United States District Court, District of Columbia
WILLIAM A. LONG, Plaintiff,
DISTRICT OF COLUMBIA HOUSING AUTHORITY, et al. Defendants.
MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE
Plaintiff William A. Long brought this action against Defendants the District of Columbia Housing Authority (“DCHA”) and Adrianne Todman in her official capacity as DCHA’s Executive Director under 42 U.S.C. § 1983, the Housing Act of 1937, 42 U.S.C. §§ 1437 et seq., as amended by the Quality Housing and Work Responsibility Act of 1998, 42 U.S.C. §§ 13661 et seq., the Fifth Amendment to the U.S. Constitution, and District of Columbia Municipal Regulations challenging DCHA’s termination of his housing assistance payments as part of the Housing Choice Voucher Program, a federally-funded program that DCHA administers.
The parties have filed cross-motions for summary judgment based on the undisputed facts of the case. See Defs.’ Mot. Summ. J., ECF No. 16; Pl.’s Cross-Mot. Summ. J. & Opp’n Defs.’ Mot. Summ. J. (“Pl.’s Mot. Summ. J.”), ECF No. 18. For the reasons provided below, the Court will enter judgment in favor of Defendants as to Counts II, III, and IV of Mr. Long’s Complaint and deny the parties’ motions as to Counts I and V without prejudice in order to permit the parties to more fully brief the underlying legal issues.
This case involves the relationships between a federal statute, its implementing regulations, and local District of Columbia regulations. It is therefore necessary for the Court to first provide an overview of the relevant statutory and regulatory framework before turning to the factual background and procedural history of this case.
A. Statutory and Regulatory Framework
The Housing Choice Voucher Program (the “Program, ” also commonly referred to as “Section 8” or the “HCVP”) was created by Congress with “the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing” by providing low-income families with assistance payments, or subsidies, to enable them to rent units in the private rental housing market. 42 U.S.C. § 1437f(a). The program is financed by the federal government, regulated by the Department of Housing and Urban Development (“HUD”), and administered by state and local public housing agencies (“PHAs”). See 42 U.S.C. § 1437f; Simmons v. Drew, 716 F.2d 1160, 1161 (7th Cir. 1983). Through the Program, HUD distributes federal funds to PHAs, and the PHAs, in turn, distribute the funds by contracting with property owners to subsidize a portion of a Program participant’s rent. See 42 U.S.C. § 1437f; Simmons, 716 F.2d at 1161. DCHA, an agency of the District of Columbia government, is the PHA responsible for administering the Program in the District of Columbia. See D.C. Code § 6-202; 14 D.C.M.R. § 4900.
1. Statutory Provisions Concerning Admission and Termination
In order to participate in the Program and receive assistance, a family must first apply to a PHA for admission to the Program and be admitted. In 1998, Congress enacted the Quality Housing and Work Responsibility Act (the “QHWRA”), which amended the Housing Act to, among other things, authorize and, in some cases, require, PHAs and owners to deny admission to certain categories of applicants and terminate certain participants’ assistance. See 42 U.S.C. §§ 13661-13664.
Specifically, and most relevant in this case, § 13663, titled “Ineligibility of dangerous sex offenders for admission to public housing, ” provides that owners of federally assisted housing must “prohibit admission to such housing for any household that includes any individual who is subject to a lifetime registration requirement under a State sex offender registration program.” 42 U.S.C. § 13663(a). Section 13663 also, among other things, instructs PHAs to conduct criminal history background checks to determine whether an applicant is subject to a lifetime registration requirement, authorizes PHAs to conduct background checks with respect to applicants and tenants at the request of owners, and provides applicants with an opportunity to dispute the factual determination of their status as a lifetime registrant prior to any adverse action. See 42 U.S.C. § 13663(b)-(d).
The statute provides other mandatory and discretionary grounds for denying admission to applicants. Specifically, § 13661, a companion provision, addresses illegal drug users, alcohol abusers, and other criminals. See 42 U.S.C. § 13661. It provides, for example, that any tenant who has been evicted from federally assisted housing for drug-related criminal activity “shall not be eligible for federally assisted housing” for the three years following the tenant’s eviction, unless the tenant successfully completes a rehabilitation program. 42 U.S.C. § 13661(a). It also requires the establishment of standards to prohibit admission to anyone determined to be “illegally using a controlled substance” or whose “illegal use (or pattern of illegal use) of a controlled substance, or abuse (or pattern of abuse) of alcohol, may interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.” 42 U.S.C. § 13661(b).
