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
(E.D. Pa. No. 2-15-cv-02617)
District Judge: Honorable Nitza I. Quiñones Alejandro
______
Argued January 18, 2017
Before: FISHER, ∗ HARDIMAN, and GREENAWAY, JR.,
Circuit Judges.
(Filed: October 18, 2017)
Michael Donahue, Esq.
Rachel Garland, Esq. [ARGUED]
George D. Gould, Esq.
Community Legal Services
1424 Chestnut Street
Philadelphia, PA 19102
Counsel for Appellants
Susanna Randazzo, Esq. [ARGUED]
Kolber & Randazzo
One South Broad Street, Suite 1610
Philadelphia, PA 19107
Counsel for Appellee
James R. Grow, Esq.
National Housing Law Project
703 Market Street, Suite 2000
San Francisco, CA 94103
Counsel for Amicus Curiae
∗
Honorable D. Michael Fisher, United States Circuit
Judge for the Third Circuit, assumed senior status on February
1, 2017.
2
______
OPINION OF THE COURT
______
FISHER, Circuit Judge.
In this appeal, we must decide whether the enhanced
voucher provision of the United States Housing Act of 1937,
42 U.S.C. § 1437f(t), requires property owners to continuously
renew enhanced-voucher tenancies. Theodore Hayes and
Aqeela Fogle (the Hayes family) are a low-income family
whose rent is subsidized by enhanced voucher assistance. Their
eligibility to receive enhanced vouchers is contingent upon
their continued tenancy in a unit currently owned by Philip E.
Harvey. Toward the end of their most recent lease term, Harvey
notified the Hayes family that he would not renew their lease.
The Hayes family refused to vacate the premises, arguing that
as enhanced-voucher tenants, they have an enforceable “right
to remain” in their unit as long as it is offered for rental
housing. The District Court disagreed and granted Harvey’s
motion for summary judgment. Because we conclude that the
enhanced voucher provision does not obligate property owners
to renew enhanced-voucher tenancies after the initial lease
term, we will affirm.
I. Background
A. Statutory Background
Since 1974, the federal government has provided rental
assistance to low-income families through section 8 of the
Housing Act, 42 U.S.C. § 1437f. Congress enacted section 8
3
with the express purpose of “aiding low-income families in
obtaining a decent place to live and of promoting economically
mixed housing.” § 1437f(a). “[A] key means to that end is the
creation of incentives for private owners to participate in the
section 8 program.” Barrientos v. 1801-1825 Morton LLC, 583
F.3d 1197, 1203 (9th Cir. 2009).
Section 8 assistance is funded by the U.S. Department
of Housing and Urban Development (HUD) and administered
by local public housing agencies. 24 C.F.R. § 982.1(b)(1).
Those agencies enter into Housing Assistance Payment (HAP)
contracts with participating property owners. HAP contracts
generally require that a lease between a property owner and
tenant cover at least one year. 42 U.S.C. § 1437f(d)(1)(B)(i),
(o)(7)(A). They also prohibit the property owner from
“terminat[ing] the tenancy [during the term of the lease] except
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.” § 1437f(d)(1)(B)(ii), (o)(7)(C).
Importantly, HAP contracts establish the maximum monthly
rent a property owner may charge for each dwelling unit. §
1437f(c)(1)(A). A tenant’s assistance is statutorily determined
based on his or her household income, the unit’s rent, and the
rent for similar units in the market area (known as the payment
standard). § 1437f(c)(3), (o)(2).
There are two distinct assistance programs: project-
based assistance and tenant-based assistance (or the Housing
Choice Voucher program). Project-based assistance is
provided directly to property owners—the subsidies are
property-specific. Tenant-based assistance is provided directly
to tenants—the subsidies are tenant-specific.
In the 1990s property owners became eligible to opt out
of project-based assistance programs. Congress and HUD
4
sought to minimize tenant displacement, while also continuing
to encourage property owner participation in section 8
programs. See Barrientos, 583 F.3d at 1203-05. So Congress
enacted a notice requirement that prohibits a property owner
from increasing rent or evicting tenants until he or she provides
one year of written notice to HUD and the residing tenants that
the HAP contract for project-based assistance will not be
renewed. See § 1437f(c)(8). And the notice must inform
tenants 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.” §
1437f(c)(8)(A).
But an ordinary voucher under tenant-based assistance
does not cover a tenant’s rent to the extent that it exceeds the
applicable payment standard. § 1437f(o)(2)(B). And following
a valid opt-out, property owners are no longer subject to
limitations on what they may charge for rent. So to enable
residents to “choose” to continue renting the “dwelling unit in
which they currently reside,” § 1437f(c)(8)(A), Congress also
enacted a new type of tenant-based assistance: enhanced
voucher assistance, § 1437f(t).
Although it is a type of tenant-based assistance,
enhanced voucher assistance has elements of both project-
based and tenant-based assistance. Like tenant-based
assistance, enhanced voucher assistance is tenant-specific and
participating tenants are required to contribute a statutorily
determined portion of their income. Compare § 1437f(o)(2)
(ordinary voucher assistance), with § 1437f(t)(1) (enhanced
voucher assistance). Like project-based assistance, enhanced
voucher assistance is property-specific. § 1437f(t)(1)(B).
Tenants are eligible to receive enhanced voucher assistance
during any period in which they remain in the property they
5
resided in on the date of the property owner’s opt-out from a
project-based program (the “eligibility event”). § 1437f(t)(2).
Should the tenant move or make the voucher available to
another family, his or her assistance converts to ordinary
tenant-based assistance. § 1473f(t)(1)(C).
The primary “enhancement” of the assistance is that an
enhanced voucher covers the difference between the tenant’s
contribution and the rent, even if the rent exceeds 110 percent
of the fair market rent for similar units in the area. See
§1437f(t)(1)(B). In other words, enhanced voucher assistance
is not limited by a payment standard.
B. Factual Background
In 1982, Florence Hayes and her family moved into
538B Pine Street, Philadelphia, Pennsylvania—a four-
bedroom unit in a duplex owned by Pine Street Associates.
Pine Street Associates entered into a HAP contract with the
Philadelphia Housing Authority (PHA), which provided rental
assistance under a project-based program for its tenants,
including the Hayes family.
On January 9, 2008, Pine Street Associates notified
HUD and the Hayes family that when its HAP contract expired
on January 17, 2009, it would not be renewed. Accordingly, on
January 17, 2009, the Hayes family’s assistance converted
from project-based to tenant-based. The Hayes family elected
to remain and chose to do so with enhanced voucher assistance.
Later that year, Pine Street Associates sold 538 Pine
Street free and clear of any impediments, encumbrances, liens,
or restrictions, to Philip E. Harvey. Harvey entered into a HAP
contract with the PHA and a related lease with the Hayes
family, agreeing to accept enhanced vouchers toward their
rental obligations. The HAP contract set the maximum rent for
the unit at $2,400 per month, exceeding the applicable payment
6
standard of $1,546 per month by $854. While under the
ordinary voucher provision the Hayes family would have to
cover the rent to the extent that it exceeded $1,546, because
they were eligible for enhanced voucher assistance, the PHA
covered the $854 difference. The lease had an initial
termination date of April 30, 2011, subject to automatic
renewal for another one-year term.
In February 2015, Florence Hayes passed away and
Theodore Hayes (Florence Hayes’s son) was processed as head
of household. Soon after, Harvey notified the PHA and
Theodore Hayes that he would not renew the HAP contract or
the Hayes family’s lease upon the natural expiration of the
lease term, citing Florence Hayes’s passing and his desire to
renovate and have his daughter live in the unit. And on May 1,
2015, when that lease term expired, Harvey sent a notice to
vacate.
C. Procedural History
The Hayes family responded to the notice to vacate by
filing a complaint in the District Court seeking declaratory
relief and an order enjoining Harvey from initiating eviction
proceedings. They argued in the District Court, and maintain
on appeal, that the Housing Act’s enhanced voucher provision,
42 U.S.C. § 1437f(t), creates an enforceable right to remain in
their unit. Alternatively, they argued that if Harvey may
terminate their tenancy, he may only do so for “cause,” and his
stated reasons do not constitute good cause. Harvey responded
that because he never participated in a project-based program,
he is bound only by the terms of the HAP contract and related
lease and not subject to any additional requirements imposed
by section 8. The parties filed cross motions for summary
judgment. The District Court granted summary judgment in
favor of Harvey, denied the Hayes family’s motion for
7
summary judgment, and denied their motion for a preliminary
injunction as moot. 186 F. Supp. 3d 427 (E.D. Pa. 2016). The
court concluded that while Harvey was subject to the terms of
section 8, the enhanced voucher provision did not provide the
Hayes family an “unfettered and perpetual right to remain,”
and so Harvey was not precluded from termination. Id. at 433–
34. The Hayes family appealed and, pending this appeal, the
District Court granted an injunction preventing Harvey from
evicting the Hayes family.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C.
§ 1331. During the pendency of this appeal, Theodore Hayes
moved out of the premises and the PHA processed Aqeela
Fogle (Theodore Hayes’s niece) as the head of household.
Under Article III of the Constitution, our “exercise of judicial
power depends upon the existence of a case or controversy.”
Rendell v. Rumsfeld, 484 F.3d 236, 240 (3d Cir. 2007) (quoting
Intn’l Bhd. of Boilermakers v. Kelly, 815 F.2d 912, 914 (3d Cir.
1987)). “Article III demands that an actual controversy persist
throughout all stages of litigation.” Hollingsworth v. Perry,
133 S. Ct. 2652, 2661 (2013) (internal quotation marks
omitted). When evaluating mootness we ask “whether changes
in circumstances that prevailed at the beginning of the
litigation have forestalled any occasion for meaningful relief.”
Rendell, 484 F.3d at 240 (internal quotation marks omitted).
