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Loving v. Brainerd Housing & Redevel. Auth.: US District Court : 1983 - claims of due process violations in administrative hearing may proceed; no collateral estoppel; ex parte information

17
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
ANGELEAN LOVING and
DENETTE JOHNSON,
Plaintiffs,
v.
BRAINERD HOUSING AND
REDEVELOPMENT AUTHORITY and
DOUG GROUT, in his official capacity as
Executive Director,
Defendants.
Civil No. 08-1349 (JRT/RLE)
MEMORANDUM OPINION AND
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS
Laurence P. Chamberlain, LEGAL AID SERVICE OF
NORTHEASTERN MINNESOTA, 14091 Baxter Drive, Suite 116,
Baxter, MN 56425, for plaintiffs.
Patricia A. Aanes and John H. Erickson, ERICKSON & AANES LAW
OFFICES, P.O. Box 525, Brainerd, MN 56401, for defendants.
This case arises out of the terminations of the Section 8 housing vouchers of
plaintiffs Angelean Loving and Denette Johnson (collectively, plaintiffs) by defendants
Brainerd Housing and Redevelopment Authority and its executive director Doug Grout
(collectively, BHRA). Plaintiffs bring claims under 42 U.S.C. 1983, alleging that
these terminations violated the Due Process Clause of the United States Constitution and
the United States Housing Act.1 See 42 U.S.C. 1437f. BHRA now moves to dismiss
1 Loving and Johnson initially filed separate actions, with nearly identical complaints.
After BHRA filed nearly identical motions to dismiss these complaints, this Court held a joint
(Footnote continued on next page).
-2-
this action under Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons
given below, BHRAs motion is granted in part and denied in part.
BACKGROUND
Loving and Johnson are residents of Crow Wing County, Minnesota, and each
received federal housing assistance through BHRA. (Am. Compl. 3.) Loving received
a monthly voucher for approximately 6 and Johnson received a monthly voucher for
approximately 1. (Id. 17, 50.) BHRA terminated this assistance to both plaintiffs
in June 2007. (Id. 41, 74.)
The path toward the termination of these benefits began in May 2007. On
May 15, 2007, a state court judge signed a search warrant authorizing a search of
Lovings residence. (Id. 20.) Although the affidavit supporting that warrant application
is not in the record, plaintiffs indicate that it accused Larry Curtis Tate a boyfriend of
one of Lovings friends of engaging in criminal activities related to drugs. (Id. 21.)
The affidavit also alleged that Loving had participated in drug sales. (Id.) Loving alleges
that she has not engaged in criminal activities involving drugs or violence while
participating in the Section 8 voucher program, and that she was unaware of any criminal
activities involving Tate until her home was searched. (Id. 22.)
_____________________________________
(Footnote continued).
hearing on these motions, and then ordered that the two cases be consolidated. (Docket No. 18.)
Following that Order, the plaintiffs filed an Amended Complaint. (Docket No. 19.) This means
that the complaints that BHRA has sought to dismiss have technically been superseded.
Plaintiffs Amended Complaint, however, substantially repeats the allegations in Loving and
Johnsons initial complaints. Thus, rather than requiring BHRA to re-file its motion to dismiss,
this Court construes its earlier motions as a motion to dismiss the Amended Complaint.
-3-
Also on May 15, 2007, a state court judge signed a search warrant authorizing a
search of Johnsons residence. (Id. 55.) The warrant affidavit, which is absent from the
record, allegedly stated that the suspect was Lawrence Johnson an abusive husband
Johnson had kicked out and sought to divorce and that Mr. Johnson was suspected of
criminal drug activities. (Id. 52-53.) Denette Johnson is not mentioned in the warrant,
other than an allegation that she was overheard giving her address to an incarcerated
person. (Id. 56.) Johnson alleges that she was not involved in any criminal activities
involving drugs or violence, and that she was unaware of any activities involving her
husband until the warrant was executed. (Id. 57.)
In letters dated June 5, 2007, BHRA informed Loving and Johnson that it would
be terminating their housing assistance effective June 30, 2007. (Id. 23, 58.) In both
cases, the letters stated, The [r]eason for this action is that you have . . . [e]ngaged in
drug related or violent criminal activity.2 (Id. (alterations and omissions in plaintiffs
complaint).) Plaintiffs allege that the notice did not provide further details about the
basis for BHRAs actions, or indicate who had engaged in the alleged criminal activities.
