* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined th a t

this opinion should not be published and is not precedent except

under the limited circumstances set forth in 5 TH C IR . R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

__________________________

No. 97-50657

__________________________

MARIA LUISA RAMIREZ,

Plaintiff-Appellee,

versus

THE HOUSING AUTHORITY OF

THE CITY OF EL PASO,

Defendant-Appellant.

___________________________________________________

Appeal from the United States District Court

for the Western District of Texas

(EP-96-CV-543)

___________________________________________________

August 31, 1998

Before GARWOOD, JONES, and WIENER, Circuit Judges.

PER CURIAM * :

Defendant-Appellant The Housing Authority of the C ity of El

Paso (“the Housing Authority”) appeals the district court’s adverse

conclusions of law, entered following a bench trial on PlaintiffAppellee Mari a Luisa Ramirez’s claim under 42 U.S.C. § 1983.

Ramirez brought suit after the Housing Authority t erminated her

federal rental assistance, which she had been receiving under

Section 8 of the United States Housing Act of 1937, as amended by

the Housing and Community Developme nt Act of 1974 (“the Housing2 42 U.S.C. § 1437f (1994).

3 42 U.S.C. § 1437f(a).

2 Act”). 2 She sought declaratory and injunctive relief, alleging

that the Housing Authority had violated her civil rights when it

failed to comply with Department of Housing and Urban Development

(“HUD”) regulations governing benefits termination procedures,

thereby implicating § 1983.

The district court concluded as a matter of law that (1)

Ramirez had asserted a viable cla im under § 1983, as the HUD

regulations at issue create federal rights in favor of section 8

participants, and (2) the Housing Authority violated those rights.

We reverse the district court on its second conc lusion,

determining, as a matter of law, that the Housing Authority

complied with HUD’s procedural regulations in terminating Ramirez’s

benefits. For purposes of our resolution of this appeal, we assume

—— but do not hold

—— that those regulations create federal rights

enforceable by tenants participating in the section 8 Housing

Voucher Program (“the Program”).

I

FACTS AND PROCEEDINGS

Ramirez began participating in the Program in September 1994.

The Program was created by Congress “[f]or the purpose of aiding

lower-income families in obtaining a decent place to live and . .

. promoting economically mixed housing[.]” 3 HUD, through public

housing agencies (“PHAs”), which are not federal agencies, provides4 42 U.S.C. § 1437f(b)(1).

5 42 U.S.C. § 1437a(a).

3 rent subsidies for eligible participants. 4 PHAs review proposed

leases between private landlo rds and participants to ensure that

rental rates and other aspects of the landlord-tenant relationship

comply with federal regulations. If a PHA finds such compliance,

it then enters into a “Housing Assistance Payments Contract” with

the landlord and agrees to subsidize the rent in an amount based on

t he applicant’s income. 5 As the local PHA, the Housing Authority

had processed Ramirez’s application for federal housing assistance

and thereafter oversaw her participation in the Program.

By virtue of her participation, Ramirez agreed to use her

r ental unit solely as a residence for her family. The Assisted

Lease Agreement provides, in pertinent part: “Tenant agrees not to

. . . give accommodation to boarders or lodgers without written

consent of the Landlord and the El Paso Housing Authority . . . .

This provision does not apply to reasonable accommoda tion of

Tenants’ guests or visitors whose stay is less than thirty (30)

days.” In October 1996, a complaint was filed with the Housing

Authority alleging that Ramirez was accommodating an unauthorized

dweller without its knowledge or permission.

O n November 5, following an investigation, the Ho using

Authority notified Ramirez of its decision to terminate her rental

assistance. She was informed, in a letter written in English, that

the termination decision was based on her “[a]llowing persons not

in family composition to live with [her]” in violation of section6 Including:

1. Before the hearing, to examine an d copy, (AT YOUR

EXPENSE), all documents, records, regulations of

[the Housing Authority] relevant to the proposed

eviction[;]

2. To have an impartial hearing officer who will hear

your case[;]

3. To be represented by a lawyer or person of your

choice. Residents should notify [the Housing

Authority] if he/she will have legal

representation[;]

4. To present evidence and arguments in your favor[;]

5. To confront and cross examine adverse witnesses[;

and]

6. To controvert or deny evidence relied upon by [the

Housing Authority].

