* The Hon. Richard S. Arnold, of the Eighth Circuit, sitting by

designation. 

# United Stat es Court of Appeals

For the First C ircuit

No. 02-2675 PEOPLE TO END HOMELESSNESS, INC., Plaintiff, Appellant, DEVELCO TENANTS ASSOCIATION,

Plaintiff,

v. DEVELCO SINGLES APARTMENTS ASSOCIATES; DEVELCO MODERN APARTMENTS ASSOCIATES; DEVELCO APARTMENTS, INC.; DEVELCO FAMILY APARTMENTS ASSOCIATES; HEDCO, LTD.; WOONSOCKET HOUSING AUTHORITY; MEL MARTINEZ, IN HIS OFFICIAL CAPACITY AS SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT; UNITED STATES

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND [Hon. David L. Martin, U.S. Magistrate Judge ] [Hon. Ernest C. Torres, U.S. District Judge ]

Before Howard, Circuit Judge , Bownes and R. Arnold, * Senior Circuit Judges .John Cann with whom TimothyL. Thompson and Ann M. Norton were

on brief for appellant, People to End Homelessness, Inc.. Terri L. R oman , Attorney, with whom Carole W. Wilson , Associate General Counsel, Howard Schmeltzer , Assistant General Counsel, United States Department of Housing and Urban Development, Margaret E. Curra n , U nited States Attorney, and Michael P. Iannotti , Assistant United States Attorney, were on brief for appellees Mel Martinez, Secretary of the United States Department of Housing and Urban Development and the United States Department of Housing and Urban Development. Lynette Labinger and Roney & Labinger we re on brief for Develco Singles Apartments Associates, Develco Modern Apartments Associates, Develco Apartments, Inc., Develco Family Apartments Associates, and Hedco, Ltd.

July 31, 2003-3- BOWNES, Senior Circuit Judge . Plaintiff-appellant, People to End Homelessness, Inc. ("PEH"), is a non-profit organization operating in Woonsocket, Rhode Island, which seeks to expandand preserve the supply of affordable housin g in Rhode Island. Defendants-appellees in this case a re the Develcos (the

" Owners"), a group of four separately-owned but commonly man age d housing developments located in Woon sock et, Rhode Island. The other defendants-appellees in this case are the United States Department of Housing and Urban Development ("HUD") and its Secretary. PEH brought suit in federal district court challenging the expiration of low-income housing contracts between HUD and the Owners. The district court granted HUD's motion to dismiss and then grantedsummary judgment for the Owners. For the reasons set forth below, we affirm both rulings. I. BACKGROUND

This litigation revolves around the "Section 8" program createdby HUD in 1974. The program is governed largely by the UnitedStates Housing Act of 1937, § 8 as amended, 42 U.S.C. § 1437f (2003) ("the Housing Act"). We begin with a brief sketch of how this program works. The purpose of the program is to "aid lowincome families in obtaining a decent place to live and [promote] economicallymixed housing." Id. § 1437f(a). Under the Section 8 pr ogram, HUD enters into Housing Assistance Payment ("HAP " ) contracts with private property owners and determines the maximum1 T he statute defines termination of a HAP contract as, "t h e

expiration of the assistance contract or an owner's refusal to rene w th e assistance contract, and such term shall include termination of the contract for business reaso ns. " Id. § 1437f(c)(8)(D). -4- month ly rate that the owner may charge for each dwelling. Under the terms of the HAP contract, the property owner receives rent directlyfrom two sources, the low-income tenant and HUD. The lowincome tenants pay the property owner a percentage of their adjusted income, typically about 30 percent. The difference that remains between the HAP contract rent and the portion provided by the tenant is paid to the owner by HUD in the form of an assistance payment or subsidy.

Owners are required to provide the Secretary of HUD and the low-income tenants "not less than one year" written notice of their intention to terminate any Se ction 8 HAP contract. 1 Id. § 1437f(c)(8)(a). If the owner does not provide the proper notice, the owner may not evict the tenants or increase the tenants' rent until such time as the owner has provided the notice and the full

one year has expired. Id. § 1437f(c)(8)(B). In circumstances when the HAP contracts expire, the Secretary and the owner may agree to renew the contract.

