Theodore Hayes and Aqeela Fogle v. Philip E. Harvey

The Hayes family receives enhanced voucher rental

assistance from the federal government, and a federal statute

provides that enhanced voucher holders “may elect to remain”

in their housing developments, even after their landlord has

opted out of the federal housing assistance program. 42 U.S.C.

§ 1437f(t)(1)(B). But the Hayes family’s landlord, Appellee

Philip Harvey, contends that this statutory right to “elect to

remain” does not apply at the end of a lease term. Thus,

according to Harvey, he is permitted to evict the Hayes family

without cause once their lease has expired. The District Court

agreed and granted Harvey’s motion for summary judgment.

We will reverse, however, because the statute’s plain language

and history make evident that enhanced voucher holders may

not be evicted absent good cause, even at the end of a lease

term. We will therefore remand so that the District Court may

5

consider whether Harvey has good cause to evict under the

circumstances of this case.

I. BACKGROUND

A. Statutory and Regulatory Background

In 1974, Congress created the Section 8 housing

program “[f]or the purpose of aiding low-income families in

obtaining a decent place to live.” 42 U.S.C. § 1437f(a);

Housing and Community Development Act of 1974, Pub. L.

No. 93-383, § 201(a), 88 Stat. 633, 662–66 (1974) (amending

the United States Housing Act of 1937) (codified as amended

at 42 U.S.C. § 1437f). The program, which is funded by the

Department of Housing and Urban Development (“HUD”) and

administered by local public housing agencies (“PHAs”), 24

C.F.R. § 982.1(a)(1), generally provides two different types of

rental assistance: “project-based” subsidies and “tenant-based”

subsidies. Id. § 982.1(b)(1).

Project-based assistance is tied to specific housing

developments or units. 42 U.S.C. § 1437f(f)(6); 24 C.F.R.

§ 982.1(b)(1). Owners of such properties enter into long-term

contracts with the applicable PHA, under which the owners

agree to rent their properties to eligible low-income families

and the PHA agrees to provide rental assistance payments to

the owners on behalf of the assisted tenants. See 42 U.S.C.

§ 1437f(b); 24 C.F.R. §§ 983.202, 983.205. The owners then

enter into written leases with particular families for individual

units. See 24 C.F.R. § 983.256.

Tenant-based assistance, by contrast, is tied to a specific

tenant family and travels with the family if it moves. 42 U.S.C.

§ 1437f(f)(7); 24 C.F.R. § 982.1(b). Tenant-based vouchers

6

may be used on rental units anywhere in the United States, so

long as the unit is in the jurisdiction of a PHA that administers

a voucher program. 24 C.F.R. § 982.1(b)(1). Once the assisted

family selects an eligible unit and the applicable PHA approves

the tenancy, the PHA enters into a contract with the property

owner, under which the PHA agrees to make rental assistance

payments to the owner. Id. § 982.1(b)(2). Unlike long-term

PHA contracts for project-based assistance, a PHA contract for

tenant-based assistance can provide for a term as short as one

year, and the contract covers only the single unit and the

particular assisted family. See id. §§ 982.1(b)(2), 982.309(a).

But as with project-based assistance, in addition to the PHA

contract, the property owner also enters into a written lease

with the assisted family. Id. § 982.308(b).

Under both project-based and tenant-based assistance,

the assisted family contributes a prescribed amount toward the

overall rental payment, generally equal to thirty percent of the

tenant family’s monthly “adjusted income” or ten percent of its

monthly gross income, whichever is greater. 42 U.S.C.

§ 1437f(o)(2); see also id. § 1437a(a)(1). The government

pays the balance of the rent amount up to a statutorily capped

amount known as the “payment standard,” which normally

cannot exceed 110 percent of the fair market rental value for

the property, as established by HUD. See id. § 1437f(c),

(o)(1)–(2).

In the late 1980s, many of the long-term, project-based

assistance contracts between property owners and PHAs began

to expire. Concerned that property owners would decline to

renew the contracts and force low-income tenants out by

raising rents to rates that exceeded the statutory payment

standard, Congress passed a number of laws intended to protect

tenants in the event their landlords converted their subsidized

7

units to normal, market-based housing. Among these measures

was a notice requirement enacted as part of the Housing and

Community Development Act of 1987. See Pub L. No. 100-

242, § 262(a), 101 Stat. 1815, 1890 (1988) (codified as

amended at 42 U.S.C. § 1437f(c)(8)). In its present iteration,

this measure requires that owners provide tenants and HUD

with at least one year’s notice before opting out of their projectbased

assistance contracts. 42 U.S.C. § 1437f(c)(8)(A).

Owners “may not evict the tenants or increase the tenants’ rent

payment until” the one-year period has elapsed. Id.

§ 1437f(c)(8)(B).

Roughly a decade later, as project-based contracts

continued to expire, Congress enacted additional tenant

protections through creation of the “enhanced voucher”

program. See Pub L. No. 106-74, 113 Stat. 1047, 1109–15,

1121–24 (1999). Whereas the notice requirement protects

project-based tenants before their property owner’s long-term

contract with the applicable PHA expires, enhanced vouchers

come into play after the notice period has elapsed and the

property owner has completed the process of opting out of the

project-based assistance program. HUD is statutorily required

to provide enhanced vouchers to tenants who had previously

been receiving project-based assistance, beginning on the date

the owner’s project-based contract expires and is not renewed,

see 42 U.S.C. § 1437f note—a date that the statute refers to as

the “eligibility event,” id. § 1437f(t)(2).

Enhanced vouchers are generally governed by the

ordinary voucher provision, 42 U.S.C. § 1437f(o), except

where modified by the enhanced voucher provision, § 1437f(t).

See 42 U.S.C. § 1437f(t)(1). As originally passed in 1999, the

enhanced voucher provision stated that

8

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-totime),

subject to paragraph 10(A) of subsection

(o) . . . .

Pub L. No. 106-74, § 538(a), 113 Stat. at 1122. Thus, unlike

ordinary tenant-based and project-based vouchers, enhanced

vouchers were designed to cover the difference between the

tenant’s statutorily prescribed rent contribution and the rent

amount set by the property owner after opting out of the

project-based assistance program, id. § 1437f(t)(1)(B)—which

is usually higher than the payment standard that would

otherwise apply to ordinary project-based vouchers. Indeed,

the rent amount that the owner chooses to charge after opt-out

is not subject to any specific limit and can be increased

periodically. It need only “be reasonable in comparison with

rents charged for comparable dwelling units in the private,

unassisted local market.” Id. § 1437f(o)(10)(A).

Aside from the higher payment standard, enhanced

vouchers are, in a sense, a hybrid of the two types of ordinary

vouchers. Like project-based vouchers, they are tied to the

particular project; if the family moves out of that project, their

enhanced voucher eligibility terminates. See id.

§ 1437f(t)(1)(C)(i). Like tenant-based vouchers, enhanced

9

vouchers are tied to the particular assisted family; if the family

attempts to transfer the voucher to a third party who was not

residing in the unit on the date of the eligibility event, the

family’s enhanced voucher eligibility, again, terminates, and

the payment standard for the unit is determined pursuant to the

ordinary voucher provision. Id. § 1437f(t)(1)(C)(ii).

In 2000, Congress amended the enhanced voucher

provision to add the language at the heart of this case. See Pub

L. No. 106-246, § 2801, 114 Stat. 511, 569 (2000) (codified at

42 U.S.C. § 1437f(t)(1)(B)). Importantly, the first clause of the

provision was changed, and as a result, the provision in its

current form now states that

the assisted family may elect to remain in the

same project in which the family was residing on

the date of the eligibility event for the project, and

if, during any period the family makes such an

election and continues to so reside, the rent for

the dwelling unit of the family in such project

exceeds the applicable payment standard

established pursuant to subsection (o) of this

section for the unit, the amount of rental

assistance provided on behalf of the family shall

be determined using a payment standard that is

equal to the rent for the dwelling unit (as such rent

may be increased from time-to-time), subject to

paragraph 10(A) of subsection (o) of this section

and any other reasonable limit prescribed by the

Secretary [of HUD], except that a limit shall not

be considered reasonable for purposes of this

subparagraph if it adversely affects such assisted

families . . . .