Because Theodore Hayes no longer resides in the unit, he does
not have a personal stake in the outcome of this suit and we do
not have jurisdiction to hear his claims. However, since Fogle
still resides in the unit and, until she moves, is eligible for
enhanced voucher assistance, there remains an occasion for
meaningful relief. Thus, we are satisfied that the case remains
a justiciable controversy under Article III.
8
Our jurisdiction exists under 28 U.S.C. § 1291. Our
review of the District Court’s order granting summary
judgment is de novo. Massie v. U.S. Dept. of Hous. & Urban
Dev., 620 F.3d 340, 347 (3d Cir. 2010). We will affirm if,
viewing the evidence in the light most favorable to the
nonmoving party, “there is no genuine 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
The Hayes family argues that, as enhanced-voucher
tenants, they have a right to remain in unit 538B because they
have not moved since the unit was converted from project-
based to tenant-based assistance, they have not provided the
voucher to another family, the property continues to be offered
as rental housing, and Harvey does not have cause to terminate
their tenancy. Unless and until any of the above circumstances
change, they assert Harvey must continually renew their lease.
Harvey, on the other hand, argues that because he purchased
the property “free and clear,” he is not subject to section 8’s
terms and conditions and is under no obligation to renew their
lease. We conclude that the manner in which Harvey purchased
the property is not dispositive. Harvey’s rights and duties under
the section 8 program are set forth in the HAP contract and
9
related lease. 1 However, for the reasons that follow, we
conclude that federal law does not impose on property owners
a requirement of cause to terminate enhanced-voucher
tenancies through nonrenewal.
1
It is the existence of the HAP contract and related lease that
subject Harvey to section 8. See Powell v. Hous. Auth. of City
of Pittsburgh, 812 A.2d 1201, 1203 (Pa. 2002) (explaining that
if the “PHA approves the tenancy, the PHA and the owner enter
into a [HAP] contract . . . under which the PHA makes rental
payments to subsidize occupancy,” and, in turn, “the owner
and the now-Section 8 participant enter into a lease for the
subsidized unit”); see also U.S. ex rel. Richards v. R & T
Investments LLC, 29 F. Supp. 3d 553, 562 (W.D. Pa. 2014)
(stating that an owner “must enter into” a HAP contract “[t]o
receive assistance payments”). The dissent states “other courts
have held that the enhanced voucher statute can impose
requirements even on landlords who are not covered by a HAP
contract.” Dissenting Op. at 2 n.1 (citing Park Vill. Apartment
Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1161–
62 (9th Cir. 2011)). The section of Park Village cited for this
proposition, however, pertains to whether the District Court
erred in granting a mandatory injunction requiring an owner to
enter into a HAP contract, “despite opting out of Section 8.”
Park Vill., 636 F.3d at 1161. There, the Ninth Circuit held that
an owner was free to execute a HAP contract if he so chose; if
he did, he was entitled to “fair market rent via enhanced
vouchers,” but if not, he would forgo “significant rental
income,” while avoiding obligations imposed by HAP
contracts. Id. at 1161–62. Here, it is evident that the rights and
duties under section 8 are set forth in the HAP contract and
related lease.
10
This appeal presents an issue of statutory interpretation,
so we start with an examination of the statute’s plain language.
See Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir.
2001). If the statutory language is unambiguous, and the
“literal application of the statute” will not “produce a result
[either] demonstrably at odds with the intentions of its drafters”
or “so bizarre that Congress could not have intended it,” we
need not consider the statutory purpose or legislative history.
Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016) (internal
quotation marks omitted).
A. The Opt-out Provision
We begin with section 8 of the Housing Act, 42 U.S.C
§ 1437f, because the Hayes family initially received project-
based assistance to rent unit 538B from Pine Street Associates.
Since Pine Street Associates opted out of a project-based
program, we look to the Housing Act’s opt-out provision,
§ 1437f(c)(8). 2 In addition to imposing specific obligations on
HUD and the property owner, the opt-out provision clearly
contemplates the property owner having a right to terminate an
assisted tenancy at some point following a valid opt-out from
2
Although the opt-out provision governs tenants’ rights
before an enhanced voucher is provided and therefore does not
govern this case, given “the fundamental canon of statutory
construction that the words of a statute must be read in their
context and with a view to their place in the overall statutory
scheme,” Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427,
2441 (2014) (internal quotation marks omitted), we will walk
through all of the relevant statutory provisions. Our dissenting
colleague sidesteps this basic principle by homing in on the
statute’s “may elect to remain” language in isolation from its
place in the Housing Act’s overall scheme.
11
a project-based program.
First, subparagraph (A) makes clear that an opting out
property owner must provide notice of his or her intention not
to renew the HAP contract to HUD and to the affected tenants,
and that following termination of the HAP contract, HUD will
provide tenant-based assistance to the affected tenants. See
§ 1437f(c)(8)(A). Although the forthcoming tenant-based
assistance provides affected tenants with the financial means
to “choose the place they wish to rent, which is likely to include
the dwelling unit in which they currently reside,” nothing in
§ 1437f(c)(8)(A) obligates the property owner to renew
expired leases. Second, subparagraph (B) provides, “the owner
may not evict the tenants or increase the tenants’ rent payment
until such time as the owner has provided the notice [of opt-
out] and 1 year has elapsed.” § 1437f(c)(8)(B). But it is silent
on a property owner’s termination rights following that notice
period.
The parties do not dispute both that Pine Street
Associates satisfied its obligations under the opt-out provision
and that the Hayes family’s assistance converted to tenant-
based assistance. Because termination of a HAP contract for
project-based assistance is a qualifying “eligibility event” for
enhanced voucher assistance, see § 1437f(t)(2), we look next
to § 1437f(t), the enhanced voucher provision.
B. The Enhanced Voucher Provision
The enhanced voucher provision first states that unless
explicitly provided for in 42 U.S.C § 1437f(t)(1)(A)-(D),
“[e]nhanced voucher assistance . . . shall be voucher assistance
under subsection (o).” § 1437f(t)(1). The threshold question is
therefore whether § 1437f(t)(1) limits property owners’
nonrenewal rights. If it does not, we look to nonrenewal under
the ordinary voucher’s termination provision, §
12
1437f(o)(7)(C). We note at the outset that nothing in the
enhanced voucher provision explicitly speaks to termination
generally, much less to termination in the context of
nonrenewal.
It is undisputed that subparagraphs (A) and (D) do not
limit property owners’ nonrenewal rights. They provide that an
assisted family “shall pay as rent no less than the amount the
family was paying on the date of the eligibility event,” §
1437f(t)(1)(A), unless the family’s income “declines to a
significant extent,” § 1437f(t)(1)(D).
The parties dispute whether subparagraph (B) creates a
right to remain, and if it does, whether and to what extent that
right is enforceable against property owners. They also dispute
whether subparagraph (C) exhausts the ways that an assisted
family loses its eligibility to receive enhanced voucher
assistance.
Subparagraph (B) speaks to HUD’s obligation to
provide the assisted family with the financial means to remain
in the event that the family elects to do so. It states in relevant
part:
[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 subsection
(o) of this section for the unit, the
13
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) . . . .
§ 1437f(t)(1)(B). The language “the assisted family may elect
to remain” plainly does not limit property owners’ nonrenewal
rights. Our dissenting colleague, however, suggests that it
does, because “extending this right to a tenant necessarily
limits the rights of a landlord: if a statute guarantees tenants
hot water, it also limits a property owner’s right not to install
hot water plumbing.” Dissenting Op. at 4. This analogy is
inapt. The statute does not guarantee the tenant an
unconditional right to remain at the property. Rather, it
guarantees the tenant the financial support necessary to pay a
higher rent if the lease is renewed. Nowhere does the statute
require the landlord to renew the tenant’s lease indefinitely.
We recognize 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), that § 1437f(c)(8)(A) already
provides a right to remain during the year following a property
owner’s notice of opt-out from a project-based program, and
that § 524(d) of the Multifamily Assisted Housing Reform and
Affordability Act of 1997, Pub. L. No. 105-65, tit. V, subtit. A,
111 Stat. 1344, 1408–09 (codified as amended at 42 U.S.C. §
1437f note), already obligates HUD to provide enhanced
vouchers to eligible families. Still, for the reasons that follow,
we do not believe that declining to require property owners to
continuously renew enhanced-voucher tenancies renders the
“may elect” language superfluous or otherwise meaningless.
14
We need not read past § 1437f(t)(1)(B)’s plain language
to identify its role in the statutory scheme. Following the initial
notice year, § 1437f(c)(8)(A) obligates HUD to provide
assistance “enabling [the assisted family] to choose the place
they wish to rent, which is likely to include the dwelling unit
in which they currently reside.” § 1437f(c)(8)(A). But if the
post-opt-out rent for the “unit in which they currently reside”
exceeds the payment standard under § 1437f(o)(1)(B), how can
tenants be assured that HUD will meet its obligation under §
1437f(c)(8)(A)? Enter subparagraph (B) of the enhanced
voucher provision, § 1437f(t)(1)(B). It obligates HUD to
provide the assisted family with the financial means to remain
after the notice period even if the required assistance exceeds
the ordinary voucher’s payment standard. The rent becomes its
own unit-specific payment standard. Hence the term
“enhanced voucher.” In order for an assisted family to actually
benefit from that assistance, § 1437f(t)(1)(B) necessarily
requires that enhanced vouchers be credited toward their rental
obligations. This ensures that, so long as the family remains
eligible under § 1437f(t)(1)(C), they may exercise their
election to remain without being required to pay more than
their statutorily prescribed portion of the rent. It makes their
election to remain meaningful. 3
3
Before the enactment of the current statutory language,
§ 1437f(t)(1)(B) provided that a family was entitled to an
enhanced voucher “during any period that the assisted family
continues residing in the same project.” Pub. L. No. 106-74, tit.