Shouldthe owner choose not to renew, the Hou sing Act dictates that HUD "will provide tenant-based rental assistance to all eligible residents, enabling them to choose the place they wish to rent, which is likely to include the dwelling unit in which they2 The WHA is a public housing a ut hority created under state

law which operates and administers va ri ous low-income housing programs in the City of Woonsocket. -5- currently reside." Id. § 1437f(c)(8)(A). If tenants choose to stay in the unit in which they currently reside, HUD issues those tenants "enhanced vouchers." These vouchers cover the cost of any increase in rent that the owner of the dwelling may charge once the HAP contract expires, while keeping the tenants' portion of the rent stable at the pre-expiration rate.

Having described the basic mechanics of the Section 8 program, we now turn to the events that prompted this appeal. The Owners began providing affordable housing to low -inc ome families pursuant to Section 8 HAP contracts in the mid-1970's. Since that time, the Owners and HUD entered into numerous renewal H A P contracts. The most recent HAP contracts were set to expire on May 31, 2001. Six weeks before the scheduled expiration date, the Owners sent the tenants a notice informing them that the HAP contracts would not be renewed. HUD, in coordination with the Woonsocket Housing Authority ("WHA"), subsequently issued enhanced vouchers to each eligible tenant. 2

On May 30, 2001, the day before the HAP contracts were set to expire, PEH filed a complaint, a motion f or a temporary restraining order and a motion for a preliminary injunction in the district court against the Owners, HUD and its Secretary, and the WHA. PEH raised two major issues in the complaint. First, PEH-6-

arguedthat the six weeks notice given to the tenants by the Owners failedto comply with the one year federal notice requirement. Second, PEH argued that HUD was acting in violation of federal law by approving the Owners' decision not to renew the expiring HAP contracts and by issuing enhanced vouchers to the tenants.

On June 22, 2001, PEH moved to add the Develco Tenant Asso ciatio n (DTA), a group of Develco tenants, as a co-plaintiff with PEH. There were no objections to the motion and the complaint

was amended to add DTA as a co-plaintiff. Shortly thereafter, the Owners agreed to a vol untary restraining order. The order prohibitedthe Owners from evicting or raising the rent on any tenant for one year, providedthat the tenant was a participant in the Section 8 program.

After the restraining order was issued, HUD moved to dismiss for failure to state a claim. The district court, in a memorandum opinion dated March 29, 2002, granted the motion. The district court ruled that federal law did not obligate or even authorize HUD to "unilaterally extend HAP contracts against the will of owners." Similarly, the district court stated that there

was no statutory authorization whi ch wou ld require the Owners to continue partici pat ing in HAP contracts once they expired. The district court stated that the "sole remedy for failing to provide the requisite notice is that the owner is prohibited from evicting3 PEH does not appeal the distr ic t court's grant of summary

judgment in favor of the WHA and the WHA is not inv olved in this appeal. -7- tenants or increasin g t heir rent payments until such notice has been provided and the prescribed notice period has elapsed."

With HUD dismissed from the case, the Owners and WHA movedfor summary judgment. In a second memorandum opinion, dated October 16, 2002, the district court held that PEH and DTA lacked standing to pursue their complaint and granted the motion. The district court rejected PEH's request to require the Owners to continue renting units under the Section 8 HAP contracts. The court found that HUD's decision not to renew the expiring HAP contracts was a permissible exercise of HUD's discretion, andthat since the contracts had expired, it was not possible to grant the relief requested. PEH filed this timely ap pea l challenging the district court's decision to dismiss PEH's claims against HUD and grant the Owners' motion for summary judgment. 3 The DTA no longer exists and ther efore has not joined in this appeal. No other Develco tenant joined PEH in this case at any time. II. DISCUSSION

We address first PEH's challenge to the district court's decision to dismiss HUD fr om th is lawsuit for failure to state a claim. See Fed. R. Evid. 12(b)(6). We review a district court's allowance of a motion to dismiss de novo. See Martin v. Applied Cellular Tech., Inc. , 284 F.3d 1, 5 (1st Cir. 2002). In doing so,-8-

"[w]e accept as true the well-pleaded factual allegations of the complaint, draw all reasonable inferences therefrom in the plaintiff's favor and determine whether the complaint, so read, sets forth facts sufficient to justify recovery on any cognizable theory." Id. at 6.

PEH's complaint alleged that HUD violated a variety of federal laws, including the Ho using Act, the Administrative Proced ures Act, 5 U.S.C. § 701 et seq. (2003), the Fair Housing Act, 42 U.S.C. § 3608(e)(5) (1994), and the Fifth and Fourteenth Amendments to the Constitution. Fairly read, the essence of these claims is that HUD illegally permitted the HAP contracts to expire. PEH alleges that HUD should have required the Owners to remain in the Section 8 program under HAP contracts until the one year notice periodended pursuant to the voluntary restraining order agreed to by the Owners.