10

42 U.S.C. § 1437f(t)(1)(B) (emphasis added).1

B. Factual and Procedural Background

In 1982, Florence Hayes and her son Theodore moved

into 538B Pine Street, a four-bedroom unit in a duplex built as

part of Washington Square East, a project-based Section 8

development located in the Society Hill neighborhood of

Philadelphia. A few years later, they were joined by Aqeela

Fogle, Florence’s granddaughter and Theodore’s niece.

Theodore moved out some time in the 1980s before moving

back in 2003. Florence and Fogle, however, never left.

Florence lived in the unit until her death in 2015. Fogle

continues to live there, now with her three minor children.

In early 2008, the then-owners of Washington Square

East, Pine Street Associates, decided not to renew their projectbased

Section 8 contract with the Philadelphia Housing

Authority upon its expiration on January 17, 2009. Consistent

with federal law, on January 9, 2008, Pine Street Associates

notified the tenants of Washington Square East that it would

not be renewing the contract. The notification letter explained:

1 The final two clauses of the provision were also added

in 2000, through two subsequent amendments. See Pub. L. No.

106-377, § 1(a)(1), 114 Stat. 1441, 1441A-24 (Oct. 27, 2000)

(inserting “and any other reasonable limit prescribed by the

Secretary”); Pub L. No. 106-569, § 903(a), 114 Stat. 2944,

3026 (Dec. 27, 2000) (inserting “except that a limit shall not

be considered reasonable for purposes of this subparagraph if

it adversely affects such assisted families”).

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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

12

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

13

appeal, however, the District Court issued an injunction

prohibiting Harvey from taking any measures to evict while the

appeal was pending.

II. JURISDICTION & STANDARD OF REVIEW

The District Court had jurisdiction under 28 U.S.C.

§ 1331. We have jurisdiction under 28 U.S.C. § 1291—with

one caveat. While this appeal was pending, Theodore Hayes

moved out of 538B Pine Street. Because he no longer has “a

legally cognizable interest in the outcome” of the case, his

claims are moot and we lack jurisdiction over them. United

Steel Paper & Forestry Rubber Mfg. Allied Indus. & Serv.

Workers Int’l Union v. Virgin Islands, 842 F.3d 201, 208 (3d

Cir. 2016) (quoting Cty. of Los Angeles v. Davis, 440 U.S. 625,

631 (1979)). Aqeela Fogle still lives in the unit with her three

children, though. She has been processed as the new head of

household and continues to be eligible to receive enhanced

voucher assistance, because she resided in the unit on the date

of the eligibility event, see 42 U.S.C. § 1437f(t)(1). As a result,

Fogle continues to have a concrete interest at stake, and an

“occasion for meaningful relief” continues to exist. United

Steel Paper, 842 F.3d at 208 (quoting Rendell v. Rumsfeld, 484

F.3d 236, 240 (3d Cir. 2007)). We therefore have jurisdiction

over her claims, which are the same as those that were asserted

by Hayes.

We exercise plenary review of a district court’s order

granting summary judgment. Goldenstein v. Repossessors

Inc., 815 F.3d 142, 146 (3d Cir. 2016). We will affirm if,

viewing the evidence in the light most favorable to the

nonmoving party, Burns v. Pa. Dep’t of Corr., 642 F.3d 163,

170 (3d Cir. 2011), we conclude that “there is no genuine

14

dispute as to any material fact and the movant is entitled to

judgment as a matter of law,” Fed. R. Civ. P. 56(a).

III. DISCUSSION

A. The Section 8 Statute’s Application to Harvey

As a threshold matter, Harvey argues that we should

affirm the District Court on an alternative ground. He

contends, as he did below, that he is not bound by any of

Section 8’s requirements because he purchased the property

free and clear of encumbrances, without any deed restrictions

or federal mortgage, and after the previous owner had already

opted out of the Section 8 program. We disagree—albeit for

different reasons than those provided by the District Court.

The District Court concluded that Harvey was obligated

to comply with the program’s requirements because he was “a

party to a tenant-based HAP contract and related lease,” which

were “governed by, and subject to, . . . the Section 8 statute.”

Hayes, 186 F. Supp. 3d at 433. But nothing in the enhanced

voucher provision limits its effect to the original owner. See

42 U.S.C. § 1437f(t). Indeed, § 1437f(t)(1)(C) provides only

two conditions under which enhanced voucher eligibility

terminates: when the family moves and when the voucher is

used by someone other than the original family. Neither

involves the opt-out owner’s sale of the property. Although

the Section 8 scheme is generally administered through the use

of contracts and leases, nothing in the statute itself conditions

its effect in all circumstances on common law devices.

Accordingly, the enhanced voucher provision applies even to

landlords who choose not to enter into HAP contracts. See

Park Vill. Apartment Tenants Ass’n v. Mortimer Howard Tr.,

636 F.3d 1150, 1161–62 (9th Cir. 2011) (holding that property

15

owners must respect eligible tenants’ statutory right to elect to

remain even if they choose not to execute a HAP contract,

thereby foregoing fair market rent via enhanced vouchers).

Here, of course, Harvey did enter into a HAP contract

and lease, but that is of no moment for our present purposes.

Harvey purchased a former project-based Section 8 property,

where enhanced voucher tenants are currently residing. By

virtue of those facts alone, he falls within the scope of the

Section 8 statute.2

B. Enhanced Voucher Holders’ Right to “Elect to

Remain”

1. The Statutory Text and History

Turning to whether the enhanced voucher provision

requires property owners like Harvey to continuously renew

2 Relatedly, Harvey argues that, irrespective of any

tenant protections the Section 8 statute may provide, provisions

of the HAP contract and lease permit him to evict the Hayes

family pursuant to Pennsylvania law. We need not examine

the validity of this argument, because even if Harvey is correct

as a matter of state law, “[t]he Supremacy Clause preempts any

state law that ‘interferes with or is contrary to federal law.’”

Zahner v. Pa. Dep’t of Human Servs., 802 F.3d 497, 512 (3d

Cir. 2015) (quoting Free v. Bland, 369 U.S. 663, 666 (1962)).

Thus, if the enhanced voucher provision provides eligible

families a right to elect to remain that is enforceable against

property owners at the end of a lease term, it would preempt

the application, in this case, of any principles of Pennsylvania

law that permit nonrenewal without cause.

16

enhanced voucher tenancies, we begin, as we do in all cases

involving statutory interpretation, with the statute’s text. Doe

v. Hesketh, 828 F.3d 159, 167 (3d Cir. 2016). If the statutory

language is unambiguous, our inquiry is ordinarily complete.

Id. We do not examine the language in isolation, however. “A

statutory provision is not ambiguous simply because ‘by itself,

[it is] susceptible to differing constructions.’” Disabled in

Action of Pa. v. Se. Pa. Transp. Auth., 539 F.3d 199, 210 (3d

Cir. 2008) (alteration in original) (quoting In re Price, 370 F.3d

362, 369 (3d Cir. 2004)). Rather, in examining the statutory

language, “we take account of ‘the specific context in which

that language is used, and the broader context of the statute as

a whole.’” Id. (quoting In re Price, 370 F.3d at 369).

In relevant part, the current version of the enhanced

voucher provision states:

[T]he assisted family may elect to remain in the

same project in which the family was residing on

the date of the eligibility event for the project,

and if, during any period the family makes such

an election and continues to so reside, the rent for

the dwelling unit of the family in such project

exceeds the applicable payment standard

established pursuant to [the ordinary voucher

provision] for the unit, the amount of rental

assistance provided on behalf of the family shall

be determined using a payment standard that is

equal to the rent for the dwelling unit . . . .

42 U.S.C. § 1437f(t)(1)(B). The District Court held that this

provision does not impose any obligations on property owners.

See Hayes, 186 F. Supp. 3d at 435. Instead, according to the

District Court, the provision merely “authorizes and requires

17

the [HUD] Secretary to provide a tenant who wishes to remain

in a rental housing unit additional rental assistance.” Id. Thus,

in the District Court’s view, the enhanced voucher provision

does not grant eligible tenants any right enforceable against

their landlords—much less one that applies at the end of a lease

term.

