Mathis v. District of Columbia Housing Authority ( 2015 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
Nos. 13-CV-1026 & 15-AA-740
STEVON MATHIS, APPELLANT,
V.
DISTRICT OF COLUMBIA HOUSING AUTHORITY, APPELLEE.
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)
(Argued November 5, 2014; Reargued June 2, 2015 Decided October 8, 2015)
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.
2
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 for the court by Associate Judge EASTERLY.
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
3
(―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.
4
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
5
comply with [his] Family Obligations in the Housing Choice Voucher Program.‖ 1
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),2 24 C.F.R. § 982.551 (l)
1
At the time Mr. Mathis received this notice, the definition of ―family
obligations‖ was set out in the DCHA‘s ―Administrative Plan.‖ DISTRICT OF
COLUMBIA HOUSING AUTHORITY, ADMINISTRATIVE PLAN FOR THE HOUSING
CHOICE VOUCHER PROGRAM, Ch. 17, at 102-03 (2003) (defining family
obligations). Among other things, families receiving vouchers were prohibited
from ―engag[ing] in drug-related criminal activity,‖ which is defined as ―felonious
use or possession (other than with intent to manufacture, sell or distribute), of a
controlled substance.‖ Id. at 103. Families were also required to ―[u]se the
dwelling unit solely for residence by the Family,‖ id., whose composition
ordinarily had to be ―approved by the PHA,‖ 24 C.F.R. § 982.551 (h)(2) (2015);
see also 24 C.F.R. § 982.4 (b) (2015) (defining family as ―[a] person or group of
persons, as determined by the PHA . . . approved to reside in a unit with assistance
under the program‖); but see infra note 5 (explaining when visitors will be
considered ―a member of the household‖).
DCHA regulations supplanted the Administrative Plan in 2012. See 14
DCMR §§ 4900-5999 (2012) (all current DCHA regulations for the HCVP).
2
Section 982.553 (c) authorizes termination of HCVP benefits if it is
established by a ―preponderance of the evidence‖ that a ―household member has
engaged in [criminal] activity, regardless of whether the household member has
been arrested or convicted for such activity.‖ See also ADMIN. PLAN, Ch. 17, at
104 (violation of family obligation may be established by ―preponderance of
evidence that the family, including any family member, is engaged in drug-related
criminal activity‖).
6
(2015),3 and 24 C.F.R. § 982.551 (h)(2) (2015).4 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
3
Section 982.551 (l) provides in pertinent part that ―[t]he members of the
household may not engage in drug-related criminal activity . . . that threatens the
health, safety, or right to peaceful enjoyment of other residents and persons
residing in the immediate vicinity of the premises (see § 982.553).‖
4
Section 982.551 (h)(2) provides in pertinent part that ―[t]he composition of
the assisted family residing in the unit must be approved by the PHA‖ and ―[n]o
other person [i.e., nobody but members of the assisted family] may reside in the
unit.‖
7
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‖5 for whose conduct Mr. Mathis could be
held liable.6
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.
5
Under the Administrative Plan, an adult visitor may stay in a dwelling unit
―for up to 30 days.‖ ADMIN. PLAN, Ch. 17, at 40. If an adult visitor exceeds this
limit, he or she ―will be considered a member of the household.‖ Id.
6
See supra notes 1 & 5. At the hearing, the DCHA also argued that Mr.
Mathis could be terminated for his own unspecified criminal drug activity. But as
the DCHA presented no evidence regarding this activity, and, as it did not
ultimately serve as a basis for the DCHA‘s final termination decision, we do not
detail or address this argument.
8
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.7 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.8 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
7
Counsel for the DCHA put in evidence both the returned warrant and the
supporting affidavit, which indicated that, ―[i]n the past 72 hours‖ before the
affiant drafted the affidavit on September 4, 2009, a confidential source employed
by the police had purchased drugs from the apartment. This affidavit contained no
identifying information as to the seller, other than to say he was a black male.
8
Counsel for the DCHA put in evidence Mr. Ratchford‘s arrest report. The
report lists the 36th Street apartment as Mr. Ratchford‘s address but does not
identify the source of that information. It also states that Mr. Ratchford was
charged with possession of heroin. The returned warrant identifying items
recovered from the search listed (1) a ―plastic ziploc bag containing a white rock
substance‖ (but gave no indication of size or weight) and (2) a ―plastic ziploc bag
containing a tan powder substance‖ (but again gave no indication of size or
weight).
9
September 11, 2009, that Mr. Ratchford was his brother, and that Mr. Ratchford
had stayed with him for an unspecified amount of time.9
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.10 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
9
The investigator specifically testified that Mr. Mathis told him that Mr.
Ratchford had been ―living with him for a period of time.‖ According to the
investigator‘s report (which was also admitted into evidence), however, Mr. Mathis
told the investigator only that Mr. Ratchford ―stay[ed] with him from time-to-
time,‖ and it appears from the Hearing Officer‘s findings of fact that the Hearing
Officer determined Mr. Mathis had made the latter statement, not the former.
10
Confirming this testimony, the DCHA put into evidence the docket from
Mr. Mathis‘s 2007 misdemeanor drug possession case that led to his 2009
probation violation. The DCHA did not present any evidence as to when Mr.
Mathis‘s jail term began or concluded. For his part, Mr. Mathis testified that he
began his jail term on August 28, 2009, but he inconsistently testified that he was
incarcerated until September 28, 2009, and that he had been incarcerated for 28
days (which would have made his release date September 25, 2009), suggesting
that he was unsure of the precise date range. Without explanation, the Hearing
Officer stated in her findings of fact that Mr. Mathis was incarcerated from August
28, 2009, through September 24, 2009.
10
this happened,‖ but then ―was locked up.‖11 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].‖12 Mr. Mathis testified that he had tried to get Mr. Ratchford to come to
the hearing, but had been unsuccessful.13
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
11
By the time he received his termination notice in October 2009, Mr.
Mathis had moved to a new apartment.
12
Mr. Mathis‘s testimony as to how and when he delivered the keys is
unclear, in large part because of poor transcription of the hearing. At one point,
the DCHA counsel asked him, ―[s]o did you give them keys to your unit?‖ Mr.
Mathis responded ―[y]eah, I (inaudible) to check on my house‖; but when the
Hearing Officer asked him to ―say that again,‖ Mr. Mathis said ―([i]naudible)
because I didn‘t have keys. After he got arrested and they took the – took the
apartment from, so I (inaudible) my keys (inaudible).‖
13
This is another portion of the transcript where much of what was said is
―inaudible,‖ but the Hearing Officer later stated in her Informal Hearing Decision
that Mr. Mathis had stated that he had difficulty ―track[ing] [Mr. Ratchford] down
because he did not know where [Mr.] Ratchford live[d].‖
11
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
12
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
13
timely exercised that right but gained no relief.14 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.15
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 incarcerated, and Mr.
Mathis was unaware of any other known address for his relative.
Because ―it appear[ed] that [Mr. Mathis‘s] relative resided in the home longer than
the 30-day period guests are afforded,‖ the Executive Director determined that ―the
Hearing Officer did not err in finding that Mr. Mathis[‘s]‖ relative was ―an
unauthorized occupant.‖
14
Mr. Mathis sent a letter requesting further review; in addition, his case
manager at Community Connections wrote the DCHA Officer of Fair Hearings. In
this letter, the case manager explained that Mr. Mathis had ―co-occurring
disorders‖ of mental illness and substance abuse and was currently receiving
treatment. The case manager provided her contact information and expressed a
hope ―that th[e] information will have some bearing on the outcome of the decision
to terminate‖ Mr. Mathis‘s participation in the HCVP.
15
See 14 DCMR § 8905.4 (―In the event of a request for [a] final decision
by the Executive Director, the Executive Director will render a final written
decision . . . .‖); see also 14 DCMR § 8905.3 (Hearing Officer‘s decision will not
―become final‖ if ―one of the parties . . . request[s] the Executive Director to
reconsider the proposed decision before issuing a final decision‖).
