United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2008 Decided November 14, 2008
No. 07-7156
BRIDGETTE FEEMSTER, ET AL.,
APPELLEES/CROSS-APPELLANTS
v.
BSA LIMITED PARTNERSHIP,
APPELLANT/CROSS-APPELLEE
Consolidated with 07-7166
Appeals from the United States District Court
for the District of Columbia
(No. 04cv01901)
Robert E. Greenberg argued the cause and filed the briefs
for appellant/cross-appellee.
Julie H. Becker argued the cause for appellees/cross-
appellants. With her on the briefs were Barbara McDowell and
Clifford J. Zatz. Eliza T. Platts-Mills entered an appearance.
Before: GINSBURG, GARLAND, and GRIFFITH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Current and former tenants in
properties owned by BSA Limited Partnership contend that BSA
unlawfully refused to accept their federal vouchers as payment
for rent, in violation of federal housing statutes and the District
of Columbia Human Rights Act. The district court granted
summary judgment for the tenants on the federal claims and for
BSA on the Human Rights Act claim. We affirm the judgment
in favor of the tenants but reverse the judgment in favor of BSA.
I
BSA has owned and managed a set of residential properties
in northwest Washington, D.C., known as the Bates Street
Townhomes, since the early 1980s. The development contains
thirty-seven units spread across thirty buildings on five streets.
From 1982 to 2004, BSA participated in the Section 8 rental
assistance program administered by the United States
Department of Housing and Urban Development (HUD).1
Throughout that period, BSA contractually agreed to limit a
tenant’s portion of the rent to a percentage of the family’s
income and to accept the remainder from HUD in the form of a
“project-based” subsidy. HUD also provided BSA with
mortgage insurance for the Bates Street Townhomes. All nine
plaintiffs in this case received rental assistance through the
1
“Section 8” refers to Section 8 of the United States Housing Act
of 1937, which was added by the Housing and Community
Development Act of 1974, Pub. L. No. 93-383, § 201(a), 88 Stat. 633,
662-66 (codified as amended at 42 U.S.C. § 1437f).
3
Section 8 program. Several have lived in the Bates Street
Townhomes for over twenty years.2
Following the expiration of its Housing Assistance
Payments Contract in 2002, BSA decided to opt out of the
Section 8 program. It prepaid its HUD-insured mortgage, sent
a one-year notice to tenants on September 30, 2003, and allowed
its final contract extension with HUD to expire on September
30, 2004. In the summer of 2004, BSA employees began to
encourage -- and then to press -- tenants to vacate their units,
offering financial compensation to those who agreed to leave.
At the time of its opt-out, BSA had arranged to sell the Bates
Street Townhomes to a third-party developer. Although the
initial deal fell through, BSA continued its efforts to sell the
properties and in 2005 found a new buyer, TMS Investments,
LLC. The contract with TMS expressly conditioned the
purchase of individual units on their being vacant at the time of
closing. BSA has not accepted new tenants at the Bates Street
Townhomes since January 2003.
Under federal law, when an owner opts out of a project-
based Section 8 contract, assisted families in that project may
elect to remain in their units and receive “enhanced vouchers.”
See 42 U.S.C. § 1437f(t). With such a voucher, the tenant’s rent
subsidy may be “enhanced” (pursuant to a formula) to cover the
difference between the previous rent and the new market rent.
Id. Alluding to the enhanced voucher provision, BSA’s opt-out
letter to its tenants stated:
2
BSA did not dispute the tenants’ statement of facts in the district
court, see Feemster v. BSA Ltd. P’ship, 471 F. Supp. 2d 87, 88 n.2
(D.D.C. 2007), nor does it here. We therefore follow the district court
in treating their factual assertions as conceded.
4
Federal law allows you to elect to continue living at
this property provided that the unit, the rent, and we,
the owners, 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 long 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. 670.
In conjunction with BSA’s opt-out, the District of Columbia
Housing Authority (DCHA), which administers the Section 8
program in the District, determined that the tenants were eligible
for enhanced vouchers. When tenants tried to use their vouchers
for rental payments, however, BSA refused to accept them or to
execute the necessary lease agreements. Starting in September
2004, BSA wrote letters to the tenants declaring that it would
not sign the paperwork required for use of the vouchers, but
stating that, “provided you pay the rent charged and otherwise
abide by the terms of your tenancy, you may continue to reside
in the property which you currently lease until such time as
[you] may be required to vacate upon appropriate notice.” J.A.
673-78. Each letter specified the “current rent” for that tenant’s
unit. Id. Thereafter, the tenants “continued to pay rent each
month to BSA, either at the full market amount or at the [lower]
amount established by the project-based Section 8 program.”
