IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF ALABAMA, 

NORTHERN DIVISION 

HAROLD KELLY MURPHY, ) 

 ) 

 Plaintiff, ) 

 ) 

v. ) Case No.: 2:06-cv-618-MEF 

 ) 

SOUTHERN ENERGY HOMES, INC., ) 

et al., ) 

 ) 

 Defendants. ) 

MOTION TO SUPPLEMENT THE RECORD WITH AUTHENTICATED 

AGENCY OPINION

COMES NOW the Defendant, Southern Energy Homes, Inc. (“Southern”), and 

respectfully moves this Honorable Court for an order granting Southern leave to 

supplement the record with an authenticated agency opinion prepared by the U.S. 

Department of Housing of Urban Development. As grounds therefor, Southern submits 

the following: 

1. This Court presently has before it a Motion for Judgment on the Pleadings 

filed by Southern. In the Motion, Southern urges this Court to dismiss this case in-full, 

on grounds that Plaintiff’s claims are preempted under federal law. 

2. In Plaintiff’s brief opposing the entry of the motion, Plaintiff argued a 

point of law, that Southern’s construction design violated HUD Code. Specifically, 

Plaintiff argued that the general provision of the HUD Code, which requires all homes to 

be built in conformity with generally accepted engineering practices, should be 

interpreted by this Court to foreclose the use of interior vapor barriers in homes sold into 

southern states. 24 C.F.R. § 3280.303(b) and § 3280.504(b)(1). This is a novel 

Case 2:06-cv-00618-MEF-SRW Document 46 Filed 06/28/2007 Page 1 of 5
argument, as the HUD Code has never been interpreted by any court or HUD to permit 

the general engineering provisions set forth in Section 3280.303(b) to overcome and to 

simply repeal other sections of the HUD Code. 

3. In response to this argument, Southern submitted into evidence an opinion 

written by William W. Matchneer, III, who is the Associate Deputy Assistant Secretary 

for Regulatory Affairs in Manufactured Housing at HUD. In that letter, Mr. Matchneer 

opines that Section 3280.303(b) should not dictate a manufacturer’s practices regarding 

the placement of vapor barriers under Section 3280.504(b). This letter constitutes an 

informal agency opinion under law, and the court should give it weight. Skidmore v. 

Swift, 323 U.S. 124, 134 (1940)(“the rulings, interpretations and opinions of the 

Administrator under this Act, while not controlling upon the courts by reason of their 

authority, do constitute a body of experience and informed judgment to which courts and 

litigants may properly resort for guidance. The weight of such a judgment in a particular 

case will depend upon 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.”); Britton v. Weiss, No. 89-

CV-143, 1989 U.S.Dist. LEXIS, 14610, at *10 (N.D. N.Y. 1989)(agency opinions related 

to statutory construction are entitled to substantial weight). 

4. Plaintiff moved to strike the letter from evidence on grounds that the letter 

was irrelevant, constituted inadmissible hearsay, and was inauthentic. Southern will 

address each of these arguments, in turn, in its opposition to plaintiff’s motion to strike, 

filed contemporaneously herewith. However, in response to this Motion, Southern has 

obtained a sealed authentication certificate from Theodore Ford, Director of HUD. (See

2

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HUD opinion and sealed authentication certification attached hereto as Exhibit “A”). 

The authentication document bears the seal of the United States of America, and correctly 

authenticates the letter under Fed.R.Evid. 902 (2). 

5. This Court should receive this letter into evidence as it sets forth HUD’s 

position with respect to the legal issue being litigated here, which is “can the general 

provision of the HUD Code, Section 3280.303(b) overcome a specific provision, Section 

3280.504(b), and create liability for a manufacturer?” See Arriaga v. Florida Pacific 

Forms, LLC, 305 F.3d 1228, 1238 (11th Cir. 2001) (holding the Court erred in its 

summary judgment decision by failing to consider informal agency opinion, which is a 

proper area of guidance for a court to consider). Because this opinion is authentic and 

because it is relevant to legal issues central to this case, Southern respectfully requests 

that this Court grant Southern leave to supplement the record with the authenticated 

original HUD opinion. 

WHEREFORE, PREMISES CONSIDERED, Southern respectfully requests that 

this Court grant Southern leave to file the authenticated original HUD opinion in support 

of Southern’s Motion for Judgment on the Pleadings. 

 Respectfully submitted, 

/s W. Scott Simpson__ 

W. Scott Simpson, Attorney for Defendant 

Southern Energy Homes, Inc. 

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Case 2:06-cv-00618-MEF-SRW Document 46 Filed 06/28/2007 Page 3 of 5
OF COUNSEL: 

RITCHEY & SIMPSON, PLLC 

3288 Morgan Drive, Suite 100 

Birmingham, Alabama 35216 

Telephone: (205) 876-1600 

Facsimile: (205) 876-1616 

Email: wssimpson@ritcheysimpson.com 

Thomas W. Thagard, III 

Edward S. Sledge, IV 

MAYNARD, COOPER & GALES, P.C. 

1901 6th Avenue North, Suite 2400 

AmSouth/Harbert Plaza 

Birmingham, Alabama 35203-2618 

Telephone: (205) 254-1000 

Facsimile: (205) 254-1999 

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Case 2:06-cv-00618-MEF-SRW Document 46 Filed 06/28/2007 Page 4 of 5
5

CERTIFICATE OF SERVICE

 I hereby certify that on the 27th day of June, 2007, I electronically filed the 

foregoing with the Clerk of the Court using the CM/ECF system which will send 

notification of such filing to the following: 

• Charles Lance Gould

lance.gould@beasleyallen.com holly.stroh@beasleyallen.com 

• Carter Gibson Vance

gibson.vance@beasleyallen.com heidi.bowers@beasleyallen.com 

 /s W. Scott Simpson 

 Of Counsel 

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