Krisha Bowman v. City of Des Moines Municipal Housing Agency Scott Littell in His Official Capacity as Review Officer and Sara Henry, in Her Official Capacity as Occupancy and Program Enforcement Administrator

IN THE SUPREME COURT OF IOWA
No. 10–1885
Filed November 4, 2011
KRISHA BOWMAN,
Appellant,
vs.
CITY OF DES MOINES MUNICIPAL
HOUSING AGENCY; SCOTT
LITTELL in his Official Capacity as
Review Officer and SARA HENRY,
in her Official Capacity as Occupancy
and Program Enforcement
Administrator,
Appellees.
Appeal from the Iowa District Court for Polk County, Scott D.
Rosenberg, Judge.
Krisha Bowman appeals the dismissal of her certiorari action
challenging the termination of her Section 8 housing assistance.
AFFIRMED.
Justin J. Gross of Iowa Legal Aid, Des Moines, for appellant.
Gary D. Goudelock, Jr., Assistant City Attorney, Des Moines, for
appellees.
2
MANSFIELD, Justice.
Krisha Bowman appeals the district court’s dismissal of her
certiorari action challenging the termination of her Section 8 housing
assistance by the Des Moines Municipal Housing Agency (DMMHA).
DMMHA discontinued Bowman’s housing assistance based on five
alleged occurrences of unreported income. Bowman argues that she did
not have five such occurrences; that even if she did, DMMHA’s policy of
treating a failure to report each child’s Social Security benefits as a
separate occurrence of unreported income violates the Fair Housing Act;
and that DMMHA improperly failed to consider mitigating circumstances
before terminating her assistance.
We conclude: DMMHA’s determination that Bowman had five
occurrences of unreported income is supported by substantial evidence,
DMMHA’s policy does not violate the Fair Housing Act, and DMMHA did
not improperly fail to consider Bowman’s mitigating circumstances.
Accordingly, we affirm the judgment of the district court denying
Bowman’s petition for writ of certiorari.
I. Background Facts and Proceedings.
In 1974, Congress enacted a housing assistance program
commonly known as the “Section 8” program. See 42 U.S.C. § 1437f
(2006). Under this program, federal dollars are used to fund both
project-based and tenant-based housing assistance for low-income
families. See Horizon Homes of Davenport v. Nunn, 684 N.W.2d 221,
222–23 (Iowa 2004) (describing the Section 8 program). This case
involves tenant-based assistance in the form of rental vouchers. See 42
U.S.C. § 1437f(o). Although the funding comes from the federal
government, the program is administered on a local basis by public
housing authorities (PHA), such as DMMHA.
3
A low-income family may apply to the PHA and, if approved, receive
a voucher from the PHA to cover a portion of their rent. See 24 C.F.R.
§§ 982.302, 982.305 (2010). Under certain circumstances, however,
Section 8 voucher assistance may or even must be terminated. See id.
§ 982.552. One of the permissive grounds for termination is when the
family violates any “family obligations.” Id. § 982.552(c)(1)(i). A specific
family obligation is to supply any information the PHA determines is
necessary in the administration of the program. Id. § 982.551(b)(1).
Additionally, the family must supply any information requested by the
PHA for use in a regularly scheduled or interim reexamination of family
income. Id. § 982.551(b)(2).
DMMHA requires Section 8 participants in Des Moines to sign a
two-page “Statement of Family/Household Obligations.” Among other
things, the participant certifies that he or she will report to the case
manager in writing within ten days “any increase or decrease or change
of the source of household income.” The participant also acknowledges
that his or her housing assistance may be terminated for a violation of
any family obligation in the program.
In 2008, the Des Moines Municipal Housing Board approved
DMMHA’s proposed revision of its policy on processing instances of
unreported income “to better define for their clients and staff how
unreported income will be calculated.” The new policy stated, “The
family will be afforded a total of four (4) occurrences of unreported
income. More than four (4) occurrences of unreported income is grounds
for termination of benefits.” DMMHA adopted this four-occurrence policy
to replace a previous policy that allowed only one occurrence before
termination.
4
Krisha Bowman, a single mother, resides in Des Moines with her
three minor children. Bowman began participating in the Section 8
housing program in approximately 2000. In the ensuing years, she
continued to participate in the program and signed a number of
“Statement[s] of Family/Household Obligations” referring to her
obligation to report changes in the amount or source of household
income. There is no indication that Bowman ever violated the terms of
her Section 8 housing assistance before 2009.
