Sandpiper Residents Association v. United States Department of Housing & Urban Development

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 17, 2023 Decided July 5, 2024
No. 22-5334
SANDPIPER RESIDENTS ASSOCIATION, ET AL.,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF HOUSING & URBAN
DEVELOPMENT,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-01783)
Kimberly Brown Myles argued the cause for appellants.
With her on the briefs were Velimir Rasic, Laura B. Beshara,
and Michael M. Daniel.
Simon C. Brewer, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General, and Abby C. Wright, Attorney.
Before: WILKINS, KATSAS, and PAN, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKINS.

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WILKINS, Circuit Judge: Sandpiper Cove, a privately
owned apartment complex in Galveston, Texas, is subsidized
by the U.S. Department of Housing and Urban Development
(“HUD”) under the agency’s Section 8 project-based rental
assistance program. Through that program, HUD works with
landlords to reduce residents’ rent payments based on
residents’ ability to pay. Residents and the resident
association of Sandpiper Cove (collectively, “Plaintiffs”) filed
suit against HUD, arguing that the agency had failed to ensure
that Sandpiper Cove was maintained in a habitable condition.
As a result of the conditions at Sandpiper Cove, Plaintiffs
sought to compel HUD to issue so-called “Tenant Protection
Vouchers”—vouchers that would allow Sandpiper Cove’s
tenants to receive rental payment assistance from HUD for
use at properties elsewhere.
Congress has authorized HUD to provide tenants like
Plaintiffs with Tenant Protection Vouchers, but only under
certain circumstances. Specifically, HUD “may” provide
vouchers to tenants “where the owner” of the relevant units
“has received a Notice of Default and the units pose an
imminent health and safety risk to residents.” Consolidated
Appropriations Act, 2021, Pub. L. No. 116–260, 134 Stat.
1182, 1869 (2020) (the “Act”). Here, when Plaintiffs filed
their original complaint, “the owner” of Sandpiper Cove had
received a Notice of Default. Id. But that owner then sold the
property, and the new owner was not issued a Notice of
Default. Plaintiffs amended their complaint to reflect the sale.
The District Court dismissed Plaintiffs’ claims for lack of
subject-matter jurisdiction, reasoning that Plaintiffs’ claims
had been mooted by the sale because, in light of the sale, “the
owner” of Sandpiper Cove had not “received a Notice of
Default.”

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Plaintiffs appeal the District Court’s dismissal of their
claims. We hold that the District Court erred in dismissing
Plaintiffs’ claims as moot. The question whether Plaintiffs
are legally entitled to relief after the sale of Sandpiper Cove
goes to the merits of their case, not mootness. Still, although
we disagree with the District Court’s jurisdictional holding,
we nonetheless affirm the District Court’s dismissal of
Plaintiffs’ complaint because Plaintiffs failed to state a claim
upon which relief could be granted.
I.
A.
In 1974, Congress amended the United States Housing
Act of 1937 to establish, among other things, a “lower-income
housing assistance” program, Housing and Community
Development Act of 1974, Pub. L. No. 93–383, § 201(a), 88
Stat. 633, 662 (1974), designed to “aid[] low-income families
in obtaining a decent place to live,” 42 U.S.C. § 1437f(a); see
also Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 12 (1993).
Through that program, now commonly known as the Section
8 housing program, see Cisneros, 508 U.S. at 12, Congress
authorized HUD to provide financial assistance payments
“with respect to existing housing” to further that goal, 42
U.S.C. § 1437f(a). HUD disburses this financial assistance
primarily through two forms of programs: “tenant-based”
assistance and “project-based” assistance. Id. § 1437f(f)(6)–
(7); see also id. § 1437f(d)(2), (o); 24 C.F.R. § 982.1(b)(1).
Tenant-based assistance is linked to individual households,
while project-based assistance is linked to specific housing
units. See 24 C.F.R. §§ 886.309, 982.1(b).
HUD provides tenant-based assistance through the
Housing Choice Voucher Program. See id. § 982.1(a)(1).

