2d 1017, 1023 (5th Cir. 1975). Nonetheless, “[c]ross motions for summary
judgment may be probative of the nonexistence of a factual dispute when . . . they
demonstrate a basic agreement concerning what legal theories and material facts
are dispositive.” Id. “Indeed, when both parties proceed on the same legal theory
and rely on the same material facts the court is signaled that the case is ripe for
summary judgment.” Shook v. U.S., 713 F.2d 662, 665 (11th Cir. 1983). That is
precisely the case here, as the parties appear to be in agreement that the material
facts are undisputed and that certain narrow legal issues — namely, the legal
sufficiency of the indictments — are dispositive of the claims joined herein.
II.

FACTUAL BACKGROUND

Yarbrough was a participant in the Section 8 Housing Assistance program
provided through the Department of Housing and Urban Development (“HUD”).
Docs. 1 at 1; 17-1 at 2–3. The Section 8 Voucher Program provides low income
families assistance with rental payments and is administered by public housing
authorities (“PHAs”), such as DHA. Id. On April 6, 2011, Yarbrough signed a
4

copy of Obligations of the Participating Family from HUD, which provided, in
part, that “members of the family may not engage in drug-related criminal
activity.” Doc. 32-7 at 2–3. As of April 4, 2013, the DHA “must terminate program
assistance for a participant . . . [i]f any member of the family commits drug-related
. . . criminal activity in violation of Section 2.3 of this Administrative Plan and 24
CFR 982.551.” Doc. 17-3 at 2–3.
In September 2012, through a newspaper article, DHA learned that
Yarbrough was arrested on charges of drug-related criminal activity. Doc. 20-2 at
38:00–41:00. As a result, DHA notified Yarbrough that it intended to terminate her
program assistance. Id. In response, Yarbrough denied any involvement in
unlawful drug activity and requested a hearing. Id. At the hearing, the hearing
officer found that Yarbrough had carried out unlawful drug-related activity and
would have to move from her home. Id. However, based on legal advice, DHA
decided that Yarbrough could keep her voucher and that it would postpone any
decision to terminate her housing assistance subsidies “until a court date or
decision was rendered.” Id. at 10:00–10:30; 38:00–41:00.
On April 11, 2013, based on the September 2012 arrest, a grand jury at the
Limestone County Circuit Court of Alabama indicted Yarbrough on two counts of
unlawful distribution of a controlled substance for selling “a quantity of Lortab”
and “a quantity of Xanax” to an undercover police officer. Docs. 17-5 at 2–5. The
5

last substantive update from Yarbrough’s case stated that “[t]he state moves to
dismiss the case upon payment of court costs and the Defendant occurs [sic]. It is
the order of the court that this case will be dismissed upon payment of court costs.”
Docs. 20-2 at 25:21–29:20; 34-1 at 7. The state court has since continued the case
to allow Yarbrough to pay court fees and the case is still pending. Id.
On October 8, 2015, DHA sent Yarbrough a new notice, advising her that it
intended to terminate her participation in the Section 8 program on November 30,
2015, due to violations of Housing Choice Voucher #4: Obligations of the Family.
Allegedly, in addition to her arrest and subsequent indictment for drug-related
activity, Yarbrough failed to (1) notify DHA of a change in family income and
composition in January 2015; (2) report her household income from 2011 through
2013; and (3) make required payments to DHA since February 2015. Docs. 1 at 2;
1-1 at 2. At Yarbrough’s request, DHA held a hearing. Doc. 1-1 at 2. Thereafter,
the hearing officer issued a decision finding that DHA failed to establish violations
on all counts except for the accusation that Yarbrough had “violated her agreement
with the Authority and her lease by engaging in drug-related criminal activity.”
Doc. 1-1 at 4, 6–7. As a result, the hearing officer upheld DHA’s decision to
terminate Yarbrough’s participation in the program. Id. at 6.
In his written decision, the hearing officer explained that DHA sufficiently
established that Yarbrough had engaged in drug-related criminal activity by
6

