Petition for Writ of Certiorari — NYC C.L.A.S.H., Inc., et al., Petitioners v. Marcia L. Fudge, Secretary of Housing and Urban Development, et al.
Supreme Court briefJan 19, 2023
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No. __-_____
In the Supreme Court of the United States
NYC C.L.A.S.H., INC., WILLIAM DONNELL,
CHANEL FOLKS, DIGNA RODRIGUEZ, DOUGLAS
SONCKSEN, AND JAMIE WARD,
Petitioners,
v.
MARCIA L. FUDGE, SECRETARY OF HOUSING & URBAN
DEVELOPMENT, in her official capacity. AND
DEPARTMENT OF HOUSING & URBAN DEVELOPMENT,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO
THE U.S. COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT
PETITION FOR WRIT OF CERTIORARI
LAWRENCE J. JOSEPH
Counsel of Record
1250 Connecticut Ave. NW
Suite 700-1A
Washington, DC 20036
(202) 355-9452
ljoseph@larryjoseph.com
Counsel for Petitioners
i
QUESTIONS PRESENTED
Public-housing tenants challenge an in-unit ban
on smoking imposed on public housing authorities as
a condition of federal funding by the Department of
Housing and Urban Development (“HUD”) under
decades-old authority to ensure “safe and habitable”
housing. On cross motions for summary judgment, the
parties briefed and the trial court granted summary
on an unpleaded Spending-Clause claim, finding the
ban insufficiently coercive based on a lack of evidence
(i.e., tenants did not prove coercion, but HUD did not
prove non-coercion). Applying “extreme deference” to
agency expertise and the broad literal scope of “safe,”
the court of appeals affirmed notwithstanding HUD’s
disclaimer of relevant expertise, clear-statement rules
under the federalism canon and Spending Clause, the
emerging “major-questions doctrine” and constitutional avoidance for a case with significant additional
policy and constitutional issues (e.g., Fourth and Fifth
Amendment concerns given a nexus with the home,
limited congressional delegations on smoking policy).
The questions presented are:
1. Whether HUD lacks authority to adopt or
enforce its smoking ban as a means to ensure “safe
and habitable” public housing.
2. Whether the lower courts erred in granting
HUD summary judgment on the smoking ban’s
compliance with the Spending Clause without any
evidence that the Smoking Ban is not coercive.
3. Whether the lower courts erred by ignoring
non-record evidence in constitutional adjudication.
4. Whether extra-pleading issues or evidence
briefed and reached on summary judgment are “tried”
by implied consent under FED. R. CIV. P. 15(b)(2).
ii
PARTIES TO THE PROCEEDING
Petitioners are NYC C.L.A.S.H., Inc., William
Donnell, Chanel Folks, Digna Rodriguez, Douglas
Soncksen, and Jamie Ward, who were plaintiffs in
district court and appellants in the court of appeals.*
Respondents are Department of Housing and
Urban Development and its Secretary—initially Ben
Carson, now Marcia L. Fudge—who were defendants
in district court and appellees in the court of appeals.
RULE 29.6 STATEMENT
Petitioner NYC C.L.A.S.H., Inc. has no parent
companies, and no publicly held company owns 10
percent or more of its stock.
RELATED CASES
The following cases relate directly to this case for
purposes of this Court’s Rule 14.1(b)(iii):
• NYC C.L.A.S.H., Inc. v. Carson, No. 1:18-cv-1711ESH (D.D.C.). Filed July 23, 2018; decided Mar. 2,
2020; amendment of judgment denied July 25,
2020.
• NYC C.L.A.S.H., Inc. v. Fudge, No. 20-5126 (D.C.
Cir.). Filed May 1, 2020; Amended Notice of
Appeal: Aug. 7, 2020: decided Aug. 26, 2022;
rehearing denied Oct. 21, 2022.
Petitioners have lost contact with co-plaintiff and coappellant Nathan Fields (his phone number and email address
no longer work and his mail returns as not being forwardable).
Petitioners will serve him at his last known address as a
respondent pursuant to this Court’s Rule 12.6.
*
iii
TABLE OF CONTENTS
Questions Presented ................................................... i
Parties to the Proceeding ........................................... ii
Rule 29.6 Statement ................................................... ii
Related Cases ............................................................. ii
Appendix .................................................................... iv
Table of Authorities.................................................... v
Petition for Writ of Certiorari .................................... 1
Opinions Below ........................................................... 1
Jurisdiction ................................................................. 1
Statutory Provisions Involved ................................... 1
Statement of the Case ................................................ 2
Reasons to Grant the Writ ......................................... 2
I. HUD lacks authority for the Smoking Ban. ....... 5
A. Constitutional avoidance and doubt
require rejecting HUD’s authority. ............... 5
1. The Smoking Ban exceeds the federal
Commerce Power..................................... 5
a. The Smoking Ban does not
preempt State law ............................ 6
b. The Commerce Clause does not
reach indoor air in living
quarters. ............................................ 6
2. The Smoking Ban raises federalism
concerns. .................................................. 7
a. The Smoking Ban violates the
Tenth Amendment. ........................... 8
b. The presumption against
preemption applies. ........................ 10
3. The Smoking Ban violates the
Spending Clause. .................................. 13
iv
a. The Smoking Ban is a new and
ambiguous condition on preexisting funding. ............................. 15
b. The Smoking Ban is coercive. ........ 17
4. The Smoking Ban’s nexus with the
home raises Fourth Amendment
concerns. ................................................ 18
5. The Smoking Ban’s nexus with the
home raises due-process concerns. ....... 21
B. The Housing Act does not support HUD’s
claimed authority. ....................................... 24
1. Agencies cannot “find” new authority
in vague, long-ago delegations.............. 24
2. HUD’s Smoking Ban should meet the
same fate as FDA’s cigarette rule. ....... 27
3. Chevron deference is inappropriate,
especially given HUD’s inexpertise. ..... 29
C. With health-based rationales stricken,
the Smoking Ban is arbitrary and
capricious. .................................................... 30
II. The lower courts’ decisions are procedurally
flawed. ................................................................ 31
A. HUD should not have prevailed on
coerciveness. ................................................ 31
B. The lower courts erred by ignoring nonrecord evidence. ........................................... 33
C. The lower courts erred in denying
Tenants’ Rule 15(b)(2) motion. .................... 36
Conclusion ................................................................ 36
APPENDIX
NYC C.L.A.S.H., Inc. v. Fudge, 47 F.4th 757 (D.C.
Cir. 2021) .............................................................. 1a
v
NYC C.L.A.S.H., Inc. v. Carson, 442 F.Supp.3d 200
(D.D.C. 2020) ...................................................... 21a
NYC C.L.A.S.H., Inc. v. Carson, No. 1:18-cv-1711ESH (D.D.C. July 25, 2020) ............................... 58a
NYC C.L.A.S.H., Inc. v. Fudge, No. 20-5126 (D.C.
Cir. Oct. 21, 2022) (panel) .................................. 69a
NYC C.L.A.S.H., Inc. v. Fudge, No. 20-5126 (D.C.
Cir. Oct. 21, 2022) (en banc)............................... 70a
U.S. CONST. art. I, §8, cl. 1 ..................................... 71a
U.S. CONST. art. I, §8, cl. 3 ..................................... 71a
U.S. CONST. amend. IV ........................................... 71a
U.S. CONST. amend. V ............................................ 71a
U.S. CONST. amend. X ............................................ 72a
U.S. CONST. amend. XIV §1 ................................... 72a
42 U.S.C. §1437d(f)(2) Federal standards ............. 72a
42 U.S.C. §1437d(j)(3)(A) ....................................... 72a
42 U.S.C. §1437z-3(a) (a) Ownership conditions... 74a
24 C.F.R. §965.653 Smoke-free public housing. .... 74a
24 C.F.R. §965.655 Implementation. ..................... 75a
24 C.F.R. §966.4(j) .................................................. 76a
First Amended Complaint (proposed) ................... 77a
TABLE OF AUTHORITIES
Cases
Adair v. England,
217 F. Supp. 2d 7 (D.D.C. 2002) ......................... 32
AFSCME, Local 2957 v. City of Benton,
513 F.3d 874 (8th Cir. 2008) ............................... 36
Alabama Ass’n of Realtors v. HHS,
141 S.Ct. 2485 (2021) ......................................... 3-4
Alexander v. Sandoval,
532 U.S. 275 (2001) ............................................. 14
vi
Altria Group, Inc. v. Good,
555 U.S. 70 (2008) ............................................... 11
Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy,
548 U.S. 291 (2006) ............................................. 14
Ass’n of Priv. Sector Colls. & Univs. v. Duncan,
681 F.3d 427 (D.C. Cir. 2012) ............................. 14
Barnes v. Gorman,
536 U.S. 181 (2002) ............................................... 8
Bates v. City of Little Rock,
361 U.S. 516 (1960) ............................................. 22
Bellion Spirits, LLC v. U.S.,
335 F.Supp.3d 32 (D.D.C. 2018) ......................... 33
Bond v. U.S.,
572 U.S. 844 (2014) ............................................... 6
Boyd v. U.S.,
116 U.S. 616, 630 (1886) ............................... 20, 23
BP P.L.C. v. Mayor of Baltimore,
141 S.Ct. 1532 (2021) .......................................... 25
California v. Ciraolo,
476 U.S. 207 (1986) ............................................. 20
Camara v. Mun. Court of City & Cty. of San
Francisco, 387 U.S. 523 (1967) ........................... 20
Caniglia v. Strom,
141 S.Ct. 1596 (2021) ..................................... 19-20
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council,
Inc., 467 U.S. 837 (1984) .......................... 12-13, 29
Cipollone v. Liggett Grp.,
505 U.S. 504 (1992) ............................................. 12
City of Chicago v. Int’l Coll. of Surgeons,
522 U.S. 156 (1997) ............................................. 33
Cook v. City of Bella Villa,
582 F.3d 840 (8th Cir. 2009) ............................... 36
vii
Davies Warehouse Co. v. Bowles,
321 U.S. 144 (1944) ............................................. 12
Dep’t of Commerce v. New York,
139 S.Ct. 2551 (2019) ............................... 15-16, 30
Edgar A. Levy Leasing Co. v. Siegel,
258 U.S. 242 (1922) ............................................. 10
Entick v. Carrington,
2 Wils. K.B. 275, 95 Eng.Rep. 807 (K.B. 1765) .. 19
Ewen v. Maccherone,
927 N.Y.S.2d 274 (App.Term 2011) .................... 35
Exxon Mobil Corp. v. Allapattah Servs.,
545 U.S. 546 (2005) ............................................. 35
Fagan v. Axelrod,
550 N.Y.S.2d 552 (N.Y. Sup. Ct. 1990) ................ 8
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .............................. 2, 13, 27-28
Feinstein v. Rickman,
26 N.Y.S.3d 135 (App. Div. 2016) ....................... 35
Florida v. Jardines,
569 U.S. 1 (2013) ................................................. 19
Gonzales v. Oregon,
546 U.S. 243 (2006) ............................................. 11
Heart of Atlanta Motel, Inc. v. U.S.,
379 U.S. 241 (1964) ............................................... 6
Helling v. McKinney,
509 U.S. 25 (1993) ......................................... 25, 25
In re A.C.,
573 A.2d 1235 (D.C. 1990) .................................... 4
Indep. Petroleum Ass’n of Am. v. Babbitt,
235 F.3d 588 (D.C. Cir. 2001) ............................. 36
viii
Industrial Union Department, AFL-CIO v.
American Petroleum Institute,
448 U.S. 607 (1980) ................................ 2, 5, 25-26
James v. Valtierra,
402 U.S. 137 (1971) ............................................... 6
Jean v. Nelson,
472 U.S. 846 (1985) ............................................... 5
Jennings v. Rodriguez,
138 S.Ct. 830 (2018) .............................................. 5
Katzenbach v. McClung,
379 U.S. 294 (1964) ............................................... 6
Kennecott Greens Creek Min. Co. v. Mine
Safety & Health Admin.,
476 F.3d 946 (D.C. Cir. 2007) ............................. 29
King v. Burwell,
576 U.S. 473 (2015) ......................................... 2, 26
Kisor v. Wilkie,
139 S.Ct. 2400 (2019) .......................................... 29
Lawrence v. Texas,
539 U.S. 558 (2003) ............................................. 23
Lexington Fayette County Food & Bev. Ass’n v.
Lexington-Fayette Urban County Gov’t,
131 S.W.3d 745 (Ky. 2004).................................... 8
Lexington Ins. Co. v. Widger Chem. Corp.,
805 F.2d 1035 (6th Cir. 1986) ............................. 32
Lone Star Sec. & Video, Inc. v. City of L.A.,
584 F.3d 1232 (9th Cir. 2009) ............................. 36
Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871 (1990) ............................................. 32
Mapp v. Ohio,
367 U.S. 643 (1961) ............................................. 23
ix
Medtronic, Inc. v. Lohr,
518 U.S. 470 (1996) ............................................. 12
Metropolitan Life Ins. Co. v. Massachusetts,
471 U.S. 724 (1985) ............................................... 8
Michigan v. Tyler,
436 U.S. 499 (1978) ............................................. 20
Morgan v. Secretary of Housing and Urban
Development, 985 F.2d 1451 (10th Cir. 1993) ...... 6
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ............................................... 30
Murphy v. NCAA,
138 S.Ct. 1461 (2018) ................................ 7, 10, 14
Nat. Res. Def. Council, Inc. v. EPA,
824 F.2d 1211 (D.C. Cir. 1987) ........................... 26
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ....................... 13-14, 16-17, 31
Nat’l Shooting Sports Found., Inc. v. Jones,
716 F.3d 200 (D.C. Cir. 2013) ............................. 30
NYC C.L.A.S.H. v. Carson,
442 F.Supp.3d 200 (D.D.C. 2020) ......................... 1
NYC C.L.A.S.H. v. Carson,
47 F.4th 757 (D.C. Cir. 2022) ............................... 1
Oxford House-C v. City of St. Louis,
77 F.3d 249 (8th Cir. 1996) ................................... 5
Paris Adult Theatre I v. Slaton,
413 U.S. 49 (1973) ........................................... 4, 23
Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1 (1981) ................................................. 13
People v. Sinclair,
387 Mich. 91 (1972) ............................................. 23
x
Pratt v. Chicago Hous. Auth.,
155 F.R.D. 177 (D. Ill. 1994) ............................... 19
R. J. Corman Derailment Servs., L.L.C. v.
Int’l Union, Local Union 150,
335 F.3d 643 (7th Cir. 2003) ............................... 32
R.A.V. v. St. Paul,
505 U.S. 377 (1992) ............................................. 22
Ravin v. State,
537 P.2d 494, 503 (Alaska 1975) ........................ 23
Red Lake Band of Chippewa Indians v. U.S. DOI,
624 F. Supp. 2d 1 (D.D.C. 2009) ......................... 32
Rice v. Santa Fe Elevator Corp.,
331 U.S. 218 (1947) ........................................ 11-13
Rudder v. U.S.,
226 F.2d 51 (D.C. Cir. 1955) ............................... 19
Ruggiero v. FCC,
317 F.3d 239 (D.C. Cir. 2003) (en banc) ............. 21
Schuman v. Greenbelt Homes, Inc.,
212 Md. App. 451 (Ct. App. 2013) ...................... 35
Scott v. District of Columbia,
139 F.3d 940 (D.C. 1998) .............................. 25, 35
Seniors Civil Liberties Ass’n, Inc. v. Kemp,
965 F.2d 1030 (11th Cir. 1992) ............................. 6
Shays v. FEC,
414 F.3d 76 (D.C. Cir. 2005) ............................... 17
Silverman v. U.S.,
365 U.S. 505 (1961) ............................................. 20
Sossamon v. Texas,
563 U.S. 277 (2011) ......................................... 7, 14
South Dakota v. Dole,
483 U.S 203 (1987) ................................... 13-14, 31
xi
Stanley v. Georgia,
394 U.S. 557 (1969) ............................................. 23
State ex rel. Zander v. District Court of Fourth
Judicial Dist., 594 P.2d 273 (Mont. 1979) ......... 23
Taylor v. Beckham,
178 U.S. 548 (1900) ............................................. 21
Touche Ross & Co. v. Redington,
442 U.S. 560 (1979) ............................................. 14
U.S. v. Bass,
404 U.S. 336 (1971) ............................................. 11
U.S. v. General Motors Corp.,
65 F.R.D. 115 (D.D.C. 1974) ............................... 32
U.S. v. Lopez,
514 U.S. 549 (1995) ........................................... 7, 9
U.S. v. Morrison,
529 U.S. 598 (2000) ............................................... 7
U.S. v. Orito,
413 U.S. 139 (1973) ........................................ 22-23
Util. Air Regulatory Group v. EPA,
573 U.S. 302 (2014) .................................... 2, 25-26
Warden v. Hayden,
387 U.S. 294 (1967) ............................................. 20
Washington v. Glucksberg,
521 U.S. 702 (1997) ........................................ 21-23
Weahkee v. Perry,
587 F.2d 1256 (D.C. Cir. 1978) ........................... 32
Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164 (1972) ........................................ 21-22
West Virginia v. EPA,
142 S.Ct. 2587 (2022) ........................... 3, 26-27, 29
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ................................... 2, 11, 27
xii
Wickard v. Filburn,
317 U.S. 111 (1942) ............................................... 7
Wyeth v. Levine,
555 U.S. 555 (2009) ..................................... 4, 8, 11
Wymsylo v. Bartec, Inc.,
970 N.E.2d 898 (Ohio 2012) .................................. 8
Statutes
U.S. CONST. Art. I, §8, cl. 1........ 2, 8, 13, 15-18, 31, 36
U.S. CONST. Art. I, §8 cl. 3.................................... 6, 14
U.S. CONST. amend. IV ........................................ 18-20
U.S. CONST. amend. V .................................. 19, 21, 23
U.S. CONST. amend. V, cl. 4...................................... 21
U.S. CONST. amend. X ............................................. 7-8
Administrative Procedure Act,
5 U.S.C. §§551-706 ........................................ 22, 36
20 U.S.C. §7973(c)(2) ................................................ 27
21 U.S.C. §321(g)(1)(C)............................................. 28
21 U.S.C. §387g(d)(3) ............................................... 28
28 U.S.C. §1254(1) ...................................................... 1
28 U.S.C. §1291 .......................................................... 1
28 U.S.C. §1331 .......................................................... 1
42 U.S.C. §300g-1(b)(1)(B) ....................................... 26
42 U.S.C. §1437d(f)(2) .......................................... 2, 28
42 U.S.C. §1437d(g)(1) ......................................... 3, 31
42 U.S.C. §1437d(j)(3)(A) ......................................... 16
42 U.S.C. §1437z-3(a) ............................................... 27
42 U.S.C. §4822(d)(3) ............................................... 27
Housing Act of 1937, PUB. L. NO. 75-412,
50 Stat. 888 .............................. 2, 5-6, 10-17, 22-27
xiii
Family Smoking Prevention & Tobacco Control
Act, PUB. L. NO. 111-31, 123 Stat. 1776 (2009) .. 28
ARIZ. REV. STAT. ANN. §36-601.01 .............................. 9
ARK. CODE ANN. §20-7-109(a)(1) ................................ 9
ARK. CODE ANN. §§20-27-1801 to -1809 ..................... 9
CAL. LAB. CODE §6404.5 ............................................. 9
FLA. STAT. ANN. §§386.203(1), 386.2045(1) ............... 9
Rules, Regulations and Orders
FED. R. CIV. P. 15(b)(2) ............................ 1, 4-5, 33, 36
FED. R. CIV. P. 59(e) .................................................... 1
FED. R. CIV. P. 60(b)(1) ......................................... 1, 15
FED. R. EVID. 201(d) ................................................. 15
24 C.F.R. PTS. 965-966 ................................................ 1
24 C.F.R. §965.653 .................................................... 10
24 C.F.R. §965.655 .................................................... 10
24 C.F.R. §966.4(j)(2)-(3) .......................................... 18
24 C.F.R. §982.353(C) ................................................. 7
Quid Pro Quo and Hostile Environment
Harassment and Liability for Discriminatory
Housing Practices Under the Fair Housing Act,
81 Fed. Reg. 63,054 (2016)............................. 23-24
Instituting Smoke-Free Public Housing,
81 Fed. Reg. 87,430 (2016).................................... 1
Other Authorities
Bert Black et al., Science and the Law in the Wake
of Daubert: A New Search for Scientific
Knowledge, 72 TEX. L. REV. 715 (1994) ......... 34-35
James E. Enstrom, Defending legitimate
epidemiologic research: combating Lysenko
pseudoscience, 4:11 EPIDEMIOL PERSPECT.
