Bostic v. District of Columbia Housing Authority

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

Court of any formal errors so that corrections may be made before the bound

volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 15-AA-386

NELSON BOSTIC, PETITIONER,

V.

DISTRICT OF COLUMBIA HOUSING AUTHORITY, RESPONDENT.

On Petition for Review of an Order of the

District of Columbia Housing Authority

(C-393-14)

(Argued November 21, 2016 Decided June 29, 2017)

Beth Mellen Harrison, Legal Aid Society of the District of Columbia, with

whom Jonathan H. Levy, Legal Aid Society of the District of Columbia, was on

the brief, for petitioner.

Frederick A. Douglas, with whom Curtis A. Boykin and Alex M. Chintella

were on the brief, for respondent.

Chad A. Readler, Acting Assistant Attorney General, Channing D. Phillips,

United States Attorney, and Mark B. Stern and Sarah Carroll, Attorneys, Appellate

Staff, Civil Division, U.S. Department of Justice, were on the brief for the United

States as amicus curiae in support of respondent.

Before FISHER and MCLEESE, Associate Judges, and BELSON, Senior Judge.

MCLEESE, Associate Judge: Petitioner Nelson Bostic seeks review of a

decision of the District of Columbia Housing Authority (DCHA) to terminate him

from a housing-voucher program because Mr. Bostic is required to register for life

2

as a convicted sex offender. Mr. Bostic contends that DCHA’s decision is contrary

to federal law. We affirm.

I.

The Section 8 Housing Choice Voucher Program is a rent-subsidy program

funded by the United States Department of Housing and Urban Development

(HUD) and administered in the District by DCHA. 42 U.S.C. § 1437f(a), (o)(1)

(2015); 24 C.F.R. § 982.1(a)(1) (2016); D.C. Code § 6-202 (2016). Participants in

the program can rent existing units on the private market, paying a percentage of

their income towards rent, with the remaining cost paid by government subsidy.

42 U.S.C. § 1437f(o).

The federal Housing Act, the Quality Housing and Work Responsibility Act

(QHWRA), and related HUD regulations establish requirements for the program,

including policies on admission to and termination from the program. 42 U.S.C.

§ 1437f(o); 42 U.S.C. §§ 13661-64 (2015); 24 C.F.R. pt. 982 (2016). Specifically,

QHWRA requires that “[n]otwithstanding any other provision of law, an owner of

federally assisted housing shall prohibit admission to such housing for any

household that includes any individual who is subject to a lifetime registration

3

requirement under a State sex offender registration program.” 42 U.S.C.

§ 13663(a). A HUD regulation promulgated in 2001 requires local public-housing

agencies (PHAs) such as DCHA to prohibit admission to the program of

households that include a member subject to lifetime sex-offender registration. 24

C.F.R. § 982.553(a)(2)(i) (2016). In 2013, DCHA promulgated 14 DCMR

§ 5804.1 (b), mandating termination from the program of any family if “[a]ny

member of the household is subject to a lifetime registration requirement under a

state or District of Columbia sex offender program.”

We understand the following circumstances to be undisputed for purposes of

this appeal. In 1982, Mr. Bostic was convicted of forcible rape in the District of

Columbia. He served eighteen years in prison and was released on parole in 2000.

Under the District’s Sex Offender Registration Act, Mr. Bostic is required to

register for life as a convicted sex offender. D.C. Code § 22-4001 et seq. (2012).

Mr. Bostic registered in 2000, and he has subsequently verified his registration

information with the Metropolitan Police Department as required. He has

complied with all of the conditions of his parole and has not been arrested since his

release.

4

Shortly after his release, Mr. Bostic applied to DCHA for housing assistance

under the program and was placed on a waiting list. In 2008, Mr. Bostic reached

the top of the waiting list. As part of DCHA’s screening of applicants, Mr. Bostic

provided a police clearance from the Metropolitan Police Department. Because his

conviction was over twenty-five years old, it did not appear on the clearance,

which looked back only six years. DCHA did not ask Mr. Bostic any other

questions about his criminal history. Mr. Bostic was admitted to the program and

moved into an apartment. Because 24 C.F.R. § 982.553(a)(2)(i) precludes

admission of lifetime sex-offender registrants, Mr. Bostic was admitted to the

program in violation of federal law. In 2014, DCHA conducted an internal audit

and discovered Mr. Bostic’s status as a lifetime sex-offender registrant. Relying

on 14 DCMR § 5804.1 (b), DCHA recommended that Mr. Bostic be terminated

from the program.

