PHA Didn't Take Away Voucher Holder's Property Interest

Facts: In late August 2017, a resident with a Section 8 voucher began house-sitting for her daughter while the daughter attended a funeral. The resident returned to her unit briefly on Sept. 4 and 11 and then returned permanently on Sept. 29. During the period the resident was away from her unit, the PHA tried to schedule two inspections of the unit. She didn’t receive either notice with sufficient time to be present for the scheduled inspections.

On Oct. 3, the PHA sent the resident a notice terminating her from the Housing Choice Voucher (HCV) program with an “effective” date that same day. The PHA based the termination notice on a violation of family obligation #6: “The family must allow the housing authority to inspect the unit at reasonable times and after reasonable notice.” The notice stated the resident “was sent two (2) letters regarding inspection. Both times [resident] was not present in the home.”

On Oct. 10, the resident went to the PHA to complete her annual recertification paperwork and her caseworker informed her she had been terminated from the HCV program. The resident requested a hearing that day; however, the PHA didn’t hold a hearing. The resident then contacted an attorney, who reiterated her request for a hearing in a letter dated Oct. 17, 2017.

The PHA again didn’t hold a hearing. Instead, it scheduled and conducted an inspection of the resident’s unit on Oct. 27. On Nov. 1, after the inspection was complete, the PHA rescinded the notice of termination.

The resident sued the PHA for allegedly depriving her of her due process rights. The resident claimed that there was “overwhelming evidence that the housing authority terminated [her] from the HCV Program on October 3, 2017, and did not rescind its termination until nearly a month later” and cites evidence highlighting: (1) the termination notice itself had an “effective date” of Oct. 3, the same day it was issued; (2) two PHA caseworkers testified that the effective date listed on the termination notices corresponds with the date she was terminated from the HCV program; (3) the resident and her caseworker both regarded her as “already terminated” on Oct. 10; and (4) the PHA’s Nov. 1 notice rescinding the Oct. 3 termination necessarily implies the termination occurred.

The PHA argued that although the termination notice was “not in compliance with the policy of providing 30 days between the date of the notice and the termination from the HCV program,” the resident “was never deprived of her property interest in participating in the HCV program.” Essentially, the PHA argued that the “effective date” on a termination notice isn’t the equivalent of “terminat[ion] from the HCV program.” Rather, it argued, the effective date indicates the “date the [housing assistance payments] to the landlord will cease.”

Ruling: An Oregon district court granted a judgment without a trial in favor of the PHA regarding the resident’s due process claims.

Reasoning: The resident’s tenancy was never disrupted as a result of the PHA’s issuance of a termination notice. Thus, her due process claims failed because she couldn’t establish the threshold requirement—the deprivation of a protected property interest. A due process claim requires establishing a deprivation of a constitutionally protected property interest. In other words, the resident didn’t establish procedural or substantive due process violations because the PHA never actually deprived her of the benefit of her voucher. Here, the PHA worked with the resident to ensure that the inspection required by the relevant regulations did in fact occur, and then promptly rescinded her termination notice.

• Huff v. Marion Cty. Hous. Auth., August 2018