          United States Court of Appeals
                        For the First Circuit


Nos. 15-1458
     15-1515

                        KIMBERLY P. DECAMBRE,

                Plaintiff, Appellant, Cross-Appellee,

                                  v.

 BROOKLINE HOUSING AUTHORITY; MATTHEW S. BARONAS; JANICE MCNIFF;
                          CAROLE BROWN,

               Defendants, Appellees, Cross-Appellants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. William G. Young, U.S. District Judge]


                                Before

                     Kayatta, Stahl, and Barron,
                           Circuit Judges.


     J. Whitfield Larrabee, with whom Law Offices of J. Whitfield
Larrabee, was on brief, for appellant.
     John Egan, with whom Amy M. McCallen and Rubin & Rudman, LLP,
were on brief, for appellees.
     Emily S. Starr, Starr, Vander, Linden, LLP, Ron M. Landsman,
and Ron M. Landsman, P.A., on brief for the National Academy of
Elder Law Attorneys, Inc., Special Needs Alliance, Inc., and
National Housing Law Project, amici curiae in support of appellant.
June 14, 2016
              KAYATTA, Circuit Judge.           Upon learning that disabled

tenant Kimberly DeCambre ("DeCambre") was receiving distributions

from an irrevocable trust account funded with the proceeds from a

series of legal settlements, the Brookline Housing Authority ("the

BHA") determined that DeCambre was "over-income" for continued

participation in a federal housing assistance program that the BHA

administered     at    the     local   level.       The   BHA   reaffirmed     this

determination over DeCambre's internal appeal and did not grant

DeCambre's requests that it exclude all, or at least some of, these

trust disbursements from its income calculation in reasonable

accommodation of her disability.                DeCambre then brought suit

against the BHA and three of its employees, alleging that the BHA

had violated state and federal law by miscalculating her income

under   the    pertinent     federal     regulations      and   by   engaging    in

disability-based discrimination.             See DeCambre v. Brookline Hous.

Auth., 95 F. Supp. 3d 35, 36–37 (D. Mass. 2015).                     The district

court voiced reservations about the BHA's income calculation, id.

at 49–51, and suggested that the BHA on "remand," id. at 51, could

provide "more thorough and thoughtful analysis," id. at 52, but

nevertheless ruled for the defendants on all counts.                     DeCambre

appealed, and the defendants cross-appealed the remand order.

Because   we    hold    that    the    BHA   incorrectly    construed     federal

regulations     in    calculating      DeCambre's    income,    we   reverse    the




                                       - 3 -
district court's judgment in part, thereby mooting the cross-

appeal.

                              I.     Background

            Section 8 of the United States Housing Act of 1937

("Housing Act"), added as part of a 1974 amendment, authorizes the

Department of Housing and Urban Development ("HUD") to devote

federal funds to housing assistance for "the purpose of aiding

lower-income families in obtaining a decent place to live and of

promoting economically mixed housing."               Housing and Community

Development Act of 1974, tit. 2, sec. 201, § 8(a), Pub. L. No. 93-

383,   88   Stat.    633,   662    (codified   as   amended    at   42   U.S.C.

§ 1437f(a)).    Under the Section 8 Federal Housing Choice Voucher

Program ("the Program"), HUD provides housing assistance funding

to state and local public housing authorities, which in turn

administer the Program at the local level by making rent subsidy

payments to landlords on behalf of participating tenants.                See 24

C.F.R. § 982.1(a)(1)–(2). The amount of a tenant's monthly subsidy

depends on her income.            Specifically, the Housing Act provides

that a participating tenant's subsidy is generally equal to her

total monthly rent obligation minus "30 percent of the monthly

adjusted    income     of   the      [tenant's]     family."        42   U.S.C.

§ 1437f(o)(2)(A)(i).




                                      - 4 -
                 DeCambre has participated in the Program, as locally

administered by the BHA, since 2005.1                As part of her obligation

to annually recertify her eligibility for the Program, DeCambre

was required each year to submit an Application for Continued

Occupancy, which asked her to list, among other things, her assets

and her sources of income.           In September 2013, DeCambre submitted

an application for the year beginning December 1, 2013. DeCambre's

application        listed   among    her    assets    a   trust    that   had   been

established by a Massachusetts court order in June 2010 to hold

DeCambre's proceeds from a series of tort settlements.                    The trust

had       been     established      as     an    irrevocable      disability-based

Supplemental Needs Trust ("SNT")--a type of trust that holds funds

on behalf of a disabled person, such as DeCambre, and that allows

the beneficiary's eligibility for certain Social Security and

state health benefits to remain unaffected by the funds held in

trust.      See 42 U.S.C. § 1396p(d)(4)(A); 130 C.M.R. § 520.008(H).

As an SNT, DeCambre's trust assigned a trustee "sole discretion to

determine how the property of the trust [would] be spent for the

needs of [DeCambre]," who was not herself permitted "voluntarily

or involuntarily [to] alienate the income or principal of the

trust."


      1The parties agreed to dispose of this case on a stipulated
factual record, so we draw our statement of the facts from the
parties' stipulations.    See Sánchez-Rodríguez v. AT&T Mobility
P.R., Inc., 673 F.3d 1, 4 (1st Cir. 2012).


                                         - 5 -
            Upon   receiving    the    September     2013   application      that

listed DeCambre's SNT among her assets, the BHA calculated based

on DeCambre's reported income that, effective December 1, 2013,

DeCambre's obligation toward her monthly rent of $1,560 would be

$435, with the BHA subsidizing the remainder.               At the same time,

the   BHA   notified      DeCambre    that    it   also   intended    to   count

disbursements from her SNT toward her income and so requested that

she provide the SNT's account statements from the past three years.

DeCambre    provided      the   requested      information,    and    in     mid-

December 2013 the BHA issued a Notice of Rent Adjustment, informing

DeCambre that because the BHA was now counting $62,828.99 in trust

disbursements toward DeCambre's 2013 income,2 DeCambre was "over-

income" for the Program and, effective February 1, 2014, would be

responsible for paying the entirety of her monthly rent without

any subsidy.

            Soon thereafter, DeCambre notified the BHA that she was

appealing   its    rent    adjustment    on    the   grounds   that    her    SNT

distributions should have been categorically excluded from income

under HUD regulations or, alternatively, on the grounds that

certain specific distributions should have been excluded under the

regulations as payments offsetting "the cost of medical expenses,"


      2Actual SNT disbursements during the relevant period totaled
$71,728.98, but the BHA excluded $8,899.99 of these disbursements
as exempt from income because they had been used to pay for trustee
fees, dental work, and a medically necessary air conditioner.


                                      - 6 -
24 C.F.R. § 5.609(c)(4), or as "[t]emporary, nonrecurring or

sporadic income," id. § 5.609(c)(9).          While the internal appeal

was pending, DeCambre also submitted a Request for Reasonable

Accommodation citing state and federal disability discrimination

law, asking that SNT distributions used to pay for automobiles,

cellular and landline phone services, and veterinary care for her

cats be excluded from her income on medical necessity grounds.

Following a May 27, 2014, hearing, a BHA hearing officer issued a

written opinion upholding the BHA's calculation of DeCambre's

income and expressing the view that "the BHA correctly denied Ms.

DeCambre's reasonable accommodation request."3

             On July 8, 2014, DeCambre sought reconsideration of the

hearing officer's decision regarding the BHA's income calculation

and   also    supplemented   her   previous    Request   for   Reasonable

Accommodation, this time requesting that all SNT distributions be

excluded from income on the grounds that she needed to maintain

her assets in an SNT in order to remain eligible for disability-

based Social Security and state health care benefits.           The next

day, DeCambre filed suit against the BHA and three BHA employees

in Massachusetts state court.        The operative complaint alleged

violation of DeCambre's civil rights under the Housing Act and the

Fourteenth Amendment, with relief sought under 42 U.S.C. § 1983


      3The hearing officer also found that the BHA acted in good
faith in scheduling a timely hearing.


