Appendix — Department of Housing and Urban Development v. Rucker

001770 MAY 2 4 2001

OFF; Ps ¢

In the Supreme Court of the Anited States

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, PETITIONER

PEARLIE RUCKER, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

GRORGE L. WEIDENFELLER

Acting General Counsel

CAROLE W. WILSON

Associate General Counsel

HOWARD M. SCHMELTZER

Assistant General Counsel

HAROLDJ. RENNETT

Attorney

Ll ywited States De partie vt

of Housing and Urban

lh relopment

Washington, DC. 20510

BARBARA D. UNDERWOOD

Acting Solicitor General

Counsel of Record

STUART BE. SCHIFFER

Assistant Attorney Genera!

EDWIN S. KNEEDLER

Lh puty Solicitor General

JAMES A. FELDMAN

Assistant to the Solicitor

Gree ral

HOWARD SCHER

Milo “

Departine nt ot Justice

Washington, DC. 20520-00001

(P02) 614-2217

TABLE OF CONTENTS

Page

Appendix A (court of appeals opinion, Jan. 24,

| la

Appendix B (court of appeals order, Aug. 18,

IBD ccccovsctacnssrssessssssenesstntnsesiniecmmvinemssmnsnenmmmnmianieth 68a

Appendix C (court of appeals opinion, Feb. 14,

ID cecnensanssnesseensnennseeeneemnetnceinminnensinnnmnion cannetagi 70a

Appendix D (district court memorandum, order

and preliminary injunction, June 19, 1998) ............ 138a

Appendix E (statutory and regulatory provisions

| ee 167a

(1)

ee eet ee

— aor ee

——— =

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 98-16322, 98-16542

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE;

BARBARA HILL, PLAINTIFFS-APPELLEES

v.

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY,

DEFENDANTS

AND

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DEFENDANT-APPELLANT

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE;

BARBARA HILL, PLAINTIFFS-APPELLEES

v.

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY,

DEFENDANTS-APPELLANTS

AND

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DEFENDANT

Argued and Submitted March 12, 1999

Opinion filed Feb. 14, 2000

Rehearing En Banc Granted and

Opinion Withdrawn Aug. 18, 2000.

Aruged and Submitted En Banc Sept. 19, 2000

Filed Jan. 24, 2001

(la)

2a

Before: SNEED, SCHROEDER, PREGERSON, REIN-

HARDT, FERNANDEZ, T.G. NELSON, HAWKINS, SILVER-

MAN, MCKEOWN, GOULD, and PAEZ, Circuit Judges.

Opinion by Judge MICHAEL DALY HAWKINS; Dis-

senting by Judge SNEED

MICHAEL DALY HAWKINS, Circuit Judge:

Many of our nation’s poor live in public housing

projects that, by many accounts, are little more than

illegal drug markets and war zones. Innocent tenants

live barricaded behind doors, in fear for their safety and

the safety of their children. What these tenants may

not realize is that, under existing policies of the Depart-

ment of Housing and Urban Development (“HUD”),

they should add another fear to their list: becoming

homeless if a household member or guest engages in

criminal drug activity on or off the tenant’s property,

even if the tenant did not know of or have any reason to

know of such activity or took all reasonable steps to

prevent the activity from occurring (“innocent ten-

ants”). Today we examine the statutory basis behind

HUD’s “One Strike and You’re Out” policy, and hold

that Congress did not intend to authorize the eviction of

innocent tenants.

I. BACKGROUND

It is undisputed that serious criminal activity, espe-

cially drug-related activity, has created a dangerous

environment in many public housing projects. Officially

recognizing that “public and other federally assisted

low-income housing in many areas suffers from ram-

pant drug-related crime,” Congress sought to address

the problem with the Anti-Drug Abuse Act of

3a

1988. 42 U.S.C. § 11901(2). Congress required each

public housing agency to utilize leases which:

(5) provide that a public housing tenant, any

member of the tenant’s household, or a guest or

other person under the tenant’s control shall not

engage in criminal activity, including drug related

criminal activity, on or near public housing prem-

ises, while the tenant is a tenant in public housing,

and such criminal activity shall be cause for

termination of tenancy.

42 U.S.C. § 1437d(/)(5) (1989). Congress altered the

language of this provision slightly in 1990, to require

leases that:

(5) provide that any criminal activity that

threatens the health, safety, or right to peaceful

enjoyment of the premises by other tenants, or any

drug related criminal activity on or near such

premises, engaged in by a public housing tenant,

any member of the tenant’s household, or any guest

or other person under the tenant’s control, shall be

cause for termination of tenancy.

Id. (1991). In 1996, Congress replaced the phrase “on or

near such premises” with “on or off such premises.” /d.

(1997). Finally, in 1998, the section was unchanged, but

redesignated as subsection (/)(6), which is how we refer

to it in this opinion. /d. (1999).

In 1991, HUD issued regulations implementing sub-

section (6), which track the pre-96 statutory language

very closely. HUD required local public housing

da

authorities (“PHAs”) to impose a lease obligation on

tenants:

To assure that the tenant, any member of the

household, a guest, or another person under the

tenant’s control, shall not engage in:

(A) Any criminal activity that threatens the

health, safety, or right to peaceful enjoyment

of the PHA’s public housing premises by

other residents or employees of the PHA, or

(B) Any drug-related criminal activity on or near

such premises.

Any criminal activity in violation of the preceding

sentence shall be cause for termination of tenancy,

and for eviction from the unit.

24 C.F.R. § 966.4(f)12)(i). When issuing these

regulations, HUD made it clear that it interpreted the

statute (and its own regulations) as giving local PHAs

the authority to evict a tenant whose household mem-

bers or guests are involved in drug activity, whether

the tenant knew or should have known of the activity or

tried to prevent the activity. Public Housing Lease and

Grievance Procedures, 56 Fed. Reg. 51,560, 51,567 (Oct.

11, 1991) (“The tenant should not be excused from

contractual responsibility by arguing that the tenant

did not know, could not foresee, or could not control

behavior by other occupants of the unit.”).

Initially, HUD encouraged PHAs to use discretion in

deciding whether to evict:

In deciding to evict for criminal activity, the PHA

shall have discretion to consider all of the circum-

ela me ete 88

oe VN. Ret int ee Be Pee ee

5a

stances of the case, including the seriousness of the

offense, the extent of participation by family mem-

bers, and the effects that the eviction would have on

family members not involved in the proscribed

activity. In appropriate cases, the PHA may permit

continued occupancy by remaining family members

and may impose a condition that family members

who engaged in the proscribed activity will not

reside in the unit.

24 C.F.R. § 966.4(/)(5)(i). However, a directly conflict-

ing message was sent to the PHAs in 1996 when

President Clinton announced the “One Strike and

You’re Out” policy for combating crime in public hous-

ing, which encourages evictions regardless of circum-

stances and ties federal funding to increased crime-

related evictions. John F. Harris, Clinton Links Hous-

ing Aid to Eviction of Crime Suspects, Washington

Post, March 29, 1996, Section A, available at 1996 WL

3071468.

Il. FACTS AND PROCEDURAL BACKGROUND

Because of the increased enforcement under the “One

Strike” policy, we are now beginning to see exactly how

far-reaching HUD’s interpretation of § 1437d(/)(6) can

be. In the case before us, the Oakland Housing Author-

ity (“OHA”) commenced separate unlawful detainer

actions in Alameda County Municipal Court against

four tenants—Pearlie Rucker, Willie Lee, Barbara Hill

and Herman Walker—for violation of the lease provi-

sion obligating tenants to “assure that tenant, any

member of the household, or another person under the

tenant’s control, shall not engage in

lajny drug-related criminal activity on or near the

premises... .”

Pearlie Rucker is a sixty-three-year-old woman who

has lived in public housing since 1985, She lives with

her mentally disabled daughter, her two grandchildren

and one great-granddaughter. OHA sought to evict

Rucker because her daughter was found in possession

of cocaine three blocks from the apartment. Rucker

asserts that she regularly searches her daughter's room

for evidence of alcohol and drug use and has never

found any evidence or observed any sign of drug use by

her daughter. Willie Lee, seventy-one, has been a

public housing resident for over twenty-five years and

Barbara Hill, sixty-three, has been a public housing

resident for over thirty years. Lee and Hill currently

live with their grandsons. OHA sought to evict Lee

and Hill because their grandsons were caught smoking

marijuana together in the apartment complex parking

lot. Lee and Hill contend they had no prior knowledge

of any illegal drug activity by their grandsons,

The fourth tenant, Herman Walker, presents a

slightly different situation. He is a disabled seventy-

five-year-old man who has lived in public housing for

approximately ten years. He is not capable of living

independently and requires an in-home caregiver, On

three instances within a two-month time frame,

Walker's caregiver and two guests were found with

cocaine in Walker's apartment. Each time, Walker was

issued a lease violation notice; with the third notice,

OHA terminated the lease and initiated an unlawful

detainer action. Shortly thereafter, Walker fired his

caregiver.

ne ee

Ta

In response to OHA’s actions, the tenants filed the

present action in federal district court under the

Administrative Practices Act, 5 U.S.C. 88 701-706 (the

“APA”), arguing that 42 U.S.C. § 1487d(/)(6) does not

authorize the eviction of innocent tenants. They also

argued that if the statute does authorize such evictions,

then the statute is unconstitutional. Plaintiff Walker

also alleged that his eviction would violate the Ameri-

cans With Disabilities Act (“ADA”).

The tenants sought a preliminary injunction enjoin-

ing the unlawful detainer actions against them in state

court and enjoining the enforcement of HUD’s regu-

lation and the corresponding provision in the OHA

lease against innocent tenants. To obtain a preliminary

injunction, the moving party must show either (1) a

combination of probable success on the merits and the

possibility of irreparable harm, or (2) that serious

questions are raised, and the balance of hardships tips

sharply in favor of the moving party. Roe v. Anderson,

134 Fd 1400, 1401-02 (9th Cir. 1998). Applying this

standard, the district court found that the tenants had

raised serious questions on their claim that HUD’s

interpretation of § 1437d(/)(6) violated the APA.

Weighing the plaintiffs’ loss of their homes against the

delay in OHA’s eviction proceedings, the district court

found the balance of hardships tipped decisively in the

tenants’ favor, and enjoined OHA from “terminating

the leases of tenants pursuant to paragraph 9(m) of the

‘Tenant Lease’ for drug-related criminal activity that

does not occur within the tenant’s apartment unit when

the tenant did not know of and had no reason to know

of, the drug-related criminal activity.” The court also

found that plaintiff Walker had raised a serious

question with respect to whether his eviction violated

Sa

the ADA and enjoined OHA from evicting Walker on

the basis of his caregiver's illegal drug use.