INNOV. 1 (2007) .................................................... 34
xiv
HUD, Public Housing Occupancy Guidebook
(2003) ................................................................... 18
Eugene B. Jacobs & Jack G. Levine,
Redevelopment: Making Misused and Disused
Land Available and Useable, 8 HASTINGS L.J.
241 (1957) ............................................................ 11
Sheldon Ungar & Dennis Bray, Silencing science:
partisanship and the career of a publication
disputing the dangers of second-hand smoke,
14 PUB. UNDERSTANDING SCI. 5 (2005) ............... 34
1
PETITION FOR WRIT OF CERTIORARI
Five public-housing tenants who smoke and a
smokers’ rights group (“Tenants”) petition for a writ
of certiorari to the U.S. Court of Appeals for the
District of Columbia Circuit (“D.C. Circuit”) in their
challenge to the final rule Instituting Smoke-Free
Public Housing, 81 Fed. Reg. 87,430 (2016) (codified
at 24 C.F.R. pts. 965-966) (“Smoking Ban”),
promulgated by the Department of Housing and
Urban Development. The respondents are the
Department and its Secretary (collectively, “HUD”).
OPINIONS BELOW
The D.C. Circuit’s Opinion is reported at 47 F.4th
757 and reprinted in the Appendix (“App.”) at 1a. The
district court’s Memorandum Opinion is reported at
442 F.Supp.3d 200 and reprinted at App. 21a. The
district court’s unreported Order denying Tenants’
post-judgment motions under FED. R. CIV. P. 15(b)(2),
59(e), and 60(b)(1) is reprinted at App. 35a.
JURISDICTION
On August 26, 2022, the D.C. Circuit affirmed the
district court’s grant of summary judgment for HUD.
On October 11, 2022, petitioners timely sought
rehearing en banc. On October 21, 2022, the D.C.
Circuit denied the petition for rehearing en banc. The
district court had jurisdiction under 28 U.S.C. §1331,
and the D.C. Circuit had jurisdiction under 28 U.S.C.
§1291. This Court has jurisdiction under 28 U.S.C.
§1254(1).
STATUTORY PROVISIONS INVOLVED
The Appendix sets out the relevant constitutional,
statutory, and regulatory provisions.
2
STATEMENT OF THE CASE
The Smoking Ban requires public housing
authorities (“PHAs”) nationwide to ban smoking not
only in common areas—including within 25 feet of
buildings—but also in living quarters. HUD
promulgated it under authority in the Housing Act of
1937 to “ensure that public housing … [is] safe and
habitable.” 42 U.S.C. §1437d(f)(2). The parties crossmoved for summary judgment, and the district court
ruled for HUD. App. 21a. HUD’s only potential
authority for the Smoking Ban is the Spending
Clause, raising the issue of whether the Smoking Ban
is impermissibly coercive. While HUD never
established non-coercion, Tenants’ post-judgment
motion established coercion with judicially noticeable
materials. The district court denied Tenants’ postjudgment motion, App. 58a, and the Court of Appeals
affirmed. App. 1a. Even if it does not reverse, this
Court should vacate HUD’s summary judgment and
remand for either supplemental briefing or a bench
trial on coercion.
REASONS TO GRANT THE WRIT
The case raises important substantive questions
under the emerging “major-questions doctrine” and
important procedural questions about constitutional
litigation with agency defendants.
Although the “major-questions” label is new, the
issue flows from a long line of decisions,1 with more
Industrial Union Department, AFL-CIO v. American
Petroleum Institute, 448 U.S. 607, 642 (1980) (“Benzene”); FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000)
(“B&WTC”); Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468
(2001); Util. Air Regulatory Group v. EPA, 573 U.S. 302, 324
(2014) (“UARG”); King v. Burwell, 576 U.S. 473, 486 (2015).
1
3
recent additions sharpening—and naming—the
doctrine.2
The
doctrine
covers
statutory
interpretation
generally
under
“a
practical
understanding of legislative intent,” but has added
force when agencies claim power through modest or
vague statutory language, especially when the power
is new but the statute is old. West Virginia, 142 S.Ct.
at 2607-09. This special force derives from separationof-powers doctrine and statutory interpretation
generally, id., which includes the federalism canon.
Id. at 2620-2622 (Gorsuch, J., concurring); Alabama
Realtors, 141 S.Ct. at 2489. Even if Congress has
authority for a statutory smoking ban, HUD still may
lack delegated regulatory authority.
Although HUD’s regulation of the public-housing
market is economically significant,3 the majorquestions doctrine is not limited to economically
significant rules. The doctrine applies equally to
“major social … policy decisions” and ones with
“political significance.” West Virginia, 142 S.Ct. at
2613. Even if the Smoking Ban lacked economic
significance, it would readily meet the social-policy
and political hooks for a variety of unusual aspects of
the Smoking Ban:
• HUD’s intrusion into the landlord-tenant
Alabama Ass’n of Realtors v. HHS, 141 S.Ct. 2485 (2021)
(“Alabama Realtors”); West Virginia v. EPA, 142 S.Ct. 2587
(2022).
3
Given HUD’s claim to the power to take title to PHAs’
property, at HUD’s discretion, as an enforcement mechanism, 42
U.S.C. §1437d(g)(1), the Smoking Ban’s scope meets the criteria
for a major economic action, as applied to PHAs. Because they
suffer from PHAs’ coerced capitulation to HUD, Tenants
emphasize the Smoking Ban’s political and social scope. Either
way, the major-questions doctrine applies.
2
4
relationship. Alabama Realtors, 141 S.Ct. at 2489.
• HUD’s intrusion into prior state-and-local occupation of the field of regulating residential
exposure to environmental tobacco. Wyeth v.
Levine, 555 U.S. 555, 565 n.3 (2009).
• HUD’s intrusion into bodily integrity and
relationships—including family relationships—
among tenants in the same unit. In re A.C., 573
A.2d 1235, 1245-46 (D.C. 1990).
• HUD’s intrusion into the conduct of lawful
activities in the home. Paris Adult Theatre I v.
Slaton, 413 U.S. 49, 66 (1973) (“a man’s home is
his castle” with respect to “privacy of the home”)
(interior quotations omitted).
Along these fronts, courts “expect Congress to speak
clearly when authorizing an agency to exercise powers
of vast economic and political significance.” Alabama
Realtors, 141 S.Ct. at 2489 (interior quotations
omitted). In our democracy, heightened judicial
scrutiny of congressional and a fortiori agency action
extends beyond moneyed interests.
Substantively, the petition raises important
issues of judicial review of unconstitutional
regulations and provides an ideal vehicle to resolve
issues under the developing “major questions
doctrine.” Procedurally, the lower courts split with
decisions from other circuits and this Court on the
standard for cross-summary judgment, admitting
non-record evidence for constitutional adjudication,
and the availability of relief under Rule 15(b)(2) in
summary-judgment proceedings. This Court should
grant the writ of certiorari for five reasons.
1. The panel’s reliance on safety’s “ordinary
meaning,” App. 6a, conflicts with the clear-statement
5
requirement for vague statutory phrases. See Sections
I.A-I.B, infra.
2. The panel’s “extreme degree of deference,”
App. 9a, to an agency with no expertise conflicts with
the major-questions doctrine. See Section I.B.3, infra.
3. Giving HUD summary judgment on coercion
with no evidentiary showing conflicts with standards
for summary judgment in constitutional cases. See
Section II.A, infra.
4. The panel’s rejection of non-record evidence in
constitutional adjudication is inconsistent with this
Court’s decisions. See Section II.B, infra.
5. Denying Tenants’ post-judgment motion
under Rule 15(b)(2) splits with three circuits. See
Section II.C, infra.
These important issues warrant this Court’s review.
I.
HUD LACKS AUTHORITY FOR THE
SMOKING BAN.
The major-questions doctrine requires narrowly
interpreting the Housing Act for both constitutional
and statutory reasons.
A. Constitutional avoidance and doubt
require rejecting HUD’s authority.
Channeling Benzene, HUD interprets an opaque
mandate (safety) as “risk-free.” Apart from the majorquestions doctrine—but also as part of it—the
constitutional issues counsel for the narrow reading
under the avoidance and doubt canons. Jean v.
Nelson, 472 U.S. 846, 857 (1985); Jennings v.
Rodriguez, 138 S.Ct. 830, 842 (2018).
1. The Smoking Ban exceeds the
federal Commerce Power
Although not reached below, neither Congress nor
6
HUD have authority to adopt the Smoking Ban under
the Commerce Clause.
a. The Smoking Ban does not
preempt State law
Although HUD has argued that the Smoking Ban
binds PHAs with the force of law, the underlying basis
for HUD’s authority—the Housing Act—simply does
not preempt state law. James v. Valtierra, 402 U.S.
137, 140 (1971). Apart from the potential to bind
PHAs as recipients of federal funds, see Section I.A.3,
infra, neither the Housing Act nor the Smoking Ban
have the preemptive force of law.
b. The Commerce Clause does not
reach indoor air in living
quarters.
Public housing does not move in interstate
commerce. Moreover, “[t]he States have broad
authority to enact legislation for the public good—
what we have often called a ‘police power,’” but “[t]he
Federal Government, by contrast, has no such
authority[.]” Bond v. U.S., 572 U.S. 844, 854 (2014).
Public housing is not open to Congress—much less to
HUD—to regulate under the Commerce Power.
Relying on Katzenbach v. McClung, 379 U.S. 294,
301-02 (1964), and Heart of Atlanta Motel, Inc. v. U.S.,
379 U.S. 241 (1964), appellate decisions4 have found
Commerce-Clause authority for the Fair Housing Act.
Those opinions concern restaurants and motels, which
See, e.g., Oxford House-C v. City of St. Louis, 77 F.3d 249,
251 (8th Cir. 1996); Morgan v. Secretary of Housing and Urban
Development, 985 F.2d 1451, 1455 (10th Cir. 1993); Seniors Civil
Liberties Ass’n, Inc. v. Kemp, 965 F.2d 1030, 1034 (11th Cir.
1992).
4
7
Congress might reasonably deem interstate activity
from their use in interstate travel. Unlike hotels or
restaurants that interstate travelers might visit,
public housing does not “substantially affect
interstate commerce.” U.S. v. Morrison, 529 U.S. 598,
616 (2000) (interior quotations omitted, emphasis
added).
Similarly, purely intrastate consumption of selfgrown products nonetheless might affect the
interstate market for those products. Wickard v.
Filburn, 317 U.S. 111, 118-19 (1942). But there is no
interstate market in subsidized housing, which sits in
one state, without moving. The 12-month residency
requirement, 24 C.F.R. §982.353(c), attenuates any
link with interstate commerce. Wickard “involved
economic activity in a way that the possession of a gun
in a school zone [like smoking in subsidized housing]
does not.” U.S. v. Lopez, 514 U.S. 549, 560 (1995).
Even Congress lacks the authority to regulate
subsidized housing under the Commerce Power.
2. The Smoking Ban raises federalism
concerns.
The Tenth Amendment reserves to the States and
the People all powers not expressly transferred to the
federal government, U.S. CONST. amend. X, which
bars the federal government’s commandeering State
and local government. Murphy v. NCAA, 138 S.Ct.
1461, 1476 (2018) (“conspicuously absent from the list
of powers given to Congress is the power to issue
direct orders to the governments of the States”).
Because “the States entered the Union with their
sovereignty intact,” Sossamon v. Texas, 563 U.S. 277,
283 (2011) (internal quotations omitted), “respect for
the States as ‘independent sovereigns in our federal
8
system’ leads [courts] to assume that ‘Congress does
not cavalierly pre-empt [state law].’” Wyeth, 555 U.S.
at 565 n.3 (quoting Medtronic, Inc. v. Lohr, 518 U.S.
470, 485 (1996)). The Spending Clause provides the
only potential federal “hook” to adopt a federal
smoking ban in public housing, analogously to a
contract struck between the federal government and
PHAs. Barnes v. Gorman, 536 U.S. 181, 186 (2002)
But even the Spending Clause has its limits, and HUD
exceeded them here. See Section I.A.3, infra.
a. The Smoking Ban violates the
Tenth Amendment.
At the outset, the States did not delegate a general
police power to the federal government when they
formed the Union. Instead, States retained the ability
to regulate health and safety matters under the police
powers. Metropolitan Life Ins. Co. v. Massachusetts,
471 U.S. 724, 756 (1985); Lexington Fayette County
Food & Bev. Ass’n v. Lexington-Fayette Urban County
Gov’t, 131 S.W.3d 745, 749 (Ky. 2004) (discussing the
wide latitude states have in adopting ordinances
promoting health, safety, morals, and welfare in the
context of a smoking ban). All states have utilized
their general police power to enact comprehensive
anti-smoking and other tobacco use regulations. See
Fagan v. Axelrod, 550 N.Y.S.2d 552, 560 (N.Y. Sup.
Ct. 1990) (“regulation of smoking is a valid use of a
state’s police power”); Wymsylo v. Bartec, Inc., 970
N.E.2d 898, 901 (Ohio 2012) (“Smoke Free Workplace
Act, is a valid exercise of the state’s police power by
Ohio voters”). States typically explicitly exempt
private homes from smoking-ban laws, and no state
outright prohibits the use of tobacco in private
residences except when used as a daycare center or for
9
some other commercial purpose.5
Although Congress (and by extension, federal
agencies acting pursuant to Congressional grants of
authority) may regulate activities affecting public
health in areas under federal jurisdiction (such as in
national parks or on military bases), there is no
federal police power with respect to the regulation of
activities that are “completely internal.” Lopez, 514
U.S. at 594 (1995) (Thomas, J., concurring). Just as
the Gun-Free School Zones Act improperly created an
invisible federal zone around schools, Lopez, 514 U.S.
at 583 (Kennedy, J., concurring), the Smoking Ban
improperly creates an invisible federal zone inside
private residences. The exclusive province of the
States and their local subdivisions over matters of
public health is even more compelling when applied to
matters that occur within the sanctuary of private
living quarters where there is no discernible link to
interstate commerce, such as the non-public,
completely internal emissions of smoke from using
tobacco products.
The district court held that PHAs have “a choice
whether to accept the federal public housing funding
and the terms attached to it,” App. 34a (emphasis
omitted), but the parties disagree on the nature of
that choice and the attached terms. HUD claims its
rules preempt state law, but the district court did not
reach that issue. App. 35a-36aa n.11. Taking HUD at
its word—both in its briefs and in its Smoking Ban—
PHAs must comply with the Smoking Ban:
See e.g., ARIZ. REV. STAT. ANN. §36-601.01; ARK. CODE ANN.
§§20-7-109(a)(1), 20-27-1801 to -1809 (Clean Indoor Air Act);
CAL. LAB. CODE §6404.5; FLA. STAT. ANN. §§386.203(1),
386.2045(1) (Florida Clean Indoor Air Act).
5
10
This rule requires each public housing agency
(PHA) administering public housing to
implement a smoke-free policy. … The smokefree policy must also extend to all outdoor
areas up to 25 feet from the public housing
and administrative office buildings.
App. 88a (emphasis added). In addition, 24 C.F.R.
§965.653 provides that “PHAs must design and
implement a policy prohibiting the use of prohibited
tobacco products in all public housing living units and
interior areas … as well as in outdoor areas[.]” App.
74a-75a (emphasis added). This section also provides
that “[a] PHA’s smoke-free policy must, at a
minimum, ban the use of all prohibited tobacco
products.” Id. (emphasis added). Additionally, 24
C.F.R. §965.655, provides that “PHAs are required to
implement the requirements of this subpart[.]” App.
75a (emphasis added). On commandeering, the
Smoking Ban should be vacated, with HUD compelled
to rewrite it—if at all—as the choice that the district
court saw. See Murphy, 138 S.Ct. at 1476
(“conspicuously absent from the list of powers given to
Congress is the power to issue direct orders to the
governments of the States”). Otherwise, the Smoking
Ban impermissibly directs State and local government
what to enact, as distinct from outlining the menu of
choices.
b. The presumption against
preemption applies.
State and local government have a long history of
regulating housing standards for the health and
safety of the community. Edgar A. Levy Leasing Co. v.
Siegel, 258 U.S. 242, 246-47 (1922). State and local
housing regulation easily predates the Housing Act’s
11
initial enactment in 1937, PUB. L. NO. 75-412, 50 Stat.
888 (1937); see generally Eugene B. Jacobs & Jack G.
Levine, Redevelopment: Making Misused and Disused
Land Available and Useable, 8 HASTINGS L.J. 241 &
nn.3-5 (1957) (“governmental bodies have long been
concerned about the slums and unpleasant living
conditions of cities”) (citing California statutes from
1917, 1872, 1903, and 1915). Similarly, State and local
government have long regulated exposure to tobacco
smoke. See note 5, supra, and accompanying text.
HUD thus regulated here in a field already occupied
by State and local government.
In such fields traditionally occupied by State and
local government, courts apply a presumption against
preemption absent “the clear and manifest purpose of
Congress.” Rice v. Santa Fe Elevator Corp., 331 U.S.
218, 230 (1947) (emphasis added); Wyeth, 555 U.S. at
565; cf. U.S. v. Bass, 404 U.S. 336, 349 (1971)
(“[u]nless Congress conveys its purpose clearly, it will
not be deemed to have significantly changed the
federal-state balance”); accord Gonzales v. Oregon,
546 U.S. 243, 275 (2006). Courts “rely on the
presumption because respect for the States as
independent sovereigns in our federal system leads
[courts] to assume that Congress does not cavalierly
pre-empt [state law].” Wyeth, 555 U.S. at 565 n.3
(internal quotations omitted). For that reason, “[t]he
presumption … accounts for the historic presence of
state law but does not rely on the absence of federal
regulation.” Id.
If statutory text “is susceptible of more than one
plausible reading, courts ordinarily accept the reading
that disfavors pre-emption.” Altria Group, Inc. v.
