Theodore Hayes v. Philip Harvey ( 2018 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2692
_____________
THEODORE HAYES;
AQEELA FOGLE,
Appellants
v.
PHILIP E. HARVEY
______________
On Appeal from the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. Action No. 2-15-cv-02617)
District Judge: Honorable Nitza I. Quiñones Alejandro
______________
Argued on January 18, 2017 before Merits Panel
Argued En Banc on May 16, 2018
______________
Before: SMITH, Chief Judge, MCKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR.,
VANASKIE, SHWARTZ, KRAUSE, RESTREPO, BIBAS,
and FISHER *, Circuit Judges.
(Opinion Filed: August 31, 2018)
Rachel Garland [Argued]
George Gould
Michael Donahue
Community Legal Services
1424 Chestnut Street
Philadelphia, PA 19102
Counsel for Appellants
Susanna Randazzo [Argued]
Kolber & Randazzo
One South Broad Street, Suite 1610
Philadelphia, PA 19107
Counsel for Appellee
Chad A. Readler, Acting Assistant Attorney General
William M. McSwain, United States Attorney
Michael S. Raab
Gerard J. Sinzdak [Argued]
United States Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 201530
Counsel for Amicus Curiae U.S. Department of
Housing and Urban Development
*
The Honorable D. Michael Fisher assumed senior
status on February 1, 2017.
2
Louis S. Rulli
University of Pennsylvania School of Law
3501 Sansom Street
Philadelphia, PA 19104
Susanna R. Greenberg
University of Pennsylvania School of Law
3400 Chestnut Street
Philadelphia, PA 19104
Counsel for Amici Curiae Philadelphia
Association of Community Development
Corporations, Action-House, Inc., Pennsylvania
Legal Aid Network, Philadelphia Legal
Assistance, and SeniorLAW Center in Support
of Appellants
James R. Grow
National Housing Law Project
703 Market Street, Suite 200
San Francisco, CA 94103
Daniel Urevick-Ackelsberg
Public Interest Law Center
1709 Benjamin Franklin Parkway, Floor 2
Philadelphia, PA 19103
Counsel for Amici Curiae National Housing
Law Project, Housing Justice Center, and
Sargent Shriver National Center on Poverty
Law, National Alliance of HUD Tenants,
National Housing Trust, Legal Aid Society of
New York, Action-Housing, Inc., and
Philadelphia Housing Authority in Support of
3
Appellants
Jennifer MacNaughton
City of Philadelphia Law Department
1515 Arch Street, 17th Floor
Philadelphia, PA 19102
Counsel for Amici Curiae City of Philadelphia
and Philadelphia Housing Authority in Support
of Appellants
______________
OPINION
______________
GREENAWAY, JR., Circuit Judge.
The Hayes family receives enhanced voucher rental
assistance from the federal government, and a federal statute
provides that enhanced voucher holders “may elect to remain”
in their housing developments, even after their landlord has
opted out of the federal housing assistance program. 42 U.S.C.
§ 1437f(t)(1)(B). But the Hayes family’s landlord, Appellee
Philip Harvey, contends that this statutory right to “elect to
remain” does not apply at the end of a lease term. Thus,
according to Harvey, he is permitted to evict the Hayes family
without cause once their lease has expired. The District Court
agreed and granted Harvey’s motion for summary judgment.
We will reverse, however, because the statute’s plain language
and history make evident that enhanced voucher holders may
not be evicted absent good cause, even at the end of a lease
term. We will therefore remand so that the District Court may
4
consider whether Harvey has good cause to evict under the
circumstances of this case.
I. BACKGROUND
A. Statutory and Regulatory Background
In 1974, Congress created the Section 8 housing
program “[f]or the purpose of aiding low-income families in
obtaining a decent place to live.” 42 U.S.C. § 1437f(a);
Housing and Community Development Act of 1974, Pub. L.
No. 93-383, § 201(a), 88 Stat. 633, 662–66 (1974) (amending
the United States Housing Act of 1937) (codified as amended
at 42 U.S.C. § 1437f). The program, which is funded by the
Department of Housing and Urban Development (“HUD”) and
administered by local public housing agencies (“PHAs”), 24
C.F.R. § 982.1(a)(1), generally provides two different types of
rental assistance: “project-based” subsidies and “tenant-based”
subsidies. Id. § 982.1(b)(1).
Project-based assistance is tied to specific housing
developments or units. 42 U.S.C. § 1437f(f)(6); 24 C.F.R.
§ 982.1(b)(1). Owners of such properties enter into long-term
contracts with the applicable PHA, under which the owners
agree to rent their properties to eligible low-income families
and the PHA agrees to provide rental assistance payments to
the owners on behalf of the assisted tenants. See 42 U.S.C.
§ 1437f(b); 24 C.F.R. §§ 983.202, 983.205. The owners then
enter into written leases with particular families for individual
units. See 24 C.F.R. § 983.256.
Tenant-based assistance, by contrast, is tied to a specific
tenant family and travels with the family if it moves. 42 U.S.C.
§ 1437f(f)(7); 24 C.F.R. § 982.1(b). Tenant-based vouchers
5
may be used on rental units anywhere in the United States, so
long as the unit is in the jurisdiction of a PHA that administers
a voucher program. 24 C.F.R. § 982.1(b)(1). Once the assisted
family selects an eligible unit and the applicable PHA approves
the tenancy, the PHA enters into a contract with the property
owner, under which the PHA agrees to make rental assistance
payments to the owner. Id. § 982.1(b)(2). Unlike long-term
PHA contracts for project-based assistance, a PHA contract for
tenant-based assistance can provide for a term as short as one
year, and the contract covers only the single unit and the
particular assisted family. See id. §§ 982.1(b)(2), 982.309(a).
But as with project-based assistance, in addition to the PHA
contract, the property owner also enters into a written lease
with the assisted family. Id. § 982.308(b).
Under both project-based and tenant-based assistance,
the assisted family contributes a prescribed amount toward the
overall rental payment, generally equal to thirty percent of the
tenant family’s monthly “adjusted income” or ten percent of its
monthly gross income, whichever is greater. 42 U.S.C.
§ 1437f(o)(2); see also id. § 1437a(a)(1). The government
pays the balance of the rent amount up to a statutorily capped
amount known as the “payment standard,” which normally
cannot exceed 110 percent of the fair market rental value for
the property, as established by HUD. See id. § 1437f(c),
(o)(1)–(2).
In the late 1980s, many of the long-term, project-based
assistance contracts between property owners and PHAs began
to expire. Concerned that property owners would decline to
renew the contracts and force low-income tenants out by
raising rents to rates that exceeded the statutory payment
standard, Congress passed a number of laws intended to protect
tenants in the event their landlords converted their subsidized
6
units to normal, market-based housing. Among these measures
was a notice requirement enacted as part of the Housing and
Community Development Act of 1987. See Pub L. No. 100-
242, § 262(a), 101 Stat. 1815, 1890 (1988) (codified as
amended at 42 U.S.C. § 1437f(c)(8)). In its present iteration,
this measure requires that owners provide tenants and HUD
with at least one year’s notice before opting out of their project-
based assistance contracts. 42 U.S.C. § 1437f(c)(8)(A).
Owners “may not evict the tenants or increase the tenants’ rent
payment until” the one-year period has elapsed. Id.
§ 1437f(c)(8)(B).
Roughly a decade later, as project-based contracts
continued to expire, Congress enacted additional tenant
protections through creation of the “enhanced voucher”
program. See Pub L. No. 106-74, 113 Stat. 1047, 1109–15,
1121–24 (1999). Whereas the notice requirement protects
project-based tenants before their property owner’s long-term
contract with the applicable PHA expires, enhanced vouchers
come into play after the notice period has elapsed and the
property owner has completed the process of opting out of the
project-based assistance program. HUD is statutorily required
to provide enhanced vouchers to tenants who had previously
been receiving project-based assistance, beginning on the date
the owner’s project-based contract expires and is not renewed,
see 42 U.S.C. § 1437f note—a date that the statute refers to as
the “eligibility event,” id. § 1437f(t)(2).
Enhanced vouchers are generally governed by the
ordinary voucher provision, 42 U.S.C. § 1437f(o), except
where modified by the enhanced voucher provision, § 1437f(t).
See 42 U.S.C. § 1437f(t)(1). As originally passed in 1999, the
enhanced voucher provision stated that
7
during any period that the assisted family
continues residing in the same project in which
the family was residing on the date of the
eligibility event for the project, if the rent for the
dwelling unit of the family in such project
exceeds the applicable payment standard
established pursuant to subsection (o) for the unit,
the amount of rental assistance provided on behalf
of the family shall be determined using a payment
standard that is equal to the rent for the dwelling
unit (as such rent may be increased from time-to-
time), subject to paragraph 10(A) of subsection
(o) . . . .
Pub L. No. 106-74, § 538(a), 113 Stat. at 1122. Thus, unlike
ordinary tenant-based and project-based vouchers, enhanced
vouchers were designed to cover the difference between the
tenant’s statutorily prescribed rent contribution and the rent
amount set by the property owner after opting out of the
project-based assistance program, id. § 1437f(t)(1)(B)—which
is usually higher than the payment standard that would
otherwise apply to ordinary project-based vouchers. Indeed,
the rent amount that the owner chooses to charge after opt-out
is not subject to any specific limit and can be increased
periodically. It need only “be reasonable in comparison with
rents charged for comparable dwelling units in the private,
unassisted local market.” Id. § 1437f(o)(10)(A).