Th is argument, however, is forestalled by the clear language of the Housing Act. See 42 U.S.C . § 1437f. When "the language of a statute 'is plain and admits of no more than one meaning . . . the sole functi on of the courts is to enforce the statute according to its terms.'" Arnoldv. United Parcel Serv., Inc. , 136 F.3d 854, 858 (1st Cir. 1998) (quoting Caminetti v. UnitedStates , 242 U.S. 470, 485 (1917)). Section (c)(8)(B) of the Housing Act states in relevant part:

In the event the owner does not provide the n otic e required, the owner may not evict the-9- tenants or increase the tenants' rent payment until such time as the owner has provided the notice and 1 year has elapsed. The Secretary m ay a llow the owner to renew the terminating contract for a period of time sufficient to give te n ants 1 year of advance notice under such terms andconditions as the Secretary may require. (emphasis added). Congress' statement that the Secretar y "m ay allow" the owner to renew the HAP contracts makes it apparent that HUD was not required to renew the Section 8 HAP contracts, even in the face of a notice violation.

PEH also argues that HUD should not have issuedenhanced vouchers to the te nan ts once the Owners had provided inadequate notice. According to PEH, enhanced vouchers can only be issued when an owner provides proper notice and the one year notice period has expired. This argument is also contrary to the clear statutory language adopted by Congress.

We begin by noting that the Housing Act does not directly support PEH's argument. Section (c)(8 )(B) of the statute, which

was quotedabove and describes how the Section 8 program works when

an owner fails to give proper notice, does not mention enhanced vouchers, let alone prohibit their use. Rather, enhanced vouchers

are covered under a different section of the statute. See id. § 1437f(t). Thi s s ection states, in pertinent part, that "the termination or expiration of the contract for rental assistance .

. . results in tenants . . . being eligible for enhanced voucher-10-

assistance under this subsection." Id. § 1437f(t)(2). There are, of course, exceptions. These includ e instances when a tenant leaves the covered project or when the voucher is used by someone other than the family who was originally issued the voucher. See id. § 1437f(t)(1)(C). But Congress did not include in this list of exceptions an owner's failure to give proper notice. That fact certainlydoes not help PEH's argument. See Com. of Mass. by Dept. of Pub lic Welfar e v. Yeutter , 947 F.2d 537, 542 (1st Cir. 1991) (finding it relevant that "[n]owhere in this section do the drafters suggest that the Secretary may not request information and materials beyond those specified as forbidden fruit"). But it also does not endthe matter. See Stoutt v. Banco Popular de P.R. , 320 F.3d26, 30 (1st Cir. 2003) (stating that omissions in statutory language are not necessarily con clusi ve because "[c]ourts have often added to statutes unexpressed conditions or qu alif ications consonant with statutory purpose or other public concerns").

More important is that the section of th e H ousing Act describing enhanced vouchers, see 42 U.S.C. § 1437f(t)(2), explicit ly def ines when a tenant may be eligible for enhanced vouchers. This section references the Multifamily Assisted Housing Reformand Affordability Act of 1997, Pub. L. No. 105-65, 111 Stat. 1344 (co difi ed at 42 U.S.C. § 1437f) ("MAHRA"). The MAHRA, in turn, provides that when a Section 8 contract is "not renewed. . . the Secretary shall make enhanced voucher assistance-11-

. . . 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." Id. § 524(d)(1) (emphasis added). This provision applies to a "contract [that] will (under its own terms) expire during the periodconsi sting of fiscal years 2000 through 2004." Id. § 524(d)(2)(A)(VII). That is precisely the situation

we face in this case. The HAP contracts between the Owners and HUD expiredon May 31, 2001. Upon expiration of the HAP contracts, the MAHRArequires HUD to issue the enhanced vouchers if a tenant chooses to remain in the same unit. HUD did so. In light of this clear statutory language, we simply cannot agree with PEH's argument that HUD acted improperly when it issuedenhanced vouchers to the tenants in this case. See Riva v. Comm. of Mass. , 61 F.3d 1003, 1007 (1st Cir. 1995) ("In sta tutory construction case, beginn ing po int must be language of statute, and when statute speaks wit h clar ity to an issue, judicial inquiry into statute's meaning, in all but the most extraordinary circumstance, is finished." (quoting Estate of Cowart v. Nicklos Drilling Co. , 505 U.S. 469, 475 (1992))).

