     Case: 13-30797   Document: 00512574597     Page: 1   Date Filed: 03/26/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                   United States Court of Appeals
                                                                            Fifth Circuit

                                                                          FILED
                                 No. 13-30797                       March 26, 2014
                                                                     Lyle W. Cayce
ROBIN N. COOLEY,                                                          Clerk


                                           Plaintiff-Appellee
v.

HOUSING AUTHORITY OF THE CITY OF SLIDELL,

                                           Defendant-Appellant




                Appeal from the United States District Court
                   for the Eastern District of Louisiana


Before WIENER, HAYNES, and HIGGINSON, Circuit Judges.
WIENER, Circuit Judge:
      Defendant-Appellant the Housing Authority of the City of Slidell (“SHA”)
appeals the district court’s summary judgment in favor of Plaintiff-Appellee
Robin N. Cooley. The district court ruled that the SHA acted arbitrarily and
capriciously in terminating Cooley’s rental assistance benefits under the
Housing Choice Voucher Program (“Section 8”) for failure to attend an annual
recertification meeting. In reaching that conclusion, the court found that the
SHA had failed to consider the totality of the circumstances, including the facts
that Cooley’s mother had recently died and that Cooley contacted the SHA
immediately after receiving its notice. We affirm.
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                                       No. 13-30797
                          I. FACTS AND PROCEEDINGS
      Cooley received rental assistance from the United States Department of
Housing and Urban Development through the Housing Choice Voucher
Program (“Section 8”). 1 Section 8 provides federal funds to subsidize the rent
of eligible families. State government entities, called public housing agencies,
administer Section 8. In 1997, Cooley began receiving assistance in Jefferson
Parish, Louisiana. In 2009, she transferred her voucher to Slidell’s program
and signed a “Statement of Family Obligations” acknowledging specific
program requirements, including participation in annual recertification
hearings. Cooley participated in two such hearings with the SHA, one in May
of 2010 and the other in May of 2011.
      In March of 2012, Cooley’s mother moved into Cooley’s Slidell apartment
while receiving hospice care and died there on March 29, 2012. Cooley and her
children temporarily moved into her mother’s former apartment in New
Orleans East, approximately 30 miles west of Slidell, to wind up her mother’s
affairs. Cooley’s children continued to attend school near her apartment in
Slidell. She did not retrieve her mail until she moved back on April 18, 2012.
      Meanwhile, the SHA had mailed a certified letter to Cooley, informing
her that her annual recertification hearing would begin at 10:00 a.m. on April
17, 2012. The letter was addressed to Cooley at her home in Slidell, was dated
April 9, 2012, and was postmarked April 11, 2012. It stated that Cooley could
reschedule the hearing by contacting the SHA within three days after she
received the letter. The United States Postal Service attempted to deliver the
certified letter on April 12, 2012, and again on April 16, 2012, and on each
occasion left a notice of their attempt at Cooley’s Slidell home. She picked up
that notice when she returned home on April 18, 2012. Because the post office


            1   24 C.F.R. § 982.1(a)(1).
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                                 No. 13-30797
had closed, she was unable to retrieve the letter until the next day, April 19,
2012. Cooley went to the SHA’s office that same day, but her caseworker
refused to see her without an appointment, instructing her to return during
walk-in hours the next day, April 20. Cooley complied. Although the record
contains conflicting evidence and testimony concerning the information
exchanged between Cooley and the SHA staff during the April 20 meeting, the
district court found that, at a minimum, Cooley conveyed to the caseworker
that she had failed to attend the recertification hearing because she did not
receive the notification letter until after the meeting had taken place.
      On April 24, 2012, the SHA notified Cooley that it would terminate her
participation in Section 8, effective May 31, 2012, for her failure to attend the
recertification hearing and for another unspecified program violation. The
letter informed Cooley of her right to appeal the decision by requesting an
informal hearing, in writing, within ten days. Cooley timely requested such a
hearing.
      Sheila Danzey, the SHA’s Interim Executive Director, conducted
Cooley’s appeal hearing on May 15, 2012. On May 24, 2012, Danzey issued a
decision letter upholding the termination. That letter described the basis of the
termination as “violations of responsibilities 4, 5, and 6 of the Family
Obligations Statement.” The district court found, and the parties do not
materially dispute, that the decision letter did not discuss facts related to
Cooley’s failure to comply with Family Obligations 5 or 6, involving prompt
reporting of changes in income or household composition, but limited its
discussion to Cooley’s failure to comply with Family Obligation 4, involving
compliance with annual reporting requirements. After recounting some of the
evidence Cooley had presented in her defense at the hearing, the decision letter
includes the following statements that could be considered factual findings in
support of the termination decision:
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                                     No. 13-30797
      According to your case manager, Ms. Dempsey[,] you never
      mentioned that you had [a] death in the family or that you were
      out of town as the reason you did not attend your scheduled
      appointment[.]
      [. . .]
      You have not demonstrated that you did not attend your
      appointment due to circumstances that were beyond your control.
      Your recertification appointment was scheduled three weeks after
      your mother passed which was ample time for you receive [sic]
      your mail and/or to contact this office to discuss the possibility of
      rescheduling your appointment. Your decision not to pick up your
      mail immediately upon receiving notice from the post office that
      you had certified mail from the Housing Authority was your own
      personal decision. The post office made two attempts (12th and
      16th) to delivery [sic] your appointment to your door via certified
      mail.