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Under that program, HUD’s assistance is linked directly to
individual households; households can obtain a housing
subsidy from HUD for use on the private rental market. Once
participants are admitted to the program, they are responsible
for finding a suitable housing unit on the private rental
market. Id. § 982.1(b)(2); see also id. § 982.302(a)–(b).
HUD then subsidizes the program participant’s rent based on
the participant’s monthly income, id. § 982.1(a)(3); HUD
partners with state and local public housing agencies to
disburse financial assistance for rent payments directly to
owners on behalf of individual families, see id. § 982.1(a)(1).
Through HUD’s project-based assistance programs,
meanwhile, HUD contracts with individual landlords and
designates units in particular buildings owned by those
landlords as subsidized, project-based assistance units.
Landlords select their own tenants. See 42 U.S.C.
§ 1437f(d)(1)(A). Tenants selected by the landlords then
“make rental payments based on their income and ability to
pay”; HUD, in turn, “makes ‘assistance payments’ to the
private landlords in an amount calculated to make up the
difference between the tenant’s contribution and a ‘contract
rent’ agreed upon by the landlord and HUD.” Cisneros, 508
U.S. at 12; see also 42 U.S.C. § 1437f(c)(1)(A).
Congress provides funding for HUD’s Section 8
programs through annual appropriations legislation, including
in the 2021 Consolidated Appropriations Act. See 134 Stat. at
1865–99. The Act places certain requirements on HUD and
on the landlords who participate in HUD’s Section 8
programs. Specifically, the Act requires “[a]ny entity
receiving” payments through HUD’s project-based assistance
program to “maintain decent, safe, and sanitary conditions.”

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§ 219(a), 134 Stat. at 1897.1 HUD, in turn, must ensure that
owners of project-based assistance units do not fall short of
this requirement. See § 219, 134 Stat. at 1897–98. To that
end, HUD has promulgated regulations requiring participating
landlords to “maintain decent, safe, and sanitary conditions,”
id. § 219(a), 134 Stat. at 1897; see also 24 C.F.R §§ 5.703,
883.101(a), 886.323(a), and comply with various
maintenance- and utilities-related obligations, 24 C.F.R.
§ 5.703. As required by the Act, HUD also completes regular
inspections of project-based assistance units and notifies
owners of any deficiencies identified. § 219(b)–(c), 134 Stat.
at 1897–98; see also 24 C.F.R. §§ 5.703, 886.323(c)–(e).
The Act requires HUD to take action when an inspection
reveals that a property is not in decent, safe, and sanitary
condition. In that circumstance, HUD must “provide the
owner with a Notice of Default with a specified timetable,
determined by the Secretary, for correcting all deficiencies.”
§ 219(c)(1), 134 Stat. at 1898. If an owner does not correct
the deficiencies identified in the Notice of Default within the
time allotted, HUD may then take a number of enforcement
actions, including “requir[ing] immediate replacement of
project management,” “impos[ing] civil money penalties,” or
seeking to “stabilize the property” through “transfer of
ownership.” § 219(c)(2), 134 Stat. at 1898.
In addition, the Act provides that HUD may directly
assist tenants of an affected property by providing them with
1 Prior and subsequent annual appropriations legislation have
included materially identical language. See, e.g., Consolidated
Appropriations Act, 2023, Pub. L. No. 117–328, § 219(a), 136 Stat.
4459, 5175 (2022); Consolidated Appropriations Act, 2022, Pub. L.
No. 117–103, § 219(a), 136 Stat. 49, 759 (2022); Further
Consolidated Appropriations Act, 2020, Pub. L. No. 116–94,
§ 219(a), 133 Stat. 2534, 3005 (2019).

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“Tenant Protection Vouchers” (“vouchers”), which allow a
tenant to relocate to a property on the private rental market
while continuing to receive a housing subsidy from HUD.
Vouchers are a form of tenant-based rental assistance. An
individual who has received a voucher may find a landlord on
the private market willing to rent to them; HUD then
subsidizes their rent based on their ability to pay.
The Act contains a lump sum appropriation that permits
HUD to provide individuals with vouchers for a variety of
reasons, including to relocate individuals whose housing units
are “demolished” and to relocate “witnesses . . . in connection
with efforts to combat crime in public and assisted housing.”
134 Stat. at 1869. The Act authorizes HUD to provide
vouchers to residents of project-based assistance units, but
only under certain circumstances:
[T]he Secretary may provide [S]ection 8 rental
assistance from amounts made available under
this paragraph for units assisted under a
project-based subsidy contract funded under
the “Project-Based Rental Assistance” heading
under this title where the owner has received a
Notice of Default and the units pose an
imminent health and safety risk to residents[.]
Id. Thus, the Act authorizes HUD to provide vouchers to
tenants receiving project-based rental assistance, so long as
“the owner” of the relevant units “has received a Notice of
Default and the units pose an imminent health and safety risk
to residents.” Id.

