LANCE M. AFRICK, District Judge.
Before the Court is plaintiff Jas Nogess's ("Nogess") motion
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.
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.
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.
At the time of her intake on March 7, 2018, Nogess was seeking employment.
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.
HAJP informed Nogess on June 27, 2018 that her Section 8 rental application had been approved.
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.
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.
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.
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.
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.
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:
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.
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).
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.
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).
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:
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.
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."
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 evidentiary basis for the Hearing Officer's decision.
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.
The termination letter on September 5, 2019 stated the specific reasons for HAJP's decisions and the evidence it reviewed to reach that decision.
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.
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."
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."
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 Section 8 housing assistance payment, based on Nogess's May 10, 2019 earnings statement, is $38.00 per month.
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,"
The Court is sympathetic to Nogess's situation, but it finds that she has not satisfied this requirement for injunctive relief.
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 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.
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.
Because Nogess has not met her burden with respect to all four requirements for injunctive relief,
