NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 13a0181n.06 Nos. 11-4419/12-3029 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT NANCY WO O DS, CAULENE F ULLER, CARLA MCCU LLOUGH , i n their own right and as repre sentatives of all sim ilarly situated Lucas Met ropolitan Housi ng Authority Section 8 H o u s i n g C h o i c e V o u c h e r P r o g r a m participants, P laintif fs-App ellants/Cross-Appellees,

v. LINNIE WILLIS , personally and in her off icial c a p a c i t y a s E x e c u t i v e D i r e c t o r , L u c a s M e t r o po litan Hou s in g A ut ho r it y ; M A R GA R

ET MIRAC OLA, pers o n ally and in her off icial capacity as Direc tor, Lucas Met ropolitan Housi ng Choice Voucher P rogram ; CA N D ACE RENNER, personally and in her o ff icial c a p a c i t y a s H e a r i n g O f f i c e r , L u c a s Met ropolitan Hou sing Au thority, D e fenda nt s - A pp e ll e e s /C r o s s - A pp e ll a nt s . / ON AP P EAL FR OM THE UNITE D STATE S DIST RICT COURT F OR THE NORTHERN DISTRICT O F OHIO

BEFORE: CLAY and S TRANCH, Circ uit Jud ges; BELL, District Judge. * CLAY, Circuit Judge . Plaintiffs-Appel lants Nanc y Woods, Caulene Fuller and Carla McCullough filed the underly ing action, under 42 U.S.C. § 1983, as prese nt and former participa nts of the Housing Choice Vouche r Prog ram of § 8 of the United States Housing Act of 1937 (“H ousing

T h e H o n o r a b l e R o b e r t H o l m e s B e l l , U n i t e d S t a t e s D i s t r i c t J u d g e f o r t h e W e s t e r n D i s t r i c t o f M i c h i g a n , s i t t i n g * b y d e s i g n a t i o n .Nos. 11-4419/12-3029

Act”) , 42 U.S.C. § 1437f, asser ting that the L ucas Metropolitan Housing Authority ’s (“L MHA”) § 8 Housing Prog ram’s termination policy opera tes to deprive participa nts of their proper

ty interests in violation of t he due proce ss clause of t he Fourtee nth Amendment a n d v arious applicable st atutes. Plaintiffs bring this joint appea l from the district court’s order g ranting in part Def endant’ s motion to dismiss pursuant to Fe dera l Rule Civil Procedur e 12(b)( 6), and t h e o rder g ranting in part Def endant’ s subsequent motion for summary judgme nt. Def endant cross-a

ppeals from the order g ranting in part Plaintiff Fuller ’s cross-motion for summary judgme nt. For the following rea sons, we AF FI RM both orders. BACK GR OUND 1. LMHA § 8 Hou sing Program Def endant L innie Wil lis is t he executive dire ctor of L MHA, the Public Housing Authority in L ucas County , Ohio, that administers to low-income individuals and families the § 8 Housing Choice Vouche r Prog ram (“H ousing Prog ram” ). L MHA deter mines tenant elig i b i l i t y u n der the applicable reg ulations. The amount of assistance provided is depende nt on the nu mb e r o f in d iv iduals l i v i n g in the household. Approve d families must selec t and maintain housing that meet s t h e p ro gram’s quality standards and that are approve d by L MHA, which in turn enter s into h o u s i n g assistance pay

ments (“HA P”) contra cts with the landlords. 24 C.F.R. § 982.1(a )(2)

. Participating families are assig ned a housin g s p ec ialist and have obliga tions under the Housing Prog ram, including disclosing household income, allowing inspection o f th e u n it , p r o v id ing the housing authority with eviction notices, and notify ing L MHA befor e the family moves from an approve d residenc e. See id

. § 982.551. Violating an obliga tion may result in termination from the

2Nos. 11-4419/12-3029

Housing Prog ram. Id

. §§ 982.552–.553. Howeve r, the participa nt must have an opportunity for an informal hear ing to ch al l en ge the basis for the termination decision and to consider whether the decision comports with fe dera l law. See id. § 982.555(a) (1)( v). L MHA has in place written proce dure s fo r co nducting informal hear ings. A housing

s p ec ialist or inspector is require d to advise the manag ers that a cause for termination has materia liz ed. L MHA then issues to the participa n t a n o t i ce that includes a brief statement of the

rea son for termination and advises him or her of t he right t o an informal hear ing. Upon a reque st submitt ed by the deadline specifie d in the notice, L MHA schedule s informal hear ings with a hear ing office r. The housing spec ialist compiles all of the rele vant documenta tion used to make t he ini tial termination dec ision int o one file a nd submits i t for the he aring office r’s re view. At the informal hear ing, the hear ing office r revie ws the file submi tted and aff ords participa

nts an opportunity to explain why their elig ibilit y should not be terminated befor e making a final decision. The decision is mailed to the participant some time a fter the hear ing. Plaintiffs contend that L MHA’s prac tices and proce dures surrounding and incl u d ing the informal hear ing are unconstitutional and violate applica ble re g ulations. Although Plaintiffs f iled this a ction jointly in a

n appar ent eff

ort to obta in c lass cer

tification, their claims and circ umstances

are substantially

distinct, requiring this Court t o addre ss eac h separ ately for the sa ke of c larity

