People to End Homelessness, Inc. v. Develco Singles Apartments Associates

United States Court of Appeals
For the First Circuit

No. 02-2675

PEOPLE TO END HOMELESSNESS, INC.,

Plaintiff, Appellant,

DEVELCO TENANTS ASSOCIATION,

Plaintiff,

v.

DEVELCO SINGLES APARTMENTS ASSOCIATES; DEVELCO MODERN APARTMENTS
ASSOCIATES; DEVELCO APARTMENTS, INC.; DEVELCO FAMILY APARTMENTS
ASSOCIATES; HEDCO, LTD.; WOONSOCKET HOUSING AUTHORITY; MEL
MARTINEZ, IN HIS OFFICIAL CAPACITY AS SECRETARY, UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

[Hon. David L. Martin, U.S. Magistrate Judge]
[Hon. Ernest C. Torres, U.S. District Judge]

Before

Howard, Circuit Judge,
Bownes and R. Arnold,* Senior Circuit Judges.

*
The Hon. Richard S. Arnold, of the Eighth Circuit, sitting by
designation.
 John Cann with whom Timothy L. Thompson and Ann M. Norton were
on brief for appellant, People to End Homelessness, Inc..
Terri L. Roman, Attorney, with whom Carole W. Wilson,
Associate General Counsel, Howard Schmeltzer, Assistant General
Counsel, United States Department of Housing and Urban Development,
Margaret E. Curran, United States Attorney, and Michael P.
Iannotti, Assistant United States Attorney, were on brief for
appellees Mel Martinez, Secretary of the United States Department
of Housing and Urban Development and the United States Department
of Housing and Urban Development.
Lynette Labinger and Roney & Labinger were on brief for
Develco Singles Apartments Associates, Develco Modern Apartments
Associates, Develco Apartments, Inc., Develco Family Apartments
Associates, and Hedco, Ltd.

July 31, 2003
 BOWNES, Senior Circuit Judge. Plaintiff-appellant,

People to End Homelessness, Inc. ("PEH"), is a non-profit

organization operating in Woonsocket, Rhode Island, which seeks to

expand and preserve the supply of affordable housing in Rhode

Island. Defendants-appellees in this case are the Develcos (the

"Owners"), a group of four separately-owned but commonly managed

housing developments located in Woonsocket, Rhode Island. The

other defendants-appellees in this case are the United States

Department of Housing and Urban Development ("HUD") and its

Secretary. PEH brought suit in federal district court challenging

the expiration of low-income housing contracts between HUD and the

Owners. The district court granted HUD's motion to dismiss and

then granted summary judgment for the Owners. For the reasons set

forth below, we affirm both rulings.

I. BACKGROUND

This litigation revolves around the "Section 8" program

created by HUD in 1974. The program is governed largely by the

United States Housing Act of 1937, § 8 as amended, 42 U.S.C. §

1437f (2003) ("the Housing Act"). We begin with a brief sketch of

how this program works. The purpose of the program is to "aid low-

income families in obtaining a decent place to live and [promote]

economically mixed housing." Id. § 1437f(a). Under the Section 8

program, HUD enters into Housing Assistance Payment ("HAP")

contracts with private property owners and determines the maximum

-3-
monthly rate that the owner may charge for each dwelling. Under

the terms of the HAP contract, the property owner receives rent

directly from two sources, the low-income tenant and HUD. The low-

income tenants pay the property owner a percentage of their

adjusted income, typically about 30 percent. The difference that

remains between the HAP contract rent and the portion provided by

the tenant is paid to the owner by HUD in the form of an assistance

payment or subsidy.

Owners are required to provide the Secretary of HUD and

the low-income tenants "not less than one year" written notice of

their intention to terminate any Section 8 HAP contract.1 Id. §

1437f(c)(8)(a). If the owner does not provide the proper notice,

the owner may not evict the tenants or increase the tenants' rent

until such time as the owner has provided the notice and the full

one year has expired. Id. § 1437f(c)(8)(B). In circumstances when

the HAP contracts expire, the Secretary and the owner may agree to

renew the contract.

Should the owner choose not to renew, the Housing Act

dictates that 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

1
The statute defines termination of a HAP contract as, "the
expiration of the assistance contract or an owner's refusal to
renew the assistance contract, and such term shall include
termination of the contract for business reasons." Id. §
1437f(c)(8)(D).

