Gammons v. Massachusetts Dept. of Housing

Decision Date28 November 2007
Docket NumberCivil Action No. 07-10110-PBS.
CourtU.S. District Court — District of Massachusetts

Clarissa Hutchins Bronson, Goutam U. Jois, Harvard Legal Aid Bureau, Cambridge, MA, for Plaintiffs.

James J. Duane, III, Taylor, Duane, Barton & Gilman, LLP, Anthony J. Cichello, Hugh Dun Rappaport, Richard M. Bluestein, Krokidas & Bluestein, Kenneth W. Salinger, Massachusetts Attorney General's Office, Boston, MA, Andrew R. Weiner, Taylor Duane Barton & Gilman, LLP, Providence, RI, for Defendants.


PATTI B. SARIS, District Judge.


Plaintiff Christine Gammons, on behalf of herself and her minor children, challenges the termination of her family's Section 8 Housing Choice Voucher subsidy. On January 22, 2007, the plaintiffs filed the instant action pursuant to 42 U.S.C. § 1983 alleging that (1) the decision to terminate their Section 8 subsidy was not supported by the preponderance of the evidence, as required by Department of Housing and Urban Development ("HUD") regulations, (2) the decision failed to take into account mitigating evidence in violation of HUD regulations, and (3) the procedures employed by the government during the termination hearings violated their due process and privacy rights. The defendants in this action are the Massachusetts Department of Housing and Community Development ("DHCD"); Tina Brooks, the current Director of DHCD; the Metropolitan Boston Housing Partnership ("MBHP"); Julia Kehoe, the Executive Director of MBHP; Birgitta Damon, Director of Leased Housing for MBHP; Melinda Koenig, the Manager of Family Self-Sufficiency for MBHP; Jim Bianchi, an employee of MBHP; and Jane Doe No. 1, an unnamed employee of MBHP. In their verified complaint plaintiffs seek declaratory and injunctive relief as well as compensatory and punitive damages.1

Defendants move to dismiss the verified complaint (Docket Nos. 30 & 32), and plaintiffs oppose. After hearing, the Court ALLOWS-IN-PART and DENIES-IN-PART the defendants' motions to dismiss.


The verified complaint alleges the following facts, many of which are disputed.

In 1999 Gammons received a Section 8 subsidy under the federal Housing Choice Voucher Program, which is administered by the defendant MBHP for the defendant DHCD. Both MBHP and DHCD are considered public housing agencies as defined by the HUD regulations. 24 C.F.R. § 982.1(a)(1). At the time, Gammons lived in Haverhill with her three children and then-boyfriend, Andrew Williams.

Gammons and Williams subsequently married on February 3, 2001. The relationship was stormy. Gammons contends that Williams subjected her to physical and emotional abuse. Williams was initially listed as part of Gammons' household but, because of the abuse, his name was later removed. Over the years, Williams lived with Gammons on an intermittent basis.

On or about June 1, 2005, Gammons moved into an apartment located on 90 Endicott Avenue # 2 in Revere, Massachusetts. The lease did not include Williams's name. Gammons later applied to have Williams added to the lease, but decided against completing the process when the relationship again soured. In June 2006, program administrators from MBHP conducted a routine inspection of the apartment and found mail addressed to Williams. The landlord, Susan Coppola, also told MBHP that Williams was residing in the unit.

On June 27, 2006 MBHP held a case conference with Gammons to discuss the composition of her household. As a result of that conference, MBHP decided to terminate her Section 8 voucher on the grounds that Williams was living with Gammons, and Gammons failed to list Williams as a member of the household. Gammons appealed this initial determination. Consequently, on August 10, 2006 MBHP held an "informal hearing." Gammons was represented at the MBHP informal hearing by the Tenant Advocacy Project at Harvard Law School. The government presented two witnesses who were subject to cross-examination. Gammons testified.

After considering all the evidence, on September 1, 2006, the MBHP hearing officer, defendant Melinda Koenig, found "based upon the overwhelming preponderance of evidence ... that Mr. Williams was an unreported household member and used 90 Endicott Street in Revere as his primary residence." (Compl. Ex. 1 at 8). The officer found that Gammons had provided false statements to MBHP by omitting Williams and his income from her subsidy applications for several years. She concluded:

I am led to believe you provided false statement, omission, or concealment of substantive fact, made with intent to deceive or mislead; and that you did not list Andrew Williams on your household, knowing he was a permanent resident of your household, as you knew and understood that doing so would increase your family contribution to the rent.