. 2. P laintif

fs’ Fac tual Backgroun d A. Nancy Woods Woods beg an participa ting in the Housing Prog ram in 2007. On Marc h 6, 2008, her housing unit failed L MHA’s annual housing quality standards inspection, and the landlord was provided an

3Nos. 11-4419/12-3029

opportunity to make repa irs. Awar e that she could be require d to move, Woods took steps require d to move as a Housing Prog ram participa nt. She first attended L MHA’s require d Rehousing Update Class. Then, upon notice that her unit failed another inspection and repa irs wer e nece ssary to avoid termination on J uly 1 , 2 0 0 8 o f the HAP contra ct, Woods submitt ed two Request for Tena ncy Approva l forms to L MHA, seeking the requisite approva l to move into diff ere nt home s. Howeve r, both reque sts were denied be cause the units were overpr iced. Thus, on J uly 1, Woods m o v ed i n to a hotel in the belief that she would no longe r be authorized to rema in on the proper ty

. Howeve r, despite telling her landlord of her decision to move, she did not submit a 30-Da y Notice of her intent to move to L MHA or the landlord, in violation of L MHA’s policy , of which Woods was a war e. Upon l ear ning that Woods vacated her unit, L MHA issued t o her a Notice of Cance llation

on J uly 11, stating that her Housing Prog ram elig ibilit y would be terminated on J uly 15 beca use she “vac ate[d] without notice. ” (R

. 4 7 , Ex

. 4, Woods Notice of Cance llation.) On or about t he same day , Woods submitt ed a t h i rd Request for Tena ncy Approva l For

m afte r neg otiating a lower rent pay ment with the landlord of one of the units previously denied. She also submitt ed a timely hear ing reque st shortly there afte r, on J uly 17, which was not s ch ed u l ed (f or rea sons still disputed) until Dec ember 8, 2008. I n the interim, Plaintiff w as denied approva l for her third tenanc y reque st, a nd alleg es that it was beca

use she was “not elig ible to re- house at the prese nt time. (Curre ntly at hear ing stag e).” (R. 12, at ¶ 46. ) Consequently , Woods was not provided any housing assistance in the five months before her D ece mber he aring

.

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At her hear ing, Woods’ attorney s asser ted only that Woods’ failure to follow the policy was de minimis beca

use she provided sufficie nt notice by submitt ing a transfe r reque st and attending the rehousing class. There wer e no wi tnesses prese nted by L MHA at the hear ing; the only evidenc e prese nted was Woods’ own testimony

. Woods admitted that she did not submit the requisite 30-day Notice form, which proved to be dispositi ve. On J anuar y 16, 2009, the hear ing offi ce r i s sued a decision upholding the termination “due to the fac t tha t [Woods] vacated [her] unit without notice and without [L MHA’s] approva l to rehouse.” (R. 47, Ex . 4, at PI D #774.) B

. Caulene F uller Fuller beca

me a member of the voucher prog ram in Aug ust 2008, with her son, D.W., listed

as a household member. I n 2009, in the midst of an appar ent domestic dispute, D.W.’s fathe r, J ason Watts, sent a letter to L MHA asser ting that Fuller had committed fra ud by claiming custody of her

son when in fac t he was the custodial pare nt. Attache d to the letter was an order from the juvenile court, stating that Watts had leg al custody of D.W., but also that both pare nts share d phy sical custody

. L MHA issued Fuller a No t ification of Cance llation, stating that her Housing Prog ram elig ibilit y would be ter

minated bec ause she committed “fr aud, in stating that [she had] custody of [D.W .]” (R. 39, Ex

. 4, Fuller Notice of Cance llation.) Fuller timely reque sted a hear ing, which was held on September

10, 2009. Assuming it was Watts who contac ted L MHA, Fuller obtained a letter from her case worke r that ad d re s s ed wh y D.W. was living in Fuller ’s home. At the hear ing, Fuller submitt ed her

case worke r’s letter and testi fied on her own behalf , asser ting that D.W. i n fac t lived with her and, thus, her answe rs as to whether he was in the household wer e not fra udulent. Howeve r, Watts was

5Nos. 11-4419/12-3029

not prese nt at the hear ing so as to provide Fuller an opportunity to question him be fore the hear ing office r. I nstead, the hear ing office r weig hed Fuller ’s file, which included Watts’s letter, ag ainst her testimony and evide nce a

t the hear ing to c ome to a dec ision. On September 21, 2009, the he aring office r issued a de cision which stated: “Ac cording to CFR 982

. 5 5 1 , t h is letter is to notify y ou of the final results of y our informal hear ing that was held on September 10, 2009 to discuss y ou r conti nued elig ibilit y as a Section 8 prog ram participa nt. The hearing resulted

from the fact that you were involved in fraud, stat ing c ustody of [D .W .]