We disagree. The plain language of § 1437f(t)(1)(B)’s

first clause, read in the context that it is used, does in fact

provide enhanced voucher holders with a right that is

enforceable against their landlords such that tenants may be

evicted only for cause, even at the end of a lease term. The

remainder of the provision, which is not at issue in this suit,

then establishes a higher payment standard applicable when

voucher holders exercise that right.

Importantly, § 1437f(t)(1)(B)’s first clause is written

from the tenant’s perspective, and it includes two verbs. The

first is “elect,” which means “to choose (a course of action)

[especially] by preference.” Webster’s Third New

International Dictionary 731 (1976). The second is “remain,”

meaning “to stay in the same place or with the same person or

group.” Id. at 1919. This right to “choose . . . by preference”

to “stay in the same place” is not limited to any particular time

period, and it is not directed to only HUD or any other specific

party. Thus, the assisted family’s right necessarily limits the

ability of the property owner to evict. If a landlord could

simply ignore an eligible family’s choice to stay and force them

to leave, the statutory right would be meaningless.

Likewise, the assisted family’s right would be

meaningless if it were not enforceable at the end of a lease

term. Under such an interpretation, the first clause of

§ 1437f(t)(1)(B) would simply reflect the baseline conditions

18

of landlord-tenant relations: During the term of their lease,

tenants generally may not be evicted, absent some reason

enumerated in the lease or authorized by law; at the end of their

lease term, tenants may seek to renew their leases, as long as

their landlords agree to do so. Thus, if enhanced voucher

holders’ right to “elect to remain” limited property owners’

rights during only the lease term, the first clause of the

provision would have no independent meaning; it would

describe what was already true. It is, however, a wellestablished

canon of statutory interpretation that “statutes

should be read to avoid making any provision ‘superfluous,

void, or insignificant.’” Milner v. Dep’t of the Navy, 562 U.S.

562, 575 (2011) (quoting TRW Inc. v. Andrews, 534 U.S. 19,

31 (2001)).

This canon is of particular importance where, as is true

here, the relevant statutory text at issue was added by

amendment. “When Congress amends legislation, courts must

‘presume it intends [the change] to have real and substantial

effect.’” Ross v. Blake, 136 S. Ct. 1850, 1858 (2016)

(alteration in original) (quoting Stone v. INS, 514 U.S. 386, 397

(1995)). In this case, the original iteration of § 1437f(t)(1)(B),

enacted in 1999, did not include the first clause providing that

eligible families “may elect to remain.” It instead provided that

the higher payment standard would apply “during any period

that the assisted family continues residing in the same project

in which the family was residing on the date of the eligibility

event for the project.” Pub. L. No. 106-74, § 538(a), 113 Stat.

1047, 1122 (1999). In other words, the 1999 version of the

provision did not alter the baseline conditions of landlordtenant

relations. At the end of a lease term, it stated only that

HUD would provide (through the applicable PHA) any

additional required financial assistance if the assisted family

19

sought to remain in the unit and the property owner allowed

the family to do so by agreeing to renew their lease.

But the very next year, in 2000, Congress replaced the

above language with the current version of § 1437f(t)(1)(B)’s

first clause, stating that “the assisted family may elect to

remain in the same project in which the family was residing on

the date of the eligibility event.” Pub. L. No. 106-246, § 2801,

114 Stat. 511, 569 (2000). Our interpretation must effectuate

that change, for it simply is not plausible that Congress

amended the statute within one year of its initial enactment

merely to set the scene differently. By providing that eligible

families “may elect to remain,” Congress must have given

those families some right that they did not enjoy previously—

a right to choose to stay that their landlords must accept by

continually renewing their leases.

According to both the Dissent and the District Court,

however, the significance of the 2000 amendment is that it

“obligates HUD to provide [tenants] the financial means to

afford the increased rent” after their property owners opt out of

the project-based program. Dissenting Op. 6; see also Hayes,

186 F. Supp. 3d at 435. Put differently, in the Dissent’s

estimation, the post-amendment version of § 1437f(t)(1)(B)

provides two different protections: “[i]t not only protects

against an early [lease] termination following an opt-out, but it

also explicitly provides eligible enhanced-voucher tenants with

a guarantee that HUD will provide them with an enhanced

voucher.” Dissenting Op. at 9 n.5.

The problem with this interpretation—aside from being

an implausible reading of the provision’s plain language—is

that eligible families already had an express guarantee that

HUD would provide them with enhanced vouchers. A separate

20

provision of the 1999 version of the statute already required

HUD to do so. See Pub. L. No. 106-74, § 531(a), 113 Stat.

1047, 1113 (1999) (amending the Multifamily Assisted

Housing Reform and Affordability Act of 1997, § 524(d))

(codified as amended at 42 U.S.C. § 1437f note) (“In the case

of a contract for project-based assistance under section 8 for a

covered project that is not renewed . . . , upon the date of the

expiration of such contract, the [HUD] Secretary shall make

enhanced voucher assistance . . . available on behalf of each

low-income family who, upon the date of such expiration, is

residing in an assisted dwelling unit in the covered project.”).

With respect to the other protection identified by the Dissent,

enhanced voucher families were also already shielded from

“early termination following an opt-out.” Dissenting Op. at 9

n.5. As we said above, a property owner generally may not

terminate a lease and evict a tenant during the lease term,

absent some reason enumerated in the lease or authorized by

law. That is the baseline condition of the landlord-tenant

relationship.

Thus, neither of the Dissent’s identified protections

needed to be codified in 2000. Because all of the relevant HUD

obligations were covered by the 1999 version of the statute,

adopting the Dissent’s construction would require us to

conclude that Congress amended the statute in 2000 solely to

repeat what the statute and common law already required.

Such a conclusion fails to give the 2000 amendment any “real”

or “substantial effect.” Ross, 136 S. Ct. at 1858 (quoting Stone,

514 U.S. at 397).

In rejecting our interpretation of the enhanced voucher

provision, the District Court also expressed concern about

“imposing any continued obligation on the owner to remain in

the [Section 8] program” and subjecting the owner to “an

21

endless or perpetual lease.” Hayes, 186 F. Supp. 3d. at 434–

35; see also Dissenting Op. at 2 n.1. Examining the entire

statutory scheme in context, however, makes evident that such

concern is unwarranted. For one, the statute provides that

enhanced vouchers cannot be transferred to “any family other

than the original family on behalf of whom the voucher was

provided.” 42 U.S.C. § 1437f(t)(1)(C)(ii).3 Additionally, any

existing lease agreement or HAP contract will provide grounds

for eviction. Indeed, leases for enhanced voucher tenancies are

statutorily required to include a “good cause” eviction clause.

12 U.S.C. § 1715z-1b(b)(3). Further, regardless of whether a

lease or HAP contract is in effect, the statutory provisions and

regulations governing ordinary vouchers generally apply to the

enhanced voucher program. See 42 U.S.C. § 1437f(t)(1).

Thus, § 1437f(o)(7)(C), from the ordinary voucher subsection,

applies and allows property owners to, at any time, terminate

enhanced voucher tenancies “for serious or repeated violation

of the terms and conditions of the lease, for violation of

applicable Federal, State, or local law, or for other good

cause.”4

3 That is not to say the right to elect to remain may be

transferred among, or passed down in perpetuity to,

generations of family members. Rather, as conceded by the

Hayes family and confirmed by HUD, “original family” means

only those family members on the lease at the time of the

eligibility event. Audio of Oral Arg. at 14:39-16:30; 50:25-

50:50.

4 That § 1437f(o)(7)(C) uses the phrase “during the term

of the lease” does not make the subsection’s termination

conditions inapplicable to enhanced voucher tenancies.

Subsection (o)(7)(C) includes the “during the term of the lease”

22

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 tenantor

project-based vouchers. See 42 U.S.C. § 1437f(t)(1)(B). On

the other hand, the enhanced voucher provision places a

limitation on those property owners’ nonrenewal rights by

requiring good cause before the owners may terminate a

language because ordinary, tenant-based voucher holders

possess no right to elect to remain in their unit at the end of a

lease term. Therefore, in the context of ordinary vouchers, the

need for cause only exists “during the term of the lease.” But

because the enhanced voucher statute provides a right to “elect

to remain,” the requirements of § 1437f(o)(7)(C) apply to

enhanced vouchers not only during the lease term, but also at

the end of the term. This interpretation of the statutory scheme

is consistent with § 1437f(t)(1), which, as previously

explained, states that enhanced vouchers are governed by the

ordinary voucher provision, except where modified by the

enhanced voucher provision. In this context, the enhanced

voucher provision modifies when the requirements of

subsection (o)(7)(C) apply—that is, both during the term of the

lease and at the end of the lease term—but it does not change

the requirements themselves.

