Opinion
Civil Action No. 17764-NC.
Submitted: April 18, 2000.
Decided: April 26, 2000.
Deborah I. Gottschalk, Community Legal Aid Society, 913 Washington Street, Wilmington, DE 19801.
Donald L. Gouge, Jr., 702 N. King Street, #600, Wilmington, DE 19801.
Counsel:
Sherry Munford filed a verified complaint seeking a mandatory preliminary injunction to compel the Newark Housing Authority to reissue and continue her Section E voucher until such time as she no longer qualifies for their housing assistance program.
This program established by Section 8 of the United States Housing Act of 1937, as amended by the Housing and Community Development Act of 1974, 42 U.S.C. § 1437 et. seq., provides rental housing to low income families. The NHA is a local administration of U.S. Department of Housing and Urban Development Section 8 program and will be both the specific and generic acronym for "Housing Authorities" in this Opinion.
Injunctive relief is only appropriate when a plaintiff demonstrates a probability of success on the merits, that irreparable harm will follow unless an injunction issues and that the balance of hardships arising from the issuance of this relief tips in plaintiffs favor. Since any decision may impact other members of the public presently waiting for Section 8 vouchers, the potential harm those individuals may suffer will be a factor that is incorporated in the balancing of hardships. Because mandatory preliminary injunctive relief is requested, the application will be governed by the standard applicable to a request for summary judgment.
See Page v. Kopf , Del. Ch., C.A. No. 12721, Mem. Op. at 6-7, Jacobs, V.C. (Sept. 28, 1992).
Facts
The facts necessary to decide this case are gleaned from the pleadings, exhibits and deposition transcripts. Munford is a single mother who works part time while trying to complete her degree program at the University of Delaware. In early 1998, she applied to the NHA for Section 8 housing assistance. Once a family is given a certificate, it is the families' responsibility to locate a rental unity. The NHA examines the unit and if it is suitable the family signs a lease with the private landlord. The NHA then signs a housing assistance payment contract ("HAP") with the private landlord. The family pays part of the rent and the NHA pays the rest.Munford spent five months on the waiting list before receiving notice that assistance was available for her. On September 9, 1998, she received a Section 8 Tenant Based Certificate. Munford found a property and a willing landlord. After a Housing Quality Standards, "HQS," inspection by NHA, Munford moved into a rental unit on July 3, 1998. On October 21, 1999 NHA payments to the landlord were terminated for failure to make repairs and for failure to sign the HAP agreement. It is unclear why, but on October 28, 1999 NHA issued Munford a new Section 8 voucher equivalent to the certificate previously issued. Before this, Munford had been in compliance with all of the terms of her lease and the program. The termination of rental assistance payments to her landlord had nothing to do with any act or omissions on her part.
After a sequence of disputes between the landlord, the City of Newark and the NHA, the City revoked Munford's landlord's rental permit for housing code violations on November 22, 1999. It appears that Munford then began a timely search for a new rental. She had personal contact with NHA employees on October 28, 1999 when she filled out the new voucher and requested assistance in finding a new rental property and she conducted her own search. It also appears that Munford's counsel contacted the NHA on a number of occasions in November and December for the purpose of requesting assistance for her client and an extension of the expiration date of her voucher. The NHA does not dispute that there were apparently no units available at that time. The NHA's response to those requests is typified by the following excerpt:
The events that predate October 28, 1999 are of little consequence except where they constitute action on the part of NHA that is in violation of the C.F.R. or its own Administrative Plan.
Respondents raised the issue of Munford's bad credit as a reason she could not find a unit. I find this issue irrelevant. I also think it odd that NRA feigned surprise that one of their clients had credit problems.
24 C.F.R. § 982.303 (a) and (b) provides that the initial term of a voucher must be at least 60 days but the NHA may grant a family one or more extensions of the initial term in accordance with the NHA policy not to exceed 120 days.
I have discussed Ms. Munford's situation with my client.
First, I am sure you appreciate that NHA can not give Ms. Munford any special treatment. Any action by NHA must be within the regulations. Second, I understand that there are no openings in public housing. Third, your client's voucher will run out soon. As such, may I suggest that she look beyond the City of Newark for suitable housing.
Exhibit K of Complaint.
The NHA rendered no meaningful assistance to Munford but did refer her request for an extension to the NHA board for consideration. The board denied that request by a majority vote of a quorum and sent notice to her on January 27, 2000 explaining the reasons for the decision. However, Munford's voucher has been in limbo and remains unissued to anyone in accordance with a consent order entered at the start of this litigation.
Discussion
Munford is entitled to relief if she can demonstrate that the NHA failed to follow the federal law and its own administrative plan thereby causing her irreparable harm which can be remedied by injunctive relief which neither damages the NHA nor the public. Under the facts of this case, I am satisfied that she has.
The C.F.R. and administrative plan clearly called for the NHA to assist Munford to find another rental unit after revoking the rental certificate for 205 Kings Court. The record indicates that virtually nothing was done to carry out that responsibility. In fact, at argument, counsel for the NHA, suggested his client was not about to act as a "realtor" for Munford to find her alternate housing. A reading of the NHA administrative plan suggests just the opposite. Once Munford became a participant in the Section 8 program she acquired a property interest in continued housing. When she became displaced through no fault of her own, the NHA had a legal obligation to assist her search for housing. The only response that the NHA gave Munford to her repeated written requests for assistance was acknowledgement that there were no "public housing units available" and a reminder that time was running out on her voucher.