J.A. 594 (Plaintiffs’ Statement of Material Facts Not in Dispute
¶ 15).
On November 2, 2004, the tenants filed their initial
complaint in this action, together with an application for a
temporary restraining order (TRO). The district court granted
a TRO two days later, requiring BSA “to initiate the process of
accepting [the tenants’] enhanced vouchers, to wit: immediately
5
sign, complete, and submit any necessary papers to the District
of Columbia Housing Authority to begin the ‘lease-up’ process
so that [the tenants] will be able to use their enhanced vouchers
at their current homes.” Feemster v. BSA Ltd. P’ship, No.
04-1901, TRO at 2 (D.D.C. Nov. 4, 2004). BSA initiated the
lease-up process with DCHA as ordered, but refused to complete
the paperwork that DCHA required to pay the rent subsidy on
behalf of the tenants.
Shortly after the court issued the TRO, BSA offered the
tenants the opportunity to buy their homes, in accordance with
the District of Columbia’s Tenant Opportunity to Purchase Act,
D.C. Code § 42-3404.02 et seq. With assistance from a local
nonprofit housing developer, four tenants negotiated contracts
for sale. On the day before closing, BSA informed the tenants
that it would not complete the sales unless they reimbursed it for
approximately $37,000 in rent they allegedly had not paid since
the commencement of the litigation -- rent that would have been
covered by the enhanced vouchers had BSA been willing to
accept them. To allow the sales to go forward, the district court
facilitated an arrangement under which the tenants agreed to
place the disputed sum in an escrow account administered by a
settlement attorney.3
3
The four plaintiffs who purchased their homes were Mary
Brown, Beatrice Harris, Shirley Holland, and Dyanne Johnson. See
Feemster v. BSA Ltd. P’ship, No. 04-1901, Joint Status Report ¶ 1
(D.D.C. June 30, 2006). The lead plaintiff, Bridgette Feemster, did
not purchase her unit and moved out of the Bates Street Townhomes
in February 2006. Id. ¶ 2. Plaintiffs Michelle Hawkins, Lillian
Johnson, Sabrina Lymore, and Dorothy Paul still reside in their units
as tenants. In light of these developments, the plaintiffs conceded that
the injunctive claims were moot with respect to Feemster and the four
homebuyers, but continued to press their damages claims. Id. ¶¶ 1-2.
6
In January 2005, BSA served the remaining tenants with
180-day eviction notices. When the tenants refused to move out
at the end of the 180 days, BSA brought an action to evict them
in District of Columbia Superior Court. On August 28, 2007,
the Superior Court ruled that BSA’s eviction notices were
“inadequate as a matter of law” and that the tenants were
entitled to remain in their units. Hawkins v. BSA Ltd. P’ship,
No. 04-6839, Order at 4 (D.C. Sup. Ct. Aug. 28, 2007). BSA
has filed an appeal from that judgment in the District of
Columbia Court of Appeals, where it is currently pending.
In their U.S. District Court complaint, the tenants argued
that BSA was required to accept their enhanced vouchers until
their tenancies were validly terminated under District of
Columbia law, and that its refusal to do so violated both federal
housing statutes and the District of Columbia Human Rights
Act. On January 12, 2007, the district court granted summary
judgment for the plaintiffs on their federal claims, finding it
“clear that ‘families renting at the time of the termination of [a]
project-based subsidy contract [have] the right to remain in their
units, using enhanced vouchers, for so long as the tenant remains
eligible for the vouchers or until the tenant is evicted.’”
Feemster v. BSA Ltd. P’ship, 471 F. Supp. 2d 87, 98 (D.D.C.
2007) (quoting Jeanty v. Shore Terrace Realty Ass’n, No. 03-
8669, 2004 WL 1794496, at *3 (S.D.N.Y. Aug. 10, 2004)). On
the D.C. Human Rights Act claim, however, the district court
granted summary judgment in favor of BSA, finding that the
plaintiffs failed to show “that an impermissible factor played a
motivating or substantial role” in BSA’s refusal to accept their
enhanced vouchers. Id. at 102.
BSA now appeals the district court’s grant of summary
judgment in favor of the tenants on the federal housing law
claims. The tenants cross-appeal the court’s grant of summary
judgment in favor of BSA on the D.C. Human Rights Act
7
claim.4 We review grants of summary judgment de novo.
Waterhouse v. District of Columbia, 298 F.3d 989, 991 (D.C.
