UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

Case No. 02-2675

PEOPLE TO END HOMELESSNESS, INC.,

Plaintiff/Appellant,

DEVELCO TENANTS ASSOCIATION,

Plaintiff,

v.

DEVELCO SINGLES APARTMENTS ASSOCIATES; DEVELCO MODERN APARTMENTS ASSOCIATES; DEVELCO APARTMENTS, INC.; DEVELCO FAMILY APARTMENTS ASSOCIATES; HEDCO, LTD.; WOONSOCKET HOUSING AUTHORITY; MEL MARTINEZ, in his official capacity as Secretary of the U.S. Dept. of Housing and Urban Development; UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,

Defendants/Appellees,

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF RHODE ISLAND

MOTION FOR PERMISSION TO PROVIDE

SUPPLEMENTAL AUTHORITY

Appellant People To End Homelessness (PEH) moves the Court for an order, pursuant to Fed. R. App. P. 27, and 28 (f), permitting it to include an Addendum to its Reply Brief herein, setting out supplemental authorities.

Following the filing of its initial brief in this appeal, PEH learned of new pertinent and significant legal authority bearing heavily on the issues in this appeal. PEH cited this authority in its Reply Brief and, pursuant to Fed. R. App. P. 28(f), set out this authority in an addendum at the end of the Reply Brief. The day after filing the Reply Brief, counsel for PEH was notified by the office of the Clerk of the First Circuit Court of Appeals that an addendum could be attached to a Reply Brief only upon motion to the Court.

Subsequent to filing its initial brief, PEH learned through its counsel that Appellee Secretary of the Department of Housing and Urban Development (HUD) had declared a legal position to members of Congress at odds with the position HUD has taken on legal issues in this appeal.

On October 9, 2002, representatives of HUD testified before the Senate’s Subcommittee on Housing and Transportation on the subject of “Affordable Housing Preservation.” Declaration of Timothy L. Thompson (hereinafter "Thompson Decl.") ¶ 1, Exhibit 1. Subsequently Senator Paul Sarbanes requested that HUD respond in writing to a series of follow-up questions. On December 9, 2002, HUD Deputy Assistant Secretary William M. Himpler provided Senator Sarbanes with HUD’s written response to the questions. Thompson Decl., Exhibit 1. One question Congress posed to HUD dealt with the situation where an owner had failed to provide tenants with a one year notice of the owner's intention to opt out of its Section 8 contract, the very situation at issue in this case. HUD response, Response 5(b) on page 6, Thompson Decl., Exhibit 1. Congress noted that in such a situation "HUD does not have to pay the owner the higher rents under enhanced vouchers." Id. Congress asked HUD if this tool had been used to force compliance with notice requirements. Id. HUD responded, in part, as follows:

In cases where improper notice has been provided, eligible families residing in the property will still be issued enhanced vouchers when the contract expires. The family may use the voucher to remain in their current unit or they may elect to use the voucher to move to another property. Should the family elect to remain in their current unit, the voucher housing assistance payments contract may not commence until the full one-year notice has been met. The effect of this action is that the owner will not receive any voucher assistance payments until proper notice has been provided to the tenants.

Id. (Emphasis added).

To the best of counsel’s knowledge, this response did not become available to the general public until some time after that date, and in any event, neither PEH nor its counsel became aware of this additional authority until PEH was preparing its Reply Brief.

This authority is critical for the Court to consider as it pertains directly to issues raised at pages 14-15 and 30-34 of PEH’s original brief and to HUD’s position set out at pages 18-20, 25, and 27 of HUD’s brief.

Fed. R. App. P. 28 (f) requires that such relevant material be set out in an addendum to a brief. The rule makes no distinctions between an Appellant’s initial and reply briefs. Further, it is clear from Fed. R. App. P. 28 (j) that when pertinent and significant authorities come to a party’s attention after all briefs have been filed, or even after oral argument, that the party may promptly advise the circuit clerk of such by letter. Since the matter at issue here arose before PEH filed its Reply Brief, a letter setting out this additional authority seemed less appropriate than placing the matter in a Reply Brief addendum. The authority at issue here is a formal statement of agency interpretation of the law which would not be easily available to the court absent its inclusion with the brief in some fashion, much like an unreported decision or a just-published agency rule or proposed rule. For that reason PEH submitted this matter in its Reply Brief addendum.

PEH has now been advised that a motion should be directed to the Court for permission to include this addendum. Thus, PEH seeks such authorization, or in the alternative, that these motion papers be treated as the kind of letter submission called for by Rule 28(j). As PEH noted in its Reply Brief, given the fact that Appellees would normally have no further briefing opportunities to respond to this new authority, PEH would have no objection if the Court were to provide Appellees with such an opportunity.

Respectfully submitted,

Dated:May 1, 2003______

Housing Preservation Project

John Cann (No. 88075)

Timothy L. Thompson (No. 88074)

Ann M. Norton (No. 88073)

570 Asbury Street, Suite 105

St. Paul, MN 55104

(651) 642-0102

Rhode Island Legal Services, Inc.

Steven Fischbach (No. 7963)

56 Pine Street, Fourth Floor

Providence, RI 02903

(401) 274-2652

Attorneys for the Appellant People

to End Homeless

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