Aikens v. District of Columbia Department of Housing & Community Development

*720 NEBEKER, Associate Judge,

dissenting:

The majority concludes that the Department of Housing and Community Development’s (DHCD) termination of petitioner’s benefits violated due process. In my view, he has received an over-supply of due process and perhaps benefits to which he was not entitled. Because of an order of this court on December 5, 1984, petitioner has received monthly housing benefits since that month. 1 Apparently benefits were not paid from April to November 1984; that is the only period for which the majority has ordered reinstatement. It is the period which we use to compel agency rulemaking through, I might add, a constricted and erroneous view of the record. I therefore dissent.

Initially, the majority misapprehends the nature of petitioner’s claimed benefits. Petitioner received Section 8 housing assistance payments pursuant to a contract between DHCD and petitioner’s landlord. According to the DHCD’s Administrative Plan, a determination of the amount of housing assistance payments “shall be made annually as of the anniversary date of the lease and the HAP contract.” Administrative Plan, § III(M)(1). During the annual contract renewal, or recertification process, the recipient of benefits has the burden of showing continued eligibility before recertification can occur. Thus, petitioner is not automatically entitled to recer-tification; he must provide all required documents necessary to demonstrate continued eligibility before recertification can occur and the contract with DHCD can be renewed.

Secondly, the majority erroneously concludes that “petitioner was without notice that his failure to provide bank records at his October 28, 1983 interview — only eight days after first being requested to do so— would result in termination of his benefits.” Ante at 719. The record contradicts this conclusion. The Administrative Plan plainly states that “Failure of an assisted family to cooperate in providing information necessary [for] the required interim redeterminations is a ground for termination of assistance.” Administrative Plan, § III(N)(4). Furthermore, the Administrative Plan provides that “[i]f a participant comes for his/her recertification appointment and does not bring with him/her all necessary documents, he/she is advised what is needed to complete the process and is rescheduled.” Administrative Plan, § III(M)(6). In this case, petitioner was informed on September 22, 1983 that the Section 8 Housing Assistance Contract with his landlord would soon expire and that, to complete recertification, it would be necessary for him to provide documents verifying his current income at his October 20, 1983 recertification interview. Petitioner failed to provide the required documents at the October 20, 1983 interview; he was then given written notice of the documents that he needed to produce at the rescheduled interview on October 28, 1983. At the rescheduled interview, petitioner again failed to produce the required documents and thus was informed of his termination from the Section 8 program. Termination did not eventuate until April 1984.

Lastly, the majority reasons that the essence of petitioner’s due process claim is on the inadequate notice he was afforded to produce the required documents and that providing him only with days was “an exercise of ‘unfettered discretion.’ ” Ante at 719. Assuming, arguendo, that petitioner was not given adequate notice, on December 5,1984, we corrected any such deficien *721 cy by remanding the record “for a hearing before the respondent agency on the merits of petitioner’s claim to the benefits.. Order, No. 84-855 (Dec. 5, 1984). The majority’s attempt to sidestep the remedial effect of our December 5,1984 order blinks reality. A hearing was held on January 8, 1985 at which the hearing officer stated, “the purpose of this hearing is to determine the facts, to give statements of facts, and to reveal all pertinent information.” Tr. at 2, Jan. 8, 1985. We ordered the hearing on the merits, and petitioner had the burden of producing the documents he initially failed to produce on October 20 and again failed to produce on October 28. The majority’s statement that “at no time during the hearing did the Hearing Examiner renew DHCD’s request that Mr. Aikens provide documents verifying his bank accounts,” ante at 714 n. 6, is entirely unavailing because petitioner had notice, as early as September 22, 1983, of the documents he was required to produce and of the purpose of the hearing we ordered on remand.

Furthermore, it is important to note that petitioner’s counsel at the hearing proffered bank statements covering a time period subsequent to the initial recertification date. Of course, these documents were irrelevant because they did not cover the time period in question. Nevertheless, petitioner’s counsel decided that this proffer was sufficient by acknowledging “we’re agreeing that this satisfies our need for a hearing in this case.” Tr. at 12, Jan. 8, 1985. Thus, the relief the majority orders for petitioner is a fourth opportunity to proffer the documents that he was required to produce on October 20, 1983.

We should affirm the decision on remand because petitioner had abundant notice— over a year. We improperly reach back beyond our December 5, 1984 order in requiring rulemaking. That order remedied any deficiency in the 1983 process, and all that is before us is the merits of the March 1985 decision — an eminently correct one.

. On July 18, 1986, the Chief Deputy Clerk of this court, pursuant to my request, inquired of the Office of Corporation Counsel about what payments had been made to petitioner and for what period since December 1984. In a letter dated July 31, 1986, the Office of Corporation Counsel responded that Mr. Aikens has received housing assistance benefits "for every month from December 1984 to date.” No contrary facts are asserted.