                                   - 7 -
("Section      1983");    violation      of   state   and    federal

antidiscrimination law; breach of lease and interference with

DeCambre's quiet use and enjoyment of her residence in violation

of state law; and entitlement to declaratory, injunctive, and

mandamus relief under a smattering of legal and equitable remedial

theories.4

             After the defendants timely removed the suit to federal

court,5 DeCambre moved for a preliminary injunction enjoining the

BHA from including her SNT disbursements in her annual income and

requiring the BHA to reinstate her subsidy payments retroactively.

At a hearing on this motion, the parties agreed to collapse the

preliminary injunction and merits determinations into a single

proceeding and to allow the district court to resolve the case as

a "case stated"--a posture in which a district court is entitled

to decide a case on the merits on the basis of a factual record to




     4 The complaint also included a count titled "Preemption and
Federal Supremacy." It is unclear whether DeCambre intended this
count to assert an additional cause of action and, if so, what its
legal moorings would be. At any rate, the district court made no
mention of this claim, and DeCambre does not press it on appeal.
It is therefore abandoned. See Kearney v. Town of Wareham, 316
F.3d 18, 22 (1st Cir. 2002).
     5  The notice of removal (and the parties' statement of
stipulated facts) misstates the date on which DeCambre filed suit
in state court as August 8, 2014.     DeCambre had actually filed
suit in state court nearly a month prior, on July 9, 2014. Even
so, because it is uncontested that the defendants were first served
with the complaint no earlier than August 11, 2014, defendants'
removal to federal court on August 21, 2014, was timely in any
event. See 28 U.S.C. § 1446(b)(1).


                                 - 8 -
which       the    parties   have   stipulated,   along   with   any   factual

inferences the court draws from that record. See TLT Constr. Corp.

v. RI, Inc., 484 F.3d 130, 135 n.6 (1st Cir. 2007).              After hearing

the parties' arguments, the district court issued an opinion

denying DeCambre's Fourteenth Amendment and discrimination claims,

DeCambre, 95 F. Supp. 3d at 46–49, "affirm[ing] the decision of

the BHA in [its] income and rent calculations," id. at 52, and

denying DeCambre's motion for a preliminary injunction, id. at 51–

52.6

                  At the same time, the district court pointed to SNT

distributions that DeCambre had used to pay for cable, internet,

travel, and telephone service as "non-extravagant" expenditures

that could have been excluded from income, id. at 50–51; observed

that the BHA should have "determine[d] whether DeCambre's cats

could be categorized as emotional support animals," such that SNT

distributions used to pay for their veterinary care could have

been excluded from income as medical expenses, id. at 51; and found

that "the fact that title" to an automobile purchased with SNT

funds was "held by [DeCambre's] trust as an asset should preclude

[the SNT distribution used to purchase the car] from being counted




        6
       The district court also found that DeCambre "did not
adequately prove each element" of her state-law breach of lease
and interference with quiet use and enjoyment claims and so ruled
against her on those claims as well. DeCambre, 95 F. Supp. 3d at
41. DeCambre does not challenge these rulings on appeal.


                                       - 9 -
towards income," id.         In the wake of these observations, the

district court remanded DeCambre's case back to the BHA, seemingly

for "a more thorough determination of each potentially excludable

expense proffered by DeCambre," id., despite having "affirm[ed]

the decision of the BHA in [its] income and rent calculations,"

id. at 52.    DeCambre timely appealed the judgment against her, and

the defendants cross-appealed the district court's remand order.

             With   this   background        in    place,   we     proceed    to   our

analysis, starting as we must with the threshold question of

whether this court has the authority to hear these appeals.

                             II.     Jurisdiction

             Although      neither      party        contests       this      court's

jurisdiction, "an appellate court has an unflagging obligation to

inquire sua sponte into its own jurisdiction," including its

appellate jurisdiction.          Watchtower Bible & Tract Soc'y of N.Y.,

Inc.   v.   Colombani,     712   F.3d   6,    10    (1st    Cir.    2013)    (quoting

Charlesbank Equity Fund II v. Blinds to Go, Inc., 370 F.3d 151,

156 (1st Cir. 2004)).

             The March 26, 2015, order that the parties have appealed

reads, in full:

             In accordance with the Court's Memorandum and
             Order dated March 25, 2015, the motion for
             preliminary injunction is therefore DENIED,
             and DeCambre's appeal of her Section 8
             eligibility is REMANDED to the [BHA].




                                     - 10 -
While this court has appellate jurisdiction over a denial of a

preliminary injunction, see 28 U.S.C. § 1292(a)(1), our ability to

assume appellate jurisdiction over a case's merits is typically

triggered only by a "final decision[]," id. § 1291.                 In keeping

with our understanding that a final decision is one that "ends the

matter in dispute, leaving nothing to be done but the execution of

the judgment," Foxworth v. Maloney, 515 F.3d 1, 3 (1st Cir. 2008),

"a district court order that remands to an administrative agency

for further proceedings is not [necessarily] considered a 'final

decision.'"     Global Naps, Inc. v. Mass. Dep't of Telecomms. &

Energy, 427 F.3d 34, 41 (1st Cir. 2005).

             Here, however, it is not clear from the district court's

opinion   exactly      what    further   proceedings     the    district   court

anticipated following remand to the BHA. While the opinion appears

to find possible error in the BHA's income calculation, see

DeCambre, 95 F. Supp. 3d at 49–51, and suggests that the BHA may

be required to "perform a more thorough determination of each

potentially excludable expense proffered by DeCambre," id. at 51,

it   at   the   same    time    purports   to   affirm    the    BHA's     income

calculation, see id. at 52, and explicitly "upholds the BHA's

determination in terminating DeCambre's Section 8 eligibility,"

id. at 51.




                                    - 11 -
          Compounding this uncertainty, nearly three months into

the pendency of this appeal, the district court purported to reopen

the case and enter a retroactive order that reads, in full:

          Judgment for the Defendants on all claims
          asserted against them in the Plaintiff's First
          Amended Complaint, and the appeal of the
          Plaintiff's Section 8 eligibility is remanded
          to the [BHA].

The district court established no basis for its attempt to reassert

jurisdiction   over   a   case    already   embroiled   in   appellate

proceedings, and so the order does not in itself hold legal force.7

See Griggs v. Provident Consumer Disc. Co., 459 U.S. 56, 58 (1982)

(per curiam) ("The filing of a notice of appeal is an event of

jurisdictional significance--it confers jurisdiction on the court

of appeals and divests the district court of its control over those

aspects of the case involved in the appeal.").     However, in light

of the ambiguity as to the intention behind the original March 26

order, this court understood the district court's later-in-time




     7 Several courts have held that a district court retains
jurisdiction to certify a matter for appeal under Federal Rule of
Civil Procedure 54(b) notwithstanding the fact that the appeal has
already been docketed. See, e.g., Crowley Mar. Corp. v. Pan. Canal
Comm'n, 849 F.2d 951, 953–54 & n.1 (5th Cir. 1988). But even were
we to adopt this rule in our circuit--an issue we do not decide
today--the district court's order, although entered in response to
DeCambre's motion for entry of judgment under Rule 54(b), does not
fall within the rule's scope. Rule 54(b) permits a district court,
under certain circumstances, to "direct entry of a final judgment
as to one or more, but fewer than all, claims." Fed. R. Civ. P.
54(b). Here, however, the order purported to establish judgment
for all defendants on all claims.


                                 - 12 -
order as an indication of its wish to provide clarification.                Cf.

United States v. Maldonado-Rios, 790 F.3d 62, 65 (1st Cir. 2015)

(per curiam) (district court order entered after appellate court

had already assumed jurisdiction could be treated as a purely

indicative   ruling).       Accordingly,    we    remanded    to   permit   the

district court to do so.      See 1st Cir. R. 12.1(b).