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B.
This case concerns Plaintiffs’ efforts to compel HUD to
issue them vouchers so that they may move out of Sandpiper
Cove while continuing to receive a housing subsidy from
HUD. Sandpiper Cove has been subsidized by HUD since
1984. As of March 2015, Sandpiper Cove was owned by
Compass Pointe Apartments Texas, LLC (“Compass Pointe”).
In May 2019, a HUD inspection of Sandpiper Cove
revealed numerous problems with the property, including
insect infestations, inoperable kitchen appliances, poor
plumbing, and inoperable or missing smoke detectors. As a
result of the severity of the deficiencies discovered on the
property, and in keeping with HUD’s obligations under the
Act, see § 219(c)(1), 134 Stat. at 1898, HUD issued a Notice
of Default to Compass Pointe in which it provided the
company sixty days to correct the deficiencies identified.
HUD then worked with Compass Pointe to correct the
conditions at Sandpiper Cove. The agency helped Compass
Pointe to develop property improvement plans and required it
to replace its property management company. Despite those
efforts, however, many of the issues identified in the 2019
Notice of Default persisted more than two years later.
In June 2020, Plaintiffs—stuck living at Sandpiper Cove
despite the uninhabitable conditions there and frustrated with
the slow pace of the planned improvements to the property—
filed a complaint in federal district court against HUD,
seeking to compel HUD to provide them with vouchers.
In October 2021, at HUD’s encouragement, Compass
Pointe sold Sandpiper Cove to a new owner, Galveston 3916
Winnie Street GP, LLC (“Winnie Street”). Winnie Street

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agreed to allow Sandpiper Cove to remain a project-based
assistance property under Section 8 and stated its intention to
remedy the numerous issues at the property.
After the sale of Sandpiper Cove from Compass Pointe to
Winnie Street, Plaintiffs amended their complaint in
November 2021 in response to a motion to dismiss filed by
HUD. Plaintiffs’ Second Amended Complaint alleges that
HUD’s failure to provide Plaintiffs with vouchers violates the
Administrative Procedure Act, 5 U.S.C. § 706, is inconsistent
with HUD’s statutory obligations, and constitutes intentional
discrimination on the basis of race and ethnicity in violation
of the Fifth Amendment of the Constitution and the Fair
Housing Act, 42 U.S.C. § 3604(a). Plaintiffs’ complaint
seeks an injunction compelling HUD to issue vouchers to
Sandpiper Cove tenants. On the same day that they filed their
Second Amended Complaint, Plaintiffs moved for a
preliminary injunction requiring HUD to provide them with
vouchers. HUD opposed Plaintiffs’ motion for a preliminary
injunction and filed a motion to dismiss Plaintiffs’ complaint
for lack of subject-matter jurisdiction under Federal Rule of
Civil Procedure 12(b)(1) and for failure to state a claim for
which relief can be granted under Rule 12(b)(6).
The District Court granted HUD’s motion to dismiss,
concluding that Plaintiffs’ claims had been mooted by the sale
of Sandpiper Cove to Winnie Street. Sandpiper Residents
Ass’n v. U.S. Dep’t of Hous. & Urb. Dev., No. 20-1783
(RDM), 2022 WL 1604717, at *15 (D.D.C. May 21, 2022).
The District Court explained that, under the Act, HUD is
permitted to issue vouchers to individuals like the Plaintiffs
only where “the owner” of the relevant units “has received a
Notice of Default.” Id. at *4. When Plaintiffs originally filed
their complaint, that requirement had been met: Compass
Pointe had received a Notice of Default from HUD. But