Bowman suffers from multiple sclerosis, and on February 2, 2009,
she had to quit her job and immediately enter the hospital. Four days
later, she faxed a note to DMMHA advising it of these facts.
Subsequently, Bowman applied for benefits from the State of Iowa and
the Social Security Administration. On April 8, 2009, Bowman began
receiving Family Investment Program (FIP) benefits from Iowa. This did
not come to the attention of DMMHA until June 4, 2009, when the
agency conducted a family income and asset review with Bowman as part
of its annual recertification appointment with her. The review included a
detailed questionnaire regarding sources of income. Following that
review, Bowman was notified in writing that her file was under review for
unreported income.
On June 12, 2009, and again on July 10, 2009, DMMHA sent
letters to Bowman asking her to verify the child support she received and
the amount kept by the state during 2009. Bowman apparently did not
respond to these letters.
On July 20, 2009, Bowman provided DMMHA with a copy of a
June 19, 2009 letter from Social Security indicating that she (Bowman)
would be receiving $946 per month in Social Security disability benefits.
5
On July 23, 2009, DMMHA advised Bowman that it had completed
the aforementioned investigation and that she had received unreported
income, i.e., the FIP benefits. After recalculating the amount of housing
assistance Bowman should have received, DMMHA directed Bowman to
repay $252 by September 21, 2009. The letter further indicated that a
failure to make full payment by the deadline would result in termination
of her housing assistance. 1 The letter concluded, “Please be advised that
further instances of unreported income may lead to immediate
termination of assistance.”
Bowman did not make the $252 payment by September 21, so on
September 28, DMMHA requested she attend a meeting. 2 Bowman went
to the meeting on October 12 with her mother. At the meeting, Bowman
told DMMHA she had sent in a money order four days before. Later that
day, Bowman provided DMMHA with a receipt for a $252 money order
she had obtained on October 6. DMMHA subsequently received the $252
money order in the mail on October 13.
At the October 12 meeting, Bowman revealed she had stopped
getting FIP in July 2009 and had started receiving $140 per month in
Social Security disability payments for each of her three children.
According to her petition (and to DMMHA’s records), Bowman also
informed the agency at the meeting that she had resumed receiving child
1Failure to repay amounts owed the PHA is a separate ground for permissive
termination. See 24 C.F.R. § 982.552(c)(1)(v). Also, each Statement of
Family/Household Obligations signed by Bowman indicated that housing assistance
may be terminated if household members owed rent or other amounts to DMMHA in
connection with the Section 8 program.
2An internal DMMHA memo indicated that termination of housing assistance
had been approved as of September 28, 2009, when Bowman failed to make the $252
payment within sixty days.
6
support of $35 per month. 3 Bowman learned of the disability awards in
three separate letters dated June 28, 2009—one addressed to each child.
Bowman had received all three letters the same day. Bowman claimed
she was unaware she had to disclose the children’s Social Security
payments to DMMHA because they were “for my children’s needs.”
On November 30, 2009, Bowman and her mother attended another
meeting with DMMHA. At that meeting, Bowman was notified of
DMMHA’s intent to terminate her participation in the Section 8 program
based on five instances of unreported income—i.e., the FIP income, the
child support, and the Social Security disability payments for each of the
three children. A formal notice was issued that same day, informing
Bowman her participation would be terminated effective December 31,
2009.
After receiving the termination notice, Bowman requested an
administrative hearing. 4 A recorded hearing was held on January 4,
2010, before a hearing officer. At the hearing, Bowman explained she
had failed to report the FIP benefits because she “thought all the
government agencies were together.” Bowman continued to maintain she
was unaware the children’s Social Security income needed to be
reported. She also contended the benefits received for the children
should be treated as one instance and not three separate instances of
unreported income.
3While Bowman was receiving FIP, the State of Iowa kept her child support
payments. After her FIP payments ended, the child support payments went once again
to Bowman.
4Theregulations require the PHA to give a participant “an opportunity for an
informal hearing to consider whether [the decision to terminate assistance was] in
accordance with the law, HUD regulations and PHA policies.” 24 C.F.R. § 982.555(a)(1).
