Salute v. Stratford Greens Garden Apartments

JACOBS, Circuit Judge.

Plaintiffs Richard Salute and Marie Kra-vette are individuals with disabilities who qualify to receive Section 8 housing assistance from the federal government, but who were unable to become tenants at Stratford Greens Garden Apartments because the landlord refuses to rent apartments to Section 8 certificate holders. Kravette and Salute, together with plaintiff Long Island Housing Services, brought suit against the owners and managers of the apartment complex (collectively “Stratford Greens”), alleging that their refusal to rent apartments to Salute and. Kravette violated (i) the United States Housing Act’s “take one, take all” provision, 42 U.S.C. § 1437f(t)(1)(a), and (ii) the Fair Housing Act, 42 U.S.C. § 3601-3631. Under these statutes:

(i) No landlord is required by law. to accept Section 8 tenants; but (at the relevant time) the “take one, take all” provision prohibited an owner who voluntarily accepted any Section 8 tenant from rejecting others by reason of their status as Section 8 participants.

(ii) The Fair Housing Act prohibits discrimination in the sale or rental of dwellings to persons with disabilities, and expands the definition of discrimination to include a refusal to make certain reasonable accommodations needed to afford them an equal opportunity to use and enjoy a dwelling.

The district court held on summary judgment that the “take one, take all” provision was inapplicable in this case because the only Section 8 tenants at Stratford Greens were tenants who, having experienced reversals of fortune, had enrolled in the Section 8 program during their tenancy, and whom the owners had decided not to evict. The court also held that plaintiffs had failed as a matter of law to make out either a claim of disparate impact under the Fair Housing Act, or a claim under that Act’s reasonable accommodations provision.

Soon after the district court issued its opinion, but prior to the briefing of this appeal, Congress repealed the “take one, take all” provision. Nevertheless, plaintiffs appeal all three of the district court’s rulings, and, for the reasons set forth below, we affirm.

BACKGROUND

The facts in this ease are undisputed. Plaintiffs Salute and Kravette are both disabled by multiple ailments, and have been found eligible for low income housing assistance under the Section 8 housing program, established by the United States Housing Act of 1937, as amended by The Housing and Community Development Act of 1974.

The Section 8 program is administered by the Department of Housing and Urban Development (“HUD”). When a Section 8 cer-tifícate holder finds an apartment that meets the applicable rent guidelines, and the landlord has agreed to participate in the Section 8 program, the tenant pays in rent an amount not exceeding 30% of the tenant’s gross income, and the government contracts with the private landlord to pay a subsidy equal to the remainder of the market rent. Participation by landlords is voluntary; they lawfully may refuse to accept applications from Section 8 beneficiaries.

Stratford Greens is a 365-unit apartment complex in Suffolk County, New York, managed by defendant Holiday Management Associates, of which Gerald Monter is the CEO. Monter’s practice at Stratford Greens has been to refuse to accept applications from prospective tenants who are receiving Section 8 assistance, because (as he explains) he does not want to get involved with the federal government and its rules and regulations. Stratford Greens has never accepted a tenant who, at the time of application, was a Section 8 participant. On four occasions over the past 15 years, however, Monter has agreed to accept Section 8 payments on behalf of tenants already residing at Stratford Greens. On each occasion, the tenant became a Section 8 certificate holder during the tenancy, and Monter agreed to take the Section 8 subsidies rather than evict. Two of these tenants still reside at Stratford Greens,and both are still Section 8 participants.

Salute received a Section 8 certificate in 1993, found an apartment in Stratford Greens that met his needs, but was turned down because he was a Section 8 participant. Kravette had been a Section 8 tenant in a two-bedroom apartment from 1990 to 1995, but was forced to find a one-bedroom apartment after her son moved out. Like Salute, she found an appropriate apartment at Strat-ford Greens, and was turned down for the same reason.

This action was originally commenced in October 1993 by Salute and Long Island Housing Services. Their complaint alleged that the defendants had violated the Fair Housing Act, 42 U.S.C. § 3601-3631, by discriminating against a person with disabilities, and by refusing to make “reasonable accommodations” to facilitate the rental. The district court denied defendants’ original motion to dismiss in April 1994.

