Argued November 5, 2014.
Reargued June 2, 2015.
As Corrected October 21, 2015.
Appeal from the Superior Court of the District of Columbia. (CAB-3590-13). (Hon. Michael L. Rankin, Trial Judge); and Petition for Review of a Final Decision of the District of Columbia Housing Authority. (C16-10).
Julie H. Becker, Legal Aid Society of the District of Columbia, with whom John C. Keeney, Jr., Legal Aid Society of the District of Columbia, was on the brief, for appellant. Jonathan H. Levy, Legal Aid Society of the District of Columbia, entered an appearance for appellant.
Frederick A. Douglas, with whom Curtis A. Boykin and Alex M. Chintella were on the brief, for appellee.
Karl A. Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Stacy L. Anderson, Senior Assistant Attorney General, were on the brief for the District of Columbia, amicus curiae, in support of appellant.
Catherine E. Stetson, Shannon T. Hodge, Rebecca Lindhurst, and Vytas Vergeer were on the brief for Bread for the City, amicus curiae, in support of appellant.
Before EASTERLY and MCLEESE, Associate Judges, and REID, Senior Judge. Opinion by Associate Judge MCLEESE, concurring in part and dissenting in part, at page 45.
Easterly, Associate Judge :
Stevon Mathis seeks review of the decision of the District of Columbia Housing Authority (" DCHA" ) to terminate his federally funded rental assistance administered through the Housing Choice Voucher Program (" HCVP" ). He argues that the DCHA's termination decision was unsupported by the agency's factual findings and was based on reasons for which Mr. Mathis was never given proper notice.
Potentially impeding our review of the merits of Mr. Mathis's case is a procedural wrinkle caused by a DCHA regulation, 14 DCMR § 8905.4 (a) (2005), which suggests that HCVP participants must file suit in the Superior Court to obtain judicial review of adverse decisions by the DCHA. Mr. Mathis did this with the DCHA's tacit approval (which was later explicitly expressed in its briefing to this court). The alignment of the parties notwithstanding, the Superior Court questioned its jurisdiction because it determined that Mr. Mathis's agency case was " contested" and, under the District of Columbia Administrative Procedure Act (" DCAPA" ), D.C. Code § 2-510 (a) (2012 Repl.), should have been reviewed directly by this court. It is the Superior Court's order dismissing Mr. Mathis's case for lack of jurisdiction that Mr. Mathis initially asked us to review in his Notice of Appeal.
As the DCHA ultimately conceded at re-argument, given the nature of the DCHA's termination proceedings, the Superior Court was right. We thus affirm the trial court's determination that it lacked jurisdiction to review the DCHA's voucher termination decision.
We nevertheless directly reach the merits of the DCHA's voucher determination decision because, while this appeal was pending, Mr. Mathis filed with this court a petition for review of an agency order. See D.C. App. R. 15 (a)(2). We conclude that Rule 15's thirty-day filing deadline is a claim-processing rule that may be equitably tolled, and, under the circumstances presented, we find ample basis for equitable tolling. Assessing the DCHA's termination decision, we are persuaded by Mr. Mathis's challenge to the sufficiency of the evidence, and thus we reverse.
I. Facts and Procedural History
In April 2008, Stevon Mathis signed a lease for an apartment on 36th Street N.E. with the assistance of a HCVP voucher. The HCVP, colloquially referred to as the " Section 8" program, is the federal rental housing subsidy program that was created by Section 8 of the Housing and Urban-Rural Recovery Act of 1983, which amended the United States Housing Act of 1937. See 42 U.S.C. § 1437f (2013). The program was established " [f]or the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing." Id. at § 1437f (a). The subsidy or " voucher" is portable and allows HCVP participants some measure of choice in which apartment to rent. The program is administered locally by Public Housing Agencies (" PHAs" ); the DCHA is the PHA that administers the program in the District. D.C. Code § 6-202 (b) (2012 Repl.).
In October 2009, a year and a half after he signed his lease, Mr. Mathis received notice that DCHA was terminating his participation in the HCVP. The notice, which was in the form of a postcard, stated that Mr. Mathis had " fail[ed] to comply with [his] Family Obligations in the Housing Choice Voucher Program."  Under a heading entitled " Summary of Facts" it stated: " TENANT ARRESTED FOR CRIMINAL [sic] RELATED ACTIVITY: ON 09/11/2009, PURSUANT TO A SEARCH WARRANT AND UNAUTHORIZED OCCUPANCY." And, under a heading entitled, " Regulation Reference," it listed without further explanation three federal regulations: 24 C.F.R. § 982.553 (c) (2015), 24 C.F.R. § 982.551 (l) (2015), and 24 C.F.R. § 982.551 (h)(2) (2015). The postcard notice advised Mr. Mathis that he had the right to " appeal" the DCHA's termination decision at an " informal hearing," and that to do so, he had to sign and date the postcard and return it to the agency " within 30 days of the postmark on this letter."
Within a week of receiving his postcard notice, Mr. Mathis requested a hearing. In the letter acknowledging his request, the DCHA informed Mr. Mathis that he had " the following rights: a) to examine before the hearing, and, to copy all documents, record, and regulations of DCHA that are relevant to the hearing; b) to be represented by counsel or other representatives at [his] expense; c) to confront and cross-examine adverse witnesses; [and] d) to present evidence on [his] behalf."