On appeal ‘rom the preliminary injunction, a panel of

this court reversed the district court, holding that

$ 1437d(/\(6) authorized the eviction of innocent ten-

ants, that HUD’s interpretation was consistent with

the statute, and that the statute, so interpreted, was

not unconstitutional. Rucker v. Davis, 203 F.3d 627

(9th Cir. 2000). We granted review en banc and vacated

the panel opinion. Rucker v. Davis, 222 F.3d 614 (9th

Cir. 2000). We now affirm the district court’s grant of

the preliminary injunction.

III. STANDARD AND SCOPE OF REVIEW

This appeal presents the opportunity to clarify our

standay’ nd scope of review for preliminary injunc-

tions, rticular, regarding when it is appropriate to

reach t..c “merits” of the underlying case.

In general, we review a grant or denial of a

preliminary injunction for abuse of discretion. Gorbach

v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en bane).

The district court, however, necessarily abuses its

discretion when it bases its decision on an erroneous

legal standard or on clearly erroneous findings of fact.

Brookfield Communications, Inc. uv. West Coast

Entertainment Corp., 174 F.3d 1036, 1046 (9th Cir.

1999); Roe, 134 F.3d at 1402. Thus, if the district court

is alleged to have relied on an erroneous legal premise

in reaching its decision to grant or deny a preliminary

injunction, we will review the underlying issue of law,

and we do so de novo. Does 1-5 v. Chandler, 83 F.3d

1150, 1152 (9th Cir. 1996).

ss = —_ Te

ee a

9a

The scope of our review is likewise normally very

narrow. We review whether the court employed the

appropriate legal standards governing the issuance of a

preliminary injunction and whether the district court

correctly apprehended the law with respect to the

underlying issues in the case. California Prolife

Council v. Scully, 164 F.3d 1189, 1190 (9th Cir. 1999);

Gregorio T. v. Wilson, 59 F.3d 1002, 1004 (9th Cir.

1995). We typically wi'l not reach the merits of a case

when reviewing a preliminary injunction. Roe, 134 F.3d

at 1402; Gregorio T., 59 F.3d at 1004. By this we mean

we will not second guess whether the court correctly

applied the law to the facts of the case, which may be

largely undeveloped at the early stages of litigation.

“As long as the district court got the law right, ‘it will

not be reversed simply because the appellate court

would have arrived at a different result if it had applied

the law to the facts of the case."” Jd. at 1004 (quoting

Sports Form, Inc. v. United Press¢Int'l, 686 F.2d 750,

752 (9th Cir. 1982)).

Of course, there will be cases in which the district

court's interpretation of the law with respect to the

underlying issues is challenged, and the resolution of

such a legal question will be dispositive. If a district

court’s ruling rests solely on a legal question, and the

facts are established or of no controlling relevance, then

we may undertake a plenary review of the decision to

grant a preliminary injunction. Gorbach, 219 F.3d at

1091 (citing Thornburgh v. American College of

Obstetricians & Gynecologists, 476 U.S. 747, 755-57, 106

S. Ct. 2169, 90 L.Ed.2d 779 (1986), overruled in part on

other grounds, Planned Parenthood v. Casey, 505 U.S.

833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992)).

10a

In this case, neither party suggests that the district

court applied the wrong preliminary injunction stan-

dard. HUD and OHA, however, do assert that the dis-

trict court misapprehended the law with respect to the

breadth of § 1487d(/6). They contend the district

court therefore based its decision on an erroneous legal

interpretation, thereby abusing its discretion. Accord-

ingly, we must turn to the proper interpretation of

$ 1437d(/16), a question of law which we review de

nove. See, eg., Foti v. City of Menlo Park, 146 F.3d

629, 634-35 (th Cir. 1998); Does 1-5, 83 F.3d at 1152.

IV. SECTION 1427d(D6)

The parties agree that in interpreting § 1437d(/(6),

we apply the framework set forth in Chevron l SA.,

Inc. v. Natural Resources Defense Council, Ine., 46%

U.S. 837, 104.8. Ct. 2778, 81 L.Ed.2d 694 (1984). Under

Chevron, the first question is whether Congress has

directly spoken to the precise question at issue. /d. at

S42, 104.8. Ct. 2778. To determine whether Congress

has spoken on the question at issue, we employ the

traditional tools of statutory construction; if Congress

had an intent on this issue, that intent is the law and

must be given effect. /d. at 843 n.9, 104.8. Ct. 2778.

In this case, a number of statutory construction

principles lead us to conclude that Congress has spoken

on the issue and that HUD’s interpretation is contrary

to congressional intent. In determining whether Con-

gress has specifically addressed the question at issue,

“a reviewing court should not confine itself to examin-

ing a particular statutory provision in isolation.” FDA

v. Brown & Williamson Tobacco Corp., 529 U.S. 120,

120 S. Ct. 1291, 1800, 146 L.Ed.2d 121 (2000).

Rather, the “the words of a statute must be read in

lla

their context and with a view to their place in the

overall statutory scheme.” Jd. at ——, 120 S. Ct. at

1301 (quoting Davis v. Michigan Dept. of Treasury, 489

U.S. 803, 809, 109 S. Ct. 1500, 108 L.Ed.2d 891 (1989)).

When the proper interpretation of a statute is not clear

from the language of the text or the broader context of

the statute as a whole, the legislative history offers

valuable guidance and insight into Congressional intent.

United States v. Hockings, 129 F.3d 1069, 1071 (9th Cir.

1997). We will not assume that Congress intended a

statute to create odd or absurd results. United States

v. X-Citement Video, Inc., 513 U.S. 64, 69-70, 115 S. Ct.

464, 130 L.Ed.2d 372 (1994) (citing Public Citizen v.

Dept. of Justice, 491 U.S. 440, 453-455, 109 S. Ct. 2558,

105 L.Ed.2d 377 (1989)). Finally, because we cannot

presume Congress intended an unconstitutional result,

whenever possible, statutes should be construed to

avoid serious doubts as to their constitutionality. Jd. at

78, 1158. Ct. 464.

Because we find that Congress had an intention on

the precise question at issue that is contrary to HUD’s

construction, HUD’s interpretation is not entitled to

deference. See Chevron, 467 U.S. at 843 n.9, 104 S. Ct.

2778. “The judiciary is the final authority on issues of

statutory construction and must reject administrative

constructions which are contrary to clear congressional

intent.” /d. Thus, we do not reach the question under

Chevron of whether an administrative interpretation is

reasonable or permissible, for “lilf the intent of Con-

gress is clear, that is the end of the matter.” /d. at 842,

104.8. Ct. 2778.

la

A. Textual Interpretation

We begin with the text of the statute. Section

1437406) provides that “any drug-related criminal

activity on or off such premises, engaged in by a public

housing tenant, any member of the tenant’s household,

or any guest or other person under the tenant’s control,

shall be cause for termination. of tenancy.” HUD

essentially argues that “any” means “all,” asserting that

if a drug-related crime occurs by any of the enumerated

individuals, then the statute clearly permits eviction of

all tenants under the lease, regardless of personal

involvement in or knowledge of the crime. The lan-

guage of the statute, however, does not appear as plain

as HUD would like it to be. The statutory provision

does not expressly address the level of personal

knowledge or fault that is required for eviction, or even

make it clear who can be evicted. Although the statute

permits “termination of tenancy,” it does not answer

the question of whose tenancy. In situations with

multiple tenants, does the statute authorize eviction of

the offending party only, or all persons on the lease?

The parties debate the significance that should be

attributed to the use of the phrase “under the tenant’s

control.” HUD argues that this phrase modifies only

the term “other person” and that “control” means only

that this other person has the tenant’s consent to be in

the tenant’s unit. The tenants contend that “control”

involves the “exercise of a restraining or directing

influence” over another, and that this applies to all of

the words in the group, i.e., household members, guests

and other persons. The tenants further argue that it ts

implicit from the use of this wording that Congress

intended tenants to be held accountable for the actions

ee ee eee ee ee Se ee

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of those persons who are subject to their control, but

that the statute does not impose sanctions on tenants

who have taken reasonable steps to prevent criminal

drug activity from occurring, but, for a lack of knowl-

edge or other reason, could not realistically be expected

to exercise control over the conduct of another.

The text of subsection (6), viewed in isolation, does

not compel either party's interpretation. We therefore

turn to the specific context in which the language is

used and the broader context of the statute as a whole.

Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct.

S45, 136 L.Ed.2d 808 (1997).

1. Section 1437d(/)

In examining the language of the statute, we must

look to its place in the overall statutory scheme and “fit,

if possible, all parts into a harmonious whole,” Brown &

Williamson, 529 U.S. at ——, 120 S. Ct. at 1301

(quoting F'7C v, Mandel Bros., Inc., 359 U.S. 385, 389,

79'S. Ct. 818, 3 L.Ed.2d 8938 (1959)). First established in

1937, the public housing program was a response to an

acute shortage of “decent and safe dwellings for low-

income families.” 42 U.S.C. § 1437. Understanding that

these low income tenants face grave adversity if

evicted, Congress has put a number of protections in

place that limit the ability of local PHAs to evict. In

§ 1487d(/) itself, the local PHAs are prohibited from

using leases with unreasonable terms and conditions.

Another subsection also provides that the leases must

not permit the PHA to terminate tenancies except for

“serious or repeated violation of the terms or conditions

of the lease or for other good cause.” § 1437d(/)(5). We

believe reading section (/) as a “harmonious whole,”

requires us to presume that Congress also intended

I4a

subsection (6) to be construed as a reasonable lease

term and to permit eviction only if there is good cause.

It is, of course, our task to determine the meaning of

subsection (6) and not its wisdom. Our task is to

examine HUD’s construction of subsection (6) in light of

and in relation to the other provisions of section (/).

There is undisputedly a significant problem with crime

and drugs in public housing. The goal of providing safe

and drug-free public housing is well served by

permitting the local PHAs to evict tenants who engage

in the proscribed criminal activities. It is also furthered

by imposing a duty on tenants to take reasonable steps

to control the drug or criminal activity of family

members and guests or face eviction. There is no

dispute that the eviction of tenants who personally

engage in drug activity or of tenants who turn a blind

eve to the activities of household members or guests

fulls squarely within the language of the statute under

either party's reading.

While the policy considerations pointed out by the

dissent may apply to the eviction of culpable tenants

{Dissent at 1128 - 42], we do not believe they support

the eviction of innocent ones. Imposing the threat of

eviction on an innocent tenant who has already taken all

reasonable steps to prevent third-party drug activity

could not have a deterrent effect because the tenant

would have already done all that tenant could do to

prevent the third-party drug activity. Likewise,

evicting the innocent tenant will not significantly

reduce drug-related criminal activity in public housing,

since the tenant has not engaged in any such activity

personally or knowingly allowed such activity to occur.