Aside from the higher payment standard, enhanced
vouchers are, in a sense, a hybrid of the two types of ordinary
vouchers. Like project-based vouchers, they are tied to the
particular project; if the family moves out of that project, their
enhanced voucher eligibility terminates. See id.
§ 1437f(t)(1)(C)(i). Like tenant-based vouchers, enhanced
8
vouchers are tied to the particular assisted family; if the family
attempts to transfer the voucher to a third party who was not
residing in the unit on the date of the eligibility event, the
family’s enhanced voucher eligibility, again, terminates, and
the payment standard for the unit is determined pursuant to the
ordinary voucher provision. Id. § 1437f(t)(1)(C)(ii).
In 2000, Congress amended the enhanced voucher
provision to add the language at the heart of this case. See Pub
L. No. 106-246, § 2801, 114 Stat. 511, 569 (2000) (codified at
42 U.S.C. § 1437f(t)(1)(B)). Importantly, the first clause of the
provision was changed, and as a result, the provision in its
current form now states that
the assisted family may elect to remain in the
same project in which the family was residing on
the date of the eligibility event for the project, and
if, during any period the family makes such an
election and continues to so reside, the rent for
the dwelling unit of the family in such project
exceeds the applicable payment standard
established pursuant to subsection (o) of this
section for the unit, the amount of rental
assistance provided on behalf of the family shall
be determined using a payment standard that is
equal to the rent for the dwelling unit (as such rent
may be increased from time-to-time), subject to
paragraph 10(A) of subsection (o) of this section
and any other reasonable limit prescribed by the
Secretary [of HUD], except that a limit shall not
be considered reasonable for purposes of this
subparagraph if it adversely affects such assisted
families . . . .
9
42 U.S.C. § 1437f(t)(1)(B) (emphasis added). 1
B. Factual and Procedural Background
In 1982, Florence Hayes and her son Theodore moved
into 538B Pine Street, a four-bedroom unit in a duplex built as
part of Washington Square East, a project-based Section 8
development located in the Society Hill neighborhood of
Philadelphia. A few years later, they were joined by Aqeela
Fogle, Florence’s granddaughter and Theodore’s niece.
Theodore moved out some time in the 1980s before moving
back in 2003. Florence and Fogle, however, never left.
Florence lived in the unit until her death in 2015. Fogle
continues to live there, now with her three minor children.
In early 2008, the then-owners of Washington Square
East, Pine Street Associates, decided not to renew their project-
based Section 8 contract with the Philadelphia Housing
Authority upon its expiration on January 17, 2009. Consistent
with federal law, on January 9, 2008, Pine Street Associates
notified the tenants of Washington Square East that it would
not be renewing the contract. The notification letter explained:
1
The final two clauses of the provision were also added
in 2000, through two subsequent amendments. See Pub. L. No.
106-377, § 1(a)(1), 114 Stat. 1441, 1441A-24 (Oct. 27, 2000)
(inserting “and any other reasonable limit prescribed by the
Secretary”); Pub L. No. 106-569, § 903(a), 114 Stat. 2944,
3026 (Dec. 27, 2000) (inserting “except that a limit shall not
be considered reasonable for purposes of this subparagraph if
it adversely affects such assisted families”).
10
Federal law allows you to elect to continue living
at this property provided that the unit, the rent
and we, the owner, meet the requirements of the
Section 8 tenant-based assistance program. As
an owner, we will honor your right as a tenant to
remain at the property on this basis as along [sic]
as it continues to be offered as rental housing,
provided that there is no cause for eviction under
Federal, State or local law.
J.A. 636. The Hayes family opted to remain in their unit, and,
as a result, they began receiving enhanced voucher assistance
after Pine Street Associates’ project-based contract expired in
January 2009.
The following year, Pine Street Associates sold a parcel
of three duplex houses to Philip Harvey—a parcel that included
the Hayes family’s unit at 538 Pine Street. Harvey
subsequently signed a Housing Assistance Payment (“HAP”)
contract with the Philadelphia Housing Authority and executed
a one-year, Section 8 model lease with Florence Hayes, who at
the time was designated head of the Hayes household. The
lease listed Florence and Theodore Hayes, Aqeela Fogle, and
Fogle’s three minor children as the family members authorized
to live in the unit. The parties renewed the lease in 2011 and
2013 for additional two-year terms, the second of which
expired on April 30, 2015.
In February 2015, Florence Hayes passed away, and the
Philadelphia Housing Authority transferred the head of
household status to Theodore Hayes. Two weeks later, Harvey
sent the Hayes family a letter stating that he did not intend to
renew their lease when it expired at the end of April, citing
Florence Hayes’s passing and his desire to renovate the unit as
11
reasons for the nonrenewal. Upon expiration of the lease,
however, the Hayes family did not vacate the apartment, and
on May 1, Harvey sent a second letter reiterating that he would
not sign a new lease. In this second letter, Harvey again
provided Florence Hayes’s death and his plan to renovate as
reasons for nonrenewal. But Harvey also added a third reason:
his intent to move his daughter into the apartment. Harvey
concluded the letter by stating that he would initiate eviction
proceedings if the family did not move out within five days.
Theodore Hayes and Aqeela Fogle responded by filing
suit in the District Court, seeking declaratory relief and an
order enjoining Harvey from evicting them. They argued that
the enhanced voucher provision provided them with an
enforceable right to remain in their unit. As a result, Harvey
could not evict the family without cause, and, according to
them, Harvey’s stated reasons did not constitute good cause.
Harvey, on the other hand, contended that he was not even
bound by the enhanced voucher statute because he had never
participated in the project-based program. Alternatively, he
argued that the statute did not create a right that was
enforceable at the end of a lease term.
The parties filed cross-motions for summary judgment,
and the District Court ruled in favor of Harvey. Hayes v.
Harvey, 186 F. Supp. 3d 427 (E.D. Pa. 2016). It reasoned that
Harvey was bound by the enhanced voucher statute by virtue
of the HAP contract and lease that he executed with the
Housing Authority and the family, respectively, but that the
statute did not require property owners to renew the leases of
enhanced voucher holders. Id. at 433–40. Accordingly,
Harvey was entitled to initiate proper eviction proceedings if
the family did not vacate the premises within a reasonable
period of time. Id. at 440. After Hayes and Fogle filed this
12
appeal, however, the District Court issued an injunction
prohibiting Harvey from taking any measures to evict while the
appeal was pending.
II. JURISDICTION & STANDARD OF REVIEW
The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have jurisdiction under 28 U.S.C. § 1291—with
one caveat. While this appeal was pending, Theodore Hayes
moved out of 538B Pine Street. Because he no longer has “a
legally cognizable interest in the outcome” of the case, his
claims are moot and we lack jurisdiction over them. United
Steel Paper & Forestry Rubber Mfg. Allied Indus. & Serv.
Workers Int’l Union v. Virgin Islands, 842 F.3d 201, 208 (3d
Cir. 2016) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 625,
631 (1979)). Aqeela Fogle still lives in the unit with her three
children, though. She has been processed as the new head of
household and continues to be eligible to receive enhanced
voucher assistance, because she resided in the unit on the date
of the eligibility event, see 42 U.S.C. § 1437f(t)(1). As a result,
Fogle continues to have a concrete interest at stake, and an
“occasion for meaningful relief” continues to exist. United
Steel Paper, 842 F.3d at 208 (quoting Rendell v. Rumsfeld, 484
F.3d 236, 240 (3d Cir. 2007)). We therefore have jurisdiction
over her claims, which are the same as those that were asserted
by Hayes.
We exercise plenary review of a district court’s order
granting summary judgment. Goldenstein v. Repossessors
Inc., 815 F.3d 142, 146 (3d Cir. 2016). We will affirm if,
viewing the evidence in the light most favorable to the
nonmoving party, Burns v. Pa. Dep’t of Corr., 642 F.3d 163,
170 (3d Cir. 2011), we conclude that “there is no genuine
13
dispute as to any material fact and the movant is entitled to
judgment as a matter of law,” Fed. R. Civ. P. 56(a).
III. DISCUSSION
A. The Section 8 Statute’s Application to Harvey
As a threshold matter, Harvey argues that we should
affirm the District Court on an alternative ground. He
contends, as he did below, that he is not bound by any of
Section 8’s requirements because he purchased the property
free and clear of encumbrances, without any deed restrictions
or federal mortgage, and after the previous owner had already
opted out of the Section 8 program. We disagree—albeit for
different reasons than those provided by the District Court.
The District Court concluded that Harvey was obligated
to comply with the program’s requirements because he was “a
party to a tenant-based HAP contract and related lease,” which
were “governed by, and subject to, . . . the Section 8 statute.”
Hayes, 186 F. Supp. 3d at 433. But nothing in the enhanced
voucher provision limits its effect to the original owner. See
42 U.S.C. § 1437f(t). Indeed, § 1437f(t)(1)(C) provides only
two conditions under which enhanced voucher eligibility
terminates: when the family moves and when the voucher is
used by someone other than the original family. Neither
involves the opt-out owner’s sale of the property. Although
the Section 8 scheme is generally administered through the use
of contracts and leases, nothing in the statute itself conditions
its effect in all circumstances on common law devices.
Accordingly, the enhanced voucher provision applies even to
landlords who choose not to enter into HAP contracts. See
Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr.,
636 F.3d 1150, 1161–62 (9th Cir. 2011) (holding that property
14
owners must respect eligible tenants’ statutory right to elect to
remain even if they choose not to execute a HAP contract,
thereby foregoing fair market rent via enhanced vouchers).
Here, of course, Harvey did enter into a HAP contract
and lease, but that is of no moment for our present purposes.
