              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.