HUD’s construction of subsection (6) would allow such

l5a

irrational evictions, and thus would require PHAs to

include an unreasonable term in their leases and permit

eviction without good cause. Read in the context of the

overall statutory scheme and in light of the legislative

history (discussed below), we cannot say Congress

intended such a result.

2. Forfeiture Provision

Another amendment enacted at the same time as the

original version of § 1437d(/)(6) also leads to the con-

clusion that Congress did not intend to allow the

eviction of innocent tenants. In the same chapter and

subtitle of the Anti-Drug Abuse Act of 1988, Congress

passed both the original version of subsection (6) and

also amended a pre-existing civil forfeiture provision of

the Controlled Substances Act, 21 U.S.C. § 881(a). The

two statutes at issue were enacted together as parts of

a single legislative scheme to combat drug abuse in

public housing. The legislative history indicates how

Congress envisioned the statutes working together:

Chapter 1 of this subtitle codifies current HUD

guidelines granting public housing agencies

authority to evict tenants if they, their families or

their guests engage in drug-related criminal

activity. It also allows the federal government to

seize housing units from tenants who violate drug

laws by clarifying that public housing leases are

considered property with respect to civil forfeiture

laws.

14 Cong. Ree. 817,360-02 (Nov. 10, 1998) available

at 1988 WL 182529 (Cong. Rec.).

l6a

The forfeiture provision was amended by inserting

the phrase “(including any leasehold interest)” into the

text of the pre-existing statute. The amended statute

then read in relevant part:

The following shall be subject to forfeiture to the

United States... .

(7) All real property, including any right, title

and interest (including any leasehold interest) in the

whole of any lot or tract of land and any appurte-

nances or improvements, Which is used, or intended

to be used, in any manner or part, to commit, or to

facilitate the commission of, a violation of this

subchapter . . . except that no property shall be

forfeited under this paragraph, to the extent of an

interest of an owner, by reason of any act or

omission established by that owner to have been

committed or omitted without the knowledge or

consent of that owner,

21 U.S.C. § 881a) (emphasis added).’

HUD suggests we should place no importance on the

availability of what clearly was an innocent owner

| The “innocent owner” defense which then appeared in

21 USC. § SS10a7) is now codified at IS U.S.C. § 98300) as part of

the general rules for civil forfeiture procedures. In enacting

$ uStid), Congress clarified that an “innocent owner” is one who

“i) did net know of the conduct giving rise to forfetture; or (1)

upon learning of the conduct giving rise to the forfeiture, did all

that reasonably could be expected under the cireumstances to

terminate such use of the property.” IS U.S.C. § fsied(2) A).

This continues to be consistent with our reading of § 1457d0/ 46),

17a

defense in the forfeiture provision, pointing to the

differences between civil forfeiture and lease eviction

proceedings. Although different animals, the Supreme

Court instructs that the meaning of one statute may be

illuminated by the language of another. Brown &

Williamson, 529 U.S. at - , 1208. Ct. at 1300-

O01. When dealing with two different statutes which not

only govern the same subject matter but were also

enacted at the same time in the same chapter of the

same Act, we presume Congress meant them to be read

consistently. HUD correctly points out that the forfei-

ture provision deals with forfeitures of the leasehold to

the federal government, while § 1437d(/)(6) deals with

eviction by locai PHAs. Although different processes,

the purpose of both is the same. Moreover, the result is

the same: the tenant loses the leasehold interest, which

is taken over by a governmental entity. It makes little

sense to provide protections for the innocent tenant

from the federal government but not from local housing

authorities.-

HUD and the dissent also argue that the forfeiture

provision illustrates that Congress knows how to

provide an innocent tenant defense when it wants to,

- The dissent attempts to distinguish the provisions by arguing

that Congress must have decided to provide substantive protec-

tions to owners that it did not provide to tenants. [Dissent at

1132). Yet, § S81(aX7) specifically applies to leasehold interests,

and the legislative history indicates Congress was specifically

thinking of public housing leases when it added this provision. We

cannot agree with an interpretation of § SS1(a7) that would not

apply the innocent owner defense contained therein to the owners

of leasehold interests. Congress's recent clarification of the

innocent owner defense confirms our interpretation. IS U.S.C.

S$ WSCA).

lSa

and that since it did not use the very same language in

§ 1437d(/(6), it must not have intended for one to be

available. [Dissent at 1132]. We agree that the inno-

cent tenant defense in § SS1(a)(7) was more clear; it Was

also drafted by a different Congress than the one which

enacted § 1437d(/)(6), which significantiy weakens

HUD's argument. Cf Lindh v. Murphy, 521 US. 320,

330, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997) (negative

implication argument is strongest when different provi-

sions were joined together and considered simultane-

ously when the language giving rise to the implication

was inserted). The concurrent amendment of

§ XS1(a)(7) did not touch the previously drafted innocent

owner defense; it merely extended the forfeiture

provision to include leasehold interests.

We are unpersuaded by the negative implication

argument. To say Congress could have drafted the

defense more explicitly in § 1437d(/)(6) is not to say it

did not do se at all.

3. Section 1437d(e 4) AU)

HUD asserts that its interpretation of § 1437d(/)(6) is

reinforced by a version of § 1437d(c4)(A)(ii) which

was in effect until 1996. This version prohibited

individuals or families who were evicted because of

drug-related criminal activity from receiving a

statutory housing preference for three years, but

exempted “any member of a family of an individual’

who the agency determined “clearly did not participate

in and had no knowledge of such criminal activity.”

HUD argues that if innocent tenants could not be

evicted under § 1437d(/\(6), there would have been no

need for such an exemption, which would have

rendered § 1437d(c)4)(A \iii) surplusage.

19a

The language HUD relies on is no longer part of the

statute. We are therefore hesitant to even address an

argument for harmonious interpretation when there is

no longer a provision to harmonize. We do, however,

note that even as originally drafted, § 1437d(c)(4)(A \(iii)

Was not entirely inconsistent with the tenants’ inter-

pretation of § 1437d(/\(6). For example, an entire

family, including minor children, can be evicted under

§ 1457d(/)(6) if the parent engages in drug-related

activities. These children, upon reaching the age of

eighteen, would become eligible for public housing. The

prior version of § 1437d(c)(4)(A (iii) would have waived

the three-year disqualification period for such children

if they were not participants in the criminal activity

which caused the family to be evicted, which means that

this provision would not have been surplusage under

the tenants’ interpretation.

4. Summary

Section 1437d(/ (6) is not a picture of clarity and may

be subject to varying interpretations. When read in

conjunction with the remainder of § 1437d(/ ) and other

provisions enacted at the same time, however, it

appears that Congress did not intend subsection (6) to

apply to the eviction of innocent tenants. Any doubts

that persist about Congress’s intentions, however, are

firmly resolved by the legislative history and the

principles of statutory construction we discuss below.

B. Legislative History

If the intent of Congress is not clear from the

language of the statute and the broader context of the

statute as a whole, we consult the legislative history.

Hockings, 129 F.3d at 1071. In doing so, we place par-

200

ticular emphasis on the committee reports accompany-

ing the statute. Garcia v. United States, 469 U.S. 70,

76, 1058. Ct. 479, 83 L.Bd.2d 472 (1984),

No House or Senate reports accompanied the original

version of § 1437d(/)(6), which was enacted as part of

the Anti-Drug Abuse Act of 1988, In 1990, however,

Congress amended the provision in question, and the

legislative history specifically addressed the issue

before us. The Senate Report explains:

The committee anticipates that each case will be

judged on its individual merits and will require the

wise exercise of humane judgment by the PHA and

the eviction court. For example, eviction would not

be the appropriate course if the tenant had no

knowledge of the criminal activities of his/her guests

or had taken reasonable steps under the circum-

stances to prevent the activity.

S. Rep. No. 101-316, at 179 (1990), reprinted in 1990

US.C.C.A.N. 5768, 5941. The report also addressed an

identical passage in the Section 8 housing assistance

program: “The Committee assumes that if the tenant

had no knowledge of the criminal activity or took

reasonable steps to prevent it, then good cause to evict

the innocent family members would not exist.” /d. at

DSSY.

HUD contends the legislative history indicates

Congress's intent to confer wide discretion on HUD

and the local PHAs. It focuses on the statement that

“each case will be judged on its individual merits and

will require the wise exercise of humane judgment by

the PHA and the eviction court.” It is true that the

PHAs have discretion in deciding whether to initiate an

Zla

eviction action under the statute, but this is true

whether the statute authorizes eviction of innocent

tenants or not. In other words, this passage suggests

that even in a case involving a “culpable” tenant, the

case must be looked at on its individual merits, which

may counsel against eviction, even though eviction is

clearly authorized by the statute.’

In these reports, however, Congress specifically

rejects the notion that the PHAs’ discretion is so broad

that it extends to the eviction of innocent tenants.

These reports are very clear that such evictions would

not be appropriate, and that in such circumstances good

cause to evict would not exist. The latter statement is

also consistent with our discussion above that

§ 1437d(/)(6) must be read in conjunction with the good

cause requirement of § 1437d(/)(5). Accordingly, we

reject HUD's interpretation as contrary to the clearly

expressed intent of Congress. Chevron, 467 U.S. at

42-45, 1048. Ct. 2778,

(. Absurd Results

Even if we did not find that the legislative history

supports the tenants’ interpretation, a number of other

’ HUD took the position at oral argument that an eviction court

could only consider whether or not the lease term was violated,

and could not review the PHAs’ decision that the violation war-

ranted eviction, This issue is not before the court today, but we

note that the quoted passage suggests that eviction courts do have

a role to play in evictions under § 1437d(/)(6) and that the PHAs’

discretion does not appear to be unchallengeable. See, e.g., Robert

Hornstein, Mean Things Happening in This Land: Defending

Third Party Criminal Activity Public Housing Evictions,

255.U.L.Rev. 257 (1996) (discussing abuse of discretion defense in

PHA eviction cases).

>»).

statutory interpretation tools would lead us to the same

result. It is well established that we will not assume

Congress intended an odd or absurd result. ‘-

Citement Video, 513 U.S. at 69-70, 115 8. Ct. 464; Public

Citizen, 491 U.S. at 453-55, 1098S. Ct. 2558.

We need look no further than the facts of this case for

an example of the odd and unjust results that arise

under HUD’s interpretation. HUD conceded at oral

argument that there was nothing more Pearlie Rucker

could have done to protect herself from eviction, but

argued that the statute authorized her eviction none-

theless. HUD has also taken the position that the

statute would apply and permit eviction of an entire

family if a tenant's child was visiting friends on the

other side of the country and was caught smoking

marijuana, even if the parents had no idea the child had

ever engaged in such activity and even if they had no

realistic way to contr ' their child’s actions 3,000 miles

away.’ HUD also asserted the provision would apply

and authorize eviction if a household member had been

convicted of a drug crime years earlier, arguing that the

local PHA would have the discretion to determine if

eviction were warranted in such circumstances.