Harvey purchased a former project-based Section 8 property,
where enhanced voucher tenants are currently residing. By
virtue of those facts alone, he falls within the scope of the
Section 8 statute. 2
B. Enhanced Voucher Holders’ Right to “Elect to
Remain”
1. The Statutory Text and History
Turning to whether the enhanced voucher provision
requires property owners like Harvey to continuously renew
2
Relatedly, Harvey argues that, irrespective of any
tenant protections the Section 8 statute may provide, provisions
of the HAP contract and lease permit him to evict the Hayes
family pursuant to Pennsylvania law. We need not examine
the validity of this argument, because even if Harvey is correct
as a matter of state law, “[t]he Supremacy Clause preempts any
state law that ‘interferes with or is contrary to federal law.’”
Zahner v. Pa. Dep’t of Human Servs., 802 F.3d 497, 512 (3d
Cir. 2015) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)).
Thus, if the enhanced voucher provision provides eligible
families a right to elect to remain that is enforceable against
property owners at the end of a lease term, it would preempt
the application, in this case, of any principles of Pennsylvania
law that permit nonrenewal without cause.
15
enhanced voucher tenancies, we begin, as we do in all cases
involving statutory interpretation, with the statute’s text. Doe
v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016). If the statutory
language is unambiguous, our inquiry is ordinarily complete.
Id. We do not examine the language in isolation, however. “A
statutory provision is not ambiguous simply because ‘by itself,
[it is] susceptible to differing constructions.’” Disabled in
Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 210 (3d
Cir. 2008) (alteration in original) (quoting In re Price, 370 F.3d
362, 369 (3d Cir. 2004)). Rather, in examining the statutory
language, “we take account of ‘the specific context in which
that language is used, and the broader context of the statute as
a whole.’” Id. (quoting In re Price, 370 F.3d at 369).
In relevant part, the current version of the enhanced
voucher provision states:
[T]he assisted family may elect to remain in the
same project in which the family was residing on
the date of the eligibility event for the project,
and if, during any period the family makes such
an election and continues to so reside, the rent for
the dwelling unit of the family in such project
exceeds the applicable payment standard
established pursuant to [the ordinary voucher
provision] for the unit, the amount of rental
assistance provided on behalf of the family shall
be determined using a payment standard that is
equal to the rent for the dwelling unit . . . .
42 U.S.C. § 1437f(t)(1)(B). The District Court held that this
provision does not impose any obligations on property owners.
See Hayes, 186 F. Supp. 3d at 435. Instead, according to the
District Court, the provision merely “authorizes and requires
16
the [HUD] Secretary to provide a tenant who wishes to remain
in a rental housing unit additional rental assistance.” Id. Thus,
in the District Court’s view, the enhanced voucher provision
does not grant eligible tenants any right enforceable against
their landlords—much less one that applies at the end of a lease
term.
We disagree. The plain language of § 1437f(t)(1)(B)’s
first clause, read in the context that it is used, does in fact
provide enhanced voucher holders with a right that is
enforceable against their landlords such that tenants may be
evicted only for cause, even at the end of a lease term. The
remainder of the provision, which is not at issue in this suit,
then establishes a higher payment standard applicable when
voucher holders exercise that right.
Importantly, § 1437f(t)(1)(B)’s first clause is written
from the tenant’s perspective, and it includes two verbs. The
first is “elect,” which means “to choose (a course of action)
[especially] by preference.” Webster’s Third New
International Dictionary 731 (1976). The second is “remain,”
meaning “to stay in the same place or with the same person or
group.” Id. at 1919. This right to “choose . . . by preference”
to “stay in the same place” is not limited to any particular time
period, and it is not directed to only HUD or any other specific
party. Thus, the assisted family’s right necessarily limits the
ability of the property owner to evict. If a landlord could
simply ignore an eligible family’s choice to stay and force them
to leave, the statutory right would be meaningless.
Likewise, the assisted family’s right would be
meaningless if it were not enforceable at the end of a lease
term. Under such an interpretation, the first clause of
§ 1437f(t)(1)(B) would simply reflect the baseline conditions
17
of landlord-tenant relations: During the term of their lease,
tenants generally may not be evicted, absent some reason
enumerated in the lease or authorized by law; at the end of their
lease term, tenants may seek to renew their leases, as long as
their landlords agree to do so. Thus, if enhanced voucher
holders’ right to “elect to remain” limited property owners’
rights during only the lease term, the first clause of the
provision would have no independent meaning; it would
describe what was already true. It is, however, a well-
established canon of statutory interpretation that “statutes
should be read to avoid making any provision ‘superfluous,
void, or insignificant.’” Milner v. Dep’t of the Navy, 562 U.S.
562, 575 (2011) (quoting TRW Inc. v. Andrews, 534 U.S. 19,
31 (2001)).
This canon is of particular importance where, as is true
here, the relevant statutory text at issue was added by
amendment. “When Congress amends legislation, courts must
‘presume it intends [the change] to have real and substantial
effect.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016)
(alteration in original) (quoting Stone v. INS, 514 U.S. 386, 397
(1995)). In this case, the original iteration of § 1437f(t)(1)(B),
enacted in 1999, did not include the first clause providing that
eligible families “may elect to remain.” It instead provided that
the higher payment standard would apply “during any period
that the assisted family continues residing in the same project
in which the family was residing on the date of the eligibility
event for the project.” Pub. L. No. 106-74, § 538(a), 113 Stat.
1047, 1122 (1999). In other words, the 1999 version of the
provision did not alter the baseline conditions of landlord-
tenant relations. At the end of a lease term, it stated only that
HUD would provide (through the applicable PHA) any
additional required financial assistance if the assisted family
18
sought to remain in the unit and the property owner allowed
the family to do so by agreeing to renew their lease.
But the very next year, in 2000, Congress replaced the
above language with the current version of § 1437f(t)(1)(B)’s
first clause, stating that “the assisted family may elect to
remain in the same project in which the family was residing on
the date of the eligibility event.” Pub. L. No. 106-246, § 2801,
114 Stat. 511, 569 (2000). Our interpretation must effectuate
that change, for it simply is not plausible that Congress
amended the statute within one year of its initial enactment
merely to set the scene differently. By providing that eligible
families “may elect to remain,” Congress must have given
those families some right that they did not enjoy previously—
a right to choose to stay that their landlords must accept by
continually renewing their leases.
According to both the Dissent and the District Court,
however, the significance of the 2000 amendment is that it
“obligates HUD to provide [tenants] the financial means to
afford the increased rent” after their property owners opt out of
the project-based program. Dissenting Op. 6; see also Hayes,
186 F. Supp. 3d at 435. Put differently, in the Dissent’s
estimation, the post-amendment version of § 1437f(t)(1)(B)
provides two different protections: “[i]t not only protects
against an early [lease] termination following an opt-out, but it
also explicitly provides eligible enhanced-voucher tenants with
a guarantee that HUD will provide them with an enhanced
voucher.” Dissenting Op. at 9 n.5.
The problem with this interpretation—aside from being
an implausible reading of the provision’s plain language—is
that eligible families already had an express guarantee that
HUD would provide them with enhanced vouchers. A separate
19
provision of the 1999 version of the statute already required
HUD to do so. See Pub. L. No. 106-74, § 531(a), 113 Stat.
1047, 1113 (1999) (amending the Multifamily Assisted
Housing Reform and Affordability Act of 1997, § 524(d))
(codified as amended at 42 U.S.C. § 1437f note) (“In the case
of a contract for project-based assistance under section 8 for a
covered project that is not renewed . . . , upon the date of the
expiration of such contract, the [HUD] Secretary shall make
enhanced voucher assistance . . . available on behalf of each
low-income family who, upon the date of such expiration, is
residing in an assisted dwelling unit in the covered project.”).
With respect to the other protection identified by the Dissent,
enhanced voucher families were also already shielded from
“early termination following an opt-out.” Dissenting Op. at 9
n.5. As we said above, a property owner generally may not
terminate a lease and evict a tenant during the lease term,
absent some reason enumerated in the lease or authorized by
law. That is the baseline condition of the landlord-tenant
relationship.
Thus, neither of the Dissent’s identified protections
needed to be codified in 2000. Because all of the relevant HUD
obligations were covered by the 1999 version of the statute,
adopting the Dissent’s construction would require us to
conclude that Congress amended the statute in 2000 solely to
repeat what the statute and common law already required.
Such a conclusion fails to give the 2000 amendment any “real”
or “substantial effect.” Ross, 136 S. Ct. at 1858 (quoting Stone,
514 U.S. at 397).
In rejecting our interpretation of the enhanced voucher
provision, the District Court also expressed concern about
“imposing any continued obligation on the owner to remain in
the [Section 8] program” and subjecting the owner to “an
20
endless or perpetual lease.” Hayes, 186 F. Supp. 3d. at 434–
35; see also Dissenting Op. at 2 n.1. Examining the entire
statutory scheme in context, however, makes evident that such
concern is unwarranted. For one, the statute provides that
enhanced vouchers cannot be transferred to “any family other
than the original family on behalf of whom the voucher was
provided.” 42 U.S.C. § 1437f(t)(1)(C)(ii). 3 Additionally, any
existing lease agreement or HAP contract will provide grounds
for eviction. Indeed, leases for enhanced voucher tenancies are
statutorily required to include a “good cause” eviction clause.
12 U.S.C. § 1715z-1b(b)(3). Further, regardless of whether a
lease or HAP contract is in effect, the statutory provisions and
regulations governing ordinary vouchers generally apply to the
enhanced voucher program. See 42 U.S.C. § 1437f(t)(1).