23

tenancy. But for each owner, the number of tenancies to which

the enhanced voucher good cause requirement applies will be

fixed and relatively small, because enhanced vouchers are

available to only families who were receiving project-based

assistance on the date of the eligibility event, see 42 U.S.C.

§ 1437f(t)(1)(C), (t)(2).

That Congress chose to enact such a compromise is

unsurprising given its purpose for creating enhanced vouchers

in the first place: “allow[ing] tenants to continue to maintain

their homes where the owners of their rental units have raised

rents after rejecting the renewal of project-based contracts.” S.

Rep. No. 106-161, at 62 (1999). Congress considered this goal

“especially . . . important where the tenants [we]re elderly or

persons with disabilities . . . [who] want[ed] to age in place.”

Id. Then, when Congress amended the enhanced voucher

provision in 2000, it did so in order to “clarify[] that assisted

families continue to have the right to elect to remain in the

same unit of their project if that project is eligible to receive

enhanced vouchers.” H.R. Rep. No. 106-521, at 42–43 (2000);

see also H.R. Rep. No. 106-710, at 164 (2000) (Conf. Report)

(stating that amendment was meant to “clarify[] the intent” of

the enhanced voucher provision).

These stated objectives merely confirm what the

statutory text and history already make clear on their own.5 By

5 After cautioning that “there is no need to wade into the

quagmire of legislative history” here, Dissenting Op. at 10, the

Dissent itself is ironically the one that pins its hopes on

legislative history. As we have explained, the plain language

of § 1437f(t)(1)(B), when read in the context it is used, is alone

sufficient to conclude that the District Court must be reversed.

That said, it is true that “[w]hen the statutory language is

24

providing that assisted families “may elect to remain in the

same project in which the family was residing on the date of

the eligibility event,” 42 U.S.C. § 1437f(t)(1)(B), Congress

intended to grant enhanced voucher tenants a right to choose to

stay in their housing developments such that their landlords

unambiguous . . . we ordinarily do not consider statutory

purpose or legislative history.” Hesketh, 828 F.3d at 167.

Here, we include a brief discussion of purpose and legislative

history solely to demonstrate why Congress would have chosen

to enact this particular language—to show that this is not a case

where “literal application of the statute will produce a result

demonstrably at odds with the intention of its drafters.” Id.

(quoting In re Segal, 57 F.3d 342, 346 (3d Cir. 1995)).

The Dissent, on the other hand, leans heavily on the use

of the word “clarify[]” in two committee reports—both of

which we cite above—to conclude that the 2000 amendment

was not meant to “substantively change” anything in the

statute. Dissenting Op. at 16. Indeed, aside from those two

reports, the legislative history the Dissent references relates to

the 1999 statute, which we concede did not require property

owners to renew the leases of enhanced voucher tenants. Thus,

those two committee reports appear to form the keystone of the

Dissent’s contention that the 2000 amendment was intended to

merely restate what the 1999 statute already required. In cases

like this, however, where the statutory language is

unambiguous, we require far more than a single word used in

two committee reports before we depart from the general

presumption that “[w]hen Congress amends legislation, . . . it

intends [the change] to have real and substantial effect.’” Ross,

136 S. Ct. at 1858 (last alteration in original) (quoting Stone,

514 U.S. at 397).

25

may not evict them without cause, even at the end of a lease

term. In other words, the statutory language, when read in

context, is unambiguous, and it forecloses the District Court’s

interpretation.6 Absent good cause, Harvey must renew the

Hayes family’s lease.

2. HUD’s Interpretative Guidance and the

Decisions of Other Courts

Even if the enhanced voucher statute’s language were

ambiguous, there would be an additional reason to reverse the

District Court: through various guidance documents, HUD has

6 We acknowledge that the right to elect to remain is

tied, not to the particular unit, but to the “same project in which

the family was residing on the date of the eligibility event.” 42

U.S.C. § 1437f(t)(1)(B) (emphasis added). One would think,

then, that at least under certain circumstances, property owners

could arrange for an enhanced voucher family to move to

another unit in the “same project” and still be in compliance

with § 1437f(t)(1)(B). Here, however, Harvey has not

expressed a willingness to permit the Hayes family to move

into another one of his apartments on Pine Street, so we need

not address the question, and for practical purposes of this case,

the inquiry is whether Harvey may evict the family from this

particular unit without cause. For the reasons we have just

provided, we conclude that he may not. We note too that this

case does not present the question of whether the right to elect

to remain survives a downstream sale of a unit that ceases to

be part of a “multifamily housing project,” defined as

“consist[ing] of not less than five dwelling units on one site,”

24 C.F.R. § 241.500(d), because Harvey purchased three

contiguous duplex houses, or six units.

26

long interpreted § 1437f(t)(1)(B) as requiring landlords to

renew the leases of enhanced voucher holders unless there is

good cause to terminate the tenancy. Because these guidance

documents lack the force of law, they do not warrant deference

under Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc., 467 U.S. 837 (1984); they are, however, entitled

to a degree of “respect” under Skidmore v. Swift & Co., 323

U.S. 134 (1944). Hagans v. Comm’r of Soc. Sec., 694 F.3d

287, 298 (3d Cir. 2012) (quoting Christensen v. Harris Cty.,

529 U.S. 576, 587 (2000)). The Skidmore framework is a

“sliding scale” approach, id. at 304, which “requires a court to

assign a weight to an [agency interpretation] based on ‘the

thoroughness evident in its consideration, the validity of its

reasoning, its consistency with earlier and later

pronouncements, and all those factors which give it power to

persuade, if lacking power to control,’” id. at 295 (quoting

Skidmore, 323 U.S. at 140). “‘[T]he most important

considerations are whether the agency’s interpretation ‘is

consistent and contemporaneous with other pronouncements of

the agency and whether it is reasonable given the language and

purpose of the Act.’” Id. at 304 (quoting Del. Dep’t of Nat.

Res. & Envtl. Control v. U.S. Army Corps of Eng’rs, 685 F.3d

259, 284 (3d Cir. 2012)).

Applying Skidmore here, HUD’s interpretation is

entitled to considerable weight. As we have already explained,

the interpretation that property owners must renew enhanced

voucher tenancies unless there is cause to evict is a reasonable

one given the language and purpose of the statute. Indeed, we

think it is the only interpretation to which § 1437f(t)(1)(B) is

susceptible, but if it were not, it would certainly be a reasonable

construction of the provision.

27

HUD also first announced its position

contemporaneously with the 2000 amendment to

§ 1437f(t)(1)(B). The agency’s Section 8 Renewal Policy

Guidance Document published in January 2001 provided:

Tenants who receive an enhanced voucher have

the right to remain in their units as long at [sic]

the units are offered for rental housing . . . .

Owners may not terminate the tenancy of a

tenant who exercises this right to remain except

for cause under Federal, State or local law. . . .

This protection continues after the first lease

term. As long as the property is offered as rental

housing, absent good cause to terminate [the]

tenancy under Federal, State or local law and

provided the PHA continues to find the rent

reasonable, owners must continually renew the

lease of an enhanced voucher family.

U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal Policy:

Guidance for the Renewal of Project-Based Section 8

Contracts, § 11-3-B (Jan. 19, 2001).

In the nearly two decades since, HUD has never altered

its interpretation, consistently reiterating the same view in

subsequent guidance documents and notices issued to owners

and PHAs. See e.g., U.S. Dep’t of Hous. & Urban Dev.,

Section 8 Renewal Policy: Guidance for the Renewal of

Project-Based Section 8 HAP Contracts, § 11-3-B (July 28,

2017); U.S. Dep’t of Hous. & Urban Dev., Section 8 Renewal

Policy: Guidance for the Renewal of Project-Based Section 8

Contracts, § 11-3-B (Nov. 5, 2015); Memorandum from

Benjamin T. Metfcalf, Deputy Assistant Sec’y for Multifamily

Hous. Programs, to Multifamily Project Owners (June 5,

28

2014); Letter from Michael Dennis, Dir., Office of Hous.