-4-
currently reside." Id. § 1437f(c)(8)(A). If tenants choose to

stay in the unit in which they currently reside, HUD issues those

tenants "enhanced vouchers." These vouchers cover the cost of any

increase in rent that the owner of the dwelling may charge once the

HAP contract expires, while keeping the tenants' portion of the

rent stable at the pre-expiration rate.

Having described the basic mechanics of the Section 8

program, we now turn to the events that prompted this appeal. The

Owners began providing affordable housing to low-income families

pursuant to Section 8 HAP contracts in the mid-1970's. Since that

time, the Owners and HUD entered into numerous renewal HAP

contracts. The most recent HAP contracts were set to expire on May

31, 2001. Six weeks before the scheduled expiration date, the

Owners sent the tenants a notice informing them that the HAP

contracts would not be renewed. HUD, in coordination with the

Woonsocket Housing Authority ("WHA"), subsequently issued enhanced

vouchers to each eligible tenant.2

On May 30, 2001, the day before the HAP contracts were

set to expire, PEH filed a complaint, a motion for a temporary

restraining order and a motion for a preliminary injunction in the

district court against the Owners, HUD and its Secretary, and the

WHA. PEH raised two major issues in the complaint. First, PEH

2
The WHA is a public housing authority created under state
law which operates and administers various low-income housing
programs in the City of Woonsocket.

-5-
argued that the six weeks notice given to the tenants by the Owners

failed to comply with the one year federal notice requirement.

Second, PEH argued that HUD was acting in violation of federal law

by approving the Owners' decision not to renew the expiring HAP

contracts and by issuing enhanced vouchers to the tenants.

On June 22, 2001, PEH moved to add the Develco Tenant

Association (DTA), a group of Develco tenants, as a co-plaintiff

with PEH. There were no objections to the motion and the complaint

was amended to add DTA as a co-plaintiff. Shortly thereafter, the

Owners agreed to a voluntary restraining order. The order

prohibited the Owners from evicting or raising the rent on any

tenant for one year, provided that the tenant was a participant in

the Section 8 program.

After the restraining order was issued, HUD moved to

dismiss for failure to state a claim. The district court, in a

memorandum opinion dated March 29, 2002, granted the motion. The

district court ruled that federal law did not obligate or even

authorize HUD to "unilaterally extend HAP contracts against the

will of owners." Similarly, the district court stated that there

was no statutory authorization which would require the Owners to

continue participating in HAP contracts once they expired. The

district court stated that the "sole remedy for failing to provide

the requisite notice is that the owner is prohibited from evicting

-6-
tenants or increasing their rent payments until such notice has

been provided and the prescribed notice period has elapsed."

With HUD dismissed from the case, the Owners and WHA

moved for summary judgment. In a second memorandum opinion, dated

October 16, 2002, the district court held that PEH and DTA lacked

standing to pursue their complaint and granted the motion. The

district court rejected PEH's request to require the Owners to

continue renting units under the Section 8 HAP contracts. The

court found that HUD's decision not to renew the expiring HAP

contracts was a permissible exercise of HUD's discretion, and that

since the contracts had expired, it was not possible to grant the

relief requested. PEH filed this timely appeal challenging the

district court's decision to dismiss PEH's claims against HUD and

grant the Owners' motion for summary judgment.3 The DTA no longer

exists and therefore has not joined in this appeal. No other

Develco tenant joined PEH in this case at any time.

II. DISCUSSION

We address first PEH's challenge to the district court's

decision to dismiss HUD from this lawsuit for failure to state a

claim. See Fed. R. Evid. 12(b)(6). We review a district court's

allowance of a motion to dismiss de novo. See Martin v. Applied

Cellular Tech., Inc., 284 F.3d 1, 5 (1st Cir. 2002). In doing so,

3
PEH does not appeal the district court's grant of summary
judgment in favor of the WHA and the WHA is not involved in this
appeal.

-7-
"[w]e accept as true the well-pleaded factual allegations of the

complaint, draw all reasonable inferences therefrom in the

plaintiff's favor and determine whether the complaint, so read,

sets forth facts sufficient to justify recovery on any cognizable

theory." Id. at 6.

PEH's complaint alleged that HUD violated a variety of

federal laws, including the Housing Act, the Administrative

Procedures Act, 5 U.S.C. § 701 et seq. (2003), the Fair Housing

Act, 42 U.S.C. § 3608(e)(5) (1994), and the Fifth and Fourteenth

Amendments to the Constitution. Fairly read, the essence of these

claims is that HUD illegally permitted the HAP contracts to expire.