Importantly, §§ 13661 and 13663 concern grounds for denying admission to the Program; these sections of the statute do not, at least explicitly, concern a PHA’s termination of a participant in the Program who has already been admitted and has been receiving assistance. Termination is addressed separately in the section that falls between them. See 42 U.S.C. § 13662. Section 13662, titled “Termination of tenancy and assistance for illegal drug users and alcohol abusers in federally assisted housing” authorizes PHAs and owners to terminate the tenancy or assistance of a participant family on the same grounds that § 13661(b) provides for denying admission: if a member is determined to be “illegally using a controlled substance” or whose “illegal use (or pattern of illegal use) of a controlled substance, or whose abuse (or pattern of abuse) of alcohol” interferes with the right to peaceful enjoyment by other residents. 42 U.S.C. § 13662(a). It also provides that, in determining whether to terminate tenancy or assistance, a PHA or owner may consider whether the household member has been rehabilitated. See 42 U.S.C. § 13662(b). Neither § 13662 nor any other provision of the statute specifically addresses termination of assistance due to a participant’s status as a lifetime registrant.
The statute also instructs HUD to require PHAs to establish an administrative grievance procedure that provides a process for taking adverse actions against tenants in which tenants will, among other things, “be advised of the specific grounds” of the proposed adverse action, have an opportunity to contest the adverse action before an impartial party, and “receive a written decision by the public housing agency on the proposed action.” 42 U.S.C. § 1437d(k).
2. HUD Regulations
HUD’s relevant implementing regulations are codified at 24 C.F.R. pt. 982. Under these regulations, PHAs are required to adopt a written administrative plan “that establishes local policies for administration of the program in accordance with HUD requirements” and “states PHA policy on matters for which the PHA has discretion to establish local policies.” 24 C.F.R. § 982.54(a). PHAs are required to “revise the administrative plan if needed to comply with HUD requirements.” 24 C.F.R. § 982.54(b). PHAs are also required to “comply with HUD regulations and other HUD requirements for the program” and the regulation states that “HUD requirements are issued by HUD headquarters, as regulations, Federal Register notices or other binding program directives.” 24 C.F.R. § 982.52(a). The regulation does not define the phrase “other binding program directives.”
On May 24, 2001, HUD promulgated regulations that implemented the QHWRA, codified, in relevant part, at 24 C.F.R. §§ 982.551-.555, which became effective on June 25, 2001. See 66 Fed. Reg. 28, 776 (May 24, 2001). The regulations provide certain obligations for Program participants (§ 982.551), specify mandatory and discretionary grounds for PHAs to deny admission to applicants or terminate assistance to participants (§ 982.552), and specify other mandatory and discretionary grounds for PHAs to deny admission and terminate assistance to criminals and alcohol abusers (§ 982.553). Like the statute it implements, the HUD regulations only address lifetime registrants with respect to denying admission to applicants. Subsection 982.553(a), titled “Denial of admission, ” provides, in relevant part:
The PHA must establish standards that prohibit admission to the program if any member of the household is subject to a lifetime registration requirement under a State sex offender registration program. In this screening of applicants, the PHA must perform criminal history background checks necessary to determine whether any household member is subject to a lifetime sex offender registration requirement in the State where the housing is located and in other States where the household members are known to have resided.
24 C.F.R. § 982.553(a)(2)(i) (emphasis in original). The subsection that follows, § 982.553(b), titled “Terminating assistance, ” requires PHAs to establish standards to terminate assistance to drug criminals, families in breach of the obligation set forth in § 982.551 to not engage in drug-related criminal activity, and alcohol abusers. See 24 C.F.R. § 982.553(b).
HUD regulations also set certain procedural requirements for denying admission and terminating assistance. PHAs must give applicants prompt notice of a decision to deny admission and an informal review process to contest the decision. See 24 C.F.R. § 982.554. PHAs are also required to give participant families an opportunity for an informal hearing if, among other things, the PHA decides to terminate assistance “because of the family’s action or failure to act.” 24 C.F.R. § 982.555(a)(iv). The person conducting the hearing must “issue a written decision, stating briefly the reasons for the decision.” 24 C.F.R. § 982.555(e)(6). The regulation also provides, however: “The PHA is not bound by a hearing decision . . . [c]oncerning a matter for which the PHA is not required to provide an opportunity for an informal hearing under this section, or that otherwise exceeds the authority of the person conducting the hearing under the PHA hearing procedures” or that is “[c]ontrary to HUD regulations or requirements, or otherwise contrary to federal, State, or local law.” 24 C.F.R. § 982.555(f). The regulation specifies that “[i]f the PHA determines that it is not bound by a hearing decision, the PHA must promptly notify the family of the determination, and of the reasons for the determination.” 24 C.F.R. § 982.555(f)(3).
3. Subsequent HUD Opinion Letter and Notices
Since promulgating the regulations concerning denial of admission and termination of assistance, HUD has issued at least one opinion letter and has publicly issued “notices” addressing the statutory and regulatory requirements concerning lifetime registrants.
First, on December 21, 2007, HUD responded to a request by The Legal Aid Society in New York regarding the applicability of § 13663 “to a public housing tenant who was classified as a sex offender by a New York State court 4 years after his tenancy began.” Pl.’s Ex. 7 at 55- 56, ECF No. 18-1. In this letter, HUD wrote, in relevant part:
It is clear from [§ 13663] and 24 C.F.R. § 982.553(b[)](2)(i) that the bar against sex offenders subject to lifetime registration requirements applies only to “applicants” seeking “admission” to a federally assisted housing program. Thus, the statute has no applicability to an individual who has already been admitted to public housing under the circumstances described in your letter.