. As a result of

your hearing, you may remain on the program with the remov al of [D.W .] , until such time as you are granted legal custody

. I t is rec ommended y ou seek leg al counsel for this matter.” (R. 39, Ex . 6, Dec ision L etter ( emphasis adde d).) C. Carla Mc Cullou gh McCullough, a Hous i n g P rog ram participant s ince 2002, acc epted a job as a hair sty list in 2006 that broug ht in vary ing amo u n t s of money eac h month. She informed her L MHA housing specia list of the position and unstable pay , and the housing specia list instructed McCullough to bring her pay stubs to their annual revie w to ensure that L M HA ’s v oucher pay ments wer e acc urate

. McCullough c omplied. Shortly afte r the revie w, in a Notification of Cance llation dated September 3, 2008, L MHA informed McCullough that her voucher was being terminated beca use she was “over -income.” (R. 12, Amended Compl

. ¶ 79.) The letter advised her t hat she c ould reque st a hea ring by September 12, 2008. Unfortuna tely , McCullough never rec eived this letter , as it wa s delivere d to a neig hbor. Upon rec eipt of the letter from the neig hbor on September 17, 2008, McCullough reque sted a hear ing from L MHA. The Housing Prog ram’s supervisor advised McCullough to submit a written

6Nos. 11-4419/12-3029

hear ing reque st, explaining why she missed the orig inal d eadline. McCullough complied, and

awa ited L MHA’s re view of he r re quest. I n J anuar y 2009, McCullough wa s advised that L MHA would review the f ile to determine if a he aring was ne cessa

ry . L MHA ultimately

decide d to uphold the termination decision without conducting a hea

ring

. 3. P roce dural Hi story A. Cause of Action Plaintiffs filed their complaint in October , and later amende d it in November , ag ainst the following Def

endants, persona lly and in their officia l capa cities: L innie Wil lis (Executive Direc tor of L MHA), Marg are t Miracola (Dire ctor of L MHA), and Candac e Renner (Hear i n g Offic er for L MHA). Plaintiffs alleg e that L MHA failed: to g ive timely , pre- termination notice stating the basis for termination and to p ro v i d e t he opportunity for a hear ing befor e termination (cla im one); to provide prog ram participa nts with an opportunity to confr ont and cross-e x amine eac h witness relied

on by the housing authority (cla im two); to make decisions based solely on evidenc e at the hear ing and issue a written decision specific ally setting forth the rea sons for the decision (cla im three ); and to conduct informal hear ings with an impartial hear ing office r (cla im four) , in violation of the Due Process Clause of the Four teenth Amendment. Plaintiffs also advanc e sever al statutory claims under 42 U.S.C. §§ 1437d and 1437f, and 24 C

. F. R

. § 9 82.555(c) : statutory counter part of claim one (cla im five); statutory counter part of claim four (cla im six ); statutory counter part of claim two (cla im seven) ; and L MHA failed to issue sufficie ntly specific decisions and to base fac tual deter minations on a pre pondera

nce of the evidenc e (c laim eig ht).

7Nos. 11-4419/12-3029

I n Dec ember , Plaintiff Fuller and De fendants enter ed into a stipulated ag ree ment, which provided that she could rema in in the Housing Prog ram with her son as a household member, subject to the next annual review , and F uller ag ree d to withdraw he r motion for a pr eliminary injunction. B. Motion to Dism iss I n September 2 0 1 0 , th e d is tr ic t c o u r t g rante d in part Def

endants’ motion to dismiss , disposing of claims one, five, and eig ht in their entirety , and part of claim three , but de nied the motion as to 1 the re maining c laims. The court disag ree d with D efe ndants’ ar g ument that Fuller lacke d standing afte r the stipulated ag ree ment, holding that De fenda nts’ voluntary

cessa tion did not m oot the case wher e it was unclea

r whether the alleg ed behavior would rec ur. The court also held that Def endant Renner was entitled to quasi-judicial immunit y an d dismiss ed the officia l capa city claims ag ainst Renner and Miracola as duplicative. The court dismiss ed all of Plaintiff Mc Cullough’s claims for lack of standing , and later

denied he r motion for ce rtification of f inal judgme nt. C. Motion for Su m m ary Judgm ent After discovery , the rema in i n g p ar ties filed cross-motions for summary judgme nt on the

rema ining claims. The district court enter ed judgme nt in favor of Plaintiff Fuller on claim two and its statutory counter part, claim seven. The court found that the adver se decision was in fac t based

on a determination that Fuller committed fra ud, which c o uld be supported only by a letter written by her son’s fathe r; and thus, the failure to allow her to cross-e x amine him was unconstitutional and violated federa l statutory require ments as a matter of law. The court enter ed ju d gm en t i n the one

The c ourt did not addre ss the validi ty of t he first part of c laim three, the alleg ed fa ilure to 1 make decisi o n s based solely on evidenc e at the hear ing, beca use Def endants did not provide an arg ument reg arding it. 8Nos. 11-4419/12-3029

rema ining Def

endant’ s favor on the rema ining part of claim three and claims four and six as to both Fuller and Woods, and claims two and seven as to Woods. Woods was denied relief on all claims. The court also disreg arded W o o d s ’ ef fo rt to revive part of claim one, asser ting that she failed to plead fac ts sufficie nt to aler t the court to her claim, and failed to brief the i s s u e i n t h e motion to dismiss

