West v. Jackson

• Decision Date: 10 March 2008
• Docket Number: Civil Action No. 07-727 (RMC).
• Citation: 538 F.Supp.2d 12
• Parties: Michael WEST, Plaintiff, v. Alphonso JACKSON, Secretary, Department of Housing and Urban Development, Defendant.
• Court: U.S. District Court — District of Columbia

538 F.Supp.2d 12

Michael WEST, Plaintiff, v. Alphonso JACKSON, Secretary, Department of Housing and Urban Development, Defendant.

Civil Action No. 07-727 (RMC).

United States District Court, District of Columbia.

March 10, 2008.

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Michael West, St. Charles, MO, pro se.

Jonathan C. Brumer, Brandon Leigh Lowy, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROSEMARY M. COLLYER, District Judge.

Michael West, proceeding pro se, sued Alphonso Jackson, Secretary of the Department of Housing and Urban Development ("HUD"), in his official capacity. Counts 1 and 2 of the Complaint allege violations of the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and Count 3 asserts a claim regarding HUD's response to a fair housing complaint that Mr. West filed. Mr. West's Complaint alleged that Northeast Community Action Corporation ("NECAC") discriminated against him based on his disability by denying him Section 8 housing. HUD has moved to dismiss or for summary judgment. Def.'s Mot. to Dismiss or for Summ. J. [Dkt. # 15]. As explained below, HUD's motion will be granted.

I. FACTS

The NECAC is a nonprofit community organization which delivers a variety of social service programs to low income, handicapped and other disadvantaged individuals through grants and contractual agreements with federal, state and local governments. NECAC provides Section 8 rental assistance and administers Section 8 housing in twelve counties in Missouri. "Section 8 housing" was created by the Housing Act of 1937, 42 U.S.C. §§ 1437-1440. Under the Section 8 program, tenants make rental payments based on income and ability to pay and HUD, in turn, makes assistance payments to private landlords to make up the difference between the tenant's contribution and a contract rent agreed upon by the landlord and HUD. Cisneros v. Alpine Ridge Group, 508 U.S. 10, 12, 113 S.Ct. 1898, 123 L.Ed.2d 572 (1993) (citing 42 U.S.C. § 1437f(a)). While HUD oversees the distribution of funds appropriated by Congress, local public housing authorities such as NECAC make eligibility determinations and disburse funds. See. Nat'l Leased Housing Ass'n v. HUD, No. 03-1509, 2007 WL 148829, at *1 (D.D.C.2007) (citing 42 U.S.C. § 1437f(o)).

On December 29, 2003, Mr. West submitted an application to NECAC for Section 8 rental assistance. Def.'s Reply, Exs. 4 & 5. Mr. West stated on his application that he lived at 46 Vanguard, O'Fallon, Missouri, with Julie Stephens, a Section 8 participant. Id. On March 1, 2004, NECAC Housing Director Nelva Owens sent Mr. West a letter indicating that his application was denied based on his admission that he had resided with Ms. Stephens for two years while she received federal Section 8 assistance.¹ Id., Ex. 5. The letter stated "[b]y your own admission that you resided with Ms. Stephens, you were a party to the fraud that was committed." Id. Further, the application also was denied because Mr. West failed to provide required social security or county residency documentation. Id., Ex. 4.

On February 28, 2004, Mr. West emailed Andrew Boeddeker, Director of the Kansas City Hub Office of Public Housing, HUD, requesting NECAC records and complaining of unfairness to Ms. Stephens because her housing assistance had been terminated. Id., Ex. 2. Mr. Boedekker responded that HUD does not maintain NECAC records, NECAC does; also, HUD had not received a complaint from Ms. Stephens. Id. On May 18, 2004, Mr. West again emailed Mr. Boedekker. This time he requested that HUD investigate "why Ms. Nelva Owens of NECAC, Bowling Green, Missouri unreasonably refuses to respond to my written inquires regarding housing assistance under HUD [sic] program." Id., Ex. 3. Mr. West explained:

Ms. Owens sent me a letter back in March 2004 [denying housing assistance due to fraud]. In April 2004, I replied with relevant questions pertaining to her allegations that I was part of a fraud. To date I have not received a response.

Id. Mr. Boeddeker responded:

Dear Mr. West — You needed to send a letter to the Housing Authority requesting an informal hearing regarding the disposition of your application. Your letter from Ms. Owens would have given specific instructions as how to request a hearing, including the time frames for the request. If you failed to follow those instructions, there is nothing further we can do to address your concerns. If you feel that you have been discriminated against by NECAC, you should contact the Office of Fair Housing and Equal Opportunity at 1-800-743-5323.

Id.