V, § 538(a), 113 Stat. 1047, 1122 (1999). But in 2000 Congress
amended the provision to provide that “the assisted family may
elect to remain . . . and if, during any period the family makes
such an election and continues to so reside . . . .” Pub. L. No.
106-246, div. B, tit. II, § 2801, 114 Stat. 511, 569. The Hayes
15
We next turn to subparagraph (C), which states in
relevant part:
[S]ubparagraph (B) . . . shall not
apply and the payment standard for
the dwelling unit occupied by the
family shall be determined in
accordance with subsection (o)
[the ordinary voucher provision]
if—(i) the assisted family moves,
at any time, from such project; or
(ii) the voucher is made available
for use by any family other than
the original family on behalf of
whom the voucher was provided .
...
family and the dissent argue that the 2000 amendment is
evidence that Congress intended to clarify that property owners
have no say in the assisted family’s election to remain. 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. See
Park Vill., 636 F.3d at 1156 (finding that 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”). 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.
16
§ 1437f(t)(1)(C). Essentially, if the assisted family moves or
gives the voucher to another family, they lose eligibility to
receive enhanced vouchers and their assistance converts to
ordinary tenant-based assistance. The Hayes family argues that
because § 1437f(t)(1)(C) does not include the loss of eligibility
at the behest of the property owner, and Harvey’s nonrenewal
would trigger that loss by forcing them to move, he is obligated
to continuously renew their lease. We disagree.
First, subparagraph (C) relates back to subparagraph
(B), neither of which speaks to nonrenewal. Whereas
subparagraph (B) affords an assisted family the right to receive
“enhanced” financial assistance to be credited toward their
rental obligations, subparagraph (C) relieves HUD of the
financial obligation to provide such assistance if the family
moves or provides the enhanced voucher to another family.
The substance of these subparagraphs is primarily financial.
Second, to hold that § 1437f(t)(1)(C) is exhaustive of
the specific ways in which an assisted family may lose
eligibility for enhanced voucher assistance would subject
property owners to a perpetual lease. This would be a
significant departure from the ordinary voucher provision
which does not, in any way, limit property owners’ nonrenewal
17
rights. 4 See § 1437f(o)(7)(C). It would also make opt-out from
project-based programs, under which property owners do have
termination rights, see § 1437f(d)(1)(B), far less attractive.
Such a result would likely discourage property owner
participation in the first place, in turn frustrating realization of
4
Our dissenting colleague suggests that the enhanced
voucher provision is “by its very title, meant to be a departure
from the ordinary voucher provision.” Dissenting Op. at 8–9.
On this point, we agree. But enhanced vouchers “depart[] from
the ordinary voucher provision” in limited ways, none of which
relate to termination. Furthermore, the dissent suggests that
despite the “ostensibly shared purpose” between the enhanced
and ordinary voucher statutes, there is “no reason to believe
that . . . Congress intended these two statutes to be read as if
they were one.” Id. Again, we agree on this point—the majority
does not read the provisions “as if they were one.” It is
undisputed, however, that these are provisions of the same
statute, and there is no reason to believe that section 8’s clear
purpose does not extend to all of its provisions.
18
section 8’s explicit purpose. 5 Had Congress intended to require
property owners to continually renew enhanced-voucher
tenancies, we are confident it would have said so clearly. See
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001)
(explaining that Congress does not “hide elephants in
mouseholes” by “alter[ing] the fundamental details of a
regulatory scheme in vague terms or ancillary provisions”).
Our dissenting colleague believes that our interpretation
of the enhanced voucher provision puts us at odds with other
courts that have interpreted the statutory “right to remain.” But
he fails to adequately consider that the Ninth and D.C. Circuits
concluded not that enhanced-voucher recipients have a right to
remain both during and upon the natural expiration of their
lease term, but specifically that a landlord who refuses to
5
The dissent suggests, grounding its argument in what
Congress “might . . . have perceived” or what it “might well
have weighed,” that because the “set of landlords affected [by
the enhanced voucher provision] is small and, more
importantly, relatively fixed . . . there is less need to encourage
landlord participation” in the program. Dissenting Op. at 10–
11. We disagree. We find no reason that Congress would
encourage property owner participation in project-based
programs to any lesser extent than it encourages participation
in the voucher programs. Although by the time owners are
actually affected by the enhanced voucher provision their
numbers are “relatively fixed,” an owner can today decide to
participate in a project-based program, and later, to opt out.
Thus, the number of prospective participants in project-based
programs is not necessarily fixed. Encouraging participation in
both assistance programs, in part by avoiding tying the hands
of property owners upon the expiration of rental agreements, is
required to realize section 8’s explicit purpose.
19
accept enhanced vouchers as part of a tenant’s rental payment
cannot then evict those tenants for nonpayment. See Park Vill.,
636 F.3d at 1156 (“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.”); Feemster v. BSA L.P., 548 F.3d 1063,
1069 (D.C. Cir. 2008) (“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 [the landlord] may not do, however, is refuse to
accept payment by voucher and then contend that eviction is
warranted for nonpayment of rent.”). Our dissenting colleague
further suggests that our interpretation of Park Village—where
a midterm eviction for nonpayment was at issue—is flawed
because we “conflate[] one of the Ninth Circuit’s holdings with
the other.” Dissenting Op. at 21. The majority does not,
however, “conflate” Park Village’s holdings. Rather, it agrees
with the Ninth Circuit’s interpretation regarding the “may elect
to remain” language insofar as it lends meaning to the 2000
amendment—that tenants are only required to pay their
“statutorily prescribed portion of the rent,” and that owners
cannot “refuse to accept payment by means of an enhanced
voucher, and evict an ‘assisted family’ for nonpayment of
rent.” Park Vill., 636 F.3d at 1156.
Here we are faced not with an eviction for nonpayment,
as in Park Village, but with a nonrenewal of a naturally expired
rental agreement. This is a meaningful distinction. It makes
sense that a property owner who reaps the benefit of opting out
20
by increasing rent to market rate cannot then evict an assisted
family who pays only their statutorily required portion of the
rent—the family’s financial ability to remain is the core of the
enhanced voucher provision. But upon expiration of a HAP
contract, the value and substance of an enhanced voucher is
informed primarily by the family’s rental agreement with the
property owner. And nothing in the enhanced voucher
provision, or elsewhere in the statute, explicitly or implicitly
requires property owners to renew such agreements. 6
We conclude that § 1437f(t)(1)(B) obligates HUD to
provide “enhanced” financial assistance to be credited toward
an assisted family’s rental obligations during any period in
which the family remains eligible under § 1437f(t)(1)(C), and
that § 1437f(t)(1)(C) speaks only to the ways in which the
family’s conduct may relieve HUD of that financial obligation.
Section 1437f(t) does not limit property owners’ nonrenewal
rights.
C. The Termination Provision
6
In fact, the Ninth Circuit found that requiring property
owners to enter into HAP contracts could “render essentially
worthless an owner’s right to lawfully opt-out of its
involvement in the Section 8 program” and “frustrate
Congress’s clear intention in the 1996 amendments to the Act
to end so-called ‘endless leases,’ under which owners could not
refuse to renew the leases of Section 8 tenants at the conclusion
of a lease term.” Park Vill., 636 F.3d at 1161–62. The same
reasoning applies here. Requiring property owners to
continuously renew rental agreements would render their opt-
out “essentially worthless.”
21
Given § 1437f(t)’s silence as to property owners’
nonrenewal rights, we look to § 1437f(o)’s termination
provision, which states:
[D]uring the term of the lease, the
owner shall not terminate the
tenancy except 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 . . . .
§ 1437f(o)(7)(C) (emphasis added). Under the plain language
of § 1437f(o), Harvey’s termination rights were limited only
during the term of the Hayes family’s lease. 7 Harvey did not
seek a midterm eviction. He sought to terminate the Hayes
family’s tenancy upon the natural expiration of their lease
term. Therefore, in order for us to find that the enhanced
voucher provision precludes Harvey’s termination through
nonrenewal, we would need to apply the termination provision
7
Before it was repealed in 1996, Congress did burden
property owners upon the natural expiration of an ordinary
voucher lease term in what was known as the “endless lease”
provision. Pub. L. No. 104-134, tit. II, § 203(c)(2), 110 Stat.
1321, 1321–281 (1996). It stated “the owner shall not terminate
the tenancy except 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.” 42 U.S.C. §
1437f(d)(1)(B)(ii) (1994) (repealed 1996).
22
in a way that departs from its application to the ordinary
voucher provision. 8
Through policy guidance, HUD has purported to extend
§ 1437f(o)(7)(C)’s midterm limitations to nonrenewals of
enhanced-voucher tenancies:
Tenants who receive an enhanced
voucher have the right to remain in
their units as long as the units are
offered as rental housing. The
tenant must have been issued an
enhanced voucher sufficient to pay
the rent charged for the unit,
provided that the rent is
reasonable. 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 as long
as the project is offered as rental
housing, absent good cause to
terminate tenancy under Federal,
State or local law and provided the
[public housing agency] continues
to find the rent reasonable, Owners
8
The dissent concedes that enhanced-voucher tenants
may be evicted for cause but offers no textual justification for
imposing limits on nonrenewals of enhanced-voucher
tenancies in the face of § 1437f(o)(7)(C)’s silence on the issue.
See Dissenting Op. at 23 n.14.
23
must continually renew the lease
of an enhanced voucher family.
Section 8 Renewal Policy Guidebook § 11-3(B), at pp. 3–4. 9
The Hayes family and the dissent assert that we should defer
to HUD’s interpretation of the enhanced voucher provision.
But as an agency interpretation contained in a guidance
document it lacks the force of law and is not entitled to
Chevron deference. See Christensen v. Harris County, 529
U.S. 576, 587 (2000). At most, HUD’s interpretation is
“entitled to respect” to the extent that it has “the power to
persuade.” Id. (citing Skidmore v. Swift & Co., 323 U.S. 134,
140 (1944)).