presenting evidence of Yarbrough’s arrest and subsequent indictment for two
felony counts of unlawful distribution of a controlled substance. Doc. 1-1 at 3. The
hearing officer further noted that although Yarbrough presented “credible evidence
that the cases will be dismissed on payment of court costs,” id. at 4; doc. 34-1 at 7,
the fact that the charges remain pending and that the indictments were issued by “a
duly impaneled grand jury” is sufficient proof that “more likely than not, i.e., by a
preponderance of the evidence, [that] Ms. Yarbrough engaged in drug related
criminal activity in violation of the terms of her agreement with the Authority.”
Doc. 32-2 at 3–4. The hearing officer also considered Yarbrough’s assertion that
she and DHA had reached an agreement precluding DHA from acting on the
termination of benefits until after the court issued a decision on the criminal cases.
Id. at 4. To support her contention, Yarbrough relied on an internal note produced
by DHA, which indicated that DHA’s legal counsel had advised it to continue
paying Yarbrough’s subsidy “until a court decision is rendered.” Id.; doc. 20-2 at
10:00–10:30; 38:00–41:00. However, the hearing officer ultimately found that
“[t]his note falls woefully short of an agreement to withhold termination action
pending final adjudication of the criminal action.” Doc. 32-2 at 3–4. As such, the
hearing officer determined that Yarbrough had violated her agreement due to her
involvement in drug-related criminal activity and upheld DHA’s termination of
Yarbrough’s Section 8 housing benefits. Id. at 7. Following the hearing, DHA
7

informed Yarbrough that her benefits would cease on December 31, 2015. Docs. 12 at 3; 6 at 3.
III.

ANALYSIS

Yarbrough’s complaint pleads two counts — (1) alleged violations of HUD
regulations and requirements by issuing a “decision [that] was based completely on
hearsay evidence without legal or factual support” and by failing to “provide a
hearing with an impartial hearing officer,”2 doc. 1 at 2; and (2) alleged denial of
due process in violation of the Fifth and Fourteenth Amendments to the
Constitution, id. at 3. More specifically, Yarbrough contends that DHA violated
her rights under the Constitution when it terminated her housing assistance
payments without providing her due process by failing to provide her with
adequate notice, a meaningful opportunity to be heard, and by basing the decision

2

Although Yarbrough pleads that DHA failed to provide an impartial hearing officer, see doc. 1
at 2, Yarbrough does not seem to have advanced any arguments regarding the alleged violation
of her rights in response to DHA’s motion for summary judgment. Therefore, Yarbrough has
abandoned this claim. See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 971 n.36
(11th Cir. 2008) (“Martin did not defend the claim on summary judgment; he thus abandoned
it.”). Alternatively, to the extent Yarbrough is arguing that the hearing officer was not impartial
because he purportedly relied on the decision of a previous informal administrative hearing, see
docs. 1 at 2; 34 at 10; 40 at 18, the court disagrees because the hearing officer based his
conclusion that Yarbrough had engaged in criminal activity on the indictments before him and
not the outcome of the previous hearing. See docs. 32-2 at 2–3; 32-13 at 4–5. Indeed, Yarbrough
acknowledges that “it appears [the hearing officer] relied solely on the fact that the grand jury
had found probable cause for indictment in making his decision.” Doc. 34-1 at 4; see also doc.
40 at 17 (“In his decision it is clear that the only evidence [the hearing officer] reviewed on the
matter was the indictment offered by the Defendant.”). Therefore, while the hearing officer refers
to the previous hearing in his opinion, see doc. 32-2 at 3, the hearing officer merely noted a
procedural fact presented by both parties at the hearing, see doc. 20-2 at 9:55–10:20, 38:00–
39:12, and not a material one.
8

