Brawner v. Pasco County Housing Authority et al
Filing
26
ORDER denying 7 Motion for Preliminary Injunction. Signed by Magistrate Judge Anthony E. Porcelli on 10/9/2014. (FDM)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARMAINE BRAWNER,
Plaintiff,
v.
Case No: 8:14-cv-01616-SDM-AEP
PASCO COUNTY HOUSING AUTHORITY,
and LINDA WRIGHT, in her Official
Capacity as Interim Executive Director
Of the Pasco County Housing Authority,
Defendants.
/
ORDER
This matter is before the Court upon Plaintiff Charmaine Brawner’s Motion for a
Preliminary Injunction (“Motion”) (Doc. 7), which was referred to the undersigned by the
Honorable Steven D. Merryday (Doc. 8). 1 Defendants oppose Plaintiff’s Motion and filed a
Notice of Affidavit In Advance of Hearing on Motion for Preliminary Injunction (Doc. 24), but
did not file a written response in opposition to the Motion. For the reasons stated herein, the
undersigned DENIES Plaintiff’s Motion (Doc. 7).
I. Procedural History
Plaintiff brought this action against Defendants alleging entitlement to continued
participation in the United States Department of Housing and Urban Development (HUD)
Section 8 Housing Choice Voucher Program (Doc. 1). Plaintiff seeks a declaration that
Defendants’ termination of her Section 8 assistance violates the Due Process Clause of the
1
The District Judge referred the instant motion for issuance of a report and
recommendation (if granted) or for disposition (if denied) (Doc. 8). See 28 U.S.C. § 636; M.D.
Fla. R. 6.01.
Fourteenth Amendment to the United States Constitution, as well as an Order from the Court
serving to retroactively reinstate her Section 8 assistance as of July 2014 (Doc. 1).
On July 17, 2014, Plaintiff moved for a preliminary injunction, requesting that the Court
order the Defendants to reinstate Plaintiff’s Section 8 Voucher, retroactive to July 31, 2014
(Doc. 7). The Motion contends that Plaintiff has a substantial likelihood of prevailing on the
due process challenge (Doc. 7 at 5), irreparable injury in the form of eviction (Doc. 7 at 12), no
substantial harm to the Defendants or others (Doc. 7 at 12), and that a preliminary injunction
would serve the public interest (Doc. 7 at 13).
As noted above, Defendants subsequently filed an affidavit of Shelly May Johnson,
Esq., detailing the history of Plaintiff’s relationship with the Pasco County Housing Authority
(“PCHA”), including a timeline of events now at issue in Plaintiff’s due process challenge (Doc.
24-1).
On September 19, 2014, a motion hearing was held on this matter before the
undersigned (“Mot. Hr’g”) (Doc. 25). At the hearing, the parties agreed that the Motion
predominantly turns on the likelihood of success on the merits. Mot. Hr’g, Sept. 19, 2014, Oral
Argument at 10:07, 10:26-28.
II. Background
A brief summary of the facts is as follows: On February 14, 2014, a Notice of Intent to
Terminate was sent to the Plaintiff due to alleged activity at the residence in violation of the
Section 8 program. A hearing was set for February 26, 2014, which was eventually continued
by stipulation. On May 20, 2014, notice was sent to Plaintiff that her thirty-minute hearing
had been rescheduled to occur May 30, 2014, at 10:00 A.M. Plaintiff was in receipt of the
notice as of May 23, 2014, and Plaintiff’s counsel contends that he received notice through
2
the Plaintiff on the morning of May 28, 2014—the day he returned to the office after a
vacation. 2 On that day, Plaintiff’s counsel contacted PCHA requesting a continuance, which
was reviewed and denied by the Hearing Officer. Plaintiff did not attend the hearing on May
30, 2014. Subsequently, in a letter dated June 11, 2014, Plaintiff requested a hearing, which
was denied. On June 16, 2014, Plaintiff’s benefits were cancelled effective August 1, 2014.
