Opinion
19-P-380
03-13-2020
Annie GRIFFIN v. BOSTON HOUSING AUTHORITY & another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
In this interlocutory appeal pursuant to G. L. c. 231, § 118, the Boston Housing Authority (BHA) challenges the October 23, 2018 order of a judge of the Boston Housing Court remanding the BHA's proposed termination of plaintiff Annie Griffin's "section 8" housing subsidy for an additional and limited informal hearing before a BHA hearing officer. We determine that this court's order in Griffin v. Boston Hous. Auth., 92 Mass. App. Ct. 1121 (2018) (Griffin II ), required the full informal hearing in which the parties participated on April 12, 2018 (second hearing). We also conclude, however, that the hearing officer who conducted the second hearing (second hearing officer) failed properly to follow the two-step analysis, explained in Griffin II, for determining if a sanction was appropriate in Griffin's case, and failed to show how she exercised her discretion in considering evidence of Griffin's mitigating circumstances. Accordingly, we vacate the judge's October 23, 2018 order, and remand the case for another informal hearing, de novo.
Judicial remands to agencies generally are considered interlocutory rulings that cannot be appealed. See, e.g., Metropolitan Dist. Comm'n v. Department of Pub. Utils., 352 Mass. 18, 30 (1967). An exception has developed under which the agency whose decision was remanded can pursue an appeal. Cliff House Nursing Home, Inc. v. Rate Setting Comm'n, 378 Mass. 189, 191 (1979).
Background. This is the third time that the parties have been before a panel of this court in connection with this case. See Griffin II; Griffin v. Boston Hous. Auth., 92 Mass. App. Ct. 1102 (2017) (Griffin I ). The history of the case and the facts relevant to our decision here are not disputed. Griffin is a participant in the Federal Housing Choice Voucher Program (Section 8), and receives Section 8 benefits. The BHA provides housing assistance to Griffin and her children. Based on allegations that Griffin had participated in an armed robbery and the subsequent discovery of ammunition and a rifle scope in Griffin's apartment, the BHA sought to terminate Griffin's Section 8 benefits. Griffin sought an informal hearing before a BHA hearing officer (first hearing officer), see 24 C.F.R. § 982.555(a)(1)(iv) (2015), and, when the first hearing officer affirmed the BHA's request, applied for certiorari review by a judge of the Housing Court. See G. L. c. 249, § 4. When the judge affirmed the first hearing officer's decision, Griffin sought review in this court. See Griffin II.
"In the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program (Section 8), HUD ‘pays rental subsidies so eligible families can afford decent, safe and sanitary housing.’ 24 C.F.R. § 982.1(a)(1) (1999)." Figgs v. Boston Hous. Auth., 469 Mass. 354, 355 n.2 (2014).
In Griffin I, the parties' first appeal concerned the propriety of a postjudgment order requiring the BHA to continue making subsidy payments pending appeal of the judge's order affirming the termination of that subsidy.
In Griffin II, a panel of this court determined that "substantial legal error [in the first hearing] adversely affected Griffin's material rights," and concluded that "[a] new informal hearing conducted in accordance with due process principles [was] required." Griffin II. The panel ordered entry of judgment "remanding the matter to the BHA for further proceedings consistent with [its] memorandum and order." Id. The Housing Court judge ordered the case remanded, and in April, 2018, the parties participated in a new hearing before the second hearing officer. In a June 1, 2018 decision, the second hearing officer also affirmed the BHA's decision to terminate Griffin's Section 8 benefits.
In its brief, the BHA explained that by the time of the second hearing, the original hearing officer had retired. Griffin does not argue otherwise.
Following the issuance of the second hearing officer's decision, the parties returned to the Housing Court. Provided with a copy of the second hearing officer's decision, the Housing Court judge concluded that (1) the parties and the second hearing officer had misunderstood the remand order in Griffin II to permit an entirely new hearing on the BHA's proposed termination of benefits, and (2) the second hearing officer had failed properly to consider issues highlighted in Griffin II. The judge focused on the determinations in Griffin II that in the first hearing, the first hearing officer had improperly declined to consider all potentially mitigating factors in Griffin's case, unfairly imposed on Griffin the burden of production concerning the likelihood of her violating the terms of her Section 8 benefits, and improperly omitted any reference to Griffin's evidence in support of her request for a lesser sanction than eviction. See Griffin II.
On June 29, 2018, after the BHA had informed Griffin of the imminent termination of her benefits, Griffin filed suit in the Boston Housing Court to enjoin the BHA from terminating her subsidy.
Accordingly, on October 23, 2018, the judge again remanded the matter to the BHA. The judge's remand order directed the BHA to conduct "a hearing consistent with the order of the Appeals Court dated January 4, 2018 [Griffin II ]." The order, however, precluded Griffin from seeking reconsideration of the BHA's prima facie case and limited the issues on remand to "(1) the consideration of all of the mitigating factors identified by the Appeals Court in its January 2018 order; (2) whether there was substantial evidence to support the likelihood of recidivism and specific reference thereto in the determination and (3) the consideration of [Griffin]'s request for a lesser sanction." It is this order from which the BHA now appeals.
