injunction, I observed that I was "not convinced, at least at this early stage, that it would be appropriate for a court -- rather than the legislature -- to afford the defendants the relief they seek." 888 F. Supp. at 20.
On these cross-motions for summary judgment, plaintiffs have taken a different view. They now agree that this Court has the authority to read an exception into the "take one, take all" requirement in § 1437f(t)(1)(A) in circumstances where "Congress didn't anticipate the problem." (Tr. July 14, 1985 at 22-23.) This change of position was not intended, as it might appear at first blush, to help the defendants. Rather, as set forth in the next section, the defendants have advanced an argument based on the "reasonable accommodations" provision of the Fair Housing Act that, if accepted, would require an exception to the "take one, take all" requirement. Thus, both sides now agree that the section warrants a judicially-crafted exception; they disagree only on what it should be.
Upon further examination, I too have concluded that I may appropriately engraft an exception onto the "take one, take all" provision. I have not reached this conclusion lightly. Nor have I reached it simply because both sides, for different reasons, agree that it is within my authority. Rather, I have found guidance in the opinions of the Supreme Court and the Second Circuit.
Courts have the authority to adopt a restricted, rather than the literal or usual, meaning of a statute in order to avoid absurd results, or ones that would thwart the obvious purpose of the statute. Helvering v. Hammel, 311 U.S. 504, 510-11, 85 L. Ed. 303, 61 S. Ct. 368 (1941). Thus, where the literal reading of a statute would "compel an odd result," a court may properly search for other evidence of congressional intent to lend the statute its proper scope. Public Citizen v. United States Department of Justice, 491 U.S. 440, 454, 105 L. Ed. 2d 377, 109 S. Ct. 2558 (1989) (quoting Green v. Bock Laundry Machine Co., 490 U.S. 504, 509, 104 L. Ed. 2d 557, 109 S. Ct. 1981 (1989)).
"This advice is particularly pertinent when construing a recent amendment to a complex statute that produces an unexpected result and when there is strong reason to doubt that Congress intended that result." Lewis v. Grinker, 965 F.2d 1206, 1215 (2d Cir. 1992). See also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (citing cases) ("The plain meaning of a statute is normally controlling, except in the rare cases in which the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. In such cases, it is the intentions of the legislators, rather than the strict language, that controls.")
Here, the literal application of § 1437f(t) sought by plaintiffs would produce an odd and unfortunate result. It would create a powerful incentive for landlords who have chosen not to participate in the Section 8 program to evict tenants who become indigent and eligible for the program during their tenancy. Thus, at the exact moment when such tenants may be most deserving of -- and most in need of -- compassion from their landlords, the law would discourage it by telling the landlord that it would become a full-fledged Section 8 participant if the tenant were not evicted. In addition, in situations like the one before me, where a nonparticipating landlord has already made the decision not to evict, a literal application of Section 1437f(t) would create a strong incentive for the landlord to get rid of such tenants when their leases expire, a cumbersome but lawful option for the landlord.
Plaintiffs have candidly admitted that these adverse consequences will flow directly from a decision in their favor. (Tr. July 14, 1995, at 5.) However, they argue that these unfortunate results are required by the policy underlying the "take one, take all" provision. Id. at 5-6. This argument has no merit. The purpose of the provision, which, as noted above, was the product of a 1988 amendment, was to prohibit landlords from picking and choosing from the pool of Section 8 applicants who make application to rent apartments.
The case before me does not implicate this concern. Rather, it involves tenants who, by definition, are already tenants before they became Section 8-eligible, and thus were already "chosen" by the landlord. It is possible that a future case might give rise to a more persuasive "take one, take all" argument. Perhaps, now that Stratford Greens has accepted Section 8 assistance from tenants who became eligible during the course of their leases, the statute may require it to accept Section 8 assistance from other tenants who fit that description. But that issue is not before me. Moreover, there is no indication that Stratford Greens has failed to "take all" of the Section 8 certificates offered by its existing tenants. In any event, the danger Congress sought to address by enacting § 1437f(t) -- discrimination among the pool of Section 8 applicants for apartments -- is simply not present in this case.
Stratford Greens argues that a decision in plaintiffs' favor would amount to punishment for its acts of compassion. The punishment, they argue, is a forced marriage with the government. The required contracts with HUD, the regulations regarding security deposits, and the cumbersome process of terminating leases are examples of the substantial burdens they say attend landlord participation in the program.
This argument has considerable force. Indeed, there have been numerous legislative efforts, some of which are pending, to repeal the "take one, take all" provision (and to otherwise amend the statute) to minimize the burdens of Section 8 participation in order to make the program more attractive to landlords.
Reacting to a recent study conducted for HUD,
these bills would repeal the "take one, take all" provision, the so-called "endless lease" provision, and some of the other "most egregious conditions that have caused owner dissatisfaction" with Section 8 participation. H. Rep. No. 104-461, 104th Cong., 2d Sess. (1996), available in Westlaw, 1996 WL 49946. The Secretary of HUD has supported these amendments as necessary to encourage "the participation of good landlords in the program." The United States Housing Act of 1995: Hearings on H.R. 2406 before the Subcomm. on Housing and Community Opportunity of the House Banking and Financial Services Activity, 104th Cong., 2d Sess. (1995) (remarks prepared for Secretary Henry G. Cisneros, Secretary of HUD), available in Westlaw, 1995 WL 11095621. I agree that it would be unfair if the defendants' decision not to evict the four tenants who needed Section 8 assistance resulted in the defendants being hauled into full-fledged participation in a voluntary program.
In short, in enacting the 1988 amendment that requires landlords to either participate in full in the Section 8 program or participate not at all, Congress did not anticipate this case. Although its language addresses the facts of this case and produces one result, a faithful adherence to its intentions and to common sense requires another.
Congress is not gifted with omniscience and does not have the leisure to be able to tie a pretty ribbon around every piece of legislation, and so it often either overlooks or chooses not to attempt to solve problems that lack present salience or urgency. The use by judges of the form of words that Congress has employed to deal with the problem that was before it ... to solve a problem of which there is no evidence that Congress was ever aware is a formula for the perversion of the legislative purpose. We play "Gotcha!" with Congress. We make traps of its words.
Resolution Trust Corp. v. Chapman, 29 F.3d 1120, 1126 (7th Cir. 1994) (Posner, J., dissenting).
I am mindful that there are important limits to a district judge's authority to "correct" legislative oversights, and the boundaries of that authority may be hard to identify. However, the correct decision here is clear. Its literal terms notwithstanding, it makes no sense to construe the "take one, take all" provision to embrace the unique situation before me. To do so would punish acts of compassion and, in the end, harm the very class of people Section 8 was enacted to benefit. I hold that the provision is inapplicable when a landlord's only Section 8 participation has been the acceptance of such payments on behalf of existing tenants who became Section 8 tenants during their tenancy.
B. The Fair Housing Act Claims
1. The "Reasonable Accommodations" Claim