. Plaintiffs timely appea led. Woods appea ls the order deny ing her summary judgme nt motion

on claims two, three , four, and six , and the order g ranting Def endant’ s motion to dismiss claim one for failure to sta te a claim. Fuller appea ls the denial of summary judgme nt on claims four and six , and the dismiss al of claim one for failure to state a claim. McCullough appe al s fr o m the order dismiss ing her claims for lack of standing

. Def endant timely cross-a

ppeale d the g rant of summary judgme nt to Fuller on c laims two and seven. DISCUSSIO N I. DISMISSAL OF MCCU LLOUGH’S CLAIMS A. Stand ard of Review & App licable Law This Court revie ws a district court’s decision to dismiss a plain t i ff ’s s uit for lack of constitutional standing de novo . W hite v. United States , 601 F.3d 545, 5 5 1 (6 t h Cir. 2010). A plaintiff has standing wher e: 1) she has suffe red an “injury in fac t,” 2) that is “fa irly trac eable to the challeng ed action of the defe ndant,” and 3) will likely be “re dresse d by a favorab l e decision.” Id

. (citation and intern al quotation marks omitted). All materia l fac tual alleg ations of the complaint must be acc epted a s true and c onstrued in the plaintiff’ s favor

. Id.

9Nos. 11-4419/12-3029

B. Analysis This matt er i s b et t er resolved under Fe dera l Rule of Civil Procedur e 12(b)( 6) than as a standing issue. McCullough has suffe red an “injury in fac t,” termination from the Housing Prog ram, which is appar ently trac eable to Def endant’ s decision to uphold the termination decision, and would indeed be redr essed by

a dec ision in her favor . Howeve r, eve n when the f acts a lleg ed ar e viewe d in a light most favor able to her, see Dubay v. W ells , 506 F.3d 422, 426 (6th Cir. 2007), McCullough fails to state a claim upon which relief can be g rante d. McCullough does not asser t that her delay ed reque st was a t all due to some failure on L MHA’s part. She acknow ledg es t hat s he was provided with notice and an opportunity to be hear d. Howeve r, she admits that she did not avail herse lf of this opportunity within the requisite time fra me. She d i d n o t h av e an indefinite rig ht to a hear ing. Consequently , she ca

nnot now claim that Def

endant de nied her

due proc ess. Acc ording ly , this Court affirms the dismissal of McCullough’s c laims. II. DISMISSAL OF CLAIM ONE 2 A. Stand ard of Review This Court revie ws de novo the district court’s g rant of a motion to d i s m i s s pursuant to Fe dera l Rule of Civil Procedur e 12(b)( 6). W ells , 506 F.3d at 427. The motio n s h o u l d b e g rante d wher e a plaintiff “ca

n prove no set of fac ts which would entitle him to relief ,” rea ding all the fac tual alleg ations in the light most fa vorable to him. Id

. (citation and internal quotation ma rks omitted).

Plaintiffs do not ref

ere nce the statutory counter part, claim five, in this appea l, and there fore , 2 this Court does not address it in this opi nion. Howeve r, its worth noting tha t beca use the statutory require ment of “a brief statement of [t he] rea sons for the decision,” 24 C.F.R. § 982.555(c) (2)( i), is identical to the minimum due proce ss require ment in Goldberg , claim five would be resolved in the same manne r as c laim one. 10Nos. 11-4419/12-3029

“F actua l a lleg ations must be enoug h to r aise a rig ht to relief above the specula tive level

. . . .” Bell Atl. Corp. v. Tw ombly , 550 U.S. 544, 555–56 (2007) (c itations omi tted). B. Appli cable Law Participation in a public housing prog ram is a proper ty intere s t p ro t ec ted by due proce ss. Davis v. Mansfield Metro. Hous. Auth. , 751 F.2d 180, 184 (6th Cir. 1984). Due proce ss require s that Housing Prog ram participa nts rec eive adequate notice of the g rounds for termination, and must be aff orded an informal he aring prior to termination. See Davis , 751 F.2d at 185 & n.4; Goldberg v. K el l y , 3 9 7 U.S

. 254, 266–71 (1970) (“[T] he st akes are simpl y too high .

. . and the possibili ty fo r honest err or or irritable misjudgment too g rea t, to allow termination of aid wi t h o u t g iving the

rec ipient a chanc e, if he so desires, to be full y i n fo rm ed of the case ag ainst him so that he may contest its basis and produc e evide nce in r ebuttal.”) C. Analysis This Court finds that the district court proper ly dismiss ed Woods’ and Fuller ’s alleg ation that they wer e provided inadequa te notice, and proper ly found that Woods waived the first part of claim
one, that she was terminated prior to rec eiving an informal hear ing. We addre ss the dismiss al as to

eac h Plaintiff below. 1. Woods’ Notice Claim s Woods asser

ts on appea l that her notice claim is twofold: 1) that she was terminated befor e the informal hear ing, and 2) that notice of canc ellation was unconstitutionally defic ient. Howeve r, Woods has waived the first part of this c laim for failing to defe nd it ag ainst Def endant’ s motion to dismiss claim one in it s entirety

