Park Village Apartment Tenants, et al v. Mortimer Howard Trust, et al

Filing

FILED OPINION (WILLIAM A. FLETCHER, MILAN D. SMITH, JR. and JAMES DALE TODD) Costs are awarded to Plaintiffs. AFFIRMED IN PART, VACATED IN PART, AND REMANDED Judge: WAF Concurring & Dissenting, Judge: MDS Authoring, FILED AND ENTERED JUDGMENT. [7659641]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PARK VILLAGE APARTMENT TENANTS
ASSOCIATION; WILLIAM FOSTER;
SHIRLEY SMITH; CORNELIUS
WEEKLEY,
Plaintiffs-Appellees,
v.
MORTIMER HOWARD TRUST;
MORTIMER R. HOWARD,
Defendants-Appellants.




No. 10-15303
D.C. No.
4:09-cv-04780-SBA
OPINION



Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
July 13, 2010—San Francisco, California
Filed February 25, 2011
Before: William A. Fletcher and Milan D. Smith, Jr.,
Circuit Judges, and James D. Todd, Senior District Judge.*
Opinion by Judge Milan D. Smith, Jr.;
Partial Concurrence and Partial Dissent by
Judge William A. Fletcher

*The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.

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PARK VILLAGE v. MORTIMER HOWARD TRUST

COUNSEL
Thomas Melvin Swihart, Berkeley, California, for the
defendant-appellant.

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James Russell Grow, Kent Kang Qian, National Housing Law
Project, Oakland, California; Lisa Shouse Greif, Bay Area
Legal Aid, Oakland, California, for the plaintiffs-appellees.

OPINION
M. SMITH, Circuit Judge:
The individual Plaintiffs are a group of elderly, low-income
tenants of a former project-based, federally subsidized Section
8 housing complex. They argue that federal law gives them a
right to remain in the complex and to pay a portion of their
rent by using federally funded “enhanced vouchers.” Defendants, who own the housing complex, argue that the tenants
have no right to remain in the complex or to use such vouchers to pay their rent. Defendants further contend that even if
the tenants have a right to remain in the complex and to pay
a portion of their rent relying on such vouchers, a court cannot
compel them to enter into a contract with the local housing
authority that would require them to provide a certain level of
service to tenants of the complex, so long as Defendants are
willing to forego payment of that portion of the rent covered
by the “enhanced vouchers.”
The district court entered a preliminary injunction in favor
of “any tenant at Park Village Apartments.” We affirm in part
because the individual Plaintiffs have a statutory right to
remain in the complex, and are, accordingly, entitled to an
injunction barring Defendants from evicting them solely
because they are paying only their statutorily determined portion of each month’s rental payment. However, we reverse
and remand in part because Plaintiffs have not identified any
evidence or statutory authority upon which to base a mandatory injunction compelling Defendants to enter contracts with
the local housing authority, so long as Defendants are willing
to forego payment of that portion of the rent covered by the
“enhanced vouchers.”

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FACTUAL AND PROCEDURAL BACKGROUND
A.

Statutory Background

For almost four decades, the federal government has provided rental assistance to low-income, elderly, and disabled
families through the Section 8 housing program. Congress
added the program to the United States Housing Act of 1937
by enacting Title II of the Housing and Community Development Act of 1974, Pub. L. No. 93-383, § 201(a), 88 Stat. 633,
662-66 (1974) (codified as amended at 42 U.S.C. § 1437f).
Congress did so “[f]or the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing.” 42 U.S.C. § 1437f(a); see
generally Barrientos v. 1801-1825 Morton LLC, 583 F.3d
1197, 1202 (9th Cir. 2009).
Section 8 assistance may be either “project-based” or
“tenant-based.” 24 C.F.R. § 982.1(b)(1). Project-based assistance is appurtenant to specific housing units, pursuant to
which the government provides rental assistance payments to
unit owners on behalf of low-income tenants in those units.
Id. Tenant-based assistance, on the other hand, is appurtenant
to the tenant, pursuant to which the tenant may retain a rental
subsidy when he or she moves to another Section 8 housing
unit. See 42 U.S.C. § 1437f(o), (r); 24 C.F.R. §§ 982.1(b)(1),
982.314, 982.353, 982.355. Under both forms of assistance,
the tenant contributes a prescribed portion of family income
toward the rent due, ordinarily the greater of 30 percent of
“adjusted income” or 10 percent of gross income. 42 U.S.C.
§ 1437f(o)(2); see also id. § 1437a(a)(1). The government
pays the balance of the rent to the owner, up to a “payment
standard” for the dwelling unit, which ordinarily cannot
exceed 110% of a local “fair market rental” value established
by the Department of Housing and Urban Development
(HUD). See id. § 1437f(c), (o)(1)-(2). The Section 8 program
is funded by the federal government and administered by

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local public housing authorities (PHAs). Barrientos, 583 F.3d
at 1202.
Beginning in the late 1980s, an increasing number of subsidized unit owners became eligible to prepay mortgages, or to
terminate or not renew their contracts with HUD for projectbased and other forms of unit-based federal housing assistance. Id. at 1202-03. Congress enacted new laws to protect
tenants in assisted units in the event the owner sought to convert the previously subsidized units to market-rate housing.
An early protection was a notice requirement, enacted as part
of the Housing and Community Development Act of 1987.
See Pub. L. No. 100-242, § 262(a), 101 Stat. 1815, 1890-91
(1988) (codified as amended at 42 U.S.C. § 1437f(c)(8)). In
its current form, this protection requires that the owner provide tenants and the Secretary of HUD (Secretary) with an
opt-out notice not less than one year before the proposed termination. 42 U.S.C. § 1437f(c)(8)(A). An owner may not
evict tenants or increase the rent until one year after providing
such notice. Id. § 1437f(c)(8)(B). The notice must also “comply with any additional requirements established by the Secretary.” Id. § 1437f(c)(8)(C).
As more Section 8 project-based assistance contracts began
to expire in the late 1990s, Congress created an “enhanced
voucher” program, culminating in the enactment of permanent
enhanced voucher authority in 1999. See Pub. L. No. 106-74,
113 Stat. 1047, 1109-15, 1121-24 (1999). The 1999 statute
had several features. First, it enacted the notice provisions of
§ 1437f(c)(8) in their current form. Id. § 535, 113 Stat. at
1121. Second, it obligated the Secretary to provide “enhanced
vouchers” to tenants residing in project-based subsidized units
at the time of termination:
In the case of a contract for project-based assistance
under section 8 for a covered project that is not
renewed . . . upon the date of the expiration of such
contract the Secretary shall make enhanced voucher