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Compass Pointe no longer owned Sandpiper Cove. Because
Winnie Street—now “the owner” of Sandpiper Cove—had
not received a Notice of Default from HUD, the District Court
reasoned, HUD no longer had statutory authority to issue
vouchers to Plaintiffs, even if it were inclined to do so. Id. at
*8. The District Court explained that that issue mooted
Plaintiffs’ claims because the sale of Sandpiper Cove was an
intervening event that had rendered it impossible for the
District Court to grant Plaintiffs any effective relief. And the
District Court concluded that its jurisdictional holding
resolved all of Plaintiffs’ claims because, while Plaintiffs’
complaint had seemed at first glance to challenge more than
HUD’s decision not to issue Plaintiffs vouchers, the only
specific relief Plaintiffs sought was an order compelling HUD
to issue Plaintiffs vouchers. Id. at *15–16. The District Court
also noted that even if Plaintiffs’ claims were not moot,
Plaintiffs’ claims would likely still fail for lack of standing
because Plaintiffs had not demonstrated that their claims were
redressable. Id. at *13.
Plaintiffs now appeal. We review de novo the District
Court’s dismissal for lack of subject-matter jurisdiction. Kim
v. United States, 632 F.3d 713, 715 (D.C. Cir. 2011).
II.
A.
We turn first to the question whether the District Court
correctly concluded that Plaintiffs’ claims were mooted by the
sale of Sandpiper Cove.
Article III of the Constitution limits the federal courts to
adjudicating only “actual, ongoing cases or controversies.”
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990). “That

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limitation requires those who invoke the power of a federal
court to demonstrate standing—a ‘personal injury fairly
traceable to the defendant’s allegedly unlawful conduct and
likely to be redressed by the requested relief.’” Already, LLC
v. Nike, Inc., 568 U.S. 85, 90 (2013) (quoting Allen v. Wright,
468 U.S. 737, 751 (1984)).
“A case becomes moot—and therefore no longer a ‘Case’
or ‘Controversy’ for purposes of Article III—‘when the issues
presented are no longer “live” or the parties lack a legally
cognizable interest in the outcome.’” Id. at 91 (citation
omitted). “But a case ‘becomes moot only when it is
impossible for a court to grant any effectual relief whatever to
the prevailing party.’” Chafin v. Chafin, 568 U.S. 165, 172
(2013) (quoting Knox v. Serv. Empls, 567 U.S. 298, 307
(2012)). This Court must “assume that the plaintiff[s] will
‘prevail’” on the merits of their claims unless their arguments
that the “relief sought is legally available and that [they are]
entitled to it is ‘so implausible that it is insufficient to
preserve jurisdiction.’” Almaqrami v. Pompeo, 933 F.3d 774,
779 (D.C. Cir. 2019) (quoting Chafin, 568 U.S. at 174).
Plaintiffs argue that the District Court erred in holding
that their claims were moot. HUD, meanwhile, maintains that
Plaintiffs’ claims were mooted by the sale of Sandpiper Cove.
HUD emphasizes that the Act permits HUD to provide
vouchers only if “the owner [of the relevant property] has
received a Notice of Default.” 134 Stat. at 1869. Because
Winnie Street—the current owner of Sandpiper Cove—has
not received a Notice of Default, HUD contends that it is
impossible for the District Court to “grant any effectual
relief” to Plaintiffs. Knox, 567 U.S. at 307 (citation and
internal quotation marks omitted).

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We do not think this case is moot. Here, the relevant
facts have not changed such that it is actually “impossible” for
any order to remedy Plaintiffs’ claimed wrong. Id. Plaintiffs
continue to live in project-based assistance units at Sandpiper
Cove, and they still want HUD to issue them vouchers. HUD
still subsidizes rent at Sandpiper Cove under its project-based
assistance program, so HUD could take action with respect to
the property and its tenants if ordered to do so. And HUD
maintains that it does not wish to provide Plaintiffs with
vouchers. Thus, this case remains live, and “there is not the
slightest doubt that there continues to exist between the
parties ‘that concrete adverseness which sharpens the
presentation of issues.’” Chafin, 568 U.S. at 173 (quoting
Camreta v. Greene, 563 U.S. 692, 701 (2011)).
Further, in evaluating mootness, we must assume that
Plaintiffs will prevail on the merits of their claims. Plaintiffs’
claims that vouchers remain available to them are facially
plausible, and nothing more is required to preserve
jurisdiction. See Steel Co. v. Citizens for a Better Env’t, 523
U.S. 83, 89 (1998) (“Dismissal for lack of subject-matter
jurisdiction because of the inadequacy of the federal claim is
proper only when the claim is ‘so insubstantial, implausible,
foreclosed by prior decisions of this Court, or otherwise
completely devoid of merit as not to involve a federal
controversy’” (quoting Oneida Indian Nation of N.Y. v.
County of Oneida, 414 U.S. 661, 666 (1974))). With that
assumption in mind, the relief Plaintiffs seek—an order
requiring HUD to provide them with vouchers—would
relieve their claimed injury. This case is, accordingly, not
moot.
We think HUD’s argument to the contrary “confuses
mootness with the merits.” Chafin, 568 U.S. at 174. HUD’s
contention is, at bottom, that the sale of Sandpiper Cove