. Plaintiffs’ response to the m otion briefe d only this part of claim

11Nos. 11-4419/12-3029

one with r espec t to Mc Cullough. De spite arg uing this matter on a ppeal, Woods’ failure to de fend ag ainst the m otion to dismi ss leads us to the same c onclusion as the district cour t; she has waived this claim and we do not rea ch the question of whether it was prop er l y d i s m issed. See Berger v. Medina Cty. Ohio Bd. of Cty. Comm’rs , 295 F. App’ x 42, 45 (6th Cir. 2008). We do, howeve r, rea ch the sufficie ncy of the second part of claim one—that the no tice of

canc ellation was defic ient—and find that the district court proper ly dismiss ed it. The most favor able

rea ding of the amende d complaint fails to y ield any fac ts to support this alleg ation. Woods admits that the notice of canc ellation stated that she was being terminated beca use “client vacate[d] without notice.” (R. 12, at ¶ 40.) Woods does not asse rt any fac ts that sugg est she wa s terminated f or any other rea son, or that she actua lly provided the notice require d (i.e., the 30-Da y Notice form). This Court finds that Woods ’ cla im one was prope rly dismiss ed. 2. Ful

ler’s Notice

Claim s Fuller ’s appea l from the dismiss al of her notice claim is also u n p er s u as i ve. Her notice of

canc ellation stated that she would be terminated for “fr aud, in s t at i n g that y ou have custody of [D.W .].” (R

. 1 2 at ¶ 5 4

. ) Yet, Fuller asser ts that the notice of canc ellation sent to her was not sufficie ntly specific in that it did not “identify the specific circ umstances,” “who she alleg edly told,” or “w hen she a lleg edly

made the sta tement.” ( Pls.’ Br. 52.) The law does not requir e such de tail. The notice of canc ellation is require d to enable participa nts the opportunit y t o prepa re a defe nse, Escalera v. New Y

ork City Hous. Auth ., 425 F.2d 853, 862 (2d Cir. 1970), and there fore , it must only be “suff iciently specific for it to enable an applicant to prepa re rebuttal evidenc e to introduce at his hear ing appea

ranc e,” Billingt on v. Underwood , 613 F.2d 91, 94 (5th Cir. 1980). Her e, the notice of

12Nos. 11-4419/12-3029

canc ellation allowed Fuller to prepa re a defe nse ag ainst the fra ud alleg ation, which was the basis of the discussion at the informal hear ing and the bas i s fo r the decision letter. This Court finds that 3 Fuller ’s claim one w as prope rly dismiss ed for

failure to state a c laim. Acc ording ly , the orde r g rantingin part the De fenda nt’s motion to di smiss i s aff irmed. III. SU M MARY JUDG MENT TO DEF EN D A N T ON W OO D S A N D F U LL ER ’ S C LA I M S F OUR AND SIX A. Stand ard of Review This Court revie ws g rants of summary j u dg ment de novo . Mell v. Anthem, Inc. , 688 F.3d 280, 285 (6th Cir. 2012)

. Summary judgme nt is appropr iate wher e the movant demonstrates “that there is no g enuine dispute as to any materia l fac t and the movant is entitled to judgme nt as a matter of law.” Fe d. R. Civ. P. 56(a)

. All of the evidenc e and rea sonable infere nces are draw n in favor of the nonmoving party

. Howeve r, t h e nonmoving party must g o “bey ond the pleading s,” Celotex Corp. v. Catrett , 477 U.S. 317, 325 (1986), and provide more than a mere “scintilla of evidenc e” to

overc ome a summary judgme nt motion, Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 252 (1986). Where a rational trier of fac t could not find for the nonmoving party based on the rec ord as a whole, summary judgme nt should be g rante d. Scott v. Harris , 550 U.S. 372, 380 (2007). B. Appli cable Law This Court has previously held that there ar e p ro ce d ural due proce ss require ments in § 8 Housing termination proce eding s, n o ting that a decision by an impartial hear ing panel is one require ment, Davis , 751 F.2d at 185 & n.4, which is also compelled by the fede ral statute, 42 U.S.C.

This Court’s conclusion reg arding the basis of the d ec i s i o n l et ter is discussed in further 3 detail in the discussion of claims two and se ven in Section I V. 13Nos. 11-4419/12-3029

§ 1437d(k) (2 ), an d appli cable reg ulations, 24 C.F.R. § 982.555(e) (4). The Supreme Court, in a rela ted context, has held that “an impartial decision maker is essential, ” Goldberg , 397 U.S. at 271 (termination of welfa

re benef its), and this Court finds that the termination of housing benef its is due

no less protec tion. See Clark v. Alexande r , 85 F.3d 146, 150 (4th Cir. 1996) (apply ing the Goldberg due proc ess re quirements to public housing hear ings)

. Howeve r, ag encie s are provided the benef it of the doubt with reg ard to impar tiality

. There is a presumption of honesty and integ rity in those serving as adjudicator s. Cobb v. Y eutter , 889 F.2d 724, 730–31 (6th Cir. 1989) (citing W ithrow v. Larkin , 421 U.S. 35, 47 (1975))