             On   remand,    the   district      court   entered    an   order

clarifying that the March 26 order that forms the subject of this

appeal was intended to enter judgment for the defendants on all

counts,   despite   referring      only   to     DeCambre's   motion     for   a

preliminary injunction, and that the order's provision for a remand

to the BHA "was simply to indicate that the [BHA] had primary

jurisdiction over this matter." In other words, the March 26 order

denied DeCambre all the relief she sought and required no further

proceedings in the BHA.8       It is therefore a final decision that,

if left to stand, would "end[] the matter in dispute," Foxworth,

515 F.3d at 3, and that therefore triggers this court's appellate

jurisdiction over the dispute's merits.




     8 Despite this clarification, the defendants have not asked
us to dismiss their cross-appeal of the remand order that
effectively demands nothing of them. But because we ultimately
hold the cross-appeal to be moot on other grounds, we need not
decide whether the district court's clarification of the remand
order itself moots the cross-appeal, which was predicated on the
understandable impression that the remand order required the BHA
to "'reconsider[]' . . . DeCambre's appeal of her Section 8
eligibility."


                                   - 13 -
             With our jurisdiction thus established, we turn now to

the merits. Because the parties agreed to allow the district court

to adjudicate the merits on a case stated basis, we review the

district court's legal conclusions de novo and its factual findings

and inferences for clear error.          See Watson v. Deaconess Waltham

Hosp., 298 F.3d 102, 108 (1st Cir. 2002).

           III.   The BHA's Calculation of DeCambre's Income

             DeCambre's primary claim on appeal is that the BHA

calculated     her   income    incorrectly       under   the   relevant     HUD

regulations and that the resultant overstatement of her income

diminished the amount of her monthly Section 8 subsidy--in this

case, to zero.9 DeCambre contends that this alleged miscalculation

violates    not   only   the   Housing    Act,    pursuant     to   which   the

regulations at issue were promulgated, but also the Fourteenth

Amendment.    We address these contentions in reverse order.


     9 Although DeCambre has also sued three named BHA employees,
the district court observed that DeCambre has neglected to indicate
whether she is suing these employees in their individual or
official capacities. DeCambre, 95 F. Supp. 3d at 47. DeCambre
has not corrected this oversight on appeal.      Nor does DeCambre
challenge the district court's determination that the employees
are shielded from an individual-capacity suit by the doctrine of
qualified immunity, which leaves state agents personally liable
for violation of only those statutory or constitutional rights
that have been "clearly established."      Id. (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). We therefore understand
DeCambre to have intended an official-capacity suit, which we treat
as "the functional equivalent of a suit against the sovereign."
Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825, 834 (1st Cir.
2015). Our opinion will accordingly treat all of DeCambre's claims
as leveled exclusively against the state agency.


                                  - 14 -
A.    DeCambre's Fourteenth Amendment Claims

            DeCambre       claimed     below     that    the       BHA's       allegedly

erroneous   income     calculation         deprived   her   of     substantive      and

procedural due process under the Fourteenth Amendment, and she

sought relief under Section 1983.               See Gianfrancesco v. Town of

Wrentham, 712 F.3d 634, 639 (1st Cir. 2013) (Section 1983 provides

cause of action for constitutional due process claims).                             The

district court rejected these constitutional claims on the merits,

and DeCambre's opening brief on appeal does not attempt to revive

them, grounding DeCambre's claim to Section 1983 relief solely on

the BHA's alleged violation of rights conferred by the Housing Act

rather than the Constitution.               DeCambre has therefore abandoned

her Fourteenth Amendment claims.              See Juárez v. Select Portfolio

Servicing, Inc., 708 F.3d 269, 273 n.3 (1st Cir. 2013).

B.    DeCambre's Housing Act Claims

            Under    the    Housing    Act,     a   Section    8    participant      is

typically   responsible       for    paying     "30   percent      of    the    monthly

adjusted income of [her] family" toward rent, after which the

public housing authority subsidizes any remaining rent obligation.

42 U.S.C. § 1437f(o)(2)(A)(i).             A tenant's "adjusted income," per

HUD    regulations,    equals        her    "annual     income,"        less    certain




                                       - 15 -
specified deductions.10   24 C.F.R. § 5.611.    The regulations define

"annual income," in turn, as, in relevant part, "all amounts,

monetary or not, which . . . [g]o to, or on behalf of" the tenant

or her family, or which "[a]re anticipated to be received from a

source outside the family" during the relevant year, and which are

not "specifically excluded."    Id. § 5.609(a).       Among the amounts

specifically excluded from annual income are "[l]ump-sum additions

to family assets, such as . . . settlement for personal or property

losses," id. § 5.609(c)(3), "[a]mounts received . . . that are

specifically for, or in reimbursement of, the cost of medical

expenses," id. § 5.609(c)(4), and "[t]emporary, nonrecurring or

sporadic income," id. § 5.609(c)(9).

           DeCambre argues that because the funds in her SNT derive

from a series of lump-sum settlement payouts, the BHA was required

to exclude all of her SNT disbursements from her annual income.

In   the   alternative,   DeCambre   argues    that   several   specific

disbursements that were counted toward her annual income should

have been excluded because they fell into either the "medical

expenses" exclusion or the "[t]emporary, nonrecurring or sporadic

income" exclusion.   Before we turn to the merits of these claims,

however, we must first determine whether alleged Housing Act




     10 Intuitively, "monthly adjusted income" is calculated by
dividing a tenant's "adjusted income" by twelve.      24 C.F.R.
§ 5.603(b).


                                - 16 -
violations of this type give rise to a cause of action under state

or federal law.

       1.     DeCambre's Cause of Action

               "Statutory rights and obligations are established by

Congress, and it is entirely appropriate for Congress . . . to

determine . . . who may enforce them and in what manner."              Davis

v. Passman, 442 U.S. 228, 241 (1979).          DeCambre does not contend

that    the    Housing   Act   itself   expressly   authorizes    individual

plaintiffs to seek legal redress for violations.                 Rather, she

argues primarily that the Housing Act creates rights that may be

enforced under Section 1983, which enables a private plaintiff to

bring suit against, inter alia, state agencies for "the deprivation

of any rights . . . secured by the Constitution and laws."11              42

U.S.C. § 1983.


       11
        At oral argument, and in her complaint, DeCambre also
asserted that the Massachusetts judicial review and certiorari
statutes afforded her a cause of action. See Mass. Gen. Laws ch.
30A, § 14 (judicial review); id. ch. 249, § 4 (certiorari).
Massachusetts courts have suggested that the actions of public
housing authorities are subject to judicial review under one or
the other of these statutes. See Rivas v. Chelsea Hous. Auth.,
982 N.E.2d 1147, 1151–52 (Mass. 2013) (following lower court in
reviewing tenant's termination from state voucher program under
judicial review statute); Costa v. Fall River Hous. Auth., 881
N.E.2d 800, 802 (Mass. App. Ct. 2008) (reviewing termination of
tenant's Section 8 subsidy under certiorari statute). Because we
find that DeCambre has a cause of action under Section 1983,
because she seeks no relief under state law that is unavailable
under Section 1983, and because she has not adequately developed
(and has therefore waived) any state-law argument, see United
States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990), we find it
unnecessary to resolve the unbriefed question of whether


                                    - 17 -
          Many federal statutory rights are enforceable under

Section 1983.    See Maine v. Thiboutot, 448 U.S. 1, 4–8 (1980).            In

determining   whether   any   given     statutory    provision    creates   an

enforceable right, we ask whether the provision "unambiguously

confer[s] [a] right to support a cause of action."            Colón-Marrero

v. Vélez, 813 F.3d 1, 17 (1st Cir. 2016) (second alteration in

original) (quoting Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002)).