7
DMMHA made clear at the hearing that “we’re not saying fraud,
we’re saying unreported income.” DMMHA also conceded that the child
support and Social Security disability payments to the children would
not have reduced Bowman’s Section 8 housing assistance even if they
had been timely reported. Bowman’s mother joined her at the hearing
and testified that Bowman had suffered from multiple sclerosis for about
four or five years, but did not go onto disability until 2009. She
explained that Bowman could not afford her rent without Section 8
assistance. Bowman also testified regarding her medical condition and
her hospitalizations in 2009.
DMMHA presented proof at the hearing that Bowman was aware of
the obligation to report changes in income and sources of income. That
is, Bowman had faxed information to DMMHA about the loss of her job in
February 2009 and had also provided information about her personal
receipt of Social Security disability benefits in July 2009. DMMHA also
maintained that its consistent policy is to treat any situation where a
separate family member receives a new source of income as a separate
occurrence.
The hearing officer said, “I’m going to take everything into
consideration.” He then issued his decision three weeks later on
January 25, 2010. The decision found that Bowman’s assistance had
been properly terminated for the following reasons:
There are clear violations of the federal regulations governing
the Section 8 voucher program guidelines. As evidenced by
the exhibits, the participant[] knew the rules regarding
reporting income within ten days. The participant[] stated
she did not believe the children’s benefits needed to be
reported because they were not adults. The family
obligations clearly state any household income must be
reported within ten days in writing. The participant had just
found out at her annual recertification on 6/4/09 that one
instance of unreported income had occurred when she did
8
not report her FIP within ten days. The participant received
the three letters dated 6/28/09 regarding Social Security
benefits for her children approximately one month after her
annual appointment. If the participant did not know if this
income should be reported then she should have called her
case manager to find out.
Therefore, I am upholding the Housing Agency’s termination
of benefits based on the above findings.
Bowman thereafter filed a petition for writ of certiorari in the Polk
County District Court, raising three issues for review: (1) whether the
hearing officer’s decision to uphold termination was supported by
substantial evidence given that three instances of unreported income
involved income from the same source at the same time, (2) whether
DMMHA’s application of its policy violated the Fair Housing Act because
it discriminated based on familial status, and (3) whether the hearing
officer abused his discretion by not considering mitigating factors.
The district court affirmed the hearing officer’s decision on these
points. The district court found DMMHA’s decision to terminate was
supported by substantial evidence because each Social Security benefit
was covered by a separate letter and each was for a separate child. The
court also noted Bowman’s testimony that she had used each child’s
benefit check for that child’s needs.
Additionally, the district court said it was “not entirely convinced”
Bowman had preserved the issue of familial status discrimination for
review, finding her only attempt at preservation was “questioning the
program administrator about treating families differently based on the
number of children.” Despite this concern, the court addressed the Fair
Housing Act claim and denied it. As it explained, “[T]he violations are
not caused by the number of children, but rather by the number of
incomes.”
9
Lastly, the court rejected Bowman’s claim that the hearing officer
abused his discretion by failing to consider mitigating circumstances.
Since 24 C.F.R. § 982.552(c)(2)(i) states a hearing officer “may consider
all relevant circumstances,” the court held the hearing officer was not
required to consider such factors as Bowman’s illness, her no-violation
history of nearly ten years, and the effect of the hearing officer’s decision
on Bowman’s children—even if one assumes these factors were not taken
into account. The district court’s reading of § 982.552(c)(2)(i) as
permissive, not mandatory, in construction was reinforced in its view by
the definition of “may” in the Iowa Code which states the word “may”
merely invokes a power, not a duty. See Iowa Code § 4.1(30) (2009)
(differentiating “shall,” “must,” and “may”). The court also compared
§ 982.552(c)(2)(i) with other federal housing provisions that employ the
word “must” to demonstrate § 982.552(c)(2)(i) was not intended by its
drafters to impose an obligation on hearing officers to consider mitigating
circumstances. See 24 C.F.R. § 982.552(d) (indicating the housing
authority “must” supply participating families with certain information).
The district court reasoned that if the federal government had intended
§ 982.552(c)(2)(i) to impose a mandatory duty upon hearing officers to
consider mitigating circumstances, it would have expressed that intent in
the plain language of the statute as it did elsewhere.
Bowman appeals.
II. Standard of Review.
We review a certiorari action for the correction of errors at law.
