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Yarbrough v. Decatur Housing Authority

United States Court of Appeals, Eleventh Circuit

October 29, 2019

SHEENA YARBROUGH, Plaintiff-Appellant,
v.
DECATUR HOUSING AUTHORITY, Defendant-Appellee.

          Appeal from the United States District Court for the Northern District of Alabama D.C. Docket No. 5:15-cv-02325-AKK

          Before WILLIAM PRYOR and MARTIN, Circuit Judges, and VRATIL, [*] District Judge.

          WILLIAM PRYOR, CIRCUIT JUDGE.

         This appeal requires us to decide whether, under the Due Process Clause of the Fourteenth Amendment, some evidence supported the decision of the Decatur Housing Authority to terminate Shenna Yarbrough's housing voucher issued under Section 8 of the Housing Act of 1937, 42 U.S.C. § 1437f. The Authority terminated her voucher because she had "violated her agreement with the Authority and her lease by engaging in drug-related criminal activity." Yarbrough filed a complaint against the Authority, id. § 1983, that the termination violated both a federal regulation providing that "[f]actual determinations" in a voucher-termination hearing "shall be based on a preponderance of the evidence," 24 C.F.R. § 982.555(e)(6), and the constitutional right to due process of law. The district court granted summary judgment to the Authority. A panel of this Court reversed because the indictments and arrest records presented at the hearing failed to establish that Yarbrough engaged in drug-related criminal activity under the preponderance standard, but we later vacated that decision and reheard that issue en banc. Yarbrough v. Decatur Hous. Auth. (Yarbrough I), 905 F.3d 1222, 1226 (11th Cir. 2018), rev'd en banc, 931 F.3d 1322 (11th Cir. 2019). The en banc court overruled our earlier precedent, Basco v. Machin, 514 F.3d 1177 (11th Cir. 2008), which underpinned the panel's decision, but it left it to the panel on remand to address Yarbrough's remaining due process arguments. We now affirm the summary judgment in favor of the Authority.

         I. BACKGROUND

         Sheena Yarbrough was a qualified participant in the Section 8 Housing Assistance program operated by the Decatur Housing Authority under the administration of the Department of Housing and Urban Development. The Section 8 program provides low-income families assistance with rental payments. 42 U.S.C. § 1437f(a). Public housing authorities have the power to terminate assistance under Section 8 if any member of a participating family engages in drug-related criminal activity. 24 C.F.R. § 982.551(1); see also id. § 982.553(b)(1)(iii). The regulatory requirement to refrain from drug-related criminal activity was incorporated into the terms of Yarbrough's agreement with the Authority. To obtain housing benefits, she signed a document issued by the Department of Housing and Urban Development entitled "Obligations of the Participating [F]amily," which provided that "members of the family may not engage in drug-related criminal activity."

         In September 2012, Yarbrough was arrested for selling Xanax and Lortab to an undercover police informant. On learning of her arrest, the Authority notified Yarbrough that it intended to terminate her program assistance. At Yarbrough's request, the Authority conducted a hearing at which a hearing officer found that Yarbrough had engaged in drug-related criminal activity and upheld the decision. But based on legal advice, the Authority decided to postpone the termination of Yarbrough's housing assistance "until a court date or decision was rendered."

         On April 11, 2013, a grand jury for the Circuit Court of Limestone County, Alabama, indicted Yarbrough on two felony counts of unlawful distribution of a controlled substance. On October 8, 2015, with the charges still pending, the Authority sent Yarbrough a second notice of its intent to terminate her benefits. At Yarbrough's request, the Authority conducted a second informal hearing on November 10, 2015. Yarbrough attended the hearing and was represented by counsel. Her caseworker, Kenyetta Gray, attended the hearing and presented testimony and evidence on behalf of the Authority.

         At the hearing, Gray presented the indictments and arrest records and testified that they established that Yarbrough had sold Xanax and Lortab to an undercover police informant. Gray also testified that the charges were still pending. Yarbrough testified and admitted the arrests. She did not deny that she had sold prescription medications to the undercover informant or otherwise dispute the factual basis of the charges. Instead, she asserted that the charges would be dismissed upon payment of court costs. Yarbrough also argued that the Authority had agreed to wait for the outcome of the criminal proceedings before terminating her benefits.

         The hearing officer issued a written decision that Yarbrough "violated her agreement with the Authority and her lease by engaging in drug-related criminal activity." The decision explained that the evidence of Yarbrough's arrest and indictments was sufficient to establish that Yarbrough engaged in drug-related criminal activity. The hearing officer acknowledged that Yarbrough had presented "credible evidence that the cases will be dismissed on payment of court costs." But he determined that because the charges remained pending and the indictments were issued "by a duly impaneled grand jury," the evidence was sufficient to establish "that more likely than not, i.e. by a preponderance of the evidence, Ms. Yarbrough engaged in drug related criminal activity in violation of the terms of her agreement with the Authority."

         Yarbrough filed a complaint against the Authority, see 42 U.S.C. § 1983, in which she alleged that the Authority violated the regulation requiring a decision based on a preponderance of the evidence, 24 C.F.R. § 982.555(e)(6), and the Due Process Clause of the Fourteenth Amendment by basing its termination decision on insufficient evidence and by relying exclusively on hearsay. After discovery, the district court granted summary judgment in favor of the Authority on the grounds that the indictments established that Yarbrough engaged in drug-related criminal activity under a preponderance-of-the-evidence standard and that relying on the indictments comported with due process.

         A panel of this Court reversed and ruled "that the evidence before the hearing officer was legally insufficient to sustain the Authority's decision to terminate Yarbrough's Section 8 voucher under the preponderance standard in the applicable regulation, 24 C.F.R. § 982.555(e)(6)." Yarbrough I, 905 F.3d at 1226. To reach this conclusion, the panel relied on our decision in Basco, where we assumed that compliance with that regulation is enforceable in a suit brought by a private party under section 1983 and held that in a proceeding to terminate Section 8 benefits, a public housing agency "has the burden of persuasion and must initially present sufficient evidence to establish a prima facie case" that the recipient committed an act that licenses termination of his voucher under the standard of proof imposed by the regulation. 514 F.3d at 1182. The panel concluded that Basco mandated reversal of the summary judgment because a grand jury determination "that the evidence against Yarbrough was sufficient to support a reasonable belief in guilt" under the probable-cause standard applicable to grand jury proceedings "cannot in itself prove that she more likely than not committed the charged offenses, any more than an indictment for a criminal offense can conclusively prove liability for a civil offense with the same elements." Yarbrough I, 905 F.3d at 1225-26. The panel did not address Yarbrough's due process arguments. Id. at 1225. A separate concurring opinion suggested that Basco was wrong and should be overruled en banc. Id. at 1226-31 (W. Pryor, J., concurring).

         The en banc court vacated the panel opinion, granted rehearing, and held that the regulation creating a preponderance standard for voucher termination proceedings, 24 C.F.R. § 982.555(e)(6), is not enforceable through section 1983, and it overruled that part of our decision in Basco to the contrary. Yarbrough v. Decatur Hous. Auth., 931 F.3d 1322, 1327 (11th Cir. 2019) (en banc). Before the en banc court, Yarbrough contended that even if the regulatory standard of proof is not enforceable through section 1983, the termination decision violated the Due Process Clause of the Fourteenth Amendment. She argued that due process requires that voucher-termination decisions be based on at least "some evidence," and the Authority's decision did not satisfy this standard. And she argued that due process prohibits a housing authority from basing a termination decision exclusively on uncorroborated hearsay. The en banc court declined to address these arguments and left them to the panel to resolve on remand. Id.

         II. ...


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