Theodore Hayes v. Philip Harvey (2018)

Citation: Theodore Hayes v. Philip Harvey (2018)
Parent Document: Theodore Hayes v. Philip Harvey (2018)
Jurisdiction: United States (federal)
Effective Date: 2018-08-31
Original Source: https://www.courtlistener.com/opinion/4532088/theodore-hayes-v-philip-harvey/ ↗

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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

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