Specifically,    we   determine   (1)   whether     the   provision   clearly

creates a right that redounds to the benefit of the plaintiff; (2)

whether the right the provision supposedly confers is not too

"vague and amorphous" to be enforceable; and (3) whether the

provision creates a binding obligation on the state.             Id. (quoting

Blessing v. Freestone, 520 U.S. 329, 340 (1997)).                If we answer

these questions in the affirmative, the provision is presumptively

enforceable under Section 1983, and it becomes the defendant's

responsibility to demonstrate that Congress nonetheless intended

to bar Section 1983 relief for violation of the right at issue.

See id. at 20.

          The BHA's brief unhelpfully conflates the question of

whether DeCambre has a cause of action under Section 1983 with its




Massachusetts law creates a cause of action for the specific
violation alleged here--namely, miscalculation of a Section 8
tenant's annual income.


                                  - 18 -
attack     on    the   merits   of    DeCambre's     constitutional    claims.12

Nowhere has the BHA attempted to engage our three-pronged framework

for determining whether a federal statute creates a right that may

be enforced under Section 1983.            While the BHA does seem to rely

on   the   district     court's      determination    that   no   "statutory   or

judicial authority mandat[es] that SNT distributions are excluded

from income calculations," DeCambre, 95 F. Supp. 3d at 48, such a

determination goes to the merits question of whether the BHA's

income calculation violated DeCambre's rights; it does not speak

to the threshold question of whether the Housing Act gives DeCambre

an enforceable right not to be required to put more than 30% of

her monthly adjusted income, however calculated, toward her rent.

                Thankfully, the Supreme Court has provided guidance in

the context of a similar Housing Act provision in Wright v. City

of Roanoke Redevelopment & Housing Authority, 479 U.S. 418 (1987).

In Wright, the Court considered a provision of the 1969 Brooke

Amendment, Pub. L. No. 91-152, tit. 2, sec. 213, 83 Stat. 389,


      12In arguing that DeCambre has no cause of action under
Section 1983, the BHA primarily echoes the district court's
determination that DeCambre has provided no persuasive argument
"as to whether [she] has a constitutionally protected property
right to the regulatory rent ceiling." DeCambre, 95 F. Supp. 3d
at 48. Such an argument, however, says nothing about whether or
not DeCambre has a cognizable statutory right to pay no more than
30% of her income in rent. Indeed, the district court must have
implicitly found that DeCambre had some cause of action; otherwise,
there would have been no reason for the court to have addressed
the merits of her contention that the BHA improperly calculated
her annual income.


                                       - 19 -
which, as amended, provided that "[a] family" living in a public

housing project "shall pay as rent" a specified percentage of its

income, Wright, 479 U.S. at 420 n.2 (quoting 42 U.S.C. § 1437a(a)

(1982)).     Although the Brooke Amendment itself said nothing about

utilities charges, HUD regulations made clear that "rent" under

the Brooke Amendment's rent ceiling provision included not only a

tenant's contract rent, but also "a reasonable amount for the use

of utilities."        Id. at 420.      Three tenants brought suit against

their public housing authority, alleging that the agency had

violated     this     regulatory    guarantee      by     imposing    a    utilities

surcharge that, when combined with their contract rent, brought

their   monthly        payments     above    the        statutorily       permissible

percentage.      Id. at 421–22.

              The Court held that the tenants had asserted a cognizable

cause of action under Section 1983, id. at 419, finding "little

substance"     in     the   claim   that    the    Brooke    Amendment        and   HUD

regulations provided "no enforceable rights within the meaning of

[Section] 1983," id. at 430.

              The Brooke Amendment could not be clearer: as
              further amended in 1981, tenants could be
              charged as rent no more and no less than 30
              percent of their income. This was a mandatory
              limitation focusing on the individual family
              and its income. The intent to benefit tenants
              is undeniable.

Id.     Nor     was    it   relevant    that      the    tenants     relied    on   an

interpretation of the right that appeared in HUD regulations rather


                                       - 20 -
than in the statutory text, given the interpretive deference owed

to HUD as the agency responsible for implementing the Brooke

Amendment.      Id.   Finally, the Court rejected the contention that

"the provision for a 'reasonable' allowance for utilities is too

vague   and    amorphous   to   confer    on   tenants"   a   right   that   is

enforceable under Section 1983.          Id. at 431.

              The BHA offers no reason that Wright's interpretation of

the Brooke Amendment's rent ceiling does not apply foursquare to

Section 8's rent ceiling, which provides:

              [T]he monthly assistance payment for a family
              receiving assistance under [the voucher
              program] shall be determined as follows: . . .

              For    a   family    receiving    tenant-based
              assistance, if the rent for the family
              (including the amount allowed for tenant-paid
              utilities) does not exceed the applicable
              payment standard established [in a separate
              provision], the monthly assistance payment for
              the family shall be equal to the amount by
              which the rent (including the amount allowed
              for   tenant-paid   utilities)   exceeds   the
              greatest of the following amounts, rounded to
              the nearest dollar:

                   (i)     30 percent of the monthly
                           adjusted  income of   the
                           family.

                   (ii)    10 percent of the monthly
                           income of the family.

                   (iii)   If the family is receiving
                           payments    for     welfare
                           assistance from a public
                           agency and a part of those
                           payments,    adjusted    in
                           accordance with the actual


                                   - 21 -
                        housing costs of the family,
                        is specifically designated
                        by that agency to meet the
                        housing costs of the family,
                        the    portion   of    those
                        payments    that    is    so
                        designated.

42 U.S.C. § 1437f(o)(2)(A).      As in Wright, the statutory language

"unambiguously confer[s] 'a mandatory [benefit] focusing on the

individual family and its income.'"           Gonzaga, 536 U.S. at 280

(second alteration in original) (quoting Wright, 479 U.S. at

430).13   As in Wright, HUD regulations flesh out the contours of

the statutory right, rendering that right "sufficiently specific

and definite to qualify as enforceable."       Wright, 479 U.S. at 432.

And as in Wright, the Section 8 rent ceiling's specification that

a tenant's monthly subsidy "shall be equal" to rent minus a

percentage   of   income,   42   U.S.C.   §   1437f(o)(2)(A)   (emphasis

supplied), creates a "mandatory limitation," Wright, 479 U.S. at

430, that is not cast in precatory terms.14


     13 Although Wright preceded the Court's admonition in Gonzaga
University v. Doe, 536 U.S. 273 (2002), that "it is rights, not
the broader or vaguer 'benefits' or 'interests,' that may be
enforced under the authority of [Section 1983]," id. at 283, the
Gonzaga Court did not overrule Wright, see id. at 289–90, which in
any event did find that the Brooke Amendment established
"enforceable rights," Wright, 479 U.S. at 432 (emphasis supplied).
     14 Although DeCambre here focuses on the calculation of her

annual income rather than the calculation of her rent, the two are
flip sides of the same coin. Section 8 defines the amount of a
tenant's rent subsidy entitlement in direct relation to the
tenant's income. See 42 U.S.C. § 1437f(o)(2)(A). It follows that
any overstatement of a tenant's income necessarily results in an
understatement of her subsidy.


                                 - 22 -
            The       Fifth    Circuit    has       held   that    Wright's    analysis

applies with full force to the Section 8 rent ceiling provision.

See Johnson v. Hous. Auth. of Jefferson Par., 442 F.3d 356, 360–

62 (5th Cir. 2006) (finding that Section 8 voucher recipients can

bring a Section 1983 challenge to a public housing authority's

calculation of their utilities allowance because an inadequate

allowance would violate their right not to "pay more out of pocket

than 30 percent of their incomes for housing," id. at 362); cf.