. The Supreme Court has acknow ledg ed only two case s wher e something less than actua l bias violated due proce ss: 1) the “adjudicator has a pecunia ry interest in the outcome;” and 2) the adjudicator has been the “tar g et of persona l abuse or criticism from the party befor e h i m . ” S ee W ithrow , 421 U.S. at 47. A pl aintiff claiming bias has a heavy burden to shoulder, one that is not met wi t h a m ere showing that the ag ency serve d as bot h a “prosecutor ” and “judg e.” Cobb , 889 F.2d at 73 0 ; s ee also Richardson v. Perales , 402 U.S. 389, 410 (1971) (“N either are we persua ded by the advocate-judg e-multiple-hate sug g estion. I t assumes too much and would bring down too many proce dures desig ned, and working well

. . . .”). A plaintiff must demonstrate that “conf err ing investiga tive and adjudicative power s on the same individuals poses s u ch a risk of actua l bias or prejudg ment that the prac tice must be forbidden if

the g uara ntee of due proce ss is to be adequa tely implemented.” W

ithrow , 421 U.S. at 47. Woods and Fuller moved for summary judgme nt, arg uing that the hear ing office r, Candac e Renner, was biased beca

use she serve d in two positions at L MHA in that she also serve d as a mental

14Nos. 11-4419/12-3029

health housing specia list. The district court, even assuming that the housing specia list job involved investiga tive functions, found that Plaintiffs fa iled to show how Renner ’s servic e in two positions resulted in a

ny actua l bia s toward them. As the district court asse rted, Renne r’s a bility to perfor m both investiga tive and adjudicative functions as an employ ee for L MHA could not alone support a due proce ss violation c laim. See W ithrow , 421 U.S. at 47. She is presumed to have conducte d the hear ings w ith honesty

and integ rity , absent a showing of actual bias or a hig h probability there of. No such risk exis ts wher e the investiga tive function was not even exercised in Plaintiffs’ case s. See Goldberg , 397 U.S. at 271 (stating that an officia l acting as a decision maker should not have “par ticipated in making the deter mination under re view”)

. On appe al, Plaintiffs have se eming ly altere d their arg ument, asser ting that Renner a ctually

serve d dual roles as an advocate and adjudicator in Woods and Fuller ’s hea ring s, thus, crea

ting a n actua l bias ag ainst Plaintiffs. Woods and Fuller arg ue that, unlike Cobb , the issue is not whether the

same agency can pe rfor

m the role of “prose cutor” and “adjudicator;” but r ather , whether the same individual can perf

orm both roles. Despite this appar ent shift in arg ument, Plaintiffs asser t no fac ts to support the al l egation. Plaintiffs claim that Renner rea d from documents in the file and asked Plaintiffs questions during the hear ing, but this does not su p p o rt a finding that she acte d as a “prose cutor.” The re cord shows the Renner r elied on and communicated to Woods and F uller the fac ts in their respe ctive files, which wer e undispute d l y p repared by the hear ing specia list (not Renner) who proposed the ter m i n at i o n . Thus, the “prose cutor,” to use Plaintiffs’ term, was in

essenc e the hear ing specia list whose prese nce was not neede d at the proce eding

. Plaintiffs asser t no fac ts to establish that Renner was acting as counsel. The rec ord demonstrates only that she was “an

15Nos. 11-4419/12-3029

examiner char g ed with developing fac ts.” Cf. Richardson , 402 U.S. a t 410 (desc ribing the simil ar role of a social sec urity

hear ing e x aminer)

. A d d it io n ally , Plaintiffs unsucce ssfully attempt to demonstrate actua l bias in two way s : 1 ) th a t Renner improperly shifted the burden of proof to Plaintiffs in their hear ings, and 2) t h at Renner chang ed the basis for the termination decisions issued to W o o d s and Fuller

. This Court finds the evidenc e lacking with respe ct to these claims as well. First, to support the burden- of-pr o of arg ument, Plaintiffs take out of context Renner’ s deposition statement that in g ener al, the informal hear ings provide participa nts with an opportunity “to tell their side of the story and explain why they should not be terminated.” (R. 37, Renner’ s Depo., at PI D #60:25–61:9) Renner g oes on to a ssert that “if there was not sufficie nt documentation, then the termination couldn’t stand.” ( Id

. PI D #365.) Take n as a whole, the rec ord does not demonstrate any confusion about the b urden of proof. Nor do the Plaintiffs a ssert that Renner’ s decision wa s unsupported by the documenta tion presented in their respe ctive files. Rather, as articula ted by the district cour t , R en n er demonstrates an understanding of the “fun damental truth—that participa nts must nece ssarily respond to fac tual alleg ations in a notice of termination.” (R. 61, Orde r, at 18.) Plaintiffs have not proff ere d sufficie nt fac ts to support their alleg ation that Renner shifte d the burde n of proof in their ca ses. Plaintiffs’ second actua l-bias arg ument—that Renner decide d Woods and Fuller ’s case s on g rounds other than the ones asser ted in the notices of canc ellation—is also unpersua sive. This claim appea rs to be an eff

ort to revive the al re ad y s et t led issue of the sufficie ncy of the notice. As discussed above, in S ec t i o n I I , the decision letters submitt ed to Woods and Fuller stated that the outcomes wer e in fac t based on the same alleg ations made in the notice of canc ellation. For Woods,

