PAMELA CARTER vs. LYNN HOUSING AUTHORITY.

MARSHALL, C.J. The plaintiff, Pamela Carter, commenced an action in the Northeast Division of the Housing Court Department against the defendant, Lynn Housing Authority (LHA), after the LHA terminated her Section 8 rent subsidy assistance. [Note 1]

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A judge in the Housing Court allowed the plaintiff's motion for summary judgment, annulled and set aside the termination of her Section 8 rent assistance, and ordered that assistance be reinstated. [Note 2] The LHA appealed, and the Appeals Court, by a divided court, reversed and ordered that judgment enter for the LHA. Carter v. Lynn Hous. Auth., 66 Mass. App. Ct. 117, 127 (2006) (Carter). We granted the plaintiff's application for further appellate review. After hearing oral argument in March, 2007, the six Justices who heard the case were equally divided in opinion. Pursuant to Mass. R. A. P. 24.1, 416 Mass. 1601 (1994), we issued an order so stating, the effect of which was as if the court had denied the application for further appellate review. We thereafter allowed the plaintiff's petition for rehearing, and the case was reargued in November, 2007.

We agree with the Housing Court judge's conclusion, and the opinion of the dissenting Justice in the Appeals Court, Carter, supra at 127 (Duffly, J. dissenting), that the LHA hearing officer who upheld the termination of the plaintiff's Section 8 benefits erred by failing to indicate that he had considered "all relevant circumstances" as specified in 24 C.F.R. § 982.552(c)(2)(i) (2007). [Note 3] We vacate the judgment of the Housing Court and

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remand the case to the hearing officer for further proceedings consistent with this opinion. [Note 4]

1. Background. On or about March 1, 2000, the plaintiff and her two children moved into an apartment located at 20 Wyman Street in Lynn. The plaintiff was the holder of a Section 8 rent subsidy housing choice voucher administered by the LHA, and pursuant to a contract between the landlord and the LHA, payment of a rent subsidy was made on the plaintiff's behalf. As required by 42 U.S.C. § 1437f(o)(8) (2000), the apartment was inspected prior to the plaintiff's occupancy, and again on or about April 1, 2001, and February 26, 2002. [Note 5] At all times it was found to be free from violations of the housing quality standards set forth by the United States Department of Housing and Urban Development (HUD) as part of the Section 8 program.

Thereafter, for reasons that are not evident from the record, the plaintiff's landlord, Robert Ryan, commenced a summary process action against her. On June 26, 2002, a written agreement for judgment, signed by the plaintiff, Ryan, and a housing specialist, [Note 6] was filed with the court. By its terms, the plaintiff and Ryan

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agreed to the mutual termination of the plaintiff's lease. The agreement also provided for the return to the plaintiff of her security deposit, as well as approximately $1,000 in overcharges; that the plaintiff would vacate the apartment by September 2, 2002; and that each party waived any then-existing claims against each other. The plaintiff moved into a new apartment, with one of her children, on or about September 2, 2002. Nearly three months later, her previous landlord, Ryan, commenced a small claims action asserting that after the parties entered into the June, 2002, agreement, the plaintiff caused excessive damage, beyond normal wear and tear, to Ryan's apartment. After a trial, at which the plaintiff did not have legal representation, a Housing Court clerk-magistrate found for Ryan and awarded him damages for "waste" in the amount of $1,440. [Note 7]

After learning of the judgment against the plaintiff, the LHA notified the plaintiff by letter dated April 11, 2003, that it was terminating her Section 8 rent subsidy assistance on the basis that she had violated one of her obligations under the Section 8 program. The letter stated:

"[T]he following are reasons for termination:

"982.551 Obligation of participant.

"(c) HQS [housing quality standards] Breach caused by family. The family is responsible for an HQS breach caused by the family as described in [24 C.F.R. §] 982.404(b)(iii) [i.e., when] [a]ny family member of the household or guest damages the dwelling unit or premises (damages beyond ordinary wear and tear)."

The letter also indicated that the plaintiff had ten days within which to request an informal hearing, and that at the time of any such hearing the plaintiff should bring "any written correspondence, documentation that may support your appeal," and provided the address for a legal service agency should the plaintiff require assistance with her appeal.