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assistance . . . available on behalf of each lowincome family who, upon the date of such expiration, is residing in an assisted dwelling unit in the
covered project.
Id. § 531(a), 113 Stat. at 1113 (codified at 42 U.S.C. § 1437f
note, Multifamily Assisted Housing Reform and Affordability
Act of 1997, § 524(d)(1) (hereinafter MAHRAA)).
Third, and most importantly for purposes of our opinion, it
added a new subsection (t) to Section 8, setting forth various
rules governing enhanced vouchers. Id. § 538(a), 113 Stat. at
1122-23. This subsection provided that enhanced vouchers are
equivalent to ordinary vouchers as set forth in § 1437f(o),
with certain key differences. Most significantly, it provided
that
during any period that the assisted family continues
residing in the same project in which the family was
residing on the date of the eligibility event1 for the
project, if the rent for the dwelling unit of the family
in such project exceeds the applicable payment standard established pursuant to subsection (o) for the
unit, the amount of rental assistance provided on
behalf of the family shall be determined using a payment standard that is equal to the rent for the dwelling unit (as such rent may be increased from time-totime), subject to paragraph (10)(A) of subsection
(o)[.]
Id. (codified at 42 U.S.C. § 1437f(t)(1)(B) (emphasis added)).
By making the “payment standard . . . equal to the rent for the
dwelling unit,” the statute entitles a tenant with an enhanced
voucher to have the federal government pay the difference
1

“Eligibility event” includes “the termination or expiration of the contract for rental assistance under this section for such housing project.” 42
U.S.C. § 1437f(t)(2).

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between the designated percentage of the tenant’s income
payable by the tenant and the market-rate rent for a dwelling
unit where he or she resided, even where that amount exceeds
the otherwise “applicable payment standard.” Id.
§ 1437f(o)(1)-(2), (t)(1)(B). The total rent charged by the
owner is subject to no specific limit except that it must “be
reasonable in comparison with rents charged for comparable
dwelling units in the private, unassisted local market.” Id.
§ 1437f(o)(10)(A).
In a trio of enactments in 2000, Congress amended the
enhanced voucher provision to make it even more protective
of tenants. It now provides:
[T]he assisted family may elect to remain in the same
project in which the family was residing on the date
of the eligibility event for the project, and if, during
any period the family makes such an election and
continues to so reside, the rent for the dwelling unit
of the family in such project exceeds the applicable
payment standard established pursuant to subsection
(o) of this section for the unit, the amount of rental
assistance provided on behalf of the family shall be
determined using a payment standard that is equal to
the rent for the dwelling unit (as such rent may be
increased from time-to-time), subject to paragraph
(10)(A) of subsection (o) of this section and any
other reasonable limit prescribed by the Secretary,
except that a limit shall not be considered reasonable
for purposes of this subparagraph if it adversely
affects such assisted families[.]
Pub. L. No. 106-246, § 2801, 114 Stat. 511, 569 (July 13,
2000); Pub. L. No. 106-377, § 1(a)(1), 114 Stat. 1441, 1441A24 (Oct. 27, 2000); Pub. L. No. 106-569, § 903(a), 114 Stat.
2944, 3026 (Dec. 27, 2000) (codified at 42 U.S.C.
§ 1437f(t)(1)(B) (emphasis added)).

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B.

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Factual and Procedural Background

The Plaintiffs are individual elderly and disabled lowincome tenants, and an unincorporated association of tenants,
in the Park Village Apartments (the Apartments). The Apartments are a former project-based federally subsidized housing
development in Oakland, California. Defendants are the Mortimer Howard Trust, the owner of the Apartments since 2006,
and Mortimer R. Howard, the former owner of the Apartments and the trustee of the trust.
The Apartments were developed in 1978 with the assistance of Section 8 project-based rental subsidies. After Defendants’ final project-based contract with HUD expired in 2005,
they declined to renew the contract and sought to raise the
individual Plaintiffs’ rents to the fair market rate.
In a prior action, the district court enjoined the proposed
rent increase because Defendants failed to comply with the
notice requirements of § 1437f(c)(8). We affirmed. Park Vill.
Apartments Tenants Ass’n v. Mortimer Howard Trust, No. 067389, 2007 WL 519038 (N.D. Cal. Feb. 14, 2007), aff’d, 252
F. App’x 152 (9th Cir. 2007). Defendants served a new notice
in May 2007. Plaintiffs again complained that the notice was
invalid, and on July 16, 2008, the district court handed down
another injunction. That injunction forbade the Defendants
from increasing rents or evicting tenants in the complex due
to non-payment of increased rent until Defendants properly
complied with the notice requirements. Defendants served
another notice on July 25, 2008. This notice was effective. It
contained the following certification, required by the Secretary:
Federal law allows you to elect to continue living at
this property provided that the unit, the rent, and I,
the Owner, meet the requirements of the tenantbased assistance program. As an Owner, I will honor
your right as a tenant to remain at the property on