to terminate solely on unreliable hearsay evidence.3 Doc. 1 at 2–3. The court
addresses these contentions below, and, for the reasons that follow, finds that
Yarbrough has failed to meet her burden, that her motion for summary judgment is
due to be denied, and DHA’s motion is due to be granted.
A. DHA Provided Yarbrough Sufficient Notice
In order to terminate Section 8 housing assistance, due process requires:
(1) timely and adequate notice, including the reasons for the proposed
termination, (2) an opportunity to be heard at a pre-termination
hearing, including the right to present evidence and confront and
cross-examine witnesses, (3) a right to be represented by counsel at
the hearing, (4) a written decision, including the reasons for the
determination and the evidence on which the decision maker relied,
and (5) an impartial decision maker.
McCall, 809 F. Supp. 2d at 1324 (citing Goldberg v. Kelly, 397 U.S. 254, 266–71
(1970)). An adequate notice of termination must “give the family prompt written
notice that the family may request a hearing,” 24 C.F.R. § 982.555(c)(2), and must:
“(i) Contain a brief statement of reasons for the decision; (ii) State that if the
family does not agree with the decision, the family may request an informal
hearing on the decision, and (iii) State the deadline for the family to request an
informal hearing.” 24 C.F.R. § 982.555(c)(2)(i)–(iii). Based on the record before
this court, DHA complied with the notice requirements. Specifically, DHA sent
Yarbrough a termination notice, doc. 32-1 at 2, in which it listed the following
3

Yarbrough’s motion for summary judgment focuses solely on the hearsay contention. See
generally doc. 40.
9

reasons for terminating Yarbrough’s housing assistance, including: “D. The family
(including each family member) must not: 3. Commit fraud, . . . or any other
corrupt or criminal act in connection with the program. 4. Engage in drug-related
criminal activity.” Id. (emphasis in original). DHA also provided the time period
and the exact arrests and indictments that formed the basis for its decision to
initiate termination procedures, stating, “in or around September 2012 you were
arrested for drug related activity, and on April 11, 2013, you were indicted for
unlawful distribution of [a] controlled substance.” Doc. 32-1 at 2. The termination
notice further informed Yarbrough that “[y]ou are entitled to an informal hearing at
the Housing Authority at which you may be represented, may present evidence and
witnesses. If you wish to have this hearing, you must request it in writing within
ten (10) calendar days of the date of this letter.” Id. This notice sufficiently
satisfies the requirements laid out by 24 C.F.R. § 982.555(c)(2). Accordingly,
DHA’s motion is due to be granted on this issue.
B. Yarbrough Received A Meaningful Opportunity To Be Heard
The opportunity to be heard is “[t]he fundamental requisite of due process of
law . . . .” Goldberg v. Kelly, 397 U.S. 254, 267 (1970) (citation omitted). This
entails that “[t]he hearing must be ‘at a meaningful time and in a meaningful
manner,’” id. (citation omitted), and that the public assistance recipient have “an
effective opportunity to defend [against termination] by confronting any adverse
10

witnesses and by presenting [her] own arguments and evidence orally,” id. at 268.
Although “[i]nformal procedures will suffice,” id. at 269, the recipient must be
allowed to retain an attorney if she so desires, id. at 270, and “have an opportunity
to examine any documents or records or regulations related to the proposed
action,” 42 U.S.C. § 1437d(k)(3).
Contrary to Yarbrough’s contention, DHA in fact provided her sufficient
opportunity to be heard. Specifically, Yarbrough requested and received a pretermination hearing. Docs. 20-2; 32-2 at 2; 32-9 at 2; 32-10 at 2. At the hearing,
Yarbrough had counsel, docs. 20-2 at 00:00–00:54; 32-2 at 2, testified, doc. 20-2 at
29:40–43:30, and had the opportunity to cross-examine the DHA’s representative
and sole witness at the hearing, id. at 15:19–25:21. Moreover, Yarbrough had an
opportunity to review all the documents DHA intended to present prior to the
hearing. Doc. 20-2 at 2:20–2:56. Therefore, the court finds that Yarbrough had a
meaningful opportunity to be heard prior to the termination of her benefits, and
that DHA is also due summary judgment on this issue.
C. The Hearing Officer Properly Relied On The Evidence Presented
Yarbrough further contends that DHA violated her right to due process by
basing its decision on hearsay evidence, i.e., the copies of the indictments against