(Id.)
Both plaintiffs sent letters to BHRA requesting a hearing to contest BHRAs
decision and any documentation of the legal or factual basis for that decision. (Id. 24-
25, 59-60.) BHRA provided Loving with the search warrant and supporting affidavit
from the search of her home, an evidence receipt for items allegedly discovered during
2 These letters are not included in the record. Accordingly, this quotation is taken from
plaintiffs complaint.
-4-
the search,3 and portions of a Department of Housing and Urban Development (HUD)
handbook explaining the circumstances in which it was permitted to terminate assistance.
(Id. 26.) Similarly, BHRA provided Johnson with the search warrant application and
supporting affidavit from the search of her home, and relevant portions of a HUD
handbook. (Id. 61.)
Hearings for both plaintiffs took place on June 21, 2007. (Id. 29, 63.) In both
cases, the only witness who testified on behalf of BHRA was a BHRA assistant director,
who did not have any personal knowledge of the disputed criminal activities. (Id. 30.)
Over the plaintiffs objections, BHRA also submitted the documents that had been
provided to Loving and Johnson in advance of their hearings. (Id. 31, 65.) In
Johnsons case, BHRA also submitted an evidence receipt purporting to describe items
recovered during the search of her home, which was not provided to her in advance of the
hearing. (Id. 65.) The individuals who originally produced the warrants, affidavits, and
evidence receipts were not present at plaintiffs hearings, and the hearing did not afford
the plaintiffs a right to subpoena those individuals. (Id. 32-33, 66, 68.)
Several witnesses testified on Lovings behalf, including her landlord, the director
of Crow Wing County Human Services, and several family members. (Id. 34, 38.)
Those witnesses, as well as Loving, testified that Loving was not involved in any
criminal activities. (Id. 35-39.) Johnson called her mother and brother to testify on her
3 The evidence receipt allegedly listed a pipe found in cigarette pack, a Riteweight
digital scale, and a GNC blue-green bottle of inositol powder. (Id. 27.) Loving alleges that
she received no explanation of how the possession of any of these items was unlawful. (Id.)
-5-
behalf. (Id. 69.) Those witnesses and Johnson testified that Johnson was not involved
in any criminal activities, and that Lawrence Johnson was no longer living in her home.
(Id. 70-72.)
The hearing officer issued written findings and conclusions in both cases on
June 25, 2007, and upheld BHRAs decision to terminate assistance to both plaintiffs.
(Id. 41, 74.) In Lovings case, the officers findings which are not included in the
record allegedly included the following: (1) Ms. Loving drove Larry Tate during
numerous drug transactions; (2) Ms. Lovings residence repeatedly identified as house
in which drug transactions occur; (3) Drug paraphernalia was found in Ms. Lovings
house; and (4) Ms. Loving provided crack/cocaine to a Cooperative Individual at her
residence. (Id. 43 (alterations in Lovings complaint).) The officer concluded that
these findings were sufficient to terminate Lovings assistance payments. (Id. 44.)
In Johnsons case, the officers findings which are also absent from the record
allegedly included: (1) Ms. Johnsons residence repeatedly identified as house in which
drug transactions occurred; and (2) Drug paraphernalia was found in Ms. Johnsons
house. (Id. 76.) The officer indicated that these findings were sufficient to terminate
Johnsons housing assistance. (Id. 77.)
In both cases, the hearing officers findings also indicated that the officer had
engaged in phone conversations with unnamed HUD officials the day after the hearing.
(Id. 42, 75.) Neither plaintiffs nor their attorney were involved in those conversations
or informed of them in advance. (Id.) On April 30, 2008, plaintiffs wrote letters to
-6-
Grout, arguing that the hearing officers conclusions were contrary to federal law, and
asking Grout to reverse them. (Id. 46, 79.) Grout has not done so. (Id. 47, 80.)