(Id. at 9). The hearing officer upheld the termination of the plaintiffs from the Section 8 program and determined that Gammons was overpaid $6,713 in subsidies because Williams' income had not been reflected in prior subsidy calculations.

On September 13, 2006, Gammons asked DHCD to review the MBHP decision. On March 5, 2007, the DHCD upheld Gammons' termination from the Section 8 voucher program.2 The plaintiff challenged this decision by filing suit in state and federal court. On May 9, 2007, this Court denied the plaintiffs' motion for a preliminary injunction.

1. Standard for Motion to Dismiss

For purposes of the defendants' motion to dismiss under Rule 12(b)(6), the Court takes as true the "well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his favor." Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992) (citing Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990)). A complaint should not be dismissed under Fed. R.Civ.P. 12(b)(6) unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The MBHP decision attached to the complaint may be considered a part of the pleading by the Court without converting the motion to dismiss into a motion for summary judgment. See Blackstone Realty LLC v. FDIC, 244 F.3d 193, 195 n. 1 (1st Cir. 2001). The Court may also take into account the DHCD decision. See Town of Norwood v. New England Power Co., 202 F.3d 408, 412 n. 1 (1st Cir.2000). However, the Court will not take into account all of the papers considered during the preliminary injunction hearing in ruling on a motion to dismiss because the parties dispute what documents should properly be in the agency record.

2. Statutory and Regulatory Frame-work

Congress established the Section 8 housing assistance program in order to help low income families obtain a "decent place to live." 42 U.S.C. 1437f(a). Under Section 8, the Secretary of HUD enters into contracts with state and local public housing agencies ("PHA's") and funds them. See 42 U.S.C. 1437f(b)(1), (o)(1)(A). PHA's are authorized to receive applications from eligible persons seeking housing assistance, approve or deny applications, provide vouchers to approved applicants, and terminate vouchers. See 42 U.S.C. §§ 1437c-1(d), 1437f (o).

HUD requires PHA's to adopt a Section 8 Administrative Plan delineating policies on matters for which the PHA has discretion to establish local policies. 24 C.F.R. § 982.54(a). With respect to residency, the HUD regulations provide that, with few exceptions, "nobody but members of the assisted family ... may reside in [a participant family's] unit." See 24 C.F.R § 982.551(h)(2). The relevant HUD regulations do not define "resident" or "reside." "Family" is defined as "[a] person or group of persons, as determined by the PHA, approved to reside in a unit with assistance under the program." 24 C.F.R. § 982.4(b). DHCD has adopted a Section 8 Administrative Plan that defines family as:

All the members of a household under one roof and consisting of approved household members as listed on the HAP contract [3] or as subsequently approved by both the owner and the RAA [Regional Administering Agency4] in writing. DHCD recognizes that a variety of relationships exist, which are not necessarily relationships of ancestry or marriage. Each RAA is encouraged to exercise the best possible judgment in this regard. A family may consist of a single individual.

(Docket No. 44 at 2 (citing Plan)). Despite the DHCD's definition of "family," the DHCD has not specifically defined "resident" or "reside" in its administrative plan. (Id. at 3). In December 2005, however, the MBHP began requiring a head of household to list on its Family Certification Form "all persons living in [the] unit 50% or more of the time." (Docket No. 45 at 1). The previous version of the form "simply instructed the head of household to list all members of his/her family." Id. The MBHP adopted the new language "in an effort to provide further clarification" regarding those persons required to be listed as family members. Id.

The HUD regulations specify when a PHA may terminate a participant family's Section 8 voucher assistance. 24 C.F.R. § 982.552. A PHA may terminate voucher assistance if a participant family "violates any family obligations." 24 C.F.R. § 982.552(c)(1)(i). Family obligations include providing "true and complete" information to a PHA. 24 C.F.R. § 982.551(b)(4). A participant family is also obligated (1) to seek PHA approval for the "composition of the assisted family residing in the unit" and (2) to "request PHA approval to add any other family member as an occupant of the unit." 24 C.F.R. § 982.551(h)(2).

Additionally, the HUD regulations permit a PHA to terminate a...

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    ...not to have their Section 8 benefits improperly terminated in contravention of HUD regulations." Gammons v. Massachusetts Dep't of Hous. & Community Dev., 523 F.Supp.2d 76, 81, 82 (D.Mass.2007). Because the FRHA and the Attorney General have not challenged or questioned Costa's right to see......
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