11

her.4 Doc. 1 at 2. At issue here is whether the hearing officer properly relied on the
indictments to find that, by a preponderance of the evidence, Yarbrough had
engaged in drug-related criminal activity.5 As Yarbrough puts it in her motion,
“Yarbrough contends that as a matter of law an unsupported grand jury indictment
is . . . not sufficient evidence to support the termination of [her] benefits.” Doc. 40
at 16. Consequently, Yarbrough contends that she is entitled to summary judgment
on this issue.
Relevant here, “[t]he Housing Authority has the burden of persuasion in
Section 8 termination hearings and ‘must initially present sufficient evidence to
establish a prima facie case’ that Plaintiff violated her Section 8 obligations in a
manner justifying termination.” Sanders v. Sellers-Earnest, 768 F. Supp. 2d 1180,
1185 (M.D. Fla. 2010) (quoting Basco v. Machin, 514 F.3d 1177, 1182 (11th Cir.
2008)). At a termination hearing, “[e]vidence may be considered without regard to
admissibility under the rules of evidence applicable to judicial proceedings.” 24
C.F.R. § 982.555. “[H]earsay evidence may constitute substantial evidence in
4

“[A] PHA . . . may not base a determination that an applicant or household engaged in criminal
activity warranting . . . termination of assistance, or eviction on a record of arrest(s).” Doc. 32-5
at 5. However, PHAs may “utilize other evidence, such as police reports detailing the
circumstances of the arrest, witness statements, and other relevant documentation to assist them
in making a determination that disqualifying conduct occurred.” Id. Here, the hearing officer
relied on “other relevant documentation,” i.e., the indictments, rather than the underlying arrests.
5

DHA “may terminate assistance for criminal activity . . . if [it] determines, based on a
preponderance of the evidence, that the household member has engaged in the activity,
regardless of whether the household member has been arrested or convicted of such activity.”
Doc. 32-8 at 4 (DHA’s Administrative Plan).
12

administrative proceedings as long as factors that assure the ‘underlying reliability
and probative value’ of the evidence are present.” U.S. Pipe and Foundry Co. v.
Webb, 595 F.2d 264, 270 (5th Cir. 1979) (emphasis added) (citations omitted).6
The “underlying reliability and probative value” of hearsay evidence depends on
whether:
(1) the out-of-court declarant was not biased and had no interest in the
result of the case; (2) the opposing party could have obtained the
information contained in the hearsay before the hearing and could
have subpoenaed the declarant; (3) the information was not
inconsistent on its face; and (4) the information has been recognized
by courts as inherently reliable. [“The J.A.M. Builders test”].
Basco, 514 F.3d at 1182 (citing J.A.M. Builders, Inc. v. Herman, 233 F.3d 1350,
1354 (11th Cir. 2000)).
According to Yarbrough, indictments do not constitute substantial evidence
under the J.A.M. Builders test. Doc. 34 at 6–9. Therefore, Yarbrough contends that
DHA failed to present a prima facie case regarding her alleged criminal conduct.
Id. Yarbrough presents four main reasons to support her contention that DHA
cannot rely on the indictments to make a prima facie case. For the reasons stated
below, none of Yarbrough’s contentions are persuasive, and, as a result, her motion
is due to be denied.

6

The applicable regulations expressly state that hearsay and other “evidence may be considered
without regard to admissibility under the rules of evidence applicable to judicial proceedings.”
24 C.F.R. § 982.555(e)(5).
13

First, Yarbrough argues that the anonymity of the grand jurors who indicted
her “make [the indictments] less reliable and probative rather than more.” Doc. 34
at 7. However, the Fifth Amendment requires only that an indictment be “returned
by a legally constituted and unbiased grand jury.” Costello v. United States, 350
U.S. 359, 363 (1956). There is no contention by Yarbrough that the grand jury that
issued the indictments against her was illegally constituted or biased. Therefore,
her first contention is unavailing.
Second, Yarbrough argues that the anonymity provided to grand jurors
precluded her from issuing them subpoenas, and, because the court agreed to
dismiss the actual criminal charges against her (pending court costs), she had no
opportunity to subpoena the witness (Officer Lance Royals) for a trial and crossexamine him.7 Docs. 32-4 at 3, 5; 34 at 1, 8–9. Again, the Fifth Amendment only
requires that indictments are returned by legally constituted and unbiased jurors.
See Costello, 350 U.S. at 363. There is no requirement under the Constitution for a
defendant to cross-examine grand jurors. Next, Yarbrough’s contention that she
never had an opportunity to cross-examine Officer Royals at a criminal trial or
before the hearing officer also misses the mark. As an initial matter, presumably,
Yarbrough and her counsel agreed to a dismissal of her criminal case in exchange
7

