### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT September 17, 2003 THOMAS K. KAHN CLERK

* Honorable

Lloyd D. George, United States District Judge for the District

of Nevada, sitting by designation. [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

________________________ No. 02-10218

________________________ D. C. Docket N

o. 00-00888 CV-OR

L-22B DEBORAH GRAYDEN, CHARLES JACKSON, et al., Plaintiffs-Appe llees,

versus MIKE RHODE S, indi vidual ly, Defendant-Appe llant.

________________________ Appeal from the United States District Court for the Middle Dist

rict of Florida

_________________________ (September

17, 2003) Before BIRCH and COX, Circuit Ju dges, and GEORGE * , District Judge. COX, Circuit Judge:1 Our recitation of the facts is based primarily on the admitted facts contained in the parties’ joint pretrial statement. To the extent that material facts are in dispute, we presentthese facts in the light most favorable to the plaintiffs, as we must when the issue of qualif

ied immunity is raised in a summary judgment motion. Priester v. City of R ivieraBeach, Fla. , 208 F.3d 919, 925- 26 n.3 (11th Cir. 2000). 2 This case comes t

o us on in terlocuto ry appeal fol lowing th e district court’s rejection of a city code e

nforcement of

ficer’s claim

of qualified im

mun ity. In this appeal, w e must determ ine whether the D

ue Process Clause of the Fourteenth Amendme

ntis violated when a co de en forcement of ficer condem

ns an apartment complexand evicts the tenant s without providing the t

enants with contem

poraneous notice of their right to appeal the condemnatio n decision. If we

conclude that such conduct violates the Due Pro cess Cl ause, we mus t then determin

e whether the tenants’ right to contemporaneous notice was established with suchclarity at the time of eviction in thi s case that the chief of the City of Orlan

do’s Code Enforcement Bureau is not entit led to qualified immunity.

I. BACKGROUND & PROCE DURAL HISTORY Beg in ning on March 7, 2000, c ity officials i

nspected all of the un

its of Lafayette Square, a residential apartment complex located in Orlando, Florida

(“the City”). 1 Based on these inspec tions, the City n

otified the

owner of Lafayette Square that city code violat

ions at thecomplex presen ted a serious and

continuing danger to its occupants, and thre

atened to declare the building unfit for human occupancy if the2 The evidence suggests that Lafay ette Square apartments were plagued by ser ious problems, including collapsed ceilings, major leaks, constant mold and mildew, water leakage from light fixtures, and roach and other insect infestations.

3 Fla. Stat. § 162.03. The Board has the authority to issue final orders having the forc e of law, id. § 162.08(5), and may adopt rules for the conduct of its hearings, id. § 162.08(1). 3 violations were not corrected

. 2 The o wner was inform ed that the City o f Orlando Code Enforcement Board (“the Board”), an independent adm inistrative body created underFlo rid a law, 3 would conduct a hear ing on July 12, 2000,

to consider the conditions at Lafayette Square. The code violations were not corrected. On June 29, two weeks beforeth e scheduled Board hearing, c ity officials

pos ted notices on each apartment door at Lafayette Square directing

residents to

vacate the proper

ty by 5:00 p.m

. on June 30. They also posted a condem

na tion notice on the ma

in doors of each buildi

ng of the complexthat declared the c omplex to be unsaf

e, directed resi

dents to v acate the bu ildings, and informed the m that they would be subject to possible arrest or prosecution

if they did not vacate imme diately. The

condemnation dec

is io n was made by Mike Rhodes, the chief of the City’s Code Enforcem ent Bureau , and he signed the condemnatio

n notices. The

notices did not inform

the tenants of any r

ight to a hearing to chall

enge the condem

nation decision. On June 30, Richard Cato, an attorney for Gre aterOrlando Area Legal Services, notified the city attorney that se

veral tenants reque sted a hearing pursua nt4 The complaint also named the owner of Lafaye tte Square as a defendant, but he was voluntarily dismissed from this action. 4 to Section 30A.11 of t

he Orlando City

Code (“the City Code” or “the Code”). Under that section, Any person affected by any notice which hasbeen issued in connection with the enforcem

ent of any provisi

on of this Code

or of any rule or regulation

adopted pursuant

thereto may

request and shall be granted a hearing on the matter before the Code Enforce ment Board purs

uant to Chapter 5 of the City Code. Orlando, Fla. City Code § 30A.11. Cato also indicated that the tenants would seek an injunction if the City refused to stay its code e nforcement activity. The City continued it

s enforcement

efforts, and on

July 12 three former

tenants of Lafayette S quare filed a

complaint in federal district court. The complaint alleged

a 42 U.S.C. § 1983 procedural due proc ess claim and a Fair Ho using Act claim against the City and

against Rhodes in his i ndivi dual ca pacity. 4 The tenants also filed

a motion for a temporary restraining order that would pro h ibit any further

code enfo rcement

action regarding L

afayette Squa

re until they had

a meaningf

u l opportunity to chal

lenge the condem

nation decision. On that same day, July 12, the Bo ard condu cted its previously-scheduled hearing regarding the vi olations at Lafayette Square. A notice of this hearing had been published in the O rland o Sentinel on July 2 and July 9. Cat o and one of the5 A tenant who was lat er added as a pla

intiff also attended the July 12 hea

ring but did not testify.

6 Only

one of the tenants in attendance was among the group of three that filed the complaint. The other four te nants at the hear

ing were adde

d as plaintiffs,

along with several other tenants, later in the proceedings. See infra note 7. 5 plaintiffs attended and testified at the hearing. 5 At the hearing, the Boar d ultimately concluded that Lafayette S quare was in violatio n of the City Code. Atthe July 12 hearing, Cato asked the Board to

schedule a second hearing to allow the tenants to

address the Board.The Board agree d to do so, and

scheduled a hearing for July 26. Notice of this hearing was mailed to ever

y tenant’s la

stknown address on July 19 o

r 20, although at lea

st one tenant asserts that he never received the not ice. Notice wa

s posted on the Lafay

ette Square proper

ty, and it a

lso wa s published in the July 23 edition of t he Orlando Sentine

l. Because a hea

ring had been scheduled for July

26, the district court denied the plaintiffs’ motion for a temporary restraining order. On July 26, the Boa

rd conducted the

second hearing. Cato attended the hearing and he was joined by five former tenants o f Lafayette Square, two of whom testif ied. 6 Atthe conclusion of the h earing, the Board decided to allow the decision rendered at the July 12 hearing (

finding Lafay

ette Square to be in

violation of the City Code) t

o stand.7 After the complaint was amended, the plaintiffs included Deborah Grayden, Charles Jackson, Magdaly Laurencea u, Mervil Celissa, Ducace Vilne, Vileine Previl, Carolyn Gude, John McI ntosh, Patricia Robotham, Angela Latimer, Jamell Myers, Peter Williams, Caroly n Moor e , Sandra Freeman, Vero

nica Gaines, L

adonna May

, Tiffany Ma

y, Eileen B

urwell, Thomas Jackson, Constance Lawrence and Salisa Manning. All of the plaintiffs were evicted fromLafayette Square when the complex was condemned. Moore was voluntarily

dismissed from this

action. During t

he course of litigation, pla

intiffs’ counsel withdrewfrom the representation of five plaintiffs (Laurenceau, L atimer, Myers, Mannin g, and Thomas Jackson). Th

e claims of La

urenceau, My

ers, Manning and Thomas Jackson have been dismissedfor failure to prosecut e. The remai ning p laintiff s are represented by counsel with the exception of Latimer, who is pro se. Latimer did not file a brief in this appeal. They will be ref erred to collectively as “the plaintiffs.”

8 This c laim was voluntarily dismissed by the represented plaintiffs, and the district court dismissed L

atimer’s pro se F

air Housing Act c

laim.

9 The first count of the plaintiffs’ amended complaint alleges a § 1983 procedural due process claims against the City as well as Rhodes. The second and third counts allege a § 1983 due process claim against

the City based on its written policy and a § 1983 claim against the Board for its failure to provide a timely and meaningful hearing, r espectively. (The district

court ruled that the City’s Code Enforcement Board is an autonomous entity subje ct to suit under § 1983.) 6 Several months later,

the complaint w

as amended to a

dd several addit

i onal plaintiffs 7 and new claims. The amended co mplaint alleges two claim s against Rhodes: a Fair Housing Act claim that has since been dismissed 8 and the § 1983 procedura l due process claim that is the focus of t

his appeal. The complaint als o alleges claims against

the City and the B oard, 9 but these claims are not implicated by Rhodes’ interlocuto ry appeal on the issue of qualified immunity. Rhodes filed a motion f

or summar

y judgment

on the § 1 983 procedural due pr ocess claim based on q ualified imm

unity, and his m

otion was referr

ed to a magistrate

judge. The m

agistrate judge id

entified three possible procedural due7

proces s violations alleged ag ainst Rhodes: (1) a vi olation of the plaintif

fs’ constitutional right to betimely notif ied of the initial cod

e violations; (2) a violation of their constitutional right to due process a t the time of ev

iction (pre-deprivation d

ue process); and (3) a violation o f their con stitutional right to due process following evict i on (post-deprivation due process). As to t

he first alleged violation, the magistrate

judge conclu

ded tha t the plaintiffs had n ot demonstrated

that they had a clearly established right

to notice of the initia

l code violations. T

he magistrate

judge held that Rhodes was entitledt o qualified immunity as to the second allegation as well, reasoning th at a tenant is not entitled to pre-deprivation notice or a predeprivation hearing if exigent c ir cumstan ces exist and finding that Rhodes’ belief that exigent circumstances ex isted in this case was reasonable. But the magistrate

judge reached a differ

ent result with reg

ard to theplaintiffs’ post-deprivation

due process claim. The judge found that whe n a pre-deprivation hearing cannot be conducted due to exigent circumstan ces, immediatepostdeprivation

notice is constitutionally r equired. Because

Rhodes did

not provide the tenants with personal

notice of their

rig ht to seek review of the condemnatio

n decision, the magistrate

judge conc luded that Rhodes was not entitled to qualified10 In another par t of the magi strate jud ge’s report an d recommend ation, the judge

concluded

that the notices in t

he newspaper we

re both procedur

ally and substantively deficient. The judge also

held that, with respect to the other types of notice provided (e.g., notice by mail, notice posted on the prope

rty), ther e was a genuine

dispute as to the ad

equacy of these notices.

11 Adm itt edl y, it i s no t en tir ely clear f rom the com plaint whe ther the pl aintiffs al lege that Rhodes failed to pr ov ide them with a meaningful hearing. The allegations in Count One, the § 1983 proced

ura l due process count, do not differentiate between the City and Rhodes for the purpose of spe cifying which party ( or parties) is responsible for the alleged notice deficiency and whichparty (or p

arties) is respon

sib le for the a lleged hearing deficiency. Howe ver, the factual allegations regarding

the denial of an opportunity to be heard focus almost exclusively on the Board, not Rho des , as the res pon sib le p art y. The plaintiffs’ resp

onse to Rhodes’ motion for summary judgment resolves any amb igui ty. Onno fewer than nin

e occasions, the

plaintiffs conten

d that Rhodes is not e

ntitle d to qua lified immunity on their claims of c

onstitutionally

-inadequate

notice without mentioning any allegations that Rhodes denied them a meaningful opportunity to be heard. In fact, the plaintiffsexpressly sta te intheir memorandum i

n opposition to Rhodes’ motion that “[t]he Plain tiffs’ claims

against Rhodes stem from his failure to provide them constitutionally adequate notice of their right to seek a hea ring on his condemnation order.” (R.2-49 at 5.) The plaintiffs reaf

firm the scope of

th eir clai m against Rhodes in their appellate brief: 8 immunity as to the plaintiffs’ claim of inadequate post-deprivation notice. 10 T he district court adopted the magistrate judge’s report and recomm endation, and Rhodes appeals. II. ISSUE ON APPEAL & STANDARD OF REVIEW The only issue on a

ppeal is whether Rhodes is e ntitled to qualified imm

unity

as to the plaintiffs’ post-deprivation due p rocess claim.More specificall y, the issue i s whet her Rhodes is entitle d to qualified im

munity as to t

he plaintiffs’ c

laim of constitutionally-inadeq uate post-deprivation notice ; the plaintiffs all ege that the City and the Board, but not Rhod es, are responsible for the alleged failure to provide a meaningful hea

ring. 11“Plaintiffs’ claim against Rhodes is for his failure to notif

y plaintiffs

of their right to

seek a hearing on the order to vacate their apartments.” (Pls.’ Br. at 16.) The plaintiffs frame the issues on appeal interms of

Rhodes’ failure to provide adequate notice, ( id. at 1), and they reaffirm later in the brief that “Plaintiffs’ claim against Rhodes is that his failure to prov

ide notice denied

them adequate po stdeprivation

process.” (

Id. at 28.) Thus, even if the plaintiffs’ complaint could be construed to plead a claim that Rhodes f

ailed to provide a

constitutionally

-adequate h earing, we ha ve no difficulty concludin g, based on the proceedings in the district court

and the briefs on a

ppeal, that such a

claim has been abandoned.