At an informal hearing before DCHA, Mr. Bostic did not dispute his status

as a lifetime sex-offender registrant. Instead, he presented evidence that he

requires assistance from a home health-aide five days a week and could not secure

housing without a subsidy because of his debilitating health problems. In addition,

Mr. Bostic argued that 14 DCMR § 5804.1 (b) was contrary to federal law.

Concluding that 14 DCMR § 5804.1 (b) was mandatory and not contrary to federal

5

law, the Hearing Examiner directed that Mr. Bostic be terminated from the

program. DCHA’s Executive Director affirmed the hearing examiner’s decision.

II.

Mr. Bostic renews his argument that 14 DCMR § 5804.1 (b) is contrary to

federal law. We conclude otherwise.

Under the Supremacy Clause of the United States Constitution, federal law

preempts local law that “interfere[s] with, or [is] contrary to” federal law.

Hillsborough Cty. v. Automated Med. Labs., Inc., 471 U.S. 707, 712 (1985)

(internal quotation marks omitted); see also U.S. Const. art. VI., cl. 2; Murray v.

Motorola, Inc., 982 A.2d 764, 771 (D.C. 2009). Federal law can expressly or

implicitly preempt local law. Hillsborough Cty., 471 U.S. at 713. Implied

preemption falls into two “not rigidly distinct” categories, “conflict preemption”

and “field preemption.” Crosby v. National Foreign Trade Council, 530 U.S. 363,

372 n.6 (2000) (internal quotation marks omitted). Conflict preemption occurs

“where compliance with both federal and state regulations is a physical

impossibility, or where state law stands as an obstacle to the accomplishment and

execution of the full purposes and objectives of Congress.” Murray, 982 A.2d at

6

771 (internal quotation marks, ellipses, and brackets omitted). Field preemption

“occurs when federal law so thoroughly occupies a legislative field as to make

reasonable the inference that Congress left no room for the States to supplement

it.” Id. at 771-72 (internal quotation marks omitted).

For purposes of preemption analysis, federal and local law includes federal

and local regulations. Murray, 982 A.2d at 771-72; Hillsborough Cty., 471 U.S. at

713. Thus, a statute enacted by the Council of the District of Columbia can be

preempted by either a congressional statute or a federal-agency regulation.

Goudreau v. Standard Fed. Savings & Loan Ass’n, 511 A.2d 386, 389-90 (D.C.

1986). It follows that a regulation promulgated by an agency of the District of

Columbia can also be so preempted.

Mr. Bostic does not identify a federal statute or regulation that explicitly

precludes DCHA from terminating Mr. Bostic from the program. Rather, Mr.

Bostic argues that various statutory provisions and regulations, taken together,

demonstrate that Congress and HUD intended to preclude PHAs from terminating

lifetime sex-offender registrants such as Mr. Bostic. Specifically, Mr. Bostic

argues that (1) the provisions governing the authority of PHAs to administer the

program do not give PHAs general authority to terminate participants from the

7

program, see 24 C.F.R. § 982.54 (2017); (2) the HUD regulations specifically

addressing termination from the program are exclusive and do not include status as

a lifetime sex-offender registrant, see 24 C.F.R. §§ 982.552, .553 (2016);

(3) although QHWRA and its implementing regulations bar lifetime sex-offender

registrants from admission to the program, QHWRA does not provide for

termination of such registrants from the program, see 42 U.S.C. § 13663; (4) in

contrast, QHWRA explicitly provides for termination from the program of certain

illegal drug users and alcohol abusers, see 42 U.S.C. § 13662(a); and (5) HUD’s

prior statements and guidance supported the conclusion that PHAs may not

terminate lifetime sex-offender registrants from the program, and to the extent that

HUD takes the contrary position in its amicus brief in this case, HUD’s later

position is not entitled to deference.

