Booker v. Johnson et al

Filing 10

ENTRY AND ORDER GRANTING BOOKER'S MOTION FOR A PRELIMINARY INJUNCTION (Doc. # 3 ). Signed by Judge Thomas M Rose on 6/22/10. (bac1)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT DAYTON DORA BOOKER, Case No. 3:10-cv-157 Plaintiff, Judge Thomas M. Rose -vGREGORY D. JOHNSON, et al., Defendants. ______________________________________________________________________________ ENTRY AND ORDER GRANTING BOOKER'S MOTION FOR A PRELIMINARY INJUNCTION (Doc. #3) ______________________________________________________________________________ Plaintiff Dora Booker ("Booker") brought this Complaint (doc. #2) alleging that the Defendants violated 42 U.S.C. § 1437a and 42 U.S.C. § 1437f. The Defendants are Gregory D. Johnson personally and in his official capacity as Executive Director of Dayton Metropolitan Housing Authority ("DMHA"), Darryl Miles1 personally and Dawn Elliott2 personally. This matter is before the Court on Booker's Motion for a Preliminary Injunction. (Doc. #3.) Booker seeks to enjoin the Defendants from imputing Social Security benefit payments received by her ex-husband for her two children as income to her household when determining her portion of the rent under the Section 8 Housing Choice Voucher Program and from demanding back rent as a result of the determination. By agreement of the Parties, this matter will be decided on the briefs without the necessity of a hearing. The Parties also agreed that the Defendants would restore the amount of

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Darryl Miles is the DMHA Section 8 Manager. Dawn Elliot is the DMHA Hearing Officer.

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Booker's rent subsidy payment and not terminate her participation in the Section 8 Housing Voucher Program until the Court decides Booker's Motion for a Preliminary Injunction. (Doc. #4.) The Motion for a Preliminary Injunction is now fully briefed and ripe for decision. The relevant facts as taken from a joint Stipulation of Facts submitted by the Parties (doc. #6) will first be set forth followed by the relevant legal provisions and an analysis of the Motion. RELEVANT FACTS Booker is a divorced mother of two children, a fourteen-year-old daughter and a twelveyear-old son. She is currently disabled with Lupus. Booker's ex-husband, Lamauel Booker, is designated by the Montgomery County Domestic Relations Court as the residential parent of the two children. However, Booker has regular parenting time with the two children. The children reside with Booker at least half of the time and are listed as household members on the lease with the DMHA. Yet, Booker is not solely responsible for the care, support and maintenance of the two children since she is not the residential parent and the children reside at least half the time with Lamauel Booker. Booker's daughter was diagnosed in 2008 with a terminal illness. Booker has since been the parent responsible for coordinating all of the medical care for her daughter. Lamauel Booker is retired and receives Social Security benefits. The two children qualify for Social Security benefit payments as a result of Lamauel Booker's retirement status. Lamauel Booker is the payee for the children's Social Security Benefits in the amount of $719 per month per child. Until January of 2010, Booker was unaware that Lamauel Booker was receiving the children's Social Security benefits, and she currently has no control over or entitlement to these

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funds. She has received none of the children's money or Social Security benefits from Lamauel Booker. Beginning in March of 2009, Booker began participating in the Housing Choice Voucher Program, a Department of Housing and Urban Development ("HUD") program administered in Montgomery County, Ohio by the Defendants. As a result of her participation in this HUD program, Booker entered into a lease with landlord Teresa Franklin for a unit at 5031 Ballard Avenue in Dayton, Ohio. The Defendants approved this lease, and contemporaneously with the approval of the lease, the Defendants and Teresa Franklin entered into a Housing Assistance Payments ("HAP") Contract. Under the HAP Contract, Defendants agreed to pay Teresa Franklin $420 per month for rent on behalf of Booker. Booker pays the remaining $270 per month. In January of 2010, the Defendants began the process of recalculating Booker's rent. DMHA then discovered that the children received Social Security Benefits. The Defendants next informed Booker that the children's Social Security benefits received and controlled by Lamauel Booker would be included and counted as part of her household income. As a result, the Defendants determined that Booker owed $4,382 in back rent and increased her portion of the rent to $690 effective March 1, 2010, and to $679 per month effective April 1, 2010. Booker currently receives approximately $1,387 in total monthly income. She receives $284 from a private pension and $1,103 from private disability insurance. As a result of the recalculation, Booker timely requested an informal hearing to contest the changes to her housing assistance payments. Since this was a matter contesting what monies