12 “A government off icial acts within hi

s or her discretio

nary auth ority if objective circumstances compel the conclusion that challenged actions occurred in the perfor mance of the official’s duties and

within the scope of this authority.” Hill v. Dekalb Reg ’l Youth Det. Ctr. , 40 F.3d 1176, 1185 n.17 (1994). The district court found, and the parties do not dispute, that Rhodes was acting within his discretionary authority in this case. 9 We reviewthe district court’ s denial of qualifie d immunity

de novo. Lambert

v. Fulton County, Ga. , 253 F.3d 588, 596 (11th Cir. 2001). Bec ause th e issue of qualified immunity

was raised in Rhode s’ summa ry judgme

nt motion, we v

iew the facts in the light most favorabl e to the plaintiffs. Priester v. City of Riviera Beach, Fla. , 208 F.3d 919, 925-26 n.3 (11th Cir. 2000). III. DISCUSSION In Harlow v. Fitzge

rald , 457 U .S. 80 0, 102 S. Ct. 2 727 (1 982) , the S upreme Court observed that qualif ied immunit

y shields governm

ent officials who perform discretionary

functions 12 from liability for civil damages as long as their conduct does not violate clearly established statutory or constitu tional rights. Id. at 818, 102 S. Ct. at2738. Five yea

rs later, in Anderson v. Creight on , 483 U.S. 63 5, 107 S. Ct. 3034 (1987), the Court clarifie d that “[t]he

contours of

the right must be

sufficiently

clear10

that a reasonable official would understand that what he is doing violates t hat right.” Id. at 640, 107 S. Ct. at 3039. In sum, a g overn me nt official is not ent itled to qualified immuni

ty if his or her c

onduct violated a clearly establishe d statutory or constitutional right

and if the contours of the right were defined with such clarity that

a reasonable offic

ial would have under

stood, at the tim

e, that the conduct a

t iss u e violated that righ t. With these principles in mind, the Supreme Court formulated a two-step qualified immunity

analysis in Saucier v. Katz, 533 U.S. 194, 121 S. Ct. 2151 (2001), which we must follow . Under the Saucier approach, we fi

rst ask if the fact

s alleged, taken in the light most

favorable to the plaintiffs, show that Rhodes’ conduct violated the plaintiffs’ Fourteent h Amendment due process right s. Id. at 201, 121 S. Ct. at 2156. Second, if we conclude that the plaint iffs’ constitu

tional rights have been violated under

the facts alleged, we must determine whether their rights were clearly established – that is, whether the st ate of the law at the tim

e of eviction would ha

ve made clear to a reasona

ble city code enforcement officer that Rhodes’ conduct was unlawful. Id. at 202, 1 21 S. Ct. at 2 156. To determ ine whether a righ

t is clearly established under the second step, we examine cases that articulate constitutional rules of general applica

tion as well as those

cases that apply

these general rule s in circumstances similar

to those encountered in this case. See Vinyard v. W ilson , 31111

F.3d 1340, 1350-52 (11th Cir. 2002). In so doing, the Supreme Court has cautioned that we should not be unduly rigid in requiring

factual simil

arity between prior cases and the case under consi

deratio n, noting that the “salie nt question” is whethe

r the state of the law gave the offic ial “f

air warning” that the alleged conduct was unconstitutional. Hope v. Pelzer , 536 U.S. 730, ___, 122 S. Ct. 2508, 2516 (2002). We address the two Saucier inquiries in turn. I n P art A, w e evaluate the plaintiffs’ procedural due process allegat ions in light of the balancing test established in Mathews v. Eldrid

ge , 424 U.S. 319, 96 S. Ct. 893 (1976) and the standard for notice set forth in Mullane v. Central Hanover Bank & Tr

ust Co. , 339 U.S. 306, 70 S. Ct. 652 (1950), and

conclude tha

t the pl aintiffs have alle

ged a violation of thei

r right to constitutionally

-adequate notice under the Fourteenth Amendment. In Part B, we examine th

e relevant casela

w at th e time of eviction and concl ude that a reasonable

public official coul

d have believed that § 30A .11 of the City Code provided constitutionally- adequatenotice to the plaintif fs of their right to c

hallenge the condemnation

decision and thus that R

hodes did not violate

a clearly established constitutional right. A. Do the plaintiffs alleg e facts that establish a c

onstitutional violation? There can be no doubt that, a t a minimum

, the Due Proc ess Clause requires notice and the opportunity to be heard incident t o the depr ivation of life, lib erty or12

property at the hands of the go vernment. Mullane v. Central Hanover Bank &

Trust Co. , 339 U.S. 306, 313, 70 S. Ct. 652, 656-57 (1950). And it is equally clear that the government

must p rovide the requisite notice and opportunity for a

hearing “at a meaningful

time and in

a meaningful m

anner,” although in “extraordinar y situations” the provision of notice an d a hearing

may be postponed until after the deprivation has occurred. Fuentes v. Shevin , 407 U.S. 67, 80, 90, 92 S. Ct. 1983, 1994, 1999 (1972). I f the gove rnment fails to

comply wit

h the dictates of the

Due Process Clau

se, the aggrievedparty can seek compensatory dam ages and equitable relief under 42 U.S.C. § 1983. McKinney v. Pa te , 20 F.3d 1550, 1555, 1557 (11th Cir. 1994) (en banc). In this circuit, a § 198 3 clai m alleging a deni al of procedural due

process requires proof of three ele ments: (1) a de

privation of a constit

u tionally -protected liberty or pr operty interes

t; (2) state action;

and (3) constitutiona

lly-inadequate process. Cryder v. Oxendi ne , 24 F.3d 175, 177 (11th Cir. 1994).In this case, the f irst two elements are not in dispu te. The ten ants enjoyed a constitutionally-protected property interest in their continued resid encyat Lafayette Square, and they were deprived of that interes t. See G reene v. Lindsey , 456 U.S. 444, 450-51, 102 S. Ct. 1874, 1878 (1982) (conc lud ing that continued resi dency in leasehold property is a “significant

interest in propert

y” subj ect t o due process protec tion); Ward v. Down tow n Dev. Auth. , 786 F.2d 1526, 1530, 1531 (11th Cir. 1986) (holding that13

underFlorida law, con

tinued oc cupancy, even

pursuant to a tenancy

at will, is a protectedproperty inter

est within the m

eaning of the Takings Clause and the Due Process Clause of

the Fifth Ame

ndment). And none of

the parties question the fact that R hod es’ conduct, as the chief of the City’s Code Enforcem ent Bureau, constitutes “state ac tion” for the p urpose s of § 19 83 liab ility. Becausethe plaintiffs have alleged that they were deprived of a constitutionally-protected property interest as a resu

ltof state action, du

e process is implicated

and the question

becomes what process is du e. Morrissey v. Brewer , 408 U.S. 471, 481, 92 S. Ct. 2593, 2600 (1972). The Supreme Court hasoften noted that due process is a flexibl

e concept that varies with the particular circumstances of each case, and to dete rmine the requirements of due pr ocess in a particular situation, we must apply the balanc

ing test articulate

d in Mathews v. Eld

r idge , 424 U.S. 319, 96 S. Ct. 893 (1976). See, e.g. , Gilbert v. Homar, 520 U.S. 924, 931-32, 117 S. Ct. 1807, 1812 (1997) (applying

the Mathews test to determ ine what process

is constitutionally du e); Zinermon v. Burch , 494 U.S. 113, 127, 110 S. Ct. 975, 984 (1990) (same) ; United States v. Wattleton , 296 F.3d 1184, 1198 ( 11th Cir. 2002) (same). U

nder the Mathews test, identification

of the specific dic

tates of due

process generally requires consideration

of three distinct factors: First, the private intere st that will be affected by the official acti on; second, the risk o f an erroneous14

deprivation

of such interest thr

ough the procedur

es used, and the probable value, if any, of additionalor substitute procedur al safeguards; and finall y, the Govern ment’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requir

ement would ent

ail. Mathews , 424 U.S. at 335, 96 S. Ct. at 903. We examine each of the Mathews factors to determine what process was due in this case.

1. The Mathews Factors The tenants’ primary

interest is one

of undeniably great magnitude: they seek to protect their interest in enjoying uninterrupted occupancy in their re s idence of choice. United States v. James Daniel Good Real Prop. , 510 U.S. 43, 53-54, 114 S. Ct. 492, 50 1 (199 3) (co nclu ding that t he rig ht to mainta in con trol o ver on e’s ho me is “a private int

ere st of historic and cont inuing importance

”); United States v. A ll Assets of Statewide Auto Parts, Inc. , 971 F.2d 896, 902 (2d Cir. 1992) (noting, under the Mathews test, that the inter est i n on e’s home “mer its special constitutional protection”); United

States v. 141st Stree

t Corp. by Hersh , 911 F.2d 870, 875 (2 dCir. 1990) (o bserving that the home occupies a privileg ed place in the eyes of the l aw)

. One’s home certainly ranks among the most cheri sh ed property inte rests that due process protects, and t

he unin terrupted enjoy

ment of its com

forts and security

is undoubtedly a signi ficant private inter est.15

Bu t inherent in the tenants’ interest in their uninterrupted occupan cy a t Lafayette Square is anoth

er impor tant concern: their

interest in ma

intaining their residence, in the long term, at Lafayett

e Square. Wit

h less than thirty

-six hours to vacate the complex, the tenants were forced to secu re alternate housing on short notice. Several of them, unaware of their opportunity

to challenge

the condemnatio

n order, acquiesced in the de ci sion and made bindi

ng commitm

ents (e.g., signe

d a lease) to reside elsewhere. By doing so, thes e tenants unknowingly chose to forgo

the option of securing tem

porary housing w

hile contesting the

condemnation, and they forfeited, for all practica l purposes, any o

pportunity to retu

rn in short order to Lafayette Square if the deprivat ion proved to be erro neous. S imply sta ted, the tenants’ interest in ma

intaining their long-t

erm residenc e at Lafaye tte Squa re translatedinto an interest in knowing, when the complex was condemned and before they made alternate long-term housing arrangements, that they could challenge the condemnation

decision. Thus, we identify two private interests under the Mathews test: (1) the tenants’ intere st in uninterrupted occupancy at La fayette Square; and (2) their interest in residing at Lafayette Square in the long term w

hich, for all inten

ts and purposes, amount s to an inter est in being infor me d at the ti me of eviction t hat the condemnation ord

er can be challenge

d.13 The property owner must be notified of , and may testif

y at, the Board he aring. Orlando, Fla. City Code §§ 5.04(5), 5.05(5). At the conclusion of the hearing, the Boa rd must issue anadministrative order affording proper relief, which may include levying a fine,

commanding steps 16 Turning to the second Mathews factor, we conc lude that the risk of e

rroneous deprivation

in this case is relati vely low. In the c ontext of a condem nation and resulting ev iction, an “er

roneous deprivation”

occurs when a code

enforcement officer like Rhodes evict s te nants from a building that actually is fit for human occupa ncy. The City Code guides Rhodes in his eff orts to monitor code compliance and to wield his condem

nati o n power appropriat ely, and to eva

luate the risk of

erroneous deprivation in th is case, w e m ust identify the p

rocess that Rhodes m

ust follow under the Cod e to effectuate an emergency evicti on. The City Co de emp owe rs Rhodes with a rig ht of entry and in

spection. Or lando, Fla . City Code § 30A .09. If Rhodes det ermines that a

building is in violation of the Cod e, he must notify the person responsible

for correcting the violations, in writing, of the violations and provide a s chedu le for complet ing improveme

nts that would

bring the buildi ng into compliance. Id. §§ 30A.10(1), (3), (4). If the violations are not corrected in the time and manner specified in the initial notice, the violations

may be referred to the

Board, which then

conducts a hearing a

nd may, if necessary, issue an order vacating the build ing. I d. §§ 5.06 (5), (6); § 30A.10(7). 13to bring the building into compliance, or securing, repairing, vacating , or demolishing the structure.

Id. §§ 5.06(5), (6). T

he City Code pe

rmits an “aggr

ieved party

” to appeal the B oard’s order to Circuit Court, id. § 5.08(1), but it is unclear whether the tenants of a condemned building would be “aggrieved parties” entitled to appeal such an order. 17 But Rhodes need not rely

on Board action to vacate a building. The City Code alerts property owners that “[m] ajor or cumulative minor violations which are deterio r ating into hazardous or nuisa nce conditions ma

y also be subjec

t to proceedingsunder Article IV,” id. § 30A.10(7), and pur suant to Article IV

of the City Code, Rhodes has the authority – independent of the C ode Enforcem ent Board – to require that buildings be vacated when nuisance conditions exist to the extent that vacating the building is necessary fo r public health, safety and welfare. Id. §§ 30A.38, 30A.4 2. In d etermi ning whet her a building is unfit f or human occupa

tion and should be condemned under Articl e IV, id. § 30A.42, Rhodes can rely upon the Code’s definition of a “nuisance ,” which includes: (3) Physical or uns anita ry conditions or conditions so lacking illumination orventilation as to be da ngerous to human l

ife or det rim ental to health of persons on or near the prem

ises where the condition exists. (4) Major or min

or violations of this Co de which cumulatively impact upon premises to the point whereby conditions endanger hum an life or substantially

and detrimenta

lly affect the

safety or security of occupants, nearby o ccupan ts or pa ssers- by. (5) Whatever rende

rs air, food or dri

nk unwholesome or

detrimental to the health of hum

an beings.18

(6) Fire hazards

. Id. § 30A.12. If Rhodes exercises his authority to condemn a building under Article IV, he must serve the property owner and tenants with a not

ice to vacate the st

ructure (as he did in this case), id. § 30A.42(A), and the property owner and the tenants may request

a hearing on the matter befo re the Board. Id. § 30A.11. If the te nants make such a request, a heari

ng “shall be granted,” id. , but the parties disagr ee about whether th

e Board would have the author

ity at that hear

ing to overrule Rhodes ’ condemnati on order. Additionally,

it is unclear wheth

er the Boa

rd would render a “final administrative

order” at the conc

lusion of this hearing.If the Board did issue a final administrative

order at the conclu

sion of such a hearing, an “aggrieved par ty” would have the right to appe

al the Board’s or

der to state circui

t court, but it is not e

ntirely clear whether the tenants would qualify as an “aggrieved party.” Id. § 5.08(1). Based on our review, w

e conclude that, at

the very least,

the standards

a nd procedures for in spect ion an d con demnat ion u nder t he Cit y Code p rovid e some protection

against the risk of e

rrone ous depri vation. Fu rthermore, th e Code’s definition of “nuisance,” while somewhat vague, can guide Rhodes as he

employs his condemnation

power. Accordingly, we conclude that the risk of erroneo us19

depr ivati on – i.e., the risk that Rhodes will vacate a building fit for habitation – is relatively low. But this is not to suggest that a code enforcem

ent officer like R

hodes could

never be mistaken. N

otwithstanding

the procedures established underthe City Code to protect tenants fr

om an erroneous

deprivation, we m

us t also c onsider under the second prong of the Mathews test whether additional or diffe

rent procedures would afford marginally better protection against the p ossibility of an err oneous deprivation. See Dusenbery v. United States , 534 U.S. 161, 167, 122 S. Ct. 694, 699 (2002 ) (referring to the second prong of the Mathews test as “a cost -benefit analy

sis of the risks of an erroneous depr ivation versus the prob abl e val ue of additional safeguards”). In essence, we must exami ne th e extent to which a hearing that provides a forum for te

nants to voice their concerns abou t a condem nation order could reduce the lik elihood of an errone ous deprivation

. We conclude that

such a hearing could a

fford margina

lly better prote ction against an erroneous depriv

ation, and the circ

umstances of thi s case illustrate th e potential value of such a hear ing. Several tena

nts argue that t

heir i ndividual units

were habitable and, as a consequence, the entire Lafayette S quare complex s hould not have been condemned.

