PAMELA CARTER vs. LYNN HOUSING AUTHORITY.

KANTROWITZ, J. The defendant, Lynn Housing Authority (LHA), appeals from a grant of summary judgment in the Housing Court in favor of the plaintiff, Pamela Carter, reversing the

Page 118

LHA's termination of Carter's section 8 rent subsidy assistance payments. [Note 1] We agree with the defendant and reverse.

The LHA raises several arguments on appeal, claiming that (1) the Housing Court judge erred by holding that the LHA's termination of Carter's benefits was incurably defective because neither the termination letter nor the hearing officer's written decision recited that all of the factors required to be considered by the applicable regulations were actually considered or that a sanction less than termination was actually considered; (2) the judge erred by holding that the summary judgment record established that the LHA's termination of Carter was an abuse of discretion; and (3) the judge improperly relied upon an unreported Federal District Court case from the Northern District of Illinois.

Facts. On or about March 1, 2000, Carter and her two children, then ages fourteen and eighteen, moved into apartment no. 2 at 20 Wyman Street in Lynn, pursuant to a lease she entered into with the owner of the property, Robert Ryan. Carter held a section 8 voucher administered by the LHA, and the remainder of her rent was paid pursuant to a contract between Ryan and the LHA. Prior to Carter's occupancy of the apartment, and again on or about April 1, 2001, and February 26, 2002, the apartment was inspected by an LHA inspector, as required by 42 U.S.C. § 1437f(o)(8)(C). It was found to be free from violations of the housing quality standards (HQS), as established by the Department of Housing and Urban Development (HUD) pursuant to 42 U.S.C. § 1437f(o)(8)(B) [Note 2] and 24

Page 119

C.F.R. § 982.401. [Note 3]

The record is unclear as to why, in early 2002, Ryan brought a summary process action against Carter in the Housing Court. What is known is that on June 26, 2002, the parties entered into an agreement for judgment signed by Carter, Ryan, and the court's housing specialist. The parties mutually agreed to terminate the existing lease, and Ryan agreed to return Carter's security deposit by July 5, 2002, and to return to her $1,005 in rent overcharge payments; Carter, in turn, agreed to vacate the apartment on or before September 2, 2002. In addition, each party waived all then-existing claims against the other with prejudice. On or about September 2, 2002, Carter and one of her children, then age seventeen, moved to a new apartment in Lynn.

On or about November 26, 2002, Ryan filed suit against Carter, claiming that Carter had caused substantial damage to the apartment, and seeking $2,000. On February 12, 2003, after conducting a hearing in which she viewed a video of the apartment provided by Ryan, the Housing Court clerk-magistrate found for Ryan and granted him $1,440 in damages for waste exceeding normal wear and tear. Judgment entered on February 13, 2003. This decision apparently was not appealed.

On April 11, 2003, the LHA formally notified Carter of its decision to terminate her section 8 subsidy, effective May 31, 2003. [Note 4] Carter then sought review of the LHA's decision. After a hearing on May 8, 2003, during which Carter presented witnesses

Page 120

and evidence on her behalf, the hearing officer affirmed the LHA's decision to terminate Carter's section 8 assistance. [Note 5] In conjunction with cross motions for summary judgment, the LHA provided the affidavit of David Moore, the LHA's rental

Page 121

assistance program manager who terminated Carter's section 8 eligibility. [Note 6] In his affidavit Moore averred that he had determined that Carter and/or her family had "breached their obligations under the rent subsidy program and that the appropriate remedy was to terminate assistance to the family." He further stated that he had "reviewed the facts, and considered the factors set forth in 24 C.F.R. § 982.552(c)(2)(i)." [Note 7]

The motion judge, on summary judgment, [Note 8] concluded that the termination of assistance was not in accordance with 24 C.F.R. § 982.552, because the LHA's decision did not show that it had

Page 122

properly considered " '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' as required by 24 C.F.R. § 982.552(c)(2)(i)."

In addition, the motion judge stated that "[t]here is also no indication that the LHA considered its other remedies as provided by relevant HUD regulations." The judge ruled that the LHA had abused its discretion in terminating Carter's benefits and ordered that the termination of her section 8 assistance be annulled and that her rent assistance be reinstated.

Standard of review. " 'The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law.' Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117 , 120 (1991), citing Mass. R. Civ. P. 56 (c), 365 Mass. 824 (1974). 'An order granting or denying summary judgment will be upheld if the trial judge ruled on undisputed material facts and his ruling was correct as a matter of law.' Commonwealth v. One 1987 Mercury Cougar Auto., 413 Mass. 534 , 536 (1992), citing Community Nat'l Bank v. Dawes, 369 Mass. 550 , 556 (1976)." Anderson St. Assocs. v. Boston, 442 Mass. 812 , 816 (2004).