Thus, § 1437f(o)(7)(C), from the ordinary voucher subsection,
applies and allows property owners to, at any time, terminate
enhanced voucher tenancies “for serious or repeated violation
of the terms and conditions of the lease, for violation of
applicable Federal, State, or local law, or for other good
cause.” 4
3
That is not to say the right to elect to remain may be
transferred among, or passed down in perpetuity to,
generations of family members. Rather, as conceded by the
Hayes family and confirmed by HUD, “original family” means
only those family members on the lease at the time of the
eligibility event. Audio of Oral Arg. at 14:39-16:30; 50:25-
50:50.
4
That § 1437f(o)(7)(C) uses the phrase “during the term
of the lease” does not make the subsection’s termination
conditions inapplicable to enhanced voucher tenancies.
Subsection (o)(7)(C) includes the “during the term of the lease”
21
Nothing in the enhanced voucher provision’s “may elect
to remain” language abrogates or forecloses application of
these standards in the enhanced voucher context. Accordingly,
the 2000 amendment to the provision does not reflect
congressional intent to subject property owners to perpetual
leases. Rather, it evidences congressional desire to strike a
balance between the interests of tenants and those of property
owners. On the one hand, the enhanced voucher provision
permits property owners who comply with the notice provision
and opt out of the project-based program to raise rents to rates
that exceed the payment standard applicable to ordinary tenant-
or project-based vouchers. See 42 U.S.C. § 1437f(t)(1)(B). On
the other hand, the enhanced voucher provision places a
limitation on those property owners’ nonrenewal rights by
requiring good cause before the owners may terminate a
language because ordinary, tenant-based voucher holders
possess no right to elect to remain in their unit at the end of a
lease term. Therefore, in the context of ordinary vouchers, the
need for cause only exists “during the term of the lease.” But
because the enhanced voucher statute provides a right to “elect
to remain,” the requirements of § 1437f(o)(7)(C) apply to
enhanced vouchers not only during the lease term, but also at
the end of the term. This interpretation of the statutory scheme
is consistent with § 1437f(t)(1), which, as previously
explained, states that enhanced vouchers are governed by the
ordinary voucher provision, except where modified by the
enhanced voucher provision. In this context, the enhanced
voucher provision modifies when the requirements of
subsection (o)(7)(C) apply—that is, both during the term of the
lease and at the end of the lease term—but it does not change
the requirements themselves.
22
tenancy. But for each owner, the number of tenancies to which
the enhanced voucher good cause requirement applies will be
fixed and relatively small, because enhanced vouchers are
available to only families who were receiving project-based
assistance on the date of the eligibility event, see 42 U.S.C.
§ 1437f(t)(1)(C), (t)(2).
That Congress chose to enact such a compromise is
unsurprising given its purpose for creating enhanced vouchers
in the first place: “allow[ing] tenants to continue to maintain
their homes where the owners of their rental units have raised
rents after rejecting the renewal of project-based contracts.” S.
Rep. No. 106-161, at 62 (1999). Congress considered this goal
“especially . . . important where the tenants [we]re elderly or
persons with disabilities . . . [who] want[ed] to age in place.”
Id. Then, when Congress amended the enhanced voucher
provision in 2000, it did so in order to “clarify[] that assisted
families continue to have the right to elect to remain in the
same unit of their project if that project is eligible to receive
enhanced vouchers.” H.R. Rep. No. 106-521, at 42–43 (2000);
see also H.R. Rep. No. 106-710, at 164 (2000) (Conf. Report)
(stating that amendment was meant to “clarify[] the intent” of
the enhanced voucher provision).
These stated objectives merely confirm what the
statutory text and history already make clear on their own. 5 By
5
After cautioning that “there is no need to wade into the
quagmire of legislative history” here, Dissenting Op. at 10, the
Dissent itself is ironically the one that pins its hopes on
legislative history. As we have explained, the plain language
of § 1437f(t)(1)(B), when read in the context it is used, is alone
sufficient to conclude that the District Court must be reversed.
That said, it is true that “[w]hen the statutory language is
23
providing that assisted families “may elect to remain in the
same project in which the family was residing on the date of
the eligibility event,” 42 U.S.C. § 1437f(t)(1)(B), Congress
intended to grant enhanced voucher tenants a right to choose to
stay in their housing developments such that their landlords
unambiguous . . . we ordinarily do not consider statutory
purpose or legislative history.” Hesketh, 828 F.3d at 167.
Here, we include a brief discussion of purpose and legislative
history solely to demonstrate why Congress would have chosen
to enact this particular language—to show that this is not a case
where “literal application of the statute will produce a result
demonstrably at odds with the intention of its drafters.” Id.
(quoting In re Segal, 57 F.3d 342, 346 (3d Cir. 1995)).
The Dissent, on the other hand, leans heavily on the use
of the word “clarify[]” in two committee reports—both of
which we cite above—to conclude that the 2000 amendment
was not meant to “substantively change” anything in the
statute. Dissenting Op. at 16. Indeed, aside from those two
reports, the legislative history the Dissent references relates to
the 1999 statute, which we concede did not require property
owners to renew the leases of enhanced voucher tenants. Thus,
those two committee reports appear to form the keystone of the
Dissent’s contention that the 2000 amendment was intended to
merely restate what the 1999 statute already required. In cases
like this, however, where the statutory language is
unambiguous, we require far more than a single word used in
two committee reports before we depart from the general
presumption that “[w]hen Congress amends legislation, . . . it
intends [the change] to have real and substantial effect.’” Ross,
136 S. Ct. at 1858 (last alteration in original) (quoting Stone,
514 U.S. at 397).
24
may not evict them without cause, even at the end of a lease
term. In other words, the statutory language, when read in
context, is unambiguous, and it forecloses the District Court’s
interpretation. 6 Absent good cause, Harvey must renew the
Hayes family’s lease.
2. HUD’s Interpretative Guidance and the
Decisions of Other Courts
Even if the enhanced voucher statute’s language were
ambiguous, there would be an additional reason to reverse the
District Court: through various guidance documents, HUD has
6
We acknowledge that the right to elect to remain is
tied, not to the particular unit, but to the “same project in which
the family was residing on the date of the eligibility event.” 42
U.S.C. § 1437f(t)(1)(B) (emphasis added). One would think,
then, that at least under certain circumstances, property owners
could arrange for an enhanced voucher family to move to
another unit in the “same project” and still be in compliance
with § 1437f(t)(1)(B). Here, however, Harvey has not
expressed a willingness to permit the Hayes family to move
into another one of his apartments on Pine Street, so we need
not address the question, and for practical purposes of this case,
the inquiry is whether Harvey may evict the family from this
particular unit without cause. For the reasons we have just
provided, we conclude that he may not. We note too that this
case does not present the question of whether the right to elect
to remain survives a downstream sale of a unit that ceases to
be part of a “multifamily housing project,” defined as
“consist[ing] of not less than five dwelling units on one site,”
24 C.F.R. § 241.500(d), because Harvey purchased three
contiguous duplex houses, or six units.
25
long interpreted § 1437f(t)(1)(B) as requiring landlords to
renew the leases of enhanced voucher holders unless there is
good cause to terminate the tenancy. Because these guidance
documents lack the force of law, they do not warrant deference
under Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837 (1984); they are, however, entitled
to a degree of “respect” under Skidmore v. Swift & Co., 323
U.S. 134 (1944). Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 298 (3d Cir. 2012) (quoting Christensen v. Harris Cty.,
529 U.S. 576, 587 (2000)). The Skidmore framework is a
“sliding scale” approach, id. at 304, which “requires a court to
assign a weight to an [agency interpretation] based on ‘the
thoroughness evident in its consideration, the validity of its
reasoning, its consistency with earlier and later
pronouncements, and all those factors which give it power to
persuade, if lacking power to control,’” id. at 295 (quoting
Skidmore, 323 U.S. at 140). “‘[T]he most important
considerations are whether the agency’s interpretation ‘is
consistent and contemporaneous with other pronouncements of
the agency and whether it is reasonable given the language and
purpose of the Act.’” Id. at 304 (quoting Del. Dep’t of Nat.
Res. & Envtl. Control v. U.S. Army Corps of Eng’rs, 685 F.3d
259, 284 (3d Cir. 2012)).
Applying Skidmore here, HUD’s interpretation is
entitled to considerable weight. As we have already explained,
the interpretation that property owners must renew enhanced
voucher tenancies unless there is cause to evict is a reasonable
one given the language and purpose of the statute. Indeed, we
think it is the only interpretation to which § 1437f(t)(1)(B) is
susceptible, but if it were not, it would certainly be a reasonable
construction of the provision.
26
HUD also first announced its position
contemporaneously with the 2000 amendment to
§ 1437f(t)(1)(B). The agency’s Section 8 Renewal Policy
Guidance Document published in January 2001 provided:
Tenants who receive an enhanced voucher have
the right to remain in their units as long at [sic]
the units are offered for rental housing . . . .
Owners may not terminate the tenancy of a
tenant who exercises this right to remain except
for cause under Federal, State or local law. . . .
This protection continues after the first lease
term. As long as the property is offered as rental
housing, absent good cause to terminate [the]
tenancy under Federal, State or local law and
provided the PHA continues to find the rent
reasonable, owners must continually renew the
lease of an enhanced voucher family.
U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal Policy:
Guidance for the Renewal of Project-Based Section 8
Contracts, § 11-3-B (Jan. 19, 2001).