Good, 555 U.S. 70, 77 (2008) (internal quotations
omitted). Even where Congress has preempted some
12
state action, the presumption against preemption
applies to determining the scope of preemption. Lohr,
518 U.S. at 485. The presumption thus applies not
only to the “yes-no” question of federal authority, but
also to the “how-much” question about that
authority’s scope. Even federal statutes directly
concerning tobacco require “a narrow reading” “in
light of the presumption against the pre-emption of
state police power regulations.” Cipollone v. Liggett
Grp., 505 U.S. 504, 518 (1992). The Housing Act’s
tangentially related safety-and-habitability provision
warrants that same narrow reading.
Notwithstanding the literal application of a
federal statute, the presumption prevents federal
laws’ preempting traditional state regulation absent
explicit guidance from Congress.6 Here, Congress in
1937 would not have intended “safe and habitable”
housing to include regulating environmental tobacco
smoke. The district court found HUD’s interpretation
a permissible “implicit delegation,” under Chevron,
U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S.
837 (1984), App. 50a, but implicit delegations do not
apply when the presumption against preemption
requires “clear and manifest” congressional intent.
While courts generally do not read “vague terms or
ancillary provisions” to “hide elephants in mouse
holes,” Whitman, 531 U.S. at 468, under the
For example, Santa Fe Elevator, 331 U.S. at 230, cited a
1944 decision where 21 states regulated warehouses. Davies
Warehouse Co. v. Bowles, 321 U.S. 144, 148-49 (1944). Under
those circumstances, the presumption applied to prevent
warehouses’ coming under federal regulation of “public utilities”
without any apparent congressional consideration of whether
warehouses should qualify as “public utilities,” even if they fit
the statute’s literal definition. Id.
6
13
presumption against preemption Congress cannot
hide anything anywhere.
This presumption applies even more strongly to
HUD’s administrative interpretation of the Housing
Act: “[A]lthough agencies are generally entitled to
deference in the interpretation of statutes that they
administer, a reviewing ‘court, as well as the agency,
must give effect to the unambiguously expressed
intent of Congress.’” B&WTC, 529 U.S. at 125-26
(emphasis added). That presumption compels denying
HUD deference here because federal courts have
constitutional obligations to defer to independent
state sovereigns, Santa Fe Elevator, 331 U.S. at 230,
and to interpret the statute that Congress wrote.
Clearly, federal agencies—which draw their delegated
power from Congress—cannot have a freer hand here
than Congress itself. In short, the presumption
against preemption is the tool of statutory
construction that enables a court to answer the
statutory question at Chevron step one, Chevron 467
U.S. at 843 n.9, without deference to HUD’s
interpretive gloss.
3. The Smoking Ban violates the
Spending Clause.
Congressional spending power “is of course not
unlimited, but is instead subject to several general
restrictions.” South Dakota v. Dole, 483 U.S 203, 207
(1987) (internal citations omitted); Nat’l Fed’n of
Indep. Bus. v. Sebelius, 567 U.S. 519, 578 (2012)
(“NFIB”). Conditions must be unambiguous, allowing
“States to exercise their choice knowingly cognizant of
the consequences of their participation.” Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17
(1981). Further, conditions cannot be “so coercive as
14
to pass the point at which pressure turns into
compulsion.” Dole, 483 U.S. at 211.
Citing Ass’n of Priv. Sector Colls. & Univs. v.
Duncan, 681 F.3d 427, 459 (D.C. Cir. 2012), the panel
argued that even agencies can condition federal funds
on terms beyond the Commerce Clause’s reach. App.
13a. While true for clear congressional delegations,
that does not apply to ambiguous delegations in
statutes subject to the clear-statement rules on which
Tenants rely. While Duncan found clear-statement
rules “a non sequitur in the context of a federal
program in which the Department has clear oversight
responsibility,” 681 F.3d at 459, that begs the
questions of whether a delegation is “clear” and which
statutory-construction analysis applies.
PHAs’ choosing to participate in federal-funding
programs cannot authorize HUD to condition funds on
ultra vires terms: “the language of the statute and not
the rules must control.” Touche Ross & Co. v.
Redington, 442 U.S. 560, 577 n.18 (1979); Alexander
v. Sandoval, 532 U.S. 275, 291 (2001) (“Agencies may
play the sorcerer’s apprentice but not the sorcerer
himself.”). Instead, courts must read the Housing Act
narrowly as to what the statute requires. Sossamon,
563 U.S. at 291 (clear-statement rule); Arlington Cent.
Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291, 296
(2006); cf. Section I.A.2.b, supra (presumption against
preemption). Unlike Dole and NFIB, where states
understood non-compliance’s consequences,7 the
Smoking Ban affords HUD total discretion on how to
punish PHAs that exercise their constitutional choice
not to comply.
States in Dole stood to lose 5% of federal funding, and States
in NFIB stood to lose all their federal Medicaid funding.
7
15
Spending Clause precedents compel the
conclusion that the Housing Act does not authorize
the Smoking Ban, but even if a smoking ban were
allowed, HUD’s Smoking Ban is impermissibly
ambiguous:
• The Smoking Ban may or may not authorize
warrantless home searches. See Section I.A.4,
infra.
• The Smoking Ban authorizes penalties up to
eviction for tenants and to either fund termination
or even property seizure for PHAs. See Section
I.A.3, infra.
Taking these compounding ambiguities together,
PHA tenants risk surrendering their rights if PHAs
act cautiously to comply with the ambiguous Smoking
Ban.
a. The Smoking Ban is a new and
ambiguous condition on preexisting funding.
PHAs cannot afford to forego HUD funding or lose
title to their properties, so HUD’s threatened
penalties are clearly coercive. See Section I.A.3.b,
supra. Tenants admittedly failed to raise that obvious
(and uncontested) point in the initial motion for
summary judgment but made it in a post-judgment
motion via judicially noticeable materials. Rule 60(b)
allows correcting this type of inadvertent omission,
FED. R. CIV. P. 60(b)(1), which can also be corrected on
appeal. FED. R. EVID. 201(d) (“court may take judicial
notice at any stage of the proceeding). HUD neither
contested that omission on Tenants’ part nor provided
any evidence to the contrary (i.e., evidence that PHAs
do not depend on HUD funding), which Tenants could
have rebutted in reply. Courts are “not required to
16
exhibit a naiveté from which ordinary citizens are
free.” Dep’t of Commerce v. New York, 139 S.Ct. 2551,
2575 (2019) (internal quotations omitted). It is well
known that State and local government are desperate
for funding.
Under the Housing Act, HUD may replace PHAs,
appoint a receiver, or take possession of HUD-assisted
housing, but only for a “substantial default by a public
housing agency.” 42 U.S.C. §1437d(j)(3)(A) (emphasis
added). This raises one of two alternate possibilities:
• If PHAs’ ignoring HUD’s Smoking Ban were a
“substantial default,” the addition of that new and
substantial condition is an “expansion [that]
accomplishes a shift in kind, not merely degree” is
not a mere adjustment. NFIB, 567 U.S. at 583. By
enabling HUD to cease funding billions—almost
half of the New York City PHA’s budget—the
concept of a Smoking Ban enforceable under
§1437d(j)(3)(A) easily falls on the change-in-kind
side of the line. NFIB, 567 U.S. at 585; Section
I.A.3.b, infra (coercion). That Smoking Ban
violates the commandeering doctrine by posing a
purported “choice” under the Spending Clause in
coercive terms.
• Alternatively, if PHAs’ ignoring HUD’s Smoking
Ban were not a “substantial default” under 42
U.S.C. §1437d(j)(3)(A), then HUD has no
authority to enforce the Smoking Ban, and the
Smoking Ban’s use of language purporting to
require PHA compliance is false and misleading.
The Ban cannot be a mere NFIB adjustment if its
violation alone qualifies as “substantial” under
§1437d(j)(3)(A). By contrast, if the Smoking Ban is too
insubstantial to enforce under §1437d(j)(3)(A), the
17
Smoking Ban is unenforceable by its terms and should
not use compulsory language. See Section I.A.1.a,
supra (Housing Act not preemptive). Either way, the
Smoking Ban is unenforceable and should be
rewritten as voluntary or vacated.
b. The Smoking Ban is coercive.
Spending-Clause inducements “may not cross the
‘point at which pressure turns into compulsion, and
ceases to be inducement.’” NFIB, 567 U.S. at 676. “If
States really have no choice other than to accept the
package, the offer is coercive, and the conditions
cannot be sustained under the spending power.” Id. at
679. Simply put, “theoretical voluntariness is not
enough.” Id. On two alternate grounds, this Court
should reverse or vacate the district court’s summary
judgment for HUD:
• First, PHAs’ dependency on federal funds is
judicially noticeable. See Court of Appeals Joint
Appendix (“CAJA”) 300-18 (judicially noticeable
evidence that PHAs rely on HUD funding).
• Second, while the district court faulted Tenants
for not showing that PHAs depend on federal
funds, the lower courts explained that HUD can—
instead of terminating funds—take title to PHAs’
buildings. App. 30a, 14a. That is even more
coercive than terminating funds, and courts
readily assume that parties act in economically
rational ways. Shays v. FEC, 414 F.3d 76, 90-91
(D.C. Cir. 2005).
Because PHAs’ dependence on HUD funding and
retaining title to their buildings is obvious, Tenants
respectfully submit that this Court can consider these
issues now, either to reverse the denials of Tenants’
motion for summary judgment and their post-
18
judgment motion or, at a minimum, to withdraw the
grant of summary judgment to HUD on the Spending
Clause and remand for further proceedings.
4. The Smoking Ban’s nexus with the
home raises Fourth Amendment
concerns.
The Fourth Amendment protects people from
warrantless searches, especially in the home: “The
right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly
describing the place to be searched and the persons or
things to be seized.” U.S. CONST. amend. IV. In district
court, HUD inconsistently argued both that
regulatorily required lease terms required tenants to
consent to warrantless entry, 24 C.F.R. §966.4(j)(2)(3), and also that “‘[t]enants cannot be asked to waive
their Fourth Amendment rights.’” App. 18a (quoting
HUD, Public Housing Occupancy Guidebook at 200
(2003)). At least one of these HUD arguments must be
wrong.
The lower courts dodged the Fourth Amendment
issue based on that HUD guidebook citation, App.
18a, 39a, which applies by its terms only to “enter[ing]
units for security purposes unless the police
department has a search warrant or they are in hot
pursuit of a suspect who has run into the unit.” App.
18a (emphasis added). The Smoking Ban does not
involve “security purposes,” so the guidebook does not
even apply. Instead, one of two situations applies:
(1) HUD’s Smoking Ban allows and requires PHAs to
enforce the Smoking Ban, notwithstanding tenants’
19
rights against warrantless searches, or (2) HUD’s
Smoking Ban is ambiguous on what it requires of
PHAs and their tenants. This section outlines the
former situation, and Section I.A.3, supra, outlines
the latter. Whichever applies, the Smoking Ban
violates the Constitution.
The public-housing context does not obliterate
Tenants’ rights: “The government as landlord is still
the government.” Rudder v. U.S., 226 F.2d 51, 53
(D.C. Cir. 1955); Pratt v. Chicago Hous. Auth., 155
F.R.D. 177, 178, 180 (D. Ill. 1994). Accordingly, the
Fourth Amendment protects tenants, who have not
waived that right.
In Section I.A.5, infra, Tenants address due
process as a basis for invalidating the Smoking Ban,
but the Fourth and Fifth Amendments overlap:
The principles laid down in [Entick v.
Carrington, 2 Wils. K.B. 275, 95 Eng.Rep. 807
(K.B. 1765)] affect the very essence of
constitutional liberty and security. They …
apply to all invasions on the part of the
government and its [employees] of the
sanctity of a man’s home and the privacies of
life. … In this regard the Fourth and Fifth
Amendments run almost into each other.
Boyd v. U.S., 116 U.S. 616, 630 (1886) (emphasis
added). As “a case undoubtedly familiar to every
American statesman at the time of the founding,”
Florida v. Jardines, 569 U.S. 1, 7 (2013) (interior
quotations omitted), Entick and its progeny gives a
clear indication of the importance of the Fourth and
Fifth Amendments’ protection of the home from
governmental intrusion. This Court has thus
“repeatedly stressed” that “the location of [a] search”
20
in “a home” is “a constitutional difference” that
distinguishes non-home searches. Caniglia v. Strom,
141 S.Ct. 1596, 1599 (2021) (interior quotations
omitted).
Wherever a search occurs, the Fourth
Amendment’s touchstone is whether one has a
“constitutionally protected reasonable expectation of
privacy,” including societal willingness to recognize
that expectation as reasonable. California v. Ciraolo,
476 U.S. 207, 211 (1986). These rules apply not only
to police investigating crimes but also for
administrative searches conducted for civil code
enforcement. Camara v. Mun. Court of City & Cty. of
San Francisco, 387 U.S. 523, 534 (1967); Michigan v.
Tyler, 436 U.S. 499, 506 (1978) (“[s]earches for
administrative purposes, like searches for evidence of
crime, are encompassed by the Fourth Amendment”),
so they apply to the Smoking Ban.
Indeed, “at the very core” of the Fourth
Amendment “stands the right of a man to retreat into
his own home,” Silverman v. U.S., 365 U.S. 505, 511
(1961), which “was a reaction to the evils of the use of
the general warrant in England and the writs of
assistance in the Colonies.” Warden v. Hayden, 387
U.S. 294, 301 (1967). The Amendment “protect[s]
against invasions of the sanctity of a man’s home,” id.
(emphasis added), with “the principal object [being]
protection of privacy rather than property.” Id at 304.
(emphasis added).
With HUD implicitly accusing smokers of burning
down buildings, it is significant that “it is …
impossible to justify a warrantless search on the
ground of abandonment by arson when that arson has
not yet been proved.” Tyler, 436 U.S. at 505-06. Using
tobacco products is legal activity confined to the home,
21
and the mere allegation that smoke not only may
escape the unit but also may harm third parties does
not provide probable cause for a warrant.
5. The Smoking Ban’s nexus with the
home raises due-process concerns.
The lower courts rejected Tenants’ claimed
fundamental right to conduct legal activity in the
home. The Fifth Amendments provides that no person
shall “be deprived of life, liberty or property without
due process of law” by the Federal Government, U.S.
CONST. amend. V, including federal agencies. Taylor
v. Beckham, 178 U.S. 548, 601 (1900). “The Due
Process Clause guarantees more than fair process,
and the ‘liberty’ it protects includes more than the
absence of physical restraint,” such as “individual
liberty against certain government actions regardless
of … the procedures used to implement them.”
Washington v. Glucksberg, 521 U.S. 702, 719-20
(1997) (interior quotations omitted).
Due-process review is tiered, ranging from strict
scrutiny for fundamental rights8 and distinctions
based on certain immutable criteria to rational-basis
review for most social and economic legislation. Other
legislative criteria invoke intermediate scrutiny or
even “heightened rational basis” on the spectrum
between strict-scrutiny and rational-based review.
Ruggiero v. FCC, 317 F.3d 239, 243-45 (D.C. Cir.
2003) (en banc). Whatever standard applies, however,
the “essential inquiry … is, however, inevitably a dual
Fundamental rights include the right “to direct the …
upbringing of one’s children” and, this Court has “strongly
suggested,” the “traditional right to refuse unwanted lifesaving
medical treatment.” Id. at 720. These fundamental rights rebut
HUD’s litigation position concerning in-unit exposure.
8
22
one” that pits the regulator’s interests against those
of regulated parties. Weber v. Aetna Cas. & Sur. Co.,
406 U.S. 164, 172-73 (1972). “Where there is a
significant encroachment on personal liberty, the
State may prevail only upon showing a subordinating
interest which is compelling.” Bates v. City of Little
Rock, 361 U.S. 516, 524 (1960). No matter how this
Court classifies Tenants’ claimed right, the federal
government has no legitimate interest in HUD’s
unauthorized experiment with social engineering.
Given our home-as-castle tradition, U.S. v. Orito,
413 U.S. 139, 142 (1973) (“Constitution extends
special safeguards to the privacy of the home”), this
Court should find the fundamental right that Tenants
claim or, alternatively, adopt a level of scrutiny above
the rational-basis test.9 But even the lowest level of
scrutiny requires a “legitimate government interest.”
R.A.V. v. St. Paul, 505 U.S. 377, 384 n.4 (1992).
Insofar as the Housing Act—properly understood, see
Section I.A.1-I.A.4, supra, I.B, infra—cannot be read
to delegate to HUD the authority for the Smoking
Ban, there is no legitimate federal interest in the
Smoking Ban. See id. (violation of Constitution
renders the “government interest … not a ‘legitimate’
one”). While that parties may prefer that the Court
resolve the level of scrutiny, the Smoking Ban fails
under any level.
Tenants respectfully submit that this Court
should recognize the due-process right Tenants claim
under the framework of Glucksberg, 521 U.S. at 720The Smoking Ban, CAJA:489 & n.10, improperly premised
rational-basis review on decisions involving institutionalized
plaintiffs or public spaces (including private businesses), not
homes.
9
23
21 (“fundamental rights and liberties which are,
objectively, deeply rooted in this Nation’s history and
tradition”). With a fundamental right to engage in
lawful activity at home, Tenants could protect their
liberty interests here. The lower courts rejected the
authorities on which Tenants rely10 as based only on
First Amendment and personal-intimacy grounds.
App. 43a. The sanctity of the home, however, is not
limited to pornography and sex. Indeed, Ravin and
Sinclair involved smoking, albeit smoking marijuana.
As indicated, the protections of the Fourth and
Fifth Amendments “run almost into each other,”
Boyd, 116 U.S. at 630, creating a special protection of
the home on par with other fundamental rights: “The
Constitution extends special safeguards to the privacy
of the home, just as it protects other special privacy
rights such as those of marriage, procreation,
motherhood, child rearing, and education.” Orito, 413
U.S. at 142 (emphasis added). These amendments
create a “right to privacy, no less important than any
other right carefully and particularly reserved to the
people.” Mapp v. Ohio, 367 U.S. 643, 657 (1961)
(emphasis added). Indeed, HUD itself has found the
home specially protected:
One’s home is a place of privacy, security, and
refuge (or should be)[.] … Consistent with this
reality, the Supreme Court has recognized
Lawrence v. Texas, 539 U.S. 558, 562 (2003); Paris Adult
Theatre, 413 U.S. at 66; Stanley v. Georgia, 394 U.S. 557, 564
(1969); Orito, 413 U.S. at 142; State ex rel. Zander v. District
Court of Fourth Judicial Dist., 594 P.2d 273, 281 (Mont. 1979);
Ravin v. State, 537 P.2d 494, 503, 514 (Alaska 1975); People v.
Sinclair, 387 Mich. 91, 133 (1972) (T.G. Kavanagh, J.,
concurring).
10
24
that individuals have heightened expectations
of privacy within the home.
HUD, Quid Pro Quo and Hostile Environment
Harassment and Liability for Discriminatory Housing
Practices Under the Fair Housing Act, 81 Fed. Reg.
63,054, 63,055-56 (2016). In short, this Court should
recognize that the home context not only matters but
controls here.
B. The Housing Act does not support
HUD’s claimed authority.