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this basis as long as it continues to be offered as
rental housing, provided that there is no cause for
eviction under Federal, State or local law.
Termination of the project-based contract with HUD
became effective one year after Defendants’ July 25, 2008
notice. As a result, Defendants were permitted to raise rents
at the Apartments, and the individual Plaintiffs became eligible for enhanced Section 8 rental assistance vouchers. See 42
U.S.C. § 1437f note, MAHRAA § 524(d). HUD authorized
the Oakland Housing Authority to issue enhanced vouchers
for renters in the Apartments as of July 25, 2009. On August
31, 2009, Defendants served notice of a rent increase, effective October 1, 2009, to individual Plaintiffs. The amount of
the rent increase is not at issue here.
Defendants refused to accept the individual Plaintiffs’
vouchers, and declined to enter into contracts with the Oakland Housing Authority, which was a condition precedent to
Defendants’ being eligible to be paid for the vouchers. Defendants notified certain individual Plaintiffs that they would be
evicted if they failed to pay the full amount of rent then being
charged by Defendants. Plaintiffs again returned to the federal
district court. On January 29, 2010, the district court handed
down a preliminary injunction, ordering Defendants to refrain
from collecting, except through enhanced vouchers, the
amount of the increased rents covered by the vouchers; to
refrain from evicting any tenant for nonpayment of the
amount covered by the enhanced vouchers; and to take all
steps necessary to enter into and execute Housing Assistance
Payments (HAP) contracts with the Oakland Housing Authority.
JURISDICTION AND STANDARD OF REVIEW
Defendants timely appealed the district court’s grant of the
preliminary injunction. We have jurisdiction under 28 U.S.C.
§ 1292(a)(1).

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Plaintiffs are entitled to a preliminary injunction if they
show that “(1) they are likely to succeed on the merits; (2)
they are likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their
favor; and (4) an injunction is in the public interest.” Cal.
Pharmacists Ass’n v. Maxwell-Jolly, 596 F.3d 1098, 1104
(9th Cir. 2010), cert. granted on other grounds, 2011 WL
134273 (U.S. Jan. 18, 2011).
We have set forth the standard of review for preliminary
injunction appeals as follows:
A district court’s decision to grant or deny a preliminary injunction is reviewed for abuse of discretion. We recently restated our two-part test used to
determine whether a district court has abused its discretion. First, we “determine de novo whether the
trial court identified the correct legal rule to apply to
the relief requested.” If the trial court did not identify
the correct legal rule, it abused its discretion.
Second, we must determine if the district court’s
“application of the correct legal standard was (1)
‘illogical,’ (2) ‘implausible,’ or (3) without ‘support
in inferences that may be drawn from the facts in the
record.’ ”
Id. (internal citations omitted).
DISCUSSION
A.

Right To Remain and Enhanced Vouchers

Defendants contend that the enhanced voucher provisions
merely require that HUD provide vouchers to eligible tenants.
They argue that the statute does not require them to permit
tenants to remain in the Apartments, and does not require
them to accept enhanced vouchers as payment for rent. Stated

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another way, Defendants claim that they may raise rents in the
Apartments to the fair market rate, and may refuse to accept
vouchers in partial payment of those increased rents.
[1] In its current form, the relevant portion of the statute
provides:
[T]he assisted family may elect to remain in the same
project in which the family was residing on the date
of the eligibility event for the project, and if, during
any period the family makes such an election and
continues to so reside, the rent for the dwelling unit
of the family in such project exceeds the applicable
payment standard established pursuant to subsection
(o) for the unit, the amount of rental assistance provided on behalf of the family shall be determined
using a payment standard that is equal to the rent for
the dwelling unit . . . .
42 U.S.C. § 1437f(t)(1)(B) (emphasis added). The Secretary
has interpreted the italicized language as giving eligible tenants a “right to remain,” enforceable against owners who
would seek to evict them, so long as the tenants pay their portion of the rent as defined in Section 8. Every federal court to
consider the question to date has agreed with the Secretary’s
construction of 42 U.S.C. § 1437f(t)(1)(B). See Feemster v.
BSA Ltd. P’ship, 548 F.3d 1063 (D.C. Cir. 2008), aff’g in relevant part, 471 F. Supp. 2d 87 (D.D.C. 2007); Barrientos v.
1801-1825 Morton, LLC, No. 06-6437, 2007 WL 7213974
(C.D. Cal. Sept. 11, 2007), aff’d on other grounds, 583 F.3d
1197 (9th Cir. 2009); Estevez v. Cosmopolitan Assocs. LLC,
No. 05-4318, 2005 WL 3164146 (E.D.N.Y. Nov. 28, 2005);
Jeanty v. Shore Terrace Realty Ass’n, No. 03-8669, 2004 WL
1794496 (S.D.N.Y. Aug. 10, 2004).
[2] We also agree with the Secretary’s construction of
§ 1437f(t). The statute gives “assisted families” the right “to
remain in the same project.” The statute also authorizes own-

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ers to raise their rents to a reasonable market rate and to
receive a housing assistance payment, by means of an
enhanced voucher, to cover the authorized increases in rent.
It does not authorize owners to raise their rents to a reasonable market rate, but then to refuse to accept payment by
means of an enhanced voucher, and evict an “assisted family”
for nonpayment of rent. Practically, the statute requires owners to permit tenants to remain in the housing complex while
paying only their statutorily prescribed portion of the rent.
Our reading (and the Secretary’s reading) of § 1437f(t) is
supported both by the plain language of the statute, and by the
language of the statutory provision that preceded it. A year
before the enactment of the current statutory language, Congress had enacted language that did not explicitly provide a
right to remain. That earlier statutory language had simply
provided that a family was entitled to an enhanced voucher
“during any period that the assisted family continues residing
in the same project.” Pub. L. No. 106-74, § 538, 113 Stat.
1047, 1122 (1999). Congress then amended the statute in
2000 explicitly to provide that “the assisted family may elect
to remain in the same project.” Pub. L. No. 106-246, § 2801,
114 Stat. 511, 569 (2000).
Defendants contend that § 1437f(t) confers a right that is
enforceable against only the Secretary. They assert that the
2000 amendment requires the Secretary to provide enhanced
vouchers to eligible tenants, and that it prevents the Secretary
from forcing a tenant with an enhanced voucher to leave his
or her dwelling unit, but that it places no obligation on an
owner of the unit.
We disagree with Defendants’ reading of § 1437f(t). First,
if Congress’s intent in amending the statute in 2000 had been
merely to provide that the Secretary was obligated to supply
families with enhanced vouchers while they remained in their
existing units, the amendment making explicit the tenant’s
right to remain would have been unnecessary. Second, there