14
Moreover, the Executive Director determined that, because ―Mr. Mathis‘[s]
relative was an unauthorized family member,‖ the Hearing Officer properly
determined that Mr. Mathis could be held accountable for that relative‘s drug-
related criminal activity. The Executive Director stated that this was so whether or
not Mr. Mathis was aware of this activity, because a HCVP participant is strictly
liable for criminal drug activity by household members under 24 C.F.R. § 982.551
(l). In addition, the Executive Director reasoned that in light of Mr. Mathis‘s
―admi[ssion] that he was aware of the drug activity taking place in his building, . . .
it follows that he was or should have be well aware that his relative was also
engaging in illegal activity before he was arrested.‖
The Executive Director‘s final agency decision contained a notice at the
bottom informing Mr. Mathis it was ―not precedent setting for [the] DCHA or the
courts and cases thereafter taken to the Superior Court of the District of Columbia
are de novo, are not an appeal of an administrative decision, and are not based on
the record of the informal hearing.‖ A cover letter accompanying this decision
further informed Mr. Mathis that ―[t]his decision [did] not affect [his] right to due
process through the judicial system.‖
15
Notwithstanding the receipt of this ―final‖ decision, Mr. Mathis immediately
sought further review within the agency. In a letter addressed to the DCHA Office
of Fair Hearings, he asked to ―appeal the decision‖ he had just received, noting that
he ―struggle[d] with mental health problems as well as past drug abuse.‖ Mr.
Mathis asked the DCHA to ―send all paperwork regarding this matter to [his] case
manager . . . at the contact information below in order to keep track of the
information better.‖ Ignoring this request, the DCHA mailed a letter only to Mr.
Mathis informing him that the agency‘s decision was final and that he was not
entitled to further administrative review, but that ―this decision does not affect your
rights to due process through the judicial system.‖
Then nothing happened. More than two years passed during which time
DCHA continued to pay Mr. Mathis‘s housing benefits without further
communication to Mr. Mathis. It was not until April 2013 that DCHA sent Mr.
Mathis a notice advising him that, based on the ―DCHA‘s Final Decision on your
Informal Hearing . . . on 2/15/11[,] . . . [y]our assistance will be terminated
effective May, 31 2013.‖ The notice concluded that ―[t]his decision is final and no
further appeals are afforded to you by the [DCHA].‖
16
Mr. Mathis responded to this development by filing a pro se complaint in
Superior Court seeking ―[t]o overturn termination of houseing [sic] voucher on 5-
31-13.‖ At the only hearing in this matter,16 the Superior Court immediately
expressed skepticism that it had authority to vacate an administrative decision that
Mr. Mathis had not appealed. Mr. Mathis tried to explain that he had pursued an
appeal with DCHA and he ―thought [he] was doing the right thing,‖ by coming to
Superior Court. Meanwhile, counsel for the DCHA stated that it was her
understanding that Mr. Mathis ―could get a de novo review with the Superior
Court.‖ After much back and forth between the court and Mr. Mathis in which it
became clear that Mr. Mathis had limited ability to advocate for himself,17 the
court continued the case to give Mr. Mathis time to try to find counsel.
DCHA subsequently moved to dismiss Mr. Mathis‘s pro se complaint under
Super. Ct. Civ. R. 12 (b)(6) for failure to state a claim. The Superior Court granted
16
The hearing was ostensibly for the court to consider Mr. Mathis‘s request
for a temporary restraining order (TRO), but Mr. Mathis had to ask the court what
a TRO was.
17
Mr. Mathis mentioned at the hearing that he was receiving ―SSI‖ benefits,
i.e. Supplemental Security Income benefits, a federal income supplement for
financially eligible individuals who are elderly or have a disability. He also
indicated that he wanted his ―mental health people [to] get involved‖ and (again)
requested that DCHA communicate with his ―case worker.‖
17
the motion and in addition ruled that ―jurisdiction over appeals from decisions on
contested matters from the [DCHA] is vested in the District of Columbia Court of
Appeals,‖ citing the DCAPA and Powell v. District of Columbia Housing
Authority, 818 A.2d 188 (D.C. 2003). This appeal followed.
II. Jurisdictional Issues
This case comes to us as an appeal from Superior Court; that is where the
DCHA indicated Mr. Mathis should go when it notified him, pursuant to 14
DCMR § 8905.4 (a), of his right to seek judicial review of the Executive Director‘s
final agency decision to terminate his housing voucher. This notice
notwithstanding, the Superior Court determined that it did not have jurisdiction to
hear Mr. Mathis‘s original action because, under the DCAPA, this court has
exclusive jurisdiction whenever an individual seeks judicial review of an agency
decision arising out of a ―contested case.‖ In an unusual turn, Mr. Mathis and the
DCHA filed initial briefs in this court in which they both argued that the Superior
18
Court was incorrect, and Mr. Mathis‘s case should be remanded to Superior Court
to allow him to litigate his case.18
This court ordered supplemental briefing. Mr. Mathis argued in his
supplemental brief that this case was a contested case, properly routed directly to
this court under the DCAPA, and he subsequently filed a petition for review of the
DCHA‘s decision with this court. For its part, the DCHA continued to maintain in
its supplemental brief that it had properly directed Mr. Mathis to Superior Court to
seek judicial review of its voucher termination decision, but at oral argument it
conceded that this was a contested case ―for purposes of the Administrative
Procedure Act and this court‘s appellate jurisdiction.‖
18
Mr. Mathis acknowledged in his initial brief that ―the contention that [the
Court of Appeals] has jurisdiction over DCHA appeals has considerable force‖
because the ―DCHA‘s ‗informal hearings‘ regarding voucher terminations have all
the hallmarks of ‗contested cases‘ under the [DCAPA].‖ But this avenue appeared
closed to Mr. Mathis in light of a series of unpublished decisions by this court
relying on 14 DCMR § 8905.4 (a) and holding that the DCHA hearings were not
contested cases. Mr. Mathis observed that, lest the agency be left to operate
without any judicial oversight, he had to be able to seek judicial review
somewhere. See District of Columbia Housing Authority v. District of Columbia
Office of Human Rights, 881 A.2d 600, 608 (D.C. 2005) (―A strong presumption
exists in favor of judicial reviewability which may be rebutted only by clear and
convincing evidence of a contrary legislative intent.‖ (quoting Martin v. District of
Columbia Courts, 753 A.2d 987, 991 (D.C. 2000))). The only viable forum
appeared to be Superior Court.
19
This court has an independent obligation to confirm our jurisdiction, or lack
thereof, to hear an appeal from Superior Court and/or to entertain a petition for
review of an agency‘s decision. See Nunnally v. District of Columbia Metro.
Police Dep’t, 80 A.3d 1004, 1006 n.4 (D.C. 2013) (citing Murphy v. McCloud, 650
A.2d 202, 203 n.4 (D.C. 1994)). We now examine (1) whether this is a contested
case and (2) whether we may consider Mr. Mathis‘s untimely petition for review
so that we may reach the merits of his challenge to the DCHA‘s voucher
termination decision.
A. Whether the DCHA Administrative Proceedings Are Contested
Cases under the DCAPA
Whether a case is ―contested‖ and thus properly routed directly to this court
under the DCAPA is a question of law that we review de novo. See American
University in Dubai v. District of Columbia Educ. Licensure Comm’n, 930 A.2d
200, 207 & n.17 (D.C. 2007).
In the District of Columbia, ―[a]ny person suffering a legal wrong, or
adversely affected or aggrieved, by an order or decision of . . . an agency in a
contested case, is entitled to a judicial review thereof . . . upon filing in the District
of Columbia Court of Appeals a written petition for review.‖ D.C. Code § 2-510
20
(a); see D.C. Code § 11-722 (2012 Repl.) (―The District of Columbia Court of
Appeals has jurisdiction . . . to review orders and decisions of . . . any agency of
the District of Columbia . . . in accordance with the [DCAPA].‖). ―Where the
agency proceeding meets the definition of a ‗contested case,‘ judicial review is
exclusively in the District of Columbia Court of Appeals, not the Superior Court of
the District of Columbia.‖ Ne. Neighbors for Responsible Growth, Inc. v.
AppleTree Inst. for Educ. Innovation, Inc., 92 A.3d 1114, 1121 (D.C. 2014);
accord, 2348 Ainger Place Tenants Ass’n, Inc. v. District of Columbia, 982 A.2d
305, 308 (D.C. 2009) (―Where the [DCAPA] vests exclusive jurisdiction in this
court over review of administrative actions, the Superior Court may not maintain
concurrent jurisdiction.‖).