Rhodes acknowledge

d that c ity officials di

d not conduct a formal u nit-by-unit inspe ction of the com

plex in June prior to the condemnation14 Although Rhodes contradicts this testimony later in his deposition, we must view the

facts in the ligh

t most favorable to

the plaintiffs.

20 decision, and a Code Enforc ement Bureau employee testified that as of July 12, 2000, the Bureau had not been able to assess the s tructural damage at Lafayette Square. Moreover, a city officia

l testified that som

e units at Lafay

ette Square wer

e “in good

con dition ” at the time of c ondemnation, w

hich presented Rhode s with a “m ajor dilemma.” (Tr. of Board Hr’g of July 12, 2000, at 10.) And Rhodes conceded that if tenants had approac

hed him at the tim

e of evicti on a nd claimed special circumstance s, and

“[i]f anot her inspection of

their unit had been done and showed their unit to be in reasonably goo dshape,” he mi ght have considered a

llowing those tenants to remain in the

ir units beyond the

date of condem

nation. 14 (Rhodes Dep. at 151.) These observations suggest that the risk of erroneous deprivation, even i f low, is not so negligible as t o be unworthy of consid eration. And while we do not suggest that tenants necessarily have the exper tise a nd experience to eva luate the extent to which the buildings in which t hey live are f

itfor human occupa ncy, we acknowledge that they are intim

ately familiar with th eir homes and may, in some circum stances, be able to provide inform

ation that will assis

t the City and its officials in evalua ting a condemnation

order. Theref

or e, al though the risk of err oneous deprivation is21

relatively low

, there is at leas

t some value

in conducting a

hearing at which te

nants can challenge a conde mnation order. The third Mathews factor requires u s to examine the

City’s inter

est. In this case, the City’s inter

est is of the highest or

der: protecting the p

ublic from

dangerous and potentially life-threa tening living co nditions. We need not belabor the obvious importance of this interest, which none of t he parties question. But under the third prong of the Mathews test, we must also consider the fiscal and administrative burden that additional p rocedural safeguards would impose. The additional fiscal a

nd administrative cost of n otice is negligib le. To effectuate an eviction, a city must info rm the tenants of a condemned building that they have until a

specified day a

ndtime to vacate . In the city of Orlando, this m

ust be done in two way

s: (1) by deliver

ing a notice to vacate

to the occu pants of a condemned

build ing per sonally, by leaving the notice at the occupants’ pla

ce of abode, or by delivering the letter to the occ upants’ last

known addre ss; and (2) by placarding

the bui lding as unfi t for hu man occup ancy i n a conspicuous place. Orlando, Fla. City Code § 30A.42(B). To include a one-sentence statement of a tenant’s right to appeal the condemnation orde r in this notice to vac ate would not be burdensome. In fact, Rhodes te stified that the City amended its stand ard eviction notice to include a statement reg arding the tenants’ right to appeal the condemnation22

order, which suggests that the fiscal and administr ative burden of

such notice is not prohib iti ve. Accordingly, we note that while

the City’s int

erest in protecting the public is exceptional, the City would assum

e almost no additi

on al financ ial or administrative

burden by providing

notice of the right to

a hear ing at the sa me time it provides the notice to vacate. The burden of conducting a he aring, of course, is likely great

er than the cost of adding another sentence to the City’s standard notice-to- vacate form.But this cost is hardly daunting, and there is no doubt in our minds that the tenantsare entitled to

a meaningful hea

ring at some point

in time to contes

t the con demnation d

ecision. Th e f iscal and administrative burden of conducting a pre-deprivation hearing, however, could be more pr onounced, particularly

if the hearing m

ust be convened on short notice independe

nt of any regula

rly-scheduled m

eeting. 2. Results of the Mathews Balancing: What Process is Due? Havingidentified the Mathews factors, we now must balance th

ese factors to determine the process that wa

s due to the tenants of Lafayette Square. As a general rule, an eviction must be preceded by noti ce and an opportunity

to be heard. Fuentes

v. Shevin , 407 U.S. 67, 8 1-82, 92 S. Ct. 1983, 1994-95 (1972); Thomas v. Cohen , 304 F.3d 563, 576 (6th Cir. 20 02) (“Due proce ss generally re quires notice and a he

aring prior to evictio n.”). But

there are “e

xtraordinary si

tuations” in which som

e valid15 For the purposes of thi

s appeal, we ass

ume tha t exigent circumstances existed because the district court, in adopting the magistrate judge’s report and recommendation, concluded that Rhodes’ belief that there were exigent circumstances was reasonable. 23 governmental in

terest is at stake that jus

tifies postponing

the hearing until af

ter the deprivation. Fuentes , 407 U.S. at 90, 92 S. Ct. at 1999. The S upreme Court has recognizedthat s uch ex traor dina ry situ ation s, whi ch we wi ll refer to a s “e x igent circumstances,” are marked by three character

istics: (1) the seizu re of property is necessary to secure an important governmental or general public int

erest; (2) there is

a special need for pr

ompt action; and (

3) the person initiating t he seizure is a g o vernment

official responsibl

e for determ

ining, under the stan

dards of a narrow

ly drawn statute, thatthe seizure was necessary and justified in the particular instance. Id. at 91, 92 S. Ct. a

t 2000. We conclude, as have many other c ourts, that the em

ergency evacu

ation of tenants from a danger

ous and potentially

life-threatening

structu re quali fies as an “extraordinary

situation.” As a consequence, w hen such exigent

circumstance s exist, tenants can be evicted from a building reasonably judged to be unfit for huma n occupancy

without a pre-depr

ivation hearing. 15 See, e.g. , Flatford v. City of Monroe , 17 F.3d 162, 167, 168 (6

th Cir. 1994) (“

Protecting citize

ns f rom an immediate

risk of serious bodily harm falls squarely within those ‘extraordinar y situat ions’ . . . . [W]herethe need to protect l ives is the basis for [an emergen cy eviction ], government16 We base our conclusion primarily on the weighing of

a city’s interest in protecting th e publ ic against the tenants’ interest in uninterrupted occupancy. Howe ver, the fiscal and administrative burdens associated with a pre-deprivation hearing reinforce our conclusion. If a predeprivation

hearing were required before a city could complete an

emergency evacuation,

the city would undoub tedly wish

to convene that hearing promptly to ensure that the dange rous structure could be vacated as quickly as possible. There is no doubt that the fiscal and administrative burdens attendant to such a

n urgent, previ

ously-unsch

eduled hearing

could be signific

ant. 24 officialsshould

not be made to

hesitate in performing their duties, particularly where postdeprivation

remedies can immediately correct any errors in judgment.”); Richmond

Tenants Org., Inc., v. Kemp , 956 F.2d 1300,1307 (4th Cir. 1992) (holding, in a federal public housing cas e, tha t “i n the absence of exig ent circumsta

nces, the Due Process Clause of

the Fifth Amendme

nt requires the gover

nment toprovide for notice and a n opportunity to be he ard before a tena

nt may be ev

icted”). When

the immediate

safety of tenants is placed in jeopardy by hazardous and possibly lifethreatening

living conditio ns, a city’s interest in protect ing its citizens outwe

ighs the tenants’ interest in enjoy

ing uninterrupted

occupancy at their residence of choice. 16 But exigent circumstances do not justify the postponement of notice until after the eviction. In this re

gard, the tenants’ interest i n being informed im

mediately of their right to challenge the condemnation decision outwei ghs a ny countervailin g government

interest. Without the ben efit of pre-deprivation notice, tenants may acquiesce in the condemnatio n decision and

secure alternate long-term housing even thoughthey might

prefer to rem

ain temporari

ly in “housing l

imbo”and secure short-25

term housing while contesting the condemnation decision. If the deprivation proves to be erroneous – i.e. , the building is habita ble, and thus sho

uld not have been condemned

despite the existing co d e violations – these te nants would have no

recourse because of

their binding com

mitment to t

ake up residence elsew

here. And while pre-deprivation not ice would serve the

tenants’ intere st, it would not hinder any identifiable

government interest. Providing such notice does not obstruct the City’s legitimate interest in protect

ing the public from

inhabiting dangerous bu ildin gs because the tenants are stil l required to vacate the prem ises, and pre-depr

ivation notice could be pro vided, as we note abov e, at little extra cost. When exigent circum

stances prom

pt an em ergency evicti

on, contempora

neous pre-deprivation

notic e is required but a pre-deprivation hearing is not. By “contemporaneous,” we mean tha t the t enants must receive notice of their right to challenge the condemnation decis ion when they are provide d wi th the no tice to vacate the building. We fur

ther hold that a post-d

eprivation hearing i s not automatica lly required because evicted tenants may acquiesce in a conde

mnation decision,

but if the tenants do exercise their r ight to challenge

acondemnation or

der, a meani

ngful postdeprivation

h earing sho uld be conducted p romptly. Flatford , 17 F.3d at 169. We have no occasion to articulate in any greater d etai l the requirements of a postdeprivation

hearing because the

plaintiffs only allege that Rhodes failed to prov

ide17 Notice comes in many shapes and sizes, and the e vents surroun ding this case illu strate the various types of notice that can be employed. Notice may be personal, including a conversation (either in-person or by telephone), a letter delivered by mail, or by posting or delivery at one’s place of abode. Notice may also be m ore general;

it can be published in a newspaper, posted on the pro pert y, or

provided in a state statute or city code. See Dusenbery v. United States , 534 U.S. 161, 176, 122 S. Ct. 694, 704 (2002) (describing various types of notice).

18 Rhodes contends that notice of the post-deprivation hearings was provided after the eviction. He argues that publication notice of these scheduled hearings was provided as early a s July 2, notice by

mail was provided as early as July 19, and posted notice wa s provided onthe Lafay

ette Square property prior to the July 26 hearing. Obviously, these forms of notice were provided after the eviction, and thus do not satisfy the requirement of contemporaneous notice. Rhodes vigorously

contends that thes

e post-deprivation notices “cured” the original notice defi cie ncy. Citing McKinney v. Pate , 20 F.3d 1550 (1994) (en banc), he argues that a state may cure a procedural deprivation by providing a later procedur al remedy. Id. at 1557. He contends that the provision of a post-de priv ation hearing c ured any possible injury

that resulted fro

m the failure to 26 them with constitutionally-adequate notice an d, a s a result, the constitutional adequacy of a post-deprivatio

n hearing is n ot befor e us. See supra note 11. 3. Did

Statutory Noti

ce Satisfy the

Contemporaneou

s Notice Requirem

ent in This Ca

se? Havingconcluded that the te nants were entitle

d to contemporan

eous notice of their right to seek review o f Rhodes’ condemnation de cision, we must now consider what type of notice is

required to meet this due pr ocess requir

ement. 17 Rhodes concedes that he did not

provide the tenants with personal notice prior to the eviction deadline of their right to

a hearing; city

officials did not

tell the tenants in-p erson of their right to challenge the condemnation order, nor were they informed of this right in the notice-to-vaca

te forms posted

on their doors or on the placarddisplayed at the main entrances to the co

mplex. 18 But Rhodes points out tha t the Orlando City C odeprovide constitutionally-adequate process prior to the eviction. We disagree. As we noted in deta il earlier, the failure to pro

vide pre-depriv

ation notice of the

right to a hearing can

work a uniquely final deprivation beca

use evicted tenants may enter into binding, long-term commitments to reside elsewhere. Providing post-deprivation notice and a post-deprivation hearing cannot cure the predeprivation

due process violation in such a circumstance. Accordingly, even if Rhodes provided adequate post-depri vation not ice and the Bo ard provide d a meaningf ul post-deprivati

on hearing (two hotly disputed issues), this process is not “sufficient to remedy the proce dural deprivation.” Id. 27 informed the tenants, as “person[s] affected by any notice which

has been issued in connection

with the enforcem

ent of any provi sion of this Code,” of their r ight to request a hearing “on the matter” before th e Board. Orlando, F la . City Code § 30A.11. His argument

has force because

several Lafay

ette Square tenants exercised their right to a hearing

under § 30A.11 on June 30, before the eviction deadline, when their counsel sent a lette

r to the city att

orney invoking thei

r right to a hearing. We must decide whether the

statutory notice

of the right to a hear

ing provid e d by § 30 A.11 of

the City Code is sufficient to satisfy the contemporaneous notice requirement

that we have

derived from o

ur application of the Mathews balancing test. For one hundred year

s, the Supreme Court has decl ared that a publicl y available statute may

be suffic ient to pr ovide such notice because individuals are presumptively

charged with knowledge of such a statute. Reetz v. Michigan , 188 U.S. 505, 509, 23 S. Ct. 390,