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is a separate statutory provision that already required the Secretary to provide enhanced vouchers to eligible families. See
42 U.S.C. § 1437f note, MAHRAA § 524(d).
Further, HUD’s Section 8 Renewal Policy Guide provides
that under § 1437f(t)(1)(B), tenants with enhanced vouchers
have a right to remain, and that owners must honor that right.
See U.S. DEP’T OF HOUS. & URBAN DEV., SECTION 8 RENEWAL
POLICY: GUIDANCE FOR THE RENEWAL OF PROJECT-BASED
SECTION 8 CONTRACTS (Jan. 15, 2008), at 8-1, 11-3B (hereinafter Guide). The Guide conditions an owner’s ability to opt-out
of the project-based assistance program on the owner’s provision of an “acceptable one-year notification” to tenants,
including a letter “stat[ing] that the owner will honor the right
of residents to remain,” and on certification to HUD that the
owner “will honor the tenants[’] right to remain at the property as long as it continues to be offered for rental housing if
the PHA approves a rent equal to the new rent charged for the
unit, unless the owner has grounds for eviction under State or
local law.” Id. at 8-1A.3; see also id. at 1-5.I. The Guide provides that the right to remain lasts “[a]s long as the property
is offered for rental housing,” and that the “owners must continually renew the lease of an enhanced voucher family,” “absent good cause to terminate tenancy.” Id. at 11-3B.2. The
Guide is an agency interpretation not entitled to Chevron deference, but it is nevertheless “ ‘entitled to a measure of
respect under the less deferential Skidmore standard.’ ” Barrientos, 583 F.3d at 1214 (quoting Fed. Express Corp. v.
Holowecki, 552 U.S. 389, 399 (2008)).
Furthermore, every court to consider the question has concluded that § 1437f(t) affords tenants a right to remain, exercisable as against the owner. Feemster, 548 F.3d at 1069
(“[T]he district court correctly determined that the tenants’
right under § 1437f(t) to remain in their homes, and to pay
their rent with enhanced vouchers, is secure unless and until
their tenancies are validly terminated under [local] law.”);
Barrientos, 2007 WL 7213974, at *6 (“[T]he enhanced

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voucher provision creates a right for tenants to remain in tenancy upon an ‘eligibility event’ as defined in that provision.
The plain language of the statute . . . indicates that it is up to
the assisted family, not the owner, to decide whether to continue tenancy upon occurrence of the eligibility event.”);
Estevez, 2005 WL 3164146, at *4 (“The text of 42 U.S.C.
§ 1437f(t), given its ordinary meaning, makes clear that tenants renting apartments in developments receiving projectbased assistance will, upon the termination of that assistance,
have the right to remain in their apartments as long as they
remain eligible and continue to occupy the apartments.”);
Jeanty, 2004 WL 1794496, at *3 (“Giving the words used in
42 U.S.C. § 1437f(t)(1) and (2) their ordinary meaning, it is
clear that the statute provides families renting at the time of
the termination of the project-based subsidy contract the right
to remain in their units, using enhanced vouchers, for so long
as the tenant remains eligible for the vouchers or until the tenant is evicted.”).
[3] Defendants have not offered any persuasive reason
why we should flout the clear language of the statute, or
depart from the Secretary’s or numerous federal courts’ constructions of the statute. We therefore hold that § 1437f(t)
provides tenants a right to remain in their rental units absent
just cause for eviction, and that tenants with enhanced vouchers cannot be required to pay more than the tenant’s portion
of the rent as defined by the Section 8 statute and applicable
regulations.
B.

Right to Remain and Notice

[4] Defendants further argue that even if § 1437f(t)(1)(B)
may be read in isolation to provide a tenant right to remain in
his or her rental unit, such a reading is clearly inconsistent
with the notice provisions of § 1437f(c)(8). The notice provisions provide that an owner may not evict tenants or increase
the rent until one year after providing an “opt-out” notice to
tenants and the Secretary. 42 U.S.C. § 1437f(c)(8). Defen-

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dants argue that it follows from § 1437f(c)(8) that they have
a right to evict tenants or increase their rent after giving
proper notice, and the passage of one year’s time. See id.
§ 1437f(c)(8)(B). Section 1437f(c)(8)(A) provides that “[t]he
notice shall also include a statement that . . . in the event of
termination the Department of Housing and Urban Development 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 they currently reside.” Defendants argue that the statutory statement
that tenants’ choice of dwelling in the event of termination “is
likely to include the dwelling unit in which they currently
reside” is inconsistent with the tenants’ right to remain.
[5] We disagree with Defendants, and conclude that the
notice provisions in § 1437f(c)(8) must be harmonized with
the later-enacted enhanced voucher provision in
§ 1437f(t)(1)(B). The notice provisions, like the enhanced
voucher provisions, were enacted to protect tenants. The Secretary has harmonized these two sets of tenant-protective provisions by requiring that the notice contemplated in
§ 1437f(c)(8) incorporate and refer to the “right to remain”
provided by § 1437f(t)(1)(B). See 42 U.S.C. § 1437f(c)(8)(C)
(providing that “[a]ny notice under this paragraph shall also
comply with any additional requirements established by the
Secretary”); Guide at 8-1A.3 (requiring that notice “state that
the owner will honor the right of residents to remain”).
[6] We therefore conclude that the Secretary has appropriately harmonized these two provisions. Congress first enacted
notice requirements in 1988. It enacted them in their current
form when it authorized enhanced vouchers in 1999. Then, as
recounted supra, Congress amended the statute in 2000
explicitly to provide a right to remain. Reading these enactments as the Secretary does is consistent both with the statutory text and with Congress’s intent to protect tenants in
expiring project-based units.