PEH challenges this clear statutory language by drawing

our attention to a document that it considers "new pertinent and significant legal authority." The document is related to testimony that HUD provided at a Senate Subcommittee hearing on affordable h ousing preservation on October 9, 2002. Following the he aring ,-12-

the subcommittee iss ueda series of follow-up questions to HUD, some of which dealt with HUD's handling of the Section 8 program. PEH cites to the written responses that HUD provided to the questions.

PEH presents this document to us as a su pplemental letter, as authorized by Fed. R. App. P. 28(j). HUD argues that we should not consider PEH's document because supplemental authority

as defined by Rule 28(j) i s gen erally understood to refer to new

case law, which PEH's document is certain ly not. We decline to define the contours of the rule, and choose instead to assume without deciding that it is permissible for us to consider PEH's document. That said, we are not persuaded that the document helps advance PEH's argument in any meaningful way. This is because HUD's answers are inconsistent with PEH's position. HUD's answers, it seems t o us, conform to our reading of the relevant statutes. For example, HUD states that it "does not have the legal authority to compel an unwilling owner to execute new project-based assistance contracts or to unilaterally prevent the contract from expiring." HUD goes on to explain that "[i]n cases where improper notice has been provided, eligible families residing in the property will still be issued enhanced vouchers when the contract expires." Perhaps most important of all is HUD's statement that "even if the notices given b y the owne rs were not adequate, HUD-13-

wouldstill have been compelled by Section 524(d)(1) of MAHRA to issue enhanced vouchers to all eligible residents . . . on the date in which the project-based Section 8 contract expired."

PEH does not discuss or explain these statements by HUD. Instead, PEH calls our attention to one section of a single paragraph of the document which states, in relevant part, "the

owner will not receive any voucher assistance payments until proper notice has been provided to the tenants." Read in isolation, this statement wouldsupport PEH's argument. Read in context, however, it does not. This is because it does not appear that th e a bove statement was the policy of HUD at the time of the events in question here. Rather, it seems to us that the statement is a prediction of a future policy that HUD may adopt. We take this view because as part of its answer HUD ind ica ted that it was revising its current policies. Up to the present time, however, HUD stated that it did not withhold enhanced vouchers as a tool to force compliance with the Housing Act's notice requirement. This reading of the answer is consistent with the many other statements made by HUD throughout the document, as well as this litigation, in which it claimed that enhanced vouchers have not been denied to tenants when an owner gave improper notice.

Whether the document is referring to HUD's policy in the future, or HUD's policy at the time the document was written is of little consequence. The important point is that the document does-14-

not show that HUD's policies, as they existed at the time relevant to this case , prohibited the issuance of enhanced vouchers when an

owner gave improper notice. Simply put, we do not find the new authority offered by PEH to be persuasive or relevant.

PEH also argues that a guidebook published by HUD regarding its Section 8 renewal policies demonstrates that HUD is prohibited from issuing enhanced vouchers when improper notice is given. The guidebook is dated January, 2001, and therefore was presumablyin effect at the tim es relevan t to this appeal. PEH focuses on the guidebook's statement that "[i]f proper notification

was not provided . . . HUD/CA will offer the owner a short-term contract." The guidebook, however, does not say that HUD is prohibitedfrom issuing enhanced vouchers. Even if it did, HUD couldnot use its own guidebook to contravene t he cle ar Congressional commands, described above, that are contained in the Housing Act and t he MAHRA. See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. , 467 U.S. 837, 843 n.9 (1984) ("The judiciaryis the final authority on issues of statutory construction andmust reject administrative constructions which are contrary to clear congressional intent.").

In sum, we are unable to find any statutory support for PEH's argument that HUD was required to extend the HAP contracts

once they expired and that HUD acted improperly in issuing the-15-

enhancedvouchers to the tenants. The district court's decision to grant HUD's motion to dismiss is affirmed.

We now turn to the district court's grant of summary judgment in favor of the Owners on the g round that PEH lacked standing to pursue its lawsuit once the voluntary restraining order had been issued and HUD had been dismissed from the case. Before delving into the law, we stop to note that PEH is the only appellant. The DTA has no t joi ned in this appeal, although they were plaintiffs below.

