THEODORE HAYES; AQEELA FOGLE, Appellants v. PHILIP E. HARVEY
No. 16-2692
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
August 31, 2018
Argued En Banc on May 16, 2018
PRECEDENTIAL. On Appeal from the United States District Court For the Eastern District of Pennsylvania (D.C. Civ. Action No. 2-15-cv-02617). District Judge: Honorable Nitza I. Quiñones Alejandro. Argued on January 18, 2017 before Merits Panel. Before: SMITH, Chief Judge, MCKEE, AMBRO, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., VANASKIE, SHWARTZ, KRAUSE, RESTREPO, BIBAS, and FISHER, Circuit Judges.
Rachel Garland [Argued], George Gould, Michael Donahue, Community Legal Services, 1424 Chestnut Street, Philadelphia, PA 19102, Counsel for Appellants
Susanna Randazzo [Argued], Kolber & Randazzo, One South Broad Street, Suite 1610, Philadelphia, PA 19107, Counsel for Appellee
Chad A. Readler, Acting Assistant Attorney General, William M. McSwain, United States Attorney, Michael S. Raab, Gerard J. Sinzdak [Argued], United States Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20153, Counsel for Amicus Curiae U.S. Department of Housing and Urban Development
The Honorable D. Michael Fisher assumed senior status on February 1, 2017.
Louis S. Rulli, University of Pennsylvania School of Law, 3501 Sansom Street, Philadelphia, PA 19104
Susanna R. Greenberg, University of Pennsylvania School of Law, 3400 Chestnut Street, Philadelphia, PA 19104, Counsel for Amici Curiae Philadelphia Association of Community Development Corporations, Action-House, Inc., Pennsylvania Legal Aid Network, Philadelphia Legal Assistance, and SeniorLAW Center in Support of Appellants
James R. Grow, National Housing Law Project, 703 Market Street, Suite 200, San Francisco, CA 94103
Daniel Urevick-Ackelsberg, Public Interest Law Center, 1709 Benjamin Franklin Parkway, Floor 2, Philadelphia, PA 19103, Counsel for Amici Curiae National Housing Law Project, Housing Justice Center, and Sargent Shriver National Center on Poverty Law, National Alliance of HUD Tenants, National Housing Trust, Legal Aid Society of New York, Action-Housing, Inc., and Philadelphia Housing Authority in Support of Appellants
Jennifer MacNaughton, City of Philadelphia Law Department, 1515 Arch Street, 17th Floor, Philadelphia, PA 19102, Counsel for Amici Curiae City of Philadelphia and Philadelphia Housing Authority in Support of Appellants
GREENAWAY, JR., Circuit Judge.
The Hayes family receives enhanced voucher rental assistance from the federal government, and a federal statute provides that enhanced voucher holders “may elect to remain” in their housing developments, even after their landlord has opted out of
I. BACKGROUND
A. Statutory and Regulatory Background
In 1974, Congress created the Section 8 housing program “[f]or the purpose of aiding low-income families in obtaining a decent place to live.”
Project-based assistance is tied to specific housing developments or units.
Tenant-based assistance, by contrast, is tied to a specific tenant family and travels with the family if it moves.
Under both project-based and tenant-based assistance, the assisted family contributes a prescribed amount toward the overall rental payment, generally equal to thirty percent of the tenant family‘s monthly “adjusted income” or ten percent of its monthly gross income, whichever is greater.
In the late 1980s, many of the long-term, project-based assistance contracts between property owners and PHAs began to expire. Concerned that property owners would decline to renew the contracts and force low-income tenants out by raising rents to rates that exceeded the statutory payment standard, Congress passed a number of laws intended to protect tenants in the event their landlords converted their subsidized units to normal, market-based housing. Among these measures was a notice requirement enacted as part of the Housing and Community Development Act of 1987. See Pub. L. No. 100-242, § 262(a), 101 Stat. 1815, 1890 (1988) (codified as amended at
Roughly a decade later, as project-based contracts continued to expire, Congress enacted additional tenant protections through creation of the “enhanced voucher” program. See Pub. L. No. 106-74, 113 Stat. 1047, 1109–15, 1121–24 (1999). Whereas the notice requirement protects project-based tenants before their property owner‘s long-term contract with the applicable PHA expires, enhanced vouchers come into play after the notice period has elapsed and the property owner has completed the process of opting out of the project-based assistance program. HUD is statutorily required to provide enhanced vouchers to tenants who had previously been receiving project-based assistance, beginning on the date the owner‘s project-based contract expires and is not renewed, see
Enhanced vouchers are generally governed by the ordinary voucher provision,
during any period that the assisted family continues residing in the same project in which the family was residing on the date of the eligibility event for the project, if the rent for the dwelling unit of the family in such project exceeds the applicable payment standard established pursuant to subsection (o) for the unit, the amount of rental assistance provided on behalf of the family shall be determined using a payment standard that is equal to the rent for the dwelling unit (as such rent may be increased from time-to-time), subject to paragraph 10(A) of subsection (o). . . .