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Preliminary Injunction

Having concluded that § 1437f(t) provides Plaintiffs a
“right to remain” in their current units, and that this right is
enforceable against Defendants, we next examine the propriety of the district court’s preliminary injunction. Defendants
argue that even if they must continue to rent apartments to the
individual Plaintiffs and to accept the individual Plaintiffs’
out-of-pocket share of the market rental rates, they need not
enter into housing assistance payments (HAP) contracts with
the local housing authority, as ordered in Section V.C of the
district court’s injunction. Stated another way, Defendants
contend that if they are willing to accept reduced rents from
the individual Plaintiffs and forgo the funds that enhanced
vouchers would provide, they cannot be compelled to enter
into HAP contracts.
As noted supra, we review for abuse of discretion the district court’s conclusion that Plaintiffs established that “(1)
they are likely to succeed on the merits; (2) they are likely to
suffer irreparable harm in the absence of preliminary relief;
(3) the balance of equities tips in their favor; and (4) an
injunction is in the public interest.” Cal. Pharmacists Ass’n,
596 F.3d at 1104.
To better frame our analysis, we consider the two parts of
the district court’s injunction separately. The first part of the
injunction (Sections V.A and V.B of the district court’s order)
bars Defendants from increasing the individual Plaintiffs’ rent
unless Defendants accept enhanced vouchers, and further bars
Defendants from evicting tenants so long as the Plaintiff tenants continue to pay their out-of-pocket Section 8 contribution. This portion of the district court’s injunction is
“prohibitory” in nature, since it “prohibits a party from taking
action and preserves the status quo pending a determination
of the action on the merits.” Marlyn Nutraceuticals, Inc. v.
Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir.
2009) (alteration and internal quotation marks omitted). The

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second part of the injunction (section V.C of the district
court’s order) requires Defendants to “take all steps necessary
to enter into and execute housing assistance payment contracts with the Oakland Housing Authority for the acceptance
of tenant based vouchers.” This part of the injunction is “mandatory” in nature, since it “orders a responsible party to take
action.” Id. at 879 (internal quotation marks omitted).
1.

Prohibitory Injunction

[7] With respect to the prohibitory portion of the injunction, the district court correctly determined that Plaintiffs
were likely to succeed on the merits because § 1437f(t)(1)(B)
confers on the individual Plaintiffs a right to remain in their
rental units. The district court also correctly determined that
the individual Plaintiffs were likely to suffer irreparable harm
absent preliminary relief because they faced eviction from
their rental units. Defendants communicated an intention to
charge market rates for the individual Plaintiffs’ apartments,
and Plaintiffs demonstrated an inability to pay those market
rates. Defendants have further voiced an intention to refuse to
accept enhanced vouchers, and to evict Plaintiffs for nonpayment of market rates. It is well-established that the loss of
an interest in real property constitutes an irreparable injury.
See McNeill v. N.Y. C. Hous. Auth., 719 F. Supp. 233, 254
(S.D.N.Y. 1989) (holding that risk of eviction from Section 8
housing satisfies irreparable injury prong of preliminary
injunction test) (collecting cases); accord Sundance Land
Corp. v. Cmty. First Fed. Sav. & Loan Ass’n, 840 F.2d 653,
661 (9th Cir. 1988) (holding that threatened foreclosure of
real property gave rise to “immediate, irreparable injury”).
Given the district court’s factual findings regarding the likelihood of eviction, it reasonably concluded that Defendants’
threat to evict Plaintiffs created a likelihood of irreparable
harm in the absence of an injunction barring future evictions.
See, e.g., Enyart v. Nat’l Conf. of Bar Exam’rs, Inc., Nos. 1015286, 10-16392, 2011 WL 9735, at *11 (9th Cir. Jan. 4,
2011) (“Because the district court’s finding of irreparable

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harm . . . is supported by facts in the record, it does not constitute an abuse of discretion.”); Dominguez v. Schwarzenegger,
596 F.3d 1087, 1098 (9th Cir. 2010).
[8] The district court also properly evaluated the balance of
hardships and the public interest together. See Cal. Pharmacists Ass’n, 596 F.3d at 1114-15 (considering these factors in
tandem). The court concluded that the individual Plaintiffs’
risk of eviction, the fact that Defendants would not be unduly
burdened by the proposed injunction because they would continue to receive market value rent for their rental units, and
the public’s interest in compliance with the Section 8 statute,
all militated in favor of preliminary relief. None of these findings was clearly erroneous. The hardship of eviction on
elderly low-income tenants is self-evident. Defendants, in
contrast, will only suffer hardship if they refuse to execute
HAP contracts with Oakland Housing Authority; otherwise,
they are guaranteed rents that are “reasonable in comparison
with rents charged for comparable dwelling units in the private, unassisted local market.” 42 U.S.C. § 1437f(o)(10)(A).
In light of the district court’s observation that Defendants
“could identify no specific terms in the HAP contract which
were objectionable,” the court did not abuse its discretion in
balancing the parties’ relative hardships. Nor was the court’s
conclusion that the public interest favored entry of the preliminary injunction an abuse of discretion. “[I]t is obvious that
compliance with the law is in the public interest.” N.D. v.
Haw. Dep’t of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010).
In sum, the district court did not abuse its discretion by
entering an injunction preventing Defendants from evicting
Plaintiffs for paying their pre-lawsuit Section 8 contribution,
or from charging Plaintiffs an increased rent without accepting enhanced vouchers.
2.

Mandatory Injunction

[9] The district court erred, however, when it required
Defendants to execute HAP contracts with the Oakland Hous-