Meyer v. Jones, 696 N.W.2d 611, 613–14 (Iowa 2005). A certiorari action
may be asserted by a party when authorized by a statute or when an
“inferior tribunal, board, or officer” exceeded its jurisdiction or otherwise
acted illegally in executing judicial functions. Iowa R. Civ. P. § 1.1401;
10
Meyer, 696 N.W.2d at 614. An inferior tribunal commits an illegality if
the decision violates a statute, is not supported by substantial evidence,
or is unreasonable, arbitrary, or capricious. Perkins v. Bd. of
Supervisors, 636 N.W.2d 58, 64 (Iowa 2001). Substantial evidence, as
defined in Iowa Code section 17A.19(10)(f)(1), is
the quantity and quality of evidence that would be deemed
sufficient by a neutral, detached, and reasonable person, to
establish the fact at issue when the consequences resulting
from the establishment of that fact are understood to be
serious and of great importance.
If the inferior tribunal’s decision is supported by substantial evidence, we
are bound by the findings in the record. Perkins, 636 N.W.2d at 64; see
also Bontrager Auto Serv., Inc. v. Iowa City Bd. of Adjustment, 748 N.W.2d
483, 495 (Iowa 2008).
III. Analysis.
A. Three Instances of Unreported Income or One? Bowman
challenges DMMHA’s decision to treat the unreported Social Security
benefits for the children as three separate violations, thereby resulting in
a total of five violations. DMMHA does not dispute that Bowman
preserved this specific argument. The question for review is whether
substantial evidence supports DMMHA’s approach. We believe it does.
Bowman received three separate benefits letters from the Social
Security Administration. Each identified a different child as the benefits
recipient. Each letter began as follows:
[Child’s name] is entitled to monthly child’s benefits
beginning July 2009.
We have chosen you to be her representative payee.
Therefore, you will receive her checks and use the money for
her needs.
11
Bowman informed the hearing officer that she followed the Social
Security Administration’s instructions to use each child’s payment for
the benefit of that child. Thus, we believe the hearing officer’s conclusion
that these were three separate occurrences of unreported income is
supported by substantial evidence.
Bowman contends there is an inconsistency between the way
Social Security benefits are treated and the way child support is treated.
Her failure to report the receipt of child support was considered one
violation by DMMHA, even though the failure covered a period of months.
Like the district court, though, we are not persuaded the treatment is
inconsistent. In this case, there were three separate monthly Social
Security payments covering separate beneficiaries, albeit from a single
source. The child support, on the other hand, involved a single monthly
payment of $35, and there is no indication it was intended to cover more
than one child.
Bowman also contends that according to a U.S. Department of
Housing and Urban Development (HUD) guidebook, PHAs are supposed
to distinguish between mistakes and fraud or abuse. Bowman’s actions
(or inactions), she maintains, amounted only to mistakes. However,
DMMHA urges, and we agree, that this argument was not raised before
the hearing officer or the district court. The HUD guidebook was
included in our appendix, but is not part of the record. Therefore, we
decline to consider this argument. 5
Finally, Bowman contends on appeal that her failure to report the
receipt of child support should not have been treated as a violation
5See Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002) (“It is a fundamental
doctrine of appellate review that issues must ordinarily be both raised and decided by
the district court before we will decide them on appeal.”).
12
because she was unaware the child support was being deposited into her
account. However, Bowman did not raise this argument before the
district court, and understandably, the district court did not address it.
Nowhere in her briefing before the district court did Bowman challenge
DMMHA’s decision to treat the failure to report child support as a
violation. In fact, in her petition for certiorari, Bowman alleged (or
conceded):
At the informal discussion on October 12, 2009, Ms.
Bowman conveyed to her case manager that her FIP benefits
ended in August and she was now receiving child support
again. Ms. Bowman was unaware of the child support being
deposited on her card until right before the meeting.
We decline to consider an argument that is raised for the first time on
appeal. See id. 6
6The date when Bowman became aware she was again receiving child support is
somewhat unclear.
As noted in the main text, Bowman alleged in her certiorari petition that she
learned she was receiving child support again “right before” the October 12 meeting and
told her case manager about it at the meeting.
DMMHA’s records are consistent with this timing. According to a DMMHA
internal memo, Bowman “reported” at the October 12 meeting “that she is no longer
receiving FIP but now receives Child Support.” In its November 30 letter, DMMHA
reiterated to Bowman, “At the 10/12/09 informal discussion, you also confirmed that
you did not report when your FIP ended and you began getting Child Support again.”