On May 16, 2008, plaintiffs brought this action seeking relief in federal district
court. In Count I, plaintiffs argue that they were deprived of a protected property interest
in violation of the Due Process Clause of the United States Constitution. Specifically,
plaintiffs argue that (1) the notice of termination sent by BHRA was inadequate; (2) the
hearing officer inappropriately relied on unauthenticated hearsay evidence; (3) the
hearing officer relied on legal rules and evidence that were not adduced at the hearing;
and (4) to the extent that the evidence submitted by BHRA was not appropriate to
consider, the hearing officer made factual determinations contrary to the preponderance
of the evidence. In Count II, plaintiffs argue that the defendants violated the United
States Housing Act, see 42 U.S.C. 1437f, and federal regulations implementing that
Act. Specifically, plaintiffs argue that the hearing officer relied on evidence not offered
by BHRA at the hearing, and that his decision was not supported by the preponderance of
the evidence. Johnson also argues that BHRA violated this Act when it relied on an
evidence receipt not provided to her in advance of her hearing. BHRA now moves to
dismiss this action.
ANALYSIS
I. STANDARD OF REVIEW
In reviewing a complaint under a Rule 12(b)(6) motion to dismiss, the Court
considers all facts alleged in the complaint as true, and construes the pleadings in a light
most favorable to plaintiff, the non-moving party. See, e.g., Bhd. of Maint. of Way
-7-
Employees v. Burlington N. Santa Fe R.R., 270 F.3d 637, 638 (8th Cir. 2001). A plaintiff,
however, must provide more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do. Bell Atlantic Corp. v. Twombly, 127 S. Ct.
1955, 1965 (2007). In short, a plaintiff must state a claim to relief that is plausible on its
face. Id. at 1974.
II. SECTION 8
The Section 8 low-income housing program named for Section 8 of the United
States Housing Act of 1937 is a federal program administered by HUD. See generally
42 U.S.C. 1437f. Through this program, the federal government pays rental subsidies
to eligible low-income families. The actual distribution of these funds is typically carried
out by state or local public housing agencies (PHAs). 42 U.S.C. 1437f(b)(1).
Under regulations promulgated by HUD, PHAs have the authority to terminate a
familys assistance if the family violates a family obligation. 24 C.F.R.
982.552(c)(1)(i). The types of violations that may trigger such a termination include
criminal activities involving drugs or violence. See 982.551(l). If a PHA elects to
terminate assistance on these grounds, it must provide the family with a prompt written
notice that (1) contains a brief statement of reasons for the decision; (2) states the
familys right to request an informal hearing on the decision; and (3) states the deadline
for the family to request such a hearing. 982.555(c)(2). HUD regulations require that
families be given an opportunity to appear at such a hearing before their assistance is
terminated. 982.555(a)(1)(v), (a)(2).
-8-
The hearing officer must give both the PHA and the family an opportunity to
present evidence and question witnesses, but is not bound to the rules of evidence
applicable to judicial proceedings. 982.555(e)(5). HUD regulations require, however,
that any relevant documents be provided to the family in advance of the hearing.
982.555(e)(2)(i). Following the hearing, the officer must issue a written explanation of
the decision. 982.555(e)(6). The officers factual determinations must be based on a
preponderance of the evidence presented at the hearing. Id. Finally, the PHA is not
bound by hearing decisions that are [c]ontrary to HUD regulations or requirements, or
otherwise contrary to federal, State, or local law. 982.555(f)(2).
III. COLLATERAL ESTOPPEL
BHRA first argues that plaintiffs claims are barred by collateral estoppel, because
their eligibility for assistance was previously litigated before the hearing officer.
Plaintiffs disagree, contending that they are not seeking to re-litigate the fact-finding of
the hearing officer and that the right to challenge a PHA determination on procedural
grounds is well-settled.
[A] federal court must give to a state-court judgment the same preclusive effect
as would be given that judgment under the law of the State in which the judgment was
rendered. Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984); see
also Univ. of Tenn. v. Elliot, 478 U.S. 788, 799 (1986) ([W]hen 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 agencys
-9-
factfinding the same preclusive effect to which it would be entitled in the States courts.)
(alterations, citations, and internal quotation marks omitted). As plaintiffs note, however,
Minnesota law allows tenants to challenge a PHAs termination of their Section 8
housing assistance on various procedural grounds. Carter v. Olmstead County Hous. &
Redevelopment Auth., 574 N.W.2d 725, 729 (Minn. Ct. App. 1998) (reviewing a PHA
termination decision under Minnesota state administrative law to determine if it is
unconstitutional, outside the agencys jurisdiction, procedurally defective, based on an
erroneous legal theory, unsupported by substantial evidence, or arbitrary and
capricious). In other words, under Minnesota law, a PHA decision is not insulated from
the type of judicial review sought here.