Pub. L. No. 106-74, § 538(a), 113 Stat. at 1122. Thus, unlike ordinary tenant-based and project-based vouchers, enhanced vouchers were designed to cover the difference between the tenant‘s statutorily prescribed rent contribution and the rent amount set by the property owner after opting out of the project-based assistance program, id. § 1437f(t)(1)(B)—which is usually higher than the payment standard that would otherwise apply to ordinary project-based vouchers. Indeed, the rent amount that the owner chooses to charge after opt-out is not subject to any specific limit and can be increased periodically. It need only “be reasonable in comparison with rents charged for comparable dwelling
Aside from the higher payment standard, enhanced vouchers are, in a sense, a hybrid of the two types of ordinary vouchers. Like project-based vouchers, they are tied to the particular project; if the family moves out of that project, their enhanced voucher eligibility terminates. See id.
In 2000, Congress amended the enhanced voucher provision to add the language at the heart of this case. See Pub. L. No. 106-246, § 2801, 114 Stat. 511, 569 (2000) (codified at
the assisted family may elect to remain in the same project in which the family was residing on the date of the eligibility event for the project, and if, during any period the family makes such an election and continues to so reside, the rent for the dwelling unit of the family in such project exceeds the applicable payment standard established pursuant to subsection (o) of this section for the unit, the amount of rental assistance provided on behalf of the family shall be determined using a payment standard that is equal to the rent for the dwelling unit (as such rent may be increased from time-to-time), subject to paragraph 10(A) of subsection (o) of this section and any other reasonable limit prescribed by the Secretary [of HUD], except that a limit shall not be considered reasonable for purposes of this subparagraph if it adversely affects such assisted families . . . .
B. Factual and Procedural Background
In 1982, Florence Hayes and her son Theodore moved into 538B Pine Street, a four-bedroom unit in a duplex built as part of Washington Square East, a project-based Section 8 development located in the Society Hill neighborhood of Philadelphia. A few years later, they were joined by Aqeela Fogle, Florence‘s granddaughter and Theodore‘s niece. Theodore moved out some time in the 1980s before moving back in 2003. Florence and Fogle, however, never left. Florence lived in the unit until her death in 2015. Fogle continues to live there, now with her three minor children.
In early 2008, the then-owners of Washington Square East, Pine Street Associates, decided not to renew their project-based Section 8 contract with the Philadelphia Housing Authority upon its expiration on January 17, 2009. Consistent with federal law, on January 9, 2008, Pine Street Associates notified the tenants of Washington Square East that it would not be renewing the contract. The notification letter explained:
Federal law allows you to elect to continue living at this property provided that the unit, the rent and we, the owner, meet the requirements of the Section 8 tenant-based assistance program. As an owner, we will honor your right as a tenant to remain at the property on this basis as along [sic] as it continues to be offered as rental housing, provided that there is no cause for eviction under Federal, State or local law.
J.A. 636. The Hayes family opted to remain in their unit, and, as a result, they began receiving enhanced voucher assistance after Pine Street Associates’ project-based contract expired in January 2009.
The following year, Pine Street Associates sold a parcel of three duplex houses to Philip Harvey—a parcel that included the Hayes family‘s unit at 538 Pine Street. Harvey subsequently signed a Housing Assistance Payment (“HAP“) contract with the Philadelphia Housing Authority and executed a one-year, Section 8 model lease with Florence Hayes, who at the time was designated head of the Hayes household. The lease listed Florence and Theodore Hayes, Aqeela Fogle, and Fogle‘s three minor children as the family members authorized to live in the unit. The parties renewed the lease in 2011 and 2013 for additional two-year terms, the second of which expired on April 30, 2015.
In February 2015, Florence Hayes passed away, and the Philadelphia Housing Authority transferred the head of household status to Theodore Hayes. Two weeks later, Harvey sent the Hayes family a letter stating that he did not intend to renew their lease when it expired at the end of April, citing Florence Hayes‘s passing and his desire to renovate the unit as reasons for the nonrenewal. Upon expiration of the lease, however, the Hayes family did not vacate the apartment, and on May 1, Harvey sent a second letter reiterating that he would not sign a new lease. In this second letter, Harvey again provided Florence Hayes‘s death and his plan to renovate as reasons for nonrenewal. But Harvey also added a third reason: his intent to move his daughter into the apartment. Harvey concluded the letter by stating that he would initiate eviction proceedings if the family did not move out within five days.
Theodore Hayes and Aqeela Fogle responded by filing suit in the District Court, seeking declaratory relief and an order enjoining Harvey from evicting them. They argued that the enhanced voucher provision provided them with an enforceable right to remain in their unit. As a result, Harvey could not evict the family without cause, and, according to them, Harvey‘s stated reasons did not constitute good cause. Harvey, on the other hand, contended that he was not even bound by the enhanced voucher statute because he had never participated in the project-based program. Alternatively, he argued that the statute did not create a right that was enforceable at the end of a lease term.