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could be included as household income, the DMHA concluded that it need not present any evidence and did not present any evidence at the hearing. Booker testified at the hearing that she has no dominion or control over the children's Social Security benefits and that she does not receive any portion of this benefit from Lamauel Booker. She further testified that she did not know that Lamauel Booker was receiving the children's Social Security benefits until the Defendants brought this to her attention. Hearing officer Dawn Elliott ("Elliott") thus relied upon the evidence presented by Booker to reach her conclusion. On March 18, 2010, Elliot issued a decision concluding that Booker was liable for $4,382 in back rent and that her housing assistance payments would be reduced to $11 per month effective April 1, 2010. The Housing Choice Voucher benefits are vital to Booker retaining housing for herself and her two children. Without the Housing Choice Voucher benefits, Booker says she cannot independently afford decent, safe and sanitary housing for herself and her two children. She faces imminent risk of being evicted because she is unable to pay a monthly rent that is calculated based upon the children's Social Security benefits received by Lamauel Booker. She is not entitled to receive these monies, has no access to or control over these monies and has no influence on how these monies are spent. RELEVANT LEGAL PROVISIONS Preliminary Injunction The purpose of a preliminary injunction is to preserve the relative positions of the parties until a trial on the merits can be held. Montgomery v. Carr, 848 F. Supp. 770, 774-75 (S.D. Ohio 1993). When deciding a motion for a preliminary injunction, a court is to consider and balance

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four factors: (1) whether the movant has a strong likelihood of success on the merits; (2) whether the movant would suffer irreparable injury without the injunction; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by issuance of the injunction. Chabad of Southern Ohio & Congregation Lubavitch v. City of Cincinnati, 363 F.3d 427, 432(6th Cir. 2004)(citing Blue Cross & Blue Shield Mutual of Ohio v. Columbia/HCA Healthcare Corp., 110 F.3d 318, 322 (6th Cir. 1997)). Generally, the extent that the movant must demonstrate a substantial likelihood of success on the merits varies inversely with the degree of harm the party will suffer absent an injunction.3 Montgomery, 848 F. Supp. at 775. Issuance of a preliminary injunction may be appropriate where the movant fails to show a strong likelihood of success on the merits but at least shows serious questions going to the merits and irreparable harm which decidedly outweighs any potential harm to the non-movant if an injunction is issued. Id.(citing In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985)). Finally, monetary or economic harm by themselves do not constitute irreparable injury and failure to demonstrate irreparable injury may be fatal to a motion for a preliminary injunction. Id.(citing Southern Milk Sales, Inc. v. Martin, 924 F.2d 98, 103 (6th Cir. 1991); State of Ohio ex rel. Celebreezze v. N.C.R., 812 F.2d 288, 290 (6th Cir. 1987)). Interpretation of the Relevant Statutes and Regulations The matter before the Court involves the application of two statutes and the

The Eleventh Circuit has found that irreparable injury may be presumed from violations of the fair housing statutes. Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1423 (11th Cir. 1984)(when a movant shows a substantial success of likelihood on the merits that a non-movant has violated specific fair housing statutes and regulations, a preliminary injunction remedying those violations is warranted). -5-

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accompanying regulation to Booker. As a result, the Court is asked to interpret the statutes and accompanying regulation. Section 1983 is generally available to enforce violations of federal statutes by agents of the state.4 Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423 (1987). There are two exceptions to this tenet: where Congress has foreclosed such enforcement in the enactment itself and where the statute did not create enforceable rights, privileges or immunities within the meaning of § 1983. Further and relevant here, the Supreme Court has determined that nothing in the Housing Act or the Brooke Amendment indicates that Congress intended to preclude actions by private individuals for violations of these statutes. Id. at 429. Thus, neither of these exceptions apply here and neither party has, thus far, argued otherwise. When determining whether a regulation is valid, a reviewing court must first determine if the regulation is consistent with the language of the statute. K-Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). If the language of the statue is clear and unambiguous, the court must give effect to the language of the statute. Id. When determining the plain meaning of the statute, the court must look to the particular statutory language at issue and the language and design of the statute as a whole. Id. If the statute is silent or ambiguous with respect to the specific issue addressed by the regulation, the question becomes whether the agency regulation is a permissible construction of the statute. Id. If the agency regulation is not in conflict with the plain language of the statute,

The Defendants argue that the factors set forth in Feathers v. Aey, 319 F.3d 843, 848 (6th Cir. 2003), are used to assess a § 1983 claim. However, the factors set forth in Aey are used to assess a claim of qualified immunity to a § 1983 action and are thus not applicable here at this time. -6-