In addition, the Eighth Circuit and numerous federal courts elsewhere have
recognized analogous actions under 1983, involving claims nearly identical to those
raised here by plaintiffs. See, e.g., Hunter v. Underwood, 362 F.3d 468, 477-79 (8th Cir.
2004) (considering claims that PHA hearing procedures failed to satisfy the Constitution
or HUD regulations); Clark v. Alexander, 85 F.3d 146, 150-52 (4th Cir. 1996) (permitting
a 1983 sufficiency-of-the-evidence challenge to a PHA decision); Gammons v. Mass.
Dept of Hous. & Cmty. Dev., 523 F. Supp. 2d. 76, 85 n.8 (D. Mass. 2007) (same).
Where the defendant in one of these actions argued that such a claim was barred by
collateral estoppel, that argument was swiftly rejected. See Gammons, 523 F. Supp. 2d.
at 85 n.8. In short, a federal claim that a PHA has violated HUD regulations, or failed to
provide constitutionally adequate process, is distinct from an effort to relitigate the
fact-finding in the earlier administrative case. Id. The right to bring such process-based
-10-
challenges under 1983 is well-established, and those claims are not barred by collateral
estoppel.
IV. FAILURE TO STATE A CLAIM
BHRA also argues that plaintiffs have failed to state an actionable claim. The
various grounds for plaintiffs claims are dealt with separately below.
A. Constitutional Due Process (Claim I)
1. Notice
In Goldberg v. Kelly, the Supreme Court held that welfare recipients facing a
possible termination of benefits are entitled to timely and adequate notice detailing the
reasons for a proposed termination. 397 U.S. 254, 267-68 (1970). This requirement
applies to proposed terminations of Section 8 housing assistance. Edgecomb v. Housing
Auth. of Vernon, 824 F. Supp. 312, 314 (D. Conn. 1993). The requirement of notice is
to inform the tenant of the allegations so that he can prepare a defense. Id. at 314.
Thus, this notice must be sufficiently specific for it to enable an applicant to prepare
rebuttal evidence to introduce at his hearing appearance. Billington v. Underwood, 613
F.2d 91, 94 (5th Cir. 1980). A proper notice that satisfies this standard would state the
particular [crime] and the person who allegedly committed it, and would give a brief
factual statement concerning the incident. Edgecomb, 824 F. Supp. at 315. A notice
which merely parrots the broad language of the regulations is insufficient. Id. (internal
quotation marks and alterations omitted).
-11-
Here, BHRAs notice merely stated, The [r]eason for this action is that you have
. . . engaged in drug related or violent criminal activity. (Am. Compl. 23, 58)
(alterations in complaint). Plaintiffs allege that this notice supplied no additional details,
and failed to even indicate which of the general categories cited in the notice violence
and drugs was the basis for BHRAs decisions. A nearly identical notice was addressed
in Edgecomb.4 There, as here, [t]he notice sent to the plaintiffs [did] not indicate which
family member committed proscribed acts, what the nature of the alleged crime was, or
when the relevant acts were committed. 824 F. Supp. at 315. Rather, [t]he notice
merely restated the regulation relied on. Id. As in Edgecomb, the parroting of that
broad language was insufficient to adequately inform the plaintiffs of BHRAs
allegations. Without more specific details about the circumstances of plaintiffs alleged
crimes, plaintiffs did not have a constitutionally adequate opportunity to prepare a
defense.
BHRA argues that this claim nonetheless fails as a matter of law because they also
provided plaintiffs with the evidence that was later introduced at their hearings. BHRA
contends that this evidence gave plaintiffs adequate notice of the relevant allegations and
cured any deficiencies in their initial letter. The Court is unable to meaningfully evaluate
this claim, however, because these supplemental disclosures were not submitted by either
party, and are not a part of the record. The Courts only window into those documents is
4 The notice in Edgecomb stated that the tenants assistance would be terminated for
having engaged in drug-related criminal activity or violent criminal activity, including criminal
activity by any family member. 824 F. Supp. at 315.
-12-
through the brief, inconclusive descriptions in plaintiffs complaint. (See Am. Compl.