III. Preliminary Injunction
The decision to grant or deny a preliminary injunction is within the discretion of the
district court. Carillon Imps., Ltd. v. Frank Pesce Int’l Grp. Ltd., 112 F.3d 1125, 1126 (11th
Cir. 1997). In determining whether a preliminary injunction should issue, the district court
considers whether the moving party has demonstrated: (1) a substantial likelihood of success
on the merits; (2) irreparable harm to the moving party unless the injunction issues; (3) the
threatened injury to the movant outweighs the potential harm the proposed injunction may cause
the opposing party; and (4) if issued, the injunction would not disserve or be adverse to the
public interest. MacGinnitie v. Hobbs Grp., LLC, 420 F.3d 1234, 1240 (11th Cir. 2005). Since
a preliminary injunction is an extraordinary and drastic remedy, a district court should not issue
a preliminary injunction unless the movant clearly establishes the burden of persuasion as to
each of the four prerequisites. Four Seasons Hotels & Resorts, B.V. v. Consorcio Barr, S.A.,
320 F.3d 1205, 1210 (11th Cir. 2003). Because the Court finds that Plaintiff has failed to
establish a substantial likelihood of success on the merits, the Court need not address the
2
PCHA’s affidavit claims that both Plaintiff and Plaintiff’s counsel were notified by
mail sent on May 20, 2014.
3
remaining factors. 3 See id.; McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.
1998).
A. Success on the Merits
To establish a likelihood of success on the merits, Plaintiff must establish a substantial
likelihood that Plaintiff will be successful in establishing a constitutional due process violation
in the PCHA’s termination of her Section 8 benefits. The Court finds that Plaintiff has not met
this burden. See Four Seasons, 320 F.3d at 1210.
The Eleventh Circuit has found the protections afforded by the Due Process Clause of
the United States Constitution to apply in equal force to Section 8 public housing assistance.
Basco v. Machin, 514 F.3d 1177, 1182 n. 7 (11th Cir. 2008) (citing Goldberg v. Kelly
(“Goldberg”), 397 U.S. 254, 266 (1970)). “The fundamental requirement of due process is the
opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v.
Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). “These principles require that a recipient
have timely and adequate notice detailing the reasons for a proposed termination, and an
effective opportunity to defend by confronting any adverse witnesses and by presenting his own
arguments and evidence orally.” Goldberg, 397 U.S. at 267-68. Additionally, “[t]he right to
be heard would be, in many cases, of little avail if it did not comprehend the right to be heard
by counsel.” Id. (citing Powell v. Alabama, 287 U.S. 45, 68—69 (1932)).
Plaintiff argues that the PCHA’s actions denied her of the opportunity to be represented
by counsel due to insufficient and untimely notice. In support of this claim, Plaintiff contends
3
While the Court recognizes that “it is a fundamental and longstanding principle of
judicial restraint ... that courts avoid reaching constitutional questions in advance of the
necessity of deciding them,” Siegel v. LePore, 234 F.3d 1163, 1179 n. 12 (11th Cir. 2000)
(citing Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 445 (1988)), the
Court in this instance sees no alternative to addressing the merit of Plaintiff’s constitutional
arguments.
4
that she had retained counsel, that PCHA was aware Plaintiff had obtained counsel, and that
PCHA failed to coordinate the hearing date or place with Plaintiff or with counsel. In the same
vein, Plaintiff argues that counsel returned from a short office vacation on Wednesday, May
28th, and had prior work commitments which prevented him from preparing for and attending
the May 30th hearing. Plaintiff thus challenges the adequacy of notice as well as the fairness of
the hearing itself—alleging that its structure was, by design, biased against the Plaintiff.
Turning first to the issue of proper notice—what process is due is measured by a flexible
standard that depends on the practical requirements of the circumstances. Nash v. Auburn
Univ., 812 F.2d 655, 661 (11th Cir. 1987) (citing Mathews, 424 U.S.at 334). With regard to
timing, “there are no hard and fast rules by which to measure meaningful notice.” Id. at 661.
In Goldberg, the United States Supreme Court expressly declined to hold that seven days’
notice was per se constitutionally insufficient, commenting that “there may be cases where
fairness would require that a longer time be given.” 397 U.S. at 268.
Plaintiff’s reliance on this statement in Goldberg has no merit as applied to the instant
case. Plaintiff was on notice of an impending rescheduled hearing in February 2014—several
months prior to May 30th—when Plaintiff was first put on notice of PCHA’s intent to terminate
and was made aware of the continued hearing. This stands in staunch contrast to the seven-day
termination and hearing period in Goldberg, where even there the Supreme Court declined to
rule that such a period was per se constitutionally insufficient. See 397 U.S. at 258, 268. It is,
therefore, difficult to conclude that the situation at bar is one of those cases where fairness
requires that a longer time be given. See id. at 268.