Voucher Programs, to Exec. Dirs., Public Hous. Agencies

(May 22, 2014); U.S. Dep’t of Hous. & Urban Dev., Section 8

Renewal Policy: Guidance for the Renewal of Project-Based

Section 8 Contracts, § 11-3-B (Feb. 15, 2008) [hereinafter

2008 HUD Renewal Guide]. Indeed, rather than altering its

position, HUD has sought to codify its interpretation through

notice-and-comment rulemaking. See Tenant-Based

Assistance: Enhanced Vouchers, 81 Fed. Reg. 74,372, 74,374–

75 (Proposed Oct. 26, 2016). That proposed regulation

remains pending.7

7 Over the years, the agency has expressed the same

view in court filings as well, including an amicus brief filed in

this case. See Br. for U.S. Dep’t of Hous. & Urban Dev. as

Amicus Curiae at 11 (“Since § 1437f(t)(1)(B) was enacted in

its current form in 2000, HUD has interpreted the provision as

providing enhanced voucher tenants with a right to remain in

their housing units, such that they may not be evicted at the end

of a lease term absent good cause (assuming the relevant units

continue to be offered as rental housing and remain otherwise

eligible for rental assistance).”); see also Br. for the United

States as Amicus Curiae at 9 & n.4, Barrientos v. 1801-1825

Morton LLC, 583 F.3d 1197 (9th Cir. 2009) (No. 07-56697).

That amicus brief is itself entitled to respect under Skidmore,

“to the extent [it] ha[s] the power to persuade.” Shuker v. Smith

& Nephew, PLC, 885 F.3d 760, 773 n.11 (3d Cir. 2018)

(quoting Sikkelee v. Precision Airmotive Corp., 822 F.3d 680,

693–94 (3d Cir. 2016)).

29

Furthermore, HUD’s interpretation is owed

considerable weight under Skidmore because of the agency’s

“specialized experience” overseeing the complex housing

assistance programs, and because of “the value of uniformity”

in the management of those nationally applicable programs.

De Leon-Ochoa v. Att’y Gen., 622 F.3d 341, 349 (3d Cir. 2010)

(quoting United States v. Mead, 533 U.S. 218, 234–35 (2001)).

The risk of disuniformity is particularly high here, in

fact, because the Ninth Circuit has already embraced HUD’s

position. In Park Village Apartment Tenants Association v.

Mortimer Howard Trust, 636 F.3d 1150, 1156–57 (9th Cir.

2011), the court held that § 1437f(t)(1)(B) provides enhanced

voucher holders a right to elect to remain that is exercisable

against property owners, such that, “absent just cause for

eviction,” owners are “require[d] . . . to permit tenants to

remain in the housing complex while paying only their

statutorily prescribed portion of the rent.” The attempted

eviction in Park Village did not take place at the end of the

lease term, so the Ninth Circuit had no need to expressly

address property owners’ nonrenewal rights, but nothing in the

court’s opinion limits § 1437f(t)(1)(B)’s application to lease

terms. To the contrary, the court explicitly concluded that

HUD’s stance that “owners must continually renew the lease

of an enhanced voucher family, absent good cause to terminate

[the] tenancy,” id. at 1157 (quoting 2008 HUD Renewal

Guide) (internal quotation marks omitted), was “entitled to a

measure of respect” under the Skidmore framework, id.

(quoting Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197,

1214 (9th Cir. 2009)). Thus, if we were to reject HUD’s

position here and affirm the District Court, we would risk

fracturing this national program.

30

In sum, HUD’s interpretation is not entitled to outright

deference, but, taking into account the most important

considerations under Skidmore, it does warrant considerable

weight. The agency’s position is reasonable, longstanding, and

consistent, and it was adopted contemporaneously with the

relevant amendment of the statute. The agency also has unique

experience managing the housing assistance programs, and

another circuit has already adopted the agency’s position.

Thus, even if the statutory language were not sufficiently clear

on its own, we would—treating HUD’s view as a thumb on the

scale—still reverse the District Court.

C. The Good Cause Requirement and the Resulting

Statutory Gap

Our conclusion that § 1437f(t)(1)(B) provides the

Hayes family a right to elect to remain in their apartment that

is enforceable against Harvey does not resolve this case. As

we have explained, the statutory provisions governing ordinary

vouchers generally apply to the enhanced voucher program.

See 42 U.S.C. § 1437f(t)(1). Accordingly, § 1437f(o)(7)(C),

from the ordinary voucher subsection, allows property owners

to, at any time, terminate enhanced voucher tenancies “for

serious or repeated violation of the terms and conditions of the

lease, for violation of applicable Federal, State, or local law, or

for other good cause.”

Up to this point, we have yet to focus on one critical

question: what constitutes “other good cause” to terminate an

enhanced voucher tenancy? Unlike the previous issue

regarding the “elect to remain” language, this question presents

us with statutory ambiguity, for the Section 8 statute itself does

not provide a definition of “other good cause.” We are

confronted, then, with a “statutory gap,” and “[f]illing [such]

31

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 projectbased

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

32

property, renovation of the unit, or desire to lease

the unit at a higher rental).

24 C.F.R. § 982.310(d)(1).8 The definition applicable to

ordinary project-based vouchers, while generally the same, is

narrower in that good cause for those vouchers “does not

include a business or economic reason or desire to use the unit

for an individual, family, or non-residential rental purpose.”

Id. § 983.257(a).

HUD has not, however, promulgated a good cause

regulation that governs enhanced vouchers, and it has issued

no relevant guidance. In fact, in its pending rulemaking

regarding enhanced vouchers, the agency specifically

requested comments on the subject. See 81 Fed. Reg. at

74374–75. To be sure, the regulatory provisions applicable to

ordinary vouchers can apply to enhanced vouchers. See 42

U.S.C. 1437f(t)(1). But, as we have just explained, there are

two different good cause regulations applicable to ordinary

vouchers. Neither the statute nor the regulations themselves

say which, if any, of the two should apply to enhanced

vouchers.

Complicating matters further is that the concept of good

cause inherently requires a case-by-case inquiry. Indeed, in

issuing its good cause regulations, HUD has recognized that

8 HUD’s regulation governing ordinary tenant-based

vouchers also provides that “[d]uring the initial lease term, the

owner may not terminate the tenancy for ‘other good cause’,

unless the owner is terminating the tenancy because of

something the family did or failed to do.” 24 C.F.R.

§ 982.310(d)(2).

33

“[t]he good cause concept should be flexible,” and that it

“should remain open to case by case determination by the

courts.” 60 Fed. Reg. 34,660, 34,673 (July 3, 1995) (quoting

49 Fed. Reg. 12,215, 12,233 (Mar. 29, 1984)). The agency

therefore stressed that its rule provides “key ‘examples’ of

cases that may be good cause, but explicitly states that ‘other

good cause’ is not limited to the listed examples.” Id.

(emphasis added). In other words, the good cause

determination is an inevitably fact-intensive inquiry, as “a

comprehensive regulatory definition . . . is neither possible

[n]or desirable.” Id. (quoting 49 Fed. Reg. at 12,233).

Here, Harvey provided three different justifications for

his nonrenewal of the Hayes family’s lease: (1) Florence

Hayes’s death; (2) a plan to renovate the unit; and (3) his desire

to move his daughter into the apartment. The District Court

did not reach the question of whether any of these justifications

were legally sufficient, because it held that Harvey did not need

good cause for nonrenewal. As the good cause question may

implicate critical, unresolved factual questions, summary

judgment is inappropriate at this juncture, because we are

unable to conclude that there is no genuine dispute as to any

material fact. See Fed R. Civ. P. 56(a). We will therefore

remand to the District Court so that it may consider in the first

instance whether Harvey has good cause for nonrenewal under

the circumstances of this case.

IV. CONCLUSION

For the foregoing reasons, we will reverse the District

Court’s order entering judgment in favor of Harvey and

remand for further proceedings consistent with this opinion.

1

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.

* * *

Philip E. Harvey purchased 538 Pine Street free and

clear of any impediments, encumbrances, liens, or restrictions.