21, 56.) In those circumstances at a stage of the proceedings when this Court must
give the benefit of all reasonable inferences to the plaintiffs the Court cannot simply
assume that these documents contained sufficient detail to afford constitutionally
adequate notice. The more appropriate course is to resolve this issue at a stage of these
proceedings when the relevant documents are in the record. Thus, BHRAs motion is
denied to the extent that it seeks to dismiss plaintiffs notice-based due process claim.
2. Hearsay Evidence
Plaintiffs second due process claim is that [t]he only evidence submitted by
Defendants was unauthenticated hearsay evidence that does not satisfy Plaintiffs
constitutional right to confront and cross-examine witnesses. Additionally, the hearing
officers decision relied entirely on such unauthenticated evidence. (Am. Compl.
84(b).) The hearsay documents in question are the search warrants, supporting
affidavits, and evidence receipts relied on at plaintiffs hearings. BHRA argues that this
claim must be dismissed because under the flexible requirements established in Goldberg
v. Kelly, hearsay evidence is generally permissible in administrative hearings. See, e.g.,
Beauchamp v. De Abadia, 779 F.2d 773, 775 (1st Cir. 1985). BHRA adds that the HUD
regulations governing the hearing process state that [e]vidence may be considered
without regard to admissibility under the rules of evidence applicable to judicial
proceedings. 24 C.F.R. 982.555(e)(5).
-13-
The principles governing this issue were recently addressed at length by the
Eleventh Circuit. Basco v. Machin, 514 F.3d 1177 (11th Cir. 2008). In a case involving
the termination of Section 8 housing benefits, the court explained that [a]lthough the
rules of evidence are not strictly applied in administrative hearings, there are due process
limits on the extent to which an adverse administrative determination may be based on
hearsay evidence. Id. at 1182. [H]earsay may constitute substantial evidence in
administrative proceedings as long as factors that assure the underlying reliability and
probative value of the evidence are present. Id. at 1182 (internal quotation marks
omitted). The reliability and probative force of such evidence depend on whether
(1) the out-of-court declarant was not biased and had no interest in the result of the case;
(2) the opposing party could have obtained the information contained in the hearsay
before the hearing and could have subpoenaed the declarant; (3) the information was not
inconsistent on its face; and (4) the information has been recognized by courts as
inherently reliable. Id. (internal quotation marks omitted). In addition, at least one other
federal court has concluded that [w]hile administrative pretermination hearings are
informal, the opportunity to confront and cross-examine witnesses is essential when the
information supplied by those witnesses is the reason for the loss of benefits.
Edgecomb, 824 F. Supp. at 316; cf. Williams v. Hous. Auth. of City of Raleigh,
No. 05-219, 2008 WL 2355850, at *4 (E.D.N.C. June 9, 2008) (distinguishing Basco
where the hearing officer relied on other evidence in addition to the hearsay documents).
This Court agrees that under these principles and the record presently before the
Court, plaintiffs have stated a sufficient claim to survive a motion to dismiss. BHRA
-14-
concede[s] that there may be cases where certain hearsay evidence alone is not legally
sufficient to support a voucher termination. (Defs. Reply Memo., Docket No. 14, at 7.)
BHRA contends, however, that this is not such a case, because the hearing officer heard
additional evidence at the hearing, and his decision reflects consideration of all facts.
(Id., at 8.) While this assertion may ultimately prove correct, neither party has submitted
the documents necessary for the Court to assess it here. The record does not contain the
alleged hearsay documents, a transcript of the hearing, or the hearing officers written
decision. In those circumstances, the Court is not in a position to perform a meaningful
review of the hearsay documents under Basco, or consider the role that the alleged
hearsay materials played in the hearing officers decision. Accordingly, BHRAs motion
is denied to the extent that it seeks to dismiss plaintiffs challenge to BHRAs use of
hearsay evidence.
3. BHRAs Reliance on Rules and Evidence Not Adduced at the Hearing
Both HUD regulations and the Supreme Court require the hearing officers
decision to be based on information presented at the hearing. See 24 C.F.R.
982.555(e)(6) (Factual determinations relating to the individual circumstances of the
family shall be based on a preponderance of the evidence presented at the hearing.)
(emphasis added); Goldberg, 397 U.S. at 271 ([T]he decisionmakers conclusion as to a
recipients eligibility must rest solely on the legal rules and evidence adduced at the
hearing.) (emphasis added). Plaintiffs claim that this principle was violated in two
ways. First, they note that in the hearing officers written decision, he referred to
communications after the hearing with unnamed HUD officials. Plaintiffs contend that
-15-
they had no notice of these conversations and no opportunity to respond to their content.
