Review Hearings: The Way to Challenge a Denial to Government-Assisted Housing

Requesting a review hearing is one of the most important avenues for challenging a denial to most types of government-assisted housing (whether it was a denial by the Public Housing Authority (PHA) or an owner of government-assisted housing).

Of course, if you can, it’s best to find a lawyer or advocate who can help you through this process. It’s tough to find lawyers who do this, but it’s worth a try. See PG 1127 for a list of legal aid organizations that may be able to help advise you as you challenge your denial from government-assisted housing. If you cannot find a lawyer to help you, do not despair! It’s possible to do this on your own!

What can I expect at the review hearing? And how can I prepare?

THE HEARING:

After you have sent in a written request for a review hearing, it is important to prepare. At the informal hearing or review, it is important to show the PHA or owner of the government-assisted housing that they should not have denied you the housing because of mitigating circumstances and.or proof of rehabilitation (see PG. 371), a disability that requires a reasonable accommodation (see Appendix E, PG. 419), or a mistake in the criminal records that the PHA or owner used (see CLEANING UP YOUR CRIMINAL RECORD CHAPTER, PG. 939). Before the informal hearing/review, you should:

    Ask the PHA or owner for all documents and information regarding the denial of your housing application, including a copy of the criminal records it relied upon to deny you.[1359]
    Get a copy of your criminal record yourself to make sure it is correct. (For information on how to do this, see CLEANING UP YOUR CRIMINAL RECORD CHAPTER, PG. 950).
    Compare your criminal record with the information the PHA or owner used to deny you.
    At the same time, you will want to work on fixing any mistakes in the records used by the PHA or owner—or showing documentation of the errors. Records often have mistakes and you shouldn’t be denied housing for an error.[1360] (See CLEANING UP YOUR CRIMINAL RECORD CHAPTER, PG. 944.) This can take time, so you should act fast, and ask the PHA and/or owner of the government-assisted housing to hold the unit while you collect the documents you need.
    Review your application & be prepared to talk about important differences.
    Make sure you know what you wrote on your application about your criminal record, illegal drug use, or whatever it was that made you get denied for the housing. For example, what did you say in response to the question about your convictions? What did you say about your illegal drug use? Whom did you say would live in your household? If the answer you gave on your application is not exactly the same as the answer you would give today, you must be able to explain why. If you didn’t include certain information about your criminal record in your application to the PHA or owner, you will have to explain why it was left out. Or if you said that a certain relative would be living with you who is not, you need to explain what has changed.

IMPORTANT: If you were denied under a ban that is allowed but not required, you will want to prove to the PHA or owner that there are mitigating circumstances or evidence that you have changed and rehabilitated since the time of your offense.

If you were denied because of your criminal history, you should present evidence of rehabilitation to show the PHA you are not a threat to the health or safety of other residents, PHA staff or contractors. This includes all the letters and documents you can think of that will show how you have changed and grown since your negative conduct. You should get any of the following: letters of support.[1361] Ask people who have supported you through reentry—like your current employer, a teacher, probation officer, social worker, neighbors, current or prior landlords, and community leaders-- to write a letter of support on your behalf. The letters should emphasize:

    How your circumstances have changed since the negative conduct/ offense,
    That you are a good person who gets along well with others,
    That you are motivated to improve your life, and
    Your good performance or attendance record if you are in school or working.
  1. 1359

    For the USDA rural housing programs, applicants who have been denied housing and choose to file grievances are entitled to examine the records that a borrower plans to rely upon to defend the admission decision. 7 C.F.R. § 3560.160(g)(4) (Rural Development housing); see also, HUD, Public Housing Occupancy Guidebook, App. VIII (sample Applicant Notice of Rejection) (June 2003) (offers applicant the opportunity to review applicant file); See Chapter 3 for a discussion of special federal rules regarding access to criminal records by PHAs and owners. In the event that the denial is based upon criminal record information obtained by a PHA (including lifetime sex offender registration) in accordance with the federal statute, the PHA has an obligation to provide the applicant a copy of that record.

  2. 1360

    Sharon M. Dietrich, When “Your Permanent Record” Is a Permanent Barrier: Helping Legal Aid Clients Reduce the Stigma of Criminal Records, 41 Clearinghouse Rev. 139 (July-Aug 2007).

  3. 1361

    See Legal Action Center, How to Get Section 8 or Public Housing Even with a Criminal Record: A Guide for New York City Housing Authority Applicants and their Advocates, App. H (no date), http://lac.org/index.php/lac/130 (provides examples of letters of recommendation); New York City Housing Authority, Division of Applicant Appeals, Public Housing Hearing, Report of Informal Hearing, August 7, 2007, No. 113-52-7732.

What can I expect from the review hearing? What is it like?

What can I expect from the review hearing?[1362] What is it like?

Every hearing is different, but generally, the hearing is likely to be very informal (more details about these informal hearings below). It is very different from a court proceeding, and formal evidence rules do NOT apply. For example, the PHA or owner may introduce newspaper reports, police blotters, declarations or criminal records, with no one to authenticate or testify about the records.[1363] You are also allowed to bring in any evidence showing why your criminal record should not bar you from getting into the housing program.