The hearing was conducted in April 2010 by a Hearing Officer from the DCHA's Office of Fair Hearings. An attorney appeared for the DCHA; Mr. Mathis represented himself (he had been given a continuance to try to find counsel but his efforts were unsuccessful). At the hearing, counsel for the DCHA acknowledged that Mr. Mathis could not have been arrested for drug activity on September 11, 2009, as the termination notice stated, because Mr. Mathis had been incarcerated on that day. Nonetheless, the DCHA's new theory was that Mr. Mathis's " brother," Ernest Leon Ratchford, had been arrested on September 11, 2009, in conjunction with the execution of a search warrant at the 36th Street apartment; the DCHA argued that Mr. Ratchford was not " part of the [HCVP] approved family composition," the implication being that he was not authorized to reside in the subsidized apartment for more than thirty days, and that, having done so, he became a de facto " family member"  for whose conduct Mr. Mathis could be held liable.
To prove its case, the DCHA called one witness, a DCHA investigator. The investigator testified that he had received a complaint from the landlord about a search warrant being executed at the 36th Street apartment on September 11, 2009. He obtained a copy of the warrant and determined that Mr. Mathis was not at home when the warrant was served, but two other men, identified in police reports as Ernest Leon Ratchford and Ralph A. Coleman, were. Based on these documents, the investigator testified that the two men were arrested, and that one of them told the police he was Mr. Mathis's brother. The investigator also testified that he visited the 36th Street apartment on October 7, 2009, and spoke to Mr. Ratchford, who identified himself as Mr. Mathis's brother. According to the investigator, Mr. Ratchford said that Mr. Mathis was no longer incarcerated but that he was not at home because he was out looking for a moving truck as " they were in the process of moving." The investigator then testified that Mr. Mathis called him " [a] day or so later" and that Mr. Mathis told the investigator that he had not been at home on September 11, 2009, that Mr. Ratchford was his brother, and that Mr. Ratchford had stayed with him for an unspecified amount of time.
Mr. Mathis made an opening statement and testified on own behalf at the hearing. He explained that he had been incarcerated on a probation violation during the time when drugs were sold from his apartment and the search warrant was executed. He argued that he should not be held responsible for what had taken place in the 36th Street apartment while he was incarcerated. He explained that there had been a lot of criminal activity in the building and that other residents had already moved out. He too had found " another apartment the month before all this happened," but then " was locked up."  Mr. Mathis denied giving anyone permission to stay in his apartment. He explained in his opening statement that " somebody broke into [his] apartment . . . while [he] was gone," and he subsequently testified that he had given Mr. Ratchford (who Mr. Mathis said was his cousin) his keys and let Mr. Ratchford " come down and check . . . on the unit for [him]."  Mr. Mathis testified that he had tried to get Mr. Ratchford to come to the hearing, but had been unsuccessful.
The Hearing Officer issued a written " Informal Hearing Decision" upholding the DCHA's decision to terminate Mr. Mathis's voucher. In her findings of fact, she determined that there was no evidence that Mr. Mathis had personally engaged in any drug-related criminal activity in the 36th Street apartment on September 11, 2009, and that the allegation in the notice of termination that he had been arrested at his residence was " not accurate." The Hearing Officer also found that " it [was] somewhat of a leap to assume that [Mr.] Mathis necessarily knew that [Mr.] Ratchford was selling drugs from [Mr.] Mathis'[s] apartment" ; and that not only was Mr. Mathis " in jail" at the time " and clearly not directly involved," but also that the record evidence was consistent with his testimony that " he was trying to leave the drug-infested building prior to" this incident.
The Hearing Officer noted that Mr. Mathis's voucher could nevertheless be terminated if Mr. Ratchford had exceeded the thirty-day time limit to stay in Mr. Mathis's apartment as a visitor, thus becoming " a member of [Mr. Mathis's] household," such that Mr. Mathis could be held liable for his conduct.
The Hearing Officer acknowledged that " [n]o evidence was presented by either party to establish whether [Mr.] Ratchford's presence in the unit exceeded the duration permitted for visitors," by which the Hearing Officer appeared to mean " no direct evidence" had been presented. The Hearing Officer looked to circumstantial evidence, which it identified as the fact that Mr. Mathis " a) admitted he is unaware of any known address for [Mr.] Ratchford, b) acknowledged giving his apartment key to [Mr.] Ratchford, c) was aware of the chronic illegal activity in his building and had reported the same to his landlord, and d) had been burglarized." The Hearing Officer determined that this evidence supported a finding that Mr. Mathis " did expect [Mr.] Ratchford to stay in the unit to protect his property during [his] month-long absence." The Hearing Officer further relied on the September 11, 2009, " police report [that] indicates that [Mr.] Ratchford furnished [Mr. Mathis's] address as his own" to make a finding that Mr. Ratchford was an " unauthorized occupant."
The Hearing Officer concluded that Mr. Mathis could be " deemed liable for the actions of individuals related to him and their behavior in or around his federally assisted unit," and that " [b]ased on . . . the activity of his guests (with or without his knowledge and consent)," the DCHA had proved " by a preponderance of the evidence that [Mr.] Mathis ha[d] violated his family obligation." Accordingly, the Hearing Officer recommended affirming the DCHA's decision to terminate Mr. Mathis's participation in HCVP.
With the Informal Hearing Decision, Mr. Mathis was given notice that he had two weeks to exercise his right to review within the agency. Mr. Mathis timely exercised that right but gained no relief. Nine months later, on February 14, 2011, the Executive Director of the DCHA issued a three-page decision entitled the " Final Informal Hearing of the District of Columbia Housing Authority," affirming the termination of Mr. Mathis's participation in HCVP.
In this final agency decision, The Executive Director noted that
[t]he Hearing Officer found that Mr. Mathis'[s] relative was an unauthorized family member as defined by the [Administrative P]lan because, among other reasons: Mr. Mathis admitted that he gave his relative a key to gain entry to his residence to stay in the unit while he was ...