The DCAPA defines a ―contested case‖ as ―a proceeding before . . . any
agency in which the legal rights, duties, or privileges of specific parties are
required by any law (other than this subchapter), or by constitutional right, to be
determined after a hearing before the Mayor or before an agency.‖ D.C. Code § 2-
502 (8) (2012 Repl.). This court has distilled that definition into a two-part test: A
―contested case‖ is (1) ―a controversy involving a ‗trial-type‘ hearing that is
required‖ by the agency‘s enabling statute, its implementing regulations, or
constitutional right, and (2) which is an ―adjudicative, as opposed to a legislative,
21
determination.‖ Powell, 818 A.2d at 192-93 (citing Donnelly Assoc. v. District of
Columbia Historic Preservation Review Bd., 520 A.2d 270, 276 (D.C. 1987);
quoting Rones v. District of Columbia Dep’t of Housing & Community Dev., 500
A.2d 998, 1000 (D.C. 1985)).
Mr. Mathis‘s informal hearing before the DCHA concerned only the
propriety of the termination of his benefits and was indisputably adjudicative. See
Powell, 818 A.2d at 193 (explaining that an adjudicative determination assesses
―the rights of specific individuals‖ (quoting Donnelly, 520 A.2d at 278)). So the
only question we need closely consider is whether Mr. Mathis was legally entitled
to a ―trial-type‖ hearing. Cf. id. at 193 n.7 (explaining that whether an individual
in fact receives a trial-type hearing is ―irrelevant‖; the only question is legal
entitlement). We conclude that he was.
As we recognized in Powell, a trial-type hearing is one that incorporates
―due process protections such as representation by counsel, cross-examination of
adverse witnesses, [and] fact-finding by an impartial adjudicator.‖ Id. at 193. The
right to obtain pre-hearing discovery, and to make opening and closing arguments
are ―other accoutrements of a trial-type hearing.‖ See id. Pursuant to federal and
22
District of Columbia law, Mr. Mathis was entitled to all of these procedural
protections at his hearing before the DCHA.
Pursuant to federal statute, any PHA receiving funds for the HCVP program
such as the DCHA ―shall by regulation . . . establish and implement an
administrative grievance procedure under which tenants‖ must be given notice ―of
the specific grounds of any proposed adverse public housing agency action‖ and
―an opportunity for a hearing before an impartial party upon timely request.‖ See
42 U.S.C. § 1437d (k), (k)(1)-(2) (2013). In conjunction with that hearing, the
tenant must be given ―an opportunity to examine any documents or records or
regulations related to the proposed action.‖ Id. at § 1437d (k)(3). And at that
proceeding, the tenant is ―entitled to be represented by another person of their
choice at any hearing; . . . to ask questions of witnesses and have others make
statements on their behalf; and . . . to receive a written decision by the public
housing agency on the proposed action.‖ Id. at § 1437d (k)(4)-(6).
Federal regulations reinforce that so-called ―informal hearings‖ are required
when a PHA seeks to terminate a HCVP participant‘s voucher ―because of the
family‘s action or failure to act,‖ 24 C.F.R. § 982.555 (a)(1)(iv) (2015); see 24
C.F.R. § 982.555 (a)(2), and specify a tenant‘s procedural protections at such
23
hearings: a tenant has a right to examine relevant documents before the hearing, to
be represented by counsel, to have the case heard by someone other than a person
who made or approved the decision under review or a subordinate of this person, to
present evidence, and to question witnesses. See id. at § 982.555 (e)(2)-(5). These
regulations also provide that the individual who conducts the hearing ―must issue a
written decision,‖ stating the reasons therefor and using a preponderance of the
evidence standard for factual determinations. Id. at § 982.555 (e)(6).
Finally, DCHA regulations conform to federal statutory and regulatory
requirements. See 14 DCMR § 8902.1 (j) (2009) (notice and a hearing must be
provided when the agency seeks to ―[t]erminat[e] . . . assistance for any reason‖);
14 DCMR § 8903.4 (b) (2013) (prehearing discovery is required); 14 DCMR §
8904.1 (a)-(d) (2005) (at a hearing, a tenant has a right to examine documents, to
be represented by counsel, to present evidence and question witnesses, and to make
―written or oral objections to the DCHA‘s determination‖); 14 DCMR § 8904.3 (a
hearing must be held before an impartial adjudicator); 14 DCMR § 8904.4 (a)
(hearing ―shall concern only the issues for which the [tenant] has received notice in
24
conformance with subsection 8901.3‖);19 14 DCMR § 8905.1-8905.4 (requiring a
written decision by a Hearing Officer or, if further agency review is sought, by the
Executive Director).
Having determined that Mr. Mathis was legally entitled to an adjudicative,
trial-type hearing, we conclude that the test for what constitutes a contested case
deserving of this court‘s review has been met in this case. There is the matter,
however, of 14 DCMR § 8905.4 (a), which directs DCHA to give notice to HCVP
participants that a final adverse decision by the DCHA is ―not precedent setting for
DCHA or the courts and cases thereafter taken to Superior Court . . . are [to] be
tried de novo.‖ The DCAPA excludes from the definition of ―contested case‖
―[a]ny matter subject to a subsequent trial of the law and the facts de novo in any
court.‖ D.C. Code § 2-502 (8)(A). But we do not construe 14 DCMR § 8905.4
(a), an agency regulation, as purporting to confer upon Superior Court jurisdiction
over cases that would otherwise come to this court, an action that would seem to
far exceed the DCHA‘s authority.20 Rather, like the parties, we interpret this
19
The reference to subsection 8901.3 is in error as there is no such
subsection; the correct citation appears to be 14 DCMR § 8903.1, which addresses
notice requirements.
20
Congress retains exclusive legislative authority to define the jurisdiction
of the District of Columbia courts, D.C. Code § 1-206.02 (a)(4) (2012 Repl.), and
(continued . . .)
25
regulation merely to direct that notice of judicial review be provided. We highlight
that the regulation requires the DCHA to supply HCVP participants with incorrect
or at least misleading information, see infra at Part II.B.2, and we trust that the
agency will amend it without delay.
B. Whether this Court has the Authority to Entertain Mr. Mathis’s
Untimely Petition for Review and Reach the Merits of His Case
Because this case was a contested case, it should not have been routed
through Superior Court, and we affirm the Superior Court‘s determination that it
lacked jurisdiction. But that does not end our analysis. During the pendency of
this appeal, Mr. Mathis filed a petition for review of DCHA‘s voucher termination
decision pursuant to D.C. App. R. 15 (a)(2) (―Rule 15‖). Rule 15 generally
requires a petition for review to be filed within thirty days of notice of the adverse
( . . . continued)
in the DCAPA, Congress directed that contested cases from agency proceedings be
routed to this court. D.C. Code § 2-510 (a); see AppleTree Inst., 92 A.3d at 1121
(―Where the agency proceeding meets the definition of a ‗contested case,‘ judicial
review is exclusively in the District of Columbia Court of Appeals, not the
Superior Court of the District of Columbia.‖).
Meanwhile, the DCHA‘s enabling statute limits its power to ―adopt and
implement administrative procedures‖ by stating that they ―shall be in compliance
with [the DCAPA],‖ D.C. Code § 6-203 (12) (2012 Repl.), and specifies that
DCHA‘s ―[e]xercise‖ of ―power‖ cannot ―conflict with the laws of the District,‖
such as the DCAPA, id. at § 6-203 (22).
26
decision. Thus, we must examine whether the timing requirements of Rule 15 may
be equitably tolled and, if so, whether equitable tolling is warranted in this case.
1. Whether the Timing Requirement of Rule 15 May Be
Equitably Tolled
Whether the timing requirements of Rule 15 may be equitably tolled turns
on whether the rule is a ―jurisdictional‖ rule or a ―claim-processing‖ one.