Yarbrough also contends that her inability to subpoena Royals for the administrative hearing
further prevented her from challenging the information. Doc. 34 at 7–8 (“Because the criminal
charges pending against Ms. Yarbrough were dismissed, she also had no opportunity to subpoena
the officer and cross-examine him/her. Similarly the Plaintiff has no access to subpoena powers
in the hearing in this case.”).
14

for court costs, and in doing so, agreed to forego her rights under the Sixth
Amendment Confrontation Clause. Also, Yarbrough had access to the indictment
documents through her criminal case and also received advanced notice that DHA
intended to use the indictments as evidence at her administrative hearing. See doc.
20-2 at 00:00–00:20, 2:23–3:00.8 Thus, Yarbrough had the opportunity to prepare
appropriate rebuttal evidence for the hearing, including, if she was so inclined, to
obtain a statement from Officer Royals or from witnesses who could contradict
Officer Royal’s contention that Yarbrough had engaged in criminal drug activity.
Third, Yarbrough argues that the indictments are inconsistent, because “the
only witness listed on the face of the indictment [i.e., Officer Royals] does not
appear to have knowledge of the alleged events.” Doc. 34 at 8. However, “without
evidence of perjury or government misconduct,” an indictment is not flawed
“simply because it is based on testimony that later may prove to be questionable.
Such a rule of law would necessitate independent judicial review of the credibility
of grand jury witnesses, an exercise that would seriously infringe upon the
traditional independence of the grand jury.” See United States v. Hyder, 732 F.2d
841, 845 (11th Cir. 1984) (quoting United States v. Sullivan, 578 F.2d 121, 124
(5th Cir. 1978)) (internal quotations omitted). Therefore, where, as here, the court

8

In fact, the hearing officer postponed the hearing to allow the parties an opportunity to
exchange discovery materials, and both parties conceded at the hearing that they had done so to
their “satisfaction.” Doc. 20-2 at 02:20–02:57.
15

only has Yarbrough’s allegation regarding the witness’s purported lack of firsthand knowledge of her case, the court concludes that the indictments are consistent
on their face, as they indict Yarbrough for the same crimes for which she was
arrested and charged, and do not conflict with any of the evidence presented to the
hearing officer.
Finally, Yarbrough contends that indictments are generally unreliable, doc.
34 at 8,9 and argues that the court should treat them like arrest reports, upon which
HUD does not allow PHAs to “base a determination that an applicant or household
engaged in criminal activity warranting . . . termination of assistance.” Doc. 32-5 at
5; see also id. at 4 (arrest records “show nothing more than that someone probably
suspected the person apprehended of an offense” and “[i]n many cases, arrests do
not result in criminal charges, and even where they do, such charges can be and
often are dismissed or the person is not convicted of the alleged crime”). The court
disagrees. Indictments are distinct from arrest reports and are sufficiently reliable,
because they “conclusively determine[] the existence of probable cause to believe
the defendant perpetrated the offense alleged.” Kaley v. United States, 134 S. Ct.

9

Specifically, Yarbrough points to two cases: (1) United States v. Navarro-Vargas, 408 F.3d
1184, 1195 (9th Cir. 2005), referencing that “many criticize the modern grand jury as no more
than a ‘rubber stamp’ for the prosecutor;’” and (2) In re Grand Jury Subpoena of Stewart, 144
Misc.2d 1012, 1016 n.1 (N.Y. Sup. Ct. 1989), explaining that “many lawyers and Judges have
expressed skepticism concerning the power of the Grand Jury . . . [because] a Grand Jury would
indict a ‘ham sandwich.’” Doc. 34 at 8. These cases are not persuasive, in part, because the
courts were merely discussing a variety of views regarding grand juries and made no finding
regarding their reliability.
16