Cir. 2002). Under Federal Rule of Civil Procedure 56(c),
summary judgment is appropriate only if “there is no genuine
issue as to any material fact and . . . the movant is entitled to
judgment as a matter of law.” FED. R. CIV. P. 56(c).
II
The United States Housing Act of 1937, as amended by the
Multifamily Assisted Housing Reform and Affordability Act of
1997 and subsequent legislation, gives a family that receives an
enhanced voucher the right to “elect to remain in the same
project in which the family was residing on the date” that the
project owner’s Section 8 contract expires. 42 U.S.C.
§ 1437f(t)(1)(B).5 BSA does not dispute that § 1437f(t) gives
tenants the right to remain in their units despite an opt-out; it
does not dispute that, under appropriate circumstances, an
4
The tenants’ complaint also alleged that BSA’s actions violated
the District of Columbia Consumer Protection Procedures Act, D.C.
Code § 28-3901 et seq. Second Am. Compl. ¶¶ 94-96. The district
court granted summary judgment to BSA on this claim, and the
tenants do not pursue it on appeal.
5
Additional statutory and regulatory provisions echo § 1437f(t)’s
right-to-remain language. See 42 U.S.C. § 1437f(c)(8)(A) (requiring
owners’ opt-out notices to “include a statement that . . . in the event of
termination [HUD] will provide tenant-based rental assistance to all
eligible residents, enabling them to choose the place they wish to rent,
which is likely to include the dwelling unit in which they currently
reside”); 24 C.F.R. § 402.8(c) (2006) (“In the case where a contract
for Section 8 rental assistance for a project is terminated or expires, an
assisted family may elect to remain in the project and, if eligible,
receive tenant-based Section 8 assistance under Section 8(t) of the
United States Housing Act of 1937.”).
8
opting-out project owner must permit its tenants to use enhanced
vouchers for rental payments; and it does not dispute that the
tenants may sue to enforce their § 1437f(t) rights in federal
court. “This is a single issue case,” BSA informs us, and that
issue is whether its units were being “offered for rental housing”
at the time it refused the tenants’ enhanced vouchers.
Appellant’s Br. 7; see Oral Arg. Recording at 10:48.
According to BSA, tenants have the right to remain in their
units, and landlords have a corresponding obligation to accept
the tenants’ enhanced vouchers, only as long as the units are
“offered for rental housing.” Moreover, whether a unit is
offered for rental housing is a question of the landlord’s
subjective intent. Because BSA seeks to exit the rental business
-- because it wants to offer its units for sale rather than for rent
-- BSA maintains that it is not “offer[ing]” its units for rental
housing.
The caveat upon which BSA rests its entire appeal -- that a
tenant’s right to remain is “conditioned on the unit[] being
‘offered for rental housing,’” Appellant’s Reply Br. 9 -- does not
appear in § 1437f(t). Nor does it appear anywhere else in the
U.S. Housing Act or in any other statute or regulation. Instead,
it appears in a sentence in a HUD policy guide that describes the
right-to-remain provision. See OFFICE OF MULTIFAMILY HOUS.,
U.S. DEP’T OF HOUS. & URBAN DEV., SECTION 8 RENEWAL
POLICY § 11-3.B (2001) [hereinafter Policy Guide]. The
sentence in question reads as follows: “Tenants who receive an
enhanced voucher have the right to remain in their units as long
as the units are offered for rental housing . . . .” Id. (emphasis
added).
The degree of deference that we owe to such a policy guide
is uncertain. See United States v. Mead Corp., 533 U.S. 218,
234-35 (2001); see also Federal Express Corp. v. Holowecki,
9
128 S. Ct. 1147, 1156 (2008); Public Citizen, Inc. v. U.S. Dep’t
of Health & Human Servs., 332 F.3d 654, 660 (D.C. Cir. 2003).
At the least, it is “eligible to claim respect according to its
persuasiveness.” Mead, 533 U.S. at 221 (citing Skidmore v.
Swift & Co., 323 U.S. 134 (1944)). But even if we were to
accord the policy guide the full measure of deference dictated by
Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984), under which we will uphold an agency’s
reasonable interpretation of ambiguous statutory language, it
would not help BSA’s case.
It does seem reasonable that the statutory right “to remain
in the same project in which the family was residing,” 42 U.S.C.
§ 1437f(t)(1)(B), applies only as long as the property itself
remains a rental property. The plaintiffs do not dispute this
point. They acknowledge that, if and when BSA lawfully
terminates their tenancies under D.C. law, “nothing in the
enhanced voucher rules will stand in its way” should BSA then
decide to refuse their vouchers and evict them. Appellees’ Br.