The decision letter concluded by stating that the SHA’s policy is to send a single
certified letter to schedule a recertification appointment and that the SHA
“does not have the resources to schedule and send multiple appointments for
you to re-certify for assistance.”
      On September 26, 2012, Cooley filed suit in the United States District
Court for the Eastern District of Louisiana, alleging that the termination
violated her right to due process and was arbitrary and capricious. 2 The parties
filed cross-motions for summary judgment. The district court granted Cooley’s
motion and ordered that she be reinstated to Section 8. This timely appeal
followed.




            2  Cooley’s Complaint also contained allegations that she had been
      denied an impartial decision maker in violation of her rights to due process
      and under the Federal Housing Act. Cooley has abandoned these claims and
      they are not at issue in this appeal.
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                                      No. 13-30797
                            II. STANDARD OF REVIEW
      We review an order granting summary judgment de novo, applying the
same standards as the district court. 3 “Summary judgment is warranted if the
pleadings, the discovery and disclosure materials on file, and any affidavits
show that there is no genuine [dispute] as to any material fact and that the
movant is entitled to judgment as a matter of law.” 4 When parties file cross-
motions    for     summary      judgment,        we   review      “each   party’s    motion
independently, viewing the evidence and inferences in the light most favorable
to the nonmoving party.” 5
      The United States Supreme Court has held that “when a state agency
acting in a judicial capacity resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate, federal courts
must give the agency’s factfinding the same preclusive effect to which it would
be entitled in the State’s courts.” 6 “To determine Louisiana law, we look to the
final decisions of Louisiana’s highest court. In the absence of a final decision
by that court addressing the issue at hand, a federal court must determine, in
its best judgment, how the state’s highest court would resolve the issue if
presented with it.” 7 The Louisiana Supreme Court has not yet addressed the
preclusive effects of agency decisions in this precise context. 8 Making its Erie



               3 Duval v. N. Assur. Co. of Am., 722 F.3d 300, 303 (5th Cir. 2013).
               4 Id. (quoting DePree v. Saunders, 588 F.3d 282. 286 (5th Cir. 2009)).
               5 Ford Motor Co. v. Tex. Dep’t of Transp., 264 F.3d 493, 498 (5th Cir.

      2001).
               6Univ. of Tennessee v. Elliott, 478 U.S. 788, 799 (1986) (quoting United
      States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966)) (internal
      citation and quotation marks omitted).
              7 Holt v. State Farm Fire & Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010)

      (citing Am. Int’l Specialty Lines Ins. Co. v. Canal Indem. Co., 352 F.3d 254, 260
      (5th Cir. 2003)).
              8 Although the parties make reference to the Louisiana Administrative

      Procedure Act (LAPA) in discussing the appropriate level of deference, that Act
      does not apply because the SHA is a political subdivision of the State. La. Rev.
                                             5
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                                       No. 13-30797
guess, the district court applied the standard articulated by the Louisiana
Court of Appeal for the First Circuit, which stated that an agency action may
be upheld when it is “[s]upported by substantial evidence, in that the action
was not arbitrary or capricious or an abuse of discretion.” 9 In making our own
Erie guess de novo, we apply the same standard.


                                     III. ANALYSIS
      Among her arguments in favor of reversing the SHA’s termination and
affirming the district court, Cooley points to the fact that she complied with
the SHA’s requirements specifically communicated to her by contacting the
SHA within three days of her receipt of the letter and attempting to reschedule
the recertification appointment. This is so because the SHA’s certified letter
was not delivered on April 12 or April 16; only the notice of attempted delivery
was delivered. Cooley therefore did not receive the SHA’s letter notifying her
of her recertification appointment until she picked it up at the post office on
April 19; she then tried to reschedule on that very day. We hold that Cooley
followed the SHA’s requirements and that the SHA’s contrary decision is




      Stat. § 40:384(16) (public housing authorities are political subdivisions); La.
      Const. art. VI, §44 (defining “political subdivision”); La. Rev. Stat. § 49:951(2)
      (excluding political subdivisions from the definition of “agency” covered by
      LAPA). If LAPA did apply, we would owe substantial deference to the factual
      findings made by the Eastern District of Louisiana, and not to the SHA’s
      factual findings. See La. Rev. Stat. § 49:964(F)-(G). Because the LAPA does not
      apply, the Louisiana Constitution governs Cooley’s claims insofar as it
      guarantees a right to judicial review even in the absence of statutory
      authorization. See La. Const. art. I, §§ 2, 22; Loop, Inc. v. Collector of Revenue,
      523 So. 2d 201 (La. 1987).
             9 Tanner v. City of Baton Rouge, 422 So. 2d 1263, 1266 (La. Ct. App.

      1982).
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                                      No. 13-30797
arbitrary and capricious. 10 As this disposes of the case, we do not address the
parties’ remaining contentions.


                                  IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




             10Ironically, the SHA was eight days late in mailing its initial notice to
      Cooley, thereby violating its own deadline established in its Administrative
      Plan.
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