1090, 1097 (2014) (citations and quotations omitted); see also doc. 40 at 15 n.3
(“The task of the grand jury is not to determine the guilt [of] a party but determine
whether or not the State has can [sic] demonstrate a prima facie case to move
forward to a trial.”) (citations omitted). Therefore, the indictments are legally
sufficient to establish by a preponderance of the evidence, as the hearing officer
found, that Yarbrough engaged in the alleged drug-related criminal activity.
Based on the court’s review of the evidence, the record belies Yarbrough’s
contention that DHA failed to make a prima facie case. To the contrary, it did so
by presenting evidence of Yarbrough’s arrest and her subsequent indictments. The
reliance on this hearsay evidence was proper because it had the requisite
underlying reliability and probative value. As such, the court finds that DHA met
its burden of persuasion by establishing a prima facie case.
Because DHA met its burden, the burden of production shifted to Yarbrough
to show that she had not engaged in the alleged drug-related criminal activity. See
Basco, 514 F.3d at 1182. Apparently, based on her belief that DHA had failed to
meet its burden through, in part, DHA’s reliance on the indictments rather than
presenting actual facts of Yarbrough’s alleged criminal conduct, Yarbrough asserts
that she had no burden to produce any evidence at the hearing. Doc. 34 at 4 n.1, 9,
12. Consequently, Yarbrough failed to present any specific evidence to rebut the
contentions that she had engaged in the alleged criminal activity. See docs. 1; 20-2
17

at 29:40–41:50; 34. Instead, Yarbrough attempted to meet her burden twofold —
both of which failed to rebut DHA’s prima facie case. First, Yarbrough testified
that she had a deal with the prosecutor to dismiss the charges after she paid court
costs. See docs. 20-2 at 39:24–40:00; 34-1; 40 at 10 (stating in her motion for
summary judgment that “[t]o rebut the hearsay evidence Yarbrough produced an
order of the court indicating that the charges against her were in the process of
being dismissed upon payment of court costs.”). However, an agreement to dismiss
the charges in exchange for court costs is not the same thing as a dismissal on the
merits. Indeed, although the hearing officer concluded that “Yarbrough presented
credible evidence that [her criminal cases] will be dismissed on payment of court
costs,” doc. 32-2 at 3, he still found that based on the preponderance of the
evidence Yarbrough had engaged in the underlying criminal activity.
Second, Yarbrough testified that she had an agreement with DHA to defer
the termination proceedings until after the resolution of her criminal cases. See id.
at 39:06–39:22, 40:14–40:55; docs. 32-2 at 3; 32-13 at 5. However, the hearing
officer rejected this contention, finding that Yarbrough had failed to prove, let
alone “present any evidence”10 supporting this contention. Doc. 32-2 at 3.
Specifically, the hearing officer stated,

10

In fact, when the hearing officer asked if Yarbrough had a written document showing that an
agreement existed, “the only written document” presented came from DHA’s administrative
records in which DHA labeled Yarbrough’s file as “pending action in this file.” Doc. 20-2 at
18

Yarbrough relies on an internal note produced by the Authority,
indicating that the Authority’s legal counsel had advised the Authority
to continue paying Ms. Yarbrough’s subsidy until a court decision is
rendered. This note falls woefully short of an agreement to withhold
termination action pending final adjudication of the criminal action.
Id. (emphasis in original). The court finds no error in this finding in light of the
evidence before the hearing officer.11