392 (1903); North Laramie Land C o. v. Hoffman , 268 U.S. 276, 283, 45 S. Ct. 491, 494 (1925) (“All persons are charged with knowledge

of the provisions of statutes and must take note of the pr ocedure adopted by them . . . .”);19 It is true t hat in many of the Supreme Court cases just cited, the question was not whether t he statute at issue

provided citizens w

ith adequate notic

e of their right to challe

nge a deprivation; rather, the question was whether the s

tatute provided a

dequate notice of the potential deprivation itself

. See Texaco , 454 U.S. at 531, 102 S. Ct. at 793 (whether Indiana’s Min

eral Lapse Act adequately notified affected individuals of the actions that must be taken to avoid the extinguishmentof mineral righ ts); Atkins , 472 U.S. at 129-30, 105 S. Ct. at 2529 (whether a statutory amendment

to t he Food Stam p Act provided sufficient notice to food-stamp households of an adjustmentof benefit

levels); United States v. Locke , 471 U.S. 84, 108, 105 S. Ct. 1785, 1799-1800 (1985) ( wheth er the Federa l Land Policy

and Managemen

t Act of 1976 adequ

ately notifi

ed claimants of the recording

actions that must be take n to avoid the abandonment of a mining claim). Unlike those cases, the tenants

in this case were

quite aware tha

t they were

being deprived

of their propert

y butthey were not informed by the City of thei r rig ht to appeal the deprivation. This distinction makes no difference, however, because as we note in the follo

wing paragr

aphs, the Court has

also held that a statute can provide notice of the right to an opportunity to be heard. 28 Texaco, Inc. v . Short , 454 U.S. 516, 532, 102 S. Ct. 781, 793 (1982) (“It

is well established that personsowning property within a State ar

e charged with

knowledge of releva nt statutory provisions affecting the control or disposition of such property.”). This principle of statutory notice was announced with the greatest force in Atkins v. Parker , 472 U.S. 115, 105 S. Ct. 2520 (1985) , when the Court w rote, “All cit izens are presumpti

vely charged w

ith knowledge of the l

aw . . . . Th

e entir e structure of our democra tic go vernment r

ests on the premise that the individual ci tizen is capable of infor ming himsel

f about the particula

r policies that aff

ect hi s destiny.” Id. at 130-31, 105 S. Ct . at 2529-30. 19 As early as 1905, the Supreme Court applied the principle of statutory notice to charge a plaintiff with notice of the right to an opportunity to be heard regarding

a deprivation. In Reetz v. Michig an , the plaintiff had been convictedfor violating a29

Michigan statute that prohibited unregistered individuals from practicing medicine. 188 U.S. at 505-06,

23 S. Ct. at 391. Under Michigan law , a board of regist

ration issued certificates of

registr atio n to practice m edicine. To obtai

n a certificate,

the plaintiff sent to the board copie s of his registration under the pr

ior s tatute and his dipl oma from a medical college, but the board denied his application. The plaintiff filedsuit, contending that the Michigan statu te did not provid e him with notice, a hearing, or the power to su mmo n witnes ses and compel th eir testimony

before the board. The Court

rejected the pla

intiff’s claim

because the

state statute provide

d for semiannual meetings of the board at specified times, the p laintiff did not appear at these meetings to pre sent his application, and if theplaintiff had atten ded a meeting andapplied for a hear

ing, the board would have been compe lled to grant it

. Accordi ngly, the Court declare d that “[w] hen a statute fixe s the time and place of meeting of any board or t

ribunal, no sp ecial no tice to parties inte rested is required

. The statute is itself sufficient notice.” Id. at 509, 23 S. Ct. at 392. Just four years ago , in City of West Covina v. Perkins , 525 U.S. 234, 119 S. Ct. 678 (1999), the Suprem

e Court revisited th

e issue of statutory notice and reaffirmed its conviction that statutes can provide notice of an opportunity to be heard. In that

cas e, p olice officers seized the plaintiffs’ personal property, including photos, an address bo ok, a shotgun, a star ter pistol, am

munition, and ove

r $2,600 in cash,30

pursuant to a va lid search warrant. The warrant related to another in dividual, a subject in a homicide investigation, who had been a boarder in

the plaintiffs’ home. The officers left a notice of the search and a n itemized list o f the property seized. The plaintiffs’ atte

mpts to recover

the items by

contacting

the police department an d by attempting

to obtain a court order wer

e unsuccessful, an

d they filed suit a

gainst the

c ity of West Covina, arguing that the city failed to provide them notice of th e remedies available under state law to obtain th e seized property. The Supreme Court rejected thei r claim because California law provided adequateremedies for the return of the plaintiffs’ pr operty, includi

ng motions brought undertwo sections of the California Penal C ode. The Court concluded that the police officers were required to provide notice that th

ey had seized th

e p roperty, bec ause wit hout suc h notice, property owners could not asc ertain who was re sponsible for their loss. But after th

e prope r ty owners were informed that the police had seized their property, the Califo rniastatutes placed the property owner s on notice of their right to file a motion in court to obtain the r elease of their p ropert y. The Court stated: No . . . rational e justif

ies requiring individualized notice of state-law remedies which . . . are

established by publis he d, generally a vailable state statutes and case law. Once the property owner is inform

ed that his property has been seized, he

can turn to these p ublic sources to learn about the remedial procedures available to him . The City need not take other steps to inform

him of his options.31

Id. at 241, 119 S. Ct. at 681-82. Thus, the Supreme Court’s view of statutory notice, reflected in its decisi o ns fro m Reetz to West Covina , provides the basis for a compelling

argument that § 30A.11 of the Orl ando City Cod

e, sta nding alone, provides contemporaneo us n otice to the tenants of their right to challe

nge the condemnation order and thus satisfies du e process. But the pl ainti ffs co nten d that the Su preme Court’s decision i n Memphis Light, Gas & Water

Division v. Craf

t , 436 U. S. 1, 98 S. Ct. 1554 (1978), placed an affirmative

obligation on Rhodes to a dvise the tenants of th

e avail ab ility of a procedure for protesting the condemnation orde r. In Memp his Lig

ht , the plaintiffs erroneously

believed that their

municipa

l utility was “

double billing” them

for its services, and the plaintiffs’ utility service was term inated o n several occasions for nonpayment

as a re sult of thi s mi s understanding. The y sought in good fait

h to resolve the “double billi

ng” problem, bu

t the procedure for obtaining an opportunity to speak with the utilit

y’s mana gement was not adequately expl ained, no r did the plaintiffs receive an adequa te explanation for th

e possible duplicatecharges. They filedsuit against the utility, alleging that the u tility f ailed to provide them with an adequate opportu nity to be heard before th eir utility service was terminat ed. The Supreme

Court agreed with

the plaintiffs. T

he Court concluded tha

t the utility’s notification

procedure, while adequate to no tify the plaintif

fs of the threat of32

termination

of service, was

n ot adequate to inform them of the availability of a procedure to object

to their utility bill s. The Court held that “[n]otice i

n a case of this kind does not comport w

ith constitutional req

uirements whe

n it does not advise the customer of the

availability of

a procedure for pr

otesting a proposed ter

mination of utility service as unjustified.” Memphis Light , 436 U.S. at 14- 15, 98 S. Ct. at 15 63. In a f ootnote, the Court observed t hat due process is fl exible and identi fied two factors on which it appeare d to base its decision, at least in part: the

utility’s notice of termination of services was “given to thousands of custom

ers of various level s of education, expe rien ce, and resource s,” and the uninterr upted continuity of

electric service is essential to health and safety. Id. at 15 n.15, 98 S. Ct. at 156 3 n.15. The tenants vigor

ously con

tend that Memphis Light controls this case an d dictate s that Rhodes had an affir mative obligatio

n to advise them of

their right to challenge the c o ndemnation and the procedure for doing

so. They arg

ue that the City’s notice to vacate w

as adequate to notify

them of the

pending eviction but

was not adequateto inform them

of their right to a

hearing. Moreove

r, they note tha

t the two factors upon which the Memphis Light Court arguably relied – the education and experience of those people affected by t

he deprivation and the

fact that the

property interest at issue is essential for health and safety – are present in this case.33

We reject the plaintiffs’ r

eliance on Memphis Light. One could arguably read footnote 15 of Memphis Li g ht to hold that notice of t

he right to and proced

ure for requesting

a hearing, which

goes above and bey

ond the “skeletal noti ce” th at informs individuals of the deprivation it self, is required

when un educated or inexperienced people are deprived of a p roperty interest essential to health a

nd safety. But

after the Supre me Court’s dec i sion in West Covina , it is clear that these factors (the sophistication

of the affected indiv

iduals and the health and saf ety implica

tions of the deprivation), standing alone, are not sufficient to im

pose an affirm

ative obligation

on city officials. In West Covina , the Court ma de clear that the a

ffirmative obligation imposed in Memphis Light

was predicated

upon the fact that there w ere no publicly available sources that would pr

ovide notice to th

ose utilit y customer

s who, upon learning of the thre

atened termin

ation of their utility

services, wishe

d to contest it: In requiring notice of the administrative p rocedur es [for resolving a billing dispute with the utility company], however, we relied not on any general principle that the government must provide notice of the procedures for protecting one’ s property inter ests but on the fact that the administrative

procedures at issue

were not describe

d in any pu

bl icly available document. A c

ustomer who w

as informed tha

t the utili ty planned to terminate hi s service could not re asonably be expe

cted to educate himself about

the procedures ava

ilable to protect his interes ts .

. . . While Memphis Light demonstrates t

hat notice of the procedures for protecting

one’s property interests may be requi red wh en tho se procedures are arcane and are not set forth in documen ts accessible to the public, it does not suppo rt a general rule

that notice of

remedies and procedures is requi

red.34

West Co vina , 525 U.S. at 242, 119 S. Ct. at 6 82. In reaching this conclusion, th e Court ac kn owledged that notice of the right to a hear

ing can be provided by “publishe d, generally ava ilable state statute s and case law,” “public sources ,” “any publicly available document,” and “documents accessible to the public.” Id. at 241, 242, 119 S. Ct. at

681, 682. The

tenants in this case, unlike the utility customers in Memphis Light , could have turned t o § 30A.11 of

the Orlando City C ode to learn of their right to a hearing an

d the method for exercising this rig ht. On this basis, we conclude that Memphis

Light is distinguishable fro

m this case and d

oes not impose

an affirmative

obligation on Rhodes to a dvise the tenants

of the availability of a procedure to challen ge the condemnation. Although we conclude that Memphis Light does not impose an af firmative notice obligation on Rhodes, w e nonetheless conclud

e that such affirm

ative notice is mandated by due process. In reaching this decision, we rel

y on the standard f

or notice established by the

Supreme Cour

t in Mullane v. Central

Hanover Bank

& Trust Co. , 339 U.S. 306, 70 S. Ct. 652 (1950), as well as our pract ical un derstanding of statutory notice. We ac

knowledge that this

dec ision may,

at first glance,

appear to conflict with the S

upreme Court’ s reasoning in West Covina , but we explain below why we believe that

statutory notice was insufficient, give n the circumsta

nces of this case, to satisfy due proces s.35

The Mathews balancing test, which we employ to determine the “ dictat es o f due process,” helps us determ ine at what point in

time notice of the opportunity to be heard is constitution ally required. Mathews v. Eldridge , 424 U.S. 319, 335, 96 S. Ct. 893, 903 (1976). In this

case, based

on our balancing of the Mathews factors, we concluded that the tenants we re entitled to conte

mporaneous

notice. But when we are called on t o consider what ty

pe of notice is adequa

te to meet the c

ontemporaneous notice requirement, we esch e w the balancing test in Mathews and adopt a “more straightforward”

approach. Dusenbery v. United States , 534 U.S. 161 , 1 67, 122 S. Ct. 694, 699 (2002 ). The S upreme Court, when asked in a rec

ent case to apply

the Mathews test to evaluate the adequacy of a p artic ular met hod of providing notice, declined to apply Mathews and indicated that the standard ann ounced in Mullane v. Central Hanover Bank &

Trust Co. , 339 U.S. 306, 70 S. Ct. 652 (1950) , provides the proper analytical framewor k: [W]e have never

viewed Mathews as announcing an all- embracing test for deciding due

process claims. Since Mullane was decided, we

have regularly turned t o it whe n confronted with que stions regarding the adequacy of the method used to gi ve notice. . . . W e see no r eason to depart from this well-settled practice. Dusenbery , 534 U.S. at 168, 122 S. Ct. at 699-7 00 (citi ng sev en Sup reme Court cases dating back almost fifty years that have applied the Mullane standard to a sse ss the adequacy of a particular m

ethod of providing notic e). Based on the Supreme Co urt’s36

guidance, we apply the Mullane standard to evaluate the adequacy of statutory notice in this case. Under the Mullane

standard, notice m

ust be “reasona

bly calculated, under

all the circumstance s, to apprise inter ested parties of the

pendency of the action and afford them an opportuni

ty to present

their objections.” 393 U.S. at 314, 70 S. Ct. at 657. “Th[e] r

ight to be heard has lit

tle reality or

worth unless one . .. can choose for hims elf whether to appear or default, acquiesce or contest.” Id. ; see al so Wes t Covina , 525 U.S. at 240, 119 S. Ct. at 681 (citing Mullane for this proposition). In determining

whether the Orla

ndo City Code appr

ised the tenant s o f their right to choose whether to “a

cquiesce or contest

,” we reitera

te that, for all practical purposes, the tenant s lose t heir ab ility to meaningfully contest the condemnation order when they make alternate housing

commitm

ents. Therefor

e, for a notice to be reasonably calculated

to apprise them

of their choices,

as Mullane

requi res, the notice must b e reasonably

calculated to

apprise them of

this right before the

y make alt

ernate longterm hous ing ar range ments. Moreo ver, w e assu me that if the tenants are unaware of their right to challenge the condemnation decision, there is a s ubstant ial likelihood that they will m

ake such alternate

plans before the dea

dline to v aca te the premise s, which, in this case, was 5:00 p.m. on June 30. Thus, under the Mullane standard, we must a sk whether § 30A.1 1 of the Orlando Cit y Code was rea