For good reason, Congress has never granted any
federal agency the authority to regulate the emissions
of smoke from using tobacco products in non-public
locations: emissions of smoke from using tobacco
products in private living quarters and other nonpublic locations has no connection whatsoever to
interstate commerce and is outside the province of the
Federal Government. See Section I.A.1, supra. But
even if Congress has authority to regulate an activity
or product, that does not mean that Congress has
delegated that power.
1. Agencies cannot “find” new
authority in vague, long-ago
delegations.
The panel’s reliance on the “ordinary meaning” of
statutory terms (App. 6a) is misplaced under the
major-questions doctrine for numerous reasons. These
reasons combine to compel the conclusion that the
Housing Act did not authorize HUD to regulate lawful
activities in the home.
First, contrary to the “ordinary meaning” canon,
clear-statement rules such as the major-questions
doctrine and the federalism canon require considering
alternate definitions that are more consistent with
25
delegation of law-making authority. See Section
I.A.2.b, supra. Rather than defer reflexively, courts
“typically greet [such an] announcement with a
measure of skepticism” because they “expect Congress
to speak clearly if it wishes to assign to an agency
decisions of vast economic and political significance.”
UARG, 573 U.S. at 324 (interior quotations omitted).
When interpreting general language—e.g., the
Occupational Safety and Health Act’s authorizing
standards to provide “safe or healthful employment,”
29 U.S.C. §652(8), or the Housing Act safety-andhabitability provision here—courts infer a materiality
threshold: “‘safe’ is not the equivalent of ‘risk-free’
[and] many activities that we engage in every day—
such as driving a car or even breathing city air—…
entail some risk of accident or material health
impairment; nevertheless, few people would consider
these activities ‘unsafe.’” Benzene, 448 U.S. at 642.
Similarly, in the prison-exposure cases, courts require
“‘expos[ure] to unreasonably high levels’ of smoke,”
not a smoke-free environment. Scott v. District of
Columbia, 139 F.3d 940, 943 (D.C. 1998) (quoting
Helling v. McKinney, 509 U.S. 25, 35 (1993)). “Safe”
simply does not mean “risk-free.”
Under that view, it is unreasonable to infer that
Congress sub silentio—in 1937, no less11—authorized
HUD to run the lives of public-housing tenants:
In the absence of a clear mandate in the Act,
it is unreasonable to assume that Congress
Courts generally “apply the ordinary meaning of [a
statute’s] terms at the time of their adoption.” BP P.L.C. v. Mayor
of Baltimore, 141 S.Ct. 1532, 1537 (2021). Benzene—a 1980
decision about safety under a 1970 statute—suggests that
“safety” circa 1937 did not mean “risk-free.”
11
26
intended to give the Secretary the
unprecedented power over American industry
that would result from the Government’s view
of §§ 3(8) and 6(b)(5), coupled with OSHA’s
cancer policy.
Benzene, 448 U.S. at 645.12 There is simply no
indication that Congress intended HUD to have that
broad power.
Second, as discussed in more detail under the
federalism canon, see Section I.A.2, supra, clearstatement rules require considering alternate
definitions, even if an ordinary meaning would
support the agency’s view.
Third, contrary to the deference by the panel (App.
9a) and district court (App. 50a), courts must
“determine the correct reading” of statutes that raise
“question[s] of deep economic and political
significance,” without administrative deference. King,
576 U.S. at 486 (interior quotations omitted); UARG,
573 U.S. at 324; West Virginia, 142 S.Ct. at 2612-13.
Nor is the Housing Act the type of statute where
Congress provided a long leash to regulate against
uncertainty. Compare, e.g., 42 U.S.C. §300g-1(b)(1)(B)
(EPA must set level for “each contaminant which, in
[its] judgment … may have any adverse effect on the
health of persons”) (emphasis added) with Nat. Res.
Def. Council, Inc. v. EPA, 824 F.2d 1211, 1215-16
(D.C. Cir. 1987). Deference cannot save HUD because
The vacated Benzene rule was less draconian than HUD’s
outright ban: “Wherever the toxic material to be regulated is a
carcinogen, the Secretary has taken the position that no safe
exposure level can be determined and that § 6(b)(5) requires him
to set an exposure limit at the lowest technologically feasible
level that will not impair the viability of the industries
regulated.” Id. at 613.
12
27
the issue of deference does not arise here.
Fourth, the doctrine questions congressional
delegations to agencies lacking expertise in the
relevant field. West Virginia, 142 S.Ct. at 2612-13.
Here, HUD admits it lacks “expertise in health
economics,” CAJA:252, so there is little reason to
think that Congress would delegate the regulation of
smoking for public-health purposes to HUD,
especially given that the original Food, Drug and
Cosmetic Act did not delegate regulation of cigarettes
to the Food & Drug Administration. B&WTC, 529 U.S.
at 133. HUD could as easily ban red meat or perfume.
Fifth, when Congress intended the Housing Act to
cover extraneous issues, it legislated specifically. See
42 U.S.C. §§1437z-3(a) (pets in public housing),
4822(d)(3) (lead paint abatement in public housing).
Similarly, Congress prohibited smoking in “regular
health or day care or early childhood education
programs to children” operated or contracted by
federal agencies, but exempted “any private
residence.” 20 U.S.C. §7973(c)(2). These targeted,
specific amendments reinforce that the Housing Act
does not use its “vague terms or ancillary provisions”
to “hide elephants in mouse holes.” Whitman, 531 U.S.
at 468. This Court should reject HUD’s latter-day
claim to wide authority to regulate tenants’ lives.
2. HUD’s Smoking Ban should meet the
same fate as FDA’s cigarette rule.
When FDA attempted to regulate tobacco without
explicit congressional authority, this Court rejected
that application of FDA’s then-existing authority.
B&WTC, 529 U.S. at 161. “Regardless of how serious
the problem an administrative agency seeks to
address, however, it may not exercise its authority in
28
a manner that is inconsistent with the administrative
structure that Congress entered into law.” Id. at 125
(interior quotations omitted). This Court based that
finding not only on the “overall regulatory scheme”
but also on “the tobacco-specific legislation” enacted
after the FCDA. Id. at 126. While cigarettes met the
literal definition of a drug as “articles (other than
food) intended to affect … any function of the body,”
21 U.S.C. §321(g)(1)(C); B&WTC, 529 U.S. at 127,
FDA lacked clear authority to regulate cigarettes.
Even more so here, this Court should reject HUD’s
weak statutory claim to an authority to regulate
smoking and indoor air quality in private living
quarters based on health.
After B&WTC, Congress in 2009 vested FDA with
authority to regulate tobacco products under the
Family Smoking Prevention and Tobacco Control Act,
PUB. L. NO. 111-31, 123 Stat. 1776 (2009). With the
exception of the FDA since 2009 and various narrow
pieces of tobacco-specific legislation, Congress has not
granted any federal agency specific nationwide
authority over tobacco products in any manner. Quite
the contrary, Congress explicitly forbade FDA’s
outright banning tobacco products, 21 U.S.C.
§387g(d)(3), so even the one federal agency authorized
to regulate these products cannot ban them.
Against that background, HUD cannot argue that
§1437d(f)(2)’s safety-and-habitability clause allows
HUD to ban tobacco use when, as with FDA’s statute,
the ordinary meaning of HUD’s statute is both
capable of and more amenable to a narrower
construction.
29
3. Chevron deference is inappropriate,
especially given HUD’s inexpertise.
Citing Kennecott Greens Creek Min. Co. v. Mine
Safety & Health Admin., 476 F.3d 946, 954–55 (D.C.
Cir. 2007), the panel gave HUD “extreme deference”
for agencies acting within their technical expertise,
App. 9a, which was error for two reasons.
First, HUD readily acknowledged that the publichealth aspects of the Smoking Ban fall outside its
expertise: “If OMB is asking for something[...] that
we’re not capable of answering due to lack of expertise
in health economics.” CAJA:252. “[D]eference ebbs
when the subject matter of the dispute is distant from
the agency’s ordinary duties or falls within the scope
of another agency’s authority.” Kisor v. Wilkie, 139
S.Ct. 2400, 2417 (2019). Whether because of its
inexpertise or bias, HUD relied on biased data,
without reviewing countervailing data. See Section
II.B, infra. For the public-health rationale that drove
the Smoking Ban, HUD has no expertise to which to
defer.
Second, although the district court deferred under
Chevron, App. 50a, that deference was inappropriate
under the major-questions doctrine. In majorquestions contexts, agencies must show “clear
congressional authorization” for claimed powers, not
a “merely plausible textual basis for the agency
action.” West Virginia, 142 S.Ct. at 2609 (interior
quotations omitted); cf. Chevron, 467 U.S. at 843 n.9
(Chevron “step one” relies on traditional tools of
statutory construction, on which courts are “the final
authority”). HUD warranted no deference.
30
C. With health-based rationales stricken,
the Smoking Ban is arbitrary and
capricious.
HUD’s alternate fire-safety and maintenance-cost
rationales cannot save the Smoking Ban if they are
pretextual and the public-health rationale is ultra
vires. Dep’t of Commerce, 139 S.Ct. at 2573-75. And
HUD’s additional rationales plainly are pretextual:
• Agencies that prioritize fire safety would make
smoking stations mandatory at building
entrances, not optional 25-plus feet away.
• Agencies motivated by smoke traveling between
units would exempt single-unit homes.
Courts are “not required to exhibit a naiveté from
which ordinary citizens are free.” Id. at 2575 (internal
quotations omitted). HUD seeks to ban smoking as a
public-health measure, notwithstanding its other
rationales.
With the public-health rationale stricken as ultra
vires, the Smoking Ban failed to “examine[] the
relevant data and articulate[] a satisfactory
explanation for [the] action including a rational
connection between the facts found and the choice
made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State
Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
Agency action is arbitrary and capricious if it “relie[s]
on factors which Congress has not intended it to
consider,” id., or fails to consider reasonably obvious
alternatives. Nat’l Shooting Sports Found., Inc. v.
Jones, 716 F.3d 200, 215 (D.C. Cir. 2013). Rejecting
HUD’s air-quality rationale would require considering
additional alternatives (e.g., banning cigarettes but
not pipes, banning candles, requiring better
sprinklers or fire insurance, requiring deposits,
31
eliminating the 25-foot rule, requiring smoking
stations outside doorways).13 If HUD loses on air
quality, the whole Smoking Ban must fall.
II. THE LOWER COURTS’ DECISIONS ARE
PROCEDURALLY FLAWED.
In addition to the substantive issue in Section I,
this action raises three important procedural issues
about summary judgment against governmental
parties.
A. HUD should not have prevailed on
coerciveness.
The panel affirmed denial of Tenants’ SpendingClause claims based on the lack of evidence of coercion
under Dole and its progeny. The panel also affirmed
the grant of summary judgment for HUD on coercion.
While both actions were error, the latter splits with
universal authority requiring moving parties to make
their case. HUD submitted no evidence on coercion.
Although the lower courts found the Smoking Ban
a permissible “adjustment,” an “expansion [that]
accomplishes a shift in kind, not merely degree” is not
a mere adjustment. NFIB, 567 U.S. at 583. To enforce
the Smoking Ban, HUD could not only cease future
funding, but also take title to PHAs’ property. App.
30a, 14a; 42 U.S.C. §1437d(g)(1). That plainly is
coercive. A Smoking Ban enforceable by asset seizure
falls on the change-in-kind side of the line. NFIB, 567
U.S. at 585. While judicially noticeable information
(CAJA:300-18) shows dependency on federal funds, no
evidence showed non-coercion.
It is judicially noticeable that most smoking-related fires
come from cigarettes and that candles cause almost nine times
more fires than non-cigarette smoking materials, CAJA:319-48.
13
32
Summary judgment requires movants to show the
lack of genuine dispute on all material facts that
movants have the burden of proving, which fully
applies to motions under the Administrative
Procedure Act (“APA”). Lujan v. Nat’l Wildlife Fed’n,
497 U.S. 871, 884 (1990). Under the APA’s arbitraryand-capricious test, plaintiffs bear the burden of
proving agency action unlawful, but otherwise,
moving parties—including federal parties—must
make their affirmative showing to win summary
judgment. Weahkee v. Perry, 587 F.2d 1256, 1265
(D.C. Cir. 1978). (“neither side could prevail upon a
motion for summary judgment based upon the
administrative record”). “Where neither party has
shown what the basic facts are … summary judgment
is inappropriate.” Lexington Ins. Co. v. Widger Chem.
Corp., 805 F.2d 1035 (6th Cir. 1986); R. J. Corman
Derailment Servs., L.L.C. v. Int’l Union, Local Union
150, 335 F.3d 643, 647-48 (7th Cir. 2003) (“existence
of cross-motions for summary judgment does not…
imply that there are no genuine issues of material
fact”). In the absence of any showing by HUD,
rejecting Tenants’ coercion evidence required either
supplemental briefing or discovery and a bench trial.
See Adair v. England, 217 F. Supp. 2d 7, 16 (D.D.C.
2002) (“the court denies without prejudice the parties’
cross-motions for summary judgment”); Red Lake
Band of Chippewa Indians v. U.S. DOI, 624 F. Supp.
2d 1, 27 (D.D.C. 2009) (denying cross motions for
summary judgment); U.S. v. General Motors Corp., 65
F.R.D. 115, 121 (D.D.C. 1974) (same). Even if Tenants
did not prevail in showing the Smoking Ban coercive,
HUD did not prevail in showing it non-coercive.
Here, the complaint raises the inference that HUD
coerces PHAs to implement HUD’s Smoking Ban,
33
which suffices to defeat HUD’s motion for summary
judgment,14 even if it does not carry the burden to
award Tenants summary judgment. Moreover, HUD
did not mention financial coercion (i.e., whether PHAs
rely on federal funds) in its cross-motion, see App. 35a
n.10 (asking whether PHAs would consider a
threatened loss of federal funds coercive), thus
denying Tenants the opportunity to defend that
obvious point15 in their joint reply and crossopposition. Under the circumstances, HUD did not
carry its burden of establishing that the Smoking Ban
is not coercive.
B. The lower courts erred by ignoring nonrecord evidence.
The lower courts ignored non-record evidence,
App. 11a-12a, 26a, 65a-66a, and “caselaw on a
plaintiff’s ability to supplement an administrative
record to support a constitutional cause of action is
sparse and in some tension.” Bellion Spirits, LLC v.
U.S., 335 F.Supp.3d 32, 41-42 (D.D.C. 2018). Agencies
should have no greater rights in defending their rules
than Congress would have defending similar statutes
vis-à-vis identical charges of unconstitutionality.
Rulemaking records do not limit constitutional
review. City of Chicago v. Int’l Coll. of Surgeons, 522
U.S. 156, 167 (1997) (“facial constitutional claims” are
“not bound by the administrative record”).
The Smoking Ban is predicated on the
scientifically dubious notion that the tobacco product
The evidence and issues that Tenants raised in their
briefing “must be treated in all respects as if raised in the
pleadings,” FED. R. CIV. P. 15(b)(2), which also can infer coercion.
15
As set forth in Section I.A.3.b, supra, PHAs cannot afford to
lose HUD funding.
14
34
emissions produced by public housing tenants using
tobacco products within their private living quarters
pose a health risk to tenants living in other
apartments. CLASH and other commenters noted the
lack of peer-reviewed studies that show adverse
health effects at the low levels of environmentaltobacco-smoke exposure that could go with interapartment transfer, CAJA:470, 472, 474-75, 477-78:
A litany of scientific evidence and analysis can
be cited here that impeaches the legitimacy of
this Rule. But I won’t pretend to believe that
even a mountain of it will persuade the minds
of wo/men on a mission. For now it’s enough to
say it exists and will leave it at a small
sampling for the purpose of the record.
JA:445; accord James E. Enstrom, Defending legitimate epidemiologic research: combating Lysenko
pseudoscience, 4:11 EPIDEMIOL PERSPECT. INNOV. 1, 1
(2007) (“this paper is intended to defend legitimate
research against illegitimate criticism by those who
have attempted to suppress and discredit it because it
does not support their ideological and political
agendas”) (JA:174); Sheldon Ungar & Dennis Bray,
Silencing science: partisanship and the career of a
publication disputing the dangers of second-hand
smoke, 14 PUB. UNDERSTANDING SCI. 5, 19 (2005)
(“The results suggest that the public consensus about
the negative effects of passive smoke is so strong that
it has become part of a regime of truth that cannot be
intelligibly questioned.”) (JA:202).
Dr. Enstrom’s invocation of the Soviet scientist
Lysenko—whose politicized science eradicated a
generation of Russian geneticists—is apt. “The lesson
of Lysenko is that scientific reality does not bend to
accommodate ideology or policy” because “[b]elieving
35
strongly in something does not make it true.” Bert
Black et al., Science and the Law in the Wake of
Daubert: A New Search for Scientific Knowledge, 72
TEX. L. REV. 715, 771 (1994). When presented with
two parties—rather than a one-sided diktat—
environmental-tobacco-smoke regulations flounder on
the lack of actual evidence:
Are we to believe that any exposure to tobacco
smoke, no matter what the level, no matter
what the length of time, poses a grave health
risk?....”The plaintiffs believe that[...], their
involuntary exposure to tobacco smoke at
almost any level was unreasonable. The
district court apparently agreed with this line
of reasoning. We do not.
Scott, 139 F.3d at 943 (internal citations omitted);
Helling, 509 U.S. at 35; Feinstein v. Rickman, 26
N.Y.S.3d 135 (App. Div. 2016); Ewen v. Maccherone,
927 N.Y.S.2d 274, 276 (App.Term 2011); Schuman v.
Greenbelt Homes, Inc., 212 Md. App. 451, 465 (Ct.
App. 2013) (evidence “did not show that secondhand
cigarette smoke at any location, in any amount, will
cause injury”). Although “Judge Leventhal’s
memorable phrase” arose in the context of legislative
history, Exxon Mobil Corp. v. Allapattah Servs., 545
U.S. 546, 568 (2005), it applies equally to HUD’s onesided survey of scientific literature: “an exercise in
‘looking over a crowd and picking out your friends.’”
Id. (quoting Wald, Some Observations on the Use of
Legislative History in the 1981 Supreme Court Term,
68 IOWA L. REV. 195, 214 (1983)); see also CAJA:23343 (studies suggesting lack of transfer and lack of
adverse health effects).
While Tenants’ studies were not in the Smoking
Ban’s administrative record, the statement that
36
HUD’s list was incomplete—and biased—was in that
record. HUD’s one-sided record should be
disqualifying under the APA and, a fortiori, the
Constitution. The lower courts’ ignoring Tenants’ nonrecord evidence was error for constitutional
adjudication.
C. The lower courts erred in denying
Tenants’ Rule 15(b)(2) motion.
Although the initial complaint did not raise a
Spending-Clause claim, the parties’ summaryjudgment briefs addressed the issue, and the lower
courts reached it. The lower courts denied Tenants’
motion to conform the pleadings to the to the facts and
issues raised. FED. R. CIV. P. 15(b)(2). In the D.C.
Circuit, it “is an open question whether the Federal
Rules permit parties to impliedly consent to ‘try’
issues not raised in their pleadings through summary
judgment motions.” Indep. Petroleum Ass’n of Am. v.