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the court must give deference to the agency's interpretation of the statute. Id. Said another way, regulations implementing statutes are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984). Relevant Statutes and Federal Regulations Booker argues that the Defendants have failed to comply with 42 U.S.C. § 1437a and 42 U.S.C. 1437f. Relevant portions of each follow. The rent paid by families in the Housing Choice Voucher Program is set by formula established by Congress in 42 U.S.C. § 1437f(o). The formula uses the family income in determining what portion of the rent the family pays and what portion of the rent the Housing Authority pays. 42 U.S.C. § 1437f(o)(2). This subsection does not further define family income or adjusted family income. However, subsection 1437a(b)(4) defines income as "income from all sources of each member of the household, as determined in accordance with criteria prescribed by the Secretary, in consultation with the Secretary of Agriculture, except that any amounts not actually received by the family and any amounts which would be eligible for exclusion under section 1382b(a)(7) of this title or any deferred Department of Veterans Affairs disability benefits that are received in a lump sum amount or in prospective monthly amounts may not be considered as income under this paragraph." 42 U.S.C. 1437a(b)(4). HUD has further implemented Congress's definition of income in its regulations. Income is defined as "all amounts, monetary or not, which go to, or on behalf of, the family head or spouse (even if temporarily absent) or to any other family member..." 24 C.F.R. 5.609(a)(1).

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Relevant Caselaw The Parties have argued about the meaning of two cases relevant to the issue at hand. Each will be discussed seriatim. The first is Garvey v. Worchester Housing Authority, 629 F.2d 691 (1st Cir. 1980). In Garvey, the plaintiff sought to enjoin HUD's practice of considering minor's Social Security benefits as family income for the purpose of computing rent levels for public housing.5 Id. at 692. The Secretary of HUD has promulgated a regulation that is interpreted by HUD as requiring minor's Social Security benefits to be considered as family income. Id. The First Circuit determined that, "since neither the plain meaning nor any ascertainable purpose of the Housing Act is violated by this regulation, we must defer to the agency's interpretation of the act." Id. at 695. The First Circuit then went on to consider the agency's interpretation of the act and concluded that "the Secretary's interpretation of the regulation might very well not be the only possible construction" but "it is not, however, clearly contrary to the plain and sensible meaning of the regulation." Id. As the First Circuit pointed out, several federal courts have, when interpreting the payee's duty, forbidden states to consider a minor's Social Security benefits as income available to the family or to the parents for the purposes of computing welfare payments. Id. at 694-95. Finally, the First Circuit considered the case where the representative payee is not the head of the household. Id. at 696. They concluded, "[w]hile there might conceivably be cases

A minor's Social Security benefits are provided to replace the income lost because of the death or disability of a wage-earning parent. Garvey, 629 F.2d at 692. The minor's benefits are paid to a "representative payee" who is obligated to expend the money for the "use and benefit" of the child if necessary for support, and otherwise to be conserved for the child, most often to pay for education. Id. -8-

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where the representative payee falls outside that provision, such a circumstance seems unlikely, and we do not feel that the possibility of a few exceptional cases undercuts the general validity of the Secretary's interpretation. The HEW regulations requiring that a representative payee have a relationship to or responsibility for the care of the beneficiary seem consistent with HUD's assumption that the representative payee will generally reside with the beneficiary, and will be the person if any responsible for the child's support." Id. The First Circuit concluded that the hardship that may result in those presumably few instances where support (from stepparents) is not forthcoming does not constitutionally preclude Congress from adopting a statutory rule designed to fit the generality of the cases." Id. The second case argued by the Parties is Cincinnati Metropolitan Housing Authority v. Edwards, 881 N.E.2d 325 (Ohio Ct. App. 2007). In Edwards, the defendant was an individual whose rent for Section 8 housing was calculated based upon a monthly income that did not include child support payments that were made by him. Id. at 327. None of the children he was paying child support for actually lived with him and two of the children were then adults. Id. The trial court found that the defendant's child support payments should not be included in the determination of his rent. Id. On appeal, the Ohio First District Court of Appeals found that the defendant had constructive receipt of the child support payments because they were being used to pay his child support obligation. Id. at 330. The Appeals Court reasoned that, because the term "received" as used in 42 U.S.C. § 1437a(b)(4) and 24 C.F.R. 5.609(b)(4) does not mean that Social Security disability funds must be physically received in the "tenant's" hands before they can be counted as income...." Id. at 331. ANALYSIS