Even if the Court were to calculate Plaintiff’s notice from May 23, 2014—the date
Plaintiff received notice of the hearing date by mail—Plaintiff has failed to carry her burden in
5
establishing a substantial likelihood of success in claiming that seven days’ time is
constitutionally insufficient. See id. at 267-68. A notice of the rescheduled hearing was
eventually mailed to Plaintiff by regular and certified mail on May 20, 2014—ten days prior to
the hearing. Upon receipt of the notice, Plaintiff had seven days to arrange transportation
(assuming Plaintiff did not want to take advantage of the telephonic hearing option) and prepare
for the thirty-minute termination hearing. It is unclear from the record why Plaintiff was unable
to contact potential witnesses and organize her evidence, despite having seven days’ notice of
the actual date and months’ notice of the impending hearing. Ultimately, Plaintiff cites no
authority in support of the premise that notice in this case was not 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.” See Nash, 812 F.2d at 661 (citing Memphis
Light, Gas & Water Div. v. Craft, 436 U.S. 1, 13, (1978)).
Moreover, Plaintiff’s appeal in this matter to a deprivation of the right to counsel, as an
outgrowth of the purported untimely notice, is unfounded. The right to counsel was recognized
in Goldberg as a natural extension of the right to be heard. 397 U.S. at 270 (“The right to be
heard would be, in many cases, of little avail if it did not comprehend the right to be heard by
counsel.”) (citing Powell v. Alabama, 287 U.S. 45, 68—69 (1932)). It is entirely another matter,
however, to find that because Plaintiff’s counsel’s vacation schedule conflicted with his notice
and detracted from the time available to prepare, that Plaintiff was deprived of the right to
counsel and of the right to be heard. See id. at 270 (“We do not say that counsel must be
provided at the pre-termination hearing, but only that the recipient must be allowed to retain an
attorney if he so desires.”). Goldberg’s comment on the necessity, in many cases, of “the right
to be heard by counsel” is clearly intended, as evidenced by the subsequent qualifying sentence,
6
to merely allow for counsel to be “retained” and present. See id. Plaintiff here was given the
opportunity to be represented at the hearing by counsel, and had months to prepare her case and
consult with an attorney. 4 Furthermore, assuming, arguendo, that the date Plaintiff’s counsel
was notified will have bearing on Plaintiff’s constitutional claims—a proposition that is also
unsupported by any authority the Court is aware of—it is unclear why more than two days
would be needed to prepare for a thirty-minute hearing that had been pending since February.
It is, therefore, a dubious proposition at best to maintain that Goldberg contemplates this type
of scenario rising to the level of a due process deprivation. See id.
Ultimately, the PCHA’s decision not to grant a second continuance rests on grounds
that Goldberg expressed a particular sensitivity to, by stating: “[w]e wish to add that
we…recognize the importance of not imposing upon the States or the Federal Government in
this developing field of law any procedural requirements beyond those demanded by
rudimentary due process.” See 397 U.S. at 267. The affidavit of Shelly May Johnson on behalf
of PCHA notes that Plaintiff’s hearing was handled in accordance with the Housing Authority’s
established procedures for all tenants, and that special treatment given to Plaintiff’s counsel
would, at a minimum, severely hamper PCHA’s ability to effectively and efficiently administer
the Section 8 program. (Doc. 24-1). In light of this representation, it is unlikely that a brief
administrative hearing, such as the one at issue, would be required by Goldberg under the
banner of due process fairness to be rescheduled because Plaintiff, with months’ notice of the
impending hearing and seven days’ notice of the actual hearing date, claimed an inability to
attend, and because counsel expressed an inability to attend and a lack of preparedness due to
4
It is also worth noting that counsel does not appear to have had a direct scheduling
conflict with the proposed time of the hearing, but instead had a hearing later in the afternoon
that day. (See Doc. 24-1).
7
the holiday weekend. See 397 U.S. at 267. Plaintiff’s argument to the contrary is, thus, best
categorized as a plea to equity, but that is not the standard that governs the Court’s
determination of this matter. See MacGinnitie, 420 F.3d at 1240. Accordingly, in consideration
of the foregoing, the Court finds that Plaintiff has not established a substantial likelihood of
success on the merits of her constitutional claims. See Four Seasons, 320 F.3d at 1210.
III. Conclusion
As previously discussed, a preliminary injunction is an extraordinary remedy to be used
only when a party has meet its burden in establishing the four prerequisites. Four Seasons, 320
F.3d at 1210. Here, Plaintiff has not met that burden.
Accordingly, after due consideration, it is hereby ORDERED:
Plaintiff’s Motion for Preliminary Injunction (Doc. 7) is DENIED.
IT IS SO ORDERED in Tampa, Florida, on this 9th day of October, 2014.
cc: Hon. Steven D. Merryday
Counsel of Record
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