Daniels v. Hous. Auth. of Prince George's Cty., 940 F. Supp. 2d

248, 259 (D. Md. 2013) (tenant could bring a Section 1983 suit to

enforce    her    "federal      right    to     a    properly     calculated    housing

subsidy" under an analogously worded Housing Act provision).                          And

although    courts       have    found    that       certain      other    Housing    Act

provisions       do   not     create   rights       that    may   be   enforced   under

Section 1983, these provisions are materially distinguishable from

the rent ceiling provisions of the Brooke Amendment and Section 8.

See, e.g., Johnson v. City of Detroit, 446 F.3d 614, 627 (6th Cir.

2006)   (Housing       Act's    housing    quality         standards      provision   not

enforceable under Section 1983 because of its "focus on the entity

being regulated" and not on the tenant (quoting Johnson v. City of

Detroit, 319 F. Supp. 2d 756, 764 (E.D. Mich. 2004))); Banks v.

Dall. Hous. Auth., 271 F.3d 605, 610 (5th Cir. 2001) (right to

"decent, safe, and sanitary" housing under 42 U.S.C. § 1437f(e)

not enforceable under Section 1983, in part because the statutory


                                         - 23 -
provision lacked "[t]he specificity of [the Brooke Amendment's

rent ceiling provision], coupled with its focus on the tenants");

cf. also Caswell v. City of Detroit Hous. Comm'n, 418 F.3d 615,

620 (6th Cir. 2005) (regulatory right to continued subsidies during

eviction proceedings not enforceable under Section 1983 where,

unlike in Wright, the regulation interpreted a statutory provision

that did not itself, "in clear and unambiguous terms, confer[] a

particular right upon the tenant").15 In light of the close textual

similarity between the Brooke Amendment's rent ceiling and the

rent ceiling at issue here, the Supreme Court's continued approval

of Wright, see Gonzaga, 536 U.S. at 289–90, and the weight of

persuasive      authority   from    a   sister    circuit,     we   hold   that

Section   8's    rent   ceiling    provision     confers   a   right   that   is

presumptively enforceable under Section 1983.




     15 See also McField ex rel. Ray v. Phila. Hous. Auth., 992 F.
Supp. 2d 481, 487 (E.D. Pa. 2014) (Housing Act provision requiring
public housing authorities to conduct inspections of certain units
did not create a right enforceable under Section 1983 because of
the provision's focus on the regulator and not the tenants); Koroma
v. Richmond Redevelopment & Hous. Auth., No. 3:09cv736, 2010 WL
1704745, at *5–6 (E.D. Va. Apr. 27, 2010) (Housing Act provision
providing that a tenant currently receiving Section 8 assistance
"may" continue to receive such assistance upon moving to another
participating housing unit did not create a right enforceable under
Section 1983); Anderson v. Jackson, No. 06-3298, 2007 WL 458232,
at *6 (E.D. La. Feb. 6, 2007) (provision that "[u]nlike [the Brooke
Amendment and the Section 8 rent ceiling provision], . . . does
not focus on the rights of individual residents and families" did
not create a right enforceable under Section 1983).


                                    - 24 -
             The presumptive availability of Section 1983 relief can,

however, be rebutted through a showing of "[c]ongressional intent

to 'shut the door to private enforcement'" of the rent ceiling.

Colón-Marrero, 813 F.3d at 20 (quoting Gonzaga, 536 U.S. at 284

n.4).   Such an intent could be manifest either in "language in the

[Housing   Act]   itself    specifically      foreclosing        a   remedy   under

[Section 1983] or by implication from Congress's creation of 'a

comprehensive     enforcement       scheme    that    is    incompatible      with

individual enforcement.'"        Id. (quoting Gonzaga, 536 U.S. at 284

n.4).   That said, we are not to "lightly conclude" that Congress

intended to bar private enforcement of a federal right that is

presumptively enforceable under Section 1983.              Wright, 479 U.S. at

423–24 (quoting Smith v. Robinson, 468 U.S. 992, 1012 (1984)).

             We need not rule on this question today; it suffices

merely to observe that the BHA has manifestly failed to develop

any   argument    that   Congress    expressly       or   impliedly     sought    to

preclude     private     enforcement    of    Section      8's       rent   ceiling

provision.    See Colón-Marrero, 813 F.3d at 20 ("Appellant makes no

meaningful     attempt     to   rebut    [the    presumption          of    private

enforceability], and we could thus end our analysis here.").                     The

BHA points to no textual indications of such a bar.                   Nor does the

BHA demonstrate any alternative avenue through which tenants can

vindicate their rights under Section 8's rent ceiling provision.

Cf. Wright, 479 U.S. at 428 (beyond HUD's "generalized powers" to


                                     - 25 -
conduct audits, enforce certain contracts, and cut off federal

funds, "[t]here are no other mechanisms provided to enable HUD to

effectively oversee the performance of the some 3,000 local [public

housing authorities] across the country").           We therefore hold that

the BHA has waived any challenge to the presumptive availability

of a Section 1983 cause of action for violations of the Section 8

rent    ceiling   provision,     without       entirely   foreclosing     the

possibility that a future litigant may be able to successfully

raise such a challenge.

             We are cognizant that the availability of a federal

lawsuit as a means of challenging the income calculations made by

public housing authorities may appear to risk overcrowding the

federal docket.    Four considerations, however, at least partially

ameliorate such concerns.      First, the benefits decisions of public

housing authorities are in many places already subject to judicial

review under state law.        See, e.g., Mathis v. D.C. Hous. Auth.,

124 A.3d 1089, 1099 (D.C. 2015); Walker v. Dep't of Hous. & Cmty.

Dev., 29 A.3d 293, 309 (Md. 2011); Rivas v. Chelsea Hous. Auth.,

982 N.E.2d 1147, 1151–52 (Mass. 2013); Banks v. Hous. Auth. of

Omaha, 795 N.W.2d 632, 633 (Neb. 2011).          Recognition of a federal

cause   of   action,   then,   may    affect   the   distribution   but   not

necessarily the volume of litigation.          Second, courts will likely

apply a healthy measure of deference to the more fact-bound

determinations of public housing authorities, see infra notes 20–


                                     - 26 -
21, and so the long odds of success on any challenge to this

discretion will counsel against the time and expense of litigation

in most instances.              Third, the instant case provides an apt

illustration of a countervailing concern--the need for national

uniformity in resolving certain fundamental interpretive questions

regarding the parameters of a federal benefit.                  Where, as here, a

voucher recipient's annual income could vary by over $62,000

depending on one's interpretation of federal law, the drawbacks of

allowing judicial interpretation to reside exclusively at the

state or local level are self-evident.             Fourth, Wright was decided

nearly three decades ago, and Johnson extended Wright to the

Section     8    context   in    the   Fifth   Circuit   over    ten   years   ago.

Meanwhile, no circuit court has yet declined to apply Wright to

Section 8's rent ceiling provision.               The gates to federal court,

in other words, have long been open, and no flood has yet arrived.

                With this threshold matter resolved, we turn now to the

legal question at the heart of DeCambre's case--whether the BHA in

fact    violated       DeCambre's        rights    under    federal      law      by

miscalculating her monthly assistance payment.

       2.       Inclusion   of  Settlement-Funded          Irrevocable         Trust
                Distributions in Income

                We deal first--and, as it happens, exclusively--with

DeCambre's contention that the BHA misapplied HUD regulations by

including the disbursements from her SNT in her annual income.



                                        - 27 -
DeCambre's SNT was funded exclusively with the proceeds from a

series of tort settlements.         Had those settlement proceeds been

paid directly to DeCambre, the parties agree that they would have

been treated as a "[l]ump-sum addition[] to family assets," and

therefore   would   have   been    categorically    excluded   from   annual

income   upon    receipt   under     HUD's   regulations.       24    C.F.R.

§ 5.609(c)(3).      Instead, DeCambre agreed to have the settlement

proceeds paid into an irrevocable, disability-based SNT, out of

which some of those same funds were later disbursed for her benefit

at the discretion of the trustee.