We also briefly pause to address an argument made by the Owners that PEH waived its arguments as to standing because it failedto address the issue in its opening brief. It is well settledin this circuit that issues "adverted to on an appeal in a perfunctorymanner, unaccompanied by some developed argumentation,

are deemed to have been abandoned." Ryan v. Royal Ins. Co. of Am. , 916 F.2d 731, 734 (1st Cir . 1 990). After carefully reviewing PEH's appellate brief, however, we find that PEH sufficiently briefedthe standing issue to warrant consider atio n of its arguments. We therefore proceed to the merits.

We review a district court's grant of summary judgment de

novo. See Cotter v. City of Boston , 323 F.3d 160, 166 (2003). In doing so, we draw all reasonable facts in the light most favorable to the appellants. See Macone v. Town of Wakefield , 277 F.3d 1, 5-16-

(1st Cir. 2002). We affirm a grant of summary judgment "only if no genuine dispute of material fact exists." Id.

Under Article III, § 2 of the Constitution, a party must have standing to maintain a suit in federal court. See Clinton v. City of New York , 524 U.S. 417, 429 (1998). Article III standing "imposes three fairly strict req ui rements." Munoz-Mendoza v. Pierce , 711 F.2d 421, 424 (1st Cir. 1983). The third and final

r equirement, which is our primary concern in this ca se, i s redressability. See Vt. Agency of Natural Res. v. United States Ex Rel. Stevens , 529 U.S. 765 , 7 71 (2000). This means that the plaintiff must show "a subst anti al likelihood that the requested relief will remedy the allegedinjury in fact." Id. (citation and quotation marks omitted).

The party invoking federal jurisdi c tion, in this case PEH , bears the burden of proving the elements of standi ng. Se e FW/PBS, Inc. v. City of Dallas , 493 U.S. 215, 231 (1990). The Supreme Court has explai nedthat the level of proof required depends on the stage of the proceedings. See Lujan v. Defenders of Wildlife , 504 U.S. 555, 561 (1992). As litigation progresses, Article III places an increasingly demanding evidentiary burden on parties that seek to invoke federal jurisdiction. A plaintiff who has standing at the motion to dismiss stage, does not automatically have standing at the summary judgment or trial stage. See Lewis v. Casey , 518 U.S. 343, 358 (1996). Instead, standing is "an-17-

indisp ensable part of the plaintiff's case, each element must be supported. . . with the manner and degree of evidence required at the successive stages of the litigation." Lujan , 504 U.S. at 561.

This case proceeded beyond the m otio n to dismiss stage andended at the summary judgment stage. By the time it reached the summary judgment stage, the district court had already issued

a restraining order prohibiting the Owners f rom evicting the tenants or raising their rent for one year. The district court had also dismissed HUD from the litigation. Therefo re, th e question before us is whether PEH continuedto have standing after these two important events. More specifically, we are concerned with whether the relief PEH requested from the district court would remedy its alleged injuries.

To make this determination it is important to define with precision PEH's alleged injuries. In its appellate brief, PEH states that the a ctions of the Owners caused it to suffer three injuries. PEH claims that: (1) it was denied an opportunity to seek preservation alternatives to the contract termination; (2) it

was prevente d fr om providing effective educational assistance to tenants; and (3) the adverse effects on the affordable housing market would threaten PEH's ability to locate low cost housing for its members and clients.

PEH alleges that the injuries it suffe red could be redressedin two ways. First, by the district court setting aside-18-

the issuance of the enhanced vouchers. Second, by the district court using its equitable powers to order the Owners to extend the HAP contracts. We do not agree.

The district court's restraining order redressed PEH's allegedinjuries. By granting a one year notice period, the district court gave PEH time to "seek preservation alternatives," time to convince the owners to change their minds about renewing the HAP contracts, and time to provide "effective educational assistance to tenants." The re is simply no evidence that prohibiting HUD from issuing enhanced vouchers would have redressed PEH's alleged injuries. As for the "adverse effects on the housing market," this injury is not related to or c aused by t he Owners' failure to su pply the required notice. Put another way, even if the Owners had provided adequate notice from the very start, they couldstill have chosen not to renew the HAP contrac ts wi th HUD. As we have already explained, the applicable statutes simply do not require the Owners or HUD to renew the HAP contracts o nce they expire. For these reasons, we hold that PEH does not have standing to pursue its lawsuit because its alleged injuries, to the extent they can be redressed, have already been remedied by the district court.-19-

III. CONCLUSION

The district court's decisions to grant HUD's motion to dismiss and gr ant th e Owners' motion for summary judgment are AFFIRMED . So ordered.