Basco v. Machin, No. 07-11368.

CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)
Writing for the CourtBarkett
Citation514 F.3d 1177
Docket NumberNo. 07-11368.
Decision Date23 January 2008
PartiesTeresa BASCO, Joseph Basco, her husband, Plaintiffs-Appellants, v. Gil MACHIN, in his official capacity as Director of Section 8 Housing of Hillsborough County, Florida, Patricia G. Bean, in her official capacity as Administrator of Hillsborough County, Florida, Defendants-Appellees.
514 F.3d 1177
Teresa BASCO, Joseph Basco, her husband, Plaintiffs-Appellants,
v.
Gil MACHIN, in his official capacity as Director of Section 8 Housing of Hillsborough County, Florida, Patricia G. Bean, in her official capacity as Administrator of Hillsborough County, Florida, Defendants-Appellees.
No. 07-11368.
United States Court of Appeals, Eleventh Circuit.
January 23, 2008.

[514 F.3d 1178]

C. Martin Lawyer, III, Linda Streeter Mann, Bay Area Legal Services, Inc., Tampa, FL, for Plaintiffs-Appellants.

Louise B. Fields, Hillsborough Cty. Attys. Office, Tampa, FL, for Defendants-Appellees.

Alice M. Vickers, Fla. Legal Services, Inc., Tallahassee, FL, for Amicus. Curiae.

Appeal from the United States District Court for the Middle District of Florida.

Before BIRCH and BARKETT, Circuit Judges, and KORMAN,* District Judge.

BARKETT, Circuit Judge:


Teresa and Joseph Basco appeal from summary judgment granted in favor of Gil Machin, Director of Section 8 Housing of Hillsborough County, Florida, and Patricia G. Bean, Administrator of Hillsborough County, Florida, on their complaint asserting violations of due process pursuant to 42 U.S.C. § 1983 when their housing subsidy was terminated for the presence of an "unauthorized resident."1 We reverse.

I. FACTS

Teresa Basco was a qualified participant in the Section 8 Program of her local public housing authority, the Health and Social Services Department of Hillsborough County, Florida ("PHA").2 The PHA administers the Housing Choice Voucher rental-assistance program for the U.S. Department for Housing and Urban Development ("HUD"). That program provides monetary and rental assistance to lower-income families. As a Section 8 participant, Teresa Basco entered into a lease for a single-family residence in Tampa, Florida with her mother and landlord, Donna VanDerLaan.3 In the lease, Ms. Basco indicated that only she, her husband, and

514 F.3d 1179

five minor children would reside in the assisted unit. The PHA and VanDerLaan entered into a Housing Assistance Payments Contract ("HAP Contract"), which provided that the PHA would pay a specific amount each month to VanDerLaan on behalf of Ms. Basco. The HAP Contract restricted the residents of the assisted unit to those listed in the lease. In connection with receiving Section 8 assistance, Ms. Basco signed a form acknowledging that her benefits could be terminated for any violation of the terms of the HAP Contract, including allowing disturbances at her unit and failing to notify the PHA of any changes in family composition.

HUD regulations prohibit the presence of an unauthorized resident in assisted units, but do not prohibit a participant from having house guests. See 24 C.F.R. § 982.551(h)(2). At the relevant time, the PHA interpreted" these regulations in its Administrative Plan for the 2004-2005 period by establishing particular rules regarding visitors:

Any person not included on the HUD 50058 who has been in the unit more than 15 consecutive days without PHA approval, or a total of 30 days in a 12 month period, will be considered to be living in the unit as an unauthorized household member.

Absence of evidence of any other address will be considered verification that the visitor is a member of the household. Statements from neighbors and/or the landlord will be considered in making the determination.

Use of the unit address as the visitor's current residence for any purpose that is not explicitly temporary Shall be construed as permanent residence.