After learning through discovery that defendant had accepted Section 8 certificates from four tenants, plaintiffs filed an amended complaint in February 1995, raising a claim of discrimination under the United States Housing Act’s “take one, take all” provision, 42 U.S.C. § 1437f(t)(l)(A). On May 9, 1995, plaintiffs moved for leave to file an amended and supplemental complaint adding Kravette as a party, and sought a preliminary injunction permitting her to occupy an apartment at, Stratford Greens pending the outcome of this case. On May 26, 1995, Judge Gleeson concluded that Kravette had shown a likelihood of success on the merits of her claim under the “take one, take all” provision, and granted the injunction.

Plaintiffs and defendants cross-moved for summary judgment on liability. On March 21,1996, the district court issued a memorandum and order granting the defendants’ motion and denying the motion of the plaintiffs. See Salute v. Stratford Greens, 918 F.Supp. 660 (E.D.N.Y.1996). The court engrafted an exception onto § 1437f(t)(1)(A), holding the provision inapplicable where the only Section 8 holders in the development are existing tenants who acquired Section 8 status during their tenancy. Id. at 666. The court also held that defendants (i) had not violated the reasonable accommodations provision of the FHA, and (ii) had not violated the FHA under a disparate impact analysis. Id. at 667-68. Judgment was entered on March 22, 1996, but the district court stayed any action by defendants with respect to the termination of Kravette’s tenancy pending resolution of this appeal.

On April 26, 1996, after entry of judgment but before briefing and oral argument of this appeal, Congress repealed the “take one, take all” provision. See Pub.L. No. 104-134, § 203(a), (d), 110 Stat. 1321 (1996) (effective for fiscal year 1996); Pub.L. No. 104-204, § 201(e), 110 Stat. 2893 (1996) (effective for fiscal year 1997).

DISCUSSION

A grant of summary judgment is reviewed de novo. Briones v. Runyon, 101 F.3d 287, 291 (2d Cir.1996). Summary judgment is proper only where no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. Graham v. Henderson, 89 F.3d 75, 79 (2d Cir.1996). However, we may affirm the district court on any ground that finds support in the record. United, States v. International Bhd. of Teamsters, 948 F.2d 1338, 1347 (2d Cir.1991).

A Claims under the “take one, take all” provision of the United States Housing Act, 42 U.S.C. § 1437f(t)(1)(A).

Now repealed, 42 U.S.C. § 1437f(t)(1)(A) provided:"

(1)No owner who has entered into a contract for housing assistance payments under this section on behalf of any tenant in a multifamily housing project shall refuse—

(A)to lease any available dwelling unit in any multifamily housing project of such owner ... to a holder of a certificate of eligibility under this section a proximate cause of which is the status of such prospective tenant as a holder of such certificate, and to enter into a housing assistance payments contract respecting such unit.

In effect, this section prohibited owners who participate in the section 8 program from refusing to rent to people because they are Section 8 certificate holders.

The district court concluded that it could “appropriately engraft an exception onto the ‘take one, take all’ provision,” Salute, 918 F.Supp. at 664, so that it would not apply if “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.” Id. at 666. The court reasoned that the literal application of § 1437 to this case, as sought by plaintiffs, would disserve the goal of the Section 8 program by provoking the eviction of persons who qualify for certificates, without’ advancing any purpose of the “take one, take all” provision. Id. at 664.

We hold that the district court’s exception to' the (now repealed) § 1437f(t) was properly drawn, and therefore reject plaintiffs’ contention on appeal that the district court’s ruling was improper and inappropriate. Courts may adopt a restricted rather than the literal or usual meaning of a statute “where acceptance of that [literal] meaning would lead to absurd results or would thwart the obvious purpose of the statute.” Helvering v. Hammel, 311 U.S. 504, 510-11, 61 S.Ct. 368, 371-72, 85 L.Ed. 303 (1941) (emphasis added) (citations omitted). The plain meaning of a statute may not be controlling in those rare cases where “literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters.” ' Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir.1995). This exception to the normal rule “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).

The clear purpose of § 1437f(t) was to prevent landlords from picking and choosing from the pool of Section 8 applicants who apply to rent apartments, and thereby to promote access to decent and affordable housing for lower income households. See H.R. No. 100-122(1) at 32, 53 (1987), reprinted in 1987 U.S.C.C.A.N. at 3348, 3369. We concur in Judge Gleeson’s conclusion that literal application of the statute in this case would make little sense, and adopt his observations on the subject:

It would create a powerful incentive for landlords who have chosen not to partid-pate 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. -

Salute, 918 F.Supp. at 664.