Jurisdictional rules may not be tolled, because noncompliance deprives this court
of jurisdiction even to consider equitable arguments; claim-processing rules, on the
other hand, may be tolled if equity compels such a result. See Neill v. District of
Columbia Public Employee Relations Bd., 93 A.3d 229, 238 (D.C. 2014),
(explaining that claim-processing rules ―may be relaxed or waived‖).21
21
The DCHA has never addressed, much less contested, the propriety of
equitable tolling in this case even though Mr. Mathis argued in his initial brief to
this court that, if judicial review of the DCHA‘s decision terminating his voucher
should have been sought in this court, this court should equitably toll Rule 15‘s
thirty-day filing deadline. We may not treat this issue as conceded, however,
because of its jurisdictional implications. ―Where a substantial question exists as
to this court‘s subject matter jurisdiction, it is our obligation to raise it, sua sponte,
even though, as here, no party has asked us to consider it.‖ Neill, 93 A.3d at 237
n.35 (quoting In re D.M., 771 A.2d 360, 364 (D.C. 2001)).
27
The dividing line between jurisdictional and claim-processing rules has been
in flux over the last decade. The Supreme Court, whose jurisprudence on this issue
we follow,22 has made clear that ―a rule should not be referred to as jurisdictional
unless it governs a court‘s adjudicatory capacity, that is, its subject-matter or
personal jurisdiction.‖ Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428,
435 (2011). Furthermore, the Court has made clear that stringent requirements
must be satisfied for a rule to have the effect of automatically stripping a court of
―jurisdiction‖ in this sense.
Preliminarily, the Supreme Court has clarified that only a statute and not
court rules may alter the ―classes of cases . . . falling within a court‘s adjudicatory
authority.‖ Kontrick v. Ryan, 540 U.S. 443, 452-53, 455 (2004); accord Bowles v.
Russell, 551 U.S. 205, 210 (2007) (―[B]ecause ‗[o]nly Congress may determine a
lower federal court‘s subject-matter jurisdiction,‘ it was improper for courts to use
‗the term jurisdictional to describe emphatic time prescriptions in rules of court.‘‖
(internal citations omitted) (quoting Kontrick, 540 U.S. at 452, 454)).
22
See, e.g., Gatewood v. District of Columbia Water & Sewer Authority, 82
A.3d 41, 47 (D.C. 2013); Smith v. United States, 984 A.2d 196, 200-01 (D.C.
2009).
28
Even more recently, in Sebelius v. Auburn Regional Med. Ctr., 133 S. Ct.
817, 824 (2013) and United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1632
(2015), the Supreme Court has made clear that the modern ―bright line‖ default,
Auburn, 133 S. Ct. at 824, is that procedural rules, even those codified in statutes,
are ―nonjurisdictional in character.‖ Id. (quoting Arbaugh v. Y&H Corp., 546 U.S.
500, 515-16 (2006)). Filing deadlines in particular are ―‗quintessential claim-
processing rules,‘‖ which ‗seek [only] to promote the orderly progress of
litigation,‘‖ and generally do not have jurisdictional force. Wong, 135 S. Ct. at
1632 (quoting Henderson, 562 U.S. at 435). Such rules ―cabin a court‘s power
only if Congress has ‗clearly state[d]‘ as much.‖ Wong, 135 S. Ct. at 1632 (quoting
Auburn, 133 S. Ct. at 824). In order to ―imbue[] a procedural bar with
jurisdictional consequences,‖ the legislature ―must do something special.‖ Id. It is
not enough that the legislature articulated the deadline using ―mandatory‖
language. Id. Rather, a deadline is not jurisdictional unless ―traditional tools of
statutory construction [] plainly show‖ that the legislature meant for
noncompliance with the deadline to have jurisdictional consequences. Id.
(emphasis added); see Auburn, 133 S. Ct. at 824 (explaining that courts must
inquire whether the legislature ―has ‗clearly state[d]‘ that the rule is
jurisdictional‖).
29
This court has since endorsed this ―bright line‖ divide between jurisdictional
and claim-processing rules. Neill, 93 A.3d at 238 n.37 (citing Auburn for the
proposition ―that even statutory restrictions governing the cases courts may hear
are not to be deemed jurisdictional unless the intent of the legislature is clear‖);
Gatewood, 82 A.3d at 47 (explaining that this court‘s ―more nuanced examination‖
of whether a rule ―is truly jurisdictional or merely a ‗claim-processing‘ rule‖ is
grounded in ―recent Supreme Court decisions‖ including Auburn). But in the
midst of this sea change in how Supreme Court delimits jurisdictional rules—after
Kontrick (2004), Bowles (2007), and Henderson (2011), but before Auburn (2013)
and Wong (2015)—this court decided Capitol Hill Restoration Society v. District
of Columbia Mayor’s Agent for Historic Preservation, 44 A.3d 271 (D.C. 2012),
addressing whether the timing requirements of Rule 15 could be equitably tolled.
Acknowledging the issue was subject to ―some question,‖ id. at 277, this court
concluded that Rule 15 could not be equitably tolled because it was a jurisdictional
rule. Id. We reasoned that because ―the applicable provision of the [DC]APA . . .
provides that ‗[a] petition for review shall be filed in such Court within such time
as such Court may by rule prescribe,‘ D.C. Code § 2-510 (a) (emphasis added), the
time for appeal provided in Rule 15 acquires the force of a statutory jurisdictional
mandate.‖ Id.
30
In deciding Capitol Hill Restoration Society, we did not anticipate Auburn or
Wong, and our characterization of Rule 15 as a jurisdictional rule cannot be
squared with those decisions. As discussed above, see supra at Part II.A, D.C.
Code § 2-510 (a) of the DCAPA generally provides that this court has exclusive
jurisdiction to review contested cases. These jurisdictional provisions are located
in the first sentence of § 2-510 (a), assigning review of contested cases to this
court,23 and in the sixth sentence of § 2-510 (a), providing that ―[u]pon the filing of
a petition for review, the Court shall have jurisdiction of the proceeding.‖24
Notably, the sixth sentence does not require the filing of a ―timely‖ petition for
jurisdiction to attach.
Meanwhile, the timing provision in the fourth sentence of § 2-510 (a) gives
no indication that it has jurisdictional import. It states simply that a ―petition for
review shall be filed in such Court within such time as such Court may by rule
prescribe . . . .‖ D.C. Code § 2-510 (a) (emphasis added). Under Auburn and
Wong, this language does not ―imbue‖ Rule 15 with the force of a statutory
23
D.C. Code § 2-510 (a) (―Any person suffering a legal wrong, or adversely
affected or aggrieved, by an order or decision of . . . an agency in a contested case,
is entitled to a judicial review thereof . . . upon filing in the District of Columbia
Court of Appeals a written petition for review.‖).
24
Id.
31
jurisdictional mandate. To the contrary, plainly read, the DCAPA takes no
position on issues of timeliness and delegates all decisions about timeliness to our
court, including, apparently, the decision to have no time limits at all. Cf.
Gatewood, 82 A.3d at 48 (observing that ―the Council for the District of Columbia
did not force [the agency‘s internal filing deadline] upon the agency‖ and because
―the regulation‘s deadline [wa]s a self-imposed restriction, [it] b[ore] the indicia of
a claim-processing rule‖).
In the absence of a clear statement of legislative intent to make Rule 15‘s
thirty-day filing deadline jurisdictional, as required by Auburn and Wong, we hold
that this deadline is not a jurisdictional rule, that Capitol Hill‘s pronouncement to
the contrary does not bind us,25 and that, as a claim-processing rule, Rule 15‘s
thirty-day filing deadline is subject to equitable tolling.26
25
―M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C. 1971), does not oblige us to
follow, inflexibly, a ruling whose jurisprudential basis has been ‗substantially
undermined‘ by subsequent Supreme Court decisions.‖ Smith, 984 A.2d at 200
(citing Lee v. United States, 668 A.2d 822, 828 (D.C. 1995)). By departing from
earlier precedent regarding the division between jurisdictional and claim-
processing rules, we act consistently with our decisions in Smith and Gatewood, 82
A.3d at 47 nn.25 & 26, 48 (concluding that recent Supreme Court decisions,
including Auburn, ―substantially undermine our former approach to administrative
agency deadlines‖).
26
Our colleague concurring in the determination that Rule 15‘s filing
deadline may be equitably tolled in this case argues that we should avoid
(continued . . .)