We do not dispute that HUD has “relative expertise” in
administering the statutory scheme or that HUD has long held
its position on nonrenewal of enhanced-voucher tenancies. See
Dissenting Op. at 17. But expertise and consistency do not
9
Currently pending is a proposed rule which seeks to
“codify [HUD’s] existing policy concerning . . . the right of
enhanced voucher holders to remain in their units.” Tenant-
Based Assistance: Enhanced Vouchers, 81 Fed. Reg. 74,372
(proposed October 26, 2016) (to be codified at 24 C.F.R. pt.
982). The proposed rule would amend 24 C.F.R. § 982.309 to
add a paragraph acknowledging enhanced-voucher tenants’
right to remain absent “repeated lease violation or other good
cause.” Id. at 74,375. It goes without saying that this proposed
rule lacks the force of law, and so has no impact on the present
case.
24
alone require deference. 10 See Hagans v. Comm’r of Soc. Sec.,
694 F.3d 287, 304–05 (3d Cir. 2012). We also consider “the
thoroughness evident in [the agency’s] consideration, the
validity of its reasoning . . . and all those factors that give it the
power to persuade.” Young v. United Parcel Service, Inc., 135
S. Ct. 1338, 1352 (2015). Here, the “brevity” of HUD’s
statements and “undeveloped reasoning counsel toward a
lower level of deference.” Hagans, 694 F.3d at 305. For the
reasons discussed above, HUD’s statement that “owners must
continually renew the lease of an enhanced voucher tenancy,”
contained in one paragraph of HUD’s nearly 200-page Section
8 Renewal Guidebook, is not supported by the statute’s clear
text. HUD’s iterations of its nonrenewal policy do not show
otherwise.
10
Our dissenting colleague suggests that Hagans
instructs “a relatively high level of deference is warranted,”
because the “same factors are at play here.” Dissenting Op. at
18–19. We disagree. The Hagans Court concluded that a high
level of deference was warranted in that instance because, inter
alia, it determined that: the Social Security Administration is
an agency with “exceptionally broad authority to manage a
complex, nationwide administrative system,” that
administering the Social Security Act is the SSA’s “central
purpose,” and that the “SSA has developed a massive body of
expertise [over] 56 years” which it has “consistently applied .
. . during the past 20 years.” Hagans, 694 F.3d at 305.
Importantly, the Hagans Court also found that “the SSA’s
interpretation of [the statute at issue was] sufficiently
persuasive to defer to it.” Id. While these factors in Hagan—
considered together—counseled for deference, such factors are
not present here.
25
We further acknowledge that, in the framework of non-
binding Skidmore deference that the dissent references, an
agency may be entitled to some degree of deference given its
“specialized experience,” and given the “value of uniformity.”
United States v. Mead Corp., 533 U.S. 218, 234 (2001)
(quoting Skidmore, 323 U.S. at 140–41)). Our dissenting
colleague suggests that our holding imposes a particularly high
“risk of disuniformity” because, in Park Village, the Ninth
Circuit supposedly “ruled in favor of HUD’s interpretation.”
Dissenting Op. at 17. The majority does not, however, create
any such “disuniformity.” Park Village’s holding was limited
to the question before it—involving a midterm eviction for
nonpayment—and the majority agrees with the disposition of
that limited question. See Park Village, 636 F.3d at
1153 (“Plaintiffs have a statutory right to remain in the
complex, and are, accordingly, entitled to an injunction barring
Defendants from evicting them solely because they are paying
only their statutorily determined portion of each month's rental
payment.”). Cabining the “right to remain” in this instance
does not create “disuniformity.”
Given the enhanced voucher provision’s clear directive
that, other than the four enhanced voucher distinctions,
assistance “shall be voucher assistance under subsection (o) of
this section,” 42 U.S.C. § 1437f(t)(1), its silence on
nonrenewal, and the Hayes family’s failure to point us to any
other part of the statute supporting a rejection of §
1437f(o)(7)(C)’s clear text as applied to the enhanced voucher
provision, we find HUD’s guidance unpersuasive insofar as it
interprets the enhanced voucher provision as extending the
requirement of cause to nonrenewals.
We do not believe our holding today will render the
protections of the enhanced voucher provision meaningless or
produce a result at odds with the drafters’ intentions. The right
26
conferred by the enhanced voucher provision is the right to
receive and use enhanced vouchers to satisfy an assisted
family’s rental obligations. As HUD has advised property
owners, enhanced voucher assistance aims “to mitigate the
impact of the conversion action on the family’s rent.”
Memorandum for Multifamily Project Owners from Benjamin
T. Metcalf, Deputy Assistant Sec’y for Multifamily Housing
Programs (June 5, 2014) (emphasis added),
https://portal.hud.gov/hudportal/documents/huddoc?id=Right
_Remain.pdf. Nothing in the statute’s language, or otherwise,
indicates that it aims to provide assisted families with the right
to a perpetual tenancy terminable only for cause. 11
Additionally, “[t]he HUD regulation merely creates a floor of
protection, which local laws may enhance.” Barrientos, 583
F.3d at 1207. See id. at 1211 (“Congress and HUD never
explicitly rejected the application of more protective local
standards to assisted tenants, and in certain cases, expressly
allowed for it.” (citing 42 U.S.C. § 1437f(o)(7)(D)(vi) and 24
C.F.R. § 982.53(d)). Our holding simply defines that floor in
the context of nonrenewals.
11
Contrary to the dissent’s suggestions, the idea of a
perpetual lease is not a “strawman.” See Dissenting Op. at 23.
Because the statute does not by its terms require cause for
nonrenewal, any limitations on nonrenewal would necessarily
come from the HAP contract or related lease. After those
documents have expired, extending any of their limitations
would in effect be subjecting the property owners to a perpetual
tenancy. The statute does not, however, provide for a perpetual
tenancy. In referring to the question of a perpetual tenancy as
a “strawman,” the dissent fails to consider the actual
implications of its interpretation of the enhanced voucher
provision.
27
Because the enhanced voucher provision does not
compel a property owner to renew an enhanced-voucher
tenancy after the natural expiration of its lease term, we need
not determine whether Harvey had cause to terminate under the
statute. Harvey is not barred from initiating eviction
proceedings in accordance with state and local law.
IV. Conclusion
As the Supreme Court recently observed, “reasonable
people can disagree with how Congress balanced the various
social costs and benefits” in a certain area—here, affordable
housing for low-income families. Henson v. Santander
Consumer USA, Inc., 137 S. Ct. 1718, 1725 (2017). “Constant
competition between constable and quarry, regulator and
regulated, can come as no surprise in our changing world. But
neither should the proper role of the judiciary in that process—
to apply, not amend, the work of the People’s representatives.”
Id. at 1726.
The judgment of the District Court will be affirmed.
28
GREENAWAY, JR., dissenting.
The Hayes family has lived at 538B Pine Street for 35
years, and a federal statute provides that they “may elect to
remain” in their home. 42 U.S.C. § 1437f(t)(B). They elected
to remain in their home. They were model tenants, according
to their landlord. And yet, they now will find themselves
evicted. The majority has struck their Congressionally
provided right from the statute, leaving nothing in its place.
According to the majority, a family “may elect to
remain” in their home, but their landlord need not heed that
election: he can still evict them without cause. It concludes
that tenants’ rights are empty words unless a statute is also
expressly phrased in terms of a property owner’s obligation.
This renders tenants’ statutory entitlement to choose to remain
the most evanescent of rights: good only until the moment it is
required. This is not what Congress intended and it is not what
Congress enacted.
Indeed, the majority’s interpretation is at odds not only
with the statutory text, but with the interpretations of the other
two branches of government as well. HUD—the expert agency
tasked with administering this statute—has found a right to
remain. Every court to interpret this statute, until this
litigation, has found a right to remain. There is complete
consensus on what this statute means: landlords may not evict
enhanced voucher-holders without cause. The majority all but
ignores these cases and administrative interpretations, even as
it instead battles the strawman of perpetual tenancies that can
never be ended—an interpretation that no one advances: not
the Hayes family, not HUD, and not other courts. As a result,
this Court is left standing alone. I must dissent.
1
* * *
I begin with the text of the statute. 1 “[E]very exercise
of statutory interpretation begins with plain language of the
statute itself.” Idahoan Fresh v. Advantage Produce, Inc., 157
F.3d 197, 202 (3d Cir. 1998).
The Hayes family claims their rights under paragraph
(B) of the enhanced voucher statute. 42 U.S.C. § 1437f(t)(B). 2
1
Although the majority indicates that it is the “HAP
contract and related lease” that “subject” Harvey to the
requirements of Section 8, it provides no support for this
statement. Maj. Op. at 10 n.1. Nothing in Section 8 conditions
its effect—the power of a federal statute—on common law
devices like contracts and leases, although the statute does use
such devices to carry out its scheme. Put differently, Congress
can legislate without authorization from a private contract.
Indeed, other courts have held that the enhanced voucher
statute can impose requirements even on landlords who are not
covered by a HAP contract. See Park Vill. Apartment Tenants
Ass’n v. Mortimer Howard Tr., 636 F.3d 1150, 1161-62 (9th
Cir. 2011). Particularly given that the contract and lease terms
are not implicated in this litigation, it is the statute, and only
the statute, which is the source of the obligations at issue. The
majority correctly proceeds with a statutory analysis, but
fundamentally misstates the source of the statute’s power:
Article I of the Constitution, not private agreements.
2
The majority begins its analysis with a different
provision, that governing the procedure for opting out of
project-based Section 8 assistance. 42 U.S.C. § 1437f(c)(8). I
agree that this provision does not govern the case; indeed, no
one argues that it does. Maj. Op. at 12 (“The parties do not
2
On its face, this paragraph contains two separate provisions.