In the nearly two decades since, HUD has never altered
its interpretation, consistently reiterating the same view in
subsequent guidance documents and notices issued to owners
and PHAs. See e.g., U.S. Dep’t of Hous. & Urban Dev.,
Section 8 Renewal Policy: Guidance for the Renewal of
Project-Based Section 8 HAP Contracts, § 11-3-B (July 28,
2017); U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal
Policy: Guidance for the Renewal of Project-Based Section 8
Contracts, § 11-3-B (Nov. 5, 2015); Memorandum from
Benjamin T. Metfcalf, Deputy Assistant Sec’y for Multifamily
Hous. Programs, to Multifamily Project Owners (June 5,
27
2014); Letter from Michael Dennis, Dir., Office of Hous.
Voucher Programs, to Exec. Dirs., Public Hous. Agencies
(May 22, 2014); U.S. Dep’t of Hous. & Urban Dev., Section 8
Renewal Policy: Guidance for the Renewal of Project-Based
Section 8 Contracts, § 11-3-B (Feb. 15, 2008) [hereinafter
2008 HUD Renewal Guide]. Indeed, rather than altering its
position, HUD has sought to codify its interpretation through
notice-and-comment rulemaking. See Tenant-Based
Assistance: Enhanced Vouchers, 81 Fed. Reg. 74,372, 74,374–
75 (Proposed Oct. 26, 2016). That proposed regulation
remains pending. 7
7
Over the years, the agency has expressed the same
view in court filings as well, including an amicus brief filed in
this case. See Br. for U.S. Dep’t of Hous. & Urban Dev. as
Amicus Curiae at 11 (“Since § 1437f(t)(1)(B) was enacted in
its current form in 2000, HUD has interpreted the provision as
providing enhanced voucher tenants with a right to remain in
their housing units, such that they may not be evicted at the end
of a lease term absent good cause (assuming the relevant units
continue to be offered as rental housing and remain otherwise
eligible for rental assistance).”); see also Br. for the United
States as Amicus Curiae at 9 & n.4, Barrientos v. 1801-1825
Morton LLC, 583 F.3d 1197 (9th Cir. 2009) (No. 07-56697).
That amicus brief is itself entitled to respect under Skidmore,
“to the extent [it] ha[s] the power to persuade.” Shuker v. Smith
& Nephew, PLC, 885 F.3d 760, 773 n.11 (3d Cir. 2018)
(quoting Sikkelee v. Precision Airmotive Corp., 822 F.3d 680,
693–94 (3d Cir. 2016)).
28
Furthermore, HUD’s interpretation is owed
considerable weight under Skidmore because of the agency’s
“specialized experience” overseeing the complex housing
assistance programs, and because of “the value of uniformity”
in the management of those nationally applicable programs.
De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 349 (3d Cir. 2010)
(quoting United States v. Mead, 533 U.S. 218, 234–35 (2001)).
The risk of disuniformity is particularly high here, in
fact, because the Ninth Circuit has already embraced HUD’s
position. In Park Village Apartment Tenants Association v.
Mortimer Howard Trust, 636 F.3d 1150, 1156–57 (9th Cir.
2011), the court held that § 1437f(t)(1)(B) provides enhanced
voucher holders a right to elect to remain that is exercisable
against property owners, such that, “absent just cause for
eviction,” owners are “require[d] . . . to permit tenants to
remain in the housing complex while paying only their
statutorily prescribed portion of the rent.” The attempted
eviction in Park Village did not take place at the end of the
lease term, so the Ninth Circuit had no need to expressly
address property owners’ nonrenewal rights, but nothing in the
court’s opinion limits § 1437f(t)(1)(B)’s application to lease
terms. To the contrary, the court explicitly concluded that
HUD’s stance that “owners must continually renew the lease
of an enhanced voucher family, absent good cause to terminate
[the] tenancy,” id. at 1157 (quoting 2008 HUD Renewal
Guide) (internal quotation marks omitted), was “entitled to a
measure of respect” under the Skidmore framework, id.
(quoting Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197,
1214 (9th Cir. 2009)). Thus, if we were to reject HUD’s
position here and affirm the District Court, we would risk
fracturing this national program.
29
In sum, HUD’s interpretation is not entitled to outright
deference, but, taking into account the most important
considerations under Skidmore, it does warrant considerable
weight. The agency’s position is reasonable, longstanding, and
consistent, and it was adopted contemporaneously with the
relevant amendment of the statute. The agency also has unique
experience managing the housing assistance programs, and
another circuit has already adopted the agency’s position.
Thus, even if the statutory language were not sufficiently clear
on its own, we would—treating HUD’s view as a thumb on the
scale—still reverse the District Court.
C. The Good Cause Requirement and the Resulting
Statutory Gap
Our conclusion that § 1437f(t)(1)(B) provides the
Hayes family a right to elect to remain in their apartment that
is enforceable against Harvey does not resolve this case. As
we have explained, the statutory provisions governing ordinary
vouchers generally apply to the enhanced voucher program.
See 42 U.S.C. § 1437f(t)(1). Accordingly, § 1437f(o)(7)(C),
from the ordinary voucher subsection, allows property owners
to, at any time, terminate enhanced voucher tenancies “for
serious or repeated violation of the terms and conditions of the
lease, for violation of applicable Federal, State, or local law, or
for other good cause.”
Up to this point, we have yet to focus on one critical
question: what constitutes “other good cause” to terminate an
enhanced voucher tenancy? Unlike the previous issue
regarding the “elect to remain” language, this question presents
us with statutory ambiguity, for the Section 8 statute itself does
not provide a definition of “other good cause.” We are
confronted, then, with a “statutory gap,” and “[f]illing [such]
30
gaps . . . involves difficult policy choices that agencies are
better equipped to make than courts.” Nat’l Cable &
Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980
(2005); see also Eid v. Thompson, 740 F.3d 118, 123 (3d Cir.
2014) (“Under the familiar Chevron analysis . . . [i]f . . . the
statute is silent or ambiguous with respect to the question at
issue, we give ‘controlling weight’ to the agency’s
interpretation unless it is ‘arbitrary, capricious, or manifestly
contrary to the statute.’” (quoting United States v. Geiser, 527
F.3d 288, 292 (3d Cir. 2008)).
When it comes to ordinary tenant-based and project-
based vouchers, HUD has, through regulations, filled the gap.
With regard to tenant-based assistance, the agency has
determined that good cause
may include, but is not limited to, any of the
following examples:
(i) Failure by the family to accept the offer of a
new lease or revision;
(ii) A family history of disturbance of neighbors
or destruction of property, or of living or
housekeeping habits resulting in damage to the
unit or premises;
(iii) The owner’s desire to use the unit for
personal or family use, or for a purpose other
than as a residential rental unit; or
(iv) A business or economic reason for
termination of the tenancy (such as sale of the
31
property, renovation of the unit, or desire to lease
the unit at a higher rental).
24 C.F.R. § 982.310(d)(1). 8 The definition applicable to
ordinary project-based vouchers, while generally the same, is
narrower in that good cause for those vouchers “does not
include a business or economic reason or desire to use the unit
for an individual, family, or non-residential rental purpose.”
Id. § 983.257(a).
HUD has not, however, promulgated a good cause
regulation that governs enhanced vouchers, and it has issued
no relevant guidance. In fact, in its pending rulemaking
regarding enhanced vouchers, the agency specifically
requested comments on the subject. See 81 Fed. Reg. at
74374–75. To be sure, the regulatory provisions applicable to
ordinary vouchers can apply to enhanced vouchers. See 42
U.S.C. 1437f(t)(1). But, as we have just explained, there are
two different good cause regulations applicable to ordinary
vouchers. Neither the statute nor the regulations themselves
say which, if any, of the two should apply to enhanced
vouchers.
Complicating matters further is that the concept of good
cause inherently requires a case-by-case inquiry. Indeed, in
issuing its good cause regulations, HUD has recognized that
8
HUD’s regulation governing ordinary tenant-based
vouchers also provides that “[d]uring the initial lease term, the
owner may not terminate the tenancy for ‘other good cause’,
unless the owner is terminating the tenancy because of
something the family did or failed to do.” 24 C.F.R.
§ 982.310(d)(2).
32
“[t]he good cause concept should be flexible,” and that it
“should remain open to case by case determination by the
courts.” 60 Fed. Reg. 34,660, 34,673 (July 3, 1995) (quoting
49 Fed. Reg. 12,215, 12,233 (Mar. 29, 1984)). The agency
therefore stressed that its rule provides “key ‘examples’ of
cases that may be good cause, but explicitly states that ‘other
good cause’ is not limited to the listed examples.” Id.
(emphasis added). In other words, the good cause
determination is an inevitably fact-intensive inquiry, as “a
comprehensive regulatory definition . . . is neither possible
[n]or desirable.” Id. (quoting 49 Fed. Reg. at 12,233).
Here, Harvey provided three different justifications for
his nonrenewal of the Hayes family’s lease: (1) Florence
Hayes’s death; (2) a plan to renovate the unit; and (3) his desire
to move his daughter into the apartment. The District Court
did not reach the question of whether any of these justifications
were legally sufficient, because it held that Harvey did not need
good cause for nonrenewal. As the good cause question may
implicate critical, unresolved factual questions, summary
judgment is inappropriate at this juncture, because we are
unable to conclude that there is no genuine dispute as to any
material fact. See Fed R. Civ. P. 56(a). We will therefore
remand to the District Court so that it may consider in the first
instance whether Harvey has good cause for nonrenewal under
the circumstances of this case.