Although the dissent contends the Supreme Court

frowns on consideration of hypothetical applications of

statutes [Dissent at 1130], the Court itself has clearly

looked beyond the facts of individual cases to the

' We should note that the HUD regulaticn employs language

from an earlier version of the statute, and requires that the drug

activity be “on or near” the premises, thus restricting the geo-

graphical reach of the provision. 24 C.F.R. § 966.4(f)(12)(). HUD

acknowledges, however, that under the amended statute, there is

no such geographic limitation.

23a

broader ramifications of a given interpretation when

evaluating whether such interpretation creates absurd

results. See, e.g., X-Citement Video, 513 U.S. at 69, 115

S. Ct. 464. The absurdity and unjustness of the poten-

tial results in this case confirms that HUD has missed

the mark in discerning Congress’s intent.

The dissent also argues that because Congress has

not amended § 1437d(/)(6) to more clearly address the

innocent tenant issue, this must mean that Congress

intended these results, even if we may think them odd.

[Dissent at 1134]. Congress's inaction, however, may

cut both ways. Te the extent Congress may be aware

of how HUD and some courts have interpreted this pro-

vision, it must have also been aware that other courts

were refusing to evict innocent tenants. See, e.g.,

Charlotte Hous. Auth. v. Patterson, 120 N.C.App. 552,

464 S.E.2d 68, 72 (N.C. App. 1995); Richmond Tenants

Org., Inc. v. Richmond Redev. and Hous. Auth., 751 F.

Supp. 1204, 1205-6 (E.D. Va. 1990). And yet, Congress

did not clarify the statute. Furthermore, the One

Strike policy, which has led to increased enforcement

and less exercise of discretion by the PHA’s, was only

announced in 1996, the same year as the last substan-

tive amendment to the section. Only now are cases

beginning to surface which illustrate the breadth of

HUD’s interpretation and which may attract enough

attention lo merit reconsideration or clarification of the

statute by Congress.

D. Constitutional Avoidance

It is also a settled principle of statutory interpreta-

tion that whenever possible, a statute should be con-

strued to avoid substantial constitutional concerns. Y-

Citement Video, 513 U.S. at 69, 115 S. Ct. 464. HUD’s

Yda

, - : ‘ever, would raise

ati S 14837d(/(6), however,

interpretation of § ies lie

pe questions under the Due Process Clau

Fourteenth Amendment.

Penalizing conduct that involves ee

wrongdoing by an eT are S 203, 224-25, 81

Ao ae erry (1961); South western Tel . im

Tel Co. » Danaher, 238 U.S. 482, 490, 39 ™ * sentig

L Ed. 1419 (1915). Public housing rate ¥ indsey

‘operty interest in their tenancy. “yore - 9 1982):

56 U S. 444, 451, 102 S. Ct. 1874, 72 L.Ed.2d “ a m0 :

( eneva Towers Tenants Org. -- : enage | 1" we

504 F.2d 483, 488-89 to be deprived of

lationship to

Investors, paws

interpretation would permit te she =

their property interest without any

individual wrongdoing.

HUD contends that the Supreme op gegen

Bennis v. Michigan, 516 oS t that depriv-

L.Ed.2d 68 (1996), forecloses any pean violates due

pagney” ‘ner of a property rl .

‘no an innocent ownel of a proper. pw ! -

me ene In Bennis, a Womans husband sos a

‘ointly owned car to ae ene M The sites was

: : ; % 116 S. Ct. 904.

-ostitute. Id. at 443, 1 jue

forfeited and the wife contested the agg tee

process grounds. /d. at 446, 116 S. Ct. % but did so

lecision, the Court upheld the ager ee ble from

neaandle on facts which are easily distinguishable

the instant case.

The Bennis Court pointed out that ot ae

the sale did not exceed the costs of the sa : i. ponte

“practically nothing left” for Mrs. Bennis. /d. “ por

S Ct, 994; id. at 456, 116 S. Ct. 994 (Thomas, 1.

curring); id. at 458, 116 S. Ct. 994 (Ginsburg, J-.

25a

curring). The Court also noted the equitable nature of

the Michigan forfeiture proceeding, and that the state

court had taken special note of the fact the Bennises

had a second automobile. /d. at 445, 116 S. Ct. 994; id.

at 458, 116 S. Ct. 994 (Ginsburg, J., concurring). In this

case, there is much more at stake than a negligible

financial interest in a family’s second car: these families

risk losing their entire property interest in their homes.

Most important, in Bennis, the Court suggested that

the fact that the property was used in criminal activity

was decisive; the Court held that the spouse’s due

process claim was defeated by “a long and unbroken

line of cases holdling] that an owner’s interest in

property may be forfeited by reason of the use to which

the property is put even though the owner did not know

that it was to be put to such use.” Bennis, 516 U.S. at

446, 116 S. Ct. 994 (emphasis added); see also id. at 450,

116 S. Ct. 994 (discussing the requirement that the

property be an “instrumentality” of crime). In this

case, with the exception of Plaintiff Walker’s caregiver,

the illegal activities took place off the premises leased

by the plaintiffs. Thus, the leasehold interest was not

used in connection with the crime.

Justice Thomas’s concurring opinion in Bennis ex-

panded on the Court’s statement that the forfeiture

was justified because the property in question was an

instrumentality of the crime by strongly suggesting

that a due process claim exists if there has been a

forfeiture of property that was not used in the com-

mission of a crime and the owner of the property had no

knowledge of the illegal activity. /d. at 455-56, 116 S.

Ct. 994 (Thomas, J., concurring); see also Calero-Toledo

v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90, 94

Ya

S. Ct. 2080, 40 L.Ed.2d 452 (1974). Penny are

believe HUD's interpretation of § eccrine: 9

would permit the deprivation of a tenant : ‘ a di

terest when the property was not wy ot know of

mission of a crime and when the a sa due process

the illegal activity, would raise serious

questions.”

It is not necessary, however, to ey anne

tional issue if there is a eoery aprons r a contrary

which avoids the question and - et Vid : 513 U.S.

to the intent of Congress.” X-( Howeont be e ner te

at 78, 1158. Ct. 464. The tenants have propos “control”

construction, by erste wg = nl Today

as a limitation on the brea¢ ld that if a tenant

we adopt that interpretation and ces ‘riminal drug

‘eusSONn: steps to prevent crimina

a beseog aterm 9 for - lack of knowledge

alee reason, could not realistically ee

over the conduct of a househola goats a of er

$ 1437d(/ (6) does not authorize the eviction dy yoni

tenant. Cf. id. (reading “knowing eer ee 7 waned

criminal element as apply ing “y “aor ey yea no, 208

avoid serious constitutiona SI, 4 . ;

Fd S16, 828 (ath Cie. 20)) (finding reasonale ume

ecomni en-

Several legal commentators have also recognized "a He Y

, Severs ‘ . Tiw. i , ati - see, e.4 "9

tial due process problems with HI D's interpretation. Pe

Li Weil, Drug-Related Evictions in Public eng 5 o ord

isa “ii, : z , *ol'y Rev. 161, 175 oe

af % Yale L. & Pol'y . :

Addiction to a Quick Fis, thgw Spos8 istressing and

nos chins liability makes HUD eviction policy both paper ms em

ar ; « . . T q /

: : ‘titutionally suspect); Nelson H. Mock, wate, eso for the

_ t: No Fault Eviction of Public Housing sencypec saa

mmocent: NO- - . 5. 1522-24 (10% ‘ .

Setiome of Third Parties, 76 Tex. L..Rev. a se ste liability

. tue process problems because no relationship .

ing ( a oe

and the action of the tenant).

27a

limitation implic

it in statute to avoid serious due

process concerns),

V. PRELIMINARY INJ UNCTION

A. APA Claim

The district court granted a preliminary injunction on

the tenants’ APA claim because it found that the

tenants had raised serious questions and that the

balance of hardships tipped sharply in their favor, since

they could lose their homes if OHA’s actions were not

halted. The district court enjoined OHA from pursuing

its unlawful detainer actions against Lee and Hill.” The

district court also enjoined OHA from terminating any

other leases for off-premises drug-related activity in

which the tenant did not know of or have reason to

know of the criminal activity.

Reviewing the interpretation of § 1437d(/ 6) de novo,

we have concluded that HUD’s interpretation is

inconsistent with Congressional intent and must be

rejected. Chevron, 467 U.S. at 842-43, 104 S. Ct. 2778.

The question remains whether the district court prop-

erly enjoined OHA from evicting innocent tenants

pursuant to paragraph 9m) of the OHA lease. This

provision was required by HUD regulations (24 C.F.R

8 966.4(f)(12)(i)), which were, as discussed above,

premised on HUD's erroneous interpretation of

§ 1437d(/)\(6).

Paragraph 9(m) is not an «

wrdinary term found in

residential leases

and should not be treated as such

° OHA dismissed the unlawful

detainer proceeding against

Rucker.

Pa

There is certainly no bargained-for-exchange in public

housing leases. The form of public housing leases is

almost entirely dictated by HUD. This lease provision

was required by the very HUD regulations we have

invalidated, and is simply the embodiment of the

erroneously broad interpretation of § 1437d0/(6). As

we discussed in section IV.A. above, such a provision

would be unreasonable, and including an unreasonable

term in a public housing lease is prohibited under

$ 1487d(/), as are evictions without good cause.

Accordingly, we find that the district court properly

granted the preliminary injunction generally enjoining

OHA from pursuing evictions under paragraph %m) to

the extent it seeks to do so for off-premises drug-

related activity in which the tenant did not know of or

have reason to know of the criminal activity: OHA

remains free to proceed with evictions for off-premises

drug activities when it can prove the tenant knew or

should have known of the activity.’ Likewise, the dis-

trict court specifically permitted OHA to pursue

evictions of tenants when the drug-related activity

* There are also substantial constitutional considerations asso-

ciated with enforcing this provision, as discussed in Section [V.D.,

above.

~ We undertake plenary review of this portion of the injunction

because it presents a situation in which the legal issues underlying

the injunction are dispositive, and the facts of the individual claims

are of no controlling relevance. Gorbach, 219 F.3d at 1091.

“ The district court's injunction does not address the issue of

whether tenants who have knowledge of off-premises drug activi-

ties by household members may be evicted if they attempt in good

faith to prevent their household members from engaging in such

activity, but are unable to do so. Accordingly, we do not consider

that question here.