PEH alleges that HUD should have required the Owners to remain in

the Section 8 program under HAP contracts until the one year notice

period ended pursuant to the voluntary restraining order agreed to

by the Owners.

This argument, however, is forestalled by the clear

language of the Housing Act. See 42 U.S.C. § 1437f. When "the

language of a statute 'is plain and admits of no more than one

meaning . . . the sole function of the courts is to enforce the

statute according to its terms.'" Arnold v. United Parcel Serv.,

Inc., 136 F.3d 854, 858 (1st Cir. 1998) (quoting Caminetti v.

United States, 242 U.S. 470, 485 (1917)). Section (c)(8)(B) of the

Housing Act states in relevant part:

In the event the owner does not provide the
notice required, the owner may not evict the

-8-
 tenants or increase the tenants' rent payment
until such time as the owner has provided the
notice and 1 year has elapsed. The Secretary
may allow the owner to renew the terminating
contract for a period of time sufficient to
give tenants 1 year of advance notice under
such terms and conditions as the Secretary may
require.

(emphasis added). Congress' statement that the Secretary "may

allow" the owner to renew the HAP contracts makes it apparent that

HUD was not required to renew the Section 8 HAP contracts, even in

the face of a notice violation.

PEH also argues that HUD should not have issued enhanced

vouchers to the tenants once the Owners had provided inadequate

notice. According to PEH, enhanced vouchers can only be issued

when an owner provides proper notice and the one year notice period

has expired. This argument is also contrary to the clear statutory

language adopted by Congress.

We begin by noting that the Housing Act does not directly

support PEH's argument. Section (c)(8)(B) of the statute, which

was quoted above and describes how the Section 8 program works when

an owner fails to give proper notice, does not mention enhanced

vouchers, let alone prohibit their use. Rather, enhanced vouchers

are covered under a different section of the statute. See id. §

1437f(t). This section states, in pertinent part, that "the

termination or expiration of the contract for rental assistance .

. . results in tenants . . . being eligible for enhanced voucher

-9-
assistance under this subsection." Id. § 1437f(t)(2). There are,

of course, exceptions. These include instances when a tenant

leaves the covered project or when the voucher is used by someone

other than the family who was originally issued the voucher. See

id. § 1437f(t)(1)(C). But Congress did not include in this list of

exceptions an owner's failure to give proper notice. That fact

certainly does not help PEH's argument. See Com. of Mass. by Dept.

of Public Welfare v. Yeutter, 947 F.2d 537, 542 (1st Cir. 1991)

(finding it relevant that "[n]owhere in this section do the

drafters suggest that the Secretary may not request information and

materials beyond those specified as forbidden fruit"). But it also

does not end the matter. See Stoutt v. Banco Popular de P.R., 320

F.3d 26, 30 (1st Cir. 2003) (stating that omissions in statutory

language are not necessarily conclusive because "[c]ourts have

often added to statutes unexpressed conditions or qualifications

consonant with statutory purpose or other public concerns").

More important is that the section of the Housing Act

describing enhanced vouchers, see 42 U.S.C. § 1437f(t)(2),

explicitly defines when a tenant may be eligible for enhanced

vouchers. This section references the Multifamily Assisted Housing

Reform and Affordability Act of 1997, Pub. L. No. 105-65, 111 Stat.

1344 (codified at 42 U.S.C. § 1437f) ("MAHRA"). The MAHRA, in

turn, provides that when a Section 8 contract is "not

renewed . . . the Secretary shall make enhanced voucher assistance

-10-
. . . 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." Id. § 524(d)(1) (emphasis added). This

provision applies to a "contract [that] will (under its own terms)

expire during the period consisting of fiscal years 2000 through

2004." Id. § 524(d)(2)(A)(VII). That is precisely the situation

we face in this case. The HAP contracts between the Owners and HUD

expired on May 31, 2001. Upon expiration of the HAP contracts, the

MAHRA requires HUD to issue the enhanced vouchers if a tenant

chooses to remain in the same unit. HUD did so. In light of this

clear statutory language, we simply cannot agree with PEH's

argument that HUD acted improperly when it issued enhanced vouchers

to the tenants in this case. See Riva v. Comm. of Mass., 61 F.3d

1003, 1007 (1st Cir. 1995) ("In statutory construction case,

beginning point must be language of statute, and when statute

speaks with clarity to an issue, judicial inquiry into statute's

meaning, in all but the most extraordinary circumstance, is

finished." (quoting Estate of Cowart v. Nicklos Drilling Co., 505

U.S. 469, 475 (1992))).