sonably calcula

ted,37

underall of the circumstances of this case, to pro vide the tenants with

notice of their right to seek review of R

hodes’ decision bef

ore the eviction dea

dline arrived

at 5:00 p.m. on June 30. We conclude that § 30A.11 of the Code, stan ding alo ne, is not reasonabl y calculated to apprise the tenant s of their right to cho ose to acquiesce or c ontest th e condemnation

or der. The Mullane

standard requires u

s to consider “a

ll the circumstances,” 339 U.S. at 314, 70 S. Ct. at 657, and we find one aspectof this case to be extremely

important: the r

esidents of

Lafayette S quare were provid ed with no

more than thirt y -six hours to vacate t heir homes, a

nd during this limit

ed period of time, they had to complete a multitude of tas

ks, which ranged from

securing alternat

e shelter to collecting their p ersonal belongings to m aking accommoda

tions for work or school. Although

the Orlando City

Code is a

publi cly available

document and the law p res umptively c harged the evicted t

enants of Lafay

ette Square with knowledgeof its provisions, the law does not

presume that

the tenants actually knew of their right to challenge the

condemnation w

hen they recei

ved the notice to vacate

on June 29 and 30. The

law does not entert

ain the legal fiction that every individual has achieved a state of

legal omniscie

nce; in other words,

there is no presumption that all of the citizens actually know all of the law all of the time . Practically speaking, citi zens must educate th emselves about t

he law before the

y can wield the

rights38

dedicatedto them under it, a nd the Supreme Court’s approach to statutory notice takes account of

this reality. See West Covina , 525 U.S. at 241 , 119 S. Ct. at 682 (noting that an individual “can turn to these public sources to learn about the remedial procedures available to him ”); id. at 242, 119 S. Ct. at 682 (no ting that a citizen “could not reasonably be

expected to educate

himself about the procedures availa ble to protect his interes

ts”); United States v. Locke , 471 U.S. 84, 108, 105 S. Ct.1785, 1799-1800 (1985) (noting that ci tizens need “a

reasonable opportuni

ty . . . to familiarize themselves with the generalrequirements imposed” by a new law); Atkins

v. Parker , 472 U.S. 115, 130, 105 S. Ct. 2520, 2529 (1985) (n oting that the presumption

that all citizens

are charged

with knowledge of th

e law arguably

may be

overc ome in cases in

which the statute “

does not allow a suff

icient ‘grace period’ to provide the persons affected by a change in the law with an adequate opportunity

to become familiar wi

th their obligations unde

r it”); Texaco, Inc. v. Short , 454 U.S. 516, 532, 102 S. Ct. 781, 793 (1982) (“Generally, a legislature need do nothing more than enactand publish t

he law, and affo

rd the citizenry

a reasonable opport

unity to familiarize itself with its terms and t o comply.”). We conclude, in the circumstances of this case, that § 30A.11 of the O rlando City Code was not reasonably calculated to inform the tena

nts of Lafaye

tte Square, who f

aced the burdens

associated with an39

eviction and had less than thirt

y-six hours to va

cate their homes, o f their right to choose between acquiescing in or contesting Rhodes’ condemnation order. West Covina d oes not compel us t o con clude that § 30A.11 provide s constitutionally- adequatenotice, for several reasons. First, while West Covina repudiates a general rule

that th e gover nment al ways must provide affirmative notice of the right to and procedures for requesting a heari ng, West Covina does not stand for the converse proposit

ion that statut ory notice is alw ays sufficient

to satisfy due process. See 525 U.S. at

242, 119 S. Ct. at

682. Second, the holding in West Covina

was framed in terms of the specific deprivation at issue in that ca se, namely , the deprivation

of personal propert

y by the police for a criminal

investigation. Id. at 240, 119 S. Ct. at 681 (“When the police seize propert y for a criminal inve stigation, however, due process does not require them to provide t he owner with

notice of statelaw remedies.”

); see also id. at 242-43, 119 S. Ct. 682-83 (b asing its con clusion in par t on the fact that neit

her the federal go

vernment nor an

y state has tra

ditionall y required law enforcement agencies to provide notice of state-law remedies). Third, itdoes not appear that the issue in our case ( whether a p ublic source provides constitutionally- adequatenotice when citize ns have less than thirty-six h ours, amidst

a sea of other obligat

ions, to consult that so

urce and learn of their rights) was presentedin West Covina ; there i s no indication in that opinion that the plaintiffs40

would have forfeited the

ir right to obtain the seized property if thye did not learn of and exercise their right within a substantially-limited period of time. Fourth, the holding in West Covina

seems to im

plicit ly supp ort our con clusion. T he Court’s opi nion , which holds that personal notice of procedures may be required if a descr i ption

of those procedures

cannot be accessed

by the public, a

cknowledges a practical concern about the publ ic’s ability t

o learn of its

rights, and it is precisely that

concern which our decision a tt empts to address. Id. at 242, 119 S. Ct. at 682. Finall y, we note that West Covina , while citi ng Mullane , did not mention t he “reasonably

calculated” standard or apply it. See West Covina , 525 U.S. at 240 , 119 S. Ct. at 681. Based

on the Cour

t’s endorsement of the Mullane standard in Dusenbery

v. United States , 534 U.S. 161, 122 S. Ct. 694 (2002), three years after the decision in West Covina , we believe that our “reasonably

calculated” anal

ysis is not controlled by the

Court’s decision i

n West Covina

. In conclusion, we hold that when the tenants of Lafayette Square were evicted from their leasehold interests based on ex ig ent circumsta nces and were give

n less than th irty-si x hours to vacate the premises, they were entitled under Mathews and Mullan e to affirmati

ve, contempor

aneous notice of thei

r right to challenge th e condemnation

order but they were not entitled to a pre-deprivation hearing. By “affirmative”

notice, we mean that they were entitled to notice above and beyond that41

provided by § 30A.11 of the City Code. By “contemporaneous” notice, we mean that they were entitled to notice of their right to challenge the condemnation at the sa me time they were provided with th e notice to vacate the premises. B. Was the tenants’ ri ght clearly establishe

d at the time of evic

tion? Becausethe facts alleged by the plaintiffs show

that Rhodes’ conduct violated the plaintiffs’ d

ue process rights under the Four teenth Amendm

ent, we now turn to the second Saucier

inquiry and ask w

hether the law at the time of evicti on made clear to a reasonable code e

nforcement of

ficer that Rhodes’ conduct was u nlawfu l. We conclude that a reasonable c ode enforceme

nt officer could have believed that Rhodes’ conduct was lawful, and

therefore Rhodes w

as entitled to qualif

ied immunit

y. In the simples t terms, t his dec ision is compe lled by West Covina . In li ght o f the S upreme Court’s decision in West Covina , a reasonable code enforcement officer could rea dily have conc luded that Rhodes was under no obligation to provide notice, predeprivation

or otherwise, of

the tenants’ right

to challenge the

condemnation

decision because the remedial procedure available to the tenan ts was es tablis hed by a published, general ly available source, § 30 A.11 of the City Code. T he plaintiffs mak

e several argum

ents to support the cla

im that their r

ight t o notice was clearly established. They cite Memphis Lig ht for the proposition that Rhodes had an affirm

ative obligation at the

time of eviction to inform

the tenants of42

their right to challenge the cond

emnation decision, but we a

ddressed and reje

cted this argument,

basedon West Covina , in Part A. They also rely on Fuentes v. Shevin , 407 U.S. 67, 92 S. Ct . 1983 (19 72), and Barry v. Barchi , 443 U.S. 55, 9 9 S. Ct. 2642 (1979), to contend that t he y were at lea

st entitled to imm

ediate post-depriva

tion notice of their right to contes

t the condemnatio

n. This might ve

ry well be tru

e, but these decision s have no bearing on the fact that, under West Covina , a reasonable code enforcement

officer could believe that § 30

A.11 of the City

Code provided the tenants with constitutionally-adequate notice prior to the deprivat ion and thus complied with Fuentes and Barry

. Finall y, the plaintiffs point us to Flatford v. City of

Monroe , 17 F.3d 162 (6th Cir. 1994), a Sixth Circ uit decision that addr

essed p rocedural due process requirements

in the context of

an emerge

ncy eviction. O

bviously, a Sixth

Circuit decision cannot clearly establish the law

in this circuit. Marsh v. Butler C ounty, Ala. , 268 F.3d 1014, 1032 n.10 (11th Cir. 2001) (en banc). The plaintiffs ac knowledgethat Flatford cannot establish the law, but they argue that Flatford is “persuasive

” because the Sixth Circuit’s r

easoning in Flatford

was based

entirely on t he Supreme Cou rt’s opinions in Fuentes and Mathews

. We reject t he plaintiffs’ r

eliance on Flatford

. Although Flatford

dealt with

due processin the context of an exigent circumstances

e viction, that decision did not co nsider how statutory

notice might af

fect the43

obligations of

acode enforcement officer under the Constitution. The Supreme Court decisions upon which the plainti ffs contend Flatford

relies do not

address the

effect of statutory notice either. In fact, the Flatford decision predated th

e Supreme Court ’s decision in West Covina

by five years, an d as a conse quence, th e Sixth Cir cuit’s decision in 1994 does not

disturb our conclusion that a r easonable code enf

orcement official could conc lude, base d on West Covina , that the City Code on its own provided constitutionally- adequate notice of t he tenants’ right t

o challe ng e the condemnation decisio n. The dissent suggests that Rhodes should have known that any

appeal brought by the tenants under § 30A .11 would have been futile. We disagree, and we explain

our reasoning in some detail. Under the Orlando City Code, the Board has the power to “[h]ear a

ppeals of any per

son affected by

a notice issu ed in connection with enforcement

of . . . [th e] Minimu m Standar ds Code .” Orlan do, Fla . City C ode § 5.06(7). Affected persons who wish to pursue an appeal before the Board are instructed to “explain the basis of the challen

ge to the administra

tive determina

tion

or act” in their notice of appeal. Id. Thus, § 5.06(7) contemplates that the Board can hear appeals challengin

g admin istrative determinations, and Rhodes’ issuance of a notice to vacate triggers th e right to such an ap peal under § 30A.11. Th ere is n o44

doubt then that the Orlan

do City Code, on

its face, em

powers the

Board to consider the tenants’ challenge to Rhodes’ condemnation order. But the dissent concludes that the Board does not hav

e the power to revie

w or to reverse Rhodes’ unilateral condemnation dec ision notwithstanding the provisions of §§ 5.06 and 30A.11. I n s upport of this con clusion, the diss ent cites Fla. Stat. § 162.08, which states that code enforceme nt boards may

(1) ado pt ru les for the conduct of their hearings, (2) subpoena

alleged violators and witnesses, (3) subpoena evidence, (4) take testimony under o ath, and (5) “ [i]ssue orders ha ving the force of law to command

whatever steps ar

e necessary to

bring a violation intocompliance.” Fla. Stat. § 162.08. T

his statute, the disse

nt a rgues, does not authorize a c ode enforcement

board to review or to reverse a c ity’s co ndemnation decision . We believe this readin g of § 162.08 may be too narrow. The City Code is violated when individuals are pe rmitted to occu py any premises or dwelling units that contain “m

ajor violations” of

the Code. Orlando, Fla. City Code § 30A.21. Rhodes found that Lafayette Square contained maj or violations of the Code, and he con cluded that condem

nation was the only

appropriate mechanism

to ensure compli

ance with the Code.

In bringing their appe

al, the tenants merely asked the Board to reconsider w he ther condemnat ion was the appropri

ate measure to

address the violations at Lafayette Square. If the Board ultimately were45

to disagree with Rhode s’ condemnat ion decision, it woul

d appe ar that the Board would be called upon to issue an order that would com

mand those

steps (which would not include condemna

tion) that the Board deemed necess ary to bring the violations atLafayette S quare into compl iance. Such an or

der, while having t

he practical effect of reversing Rhodes’ condemnation decision, would appear to fall squarely within the Board’s power under Fla. Stat. § 162.08(5). Thus, a fair argume nt cou ld be ma de that the Board does ha ve the power to review and to reverse

Rhodes’ condem

nation decision. (N

otably, § 162 of

the Florida statutes does not appear t o contemplate t hat a city code e

nforcement of

ficer like Rhodes may be vest

ed with the unilater

al power to condem

n abuilding. See Fla. Stat. § 162.06(4).) But the dissent’s competing view is well-taken, and i t might well be true that the Board

lacks the power to r

eview Rhodes’ unilateral condemnation order under§ 162.08. But that que stion is not before us today

. Instead, we a

re called upon to decide whether an objec tively reasonable officer should ha ve known in June

2000 that an appeal under § 30A .11 would be futile. This is an easier question, we believe, and we decide it in Rhod

es’ favor. T

he Cit y Code exp licitly entitles the tenants to challenge Rho des’ a dministrative de cision in an appeal. The Florida statut e, by contrast, does not explicitly authorize a Boa rd to review or to r everse Rhodes’ decision, but

it does empowe

r the Board to issue an orde r having the force of

law to46

achieve compliance throu gh wha tever steps the Bo ard de ems necessary. In light of the clear right to an appeal es

tablished in the Orl

ando City Code

and the possibility that the Board’s exer

cise of review pow

er falls within its

statutory author

ity, it would not have been self-evident to an objectively reasonable offi cer in Rhodes’ position that the explicit ri ght of appeal establ ished in the City Code i s illusory. In reaching the opposite conclusion, the dissent relies extensively on Rhodes’ training and experience. But this training and experience could not

come to his

aid. Although Rhodes has substantial experie nce in city gover

nment, has specific train

ing in due process, and ha

s condemned over

400 buildings (including a t le as t three ap artment

c omplexes), the

Board had never bee

n asked to review one

of Rhodes’ unilateral condemnation

decisions pursuant to § 30A.11. The disse nt admits as m

uch, but inexplicably goe s on to conclude that Rh odes’ extensive e

xperie nce could somehow have helped him predi ct the Board’s interpret ation of its powers. The dissent also pai nts a stark, and quite ina dequate, p icture of t he Board’s understanding

of its authority. Relying on the deposition tes timony of the Boar d’s chairman and select excerp

ts of testimony

from the two B oard hearings in this case, the dissent implie s that the entire Boa rd believed that it

lacked the power t

o review or to reverse Rhodes’ dec ision. This characteri zation of the Board’s und

erstanding is inaccurate.47

The dissent states that the Board understood at the July 12 heari ng that it could only make a determination regarding code compliance. This is true, but not because the Board lacked

the power to revie

w Rhodes’ condem

nation decision. The Board’s power was limited to evaluating code com pliance at the July