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ing Authority. The court incorrectly inverted the burden of
proof by examining whether the proposed injunction would
cause irreparable harm to Defendants. The court wrote:
“Since Defendant could identify no specific terms in the HAP
contract which were objectionable, the Court finds unpersuasive his asserted irreparable injury from being required to
comply with the law and enter into HAP contracts with the
Oakland Housing Authority.” This conclusion fails to recognize that those seeking injunctive relief, not those opposing
that relief, are responsible for showing irreparable injury. See
Winter v. NRDC, Inc., 129 S. Ct. 365, 374 (2008). By examining the legally irrelevant question of whether Defendants were
likely to suffer harm if they were ordered to execute HAP
contracts with the Oakland Housing Authority, the district
court failed to make the essential finding that Plaintiffs are
likely to suffer irreparable harm unless Defendants are
ordered to enter HAP contracts with the Oakland Housing
Authority.
The district court’s oversight is legally significant for three
related reasons. First, the person or entity seeking injunctive
relief must “demonstrate that irreparable injury is likely in the
absence of an injunction.” Id. at 375. An injunction will not
issue if the person or entity seeking injunctive relief shows a
mere “possibility of some remote future injury,” id. (internal
quotation marks omitted), or a “conjectural or hypothetical”
injury, City of L.A. v. Lyons, 461 U.S. 95, 102, 106 n.7
(1983). Second, “[i]njunctive relief . . . must be tailored to
remedy the specific harm alleged. An overb[roa]d injunction
is an abuse of discretion.” Lamb-Weston, Inc. v. McCain
Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (emphasis
added) (citations omitted). Third and finally, “[a] mandatory
injunction . . . is particularly disfavored. In general, mandatory injunctions are not granted unless extreme or very serious
damage will result[,] and are not issued in doubtful cases.”
Marlyn Nutraceuticals, 571 F.3d at 879 (citations and internal
quotation marks omitted).

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[10] By requiring Defendants to enter a HAP contract with
the Oakland Housing Authority, the district court’s injunction
violates all three of these principles governing injunctive
relief. First, Plaintiffs have not made any showing that they
are likely to be harmed by the Defendants’ failure to enter
HAP contracts. Absent such evidence of Plaintiffs’ likely
injuries, Plaintiffs have satisfied neither the baseline Winter
standard nor the heightened standard we have adopted with
respect to mandatory injunctions. See, e.g., Marlyn Nutraceuticals, 571 F.3d at 879-80 (vacating mandatory injunction
where record failed to establish harm). In addition, absent any
harm relating to the HAP contracts, the district court’s injunction is overbroad because it is not tailored to remedy the
Plaintiffs’ actual harms, which are limited entirely to Defendants’ threats of eviction, not Defendants’ threats to refuse
enhanced vouchers. See, e.g., United States v. BNS Inc., 858
F.2d 456, 466 (9th Cir. 1988) (modifying injunction to reduce
hardship to defendant while continuing to “eliminate the harm
. . . at issue in the [plaintiff’s] . . . complaint”).
We disagree with our dissenting colleague’s conclusion
that the injunction is appropriate because the plaintiffs’ statutory “right to remain” necessarily includes an implied statutory right to “adequate heat and hot water, lighting, air
quality, sanitary conditions, and building security.” Dissent at
2930-31. As our colleague correctly acknowledges, “[t]he
statute nowhere explicitly requires an owner to enter into a
HAP contract.” Id. Moreover, the sections of the statute on
which he relies as the conceptual underpinning for his view
of implied rights by definition speak only to the time period
when the owner has not yet lawfully opted out of the Section
8 program—a time when a HAP contract is clearly required.
See id. The Dissent doesn’t say so, but since he is conjuring
up out of whole cloth the costly implied rights he finds, those
implied rights could be significantly expanded by the PHA
(all in the name of furthering its mission) to render essentially
worthless an owner’s right to lawfully opt-out of its involvement in the Section 8 program (subject to certain tenants’

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right to remain in the Apartments, as provided supra). Such
uncabined, implied rights could also frustrate Congress’s clear
intention in the 1996 amendments to the Act to end so-called
“endless leases,” under which owners could not refuse to
renew the leases of Section 8 tenants at the conclusion of a
lease term, except as otherwise provided in 42 U.S.C.
§ 1437f(d)(1)(B)(ii) (repealed 1996), and the “take one, take
all” provisions of 42 U.S.C. § 1437f(t)(1)(A) (repealed 1996),
which effectively provided that “once a landlord [had chosen]
to participate by accepting a Section 8 tenant, it [could] not
turn away subsequent Section 8 certificate holders based on
their status as Section 8 participants.” Salute v. Stratford
Greens, 918 F. Supp 660, 663 (E.D.N.Y. 1996), aff’d sub
nom. Salute v. Stratford Greens Garden Apartments, 136 F.
3d 293 (2d Cir. 1998); see also Salute v. Stratford Greens
Garden Apartments, 136 F. 3d at 300 (noting that repeal of
these provisions reflects a clear “congressional intent that the
burdens of Section 8 participation are substantial enough that
participation should not be forced on landlords”).
If Congress had intended that owners must continue to execute HAP contracts despite opting out of Section 8, it could
easily have said so. Instead, Congress was silent on the issue.
Rather than inferring from this silence an obligation on the
part of opting-out owners to enter HAP contracts, the more
logical inference (particularly in light of the opt-out provision
and the 1996 amendments to the Act) is that building owners
are free to opt out of Section 8 so long as they respect the eligible tenants’ statutory right to remain. If owners are willing
to forego significant rental income in order to avoid the obligations imposed by HAP contracts, they are free to do so. If
owners prefer to receive a fair market rent via enhanced
vouchers, they must also execute an HAP contract. But unless
and until Congress fills in the gaps in its statutory scheme, we
are unwilling to adopt the sweeping conclusion endorsed by
the Dissent and require Defendants to enter HAP contracts.
Indeed, we do not even know what HAP terms the PHA proposed for the Defendants in this case because the record