32
( . . . continued)
overruling Capitol Hill Restoration Society and resolve this case on ―narrower
grounds,‖ specifically, by looking to ―the unique-circumstances doctrine‖ to
decline to enforce Rule 15‘s thirty-day time limit. But the Supreme Court held in
Bowles that truly jurisdictional timing rules cannot be tolled using this
doctrine. 551 U.S. at 214 (―Because this Court has no authority to create equitable
exceptions to jurisdictional requirements, use of the ‗unique circumstances‘
doctrine is illegitimate.‖); see also id. (overruling two half-century-old Supreme
Court decisions ―to the extent they purport to authorize [this] exception to a
jurisdictional rule‖).
Aware of Bowles, our colleague explains that we do not actually have to
endorse and apply the unique circumstances doctrine. Instead, our colleague
asserts, we can review Mr. Mathis‘s case even as we hold the law in a state of
suspension, recognizing that either (a) the possibly defunct unique-circumstances
doctrine would forgive his failure to meet a jurisdictional filing deadline, or (b)
Rule 15 is not in fact a jurisdictional rule, even though we previously said it was.
Our colleague‘s desire to actively preserve legal limbo as to a question concerning
our jurisdiction is not justified by our practice of avoiding advisory opinions. Just
the opposite, we have an obligation to raise jurisdictional questions, see note 21
supra, and resolve them, see, e.g., Neill, 93 A.3d at 239 (holding that Rule 1
addressing case captioning is only a claim processing rule, not a jurisdictional
rule), because ―without jurisdiction, the Court cannot proceed at all in any cause,‖
In re D.M., 771 A.2d at 364 (internal quotation and citations omitted).
Furthermore even our colleague does not truly decide not to decide, because he
admits that there is a possible third route forward—relying on Bowles to overrule
the unique-circumstances doctrine while still preserving Capitol Hill Restoration
Society’s view of Rule 15 as jurisdictional—but then determines (correctly in my
view) that this route would be ―doctrinally unwarranted‖ and ―unfair.‖
Any debate about when this court should exercise its authority as expositor
of the law is academic, however, because we have already effectively resolved the
questions our colleague seeks to avoid resolving. As discussed above, Bowles,
Auburn, and Wong are all part of the same seam of Supreme Court precedent that
this court has relied upon to reconceive the divide between jurisdictional and
claim-processing rules. And our reconception of that divide in accordance with
Supreme Court precedent compels not only the conclusion that Rule 15 is not a
jurisdictional rule, but also that the unique-circumstances doctrine cannot serve as
the foundation for our decision to review Mr. Mathis‘s petition for review.
33
2. Whether Equitable Tolling is Warranted
Whether Rule 15‘s thirty-day filing deadline should be tolled in this case is a
fact-specific question that turns on our balancing the fairness to both parties. We
have said that ―equity aids the vigilant,‖ and have indicated that whether a timing
rule should be tolled turns on whether there was unexplained or undue delay and
whether tolling would work an injustice to the other party. Simpson v. District of
Columbia Office of Human Rights, 597 A.2d 392, 403-04 (D.C. 1991). There is no
unexplained or undue delay in this case, and we discern no prejudice to the DCHA
if we were to reach the merits of Mr. Mathis‘s untimely filed petition for review.
Mr. Mathis‘s failure to file a timely petition for review after the DCHA
issued its final decision is wholly attributable to the DCHA‘s failure to give him
proper notice regarding his right to judicial review. As we have explained, see
supra at Part II.A, because the proceedings before the DCHA constituted a
contested case, the DCHA should have informed Mr. Mathis that he had thirty days
to file a petition for review directly with this court. It did not do this. Instead, it
34
gave him notice indicating that, if he wanted judicial review of the agency‘s
decision, he would have to commence an original action in Superior Court.27
Demonstrating that he did want to contest the agency‘s decision but that he,
as a pro se litigant, did not understand what he was supposed to do next, Mr.
Mathis initially tried to internally ―appeal‖ the DCHA‘s final agency decision by
sending a letter to the Executive Director. In that letter, sent two weeks after the
issuance of the final agency decision, he indicated that he was struggling with
―mental health problems as well as past drug abuse‖ and he asked that ―all
paperwork regarding this matter‖ be sent to his case manager. In response, the
agency sent a letter (only to Mr. Mathis) notifying him that its decision was final
and giving him vague direction that he had ―rights to due process through the
judicial system.‖ Again, DHCA failed to direct Mr. Mathis to this court, much less
inform him of the limited timeframe to petition for review under Rule 15.
27
The final sentence of the DCHA Executive Director‘s decision reads as
follows:
This final decision of the District of Columbia Housing Authority
(DCHA) is not precedent setting for DCHA or the courts, and cases
thereafter taken to the Superior Court of the District of Columbia are
de novo, are not an appeal of an administrative decision, and are not
based on the record of the informal hearing.
This notice tracked the language of 14 DCMR § 8905.4 (a), which we have now
determined requires the agency to provide incorrect notice. See supra at Part II.A.
35
Notably, when Mr. Mathis subsequently filed a timely action in Superior
Court,28 the Superior Court judge identified its lack of jurisdiction sua sponte.
Although the DCHA had sought to dismiss Mr. Mathis‘s suit, it did so not on
jurisdictional grounds. Instead the DCHA invoked Rule 12 (b)(6) of the Superior
Court Rules of Civil Procedure and argued that Mr. Mathis had failed in his pro se
complaint to state a claim upon which relief could be granted. It appears
(particularly in light of its briefing to this court siding with Mr. Mathis on the issue
of whether the trial court properly dismissed his case for lack of jurisdiction) that
the DCHA believed the Superior Court did have jurisdiction over Mr. Mathis‘s
case and that he had properly and timely sought judicial review in that forum.
Given that even the DCHA was confused about where Mr. Mathis could seek
judicial review, we cannot fault Mr. Mathis, proceeding pro se, for not
28
For unknown reasons, DCHA waited over two years, from February 2011
to April 2013, to notify Mr. Mathis that it would terminate his voucher payments in
May 2013. It appears that receipt of this notice is what prompted Mr. Mathis to
file weeks later his pro se complaint ―[t]o overturn termination of houseing [sic]
voucher on 5-31-13,‖ and that he may have been confused that the agency was still
reviewing his case. In any event, his action was still well within the applicable
statute of limitations, see District of Columbia Housing Authority, 881 A.2d at
608-09 (―[W]here no court rule or statute specifies the time for filing a petition for
review of an agency determination, the time for filing is governed by D.C. Code §
12-301 (8) [(2012 Repl.)], which provides a three-year limitations period for any
action for which ‗a limitation is not otherwise specially prescribed.‘‖ (quoting
Simpson, 597 A.2d at 400)), and we cannot say that he slept on his rights during
this time.
36
appreciating that he had a right and an obligation to come to this court to seek
judicial review within thirty days of the DCHA‘s final decision to terminate his
voucher and for pursuing relief in Superior Court instead. Cf. Simpson, 597 A.2d
at 402 (declining to ―retroactively require [the appellant] to have obtained a crystal
ball many years earlier and to have predicted . . . the development of this court‘s
‗contested case‘ jurisprudence‖).
Nor can we identify undue or unexplained delay after Mr. Mathis obtained
counsel to assist him in his appeal of the Superior Court‘s order dismissing his
case. To the contrary, it was counsel for Mr. Mathis who alerted this court in its
initial brief to the fact that the ―DCHA‘s ‗informal hearings‘ regarding voucher
terminations have all the hallmarks of ‗contested cases‘ under the [DCAPA]‖ and
so noted that the contention that Mr. Mathis‘s case should have come directly to
this court had ―considerable force.‖ But counsel also noted that this court had
issued a number of unpublished decisions holding otherwise. Thus, counsel
reasonably argued in Mr. Mathis‘s initial brief (as did the DCHA) that the Superior
Court was wrong and that Mr. Mathis had properly filed an original action in
Superior Court. Even so, counsel argued that if this court in fact had jurisdiction to
review the DCHA‘s informal hearings directly, then we ―should permit Mr. Mathis
to petition for appellate review.‖ And, as soon as it became clear that there was a
37
possibility that this court might hold (as it now does) that this case was a contested
case, counsel for Mr. Mathis filed a petition for review.