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means that HUD no longer has statutory authority to issue
vouchers to Plaintiffs. But that is not an argument that this
dispute has been extinguished. Rather, HUD’s underlying
contention is that changed circumstances have doomed
Plaintiffs’ chances of success on the merits of their claims
because the legal relief they seek—an order compelling HUD
to issue them vouchers—is no longer available. As the
Supreme Court has explained, however, questions regarding
the “legal availability of a certain kind of relief” go to the
merits of a case, not mootness. Id.; see also, e.g., Powell v.
McCormack, 395 U.S. 486, 500 (1969) (distinguishing
between mootness and whether the plaintiff had “established a
right to recover”); Morrison v. Nat’l Australia Bank Ltd., 561
U.S. 247, 254 (2010) (noting that subject-matter jurisdiction
“presents an issue quite separate from the question whether
the allegations the plaintiff makes entitle him to relief”).
Indeed, at oral argument, counsel for HUD conceded that this
case is moot only if HUD’s interpretation of the Act is
correct. See Oral Arg. Tr. at 11. That is the stuff of the
merits, not mootness.
We accordingly hold that the District Court erred in
dismissing Plaintiffs’ claims as moot.
B.
HUD contends that even if this case is not moot, this
Court still lacks subject-matter jurisdiction over Plaintiffs’
claims for a separate reason—that Plaintiffs lack standing
because they have failed to demonstrate redressability. We
disagree.
As we have explained, “a showing of standing ‘is an
essential and unchanging’ predicate to any exercise of our
jurisdiction.” Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658,

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663 (D.C. Cir. 1996) (quoting Lujan v. Defs. of Wildlife, 504
U.S. 555, 560 (1992)). To establish standing, a plaintiff
“must show (1) an injury in fact that is ‘concrete and
particularized’ and ‘actual or imminent’; (2) that the injury is
fairly traceable to the defendant’s challenged conduct; and (3)
that the injury is likely to be redressed by a favorable
decision.” Am. Soc’y for Prevention of Cruelty to Animals v.
Feld Ent., Inc., 659 F.3d 13, 19 (D.C. Cir. 2011).
Relying on this Court’s decision in Marino v. National
Oceanic & Atmospheric Administration, 33 F.4th 593 (D.C.
Cir. 2022), HUD argues that Plaintiffs have failed to
demonstrate that their claims are redressable. In Marino,
plaintiffs sued the National Marine Fisheries Service
(“NMFS”), seeking to require the NMFS to enforce certain
conditions in permits held by SeaWorld. Id. at 595. The
NMFS had indicated to the plaintiffs that, based on the
agency’s interpretation of a statute, it believed that enforcing
the relevant permit conditions was outside of its jurisdiction.
Id. The plaintiffs argued that the NMFS’s interpretation of
the statute was arbitrary and capricious, and requested an
order declaring that the NMFS had violated the
Administrative Procedure Act and vacating its decision not to
enforce the relevant permit conditions. Id. at 595–97.
This Court held that the plaintiffs lacked standing
because they had failed to show redressability. Id. at 596.
The Court explained that the relevant statute was “permissive
on its face”—it did not require the NMFS to enforce the
permit conditions. Id. at 597. So even if the NMFS had erred
in reasoning that it lacked statutory authority to enforce the
permit conditions, the NMFS still retained the discretion
whether to enforce the permit conditions, but was not required
to do so. Id. And the plaintiffs did not “allege any reason to
believe” that the agency would, in fact, “enforce the permit