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before us does not include a copy. We cannot fathom that
Congress intended sub silentio to require Section 8 opt-outs
to enter contracts of adhesion whose terms are dictated solely
by PHAs but whose financial burdens can easily frustrate
other provisions of the Act.
Even if we agreed with the Dissent’s legal premise that the
statutory “right to remain” includes an implied statutory right
to certain housing conditions (which we do not), we would
still be compelled to conclude that the district court abused its
discretion. “The essence of equity jurisdiction is the power of
the court to fashion a remedy depending upon the necessities
of the particular case.” United States v. Odessa Union Warehouse Co-op, 833 F.2d 172, 175 (9th Cir. 1987) (emphasis
added). Under our case-specific approach, “we do not presume irreparable harm” simply because a defendant violates
a statute that authorizes injunctive relief. See Small ex rel.
NLRB v. Operative Plasterers’ & Cement Masons’ Int’l Ass’n
Local 200, 611 F.3d 483, 494 (9th Cir. 2010) (rejecting, in
light of Winter, our prior holding that “once a likelihood of
success is established, district courts are required to ‘presume
irreparable injury’ ” in statutory enforcement actions (quoting
Miller ex rel. NLRB v. Cal. Pac. Med. Ctr., 19 F.3d 449, 460
(9th Cir. 1994) (en banc))); cf. Mac’s Shell Serv., Inc. v. Shell
Oil, 130 S. Ct. 1251, 1263 & n.12 (2010) (discussing 15
U.S.C. § 2805(b)(2)(A)(ii), a statute that “substantially
relaxes the normal standard for obtaining preliminaryinjunctive relief”). Rather, we must determine whether, “[o]n
the facts of this case,” an injunction is warranted. Winter, 129
S. Ct. at 375.
On the record before us, it is entirely speculative for the
Dissent to conclude that Defendants are likely to violate
“HUD’s housing quality standards” in the absence of adequate economic incentives to do so. The Dissent “assume[s]
that Defendants are not trying to commit economic suicide,”
and further assumes that Defendants will only be able to stay
in business if they drastically reduce the services and housing

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standards provided to Plaintiffs. Dissent at 2932. These
assumptions wholly lack evidentiary support, and rest on the
untenable premise that Defendants are willing to risk the
imposition of significant penalties under state law by providing substandard housing conditions. See Cal. Civ. Code
§ 1942.4(b)-(c) (requiring landlords who violate housing standards to abate the harmful conditions and pay actual damages,
statutory damages, attorney’s fees). We disagree with the Dissent that these results are likely, and that, even if these results
were likely, the proper remedy would be to compel Defendants to enter HAP contracts with the Oakland Housing
Authority. Instead, if the Dissent were correct (which we
believe he is not) that the statutory “right to remain” requires
landlords to provide certain housing conditions, the appropriate remedy would be to order landlords to provide those housing conditions, not to require them to enter into HAP
contracts with local housing authorities. Thus, even under the
Dissent’s construction of the statute, the district court’s
injunction is not properly tailored to remedy the speculative
harms discussed by the Dissent.
[11] Because Plaintiffs must show a likelihood, not a mere
possibility, of irreparable injury, see Winter, 129 S. Ct. at 37475, and because Plaintiffs have made no such showing, the
district court abused its discretion by issuing an overbroad
mandatory injunction that failed to “identif[y] and appl[y] the
correct legal rule.” United States v. Hinkson, 585 F.3d 1247,
1263 (9th Cir. 2009) (en banc).
CONCLUSION
We hold that § 1437f(t) provides tenants a right to remain
in their previously subsidized Section 8 rental units in the
absence of just cause for eviction, and that tenants with
enhanced vouchers cannot be required to pay more than their
portion of the rent as defined by the Section 8 statute and
applicable regulations. The district court correctly applied the
Winter test to Plaintiffs’ request for preliminary prohibitory

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relief, and we accordingly affirm Sections V.A and V.B of the
district court’s preliminary injunction.
We also hold, however, that the district court abused its discretion by issuing a mandatory injunction requiring Defendants to enter into contracts with the local housing authority.
There is no evidence in the record that Plaintiffs are likely to
suffer harm if Defendants refuse to enter such contracts;
instead, Plaintiffs’ only alleged harms are adequately remedied by the prohibitory portions of the injunction. Accordingly, we vacate Section V.C of the district court’s
preliminary injunction, and remand for further proceedings
consistent with this opinion.
Costs are awarded to Plaintiffs.
AFFIRMED IN PART, VACATED IN PART, AND
REMANDED.

W. FLETCHER, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that 42 U.S.C. § 1437f(t) confers
on tenants the right to remain in their homes and precludes
owners from charging tenants more in rent than the contribution prescribed by the Section 8 statute and applicable regulations. I therefore concur in those portions of the majority’s
opinion so holding.
I respectfully dissent from the majority’s holding that
Defendants have no obligation to enter into HAP contracts
with the local public housing authority (“PHA”). The majority’s discussion of the appropriateness of injunctive relief is a
red herring. The critical issue is whether the Defendants have
an obligation to enter into those contracts, irrespective of how
that obligation is enforced. The majority holds that Defen-

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dants have no obligation to enter into HAP contracts. I would
hold that they do have such an obligation.
The majority holds, correctly, that § 1437f(t) gives Section
8 tenants a “right to remain” in their subsidized apartments
after the transition to the enhanced voucher program. But the
majority fails to recognize the extent of that right. Under the
enhanced voucher program, Defendants have the right to raise
the total rent on apartments to fair market value. In return,
tenants have the right to remain in their apartments. The tenants’ right to remain is a practical, common-sense right. It is
a statutory right to remain in their apartments while paying
the same amount of out-of-pocket rent as before. The
enhanced vouchers implement this part of the right. It is also
a statutory right to remain in their apartments while enjoying
the same level of maintenance and service as before. The
HAP contracts implement this part of the right.
Section § 1437f(t) was enacted to protect the “particularly
vulnerable populations” of low-income, elderly, and disabled
persons who occupy former Section 8 projects. See Estevez v.
Cosmopolitan Assocs., No. 05-4318, 2005 WL 3164146, at *5
(E.D.N.Y. Nov. 28, 2005) (quoting Section 8 Housing: Hearing before the Subcomm. on Hous. & Transp. of the S. Banking Comm., 106th Cong. (1999) (written testimony of Rep.
Rick Lazio)). HAP contracts play a central role in the statutory scheme. HAP contracts prescribe, and enable PHAs to
enforce, the conditions of public housing that Congress
thought essential to the statutory purpose of providing the
poor not only an affordable but also “a decent place to live.”
§ 1437f(a). See also id. § 1437(a)(1)(A) (“It is the policy of
the United States . . . to assist States and political subdivisions
of States to remedy the unsafe housing conditions and the
acute shortage of decent and safe dwellings for low-income
families . . . .”). By countenancing enhanced voucher tenancies in the absence of a HAP contract, the majority creates a
situation never contemplated by Congress.