PEH challenges this clear statutory language by drawing

our attention to a document that it considers "new pertinent and

significant legal authority." The document is related to testimony

that HUD provided at a Senate Subcommittee hearing on affordable

housing preservation on October 9, 2002. Following the hearing,

-11-
the subcommittee issued a series of follow-up questions to HUD,

some of which dealt with HUD's handling of the Section 8 program.

PEH cites to the written responses that HUD provided to the

questions.

PEH presents this document to us as a supplemental

letter, as authorized by Fed. R. App. P. 28(j). HUD argues that we

should not consider PEH's document because supplemental authority

as defined by Rule 28(j) is generally understood to refer to new

case law, which PEH's document is certainly not. We decline to

define the contours of the rule, and choose instead to assume

without deciding that it is permissible for us to consider PEH's

document.

That said, we are not persuaded that the document helps

advance PEH's argument in any meaningful way. This is because

HUD's answers are inconsistent with PEH's position. HUD's answers,

it seems to us, conform to our reading of the relevant statutes.

For example, HUD states that it "does not have the legal authority

to compel an unwilling owner to execute new project-based

assistance contracts or to unilaterally prevent the contract from

expiring." HUD goes on to explain that "[i]n cases where improper

notice has been provided, eligible families residing in the

property will still be issued enhanced vouchers when the contract

expires." Perhaps most important of all is HUD's statement that

"even if the notices given by the owners were not adequate, HUD

-12-
would still have been compelled by Section 524(d)(1) of MAHRA to

issue enhanced vouchers to all eligible residents . . . on the date

in which the project-based Section 8 contract expired."

PEH does not discuss or explain these statements by HUD.

Instead, PEH calls our attention to one section of a single

paragraph of the document which states, in relevant part, "the

owner will not receive any voucher assistance payments until proper

notice has been provided to the tenants." Read in isolation, this

statement would support PEH's argument. Read in context, however,

it does not. This is because it does not appear that the above

statement was the policy of HUD at the time of the events in

question here. Rather, it seems to us that the statement is a

prediction of a future policy that HUD may adopt. We take this

view because as part of its answer HUD indicated that it was

revising its current policies. Up to the present time, however,

HUD stated that it did not withhold enhanced vouchers as a tool to

force compliance with the Housing Act's notice requirement. This

reading of the answer is consistent with the many other statements

made by HUD throughout the document, as well as this litigation, in

which it claimed that enhanced vouchers have not been denied to

tenants when an owner gave improper notice.

Whether the document is referring to HUD's policy in the

future, or HUD's policy at the time the document was written is of

little consequence. The important point is that the document does

-13-
not show that HUD's policies, as they existed at the time relevant

to this case, prohibited the issuance of enhanced vouchers when an

owner gave improper notice. Simply put, we do not find the new

authority offered by PEH to be persuasive or relevant.

PEH also argues that a guidebook published by HUD

regarding its Section 8 renewal policies demonstrates that HUD is

prohibited from issuing enhanced vouchers when improper notice is

given. The guidebook is dated January, 2001, and therefore was

presumably in effect at the times relevant to this appeal. PEH

focuses on the guidebook's statement that "[i]f proper notification

was not provided . . . HUD/CA will offer the owner a short-term

contract." The guidebook, however, does not say that HUD is

prohibited from issuing enhanced vouchers. Even if it did, HUD

could not use its own guidebook to contravene the clear

Congressional commands, described above, that are contained in the

Housing Act and the MAHRA. See Chevron U.S.A., Inc. v. Natural

Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984) ("The

judiciary is the final authority on issues of statutory

construction and must reject administrative constructions which are

contrary to clear congressional intent.").

In sum, we are unable to find any statutory support for

PEH's argument that HUD was required to extend the HAP contracts

once they expired and that HUD acted improperly in issuing the

-14-
enhanced vouchers to the tenants. The district court's decision to

grant HUD's motion to dismiss is affirmed.

We now turn to the district court's grant of summary

judgment in favor of the Owners on the ground that PEH lacked

standing to pursue its lawsuit once the voluntary restraining order

had been issued and HUD had been dismissed from the case. Before

delving into the law, we stop to note that PEH is the only

appellant. The DTA has not joined in this appeal, although they

were plaintiffs below.

