Theodore Hayes v. Philip Harvey, 903 F.3d 32 (2018)

Citation: Theodore Hayes v. Philip Harvey, 903 F.3d 32 (2018)
Parent Document: Theodore Hayes v. Philip Harvey, 903 F.3d 32 (2018)
Jurisdiction: United States (federal)
Effective Date: 2018-08-31
Original Source: https://www.courtlistener.com/opinion/4531965/theodore-hayes-v-philip-harvey/ ↗

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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 enhanced-
voucher 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

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