We agree that Congress, could not have intended in enacting § 1437f(t) to create incentives for the eviction of the people the law was drawn to protect. That would be an “absurd result” both in terms of the purposes of § 1437f(t) and the overarching purposes of housing rights statutes in general.¹ Considering that landlords have a statutory right to avoid Section 8 participation, and that landlords such as Monter and Stratford Greens will elect non-participation in order to avoid red tape and the other coils of government, a literal application of the “take one, take all” provision would have the effect of transforming people who (i) qualify for Section 8 certificates and (ii) have homes, into people who (i) qualify for Section 8 certificates and (ii) are homeless.

The district court also pointed out that a decision in plaintiffs’ favor would punish Stratford Greens for its compassionate unwillingness to evict by forcing them into a “marriage with the government,” which would include “required contracts with HUD, the regulations regarding security deposits, and the cumbersome process of terminating leases.” Id. at 665. The court concluded that Congress had failed to anticipate these adverse consequences,- and drew support from the “numerous legislative efforts ... to repeal the ‘take one, take all’ provision ... to minimize the burdens of Section 8 participation in order to make the program more attractive to landlords.” Id.

Now that Congress has actually repealed “take One, take all,” one could say that it was repealed to avoid a misinterpretation that could result in evictions of persons that Congress is solicitous to protect, a view that would support our holding. We recognize that one could also say that it was repealed because that effect would flow from the proper reading of the statute, but in any event, repeal assures that our reading does no violence to any clearly expressed congressional intent.

In the end, we think the “take one, take all” provision is best read and understood in tandem with the voluntary nature of the Section 8 program, the congressional intent to secure residence for covered persons, and the goal of avoiding discrimination among classes of Section 8 beneficiaries. We therefore hold that the district court’s exception was properly drawn,- and affirm the district court’s conclusion that § 1437f(t) is inapplicable when a landlord’s only Section 8 participation has been the acceptance of payments on behalf of existing tenants who became Section 8 certificate holders during their tenancy.

In any event, it is very far from clear that plaintiffs would have had a viable claim under § 1437f(t) even if such an exception were improper. Before we could consider such a claim, we would be required to resolve close questions-concerning the effect of § 1437f(t)’s repeal, and as to whether a private cause of action for damages is (or was) maintainable under the statute.

It is clear that plaintiffs cannot now obtain any injunctive relief pursuant to the repealed § 1437f(t), and plaintiffs concede as much.² As to plaintiffs’ claim for damages, we note that section 1437f(t) does not expressly grant a private right of action in favor of Section 8 certificate holders, which would mandate consideration of whether such a right should be implied in the statute. That determination would require consideration of the factors set forth in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), by the dim light of § 1437f(t)’s sparse legislative history.³ And even if we were to imply a private right of action, we would then be faced with the analytically distinct question of whether a monetary damages remedy is available in a suit brought pursuant to this implied right. See Franklin v. Gwinnett County Pub. Schools, 503 U.S. 60, 69, 112 S.Ct. 1028, 1034, 117 L.Ed.2d 208 (1992); Davis v. Passman, 442 U.S. 228, 239, 99 S.Ct. 2264, 2273-74, 60 L.Ed.2d 846 (1979). This question would in turn require us to resolve whether the general rule that federal courts may award all appropriate relief should in this case “nevertheless yield[ ] where necessary to carry out the intent of Congress or to avoid frustrating the purposes of the statute involved.” Guardians Ass’n v. Civil Serv. Comm’n of the City of New York, 463 U.S. 582, 595, 103 S.Ct. 3221, 3229, 77 L.Ed.2d 866 (1983) (plurality opinion).⁴

We also have severe doubts as to plaintiffs’ theory of injury and damages — that in seeking to use their certificates at Stratford Greens, they were third party beneficiaries to the contract between the defendants and the Housing Authority. At this point, we note only that such a theory has little if any support in the law, and might severely discourage landlord participation in the Section 8 program by creating an open-ended liability for landlord-participants. Finally, we note the acknowledgement by plaintiffs’ counsel at oral argument that Kravette may very well have suffered no damages.

B. Claims under the “Reasonable Accommodations” Provision of the Fair Housing Act, 42 U.S.C. § 3604(f)(3)(B).

The Fair Housing Amendments Act of 1988 (“FHAA”) extended the Fair Housing Act’s principle of equal opportunity in housing to individuals with handicaps. The Act makes it unlawful,

[t]o discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because pf a handicap of that person.