You are allowed, and it’s recommended, that you bring a friend or family member who can be supportive and can also be a witness to what is happening and what is said at the hearing.

  1. 1362

    See Jaimes v. Toledo Metro. Hous. Auth., 758 F.2d 1086 (6th Cir. 1985); Billington v. Underwood, 613 F.2d 91, 93 (5th Cir. 1980); Neddo v. Hous. Auth. of Milwaukee, 335 F. Supp. 1397 (E.D. Wis. 1971); cf. Spady v. Mount Vernon Hous. Auth., 341 N.Y.S.2d 552 (N.Y. App. Div. 1973), aff’d mem., 310 N.E.2d 542 (N.Y. 1974), cert. denied, 419 U.S. 983 (1974) (Douglas, J., dissenting); Sumpter v. White Plains Hous. Auth., 278 N.E.2d 892 (N.Y. 1972), cert. denied, 406 U.S. 928 (1972) (distinguishing evidentiary hearing required before termination of benefits from procedures required before denials of eligibility). See also S. K. Morris, Note, The New Leased Housing Program: How Tenantable a Proposition? 26 Hastings L.J. 1145, 1201 (1975).

  2. 1363

    See Billington v. Underwood, No. 81-7978, 1983 WL 855694 (11th Cir. May 23, 1983) (discussion of the burden of proof and use of hearsay in hearing for denial of admission). The following cases set aside hearing decisions based solely on hearsay in the context of subsidy terminations or proposed evictions: Basco v. Machin, 2008 WL 182249 (11th Cir.); Edgecomb v. Hous. Auth. of Vernon, 824 F. Supp. 312 (D. Conn. 1993) (in decision involving termination of tenant- based assistance, court held that conclusory statement was insufficient); Kurdi v. Du Page County Hous. Auth., 161 Ill. App. 3d 988 (1987); Carter v. Olmsted County Hous. & Redev. Auth., 574 N.W.2d 725 (Minn. Ct. App. 1998); Chase v. Binghamton Hous. Auth., 91 A.D.2d 1147, 1147-48 (N.Y. App. Div. 1983). Hearsay rules, if used, will likely apply to all parties. Therefore, an applicant should be prepared to have whatever hearsay rules are adopted apply to the evidence that he or she presents. Broughton v. Hous. Auth. of Pittsburgh, 755 A.2d 105 (Pa. Commw. Ct. 2000) (tenant’s hearsay evidence excluded in judicial setting).

What rights do I have in a review hearing?

    You have the right to a hearing before an impartial, unbiased hearing officer.[1364] That means that hearing officer should be independent, with no stake in the outcome of the hearing, and ready to hear both sides. He/she should not be the same person who made the original decision to deny you, or anyone who works for the person who made the original decision to deny you.[1365]
    You have the right to an opportunity to make an argument (called a “rebuttal”) to challenge the information the PHA or owner relied upon in denying you.[1366]
    You should be allowed to explain why you pled guilty to a past conviction.[1367] The hearing’s decision maker may find your explanation important and relevant.
    You should ask for a written transcript and an audio recording of the review hearing (the “record”). If the hearing officer won’t provide you this, you can ask to bring in your own recording device (many cell phones have this function).
    Question witnesses, and to ask that they testify under oath.[1368]
    The right to a written decision after the review hearing (for most government-assisted housing programs).[1369] The written decision must be given to you within a reasonable period of time (usually 10-30 days), state the reasons for the decision, and state the evidence the hearing officer relied upon in making a decision.[1370]
    Extra Rights for Public Housing & Voucher housing programs: In addition to the requirements above, for public housing and the voucher program ONLY, there is the additional protection that the subject of the hearing can only go into the issues that were presented in the rejection notice.[1371] At the hearing, no information should be presented if it was not the basis for the rejection, because otherwise you don’t have an opportunity to investigate ahead of time and challenge that new information at the hearing.
    The rules for Rural Development (RD) hearings are different. Read more in APPENDIX J, PG. 435.
  1. 1364

    Billington v. Underwood, 613 F.2d 91, 95 (5th Cir. 1980); see also Piretti v. Hyman, No. 79-622-K, slip op. (D. Mass. July 23, 1979), vacated as moot without opinion, 618 F.2d 94 (1st Cir. 1980) (in a case regarding termination of tenant-based assistance, decision-maker not impartial when the attorney presenting the PHA’s case also advised the hearing officer).

  2. 1365

    See 24 C.F.R. § 982.554(b)(1); HUD, Public Housing Occupancy Guidebook, § 4.9 and App. VIII (Applicant Notice of Rejection) (June 2003); HUD, Voucher Program Guidebook, Housing Choice, 7420.10G, ¶ 16.5 (Apr. 2001) (voucher program); HUD, Occupancy Requirements Of Subsidized Multifamily Housing Programs ¶ 4-9(D)(1) (requiring that any meeting with the applicant to discuss the applicant’s rejection must be conducted by a member of the owner’s staff who was not involved in the initial decision to deny admission or assistance); see also Davis v. Mansfield Metro. Hous. Auth., 751 F.2d 180, 185 (6th Cir. 1984); Billington v. Underwood, 613 F.2d 91, 95 (5th Cir. 1980).