16Nos. 11-4419/12-3029

her failure to provide the 30-Da y notice was the basis of that the decision as ref lected in he r notice of canc ellation. For Fuller , fra ud was the basis of her d ec i s i o n as ref lected in her notice of

canc ellation. The re cord simply does not support Plaintiffs’ alleg ations. Acc ording ly , we find that summary judgme nt on cl ai m s fo u r and six , with respe ct t o both Woods and Fuller, wa s proper ly g rante d to Defe ndant. IV. SUMMAR

Y JUDG MENT TO FULLER ON CLAIMS TWO AND SEVEN 4 L astly , Def

endant cross-appe als the order gra nting summ ary jud gm en t to Fuller on claims two and seve n. This Court affirms base d on the insufficie ncy of the e vidence relied upon. Judicial E

stoppel Def endant arg ues that the decision rende red was not based on a finding that Fuller committed fra ud, but instead on a finding that she improperly listed her son on L MHA’s paper work. There fore ,
acc ording to Def

endant, the hear ing office r did no t re l y o n h ea rsay evidenc e, i.e., the letter from J ason Watts. As an initial matter, the plain lang uag e of the decision letter re fu t es Def endant’ s position. The letter states in re levant par t: “[T] his letter is to notify

y ou of the fina l results of y our informal hear ing

. . . . The hear ing resulted from the fact that you were involved in fraud, stati n g cu s t o dy of [D.W .]

. As a result of y our heari n g, y ou may rema in on the prog ram with the remova l of [D.W .], unt il such time as y ou are g rante d leg al custody .”

Def endant contends that Fuller lacks stan d i n g afte r their Dec ember 2009 stipulated 4 ag ree ment in wh i ch Def endant ag ree d not to remove Fuller from the prog ram or her son as a household member befor e the next annual revie w. Howeve r, Def endant’ s voluntary cessa

tion does not moot the case , parti cu l arly wher e its alleg ed relianc e solely on hear say to rende r a decision is liable to occur ag ain. See League of W omen Voters of Ohio v. Brunner , 548 F.3d 463, 473 (6th Cir. 2008). 17Nos. 11-4419/12-3029

(R. 39, Ex

. 6, Dec ision L etter.) There simply is no indication otherwise to support Def endant’ s

asser tion. More importantly , the arg ument advanc ed by Def endant i s barr ed by judicial estoppel. “Judi cial est oppel forbids a party from taking a position inconsistent with one succe ssfully and unequivoca lly asser

ted by that same party in an ear lier proce eding .” Penny cuff v. Fentress Cnty. Bd. of Educ. , 404 F.3d 447, 452 (6th Cir. 2005) (citation omitted). I n its ear lier motion, Def endant moved to dismiss claims three and eig ht on the g round that, as alleg ed in Plaintiffs’ Complaint, the d ecision letter mailed to Fuller plainly stated the rea son for the decision. The district cou rt appar ently adopted this position, evince d b y the dismiss al of claims three and eig ht, which wer e

never appea led. Def

endant would now have this Court believe that the plainly stated rea son is not the actua l basis for the decision. Ba sed on Def endant’ s new arg ument, th i s C o u rt would have to believe that the decision letter lacks any basis for the hear ing office r’s decision beca use the only basis asser

ted there in is that Fuller committed fra ud. We decline to take su ch a p o s i t i o n , which would sug g est that Def

endant misled the district court in dismiss ing claims three and eig ht. See New Hampshire v. Maine , 532 U.S. 742, 750 (2001). Reliance Solely on Hearsay Evidence Thus, finding as the district court d i d that Def endant’ s adver se decision (to remove D.W. from the home) was based on a finding of fr aud, and be cause only the letter from Watts supported such a finding , we turn t o wh et h er it was improper to base the deter mination solely on hear say evidenc e without providing Fuller the opportunity

to cross-e x amine Watts.

18Nos. 11-4419/12-3029

This is an issue of first impression in t h i s C i rc u i t

. Hea ring office rs are require d to g ive participa nts an opportunity to prese nt evidenc e and question any witness, 24 C.F.R. § 982.555(e) (5), and due proce ss require s the rig ht to confr ont and cross-e x amine witnesses, Goldberg , 397 U.S. at 270. Howeve r, informal hear ings are not bound by the rules o f ev idence applicable to judicial proce eding s. 24 C.F.R. § 982.555(e) (5). Thus, as an initial matter, hearsa y evid en ce i s g ener ally admissible in administrative proce eding s. See Mye rs v . Sec’ y of H eath & Human Servs. , 893 F.2d 840, 846 (6th Cir. 1990). Howeve r, it is l es s cl ea r wh ether relianc e on hear say evidenc e can be the sole basis for a termination decision in the § 8 Housing context. Although Goldberg , in the welfa re context, asser

ted

a rig ht to cross-e x amination and confr ontation, the Supreme Court, in Richardson v. Perales , spoke specific ally on hear say evidenc e. 402 U.S. 389, 402–06 (1971). The Court, in a case conce rning the denial of social secur ity benef its, deter mined that me dical repor

ts, despite their hear say char acte r and

an absenc e of cross-e x amination, wer e sufficie nt to support the decision once the repor ts’ reliability and probative value wer e proven. Id. The plaintiff arg ued that Goldberg compelled a finding that d u e proce ss was violated by relianc e solely on hear say evidenc e, but the Court’s concl u s i o n considere d the fac t that the plaintiff ref used to exercise his rig ht to subpoena the repor ting phy sicians to provide himself the opportunity for cross-e x amination. Id. 404–0 5