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conditions if the plaintiffs received all the relief they
requested, namely an injunction requiring the agency to
rescind its interpretation of” the statute or “declaratory relief
that the agency’s interpretation of the statute is unreasonable.”
Id. Put differently, even if the Court declared that the agency
had misinterpreted the statute and that the agency actually had
jurisdiction to enforce the permit conditions, the plaintiffs had
not shown that the agency would do anything different with
respect to enforcing the permit conditions on remand.
HUD argues that Plaintiffs here have failed to establish
redressability for similar reasons. HUD explains that, like in
Marino, the relevant statutory language is phrased in
permissive terms: the Act states that HUD “may” issue
vouchers under certain circumstances, but does not require
HUD to do so. 134 Stat. at 1869 (emphasis added). And
HUD maintains that it has no intention of issuing Plaintiffs
vouchers.
Contrary to HUD’s arguments, Plaintiffs have
demonstrated that their claimed injuries—being forced to live
in uninhabitable conditions despite HUD’s obligation to
maintain its Section 8 properties—are redressable. In
reviewing questions about a plaintiff’s standing, we “must be
careful not to decide the questions on the merits for or against
the plaintiff, and must therefore assume that on the merits the
plaintiffs would be successful in their claims.” City of
Waukesha v. EPA, 320 F.3d 228, 235 (D.C. Cir. 2003); see
also In re Navy Chaplaincy, 534 F.3d 756, 760 (D.C. Cir.
2008). Here, Plaintiffs allege that HUD’s failure to provide
them with vouchers is itself unlawful because it violates
HUD’s statutory and regulatory obligations and constitutes
unconstitutional intentional discrimination. Assuming that
those contentions are correct, Plaintiffs’ injuries would be
redressed “if the plaintiffs received all the relief they

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requested”—namely, an injunction requiring HUD to provide
them with vouchers. Marino, 33 F.4th at 597. Thus, this case
differs from Marino in a key way: while the Marino plaintiffs
challenged an agency’s interpretation of a statute as
unreasonable and requested an order requiring the agency to
reconsider that interpretation, here, the Plaintiffs challenge an
agency action as itself unlawful and request an order forcing
the agency to act differently. Assuming that Plaintiffs are
correct on the merits of their claims, their injuries would be
redressed by a favorable order by this Court. Nothing more is
required to demonstrate standing.
III.
Although we have held that the District Court erred in
dismissing Plaintiffs’ claims on jurisdictional grounds, that
does not end the matter: we “could nonetheless affirm the
dismissal if dismissal were otherwise proper based on failure
to state a claim under Federal Rule of Civil Procedure
12(b)(6).” EEOC v. St. Francis Xavier Parochial Sch., 117
F.3d 621, 624 (D.C. Cir. 1997). In determining whether a
complaint fails to state a claim, we must accept Plaintiffs’
allegations as true and draw all inferences in their favor. See
id. at 625. “We do not accept as true, however, the plaintiff’s
legal conclusions or inferences that are unsupported by the
facts alleged.” Ralls Corp. v. Comm. on Foreign Inv. in U.S.,
758 F.3d 296, 315 (D.C. Cir. 2014). “So long as the
pleadings suggest a ‘plausible’ scenario to ‘show that the
pleader is entitled to relief,’ a court may not dismiss.”
Atherton v. D.C. Office of Mayor, 567 F.3d 672, 681 (D.C.
Cir. 2009) (brackets and citation omitted); see also Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 557 (2007).
Applying these principles here, we believe that Plaintiffs
have failed to state a claim upon which relief could be

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granted. To begin with, we think that the only relief Plaintiffs
articulated with sufficient particularity in their complaint is
their claim that HUD must provide them with vouchers. As
the District Court explained, Plaintiffs’ complaint at times
seems to gesture at a broader discrimination claim against
HUD and perhaps to challenge more agency conduct than
solely HUD’s voucher decision. But the only specific agency
action Plaintiffs point to in their complaint is HUD’s decision
not to provide them with vouchers—and the only relief
Plaintiffs articulate with any degree of specificity is the
issuance of those same vouchers. Further, if there were any
doubt that Plaintiffs are solely focused on obtaining vouchers,
Plaintiffs’ briefing in the District Court confirms the point: in
response to HUD’s motion to dismiss and in a later motion to
alter or amend the District Court’s opinion dismissing their
claims, Plaintiffs raised arguments concerning only the
voucher issue, not any other claim or agency conduct.
Thus, the determinative question is whether Plaintiffs
have stated a claim that they are entitled to vouchers. As we
have explained, those vouchers are available to individuals
like Plaintiffs only where “the owner has received a Notice of
Default and the units pose an imminent health and safety risk
to residents.” 134 Stat. at 1869. While the District Court
erred in addressing the issue in jurisdictional terms, we agree
with its underlying conclusion that the sale of Sandpiper Cove
left HUD without statutory authority to issue vouchers to
Plaintiffs because, even assuming the units pose a health and
safety risk to residents, “the owner” of Sandpiper Cove—
Winnie Street—has not received a Notice of Default.
To begin, the plain text of the Act dictates that vouchers
are available to individuals like Plaintiffs only where the
current owner of the relevant units has received a Notice of
Default. Significantly, the Act limits HUD to providing