First, the enhanced voucher gives families holding enhanced
vouchers the choice to remain in their homes. Specifically, it
provides that “the assisted family may elect to remain in the
dispute both that Pine Street Associates satisfied its obligations
under the opt-out provision and that the Hayes family’s
assistance converted to tenant-based assistance.”). The opt-out
provision governs tenants’ rights before an enhanced voucher
is provided; the enhanced voucher statute governs their rights
afterward. Only the latter is at issue here. As the majority
notes, the former owners chose to opt out of project-based
assistance in 2008, satisfied their obligations during the one-
year opt-out notice period, and the Hayes family’s assistance
converted to enhanced vouchers in 2009. Maj. Op. at 6. The
opt-out provision details obligations that were, by all accounts,
long-satisfied.
Contrary to the majority’s accusation, I do not ignore
the opt-out provision. We do not even disagree about the
provision’s importance. Section 1437f(c)(8) triggers the
provision of an enhanced voucher, which we all agree has
already occurred. It does not govern what protections an
enhanced voucher provides once the opt-out is complete—
again, an issue on which we agree. Maj. Op. at 12 (“it is silent
on a property owner’s termination rights following that notice
period”). Since the majority never argues that § 1437f(c)(8)
changes the interpretation of the enhanced voucher statute,
rather than triggering its applicability, nothing is being read out
of context. I merely proceed directly to the area of our
disagreement.
3
same project in which the family was residing on the date of
the eligibility event for the project . . . .” Id.
Then, it establishes a higher payment standard, as
compared to ordinary vouchers, if they exercise that right. Id.
(“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
. . . , 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 . . .”). The payment
standard is not at issue in this litigation.
The majority summarily concludes that the first
provision, which provides that “the assisted family may elect
to remain” in their home, does not create a right to remain
because it “does not limit property owners’ nonrenewal rights.”
Maj. Op. at 13. But while the statute does not expressly refer
to property owners’ rights in those terms, it does not need to.
Indeed, the majority seems to write as if there were a clear-
statement rule for statutes affecting property owners. There is
not. Congress need not legislate from the landlord’s
perspective.
The choice to remain is the choice not to leave, or not
to be forced to leave; remaining is the opposite of having one’s
tenancy terminated. Or, put differently, extending this right to
a tenant necessarily limits the rights of a landlord: if a statute
guarantees tenants hot water, it also limits a property owner’s
right not to install hot water plumbing.
The structure of the paragraph underscores why the
majority’s empty reading of the “may elect to remain”
language cannot be right. We must give effect to each piece of
4
the statute, “so that no part will be inoperative or superfluous,
void or insignificant.” Corley v. United States, 556 U.S. 303,
314 (2009). There are two independent provisions in
paragraph (B) of the enhanced voucher statute—the right to
remain and the payment standard—and the majority gives
effect to only one.
The majority insists that this paragraph in fact provides
enhanced voucher-holders with only one right, that to an
increased payment standard (and its corollary, the right to
actually use that increased payment). Maj. Op. at 14-15. But
this is at odds with the basic structure and grammar of the
paragraph. The language providing that voucher holders “may
elect to remain,” grants tenants a separate right on top of the
increased payment standard. The “may elect to remain” clause
comes first and stands independently. 42 U.S.C. § 1437f(t)(B)
(“[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 . . . .”). It is not conditioned on what
follows. The payment standard is then separated by the words
“and if.” As such, the rest of the paragraph—the payment
standard—is separate, subordinate, and conditional.
These textual details reflect the history of the statute and
not mere grammatical jousting. The enhanced voucher statute
was originally enacted in 1999. At that time, it did not provide
that tenants may elect to remain in their units. In that original
iteration, it stated only that “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, . . .” the higher rental assistance payments should be
provided. Pub. L. No. 106-74, § 538, 113 Stat. 1047, 1122
(1999). Thus, in 1999, this paragraph gave enhanced voucher-
5
holders one right only: that to an increased payment. This
original language made a tenant’s continued residency in a
project a condition for receipt of the enhanced voucher’s
additional rental assistance, but not a right in and of itself.
But in 2000, Congress amended the enhanced voucher
statute and added the “may elect to remain” language. Military
Construction Appropriations Act, 2001, Pub. L. 106-246
§ 2801, 114 Stat. 511 (2000). Congress changed the enhanced
voucher, adding new language and providing tenants new
protections. See also Park Vill. Apartment Tenants Ass’n v.
Mortimer Howard Tr., 636 F.3d 1150, 1154 (9th Cir. 2011)
(“[I]n 2000, Congress amended the enhanced voucher
provision to make it even more protective of tenants.”)
(emphasis added). This legislative action must be given
meaning, effect, and force. “When 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).
An interpretation of the enhanced voucher statute that treats the
“may elect to remain” language as mere scene-setting for the
operative discussion of rent calculations renders the 2000
version of the statute indistinguishable from the 1999 version
of the statute. Congress intended that its amendment change
the meaning of the statute. Our interpretation must effectuate
that enactment. By providing that tenants “may elect to
remain” in their homes, Congress must have given them some
right that they did not enjoy previously: specifically, a right to
remain.
It is a truism that tenants may choose to stay in their
apartment, if their landlord lets them. That describes not only
the 1999 version of the enhanced statute, but the baseline
condition of landlord/tenant relations: tenants may petition to
renew their leases and hope that their landlords agree. It is
6
similarly a baseline principle that, absent some reason
enumerated in the lease or authorized by law, tenants may not
be evicted mid-lease term. The scope of the right to remain
embodied in the 2000 amendment must do more than codify
these basic precepts. Congress did not amend its own statute
just to reiterate, in new language, what was already true. Such
a right to remain would be no right at all.
Yet this is exactly how the majority defines the right to
remain. Under the majority’s interpretation, the “may elect to
remain” language only applies during the lease term, and a
tenant’s ability to stay in their home evaporates the second it is
actually needed, i.e., whenever their lease ends and their
landlord wants them out. In effect, the majority’s
interpretation of the enhanced voucher statute is no different
than a court taking a black marker to the opening lines of the
statute and to Congress’s 2000 amendment. It operates as a
total excision of statutory text and meaning. Such an
interpretation usurps the very role of Congress that the majority
claims to be upholding. 3
3
The majority insists that courts must uphold the
political branches’ decision about how to balance social costs
and benefits. Maj. Op. at 26 (quoting Henson v. Santander
Consumer USA, Inc., 137 S. Ct. 1718, 1725 (2017)). Yet even
as it denies effect to a Congressional enactment and entirely
ignores the wisdom of the Executive Branch (HUD’s
guidance), it strews its opinion with references to the policy
imperative of encouraging landlord participation in Section 8
(a red herring in the narrower context of enhanced vouchers),
Maj. Op. at 4, 16-17, solemnly intones about property owners’
rights, and the “burden[s]” placed upon them, Maj. Op. at 21
n.7, and insists that, the Hayes family’s imminent eviction
7
The majority pleads that it has not stripped all meaning
from the words “may elect to remain.” It opines that those
words “make clear that, following a valid opt-out, HUD could
not force an assisted family to leave the unit.” Maj. Op. at 15
n.3. But this interpretation still fails to solve the problem: it
fails to give the 2000 amendment independent meaning. As
the majority acknowledges, the 1999 version of the statute
already required HUD to provide enhanced vouchers to
eligible families. Maj. Op. at 14; Multifamily Assisted
Housing Reform and Affordability Act of 1997 § 524(d), Pub.
L. No. 106-74, § 531, 113 Stat. 1047, 1113 (1999) (codified as
amended at 42 U.S.C. § 1437f note) (“[T]he Secretary shall
make enhanced voucher assistance under section 8(t) of the
United States Housing Act of 1937 (42 U.S.C. 1437f(t))
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.”). This obligation necessarily prohibits
HUD from forcing eligible families out of their homes. After
all, the requirement that HUD issue the vouchers is
meaningless if HUD can remove tenants itself and eliminate
the need for the vouchers in the first place. Thus, the majority’s
interpretation renders the 2000 amendment superfluous.
Moreover, the majority does not even attempt to ground
its interpretation of a HUD-only duty in the text of the statute.
The enhanced voucher statute, as amended, provides 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 . . . .” 42 U.S.C. § 1437f(t)(B) (emphasis
notwithstanding, its interpretation will adequately protect
tenants. Maj. Op. at 24-25. I fear that my colleagues may be
treading into the deep waters of policymaking.
8
added). HUD is not mentioned in this clause, nor even alluded
to. The statute does not read “the Secretary shall.” Rather, as
a purely textual matter, this is a right granted to the voucher-
holding family. Cf. Gonzaga Univ. v. Doe, 536 U.S. 273
(2002) (looking to whether a statute’s text is “phrased in terms
of the persons benefited”). The tenants are given the right to
remain, and the statute places no limit on whom that right may
be exercised against.
If this text can be read to bar HUD from forcing out an
assisted family, it must also bar a landlord from forcing out an
assisted family, for the family’s right is not limited to exercise
against one or the other party. The majority’s insistence that
the right to remain can be exercised only against HUD is an
entirely extra-textual invention—one equally without support
from judicial opinions or administrative materials.
The majority also suggests that a right to remain “would
be a significant departure from the ordinary voucher
provision,” which requires cause to terminate a tenancy only
during a lease term, not upon renewal. Maj. Op. at 16. But an
enhanced voucher is just that: enhanced. The statute is, by its
very title, meant to be a departure from the ordinary voucher
provision. An interpretation that assumes enhanced vouchers
must offer the same protections as ordinary vouchers badly
misunderstands the statutory scheme.