Mr. Bostic presents a quite substantial argument. Nevertheless, we are

ultimately unpersuaded. As previously noted, federal law requires PHAs to

prohibit admission to the program of households that include a lifetime sex-

offender registrant. 24 C.F.R. § 982.553(a)(2)(i). Mr. Bostic was erroneously

admitted to the program despite this prohibition. It would be quite surprising if

federal law prohibited DCHA from ever correcting that erroneous admission. We

conclude that federal law does not so tie DCHA’s hands.

8

In arguing that federal law does preclude DCHA from ever correcting its

error in admitting him to the program, Mr. Bostic contends that Congress and HUD

could reasonably have concluded that the disruptive effects of withdrawing

housing benefits that have already been granted, even in error, outweigh the

interest in denying housing benefits to lifetime sex-offender registrants. This

contention, however, is contradicted by a variety of provisions that either authorize

or require PHAs or private property-owners to deny benefits under the program to

lifetime sex-offender registrants already admitted to the program. Most

significantly, federal law prohibits owners of federally assisted housing from

admitting lifetime sex-offender registrants to such housing. 42 U.S.C. § 13663(a).

The scope of this provision is not entirely clear, but Mr. Bostic does not appear to

dispute that at a minimum the provision would preclude any new property owner

from providing Mr. Bostic with housing under the program. HUD argues more

broadly that the provision would have required the owner of Mr. Bostic’s

apartment to evict Mr. Bostic immediately upon learning that Mr. Bostic was a

lifetime sex-offender registrant. We need not decide that question, or the related

question whether the provision would preclude a property owner under the

program from renewing the lease of a known lifetime sex-offender registrant.

Rather, it suffices for current purposes to conclude that this provision undermines

9

Mr. Bostic’s contention that federal law is intended to protect those admitted to the

program in error from having benefits under the program subsequently denied on

the basis of their status as lifetime sex-offender registrants. Moreover, it would be

absurd to require DCHA to maintain Mr. Bostic in the program if no property

owner could permissibly admit him to housing under the program.

A number of other provisions also undermine Mr. Bostic’s contention that

federal law should be understood to protect his interest in remaining in the program

even though he was admitted to the program in violation of federal law. First,

QHWRA authorizes PHAs to obtain information about the sex-offender status of

“tenants” for purposes of “lease enforcement[] and eviction.” 42 U.S.C.

§ 13663(c). That provision clearly signals Congress’s understanding that status as

a lifetime sex-offender registrant can be a basis not only for denial of admission to

the program but also for eviction. Second, in some circumstances a PHA also

serves as the property owner under the program. In that situation, a federal

regulation authorizes the PHA to evict a tenant who is a lifetime sex-offender

registrant. 24 C.F.R. § 966.4(l)(2)(iii)(B) (2017) (“The PHA may terminate the

tenancy only for . . . [o]ther good cause[, which] includes, but is not limited to . . .

[d]iscovery after admission of facts that made the tenant ineligible.”); cf.

Zimbelman v. Southern Nev. Reg’l Hous. Auth., 111 F. Supp. 3d 1148, 1151-55 (D.

10

Nev. 2015) (upholding PHA’s termination of lease of tenant living in property

leased by PHA, where tenant had been admitted to program but was later

determined to be registered sex-offender). Here too HUD argues that PHAs are

not merely authorized but instead required to evict in such circumstances. We

need not decide whether such eviction is merely authorized or instead required,

because either way federal law does not protect the interests of lifetime sex-

offender registrants who are erroneously admitted to the program. Third, private

property owners also apparently retain the authority to evict tenants on the ground

that they are lifetime sex-offender registrants. 24 C.F.R. §§ 5.851(b) (2017)

(noting that property owners “retain authority to terminate tenancy on any basis

that is otherwise authorized”), 982.310(a) (property owner may terminate tenancy

during term of lease based on “[v]iolation of federal, State, or local law that

imposes obligations on the tenant in connection with the occupancy or use of the

premises; or . . . [o]ther good cause”).