Id. at 56.
Then, on September 9, 2009, HUD publicly issued Notice PIH 2009-35(HA) in order “to reiterate current regulatory requirements and strongly encourage the establishment of standards and procedures with a zero tolerance approach to prevent lifetime sex offenders from receiving federal housing assistance.” HUD Notice PIH 2009-35(HA) (the “2009 Notice”), Pl.’s Ex. 7 at 51-54. In this notice, HUD stated that it was “currently exploring regulatory and legislative changes to ensure that individuals subject to lifetime registration requirements do not continue to reside in federally assisted housing, but the strong recommendations in this Notice are vital to the ongoing effort to ensure the highest levels of public safety in federally assisted housing facilities.” Id. at 51. The 2009 Notice’s summary of the relevant statutory and regulatory requirements discussed owners’ and PHAs’ obligations to deny admission to lifetime registrants and did not address termination of assistance. The 2009 Notice recommended, however, that if, during the annual recertification process, an owner or PHA discovers that a tenant or a member of the tenant’s household is a lifetime registrant, the owner or PHA “should pursue eviction or termination of tenancy to the extent allowed by their lease and state or local law.” Id. at 54. The 2009 Notice expired, by its own terms, on September 30, 2010. See Id. at 51.
On June 11, 2012, HUD publicly issued Notice PIH 2012-28, which superseded the 2009 Notice. See HUD Notice PIH 2012-28 (the “2012 Notice”), Defs.’ Ex. 3, ECF No. 16-1. In this notice, HUD changed its position regarding the termination of lifetime registrants under the statute and HUD regulations:
This guidance reiterates owners’ and agents’ (O/As) and Public Housing Agencies’ (PHAs) statutory- and regulatory-based responsibilities to prohibit admission to individuals subject to a lifetime registration requirement under a State sex offender registration program. If a participant who is subject to such a lifetime registration requirement was erroneously admitted into a federal housing program . . . and is found to be receiving assistance, O/As and PHAs must pursue eviction or termination of assistance for these participants.
Id. at 12 (emphasis added). The 2012 Notice further stated, under a section titled “Statutory and Regulatory Clarifications”:
[I]f an O/A or PHA discovers that a household member was erroneously admitted (the household member was subject to a lifetime registration requirement at admission and was admitted after June 25, 2001), the O/A or PHA must immediately pursue eviction or termination of assistance for the household member. Regulations for hearings for the Public Housing (PH) and Housing Choice Voucher (HCV) programs, at 24 CFR § 966 Subpart B and § 982.555, respectively, continue to apply.
Id. at 13. The 2012 Notice also stated: “For admission before June 25, 2001, there is currently no HUD statutory or regulatory basis to evict or terminate the assistance of the household solely on the basis of a household member’s sex offender registration status.” Id. at 14.
4. District of Columbia Municipal Regulations
Unlike some other PHAs, DCHA’s administrative plan is enacted through the District of Columbia’s regulations governing the Program. See generally D.C. Code § 6-203; D.C. Mun. Regs. tit. 14, chs. 49-59.
On September 20, 2013, the Board of Commissioners of DCHA added, following a notice and comment period that began on May 9, 2013, § 5804 to Title 14 of the D.C. Municipal Regulations. Section 5804 is titled “Termination of Participation and Assistance for Criminal Activity” and sets forth mandatory and discretionary grounds for DCHA to terminate a family’s assistance. See 14 D.C.M.R. § 5804. It states, in relevant part: “DCHA shall terminate participation of a Family if . . . (b) Any member of the household is subject to a lifetime registration requirement under a state or District of Columbia sex offender program.” 14 D.C.M.R. § 5804.1.
B. Factual Background
The facts of this case are undisputed. See Pl.’s Mot. Summ. J. at 2 (“Plaintiff does not find any genuine issue exists with the facts as provided in Defendants’ motion.”); Defs.’ Response Pl.’s Stmt. Material Facts, ECF No. 21-1.
In 1991, Mr. Long was convicted of rape in the District of Columbia, and, under D.C.’s sex offender registration law, D.C. Code §§ 22-4001(6), 22-4002(b), he is subject to a lifetime registration requirement. See Defs.’ Stmt. Facts ¶ 1, Defs.’ Mot. Summ. J. at 4-6 (“Defs.’ SOF”); Defs.’ Ex. 1, ECF No. 16-1; Pl.’s Stmt. Material Facts ¶ 5, Pl.’s Mot. Summ. J. at 10-16 (“Pl.’s SOF”); Decl. William A. Long ¶ 5 (“Long Decl.”), ECF No. 2-2. On December 29, 1999, Mr. Long was released from prison on parole, and, ...