The parties filed cross-motions for summary judgment, and the District Court ruled in favor of Harvey. Hayes v. Harvey, 186 F. Supp. 3d 427 (E.D. Pa. 2016). It reasoned that Harvey was bound by the enhanced voucher statute by virtue of the HAP contract and lease that he executed with the Housing Authority and the family, respectively, but that the statute did not require property owners to renew the leases of enhanced voucher holders. Id. at 433–40. Accordingly, Harvey was entitled to initiate proper eviction proceedings if the family did not vacate the premises within a reasonable period of time. Id. at 440. After Hayes and Fogle filed this appeal, however, the District Court issued an injunction prohibiting Harvey from taking any measures to evict while the appeal was pending.
The District Court had jurisdiction under
We exercise plenary review of a district court‘s order granting summary judgment. Goldenstein v. Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). We will affirm if, viewing the evidence in the light most favorable to the nonmoving party, Burns v. Pa. Dep‘t of Corr., 642 F.3d 163, 170 (3d Cir. 2011), we conclude that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,”
III. DISCUSSION
A. The Section 8 Statute‘s Application to Harvey
As a threshold matter, Harvey argues that we should affirm the District Court on an alternative ground. He contends, as he did below, that he is not bound by any of Section 8‘s requirements because he purchased the property free and clear of encumbrances, without any deed restrictions or federal mortgage, and after the previous owner had already opted out of the Section 8 program. We disagree—albeit for different reasons than those provided by the District Court.
The District Court concluded that Harvey was obligated to comply with the program‘s requirements because he was “a party to a tenant-based HAP contract and related lease,” which were “governed by, and subject to, . . . the Section 8 statute.” Hayes, 186 F. Supp. 3d at 433. But nothing in the enhanced voucher provision limits its effect to the original owner. See
B. Enhanced Voucher Holders’ Right to “Elect to Remain”
1. The Statutory Text and History
Turning to whether the enhanced voucher provision requires property owners like Harvey to continuously renew enhanced voucher tenancies, we begin, as we do in all cases involving statutory interpretation, with the statute‘s text. Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016). If the statutory language is unambiguous, our inquiry is ordinarily complete. Id. We do not examine the language in isolation, however. “A statutory provision is not ambiguous simply because ‘by itself, [it is] susceptible to differing constructions.‘” Disabled in Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 210 (3d Cir. 2008) (alteration in original) (quoting In re Price, 370 F.3d 362, 369 (3d Cir. 2004)). Rather, in examining the statutory language, “we take account of ‘the specific context in which that language is used, and the broader context of the statute as a whole.‘” Id. (quoting In re Price, 370 F.3d at 369).
In relevant part, the current version of the enhanced voucher provision states:
[T]he assisted family may elect to remain in the same project in which the family was residing on the date of the eligibility event for the project, and if, during any period the family makes such an election and continues to so reside, the rent for the dwelling unit of the family in such project exceeds the applicable payment standard established pursuant to [the ordinary voucher provision] for the unit, the amount of rental assistance provided on behalf of the family shall be determined using a payment standard that is equal to the rent for the dwelling unit . . . .
We disagree. The plain language of
Importantly,
Likewise, the assisted family‘s right would be meaningless if it were not enforceable at the end of a lease term. Under such an interpretation, the first clause of
This canon is of particular importance where, as is true here, the relevant statutory text at issue was added by amendment. “When Congress amends legislation, courts must ‘presume it intends [the change] to have real and substantial effect.‘” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016) (alteration in original) (quoting Stone v. INS, 514 U.S. 386, 397 (1995)). In this case, the original iteration of
But the very next year, in 2000, Congress replaced the above language with the current version of
According to both the Dissent and the District Court, however, the significance of the 2000 amendment is that it “obligates HUD to provide [tenants] the financial means to afford the increased rent” after their property owners opt out of the project-based program. Dissenting Op. 6; see also Hayes, 186 F. Supp. 3d at 435. Put differently, in the Dissent‘s estimation, the post-amendment version of
The problem with this interpretation—aside from being an implausible reading of the provision‘s plain language—is that eligible families already had an express guarantee that HUD would provide them with enhanced vouchers. A separate provision of the 1999 version of the statute already required HUD to do so. See Pub. L. No. 106-74, § 531(a), 113 Stat. 1047, 1113 (1999) (amending the Multifamily Assisted Housing Reform and Affordability Act of 1997, § 524(d)) (codified as amended at
Thus, neither of the Dissent‘s identified protections needed to be codified in 2000. Because all of the relevant HUD obligations were covered by the 1999 version of the statute, adopting the Dissent‘s construction would require us to conclude that Congress amended the statute in 2000 solely to repeat what the statute and common law already required. Such a conclusion fails to give the 2000 amendment any “real” or “substantial effect.” Ross, 136 S. Ct. at 1858 (quoting Stone, 514 U.S. at 397).