In sum, Mr. Mathis has diligently sought to challenge the DCHA‘s decision
since the time it was issued. The notice the DCHA provided him about his right to
judicial review was at best ambiguous and at worst misleading.29 Mr. Mathis
pursued the only avenue that he reasonably understood was available to him: to go
to Superior Court. And as soon as he became aware that this court‘s direct review
of the agency‘s decision was a possibility, he filed a petition for review.
On the other side of the ledger, we discern no prejudice that would flow to
the DCHA if we were to toll Rule 15‘s timing requirement and reach the merits of
this case. The DCHA fully briefed and argued the merits issue in supplemental
briefing and at a second oral argument. At no time did it indicate it had been
hampered in doing so by the passage of time.
29
See Capitol Hill, 44 A.3d at 277 (explaining that ―[i]n those cases where
we have applied the principle of construing ambiguity against the agency, the
ambiguity . . . has been attributable to some action on the part of the agency that
misled the appellant‖).
38
Accordingly, we conclude that it is appropriate under the circumstances to
equitably toll the deadline under Rule 15 for Mr. Mathis to file a petition for
review.
III. The Propriety of the DCHA’s Voucher Termination Decision
Having resolved that this court is the proper forum for review of the
Executive Director‘s final agency decision to terminate Mr. Mathis‘s voucher and
that we can and should consider his untimely petition for review of that decision,
we turn to the merits of Mr. Mathis‘s petition. Mr. Mathis makes two arguments:
(1) the Executive Director‘s decision that Mr. Ratchford was an unauthorized
household member was not supported by the factual findings made by the DCHA
Hearing Officer, and (2) the Executive Director terminated Mr. Mathis based on
conduct (by Mr. Ratchford) not included in the notice of termination. Because we
agree with Mr. Mathis‘s first argument, we do not address the second.
This court‘s review in contested cases of agency decision-making is
generally deferential. When a challenge is made to the evidentiary basis for an
agency‘s decision-making, ―[a]n agency‘s findings of fact are conclusive on this
court unless unsupported by substantial evidence in the record.‖ Proulx v. Police
39
& Firemen’s Ret. & Relief Bd., 430 A.2d 34, 35 (D.C. 1981) (internal quotation
marks omitted); D.C. Code § 2-510 (a)(3)(E) (directing this court to examine
whether the agency decision is ―[u]nsupported by substantial evidence in the
record‖). We have previously explained that ―[s]ubstantial evidence is relevant
evidence such as a reasonable mind might accept as adequate to support a
conclusion.‖ District of Columbia Appleseed Ctr. for Law & Justice, Inc. v.
District of Columbia Dep’t of Ins., Sec., & Banking, 54 A.3d 1188, 1216 (D.C.
2012) (internal quotation marks omitted).
In the DCHA‘s final decision, the Executive Director determined that Mr.
Mathis‘s voucher could be terminated both because he had an ―unauthorized
family member‖ living with him and because he was responsible for Mr.
Ratchford‘s drug-related criminal activity,30 which required a showing that Mr.
30
It is unclear whether the DCHA presented sufficient evidence that Mr.
Ratchford engaged in ―drug-related criminal activity,‖ a term of art under the
Administrative Plan which refers to ―felonious‖ conduct. See ADMIN. PLAN, Ch.
17 at 103; supra note 1. It appears from his arrest report that Mr. Ratchford was
only arrested with one count of misdemeanor possession of heroin; and, although
the return on the search warrant of Mr. Mathis‘s apartment indicated that the police
recovered one ziploc bag containing crack cocaine and one ziploc bag containing
heroin, no indication is given as to the size or weight of the bags. We bypass this
issue, however, since we determine that the DCHA presented insufficient evidence
to establish that Mr. Mathis could be held responsible for Mr. Ratchford‘s conduct,
whatever its gravity.
40
Ratchford had acquired status as a ―family‖ or ―household‖ member.31 To
establish that Mr. Ratchford was an unauthorized ―family‖ or ―household‖
member, the DCHA had to show by a preponderance of the evidence32 that Mr.
Ratchford had stayed in Mr. Mathis‘s apartment for more than thirty days. The
Hearing Officer, who bore the responsibility to resolve factual disputes and make
the necessary factual findings for the agency,33 did not make such a finding, it
appears, because she could not.
31
See 24 C.F.R. § 982.551 (l) (―The members of the household may not
engage in drug-related criminal activity . . . .‖) (emphasis added); 24 C.F.R. §
982.553 (b)(1)(i)(A) (termination of HCVP assistance permitted if ―[a]ny
household member is currently engaged in any illegal use of a drug‖) (emphasis
added); 24 C.F.R. § 982.553 (c) (―The PHA may terminate assistance for criminal
activity by a household member . . . .‖) (emphasis added); see also ADMIN. PLAN,
Ch. 17, at 103 (―Family must not engage in drug-related criminal activity.‖)
(emphasis added).
32
See D.C. Code § 2-509 (b) (2012 Repl.) (―In contested cases . . . the
proponent of a rule or order shall have the burden of proof.‖); ADMIN. PLAN, Ch.
17, at 104-05 (setting forth a preponderance standard for the DCHA‘s denial or
termination of assistance decisions); see also 24 C.F.R. § 982.555 (e)(6) (―Factual
determinations relating to the individual circumstances of the family shall be based
on a preponderance of the evidence presented at the hearing.‖).
33
14 DCMR § 8905.1 (b) (requiring the Hearing Officer to make ―[f]actual
determinations relating to the individual circumstances of the participant or
applicant based on a preponderance of the evidence and testimony presented at the
informal hearing‖); 14 DCMR § 8905.4 (assigning reviewing authority to the
Executive Director but not the power to make new factual findings).
41
The Hearing Officer imprecisely determined that Mr. Ratchford was an
―unauthorized occupant‖ based on the fact that Mr. Mathis‘s address was listed as
Mr. Ratchford‘s home address on Mr. Ratchford‘s arrest report. But, even if Mr.
Ratchford told the police on the day of his arrest that he lived there (but see note 8
supra), that statement did not resolve whether Mr. Ratchford had been residing in
the apartment for more than thirty days. The Hearing Officer also determined only
that there was circumstantial evidence that Mr. Mathis ―expect[ed]‖ Mr. Ratchford
to stay in his apartment for a month. (emphasis added). Mr. Mathis‘s expectations
were hardly dispositive, but in any event the Hearing Officer‘s four-point
foundation for her findings about those expectations was flawed and did not
establish that Mr. Ratchford resided in Mr. Mathis‘s apartment for over thirty days
so as to become an unauthorized family or household member.34
First, the Hearing Officer noted that Mr. Mathis ―admitted he is unaware of
any known address for [Mr.] Ratchford,‖ the implication being that he must have
known that Mr. Ratchford was using his apartment as his own residence because
34
The Executive Director seemed to think that two of these points had
served as adequate foundation for the Hearing Officer‘s conclusion that Mr.
Ratchford had resided in Mr. Mathis‘s apartment for more than thirty days and thus
that he was an ―unauthorized family member.‖ As we explain, they did not and
could not.
42
he knew that Mr. Ratchford had no other. But when Mr. Mathis indicated that he
did not know where Mr. Ratchford lived, he was referring to the state of his
knowledge at the time of the hearing in April 2010, seven months after Mr.
Ratchford‘s arrest and after Mr. Mathis had moved to a different apartment: he
was explaining why he had been unable to get Mr. Ratchford to come to the
hearing to testify. See supra note 13. This ―unaware[ness] of any known address
for [Mr.] Ratchford‖ had no bearing on whether Mr. Ratchford stayed in Mr.
Mathis‘s apartment for more than thirty days in the fall of 2009.
Second, the Hearing Officer noted that Mr. Mathis had given Mr. Ratchford
a key, but this fact would not establish that Mr. Ratchford had resided in Mr.