17. What the tenants dispute is BSA’s contention that their right
to remain in their homes -- and their concomitant right not to be
regarded as in default merely because they tendered vouchers
rather than cash -- depends on the subjective intent of the project
owner. In the tenants’ view, whether a unit remains a rental
property is determined by the law of the local jurisdiction. And
as of this date, the District of Columbia courts have determined
that the tenants have the right to continued occupancy.
The language BSA quotes from the policy guide -- that the
tenants have the right to remain “as long as the units are offered
for rental housing” -- is ambiguous. It could, as BSA asserts, be
read to condition a tenant’s right to remain on the landlord’s
intent rather than on the law of the jurisdiction. In context,
however, it is clear that this is not what HUD meant in using the
words “are offered.” Indeed, the very next sentence of the
10
policy guide reflects the view of the plaintiffs in this case:
“Owners may not terminate the tenancy of a tenant who
exercises this right to remain except for cause under Federal,
State or local law.” Policy Guide § 11-3.B. Elsewhere in the
same policy guide, HUD requires owners to certify “that they
will comply with the requirement to allow families receiving
enhanced vouchers who elect to remain to do so as long as the
property remains a rental property, unless the owner has just
cause for eviction,” id. § 1-6.I (emphasis added), and to “agree
not to terminate the tenancy of a tenant who exercises [his or
her] right to remain, except for cause under State or local law,”
id. Attachment 3A-1, at 6. A contemporaneous HUD “Policy
and Processing Guidance” concerning Section 8 opt-outs
contains similar language: “A family that receives an enhanced
voucher has the right to remain in the project as long as the units
are used for rental housing and are otherwise eligible for
housing choice voucher assistance . . . . The owner may not
terminate the tenancy of a family that exercises its right to
remain except for a serious or repeated lease violation or other
good cause.” OFFICE OF PUB. & INDIAN HOUS., U.S. DEP’T OF
HOUS. & URBAN DEV., NOTICE PIH 2001-41, § II.B, at 26 (2001)
(emphasis added).
HUD’s publications thus use the phrase “offered for rental
housing” as synonymous with “remains a rental property” and
“used for rental housing.” Moreover, in each case the phrases
are coupled with a prohibition on terminating the tenancies
without cause. There is no reference at all to the landlord’s
intent. Taken together, HUD’s statements make clear that it
considers a property to be “offered for rental housing” until it is
withdrawn from rental use in accordance with the law of the
local jurisdiction. Accord Jeanty, 2004 WL 1794496, at *4
(“HUD has interpreted 42 U.S.C. § 1437f to mean that families
who receive enhanced vouchers have the right to remain, and
that a landlord must accept their enhanced vouchers unless the
11
landlord evicts them through the court system.” (citing the HUD
Policy Guide)). This is an objective inquiry tied to the legal
status of the property, not to the owner’s intentions. In light of
the statute’s plain text, its anti-displacement purpose, and
HUD’s reasonable and persuasive interpretation, the district
court correctly determined that the tenants’ right under
§ 1437f(t) to remain in their homes, and to pay their rent with
enhanced vouchers, is secure unless and until their tenancies are
validly terminated under D.C. law.
BSA protests that this interpretation of the statute will
ensnare landlords in an “endless lease.” Appellant’s Br. 12.
That is simply not the case. Neither the U.S. Housing Act nor
HUD’s interpretation of that Act bars landlords from terminating
a tenancy on any ground permitted by D.C. law. One thing that
BSA may not do, however, is refuse to accept payment by
voucher and then contend that eviction is warranted for
nonpayment of rent.6
III
The District of Columbia Human Rights Act makes it
unlawful to refuse to “conduct any transaction in real property,”
to “require different terms for such transaction,” or to “include
in the terms or conditions of a transaction in real property” any
6
In addition to their U.S. Housing Act claim, the tenants’
complaint also alleged, and the district court held, that BSA’s actions
violated the National Housing Act, which instructs the Secretary of
HUD to assure that Section 8 “project owners not interfere with the
efforts of tenants to obtain rent subsidies or other public assistance.”
12 U.S.C. § 1715z-1b(b)(2). Because the parties did not brief this
issue on appeal and do not suggest that violation of this statute yields
a remedy any different from violation of 42 U.S.C. § 1437f(t)(1)(B),
we have no need to consider it.
12
condition or restriction “wholly or partially for a discriminatory
reason based on” any of a list of specified factors, including an
individual’s “source of income.” D.C. Code § 2-1402.21(a)(1),
(2). The Act expressly provides that monetary assistance “under
section 8 of the United States Housing Act . . . shall be
considered a source of income under this section.” Id. § 2-
1402.21(e). Aggrieved persons have a cause of action for
damages and other remedies in any court of competent
jurisdiction. Id. § 2-1403.16.