Second, plaintiffs contend that the hearing officer relied on legal rules that were not cited
by BHRA at the hearing. BHRA argues that both of these claims should be dismissed
because any communications with HUD officials were permissible and harmless, and all
of the parties were aware of the relevant rules.
As to the hearing officers alleged communications with HUD officials following
the hearing, the Court concludes that it lacks a basis for dismissing this claim as a matter
of law. If the hearing officer terminated plaintiffs assistance on the basis of information
supplied after the hearing, plaintiffs due process rights may well have been violated. See
24 C.F.R. 982.555(e)(6); Goldberg, 397 U.S. at 271. This is clear and uncontroversial,
because such a practice would substantially undermine tenants constitutional right to a
hearing. While BHRA argues that the alleged contacts at issue in this case were not
prejudicial, this Court is not in a position to evaluate this argument without evidence
demonstrating the basis for the hearing officers decisions and further evidence about the
nature of the disputed contacts. As with the issues discussed above, the Court cannot
simply assume at this stage of the proceedings that the contacts were constitutionally
permissible. Thus, BHRAs motion is denied as to the hearing officers alleged contact
with unnamed HUD officials.
As to BHRAs alleged failure to cite the relevant rule, however, the Court grants
BHRAs motion. Plaintiffs acknowledge that their own lawyers cited to the relevant rule
at their hearings. (Memo. of Law in Resp. to Defs. M. to Dismiss, Docket No. 12, at
25.) For plaintiffs to win in those circumstances, they would have to demonstrate that
-16-
constitutional due process inflexibly requires the defendant to state the applicable rule,
regardless of whether the parties jointly understand what rule is at issue, or whether the
rule is mentioned by another party. Such rigidity would be inconsistent with Goldberg v.
Kellys general approval of flexible, informal hearing procedures. See 397 U.S. at 269.
Accordingly, the Court grants BHRAs motion to dismiss plaintiffs claim concerning
BHRAs alleged failure to cite the relevant legal rule.
4. Legally Sufficient Evidence
Finally, plaintiffs allege that the hearing officers decisions were not supported by
the preponderance of the evidence. See Basco, 514 F.3d at 1183 (finding that a due
process violation where a hearing officer relied on legally insufficient evidence in support
of his or her decision). BHRA argues that such a claim should be dismissed because the
evidence discussed above was adequate. As noted above, however, the record does not
include the evidence presented at plaintiffs hearings. Without that evidence, this Court
is not in a position to evaluate whether the hearing officers decisions were based on
sufficient evidence to satisfy the requirements of due process. Accordingly, BHRAs
motion is denied as to plaintiffs claim that the hearing officers decisions were not based
on legally sufficient evidence.
B. 42 U.S.C. 1437f (Count II)
Plaintiffs also bring a 1983 claim alleging a violation of 42 U.S.C. 1437f and
the rules implementing that provision. See Hunter, 362 F.3d at 478 (noting that certain
provisions of the [United States] Housing Act provide rights that are enforceable under
-17-
1983). Plaintiffs contend that BHRA violated 24 C.F.R. 982.555(e)(6) a rule
implementing 42 U.S.C. 1437f in two ways: first, by relying on evidence acquired
from unnamed HUD officials after the hearing, and second, by making factual
determinations contrary to the preponderance of the evidence. Plaintiffs also contend that
in Johnsons case, BHRA violated 25 C.F.R. 982.555(e)(2) by relying on documents
that were not provided to her in advance of the hearing. BHRA summarily argues that
these claims should be dismissed for the same reasons as plaintiffs due process claims.
However, all of those reasons that are relevant to plaintiffs statutory claims were rejected
above. Accordingly, BHRAs motion is denied as to plaintiffs 1983 claim for
violations of 1437f.
ORDER
Based on the foregoing, all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that BHRAs Motion to Dismiss [Docket No. 4] is GRANTED
in part and DENIED in part as follows:
1. BHRAS motion is GRANTED as to plaintiffs claim that the relevant
legal rules were not cited by BHRA at their hearings.
2. In all other respects, BHRAs motion is DENIED.
DATED: February 5, 2009 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge
 

 
 
 

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