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The plaintiff duly requested a hearing, which was held on May 8, 2003. At the hearing, according to the hearing officer's decision, the plaintiff, who did not have counsel, presented evidence regarding the condition of the apartment and pointed out that in interrogatories answered by Ryan, apparently as part of the earlier small claims action, Ryan had stated that he had made all repairs, although neither the hearing officer's decision nor the record makes clear the time period to which the plaintiff's evidence refers. Two witnesses also appeared on the plaintiff's behalf, testifying that they had observed how she maintained her apartment and that they knew her to be someone who cleaned and took care of her apartment. In his written decision, which issued on May 16, 2003, the hearing officer made the following "findings," which we repeat here in their entirety:

"1. HUD regulations are clear and unequivocal that a family is responsible for a breach caused by the family as described in Section 982.404(b)(iii). See Section 982.552(b)(4)(c).

"2. Section 982.404(b)(iii) says that it is a breach if any member of a household causes damages beyond reasonable wear and tear to a dwelling unit.

"3. There is a court decision against [the plaintiff] awarding her former landlord damages in the sum of $1,440.00 for waste.

"4. Accordingly, the housing authority proceeding under the relevant HUD regulations has grounds to terminate [the plaintiff's] rental subsidy assistance.

"5. In fact, Section 982.404(3) states that if a family has caused such a breach, the housing authority 'must take prompt and vigorous action' and may terminate assistance.

"6. The housing authority has proceeded to terminate rental subsidy assistance and [the plaintiff] IS AND IS HEREBY FOUND TO BE TERMINATED."

On May 28, 2003, the plaintiff, now represented by counsel, filed her complaint in the Housing Court appealing from the

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decision of the hearing officer. She also requested a stay of the termination of benefits while the action was pending, which (as noted) a Housing Court judge granted, on May 29, 2003.

The plaintiff and the LHA then filed cross motions for summary judgment. In support of her motion, the plaintiff submitted an affidavit in which she stated that when she moved out of the Wyman Street apartment, the apartment was not damaged beyond normal wear and tear, and that after she left, Ryan, her landlord, moved into the apartment. She also stated that at the small claims hearing before the clerk-magistrate, she testified that she had not caused the damage. In support of its own motion for summary judgment, the LHA submitted an affidavit of David Moore, the LHA rental assistance program manager who had made the initial decision to terminate the plaintiff's Section 8 benefits. In his affidavit, Moore stated that prior to sending the plaintiff the April 11, 2003, Section 8 termination letter, he "reviewed the facts, and considered the factors set forth in 24 C.F.R. § 982.552(c)(2)(i)," see note 3, supra, and decided that the plaintiff "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" (emphasis added). [Note 8]

The motion judge concluded that the termination of the plaintiff's benefits was not in accordance with the applicable regulation, 24 C.F.R. § 982.552, because there was no indication in either the program manager's or the hearing officer's decision that the LHA "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)." He also noted that there was no indication that the LHA considered other remedies, aside from termination. In concluding that imposing the sanction of "outright termination of assistance" constituted an abuse

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of discretion, the motion judge considered nine facts. [Note 9], [Note 10] He ordered that the Section 8 assistance be reinstated.

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2. Discussion. We review a grant of summary judgment to determine whether there is any "genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Mass. R. Civ. P. 56 (c), as amended, 436 Mass. 1404 (2002). See Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120 (1991). Here, where we are considering the termination of a housing benefit, which is a "protected interest," Spence v. Gormley, 387 Mass. 258, 275 (1982), judicial review of the decision to terminate "has long been framed as a claim for deprivation of a vested property interest without due process of law." Wojcik v. Lynn Hous. Auth., 66 Mass. App. Ct. 103, 105 n.4 (2006) (Wojcik), and cases cited.

Pursuant to the regulations governing the Section 8 program, participating families have certain obligations relevant to, among other things, HUD's housing quality standards, or HQS. 24 C.F.R. § 982.404(b). The family is responsible for any breach of the HQS that is caused when "[a]ny member of the household or guest damages the dwelling unit or premises (damages beyond ordinary wear and tear)." 24 C.F.R. § 982.404(b)(1)(iii). When a family does cause such a breach, a public housing authority (PHA) has the authority to terminate Section 8 assistance. 24 C.F.R. § 982.552(c)(1)(i). [Note 11] The regulations further state that in determining whether to terminate assistance, 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).

Once a PHA -- in this case the LHA -- makes "a determination to terminate assistance for a participant family because of

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the family's action or failure to act," the housing authority "must" give the family an opportunity for a hearing. 24 C.F.R. § 982.555(a)(1)(v). [Note 12] Following the hearing, the person who conducts the hearing -- in this case the hearing officer -- "must issue a written decision, stating briefly the reasons for the decision. Factual determinations relating to the individual circumstances of the family shall be based on a preponderance of the evidence presented at the hearing." 24 C.F.R. § 982.555(e)(6). [Note 13]

The central issue in this case is whether the LHA complied with the applicable regulations. An experienced judge in the Housing Court concluded that the hearing officer erred by failing to indicate that he had considered "all relevant circumstances" as required by 24 C.F.R. § 982.552(c)(2)(i). We agree. [Note 14] As the Appeals Court stated in Wojcik, supra at 112, decided the same day as Carter:

"[A] decision whether to terminate 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' " (emphasis added).