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vouchers only where “the owner” has received a Notice of
Default. Id. (emphasis added). It “is a rule of law well
established that the definite article ‘the’ particularizes the
subject which it precedes.” Am. Bus Ass’n v. Slater, 231 F.3d
1, 4–5 (D.C. Cir. 2000) (citation omitted). Here, the
particularizing function of the word “the” in the Act is clear:
“the owner” of a property is the entity that owns the property.
Plaintiffs resist this straightforward reading of the
statutory text. They emphasize that the relevant statutory text
is phrased in the present perfect tense—that is, the Act states
that vouchers are available only where “the owner has
received a Notice of Default.” 134 Stat. at 1869 (emphasis
added). In Plaintiffs’ view, Congress’s choice of the present
perfect tense indicates its intent to include events that
occurred in the past; it is accordingly sufficient under the Act
for any previous owner of a property to have received a
Notice of Default.
Plaintiffs’ contention misses the mark. While
“Congress’[s] use of a verb tense is significant in construing
statutes,” United States v. Wilson, 503 U.S. 329, 333 (1992);
see also Carr v. United States, 560 U.S. 438, 448 (2010),
Plaintiffs misapprehend the import of the present perfect tense
in the Act to the facts of this case. The present perfect tense
is, as Plaintiffs contend, used to describe an act that was
completed at some point in the “indefinite past” or a “past
action that comes up to and touches the present.” THE
CHICAGO MANUAL OF STYLE ¶ 5.132 (17th ed. 2017); see
also, e.g., Emerald Mines Co. v. Fed. Mine Safety and Health
Rev. Comm’n, 863 F.2d 51, 56 n.5 (D.C. Cir. 1988) (noting
that the present perfect tense can indicate either an “action
that began in the past but continues into the present” or a
“past action[] that ha[s] been completed”); Barrett v. United
States, 423 U.S. 212, 216 (1976) (noting that the present

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perfect tense denotes “an act that has been completed”).
Plaintiffs’ proffered interpretation ignores, however, that the
subject of the present perfect tense in the Act is “the owner”
of Sandpiper Cove—Winnie Street. And Winnie Street has
never received a Notice of Default.
Thus, vouchers are available under the Act only where
the current owner of the relevant units “has received a Notice
of Default.” 134 Stat. at 1869. Plaintiffs’ complaint is devoid
of facts showing that that condition has been met here.
Plaintiffs did not allege that Winnie Street has been issued a
Notice of Default; rather, Plaintiffs’ complaint explicitly
refers to Compass Pointe as the “prior owner” of Sandpiper
Cove and refers only to the Notice of Default that was issued
to Compass Pointe. Plaintiffs contend on appeal that even if
Winnie Street was never directly issued a Notice of Default,
the original Notice of Default that was issued to Compass
Pointe “transferred” to Winnie Street upon the sale of
Sandpiper Cove. But Notices of Default do not necessarily
transfer to new owners. And Plaintiffs did not allege in their
operative complaint that the Notice of Default had, in fact,
transferred. Nor did they allege any facts tending to indicate
that such a transfer occurred.
In sum, based on the facts alleged in Plaintiffs’
complaint, Plaintiffs have failed to “suggest a ‘plausible’
scenario” showing that they are entitled to relief. Atherton,
567 F.3d at 681 (citation omitted). We accordingly hold that
Plaintiffs have failed to state a claim upon which relief could
be granted and affirm the District Court’s dismissal of their
claims.
So ordered.

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