Mathis‘s apartment for more than thirty days. At the very least, there would need
to be evidence as to when the key was conveyed such that one could discern when
Mr. Ratchford first gained entry. There was none. At oral argument, counsel for
the DCHA suggested that Mr. Mathis must have given Mr. Ratchford a key before
he began the jail term for his probation violation, but at Mr. Mathis‘s hearing, in an
otherwise poorly-transcribed response to the question, ―[s]o did you give them
[the] keys to your unit,‖ Mr. Mathis testified clearly that ―I didn‘t have keys.‖
43
Third and fourth, the Hearing Officer noted that Mr. Mathis ―was aware of
the chronic illegal activity in his building and had reported the same to his
landlord,‖ and that he ―had been burglarized.‖ But the fact that Mr. Mathis had
reason to be concerned about the security of his apartment did not establish that he
expected Mr. Ratchford to live there for more than thirty days and was consistent
with his explanation that he had asked Mr. Ratchford to check on his apartment
while he was in jail.
In short, the Hearing Officer did not identify any sound reasons for a
determination that Mr. Ratchford had in fact resided in Mr. Mathis‘s apartment for
more than thirty days, thus making him an unauthorized family or household
member for whose conduct Mr. Mathis could be held accountable. Indeed,
implicitly conceding that she lacked the evidentiary foundation to make this
determination, she ultimately punted on this critical finding of fact: Even as the
Hearing Officer determined that Mr. Mathis had ―violated his family obligations‖
based on Mr. Ratchford‘s ―activity,‖ she described Mr. Ratchford as a ―guest[]‖ in
Mr. Mathis‘s apartment, instead of classifying him a ―household‖ or ―family‖
member.
44
For our part, examining the record as a whole, we cannot see a substantial,
reasonable basis for a determination that Mr. Ratchford resided in Mr. Mathis‘s
apartment for more than thirty days and thus became a ―household‖ or ―family‖
member for whom Mr. Mathis became responsible. There is evidence that Mr.
Ratchford was arrested at Mr. Mathis‘s apartment on September 11, 2009.35 And
there is evidence that the DCHA investigator later saw Mr. Ratchford at the
apartment on October 7, 2009.36 But even if one were to assume Mr. Ratchford
continuously resided in the apartment between those dates (which presumably he
did not, given his September 11 arrest), that does not add up to thirty days.
Because the DCHA‘s determination that Mr. Ratchford was an
―unauthorized family member‖ was not supported by the agency‘s factual findings
or substantial evidence in the record, the agency lacked a valid foundation for
35
Drugs were purchased from the apartment before that date, but it is
unclear when and the identity of the seller is unknown. See supra note 7.
Certainly there is no evidence that Mr. Ratchford was present, much less residing,
at the apartment before Mr. Mathis commenced his jail term for his probation
violation, and thus there is no factual foundation for the Executive Director‘s
determination that Mr. Mathis should have connected Mr. Ratchford to criminal
drug activity in Mr. Mathis‘s building from that earlier time.
36
Mr. Mathis‘s subsequent conversation with the investigator on October
13, 2009, about Mr. Ratchford‘s presence in his apartment does not support a
determination that Mr. Ratchford resided there for more than 30 days. The hearing
officer found that Mr. Mathis had only (vaguely) ―acknowledged that his brother
did stay with him from time to time.‖ See note 9 supra.
45
terminating Mr. Mathis‘s voucher. We thus reverse that termination decision and
remand to the DCHA for Mr. Mathis‘s housing benefits to be reinstated.
So ordered.
MCLEESE, Associate Judge, concurring in part and dissenting in part: I
agree that the proceeding before the District of Columbia Housing Authority
(DCHA) in this case was a contested case and that the DCHA‘s ruling is properly
reviewed in this court. I therefore join Part II.A. of the opinion for the court.
I also agree that Mr. Mathis‘s petition for review is not time-barred, but I
would rest that conclusion on narrower grounds. The opinion for the court holds
that the time limits applicable to petitions for review in this court are not
jurisdictional. As the opinion for the court acknowledges, however, this court held
the opposite only three years ago, in Capitol Hill Restoration Society v. District of
Columbia Mayor’s Agent for Historic Preservation, 44 A.3d 271, 277 (D.C. 2012).
The opinion for the court may well be correct that subsequent Supreme Court cases
have drawn into question our holding in Capitol Hill Restoration Society, but I am
46
reluctant to decide that issue unnecessarily. The issue has not been briefed by the
parties, and we can rule more narrowly.
Under the unique-circumstances doctrine, this court has refused to enforce
otherwise jurisdictional time limits if the party seeking review was affirmatively
misled by the authorities about where or when to seek review. See, e.g., Frazier v.
Underdue-Frazier, 803 A.2d 443, 444-45 (D.C. 2002) (unique-circumstances
doctrine permits court of appeals to treat untimely notice of appeal as timely, even
if time limit is mandatory and jurisdictional, if untimeliness resulted from
reasonable reliance on affirmatively misleading action of trial court) (citing cases);
Pierola v. Moschonas, 687 A.2d 942, 945-47 (D.C. 1997) (same). That doctrine
seems a perfect fit for the circumstances of this case. First, the applicable DCHA
regulation directed Mr. Mathis to Superior Court. See 14 DCMR § 8905.4 (a)
(2010). Second, the final order at issue in this case pointed Mr. Mathis to Superior
Court. Third, all the way up until oral argument in this case, DCHA took the
position that Mr. Mathis was required to seek review in Superior Court rather than
this court.
47
I recognize that the Supreme Court has overruled the unique-circumstances
doctrine. Bowles v. Russell, 551 U.S. 205, 208-14 (2007). This court has not yet
addressed Bowles‘s implications for the unique-circumstances doctrine in this
court, and the parties in this case have not briefed that issue. I do not think that the
court needs to decide the issue in this case. Under this court‘s prior decisions, Mr.
Mathis‘s petition is not time-barred because compliance with an otherwise
jurisdictional time-limit would be excused under the unique-circumstances
doctrine. Assuming that the opinion for the court in this case is correct, subsequent
Supreme Court decisions support a conclusion that Mr. Mathis‘s petition is not
time-barred because the applicable time limit is not jurisdictional and Mr. Mathis
would be entitled to equitable tolling of that time limit. Given that Mr. Mathis‘s
petition is not time barred under either approach, the court in this case has no need
to decide between the approaches. In theory, this court could rely on Bowles to
overrule the unique-circumstances doctrine while adhering to the view that the
time-period at issue in this case is jurisdictional. Mr. Mathis‘s petition would be
time-barred under that approach, but such an approach in my view would be
doctrinally unwarranted and would lead to unfair results in cases such as this. I
therefore would simply hold that Mr. Mathis‘s petition is not time-barred, whether
under our current law or under the different approach suggested by more recent
Supreme Court cases.
48
Although the opinion for the court suggests that this court should not leave
in ―legal limbo‖ the question whether a time limit for review is jurisdictional in
character, this court has repeatedly declined to resolve such issues when resolving
them was not necessary to decide the particular case before the court. See Neill v.
District of Columbia Pub. Emp. Relations Bd., 93 A.3d 229, 237 n.34 (D.C. 2014)
(―For purposes of this appeal, we need not decide whether our decisions labeling
the time limit jurisdictional remain good law in light of subsequent Supreme Court
cases (including those cited in the next paragraph) distinguishing jurisdictional
rules from claim-processing rules.‖); Clark v. Bridges, 75 A.3d 149, 151 n.1 (D.C.
2013) (―In light of our conclusion that the landlord‘s appeal must be allowed, we
do not reach the tenant‘s argument that if the appeal was untimely, the court would
lack jurisdiction to entertain it.‖); In re Na. H., 65 A.3d 111, 116 (D.C. 2013) (―We
need not determine whether the time limit before us is jurisdictional in nature
because the outcome of this appeal would be the same regardless of its status.‖ See
District of Columbia v. Wical Ltd. P’ship, 630 A.2d 174, 182 (D.C. 1993)
(reviewing court should avoid deciding issues that are unnecessary to a case‘s
disposition).‖). In my view, following that course is particularly appropriate in this
case, because the parties have not briefed the issues the opinion for the court
decides. It is of course true that we are obliged to determine that we have
jurisdiction before ruling on the merits in a case. I conclude that we do have
49
jurisdiction, whether we adhere to our decisions or adopt those of the Supreme
Court. Our decisions in Neill, Clark, and In re Na. H. demonstrate that we are not
obliged to raise and answer all ―jurisdictional questions,‖ even if those questions
need not be answered in order to conclude that we have jurisdiction. As the
opinion for the court accurately points out, my analysis rests on the conclusion that
it would not make sense to adopt only half of the Supreme Court‘s law. But that
conclusion is far narrower than the holdings of the opinion for the court that two
separate lines of this court‘s authority are no longer good law.