42 U.S.C. § 3604(f)(2)(A). Under the FHAA, discrimination includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B) (emphasis added). Thus, if. the reasonable accommodations provision is triggered, a defendant can be required to incur .“reasonable costs” to accommodate a plaintiff’s handicap, “provided such accommodations do not pose an undue hardship or a substantial burden.” Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 335 (2d Cir.1995) (emphasis added).

Salute and Kravette contend that the defendants’ refusal to reasonably accommodate them by accepting their Section 8 certificates violated the FHÁA. This argument presents at least two questions under the statute: (A) Is a landlord’s participation in the Section 8 program an accommodation to the plaintiffs’ handicaps within the meaning of the statute? (B) If so, is such an accommodation a reasonable one that the landlord is therefore required to make? -

The district court’s opinion was premised largely on the ground that an accommodation requiring Stratford’ Greens to accept Section 8 applicants would effect “a fundamental alteration of its rental polipies,” would thus impose a substantial burden, and is therefore not required under the FHAA. Salute, 918 F.Supp. at 667. The burdensomeness of landlord participation, the court noted, was confirmed by the then “current efforts by HUD to amend § 1437 to make Section 8 a more landlord-friendly program.” Id. Because the district court held that it would be unreasonable to require Stratford Greens to shoulder the burdens of Section 8, and we agree, we- start our review there, and consider later the more fundamental question of whether participation in Section 8 can be considered (in the first instance) as an “accommodation” to handicap.

1.In assessing the landlord’s burdens under Section 8, the district court relied (as plaintiffs point out) on the onerous requirements imposed on landlords by the “take one, take all” and “endless lease⁵” provisions of the Section 8 program. The court therefore concluded that the accommodations sought by plaintiffs were not required by the FHAA because “[a]lthough the reasonable accommodations provision can and often will require a landlord to incur some expense, it does not require adjustments or modifications to existing programs that would be substantial, or would fundamentally alter the nature of the program, or pose an undue hardship or substantial burden.” Id. (citing Shapiro, 51 F.3d at 334). Plaintiffs argue that this rationale has been undermined by the subsequent repeal of those provisions. We disagree.

We think that the voluntariness provision of Section 8 reflects a congressional intent that the burdens of Section 8 participation are -substantial enough that participation should not be forced on landlords, either as an accommodation to handicap or otherwise. The “take one, take all” and “endless lease” provisions were part of -the statute when the voluntariness provision was adopted, and they reflect the kind of burdens that the federal government may impose on participating landlords. These burdens are one side of a coin, and the voluntariness provision is the other.⁶ The repeal of the “take one, take all” and “endless lease” provisions does not affect the voluntariness of the Section 8 program, which remains as voluntary today as it was when originally enacted.

The repeal of these provisions does not reduce the potential for burdensome requirements. . A landlord may consider that participation in a federal program will or may entail financial audits, maintenance requirements, inspection of the premises, reporting requirements, increased risk of litigation, and so on. And of course, the now-repealed requirements could simply be revived. Indeed, the repeals have been effected on a yearly basis, so Congress could simply reinstate the requirements by not renewing the repealer provisions. The trajectory of regulation in this federal program has been down, but that is not predictive or ordained. Moreover, the Section 8 program could end, leaving the landlord with the dilemma of evicting the participating tenants or keeping tenants who lack the wherewithal to pay the full rent— both major commercial risks.

The landlord here explained the refusal to accept Section 8 tenants in terms of a general reluctance to become involved with the federal government and its rules and regulations. We think that the onetime existence of the “take one, take all” and “endless lease” provisions amply supports that view, regardless of repeal. More fundamentally, however, the landlord is not required to articulate any justification for a policy of refusing Section 8 certificates. Under the Act, that refusal is a landlord’s prerogative.