The burden of proof that the individual is a visitor rests on the family. In the absence of such proof the individual will be considered an unauthorized member of the household, and the PHA will terminate assistance since prior approval was not requested for the addition.

In November 2005, an anonymous person who identified himself as a neighbor of Ms. Basco telephoned the PHA to provide information regarding disturbances at Ms. Basco's assisted unit, multiple police calls to the unit, and the arrest of a member of Ms. Basco's household. The PHA assigned the matter to Section 8 Housing Counselor Sarah J. Matalon, who obtained from the Tampa Police Department copies of two police reports involving Ms. Basco's assisted unit.

The first report, dated February 28, 2005, stated that Joseph Basco gave a sworn statement to the police indicating that his stepdaughter had run away with a man named "Emanuel Jones," "who's staying at the house." The alleged sworn statement was not contained in or attached to the report. The February report further noted that Mr. Basco said he called Emanuel's stepfather to come and collect Emanuel's belongings. The report noted that Emanuel's address was the same as that of Ms. Basco's unit. The second report, dated July 18, 2005, listed "Elonzel Jones" as an eyewitness to an alleged battery on Mr. Basco by his stepdaughter, and listed Elonzel's address as that of the assisted unit.

Based on these two police reports, Section 8 Senior Housing Counselor Sherry Hanson sent Ms. Basco a Notice of Intent to Terminate along with copies of the reports. The termination notice advised Ms. Basco that the PHA intended to terminate her housing assistance based the presence of on an unauthorized resident in her unit in violation of 24 C.F.R. §§ 982.551 and .516. Although not expressly stated, the implication from the notice was that the PHA believed that Elonzel Jones and Emanuel Jones were the same person; that

514 F.3d 1180

"Jones" had been living in Ms. Basco's assisted unit between February and July 2005; that this totaled more than fifteen days; and that Jones was therefore an "unauthorized resident." Indeed, in its brief on appeal, the PHA avers that the police reports "reflected Jones' address over a five month period."

In response to the termination notice, Ms. Basco requested a hearing. Section, 8 participants are entitled to a "pretermination [of benefits] hearing" before an impartial Hearing Officer who is appointed by the Tampa Housing Authority, an entity distinct from the PHA. The PHA sent Ms. Basco a letter scheduling the hearing and advising her of her rights and also provided her with copies of the February and July police reports.

At the hearing and on behalf of the PHA, Matalon presented, as the only evidence, copies of the February and July police reports she had obtained. In her defense, both Ms. Basco and her landlord testified that Jones did not live at the assisted unit. Ms. Basco also submitted a December 7, 2005 notarized letter from Jones's mother stating that Jones had only ever lived at two addresses, neither of which was Ms. Basco's. To rebut the alleged statement by Mr. Basco contained in the February 2005 police report, Ms. Basco asked to have her husband directly testify by telephone.4 The Hearing Officer denied the request and upheld the PHA's decision to terminate Ms. Basco's benefits, stating:

Mrs. Basco could not provide information regarding [the] unauthorized resident. Mr. Basco gave a statement to police that states that Mr. Jones stay [sic] in assist [sic] unit. Landlord who is also Mrs. Basco [sic] mother became upset and demand [sic] extra time to gather more information (records on Mr. Jones). Her request were [sic] denied. Decision is upheld.

The Bascos twice sought to have the Hearing Officer's decision overturned. They met with Gil Machin, the Acting Operations Manager of the PHA, and presented new evidence, including a January 10, 2006 notarized letter from Jones stating that he had only lived with his grandmother and mother, and that he had never lived in Ms. Basco's unit. After reviewing the new evidence, Machin concluded that there was not a sufficient basis under HUD regulations to overturn the Hearing Officer's decision or to provide Ms. Basco with a new hearing. The Bascos also retained a legal services attorney, who again requested that Machin reject the decision of the Hearing Officer. After reviewing the file a second time, Machin again denied the request.' In a letter to the Bascos' attorney, Machin cited the PHA's Administrative Plan provision stating that "[t]he burden of proof that the individual is a visitor rests on the family. In the absence of such proof the individual will be considered an unauthorized member of the household and the PHA will terminate assistance ...."