40:00–40:30. This evidence does not sufficiently suggest or prove the existence of an agreement.
Moreover, even if such an agreement had existed, it would not have disproved Yarbrough’s
alleged criminal activity because, as Yarbrough’s counsel acknowledged, even with the
purported agreement, DHA had the right to proceed with termination proceedings at a later date.
Id. at 40:40–40:55.
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In their briefs, the parties disagree on whether the hearing officer’s finding regarding the
purported agreement rises to a credibility determination, and whether the hearing officer assessed
Yarbrough’s credibility in general. As Yarbrough puts it, “[t]he hearing officer’s decision does
not include any indication that [Yarbrough’s] behavior or demeanor played any part in his
decision.” Doc. 34 at 9. Yarbrough adds also that “it is unclear how the hearing officer could
evaluate or make determinations about [Yarbrough’s] guilt or innocence since she did not
discuss any of the facts regarding the allegations [in the hearing]. [Yarbrough’s] statements on
this matter largely regarded the procedural nature of the court case and are undisputed.” Id.; see
also doc. 40 at 12–13. The court disagrees because the hearing officer in fact addressed
Yarbrough’s credibility through his rejection of Yarbrough’s contentions regarding the purported
agreement. Specifically, while Yarbrough may contend that her testimony merely outlined “the
procedural nature of the court case,” it is clear from the record that the hearing officer found
Yarbrough’s testimony and evidence on this issue “woefully short.” Consequently, although
Yarbrough is correct that the hearing officer did not explicitly mention Yarbrough’s credibility in
his decision, see doc. 40 at 17, implicit in any finding expressly rejecting a witness’s contention
on a specific issue is a determination that the person’s testimony is not credible. See also doc.
32-13 at 5 (the hearing officer explaining in his affidavit that he found Yarbrough’s testimony on
this particular issue was not credible). Therefore, Yarbrough’s contention that “[t]he only way
the Hearing Officer could use his observation of [Yarbrough] to determine her guilt was if she
simply looked so guilty that he could simply determine her guilt without having her speak about
the issue,” doc. 34 at 9, is unavailing because specific denial or testimony about the underlying
drug charge is not necessary for the hearing officer to assess Yarbrough’s credibility. The
hearing officer had the unique opportunity to observe Yarbrough and to assess her demeanor
during her testimony, and in doing so had a bird’s eye vantage point to make the determination
about whether to believe Yarbrough.
Deference is given to the credibility determinations of fact finders in administrative hearings,
unless those determinations are “inherently unreasonable or self-contradictory.” See N.L.R.B. v.
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In short, where, as here, DHA met its burden of persuasion, and Yarbrough
failed to meet her burden of production to show that she had not engaged in the
alleged criminal activity, see Basco, 514 F.3d at 1182, the court finds that the
hearing officer’s decision was proper in light of the evidence presented. Contrary
to Yarbrough’s contention, HUD regulations and the case law are clear that DHA
can rely on hearsay evidence. Moreover, the hearsay evidence here had the
requisite underlying reliability and probative value. If “the reviewing court [is]
satisfied that the hearing officer’s conclusions are supported by substantial
evidence,” then “deference must be shown to the factfinding [sic] of local housing
authorities.” Clark v. Alexander, 85 F.3d 146, 151–52 (4th Cir. 1996); see also
Home Health Servs. of the U.S., Inc. v. Schweiker, 683 F.2d 353, 356–57 (11th Cir.
1982) (“The scope of review of agency actions is limited to a determination of
whether the Board’s findings are arbitrary, capricious, an abuse of discretion, not
in accordance with the law or unsupported by substantial evidence in the record as
United Sanitation Serv., Div. of Sanitas Serv. Corp., 737 F.2d 936, 938 (11th Cir. 1984); see also
United States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002) (“Credibility determinations
are typically the province of the fact finder because the fact finder personally observes the
testimony and is thus in a better position than a reviewing court to assess the credibility of
witnesses.”). Here, there is no suggestion that the hearing officer’s determination as to the
purported agreement, and Yarbrough’s credibility in that regard, was inherently unreasonable or
self-contradictory. To the contrary, Yarbrough’s unsubstantiated assertion about a deferred
agreement, her demeanor, and the indictments were sufficient for the hearing officer to find that
DHA had met its burden and to find against Yarbrough. Therefore, the court holds that the
hearing officer’s credibility determination is not inherently unreasonable or self-contradictory
and is entitled to deference. See Parker v. Bowen, 788 F.2d 1512, 1521 (11th Cir. 1986) (“The
opportunity to observe the demeanor of a witness, evaluating what is said in the light of how it is
said, and considering how it fits with the rest of the evidence gathered before the person who is
conducting the hearing, is invaluable, and should not be discarded lightly.”) (citation omitted).
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a whole.”). Accordingly, because the substantial evidence supports the hearing
officer’s finding that the preponderance of the evidence established that Yarbrough
had engaged in criminal activity, and in light of Yarbrough’s failure to establish
that her constitutional rights were violated, Yarbrough’s motion for summary
judgment is due to be denied, and DHA’s motion granted.
IV.

CONCLUSION

For the aforementioned reasons, DHA’s motion for summary judgment, doc.
30, is due to be granted, and Yarbrough’s motion, doc. 40, is due to be denied. The
court will enter a final order contemporaneously herewith.
DONE the 6th day of March, 2017.

_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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