In rejecting our interpretation of the enhanced voucher provision, the District Court also expressed concern about “imposing any continued obligation on the owner to remain in the [Section 8] program” and subjecting the owner to “an
endless or perpetual lease.” Hayes, 186 F. Supp. 3d. at 434-35; see also Dissenting Op. at 2 n.1. Examining the entire statutory scheme in context, however, makes evident that such concern is unwarranted. For one, the statute provides that enhanced vouchers cannot be transferred to “any family other than the original family on behalf of whom the voucher was provided.”
Nothing in the enhanced voucher provision’s “may elect to remain” language abrogates or forecloses application of these standards in the enhanced voucher context. Accordingly, the 2000 amendment to the provision does not reflect congressional intent to subject property owners to perpetual leases. Rather, it evidences congressional desire to strike a balance between the interests of tenants and those of property owners. On the one hand, the enhanced voucher provision permits property owners who comply with the notice provision and opt out of the project-based program to raise rents to rates that exceed the payment standard applicable to ordinary tenant- or project-based vouchers. See
That Congress chose to enact such a compromise is unsurprising given its purpose for creating enhanced vouchers in the first place: “allow[ing] tenants to continue to maintain their homes where the owners of their rental units have raised rents after rejecting the renewal of project-based contracts.” S. Rep. No. 106-161, at 62 (1999). Congress considered this goal “especially . . . important where the tenants [we]re elderly or persons with disabilities . . . [who] want[ed] to age in place.” Id. Then, when Congress amended the enhanced voucher provision in 2000, it did so in order to “clarify[] that assisted families continue to have the right to elect to remain
These stated objectives merely confirm what the statutory text and history already make clear on their own.5 By 6providing that assisted families “may elect to remain in the same project in which the family was residing on the date of the eligibility event,”
2. HUD’s Interpretative Guidance and the Decisions of Other Courts
Even if the enhanced voucher statute’s language were ambiguous, there
Applying Skidmore here, HUD’s interpretation is entitled to considerable weight. As we have already explained, the interpretation that property owners must renew enhanced voucher tenancies unless there is cause to evict is a reasonable one given the language and purpose of the statute. Indeed, we think it is the only interpretation to which
HUD also first announced its position contemporaneously with the 2000 amendment to
Tenants who receive an enhanced voucher have the right to remain in their units as long at [sic] the units are offered for rental housing . . . . Owners may not terminate the tenancy of a tenant who exercises this right to remain except for cause under Federal, State or local law. . . . This protection continues after the first lease term. As long as the property is offered as rental housing, absent good cause to terminate [the] tenancy under Federal, State or local law and provided the PHA continues to find the rent reasonable, owners must continually renew the lease of an enhanced voucher family.
U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal Policy: Guidance for the Renewal of Project-Based Section 8 Contracts, § 11-3-B (Jan. 19, 2001).
In the nearly two decades since, HUD has never altered its interpretation, consistently reiterating the same view in subsequent guidance documents and notices issued to owners and PHAs. See e.g., U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal Policy: Guidance for the Renewal of Project-Based Section 8 HAP Contracts, § 11-3-B (July 28, 2017); U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal Policy: Guidance for the Renewal of Project-Based Section 8 Contracts, § 11-3-B (Nov. 5, 2015); Memorandum from Benjamin T. Metcalf, Deputy Assistant Sec’y for Multifamily Hous. Programs, to Multifamily Project Owners (June 5, 2014); Letter from Michael Dennis, Dir., Office of Hous. Voucher Programs,
Furthermore, HUD’s interpretation is owed considerable weight under Skidmore because of the agency’s “specialized experience” overseeing the complex housing assistance programs, and because of “the value of uniformity” in the management of those nationally applicable programs. De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 349 (3d Cir. 2010) (quoting United States v. Mead, 533 U.S. 218, 234–35 (2001)).
The risk of disuniformity is particularly high here, in fact, because the Ninth Circuit has already embraced HUD’s position. In Park Village Apartment Tenants Association v. Mortimer Howard Trust, 636 F.3d 1150, 1156–57 (9th Cir. 2011), the court held that
In sum, HUD’s interpretation is not entitled to outright deference, but, taking into account the most important considerations under Skidmore, it does warrant considerable weight. The agency’s position is reasonable, longstanding, and consistent, and it was adopted contemporaneously with the relevant amendment of the statute. The agency also has unique experience managing the housing assistance programs, and another circuit has already adopted the agency’s position. Thus, even
C. The Good Cause Requirement and the Resulting Statutory Gap
Our conclusion that
Up to this point, we have yet to focus on one critical question: what constitutes “other good cause” to terminate an enhanced voucher tenancy? Unlike the previous issue regarding the “elect to remain” language, this question presents us with statutory ambiguity, for the Section 8 statute itself does not provide a definition of “other good cause.” We are confronted, then, with a “statutory gap,” and “[f]illing [such] gaps . . . involves difficult policy choices that agencies are better equipped to make than courts.” Nat‘l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 (2005); see also Eid v. Thompson, 740 F.3d 118, 123 (3d Cir. 2014) (“Under the familiar Chevron analysis [i]f . . . the statute is silent or ambiguous with respect to the question at issue, we give ‘controlling weight’ to the agency’s interpretation unless it is ‘arbitrary, capricious, or manifestly contrary to the statute.’” (quoting United States v. Geiser, 527 F.3d 288, 292 (3d Cir. 2008))).