29a

occurs within the tenant's apartment, creating a rebut

table presumption that a tenant controls what occurs na

his or her unit." These directives are perfectly con-

sistent’ with our interpretation of “control” in

8 1437d(/6). We therefo ;

i , tore affirm this

Injunction. his portion of the

With respect to the portion of the injunction which

enjoins OHA from pursuing its unlawful detainer

actions against Lee and Hill, the facts of the underlyin

cases come into play. OHA, however, has not cuntested

the assertions of Lee and Hill that they did not know or

have reason to know of their grandsons’ drug use

Assuming these facts are true, Lee and Hill qualify as

innocent tenants. On the facts before it, the district

court did not abuse its dis ~

s discretion by enjoining thei

unlawful detainer actions. ” 5 Gee

B. Walker's ADA C laim

i. Walker presents a different situation, since

¢ Wlegal drug activity occurred within his apartment

and, at least after the first violation notice, he had

knowledge of the criminal activity. The district court

ultimately decided to enjoin Walker's unlawful detainer

action, finding that Walker had raised a serious ques-

tion with respect to whether the eviction vielated the

ADA, and that the balance of hardships weighed in

favor of permitting him to ae

remain in his home

ADA claim was fully litigated, ——

a

"This presumption should assuage some of the dissent’s con-

cerns about the bu '

at 1136) rden of proof placed on the local PHA. [Dissent

0a

Sla

The district court noted that Walker alleged he before the district court at a

required an in-home caregiver because of his disability however. the district a =~ time it made its decision,

and that he alleged he was net physically able to search in entering the per ary ~~ a abuse its discretion

persons entering his apartment. The district court Walker's ADA chtn nary injunction with respect to

concluded that the ADA might require some form of ,

accommodation in the eviction policies for his situation, VI. CONCLUSION

citing an Oregon case which required the housing

authority to modify its “no dogs” policy for a hearing

impaired tenant. Green v. Hows. Auth. of Clackamas

We find that Con

permit the evict

County, WA F. Supp. WSs, 157 OD. Or. 1908). Al- contrary interpretation must be rejected The distri ‘

“ .

though OHA asserted that there could be no reasonable pe therefore properly enjoined OHA from aaeiae

accommodation in Walker's case because the only , commen based on the erroneous interpretation a

alternative would be a “blanket exemption” from the S MS7d(6) as embodied in the OHA | :

‘ oe limited factual . ease. On the

drug policy, the district court found that, based on the met Giment record before it, the district court did

allegations of the complaint, it could not rule as a a oe discretion in enjoining Walker's oatitie

matter of law that no reasonable accommodation exists. respect to his ADA _

Walker's ADA claim is replete with factual questions,

including whether the guests in the apartment were

Walker's or the caregiver's, and whether Walker's

disability prevented him from being able to search his

caregiver or her guests. There are no answers to these

questions at this stage of the proceedings. The district

court's decision to grant the injunction on the ADA

claim turns on the application of law to the facts of

Walker's case. The district court applied the proper

standard for issuing a preliminary injunction, and

appears to have correctly apprehended the law of the

ADA. We will not reverse simply because we might

reach a different result on the limited facts before us.

Gregorio T., 59 F.3d at 1004. A factfinder may uiti-

mately determine that Walker cannot state a claim

under the ADA or that OHA provided Walker with a

reasonable accommodation by giving him two warnings

and two months to find a new caregiver. On the facts

j$Za

. . Yas > . \-

Sxrep, Circuit Judge, with whom Judges k eo :

Dez. T.G. NELSON, and SILVERMAN, Circuit Judges,

join, dissenting:

In 1988, faced with a devastating and haere >

epidemic of drug related crime and —— or

housing, Congress granted to local pu pr . -s

authorities (*“PHAs”) a new tool in the : au a

provide decent and safe low income housing. prego

$ 1487d(/)(6) mandated that every lease entered _ 4

2 PHA include a provision permitting = .

tenancy when “a awe housing cemango ao ovate

» tenant's household, or any guest OF ' |

ean tenant's control” engaged - —s

criminal activity on or near public housing premises.

In mandating this lease provision and wsyte 3 al

ing additional diseretion to local housing Scents

Congress used ——— wy er ea A -

based on reasonable findings that sue o~ oe

essary and would be effective. The hes ;

reer ‘reads into this statute ote oe yo Be

legislative branch rejected. Nothing in the oman

prohibits the government from eae - “ne ne

lease provisions necessary to mal ie te “

structural soundness of its property. ager

drug-related crime not only leads to ore: a : —_

ings. and other forms of violence against enants,

aan 4 deterioration of the physical ———.

requires substantial government expen = age

42 U.S.C. § 1190114). Indeed, if the _apacmer ny sae

act as a landlord, the Constitution must perm!

as a prudent one.

boda

STANDARD OF REVIEW: CHEVRON DOCTRINE

Congress authorized a tenant's eviction from public

housing when that “tenant, any member of the tenant's

household, or any guest or other person under the

tenant's control” engages in “any drug-related criminal

activity, on or off such premises.” The question here

presented is whether this language permits local PHAs

to evict tenants who were ignorant of their household

members’ or guests’ drug use (“ignorant tenants”). The

answer to this question should be that it does permit

such evictions.

The Department of Housing and Urban Development

(HUD), the agency charged with administering public

housing, properly concluded that the statute did

authorize the eviction of ignorant tenants. 24 C.F.R.

§ 966.4(/)(1)(B); Public Housing Lease and Grievance

Procedures, 56 Fed. Reg. 51,560, 51,567 (October 11,

1991). If this interpretation is a “permissible construc-

tion of the statute,” then this court may not substitute

its own judgment fer that of HUD. Chevron U.S.A.

ine. v. Natural Res. Def. Council, Inc., 467 U.S. 837,

104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). Because the

statute is clear on its face, HUD’s interpretation is the

only permissible construction of the statute.

The majority points out that the statute is silent on

the question of a tenant’s required knowledge. This

alters the relevant inquiry only slightly. The majority

must explain why the regulation that tracks the precise

language of the statute is not reasonable. /d. at 844, 104

S. Ct. 2778. In short, whether one accepts our con-

tention that the statutory language is clear or the ma-

jority’s argument that the language is silent, appli-

cation of the Chevron test to the present controversy

34a

i ’s lation per-

leads to the same conclusion. HUD a A ol

mitting the eviction of ignorant tenants = s pc rea

hold members or guests engaged in « 1d beng

j 4 . y ye x.

riminal activity on or off public housing p

c *

valid and enforceable.

wn a by

jority avoids the dictates of Chevron be

Pl pape Meet had an intention — hap ——

‘tion at issue that is contrary to HU Y's ¢ a

von” M i Op. at 1119. The majority s evidence, 0

a i bee oP insufficient to support this ef a

We vil discuss the evidence in greater detail c' n

a band here the gap between what the ry dl

yorts to prove and what it has in fact ten n. et

| h majority, the language of t! e wt oe

a Maj Op. at 1120.’ The legislative his

ie ae majority is equally ambiguous. It ype!

soa ‘ly wrovides discretion to local A gh ve

sacar, Gh that discretion should be exercised. is

well established that legislative history which does n

yi am ‘ te a clear and certain gc orang

peony the basis for enjoining regulations. a oe

yoo te 500 U.S. 173, 189-190, 111 S. Ct. 1759,

L.Ed.2d 233 (1991).

an ane te TT ,

The remainder of the majority s a em

‘ ment flows from its holding that pe oe pee

oviat! f ignorant tenants is “unreasona

shoud This holding, however, is directly contrary to

baat interpretation of the statute. In ~ a og

stance, this court should defer to HUD ¥ —— .

is HUD, after all, that has experience and expe

,

,. . ppl . 1 am iguou .

no room for construction.

520 U.S. 1, 8, 117 S. Ct.

(quoting United States v. Wiltberger, 18 U.S. (5 Wheat.)

76, 95-96, 5 L.Ed.

Statute authorize

tenant, any mem

guest or other

engages in “any drug related crimi

majority reads into this statute th

the tenant must be able to “re

35a

the management of public ho

this court, that can best d

in the context of the public

using. It is HUD, and not

etermine what is reasonable

housing drug crisis.

If the majority believes HUD’s construction of the

statute is unconstitutional, it should Say so. This court

must step in when other branches of government

exceed their constitutional authority. However, when

this court rewrites legislative enactments and ignores

the considered judgment of executive agencies—based

on nothing more than the majority's understanding of

what is “reasonable” or “absurd” —it is this court that

has overstepped its constitutional limits.

DISCUSSION

I. The Language, Legislative History, and Statu-

tory Context of 42 U.S.C. § 1437d(/ (6) All Show

that The Eviction Provision Applies to Ignorant

Tenants.

A. The Plain La nguage of the Statute Authorizes

the Eviction of Ignorant Tenants Under

42 U.S.C. § 1437(A)(V)(6)

“Where there is no ambiguity in the words, there is

” United States v. Gonzales,

1032, 137 L.Ed.2d 132 (1997)

37 (1820)). In the present case, the

S eviction when a “public housing

ber of the tenant’s household, or any

person under the tenant’s control”

nal activity.” The

e requirement that

alistically exercise

36a

control” over a household member or vag wo Ae

eviction proceedings may begin. We do ge ”

statute includes such a requirement. engl

obvious reading of the statute is to the contrary.

. - categories of

Under § 1487d(/)(6) there ar e foun ee “

individuals whose drug related -peoaanpapstiy Aechd

‘ty will result in the tenants

ic sing property will result

near public housing p u poy tae Panag sc

ict ‘irs nant is responsible ‘

eviction. First, the te is] irordenrasled

se. Second, criminal drug activity y the

own drug use. Second, Sayan Aen ety

; is caus rmination.

’s mbers is cause for te atic

tenant’s household me adheyseaye :

Third the tenant’s guests may not engage In vege

drug activity.’ Fourth, criminal drug activity yo ae

persons under the tenant's control is also cause

eviction.

. ste © « ts

The structure of the statute suggests that ——

household members, and guests are per nobnwe-ped —

tenant's control and, therefore, the drug re a ape a

nal activity of anyone in one of these categories is _ :

for eviction. The tenant exercises “control — pe

' ‘mits to reside

individuals w r she permits them 0

individuals when he o e} | " “rs

visit the premises. No additional level of “control ta

, isjunctive connector

sary. C ‘ess's use of the disjunctive )

necessary. Congress s eg cocetend

F hrase “other person S|

“or” followed by the p ; eee ~

intended a fourth category of “other persons who on

not fall into the three enumerated er, “

whose drug activity could nevertheless result

eviction.

2 HUD defines “members of the household” as those ey

who are listed as such by name on the lease. 24 C.F.R.

> HHH.4(a)(2). | ia

Ta defines a “guest” as “a person in the — 1. with

| | : ~~. * LD ars

the consent of a household member.” 24 C.F.R. § 966.4(d)(1)

37a

The majority’s reading of the statute requires that

the drug user fall into two of the categories—a drug

user must be both a household member/guest and

under the tenant’s control. See Maj. Op. at 1119-20.