            HUD addresses irrevocable trusts in the portion of 24

C.F.R. § 5.603(b) ("section 5.603(b)") that defines the term "net

family assets."     The relevant passage states as follows:

            In cases where a trust fund has been
            established and the trust is not revocable by,
            or under the control of, any member of the
            family or household, the value of the trust
            fund will not be considered an asset so long
            as the fund continues to be held in trust.
            Any income distributed from the trust fund
            shall be counted when determining annual
            income . . . .

Id. § 5.603(b).      Because funds held in an irrevocable trust are

not considered assets under section 5.603(b) so long as they are

held in trust, they escape HUD's default rule that effectively

requires any income generated by a tenant's assets to be counted

toward her annual income upon accrual.             See id. § 5.609(a)(4),




                                   - 28 -
(b)(3).16      Once     an   irrevocable     trust's    accrued      income   is

distributed, however, it "shall be counted when determining annual

income."    Id. § 5.603(b).        In short, a plain aim and effect of

section 5.603(b) is to postpone the recognition of income derived

from    holdings   in   an   irrevocable      trust   until    the   income   is

distributed out of the trust.        On all of this, the parties appear

to agree.

            The dispute concerns, instead, what happens when the

trust distributes to or for the benefit of the tenant some or all

of the principal originally paid into the trust.              DeCambre's trust

generated     no   substantial     earnings     or    other   income;    hence,

essentially all disbursements were disbursements of principal.

DeCambre maintains that this disbursed principal retained the

character and classification that it would have had (as a lump-

sum addition to family assets, not counted toward annual income)

had it been paid directly to her, rather than having first been

routed through the irrevocable trust.            The BHA concedes that the

regulations    themselves     do   not   "squarely"      address     DeCambre's

argument, but it contends that there are at least three reasons to

reject DeCambre's ultimate position that the disbursements of her




       16
        When a tenant's assets exceed $5,000, a minimum income
generation is assumed based on a percentage rate determined by
HUD. 24 C.F.R. § 5.609(b)(3).


                                    - 29 -
irrevocable trust principal should not have counted toward her

annual income.

            First, and only briefly in a footnote, the BHA argues

that section 5.603(b)'s statement that "[a]ny income distributed

from [an irrevocable] trust fund shall be counted when determining

annual income," 24 C.F.R. § 5.603(b), means that "any disbursement

from [an SNT] is counted toward annual income." But the BHA itself

rejected such a broad, categorical reading of section 5.603(b) by

excluding from DeCambre's annual income certain SNT disbursements

that reimbursed medical expenses.          Moreover, an advisory letter

that the BHA treats as controlling, authored by one of HUD's

regional offices, expressly states that "[n]ot all distributions

from a[n] SNT should be counted towards [a Section 8] applicant's

annual income."    U.S. Dep't of Hous. & Urban Dev., New England PIH

Advisory Letter #07-05 (Apr. 18, 2007) (hereinafter, "Advisory

Letter").       Rather,    the   letter     provides      that   only   those

disbursements "that do not fall under an exclusion or deduction

are . . . counted towards annual income."           Id.    If read to cover

only   income     earned    on   the      trust's   principal,      however,

section 5.603(b)'s reference to "income distributed from the trust

fund," 24 C.F.R. § 5.603(b), serves a straightforward function:

it ensures that the irrevocable trust income that would otherwise

count immediately upon accrual toward annual income as an "amount[]

derived . . . from [a tenant's] assets," id. § 5.609(a)(4), but


                                  - 30 -
that does not do so because of section 5.603(b)'s stipulation that

an irrevocable trust fund "will not be considered an asset so long

as the fund continues to be held in trust," id. § 5.603(b), does

eventually count toward annual income when it is disbursed.17                   Were

the   reference,     instead,     intended     to    define   irrevocable   trust

disbursements as a distinct category that must in all cases count

toward annual income, one would have expected HUD to place the

reference under the definition of "annual income" and not as a

caveat appended to a provision ostensibly aimed at explaining how

irrevocable trusts fit into the definition of "net family assets."

For    these    reasons,   we    conclude      that    the    word   "income"    in

section 5.603(b) does not include the principal that initially

funded the trust.

               Of course, our conclusion that not all disbursements

from an SNT are "income" under section 5.603(b) does not resolve

the issue at hand.      The definition of "annual income" is certainly

not limited to income on investments.               Rather, it encompasses "all

amounts . . . which . . . [g]o to . . . the family head or spouse,"

id.     §   5.609(a)(1),        unless     those      amounts    are   otherwise

"specifically excluded" under the regulations, id. § 5.609(a)(3).

So    the   question   remains:          did   DeCambre's     irrevocable   trust


       17
       We acknowledge the assistance of amici National Academy of
Elder Law Attorneys, Inc.; Special Needs Alliance, Inc.; and
National Housing Law Project in elaborating this reading of
section 5.603(b).


                                     - 31 -
principal, which would have been classified as a "specifically

excluded," id., "[l]ump-sum addition[] to family assets," id.

§ 5.609(c)(3), had it been paid directly to DeCambre, retain or

regain    that    classification    despite   having   first   been    routed

through an SNT?

            This question moves us to the BHA's second argument:

because the settlement proceeds that composed the trust principal

were paid first into the SNT, rather than directly to DeCambre,

they never became (or stopped being) excluded lump-sum additions

to family assets, and were not otherwise excluded from the broad

definition of "annual income."         Under the first branch of this

argument, the BHA contends that DeCambre's settlement money did

not fall into an income exclusion even at the time it entered the

SNT.     To make this argument, the BHA contends that because the

lump-sum exclusion applies only to "[l]ump-sum additions to family

assets,"    id.   §   5.609(c)(3)   (emphasis   supplied),     and   because,

according to the BHA, an irrevocable trust fund "is not considered

to be an asset," see id. § 5.603(b), the lump-sum exclusion "should

not even apply where the settlement funds received in a lump-sum

were immediately placed in a[n] SNT, and thus never became an

asset."    This argument, though, begs the question:         to what extent

should funds be classified differently when they are routed through

an SNT, and thus sit beyond a tenant's control for a time, than

they would have been had they been put directly under the tenant's


                                    - 32 -
control in the first instance?            Clearly, HUD decided that one

difference was called for in order to prevent inaccessible sums

from   increasing   a     tenant's   annual   income:      interest   on    the

principal of an irrevocable trust fund, unlike interest generated

by a fund to which the tenant has immediate access, see id.

§ 5.609(b)(3), counts toward annual income not when it first

accrues but rather only once it is distributed.             Section 5.603(b)

expressly so provides, as we have discussed above.             It is hard to

imagine, though, that, without expressly so stating, HUD also

intended, now to the tenant's detriment, to count toward annual

income certain funds that would not have counted toward annual

income had they not been routed directly into an irrevocable trust,

merely because the tenant who opted for an irrevocable trust

received the benefit of these funds only after some delay.

           Under    the    second    branch   of   this   argument,   the   BHA

maintains that even if DeCambre's settlement proceeds had the

character of a lump-sum addition to family assets when they entered

the SNT, they no longer possessed that character once they were

disbursed from the SNT.       The BHA concedes that the regulations do

not expressly address the matter of whether the nature of the

fund's original source (here, a set of lump-sum personal injury

settlements) loses its controlling relevance after those funds

have been routed through an irrevocable trust, such that the funds

are excluded from annual income upon disbursement only if they


                                     - 33 -
fall anew into an independent exclusion at the time they are

disbursed.     The language of the regulations does, however, imply

that a fund's declassification as an asset by virtue of its

placement     in   an     SNT   can     be     temporary.        Specifically,

section 5.603(b) states that "the value of [an irrevocable] trust

fund will not be considered an asset so long as the fund continues

to be held in trust."       Id. § 5.603(b) (emphasis supplied).           This

language     reasonably    implies     that    certain      irrevocable   trust

principal may well be considered to be an asset (rather than

income) after it no longer "continues to be held in trust."                Id.