When it comes to ordinary tenant-based and project-based vouchers, HUD has, through regulations, filled the gap. With regard to tenant-based assistance, the agency has determined that good cause
may include, but is not limited to, any of the following examples:
(i) Failure by the family to accept the offer of a new lease or revision;
(ii) A family history of disturbance of neighbors or destruction of property, or of living or housekeeping habits resulting in damage to the unit or premises;
(iii) The owner’s desire to use the unit for personal or family use, or for a purpose other than as a residential rental unit; or
(iv) A business or economic reason for termination of the tenancy (such as sale of the property, renovation of the unit, or desire to lease the unit at a higher rental).
HUD has not, however, promulgated a good cause regulation that governs enhanced vouchers, and it has issued no relevant guidance. In fact, in its pending rulemaking regarding enhanced vouchers, the
Complicating matters further is that the concept of good cause inherently requires a case-by-case inquiry. Indeed, in issuing its good cause regulations, HUD has recognized that “[t]he good cause concept should be flexible,” and that it “should remain open to case by case determination by the courts.” 60 Fed. Reg. 34,660, 34,673 (July 3, 1995) (quoting 49 Fed. Reg. 12,215, 12,233 (Mar. 29, 1984)). The agency therefore stressed that its rule provides “key ‘examples’ of cases that may be good cause, but explicitly states that ‘other good cause’ is not limited to the listed examples.” Id. (emphasis added). In other words, the good cause determination is an inevitably fact-intensive inquiry, as “a comprehensive regulatory definition . . . is neither possible [n]or desirable.” Id. (quoting 49 Fed. Reg. at 12,233).
Here, Harvey provided three different justifications for his nonrenewal of the Hayes family’s lease: (1) Florence Hayes’s death; (2) a plan to renovate the unit; and (3) his desire to move his daughter into the apartment. The District Court did not reach the question of whether any of these justifications were legally sufficient, because it held that Harvey did not need good cause for nonrenewal. As the good cause question may implicate critical, unresolved factual questions, summary judgment is inappropriate at this juncture, because we are unable to conclude that there is no genuine dispute as to any material fact. See
IV. CONCLUSION
For the foregoing reasons, we will reverse the District Court’s order entering judgment in favor of Harvey and remand for further proceedings consistent with this opinion.
FISHER, dissenting.
In the late 1990s, Congress recognized that an increasing number of owners were opting out of project-based assistance contracts, thereby putting hundreds of thousands of units of affordable housing at risk. Because HUD had repeatedly failed to address this opt-out problem, Congress passed legislation designed to compel HUD to act. Enhanced vouchers, which were a part of this legislation, offered property owners a carrot to continue renewing enhanced-voucher tenancies: market-rate rent. With its decision today, the majority takes this carrot and wields it like a stick, holding that property owners must continuously renew enhanced-voucher tenancies because such tenants supposedly have an enforceable “right to remain” in their units beyond the expiration of their lease term. Without any basis in the statutory text or history, the majority has converted Congress’s incentive into an edict. This so-called “right to remain” “may be a good idea, but it was not the idea Congress enacted into law.” MCI Telecomms. Corp. v. Am. Tel. & Tel. Co., 512 U.S. 218, 232 (1994). I respectfully dissent.
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This case turns on the meaning of four words—“may elect to remain”—added to
I. Statutory text
Like the majority, I begin with the statute’s text. Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001). If the “language is plain and unambiguous, further inquiry is not required.” Id. In determining whether the language is “plain and unambiguous,” we examine “the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Id. (quoting Marshak v. Treadwell, 240 F.3d 184, 192 (3d Cir. 2001)). A proper reading of the statute reveals that it is directed not at property owners, but at HUD and assisted tenants, and that the program was designed to incentivize—rather than compel—owners to renew enhanced-voucher tenancies.
The “may elect to remain” language at issue was added to
the assisted family may elect to remain in the same project in which the family was residing on the date of the eligibility event for the project, and if, during any period the family makes such an election and continues to so reside, the rent for the dwelling unit of the family in such project exceeds the applicable payment standard . . . , the amount of rental assistance provided on behalf of the family shall be determined using a payment standard that is equal to the rent for the dwelling unit (as such rent may be increased from time-to-time), subject to paragraph 10(A) of subsection (o) of this section and any other reasonable limit prescribed by the [HUD] Secretary, except that a limit shall not be considered reasonable for purposes of this subparagraph if it adversely affects such assisted families . . . .