But, the statute does not say this. The majority’s

reading renders the enumerated categories (tenants,

household members, guests) superfluous. “We read

[the statute] with the assumption that Congress in-

tended each of its terms to have meaning. ‘Judges

should hesitate . . . to treat las surplusage] statutory

terms in any setting. . . .’” Bailey v. United States,

516 U.S. 137, 145, 116 S. Ct. 501, 133 L.Ed.2d 472 (1995)

(quoting Ratzlaf v. United States, 510 U.S. 135, 140-

141, 114S. Ct. 655, 126 L.Ed.2d 615 (1994)).

The majority justifies its tortured reading of the

statute on the grounds that enforcement of the plain

language of § 1437d(/)(6) would lead to absurd results.

Specifically, both the district court and the majority

note that the statute contains neither temporal nor

geographic limitations on the drug related criminal

activity. Therefore, a tenant could be evicted if that

tenant’s guest used drugs “five years earlier on the

other side of the country.” ‘The district court reasoned

that the possibility of any absurd result (even one not

presented by the actual controversy) rendered the

statutory language ambiguous.

This approach is untenable. It would permit the

judiciary to nullify any legislative act amenal le to a

single absurd hypothetical construction, This approach

is inconsistent with the traditional role of a court to

adjudicate the specific controversy before it and to

avoid speculative and general pronouncements. The

Supreme Court has repeatedly rejected judicial review

38a

of hypothetical applications of statutory language. FCC

v. Pacifica, 438 U.S. 726, 743, 98 S. Ct. 3026, 57 L.Ed.2d

1073 (1978) (“We will not now pass upon the consti-

tutionality of these regulations by envisioning the most

extreme applications conceivable, [citation omitted] but

will deal with those problems if and when they arise.”);

Lindsey v. Normet, 405 U.S. 56, 65, 92 S. Ct. 862, 31

L.Ed.2d 36 (1972) (“{PJossible infirmity in other situa-

tions does not render [a statute] invalid on its face.”);

Allen-Bradley Local No. 1111, United Electrical,

Radio and Machine Workers of America v. Wisconsin

Employment Relations Board, 315 U.S. 740, 746, 62 S.

Ct. 820, 86 L.Ed. 1154 (1942) (court will not “assume in

advance that a State will so construe its law as to”

make it unenforceable). The issue before the court is

not whether Congress legislated a temporal nexus

between the guest’s drug-related criminal activity and

the eviction.’ This court must limit its review to the

controversy actually presented.

The Supreme Court, in Atlantic Mut. Ins. Co. v.

Comm’r of Internal Revenue, 523 U.S. 382, 118 S. Ct.

1413, 140 L.Ed.2d 542 (1998), was asked to determine

the meaning of the term “reserve strengthening” as

used in the 1986 Tax Reform Act. Petitioner contended

that the agency interpretation of the term was unrea-

sonable because “in theory, it produces absurd results.”

Atlantic Mut. Ins. Co., 523 U.S. at 389, 118 S. Ct. 1413.

In support of this position, petitioner presented to the

court a hypothetical example where application of the

agency definition would result in manifest error. The

4 Were that the issue, we might be required to analyze this case

under the second prong of the Chevron doctrine ( i.e. determine if

HUD’s interpretation of this provision is reasonable).

39a

C

ourt refused to find the agency interpretation unrea-

sonable. /d. at 390, 118 S. Ct. 1413. It held that, despite

the possibility of futur

' e erro ,

of the statute should euiteah : the agency interpretation

Pte y: _ the plain meaning of the statute is not

pr 7 fact, as we discuss below, see infra, the

ecu » gperner tenants whose guests engage in

ae = ae activity is supported by a

ya lonale based on sound public policy. It is

wo: we we - oe the statute as it was written even

pe wlge edgling] the reality that the reach of

€ often exceeds the precise evil to be eliminated »

Brogan v. United State

805, 139 L-Ed.2d 830 (1998) > 8? 40% 118 S. Ct.

We assume the legislati

gislative purpose is ex

4 ordinary meaning of the words used oo =

ge Co. v. Patterson, 456 U.S. 63 68, 102 S.Ct.

pn L.Ed.2d 748 (1982). The statute says “dru

oe criminal activity . . . engaged in by a blie

ee este — any member of the tenant’s honasheld

ye a ride — eae under the tenant’s control,

a ermination of tena ‘3

hen ' In ney.

omen y boone that in writing this language, Ran

akin’ y that drug related criminal] activity en-

toa y any person under the tenant’s control shall

pine or termination of tenancy. There is sim l

pport in the language for this interpretation. fie

40a

B. Related Statutory Provisions and ne ey “800

. History Reveal Congressional Intent to Omi

an Innocent Tenant Defense

1. Related Statutory Provisions

-ovisions further reinforce

79 related statutory provisio —

Ps aahelie that § 1437d(/ )(6) authorizes = erm

of public housing tenants who are ignoran

guests’ drug-related criminal behavior.

a. 42 U.S.C. § 14387d()4G)AMIY

* 42 U.S.C. § 1437d(c) ane a

(4) the public housing agency shall ooney Se ae -

dures and requirements as the Secretary -- Byer encetw

pena hat sound management practices wi aaa

saapoiin tt of the project, including requirements pet

; ;

se i i a which—

(A) the establishment of tenant selection criteria W hi

= , Pie,

(i) give preference to families that —_ ny

| i ilies that < omeless

standard housing (including families that — cone Aad

i ‘ing in a shelter for homeless families), are pay ng oe

as cael of family income for rent, or are invo }

. £

this chapter.

we amily evicted from

iii) prohibit any individual or famit lated

h we ‘ ‘anananel under the chapter m Aron at ioge

viminal activity from having a preference pian ar 8 onl

prone of this subparagraph for ’ ewe ; ms , va a schos stan-

- may waive the application of this clause - eacheanced

‘lards established by the Secretary (which shall include « been

dards ve oo of a family of an individual prohibited ane

vations yore : this clause who the agency determines yer <

pga part teers in and had no knowledge of such crimina

did no

activity . . .). (emphasis added)

4la

42 U.S.C. § 1437d(c)(4)(A), as it stood through 1996,

mandated that PHAs fulfill three independent duties.

First, under subsection (i), PHAs were required to

allocate available housing units based on congression-

ally determined “preferences.” Preferences were

given, for example, to the homeless, to those paying

more than 50% of their income in rent, and to those who

had recently been displaced from housing.

Second, under § 1437d(c)(4)(A (iii), an individual or

family otherwise eligible for preferential placement in

available housing was disqualified from receiving a

preference for a period of three years if evicted from

public housing because of drug-related criminal

activity.

Finally, the final clause of § 1437d(c)(4)(A)(iii) specifi-

cally required that local PHAs waive the three year

disqualification period for those individuals who

“clearly did not participate in and had no knowledge of

such criminal activity.” These provisions 1) established

preferential tenant selection criteria; 2) disqualified

those evicted because of drug activity from the estab-

lished preferences for a period of three years; and 3)

exempted from disqualification those evicted who

“clearly did not participate in and had no knowledge of

the criminal activity.”

Thus, the Statutory mandate imposed by

$ 1437d(c)(4)(A) required PHAs to differentiate two

classes of tenants evicted from public housing for drug-

related criminal activity. The first class, to repeat,

consisted of those who participated in or had knowledge

of the criminal activity. These individuals were dis-

qualified from preferential placement in available public

housing units for a period of three years. The second

42a

class consisted of those individuals evicted for drug:

related criminal activity who did not participate in or

have knowledge of that activity. These individuals

were eligible to receive preferential treatment if they

satisfied one of the other criteria listed in

§ 1437d(c)(4)( AD).

The distinction, between evicted tenants who “par-

ticipated in” or “had knowledge of” drug-related crimi-

nal activity and those who did not have such know!l-

makes sense only if an ignorant public housing

tenant could be evicted for the drug-related criminal

activity of their household members or guests. Were

that not so, there would have been no need for Con-

pecifically waiving the

hibition period to the

edge,

gress to write a statute s

applicability of the three-year pro

ignorant tenant.

b. 21 U.S.C. § 881(a)(7) (“Forfeiture Statute”)

This statute, 21 U.S.C. § 881(a)(7), also supports a

uage interpretation of § 1437d(/)(6). It isa

es leasehold interests

mit drug-related

crimes.” 21 U.S.C. § 881(a)(7) was amended con-

plain lang

civil forfeiture statute that mak

subject to forfeiture when used to com

6 21 U.S.C. § 881(a)(7) provides:

The following shall be subject to forfeiture to the United

States and no property right shall exist in them:

(7) All real property, including any right, title, and interest

d interest) in the whole of any lot or

es or improvements, which is

rt, to commit,

or to facilitate the commission of, a violation of this subchapter

shable by more than one year’s imprisonment, except that

roperty shall be forfeited under this paragraph, to the

(including any leasehol

tract of land and any appurtenanc

used, or intended to be used, in any manner or pa

puni

no p

43a

currently with the passa

| ge of § 1437d(/\(6)

pede ern Abuse Act of 1988. ection Shenae

| pee really includes a knowledge requirement. Und

oe mt Prperty otherwise subject to forfeiture ma wd

a . ; tps —— that the property Ao

-related crimi ivity “wi

knowledge or consent of ~ no nea readies

The canons of Statutory inter

; pretation ide:

Pa mage a includes particular ichiniate te om

orgy r - atute but omits it in another section of the

ae ae A ened presumed that Congress acts

— y purposely in the disparate inclusion

- oo ae v. United States, 464 U.S. 16. 23 104

v. Wong K im rue ’ ey may . — —

, : q t

a, apa rary that forfeitures ~ —

oo, ‘S.C. § 881(a\(7) were to function

en y rom evictions under 42 U.S.C. § 1437d(1)\(6)

feoutien different regimes to govern the two

oo ally, Congress recognized that the forfeiture

orl enna the government to seize property

nnn ow 1ding any procedural protections to the

roe he property. 134 Cong. Rec. E1965-02 (1988)

pea — rather than eviction “cut(s] through the

dealers that they would be evicted ag tenn arts

icted and then battli

~~ or yr nang for years, before te por

th name ing to the lack of procedural pro-

» Vongress recognized that additional substan-

extent of an interest of

en ' an owner, by reas

a on of an

= a he = eee by that owner to have been robe Roce >

t the knowledge or consent of that owner a

44a

tive protections are needed to prevent the use of this

weapon against undeserving parties.

Similarly, in a 1989 emergency supplemental appro-

priations measure, Congress directed the Secretary of

HUD to issue waivers of certain administrative griev-

ance procedures “as long as evictions of a household

member involved in drug-related criminal activity shall

not affect the right of any other household member who

is not involved in such activity to continue tenancy.”