Babbitt, 235 F.3d 588, 596 (D.C. Cir. 2001). In at least
three circuits, Rule 15(b)(2) applies to summary
judgment. Lone Star Sec. & Video, Inc. v. City of L.A.,
584 F.3d 1232, 1235 n.2 (9th Cir. 2009); AFSCME,
Local 2957 v. City of Benton, 513 F.3d 874, 882-83 (8th
Cir. 2008); Cook v. City of Bella Villa, 582 F.3d 840,
852 (8th Cir. 2009). Tenants will renew their lowercourt motion to conform pleadings in this Court.
CONCLUSION
The petition for a writ of certiorari should be
granted.
37
January 19, 2023
Respectfully submitted,
LAWRENCE J. JOSEPH
Counsel of Record
1250 Connecticut Ave. NW
Suite 700-1A
Washington, DC 20036
(202) 355-9452
ljoseph@larryjoseph.com
Counsel for Petitioners
APPENDIX
NYC C.L.A.S.H., Inc. v. Fudge, 47 F.4th 757
(D.C. Cir. 2021) ............................................ 1a
NYC C.L.A.S.H., Inc. v. Carson, 442 F. Supp.
3d 200 (D.D.C. 2020) ................................. 21a
NYC C.L.A.S.H., Inc. v. Carson, No. 1:18-cv1711-ESH (D.D.C. July 25, 2020) ............. 58a
NYC C.L.A.S.H., Inc. v. Fudge, No. 20-5126
(D.C. Cir. Oct. 21, 2022) (panel)................ 69a
NYC C.L.A.S.H., Inc. v. Fudge, No. 20-5126
(D.C. Cir. Oct. 21, 2022) (en banc) ............ 70a
U.S. CONST. art. I, §8, cl. 1 ............................... 71a
U.S. CONST. art. I, §8, cl. 3 ............................... 71a
U.S. CONST. amend. IV .................................... 71a
U.S. CONST. amend. V ...................................... 71a
U.S. CONST. amend. X ...................................... 72a
U.S. CONST. amend. XIV §1 ............................. 72a
42 U.S.C. §1437d(f)(2) Federal standards....... 72a
42 U.S.C. §1437d(j)(3)(A) ................................. 72a
42 U.S.C. §1437z-3(a) (a) Ownership
conditions ................................................... 74a
24 C.F.R. §965.653 Smoke-free public
housing. ...................................................... 74a
24 C.F.R. §965.655 Implementation. .............. 75a
24 C.F.R. §966.4(j)............................................ 76a
First Amended Complaint (proposed) ............. 77a
1a
United States Court of Appeals for the
District of Columbia Circuit
Argued September 9, 2021
Decided August 26, 2022
No. 20-5126
September Term, 2022
1:18-cv-01711-ESH
NYC C.L.A.S.H., Inc., et al.,
Appellants
v.
Marcia L. Fudge, Secretary of Housing and Urban
Development, in her official capacity and United
States Department of Housing & Urban
Development,
Appellees
Appeal from the United States District Court for the
District of Columbia (No. 1:18-cv-01711)
Before: SRINIVASAN, Chief Judge, JACKSON*,
Circuit Judge, and GINSBURG, Senior Circuit
Judge.
Opinion for the Court filed by Chief Judge
SRINIVASAN.
SRINIVASAN, Chief Judge:In
2016,
the
Department of Housing and Urban Development
promulgated a rule prohibiting the use of lit tobacco
products in HUD-subsidized public housing units
Circuit Judge, now Justice, Jackson was a member of
the panel at the time the case was argued but did not
participate in this opinion.
*
2a
and their immediate surroundings. The Smoke Free
Rule is meant to improve air quality within public
housing, protect residents from health risks
associated with secondhand smoke, reduce the risk of
fires, and decrease the cost of property maintenance.
Appellants here, led by New York City Citizens
Lobbying Against Smoker Harassment (C.L.A.S.H.),
brought an action raising a number of statutory and
constitutional challenges to the Rule. The district
court rejected all of C.L.A.S.H.’s claims. We agree
with the district court and thus affirm its grant of
summary judgment to the Department.
I.
A.
The Housing Act of 1937 declares it to be “the
policy of the United States” to “assist States and
political subdivisions of States to remedy the unsafe
housing conditions and the acute shortage of decent
and safe dwellings for low-income families.” 42
U.S.C. § 1437(a)(1)(A). The statute authorizes the
Department of Housing and Urban Development to
provide federal financial contributions to public
housing agencies (PHAs) to develop and maintain
public housing. Id. § 1437c. PHAs are state and local
entities “authorized to engage in or assist in the
development or operation of public housing.” Id. §
1437a(b)(6)(A).
Contribution contracts for PHAs “shall require
that the agency maintain its public housing in a
condition that complies with . . . housing quality
standards” established by the Department. Id. §
1437d(f)(1). The Department’s “housing quality
standards” must “ensure that public housing
dwelling units are safe and habitable.” Id. §
3a
1437d(f)(2). To that end, the standards “shall include
requirements relating to habitability, including
maintenance, health and sanitation factors,” and
“condition . . . of dwellings.” Id.
B.
In November 2015, relying on its authority
under § 1437d(f)(2) “to ensure that public housing
dwelling units are safe and habitable,” the
Department proposed a rule requiring PHAs to
implement a smoke-free policy in public housing
units. Instituting Smoke-Free Public Housing, 80
Fed. Reg. 71,762 (proposed Nov. 17, 2015). In
December 2016, after a period of notice and comment,
the Department promulgated the final rule.
Instituting Smoke-Free Public Housing, 81 Fed. Reg.
87,430 (Dec. 5, 2016).
The Rule instructs PHAs to prohibit lit tobacco
products in all indoor areas of public housing,
including but not limited to living units, indoor
common areas, electrical closets, and administrative
office buildings. Id. at 87,444; 24 C.F.R. §
965.653(a). The prohibition also extends to outdoor
areas within twenty-five feet of public housing and
administrative buildings.
PHAs
retain
the
discretion to establish designated smoking areas
outside the twenty-five-foot perimeter. 81 Fed. Reg.
at 87,444; 24 C.F.R. § 965.653(b).
The Department explained that the Rule “is
expected to improve indoor air quality in public
housing; benefit the health of public housing
residents, visitors, and PHA staff; reduce the risk of
catastrophic fires; and lower overall maintenance
costs.” 81 Fed. Reg. at 87,431. The Department
relied on scientific evidence documenting both the
4a
deleterious health effects of secondhand smoke and
the migration of secondhand smoke along hallways
and between apartments within multi-unit buildings.
80 Fed. Reg. at 71,763–64. The Department noted
that “[t]he Surgeon General has concluded that there
is no risk- free level of exposure to SHS [secondhand
smoke].” Id. at 71,763. With regard to the link
between smoking and the risk of fires, the
Department
cited
studies
documenting
the
connection and establishing that “[s]moking is the
leading cause of fire deaths in multiunit properties.”
Id. at 71,764. “Smoking is also associated with higher
maintenance costs for landlords,” the Department
explained, including “the need for additional
cleaning, painting, and repair of damaged items at
unit turnover compared to non-smoking units.” Id.
The Department reviewed various studies and
surveys estimating those additional costs.
To implement the Rule, the Department
amended the regulations governing PHA leases to
include the requirement that tenants agree not to
smoke in restricted areas.
24 C.F.R. §
966.4(f)(12)(i)(B), (ii)(B). The regulations also require
PHAs to amend existing tenant leases and applicable
PHA plans in accordance with the Rule. Id. §
965.655. A tenant’s failure to fulfill household
obligations can be grounds for termination or
eviction, although the terms of the Rule leave
enforcement to the discretion of each PHA. Id. §
966.4(l).
C.
In July 2018, C.L.A.S.H. and aligned parties filed
an action against the Department, raising
constitutional and statutory challenges to the Smoke
5a
Free Rule. C.L.A.S.H. argued that the Department
lacked statutory authority to promulgate the Rule
and that the Rule is arbitrary, capricious, and an
abuse of discretion. C.L.A.S.H. further claimed that
the Rule exceeds the Department’s powers under the
Spending and Commerce Clauses, and that it
violates the Fourth, Fifth, and Tenth Amendments.
The district court granted summary judgment in
favor of the Department, rejecting all of C.L.A.S.H.’s
challenges in a thorough opinion. NYC C.L.A.S.H.,
Inc. v. Carson, 442 F. Supp. 3d 200, 223 (D.D.C.
2020). C.L.A.S.H. now appeals.
II.
C.L.A.S.H. renews the same statutory and
constitutional claims it unsuccessfully advanced in
the district court. We first address the statutory
challenges and then turn to the constitutional ones.
We, like the district court, conclude that all the
challenges lack merit.
A.
In its statutory arguments, C.L.A.S.H. contends
that the Smoke Free Rule exceeds the authority
granted to the Department under the Housing Act,
and that the Rule is arbitrary and capricious in
contravention of the Administrative Procedure Act.
1.
We first consider—and reject—C.L.A.S.H.’s
contention that the Department’s grant of authority
under the Housing Act does not encompass the
Smoke Free Rule. The Act directs the Department to
“establish housing quality standards . . . that ensure
that public housing dwelling units are safe and
habitable.” 42 U.S.C. § 1437d(f)(2). And those
6a
housing
quality
standards
must
include
“requirements relating to habitability, including
maintenance, health and sanitation factors,” and
“condition . . . of dwellings.” Id.
The ordinary meaning of terms such as “safe and
habitable,” “maintenance,” “health and sanitation,”
and “condition of dwellings” embraces a rule
prohibiting use of lit tobacco products in public
housing units “to improve indoor air quality in public
housing; benefit the health of public housing
residents, visitors, and PHA staff; reduce the risk of
catastrophic fires; and lower overall maintenance
costs.” 81 Fed. Reg. at 87,431. Those objects of the
Rule directly relate to the “safety,” “habitability,”
and “condition of dwellings” in public housing and to
“maintenance, health and sanitation factors”
associated with those dwellings. 42 U.S.C. §
1437d(f)(2). Below, we consider the extent to which
the Department adequately substantiated the
connection between the Rule and those objectives
when we review C.L.A.S.H.’s arbitrary-andcapricious challenge. But on the question we
consider here of whether the Rule lies within the
statute’s grant of authority to the Department, the
plain language of the statute encompasses the Rule.
In resisting that straightforward understanding
of the statutory terms, C.L.A.S.H. relies on a
presumption
against
preemption
in
fields
traditionally
occupied
by
state
and
local
governments. No degree of presumption, however,
supports the conclusion that a rule directly related
to, and promulgated to ensure, the safety, health,
habitability, and maintenance of dwelling units falls
outside a statutory grant of authority to address
7a
those precise subjects by name.
C.L.A.S.H. emphasizes that states and localities
“have a long history of regulating housing standards
for the health and safety of the community.”
C.L.A.S.H. Br. 39. The Rule, though, operates only
in the context of public housing subsidized by federal
funding—a context in which the establishment and
regulation of housing standards is entrusted by
statute to a federal agency. And within that domain,
the Department’s regulations impose an array of
obligations on tenants related to the health and
safety of their housing— including requirements that
tenants safely dispose of garbage and waste, refrain
from disturbing the peaceful enjoyment of
accommodations by other residents, and maintain
their property in “decent, safe, and sanitary”
conditions. 24 C.F.R. § 966.4(f)(6), (7), (9), (11).
C.L.A.S.H. does not suggest that those kinds of
requirements fall outside the Department’s statutory
authority. And C.L.A.S.H. points to no material
distinction between those requirements and the
Smoke Free Rule vis-à-vis a presumption against
preemption.
C.L.A.S.H.’s reliance on the Supreme Court’s
recent decision in Alabama Ass’n of Realtors v. HHS,
141 S. Ct. 2485 (2021), is off base. There, the Court
held that the Director of the Centers for Disease
Control and Prevention (CDC) almost certainly
lacked authority under the Public Health Service Act
to impose a nationwide moratorium on eviction of
tenants in response to the COVID-19 pandemic.
That holding rested on the specific terms of the
statutory grant of authority, which the Court read to
be focused on measures directly relating to the
8a
spread of the disease itself as opposed to the indirect,
“downstream connection between eviction and the
interstate spread of disease.” Id. at 2488. And the
Court emphasized the “sheer scope of the CDC’s
claimed authority,” which encompassed private
landlords nationwide. Id. at 2489. Here, by contrast,
the Smoke Free Rule falls directly—not indirectly—
within the terms of the statutory grant of authority.
And the Rule applies only in the specific setting of
Department- funded public housing, a context in
which the Housing Act expressly contemplates—
indeed, requires—Departmental involvement.
C.L.A.S.H. gets no further in relying on FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120
(2000). There, the Court held that the Food and
Drug Administration’s statutory authority to
regulate drugs and devices did not encompass the
power to regulate tobacco products. The Court
reasoned that Congress had shown in various ways
that it intended to exclude tobacco products from the
agency’s jurisdiction, including through a history of
tobacco-related legislation leaving no role for the
FDA over tobacco products and through Congress’s
repeated rejection of legislation that would have
granted the FDA the authority to regulate tobacco.
Id. at 142–44, 147–49. C.L.A.S.H. points to no such
legislative indicia here. And importantly, the Brown
& Williamson Court emphasized the breadth of
authority claimed by the agency, which encompassed
the purported power to regulate an industry
constituting a significant portion of the national
economy and to ban the industry’s products
altogether. Id. at 159. This case, again, is decidedly
different in that the Rule applies only to federally-
9a
funded public housing, a domain in which Congress
has granted the Department the express authority to
regulate dwelling conditions by setting health,
safety, habitability, and maintenance standards.
2.
C.L.A.S.H. next contends that the Department’s
promulgation of the Smoke Free Rule was arbitrary,
capricious, and an abuse of discretion. We disagree.
Under the arbitrary and capricious standard, we
do not “substitute [our] judgment for that of the
agency.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43
(1983). The standard is met as long as there is a
“rational connection between the facts found and the
choice made.” Id. And we “give an extreme degree of
deference to the agency when it ‘is evaluating
scientific data within its technical expertise.’”
Kennecott Greens Creek Min. Co. v. Mine Safety &
Health Admin., 476 F.3d 946, 954–55 (D.C. Cir.
2007) (quoting Hüls Am., Inc. v. Browner, 83 F.3d
445, 452 (D.C. Cir. 1996)).
Here, the Department documented considerable
evidence substantiating the health, safety, and costsaving benefits of the Rule. In terms of health, the
Department found “the scientific evidence for the
adverse health effects of SHS [secondhand smoke]
exposure” to be “compelling.” 81 Fed. Reg. at 87,441.
The Department discussed, for instance, a report in
which the “Surgeon General concluded that there is
no risk-free level of exposure to SHS.” Id. “In
children,” the Surgeon General found, secondhand
smoke “exposure can cause sudden infant death
syndrome, and can also cause acute respiratory
infections, middle ear infections and more severe
10a
asthma.” Id. And in adults, exposure “causes heart
disease, lung cancer, and stroke,” id., resulting in the
death of some 41,000 adult nonsmokers each year
from lung cancer and heart disease, 80 Fed. Reg. at
71,763. Accordingly, secondhand smoke is considered
a known human carcinogen. 81 Fed. Reg. at 87,441–
442; see generally 80 Fed. Reg. at 71,763–764.
The Department also described the evidence
demonstrating that, because of the way secondhand
smoke moves through a building, “individuals living
in multiunit housing can be exposed to SHS even if
no one smokes in their households.” 80 Fed. Reg. at
71,764. The Department referenced studies and
surveys examining the migration of secondhand
smoke in buildings, explaining that “SHS can move
both from external hallways into apartments and
between adjacent units.” Id. Studies thus showed
that children in non- smoking apartments had
substantially higher levels of a nicotine metabolite in
their blood than children living in non- smoking
detached homes. Id. And while “improvements in
ventilation systems” and “increased air sealing of
units” can help reduce the movement of secondhand
smoke through a building, “these strategies cannot
fully eliminate exposure.” 81 Fed. Reg. at 87,442.
“Increased air sealing could also have the
disadvantage of increasing SHS exposures to nonsmokers in the sealed units, and could increase the
amount of SHS that settles on surfaces within the
sealed units.” Id.
With regard to fire safety, the Department
discussed the number of residential fires and
resulting deaths and injuries caused by smoking and
observed that “[s]moking is the leading cause of fire
11a
deaths in multiunit properties.” 80 Fed. Reg. 71,764.
As for maintenance costs, the Department
determined that “the costs and benefits” are
“compelling in terms of reduction in maintenance
and unit turnover costs.” 81 Fed. Reg. 87,438.
Various surveys documented the substantial costs
associated with fires and smoking damage, with the
CDC estimating that a smoke-free policy in public
housing would annually save some $43 million in
renovation expenses and $16 million in averted fire
losses. 80 Fed. Reg. 71,764.
C.L.A.S.H. asserts that the health risks from
secondhand smoke to tenants living in other units
are “scientifically dubious.” C.L.A.S.H. Br. 50–51.
But C.L.A.S.H. merely states without elaboration
that the data is “inconclusive,” and then summarily
references, without any further discussion, what it
describes as a list of “studies suggesting lack of
transfer and lack of adverse health effects.” Id. at
51–52. C.L.A.S.H. acknowledges, moreover, that its
“list of studies were not in the record” before the
agency. Id. at 52. Indeed, while C.L.A.S.H. provided
certain comments to the Department during the
comment period for the Rule, it submitted no
scientific information and cited no studies
supportive of its position. N.Y.C. C.L.A.S.H.
Comment Letter on Proposed Rule Instituting
Smoke-Free Public Housing, 80 Fed. Reg. 71,762
(proposed Nov. 17, 2015). And we generally do not
consider information that was not before the agency
when making its decision. See CTS Corp. v. EPA,
759 F.3d 52, 64 (D.C. Cir. 2014). C.L.A.S.H.’s
conclusory statements questioning the evidence of
health risks posed by secondhand smoke, finally,
12a
have no bearing at all on the Department’s other
rationales for the Rule—i.e., the interest in reducing
the risk of catastrophic fires and in decreasing
maintenance costs.
C.L.A.S.H. submits that the Department’s stated
health, safety, and cost-related reasons for the Rule
are pretextual because the Department in fact
desires only to stop tenants from smoking, not to
improve air quality in their units. There is no
support for that contention. Indeed, the Department
expressly found “it important . . . to reiterate” that
the Rule “does not prohibit individual PHA residents
from smoking,” and that “PHAs should continue
leasing to persons who smoke.” 81 Fed. Reg. at
87,432. The Department also specifically declined to
bar the use of electronic nicotine delivery systems,
reasoning in part that doing so would “not
necessarily reduce the risk of catastrophic fires or
maintenance costs.” Id. at 87,436.
C.L.A.S.H. also contends that the Department
disregarded the risks faced by vulnerable tenants
when venturing outside their units to smoke.
C.L.A.S.H. Br. 49. But the record reflects that the
Department considered those very risks and
recommended ways to alleviate them. 81 Fed. Reg. at
87,434; id. at 87,434, 87,436.
In
short,
the
Department
adequately
substantiated its rationales for the Rule and did not
act arbitrarily and capriciously in promulgating it.
B.
We turn next to C.L.A.S.H.’s constitutional
challenges, which we find to be uniformly without
merit.