The majority bases its sweeping view of the enhanced voucher statute on these four words—“may elect to remain”—which it largely reads in isolation. Indeed, despite repeatedly acknowledging that a statute must be examined in context, the majority never attempts to examine the key four words within the context of the enhanced voucher provision, let alone the “broader context of the statute as a whole.” Rosenberg, 274 F.3d at 141 (quoting Marshak, 240 F.3d at 192). By failing to read these words in context, the majority incorrectly determines that this provision is somehow directed at property owners. Then, based on this incorrect premise, the majority infers a “right to remain” because if an assisted family “may elect to remain,” then that must impose a corresponding obligation on property owners to continuously renew an enhanced-voucher tenancy. There is no basis in the text to support this inferential leap.
The language—“the assisted family may elect to remain”—does not plainly restrict a property owner’s nonrenewal rights. Indeed, nothing in the clause, nor the entire subsection, even mentions property owners. As the majority notes, there are two key verbs: “elect” and “remain.” “Elect” means “to make a selection of . . . to choose . . . especially by preference.” Elect, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/elect (last visited July 31, 2018). “Remain” means “to stay in the same place or with the same person or group.” Remain, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/remain (last visited July 25, 2018). Thus, what this clause plainly states is that an assisted tenant can “make a selection” or “choose” to “stay in the same place.” But for how long? One year? Five years? For life? Choosing to stay is plainly different than having a right or entitlement to stay. The majority, however, conflates the two and infers a corresponding obligation on property owners.
When viewing the language first in the proper context of
What this provision does not do is impose a duty on a landlord to continuously renew such a lease beyond its natural expiration date. The majority infers such a duty, reasoning that otherwise, the family’s choice under the statute would be meaningless. Under the majority’s novel reasoning, a “right” is “meaningless” unless it makes the right-holder’s objective not only possible, but perfectly assured. It follows, I suppose, that if a foundation guarantees a full college scholarship to a high school student, this is “meaningless” because no college is required to offer the student admission. Nonsense. When there are multiple parties involved in a transaction, a guarantee to one party is not meaningless, in any sense, even if it does not bind all parties. The right conferred in
The majority also fails to view the language in the context of the entire statute. If Congress meant to direct any part of the enhanced voucher statute at property owners, it would have done so in unambiguous terms, as it does elsewhere. See
Read in context, these four words—“may elect to remain”—simply cannot bear the weight the majority heaps upon them. As the Supreme Court has noted, Congress “does not alter the fundamental details of a regulatory scheme in
vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.” Whitman v. Am. Trucking Associations, 531 U.S. 457, 468 (2001). Creating a new, enforceable “right to remain,” however, would certainly be an alteration of a “fundamental
The question then becomes: what does “may elect to remain” mean? After all, it must mean something, given that a “statute should be construed to give effect to all its provisions, so that no part will be inoperative or superfluous, void or insignificant.” Corley v. United States, 556 U.S. 303, 314 (2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)). Likewise, “[w]hen Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect.” Stone v. INS, 514 U.S. 386, 397 (1995). The answer is that the language provides enhanced-voucher recipients with a guarantee that they will not be evicted, during their lease term, by a landlord who refuses to accept enhanced vouchers as part of their rental payment. As the Ninth Circuit explained:
The statute gives “assisted families” the right “to remain in the same project.” The statute also authorizes owners to raise their rents to a reasonable market rate and to receive a housing assistance payment, by means of an enhanced voucher, to cover the authorized increases in rent. It does not authorize owners to raise their rents to a reasonable market rate, but then to refuse to accept payment by means of an enhanced voucher, and evict an “assisted family” for nonpayment of rent. Practically, the statute requires owners to permit tenants to remain in the housing complex while paying only their statutorily prescribed portion of the rent.
Park Vill. Apartment Tenants Ass‘n v. Mortimer Howard Tr., 636 F.3d 1150, 1156 (9th Cir. 2011); see also Feemster v. BSA L.P., 548 F.3d 1063, 1069 (D.C. Cir. 2008) (“One thing that [the landlord] may not do, however, is refuse to accept payment by voucher and then contend that eviction is warranted for nonpayment of rent.“). This is a consequential protection; it does not render the language superfluous or meaningless.5 This protection cannot, however, extend in perpetuity beyond the contractual relationship between the landlord and the assisted tenant.
Given that nothing in the enhanced voucher statute speaks to nonrenewal, we must look to the ordinary voucher‘s termination provision, which provides that “during the term of the lease, the owner shall not terminate the tenancy except for 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.”
II. Statutory history
The foregoing analysis of the statutory text is sufficient to conclude that there is no “right to remain” beyond the expiration of the initial lease term. Thus, there is no need to wade into the quagmire of legislative history.6 The majority does, however, and its analysis reflects some of the common pitfalls associated with such an undertaking. I examine the legislative history to highlight those errors, and to show that the history is not only consonant with our interpretation of the statute—it compels it.