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When deciding a motion for a preliminary injunction, the court is to balance four factors. Each of the four factors will be considered seriatim. Likelihood of Success On the Merits Booker argues that she has a substantial likelihood of success on the merits because the Defendants are not complying with 42 U.S.C. §§ 1437a and 1437f. The Defendants respond, relying upon the Garvey holding, that "the representative payee need not be the head of the household in which the child resides, he may be anyone with a sufficient relationship to or responsibility for the child." Garvey, 629 F.3d at 695. The Defendants also rely on Garvey where the First Circuit held that the Secretary of HUD's application of 42 U.S.C. § 1437 regarding treating the children's Social Security benefits as income as set forth in 24 C.F.R. 5.609(a)(1) was an acceptable reading of the law and that the regulation was constitutional. Id. at 695-96. The Court must begin its analysis of HUD's regulation regarding the children's Social Security benefits with the statute upon which it is based, 42 U.S.C. 1437(b)(4). This statute is clear and unambiguous in its definition of income and neither of the Parties argue otherwise. This statute provides that income means income from all sources of each member of the household and restricts income to income actually received. 42 U.S.C. § 1437a(b)(4). HUD has implemented this statute with 24 C.F.R. 5.609(a) which provides that income means all amounts, monetary or not, which go to, or on behalf of, the family head or spouse (even if temporarily absent) or to any other family member. There are at least two problems with this regulation as it attempts to implement the statute. First, the statute discusses income from each member of the household and the regulation adds income from any other family member. However, a family member is not necessarily a member of the household. The regulation thus

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impermissibly expands an otherwise clear and unambiguous provision of the statute. Second, the statute restricts income that is counted to income actually received. The implementing regulation impermissibly has no such restriction. In this case, Lamauel Booker is not a member of Booker's household. Therefore, pursuant to the regulation, any income that he receives should not be imputed to the Booker household. Even if the income is considered as belonging to the children, they are not a member of the Booker household since Lamauel Booker is the residential parent and is not a member of the Booker household. Further, the children's Social Security income is not actually received by Booker. As for the Garvey decision, the court there was considering children's Social Security benefits when the representative payee actually lived in the same household. That is not the case here. Also, the court in Garvey was examining 24 C.F.R. § 860.403(o)(ix) and a different section of the statute, 42 U.S.C. § 1437a(1). The regulation at issue here, although similar, is not the same nor is the statute subsection being examined. The regulation at issue here did not exist at the time. The Defendants also rely on Edwards for the proposition that the term "received" as used in 42 U.S.C. § 1437a(b)(4) and 24 C.F.R. 5.609(b)(4) does not mean that the Social Security disability funds must be physically received in the tenant's hands to be counted as income. Edwards, 881 N.E.2d at181-82. However, the facts in Edwards are distinguished in at least two important ways from the facts in this case. In Edwards, the issue was not children's Social Security benefits but the representative payee's Social Security benefits. Also, the Edwards' Court was considering whether a garnishment of the representative payee's own social security

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benefits for child support was to be counted as income to the representative payee. There is a strong likelihood that Booker will be successful on the merits. There is a strong likelihood that HUD's implementation of 42 U.S.C. § 1437a(b)(4) as set forth in 24 C.F.R. 5.609(a) as it applies to Booker's situation is not a permissible construction of the statute and is manifestly contrary to the statute. Thus, this factor weighs in favor of granting an injunction. Irreparable Injury To the Movant Violation of a statute has regularly been found to lead to irreparable harm. This case is no different. The immediate loss of housing, as alleged by Booker, is a harm that cannot be completely resolved by an award of monetary or economic damages. Booker will be irreparably harmed if Defendants' improper application of the federal statutes is permitted. Thus, this factor weighs in favor of granting an injunction. Substantial Harm To Others Issuance of an injunction will not cause substantial harm to others. Only the Defendants are implicated and they are not harmed by being required to follow the law. Thus, this factor weighs in favor of granting an injunction. Public Interest Compliance with the law is in the public interest. Thus, this factor weighs in favor of granting an injunction. CONCLUSION All four factors to be considered weigh in favor of granting a preliminary injunction. Thus, Booker's Motion for a Preliminary Injunction (doc. #3) is GRANTED. Therefore, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that

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Defendants Gregory D. Johnson, Darryl Miles and Dawn Elliott, and their agents, servants, employees, assigns, representatives and successors and all persons in active concert or participation with them are hereby ordered: 1. To refrain from changing Dora Booker's rent subsidy payments based upon Lamauel Booker's receipt of the children's Social Security benefits; 2. To refrain from terminating Dora Booker's subsidy or participation in the Section 8 Housing Choice Voucher Program for any outstanding balance due to the counting of Lamauel Booker's receipt of the children's Social Security benefits. 3. To refrain from attempting to collect any balance due from Dora Booker due to the counting of Lamauel Booker's receipt of the children's Social Security benefits as income to her. IT IS FURTHER ORDERED, ADJUDGED AND DECREED that this Preliminary Injunction shall become effective upon entry of this Order and shall remain in effect until Booker's Complaint is fully adjudicated. Finally, Booker is not required to post bond. DONE and ORDERED in Dayton, Ohio this Twenty-Second Day of June, 2010. s/Thomas M. Rose _______________________________ THOMAS M. ROSE UNITED STATES DISTRICT JUDGE Copies furnished to: Counsel of Record

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