The tenants do not dispute that, during the time in which
they “remained in their units -- while their challenge to BSA’s
eviction claim was pending in the local D.C. courts -- they were
liable for monthly rent payments.” Appellees’ Reply Br. 1. Nor
does BSA dispute that, during this same period, it demanded that
the tenants pay rent from their own funds and not through the
Section 8 voucher program. BSA insists that this was not
“source of income” discrimination, however, because it was not
motivated by animus against vouchers or their users but rather
by “a desire to vacate the units so it could sell them.”
Appellant’s Reply Br. 8. The district court accepted BSA’s
argument that motive was dispositive. Applying what it
described as a “mixed motive” analysis, Feemster, 471 F. Supp.
2d at 100-01, the court concluded that “plaintiffs have not
established a prima facie case of discrimination under the
[Human Rights Act] because they have not shown that an
impermissible factor played a motivating or substantial role in
the action [BSA] has or has not taken; namely, that BSA refused
to accept the plaintiffs’ enhanced vouchers because their source
of income was the tenant-based Section 8 program,” id. at 102-
03.
The district court erred in resolving this case based on its
assessment of BSA’s motive. Although the District of Columbia
Court of Appeals has not yet “outlined the boundaries of source-
13
of-income discrimination under the Human Rights Act,”
Blodgett v. University Club, 930 A.2d 210, 220 (D.C. 2007), in
interpreting that Act it has “‘generally looked to cases from the
federal courts involving claims brought under [Title VII of] the
Civil Rights Act of 1964 for guidance,’” Nicola v. Washington
Times Corp., 947 A.2d 1164, 1171 (D.C. 2008) (quoting
Benefits Commc’n Corp. v. Klieforth, 642 A.2d 1299, 1301
(D.C. 1994)). And under Title VII, when a policy is
“discriminatory on its face,” the defendant’s motive is
irrelevant. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111,
121 (1985); see Automobile Workers v. Johnson Controls, Inc.,
499 U.S. 187, 199 (1991) (“[T]he absence of a malevolent
motive does not convert a facially discriminatory policy into a
neutral policy with a discriminatory effect. Whether an
employment practice involves disparate treatment through
explicit facial discrimination does not depend on why the
employer discriminates but rather on the explicit terms of the
discrimination.”); see also Los Angeles Dep’t of Water & Power
v. Manhart, 435 U.S. 702, 716-17 (1978) (holding that an
employer’s policy requiring female employees to make larger
pension fund contributions than male employees was
discriminatory on its face in violation of Title VII).
Since September 2004, BSA has refused to accept Section
8 voucher payments from its tenants, while demanding and
accepting rent from the tenants’ own funds. Just as it would
constitute a facial violation of Title VII to discriminate in
leasing on the basis of a renter’s race -- regardless of whether
the landlord professed a “benign” motive for so doing -- it is a
facial violation of the Human Rights Act to discriminate on the
basis of the renter’s source of income. Although BSA claims
that it only demanded cash because it had “a right to be paid for
the use of its property” while the tenants remained in their units,
Appellant’s Reply Br. 12, this does not explain why BSA agreed
to accept payment in cash and not in vouchers.
14
The only rationale BSA has suggested for its policy is that
it did not want to accept vouchers because the voucher program’s
requirements are burdensome, particularly the requirement that
the landlord execute an initial lease or ratification with the
tenant. See, e.g., Oral Arg. Recording at 5:12-25. Were we to
accept that excuse, however, we would render the Human Rights
Act’s definition of “source of income” nugatory. The Act
expressly defines “source of income” as encompassing the
Section 8 program; indeed, Section 8 vouchers are the source-of-
income provision’s paradigm case. See D.C. Code § 2-
1402.21(e). Permitting BSA to refuse to accept Section 8
vouchers on the ground that it does not wish to comply with
Section 8’s requirements would vitiate that definition and the
legal safeguard it was intended to provide.
Because the material facts are uncontested, and because they
make out a facial violation of the District of Columbia Human
Rights Act, we reverse the district court’s grant of summary
judgment in favor of BSA and remand for a determination of
appropriate relief.
IV
For the foregoing reasons, we conclude that the tenants are
entitled to judgment as a matter of law on both their United
States Housing Act claim and their District of Columbia Human
Rights Act claim. The district court’s grant of summary
judgment in their favor on the former is affirmed. Its grant of
summary judgment against the tenants on the latter is reversed,
and the case is remanded for further proceedings consistent with
this opinion.