Discussion. The Housing Court judge acted within her discretion in remanding the case back to an informal hearing before the BHA. See G. L. c. 249, § 4. See also Seales v. Boston Hous. Auth., 88 Mass. App. Ct. 643, 649 (2015), quoting Doucette v. Massachusetts Parole Bd., 86 Mass. App. Ct. 531, 540-541 (2014) (on certiorari review, judge authorized to "correct substantial errors of law apparent on record adversely affecting material rights"). However, we agree with the BHA that the plain language of Griffin II required a new informal hearing de novo in Griffin's case, and not the more limited hearing ordered by the judge on remand. See also Seales, supra. Even if we were to conclude that the order in Griffin II allowed for a partial remand, given the unavailability of the first hearing officer, and the absence of adequate findings in the first hearing officer's report, a new hearing would have been required in order to satisfy Griffin's right to due process. See Figgs v. Boston Hous. Auth., 469 Mass. 354, 356 n.3 (2014). See also Carter v. Lynn Hous. Auth., 450 Mass. 626, 633 (2008) ; Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 112-113 (2006).
A fact about which the Housing Court judge appears to have been unaware at the time that she issued her order.
Specifically, the omission of findings on the likelihood that Griffin would commit future violations of the requirements of her Section 8 benefits and of "any mention of relevant evidence provided by Griffin in support of her request for a lesser sanction." Griffin II.
In concluding that this case could not properly have been remanded for a limited hearing we do not suggest that it would be impermissible to do so under other circumstances.
While, as we conclude, the second hearing officer correctly understood the scope of the hearing required on remand, we discern in her decision substantial legal errors, similar to those made by the first hearing officer, that adversely affected Griffin's material rights. See Figgs, 469 Mass. at 361-362. See also Griffin II.
First, the second hearing officer determined that Griffin's lack of credibility about her involvement in the criminal conduct that precipitated the BHA's efforts to terminate her Section 8 benefits overshadowed the evidence of the circumstances mitigating the consequences of her violations of the terms of her subsidy. In relying on her disbelief of Griffin's defenses to the violations as a basis for rejecting the evidence of Griffin's mitigating circumstances, the second hearing officer again "improperly conflated the two parts of the analysis" she was required to conduct following the second informal hearing -- determination of whether the participant violated her "family obligations" and, if so, identification of the appropriate sanction. , See Griffin II (quoting BHA Section 8 Administrative Plan § 13.7.5[j], and citing 24 C.F.R. § 982.552 [c][2][i] [2017] ); Carter, 450 Mass. at 634 ).
There is no suggestion in the second hearing officer's decision that the hearing officer discredited Griffin's account of her mitigating circumstances.
Additionally, to the extent that the second hearing officer's finding that Griffin's failure to take responsibility for her participation in the criminal conduct suggested that Griffin was likely to recidivate, as in Griffin II, and for the same reasons, that conclusion was erroneous.
Second, the second hearing officer's decision failed to make the findings needed to demonstrate how she exercised her discretion with respect to Griffin's mitigating circumstances and the appropriateness of sanctions other than termination. See 24 C.F.R. § 982.552(c)(2)(i). If the hearing officer determines that the participant has violated the program's terms, then the hearing officer must determine the appropriate sanction. See id. Even where termination is warranted, it is not mandated; the hearing officer must exercise discretion in determining the sanction suiting the facts of the case. See Carter, 450 Mass. at 636. In arriving at a suitable sanction, the hearing officer must take into account "all relevant circumstances" and any mitigating circumstances presented by the participant. Id. at 634, quoting 24 C.F.R. § 982.552(c)(2)(i).
Here, although the second hearing officer recited the evidence of Griffin's mitigating circumstances, her decision indicates that she considered only one of those factors -- Griffin's children -- and did not address the possibility of sanctions less severe than termination of Griffin's benefits. This treatment of the issue was insufficient. See Carter, 450 Mass. at 634, citing Wojcik, 66 Mass. App. Ct. at 112. While the second hearing officer did not, as the first hearing officer did, "reject[ ] all potentially mitigating factors from consideration," with the result that "sole focus [was] on culpability" (emphasis added), Griffin II, her analysis indicates that rather than weighing the significance of the mitigating factors against the seriousness of the violations, she weighed them against Griffin's failure to accept responsibility for being involved in the robbery and the presence of the ammunition and scope found in Griffin's home. The second hearing officer was permitted to reject Griffin's defenses as unworthy of belief in the first step of the analysis, but she was not permitted to use the mitigating circumstances analysis as a sanction for Griffin's perceived untruthfulness.
Given our conclusion that the second hearing officer failed to conduct the proper analysis of the evidence presented at the second hearing, we consider with care the next steps appropriate in this case. Mindful of both the BHA's concerns about the safety of all residents to whom it is responsible, and the toll taken on program participants like Griffin by protracted litigation and ongoing uncertainty about family housing prospects, we conclude that remand, while not desirable, is appropriate here. Cf. Newbury Jr. College v. Brookline, 19 Mass. App. Ct. 197, 208 (1985). It is necessary that another de novo informal hearing be conducted before a hearing officer of the BHA. Accordingly, we vacate the judge's October 23, 2018 order, and a new order shall enter remanding the matter to the BHA for further proceedings consistent with this memorandum and order. The BHA shall continue to provide Griffin's Section 8 benefits through the resolution of the remand issues.
The hearing may, but need not, be heard by the second hearing officer.
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So ordered.
Vacated and remanded.