Opinion
15-P-615
06-05-2017
Suhail SANCHEZ v. NEW BEDFORD HOUSING AUTHORITY& another.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
Suhail Sanchez brought this action in the nature of certiorari under G. L. c. 249, § 4, seeking judicial review of the decision by the New Bedford housing authority (NBHA) to terminate her participation in the United States Department of Housing and Urban Development (HUD) Housing Choice Voucher Program and seeking damages under 42 U.S.C. § 1983. A Housing Court judge granted summary judgment in favor of the NBHA upholding the termination. We affirm.
Discussion. 1. Grounds for termination. 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). Carter v. Lynn Hous. Authy., 450 Mass. 626, 633 (2008). We must determine whether the termination was in accordance with the applicable regulation, 24 C.F.R. § 982.552 (2016). Carter, supra at 631. The Code of Federal Regulations requires a hearing upon request prior to termination of benefits. 24 C.F.R. § 982.555(a)(1)(iv) (2016). At the hearing, the hearing officer "must hear evidence and find facts relating to ‘all relevant circumstances,’ " and must recognize that he has the discretionary authority to consider any of those circumstances. Carter, supra at 634, quoting from Wojcik v. Lynn Hous. Authy., 66 Mass. App. Ct. 103, 112 (2006).
Here, the NBHA sought to terminate Sanchez's benefits because she failed to report the births of two of her grandchildren in the household within thirty days as required by § 13.5.2(g) of the NBHA administrative plan, and because she failed to pay rent for several months which was claimed to be a "serious or repeated" lease violation prohibited by § 13.5.2(d) of the NBHA administrative plan. The hearing officer's decision reflects a review of the evidence and Sanchez's testimony, and includes findings that Sanchez "never informed the NBHA of the birth[s]" and that her rent was in arrears.
Sanchez argues that the hearing officer committed an error of law by enforcing the requirement that she notify NBHA within thirty days of any birth in her household. Title 24 C.F.R. § 982.551(h)(2) (2016) requires "prompt [ ]" reporting of births. Sanchez contends that NBHA's thirty-day reporting requirement is contrary to law. We do not agree. Pursuant to Federal regulations, public housing authorities must adopt written administrative plans covering occupancy policies "in accordance with HUD requirements," 24 C.F.R. § 982.54(a), (d)(4) (2016). These plans will be upheld unless they are contrary to unambiguous governing law, or are an unreasonable construction of the law. Goldberg v. Board of Health of Granby, 444 Mass. 627, 633 (2005). The term "prompt" in the HUD regulation is not specific, and we cannot say that thirty days is an "[un]reasonable construction." Ibid.
2. Discretion of hearing officer. The hearing officer has discretion to impose a lesser sanction than termination of benefits, even after finding grounds for termination. Carter, 450 Mass. at 636. The hearing officer's decision must reflect a factual determination relating to individual circumstances, demonstrate awareness of the discretionary authority to mitigate the penalty, and indicate whether the officer did or did not choose to exercise that discretion. Ibid. Sanchez claims on appeal that the hearing officer failed to meet each of these standards. On the contrary, the hearing officer did make findings on mitigating circumstances: finding number six acknowledges Sanchez's reasons for not reporting the births within thirty days, and finding number seven acknowledges that Sanchez had paid back most of her rent arrearage by the time of the hearing.
The hearing officer also indicated his understanding of his obligation to consider all facts and circumstances by stating so at the end of his decision. He indicated that he chose not to exercise his discretion to mitigate the penalty by finding that "the participant did violate the above referenced program rules and the termination should be upheld" (emphasis supplied). See id. at 636-637 (hearing officer must make factual determination and decision).
3. Record on appeal. Sanchez next contends that the record of proceedings does not allow for meaningful appellate review and therefore violates due process. The Carter case belies this claim. In Carter, supra at 638, the Supreme Judicial Court ultimately vacated the decision of a hearing officer on an essentially similar record, which consisted primarily of the hearing officer's findings and decision. The record in that case was sufficient to provide meaningful appellate review, and in this case we find the record sufficient to determine that the hearing officer's decision was not arbitrary, capricious, or contrary to law.
Sanchez has not put forward any reason to believe that the hearing decision was authored by anyone other than the hearing officer, and we see no reason to disturb the finding of the Housing Court judge that the hearing officer was the author.
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4. Mootness. Finally, Sanchez argues that this appeal is moot based on a later voucher issued by NBHA and administered by the Brockton housing authority. This voucher was issued pursuant to the portability provisions of 24 C.F.R. §§ 982.353(b) and 982.355 (2016) and the order of the Housing Court requiring the NBHA to continue paying the voucher pending this litigation. At oral argument, both parties agreed that Sanchez would lose these benefits if this panel affirmed the judgment of the Housing Court. Therefore this appeal is not moot.
Conclusion. The judgment of the Housing Court is affirmed. The NBHA's request for appellate attorney's fees and costs is denied.
So ordered.
Judgment affirmed.