He entered into a contract with the Philadelphia Housing

Authority and a related lease with the Hayes family for the

four-bedroom apartment at 538B. The lease provided Harvey

with sole discretion over renewal. J.A. 656 (“The Owner may

offer the Tenant a new lease.”) (emphasis added). When the

lease expired, Harvey notified the family that he did not intend

2

to renew it. Under the majority’s view, however, Harvey must

continuously renew the Hayes family’s lease for as long as they

wish to remain at 538B—provided he does not have good

cause to evict. This supposed “right to remain” extends to

anyone who was on the lease at the time of the opt-out. As a

practical matter, given that three minor children were on the

lease at the time of the opt-out, Harvey’s property will likely

be tied up for decades.1 If Congress meant to create such a

“right to remain,” it would have done so clearly. Because it did

not, and because this Court is not a legislature, I disagree with

the majority’s holding.

This case turns on the meaning of four words—“may

elect to remain”—added to 42 U.S.C. § 1437f(t)(1)(B) in 2000.

Military Construction Appropriations Act, 2001, Pub. L. 106-

246 § 2801, 114 Stat. 511 (2000). From these four words, the

majority infers an entirely new “right to remain” for enhancedvoucher

tenants, enforceable against their landlords. The

majority’s reasoning is flawed on several fronts. It largely

analyzes these four words in isolation, rather than in their

proper context; it mistakenly construes the provision as being

directed at property owners, when it is actually directed at the

relationship between HUD and assisted tenants; and it ignores

the fact that if Congress meant to so expansively alter property

1 I acknowledge that this is not a “perpetual lease” in the

sense that it can be terminated in limited instances. And I

acknowledge that the only family eligible for the enhanced

voucher is the family who was on the lease at the time of the

opt-out. Still, the majority has, in essence, conferred on the

Hayes family a life estate at 538B Pine Street—notably, one

that extends multiple generations. In other words, the majority

has tied up Harvey’s property for however many years—or

decades—the Hayes family chooses to reside there.

3

law, it would have done so clearly. It also overlooks the basic

design of the enhanced voucher program as an incentive-based

program, not a compulsory one.

I. Statutory text

Like the majority, I begin with the statute’s text.

Rosenberg v. XM Ventures, 274 F.3d 137, 141 (3d Cir. 2001).

If the “language is plain and unambiguous, further inquiry is

not required.” Id. In determining whether the language is “plain

and unambiguous,” we examine “the language itself, the

specific context in which that language is used, and the broader

context of the statute as a whole.” Id. (quoting Marshak v.

Treadwell, 240 F.3d 184, 192 (3d Cir. 2001)). A proper reading

of the statute reveals that it is directed not at property owners,

but at HUD and assisted tenants, and that the program was

designed to incentivize—rather than compel—owners to

renew enhanced-voucher tenancies.

The “may elect to remain” language at issue was added

to § 1437f(t)(1)(B) in 2000 via amendment.2 The current

provision states that

the assisted family may elect to

remain in the same project in

which the family was residing on

the date of the eligibility event for

the project, and if, during any

2 That this key language was buried within a “Military

Construction Appropriations Act,” without any explanation, is

perhaps another clue that Congress did not intend to create a

new substantive right that would force property owners to

continuously renew enhanced-voucher tenancies.

4

period the family makes such an

election and continues to so reside,

the rent for the dwelling unit of the

family in such project exceeds the

applicable payment standard . . . ,

the amount of rental assistance

provided on behalf of the family

shall be determined using a

payment standard that is equal to

the rent for the dwelling unit (as

such rent may be increased from

time-to-time), subject to paragraph

10(A) of subsection (o) of this

section and any other reasonable

limit prescribed by the [HUD]

Secretary, except that a limit shall

not be considered reasonable for

purposes of this subparagraph if it

adversely affects such assisted

families . . . .

42 U.S.C. § 1437f(t)(1)(B) (emphasis added).

The majority bases its sweeping view of the enhanced

voucher statute on these four words—“may elect to remain”—

which it largely reads in isolation. Indeed, despite repeatedly

acknowledging that a statute must be examined in context, the

majority never attempts to examine the key four words within

the context of the enhanced voucher provision, let alone the

“broader context of the statute as a whole.” Rosenberg, 274

F.3d at 141 (quoting Marshak, 240 F.3d at 192). By failing to

read these words in context, the majority incorrectly

determines that this provision is somehow directed at property

owners. Then, based on this incorrect premise, the majority

infers a “right to remain” because if an assisted family “may

5

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.merriamwebster.

com/dictionary/remain (last visited July 25, 2018).

Thus, what this clause plainly states is that an assisted tenant

can “make a selection” or “choose” to “stay in the same place.”

But for how long? One year? Five years? For life? Choosing to

stay is plainly different than having a right or entitlement to

stay. The majority, however, conflates the two and infers a

corresponding obligation on property owners.

When viewing the language first in the proper context

of § 1437f(t)(1)(B), it is evident that “may elect to remain” has

nothing to do with property owners, but is rather directed at

HUD and assisted tenants. The provision explains what tenants

must do to maintain eligibility, and that a tenant’s “elect[ion]

to remain” is the triggering mechanism that initiates HUD’s

obligation under the provision. It works as follows. After a

valid opt-out, an assisted family can “elect to remain” in the

same project. If the post-opt-out rent exceeds the payment

standard, then the assisted family’s rent is calculated as

specified by the statute. But how can the assisted family be

6

assured that HUD will provide them with an enhanced voucher

to afford the increased rent?3 Enter § 1437f(t)(1)(B), which

obligates HUD to provide the financial means to afford the

increased rent. In other words, it makes their election to remain

meaningful.4 This is the key feature of the enhanced voucher

program—namely that HUD is required to provide an

enhanced voucher to an eligible tenant, once they “elect to

remain.”

What this provision does not do is impose a duty on a

landlord to continuously renew such a lease beyond its natural

expiration date. The majority infers such a duty, reasoning that

3 As discussed in Part II, infra, there is ample evidence

suggesting that Congress was concerned with HUD’s failure to

act despite the threat of increasing opt-outs. Thus, it enacted

these provisions to compel HUD to act—not to compel

property owners.

4 As the panel stated before the grant of rehearing en

banc:

In our view, through the 2000 amendment

Congress intended to make clear that, following

a valid opt-out, HUD could not force an assisted

family to leave the unit and that the family’s

enhanced vouchers must be credited toward their

rental obligations. . . . But after a rental

agreement naturally expires, so too do the

attendant rental obligations. At that point, the

statute goes silent. Nothing in its text explicitly

or impliedly obligates property owners to

continuously renew enhanced-voucher

tenancies.

Hayes v. Harvey, 874 F.3d 98, 106 n.3 (3d Cir.), reh’g en banc

granted, judgment vacated, 878 F.3d 446 (3d Cir. 2017).

7

otherwise, the family’s choice under the statute would be

meaningless. Under the majority’s novel reasoning, a “right”

is “meaningless” unless it makes the right-holder’s objective

not only possible, but perfectly assured. It follows, I suppose,

that if a foundation guarantees a full college scholarship to a

high school student, this is “meaningless” because no college

is required to offer the student admission. Nonsense. When

there are multiple parties involved in a transaction, a guarantee

to one party is not meaningless, in any sense, even if it does

not bind all parties. The right conferred in § 1437f(t)(1)(B) is

the right to have HUD increase the level of assistance to match

the market-rate rent set by the now-opted-out property owner.

And this is far from a token assurance—without the enhanced

voucher program, tenants like the Hayes family often would be

unable to afford market-rate rent following an opt-out.

The majority also fails to view the language in the

context of the entire statute. If Congress meant to direct any

part of the enhanced voucher statute at property owners, it

would have done so in unambiguous terms, as it does

elsewhere. See 42 U.S.C. § 1437f(o)(7)(B) (“owner shall offer

leases to tenants under this subsection”); § 1437f(o)(7)(C)

(“owner shall not terminate”); § 1437f(o)(13)(G) (“may

obligate the owner”); § 1437f(o)(13)(J) (“The owner . . . shall

not admit any family to a dwelling . . . other than a family

referred by the public housing agency from its waiting list.”);

§ 1437f(cc)(2)(B) (“require the owner to submit an application

for those rent requirements”). So within the context of the

overall statute, it is evident that § 1437f(t)(1)(B) has nothing to

do with property owners.