The record in this case, such as it is, reveals little. The "relevant

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circumstances" as described in 24 C.F.R. § 982.552(c)(2)(i) include mitigating circumstances, in this case the plaintiff's disability (her severe hearing loss); the seriousness of the case, in this case the plaintiff's economic fragility suggesting that the termination of her Section 8 assistance could gravely affect her ability to afford housing; and the effects of termination of assistance on her as a member of the family who may not have been involved in the "waste" of Ryan's apartment. It is apparent that the thrust of the testimony of the plaintiff's witness was to the effect that the plaintiff was not responsible for the "waste" of Ryan's apartment. The hearing officer made no findings on that point, one way or another -- he simply summarized what the plaintiff and her witnesses testified to without any indication whether he credited their testimony -- leaving a question whether he thought the testimony was even relevant, as it clearly was. Furthermore, while there is no indication in the record that the plaintiff gave testimony of her economic fragility or disability at the hearing, both circumstances were obvious. [Note 15] More important, there is no indication in the hearing officer's brief written decision that he recognized that he had the discretionary authority to consider any of those relevant circumstances under 24 C.F.R. § 982.552(c)(2)(i). See Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 749 (2003), quoting Commonwealth v. Edgerly, 13 Mass. App. Ct. 562, 571 (1952) ("It is one thing to consider [a] right [to make a 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 to exercise it"). See also Commonwealth v. Fredette, 56 Mass. App. Ct. 253, 259 n.10 (2002) ("Failure to exercise discretion is itself an abuse of discretion"). The hearing officer's failure in this regard renders his report fatally defective.

The LHA argues that, while the hearing officer "may" consider

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"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.

While the hearing is informal, the governing regulation, 24 C.F.R. § 982.555(e)(6), "speaks of a hearing officer making both '[f]actual determinations' and a 'decision.' In particular, it refers to factual determinations relating to 'individual circumstances.' " Wojcik, supra at 110- 111. Reading 24 C.F.R. § 982.555(e)(6) and § 996.552(c)(2)(i) together, it is clear that, in a case such as this, the decision of a hearing officer must, at a minimum, reflect factual determinations relating to the individual circumstances of the family (based on a preponderance of the evidence at the hearing); demonstrate that he is aware of his discretionary authority under 24 C.F.R. § 982.552(c)(2)(i), to take all relevant circumstances (including mitigated circumstances) into account; and indicate whether he either did or did not choose to exercise that discretion in favor of mitigating the penalty (here termination of Section 8 benefits) in a particular case. See, e.g., Baldwin v. Housing Auth. of Camden, 278 F. Supp. 2d 365, 371 (D.N.J. 2003).

The LHA's suggestion, then, that there is no requirement that there be "any" factual determination in the written decision is simply not correct. If a hearing officer's decision contains no factual determinations, a reviewing court would be unable to discern whether the hearing officer exercised his discretion in considering the evidence presented. [Note 16] Although it may be that the hearing officer need not provide detailed findings of fact

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and conclusions of law, here the hearing officer made no factual findings of any kind, despite the fact that an inquiry by the hearing officer tracking the language of 24 C.F.R. § 982.552(c)(2)(i) [Note 17] -- in conjunction with documentation of his discretionary treatment of the response and of any obvious relevant factors [Note 18] -- would suffice to demonstrate that the report comports with the requirements of 24 C.F.R. § 982.552(c)(2)(i) and 24 C.F.R. § 982.555(e)(6). The hearing officer's failure to make any findings, coupled with his failure to indicate any awareness that he was explicitly authorized by HUD to exercise his discretion to take into account relevant circumstances, is contrary to our jurisprudence and cannot be sanctioned. See, e.g., Lonergan-Gillen v. Gillen, 57 Mass. App. Ct. 746, 749 (2003). [Note 19]

One quarter of a century ago, this court held that, while

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"housing is not within the small circle of interests recognized as 'fundamental,' " "[a] public housing tenancy is of great personal importance to the tenant and her family, who may have nowhere else to turn." Spence v. Gormley, 387 Mass. 258, 275 (1982). More recently, we noted that public housing tenants "represent some of the most needy and vulnerable segments of our population, including low-income families, children, the elderly, and the handicapped." Lowell Hous. Auth. v. Melendez, 449 Mass. 34, 40 (2007). It is for these reasons that a tenant's interest in her public housing tenancy "is a protected interest, entitling her to fair procedures before the government can terminate it." Spence v. Gormley, supra. The record in this case does not establish that the LHA afforded the tenant "fair procedure" before terminating her Section 8 benefits. Hearings such as the one at issue here are nominally and substantively informal, but paradoxically, the stakes are exceptionally high. Vulnerable tenants must not be deprived of protected interests solely on the basis of their lack of familiarity with the intricacies of regulations that, ironically, were designed to protect those very interests. [Note 20] The consequences to a tenant of a hearing officer's adverse decision are profound.