This attempted homogenization of the enhanced and
ordinary voucher statutes continues by reference to the two
programs’ ostensibly shared purpose. But there is no reason to
believe that on this particular issue of when a landlord must
renew a voucher-holder’s lease, Congress intended the two
statutes to be read as if they were one. The policy contexts in
which the ordinary voucher and enhanced voucher provisions
9
operate are entirely different, as other courts have explained.
Estevez v. Cosmopolitan Assocs. LLC, No. 05CR–4318, 2005
WL 3164146 (E.D.N.Y. Nov. 28, 2005) (contrasting purposes
of the two programs). Until 1996, landlords were obligated to
renew the leases of ordinary voucher-holders, unless they had
good cause to evict. 4 This “endless lease” provision was
repealed to encourage participation by landlords in the voucher
program, which operates across the entire housing
marketplace. The landlord-friendlier terms were an effort to
create a larger pool of voucher-accepting landlords. The
majority repeatedly assumes that the same Congressional
purpose applies to enhanced vouchers. Maj. Op. at 4, 16-17 &
n.4.
But enhanced vouchers are available only to tenants
living in buildings that formerly received project-based section
8 assistance. The set of landlords affected is small and, more
importantly, relatively fixed, as compared with the full
4
Textually, this “endless lease” provision is irrelevant.
It was repealed for ordinary vouchers in 1996. The enhanced
voucher was created in 1999, and the right to remain in 2000.
The “endless lease” provision came and went before enhanced
vouchers ever existed. Its repeal does not directly affect the
enhanced voucher statute. Nor can it offer many clues as to the
intent of the 2000 Congress. If “the views of a subsequent
Congress form a hazardous basis for inferring the intent of an
earlier one,” Consumer Prod. Safety Comm’n v. GTE Sylvania,
Inc., 447 U.S. 102, 117 (1980) (quoting United States v. Price,
361 U.S. 304, 313 (1960)), then the views of an earlier
Congress have less value still for discerning the intent behind
a superseding statute.
10
marketplace of all rental property owners. 5 Most landlords
cannot accept enhanced vouchers, and decisions about whether
to apply for project-based assistance (and then potentially opt
out) are measured in decades rather than months. Congress
might therefore have perceived less need to encourage landlord
participation: it could have concluded that most property
owners affected were already in the program. Meanwhile,
ordinary voucher holders move through the private housing
market like ordinary consumers. But because enhanced
voucher holders all previously benefited from project-based
subsidies, linked to particular buildings, Congress might have
considered them more deserving of a right to stay in those
particular buildings (just as the Hayes family has lived in their
home for 35 years, since it was first built). 6 Thus, Congress
5
To quantify this, as of 2014, there were fewer than
17,000 properties receiving project-based Section 8 assistance.
Around one-fifth of project-based Section 8 properties had left
the program in the previous ten years. U.S. Dep’t of Hous. and
Urban Dev., Off. of Policy Dev. and Research, Opting In,
Opting Out a Decade Later (2015).
6
The majority also claims that tenants in buildings
receiving project-based assistance can be evicted at the end of
their lease, without cause. Maj. Op. at 17. This is simply not
so. The statutory provision the majority cites refers only to a
tenant’s protections “during the term of the lease.” 24 U.S.C.
§ 1437f(d)(1)(B). Through binding regulations, HUD has
addressed the relevant time period: what happens after a lease
term expires. Then, an owner cannot “refuse to renew a lease
without good cause.” The Housing and Economic Recovery
Act of 2008 (HERA): Changes to the Section 8 Tenant-Based
Voucher and Section 8 Project-Based Voucher Programs, 79
11
might well have weighed landlord incentives against tenant
protections differently in this context. See also Estevez, 2005
WL 3164146 at *6 (“[P]recisely because of the repeal of the
endless lease provision, it made perfect sense for Congress to
enact a law expressly intended to protect eligible tenants
(through the use of enhanced vouchers) from losing their
homes upon the expiration of project-based assistance
contract.”).
The majority cannot know that Congress did not draw
these distinctions between ordinary and enhanced vouchers. It
has no basis to assume that the enhanced voucher statute—
which was enacted by a different Congress, looking at a
different population of beneficiaries, regulating a different set
of landlords, and serving different purposes than the ordinary
voucher provisions—must nevertheless provide the same
protections upon the expiration of a lease as an ordinary
voucher. Cf. Section 8 Housing: Hearing Before the Sen.
Subcomm. on Hous. and Transp., 106th Cong. (1999) (written
testimony of Rep. Rick Lazio, Chairman, H. Subcomm. Hous.
and Cmty.) (stating that the purpose of the enhanced voucher
statute is to “allow particularly vulnerable populations the
ability to remain in their own homes”). Congress explicitly
provided that enhanced voucher holders—and not ordinary
voucher holders—“may elect to remain.” We must give effect
Fed. Reg. 36,146, 36,148 (June 25, 2014) (final rule); see also
24 C.F.R. § 983.257 (2017) (reflecting codification). As HUD
explained, this rule was enacted because residents in affordable
projects are meant to have a “reliable long-term lease.” 79 Fed.
Reg. at 36,148. The right to remain ensures that even if a
landlord opts out of project-based assistance, a tenant retains
the same protections she had.
12
to that language, not erase it based on the policy concerns of a
separate program.
The text of the statute, as well as its history and
structure, makes clear that Congress has granted enhanced
voucher holders a right to remain. The majority’s
interpretation of the statute, which holds that Congress offered
tenants no new right when it amended the enhanced voucher
statute to provide that tenants “may elect to remain” in their
homes, is plainly foreclosed. As between “some right to
remain” and “no right to remain,” Congress’s choice is clear.
But as is often the case, the text does not detail the precise
bounds of that right to remain: that task has been left to the
courts and to HUD, both of which have undertaken it. The
majority declines the responsibility here. 7 Because Congress
chose to use solely the “may elect to remain” language, rather
than a detailed elaboration of the right to remain, it has left a
gap in the statute. “Filling these gaps . . . involves difficult
policy choices that agencies are better equipped to make than
courts,” Nat’l Cable & Telecomm. Ass’n v. Brand X Internet
7
The majority notes, correctly, that the text of the
statute does not reference any limitation on the right to remain.
It therefore suggests that there can be no justification for the
rule I (and HUD and other courts) would adopt, which allows
for nonrenewals for good cause. Maj. Op. at 21 n.8. But an
ambiguity regarding the scope of the right to remain does not
mean that a right to remain does not exist. When a statute is
ambiguous, “we are left to resolve that ambiguity.” Robinson
v. Shell Oil Co., 519 U.S. 337, 345 (1997). The majority writes
as if any uncertainty in a statutory provision renders that
provision meaningless. Our volumes of decisions interpreting
statutes make obvious that this is not so.
13
Servs., 545 U.S. 967, 980 (2005), and in the first instance, I
would look to HUD to define the details of the right to remain.
Because HUD has, in fact, stepped into that gap and expanded
on the statutorily-required right to remain, it is to HUD’s
interpretation I now turn.
* * *
The text alone is more than enough to conclude that the
statute provides a right to remain, 8 but the statutory text is not
the only legal material in play here. HUD has repeatedly
interpreted the enhanced voucher statute: at every point, the
agency has asserted that the statute provides a right to remain,
obligating landlords to renew the leases of enhanced voucher-
holders unless there is good cause to terminate the tenancy.
Our precedent mandates that this interpretation is entitled to
substantial, albeit non-binding, deference.
HUD first put forward its interpretation of the right to
remain in a version of its Section 8 Renewal Policy Guide
published in January 2001, immediately after the enhanced
voucher statute was originally enacted. Dep’t of Hous. &
Urban Dev., Section 8 Renewal Policy: Guidance for the
Renewal of Project-Based Section 8 Contracts (2017); see also
Dep’t of Hous. & Urban Dev., Notice PIH 2001-41, Section 8
Tenant-Based Assistance (Enhanced and Regular Housing
Choice Vouchers) For Housing Conversion Actions – Policy
8
The Ninth Circuit agrees: the text of the statute alone
is enough to find a right to remain. Park Vill., 636 F.3d at 1157
(denying right to remain would “flout the clear language of the
statute”). Deference to HUD reinforces that conclusion.
14
and Processing Guidance (2001) (describing 2001 version of
Guide), JA 274-308.
The Policy Guide lays out that “Owners may not
terminate the tenancy of a tenant who exercises this right to
remain except for cause under Federal, State or local law.”
Section 8 Renewal Policy § 11-3. Moreover, the Guide
clarifies that the right to remain continues indefinitely,
including after the expiration of a lease term. It provides that
“[t]his protection continues after the first lease term” and that
“owners must continually renew the lease of an enhanced
voucher family.” Id. According to HUD, owners may only
choose not to renew a lease if the property is no longer being
offered as rental housing, if they have good cause to terminate
the tenancy under Federal, State or local law, or if the local
housing authority ceases to find the rent being charged
reasonable. Id.
The Renewal Policy Guide further demonstrates that the
right to remain is integrated into the larger Section 8 scheme,
including the opt-out provisions. For example, the Guide
references the right to remain in a sample notice for landlords
to provide tenants before opting out of project-based Section 8
assistance. That letter notifies tenants that “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.” Id. App. 11-3. It also instructs agency officials
processing an opt-out to ensure that the owner sent such a letter
stating “that the owner will honor the right of tenants to
remain” and that the owner “certif[ied] that it will honor the
tenant’s right to remain at the project as long as the project
continues to be offered for rental housing . . . unless the owner
has grounds for eviction . . .” Id. § 8-3.
15
The Guide also clearly roots its interpretation in the text
and history of the statute. In recounting the legislative history
of Section 8, it observes that the 2000 amendment to the statute
“amended the enhanced voucher statute at Section 8(t) of the
United States Housing Act to grant enhanced voucher families
the right to remain.” Id. § 1-2. Accordingly, this is not some
stray remark, but a core, considered aspect of HUD’s
administration of Section 8.