Read in context, these four words—“may elect to

remain”—simply cannot bear the weight the majority heaps

upon them. As the Supreme Court has noted, Congress “does

not alter the fundamental details of a regulatory scheme in

8

vague terms or ancillary provisions—it does not, one might

say, hide elephants in mouseholes.” Whitman v. Am. Trucking

Associations, 531 U.S. 457, 468 (2001). Creating a new,

enforceable “right to remain,” however, would certainly be an

alteration of a “fundamental detail[] of [this] regulatory

scheme”—an elephant hiding in a mousehole. Id.

The question then becomes: what does “may elect to

remain” mean? After all, it must mean something, given that a

“statute should be construed to give effect to all its provisions,

so that no part will be inoperative or superfluous, void or

insignificant.” Corley v. United States, 556 U.S. 303, 314

(2009) (quoting Hibbs v. Winn, 542 U.S. 88, 101 (2004)).

Likewise, “[w]hen Congress acts to amend a statute, we

presume it intends its amendment to have real and substantial

effect.” Stone v. INS, 514 U.S. 386, 397 (1995). The answer is

that the language provides enhanced-voucher recipients with a

guarantee that they will not be evicted, during their lease term,

by a landlord who refuses to accept enhanced vouchers as part

of their rental payment. As the Ninth Circuit explained:

The statute gives “assisted families” the right “to

remain in the same project.” The statute also

authorizes owners to raise their rents to a

reasonable market rate and to receive a housing

assistance payment, by means of an enhanced

voucher, to cover the authorized increases in

rent. It does not authorize owners to raise their

rents to a reasonable market rate, but then to

refuse to accept payment by means of an

enhanced voucher, and evict an “assisted family”

for nonpayment of rent. Practically, the statute

requires owners to permit tenants to remain in the

housing complex while paying only their

statutorily prescribed portion of the rent.

9

Park Vill. Apartment Tenants Ass'n v. Mortimer Howard Tr.,

636 F.3d 1150, 1156 (9th Cir. 2011); see also Feemster v. BSA

L.P., 548 F.3d 1063, 1069 (D.C. Cir. 2008) (“One thing that

[the landlord] may not do, however, is refuse to accept payment

by voucher and then contend that eviction is warranted for

nonpayment of rent.”). This is a consequential protection; it

does not render the language superfluous or meaningless.5 This

protection cannot, however, extend in perpetuity beyond the

contractual relationship between the landlord and the assisted

tenant.

Given that nothing in the enhanced voucher statute

speaks to nonrenewal, we must look to the ordinary voucher’s

termination provision, which provides that “during the term of

the lease, the owner shall not terminate the tenancy except for

5 Nor does this merely “reflect the baseline conditions

of landlord-tenant relations.” Maj. Op. at 17–18. It not only

protects against an early termination following an opt-out, but

it also explicitly provides eligible enhanced-voucher tenants

with a guarantee that HUD will provide them with an enhanced

voucher. The majority finds my reading “implausible” because

the 1999 version of the statute contained a similar provision.

But in its single-minded quest to give the 2000 amendment

“independent meaning,” the majority ignores everything

else—the plain language of the text, the context in which the

language is used, the broader context of the overall statute, and

the fact that Congress does not alter fundamental details of a

regulatory scheme in vague terms. Indeed, had Congress meant

to radically alter property rights in the way my colleagues do

today, it would have done so clearly. What is “implausible,”

then, is the inferential leap the majority must take to arrive at

its conclusion.

10

serious or repeated violation of the terms and conditions of the

lease, for violation of applicable Federal, State, or local law, or

for other good cause.” 42 U.S.C. § 1437f(o)(7)(C) (emphasis

added). Under the plain language of this provision, Harvey’s

termination rights were limited “during the term of the [Hayes

family’s] lease.” Id. After the lease term expires, so do these

protections. Of course, Harvey had an incentive to renew the

Hayes family’s lease, given that he was receiving market-rate

rent. And, indeed, he did renew the lease multiple times. But

nothing compels him to do so continuously.

II. Statutory history

The foregoing analysis of the statutory text is sufficient

to conclude that there is no “right to remain” beyond the

expiration of the initial lease term. Thus, there is no need to

wade into the quagmire of legislative history.6 The majority

6 The majority suggests that I “pin[ my] hopes on

legislative history.” Maj. Op. at 23 n.5. I do not; the plain

language of the statute is sufficient to affirm the District Court.

Indeed, where—as here—the statutory text is unambiguous,

there is generally no need to consider statutory purpose or

legislative history. Doe v. Hesketh, 828 F.3d 159, 167 (3d Cir.

2016). Further inquiry is warranted only in “rare

circumstances” where a “literal application of the statute will

produce a result demonstrably at odds with the intentions of its

drafters . . . or where the result would be so bizarre that

Congress could not have intended it.” Id. (quoting In re Segal,

57 F.3d 342, 346 (3d Cir. 1995)). I agree with the majority that

this is not such a “rare circumstance[].” Id. But the majority’s

reading of the statute results in such an outcome—one that is

“so bizarre that Congress could not have intended it.” Id. The

11

does, however, and its analysis reflects some of the common

pitfalls associated with such an undertaking. I examine the

legislative history to highlight those errors, and to show that

the history is not only consonant with our interpretation of the

statute—it compels it.

Legislative history can sometimes be a useful tool, but

it must be deployed with care. Compare Digital Realty Tr., Inc.

v. Somers, 138 S. Ct. 767, 783 (2018) (Thomas, J., concurring

in part and concurring in the judgment) (noting that the Court’s

attempt to derive a supposed “purpose” from a single Senate

Report is flawed, because “[e]ven assuming a majority of

Congress read the Senate Report” and “agreed with it,” we

must still look at what was actually enacted because “we are a

government of laws, not of men”), with id. at 782–83

(Sotomayor, J., concurring) (noting that legislative history can

“aid us in our understanding of a law” and that “even when . .

. a statute’s meaning can clearly be discerned from its text,

consulting reliable legislative history can still be useful, as it

enables us to corroborate and fortify our understanding of the

text”).

The point of contention here is the same as in Digital

Realty Trust: selective quotation of a limited number of

legislative reports to divine Congressional intent, while

ignoring more compelling evidence. See Maj. Op. at 23 (citing

S. Rep. No. 106-161 (1999), and H.R. Rep. No. 106-521

(2000)). In focusing on these reports, the majority overlooks

the overall purpose behind the enhanced voucher provision,

and the means by which Congress sought to achieve that

purpose. A proper analysis of the statutory history reveals two

key points: first, that the enhanced voucher provisions are

legislative history discussed in this section merely reinforces

this notion.

12

clearly directed at HUD—not property owners—because of

HUD’s repeated failure to confront the impending opt-out

problem; and second, that Congress intended the enhanced

voucher provision to act as a market-based tool to

incentivize—not force—property owners to renew leases of

enhanced voucher holders.

At the outset, I note where I agree with the majority. I

agree that one of the main purposes of the enhanced voucher

provision was to “allow tenants to continue to maintain their

homes where the owners of their rental units have raised rents

after rejecting the renewal of project-based contracts.” S. Rep.

No. 106-161, at 62 (1999); Maj. Op. at 23. I also agree that this

goal “especially is important where the tenants are elderly or

persons with disabilities, and want to age in place.” S. Rep. No.

106-161, at 62 (1999). I further acknowledge that the opt-out

problem was a real one—reliable studies showed that 500,000

units of affordable housing could have been at risk in the

following years due to increasing opt-outs. 145 Cong. Rec.

22850 (Majority Staff, Marking up to Market: Renewing

Section 8 Contracts and the Problem of Owner “Opt Outs,”

June 23, 1999). Likewise, I agree that the enhanced voucher

provision shows that Congress wanted to strike a balance

between tenants’ and landlords’ interests. The problem, which

the statutory history reveals, is that the majority strikes a

balance that Congress clearly did not.