IV. CONCLUSION
For the foregoing reasons, we will reverse the District
Court’s order entering judgment in favor of Harvey and
remand for further proceedings consistent with this opinion.
33
FISHER, with whom Judge Hardiman joins, dissenting.
In the late 1990s, Congress recognized that an
increasing number of owners were opting out of project-based
assistance contracts, thereby putting hundreds of thousands of
units of affordable housing at risk. Because HUD had
repeatedly failed to address this opt-out problem, Congress
passed legislation designed to compel HUD to act. Enhanced
vouchers, which were a part of this legislation, offered property
owners a carrot to continue renewing enhanced-voucher
tenancies: market-rate rent. With its decision today, the
majority takes this carrot and wields it like a stick, holding that
property owners must continuously renew enhanced-voucher
tenancies because such tenants supposedly have an enforceable
“right to remain” in their units beyond the expiration of their
lease term. Without any basis in the statutory text or history,
the majority has converted Congress’s incentive into an edict.
This so-called “right to remain” “may be a good idea, but it
was not the idea Congress enacted into law.” MCI Telecomms.
Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 232 (1994). I
respectfully dissent.
***
Philip E. Harvey purchased 538 Pine Street free and
clear of any impediments, encumbrances, liens, or restrictions.
He entered into a contract with the Philadelphia Housing
Authority and a related lease with the Hayes family for the
four-bedroom apartment at 538B. The lease provided Harvey
with sole discretion over renewal. J.A. 656 (“The Owner may
offer the Tenant a new lease.”) (emphasis added). When the
lease expired, Harvey notified the family that he did not intend
1
to renew it. Under the majority’s view, however, Harvey must
continuously renew the Hayes family’s lease for as long as they
wish to remain at 538B—provided he does not have good
cause to evict. This supposed “right to remain” extends to
anyone who was on the lease at the time of the opt-out. As a
practical matter, given that three minor children were on the
lease at the time of the opt-out, Harvey’s property will likely
be tied up for decades. 1 If Congress meant to create such a
“right to remain,” it would have done so clearly. Because it did
not, and because this Court is not a legislature, I disagree with
the majority’s holding.
This case turns on the meaning of four words—“may
elect to remain”—added to 42 U.S.C. § 1437f(t)(1)(B) in 2000.
Military Construction Appropriations Act, 2001, Pub. L. 106-
246 § 2801, 114 Stat. 511 (2000). From these four words, the
majority infers an entirely new “right to remain” for enhanced-
voucher tenants, enforceable against their landlords. The
majority’s reasoning is flawed on several fronts. It largely
analyzes these four words in isolation, rather than in their
proper context; it mistakenly construes the provision as being
directed at property owners, when it is actually directed at the
relationship between HUD and assisted tenants; and it ignores
the fact that if Congress meant to so expansively alter property
1
I acknowledge that this is not a “perpetual lease” in the
sense that it can be terminated in limited instances. And I
acknowledge that the only family eligible for the enhanced
voucher is the family who was on the lease at the time of the
opt-out. Still, the majority has, in essence, conferred on the
Hayes family a life estate at 538B Pine Street—notably, one
that extends multiple generations. In other words, the majority
has tied up Harvey’s property for however many years—or
decades—the Hayes family chooses to reside there.
2
law, it would have done so clearly. It also overlooks the basic
design of the enhanced voucher program as an incentive-based
program, not a compulsory one.
I. Statutory text
Like the majority, I begin with the statute’s text.
Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001).
If the “language is plain and unambiguous, further inquiry is
not required.” Id. In determining whether the language is “plain
and unambiguous,” we examine “the language itself, the
specific context in which that language is used, and the broader
context of the statute as a whole.” Id. (quoting Marshak v.
Treadwell, 240 F.3d 184, 192 (3d Cir. 2001)). A proper reading
of the statute reveals that it is directed not at property owners,
but at HUD and assisted tenants, and that the program was
designed to incentivize—rather than compel—owners to
renew enhanced-voucher tenancies.
The “may elect to remain” language at issue was added
to § 1437f(t)(1)(B) in 2000 via amendment. 2 The current
provision states that
the assisted family may elect to
remain in the same project in
which the family was residing on
the date of the eligibility event for
the project, and if, during any
2
That this key language was buried within a “Military
Construction Appropriations Act,” without any explanation, is
perhaps another clue that Congress did not intend to create a
new substantive right that would force property owners to
continuously renew enhanced-voucher tenancies.
3
period the family makes such an
election and continues to so reside,
the rent for the dwelling unit of the
family in such project exceeds the
applicable payment standard . . . ,
the amount of rental assistance
provided on behalf of the family
shall be determined using a
payment standard that is equal to
the rent for the dwelling unit (as
such rent may be increased from
time-to-time), subject to paragraph
10(A) of subsection (o) of this
section and any other reasonable
limit prescribed by the [HUD]
Secretary, except that a limit shall
not be considered reasonable for
purposes of this subparagraph if it
adversely affects such assisted
families . . . .
42 U.S.C. § 1437f(t)(1)(B) (emphasis added).
The majority bases its sweeping view of the enhanced
voucher statute on these four words—“may elect to remain”—
which it largely reads in isolation. Indeed, despite repeatedly
acknowledging that a statute must be examined in context, the
majority never attempts to examine the key four words within
the context of the enhanced voucher provision, let alone the
“broader context of the statute as a whole.” Rosenberg, 274
F.3d at 141 (quoting Marshak, 240 F.3d at 192). By failing to
read these words in context, the majority incorrectly
determines that this provision is somehow directed at property
owners. Then, based on this incorrect premise, the majority
infers a “right to remain” because if an assisted family “may
4
elect to remain,” then that must impose a corresponding
obligation on property owners to continuously renew an
enhanced-voucher tenancy. There is no basis in the text to
support this inferential leap.
The language—“the assisted family may elect to
remain”—does not plainly restrict a property owner’s
nonrenewal rights. Indeed, nothing in the clause, nor the entire
subsection, even mentions property owners. As the majority
notes, there are two key verbs: “elect” and “remain.” “Elect”
means “to make a selection of . . . to choose . . . especially by
preference.” Elect, Merriam-Webster Dictionary,
https://www.merriam-webster.com/dictionary/elect (last
visited July 31, 2018). “Remain” means “to stay in the same
place or with the same person or group.” Remain, Merriam-
Webster Dictionary, https://www.merriam-
webster.com/dictionary/remain (last visited July 25, 2018).
Thus, what this clause plainly states is that an assisted tenant
can “make a selection” or “choose” to “stay in the same place.”
But for how long? One year? Five years? For life? Choosing to
stay is plainly different than having a right or entitlement to
stay. The majority, however, conflates the two and infers a
corresponding obligation on property owners.
When viewing the language first in the proper context
of § 1437f(t)(1)(B), it is evident that “may elect to remain” has
nothing to do with property owners, but is rather directed at
HUD and assisted tenants. The provision explains what tenants
must do to maintain eligibility, and that a tenant’s “elect[ion]
to remain” is the triggering mechanism that initiates HUD’s
obligation under the provision. It works as follows. After a
valid opt-out, an assisted family can “elect to remain” in the
same project. If the post-opt-out rent exceeds the payment
standard, then the assisted family’s rent is calculated as
specified by the statute. But how can the assisted family be
5
assured that HUD will provide them with an enhanced voucher
to afford the increased rent? 3 Enter § 1437f(t)(1)(B), which
obligates HUD to provide the financial means to afford the
increased rent. In other words, it makes their election to remain
meaningful. 4 This is the key feature of the enhanced voucher
program—namely that HUD is required to provide an
enhanced voucher to an eligible tenant, once they “elect to
remain.”
What this provision does not do is impose a duty on a
landlord to continuously renew such a lease beyond its natural
expiration date. The majority infers such a duty, reasoning that
3
As discussed in Part II, infra, there is ample evidence
suggesting that Congress was concerned with HUD’s failure to
act despite the threat of increasing opt-outs. Thus, it enacted
these provisions to compel HUD to act—not to compel
property owners.
4
As the panel stated before the grant of rehearing en
banc:
In our view, through the 2000 amendment
Congress intended to make clear that, following
a valid opt-out, HUD could not force an assisted
family to leave the unit and that the family’s
enhanced vouchers must be credited toward their
rental obligations. . . . But after a rental
agreement naturally expires, so too do the
attendant rental obligations. At that point, the
statute goes silent. Nothing in its text explicitly
or impliedly obligates property owners to
continuously renew enhanced-voucher
tenancies.
Hayes v. Harvey, 874 F.3d 98, 106 n.3 (3d Cir.), reh’g en banc
granted, judgment vacated, 878 F.3d 446 (3d Cir. 2017).
6
otherwise, the family’s choice under the statute would be
meaningless. Under the majority’s novel reasoning, a “right”
is “meaningless” unless it makes the right-holder’s objective
not only possible, but perfectly assured. It follows, I suppose,
that if a foundation guarantees a full college scholarship to a
high school student, this is “meaningless” because no college
is required to offer the student admission. Nonsense. When
there are multiple parties involved in a transaction, a guarantee
to one party is not meaningless, in any sense, even if it does
not bind all parties. The right conferred in § 1437f(t)(1)(B) is
the right to have HUD increase the level of assistance to match
the market-rate rent set by the now-opted-out property owner.
And this is far from a token assurance—without the enhanced
voucher program, tenants like the Hayes family often would be
unable to afford market-rate rent following an opt-out.