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Owners who do not enter into HAP contracts cannot
redeem enhanced vouchers. See 24 C.F.R. § 982.305(c)(2);
Guide at 11-3B. HUD regulations treat housing assistance
payments and HAP contracts as symbiotic. See id.
§ 982.309(b)(2)(iii) (“The HAP contract terminates if . . . the
PHA terminates assistance for the family.”); id.
§ 982.311(c)(2) (“Housing assistance payments terminate if
. . . the HAP contract terminates.”). Those courts that have
held that § 1437f(t)(1)(B) creates a right to remain using
enhanced vouchers have therefore also required the execution
of HAP contracts so that tenants may apply enhanced vouchers to pay their increased rents. See, e.g., Feemster v. BSA Ltd.
P’ship, 548 F.3d 1063, 1069 (D.C. Cir. 2008), aff’g in relevant part, 471 F. Supp. 2d 87, 92, 97 (D.D.C. 2007); Barrientos v. 1801-1825 Morton, LLC, No. 06-6437, 2007 WL
7213974, at *6 (C.D. Cal. Sept. 11, 2007), aff’d on other
grounds, 583 F.3d 1197 (9th Cir. 2009); Jeanty v. Shore Terrace Realty Ass’n, No. 03-8669, 2004 WL 1794496, at *3
(S.D.N.Y. Aug. 10, 2004). But see Estevez, 2005 WL
3164146, at *7 (stating, in dicta, that owner who agrees to
accept as full payment of rent a tenant’s statutorily prescribed
contribution, thereby forgoing any money from enhanced
vouchers, “remains free to refuse to sign contracts with [the
PHA] and thereby to forfeit any rental income above and
beyond the direct payments made by tenants”).
The text of the Section 8 statute nowhere explicitly requires
an owner to enter into a HAP contract, but the statute clearly
contemplates that the owner will do so. See, e.g., § 1437f(c)(d) (required terms of HAP contract); 1437f(o)(7) (required
terms of owner-tenant lease governed by HAP contract);
1437f(o)(8)(A) (inspection of units covered by HAP contract
for compliance with HUD’s housing quality standards). A
HAP contract does more than merely to authorize tenants to
use enhanced vouchers to satisfy part of their rent obligations,
and to authorize owners to redeem those vouchers. HAP contracts prescribe minimum housing quality standards, requiring
owners to provide such things as adequate heat and hot water,

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lighting, air quality, sanitary conditions, and building security.
42 U.S.C. § 1437f(o)(8)(B); 24 C.F.R. § 982.401. They protect tenants who are the victims of domestic violence from
being evicted for that reason. 42 U.S.C. § 1437f(d)(1)(B)(ii),
(o)(7)(C). HAP contracts also give owners and law enforcement officers latitude to make housing projects safer places.
They allow owners to evict occupants for drug-related or
criminal activity that threatens the health and security of other
tenants and require that law enforcement officers be provided
access to common areas if they have probable cause to believe
criminal activity is occurring there. See § 1437f(d)(1)(B)(iii),
(d)(6), (o)(7)(D).
Recognizing that low-income tenants might lack the ability
to assert their right to “a decent place to live” against owners,
Congress made PHAs responsible for enforcing compliance
with HAP contracts. The statutory structure thus assigns HAP
contracts a dual role: they prescribe liveable conditions for
housing projects, and they enable PHAs to enforce compliance with those conditions. See, e.g., 42 U.S.C.
§ 1437f(o)(8)(A), (C)-(D); 24 C.F.R. § 982.405 (PHA inspections to ensure compliance with housing quality standards);
id. § 982.404(a)(2) (PHA required to take “prompt and vigorous action” to enforce housing quality standards; PHA remedies for noncompliance include suspension or reduction of
housing assistance payments and termination of HAP contract); id. § 982.453(b) (PHA remedies for any breach of HAP
contract include reduction or termination of housing assistance payments and termination of HAP contract).
No owner would participate in the Section 8 program
unless he could collect rent, and no owner could collect anything close to the amount of rent to which he is entitled unless
he also entered a HAP contract. Hence the strangeness of
Defendants’ argument.
By proposing to forgo enhanced voucher payments, Defendants propose to incur a substantial financial loss. The fifteen

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individual plaintiffs in this suit allege in their complaint that
they pay between $159.00 and $550.00 per month in rent out
of their own pockets, for a total of about $5,000 monthly or
$60,000 annually. HUD has set the fair market rent for a onebedroom apartment in Oakland much higher, at $1,176 per
month. See Final Fair Market Rents for Fiscal Year 2011 for
the Housing Choice Voucher Program and Moderate Rehabilitation Single Room Occupancy Program, 75 Fed. Reg.
61254, 61263 (Oct. 4, 2010). See also 42 U.S.C.
§ 1437f(c)(1)(B); 24 C.F.R. §§ 888.113, 982.503. Fair market
rent for fifteen one-bedroom apartments thus totals $17,640
monthly or $211,680 annually. Defendants would leave
approximately $150,000 in annual rental income on the table
by declining to enter the HAP contracts covering the plaintiffs
in this case. The true figure at stake may be much greater
because defendants would forgo enhanced voucher payments
from all of the Park Village tenants under the program, not
just the individual plaintiffs in this suit.
I assume that Defendants are not trying to commit economic suicide. If that is so, they must somehow compensate
for this loss of income. They may do so by failing to maintain
and service plaintiffs’ living units in compliance with HUD’s
housing quality standards. They may also seek to recoup some
of their loss by renewing their efforts to empty Park Village
of its population of elderly, fixed-income Section 8 tenants.
Only such cost-saving measures action make any economic
sense, especially because, as the district court observed,
defendants “could identify no specific terms in the HAP contract which were objectionable.”
There is thus a significant likelihood that if owners escape
the obligation to enter into HAP contracts by refusing to
accept enhanced vouchers, they will take steps to defeat the
tenants’ right to remain. Without the ability to insist that the
Defendants provide “a decent place to live,” the “right to
remain” guaranteed by § 1437f(t) would become illusory.