2.9.4 Practice Tips

2.9.4 Practice Tips aetrahan Mon, 01/23/2023 - 14:43
  • Make the request for an informal hearing as soon as you receive notice of a proposed termination.
  • Request an informal hearing and request to view the tenant file in writing and make a copy for your records.
  • Submit a pre-hearing memorandum to the Hearing Officer or Panel. Spell out the facts, give an analysis under the regulations as to why the PHA should not take the proposed action, and provide supporting documentation. If there is countervailing or exculpatory evidence, submit a copy with hearing memo but be sure to bring the evidence along with the memo to the actual hearing.
  • Always remind the PHA that it bears the burden of proving the alleged program violation by a preponderance of the evidence and, if applicable, that the termination is not mandatory but discretionary. Discretionary grounds are listed in 24 C.F.R. § 982.552(c), as opposed to the mandatory grounds in § 982.552(b). Be aware that the local PHA may make discretionary grounds mandatory; the discretionary and mandatory grounds for a termination will also be listed in the PHA Administrative Plan. The plan may also have language creating additional protections for the client. Argue that all pertinent circumstances and alternatives should be taken into account in determining whether to uphold a discretionary termination.1
  • In some cases, a post-hearing memo should also be forwarded or may be requested by the hearing officer. In situations where evidence will potentially become available only after the hearing, note this in the pre-hearing memo and at the hearing. If the hearing goes forward, supplement as soon as possible
  • A participant may seek judicial review following an adverse decision at the informal hearing. The hearing officer’s decision may be reversed if there is a determination that the decision is arbitrary or capricious, an abuse of discretion, or contrary to HUD regulations or to federal, state, or local law. Terminations may be challenged in court under 42 U.S.C. § 1983 when the PHA decision violates specific federal statutory entitlements or constitutional requirements. Not all statutory requirements can be enforced through § 1983.2
  • Federal law requires that the person who conducts the hearing be neither the person who proposed termination nor a subordinate of that person. This is very helpful if termination notices are sent out under the signature of the PHA program director because every Section 8 employee is a subordinate of that individual. To comply with the law, the PHA must either designate a non-subordinate to conduct the hearing or else ensure that executive-level heads do not participate in the decision to terminate.
  • PHAs often overreach and assert grounds when no underlying facts support the termination. For example, PHAs frequently allege fraud when only tenant omission or error exists.
  • The PHA is restricted to conducting a hearing only as to those issues delineated in the termination notice.
  • Review the PHA file immediately and make note via memo or otherwise to the PHA/Hearing Officer/Panel in the event the determinative evidence is not located in the file.
  • While this is an informal hearing, prepare your client as you would normally for any civil hearing. Many clients become nervous, and emotions run high. Do your best to put your client at ease and maintain control during the hearing.
  • Many times the only witnesses available to the PHA are the client’s caseworker and client’s landlord. You have the right to question all witnesses. Be prepared to ask questions if necessary. Even for violations specifically related to a client-landlord interaction, the PHA or Hearing Officer may neglect to have the landlord present for hearing.
  • Object to the PHA using police reports3  or other hearsay as evidence. Though the rules of evidence are relaxed in an administrative hearing, hearsay cannot constitute “substantial evidence” unless factors that assure the “reliability and probative value of the evidence” are present.4
  • Object to any PHA reliance on a judgment as conclusive of a lease violation. The PHA must independently prove the violation to terminate the voucher.5
  • Bring a copy of all case law, statutes, and sections of the Administrative Plan to the hearing along with extra copies of any and all documents that you wish to use to make your case. 
  • 124 C.F.R. § 982.552(c)(2).
  • 2See Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (explaining criteria for identifying a private right of action under federal legislation). Before bringing a § 1983 action on the basis of a statutory violation, advocates should determine whether binding circuit precedent has foreclosed a private right of action.
  • 3La. C.E. 802; State v. Robinson, 02-1253 (La. App. 5 Cir. 4/8/03), 846 So.2d 76, 84; State v. Cockerham, 522 So. 2d 1245, 1247 (La. App. 4 Cir. 1988).
  • 4U.S. Pipe & Foundry Co. v. Webb, 595 F.2d 264, 270 (5th Cir. 1979).  The factors considered are whether (1) the out-of-court declarant was not biased and had no interest in the result of the case; (2) the opposing party could have obtained the information contained in the hearsay before the hearing and could have subpoenaed the declarant; (3) the information was not inconsistent on its face; and (4) the information has been recognized by courts as inherently reliable. Basco v. Manchin, 514 F.3d 1177, 1182 (11th Cir. 2008). The Basco test has been applied in the 5th Circuit. Henley v. Hous. Auth. of New Orleans, No. 12–2687, 2013 U.S. Dist. LEXIS 62255, at *12, 2013 WL 1856061 (E.D. La. May 1, 2013).
  • 5La. R.S. 13:4231; see Tranchina v. State, 99-C-1332, p.2 (La. App. 4 Cir. 1999), 740 So. 2d 713, 714; State ex rel. Robinson, 517 So. 2d 477, 479 (La. App. 1 Cir. 1987).