We also briefly pause to address an argument made by the

Owners that PEH waived its arguments as to standing because it

failed to address the issue in its opening brief. It is well

settled in this circuit that issues "adverted to on an appeal in a

perfunctory manner, unaccompanied by some developed argumentation,

are deemed to have been abandoned." Ryan v. Royal Ins. Co. of Am.,

916 F.2d 731, 734 (1st Cir. 1990). After carefully reviewing

PEH's appellate brief, however, we find that PEH sufficiently

briefed the standing issue to warrant consideration of its

arguments. We therefore proceed to the merits.

We review a district court's grant of summary judgment de

novo. See Cotter v. City of Boston, 323 F.3d 160, 166 (2003). In

doing so, we draw all reasonable facts in the light most favorable

to the appellants. See Macone v. Town of Wakefield, 277 F.3d 1, 5

-15-
(1st Cir. 2002). We affirm a grant of summary judgment "only if no

genuine dispute of material fact exists." Id.

Under Article III, § 2 of the Constitution, a party must

have standing to maintain a suit in federal court. See Clinton v.

City of New York, 524 U.S. 417, 429 (1998). Article III standing

"imposes three fairly strict requirements." Munoz-Mendoza v.

Pierce, 711 F.2d 421, 424 (1st Cir. 1983). The third and final

requirement, which is our primary concern in this case, is

redressability. See Vt. Agency of Natural Res. v. United States Ex

Rel. Stevens, 529 U.S. 765, 771 (2000). This means that the

plaintiff must show "a substantial likelihood that the requested

relief will remedy the alleged injury in fact." Id. (citation and

quotation marks omitted).

The party invoking federal jurisdiction, in this case

PEH, bears the burden of proving the elements of standing. See

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231 (1990). The

Supreme Court has explained that the level of proof required

depends on the stage of the proceedings. See Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992). As litigation progresses,

Article III places an increasingly demanding evidentiary burden on

parties that seek to invoke federal jurisdiction. A plaintiff who

has standing at the motion to dismiss stage, does not automatically

have standing at the summary judgment or trial stage. See Lewis v.

Casey, 518 U.S. 343, 358 (1996). Instead, standing is "an

-16-
indispensable part of the plaintiff's case, each element must be

supported . . . with the manner and degree of evidence required at

the successive stages of the litigation." Lujan, 504 U.S. at 561.

This case proceeded beyond the motion to dismiss stage

and ended at the summary judgment stage. By the time it reached

the summary judgment stage, the district court had already issued

a restraining order prohibiting the Owners from evicting the

tenants or raising their rent for one year. The district court had

also dismissed HUD from the litigation. Therefore, the question

before us is whether PEH continued to have standing after these two

important events. More specifically, we are concerned with whether

the relief PEH requested from the district court would remedy its

alleged injuries.

To make this determination it is important to define with

precision PEH's alleged injuries. In its appellate brief, PEH

states that the actions of the Owners caused it to suffer three

injuries. PEH claims that: (1) it was denied an opportunity to

seek preservation alternatives to the contract termination; (2) it

was prevented from providing effective educational assistance to

tenants; and (3) the adverse effects on the affordable housing

market would threaten PEH's ability to locate low cost housing for

its members and clients.

PEH alleges that the injuries it suffered could be

redressed in two ways. First, by the district court setting aside

-17-
the issuance of the enhanced vouchers. Second, by the district

court using its equitable powers to order the Owners to extend the

HAP contracts. We do not agree.

The district court's restraining order redressed PEH's

alleged injuries. By granting a one year notice period, the

district court gave PEH time to "seek preservation alternatives,"

time to convince the owners to change their minds about renewing

the HAP contracts, and time to provide "effective educational

assistance to tenants." There is simply no evidence that

prohibiting HUD from issuing enhanced vouchers would have redressed

PEH's alleged injuries. As for the "adverse effects on the housing

market," this injury is not related to or caused by the Owners'

failure to supply the required notice. Put another way, even if

the Owners had provided adequate notice from the very start, they

could still have chosen not to renew the HAP contracts with HUD.

As we have already explained, the applicable statutes simply do not

require the Owners or HUD to renew the HAP contracts once they

expire. For these reasons, we hold that PEH does not have standing

to pursue its lawsuit because its alleged injuries, to the extent

they can be redressed, have already been remedied by the district

court.

-18-
III. CONCLUSION

The district court's decisions to grant HUD's motion to

dismiss and grant the Owners' motion for summary judgment are

AFFIRMED. So ordered.

-19-