1.
13a
C.L.A.S.H. first contends that the Rule amounts
to an impermissible condition on federal spending
under the Spending Clause. That Clause gives
Congress the power to “lay and collect Taxes, Duties,
Imposts, and Excises, to pay the Debts and provide
for the common Defence and general Welfare of the
United States.” U.S. Const., art. I, § 8, cl. 1. Under
the Clause, “Congress may attach conditions on the
receipt of federal funds, and has repeatedly employed
the power to ‘further broad policy objectives by
conditioning receipt of federal moneys upon
compliance by the recipient with federal statutory
and administrative directives.’” Ass’n of Priv. Sector
Colls. & Univs. v. Duncan, 681 F.3d 427, 459 (D.C.
Cir. 2012) (emphasis in original) (citing South Dakota
v. Dole, 483 U.S. 203, 206 (1987)).
But the ability to attach conditions on federal
spending is “not unlimited.” Dole, 483 U.S. at 207.
The Supreme Court has set out “several general
restrictions” that a spending condition must meet:
first, the condition “must be in pursuit of the general
welfare”; second, it must be “unambiguous[],” such
that recipients can make a “knowing[]” choice to
participate, “cognizant of the consequences of their
participation”; third, it must be related “to the
federal interest in particular national projects or
programs”; and fourth, it must comply with any
“other constitutional provisions that may provide an
independent bar to the conditional grant of federal
funds.” Id. at 207–08 (citations and quotation marks
omitted).
C.L.A.S.H. argues that the Rule infringes the
second Dole factor, which requires conditions on
federal funding to be unambiguous in a manner
14a
giving funding recipients adequate notice of the
consequences of their participation. C.L.A.S.H. does
not suggest that there is any ambiguity about
whether funding recipients must comply with the
Department’s
housing
quality
standards.
C.L.A.S.H.’s argument instead is that the Smoke
Free Rule is impermissibly ambiguous because it
vests discretion in the Department with respect to
the consequences for noncomplying PHAs. On that
score, the Rule states: “If HUD determines that a
PHA is not in compliance with its plan, HUD will
take whatever action it deems necessary and
appropriate.” 81 Fed. Reg. at 87,437.
The
governing
contracts
between
the
Department and a PHA, however, clearly set forth
the consequences for “a serious and material
violation of any one or more of the covenants
contained” in the agreement—which generally
include the Department’s regulations, and which
specifically include the “failure to maintain and
operate the project(s) under [the contract] in a
decent, safe, and sanitary manner.” Form HUD53012A, §§ 5, 17(B), J.A. 156, 158, 162–63. If a PHA
commits such a violation, the Department may take
title to the project, take possession and control of it,
terminate the contract, or seek other remedies at
law. Id. § 17(E)–(F), J.A. 163. Before exercising any
such remedy, the Department must provide a notice
of default to the PHA, including a period in which to
cure, and the PHA has a right to an administrative
appeal. Id. § 17(C). Those potential penalties are
longstanding and not specific to the Rule at issue
here, and any participating PHA knows of the
potential consequences when entering into a
15a
contract. PHAs thus accept federal funds fully aware
of the potential consequences if they violate the Rule.
C.L.A.S.H. also briefly contends that the Rule
infringes the third Dole factor, which requires
conditions on the receipt of federal funds to be
related “to the federal interest in particular national
projects or programs.” Dole, 483 U.S. at 207.
C.L.A.S.H. characterizes the Rule as out of step with
the statute’s delegated authority to the Department.
C.L.A.S.H.’s argument in this respect thus
essentially restates its argument that the Rule lies
outside the Department’s statutory authority, which
we have already addressed and rejected.
C.L.A.S.H. additionally asserts that the Rule
imposes a “financial inducement” that is “so coercive
as to pass the point at which pressure turns into
compulsion.” Id. at 211 (quotation marks omitted).
But C.L.A.S.H. cites no evidence about funding levels
demonstrating that the Rule could be considered
coercive in the constitutional sense, nor did it do so
before the district court. Compare Nat’l Fed’n of
Indep. Bus. v. Sebelius, 567 U.S. 519, 581–82 (2012)
(NFIB) (plurality opinion).
Finally, relying on the plurality opinion in
NFIB, C.L.A.S.H. contends that the spending
condition is an impermissible “shift in kind” to the
preexisting public housing program. See id. at 583.
Congress,
though,
may
permissibly
“make
adjustments” to a federal program. Id. In
C.L.A.S.H.’s view, the Rule unconstitutionally
transforms PHA’s obligations from providing safe
housing infrastructure “to micromanaging tenants’
private lives.” C.L.A.S.H. Br. 17. But PHAs agree in
their contracts to abide by future amendments to
16a
Departmental regulations, Form HUD-53012A § 5,
J.A. 158, and the Rule is in keeping with other
obligations imposed by the Department on public
housing tenants.
Under the Department’s preexisting regulations,
for instance, PHA leases already require tenants
“[t]o keep the dwelling unit . . . in a clean and safe
condition,” 24 C.F.R. § 966.4(f)(6), and “[t]o dispose
of all ashes, garbage, rubbish, and other waste from
the dwelling unit in a sanitary and safe manner,” id.
§ 966.4(f)(7). Tenants must also agree “[t]o abide by
necessary and reasonable regulations promulgated
by the PHA for the benefit and well-being of the
housing project and the tenants.” Id. § 966.4(f). And
tenants must further “assure that no member of the
household engages in an abuse or a pattern of abuse
of alcohol that affects the health, safety, or right to
peaceful enjoyment of the premises by other
residents.” Id. § 966.4(f)(12)(iii).
C.L.A.S.H.’s attempt to analogize the Rule to the
legislation considered in NFIB is inapt. Before the
enactment of the Affordable Care Act, the Medicaid
program required states to cover only certain discrete
categories of individuals— pregnant women,
children, needy families, the blind, the elderly, and
the disabled. The Act’s Medicaid expansion,
invalidated by the Supreme Court as an
impermissible “shift in kind,” required States to
expand their programs to cover all individuals
under the age of 65 with incomes below 133 percent
of the federal poverty line. NFIB, 567 U.S. at 575– 76
(plurality opinion). That was viewed to amount to
an entirely “new health care program.” Id. at 584.
Unlike the Medicaid expansion at issue in NFIB, the
17a
Smoke Free Rule does not fundamentally transform
the nature of the public housing program or expand
the population served.
Moreover, the operative inquiry concerns whether
the new condition “surpris[es] participating States
with post-acceptance or ‘retroactive’ conditions.” See
id. (quotation marks and citation omitted). Here,
PHAs were on notice that the Department might
make adjustments to the terms of the program: the
contract states that it “incorporates by reference . .
. those regulations issued by HUD for the
development, modernization, and operation of public
and Indian housing projects . . . .” Form HUD53012A, J.A. 156. PHAs thus knew that they could
be subject to future Department regulations. And as
explained, PHAs were also on notice of the
consequences resulting from violating applicable
Departmental rules and regulations.
Because we find that the Rule is a valid exercise
of the federal government’s power under the
Spending Clause, we have no need to reach
C.L.A.S.H.’s arguments about the scope of the
Commerce Clause.
2.
C.L.A.S.H. contends that the Smoke Free Rule
commandeers the States in violation of the Tenth
Amendment. Under the Tenth Amendment, “the
Federal Government may not compel the States to
enact or administer a federal regulatory program.”
Printz v. United States, 521 U.S. 898, 933 (1997)
(quoting New York v. United States, 505 U.S. 144, 188
(1992)); see also New York, 505 U.S. at 176–77;
Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.
1461, 1478 (2018). The Rule, however, leaves the
18a
choice to the States of whether to accept federal
public housing funding and its attached conditions.
The Rule neither commands the States directly to
take any actions nor compels the involvement of state
officials in a regulatory scheme. The Rule therefore
does not infringe the Tenth Amendment’s anticommandeering principle.
3.
C.L.A.S.H. argues that the Rule violates the
Fourth Amendment by permitting unconstitutional
searches. The Rule, however, does not contain any
type of new authorization to search premises.
Instead, the Rule by its terms leaves enforcement up
to the discretion of each PHA. See 81 Fed Reg. 87,437.
The Department’s preexisting regulations require
PHAs to identify the circumstances under which they
may enter the dwelling unit during the tenancy,
including for routine inspections, and to provide
written notice before entering a dwelling absent a
reasonable belief that there is an emergency. 24
C.F.R. § 966.4(j). And the Department Guidebook
specifically states that “[t]enants cannot be asked to
waive their Fourth Amendment rights” and that it
“does not authorize PHAs or police departments to
enter units for security purposes unless the police
department has a search warrant or they are in hot
pursuit of a suspect who has run into the unit.” J.A.
170 (emphasis added).
4.
In its last constitutional challenge, C.L.A.S.H.
submits that the Rule violates tenants’ “fundamental
due-process right [under the Fifth Amendment] to
engage in legal activities within the privacy of their
homes.”
C.L.A.S.H. Br. 29.
But C.L.A.S.H.
19a
identifies no authority establishing such a right. The
federal decisions C.L.A.S.H. cites involve the exercise
of First Amendment rights or “personal decisions
relating to marriage, procreation, contraception,
family relationships, child rearing, and education.”
See, e.g., Lawrence v. Texas, 539 U.S. 558, 574 (2003);
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65, 69
(1973). And the state decisions C.L.A.S.H. cites rely
on state constitutional privacy protections, not federal
due process guarantees. See, e.g., Ravin v. State, 537
P.2d 494, 504 (Alaska 1975).
Because the Rule does not impinge on a
fundamental right, C.L.A.S.H. must show that the
Rule’s requirements bear no rational relationship to
a legitimate state interest. E.g., Abigail All. for
Better Access to Dev. Drugs v. von Eschenbach, 495
F.3d 695, 712 (D.C. Cir. 2007). The Supreme Court
has expressly held that the protection of tenants is a
legitimate state interest. See Pennell v. City of San
Jose, 485 U.S. 1, 14 (1988). And the Rule, intended to
reduce health and safety risks to tenants, readily
passes muster under the forgiving rational basis test.
See Williamson v. Lee Optical of Okla. Inc., 348 U.S.
483, 487–88 (1955).
III.
We last briefly address C.L.A.S.H.’s appeal from
the district court’s denial of certain post-judgment
motions. C.L.A.S.H.’s post-judgment motion for
reconsideration and amendment of the judgment
simply reprises arguments we have already
considered and rejected. C.L.A.S.H. also moved
under Rule 15(b)(2) to amend its complaint to
introduce the argument that the threat of losing
public housing funding is unconstitutionally coercive.
20a
The district court did not err in denying a motion to
amend the complaint brought after judgment had
already been entered (and in any event, as explained
above, C.L.A.S.H. included no evidence in its motion
showing that the threat of losing the funding at issue
reached the level of unconstitutional coercion).
*
*
*
*
*
For the foregoing reasons, we affirm the
judgment of the district court.
So ordered.
21a
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 18-1711 (ESH)
NYC C.L.A.S.H., INC., et al.,
Plaintiffs,
v.
BEN CARSON, SECRETARY OF DEP’T OF
HOUSING & URBAN DEVELOPMENT, et al.,
Defendants.
MEMORANDUM OPINION
Plaintiffs, a smokers’ rights organization and six
individual smokers who reside in public housing,
have brought this action against the U.S.
Department of Housing and Urban Development
(“HUD”) and Ben Carson, the Secretary of HUD,
challenging a regulation that bans smoking in public
housing, including in individual residential units.
Plaintiffs claim that the regulation violates the
Fourth, Fifth, Tenth, and Fourteenth Amendments
and the Administrative Procedure Act (“APA”), 5
U.S.C. §§ 701 et seq. Before the Court are the parties’
cross-motions for summary judgment. For the
reasons stated herein, the Court will grant
defendants’ motion for summary judgment and deny
plaintiffs’ motion.
BACKGROUND
I.
STATUTORY AND REGULATORY
FRAMEWORK
In order to “remedy the unsafe housing
conditions and the acute shortage of safe dwellings
22a
for low-income families,” Congress passed the
Housing Act, which provides funding to state and
local agencies that develop and operate public
housing (“public housing agencies” or “PHAs”).1 42
U.S.C. §§ 1437, 1437c, 1437g. Congress tasked HUD
with disbursing this funding and ensuring that its
use furthered the purposes of the Act. Section
1437d(f)(1) provides that “[e]ach contract for
contributions for a public housing agency shall
require that the agency maintain its public housing
in a condition that complies with standards which
meet or exceed the housing quality standards
established under paragraph (2).” Congress required
in paragraph (2) that:
The Secretary shall establish housing quality
standards under this paragraph that ensure
that public housing dwelling units are safe
and habitable. Such standards shall include
requirements
relating
to
habitability,
including
maintenance,
health
and
sanitation
factors,
condition,
and
construction of dwellings . . . .
42 U.S.C. § 1437d(f)(2). Thus, PHAs are required to
agree to comply with HUD’s housing quality
standards in exchange for public housing funding. 42
U.S.C. §§ 1437d(f)(1); see also Form HUD-53012A § 5
(incorporating
HUD
regulations
and
any
The Housing Act defines a PHA as “any State, county,
municipality, or other governmental entity or public body (or
agency or instrumentality thereof) which is authorized to
engage in or assist in the development or operation of public
housing, or a consortium of such entities or bodies . . . .” 42
U.S.C. § 1437a(b)(6)(A).
1
23a
amendments to them into HUD’s contracts with
PHAs).
Citing to its authority under Section 1437d, HUD
proposed a rule in 2015 banning smoking in federally
funded public housing. Instituting Smoke-Free
Public Housing, 80 Fed. Reg. 71,762 (proposed
November 17, 2015). After a period of notice and
comment, HUD promulgated a final rule (the “Smoke
Free Rule” or the “Rule”), which became effective on
February 3, 2017. Instituting Smoke-Free Public
Housing, 81 Fed. Reg. 87,430. In its final form, the
Smoke Free Rule bans the use of all lit tobacco
products, including cigarettes, cigars, pipes, and
waterpipes.2 The ban applies to
all public housing living units and interior
areas (including but not limited to hallways,
rental and administrative offices, community
centers, day care centers, laundry centers,
and similar structures), as well as in outdoor
areas within 25 feet from public housing and
administrative office buildings (collectively,
“restricted areas”) in which public housing is
located.
24 C.F.R. § 965.653(a), (c).3 HUD’s stated purpose
for the Rule was fourfold: (1) to “improve indoor air
quality in the housing;” (2) to “benefit the health of
The Smoke Free Rule does not ban the use of electronic
nicotine delivery systems, such as electronic cigarettes. 80 Fed.
Reg. at 71,765; see also 81 Fed. Reg. at 87,436.
2
The Rule allows PHAs to designate smoking areas on
public housing grounds “in order to accommodate residents who
smoke,” as long as those areas are “outside of any restricted
areas.” 24 C.F.R. § 965.653(b).
3
24a
public housing residents, visitors, and PHA staff;” (3)
to “reduce the risk of catastrophic fires;” and (4) to
“lower overall maintenance costs.” 81 Fed. Reg. at
87,431.
To effectuate the Rule, HUD amended the
existing regulation setting forth lease requirements
to include a requirement that all future PHA leases
provide that the tenants will abide by the Smoke
Free Rule. 24 C.F.R. § 966.4(f)(12). HUD also
required PHAs to amend existing leases to explicitly
incorporate the terms of the Rule. 24 C.F.R. §
965.655(a)(2). A tenant’s failure to comply with his
lease agreement, and thus, the Rule, could lead to
termination of the tenancy and eviction. 24 C.F.R. §
966.4(l)(2)(i)(B). All PHAs were required to be in full
compliance with the Rule by July 30, 2018. 24 C.F.R.
§ 965.655(b).
II.
FACTUAL BACKGROUND AND
PROCEDURAL HISTORY
Plaintiffs are New York City Citizens Lobbying
Against Smoker Harassment (“NYC C.L.A.S.H.”), a
nonprofit organization “dedicated to protecting the
interests of adults who smoke,” and six individuals
who are smokers and who live in public housing
funded by HUD.4 (Pls.’ Mem. Supp. Summ. J. at 2–3,
ECF No. 26-1 (“Pls.’ Mem.”).) They initiated this
action on July 23, 2018, against HUD and Carson, in
his official capacity. The complaint alleges that the
Smoke Free Rule violates the anticommandeering
principle of the Tenth Amendment (Counts One and
The six individual plaintiffs are William Donnell, Nathan
Fields, Chanel Folks, Digna Rodriguez, Douglas Soncksen, and
Jamie Ward. (Pls.’ Mem. at 2–3.)
4
25a
Two), the Fourth Amendment’s ban on unreasonable
searches and seizures (Counts Three and Four), the
Due Process Clause of the Fifth Amendment (Counts
Five and Six), and the unconstitutional conditions
doctrine (Count Seven). The complaint further
alleges that the Rule is not a proper exercise of
Congress’ Commerce Clause power (Counts Eight
and Nine), that HUD did not have the statutory
authority to promulgate the Rule (Counts Ten,
Eleven, and Twelve), and that the Rule is arbitrary,
capricious, and an abuse of discretion (Count
Thirteen).55 Plaintiffs seek vacatur of the Rule, or,
alternatively, modification of the Rule to eliminate
the ban on smoking in private residences.
The parties have filed cross-motions for summary
judgment, which have been fully briefed. (See Pls.’
Mot. for Summ. J., ECF No. 26; Defs.’ Cross Mot. for
Summ. J., ECF No. 33 (“Defs.’ Mot.”); Defs.’ Resp. to
Pls.’ Mot. for Summ. J., ECF No. 34; Pls.’ Opp. to
Defs.’ Cross Mot., ECF No. 37 (“Pls.’ Opp.”); Pls.’
Reply to Defs.’ Resp., ECF No. 38; Defs.’ Reply to
Pls.’ Opp., ECF No. 40 (“Defs.’ Reply”).)
ANALYSIS
I. LEGAL STANDARDS
A. Constitutional Claims
Under Federal Rule of Civil Procedure 56(a),
summary judgment will be granted “if the movant
Plaintiffs’ constitutional challenges are brought directly
under the applicable constitutional provision in Counts Two,
Four, and Six and under § 706 of the APA in Counts One, Three,
and Five. Counts Seven through Thirteen are also brought
under the APA.
5
26a
shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment
as a matter of law.” Because the parties’ statements
of facts and responses thereto reveal no genuine
disputes of material fact, the Court need only
determine whether either party is entitled to
judgment as a matter of law.
B. APA Claims
Plaintiffs’ claims brought under the APA are not
governed by Rule 56 “because of the limited role of a
court in reviewing the administrative record” under
the APA. Alston v. Lew, 950 F. Supp. 2d 140, 143
(D.D.C. 2013). Under that statute
it is the role of the agency to resolve factual
issues to arrive at a decision that is
supported by the administrative record,
whereas “the function of the district court is
to determine whether or not as a matter of
law the evidence in the administrative record
permitted the agency to make the decision it
did.”