4 4-A(4) of her Housing Voucher. The notice letter also apprised

Ramirez of her right to request an informal hearing within ten

days, and of her rights at that hearing. 6

Ramirez requested an informal hearing, which was held on

November 25. The hearing officer was Rebecca Murillo, a Housing

Authority employee in the Management Section. Murillo had not

participated in t he rental assistance termination decision under

review, and, as an employee in the Management Section, she did not

report to anyone in the Section 8 Eligibility Section. At the

h earing, a brief explanation of the proceedings and of Ramire z’s

rights with regard to the hearing was presented, in accordance with

the H ousing Authority’s Section 8 Administrative Plan. Prior to

the hearing, Ramirez had been told orally, in Spanish, that she

could bring witnesses, and at the hearing she was given an

opportunity to present witnesses and evidence. She was also given

the oppor tunity to ask questions of the Housing Authority’s

witnesses, all of whom she knew.5

On November 26, Murillo issued a Notification of Decision by

Hearing Officer, stating that the reason for her decision to affirm

the ter mination of Ramirez’s rental assistance was that the

“[d]welling unit is not used solely by the residents of the Ramirez

family.” The Housing Authority stopped making subsidy payments to

Ramirez’s landlord who, sometime thereafter, brought an eviction

suit against her in state court for nonpayment of rent.

While the eviction proceeding was pending, Ramirez filed the

instant suit against the Housing Authority, seeking declaratory and

injunctive relief aimed at reinstating her section 8 benefits. In

her secti on 1983 claim, Ramirez contended that the Housing

Authority had violated her federal rights as a section 8

partic ipant by failing to comply with HUD regulations governing

benefits termination procedures. The Housing Authority filed a

motion to dismiss and a motion for summary judgment, asserting that

Ramirez had failed to state a cause of action. The district court

denied the motions. The Housing Authority then filed an amended

motion for summary judgment claiming that Ramirez had no standing

to sue and that no evidence existed of non-compliance with the

pertinent federal regulations. After this motion was denied, the

case was tried to the court. In July 1997, the court entered

findings of fact and conclusions of law favorable to Ramirez; no

separate judg ment was entered. The Housing Authority timely

appealed.7 Weir v. Federal Asset Disposition Ass’n

, 123 F.3d 281, 285

(citing Reeves v. AcroMed Corp. , 103 F.3d 442, 445 (5th Cir.1997)

(citations omitted)).

8 479 U.S. 418, 430-32, 107 S.Ct. 766, 773-74, 93 L.Ed.2d 781

(1987) (ho lding that the Housing Act mandate, embodied in the

Brooke Amendment, limiting rent for low-income housing to 30% of a

tenant’s income, in conjunction with HUD regulations providing that

“reasonable utilities” costs we re included in the rental figure,

created right under section 1983 to be charged no more than a

“reasonable” amount for utilities).

9 24 C.F.R. §§ 982.555(c)(2) & (e)(6) (1996).

10 § 982.555(a)(1)(v) (referencing § 982.552).

11 § 982.555(c)(2).

6 II

ANALYSIS

“We review a district court’s factual findings for clear error

and its conclusions of law de novo .” 7

Relying on the Supreme Court case of Wright v. City of Roanoke

Redev. and Hous. Auth.

, 8 Ramirez predicated her § 1983 claim on the

Housing Authority’s putative violations of HUD regulations

governing the termination of housing benefits. Specif ically, she

alleged violations of 24 C.F.R. §§ 982.55 5(c)(2) & (e)(6) 9

(“subsections (c)(2) and (e)(6)”, respectively). If, under

subsection (c)(2), a PHA should decide to terminate assistance

because of a participant family’s “action or failure to act,” 10 “the

[PHA] must give the family prompt written notice that the family

may request a hearing.” 11 The notice must:

(i) Contain a brief statement of reasons for the

decision,

(ii) State that if the family does not agree with the

decision, the family may request an informal hearing on

the decision, and12 Id.

13 § 982.555(e)(2)(i).

14 § 982.555(e)(4).

15 § 982.555(e)(5).

16 § 982.555(e)(6).

7 (iii) State the deadline for the family to request an

informal hearing. 12

Ramirez alleged that the Housing Authority’s statement of reasons

in its notice of decision to terminate rent al assistance was

insufficient under subsection (c)(2)(i).

Wit h regard to informal hearings requested pursuant to

subsection (c)(2)(ii), subsection (e) provides that

[t]he famil y must be given the opportunity to examine

before the [Housing Authority] hearing any [Housing

Authority] documents that are directly relevant to the

hearing. The family must be allowed to copy any such

document at the family’s expense. If the [Housing

A uthority] does not make the document available for

examination on request of the fam ily, the [Housing

Authority] may not rely on the document at the hearing. 13

The hearing may be conducted by any person designated by the

Housing Authority “other than a person who made or approved the

decision under review or a subordinate of t his person.” 1 4 “The

[Housing Authority] and the family must be given the opportunity to

present evidence, and may question any witnesses.” 15 Finally, under

s ubsection (e)(6), “[t]he person who conducts the hearing must

issue a written decision, stating briefly the reasons for the

decision.” 16 Ramirez alleged that the statement of reasons

contained in Murillo’s termination decision was insufficient under

subsection (e)(6).1 7 The court stated that a final decision requires more than a

mere conclusion, relying on HUD comments to another provision

regarding final decisions:

The statement of decision required by the regulation must

be truly informative as to the reason for the decision.