Dire Emergency Supplemental Appropriations and

Transfers, Pub. L. No. 101-45, § 404, 108 Stat. 97 (1989).

This measure, like the forfeiture statute, permits the

taking of property without any pre-deprivation proce-

dural protection. Congress, therefore, included a

substantive protection for ignorant tenants. A similar

substantive right, however, was not provided to

tenants who received the full procedural protections

offered by HUD and local PHAs.

Thus, the “innocent” owner exception in both

21 U.S.C. § 881(a\(7) and Pub. L. No. 101-45, § 404

reflected distinctly different congressional judgments

about the proper tradeoff between procedural and

substantive protections. Owners were provided sub-

stantive protections not available to tenants. Congress

concluded that the forfeiture statute should not be

applied to owners who did not know of or consent to the

illegal use of their property. However, Congress did

not afford innocent tenants the same protection.

Congress determined that local PHAs should have

greater discretion to evict than federal agents have to

seize property of innocent owners used in drug-related

criminal activity.

45a

2. Legislative History

Pcs. omnia’ the plain language of the statute

pom 'y = y next examines the scant legislative his

pein ne 6). This endeavor is both suaeneen

—_ ee Official legislative history sauide

oe entirely of a single statement in a 1990 Se -

port. The report reads in pertinent part: _

The committee antici

itte ipates that i

Judged on its individual merits mt wa oll it

= : — of humane judgment by the PHA and

a icon court. For example, eviction would

nie at appropriate course if the tenant had

gtr oe of the criminal activities of his/her nenthare

phon en reasonable steps under the ci

to prevent the activity. _

S. Rep. No. 101-316, at 179

much of this statement. oe pete ao

is ste The governme

the committee’s deference to the p_.

e

judgment,” while the tenants rely on the suggestion

is used and

enn ori to determining meaning of statuto

— nore ae ~ 7 declared purpose of the United States

aa oe in local public housing agencies

ount of responsibility in the admini-

Stration of their housing programs.” 42 U S.C. § 1437

46a

. f . by . .

e )

the

ing floor debate on the measure, — ee eee

aceen of Representatives comments -e HUD’s and

rovision as an “additional tool to poser de to deal

the Nation’s public housing a eine ” 134 Cong.

‘th the problem of drugs In pu

= 33.148 (1988) (statement of Rep. Wylie).

xt of an unambiguous —

declaration of policy, and its consistent vee enone -

throughout the Act, the Senate commit ara wale

rts the proposition that Congress intended ee

oe | housing authorities with wide ee

sommes connected with drug-related = np

By permitting the eviction of eee ee

knowledgeable tenants, Congress ~ e naaiegiy oA

t of local officials who would poset sce ano

pert understanding = ae ——

- estion by the c tee é

iain pesos bye mee not be appropriate 1s properly

ion. The language is preca-

: as just that—a suggestion. I :

a ond the “humane judgment” of the local agencie

should control.

Read in the conte

aH” 1. eaiies

7 This policy judgment 1s

authorities, for example, have the —_ —

sublic housing needs in their commun y.

34 42 US.C.$ 1437d(c) 4) A).

ted throughout the Act. Local

nsibility to determine the

S.C. § 1437ele). See

47a

3. Congress Failed to Amend § 1437d(1)(6) to Include

an Innocent Owner Defense.

Congressional treatment of § 1437d(/)(6) since its

initial passage in 1988 makes clear that Congress meant

what it said. Long before this litigation began, concerns

about the eviction provision’s applicability to ignorant

tenants were expressed. In a 1989 congressional

hearing, for example, the associate director of the

American Civil Liberties Union (ACLU) argued that

“PHAs should be restrained from imposing the sanction

of eviction unless they can prove that a tenant had

knowledge and actual control over the actions of a

household member or third party.” Drugs in Federally

Assisted Housing: Hearings on S.566 Before the

Subcomm. on Housing and Urban Affairs of the Senate

Comm. on Banking, Housing, and Urban Affairs,

S. Doe. No. 101-234, at 90-91 (1989). In that hearing,

the ACLU brought to the attention of the committee

several instances where ignorant tenants were sub-

jected to eviction proceedings. S. Doc. No. 101-234, at

86-87; Davidson, Public Housing Aides Push to Evict

Drug Users, Sometimes Violating the Rights of other

Tenants, Wall St. J., Jul. 6, 1989 at Al2. Congress did

not respond favorably. Subsequent to this hearing,

Congress amended the eviction provision, but failed to

include an innocent owner exception. National Afford-

able Housing Act, Pub. L. 101-625, § 504, 104 Stat. 4079

(1990) (substituting provisions relating to criminal

activity threatening health, safety or peaceful enjoy-

ment of other tenants for provisions relating to criminal

activity generally).

Likewise, as part of the notice and comment proce-

dure necessary for implementing its regulations, HUD

48a

received substantial criticism of the applicability of

$ 1437d(1\(6) to ignorant tenants. “Comment by legal

aid and by tenant organizations . . . alleges that the

tenant should not be responsible if the criminal activity

is beyond the tenant’s control, if the tenant did not

know or have reason to foresee the criminal conduct,

_ or if the tenant has done everything “reasonable”

to control the criminal activity.” 56 Fed. Reg. at 51,566

(1991). HUD nevertheless interpreted § 1437d(/)(6) to

grant discretion to PHAs to evict ignorant tenants.

56 Fed. Reg. at 51,567.

Subsequent to these comments and subsequent to

implementation of the HUD regulations, Congress once

more amended the eviction statute—and again failed to

include an innocent owner exemption.” These inactions

of Congress are highly significant. “As a matter of

statutory construction, we ‘presume that Congress is

knowledgeable about existing law pertinent to the

legislation it enacts.’” United States v. Hunter, 101

F.3d 82, 85 (9th Cir. 1996) (quoting Goodyear Atomic

Corp. v. Miller, 486 U.S. 174, 184-185, 108 S, Ct. 1704,

100 L.Ed.2d 158 (1988)). In Hunter, this court pre-

sumed Congress was aware of judicial decisions inter-

preting a criminal statute when it amended that statute

many years after its initial passage. “Accordingly, the

only reasonable interpretation of Congress omission of

language . . . is that Congress intended [the judicial

interpretation to control].” Hunter, 101 F.3d at 85.

* In fact, in the 1996 amendment to § 1437d(/)(6), Congress

expanded the provision such that an ignorant tenant could be

evicted for drug-related criminal activity that took place “on or

off” public housing premises, rather than simply “on or near” the

premises as the legislation had previously read. Pub. L. No, 104-

120, § %ay(2), 110 Stat. 836 (1996).

49a

Likewise, in this ins are

; tance, Congress was aw

. . .

+ annie agency charged with ielieeeae

10N provision construed it to permit eviction f

gnorant tenants. . This interpretation had been chal

q .

Stn ae itself has shown its concern for

tenants by protecting them with specific

Congress, however,

ignorant tenants when it amended §

1437d

This court does not have the power my cht

Statute. Congress clearly j

gre y intended si

tion of the eviction statute to prevail —

II. Section 1437a(/ 6

£ (6), Properly Interpreted

Not Conflict with 42 U.S.c. § 1437d0 (1) adhe

ing Public Housing Leas

sonable Terms and oer a

oan ena 1s part of a comprehensive pro-

at to egislative initiatives aimed at the public

4 “n oe See Anti-Drug Abuse Act of 1988

pi x ; ~690, $$ 5101-5105 (1988); Dire Emer.

es : as emental Appropriations and Transfers

; aaa 0. 101-45, § 404 (1989); 42 U.S C.

cX4\(A) (1990). The district court held that one

aspect of the legislative response was “unreasonable”

” 21 U.S.C. § 881(a

i x7 .

they did not know nor co : protects owners from forfeiture when

50a

because it was “on its face irrational.” The

majority opinion echoes this holding. Both the district

court and the majority misconceive the rationale behind

the law and ignore a considered policy judgment on the

part of Congress. Section 1437d(/)(6) permits, but does

not mandate, eviction for all tenants whose household

members or guests engage in drug-related criminal

activity. It grants discretion to PHAs to make this

determination on a case-by-case basis. This was a

reasonable decision on the part of Congress.

Local PHAs, it must be remembered, operate “with

tax funds provided from federal as well as from state

sources. The State has appropriate and para-

mount interest and concern in seeing and assuring that

the intended and proper objects of that tax-produced

assistance are the ones who benefit from the aid it

dispenses.” Wyman v. James, 400 U.S. 309, 318-19, 91

S. Ct. 381, 27 L.Ed.2d 408 (1971). The district court

properly defined a reasonable lease term:

The lease term must be rationally related to a

legitimate housing purpose. In applying this term,

the crucible of reasonableness will be defined by the

particular problems and concern confronting the

local housing authority. Lease provisions which are

arbitrary and capricious, or excessively overbroad

or under-inclusive, will be invalidated.

citing Richmond Tenants Org., Inc. v. Richmond Rede-

velopment and Hous. Auth., 751 F. Supp. 1204, 1205-06

(E.D. Va. 1990).

Congress confronted two interrelated problems when

it passed § 1437d(/)(6) permitting the eviction of igno-

rant tenants. First, it faced increasing drug related

5la

crime in the nation’s public housi

sing. Ample testi

oe ppt demonstrated that , pang

ae a public housing complexes unsafe and. in

stances, unlivable. 42 U.S.C. §

} , ».C. § 11

now. dealers are increasingly imposing a ie a

a on public and other federally assisted low incom

oa ning tenants. )" Second, Congress was cunbented

ro Me and understandable reluctance on the

- roe gt — tenants to cooperate with efforts

of lo S to address the dru .

inability to get pushers yb engl

out of the buildi

enough has caused tenant > aoa

ants to think the Housi

ra ¥ hep ae against them rather then

t . * Vong. Kec. E1965-02 (June 1

oc authorities were increasingly seen tn Paco

gers” unable or unwilling to take decisive Galen

against dru .

£1966-02 & use in public housing. 134 Cong. Ree. at

aa baring tenant eviction provision rationally

ae of these concerns. The power to evict

ee ng tenant provides the PHA with a credible

mane vedetar ee To require proof of

Ww part o e tenant of the crimi

ac j

7 aan . a guest is impractical. Proper a cr

seldom, if ever, discover the tenant seated with

One resident

> res of public housi ss ;

the following terms. P using described living conditions in

“At . ,

oa Renposod — people are trying to rest, hallways are bein

pr fethiprine.. beer stairwells are being slept in Gateies

¢ with people using them ,

rooms. . . . There is crack being sold ony" for personal bath-

Just Sayi

aying No is not Enough: HUD’s Inadequate Response to

the Drug Crisis i

(1988). 8 in Public Housing, H.R. Rep. No. 100-702, at 4

52a

the drug using guest or while the latter engaged in

other drug-related criminal acts. Absent this rare

factual situation, the housing authority would be forced

to rely on evidence consisting of hearsay, gossip and

rumor. Moreover, the lengthy public housing eviction

procedure permits a culpable tenant to intimidate or

threaten potential witnesses. “When suspected drug

dealers were notified that eviction proceedings against

them had been started, they sought to punish tenants

who might have identified them.” 134 Cong. Ree.