In sum, we conclude that federal law on balance undermines rather than

supports Mr. Bostic’s claim that he is entitled as a matter of federal law to remain

in the program even though he was admitted to the program in violation of federal

law. See generally Zimbelman, 111 F. Supp. 3d at 1155 (“ . . . Congress intended

to prohibit lifetime sex offender registrants from being in this public housing

11

program -- indeed, Congress passed 42 U.S.C. § 13663 to prohibit sex offender

registrants in housing programs. It would be absurd to conclude Congress intended

to prohibit terminating a lifetime sex offender registrant who mistakenly made it

into the system.”). We therefore hold that DCHA permissibly terminated Mr.

Bostic from the program.

In light of our holding that federal law permits DCHA, relying on 14 DCMR

§ 5804.1 (b), to terminate Mr. Bostic from the program, we need not and do not

decide whether federal law itself requires that DCHA do so. We note, however,

that the cases on which Mr. Bostic principally relies address the latter question --

whether federal law itself provides a basis for terminating lifetime sex-offender

registrants from the program -- rather than the question we decide today -- whether

federal law precludes a PHA from terminating such registrants from the program

based on provisions of local law. Miller v. McCormick, 605 F. Supp. 2d 296, 304-

13 (D. Me. 2009); Perkins-Bey v. Hous. Auth., No. 4:11CV310JCH, 2011 WL

939292, *2-4 (E.D. Mo. Mar. 14, 2011); Hous. Auth. v. Ali Kenyatta Bros., 2013

WL 3766903, at *4-8 (Conn. Super. Ct. June 21, 2013); Bonseiro v. New York City

Dep’t Hous. Pres. & Dev., No. 14793/11, 2012 WL 517198, *2-5 (N.Y. Sup. Ct.

Feb. 15, 2012).

12

III.

Mr. Bostic also argues that it would be impermissibly retroactive to apply 14

DCMR § 5804.1 (b) to him, because that regulation was promulgated years after

Mr. Bostic was admitted to the program. Mr. Bostic, however, did not properly

raise this claim before DCHA.

Before the Hearing Officer, Mr. Bostic argued primarily that 14 DCMR

§ 5804.1 was precluded by federal law. Although Mr. Bostic did argue that

terminating him from the program would be unfair under the circumstances, he did

not argue that the regulation could not lawfully be applied to him because it was

impermissibly retroactive. The Hearing Officer therefore understandably did not

address that issue. In his appeal to the Executive Director, Mr. Bostic once again

did not raise any retroactivity claim. The Executive Director therefore did not

address the issue.

Mr. Bostic did raise a retroactivity claim in a letter requesting

reconsideration of the Executive Director’s final decision. As Mr. Bostic

acknowledges, however, the DCHA regulations governing the informal-hearing

process do not provide for motions to reconsider the Executive Director’s decision.

13

14 DCMR § 8905 (2017). That may explain why, as far as the record reveals, the

Executive Director never responded to Mr. Bostic’s letter. In any event, even in

the context of formal motions for reconsideration, claims raised for the first time

on reconsideration are generally treated as forfeited. See, e.g., Jemison v. National

Baptist Convention, USA, Inc., 720 A.2d 275, 282 (D.C. 1998) (“[W]e conclude

that [appellant] waived [his argument] in this case by failing to raise it at any time

before filing the motion for reconsideration.”); BNSF Ry. v. Surface Transp. Bd.,

372 U.S. App. D.C. 1, 7, 453 F.3d 473, 479 (2006) (claim presented for first time

in motion to reconsider before Board “came too late to command the attention of

the Board, let alone that of this court”).

“In the absence of exceptional circumstances, a reviewing court will refuse

to consider contentions not presented before the administrative agency at the

appropriate time.” Goodman v. District of Columbia Rental Hous. Comm’n, 573

A.2d 1293, 1301 (D.C. 1990). We see no exceptional circumstances in this case.

Accordingly, we decline to address Mr. Bostic’s retroactivity argument on the

merits. We do note, however, our doubt that application of DCHA’s termination

regulation to Mr. Bostic impermissibly interfered with any legitimate interest of

Mr. Bostic, given that Mr. Bostic was originally admitted to the program in

violation of federal law.

14

IV.

For the foregoing reasons, the order of the DCHA is

Affirmed.