This would include a short statement of the elements of

fact or law on which the decision is actually based. A

b are and conclusory statement of the hearing decision

which does not let the participant know the reasons for

the decision will not satisfy the regulatory requirement.

49 Fed. Reg. 12230 (March 29, 1984).

1 8 The Authority submits that rights created by regulation alone

probably cannot form the basis for a section 1983 action, citing

Wright

, 479 U.S. at 438 (O’Connor, J., di ssenting) (expressing

concern that “lurking behind the Court’s analysis may be the view

that, once it has been found that a statute creates some

enforceable right, any regulation adopted within the purview of the

statute creates rights enforceable in federal courts, regardless of

whether Congress or the promulgating agency ever contemplated such

a result.”); Suter v. Artist M.

, 503 U.S. 347, 112 S.Ct. 1360, 118

L.Ed.2d 1 (1992); Gracia v. Brownsville Housing , 105 F.3d 1053,

1057 (5th Cir.) (stating that “it is not clear that regulations can

be considered ‘laws’ for purposes of creating a right actionable

under section 1983")(citations omitted), cert. denied , 118 S. Ct.

171, 139 L. Ed. 2d 114 (1997); Ritter v. Cecil County Office of

Housing and Community Dev.

, 33 F.3d 323, 327 n.3 (4th Cir.

8 The district court agreed that the Housing Authority had

violated subsections (c)(2) and (e)(6) i n terminating Ramirez’s

benefit s, concluding that (1) the notice of termination was

inadequate as it failed to inform Ramirez of the allegations

against her with enough specificity to enable her to prepare a

sufficient defense, and (2) the decision issued by the hearing

officer was a mere conclusion. 17 The Housing Authority challenges

these conclusions of law on appeal, arguing that (1) Ramirez has

not asserted a viable § 1983 claim, as federal regulations alone

are an insufficient basis from which to infer enforceable federal

rights, 18 and (2) the Housing Authority complied with the HUD1994)(stating that “[r]ights created by regulation alone, if rights

can be so creat ed, probably cannot form the basis for a § 1983

action.”) (citing Wright

, 479 U. S. 437-38) (O’Connor, J.,

dissenting)).

1 9 397 U.S. 254, 90 S.Ct. 101 1, 25 L.Ed.2d 287 (1970), citing

55 Fed.Reg. 133 at 28, 541 (July 11, 1990) (“PHAs must adopt

written informal pretermination hearing procedures for

participants, which fully meet the requirements of Gold berg v.

Kelly .”).

20 Id. at 264-265.

21 For instance, the district court cites Escalera v. New York

City Hous. Auth. , 425 F.2d 853, 862 (2d Cir.), c ert. denied

, 400

U.S. 853, 91 S. Ct. 54, 27 L. Ed. 2d 91 (1970))

—— in support of

its conclusion that the notice of termination was inadequate under

9 regulations at issue. We choose not to address the viability of

Ramirez’s § 1983 claim as we are convinced that the Housing

A uthority did not violate subsections (c)(2) and (e)(6) and that

the district court erred in concluding as a matter of law that such

violations occurred.

As an initial observation, we n ote that the district court

appears to have framed the compliance issue in terms of procedural

due process. It prefaces its analysis of subsections (c)(2) and

(e)(6) by noting that “federal regulations must comply with the

requirements set forth by the Supreme Court in Goldberg v. Kelly .” 19

In Goldberg

, the Supreme Court held that the Due Process Clause of

the Fourteenth Amendment requires that a welfare recipient be

affo rded an evidentiary hearing prior to the termination of

benefits. 20 By measuring the Housing Authority’s compliance with

the HUD regulations at issue in reference to the strictures of

Goldberg and its progeny, the district court actually engaged in a

constitutiona l analysis of Ramirez’s benefits termination. 2 1subsection (c)(2) —— for the proposition that “[a] tenant must be

given notice so that ‘[he] is adequately informed of the nature of

the evidence against him so that he can effectively rebut that

evidence.’” The PHA procedures at issue in E scalera

, however, were

challenged on constitutional grounds, as violations of the Due

Process Clause rather than of federal regulations. S ee id. at 861

(“A lthough the termination of tenancy procedures afforded by the

[PHA] in this case admittedly satisfy the requirements of the [HUD]

circular of February 7, 1967, considered by the Supreme Court in

Thorpe v. Housing Authority of City of Durham , 393 U.S. 268, 89

S.Ct. 518, 21 L.Ed.2d 474 (1969), this is not dispositive of the

q uestion of whether the procedures satisfy the due process

requirements of the Fourteenth Amendment.”).