3. Conclusion. Judgment shall enter in the Housing Court remanding the matter to the hearing officer with instructions to provide the plaintiff with the opportunity to produce evidence of any relevant circumstances, to acknowledge as potentially mitigating any relevant circumstances, and to indicate affirmatively in his ruling the basis on which he chose to exercise or not his discretion under 24 C.F.R. § 982.552(c)(2)(i). See Wojcik, supra at 112-114.

So ordered.

IRELAND, J. (dissenting, with whom Spina, J., joins). I agree

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with the Appeals Court's decision to affirm the hearing officer's decision upholding the Lynn Housing Authority's (LHA's) termination of the plaintiff's Section 8 benefits for many of the reasons the court identified. Carter v. Lynn Hous. Auth., 66 Mass. App. Ct. 117, 125 (2006). Although the hearing officer did not make specific findings concerning credibility and the weight of evidence presented to him, I conclude that it is implicit in his written decision that he considered evidence of mitigating circumstances presented by the plaintiff who, under the pertinent regulations, bore the burden of producing it. The decision also demonstrates that the hearing officer understood that he had discretionary authority to terminate her assistance. Thus, however harsh the result in this case, I do not agree with the court's conclusion that the hearing officer's written decision in this case was "fatally defective," because the decision does not permit the court to determine whether the hearing officer knew that he had discretionary authority under the pertinent regulations to consider all circumstances in this case. Ante at 635.

Although the regulations do not explicitly place the burden of producing evidence of mitigating factors on a tenant, I conclude that it is implied by the provisions of 24 C.F.R § 982.555 (2006), governing the informal hearing. Under § 982.555(e)(5), the family must be given the opportunity to produce evidence and question any witnesses. The family has access to documents in a public housing authority's (PHA's) possession relevant to the hearing. See 24 C.F.R. § 982.555(e)(2)(i). A PHA has the opportunity to conduct discovery and present evidence, but there is no requirement that the PHA itself must present any evidence in its possession that could be considered as a mitigating factor in a tenant's case. See 24 C.F.R. § 982.555. Moreover, there is no provision that mandates that the hearing officer act as an advocate for a tenant or actively elicit information regarding mitigating circumstances. Id. Thus, I conclude that the court's suggestion, ante at note 17, that a hearing officer should actively elicit evidence about mitigating circumstances from a tenant by asking questions about all possible factors in mitigation and drawing inferences from observations of the tenant that are not based on evidence presented, is not envisioned by the Federal regulatory framework.

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See 24 C.F.R. § 982.555. [Note Ireland-1] The logical inference from the regulatory language as I read it is that a tenant who wants a hearing officer to consider mitigating circumstances must present them herself. [Note Ireland-2]

Here, there is no evidence in the record that the hearing officer or the LHA in this case affirmatively assisted the plaintiff. However, the LHA's termination letter to the plaintiff included a directive to bring correspondence and documents in support of her appeal to the hearing, as well as the address of a legal service agency in Lynn that could provide her with legal assistance. [Note Ireland-3] The regulations do not require any additional aid to the tenant.

I do not agree with the court's conclusion that the hearing officer made no factual findings or that his decision did not indicate that he was aware of his discretion to consider relevant circumstances. Ante at 637. Citing testimony and specific exhibits presented, he stated in his decision, albeit in a section entitled "The Hearing," instead of "Findings," that at the hearing, the plaintiff "denied leaving the apartment in any disrepair or with any damages beyond reasonable wear and tear" and that she presented evidence "regarding the condition of the apartment (Carter Exhibit 5) and also noted that in the Answers to Interrogatories (Carter Exhibit 6) the landlord stated he had made all repairs." The hearing officer also acknowledged that the plaintiff's two witnesses testified that they knew the plaintiff

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and had observed that she "kept up her unit." I conclude, contrary to the court, ante at 635, that the hearing officer's written decision leaves little question that either he did not credit this evidence or that he credited the evidence but still concluded that there had been a breach caused by someone for whom the plaintiff was responsible. See 24 C.F.R. § 982.404(b)(1)(iii) (2006) (The family is responsible for a breach of the [housing quality standards] that is caused by . . . [a]ny member of the household or guest . . .").