NHA Administrative Plan. "If the owner refuses or delays compliance with HQS, assistance will be obtained from the City Building Department. If the rental certificate from the City is canceled, the family will be assisted in finding another unit. . . ." (emphasis added).
Joy v. Daniels , 479 F.2d 1236, 1240 (4th Cir. 1973).
If Munford were simply an "applicant" receiving the initial voucher, it would be her sole responsibility to find a rental unit within the sixty day time frame provided by the voucher. However, as a "participant" displaced because her rental unit has been declared unqualifiable, she seems to be in an entirely, and understandably, different classification. Why she was given a new voucher and placed on the clock at the end of October, 1999 is unclear to me. The voucher itself contains language which simply does not apply to her.
24 C.F.R. § 982.4 applicant is defined as a family that has applied for admission to a program but is not yet a participant in the program.
24 C.F.R. § 982.4 participant is defined as a family that has been admitted to the HA program and is currently assisted in the program. The family becomes a participant on the effective date of the first HAP contract executed by HA for the family.
2(B) The voucher does not give the family any right to participate in the HA's section 8 rental voucher program. The family becomes a participant in the HA's section 8 program when the HAP contract between the HA and the owner takes effect.
That language seems to apply to someone who is an "applicant" as that term is defined in § 982.4. C.F.R. Certainly, there is no dispute here about Munford's status — she was a "participant." While the administrative plan and the C.F.R. do not specify the prescribed procedure for helping someone who is already receiving the Section 8 entitlement but is displaced through no fault of their own, it is clear that they are entitled to meaningful "assistance." Munford got nothing of the kind.
Let us assume for the sake of argument, that someone in Munford's classification, although technically already a "participant," has to be issued a new voucher in order to fit the procedural trial that presently exists. It appears that the voucher need not be issued before the NHA locates a suitable rental unit within its jurisdiction. Until the NHA discharges its responsibility, it seems patently unfair to place a participant in Munford's circumstance on the clock. This certainly does not mean that Munford should not bear the burden of helping herself, but I can hardly imagine any greater incentive to help oneself than the prospect of being homeless.
I turn now to the issue of the expiration of the voucher actually issued to Munford in October 28, 1999. Having already decided that this voucher was premature, the importance of the Section 8 entitlement to those in need compels me to make a few observations. At argument, counsel for the NHA stated unequivocally that "we don't grant extensions" and directed the Court to the language of the NHA Administrative Plan which HUD approved. The Plan provides in part at B(2)(f):
A family awarded a certificate voucher has 60 days to find an acceptable unit. No extensions of time will be granted.
NHA Administrative Plan Paragraph 2f.
But, the voucher indicates that extensions are available and the C.F.R. permits the NHA to exercise discretion in granting extensions. HUD also requires the NHA to administer the program in accordance with the plan. Here, several events occurred which clearly indicate that the NHA does not consistently follow its own administrative plan and, indeed, the record seems to suggest that the Board is neither familiar with the plan nor the federal regulations that apply to this program. First, as I have previously found, the NHA failed to provide Munford any meaningful assistance in contravention of § B(15) of the plan. Second, the Board eventually considered Munford's request for extension and conducted a hearing on the merits without a quorum. After a later teleconference Board meeting, a quorum of the Board denied her request after concluding that she had adequate time to get her housing affairs in order. In other words, the NHA chose not to follow its policy on extensions, but rather, exercised its discretion as contemplated by the voucher language and § 982.54(d)(2).
Paragraph 2C During the initial or extended terms of this voucher . . .
The voucher will expire on the date stated on the top of page one unless the family requests an extension in writing and the HA grants a written extension . . . at its discretion, the HA may grant a family's request for one or more extensions of the initial term.
982.54.
Deposition of Jacquelyn Baldwin, Chairperson NHA Board.
Ex 5 to Complaint.
While I cannot help but observe that the NHA failed to follow its own procedures, the apparent inconsistencies between the CFR, its Plan and its practices leave the door open for arbitrary, capricious and unfair treatment of the people it is empowered to help.
Conclusion
I find there to be no genuine issue of material fact in dispute and that without injunctive relief, Munford will suffer irreparable harm. I further find that a mandatory injunction should issue: (1) directing the NHA to assist Munford by finding her suitable replacement housing as contemplated by Paragraph 15 of the Authority's Administrative Plan; and, (2) until such time as the NHA has discharged this responsibility, a rental voucher with the standard sixty day term will issue for the use and benefit of Munford. Compliance with its own administrative plan should work no burden on the NHA. I further conclude that this order imposes no more hardship on the NHA than their Administrative Plan requires and that the status quo will be maintained for those applicants that remain on the waiting list for Section 8 assistance. Therefore, the public will not be adversely affected.
Plaintiffs counsel will prepare an Order, approved as to form, consistent with this Opinion.
MTS/rm
oc: Register in Chancery