One might therefore fairly reason that DeCambre's interest in her

settlement proceeds was an asset that continued to be an asset

after its detour through the trust.               Indeed, the HUD advisory

letter to which we have previously made reference suggests as much:

it points out that although irrevocable trust distributions are to

count toward annual income, annual income does not include "[l]ump-

sum additions to family assets, such as . . . settlement for

personal or property losses."          Advisory Letter, supra p. 30, at 1–

2.   The BHA does not explain how an irrevocable trust disbursement

can constitute a legal settlement in favor of the trust's own

beneficiary unless the origins of the disbursed funds are taken

into account.

            Absent more guidance to the contrary, we can discern no

reason to exclude from annual income (as the regulations clearly


                                      - 34 -
do) lump-sum personal injury settlement proceeds paid directly to

a tenant, see id. § 5.609(c)(3), yet not exclude those same

proceeds merely because they "[g]o to, or on behalf of" a tenant,

id. § 5.609(a)(1), through a trust of which the tenant is the

beneficiary.   Routing the funds into a trust deprives the tenant

of their immediate use. It therefore makes sense that a regulation

postpones recognition of earnings on the fund until they are

disbursed.     Without   a   reason   to   think   otherwise,   one   would

therefore expect the regulations to treat the principal similarly:

while held in trust, an asset remains frozen and inaccessible, and

therefore does not have the effect that it would have were it

within the tenant's control (i.e., it does not count toward net

family assets, see id. § 5.603(b)); once distributed from the

trust, an asset is once again accessible, and it therefore does

have the effect that it would otherwise have had it not been routed

through the trust (i.e., being an asset, it is not counted toward

annual income, but it does count toward net family assets).

Conversely, if we follow the BHA, then an irrevocable trust becomes

a mechanism for transforming assets into income.

          We also see a potential for untoward results that neither

Congress nor HUD likely intended should we accept the BHA's view.

If (as the BHA urges) we were to look only to the character of the

funds as they exit the trust without reference to their provenance,

the risk of double-counting arises.        Suppose, for example, that a


                                 - 35 -
tenant earns wages in Year One that indisputably count toward

annual income in Year One.   See id. § 5.609(b)(1).   Then suppose

that, in Year Two, the tenant moves an amount equal to those same

wages from her bank account into an irrevocable self-settled

spendthrift trust and later receives them as a disbursement from

the trust in Year Four.   See generally Adam J. Hirsch, Symposium,

Fear Not the Asset Protection Trust, 27 Cardozo L. Rev. 2685, 2685–

86 (2006) (describing the growing availability of such trusts under

state law).   On the BHA's logic, as long as the eventual trust

disbursements drawn from those wages do not independently fall

into a regulatory exclusion, the wages would once again count

toward annual income in the year they are spent for the tenant's

benefit.   Such a reading has little in logic to recommend it.

           Trying to cabin the scope of its logic to avoid such

results, the BHA moves to its third argument, which maintains that

even if passage through an irrevocable trust does not have the

potential to convert all assets into income upon disbursement,

such passage at least has the potential to convert into income

those sums that are originally excluded from annual income only

because they fall into the lump-sum exclusion.    The BHA contends

that the only reason "[l]ump-sum additions to family assets," id.

§ 5.609(c)(3), are excluded from annual income when first received

is to prevent a large, one-off monetary inflow from causing a

tenant's income to spike abruptly in a single year, potentially


                              - 36 -
jeopardizing the tenant's continued participation in the Program.

Because periodic disbursements from a trust fund do not have this

effect, the BHA argues, the rationale for this regulatory exception

does not apply when a settlement is distributed in this way.               But

this logic does not supply a reason why piecemeal disbursements of

what was once a lump sum count toward annual income only if they

are made from an irrevocable trust (and not from, say, a bank

account or a pile of cash held under a mattress).

           Effectively acknowledging that it makes little sense to

treat the regulations as allowing certain assets to transform into

income only if those assets first pass through an irrevocable

trust, the BHA doubles down on its third argument by contending

that, even had the settlement funds here been paid directly to

DeCambre, her subsequent withdrawals of the funds (from, for

example, a bank account) would have counted toward her annual

income.    Under      this    interpretation    of    the   regulations,   all

expenditures made from any reservoir of assets constitute income.

Notwithstanding the fact that this is the principal interpretation

that the BHA advances on appeal, it offers no reading of the

regulations that would compel this counterintuitive conclusion

that a tenant's withdrawal or expenditure of a portion of her own

assets constitutes an amount that "[g]o[es] to, or on behalf of,"

the   tenant,   id.    §     5.609(a)(1),    within   the   meaning   of   the




                                    - 37 -
regulations and that is therefore presumptively included in annual

income.

           To the contrary, the regulations point in exactly the

opposite direction.       For example, the regulations provide that

"[a]ny withdrawal of cash or assets from an investment will be

included   in   income,   except   to   the   extent   the    withdrawal    is

reimbursement of cash or assets invested by the family."                   Id.

§ 5.609(b)(3) (emphasis supplied).          Similarly, "[a]ny withdrawal

of cash or assets from the operation of a business or profession

will be included in income, except to the extent the withdrawal is

reimbursement of cash or assets invested in the operation by the

family."   Id. § 5.609(b)(2) (emphasis supplied).            In other words,

in usual course the withdrawal of an asset from a holding vehicle

generates annual income only to the extent that the asset's

underlying value has appreciated in the interim; the initial outlay

itself retains its character as an asset that does not factor into

the annual income calculation, even once withdrawn.18             So if, as

the BHA contends, withdrawals of principal from an irrevocable

trust should be treated like the withdrawal of cash or assets from




     18To the extent that the BHA is contending that, as a matter
of policy, tenants who have access to substantial assets, either
in normal course or by receipt from a trust, should be required to
devote those assets to housing before receiving Section 8
subsidies, it is not for either the BHA or this court to enact
such a change in the law.


                                   - 38 -
any other vehicle into which a lump sum has been placed, DeCambre

would seem to prevail.

             We have also considered the BHA's contention that the

HUD advisory letter to which we made earlier reference, see

Advisory Letter, supra p. 30, supports this version of the BHA's

argument.      The     BHA   points    to     the   letter's   statement   that

"[d]istributions from the trust will be counted when determining

annual income."        Id. at 1.      But the letter also provides that

"[a]nnual [i]ncome does not include . . . [l]ump-sum additions to

family assets, such as . . . settlement for personal or property

losses."     Id. at 2.       Critically, the letter does not expressly

acknowledge the issue before us, and it offers no rationale at all

that   would   favor    classifying     the    disbursements    of   settlement

proceeds from an irrevocable trust differently from how one would

classify expenditures of those same funds had the funds not first

gone into the trust.         Indeed, the BHA official who emailed the

letter's language to another BHA official commented:                  "[HUD's]

GUIDANCE???????????????????????????????" In sum, the letter casts

too little light on the question we face to serve as the sort of

"fair and considered judgment" of a federal agency, Massachusetts

v. Sebelius, 638 F.3d 24, 30 (1st Cir. 2011) (quoting Chase Bank

USA, N.A. v. McCoy, 562 U.S. 195, 209 (2011)), that might warrant

deference.




                                      - 39 -
            Alternatively, the BHA contends that we should defer to

the BHA's own reading of the HUD regulations.            One might ask:   to

which of the various readings the BHA presses on appeal should we

defer?     In any case, we see no basis for deferring to the BHA on

how   to   read    the   applicable    federal    regulations.    Our   usual

deference to a federal agency's "construction of a statute that it

administers is premised on the theory that a statute's ambiguity

constitutes an implicit delegation from Congress to the agency to

fill in the statutory gaps."           FDA v. Brown & Williamson Tobacco

Corp., 529 U.S. 120, 159 (2000).               And this implicit delegation

also confers upon a federal agency the authority to interpret the

regulations it has promulgated to fill those statutory gaps.              See

Auer v. Robbins, 519 U.S. 452, 461 (1997).              Such deference to a

federal agency usually produces nationwide uniformity "without

conflict in the Circuits," thus "impart[ing] . . . certainty and

predictability to the administrative process."               Christopher v.