The majority also fails to view the language in the
context of the entire statute. If Congress meant to direct any
part of the enhanced voucher statute at property owners, it
would have done so in unambiguous terms, as it does
elsewhere. See 42 U.S.C. § 1437f(o)(7)(B) (“owner shall offer
leases to tenants under this subsection”); § 1437f(o)(7)(C)
(“owner shall not terminate”); § 1437f(o)(13)(G) (“may
obligate the owner”); § 1437f(o)(13)(J) (“The owner . . . shall
not admit any family to a dwelling . . . other than a family
referred by the public housing agency from its waiting list.”);
§ 1437f(cc)(2)(B) (“require the owner to submit an application
for those rent requirements”). So within the context of the
overall statute, it is evident that § 1437f(t)(1)(B) has nothing to
do with property owners.
Read in context, these four words—“may elect to
remain”—simply cannot bear the weight the majority heaps
upon them. As the Supreme Court has noted, Congress “does
not alter the fundamental details of a regulatory scheme in
7
vague terms or ancillary provisions—it does not, one might
say, hide elephants in mouseholes.” Whitman v. Am. Trucking
Associations, 531 U.S. 457, 468 (2001). Creating a new,
enforceable “right to remain,” however, would certainly be an
alteration of a “fundamental detail[] of [this] regulatory
scheme”—an elephant hiding in a mousehole. Id.
The question then becomes: what does “may elect to
remain” mean? After all, it must mean something, given that a
“statute should be construed to give effect to all its provisions,
so that no part will be inoperative or superfluous, void or
insignificant.” Corley v. United States, 556 U.S. 303, 314
(2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).
Likewise, “[w]hen Congress acts to amend a statute, we
presume it intends its amendment to have real and substantial
effect.” Stone v. INS, 514 U.S. 386, 397 (1995). The answer is
that the language provides enhanced-voucher recipients with a
guarantee that they will not be evicted, during their lease term,
by a landlord who refuses to accept enhanced vouchers as part
of their rental payment. As the Ninth Circuit explained:
The statute gives “assisted families” the right “to
remain in the same project.” The statute also
authorizes owners to raise their rents to a
reasonable market rate and to receive a housing
assistance payment, by means of an enhanced
voucher, to cover the authorized increases in
rent. It does not authorize owners to raise their
rents to a reasonable market rate, but then to
refuse to accept payment by means of an
enhanced voucher, and evict an “assisted family”
for nonpayment of rent. Practically, the statute
requires owners to permit tenants to remain in the
housing complex while paying only their
statutorily prescribed portion of the rent.
8
Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Tr.,
636 F.3d 1150, 1156 (9th Cir. 2011); see also Feemster v. BSA
L.P., 548 F.3d 1063, 1069 (D.C. Cir. 2008) (“One thing that
[the landlord] may not do, however, is refuse to accept payment
by voucher and then contend that eviction is warranted for
nonpayment of rent.”). This is a consequential protection; it
does not render the language superfluous or meaningless. 5 This
protection cannot, however, extend in perpetuity beyond the
contractual relationship between the landlord and the assisted
tenant.
Given that nothing in the enhanced voucher statute
speaks to nonrenewal, we must look to the ordinary voucher’s
termination provision, which provides that “during the term of
the lease, the owner shall not terminate the tenancy except for
5
Nor does this merely “reflect the baseline conditions
of landlord-tenant relations.” Maj. Op. at 17–18. It not only
protects against an early termination following an opt-out, but
it also explicitly provides eligible enhanced-voucher tenants
with a guarantee that HUD will provide them with an enhanced
voucher. The majority finds my reading “implausible” because
the 1999 version of the statute contained a similar provision.
But in its single-minded quest to give the 2000 amendment
“independent meaning,” the majority ignores everything
else—the plain language of the text, the context in which the
language is used, the broader context of the overall statute, and
the fact that Congress does not alter fundamental details of a
regulatory scheme in vague terms. Indeed, had Congress meant
to radically alter property rights in the way my colleagues do
today, it would have done so clearly. What is “implausible,”
then, is the inferential leap the majority must take to arrive at
its conclusion.
9
serious or repeated violation of the terms and conditions of the
lease, for violation of applicable Federal, State, or local law, or
for other good cause.” 42 U.S.C. § 1437f(o)(7)(C) (emphasis
added). Under the plain language of this provision, Harvey’s
termination rights were limited “during the term of the [Hayes
family’s] lease.” Id. After the lease term expires, so do these
protections. Of course, Harvey had an incentive to renew the
Hayes family’s lease, given that he was receiving market-rate
rent. And, indeed, he did renew the lease multiple times. But
nothing compels him to do so continuously.
II. Statutory history
The foregoing analysis of the statutory text is sufficient
to conclude that there is no “right to remain” beyond the
expiration of the initial lease term. Thus, there is no need to
wade into the quagmire of legislative history. 6 The majority
6
The majority suggests that I “pin[ my] hopes on
legislative history.” Maj. Op. at 23 n.5. I do not; the plain
language of the statute is sufficient to affirm the District Court.
Indeed, where—as here—the statutory text is unambiguous,
there is generally no need to consider statutory purpose or
legislative history. Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir.
2016). Further inquiry is warranted only in “rare
circumstances” where a “literal application of the statute will
produce a result demonstrably at odds with the intentions of its
drafters . . . or where the result would be so bizarre that
Congress could not have intended it.” Id. (quoting In re Segal,
57 F.3d 342, 346 (3d Cir. 1995)). I agree with the majority that
this is not such a “rare circumstance[].” Id. But the majority’s
reading of the statute results in such an outcome—one that is
“so bizarre that Congress could not have intended it.” Id. The
10
does, however, and its analysis reflects some of the common
pitfalls associated with such an undertaking. I examine the
legislative history to highlight those errors, and to show that
the history is not only consonant with our interpretation of the
statute—it compels it.
Legislative history can sometimes be a useful tool, but
it must be deployed with care. Compare Digital Realty Tr., Inc.
v. Somers, 138 S. Ct. 767, 783 (2018) (Thomas, J., concurring
in part and concurring in the judgment) (noting that the Court’s
attempt to derive a supposed “purpose” from a single Senate
Report is flawed, because “[e]ven assuming a majority of
Congress read the Senate Report” and “agreed with it,” we
must still look at what was actually enacted because “we are a
government of laws, not of men”), with id. at 782–83
(Sotomayor, J., concurring) (noting that legislative history can
“aid us in our understanding of a law” and that “even when . .
. a statute’s meaning can clearly be discerned from its text,
consulting reliable legislative history can still be useful, as it
enables us to corroborate and fortify our understanding of the
text”).
The point of contention here is the same as in Digital
Realty Trust: selective quotation of a limited number of
legislative reports to divine Congressional intent, while
ignoring more compelling evidence. See Maj. Op. at 23 (citing
S. Rep. No. 106-161 (1999), and H.R. Rep. No. 106-521
(2000)). In focusing on these reports, the majority overlooks
the overall purpose behind the enhanced voucher provision,
and the means by which Congress sought to achieve that
purpose. A proper analysis of the statutory history reveals two
key points: first, that the enhanced voucher provisions are
legislative history discussed in this section merely reinforces
this notion.
11
clearly directed at HUD—not property owners—because of
HUD’s repeated failure to confront the impending opt-out
problem; and second, that Congress intended the enhanced
voucher provision to act as a market-based tool to
incentivize—not force—property owners to renew leases of
enhanced voucher holders.
At the outset, I note where I agree with the majority. I
agree that one of the main purposes of the enhanced voucher
provision was to “allow tenants to continue to maintain their
homes where the owners of their rental units have raised rents
after rejecting the renewal of project-based contracts.” S. Rep.
No. 106-161, at 62 (1999); Maj. Op. at 23. I also agree that this
goal “especially is important where the tenants are elderly or
persons with disabilities, and want to age in place.” S. Rep. No.
106-161, at 62 (1999). I further acknowledge that the opt-out
problem was a real one—reliable studies showed that 500,000
units of affordable housing could have been at risk in the
following years due to increasing opt-outs. 145 Cong. Rec.
22850 (Majority Staff, Marking up to Market: Renewing
Section 8 Contracts and the Problem of Owner “Opt Outs,”
June 23, 1999). Likewise, I agree that the enhanced voucher
provision shows that Congress wanted to strike a balance
between tenants’ and landlords’ interests. The problem, which
the statutory history reveals, is that the majority strikes a
balance that Congress clearly did not.
Although the majority correctly notes Congressional
desire to allow tenants to maintain their homes, it wholly
ignores another major factor prompting the legislation;
Congress was concerned with HUD’s inaction regarding the
looming threat of increasing opt-outs. Section 8 Housing:
Hearing Before the Sen. Subcomm. on Hous. and Transp.,
106th Cong. (1999), 1999 WL 492964 (written testimony of
Rep. Rick Lazio, Chairman, H. Subcomm. Hous. & Cmty.)
12
(explaining that “Congress must act,” because “[f]or the last 18
months, HUD has had broad authority to prevent opt-outs and
the loss of affordable housing,” but has failed to act); 145
Cong. Rec. 22850 (majority Staff, Marking up to Market:
Renewing Section 8 Contracts and the Problem of Owner “Opt
Outs,” June 23, 1999) (noting that “HUD has failed to offer or
develop anything resembling a comprehensive approach to
solving the opt-out problem,” and that “many in the advocacy
community and some legislators expressed belief that
encouraging nonrenewals was an intentional policy choice [by
HUD].”). Indeed, even the Senate Report the majority cites
reveals that, in order to achieve the stated goal of allowing
assisted tenants to remain in their homes, Congress was
authorizing HUD to act, as opposed to imposing any obligation
on landlords. S. Rep. No. 106-161, 62 (“[a]uthoriz[ing] HUD
to provide . . . enhanced vouchers” for this purpose, and
instructing “HUD [to] make every effort to renew expiring
section 8 project-based contracts before making [enhanced]
vouchers available”). All of this further suggests that the
majority’s reading of 42 U.S.C. § 1437f(t)(1)(B) is based on an
incorrect premise—that it somehow is directed at the landlord-
tenant relationship. On the contrary, this history makes clear
(as does the statute itself) that the enhanced voucher provision
is directed at the relationship between HUD and assisted
tenants.