12 hearing because

the Board was hearing Rhodes’ c ase against the owne r of Lafaye

tte Square, not the tenants’ appeal. Accord

ingly, the state

ment regarding

the Board’s lim

ited power did not necessarily reflect its understanding of its authority to review Rhodes’ order. The dissent then suggests that the July 2 6 heari ng was c alled a s a cour tesy, arranged for the sake of good m

anners, to allow t

he tenants a

venting s ession to exp ress their feelings. This statement implies that the Board understood, at that hearing, that it could

not review or reve

rse the condemnation or

der. But the trans cript of the hea ring does not bear this out. At the hearing, a member of the Board asked the City Attorney to frame the issues that the Boa

rd needed to decide.The City Attorney testified, “This Board can have a hearing on whether it was – at least what I understood, whethe

r it’s appropria

te for the people to have been required to move and whether they s

hould be allowed tomove back in . . . . Now, there m ay be other issues the tenants would like to pre sent t o thi s Boar d, but to me – I assume the thrust of this would be the City made a mistake in asking us to leave, the building was safe, letus go back.” (Tr. of Board H r’g of July 26, 2000, at

26.) This statem

ent, made by48

the City Attorney

in direct response t

o the Board’s inqui

ry abou t t he nature of the hearing, clearly calls into ques tion the d issent’s s uggestio n that the Board’s conduct atthe July 26 heari

ng is indic at ive of its belief tha t it could not review

Rhodes’ decision. Later in the hearing, Cato, on

behalf of the plaint

iffs, asked the

City to revers e the condemnation dec

ision and require re

inspection of

every apartm

ent. Thisrequest prompted the Board chairman to ask, “[I]f we reverse the decision and the order what

are we accomplishing?” ( Id. at 49.) Another member of the Board stated, “ [W]hat they’reasking us to do i s reverse o ur decision, which I, as one mem

ber, am not willing to do.” (Id. at 52; emphasis added.) And anot her member said, “[I]f we

reverse the decision and require

the City to go out a

ndinspect, can we s

till keep the order intact that nobody

is allowed to move back into those properties?” ( Id. at 54.) These questions hardly s

uggest that the Board

was steadfast i

n its collective belief that it had no authority

to reverse Rhodes’ decision; on the contrary, several

members of the Board appeare

d to have no qualms with re viewing the condemnatio

n decision, although they expressed their belief that th e condemnation

decision was appropriate. After Cato and the plaintif

fs testified befor

e the Board, one

of the members

of the Board suggested that the Board should not dist urb the c ondemnation orde r, but should requir e the Ci ty t o rei nspect the units at L afayette Squa

re and then have the49

Board reconsider the m

atter. The Boa

rd chair man respon

ded that the Board co

uld request, but could not require, the City to reinspect the apart ments because the Board’s “primary purpose” was to evaluate compliance with the Code. ( Id. at 105.) Although this statem

ent hints at the boundar

ies of the Board’s power, the chairman did not suggest that the Boar

d lacked the power t

o reverse the conde

mnation decision atthat time. T

he July 26 hearing

concluded with at least three members of the Board stating, on the record, that t he condemnation decisio n was appropriate, and wi th two of the six mem

bers voting in favor of

a motion that wo

uld have acknowledg ed the City’s promise to reinspect the complex with an expert sele

cted by the tena

nts. In summary

, we believe that

the dissent oversimplifies this issue, and in doing so, fails to appreciate the genuine u ncertainty that surrounded the Board’s review power at the time Rhodes condemned the complex. This case represents the fi rst ti me that the Board

was called upon unde

r § 30A.11 to review a unilate ral condemnati

on order. To the extent that t he City Code and the Florida statute conflict – which w

e do not decide today – it was impossible for R hodes to know, even w

ith his significant experience, how this conflict w ould be reconciled. The dissent observe s that the Board “flound er ed” at the July 26 hearing; it would be more accurate to say that neither the Board nor the Ci

ty Attorney

suggest ed du ring either hearin g that the Board lacked the power t

o reverse Rhodes’ condemnation decision. This perceived20 Inthe dissent’s view, West Covina “sails alone.” B ut West Covina is not an aberrant decisionfrom a prior era that has not been f

ormally ove

rruled. Nor is it a

decision that cle

arly ig noredre levant precedent in reaching a conclusion at odds with established law. Rather, West Covina is the most recent Supreme Cour t due proce ss opinion that addresses the constitutional adequacy of statutory notice, and the West Covina Court, cognizant of its decision in Memphis Light , took care to reconcile its decision with Memphis Light . While the dissent characterizes West Covina as marginal and anomalous, such a characterization is premature. West Covina might prove tobe marginal and anomalous, as the dissent suggests. Or, if West Covina represents the departure from prior l aw described b y the dissent , it may sign

al the first step in

a paradigm shif

t in due process jurisprudence. Or it

might, as we suggest, reflect nothing more than

the extension of the

principle applied by the Supreme Court in Reetz almost a cen tury ago . O nly time will tell. But for the purposes of this appeal, the only time that

matters is June 29 , 2000, when Rhodes ordered the condemnatio

n in this case. At that time, in light of the Supreme Court’s recent decision in West Covina , a reasonable code enforcement officer could have believed that statutory notice was constitutionally sufficient. 50 limitation on the Board’s pow

er was c rystallized for the first time in the Board chairman’s depo siti on tes timo ny almost one year aft er Rhodes condem

ned the complex. Our review of th e record indicate s that it was not self -evident to the Board d uring the hearings that it l acked the authority

to review Rhodes’ condemnati o n order; thus, it is inappr

opr iate to suggest that it

would have been self

-evident to a reasonable code enforcement officer several weeks earlier. The plaintiffs have failed to demonstrate

that a reasonable c

ode enforceme

nt officer would have believed t hat Rhodes’ conduct w as unlawful. At t

he time of eviction in June 2000, a reasonable code enforcement officer could reasonably have

co ncluded, in light of West Covina , that § 30A.11 of the Orla ndo City Code, a publicly available document, placed the tenants on notice of their ri

ght to challenge Rhodes’ condemnation dec ision. 20 Although we conclude in Part A that this ca

se is51

distinguishable

from West Covina

and warrants

a different outcome, we cannot say that a reasonable

code enforcem

ent officer would

have believed in June

2000 that the law clear l y entitled the plaintiffs to notice above and beyond that already provided in § 30A.11 of the City Code. IV. CONCLUSION We hold that the district

court erred when

it conclude d that Rhodes was not entitled to qualified imm unity as to the plaintiffs’ post-depr ivation due process claims. Accordingly, we REVERSE the district court’s order to the e xte nt that it denied Rhodes ’ claim of q ualifi ed immuni ty. REVERSED.52

BIRCH, Circui

t Judge, concurring in part and dissenting i n part: I wholeheartedly

agree with the

majority ’s conclusion that t he tenants in

this

case have alleged a violation of their constitutional right to contemporaneo us and personal notice of a right to ap peal their eviction s. I w rite separately because I disag ree wit h its wholesale rej ection of the Suprem e Court’s decisio

n in Memphis Light , as well as the decision to grant qualified immunity. T he majority conclude that a government official could not have rea sonabl y known that the summary condem nation of property and subse quent eviction of its residents without providing them personal notice of t

heir righ t to challenge the dec ision wa s unconstitutional. A reasonable code enforcement officer, they argue, could have readily concluded that such notice was not required “because the remedial procedure availa ble to t he tena nts was establ ished b y apublished, generall y available source, § 30A.11 of the City Code.” Maj. Op. at ___. Section 30A.11 provides that “[a]ny pers on affected by a

ny notice which h

as been issued in conne

ction with the enforcement

of any provision of

this Code . . . m

ay request a

nd shall be granted a hearing on the matter before the Co de Enforcem ent Board [(“

Board”)].” T

hough facially appealing, the pre

dicate for the m

ajority’s conclusion u

n ravels upon closer inspection.1 Such decisions are made pursuant to §§ 30A.42 (“Procedure for Vacating of Structures or

Premises”), 30A.45 (“Procedure for Emergency City Action”), or 30A.38 (“Public Nuisances”).

2 Under § 5.08, “[a]n aggrieved party . . . may appea l a final administrative order of the [Boar d] to the Circuit Court.” Obviously, if the Board has no authority to reve rse a city’s condemnation

decision, there i

s nothing to challenge on a ppeal. In addition, § 5.08 uses the term “par ty” instead of “person affected,” as § 30A.11 does. While evicted tenants are certainly affected by a condemnation decision, they are not an “aggrieved party.” See Kuritzky Dep. 29:13-15.

53 In simplest term

s, the futility of any appeal a fforded by

§ 30A.11 would

have been self-evident to any

reasonable code en

forcement of

ficer in Rhodes’ s position. Itis clear that the B oard has authority to condemn and vac ate buildings. See Orlando, Fla., Code § 30A.42. The City Code does not, however, grant the Board aut

hority to

rever se , on ap peal, an inde penden t conde mnation decisi on made b y the Cit y. 1 Notwithstandi

ng § 30A.11, the Board’s jurisdiction is limited to “affording the proper relief consistent with the po

wers granted by

Florida Statute and by this Chapter.” Id. , § 5.05(g). The Florida legislature, however, only empower s local enfo rc ement boards, in pertinent part, to “[i]ssue orders having the forc e of law to comm and whatever steps are necessa

ry to bring

aviolation into c ompliance,” Fla. Stat. Ann. § 162.08(5) (2003), and not, fo r example, to

review a city ’s unilateral co ndemnation order. 2 That limited jurisidiction is substan tiated b y the Board’ s own understanding of its ro le in t he cod e enfo rceme nt process. A s clarified by the testimony of its chairman, Mr. Kuritzky, t he B oard is limited t o the adjudication of

the property3 Likewise, the City provides

no appeals proce

ss to reviewits own condemnatio n decisions. Grandin Dep. 18:1-3 (City of Orlando, Director of Planning and Deve lopment). 54 owner’s guilt or innocence on alleged code violations, and has no authority to re verse

a city official ’s condemnat ion order. There

is simply no way for an ev

icted tenant to challenge such an order through Board action. 3 As such, the Boar d has no obligation to hear from evicted tenants, and the hearing provided to the tenants in this case was

a mere “courtesy.” The Board’s own conduct during those hearings suggests as much

. When some of

the tenants petitione

d the Board to defer

its ruling at the firs t scheduled hearing

until alltenants were give n an opportunity to s

peak Mr. Kuritz

ky told them that the Bo ard could “onl y ma ke a determina

tion whether or not t

he property is or is not in complian ce with the code.” 12 July Hr’g T r. at 49:21-25. At the second hearing call

ed, Mr. Kuritz

ky again stated “

all [the Board] can do is determine if there is non-com

pliance.” 26 July

Hr’g Tr. at

46:12 -13. In f

act, the second hearing was calle

d, not to ta ke action, but m erely for the

sake of good manners,“to allow the tenants . . . to express their feeli ngs and observati ons,” Id. at 3:15-19. Board mem

bers floundered at t

his meeting, f

inding it difficul

t t o comprehend

what relief co uld be affor ded or even what the

issue before them

was. A venting session is no substitut e for a meani ngful opportunity to

be heard, something

the tenants were n

ever afforded in t

his case. Without effective rev iew, the55

City’s summary

condemnation or

der was de jure

final and unappeala

ble , and therefore constitutionally i nadequate. In turn

, statutory noti

ce of the Board’s impotence in this regard i s simila rly unsa tisfac tory, f or notice of an ineffectual opportunity to be hea rd is no notice at all