Certainly it would have been better for the hearing officer to state specifically his findings of credibility and that he weighed the plaintiff's evidence that she did not damage the property against the fact that she had a judgment against her for such damage. [Note Ireland-4] However, the credibility and weight he assigned to the evidence were implicit in his decision. See Adoption of Nancy, 443 Mass. 512, 516 (2005). The regulations do not require more of the hearing officer. Neither the Federal regulations that create the informal review process for termination of Section 8 benefits, see 24 C.F.R. § 982.555, nor the constitutional mandates of due process require the issuance of a long and detailed decision by a hearing officer. See Goldberg v. Kelly, 397 U.S. 254, 271 (1970) ("the decision maker should state the reasons for his determination and indicate the evidence he relied on . . . though his statement need not amount to a full opinion or even formal findings of fact and conclusions of law"). [Note Ireland-5]

Moreover, the plaintiff here does not appear to argue that the

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hearing officer omitted anything presented by the plaintiff herself at the hearing from his recital of the evidence, nor does she assert that she wanted to present evidence of her poverty and disability. A hearing officer cannot refuse to consider relevant mitigating circumstances presented at the hearing. However, as the Appeals Court recognized, his actual consideration of the mitigating factors -- the determination of the weight of each factor and the balancing of those factors against other evidence --is firmly committed to his discretion. See Carter v. Lynn Hous. Auth., 66 Mass. App. Ct. 117, 125 (2006). See also Davis v. Boston Elevated Ry., 235 Mass. 482, 496 (1920) (discretion "imports the exercise of discriminating judgment within the bounds of reason"). If a tenant challenges the decision of a hearing officer in State court, the court must not "simply substitute [its] judgment for that of the judge, rather, [it] ask[s] whether the decision in question 'rest[s] on whimsy, caprice, or arbitrary or idiosyncratic notions.' " Boulter-Hedley v. Boulter, 429 Mass. 808, 811 (1999), quoting Bucchiere v. New England Tel. & Tel. Co., 396 Mass. 639, 642 (1986).

Unlike the court, ante at 637, I also conclude that it is evident that the hearing officer explicitly recognized his discretion whether to terminate assistance. He stated that there was a court decision against the plaintiff awarding her former landlord damages for waste; that the housing authority had grounds to terminate the plaintiff's assistance because 24 C.F.R. § 982.404(b)(3) "states that if a family has caused such a breach, the housing authority 'must take prompt and vigorous action . . .' and may terminate assistance" (emphasis added); and that the assistance is "HEREBY

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FOUND TO BE TERMINATED." In addition, as the Appeals Court recognized, the plaintiff did not present any evidence to the hearing officer in support of a lesser sanction. See Carter v. Lynn Hous. Auth., supra at 125. [Note Ireland-6]

Here, the hearing officer did all that he was required to do based on the evidence presented at the informal hearing. There is no indication in the record, nor does the plaintiff assert, that evidence of her disability and her very low income was presented at the hearing, [Note Ireland-7] and therefore the hearing officer did not err by failing to consider them as mitigating circumstances. The testimony the plaintiff presented at the hearing concerning the condition of her apartment that she points to as another possible mitigating circumstance, was implicitly considered (and rejected)

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by the hearing officer in his decision. The hearing officer determined that the evidence (including the judgment against her) showed that the plaintiff or a family member had damaged the property. There was no evidence that the damage was caused by anyone else, and the fact that it may have been caused by a family member rather than the plaintiff herself would not operate to mitigate the plaintiff's liability for it. See 24 C.F.R. § 982.404(b)(1)(iii). Furthermore, the testimony at the hearing that the plaintiff cites concerning the results of the summary process case, and her suggestion that the settlement of the summary process case could have been a motivating factor in the landlord's claim for damages, did not constitute evidence of a relevant mitigating factor.

Federal law is clear that Congress has vested much power in housing authorities to administer public housing programs. See 42 U.S.C. § 1437(a)(C) (2000) ("It is the policy of the United States . . . to vest in public housing agencies that perform well, the maximum amount of responsibility and flexibility in program administration"). This power concerning the termination of Section 8 benefits is set forth explicitly in 24 C.F.R. §§ 982.551 et seq. Whatever my personal views about the power the regulations gives to a PHA and the consequences for the plaintiff in this case, I cannot say that the hearing officer did not fulfil his duty under the regulations. Accordingly, I respectfully dissent.