In short, it is easy to conclude that, for landlords who reject voluntary Section 8 participation, the contract with the federal government, the retention of counsel to make the Section 8 arrangements, the requirements for compliance, and the limitations on use (actual and potential), are “unreasonable costs,” an “undue hardship,” and a “substantial burden,” which are not required by the FHAA’s reasonable accommodation provision. See Shapiro, 51 F.3d at 335. These terms may be vague, but we think it clear in this case that the burden of participating in the Section 8 program cannot be viewed as imposing only reasonable costs or insubstantial burdens, if only because Congress decided this issue by making participation voluntary.⁷

2.We now turn to the more fundamental question of whether a landlord’s participation in the Section 8 program should be deemed an “accommodation” (regardless of its reasonableness) within the meaning of the statute. Plaintiffs’ claim is a novel one because they do not contend that they require an accommodation that meets and fits their particular handicaps. Rather, they claim an entitlement to an accommodation that remedies their economic status, on the ground that this economic status results from their being handicapped. We think it is fundamental that the law addresses the accommodation of handicaps, not the alleviation of economic disadvantages that may be correlated with having handicaps.

Ordinarily, the duty to make reasonable accommodations is framed by the nature of the particular handicap. See, e.g., Jankowski Lee & Assocs. v. Cisneros, 91 F.3d 891, 894-95 (7th Cir.1996) (parking space needed to accommodate sufferer of multiple sclerosis); Bronk v. Ineichen, 54 F.3d 425, 429 (7th Cir.1995) (hearing dog needed by profoundly deaf individuals); Shapiro, 51 F.3d at 330 (parking space for MS sufferer); United States v. Board of Trustees for Univ. of Alabama, 908 F.2d 740, 746 (11th Cir.1990) (sign language interpreter for deaf students). The HUD regulations give two examples of when a reasonable accommodation would be required: the lifting of a no-pets rule to allow use of a seeing-eye dog; or the waiver of a first-come, first-serve policy on parking spots to accommodate the impaired mobility of a person suffering from multiple sclerosis. See 24 C.F.R. § 100.204(b). In all of these cases and examples, it is the handicap that is accommodated. Many reported cases under § 3604(f)(3) involve developers’ requests for variances of zoning ordinances that would allow the building of housing for handicapped persons. See United States v. California Mobile Home Park Management Co., 107 F.3d 1374, 1381 n. 3 (9th Cir.1997) (listing cases); Elderhaven, Inc. v. City of Lubbock, 98 F.3d 175, 177 (5th Cir.1996) (elderly care facility requiring special exception from single-family zoning ordinance). In these cases as well, the duty to accommodate is shaped by the handicap, such as the need of people with certain' handicaps to live together in order to share support personnel and to reinforce each other’s efforts in creating and maintaining a home.

Plaintiffs seek to use this statute to remedy economic discrimination of a kind that is practiced without regard to handicap. The “opportunity to use and enjoy” language of the FHAA reinforces the ability of people with handicaps to have the same opportunity as similarly situated persons who have no evident handicaps. What stands between these plaintiffs and the apartments at Stratford Greens is a shortage of money, and nothing else. In this respect, impecunious people with disabilities stand on the same footing as everyone else. Thus, the accommodation sought by plaintiffs is not “necessary” to afford handicapped persons “equal opportunity” to use and enjoy a dwelling. See 42 U.S.C. § 3604(f)(3); see also United States v. California Mobile Home Park Management Co., 29 F.3d 1413, 1417 (9th Cir.1994).

Congress could not have intended the FHAA to require reasonable accommodations for those with handicaps every time a neutral policy imposes an adverse impact on individuals who are poor. The FHAA does not elevate the rights of the handicapped poor over the rights of the non-handicapped poor. Economic discrimination — such as the refusal to accept Section 8 tenants — is not cognizable' as a failure to make reasonable accommodations, in violation of § 3604(f)(3)(B). Accordingly, we affirm the district court’s rejection of plaintiffs’ claims under the “reasonable accommodations” provision of the FHAA.

C. Claims of Disparate Impact under the Fair Housing Act.

A violation of the FHA may be premised on a theory of disparate impact. See LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 425 (2d Cir.1995); Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 934-35 (2d Cir.), aff'd in part, 488 U.S. 15, 109 S.Ct. 276, 102 L.Ed.2d 180 (1988). Under disparate impact analysis, “a prima facie case is established by showing that the challenged practice of the defendant actually or predictably results in ;. discrimination.” Huntington, 844 F.2d at 934 (citation and internal quotations omitted). Discriminatory intent need not be shown. Id. at 935. Once a plaintiff establishes a prima facie ease, the burden shifts to the defendant to “prove that its actions furthered, in theory and in prae-. tice, a legitimate, bona fide ... interest and that no alternative would serve that interest with less discriminatory effect.” Id. at 936 (citing Resident Advisory Bd. v. Rizzo, 564 F.2d 126, 148-49 (3d Cir.1977)).

