United States District Court, D. South Carolina, Columbia Division
Eugene P. Harrison, a/k/a Eugene Paul Harrison, Sr., Plaintiff,
Jennifer C. Kennedy, HCV Senior Specialist Individually and/or in her Official Capacity as an Employee of the Sumter Housing Authority, Defendants.
ORDER AND OPINION
Richard Mark Gergel United States District Court Judge
matter is before the Court on Plaintiffs' motion for
reconsideration (Dkt. No. 55). For the reasons set forth
below, the Court grants in part and denies in part the
alleges that he was unlawfully denied housing under the
Housing Choice Voucher Program, and discriminated against
based on a disability. On October 26, 2018, the Court granted
in part and denied in part Defendant's motion for summary
judgment. (Dkt. No. 52.) While the Court granted summary
judgment on Plaintiffs disability claims, the Court held that
Plaintiffs claim under the Housing Act of 1937 survived
summary judgment. (Id.) Defendant now moves for
reconsideration of the Court's order. (Dkt. No. 55.)
59(e) of the Federal Rules of Civil Procedure governs motions
to alter or amend a judgment; however, the rule does not
provide a legal standard for such motions. The Fourth Circuit
has articulated "three grounds for amending an earlier
judgment: (1) to accommodate an intervening change in
controlling law; (2) to account for new evidence not
available at trial; or (3) to correct a clear error of law or
prevent manifest injustice." Pac. Ins. Co. v. Am.
Nat'l Fire Ins. Co., 148 F.3d 396, 403 (4th Cir.
1998) citing EEOC v. Lockheed Martin Corp., 116 F.3d
110, 112 (4th Cir. 1997); Hutchinson v. Staton, 994
F.2d 1076, 1081 (4th Cir. 1993). "Rule 59(e) motions may
not be used, however, to raise arguments which could have
been raised prior to the issuance of the judgment, nor may
they be used to argue a case under a novel legal theory that
the party had the ability to address in the first
instance." Id. at 403 (internal citations
omitted). Rule 59(e) provides an "extraordinary remedy
that should be used sparingly." Id. (internal
citation omitted). The decision to alter or amend a judgment
is reviewed for an abuse of discretion. Id. at 402.
focuses her motion to reconsider almost exclusively on
arguing that the Plaintiff, as an applicant rather than a
participant in a housing choice voucher program, had no
constitutional property interest in his voucher. (Dkt. No. 55
at 1 - 5.) However, Defendant misconstrues the Court's
order. The Court did not rely on, and never discussed,
whether the Plaintiff had a constitutional property interest
in the voucher. The Court's decision was based on a
violation of statutory rather than constitutional rights.
Indeed, the Plaintiffs Complaint made no claims regarding
violation of his due process rights under the constitution,
and instead alleged a statutory violation regarding the
deadlines created under the Housing Act of 1937, 42
position suggests that in the narrow circumstance a public
housing agency (PHA) flagrantly violated its
non-discretionary regulations authorized by statute, the
aggrieved party will have no avenue of redress. That is
incorrect. Administrative regulations generally "cannot
create an enforceable § 1983 interest not already
implicit in the enforcing statute." Smith v.
Kirk, 821 F.2d 980, 984 (4th Cir. 1987). However,
"where HUD regulations or Administrative Plan provisions
define or flesh out the context of the right found in the
statute itself, Plaintiffs § 1983 claims may be based on
violations of such regulations and provisions."
Daniels v. Hous. Auth. of Prince George 's Cty.,
940 F.Supp.2d 248, 263 (D. Md.), aff'dsub nom.
Daniels v. Brown, 550 Fed.Appx. 138 (4th Cir. 2013).
See also Wright v. City of Roanoke Redevelopment &
Hous. Auth., 479 U.S. 418, 420 n.3 (1987) ("to us
it is clear that the regulations gave low-income tenants an
enforceable right to a reasonable utility allowance and that
the regulations were fully authorized by the statute.").
The Housing Act creates a system of vouchers for
"tenant-based assistance" and provides that
"the public housing agency may elect to screen
applicants for the program in accordance with such
requirements as the Secretary may establish." 42
U.S.C.A. § 1437f(o)(1)(A), (6)(B). Defining those
requirements, 24 C.F.R. § 982.303 requires all vouchers
issued by a PHA to have an initial term of at least 60 days,
something Plaintiff alleges did not occur here. Id.
the Court does clarify one holding from its prior order,
Docket Number 52. Defendant here worked for Sumter Housing
Authority, a PHA, and not directly for a federal agency. The
Court stated that its determination regarding whether to
accept Plaintiffs request for tenancy approval
("RFTA") would be reviewed under the arbitrary and
capricious standard of the Administrative Procedures Act, 5
U.S.C. § 706. However, the Fourth Circuit has held that
PHA determinations contrary to statute or regulations are
reviewed de novo. See Ritter v. Cecil Cty. Office of
Hous. & Cmty. Dev., 33 F.3d 323, 328 (4th Cir. 1994)
("The deference that we conclude is applicable applies
only to the extent the agency's rules are not contrary to
the statute or regulation, and that question is one of law
for the courts to determine de novo."). See also
Pratt v. Hous. Auth. For City of Camden, No.
CIV.A.05-0544 NLH, 2006 WL 2792784, at *6 (D.N.J. Sept. 27,
2006) ("a court exercises de novo review if the
housing authority's actions are inconsistent with federal
housing regulations or its authorizing legislation.").
further uses the motion for reconsideration as an attempt to
relitigate the Court's holding that there is a dispute of
fact regarding when Plaintiff returned his signed tenancy
forms. Defendant notes that December 16, 2017, the day on
which Plaintiff alleges he returned his forms, is a Saturday,
and Defendant argues that it would have been impossible for
Plaintiff to have returned the form since the office was
closed. (Dkt. No. 55 at 6.) However, as Defendant also notes,
December 17, 2017, the deadline for his RFTA, is a Sunday, a
day on which the PHA office is similarly closed.
(Id.) Defendant's argument highlights the
material fact in dispute: it is possible that Plaintiff
returned or the office received the RFTA via mail, messenger,
or other drop off over the weekend, but Defendant had no way
of marking the RFTA returned until December 18, 2017, the
date of the stamp. (Dkt. No. 34-3 at 15.) Therefore, the
Defendant's conclusory statement in her affidavit, citing
to the stamped envelope, does not support summary judgment.
Defendant argues she is entitled to qualified immunity to the
extent she is sued in her individual capacity. Here, the
nature of the claim is that the Defendant violated the sixty
day initial term for the voucher, which all Parties agree is
a clearly established deadline. Therefore, because the claim
here turns on the alleged violation of a clearly established
deadline, Defendant is not entitled to qualified immunity.
See Davis v. Scherer, 468 U.S. 183, 194 (1984)
("Neither federal nor state officials lose their
immunity by violating the clear command of a statute or
regulation-of federal or of state law-unless that statute
or regulation provides the basis for the cause of action sued
upon") (emphasis added).
foregoing reasons, The Court GRANTS IN PART AND
DENIES IN PART Defendant's motion to reconsider.
(Dkt. No. 55.) The Court GRANTS
Defendant's motion to reconsider only insofar as to
clarify that a de novo standard of review applies to
PHA determinations ...