Legislative history can sometimes be a useful tool, but it must be deployed with care. Compare Digital Realty Tr., Inc. v. Somers, 138 S. Ct. 767, 783 (2018) (Thomas, J., concurring in part and concurring in the judgment) (noting that the Court‘s attempt to derive a supposed “purpose” from a single Senate Report is flawed, because “[e]ven assuming a majority of Congress read the Senate Report” and “agreed with it,” we must still look at what was actually enacted because “we are a government of laws, not of men“), with id. at 782-83 (Sotomayor, J., concurring) (noting that legislative history can “aid us in our understanding of a law” and that “even when . . . a statute‘s meaning can clearly be discerned from its text, consulting reliable legislative history can still be useful, as it enables us to corroborate and fortify our understanding of the text“).
The point of contention here is the same as in Digital Realty Trust: selective quotation of a limited number of legislative reports to divine Congressional intent, while ignoring more compelling evidence. See Maj. Op. at 23 (citing S. Rep. No. 106-161 (1999), and H.R. Rep. No. 106-521 (2000)). In focusing on these reports, the majority overlooks the overall purpose behind the enhanced voucher provision, and the means by which Congress sought to achieve that purpose. A proper analysis of the statutory history reveals two key points: first, that the enhanced voucher provisions are clearly directed at HUD—not property owners—because of HUD‘s repeated failure to confront the impending opt-out problem; and second, that Congress intended the enhanced voucher provision to act as a market-based tool to incentivize—not force—property owners to renew leases of enhanced voucher holders.
At the outset, I note where I agree with the majority. I agree that one of the main purposes of the enhanced voucher provision was to “allow tenants to continue to maintain their homes where the owners of their rental units have raised rents after rejecting the renewal of project-based contracts.” S. Rep. No. 106-161, at 62 (1999); Maj. Op. at 23. I also agree that this
Although the majority correctly notes Congressional desire to allow tenants to maintain their homes, it wholly ignores another major factor prompting the legislation: Congress was concerned with HUD‘s inaction regarding the looming threat of increasing opt-outs. Section 8 Housing: Hearing Before the Sen. Subcomm. on Hous. and Transp., 106th Cong. (1999), 1999 WL 492964 (written testimony of Rep. Rick Lazio, Chairman, H. Subcomm. Hous. & Cmty.) (explaining that “Congress must act,” because “[f]or the last 18 months, HUD has had broad authority to prevent opt-outs and the loss of affordable housing,” but has failed to act); 145 Cong. Rec. 22850 (majority Staff, Marking up to Market: Renewing Section 8 Contracts and the Problem of Owner “Opt Outs,” June 23, 1999) (noting that “HUD has failed to offer or develop anything resembling a comprehensive approach to solving the opt-out problem,” and that “many in the advocacy community and some legislators expressed belief that encouraging nonrenewals was an intentional policy choice [by HUD].“). Indeed, even the Senate Report the majority cites reveals that, in order to achieve the stated goal of allowing assisted tenants to remain in their homes, Congress was authorizing HUD to act, as opposed to imposing any obligation on landlords. S. Rep. No. 106-161, 62 (“[a]uthoriz[ing] HUD to provide . . . enhanced vouchers” for this purpose, and instructing “HUD [to] make every effort to renew expiring section 8 project-based contracts before making [enhanced] vouchers available”). All of this further suggests that the majority‘s reading of
Next, although the enhanced voucher provision reflects congressional intent to strike a balance between landlords’ and tenants’ interests, the majority imposes a far different balance. Specifically, nothing in the legislative history suggests that Congress ever meant to force owners, like Harvey, to continuously renew enhanced-voucher tenancies, absent good cause to end the lease. Rather, the enhanced voucher program was clearly designed as a market-based solution that would incentivize and encourage owners to continue renewing enhanced-voucher tenancies. See 145 Cong. Rec. 22848 (statement of Rep. Rick Lazio, Chairman, H. Subcomm. Hous. and Cmty.) (“[W]hat we have done with this bill is . . . create the right incentive for owners to ensure the continuity of allowing the seniors, the disabled . . . to continue to live . . . there.“) (emphasis added)7;
Numerous contemporaneous statements corroborate this view of the Section 8 enhanced voucher program. HUD Section 8 opt-out crisis: Hearing before the Subcommittee on Housing and Transportation of the Committee on Banking, Housing, and Urban Affairs, 106th Cong. (July 1, 1999), 1999 WL 492966 (testimony of Sen. John Kerry) (“[T]he new HUD policy largely meets the concerns of the owners of section 8 housing. Now, I ask these owners to hold up their side of the bargain and agree to accept the new, higher rents and stay in the program. I understand that it can be difficult at times to work with HUD. Still, the Department has come far, far more than half way. We should expect the owners to take the last step and continue in the program.“) (emphasis added); see also id. (testimony of William C. Apgar, Assistant Sec. HUD), 1999 WL 492965 (“HUD‘s multifamily subsidies were always intended as market-driven programs dependent on the private sector to provide affordable housing.”).