We agree with the Seventh Circuit’s observation that because the Section 8 program is voluntary and non-participating owners routinely reject Section 8 tenants, the owners’ “non-participation constitutes a legitimate reason for their refusal to accept section 8 tenants and ... we therefore cannot hold them liable for ... discrimination under the disparate impact theory.” Knapp, 54 F.3d at 1280.

Plaintiffs’ disparate impact claims were properly dismissed by the district court.

CONCLUSION

The judgment of the district court granting summary judgment in favor of defendants is affirmed.

1 . Plaintiffs' argument that the district court did not examine the legislative history of the provision is simply inaccurate. See Salute, 918 F.Supp. at 664 & n. 2.

2 . When an intervening repeal of a statute affects the propriety of prospective relief, a court should apply-the law in' effect at the time it renders its decision. Landgraf v. USI Film Prods., 511 U.S. 244, 273-74, 114 S.Ct. 1483, 1501-02, 128 L.Ed.2d 229 (1994) (application of intervening statute authorizing or affecting prospective relief is not impermissible retroactivity); American Steel Foundries v. Tri-City Central Trades Council, 257 U.S. 184, 201, 42 S.Ct. 72, 75, 66 L.Ed. 189 (1921) (statute enacted during appeal governs propriety of injunctive relief because “relief by injunction operates in futuro").

3 . The Cort factors are: (1) whether the plaintiff is a member of the class for whose benefit the statute was enacted; (2) whether there is’ any indication of legislative intent, explicit or implicit, to create or deny such a remedy; (3) whether implying such a remedy is consistent with the underlying purposes of the legislative scheme; and (4) whether the cause of action is one traditionally relegated to state law in an area of concern to the States, making it inappropriate to infer a cause of action based on only federal law. 422 U.S. at 78, 95 S.Ct. at 2087-88.

4 . Complicating matters still further, the majority in Franklin, as well as Justice Scalia in his separate concurrence, pointed out that when courts infer a private right of action from a statute that is silent on its face, the usual recourse to statutory text and legislative history to determine congressional intent will be of limited value. 503 U.S. at 71, 76, 112 S.Ct. at 1035-36, 1038. The Court in Franklin therefore consulted the general state of the law when Congress passed the statute at issue there (Title IX), as well as congressional actions taken in the years after the Court had (in a prior case) announced that a private cause of action could be maintained under the statute. Id. at 72-73, 112 S.Ct. at 1036-37. In this case, the general state of the law when § 1437f(t) was adopted discloses no legislative intent to abandon the presumption in' favor of all available remedies. On the other hand, only a few district and appellate courts — not the Supreme Court — have found an implied right of action in § 1437f(t), and there has been no significant congressional action after these cases (except repeal) indicating anything about Congress' intent as to the available remedies under § 1437f(t).

Moreover, application of the general rule of Franklin to this case could tend to frustrate the purpose of § 1437f(t), which is to incréase the availability of low-income housing. "Allowing the recovery of potentially unlimited compensatory damages undoubtedly would deter owners from participating in the section 8 program and would be counterproductive to congressional goals.” Knapp v. Eagle Property Management Corp., 54 F.3d 1272, 1278 (7th Cir.1995). At least one appellate court has therefore distinguished Franklin as not answering the question of what damages may be awarded under § 1437f(t), and has concluded that only contractual remedies, not tort remedies, are recoverable under the provision. See id. at 1278-79.

5 . The so-called "endless lease” provision, 42 U.S.C. § 1437f(d)(1)(B)(ii), provided that at the conclusion of a lease period, landlords could not refuse to renew the leases of Section 8 tenants "except for serious or repeated violation of thé terms and conditions of the lease, for violation of applicable Federal, State or local law, or for other good cause." This provision was effectively repealed (through amendment) along with § 1437f(t)(1)(A). See Pub.L. No. 104-134, § 203(c), 110 Stat. 1321 (1996).

6 . We have no reason to suppose that the statute could have been enacted without the voluntariness provision.

7 . Plaintiffs implicitly recognize this principle. Prior to §j.l437f(t)'s repeal, they argued that a landlord who accepts Section 8 vouchers as an accommodation to people with handicaps would not or should not be subjected to “the take one, take all” rule — a kind of reverse exception. Plaintiffs therefore cannot contest that there can be substantial detriments to landlords who participate in the Section 8 program, a concession that is fatal to their claim.