It was error for the judge to engage in fact finding. See note 8, supra. [Note 9] "When considering a motion for summary judgment, the judge should not consider the credibility of the witnesses or the weight of the evidence, nor should the judge make findings of fact." Riley v. Presnell, 409 Mass. 239 , 244 (1991), citing Attorney Gen. v. Bailey, 386 Mass. 367 , 370 (1982). We also conclude that the judge's rulings on the undisputed material facts were incorrect as matter of law, and we therefore reverse the judgment in favor of Carter and order the entry of judgment for the LHA.

Page 123

HUD regulations. Section 982.551(c) of Title 24 of the Code of Federal Regulations provides that "[t]he family is responsible for an HQS breach caused by the family as described in § 982.404(b)." Section 982.404(b) addresses those family obligations of a section 8 tenant, providing in pertinent part:

"(1) The family is responsible for a breach of the HQS that is caused by any of the following: . . . (iii) Any member of the household or guest damages the dwelling unit or premises (damages beyond ordinary wear and tear).

"(2) If an HQS breach caused by the family is life threatening, the family must correct the defect within no more than 24 hours. For other family-caused defects, the family must correct the defect within not more than 30 calendar days . . . .

"(3) If the family has caused a breach of the HQS, the PHA [Public Housing Authority] must take prompt and vigorous action to enforce the family obligations. The PHA may terminate assistance for the family in accordance with § 982.552."

The termination process is addressed by 24 C.F.R. § 982.552. It provides that: "The PHA may at any time . . . terminate program assistance for a participant, for any of the following grounds: (i) If the family violates any family obligations under the program (see § 982.551)." 24 C.F.R. § 982.552(c)(1).

With regard to the circumstances to be considered, subsection (2) reads:

"In determining whether to . . . 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" (emphasis supplied).

24 C.F.R. § 982.552(c)(2)(i).

Discussion. On appeal, Carter is not contesting that she

Page 124

breached the HQS in the apartment at 20 Wyman Street, no. 2. The decision of the Housing Court clerk-magistrate in the earlier case found that Carter had committed waste in the apartment and awarded damages in the amount of $1,440 to the landlord.

The key regulatory provision in this case is 24 C.F.R. § 982.552(c)(2)(i). The motion judge determined that the termination of Carter's section 8 voucher was "not 'in accordance with Sec. 982.552' " because of the LHA's failure to consider all relevant circumstances. While Carter agrees and urges us to interpret the language beginning with "[t]he PHA may consider all relevant circumstances" to mean that the PHA is required to consider all relevant circumstances, the LHA emphasizes that the consideration of these circumstances is within the LHA's discretion.

The "mandatory informal hearing procedure is . . . founded on due process principles." Wojcik v. Lynn Hous. Authy., ante 103, 109 (2006). The due process requirements are carefully spelled out in the HUD regulations, see id. at 109-111, and were satisfied in this case. In accordance with 24 C.F.R. § 982.555(c)(2)(i), the termination letter gave Carter adequate notice of why her benefits were being terminated. And, as required by 24 C.F.R. § 982.555(a)(1)(v), the LHA granted Carter the opportunity for an informal hearing. [Note 10] At this hearing, and pursuant to 24 C.F.R. § 982.555(e)(5), Carter and the LHA were allowed to present evidence. Unlike in Wojcik, supra, however, Carter presented no evidence of mitigating circumstances. She simply denied that she had caused any damage beyond ordinary wear and tear. See notes 5 & 6, supra. The hearing officer was not required to give credence to her denial that she had committed waste.

The language in 24 C.F.R. § 982.552(c)(2)(i), "[t]he 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 . . . termination of assistance on other family members who were not involved in the action or failure," must be interpreted as

Page 125

vesting with the PHA the discretion as how to utilize, if at all, those factors. Thus, as Wojcik, supra, indicates, while a party must be allowed to present evidence on this point, what credence, if any, the PHA chooses to place upon those factors is entirely within its discretion. [Note 11] Here, Carter presented no mitigating evidence to the hearing officer; she merely denied having committed waste in the apartment. While termination of section 8 benefits for breach of the HQS is optional, not mandatory, see note 11, supra, Carter presented no evidence to the hearing officer in support of a lesser sanction. The LHA acted within the scope of the HUD regulations when it terminated Carter's section 8 voucher; Carter's termination was in accordance with 24 C.F.R. § 982.552, and the motion judge's ruling to the contrary was error.

It was also improper to rule that the LHA termination letter and the hearing officer's decision should have recited that remedies other than termination had been considered. The hearing officer's decision need only demonstrate that he exercised his discretion. See, e.g., Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746 , 749 (2003) ("such consideration [need not] be extensive or formal . . . [but] only . . . conscientious"). As Carter had presented no evidence arguing for a lesser sanction, there were no mitigating circumstances for the hearing officer to consider. Compare Commonwealth v. Adjutant, 443 Mass. 649 , 666 (2005), quoting from Commonwealth v. Boyer, 400 Mass. 52 , 57 (1987) ("[w]here the record shows that the judge has failed to exercise discretion, there exists an error of law requiring reversal"); Lonergan-Gillen v. Gillen, supra, quoting from Commonwealth v. Edgerly, 13 Mass. App. Ct. 562 , 571 (1982) ("[i]t is one thing to consider [a] right [to make an evidentiary ruling] and exercise it either way, but having been given that right, analogous to discretion, it is the duty of the judge to exercise it, and it is error as a matter of law to refuse

Page 126

to exercise it"). As for the termination letter, it satisfied the requirements of § 982.555(c)(2)(i) by providing Carter adequate notice of why her benefits were being terminated. Nothing more was required.