. Rhodes must have known this, as any code enforcement office r with his training and experience would have. At the time of the eviction notices, he had substantial experience at high levels of city government, a

nd specific training

in the mandates of due process. He was C hief of the Code En forcement Bu

reau, and the official to whom the City delegated the important respo nsibility of decl

aring dan ger ous structures uninhabit able. Over the y

ears serving as the chief executive officer of his division, he had condemned over 400 buildings. Ind

eed, he testified

in his deposition that he does not “ ordinarily seek a cond emnation order

from the [B]oar d,” Rhode s Dep. 122: 7-8, t hat in the th ree pr ior ap artmen t cond emn atio n cases, the Board never re

viewed his condemnation dec isions, and that such a

decision becomes a Board case only “[w]hen th

e property owne

r fails to c omply with

the origina l comp liance schedule.” Rhodes Dep. 77:20-78:2. That the highest official in a city’s build

ing safety department co

uld have reasonably concluded that statutory notice of a sterile

opportunity to be he

ard was constitution

ally sufficien

t stretches the imag in ation

to an untenable degre

e. In light of these

inferences, we

should have56

affirmed the denial of qualified immunity; at most, we shoul

dhave remanded for fact finding on this issue. Equally troubling is the m

ajority’s out-of-hand reje ction of the principles and clear import of the hol

ding articulated by

the Supreme Court in Memphis Light. I t is beyo nd question that the cons titutional right to notice and an opportunity to b e heard before a person is finally deprived of property by

government act

ion is clearly established. Mullane , 339 U.S. at 313, 70 S. Ct. at 656-57. Without rel y ing on Memphis Light , however, the m

ajority distil

l a further due process requi reme nt: “[w]hen exigent circumstances p rompt an emergency eviction, c ontemporaneouspredeprivation

notice is required,” such t hat “tenants m

ust receive notice of

their right to challe nge the condemn ation d ecisio n when t hey are provi ded with the notice t o vacate the building.” Maj . Op. at ___. In doing so, they distingui sh the questions whether and when such notice

must be provided,

from the method

of delivering that notice, whether it be statutory or personal. T he general right

to contemporaneous notice was articulated i n Memphis Light with such clarity that

a reasonable offi

cial would have rea

lized that the

tenants here

were entitled to this type of notice. After all, if the rule applies to basic necessities in the home such as utilit ies, a fortiori , it cl early a ppli es to t he rig ht to occup y a home in the first place. At a minimum, then, Memphis Light clearly establishes that4 Cases fromother circuits also make this proposition abundantly clear. It is true that thus

far we look only t

o our own precedent and the decisions of the United States Supreme Court and the supreme court of the relevan

t state in this Circuit to determine whether law is clearly established. See Marsh v. Butler County, Ala. , 268 F.3d 1014, 1031 n.9 (11th Cir. 2001) (en banc) . Language ina number of fairly recent Supreme Court opinions, however, ha s signa led a different approach. See, e.g. , Hope , 536 U.S. at 747 n.13, 122 S . Ct. at 2519 n.13 (2002) (noting in its qualified immunity analysis that

there were “apparently no decisions on similar facts from other Circuits”); Wilson v. Layne , 526 U.S. 603, 617, 119 S. Ct. 1692, 1700 (1999) (refusing to find that “the law on third-party

entry into homes” was clearly e stablished, in part because no cases either in the relevant jurisdiction o r

from “a consensus of c

ases of persuasi

ve authority

” had been prese

nted); United States v. Lanier , 520 U.S. 259, 269, 117 S. Ct. 1219, 1226-27 (1997) ( obser ving that, a lthough “disparate

decisions in

various Circuits might leave the law insufficiently certain even on a point widely considered, such a circumstance may be taken into account in deciding whether the warning [to government off

icials] is fair enou

gh”); Id. at

269, 117 S. Ct. at 1226 (stating that when “applying the rule of qualified immunity,” the Court has “referred to decisions of the Courts of Appeals when enquiring whether a righ

t was ‘clearly

established’”)

(emphasis added) ; Elder v. Holloway , 510 U.S. 510, 516, 114 S. Ct. 1019, 1023 (1994) (counseling a lower court to“use its ‘full know ledge of its own[ and other relevant ] pr eced ent s’” in a qua lif ied imm uni ty an alysis) (al teration in orig

inal) (emphasis

added) (citatio

n omit ted); Anderson v. Creighton , 483 U.S. 635, 646, 107 S. Ct. 3034, 3042 (1987) (refer

ring to “curre

nt American law” when describing reasonableness for qualified immunity purposes) (emphasis added). Under “current American law,” the rule in Memphis Light is unmis takable. S ister courts have held that those summarily evicted through condemnation pr ocedu res are entitled

to contemporaneous notice of their right to appeal. See, e.g. , Flatford v. City of Monroe , 17 F.3d 162, 169 (6th Cir. 1994); McGee v . Bauer , 956 F.2d 730, 737- 38 (7th Cir. 1992); Wilson v. Health & Hosp. Corp. , 620 F.2d 1201, 121 4-15 (7th Cir. 1980) (“hav[ing] littl

e di fficulty in finding that Mullane and the due process clause require personal notice of the individual’s right to a hearing prior to the government’s depriving the individual of any property interest, notwithstanding the ‘notice’ provided by the public character of the ordinance itself. . . . [W]e do not believe it is adequate for the government simpl

y to rely upon the time

worn adage that ‘ignorance of the law is no excuse.’”). Persons deprived of othe

r forms of proper

ty are also

frequently

entitled to such notice. For cases requiring notice of the right to appeal a denial of statutory be nefits, see, e.g ., Sullivan v. Barnett , 139 F.3d 158, 173 (3d Cir. 1998), rev’d on other grounds , 526 U.S. 40 (1999) (suspension of employee medical

benefits); Davis v. Mansfield Metro. Hous. Auth. , 751 F.2d 180, 185 (6th Cir. 1984) (denial of elig

ibility for Se

ction 8 housing pr

ogram); Holbrook v. Pitt , 643 F.2d 1261, 1280-81 (7th Cir. 1981) (denial of retro active housing a

ssistance pay

ments); Bliek v. Palmer , 102 F.3d 1472, 57 contemporaneo us noti ce of the right to appeal is constitutionally required before tenants may

be evicted from

their homes wi

thout warning. 41476 (8th Cir. 1997) (reduction of food stamp benefi

ts to cover prior ove

rissuances); Gonzalez v. Sullivan , 914 F.2d 1197, 1203 (9th Cir. 1990) ( denial of disability be nefits); Jordan v. Benefit s Review Bd. of the U.S. Dep’t of Labor, 876 F.2d 1455, 145 9-60 (11th Cir. 1989) (denial of black lung benefits). For cases requiring notice of possible exemptions to postjudgment seizures and the procedures for claim

ing t hem, see, e.g., Dionne v. Bouley , 757 F.2d 1344, 1352 (1st Cir. 1985); McCahey v. L.P. Investors , 774 F.2d 543, 549 ( 2d Cir. 1985); Finberg v. Sullivan , 634 F.2d 50, 62 (3d Cir. 1980); Cinea v. Certo , 84 F.3d 117, 122 (3d Cir. 1996); Reigh v. Sch leigh , 784 F.2d 1191, 1196 (4th Cir. 1986); Aacen v. San Juan County Sheriff’s Dep’t , 944 F.2d 691, 699 (10th Cir. 1991). For cases requiring

notice of th

e right to challenge other types of seizures, see, e.g ., Anderson v. White , 888 F.2d 985, 992 (3d Cir. 1989) (interception of federal tax refunds to cover child support deli n quencies); DiCesare v. Stuart , 12 F.3d 973, 978 (10th Cir. 1993) (seizure of sick horses by county official); but see Ramirez-Osorio v. INS , 745 F.2d 937, 945- 46 (5th Cir. 1984) (Due pr

ocess does not require blanket notice by the INS to deportable de tainees of the right to seek asylum.).

5 The distinction’s legitimacy is hardly indisputable. The Court in Memphis Light did note that “the opportunity to invoke [a dispute resolution] procedure, if it existed at all, depended on the vagaries of ‘word of m outh r eferral.’” 436 U.S. at 14 n.14, 98 S. Ct. at 1563 n.14. It did so, 58 But the majority

also reject Memphis Light as clearly es

tablishing that

personal notice of such a right is also com pelled by due process, and this is the ba sis for their decision to grant qualified immunity. For support, they refer to the

Supreme Court ’s

rec ent co nclusion that owners of property seized in the course of a criminal investigation

have no constitutional r ight to “individua

lized n otice of state-law remedies”

to contest the seizure, or procedures to petition for the returnof prop erty, if those remed

ies and procedures “are establi shed by published, generally ava

ilable state statutes and case law.” West Covina , 525 U.S. at 241 , 119 S. Ct. at 682 . The Court distinguished Memphis Light because“the admi

nistrative procedur

es at issue [there] were not described in a ny publicly available doc ument.” Id. at 242, 119 S. Ct. at 682. 5however, in the course of determining w

hether the plaint

iffs had actual n

otice of those pro

cedures. Id. at 13-14, 98 S. Ct. at 1 562-63. That thre shold finding was important

because “the Du

e Process Clausedoes n ot r equire notice where those claiming an entitlement to notice already knew the matt ers of which they might be notified.” Moreau v. Fed. Energy Regulatory Comm’n , 982 F.2d 556, 569 (D.C. Cir. 1993); accord EEOC v. Pan Americ an World Airways, Inc. , 897 F.2d 1499, 1508 (9th Cir. 1990) (“Actual knowledge of the pendency of anaction removes any due process concerns about notice of the litig

ation.”); Crocker v. Fluvanna County Va. Bd. of Pub. Welfare , 859 F.2d 14, 16 (4th Cir. 1988) (concluding that failure of a government employe r to inform discharged employee of grievance rig

hts where employ

ee had actual kn

owledge of them

did not violate due process); cf. Co dd v. Velger , 429 U.S. 624, 627-28, 97 S. Ct. 882, 884 (1977) (holding that a name-clearing hearing, ordinarily required for an employ ee stigmatized by discharge, is not required where the employee “does not challenge the substantial truth of the material in question”). Had t here been actual notice, the Court would not have needed to de cide whether the notice provided was constitutionally

inadequate. The distinction in Memphis Light therefore had nothing

to do with the subsequent determination that the utility company had, in fact, violated the D ue Process Clause. 59 Seizing upon this questionable di stinction, my esteemed colleagues view West Covina as the culminat

ion of a century

-old line of cases st

anding for

the proposition that “a p ubli cly available s tatute may

be sufficient to pro

vide . . . notice because individuals are presumptively charged with knowledge of such a statute.” Maj. Op. at___. This, they ar

gue, “provides

the basis for a com

pelling argumen

t that § 30A.11 of the Orlando

City Code, standing alone , provides [suffic ient] notice to the

tenants of their right to challenge the condemnation ord er a nd thus satisfies due process.” Maj. Op. at ___

. The argument cre

ates on ly the il lusion of consistency, however. The cases citedby the majority exclusively addres s self-ex ecuting statutes of li mitations on abandoned claims, or other generally applicable legislat

ive enactments

. They do not6 See, e.g. , Atkins , 472 U.S. at 129, 105 S. Ct. at 2528-29 (concluding that a congressional

modificationto the food-stamp p rogram i s not subj ect to procedural due process because it “does notconcern

the proce dural fai rness of i ndividual eligibil ity det erminatio ns[, but r]ather . . . involves a legislatively mandated

substantive change in the scope of the entire program”) (emphasis added); Locke , 471 U.S. at 108, 105 S. Ct. at 1799-1800 (upholding a federal statu te because it ade

quately notified claimants of actions necessary to avoid abandonment of a mining claim. “I n altering subst antive rights through enactment of rules of general app licability , a legislature

generally provides constitutionally

adequate process simply by enacting the statute, publishing it, and . . . af fo rding those within the statute’s reach a reasonable opportunity both to familiarize themselves with the general re

quirements

imposed and to comply with those requirements.”) (emphasis added); Texaco , 454 U

. S. at 523, 538, 102 S. Ct. at 789, 797 (upholding statutory return of abandoned mineral interests to the owner of the surface rights without prior notice and opportunity to be hea rd); Anderson Nat’l Bank v. L

uckett , 321 U.S. 233, 241, 24 3-44, 64 S. Ct. 599, 604-05 (1944) (upholding statute requiring banks to transfer funds from all inactive and unclaimed deposits to the state withoutpersonal notice t o depositors) ; North Laramie Land Co. , 268 U.S. at 283, 45 S. Ct. at 494 (upholding statutory notice of time to file objections to, and a claim for d amages from, a legislative decision by a board of county com mission ers to construct a new road in part b

ecause “[s]uch statutes are universally in force and are general in their application ”) (em phas es added); Reetz , 188 U.S. at 509 , 23 S. Ct. at 392 (upho lding as suffici

ent notice a “sta

tute fix[ing] the time and place of meeting of” a board of registration at which an applicant to prac tice medi ci ne could have requested an ex

ante hearing prior to any board action on the application, but not addressing inany way the statute’s failure to afford notice of an applicant’s right to challenge ex post

the board’s decision in any given case). 60 address deprivations trigger ed by specific,

individualized state action such as the condemnation order in this case. 6 The distinction is m ade even clearer

in Texaco : [A] series of cases . . . have requ ired speci fic notice . . . before a dr iver’s license is suspended for fail ure to post

security after an accident, before property is seized pursuant to a prejudgment replev in orde r, or before service is terminated by a public utility for failure to tender payment of amounts due [ Memphis Light ]. In each of t

hose cases, howeve

r, th e property intere st was t aken on ly a fter a specific determ ination that the deprivation

was proper. In t

he instant c ase, the State of Indiana has enacted a rule of law uniformly affect

ing all citizens

that establishes the cir cum stances in which a property interest will lapse

through the inaction of its owner.61

454 U.S. a t 536-37, 102 S. Ct. at 7 96 (footnotes omitted ) (emphasis added). Th us , where a deprivation is not the result of an individua

lized judicial or quasi-judicial determination,

“[t]he Due

Process Clause doe s not require a defe ndant to no ti fy a potential plaintiff that a sta tute of limitat

ions is about to run.” Id. at536, 102 S. Ct. at796. “The w

ords ‘after noti

ce and . . . hea

ring’ . . . connote

a hearing appropria

te to adjudicatory

action, not

to legislation or rule making.” Philadelphia Co. v. S.E.C. , 175 F.2d 808, 818 (D.C. Cir. 194 8), v ac ated as moot, 337 U.S. 901, 69 S. Ct. 1047 (1 949 ) (mem.) . In short, “ a self-executing st

atute of limita

tions is [not] unconstitutio nal.” Texaco , 454 U.S. at 536 , 102 S. Ct. at 796

. However, like the seizure in West Covina , the condem natio n order here was not self-executing b

y virtue of the tenants’s f

ailure to act. It

was not the result

of a “rule of law

uniformly

affecting all citizens.” Id. at537, 102 S. Ct. at 796. It arose instead from an individua lized, specific, and quasi-judicial agency determination by Rhodes that the living conditio ns o f the co ndemned dwelli ngs were dangerous to human health and potent ially life-threatening

. West Covina and the case here, therefore, sit uneasily with the st atute-of-limitations -cases on which the majo rity re ly. Instead, they fall more comfortably under the rubric that personal notice is required where a deprivat

ion is triggered by

some case-spe

cific governme

nt action.62

This fundamental r

equirement w

as c l early enunciat

ed over fifty y

ears ago in Mullane

. The statute

there authorized t

he establishmen

t of common

trust funds and provided “for accounti

ngs twelve to fifteen months after the establi shment

of a fund and triennially

thereafter.” Mullane , 339 U.S. at 308-09, 70 S. Ct. at 654-55. Thus, the beneficiaries of

the trust, like “ [t]he tenants in this case, . . . could have turned to [the statute] to learn of their right[s],” Maj. Op. at ___, concerning the impendin g judicial settlement of their trust accounts . Yet, the Cour t deemed this m

inimalist approach incompatible w ith due process. 339 U.S . at 320, 70 S. Ct. at 660. The Court held

that, for those

beneficiaries w

hose individual where

abouts were known, personal notice wa

s required. 339 U. S. at 318, 70 S. C t. at 659. [W]hen notice is a person’s due, p rocess which is a mer

e gesture is not due pr oce ss. The mea

ns employed m

ust be such as one desir ous of a ctually informing the a

bsentee might r

easonably adopt t

o accomplis

h it. . . , [and], where conditions do not reasonably permit such n otice, .