  3. 1366

    Billington v. Underwood, 613 F.2d 91, 95 (5th Cir. 1980); see also Edgecomb v. Hous. Auth. of Town of Vernon, 824 F. Supp. 312, 314-16 (D. Conn. 1993) (in a termination of benefits case, the hearing decision could not be based wholly on hearsay; hearing decision inadequate because no reasons given; participant was entitled to cross-examine witness); Kurdi v. Du Page County Hous. Auth., 514 N.E.2d 802, 806 (Ill. App. Ct. 1987) (setting aside a termination decision based wholly on hearsay); see also 7 C.F.R. § 3560.160(h) (2007) (rural development housing).

  4. 1367

    Gibson v. Gibson, 15 Cal. App. 3d 945 (1971); see also Costa v. Fall River Hous. Auth., 71 Mass. App. Ct. 269, 283 (2008).

  5. 1368

    Neddo v. Hous. Auth. of City of Milwaukee, 335 F. Supp. 1397, 1400 (E.D. Wisc. 1971); see also 7 C.F.R. § 3560.160(h) (2007) (RD housing).

  6. 1369

    See, e.g., New York City Housing Authority, Division of Applicant Appeals, Public Housing Hearings, Report of Informal Hearing, August 6, 2007, No. 113-52-7732 copy available as Exhibit 3 of this Chapter (applicant with felony convictions found to have made significant positive changes and improved since the offenses).

  7. 1370

    4 C.F.R. §§ 882.514(f) (Section 8 Moderate Rehabilitation) and 982.552(b)(3) (voucher program) (2007); HUD, Public Housing Occupancy Guidebook, ¶ 4.9 (public housing); HUD Handbook 4350.3, REV-1, CHG-2, ch. 4-9D (June 2007) (final decision must be given to applicant within five business days of meeting); Neddo v. Hous. Auth. of City of Milwaukee, 335 F. Supp. 1397 (E.D. Wisc. 1971); see also Edgecomb v. Hous. Auth. of Town of Vernon, 824 F. Supp. 312 (D. Conn. 1993) (in a termination of benefits case, hearing decision could not be based wholly on hearsay; hearing officer decision inadequate because no reasons given; participant entitled to cross-examine witness); Powell v. D.C. Hous. Auth., 818 A.2d 188 (D.C. 2003) (reversing PHA’s termination decision for alleged fraudulent underreporting of income because hearing officer failed to make findings with respect to each contested material allegation of fact as required by due process and applicable local Administrative Procedure Act (APA); see also Hicks v. Dakota County Cmty Dev. Agency, No. A06-1302, 2007 WL2416872 (Minn. App., Aug. 28, 2007) (the record must be sufficient to facilitate meaningful review and where there are no findings or credibility determinations, the court could not conduct a meaningful review); see, e.g., New York City Housing Authority, Division of Applicant Appeals, Public Housing Hearing, Report of Informal Hearing, August 6, 2007, No. 113-52-7732 (copy available as Exhibit 3 to this Chapter). For Rural Development housing, the notice must be served within ten days of the hearing. 7 C.F.R. § 3560.160(i)((2) (2007). As noted above, the decision also should not be based wholly upon uncorroborated hearsay.

  8. 1371

    See Wolff v. McDonnell, 418 U.S. 539, 564 (1974); Billington v. Underwood, 613 F.2d 91, 93-95 (5th Cir. 1980); Singleton v. Drew, 485 F. Supp. 1020, 1024 (E.D. Wisc. 1980); McNair v. N.Y. City Hous. Auth., 613 F. Supp. 910, 914-15 (1985).

What can I do if I am unhappy with the written decision by the review hearing?

If you are unhappy with the decision made at the review hearing, and want to challenge it, ask your lawyer and/or the hearing officer how to challenge. Usually, if you lose your informal hearing, you cannot continue to challenge the denial of government housing at the Public Housing Authority (PHA) level. Most likely, the only way for you to continue to challenge the denial after losing your informal review hearing is to sue the Public Housing Authority in court.[1372] This is a complex decision—contact a lawyer for help (see a list of legal aid offices that may be able to assist on PG. 1127.

  1. 1372

    You could bring an action for federal civil rights violations under 42 U.S.C. § 1983, which has a three-year statute of limitations, to challenge a decision on fair housing or due process grounds, and also sometimes on the grounds that the decision is contrary to applicable federal law. This is a field of law that is very complicated. It is unclear whether you can use § 1983 to make a challenge that a decision lacks substantial evidence, or that the officer did not exercise discretion properly. The state certiorari statute is necessary, especially if your challenge focuses on the failure of the housing program to comply with agency procedures and policies.