. T he Perales Court distinguished Goldberg , noting that Goldberg dealt with termination of benef its and a lack of notice. Id. 406–07. To the extent it conce rned hear say testimony , Goldberg was conce rned more narr owly with situations “whe re cre dibilit y and vera city [were] at issue, as they must be in many termination proce eding s” conc erning welfa re benefits. Id. (quoting Goldberg , 397 U.S. at 269). The “ specte r

19Nos. 11-4419/12-3029

of questionable cre dibilit y and verac ity ” were not a t issue in Perales

. Id. at 407. Thus, reliabilit y and proba tive value we re the linchpin of the Court’s dec isions. Sist er circ uits have provided littl e g uidance on this issue. Only the Eleventh Circuit has had the opportunity to addre ss this prec ise question, in Basco v. Machin , wher e the housing au t h o ri ty relied solely on two police re ports to terminate a ssistance. 514 F.3d 1177, 1182 (11th Cir. 2008). The Basco court, in dicta, sugg ested that hear s ay evidenc e can be sufficie nt to support an adverse finding if “fa ctors that assure the underlying reliability and probative value of the ev i d en ce are prese nt.” Id. (citation and internal quotation marks omitted ). R el y i n g on Perales , the Eleventh C i rc u i t considere d sever al fac tors, including whether the decla rant could be subpoenae d, an d sug g ested in dicta that relianc e solely on hear say , particula rly when the plaintiffs could not subpoena the decla rants, was at the very least questionable. See id. at 1183. Howeve r, the court ultimately did not resolve th at i s s ue and decide d the case on other g rounds, finding that the evidenc e was nonetheless insuff

icient. Id. L ower fede ral courts and state courts come down on both sides of this issue. On one hand,

some courts arg ue that the rig ht to question any witnesses under the reg ulations and Goldberg plainly ref er only to any witness present at the hear ing. See Robinson v. D.C. Hous. Auth. , 660 F. Supp. 2d 6, 16 (D.D.C. 2009); Tomlinson v. Machin , No. 8:05-cv- 1880-T-30MSS, 2007 WL 141192, at *6 (M.D. Fla. J an. 16, 2007). Thus, allowing objection to he arsa y on rig ht-to-cr oss-examine g rounds would vitiate the principle tha t hear say evidenc e is a dmissibl e. See Beauc hamp v. De Abadia , 779 F.2d 773, 775–76 (1st Cir. 1985). Moreove r, the touchstone of due proce ss is reliability rathe r than

cro s s-examination, and as such, the hear say evidenc e must only contain substantial indicia of

20Nos. 11-4419/12-3029

reliability

. Costa v. Fall River Hous. Auth. , 903 N.E.2d 1098, 1110 (Ma ss. 2009); Robinson , 660 F. Supp. 2d at 12. On the other hand, some courts arg ue that the rig ht to question any witness would equally become meaning less if the housing authority could rely solely on hear say evidenc e. Loving

v. Brainerd Hous. & Rede velopme nt Auth. , Civil No. 08–1349, 2009 WL 294289, at *6–7 (D. Minn. Fe b. 5, 2009); Edgec omb v. Hous. Auth. of Town of Vernon , 824 F. Supp. 312, 316 (D. Conn. 1993). We ne ed not de cide whether Def endant may rely solely on reliable hear say testimony , or if such relianc e violates due proce ss or the reg ulation absent the rig ht to question the decla rant, beca use the evidenc e here fails under either rule. I t is clea r that due p ro ce s s wo u l d b e violated under the Edgec omb rea ding b ec au s e t he Watts letter was the sole basis for the adver se decision rende red ag ainst Fuller

. But, assuming, arguendo , that hear say evidenc e can constitute substantial evidenc e to support a § 8 Housing termination decision, the evidenc e must be at the very least reliable and of proven probative value. I n the instant case , it was not. Def endant relied o n an u n-notorized, handwr itten letter rec eived in the mail, alleg ed to be from J ason Watts, making claims unsupported by any fac ts that Fulle r co m m i t t ed fra ud. The Watts letter’s reliability and probative value was nonexis tent. Cf. Basco , 514 F.3d at 1182–83; see also Calhoun v. Bailar , 626 F.2d 145, 149 (9th Cir. 1980) (listing sever al fac tors to consider for deter min i n g wh et her hear say constitutes substantial evidenc e). Thus, we aff

irm the district court’s g rant of summary judgme nt to Fuller on claims two and seven be cause the Watts letter was insuffic ient to support the adver se dec ision render ed.

21Nos. 11-4419/12-3029 CONCLUSION For the fore g oing rea sons, we AF F IRM both of district court’s order s reg arding the motion to dismi ss and the cr oss-motions for summary judgme nt.

22