Later, at the informal hearing, Bowman testified she “didn’t even know” she was
getting the child support again because it went on her debit card. However, in her
hearing testimony, Bowman was vague as to when she allegedly found out her receipt of
child support payments had resumed. First, she testified that she learned of this when
she received the November 30 letter. Later, she testified she had learned in August that
the child support payments had resumed. The record does not show when Bowman
actually accessed the debit card.
Although the record is somewhat unclear, DMMHA did not know about
Bowman’s receipt of child support payments before Bowman did. DMMHA had no
access to Bowman’s child support data. Each time it wanted to obtain this information,
it had to rely on Bowman’s voluntary reporting or have Bowman sign a release. Thus,
DMMHA asked Bowman to execute a release on November 3, 2009, which enabled
DMMHA to obtain a record from Child Support Recovery showing that Bowman’s
regular receipt of child support payments had resumed on July 31, 2009.
13
B. Disparate Impact of DMMHA’s Four-Occurrence Policy?
Bowman next asserts DMMHA discriminated against her based on
familial status in violation of the Fair Housing Act by counting her failure
to timely report each of her three children’s Social Security benefits as
three separate occurrences. See 42 U.S.C. § 3604 (prohibiting rental
discrimination based on familial status). Bowman argues that this
practice discriminates against large families. As Bowman observes, if
she had only one child, or even two, her housing assistance would not
have been terminated.
The district court was “not entirely convinced” Bowman preserved
error on this issue. Nor are we. Bowman’s counsel posed a hypothetical
question to DMMHA’s representative at the hearing as to whether
Bowman, with no previous violations, would have been automatically
terminated under the four-occurrence policy for failure to report benefits
for five children instead of three. Furthermore, in response to the
discussion of how DMMHA calculated the number of occurrences,
Bowman’s mother said, “My analogy is if the family only has one child
versus a family with four . . . .” No suggestion was made at the hearing,
however, that DMMHA’s “separate occurrence” approach violated the Fair
Housing Act. In fact, no one mentioned the Fair Housing Act. See
Bontrager, 748 N.W.2d at 487 (noting that issues must first be presented
to the agency in order to be preserved for appellate review). Regardless,
even if we were to find this argument had been preserved, we would not
be persuaded by it.
The Fair Housing Act prohibits discrimination based on familial
status, either by disparate treatment or impact. See 42 U.S.C. § 3604;
see also Iowa Code § 216.8 (prohibiting discrimination in housing based
on familial status under the Iowa Civil Rights Act). The Fair Housing Act
14
defines a “family” as including “a single individual” and “familial status”
as including “one or more individuals” under eighteen years of age
domiciled with a parent. 42 U.S.C. § 3602(c), (k); see also Iowa Code
§ 216.2(9) (defining “familial status”).
On its face, DMMHA’s policy treats all families the same way.
DMMHA’s four-occurrence policy indicates “the family will be afforded a
total of four (4) occurrences of unreported income” (emphasis added).
Bowman argues, however, that the policy as administered has a
disparate impact on larger families. We disagree. A disparate impact
means a “disproportionate impact.” Mt. Holly Gardens Citizens in Action,
Inc. v. Twp. of Mount Holly, 658 F.3d 375, 382, (3d Cir. 2011). Under the
DMMHA policy, larger families have more potential income beneficiaries
and thus, more situations where a failure to report income could occur.
They also have more persons who could potentially commit acts that
provide other, independent grounds for termination of housing
assistance—for example, damaging the unit or premises, engaging in
criminal activity, etc. But these effects are not disproportionate. Large
families may present more circumstances that could be treated as a
violation, but not disproportionately more. This is unlike a rule limiting
the number of people who can occupy a unit, for example. See United
States v. Badgett, 976 F.2d 1176, 1178–80 (8th Cir. 1992). At least on
the record before us, we agree that Bowman has failed to prove a
disparate impact.
C. Mitigating Circumstances? Finally, Bowman asserts DMMHA
illegally terminated her housing assistance because the hearing officer,
in abuse of his discretion, failed to consider mitigating circumstances
including her multiple sclerosis, her loss of employment, her almost ten-
year program record with no violations, the lack of impact that the
15
unreported income would have had on the amount of her housing
assistance, and finally, the effect of termination of housing assistance on
her children. DMMHA concedes Bowman preserved this issue for review.