HUD reaffirmed this interpretation in a notice issued in
2001. Dep’t of Housing & Urban Dev., Notice PIH 2001-41.
In guidance, HUD stated that:
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.
Id. at 26, JA 297. As in the Renewal Policy Guide, the agency
again identified this policy as deriving directly from the 2000
amendments to the statute, which it described as providing
“that families have the right to elect to remain in the same
project with enhanced voucher protection.” Id. at 3, JA 276.
HUD has consistently restated—and perhaps more
importantly, applied—this interpretation of the right to remain.
In 2014, it wrote a pair of letters, one to public housing
authorities and one to landlords, reiterating that enhanced
vouchers have a right to remain in their apartments, even
beyond the first year of assistance. JA 272-73. HUD has
16
repeatedly reissued the Section 8 Renewal Policy Guide, most
recently in 2017, without revisions relevant to this litigation.
And in 2016, HUD issued a proposed rule on enhanced
vouchers. Tenant-Based Assistance: Enhanced Vouchers, 81
Fed. Reg. 74,372 (Proposed Oct. 26, 2016). This rule, which
if finalized would “codify” HUD’s existing enhanced voucher
policies, would “provide that, absent repeated lease violation
or other good cause, a family that receives an enhanced
voucher has a right to remain in the project,” pursuant to the
“statutory requirement” of 42 U.S.C. § 1437f(t)(1)(B). Id. at
74,375. 9 HUD is clear and consistent: to terminate an
enhanced voucher holder’s tenancy, even at the end of a lease
term, good cause is required. For each of the sixteen years
since the “may elect to remain” language has been a part of the
statute, HUD has administered the right to remain in the same
way.
I agree with the majority that HUD’s interpretation, put
forth in guidance, letters, and other materials without the force
of law, is not entitled to binding Chevron deference.
Christensen v. Harris County, 529 U.S. 576, 587 (2000)
(“Interpretations such as those in opinion letters—like
interpretations contained in policy statements, agency
manuals, and enforcement guidelines, all of which lack the
force of law—do not warrant Chevron-style deference.”). But,
as the Supreme Court has held, just because interpretations “do
not fall within Chevron is not, however, to place them outside
the pale of any deference whatsoever.” United States v. Mead
9
While this proposed rule currently lacks the force of
law, it does indicate that HUD still holds its long-time position
and that it is putting forward that interpretation through
increasingly formal processes.
17
Corp., 533 U.S. 218, 234 (2001). The majority peremptorily
dismisses HUD’s interpretations as unpersuasive. Our
precedent mandates more deference than this.
Various factors—some not even discussed by the
majority, and none meaningfully credited—require additional
deference here. We grant additional deference to an
“unchanging policy,” Hagans v. Comm’r of Soc. Sec., 694 F.3d
287, 304-05 (3d Cir. 2012) (citing Alaska Dep’t of Envtl.
Conservation v. EPA, 540 U.S. 461, 492 (2004)) and to
interpretations issued contemporaneously with the statute. Id.
(citing Madison v. Res. for Human Dev., Inc., 233 F.3d 175,
187 (3d Cir. 2000)). Here, HUD first found that enhanced
vouchers provided a “right to remain” in 2001, immediately
after the statute was originally enacted, and never wavered
from that interpretation through the pendency of this litigation.
We “normally accord particular deference to an agency
interpretation of longstanding duration.” Barnhart v. Walton,
535 U.S. 212, 220 (2002) (internal quotations omitted). Yet
the majority grants this interpretation no deference at all.
Likewise, the Supreme Court has instructed that even in
the non-binding framework of Skidmore deference, “given the
value of uniformity in [an agency’s] administrative and judicial
understandings of what a national law requires,” courts should
defer to agencies where a failure to defer risks fracturing an
otherwise uniform scheme. Mead, 533 U.S. at 234. Section 8
is just such a national program, and the costs of disuniformity
are high. See Butler Cty. Mem’l Hosp. v. Heckler, 780 F.2d
352, 357 (3d Cir. 1985) (“[P]ublic policy favors consistent,
nationwide application of rules in social welfare programs.”).
Moreover, the risk of disuniformity is particularly high here.
Another circuit has ruled in favor of HUD’s interpretation,
Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Trust,
18
636 F.3d 1150 (9th Cir. 2011), and HUD has been applying
this interpretation in practice for the statute’s full lifetime. The
majority is creating disuniformity, not resolving it.
Confusion—and perhaps non-acquiescence—is sure to follow.
This is another factor militating for deference, one that the
majority entirely ignores.
Next, we look to whether an agency has “relative
expertise” in administering the scheme. Hagans, 694 F.3d at
305; see also United States v. Miller, 833 F.3d 274, 281-82 (3d
Cir. 2016). There is no dispute that HUD is the expert agency
tasked with administering Section 8. We are instructed to
credit the agency’s hands-on, decades-long engagement with
the enhanced voucher statute and its administration—and
would be wise to do so.
The majority’s argument against deference is that “the
‘brevity’ of HUD’s statements and ‘un[der]developed
reasoning counsel toward a lower level of deference.’” Maj.
Op. at 23 (quoting Hagans, 694 F.3d at 305). Beyond that, the
majority only conclusorily states that it is not persuaded. Even
if I were to accept that HUD’s many statements lack
thoroughness—which I do not, given that the agency has
clearly stated that it believes its interpretation is mandated by
statute—this is not enough to so quickly disregard the agency’s
insights. The majority does not explain what additional
reasoning it seeks from the agency, or why it considers the
agency’s expertise unimportant here. It simply rejects HUD’s
interpretation. Skidmore deference is a “sliding-scale,”
Hagans, 694 F.3d at 304, and not an “either-or choice,” Mead,
533 U.S. at 238, yet the majority behaves as if the agency’s
interpretation is entirely without import to our interpretation.
19
Indeed, the very language from Hagans that the
majority cites demonstrates its disregard for our precedent on
Skidmore deference. The Hagans court noted that the
“brevity” and “underdeveloped reasoning” of the relevant
agency interpretation counseled for a lower level of deference,
but concluded that overall, given the agency’s expertise, its
consistent application of its interpretation, and the need for
uniformity, “a relatively high level of deference is warranted.”
694 F.3d at 305. Precisely the same factors are at play here:
Hagans instructs that a relatively high level of deference is
warranted here as well.
All this is not to say that we are obligated to accept
HUD’s interpretation, for we are not. I began with the statute’s
text and find that more than sufficient to establish a right to
remain. But we are obligated to pay heed to HUD’s
interpretation and, given HUD’s consistency, its expertise, and
the virtues of uniformity, to give substantial weight to that
interpretation. The majority, in its rush to erase the protections
of the enhanced voucher statute, fails entirely to engage with
this administrative expertise, much less to defer to it. This
approach disregards the executive branch’s hard-won wisdom
in the interpretation and application of this program.
* * *
The interpretation I propound here—there is a right to
remain—is also shared by every other court to interpret the
enhanced voucher statute, until this litigation. The most
analogous case to this one is the Ninth Circuit’s decision in
Park Village Apartment Tenants Association v. Mortimer
Howard Trust, 636 F.3d 1150 (9th Cir. 2011). There, as here,
a group of tenants of a formerly project-based housing complex
argued that they had a right to remain and to pay their rent
20
using enhanced vouchers. The Ninth Circuit found that the
enhanced voucher statute “provides tenants a right to remain in
their previously subsidized Section 8 rental units in the absence
of just cause for eviction.” Id. at 1163. I need not recite the
Ninth Circuit’s arguments—they are the same ones already
outlined here, including arguments from plain text and the
enactment history of the statute, as well as deference to HUD.
Notably, the Ninth Circuit also explained the problems with the
very same arguments that the majority now embraces. For
example, the Ninth Circuit clearly explains why there is no
conflict between the rights given to tenants during the one-year
notice period for opting out of project-based assistance—
which precedes the issuance of an enhanced voucher—and the
rights provided by an enhanced voucher—which comes after
project-based assistance has ended. Compare id. at 1158 with
Maj. Op. at 14-15.
Nothing distinguishes the Hayes’ case from Park
Village: there are no material factual differences, nor
intervening legal changes. Park Village does not rely on
inapplicable Ninth Circuit precedents. For the questions at
issue here, it is on all fours with this litigation.
The majority purports to distinguish Park Village on the
basis that it concluded only that landlords cannot evict a tenant
for paying their rent with an enhanced voucher. Maj. Op. at
18. Park Village does conclude this, even as it also concluded
that the statute provides the right to a lease renewal. The Ninth
Circuit was presented with multiple issues, and it issued
multiple holdings. See Park Vill., 636 F.3d at 1151-52
(“[Plaintiffs] argue that federal law gives them a right to remain
in the complex and to pay a portion of their rent by using
federally funded ‘enhanced vouchers.’ Defendants, who own
the housing complex, argue that the tenants have no right to
21
remain in the complex or to use such vouchers to pay their
rent.” (emphasis added)). The majority’s claim that Park
Village rejects a right to lease renewal is plainly belied by the
Ninth Circuit’s opinion, which, among other things, relies on
HUD’s interpretation, including HUD’s statement that
“owners must continually renew the lease of an enhanced
voucher family.” Id. at 1156-57. Quite simply, the majority
has conflated one of the Ninth Circuit’s holdings with the
other. 10 The Ninth Circuit, clearly and repeatedly, holds that
the enhanced voucher statute provides a right to remain,
including after the expiration of a lease term.
Nor does Park Village stand alone. A slew of district
court opinions have found that enhanced vouchers provide an
open-ended right to remain. Not one agrees with the majority.