10 Although HUD undoubtedly int ended to codify G oldberg in

promulgating subsections (c)(2) and (e)(6), those regulatory

provisions and the Due Process Clause are not coextensive: PHA

procedures that comply with federal regulations may nonetheless

violate the Due Process Clause as applied

.

In recogniti on of the constitutional lens through which the

district court analyzed Ramirez’s claim, the Housing Au thority

argues that its compliance with subsections (c)(2) an d (e)(6) is

the only question before the court. In arguing for an affirmative

answer to that question, the Housing Authority supports its

compliance by observing that its notice of decision comports with

subsection (c)(2), as: (1) it is in writing; (2) it contain s a

brief statement of the reasons for the decision; (3) it states that

if the family does not agree with the decision, an informal hearing

may be requested; an d (4) it specifies a deadline by which an

informal hearing may be requested. The Housing Authority disputes

the district court’s assessment of subsection (c)(2)(i) as

requiring termination notices to “specifically inform” tenants of

t he allegations against them, arguing that the regulation simply2 2 Caulder v. Durham Hou s. Auth. , 433 F.2d 998, 1004 n.3 (4th

Cir. 1970) (quoting Cafeteria & Restaurant Workers Union, Local 473

v. McElroy , 367 U.S. 886 (1961)), cert. denied , 401 U.S. 1003, 91

11 requires “a brief statement of the reasons for the decision,” which

was provided when the Housing Authority informed Ramirez that her

benefits were being terminated because she was “[a]llowing persons

not in the family composition to live with [her].”

In addition, the Housing Authority contends that it complied

with subsection (e)(2), as it adhered to the regulation’s hearing

officer and evidence requirements, and it informed Ramirez that she

had a right to examine and copy documents relevant to the hearing.

Furthermore, the hearing officer’s decision complied with

subsection (e)(6), asserts the Housing Authority, as it (1) is

based on a preponderance of the e vidence; (2) is in writing; and

(3) briefly states the reason for the decision: “Dwelling unit is

not used solely by the residents of the Ramirez family.” The

Housing Authority disagrees with the district court’s determination

that reason given for the decision is conclusional.

Ramir ez’s response to the Housing Authority’s compliance

arguments reveals the true nature of her § 1983 claim. She states:

The [Housing Authority] misunderstands

[Ramirez’s] claims and the decision of the

court below, both of whi ch are supported by

precedent in this and other courts. Although

the provisions of 24 C.F.R. § 982.555 are

promulgated to comply with due process, the

due proce ss to which [Ramirez], a Section 8

voucher recipient, is entitled is not

satisfied merely by promulgation of said

reg ulations. For “[t]he very nature of due

process negates any concept of inflexible

procedures universally applicable to every

imaginable situation” 22 . . . . Contrary toS. Ct. 1228, 28 L. Ed. 2d 539 (1971).

23 The protections necessary to satisfy the Due Process Clause

vary depending on the time, place, and circumstances of the

deprivation. M athews v. Eldridge

, 424 U.S. 319, 334, 96 S.Ct. 893,

902, 47 L.Ed.2d 18 (1976).

12

[the Housing Authority’s] contention, the

essence of due process is such that the mere

existence of and adherence to the words of the

regulations at 24 C.F.R. § 982.555, which

themselves may en compass the minimal

requirements of Goldberg

, cannot satisfy due

process in every context.

Ramirez’s argument makes clear that she is actually relying on the

due process protections of the Fourteenth Amendment in bringing her

§ 1983 claim, rather than on federal rights embodied in HUD

regulations. We are satisfied that the Housing Authority complied

with subsections (c)(2) and (e)(6) in terminating Ramirez’s

benefits.

Even if we were we to accept the constitutional gloss applied

by the district court in its compliance analysis, however, we would

remain convinced that Ramirez’s f ederal rights have not been

violated; under the circumstances of this case, she has not been

deprived of her right to procedural due process. 23 Ramirez claims

that the notice of decision terminating her benefits is

constitutionally infirm inasmuch as it fails to state the period of

time over which the alleged violation occurred, identify the number

and identity of the alleged violators, or provide the source of the

evidence on which the decision was based. Although such additional

informati on might have provided Ramirez with a better preview of

what to expect at the informal hearing, we conclude that the13

explanation she was giv en provided notice adequate for her to

p repare a meaningful defense: Perfection is not required. We

likewise conclude that the reason stated by Ramirez’s hearing

officer in affirming the termination decision was s ufficient to

pass muster under the Due Process Clause.

III

CONCLUSION

For the foregoing reasons, the opinion of the district court

is reversed and a take nothing judgment is rend ered, dismissing

Ramirez’s claims.

REVERSED and RENDERED.