. . the form ch

osen [must] no

t [be] substantiall

y less likel y to bri ng ho me notice than other of t

he feasible and cust

omary substi

tutes. Id. at 315, 70 S. Ct . at 6 57-58. “Cert ainly sending [the

beneficiaries] a copy of the statute months and perha ps years i n ad vance does not answer this purpose.” Id. at 318, 70 S. Ct. at 659. If mail ing the statute is insufficient, then obviously notice underthe statute itself,

without more,

also shrinks under the unwa vering gaze of

due proces s scrut iny.63

A little more

than a decade later in Schroeder v. Cit y of New York , 371 U.S. 208, 83 S. Ct. 279 (1962) , the Court applied Mullane to a nonclaim stat ute of limitatio ns and found statutory notice wanting. The statute in that case authorized government

acquisition and dive

rsion of c ertain river wat ers. It require

d notice by publication

and posting only, and provided a three-year limi tations period within which a property

owner could claim

damages from

the diversion. Id. at 209-10, 83 S. Ct. at 280-81. “Neither t he newspaper publications nor the posted notices explained what action a

property owner

might take to re

cover for dam

ages caused by the city’s acqui sition, nor did they intimate any time li

mit upon the filing of a clai

m by an affected property owner.” Id. at 210, 83 S. Ct. at 281. The Court rejected

these forms of

notice, acknowle

dging “[t]he g

eneral rul e that emerges from

the Mullane case . . . that notice by publication is not enough with respect to a person whose name and address areknown or very easily

ascertainable and whose l egally protected interest s are directly

affected by t

he proceedings in question.” Id. at 212-13, 83 S. Ct . at 282. Even if the property owner had constructive

notice, the

Court said, it “is far short of notice . . . that the appellant had

a right to beh eard on a claim for compensat

ion for damages

. . . . That w

as the information

which the city

was constitutionally

obliged to make a

t least a good faith64

effort t o give personally to the” property owner. Id. at 213-14, 83 S. Ct . at 28 3 (emphasis added) (footnote omitted). The ensuing decisions in Tulsa Professiona l Collection Services, Inc. v. Pope , 485 U.S. 478, 108 S. Ct. 1340 (1988), and Mennonite Board of M issions v. Adams , 462 U.S. 791, 103 S.Ct. 2706 (1983), are al so instructive. In Mennonite , the Court held that due process re

quires personal notic e to the recorde d mo rtgagee of a proceeding to sell se

cured property

at public auction for

nonpayment o f taxes. 462 U.S. a t 798, 103 S. Ct. a t 2711. The statute

at issue explained the

proc edures fo r holding the tax sale, as well as the procedures by which the mortgagee could redeem the property within two years of the sale. In rejecting the sta tutory notice pr

ovisions, the Court stated that it “ha[d] a dhered unwaivering

ly to the prin

ciple announced in Mullane .” Id. at797, 103 S. Ct. at 2710 -11 (citing, inter alia , Memphis Light , 436 U.S. at 13-15, 98 S. Ct. at 1562-63 ) . Noting that the ca se was “contr

olled by the analysis in Mullane ,” the Court artic ulated the applicabl

e standard: “Notice by

mail

or other means a s cert ain to ensur e actu al not ice is a minimu m con stitutional precondition

to a proceeding whic

h will adversely

affect the liber

ty or property interests of anyparty, whether unlettered or well versed in comm ercial practice, if

its

name and address are reasonably ascertainable.” Id. at798, 800, 103 S. Ct. at 2711, 2712.65

Atissue in Tulsa

was another nonc laim st atute extin guis hing all cr edito r clai ms against an estate if they

were not brought within two m

onths of the comm

encement of probate proceeding s. The stat ute pro vided for noti ce thro ugh pu blicat ion on ly. Id. at479 , 108 S. C t. at 1342. In holding that the statute viola

ted the creditors’ s due process rights, the Suprem e Court acknowledge

d that “the

State’s involvement in the

mere running of a general statute of limi tations generally

[is in]sufficie

nt to implicate due process.” Id. at 485-86, 108 S. Ct . at 1345. Yet, it found t hat the pro bate court ’s “involveme

nt[in triggering the li

mitations period

wa]s sopervasive and

substantial that it must be considered state action,” id. at 487, 108 S. Ct. at 1346, in contrast to the “‘self-e

xecuting feature’ of a statute of limitations.” Id. at 486, 108 S. Ct. at 1345. As such, due process r

ights applied, and

where a creditor

was “known or

‘reasonably ascertainable,’ ” personal notice by mail was required. Id. at 488, 491, 108 S. Ct. at 1346, 1348 (citing Mennonite and Memphis Light ). There is a common thread running through al l thes e cases. With limited exceptions such as abandonment, impossibility, or other measures likely to impart actual notice, personal no tice is required w

hen a deprivation is

threatened by s

pecific state action in individ

ual ca ses. Notice by

statute under these circumstance s is inadequate, even if, at

first glance, it a

ppears to be a nonclaim st atute of limita

tions. The principle applies with substantial force where a summary deprivation has already7 As the majority point out, whether the content of t he notice at issue is t he right to c hallenge a deprivation or the potential deprivation itself “makes no difference.” Maj. Op. at ___. Just as the opportunity

to defend

substantial rights and interests tha t are to b e adjudicated in an impending hearing is wasted if the de

fendant is not ma de aware of it, so is the opportunity to challenge a deprivation

if the challenger

is unaware of the ability, and the procedures

by which, to d

o so. In this respect, due process applies whether adjudication is used as a sword or a shield. See Tulsa , 485 U.S. at 488, 108 S. Ct. at 1346 (observing that whether “notice [of an impend ing probate c ourt proceeding] seeks only to advise creditors that they may become pa

rties ra ther than that they are parties [is irrelevant], for if they do not

participate in the

. . . proceeding

s, the nonclaim sta

tute terminates their property interests.”); Boddie v. Connecticut , 401 U.S. 371, 376-77, 91 S. Ct. 780, 785 (1971) (noting that “[r]esort to the judicial process by

. . . plaintiffs is no more voluntary in a realistic sense than that of the defendant called upon to defend his interests in court.”)

. 66 occurred, or there is a high ri sk of an erron eous deter mination and the c ost of notifying interested parties i s relatively low. “[P] ar ticularly exte nsive efforts to provide notice may

often be requ

ired when th e State is aw are of a part y’s inexperience or incompete nce .” Mennonite , 462 U.S. at 799 , 103 S. Ct. at 271 2 (citing Memphis Light

, 436 U.S. at 13-15, 98 S. Ct. at 1562-64). 7 The decision in West Covina sails alone in

these waters. I

t floats adrift fr

om any legal flotilla, te

thered neither to the

rule of personal noti

ce forged in Mullane , Schroeder , Memphis Light , Mennonite , and Tulsa , nor to the principle developed in Reetz and its progeny ex

empting laws of general applicability from the dictates of due process. This alienation is explained by the notable differences between it and other due p rocess cases. F or example, t he Court found it im

portant in West Covina

tha t “neither the Federal Gove

rnment n or any State r

equires officers

to provide individualized notice of the procedures for seeking returnof seized property.” 5258 For case holdings, see infra note 4. 67 U.S. at 242-43, 119 S. Ct . at 682. By contrast, the vast m ajority of ci

rcuits have held that persons deprived of property through ci vi l government ac tion are entitled to personal notice of their right to appe al the deprivation. 8 The distinctions between the condemnation

order of an admi nistrative office r in the context of a c

ivil code violation and the seizure of p

roperty by police grappli

ng with the inherent

exigencies of acriminal homicide investigation are stark indeed. Moreover, the sense of urgency and confusion associated with the permanent and irretrievable loss of a p erson’ s home, land or other basic n ecessity, and the cardinal im portance of intellig

ible procedures designed to prevent unw arranted deprivat

ions, did not exist in West Covina

. See 525 U.S. at 236, 119 S. Ct. at 679 (stating that th e police seized m

ainly

sma ll items of person

al property inc

luding guns, amm

unition and some c ash)

. Finall y, there is no indication in that opini on that a failure by

the property owner

s to activate their state-law

remedies wou

ld have resulted in a

permanent depr

ivation of the property se

ized as in these other

cases. In fact, the holding in West Covina applies o nly to th e narrow context of a search and seizure perfo

rmed during rout

ine criminal la

w enforceme

nt. The decision therefore restricts due proc ess principles only insofar as it rej ects a “general r ule that notice of remedies a

ndprocedures is requi red” for every deprivation

. Id. at 242, 1199 Interestingly, Rhodes failed to cite West Covina either to the district court or to

us in his briefs. 68 S. Ct. at 682

. We advance no suc h rule. Instead,

we conclude the oppos

ite: the entitlement

to such notice is not necessarily foreclosed merely because the rem edies and proce dures are deli

neated in statuto ry form. See Maj. Op . at __ _. As my colleagues express so effectively, “[t]he law does not entertain the legal fiction that every individual has achiev ed a stat e of legal omniscience,” or that every citizen “know[s] all of

the la w all o f the t ime .” Maj. Op . at __ _. Ind eed, l ow-in come tenants evicted from their homes without prior notice cannot be c ha rged with knowledgeof narrow statutor y procedures bur

ied deep within

city ordinances; under those circumsta

nces, they wo

uld have all the clar

ity of a byz

antine cathedral. In light of these diffe rences, West Covina did not muddy otherwise clear waters. Under the bright ill umination of

Supreme Cour

t thought on due process a nd constitutionally

sufficient notice, West Covina pales. By comparison, it is marginal and anomalous. A

reasonable code en

f orcement o fficer with Rhode s’s rank and experience would neither have b een confused by i t, nor would have re

lie d on it

. 9 Instea d, a responsible governm ent official, ac

ting rationally,

would have looked t

o the deepl y ingr ained case l aw spr ingi ng fro m Mullane . The maj ority itself follow this pathin concludin g that Rhodes had an affirm ative constitutional obligation to provide10 The majority opinion rejects the f actors in Memphis Light : that “the notice i s given to thousands of customers of va rious lev els of educa tion, exp erience, and resources” c oncerning a depriv ati on of basic necessities “the uninterrupted continuity of which is essential to health and safety.” 436 U.S. at 14 n.15, 98 S. Ct. at 1563 n.15. Ironically, the exigencies identified by the majority in this case are im

portant, in larg

e part, because shelter

is a basic necessity, the guarantee of which is diminishedby the relative lack of “education, experience, and re sources” at the tenants’s disposal. 69 tenan ts with contempor

aneous and personal

notice of their righ

t to appeal his condemnation

decision. In doing so, they rely on the

notice standard in Mullane , as well as their “pra

ctical understanding

of statutory noti

ce”: “the residents of Lafayett

e Square were provided wi

th no more than thi

rty-six hours to

vacate their hom

es, and during this limited period o f time, they had to complete a multitude of tasks, which rangedfro m securing alte rnate shelter to collecting their pers onal belongings to making accommodations for work or school.” Maj. Op. a t ___. As such, they did not have a reasonable opport unity to educate t

hemselves on the

niceties of

their , presumably

efficacious, sta

tutorily protec

ted right of appeal.Maj. Op. at __ _. One could think that a high-ranking government official like Rhodes, who had condemned

over 400 bu ilding s, would have unders tood this. Yet, som

ehow, the majority finds this unclear. 10 [S]ome broad statements of principle in case law are not tied to particularized

facts and can clea

rly establish law appli

cable in the future to different sets of detailed facts. For example, if some author itative judicial decisi on decides a case by determining tha

t “X Conduct” i s unconstitutional without tying that determina

tion to a particularized

set70

o f fact s, the decision on “ X Conduct” can be r

ead as having clear

ly established a constitutional principle. Vinyard v. Wilson , 311 F.3d 1340, 1351 ( 11th Cir. 2002) (cit ation omitted).“[I]n the absence of fact-specific

case law, the

plaintiff may

overcome the q

ualified imm

unity defense when the preexisting general constitutional rule applies ‘w ith obvious clarity to the specific conduct in question.’” Id. at 1352 (quoting United States v. Lanier , 520 U.S. 259, 271, 117 S. Ct. 1219, 1227 (1997)). Under Mullane , “X Conduct” is the case-spec ific c ivil deprivation of subs tantial property

rights, perma

nently and irre ve rsibly, without prior, per sonal notice “r

easonably cert

ain to inform tho se affe cted ,” whose identity a nd whereabouts are

known, even in the c ase where the substance and frequency of the proceedings a re published by sta

tute and publi cly promulgated. 339 U.S. at 315, 318-320, 70 S. Ct. at 65 7, 659-60. “X Conduct” is also what happened here : the drumhead c ondemnation of,

and eviction from

, house and home with minimal, and questionable, statutory notice that assaults the let ter and spirit of the uncomprom

ising demands in Mullane , S ch roeder , Memphis Light , Mennonite , and Tulsa , all of which apply in this case with “obvious clarity.” Rhodes is not e ntitle d to qu alifie d immunit y. In this regard, I respectfully d issent.