Finally, I dissent from the holding in Part III of the opinion for the court that
there was not substantial evidence to support a conclusion that Mr. Ratchford more
likely than not ―stayed‖ at Mr. Mathis‘s apartment for more than thirty days. I note
at the outset that I am not entirely sure how ―stay‖ should be interpreted for
purposes of the Administrative Plan. For current purposes, I assume (as the parties
and the opinion for the court seem to assume) that ―stay‖ is synonymous with
―reside,‖ which is the term used in 24 C.F.R. § 982.551(h)(2) (2015). Under that
assumption, I conclude that there was substantial evidence to support a conclusion
that Mr. Ratchford more likely than not stayed at Mr. Mathis‘s apartment for more
than thirty days.
50
Our inquiry is deferential, and we are required to give the agency the benefit
of all reasonable inferences from the record. See generally, e.g., Vogel v. District
of Columbia Office of Planning, 944 A.2d 456, 463-64 (D.C. 2008) (―Substantial
evidence, as we often have said, means more than a mere scintilla. What we have
demanded is relevant and admissible evidence that a reasonable mind would accept
as adequate—a well-worn phrasing that is deferential to the administrative
agency‘s prerogatives as trier of fact but not toothless in its insistence on evidence
with genuine probative force. The test is comparable to that we employ in
reviewing sufficiency of the evidence to withstand a motion for judgment as a
matter of law: the opponent of the motion must be given the benefit of every
reasonable inference from the evidence, but not inferences based on guess or
speculation.‖) (footnotes and internal quotation marks omitted). Moreover, the
evidence must be considered in its totality, not item by item. Kalorama Citizens’
Ass’n v. District of Columbia Bd. of Zoning Adjustment, 934 A.2d 393, 400 (D.C.
2007) (court will uphold agency factual finding if ―based on substantial evidence
in the record as a whole‖); cf., e.g., In re K.M., 75 A.3d 224, 235 n.6 (D.C. 2013)
(emphasizing that sufficiency of evidence ―must in the end be assessed in light of
the evidence taken as a whole,‖ not on ―the weight of various pieces of evidence in
isolation‖). Finally, as the opinion for the court notes, the DCHA in this case bore
the burden of proof by a preponderance of the evidence. In other words, the
51
question for this court is whether, considering the totality of evidence, a reasonable
factfinder could conclude that it was more likely than not that Mr. Ratchford
stayed at Mr. Mathis‘s apartment for over thirty days. See generally, e.g., V.K. v.
Child & Family Servs. Agency, 14 A.3d 628, 633 n.10 (D.C. 2011) (―The
preponderance of the evidence standard requires proof that something more likely
than not exists or occurred.‖) (internal quotation marks omitted).
In my view, the evidence permitted a reasonable factfinder to conclude that
Mr. Ratchford more likely than not stayed in Mr. Mathis‘s apartment for more than
thirty days. Specifically, there was evidence that (1) Mr. Mathis was arrested on
August 28, 2009; (2) Mr. Mathis was concerned about the security of the
apartment, because someone broke into the apartment; (3) no one other than Mr.
Mathis was authorized to stay in the apartment, so there was no authorized
occupant to keep an eye on the apartment; (4) Mr. Mathis made arrangements to
have Mr. Ratchford keep an eye on the apartment; (5) Mr. Mathis and Mr.
Ratchford have a very close, family-type relationship, referring to each other as
brothers or cousins; (6) Mr. Mathis gave Mr. Ratchford (and apparently only Mr.
Ratchford) a key to the apartment (although some of the testimony about whether
Mr. Mathis directly gave Mr. Ratchford a key was unclear, in part at least because
the transcript is garbled, Mr. Mathis ultimately testified clearly that he gave a key
52
to Mr. Ratchford); (7) Mr. Ratchford was arrested at the apartment on September
11, 2009, and a police report prepared in connection with the arrest indicated that
Mr. Ratchford lived at the apartment; (8) Mr. Ratchford was present at the
apartment on October 7, 2009, and told an investigator that ―they‖ (inferentially
Mr. Mathis and Mr. Ratchford) were in the process of moving; and (9) on October
13, 2009, Mr. Mathis told an investigator that Mr. Ratchford ―was living [at the
apartment] with Mr. Mathis‖ and ―had been living with [Mr. Mathis] for a period
of time‖ or ―from time-to-time.‖
Taken together, that evidence seems to me to permit a reasonable conclusion
that Mr. Ratchford more likely than not stayed at Mr. Mathis‘s apartment from at
least September 11, 2009, to October 13, 2009, which is thirty-two days.
Specifically, a factfinder could reasonably conclude that Mr. Ratchford more likely
than not was staying in the apartment as of September 11, 2009, because there was
evidence permitting an inference that Mr. Ratchford gave the apartment as his
address on that date. Moreover, a factfinder could further conclude that Mr.
Ratchford more likely than not stayed in the apartment through October 7, 2009,
because there was evidence that Mr. Ratchford was present at the apartment on that
date and made a statement that can be reasonably understood to indicate that Mr.
Ratchford and Mr. Mathis were in the process of moving out together. Finally, a
53
reasonable factfinder could conclude that Mr. Ratchford more likely than not
stayed in the apartment through October 13, 2009, because there was evidence that
Mr. Mathis made a statement on that date indicating that Mr. Ratchford was living
with Mr. Mathis and had been doing so for a period of time.
The foregoing evidence did not establish beyond doubt that Mr. Ratchford
stayed in Mr. Mathis‘s apartment for more than thirty days. It is possible that Mr.
Ratchford had some other residence for some or all of the time period in question,
although there was no specific evidence in the record of such a residence. It is also
possible that Mr. Ratchford and Mr. Mathis were moving out to separate
destinations, and that Mr. Ratchford did so right after October 7, 2009. On the
other hand, it is possible, perhaps probable, that Mr. Ratchford was not so
unfortunate as to be arrested in the apartment on the very day he began his stay
there, and that he in fact had been staying in the apartment for some time before
September 11, 2009. These various possibilities, however, do not undermine the
conclusion that the evidence, considered as a whole, permitted a reasonable
factfinder to find that Mr. Ratchford more likely than not stayed in the apartment
for more than thirty days. Even under the far more demanding standard of proof
beyond a reasonable doubt, the evidence ―need not negate every possible
hypothesis of innocence.‖ Miller v. United States, 115 A.3d 564, 570 (D.C. 2015).
54
Although the opinion for the court concludes that the evidence was
insufficient, my analysis differs in three principal respects. First, the opinion for
the court does not give adequate weight to the evidence of the statement that Mr.
Mathis made on October 13, 2009, indicating that Mr. Ratchford was living with
Mr. Mathis and had been doing so for a period of time. Second, it is true, as the
opinion for the court notes, that Mr. Ratchford was arrested on September 11,
2009. But Mr. Mathis has not contended that Mr. Ratchford‘s arrest is relevant to
the sufficiency of the evidence, and I see no basis for concluding that the arrest
caused a change in Mr. Ratchford‘s residence or otherwise undermined the
sufficiency of the evidence. Third, the opinion for the court appears to focus on
pieces of evidence in isolation, rather than assessing the reasonable conclusions
that can be drawn when considering the evidence in its totality.
For the foregoing reasons, I would hold that that there was substantial
evidence to support the conclusion that Mr. Ratchford more likely than not stayed
in Mr. Mathis‘s apartment for more than thirty days. I therefore respectfully
dissent in part. Having concluded that the evidence was insufficient, the opinion
for the court does not reach Mr. Mathis‘s other procedural challenges. Although I
see no reason to expound on the issue, I would remand the matter to DCHA for
further consideration in light of those procedural challenges. Cf., e.g., Dillon v.
55
District of Columbia Dep’t of Emp’t Servs., 912 A.2d 556, 560-61 (D.C. 2006)
(remanding for further findings where agency failed to make adequate findings).