On July 27, 2004, Mr. West filed an administrative complaint with HUD's office of Fair Housing and Equal Opportunity ("FHEO"). In his complaint he claimed that NECAC refused to process his application to participate in Section 8 housing, and that while NECAC indicated that its refusal was based on Mr. West' prior fraud, Mr. West alleged that such refusal in fact was based on Mr. West's disability. Def.'s Mot. to Dismiss or for Summ. J. ("Def.'s Mot."), Ex. 1. HUD assigned Franklin Montgomery, an Equal Opportunity Specialist, to investigate Mr. West's charge of discrimination. Id., Ex. 10, Decl. of Montgomery. During his investigation, Ms. Owens told Mr. Montgomery that NECAC had held a hearing regarding the termination of housing assistance for Julie Stephens. Id. ¶ 3. The issue at the hearing was whether Ms. Stephens had defrauded NECAC by permitting Mr. West to live at her home without notifying NECAC. Id. No HUD representatives were involved in the hearing or the decision. Id. ¶ 4. On November 9, 2005, HUD notified Mr. West by letter that it had determined that no reasonable cause existed to believe that a discriminatory housing practice had occurred. Def.'s Mot., Ex. 2.

Over a year later, on January 24, 2007, Mr. West submitted a FOIA request to Turner Russell, Director of FHEO's Enforcement Support Division at HUD headquarters. Mr. West requested the following records:

All communications originated by or dispatches to this HUD Enforcement Support Division enumerated above pertaining to:

a. this instant requestor, Michael West;

b. the Mraz investigation; and

c. the Montgomery investigation.²

Def.'s Mot., Ex. 3. On the same date, Mr. West sent a second FOIA request seeking:

[A]ll policies, or the like, that allow this federal agency:

a. to use false or perjured evidence [to] close an investigation without providing a full and fair investigation into the merits of a complaint. See Mraz investigation.

b. to base its investigative findings of fact and conclusions of law on false or perjured evidence. See Montgomery investigation.

c. to ignore its statutory duty by not providing a full and fair agency review action upon this Director's office receiving [a]ppeal materials (Feb.2006) pertaining to underlying investigations, in which [it] violates administrative due process under Administrative Procedure Act, 28 C.F.R. Part 35, and Fourteenth Amendment to the United States Constitution. See Final Report (Nov.2005).

Id., Ex. 4.

Then, in a letter dated February 12, 2007, Mr. West complained that despite his two FOIA requests he had "not received HUD's cooperation in this matter or the specific requested materials" as reflected in the attached copies of his January 24, 2007 requests. Id., Ex. 5. Mr. West indicated that he considered his February 12 letter an appeal.³ Id. On February 23, 2007, HUD advised Mr. West that it had received his February 12 letter and began to process the FOIA requests as "FOIA Control No. FI-461783." Id., Ex. 6.

Mr. Russell conducted a search of the Enforcement Support Division's chronological file, called the "Chron File." The Division maintains a Chron File relating to its review of fair housing investigations performed by FHEO staff in its field offices. Id., Ex. 12, Decl. of Russell ¶ 2. The Enforcement Support Division regularly reviews such investigations, but it does not review all investigations. Id. Mr. Russell also searched the FHEO's Title Eight Automated Paperless Office Tracking System ("TEAPOTS"), a detailed system for tracking fair housing complaints, including the date received, the parties' names, and the status of complaints. Id. ¶ 3. Although he searched for the documents requested by Mr. West — "[a]ll communications originated by or dispatches to this HUD Enforcement Support Division" relating to Mr. West, the "Mraz investigation," and the "Montgomery investigation" — Mr. Russell did not locate any documents. Id. ¶ 7. On April 24, 2007, HUD notified Mr. West that its search had failed to locate any records. Id., Ex. 7.

The day before HUD sent its response to Mr. West, on April 23, 2007, Mr. West filed this suit. The Complaint contains three counts. Counts 1 and 2 of the Complaint allege claims under FOIA, and Count 3 complains about HUD's response to Mr. West's discrimination charge, relying on the Administrative Procedure Act ("APA"), 5 U.S.C. § 701 et seq.; the Mandamus Act, 28 U.S.C. § 1291; 28 C.F.R. Part 35; and the Fourteenth Amendment. In preparing to defend on this Complaint, counsel for HUD determined that if HUD had any documents relating to Mr. West's FOIA request, such documents would be archived in HUD's FHEO Kansas City, Kansas Regional Office. Def.'s Mot., Ex. 14., Decl. of Opfer ¶ 4. HUD counsel, Chris Opfer, prompted a search of such records by Jocelyn Gibson, Equal Opportunity Specialist at the Kansas Regional Office. Id. ¶ 5; Def.'s Mot., Ex. 13, Decl. of Gibson ¶ 5. Ms. Gibson searched for "any and all information regarding a fair housing complaint filed by or otherwise involving Mr. Michael West," but no such records were located. Id., Ex. 13, Decl. of Gibson ¶ 6. Ms. Gibson also contacted the National Records Center and requested all records relating to Mr. West. Id. ¶ 7. Responsive records were located there, and on August 17, 2007, Mr. Opfer sent them to Mr. West. Id., Ex. 14., Decl. of Opf...