Sierra Club v. Mainella, 459 F. Supp. 2d 76, 90
(D.D.C. 2006) (quoting Occidental Eng’g Co. v. INS,
753 F.2d 766, 769–70 (9th Cir. 1985)). Under the
APA, a court may hold an agency action unlawful
when it is, inter alia, “arbitrary, capricious, an abuse
of discretion, or otherwise not in accordance with
law”; “contrary to constitutional right, power,
privilege, or immunity”; or “in excess of statutory
jurisdiction, authority, or limitations, or short of
statutory right.” 5 U.S.C. § 706(2)(A)–(C).
An agency rule is arbitrary and capricious
27a
if the agency has relied on factors which
Congress has not intended it to consider,
entirely failed to consider an important
aspect of the problem, offered an explanation
for its decision that runs counter to the
evidence before the agency, or is so
implausible that it could not be ascribed to a
difference in view or the product of agency
expertise.
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto
Ins. Co., 463 U.S. 29, 43 (1983). This standard of
review is “highly deferential” and “presumes the
validity of agency action.” Nat’l Ass’n of Clean Air
Agencies v. EPA, 489 F.3d 1221, 1228 (D.C. Cir.
2007) (citation, alteration, and internal quotation
marks omitted). So long as the agency “explain[s]
the evidence which is available, and . . . offer[s] a
rational connection between the facts found and the
choice made,” a court will not invalidate an agency
rule. Motor Vehicle Mfrs. Ass’n, 463 U.S. at 52
(citation and internal quotation marks omitted).
An agency abuses its discretion in promulgating
a rule “if there is no evidence to support the decision
or if the decision was based on an improper
understanding of the law.” Statewide Bonding, Inc.
v. DHS, No. 19-cv-2083, 2019 WL 6329390, at *2
(D.D.C. Nov. 26, 2019) (citations and internal
quotation marks omitted). “Put another way, the
court’s role is only to consider whether the decision
was based on a consideration of the relevant factors
and whether there has been a clear error of
judgment.” Id. (citations and internal quotation
marks omitted).
28a
Finally, in assessing constitutional challenges
brought under the APA, a court does not defer to the
agency’s pronouncement on constitutional issues;
instead, it “make[s] ‘an independent assessment of a
citizen’s claim of constitutional right.’” Poett v.
United States, 657 F. Supp. 2d 230, 241 (D.D.C. 2009)
(quoting Lead Indus. Ass’n v. EPA, 647 F.2d 1130,
1173–74 (D.C. Cir. 1980)).
II. COUNTS ONE AND TWO: THE SPENDING
CLAUSE AND THE TENTH AMENDMENT
Plaintiffs argue that the Smoke Free Rule
violates the anticommandeering principle of the
Tenth Amendment and exceeds Congress’ Spending
Clause power because the Rule impermissibly
coerces or commandeers the States into complying
with the federal regulation.6 (Pls.’ Mem. at 14–21.)
The Spending Clause gives Congress the power to
“provide for the . . . general Welfare of the United
States.” U.S. Const. art. I, § 8, cl. 1. Pursuant to this
grant, Congress may offer funding to the States on
the condition that they comply with certain terms
that are designed to ensure that the funds are, in
fact, used as Congress intended. Nat’l Fed’n of
Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 537,
576 (2012) (plurality opinion). Such offers are
legitimate even if they “induce the States to adopt
policies that the Federal Government itself could not
Much of plaintiffs’ Tenth Amendment argument is tied to
their claim that Congress has not authorized HUD to
implement the Smoke Free Rule. (See, e.g., Pls.’ Opp. at 11
(“Congress has never attempted to legislate a smoking ban, let
alone provide HUD the authority to do so without authorizing
legislation.”).) This claim is addressed infra at Section VII.
6
29a
impose” or “tak[e] certain actions that Congress
could not require them to take.” Id. (citation and
internal quotation marks omitted); see also South
Dakota v. Dole, 483 U.S. 206, 207 (1987)
(“[O]bjectives not thought to be within Article I’s
enumerated legislative fields may nevertheless be
attained through the use of the spending power and
the conditional grant of federal funds.” (citation and
internal quotation marks omitted)).
Despite the breadth of Congress’ power under the
Spending Clause, its exercise must conform to four
general restrictions: First, it “must be in pursuit of
the general welfare”; second, any condition on the
receipt of federal funds must be unambiguous; third,
it must be “related to the federal interest in
particular national projects or programs”; and fourth,
it must not violate other constitutional provisions,
such as the Tenth Amendment, that “provide an
independent bar to the conditional grant of federal
funds.” Dole, 483 U.S. at 207–08 (citations and
internal quotation marks omitted). Plaintiffs do not
dispute that the Smoke Free Rule was promulgated
in furtherance of the general welfare. Accordingly,
the Court’s analysis focuses on the latter three
restrictions.
A. The Smoke Free Rule sets forth its
conditions unambiguously.
If an exercise of the Spending Clause contains
any conditions on the receipt of federal funds, “it
must do so unambiguously” so that the States may
“exercise their choice knowingly, cognizant of the
consequences of their participation.” Id. at 207
(citation and internal quotation marks omitted); see
30a
also Pennhurst State Sch. & Hosp. v. Halderman,
451 U.S. 1, 17 (1981) (“The legitimacy of Congress’
power to legislate under the spending power thus
rests on whether the State voluntarily and
knowingly accepts the terms of the ‘contract.’”). In
essence, a State must be aware of the conditions and
be able to ascertain what is expected of it. See
Pennhurst State Sch. Hosp., 451 U.S. at 17.
Plaintiffs argue that the Smoke Free Rule does not
meet this requirement because HUD “fails to inform
PHAs . . . what they risk losing if they choose not to
comply.” (Pls.’ Opp. at 12.) But, as defendants note,
the consequences of noncompliance with applicable
HUD regulations are clearly expressed in HUD’s
contracts with the PHAs. Those contracts provide
that when a PHA substantially defaults—or commits
“a serious and material violation of any one or more
of the covenants contained in [the contract]”—HUD
has a right to take title to the housing project or
projects, take possession of them, terminate the
contract, or seek other remedies available under
applicable law.7 Form HUD-53012A § 17(B), (E), (F),
(H). Because HUD’s regulations—including the
Smoke Free Rule—are incorporated into the
HUD/PHA contract, id. § 5, the conditions placed on
receipt of federal funding by the Smoke Free Rule
are unambiguous.88 See also 42 U.S.C. § 1437d(f)(1)
Also, the statute explicitly grants HUD the right to claim
title or take possession of a project in the event of a substantial
default. See 42 U.S.C. § 1437d(g)(1).
7
Plaintiffs do not dispute HUD’s rights under the contracts
or that the contracts will govern if a PHA fails to comply with
the Rule. Instead, they argue that the Smoke Free Rule gives
HUD “total discretion” to determine the consequences of
8
31a
(stating that each contract for federal funding must
require that the PHA maintain its public housing in
compliance with the housing quality standards
promulgated by HUD).
B. The Smoke Free Rule is sufficiently related
to the purpose of federal housing funding.
Plaintiffs contend that the Smoke Free Rule is
not sufficiently related to the purpose of the federal
housing funding. (Pls.’ Opp. at 10–12.) To support
this argument, plaintiffs seek to distinguish South
Dakota v. Dole, 483 U.S. 206 (1987), where the
Supreme Court upheld a federal statute conditioning
a State’s receipt of a portion of federal highway funds
on the adoption of a minimum drinking age of 21.
Plaintiffs maintain that setting a minimum drinking
age of 21 is sufficiently related to the purpose of the
federal funding in Dole—safe interstate travel—
because “[d]rinking and driving is undeniably linked
to auto accidents causing injury and death.” (Pls.’
Opp. at 11.) They argue that, in contrast, HUD
“utterly fails” to demonstrate how the Smoke Free
Rule “bears a bona fide connection to” the Housing
Act. (Id.) Plaintiffs’ argument is unpersuasive.
To be legitimate, a condition on the receipt of
noncompliance (Pls.’ Opp. at 17), and they point to the final
rule, which states, “If HUD determines that a PHA is not in
compliance with its plan, HUD will take whatever action it
deems necessary and appropriate.” 81 Fed. Reg. 87,437. But
the fact that HUD has not identified the precise contractual
remedy it would select in a case of noncompliance does not
mean that PHAs are “simply left clueless as to what they stand
to lose.” (Pls.’ Opp. at 17.) PHAs are aware of the limited
options available to HUD if they do not comply with the Rule.
32a
federal funds need not be “undeniably linked” to the
funding’s purpose; it need only “‘bear some
relationship’ to the purpose of the spending.”
Barbour v. Wash. Metro. Area Transit Auth., 374
F.3d 1161, 1168 (D.C. Cir. 2004)9 (quoting New York
v. United States, 505 U.S. 144, 167 (1992)); see also
Am. Civil Liberties Union v. Mineta, 319 F. Supp. 2d
69, 80 (D.D.C. 2004) (“[T]he connection between the
funding restriction and the purpose of the funding
does not have to be particularly closely related to
withstand a challenge.”). Here, the Rule was
designed “to improve indoor air quality . . . ; benefit
the health of public housing residents, visitors, and
PHA staff; reduce the risk of catastrophic fires; and
lower overall maintenance costs.” 81 Fed. Reg.
87,431. The evidence HUD relied upon in
promulgating the Rule corroborates the relationship
between the condition on the receipt of the funding
and the purpose of the funding. (See, e.g., AR 2450
(study concluding that secondhand smoke transfers
between units in the same building and “the most
effective way to ensure that residents of [those] units
are not exposed to [secondhand smoke]” is to ban
smoking in the building); AR 2460–61 (study
discussing negative health effects of secondhand
smoke on children, determining that children who
live in multiunit buildings are exposed to
significantly
more
secondhand
smoke,
and
recommending that those buildings ban smoking);
AR 4823 (study concluding that indoor air quality in
Indeed, the Supreme Court has never “overturned
Spending Clause legislation on relatedness grounds.” Barbour,
374 F.3d at 1168.
9
33a
public housing buildings where smoking is permitted
is lower than that in buildings that prohibit smoking
and recommending that buildings institute smokefree policies); AR 5958 (Surgeon General’s
conclusions on health risks associated with exposure
to secondhand smoke); AR 9869 (HUD’s regulatory
impact analysis concluding that the Rule will reduce
costs for PHAs by $16 million to $38 million per year
and the reduction in cost from fire damage is
estimated to be $4.7 million). Because the Rule
promotes safer and healthier housing for low-income
families—a stated goal of 42 U.S.C. § 1437—the
Court concludes that the Smoke Free Rule directly
relates to the purpose of the public housing funding.
See Good v. U.S. Dep’t of Hous. & Urban Dev., No.
3:18-CV-516, 2019 WL 6839320, at *5 (N.D. Ind. Dec.
12, 2019) (“[T]he condition that PHAs implement no
smoking policies directly relates to the purpose of the
funding.”).
C. The Smoke Free Rule does not violate the
Tenth Amendment.
Asserting that the Rule “gives the States . . . no
option but to follow the federal directives” (Pls.’
Mem. at 18), plaintiffs argue that the Smoke Free
Rule violates the anticommandeering principle of the
Tenth Amendment, which prohibits (1) “federal
legislation that commandeers a State’s legislative or
administrative apparatus for federal purposes” and
(2) legislation that “us[es] financial inducements to
exert a power akin to undue influence.” NFIB, 567
U.S. at 577 (plurality opinion) (citation and internal
quotation marks omitted). This argument is
unpersuasive.
34a
Plaintiffs’ argument that the Rule violates the
first prohibition because it “affirmatively commands
state and local agencies to implement federal
policies” (Pls.’ Opp. at 15) ignores the fact that,
unlike the cases invalidating legislation on this
ground, States are given a choice whether to accept
the federal public housing funding and the terms
attached to it. See Murphy v. Nat’l Collegiate Athletic
Ass’n, 138 S. Ct. 1461, 1475–81 (2018) (striking down
a federal law prohibiting state legislative
authorization of sports gambling); Printz v. United
States, 521 U.S. 898, 933 (1997) (invalidating a
federal law that imposed a mandatory obligation on
state law enforcement agents “to perform
background checks on prospective handgun
purchasers”); New York, 505 U.S. at 175–76 (striking
down a federal law requiring States to either “take
title” to radioactive waste or “regulat[e] according to
the instructions of Congress”). If a State chooses not
to accept the federal government’s public housing
funding, it is not required to comply with the Smoke
Free Rule.
Plaintiffs argue that HUD’s conditioning of
federal funding on PHAs’ adoption of the Smoke Free
Rule violates the Tenth Amendment’s second
prohibition because it is an impermissible “overlay
onto existing funding.” (Pls.’ Opp. at 17.)
Specifically, plaintiffs contend that the government
cannot impose a new condition, i.e., compliance with
the Smoke Free Rule, on the continued receipt of all
pre-existing federal housing funding. (Id.; see also
Pls.’ Mem. at 21.) The Supreme Court has ruled
otherwise, stating that such “adjustments” to a preexisting program may be conditioned on both old and
35a
new funding if the State has agreed to future
alterations and amendments. NFIB, 567 U.S. at 583
(plurality opinion). The Court noted that Congress
had done so with the Medicare program through the
Omnibus Budget Reconciliation Act of 1990, which
extended Medicare eligibility and conditioned
compliance on both old and new funding. Id. In this
case, PHAs agreed in their contracts with HUD to
future amendments to the regulations. See Form
HUD-53012A § 5. Accordingly, HUD’s conditioning of
public housing funding on compliance with the
Smoke Free Rule is permissible and does not
contravene the teaching of NFIB.10
Because the Smoke Free Rule is a permissible
exercise of the Spending Clause and does not
commandeer the States in violation of the Tenth
Amendment, the Court will grant defendants’ motion
for summary judgment as to Counts One and Two.11
To the extent plaintiffs argue that a PHA’s risk of losing all
of its public housing funding is “so coercive as to pass the point
at which pressure turns into compulsion,” NFIB, 567 U.S. at
580 (plurality opinion) (citation and internal quotation marks
omitted), the Court has no information to assess the merits of
this claim. Plaintiffs merely state that a State’s decision to not
comply with the Rule “might end up costing them significant
funding.” (Pls.’ Opp. at 17.) Since they provide no specifics
about the relationship between federal funds received for public
housing and a State’s public housing budget or a State’s overall
budget, they have not met their burden of establishing that the
Smoke Free Rule violates the Tenth Amendment. Mississippi
Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 178 (D.C. Cir.
2015) (per curiam) (“[T]he burden of establishing
unconstitutionality is on the challenger”).
10
With regard to their Tenth Amendment claims, plaintiffs
also argue that the Smoke Free Rule does not preempt state
11
36a
III. COUNTS THREE AND FOUR: THE
FOURTH AMENDMENT
Plaintiffs challenge the Smoke Free Rule on the
ground that it violates their right to be free in their
homes from unreasonable searches and seizures
under the Fourth Amendment. (Pls.’ Mem. at 25–30;
see also Compl. ¶¶ 70–87, ECF No. 1.) Plaintiffs
claim that, “[i]n order to ensure compliance [with the
Rule], PHAs will need to violate the Fourth
Amendment rights of tenants, because the prohibited
activity will be occurring in the privacy of the
tenants’ units.” (Pls.’ Mem. at 29.) Plaintiffs’ facial
challenge to the Rule is thus premised on their
assumption that the Rule authorizes and/or requires
PHAs to unlawfully enter tenants’ homes.
A. Plaintiffs have standing to assert their
Fourth Amendment claim.
As a threshold matter, defendants argue that
plaintiffs lack standing because they fail to show an
injury in fact to their Fourth Amendment rights, and
any injury would not be fairly traceable to HUD’s
conduct but would be caused by the independent
actions of the PHAs. (Defs.’ Mot at 25–29.) Plaintiffs
law. Neither party cites to any state law that presents a
conflict with the Rule. Indeed, plaintiffs admit that “there is no
conflict to be examined between the federal Smoking Ban and
the state PHA policies that the Ban directs the state agencies to
implement.” (Pls.’ Mem. at 23.) Because a ruling on this issue
would “offer nothing more than an advisory opinion on
potentially difficult questions of federalism and constitutional
law,” Norfolk S. Ry Co. v. City of Alexandria, 608 F.3d 150, 161
(4th Cir. 2010), the Court will not address the preemption
argument. Preiser v. Newkirk, 422 U.S. 395, 401 (1975).
37a
counter that, because they have standing to
challenge the Rule on other grounds, they may also
challenge the Rule under the Fourth Amendment or,
in the alternative, that they have suffered an injury
in fact and that plaintiffs’ injuries are traceable to
HUD’s adoption of the Smoke Free Rule, which
requires the compliance of federally funded PHAs.
(Pls.’ Opp. at 4–7.) Focusing only on plaintiffs’ latter
argument, the Court concludes that plaintiffs have
suffered an injury that is traceable to HUD’s
conduct.
As the party invoking federal jurisdiction,
plaintiffs have the burden of establishing that they
have standing by showing that (1) they suffered an
injury in fact, (2) the injury is “fairly traceable” to
the defendant’s conduct, and (3) it is likely
redressable by a judicial decision in their favor.
Spokeo, Inc. v. Robbins, 136 S. Ct. 1540, 1547 (2016)
(citation omitted). Because the plaintiffs are publichousing tenants who smoke and a smokers’ advocacy
group made up of members who live in public
housing, plaintiffs are injured by the Rule because it
bars them from smoking.12 That injury is fairly
Defendants’ argument to the contrary focuses on the
likelihood that plaintiffs will be subject to an unlawful search in
the future. (Defs.’ Mot. at 26–28.) However, the cases
defendants cite for the proposition that plaintiffs must show a
substantial likelihood of harm in the future are cases in which
the plaintiffs had no actual, present injury. Clapper v. Amnesty
Int’l USA, 568 U.S. 398, 410–14 (2013) (plaintiffs’ injury rested
on the likelihood that the challenged statute would be applied to
them but had no evidence that it had been or would be); City of
Los Angeles v. Lyons, 461 U.S. 95, 105–10 (1983) (threat that
police policy of using chokeholds was insufficient to support
12
38a
traceable to HUD’s conduct because it was caused by
HUD’s promulgating the Rule. Finally, their injuries
would likely be redressed by the relief sought—a
judgment vacating or modifying the Rule to allow
public housing tenants to smoke in their private
units. See Bennett v. Donovan, 703 F.3d 582, 586–90
(D.C. Cir. 2013) (appellants had standing to
challenge a HUD regulation applying to third-party
lenders because a decision in appellants’ favor would
likely redress their injury, even though relief was not
certain). Because plaintiffs have shown that they are
injured by the Rule and that their injury was caused
by defendants, they need not show more to bring
their Fourth Amendment claim.
B. Plaintiffs fail to bring a cognizable Fourth
Amendment facial challenge.
To succeed on a facial challenge, “a plaintiff must
establish that a law is unconstitutional in all of its
applications.” City of Los Angeles v. Patel, 135 S. Ct.
2443, 2451 (2015) (citation and internal quotation
marks omitted). Where a facial challenge to a
statute is made on the ground that it authorizes
searches in violation of the Fourth Amendment, “the
proper focus of the constitutional inquiry is searches
that the law actually authorizes . . . .” Id. (emphasis
added). Thus, the issue before the Court is whether
the Rule authorizes unlawful searches. See, e.g.,
Payton v. New York, 445 U.S. 573, 574, 576 (1980)
(invalidating “New York statutes that authorize
police officers to enter a private residence without a
standing). Unlike these cases, plaintiffs here are currently
suffering an actual injury by being barred from smoking.
