Theodore Hayes v. Philip Harvey (2018)

Citation: Theodore Hayes v. Philip Harvey (2018)
Parent Document: Theodore Hayes v. Philip Harvey (2018)
Jurisdiction: United States (federal)
Effective Date: 2018-08-31
Original Source: https://www.courtlistener.com/opinion/4532088/theodore-hayes-v-philip-harvey/ ↗

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exercises this right to remain except for cause” and that
“[o]wners must continually renew the lease of an enhanced
voucher family”). As the majority correctly notes, these
documents lack the force of law, and are therefore not accorded
deference under Chevron U.S.A., Inc. v. Natural Resources
Defense Council, Inc., 467 U.S. 837 (1984). Rather, they are
entitled to a “degree of respect” under Skidmore v. Swift & Co.,
323 U.S. 134 (1944), but only to the extent that HUD’s
interpretation has the “power to persuade.” Christensen v.
Harris Cty., 529 U.S. 576, 587 (2000) (quoting Skidmore, 323
U.S. at 140). I am not persuaded.
        Some of the “most important considerations are whether
the agency’s interpretation ‘is consistent and contemporaneous
with other pronouncements of the agency.’” Hagans v.
Comm’r of Soc. Sec., 694 F.3d 287, 298 (3d Cir. 2012) (quoting
Del. Dep’t of Nat. Res. & Envtl. Control v. U.S. Army Corps of
Eng’rs, 685 F.3d 259, 284 (3d Cir. 2012)). Admittedly, HUD’s
policy guidance was first issued contemporaneously with the
2000 amendment and has been consistent. In addition, HUD
has “relative expertise,” id. at 305, in administering the
statutory scheme. But expertise and consistency do not alone
require deference. We must also consider whether HUD’s
interpretation “is reasonable given the language and purpose of
the [statute],” id. at 304, “the thoroughness evident in [HUD’s]
consideration, the validity of its reasoning . . . and all those
factors that give it the power to persuade, if lacking the power
to control.” Young v. United Parcel Serv., Inc., 135 S. Ct. 1338,
1352 (2015) (quoting Skidmore, 323 U.S. at 140). Here,
HUD’s statement that “[o]wners must continually renew the
lease of an enhanced voucher tenancy,” is contained in one
paragraph of HUD’s nearly 200-page Section 8 Renewal
Guidebook. HUD Section 8 Renewal Policy, Ch. 11, ¶ 11-3(B)
(2017). Nowhere in this guidance does HUD explain the

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