In other words, Congress identified a problem: HUD‘s failure to act despite the threat of impending opt-outs. To combat this problem, Congress enacted a solution: compelling HUD to make up the difference between what assisted families could pay and market-rate rents. This solution struck the appropriate balance between tenants’ interests and landlords’ interests. This balance, however, never included forcing landlords to continuously renew enhanced-voucher tenancies after the leases expired on their own terms. Rather, the balance was that Congress would compel HUD to provide enhanced vouchers to eligible tenants; this, in turn, provided property owners with the proper incentive—market-rate rent—to continue renewing enhanced-voucher tenancies. Of course, if a property owner decided not to renew an enhanced-voucher tenancy, then nothing in the statute could, or would, require him to do so. After all, an incentive is not an edict.
Admittedly, much of the foregoing discussion pertains to the earlier version of the enhanced voucher statute. But that context is critical, especially given the complete dearth of information regarding the 2000 amendment. Indeed, the only explanation provided for the insertion of the “may elect to remain” language at issue here is that it was added to “clarify[] that assisted families continue to have the right to elect to remain in the same unit of their project if that project is eligible to receive enhanced vouchers.” H.R. Rep. No. 106-521, 42–43 (2000) (emphasis added); see also H.R. Rep. No. 106-710, at 164 (2000) (Conf. Report) (noting that the amendment was intended to “clarif[y] the intent” of the enhanced voucher provision).
This reveals another major flaw in the majority‘s reasoning. Clarify, after all, means “to make understandable,” or “to free of confusion.” Clarify, Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/clarify (last visited July 25, 2018). Thus, according to the legislative history the majority relies on, the purpose of the 2000 amendment was simply to make the 1999 version “understandable”
III. Other considerations
The majority suggests that HUD‘s interpretive guidance, as well as the decisions of other courts, provide further support for its conclusions. I disagree.
Through policy guidance, HUD has purported to extend
Some of the “most important considerations are whether the agency‘s interpretation ‘is consistent and contemporaneous with other pronouncements of the agency.’” Hagans v. Comm‘r of Soc. Sec., 694 F.3d 287, 298 (3d Cir. 2012) (quoting Del. Dep‘t of Nat. Res. & Envtl. Control v. U.S. Army Corps of Eng‘rs, 685 F.3d 259, 284 (3d Cir. 2012)). Admittedly, HUD‘s policy guidance was first issued contemporaneously with the 2000 amendment and has been consistent. In addition, HUD has “relative expertise,” id. at 305, in administering the statutory scheme. But expertise and consistency do not alone require deference. We must also consider whether HUD‘s interpretation “is reasonable given the language and purpose of the [statute],” id. at 304, “the thoroughness evident in [HUD‘s] consideration, the validity of its reasoning . . . and all those factors that give it the power to persuade, if lacking the power to control.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338, 1352 (2015) (quoting Skidmore, 323 U.S. at 140). Here, HUD‘s statement that “[o]wners must continually renew the lease of an enhanced voucher tenancy,” is contained in one paragraph of HUD‘s nearly 200-page Section 8 Renewal Guidebook. HUD Section 8 Renewal Policy, Ch. 11, ¶ 11-3(B) (2017). Nowhere in this guidance does HUD explain the reasoning behind its interpretation, and therefore we cannot discern the thoroughness of its consideration, nor the “validity of its reasoning.” Young, 135 S. Ct at 1352 (quoting Skidmore, 323 U.S. at 140). And, most importantly, HUD‘s interpretation is not supported by the statute‘s text and history. Accordingly, HUD‘s interpretation lacks “the power to persuade.” Id.
Decisions of other courts do not alter this conclusion. I acknowledge that, in the framework of non-binding Skidmore deference, HUD‘s interpretation may be entitled
IV. Conclusion
The proper role of the judiciary is to “apply, not amend, the work of the People‘s representatives.” Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1726 (2017). Today, the majority oversteps that role by crafting an enforceable “right to remain” that finds no support in the statutory text or history. I respectfully dissent.
Notes
Hayes v. Harvey, 874 F.3d 98, 106 n.3 (3d Cir.), reh’g en banc granted, judgment vacated, 878 F.3d 446 (3d Cir. 2017).In our view, through the 2000 amendment Congress intended to make clear that, following a valid opt-out, HUD could not force an assisted family to leave the unit and that the family’s enhanced vouchers must be credited toward their rental obligations. . . . But after a rental agreement naturally expires, so too do the attendant rental obligations. At that point, the statute goes silent. Nothing in its text explicitly or impliedly obligates property owners to continuously renew enhanced-voucher tenancies.