As noted above, upon violation of the HQS, the PHA has the discretion to terminate a tenant's section 8 voucher. See § 982.404(b)(3). That authority is not curtailed by the language of 24 C.F.R. § 982.404(b)(2), providing that "[i]f an HQS breach caused by the family is life threatening, the family must correct the defect within no more than 24 hours. For other family-caused defects, the family must correct the defect within no more than 30 calendar days . . . ." This requirement that the apartment be returned to its prior condition by those responsible for the damage stands side by side with and independently of any consequences the PHA may impose on a tenant who caused a breach of the HQS. Any other interpretation would fail to give meaning to 24 C.F.R. § 982.404(b)(3). Furthermore, our reading of 24 C.F.R. § 982.404(b) is underscored by 24 C.F.R. § 982.552(c)(1), which provides that "[t]he PHA may at any time . . . terminate program assistance for a participant . . . (i) [i]f the family violates any family obligations under the program (see § 982.551)." As in 24 C.F.R. § 982.404(b), the PHA's authority to terminate a section 8 housing voucher is again phrased independently of any condition that the tenant repair the damage done. [Note 12]

Conclusion. The termination letter sufficiently placed Carter on notice of the reason for the decision to terminate her section 8 benefits. Further, there was no error or abuse of discretion in the hearing officer's decision to uphold the LHA's termination of Carter's benefits. Pursuant to the HUD regulations, causing damage "beyond reasonable wear and tear" is a sufficient reason for termination of section 8 benefits. At her hearing, rather than providing mitigating evidence, Carter denied that

Page 127

she had committed waste, an assertion the hearing officer was not required to credit.

We recognize that the LHA acted harshly. [Note 13] It did, however, also act permissibly within the bounds of its discretion. If the result is unfair, it is for Congress, not this court, to correct. [Note 14]

The judgment for the plaintiff is reversed, and a new judgment is to enter for the defendant.

So ordered.

DUFFLY, J. (dissenting). I dissent because in my view the motion judge correctly ruled that the hearing officer's decision was defective for failing to reflect consideration of "all relevant circumstances" as specified in 24 C.F.R. § 982.552(c)(2)(i). As we held in Wojcik v. Lynn Hous. Authy., ante 103, 112 (2006):

"a decision whether to terminate [housing] benefits because of action or inaction of a family member must involve a process in which the affected family at least has an opportunity to present evidence and arguments about circumstances that might move the decision maker to impose a penalty less severe than termination. Thus the hearing officer must hear evidence and find facts relating to 'all relevant circumstances.' "

That the hearing officer has considered such circumstances must be reflected in a written decision setting forth both the reasons for the decision and his factual determinations. Id. at 113-114. See, e.g., Edgecomb v. Housing Authy. of Vernon, 824 F. Supp. 312, 316 (D. Conn. 1993); Carter v. Olmsted County Hous. & Redev. Authy., 574 N.W.2d 725, 730 (Minn. Ct. App. 1998). The circumstances that may be considered include:

"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 . . . 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).

The hearing officer's decision here reflects no such consideration, and the appellant, Lynn Housing Authority's (LHA's), argument in this appeal, in accordance with the position it maintained in Wojcik, supra, fails to acknowledge that the hearing officer has authority to exercise discretion in determining whether a section 8 tenant's benefits should be terminated. LHA thus makes no argument that the motion judge erred in concluding that the hearing officer's decision failed to indicate that "all relevant circumstances" had been considered, instead arguing that its own consideration of circumstances, prior to issuing the termination notice, sufficed -- a view we rejected in Wojcik. See id. at 112-113; ante at 121 n.7. Neither does LHA argue that no evidence of mitigating circumstances had been presented. [Note Dissent-1]

Absent such arguments by LHA, there would have been no reason for Carter, as appellee, to supplement the record on appeal to reflect that this evidence had been presented below. It is her failure to do so that provides support for the court's view that Carter presented no evidence of mitigating circumstances to the hearing officer. See ante at 122 n.9. In any case, the record reflects that Carter -- by reference to her poverty and impending homelessness and assertions that she was not the cause of any damage -- did present evidence of "the effects of . . . termination of assistance on other family members who were not involved in the action or failure." [Note Dissent-2]

I do not agree that, on this record, summary judgment in favor of LHA should enter. In its brief, LHA states that, even if the hearing officer was required to consider mitigating factors, "summary judgment for each party should have been denied." I would have granted the requested relief, reversed the judgment, and remanded the matter to the hearing officer for hearing and reconsideration in light of our decision in Wojcik.