Park Vill., 636 F.3d at 1157 (“every court to consider the
question has concluded that § 1437f(t) affords tenants a right
to remain, exercisable as against the owner”); see also Estevez,
2005 WL 3164146 at *5-*6 (describing “unfettered right to
remain” and rejecting position that “tenants can pay their rent
10
In a footnote, the majority also cites language from
the Ninth Circuit concerning a third issue presented in Park
Vill.: whether even if tenants have a right to remain, a court can
enjoin the landlord to enter a HAP contract. Maj. Op. at 20 n.6
(citing Park Village, 636 F.3d at 1161-62). There, the Ninth
Circuit concluded that such an injunction was improper;
owners could allow tenants to remain, but forego the extra
income provided by an enhanced voucher, if they so chose.
636 F.3d at 1161-62. This issue is not before us, but it
demonstrates further that the Ninth Circuit did, in fact,
recognize a right to remain—one which potentially extends
even beyond the expiration of a HAP contract.
22
with enhanced vouchers only if the landlord decides to accept
them”); Barrientos v. 1801-1825 Morton, LLC, No. CV06-
6437 ABC (FMOX), 2007 WL 7213974, at *6, *8 (C.D. Cal.
Sept. 11, 2007), aff’d on other grounds, 583 F.3d 1197 (9th
Cir. 2009) (concluding “the enhanced voucher provision
creates a right for tenants to remain in tenancy” such that
tenancies can be terminated only for “the eviction grounds in
subsection (o)(7)”); Jeanty v. Shore Terrace Realty Ass’n, No.
03 CIV. 8669 (BSJ), 2004 WL 1794496, at *5 (S.D.N.Y. Aug.
10, 2004) (stating enhanced voucher gives tenant “option to
renew her lease so long as the property is offered as rental
housing and Plaintiff receives enhanced vouchers, absent good
cause to terminate her tenancy under Federal, State or local
law” because it is “illogical to provide a tenant with the right
to remain without requiring the landlord to offer the tenant the
option to renew the lease”); Feemster v. BSA Ltd. P’ship, 471
F. Supp. 2d 87, 93 (D.D.C. 2007) (adopting HUD position that
statute imposes “requirement to allow families receiving
enhanced vouchers who elect to remain do so as long as the
property remains a rental property, unless the owner has just
cause for eviction”), aff’d in relevant part, 548 F.3d 1063 (D.C.
Cir. 2008) (no dispute that statute “gives tenants the right to
remain in their units”). 11 Not all of these cases detail
11
The majority is correct that the D.C. Circuit in
Feemster does not speak to the existence of a right to remain
or to landlords’ obligations to renew the leases of enhanced
voucher holders. 548 F.3d at 1067 (observing that “[t]his is a
single issue case” concerning whether the relevant units were
being “offered for rental housing”). For that reason, I do not
cite to the D.C. Circuit’s opinion, but rather the District Court
opinion, which as quoted above, does find a right to remain.
The majority’s attempt to distinguish the D.C. Circuit’s
23
specifically the bounds of the right to remain—but all find that
it exists. 12
What does the majority make of this complete
consensus? I know not. While these cases do not bind us, we
must be “mindful of our obligation to avoid circuit conflict,”
PNC Bank Del. v. F/V Miss Laura, 381 F.3d 183, 186 (3d Cir.
2004), and “widely held views impel us to consider whether
the reasoning applied by our colleagues elsewhere is
persuasive.” In re Grossman’s Inc., 607 F.3d 114, 121 (3d Cir.
2010). That enhanced voucher holders have a right to remain
is not just a “widely held” view, it is a uniformly held view.
The majority’s failure to reckon with the judicial consensus is
curious but telling.
In failing to acknowledge what other courts have
actually held, the majority ends up going after a strawman. The
opinion—by citing dicta, no less—is strange, given that I do
not rely on it. It remains the case, though, that the Feemster
district court, like the others cited above, found a right to
remain, and that the majority still has no other court agreeing
with its interpretation.
12
Many of these cases address more specifically the
question, not at issue in this appeal, whether when a tenant has
exercised her right to remain, the landlord must accept the
enhanced vouchers as payment of their rent. See, e.g., Estevez,
2005 WL 3164146 at *4 n.2. But their analysis necessarily
discusses the existence and, to some extent, scope of the right
to remain that the majority denies exists in the statute. Though
only Park Village is on all fours with this appeal, these other
cases are instructive.
24
majority repeatedly asks whether the enhanced voucher statute
creates a “perpetual lease” or “require[s] property owners to
continually renew enhanced-voucher tenancies.” E.g., Maj.
Op. at 16, 17. 13 I cannot discern any reason why the majority
would concern itself with whether enhanced voucher holders
have an unbridled right to remain; the only people discussing
such a limitless right are the two members of the majority. This
is not my position. This is not Appellants’ position. This is
not HUD’s position. This is not the position of any other
court. 14
13
Everyone agrees that enhanced voucher holders may
be evicted pursuant to Subparagraph (C), which is not at issue
here. The majority’s mischaracterization of Appellants’ claim
is that their tenancy is otherwise eviction-proof.
14
Surprisingly, the majority’s fear of a perpetual tenancy
is so severe that it accuses me of “fail[ing] to consider the
actual implications of [my] interpretation.” Maj. Op. at 25
n.11. I would hold that § 1437f(t) grants families eligible for
enhanced vouchers a right to lease renewal if they are able to
pay their statutorily prescribed portion of rent. However,
enhanced vouchers and the accompanying right to remain are
only available to the original family on behalf of whom the
voucher was provided; they cannot be transferred to other
family members or other third parties. See 42 U.S.C. §
1437f(t)(1)(C)(ii). Moreover, throughout the tenancy, tenants
benefitting from the enhanced voucher program remain subject
to the applicable HAP contract and lease agreement. These
documents may provide landlords with additional grounds for
terminating the tenancy. In this case, for instance, the lease
allows the Owner to terminate based on, among other things, a
history of disturbance, the owner’s desire to utilize the
25
Each of us suggests something more modest: that the
right to remain only offers tenants protection against evictions
without good cause, including at the termination of a lease
term. 15 See, e.g., Park Vill., 636 F.3d at 1157
dwelling for personal, family, or non-residential use, or
“[v]iolation of Federal, State, or local law that impose
obligations on the Tenant.” JA 653.
The majority contends that “[a]fter those documents
have expired, extending any of their limitations would in effect
be subjecting the property owners to a perpetual tenancy.”
Maj. Op. at 25 n.11. I suppose, then, that, the majority’s fear
of a perpetual tenancy is really a concern that Congress has
saddled landlords with model tenants who, with their vouchers,
pay equal to or above market rent. In other words, the crux of
the disagreement between the majority and myself is that my
colleagues believe that landlords are not sufficiently protected
by the above-listed limitations on the right to remain and
indeed require an additional measure of protection—one that
is entirely judicially-crafted and finds support in neither the
text of the statute nor the agency’s longstanding interpretation.
15
I would remand the question of whether Harvey had
good cause to evict the Hayes family, rather than decide it in
the first instance, as the District Court did not reach this issue.
I note, though, the complexities of determining what
constitutes “good cause” in the special context of the enhanced
voucher statute. See Barrientos, 2007 WL 7213974 at *7-*9
(holding that a landlord’s desire to increase the market rent is
not “good cause”); Tenant-Based Assistance: Enhanced
Vouchers, 81 Fed. Reg. 74372, 74374-75 (Oct. 26, 2016)
(HUD specifically requesting comments on what should
26
(“[Section] 1437f(t) provides tenants a right to remain in their
rental units absent just cause for eviction” (emphasis added));
Barrientos, 2007 WL 7213974 at *8-9 (holding that “the ‘other
good cause’ provision in subsection (o)(7) applies to enhanced-
voucher tenants under subsection (t)” and finding that a desire
to lease the unit at a higher rent is not “good cause”); Dep’t of
Hous. & Urban Dev., Notice PIH 2001-41 at 24 (“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” (emphasis added)); Appellant’s Br. at 7
(seeking finding “that Defendant Harvey does not have good
cause to evict or fail to renew lease for the Hayes family in
violation of their Right to Remain”).
Given that the majority fails even to recognize the
consensus interpretation of this statute, much less
meaningfully engage with it, it is perhaps no surprise that it
fails to accurately describe that consensus interpretation. As a
result, the majority would leave this Court embracing a
position that not a single other interpreter—in any of the three
branches of government—has advanced. No other court has
embraced the majority’s position because it is made up out of
whole cloth.
* * *
The enhanced voucher statute provides a right to
remain. This is evident on the face of the text, which provides
that tenants “may elect to remain” in their homes and sets that
provision apart as an independent right. It is evident from the
constitute valid grounds for terminating an enhanced voucher-
holder’s tenancy, consistent with the statutory right to remain).
27
history of the statute, which was amended specifically to insert
that right to remain. HUD has filled out the scope of that
right—through interpretations that we must heed—and every
other court to consider the issue has recognized that right. The
majority confronts an immense array of legal materials, all
pointing in the same direction. Rather than face them, it
cobbles together conclusory statements and non sequiturs
about independent provisions of the enhanced voucher statute.
As a consequence, the Hayes family will lose their home.
This home was hard-won. It took repeated intervention
by the federal courts to vindicate the Hayes family’s right to
their home in the first place. See Society Hill Civic Ass’n v.
Harris, 632 F.2d 1045, 1048-49 (3d Cir. 1980) (recounting
history of three federal litigations and two consent decrees
resulting in creation of this affordable unit). Since this
apartment was built in 1982, the Hayes family have been the
only tenants to live there. And for these 35 years, they have
been “very good tenants,” causing no disturbances, and
drawing no complaints. JA 577-78. Now the federal courts
are intervening once again, but this time, rather than
vindicating the Hayes family’s rights, we are rubbing out
statutory text and ignoring Congressional intent, leaving them
subject to the whim of their landlord. Congress told the Hayes
family that they “may elect to remain” at 538B Pine Street. Yet
now they are being forced to leave. I dissent.
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