SmithKline Beecham Corp., 132 S. Ct. 2156, 2168 n.17 (2012)

(quoting Talk Am., Inc. v. Mich. Bell Tel. Co., 564 U.S. 50, 69

(2011) (Scalia, J., concurring)).          Such deference also recognizes

that a federal agency speaks with some measure of authority on the

meaning of a regulation simply by virtue of having authored that

regulation.       See Auer, 519 U.S. at 461.        In contrast, we find no

basis for assuming that Congress delegated any authority to the

BHA   to   propound      authoritative   interpretations    of   either   the


                                      - 40 -
statute or HUD's regulations.        Congress did not authorize the BHA

to draft the pertinent regulations, nor does the BHA have a

nationwide perspective on implementation of the statute.                See

Kenaitze Indian Tribe v. Alaska, 860 F.2d 312, 316 (9th Cir. 1988)

(state's interpretation of a federal statute received no deference

because the state "lacks the expertise in implementing federal

laws and policies and the nationwide perspective characteristic of

a federal agency").      And if federal courts were to defer to state

agencies'     potentially   diverging        interpretations   of    federal

regulations, such a practice would defeat the aim of interpretive

consistency that, at least in part, justifies deference.               Cf.,

e.g., Orthopaedic Hosp. v. Belshe, 103 F.3d 1491, 1495–96 (9th

Cir. 1997) (no deference to state agency's interpretation of

federal statute).

            The   BHA,   however,    claims    that   the   Fourth   Circuit

appeared to see the matter differently in Ritter v. Cecil County

Office of Housing & Community Development, 33 F.3d 323 (4th Cir.

1994), in which the court found it "appropriate . . . to show some

deference to a state agency interpreting regulations under the

authority of a federally created program . . . to the extent the

agency's rules are not contrary to the . . . regulation," id. at

327–28.     But although the Fourth Circuit has recognized the need

to permit state agencies to "draw[] lines in [regulatory] gray

areas," id. at 329, its deference appears so far to have been


                                    - 41 -
limited to cases in which the state agency resolves mixed questions

of law and fact by applying the federal regulation to a specific

factual scenario, see Clark v. Alexander, 85 F.3d 146, 153 (4th

Cir.        1996)   (deferring      to    state   agency   hearing    officer's

determination        of   whether    a    particular   individual    "could   be

considered a member of [plaintiff's] family under the federal

housing regulations" based on the individual's particular conduct

around plaintiff's residence).19

               We need not decide whether we would adopt the Fourth

Circuit's standard were DeCambre challenging a highly fact-bound

determination that her specific characteristics brought her within

a broadly written regulatory provision.20              Cf. Lessard v. Wilton-

Lyndeborough Coop. Sch. Dist., 518 F.3d 18, 24 (1st Cir. 2008)

(mixed questions of law and fact "are handled on a degree-of-

deference continuum, and the exact standard of review depends on

whether and to what extent a particular determination is law- or

fact-dominated").         In this case, the BHA made a purely legal


       19In Ritter itself, the federal agency responsible for
promulgating the regulation at issue had affirmatively "approved"
the state agency interpretation to which the Fourth Circuit
deferred. See Ritter, 33 F.3d at 325.
     20 A deferential standard, for example, might be appropriate

were we to reach the question of whether the BHA properly
determined that certain of DeCambre's specific trust disbursements
did not fall into the regulatory exceptions for medical expenses,
24 C.F.R. § 5.609(c)(4), or "[t]emporary, nonrecurring or sporadic
income," id. § 5.609(c)(9). Because we do not reach that branch
of DeCambre's argument, we need not express an opinion about it
today.


                                         - 42 -
determination that a federal regulation commands a reading that

would count all irrevocable trust disbursements to a tenant, or at

least all such disbursements that do not independently fall into

a regulatory exclusion at the time of disbursement, to be "annual

income" upon disbursement.          In doing so, the BHA did not purport

to rely on local policy considerations uniquely within the ken of

its expertise, nor did the BHA draw its categorical conclusion

from     the    sort     of   careful    examination   of   specific   factual

circumstances          that   appellate    tribunals   lack   a    comparative

institutional advantage in undertaking.21              Therefore, we find no

rationale in this case that would support extending deference to

the BHA's interpretation.

               We therefore conclude that the BHA improperly counted

the distributions from the principal of DeCambre's settlement-

funded irrevocable trust toward her annual income.                Accordingly,

we reverse the district court's judgment on DeCambre's Housing Act

claim.      Because we reach this conclusion, we need not address




       21
       We acknowledge that the HUD advisory letter upon which the
BHA relies in part states that "[t]he ultimate determination of
whether each [SNT] expenditure[] counts towards annual income or
falls within an exclusion or deduction is to be made" by the local
housing authority.    Advisory Letter, supra p. 30, at 2.       We
understand this statement to be an acknowledgement that local
public housing authorities will be best positioned in the first
instance to apply HUD's regulations to the facts of any given case
and not to be a grant of authority to the public housing
authorities to issue definitive, nationally applicable legal
pronouncements on the scope of those regulations.


                                        - 43 -
DeCambre's more limited claim that the BHA violated her rights

under the Housing Act by failing to exclude certain specific trust

distributions       from   her    annual     income.22     And   because    this

conclusion will require the district court to determine anew what

additional proceedings or remedies are required, we vacate the

district court's denial of a preliminary injunction and order

remanding to the BHA.         Consequently, we dismiss the BHA's cross-

appeal of the remand order as moot.              Cf. Bos. Duck Tours, LP v.

Super Duck Tours, LLC, 531 F.3d 1, 31 n.31 (1st Cir. 2008).

                   IV.   DeCambre's Discrimination Claims

            DeCambre argued in the district court and on appeal that

the BHA's policy of counting all distributions from SNTs that

satisfied the regulatory definition of income at the time of

distribution toward annual income would, if sustained, impact

disabled individuals unfairly, and that even if such a policy were

correct, the BHA acted unlawfully by failing to exclude from her

annual    income    certain   specific       trust   disbursements   that   went

toward    her    allegedly       medically    necessary    disability-related

expenses.       Our ruling rejecting the BHA's interpretation of the

applicable regulations would seem to moot DeCambre's argument that

an alternative reading would lead to discrimination in the absence




     22Nor need we address DeCambre's contention that the district
court erred in taking judicial notice of certain erroneous
Section 8 eligibility requirements.


                                     - 44 -
of   reasonable   accommodations.    We   therefore   express   no   view

concerning the merits of DeCambre's discrimination claims other

than to state that the district court on remand may deem them to

be moot unless DeCambre demonstrates otherwise.

                            V.   Conclusion

           In summary, we reverse the district court's ruling in

favor of the BHA on DeCambre's Section 1983 claim brought under

the Housing Act, vacate the denial of a preliminary injunction and

the order remanding to the BHA, and remand for the district court

to fashion an appropriate remedy.         In light of our ruling on

DeCambre's Housing Act claim, we vacate the district court's ruling

on DeCambre's state and federal discrimination claims, and remand

with instructions to dismiss those claims as moot unless DeCambre

can demonstrate that they are not.        As to the district court's

denial of all DeCambre's remaining claims--in particular, her

Fourteenth Amendment, breach of lease, and interference with quiet

use and enjoyment claims--we affirm. Finally, we dismiss the BHA's

cross-appeal as moot.    No costs are awarded.




                                 - 45 -