The relevant federal regulation provides:
(2) Consideration of Circumstances. In determining whether
to deny or terminate assistance because of action or failure
to act by members of the family:
(i) The PHA may consider all relevant circumstances such as
the seriousness of the case, the extent of participation or
culpability of individual family members, mitigating
circumstances related to the disability of a family member,
and the effects of denial or termination of assistance on
other family members who were not involved in the action or
failure.
24 C.F.R. § 982.552(c)(2)(i) (emphasis added).
DMMHA argues that this regulation, framed as a “may” rather than
a “must,” gives the hearing officer discretion whether or not to consider
mitigating factors. We agree. In Peterson v. Washington County and
Redevelopment Authority, the Minnesota Court of Appeals resolved a split
in its earlier unpublished decisions regarding the hearing officer’s duty to
consider mitigating factors. 805 N.W.2d 558, 563–64, (Minn. Ct. App.
2011). In considering the claim of a Section 8 tenant whose housing
assistance was terminated for failing to report public-assistance income,
despite the tenant’s “challenging personal circumstances,” the Minnesota
court held:
[A] hearing officer is not required to consider mitigating
factors . . . when deciding whether a [tenant’s] violation of a
reporting rule is a terminable offense. While the hearing
officer may consider mitigating factors, the regulations do
not require it, allowing for strict application of a local
reporting rule like the one Peterson violated.
Id. at 564; see also Lawrence v. Town of Brookhaven Dep’t of Hous.,
Cmty. Dev. & Intergovernmental Affairs, 393 F. App’x. 791, 794 (2d Cir.
16
2010) (holding that consideration of mitigating factors “by the housing
agency is discretionary under the federal regulations [and a]s a result,
the housing agency’s failure to consider those factors in terminating
benefits in this case was not improper”); Dowling v. Bangor Hous. Auth.,
910 A.2d 376, 384 (Me. 2006) (stating that “[t]he weight to be given to
such mitigating factors . . . is within the discretion of the Authority”). 7
Nonetheless, Bowman, citing Carter v. Lynn Housing Authority, 880
N.E.2d 778 (Mass. 2008), argues that the hearing officer has to indicate
an awareness that he or she had the discretion to take into account
relevant mitigating circumstances and also must indicate whether he or
she decided to exercise that discretion in favor of mitigating the penalty.
In Carter, the tenant received a notice of termination of her Section 8
housing assistance because the PHA concluded her family had caused
“waste” to her apartment. (A landlord had obtained a small claims
judgment for damages to the apartment.) 880 N.E.2d at 781. The tenant
requested a hearing, where she contested the alleged “waste.” Id. The
hearing officer concluded the “waste” had occurred and found that
termination was proper, without mentioning the potential discretion
afforded by § 982.552(c)(2)(i) of the regulations. Id. at 782. The case
ultimately reached the Massachusetts Supreme Judicial Court, which
held the termination of housing assistance was improper because the
hearing officer failed to make any findings relating to the family’s
individual circumstances and did not indicate “any awareness that he
7In Gaston v. CHAC, Inc., 872 N.E.2d 38 (Ill. App. Ct. 2007), the court read
§ 982.552(c)(2)(i) somewhat differently, reasoning that the PHA “must consider some
circumstances particular to the individual case, otherwise section 982.552’s distinction
between mandatory and discretionary terminations becomes meaningless.” 872 N.E.2d
at 45. With respect, we do not follow this argument. If the PHA “may” consider
mitigating factors, then it may consider all of them, some of them, or none of them.
This does not render the distinction between mandatory and discretionary terminations
“meaningless” because the PHA retains the discretion not to terminate.
17
was explicitly authorized by HUD to exercise his discretion to take into
account relevant circumstances,” such as the tenant’s “obvious” hearing
disability and economic fragility. Id. at 785–87. As the court explained:
The [housing authority] argues that, while the hearing
officer “may” consider “all relevant circumstances,” 24 C.F.R.
§ 982.552(c)(2)(i), he is not required to do so. That assertion
misses the mark. It presupposes the predicate issue that
forms the crux of this dispute: whether the hearing officer
recognized that he had discretionary authority to consider
relevant circumstances.
Id. at 785. 8
DMMHA cites us, however, to Robinson v. District of Columbia
Housing Authority, 660 F. Supp. 2d 6 (D.D.C. 2009). There a tenant
whose Section 8 housing assistance had been terminated for having an
unauthorized co-occupant brought an action pursuant to 42 U.S.C.