Although the majority correctly notes Congressional

desire to allow tenants to maintain their homes, it wholly

ignores another major factor prompting the legislation;

Congress was concerned with HUD’s inaction regarding the

looming threat of increasing opt-outs. Section 8 Housing:

Hearing Before the Sen. Subcomm. on Hous. and Transp.,

106th Cong. (1999), 1999 WL 492964 (written testimony of

Rep. Rick Lazio, Chairman, H. Subcomm. Hous. & Cmty.)

13

(explaining that “Congress must act,” because “[f]or the last 18

months, HUD has had broad authority to prevent opt-outs and

the loss of affordable housing,” but has failed to act); 145

Cong. Rec. 22850 (majority Staff, Marking up to Market:

Renewing Section 8 Contracts and the Problem of Owner “Opt

Outs,” June 23, 1999) (noting that “HUD has failed to offer or

develop anything resembling a comprehensive approach to

solving the opt-out problem,” and that “many in the advocacy

community and some legislators expressed belief that

encouraging nonrenewals was an intentional policy choice [by

HUD].”). Indeed, even the Senate Report the majority cites

reveals that, in order to achieve the stated goal of allowing

assisted tenants to remain in their homes, Congress was

authorizing HUD to act, as opposed to imposing any obligation

on landlords. S. Rep. No. 106-161, 62 (“[a]uthoriz[ing] HUD

to provide . . . enhanced vouchers” for this purpose, and

instructing “HUD [to] make every effort to renew expiring

section 8 project-based contracts before making [enhanced]

vouchers available”). All of this further suggests that the

majority’s reading of 42 U.S.C. § 1437f(t)(1)(B) is based on an

incorrect premise—that it somehow is directed at the landlordtenant

relationship. On the contrary, this history makes clear

(as does the statute itself) that the enhanced voucher provision

is directed at the relationship between HUD and assisted

tenants.

Next, although the enhanced voucher provision reflects

congressional intent to strike a balance between landlords’ and

tenants’ interests, the majority imposes a far different balance.

Specifically, nothing in the legislative history suggests that

Congress ever meant to force owners, like Harvey, to

continuously renew enhanced-voucher tenancies, absent good

cause to end the lease. Rather, the enhanced voucher program

was clearly designed as a market-based solution that would

14

incentivize and encourage owners to continue renewing

enhanced-voucher tenancies. See 145 Cong. Rec. 22848

(statement of Rep. Rick Lazio, Chairman, H. Subcomm. Hous.

and Cmty.) (“[W]hat we have done with this bill is . . . create

the right incentive for owners to ensure the continuity of

allowing the seniors, the disabled . . . to continue to live . . .

there.”) (emphasis added)7; id. (statement of Rep. Barney

Frank) (“[O]wners ought not to drop out. No one can say I am

driven economically to drop out. . . . No one is going to be

asked to lose money by staying in the program. We cannot take

away their legal right to get out; we can diminish their

financial incentive to get out.”) (emphasis added).

Numerous contemporaneous statements corroborate

this view of the Section 8 enhanced voucher program. HUD

Section 8 opt-out crisis: Hearing before the Subcommittee on

Housing and Transportation of the Committee on Banking,

Housing, and Urban Affairs, 106th Cong. (July 1, 1999), 1999

WL 492966 (testimony of Sen. John Kerry) (“[T]he new HUD

policy largely meets the concerns of the owners of section 8

housing. Now, I ask these owners to hold up their side of the

bargain and agree to accept the new, higher rents and stay in

the program. I understand that it can be difficult at times to

work with HUD. Still, the Department has come far, far more

7 These statements were made in support of H.R. 202,

portions of which were incorporated into H.R. 2684, which

become Public Law No. 106–74, the 1999 version of the

enhanced voucher statute. See H.R. Rep. No. 106–379, at 169

(1999) (“Title V combines certain provisions from . . . H.R.

202. . . .”). Rep. Lazio’s statements, in particular, have been

cited by several courts, including this one. See, e.g., Park Vill.

Apartment Tenants Ass’n v. Mortimer Howard Tr., 636 F.3d

1150, 1163–64 (9th Cir. 2011).

15

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

16

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.merriamwebster.

com/dictionary/clarify (last visited July 25, 2018).

Thus, according to the legislative history the majority relies on,

the purpose of the 2000 amendment was simply to make the

1999 version “understandable”—not to substantively change

it.8 Undoubtedly, the creation of an entirely novel, judicially

enforceable “right to remain,” which radically alters property

rights, is a substantive change. Deriving this right entirely from

the 2000 amendment, as the majority does, cannot be correct.

III. Other considerations

The majority suggests that HUD’s interpretive

guidance, as well as the decisions of other courts, provide

further support for its conclusions. I disagree.

Through policy guidance, HUD has purported to extend

§ 1437f(o)(7)(C)’s midterm limitations to nonrenewals of

enhanced-voucher tenancies. See, e.g., HUD Section 8

Renewal Policy, Ch. 11, ¶ 11-3(B) (2017) (stating that

“[o]wners may not terminate the tenancy of a tenant who

8 There is a meaningful difference between a

clarification and a substantive change. See Napotnik v.

Equibank & Parkvale Sav. Ass’n, 679 F.2d 316, 321 (3d Cir.

1982). Of course, “we are constrained to give effect to the

statutory language actually enacted.” Id.

17

exercises this right to remain except for cause” and that

“[o]wners must continually renew the lease of an enhanced

voucher family”). As the majority correctly notes, these

documents lack the force of law, and are therefore not accorded

deference under Chevron U.S.A., Inc. v. Natural Resources

Defense Council, Inc., 467 U.S. 837 (1984). Rather, they are

entitled to a “degree of respect” under Skidmore v. Swift & Co.,

323 U.S. 134 (1944), but only to the extent that HUD’s

interpretation has the “power to persuade.” Christensen v.

Harris Cty., 529 U.S. 576, 587 (2000) (quoting Skidmore, 323

U.S. at 140). I am not persuaded.

Some of the “most important considerations are whether

the agency’s interpretation ‘is consistent and contemporaneous

with other pronouncements of the agency.’” Hagans v.

Comm’r of Soc. Sec., 694 F.3d 287, 298 (3d Cir. 2012) (quoting

Del. Dep’t of Nat. Res. & Envtl. Control v. U.S. Army Corps of

Eng’rs, 685 F.3d 259, 284 (3d Cir. 2012)). Admittedly, HUD’s

policy guidance was first issued contemporaneously with the

2000 amendment and has been consistent. In addition, HUD

has “relative expertise,” id. at 305, in administering the

statutory scheme. But expertise and consistency do not alone

require deference. We must also consider whether HUD’s

interpretation “is reasonable given the language and purpose of

the [statute],” id. at 304, “the thoroughness evident in [HUD’s]

consideration, the validity of its reasoning . . . and all those

factors that give it the power to persuade, if lacking the power

to control.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338,

1352 (2015) (quoting Skidmore, 323 U.S. at 140). Here,

HUD’s statement that “[o]wners must continually renew the

lease of an enhanced voucher tenancy,” is contained in one

paragraph of HUD’s nearly 200-page Section 8 Renewal

Guidebook. HUD Section 8 Renewal Policy, Ch. 11, ¶ 11-3(B)

(2017). Nowhere in this guidance does HUD explain the

18

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 nonbinding

Skidmore deference, HUD’s interpretation may be

entitled to some degree of deference given the “value of

uniformity.” United States v. Mead Corp., 533 U.S. 218, 234

(2001) (citing Skidmore, 323 U.S. at 140). Contrary to the

majority’s view, however, there is no uniformity problem here.

In fact, no other Court of Appeals has weighed in on the issue

of non-renewal after the expiration of a lease term. Instead, our

sister Circuits’ decisions have only addressed situations where

a landlord sought to evict an enhanced-voucher tenant during

the lease term for nonpayment reasons. See Park Vill., 636 F.3d

at 1156 (“[The statute] does not authorize owners to raise their

rents to a reasonable market rate, but then to refuse to accept

payment by means of an enhanced voucher, and evict an

‘assisted family’ for nonpayment of rent.”); Feemster, 548

F.3d at 1069 (“One thing that [the landlord] may not do,

however, is refuse to accept payment by voucher and then

contend that eviction is warranted for nonpayment of rent.”). I

agree with Park Village and Feemster insofar as they address

the actual issues before those courts. In other words, there is no

risk of non-uniformity, nor is there the potential for a circuit

split.

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.

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.