39a
warrant”).
Here, the Smoke Free Rule does not authorize
any type of unlawful search. It does not, for instance,
state that public housing tenants are required to
submit to searches of their unit or provide that, to
enforce the Rule, PHAs may enter tenants’ units
without consent, a warrant, or some other lawful
basis for entry.13 Instead, as plaintiffs note, HUD
does not provide any “specific enforcement
mechanisms” for the Smoke Free Rule (Pls.’ Mem. at
29), for, as explained in the final rule, “lease
enforcement policies are typically at the discretion of
PHAs, and it is appropriate for local agencies to
ensure fairness and consistency with other policies.”
81 Fed. Reg. 87,437. Significantly, HUD’s guidance
regarding lease provisions governing PHA entry into
a tenant’s unit expressly states that its regulations
“do[] not authorize PHAs or police departments to
enter units for security purposes unless the police
department has a search warrant or they are in hot
pursuit of a suspect who has run into the unit,” and
that “[t]enants cannot be asked to waive their Fourth
Amendment rights.” U.S. Dep’t of Hous. & Urban
Dev., Public Housing Occupancy Guidebook at 200
(2003).
Because the Rule simply prohibits public housing
tenants from smoking in their apartments, and it
does not authorize any unlawful searches, plaintiffs’
Fourth Amendment facial challenge to the Rule is
In fact, plaintiff Douglas Soncksen was found to be in
violation of the terms of his lease because he was observed
smoking outside on his porch, but he was given a “free pass” for
his first violation. (Soncksen Decl. Ex. B, at 1, ECF No. 26-5.)
13
40a
not cognizable, and defendants are entitled to
summary judgment on Counts Three and Four.
IV. COUNTS FIVE AND SIX: SUBSTANTIVE
DUE PROCESS
In Counts Five and Six, plaintiffs argue that the
Smoke Free Rule violates the Due Process Clause of
the Fifth Amendment because it interferes with their
fundamental right to engage in legal activity in the
privacy of their homes, and the Rule is not tailored to
serve a compelling government interest. (Pls.’ Opp.
at 27–35.)
Under the Due Process Clause, “[n]o person shall
be . . . deprived of life, liberty, or property, without
due process of law.” U.S. Const. amend. V. This
clause “provides heightened protection against
government interference with certain fundamental
rights and liberty interests.” Washington v.
Glucksberg, 521 U.S. 702, 720 (1997). Laws that
burden fundamental rights are upheld only if the law
is “narrowly tailored to serve a compelling state
interest,” Reno v. Flores, 507 U.S. 292, 302 (1993),
while laws that do not are only required to bear some
rational relation to a legitimate governmental
purpose. Heller v. Doe, 509 U.S. 312, 319–20 (1993).
Thus, the Court must first consider whether the
right asserted by plaintiffs is a fundamental right.
See Reno, 507 U.S. at 302 (“Substantive due process
analysis must begin with a careful description of the
asserted right, for the doctrine of judicial selfrestraint requires us to exercise the utmost care
whenever we are asked to break new ground in this
field.” (citation, alteration, and internal quotation
marks omitted)).
41a
Plaintiffs insist that they are not asserting a
fundamental right to smoke or to use tobacco
products. (See Pls.’ Opp. at 27.) Instead, they claim
that they have “a fundamental right . . . to engage in
legal activities within the privacy of their own
homes.” (Pls.’ Opp. at 28.) Neither the Supreme
Court nor any other federal court has recognized
such an expansive fundamental right. Indeed, the
Supreme Court has limited its recognition of
fundamental rights to “the rights to marry, to have
children, to direct the education and upbringing of
one’s children, to marital privacy, to use
contraception, to bodily integrity, . . . to abortion,”
Glucksberg, 521 U.S. at 720 (citations omitted), and
to engage in private sexual activity, see Lawrence v.
Texas, 539 U.S. 558, 578 (2003). To the extent these
rights relate to the home, fundamental rights only
“encompass[] and protect[] the personal intimacies of
the home,” not everything that occurs within it.
Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65
(1973) (emphasis added); see also Paul P. v. Verniero,
170 F.3d 396, 399 (3d Cir. 1999) (“Th[e] ‘guarantee of
personal privacy’ covers ‘only personal rights that
can be deemed fundamental or implicit in the
concept of ordered liberty.’” (quoting Roe v. Wade,
410 U.S. 113, 152 (1973)); Operation Badlaw, Inc. v.
Licking Cty. Gen. Health Dist. Bd. of Health, 866 F.
Supp. 1059, 1067 (S.D. Ohio 1992) (finding no cases
“extending the right to privacy as far as the right to
smoke either in public or in private”), aff’d, 991 F.2d
796 (6th Cir. 1993). The Supreme Court has warned
against expanding these rights “because guideposts
for responsible decisionmaking in this unchartered
area are scarce and open-ended” and because doing
42a
so “place[s] the matter outside the arena of public
debate and legislative action.” Glucksberg, 521 U.S.
at 720 (citation and internal quotation marks
omitted).
Plaintiffs rely on four Supreme Court cases to
support their argument that “adults effectively have
a fundamental right . . . to engage in legal activities
within the privacy of their own homes.” (Pls.’ Opp. at
28.) These cases do not support their argument.
First, in Stanley v. Georgia, the defendant was
convicted of possession of obscene material in
violation of Georgia law based on the discovery of
obscene material in his home. 394 U.S. 557, 558–59
(1969). On appeal, the defendant challenged the
constitutionality of the Georgia statute on the
ground that it violated the First Amendment, as
applied to the States through the Fourteenth, by
punishing private possession of obscene material. Id.
at 559. The Supreme Court agreed and held that the
First Amendment’s protection of the “right to receive
information and ideas, regardless of their social
worth,” prohibits making mere possession of obscene
material in the home a crime. Id. at 559, 564. In two
subsequent cases cited by plaintiffs, United States v.
Orito and Paris Adult Theatre I v. Slaton, the Court
approved two federal laws regulating obscene
material outside of the home—one preventing
obscene material from entering the stream of
commerce, see Orito, 413 U.S. 139, 143 (1973), and
one prohibiting exhibition of obscene films in public
theaters. See Paris Adult Theatre I, 413 U.S. at 69–
70. In both, the Court held that First Amendment
right expounded in Stanley did not extend beyond
the home. See Orito, 413 U.S. at 141–42; Paris Adult
43a
Theatre I, 413 U.S. at 66–67. Finally, in Lawrence v.
Texas, two male defendants were convicted of
“deviate sexual intercourse” in violation of Texas
law. 539 U.S. at 563. The Court overturned their
convictions, holding that the Due Process Clause of
the Fourteenth Amendment protected private sexual
behavior. Id. at 578–79.
Unlike these cases, plaintiffs’ claims are not
rooted in the First Amendment nor in the
fundamental right to engage in private sexual
behavior. Nor can these cases be read to extend the
implied right to privacy to all legal conduct within
one’s home. Indeed, the Court in Stanley made clear
that its holding “turn[ed] upon . . . fundamental
liberties protected by the First and Fourteenth
Amendments.” 394 at 568 n.11 (emphasis added).
Orito and Paris Adult Theatre I did no more than
affirm the holding in Stanley. Finally, the right
recognized in Lawrence only extended substantive
due process protection to private sexual behavior, not
all private conduct. See 539 U.S. at 578 (“The[] right
to liberty under the Due Process Clause gives
[petitioners] the full right to engage in their conduct
without intervention of the government.”). Given the
Supreme Court’s caution against expanding
substantive due process rights, Glucksberg, 521 U.S.
at 720, the Court declines plaintiffs’ invitation to
recognize a new fundamental right to conduct all
legal activity in the home. See Hutchins v. District of
Columbia, 188 F.3d 531, 536 (D.C. Cir. 1999)
(refusing to recognize a general right to free
movement based on the right to interstate travel).
Plaintiffs also rely on Ravin v. State, where the
Alaska Supreme Court held that possession of
44a
marijuana in the home for personal use is
constitutionally protected. (Pls.’ Mem. at 32 (citing
537 P.2d 494 (Alaska 1975).) Plaintiffs’ reliance on
this case is misplaced for two reasons. First, the
court’s ruling was based on the Alaska Constitution,
which, unlike the U.S. Constitution, contains an
explicit right to privacy. Ravin, 537 P.2d at 504
(“Thus, we conclude that citizens of the State of
Alaska have a basic constitutional right to privacy in
their homes under Alaska’s constitution. This right
to privacy would encompass the possession and
ingestion of substances such as marijuana in a
purely personal, non-commercial context in the
home”). Second, the Supreme Court of Alaska did not
utilize the federal substantive due process test in
reaching its conclusion. Instead, the Alaska court
first looked to whether the regulation at issue
infringed the claimant’s rights and, then, whether
the infringement was justified. See id. at 498. Thus,
the court did not determine whether a fundamental
right was at issue. Moreover, the court admitted that
if it had “utilize[d] the fundamental right-compelling
state interest test in resolving privacy issues under
[the privacy amendment] of Alaska’s constitution,
[the court] would conclude that there is not a
fundamental constitutional right to possess or ingest
marijuana in Alaska.” Id. at 502. Ravin is thus
inapplicable.
There are, however, two federal cases that are on
point, both of which hold that the Smoke Free Rule
does not implicate a fundamental right. See Good,
2019 WL 6839320, at *4–5 (“Courts have repeatedly
held that smoking is not a fundamental right,
entitling special protection under either a right to
45a
privacy or substantive due process analysis.”); Telepo
v. Ferguson, No. 17-cv-2865, 2018 U.S. Dist. LEXIS
231893, at *2 n.3 (E.D. Pa. Jan. 3, 2018) (“Telepo has
not shown that smoking in the privacy of a public
housing unit is a fundamental right. Courts have
repeatedly held that smoking, inside or outside of a
home environment, is not a fundamental right,
entitling special protection under either a right to
privacy or substantive due process analysis.”).
Plaintiffs attempt to distinguish these two cases by
arguing that Good and Telepo concern the right to
smoke in private, whereas plaintiffs assert a more
general fundamental right to engage in lawful
conduct in the home. (See Pls.’ Resp. to Defs.’ Notice
of Suppl. Authority at 4, ECF No. 44.) However,
plaintiffs’ distinction is one without a difference, for
if their right to engage in legal conduct in the home
was indeed fundamental, they would necessarily
have a fundamental right to smoke in the privacy of
their homes. And, these two cases are not as limited
as plaintiffs suggest, since they both concluded that
smoking in one’s home is not protected by a right to
privacy.
Because no fundamental right is implicated by
the Smoke Free Rule, it is not subject to heightened
scrutiny, and plaintiffs need only “prove that the
government’s
restrictions
bear
no
rational
relationship to a legitimate state interest.” Abigail
All. for Better Access to Developmental Drugs v. von
Eschenbach, 495 F.3d 695, 712 (D.C. Cir. 2007). “The
challenged policy ‘need not be in every respect
logically consistent with its aims to be
constitutional.’” Id. (quoting Williamson v. Lee
Optical of Okla., Inc., 348 U.S. 483, 487–88 (1955)).
46a
Indeed, courts afford challenged policies “a strong
presumption of validity.” Hedgepeth v. Wash. Metro.
Area Transit Auth., 386 F.3d 1148, 1156 (D.C. Cir.
2004). Moreover, where a defendant provides
multiple reasons for a challenged action, a court only
needs to find that one reason is rationally related to
a legitimate state interest for the action to survive.
Id.
Creating safe housing conditions and remedying
the shortage of safe homes for low- income families—
the purpose behind the Housing Act—are legitimate
governmental interests. See 2910 Ga. Ave. LLC v.
District of Columbia, 234 F. Supp. 3d 281, 312
(D.D.C. 2017) (holding that the government’s
“affordable housing goals constitute a legitimate
state interest”); Disney v. Knoxville’s Comm. Dev.
Corp., 508 F. Supp. 68, 71 (E.D. Tenn. 1980) (stating
that the government’s interest in “providing
adequate housing for families of low incomes” is
legitimate). The Smoke Free Rule reasonably
advances these goals by “improv[ing] indoor air
quality in the housing; benefit[ing] the health of
public housing residents, visitors, and PHA staff;
reduc[ing] the risk of catastrophic fires; and
lower[ing] overall maintenance costs.” 81 Fed. Reg.
87,430; see also Beatie v. City of New York, 123 F.3d
707, 713 (2d Cir. 1997) (restrictions on cigar smoking
are rationally related to the legitimate government
interest of protecting the health of nonsmokers);
Good, 2019 WL 6839320, at *5 (the Smoke Free Rule
“is rationally related to the government’s interest in
preventing individuals from being exposed to
secondhand smoke”); Telepo, 2018 U.S. Dist. LEXIS
231893, at *2 n.3 (the Smoke Free Rule serves
47a
legitimate government interests, “include[ing]
improving the health of both smokers and those
exposed to secondhand smoke, reducing fire hazards,
maintaining clean and sanitary conditions, and
reducing complaints and the threat of litigation from
those who do not smoke”); Giordano v. Conn. Valley
Hosp., 588 F. Supp. 2d 306, 314 (D. Conn. 2008)
(smoking restrictions are reasonably related to
legitimate state interests of reducing fires, improving
the health and safety of those affected, promoting
clean and sanitary conditions, and reducing
complaints from nonsmokers); Thiel v. Nelson, 422 F.
Supp. 2d 1024, 1030 (W.D. Wis. 2006) (same).14
Plaintiffs also argue that any risk posed by secondhand
smoke to the health of nonsmokers does not create a compelling
state interest that would support the Smoke Free Rule. (Pls.’
Opp. at 29–30.) This is the wrong legal standard, since the Rule
is not subject to strict scrutiny. In addition, their argument is
not supported by the cases they cite. The state court cases cited
by plaintiffs are tort actions brought by nonsmoker-plaintiffs
against neighbors who smoke for secondhand smoke transfer in
multiunit buildings. See Feinstein v. Rickman, 136 A.D.3d 863,
864 (N.Y. App. Div. 2016); Schuman v. Greenbelt Homes, Inc.,
69 A.3d 512, 514 (Md. Ct. Spec. App. 2013); Ewen v.
Maccherone, 927 N.Y.S.2d 274, 275 (N.Y. App. Div. 2011). The
courts declined to impose tort liability for secondhand smoke,
but the courts did not address the health risk associated with
secondhand smoke or the government’s ability to regulate
smoking. In fact, two of those cases acknowledged “the
significant health hazards to nonsmokers inherent in exposure
to secondhand smoke.” Ewen, 927 N.Y.S.2d at 277; see also
Schuman, 69 A.3d at 520 (“We do understand that although the
true effects of secondhand smoke are still being assessed, it
obviously can be harmful.”).
14
The two federal cases relied upon by plaintiffs are similarly
unhelpful. First, the Supreme Court decision in Helling v.
48a
Thus, the Rule does not violate the Fifth
Amendment, and the Court will grant summary
judgment on Counts Five and Six to defendants.
V. COUNT SEVEN: THE
UNCONSTITUTIONAL CONDITIONS
DOCTRINE
Plaintiffs allege in Count Seven that the Smoke
Free Rule violates the unconstitutional conditions
doctrine because it “conditions tenants’ receipt of the
benefit of public housing on giving up their Fourth
Amendment rights.” (Pls.’ Mem. at 36; see also
Compl. ¶¶ 220–25.) Under that doctrine, “the
government may not require a person to give up a
constitutional right . . . in exchange for a
discretionary benefit conferred by the government.”
Dolan v. City of Tigard, 512 U.S. 374, 385 (1994). As
previously discussed, enforcement of the Smoke Free
Rule does not require PHAs to violate plaintiffs’
Fourth Amendment rights. See supra Section III.B;
see also U.S. Dep’t of Hous. & Urban Dev., Public
Housing Occupancy Guidebook at 200 (2003)
(“Tenants cannot be asked to waive their Fourth
Amendment rights.”). Thus, the Rule does not
McKinney, 509 U.S. 25 (1993), held that the defendant “state[d]
a cause of action under the Eighth Amendment by alleging that
[prison officials] have, with deliberate indifference, exposed him
to levels of [secondhand smoke] that pose an unreasonable risk
of serious damage to his future health.” Id. at 35. Second, the
D.C. Circuit decision in Scott v. District of Columbia, 139 F.3d
940 (D.C. Cir. 1998), turned on plaintiffs’ failure to present
sufficient evidence as to the level of their exposure to
secondhand smoke. Id. at 943. Thus, contrary to plaintiffs’
assertion, neither court concluded that secondhand smoke does
not create a “substantial risk” to nonsmokers.
49a
“require a person to give up a constitutional right . . .
in exchange for a discretionary benefit,” Dolan, 512
U.S. at 385, and defendants are entitled to summary
judgment on Count Seven.
VI. COUNTS EIGHT AND NINE: THE
COMMERCE CLAUSE
Counts Eight and Nine allege that the Smoke
Free Rule is an impermissible exercise of Congress’
power under the Commerce Clause. (Compl. ¶¶ 226–
39.) Specifically, plaintiffs argue that use of tobacco
in a private home does not substantially affect
interstate commerce and the power to regulate that
use belongs exclusively to the States. (See Pls.’ Mem.
at 37–42; see also Compl. ¶¶ 229–32, 236–39.)
Because the Court has concluded that the
promulgation of the Smoke Free Rule is a valid
exercise of Congress’ spending power, see supra
Section II, the Court does not need to decide whether
it is also legitimate under the Commerce Clause. See
Benning v. Georgia, 391 F.3d 1299, 1304 (11th Cir.
2004) (“Although [plaintiffs] argue that Congress
acted within its authority under both the Spending
Clause and the Commerce Clause, we need not
address both arguments so long as Congress validly
exercised either source of authority.”); Charles v.
Verhagen, 348 F.3d 601, 609 (7th Cir. 2003)
(“Whether or not the Commerce Clause provides an
independent justification for RLUIPA does not
impact its constitutionality under the Spending
Clause.” (emphasis in original)). Accordingly,
defendants are entitled to summary judgment on
Counts Eight and Nine.
VII.
COUNTS TEN, ELEVEN, AND TWELVE:
50a
HUD’S AUTHORITY TO PROMULGATE THE
SMOKE FREE RULE
In Counts Ten, Eleven, and Twelve, plaintiffs
allege that Congress did not authorize HUD to
promulgate the Smoke Free Rule. (See Compl. ¶¶
240–53.) They argue that “[n]either HUD’s organic
statute nor any other statute gives HUD the
authority or jurisdiction to regulate emissions of
smoke due to use of tobacco products in private living
quarters” “or anywhere else,” or “to regulate indoor
air quality on a nationwide basis.” (Pls.’ Mem. at 43,
45–46.)
Plaintiffs’ argument is flawed for two reasons.
First, it assumes that Congress must expressly
delegate the power to regulate certain fields.
Longstanding Supreme Court precedent recognizes
that congressional delegation to an agency may be
implicit. See United States v. Mead Corp., 533 U.S.
218, 229 (2001); see also Chevron, U.S.A., Inc. v. Nat.
Res. Def. Council, Inc., 467 U.S. 837, 844 (1984)
(“
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