§ 1983. Robinson, 660 F. Supp. 2d at 9, 11. Among other things, the
tenant alleged the PHA had failed “to exercise discretion and adequately
consider the circumstances and impact the termination would have on
the plaintiff and her family.” Id. at 16. The tenant pointed out that
“nothing in the Informal Hearing Decision indicates that the Hearing
Officer considered such factors.” Id. at 17. Yet the court concluded:
Given the language and plain meaning of the words used[,]
24 C.F.R. § 982.552(c)(2)(i), the Court must defer to the
agency’s interpretation of the regulation and therefore, the
Hearing Officer was under no obligation to explicitly consider
the mitigating circumstances presented at the informal
hearing by the plaintiff.
Id. The court distinguished Carter on the ground that Robinson had
testified on her mitigating factors. Id. The court also noted that the
hearing officer’s decision in Robinson’s case contained factual findings
8There was apparently no transcript or recording of the actual hearing in Carter.
880 N.E.2d at 791 n.7 (Ireland, J., dissenting).
18
that enabled meaningful review, although there were no findings on the
mitigating factors. Id. In any event, the court concluded that the
hearing officer’s failure to expressly reference the mitigating factors in his
decision could not provide the basis for a claim. Id.
We agree with the Robinson court that § 982.552(c)(2)(i) does not
require the hearing officer to state specifically whether he or she
considered the mitigating factors brought forth by the tenant, at least
where circumstances indicate the hearing officer was aware of his or her
discretion to consider those factors. To hold otherwise would overlook
what the regulations provide. They specify only that the hearing officer
must “stat[e] briefly the reasons for the decision.” 24 C.F.R.
§ 982.555(e)(6). 9 HUD actually rejected a rule requiring the hearing
officer to include both legal and evidentiary grounds for his or her
decision. See 49 Fed. Reg. 12215, 12230 (March 29, 1984).
In this case, unlike in Carter, the tenant presented considerable
evidence on mitigating factors. Bowman’s attorney opened his
examination of her with the question, “What happened last February?”
Bowman proceeded to describe her difficult personal circumstances,
including her hospitalizations and loss of her job. The hearing officer
mentioned some of Bowman’s testimony in his decision under “Position
of Participant,” noting, “The participant has been in and out of the
hospital because of a Multiple Sclerosis relapse.” Furthermore, at the
end of the hearing, the hearing officer said: “I got it. Both positions. I
understand what each one is saying . . . . There’s a lot of stuff to go
through here. I’m going to take everything into consideration . . . .”
9There is no dispute that the hearing officer here provided factual grounds for
his decision. Cf. McCall v. Montgomery Hous. Auth., ___ F. Supp. 2d ___, ___, 2011 WL
4025644, at *9 (M.D. Ala. 2011) (holding that under § 982.555(e)(6), a decision that “did
not contain any reasons whatsoever for the decision” was deficient).
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Given these circumstances, we find that the hearing officer realized he
had the discretion to consider Bowman’s mitigating factors, but simply
declined to conclude they warranted a decision not to terminate her
housing assistance.
We agree with Bowman that a better practice might have been for
the hearing officer to state expressly in his decision that he had received
her mitigating evidence and to describe the extent to which he considered
it. Nonetheless, in light of the express language of HUD’s regulations, we
cannot conclude Bowman has established a violation of 24 C.F.R.
§ 982.552(c)(2)(i).
IV. Conclusion.
A decision not to terminate Bowman’s housing assistance would
have been well within DMMHA’s discretion. There is no assertion that
Bowman intended to deceive DMMHA; she had a clean record of no prior
violations in almost ten years; she had undergone hospitalizations; she
had lost her job; her last four failures to report income all related to the
same transition from FIP benefits to Social Security disability benefits;
and none of those last four instances resulted in Bowman paying less
rent than she should have paid. DMMHA would presumably respond
that in allocating scarce Section 8 benefits for which there is a waiting
list, it could enforce the four-occurrence limit strictly, especially since
Bowman understood the obligation to report new sources of income, and
the four-occurrence policy had recently replaced a more stringent one-
occurrence policy.
Our role as a reviewing court on certiorari is not to exercise the
agency’s underlying discretion ourselves, but to resolve the particular
legal claims brought by Bowman on her writ of certiorari. For the
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reasons previously stated, we agree with the district court’s disposition of
those claims and affirm its judgment.
AFFIRMED.