The Bascos then filed this suit, alleging deprivations of their right to...

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44 practice notes
  • Greene v. Carson, 14 Civ. 3676 (AT) (GWG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 14, 2017
    ...City of N.Y. , Hous. Pres. & Dev. Corp. , No. 12 Civ. 3846, 2013 WL 646464, at *6 (S.D.N.Y. Jan. 18, 2013) ); see also Basco v. Machin , 514 F.3d 1177, 1182 n.7 (11th Cir. 2008) ("The Supreme Court reasoned [in Goldberg v. Kelly , 397 U.S. 254, 266, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970),] th......
  • Brooker v. Altoona Hous. Auth., CIVIL ACTION NO. 3:11-CV-95
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • June 12, 2013
    ...by welfare benefits, thePage 47reasoning employed in Goldberg "applies with equal force" in the present context. Basco v. Machin, 514 F.3d 1177, 1182, n.7(11th Cir. 2008). Seizing on the language in Goldberg declaring that "[t]he opportunity to be heard must be tailored to the capacities an......
  • Stevenson v. Willis, No. 3:07CV3743.
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 18, 2008
    ...not afforded an impartial hearing. Fields v. Omaha Housing Authority, 2006 WL 176629, at *3 (D.Neb.2006). In Basco Page 923 v. Machin, 514 F.3d 1177, 1180 (11th Cir. 2008), the court held in favor of participants "alleging deprivations of their right to procedural due process under 24 C.F.R......
  • Costa v. Fall River Housing Authority, SJC-10197.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 13, 2009
    ...of anonymous persons who "believed" information stated was not reliable and could not be basis of decision). Cf. also Basco v. Machin, 514 F.3d 1177, 1182-1183 (11th Cir. 2008) (questioning admissibility and use of police report based on second-level hearsay at Section 8 termination The new......
  • Request a trial to view additional results
43 cases
  • Greene v. Carson, 14 Civ. 3676 (AT) (GWG).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • June 14, 2017
    ...City of N.Y. , Hous. Pres. & Dev. Corp. , No. 12 Civ. 3846, 2013 WL 646464, at *6 (S.D.N.Y. Jan. 18, 2013) ); see also Basco v. Machin , 514 F.3d 1177, 1182 n.7 (11th Cir. 2008) ("The Supreme Court reasoned [in Goldberg v. Kelly , 397 U.S. 254, 266, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970),] th......
  • Brooker v. Altoona Hous. Auth., CIVIL ACTION NO. 3:11-CV-95
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • June 12, 2013
    ...by welfare benefits, thePage 47reasoning employed in Goldberg "applies with equal force" in the present context. Basco v. Machin, 514 F.3d 1177, 1182, n.7(11th Cir. 2008). Seizing on the language in Goldberg declaring that "[t]he opportunity to be heard must be tailored to the capacities an......
  • Stevenson v. Willis, No. 3:07CV3743.
    • United States
    • U.S. District Court — Northern District of Ohio
    • September 18, 2008
    ...not afforded an impartial hearing. Fields v. Omaha Housing Authority, 2006 WL 176629, at *3 (D.Neb.2006). In Basco Page 923 v. Machin, 514 F.3d 1177, 1180 (11th Cir. 2008), the court held in favor of participants "alleging deprivations of their right to procedural due process under 24 C.F.R......
  • Costa v. Fall River Housing Authority, SJC-10197.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • April 13, 2009
    ...of anonymous persons who "believed" information stated was not reliable and could not be basis of decision). Cf. also Basco v. Machin, 514 F.3d 1177, 1182-1183 (11th Cir. 2008) (questioning admissibility and use of police report based on second-level hearsay at Section 8 termination The new......
  • Request a trial to view additional results

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