Bostic v. D.C. Hous. Auth.

• Decision Date: 29 June 2017
• Docket Number: No. 15–AA–386,15–AA–386
• Citation: 162 A.3d 170
• Parties: Nelson BOSTIC, Petitioner, v. DISTRICT OF COLUMBIA HOUSING AUTHORITY, Respondent.
• Court: D.C. Court of Appeals

162 A.3d 170

Nelson BOSTIC, Petitioner,

v.DISTRICT OF COLUMBIA HOUSING AUTHORITY, Respondent.

No. 15–AA–386

District of Columbia Court of Appeals.

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 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 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.

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 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, 105 S.Ct. 2371, 85 L.Ed.2d 714 (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, 105 S.Ct. 2371. 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, 120 S.Ct. 2288, 147 L.Ed.2d 352 (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 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, 105 S.Ct. 2371. 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 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.

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...