Next, although the enhanced voucher provision reflects
congressional intent to strike a balance between landlords’ and
tenants’ interests, the majority imposes a far different balance.
Specifically, nothing in the legislative history suggests that
Congress ever meant to force owners, like Harvey, to
continuously renew enhanced-voucher tenancies, absent good
cause to end the lease. Rather, the enhanced voucher program
was clearly designed as a market-based solution that would
13
incentivize and encourage owners to continue renewing
enhanced-voucher tenancies. See 145 Cong. Rec. 22848
(statement of Rep. Rick Lazio, Chairman, H. Subcomm. Hous.
and Cmty.) (“[W]hat we have done with this bill is . . . create
the right incentive for owners to ensure the continuity of
allowing the seniors, the disabled . . . to continue to live . . .
there.”) (emphasis added) 7; id. (statement of Rep. Barney
Frank) (“[O]wners ought not to drop out. No one can say I am
driven economically to drop out. . . . No one is going to be
asked to lose money by staying in the program. We cannot take
away their legal right to get out; we can diminish their
financial incentive to get out.”) (emphasis added).
Numerous contemporaneous statements corroborate
this view of the Section 8 enhanced voucher program. HUD
Section 8 opt-out crisis: Hearing before the Subcommittee on
Housing and Transportation of the Committee on Banking,
Housing, and Urban Affairs, 106th Cong. (July 1, 1999), 1999
WL 492966 (testimony of Sen. John Kerry) (“[T]he new HUD
policy largely meets the concerns of the owners of section 8
housing. Now, I ask these owners to hold up their side of the
bargain and agree to accept the new, higher rents and stay in
the program. I understand that it can be difficult at times to
work with HUD. Still, the Department has come far, far more
7
These statements were made in support of H.R. 202,
portions of which were incorporated into H.R. 2684, which
become Public Law No. 106–74, the 1999 version of the
enhanced voucher statute. See H.R. Rep. No. 106–379, at 169
(1999) (“Title V combines certain provisions from . . . H.R.
202. . . .”). Rep. Lazio’s statements, in particular, have been
cited by several courts, including this one. See, e.g., Park Vill.
Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d
1150, 1163–64 (9th Cir. 2011).
14
than half way. We should expect the owners to take the last
step and continue in the program.”) (emphasis added); see also
id. (testimony of William C. Apgar, Assistant Sec. HUD), 1999
WL 492965 (“HUD’s multifamily subsidies were always
intended as market-driven programs dependent on the private
sector to provide affordable housing.”).
In other words, Congress identified a problem: HUD’s
failure to act despite the threat of impending opt-outs. To
combat this problem, Congress enacted a solution: compelling
HUD to make up the difference between what assisted families
could pay and market-rate rents. This solution struck the
appropriate balance between tenants’ interests and landlords’
interests. This balance, however, never included forcing
landlords to continuously renew enhanced-voucher tenancies
after the leases expired on their own terms. Rather, the balance
was that Congress would compel HUD to provide enhanced
vouchers to eligible tenants; this, in turn, provided property
owners with the proper incentive—market-rate rent—to
continue renewing enhanced-voucher tenancies. Of course, if
a property owner decided not to renew an enhanced-voucher
tenancy, then nothing in the statute could, or would, require
him to do so. After all, an incentive is not an edict.
Admittedly, much of the foregoing discussion pertains
to the earlier version of the enhanced voucher statute. But that
context is critical, especially given the complete dearth of
information regarding the 2000 amendment. Indeed, the only
explanation provided for the insertion of the “may elect to
remain” language at issue here is that it was added to “clarify[]
that assisted families continue to have the right to elect to
remain in the same unit of their project if that project is eligible
to receive enhanced vouchers.” H.R. Rep. No. 106-521, 42–43
(2000) (emphasis added); see also H.R. Rep. No. 106-710, at
164 (2000) (Conf. Report) (noting that the amendment was
15
intended to “clarif[y] the intent” of the enhanced voucher
provision).
This reveals another major flaw in the majority’s
reasoning. Clarify, after all, means “to make understandable,”
or “to free of confusion.” Clarify, Merriam-Webster
Dictionary, https://www.merriam-
webster.com/dictionary/clarify (last visited July 25, 2018).
Thus, according to the legislative history the majority relies on,
the purpose of the 2000 amendment was simply to make the
1999 version “understandable”—not to substantively change
it. 8 Undoubtedly, the creation of an entirely novel, judicially
enforceable “right to remain,” which radically alters property
rights, is a substantive change. Deriving this right entirely from
the 2000 amendment, as the majority does, cannot be correct.
III. Other considerations
The majority suggests that HUD’s interpretive
guidance, as well as the decisions of other courts, provide
further support for its conclusions. I disagree.
Through policy guidance, HUD has purported to extend
§ 1437f(o)(7)(C)’s midterm limitations to nonrenewals of
enhanced-voucher tenancies. See, e.g., HUD Section 8
Renewal Policy, Ch. 11, ¶ 11-3(B) (2017) (stating that
“[o]wners may not terminate the tenancy of a tenant who
8
There is a meaningful difference between a
clarification and a substantive change. See Napotnik v.
Equibank & Parkvale Sav. Ass’n, 679 F.2d 316, 321 (3d Cir.
1982). Of course, “we are constrained to give effect to the
statutory language actually enacted.” Id.
16
exercises this right to remain except for cause” and that
“[o]wners must continually renew the lease of an enhanced
voucher family”). As the majority correctly notes, these
documents lack the force of law, and are therefore not accorded
deference under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Rather, they are
entitled to a “degree of respect” under Skidmore v. Swift & Co.,
323 U.S. 134 (1944), but only to the extent that HUD’s
interpretation has the “power to persuade.” Christensen v.
Harris Cty., 529 U.S. 576, 587 (2000) (quoting Skidmore, 323
U.S. at 140). I am not persuaded.
Some of the “most important considerations are whether
the agency’s interpretation ‘is consistent and contemporaneous
with other pronouncements of the agency.’” Hagans v.
Comm’r of Soc. Sec., 694 F.3d 287, 298 (3d Cir. 2012) (quoting
Del. Dep’t of Nat. Res. & Envtl. Control v. U.S. Army Corps of
Eng’rs, 685 F.3d 259, 284 (3d Cir. 2012)). Admittedly, HUD’s
policy guidance was first issued contemporaneously with the
2000 amendment and has been consistent. In addition, HUD
has “relative expertise,” id. at 305, in administering the
statutory scheme. But expertise and consistency do not alone
require deference. We must also consider whether HUD’s
interpretation “is reasonable given the language and purpose of
the [statute],” id. at 304, “the thoroughness evident in [HUD’s]
consideration, the validity of its reasoning . . . and all those
factors that give it the power to persuade, if lacking the power
to control.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338,
1352 (2015) (quoting Skidmore, 323 U.S. at 140). Here,
HUD’s statement that “[o]wners must continually renew the
lease of an enhanced voucher tenancy,” is contained in one
paragraph of HUD’s nearly 200-page Section 8 Renewal
Guidebook. HUD Section 8 Renewal Policy, Ch. 11, ¶ 11-3(B)
(2017). Nowhere in this guidance does HUD explain the
17
reasoning behind its interpretation, and therefore we cannot
discern the thoroughness of its consideration, nor the “validity
of its reasoning.” Young, 135 S. Ct at 1352 (quoting Skidmore,
323 U.S. at 140). And, most importantly, HUD’s interpretation
is not supported by the statute’s text and history. Accordingly,
HUD’s interpretation lacks “the power to persuade.” Id.
Decisions of other courts do not alter this conclusion. I
acknowledge that, in the framework of non-
binding Skidmore deference, HUD’s interpretation may be
entitled to some degree of deference given the “value of
uniformity.” United States v. Mead Corp., 533 U.S. 218, 234
(2001) (citing Skidmore, 323 U.S. at 140). Contrary to the
majority’s view, however, there is no uniformity problem here.
In fact, no other Court of Appeals has weighed in on the issue
of non-renewal after the expiration of a lease term. Instead, our
sister Circuits’ decisions have only addressed situations where
a landlord sought to evict an enhanced-voucher tenant during
the lease term for nonpayment reasons. See Park Vill., 636 F.3d
at 1156 (“[The statute] does not authorize owners to raise their
rents to a reasonable market rate, but then to refuse to accept
payment by means of an enhanced voucher, and evict an
‘assisted family’ for nonpayment of rent.”); Feemster, 548
F.3d at 1069 (“One thing that [the landlord] may not do,
however, is refuse to accept payment by voucher and then
contend that eviction is warranted for nonpayment of rent.”). I
agree with Park Village and Feemster insofar as they address
the actual issues before those courts. In other words, there is no
risk of non-uniformity, nor is there the potential for a circuit
split.
IV. Conclusion
18
The proper role of the judiciary is to “apply, not amend,
the work of the People’s representatives.” Henson v. Santander
Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017). Today, the
majority oversteps that role by crafting an enforceable “right
to remain” that finds no support in the statutory text or history.
I respectfully dissent.
19