E1965-02. These tactics against housing tenants have

furthered the public housing drug epidemic.

In this case, for example, members of plaintiffs’

household engaged in drug-related criminal activity

outside the tenant’s apartment." Since the tenant was

not with the drug-user at the time of detection, evi-

dence that the tenant knew of the drug related criminal

activity must come from either the tenant, the drug

user, or other residents. Only the latter, if available,

would be a reliable source of such information. For

obvious reasons, PHAs will rarely secure statements

from either the drug user or the tenant.

Based on substantial and credible evidence, Congress

concluded that other residents were equally unlikely to

present the necessary testimony. “Tenants are

frightened. They are seared for themselves and their

children. They are afraid to report drug incidents to

the PHA management and to the police because usually

nothing is done by either agency.” The Drug Problem

and Public Housing: Hearings Before the House Select

\! Mr. Walker’s guest was found in possession of drugs inside of

Walker's apartment.

53a

ger “ Narcotics Abuse and Control, H.R. Rep. N

aoe > “sd mor (1989) (summary of testimony of N soe

~ aoe ‘ — State of Connecticut Task oe

pa Acta a ane “The fear of retaliation

it al 0 provide nor

protection.” H.R. Rep. No. 101-1019, at 69 mace nc

- testimony of Vincent

ie Lane, Chairman, Chicago Housing

RB ,

3 pee PHAs the authority to evict tenants

pavers eae ,- tenant knew of the drug-related

ray y, Vongress passed reasonable legisla-

ee 7) msg these well-documented obsta-

eae a aw enforcement. Residents of public

resi te oer by § 1437d(1)(6) to monitor and

ol = ivity without fearing the possibility of

ae ae 2 will reduce the need for residents to

pense then e ag in court in order to prove the

secure their ‘sto toe map Pe

preter _! nts realize

ae ge age _— a de ¢ tay

ton, e achie

victory.” 134 Cong. Ree. 1906-08 cortichs he cy

Emmanuel P. Popolizi

4 1 , j .

Housing Authority). 10, Chairman, New York City

Much of the public housin

lic g drug eradicati

sais ies at obtaining the cooperation peo 9. eae

ie _— tenants. HUD Secretary Jack “aa f .

= rego on that PHAs establish ro aha

monly rug <¢ otlines “so that residents can ame

aap 4 He rug activity in their area.” H.R. R 4

- 101-1019, at 64 (testimony of Jack Kemp, Reaetene

‘of HU

o%~ HUD). Like the anonymous hotline, § 1437d(/)(6)

was

a reasonable response to the legitimate housing

4a

. rug-

bjective of reestablishing a a -

ridden public housing units. Mayot ny ate subcom-

ride mf lria, Virginia argued before a Sena e subc me

<n e" eviction provision was critical to shi

aie g pound 7 control back to the tenant en

[ing | a sense © unities.” Drugs in Federally Assis oe

ee - ter on S. 566 Before the Subcom m. 7

ae ee 1 iyeen Affairs of the Senate ( ie. 10.

rt Housing, and Urban Affairs, S. Doc.

234, at 27 (1989).

novia! ‘mitting the eviction of

ee eee oo Gh . coaaien of —

me members or guests is a neti ene

aes able yrovision in leases between priv - min

enforcea »P oh thats tenants. Shepard v. ye, "

ee 249 P. 381 (1926) (eviction upheld - th

ware. stein nelthen knew of nor consented to hoe

— 7 tivity engaged in by sublessee),; Min a 999)

cron | — Auth. vr. Lor, 591 N.W.2d 700, — t act

rae rie: form of contract. Unambiguous amen

—— oh be given its plain and ordinary —e

par prota enforced by courts oe 4 neg ~ son

and s es ; 56 Fed. Reg. at ol,

harsh.” te ; (Tan aa - PHA or other landlord to

pe aero relating to acts of unit ree Th

enforce ¢ al and ordinary incident of tenancy.

Is a angen be 4 iotmeumea of these provisions among

own sattien attests to their reasonableness.

. .

ies is particular

The fact that one of the parties to os este mpd

lease was a government agency does no

da

otherwise prudent provision unreasonable." F're-

quently, governments impose liability on individuals

without requiring that the individual had actual

knowledge of the wrongdoing. See Conn. Gen. Stat.

§ 52-572 ( imposing tort liability on “ignorant” parents

for actions of their children); 42 U.S.C. § 9607 (property

owner liable for environmental cleanup when waste was

legally deposited by a previous owner without current

owner’s knowledge or consent).

Thus, it must be acknowledged that the congressional]

imposition of liability without fault on individuals is not,

per se, unreasonable. Such liability, furthermore, is

frequently negotiated between private landlords and

tenants. Congress, by enacting § 1437d(1)(6), deter-

mined that the safety and security of public housing

tenants justified the potential eviction of ignorant

tenants. Housing Lease and Grievance Procedy res, 56

Fed. Reg. at 51,567 (“Congress has determined that

drug crime and criminal threats by public housing

household members are a special danger to the security

and general benefit of public housing residents war-

ranting special mention in the law.”) This determination

Was entirely reasonable.

‘* Whether the lease provision is “reasonable” within the mean-

ing of § 1437d(1\(1) is # separate question from whether the

constitution permits the government to include it in every public

housing lease. We deal with the constitutional questions below.

6a

III. The Constitution Does Not Prohibit erm one:

| of Ignorant Tenants from Federally Su

Housing.

' :_

Section 1437d(/)(6) is not gegen he ae,

tution. In evicting Walker, Lee ant ppelllenathe

actions of their household members = - An hee

Oakland Housing Authority was —s c Ae oo

terminate tenancy because of a vie a bronfy

As noted above, this is not an unusual provisl i...

fact that the landlord in this case = a Gas

agency should not transform an otherwis

ovietinn into a constitutional question.

A. Constitutional Doubt

The majority does not reach the ne ae

raised by the tenants in this aan ve me instead

doctrine of “constitutional doubt, tiny ated The

imposes its own construction on ns loctrine. “The

majority, however, has malsappnee ¢ a yply mechani-

‘constitutional doubt’ doctrine does os a} incl pr ae

cally whenever there arises a significant co alenee ©

os n the answer to which is not ol go

y rene rez-Torres v. United States, 528 a a .

118 S, Ct. 1219, 140 L.Ed.2d 350 a “; ae

to be applied only proce 9 oe i: done io 8

ons

nearicon teslthend” that the statute will be held uncon-

: ” e OHA has

In an exercise of its “humane an re th

” P a . ‘ . . . c er.

decided not to seek the eviction of plaintiff Ru vine tacalialee

“Were we dealing with the same lease syre [eviction] in

re 7 rmec e

, we could have affi 4 ete

‘tween private parties ovision.” Hous.

a hort pemuavea relying solely on the lease provi

one s .

Hd2, 555 (Li 1995).

ak 357 So.2d 552, 555 (La. App.

Auth. of New Orleans v. Green, 657 50.24

57a

stitutional. /d. at 238, 118 S. Ct. 1219; United States v.

Jin Fuey Moy, 241 U.S. 394, 401, 36 S. Ct. 658, 60 L.Ed.

1061 (1916) (Holmes, J.) (statute must be construed so

as to avoid “grave doubts” as to its constitutionality).

We have already articulated the reasons we do not

believe the statute is susceptible to multiple interpre-

tations. We would also hold that the statute, as written

by Congress and implemented by HUD, is consti-

tutional.

B. Due Process

Government plays many parts. When it acts in one of

its many proprietary roles (employer, purchaser, or

landlord, to name a few), it must be able to enforce

reasonable and germane conditions. National Endow-

ment for the Arts v. Finley, 524 U.S. 569, 587-588, 118 S.

Ct. 2168, 141 L.Ed.2d 500 ( 1998) ( “[T]he Government

may allocate competitive funding according to criteria

that would be impermissible were direct regulation

- Ora criminal penalty at stake.”) A government em-

ployer, for example, may impose restraints on employee

speech that would violate the First Amendment if

imposed on an ordinary citizen. Pickering v. Bd. of

Educ. Of Township High School Dist. 205, Will County,

lilinois, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L.Ed.2d

811 (1968) (applying intermediate rather than strict

scrutiny to dismissal of public school teacher for

exercising First Amendment rights). Likewise, when

the government acts to subsidize a purchase of certain

services but not others, there may be no constitutional

implications. Maher v. Roe, 432 U.S. 464, 475, 97 S. Ct.

2376, 53 L.Ed.2d 484 ( 1977) (subsidizing childbirth, but

not abortion “does not interfere” with a fundamental

right, but merely “encourages” childbirth).

5Sa

4 . the

lic housing complex,

managing a pub r or

y pend role is not unlike that of an — rel

punehanet. The constitution does ryt a a= the

wenumnatt to provide decent . _ ~— hed _

' os . 4,$ - Ut. :

ve . , nidset , 405 U.S. at 7 ’ . a

ey een guarantee of access pepo ve

cons e

pustienten quality.”) The rights pros ae “ arise from

Act of 1937 and its subsequent amen cr ponte meot

-ongressional notions of sound policy no ie ‘Congress

necessity. In furtherance of eet fixing the

eam el siderable flexibility

| be accorded consi as ly.

emit rules with which beneficiaries must comply

In this case, Congress has limited the on to orm

me . blic housing to those individuals who agr inal

: oa responsibility for the set ptr peat 8

nctivit of their household members -_ rhs bensllt

— / to PHAs the authority to withdraw this =

omega who will not or cannot prevent their ponet

— posal one in such activity. So long 1 vee tps

in is relevant to the government $ oe Nollan

as a landlord, it is constitutionally — _ 107 S. Ct.

». Cal. Coastal Comm'n, 485 U.S. 825, “— suppese be

3141, 97 L.Ed.2d 677 (1987) (if government it is

sufficient to justify outright ee ete fit). See also

sufficient to justify conditions on that my Ct. 1153, 25

Dandridge yp. Williams, 397 U.S. 471, 90 5. Ut

L.Ed.2d 491 (1970).

In Lyng v. Int'l Union, United o a Ss

a lement Workers’ O me 7 ad

AAW), a U.S. 360, 108 S. Ct. 1 18, 0 L.Ed 360

, the de

Supreme Court uphel =

od mein asin household because ts on cnr oa

of that household was on strike. Like t

59a

present case, the appellees in UAW argued that the

statute unconstitutionally burdened the right to

association because it “impermissibly directs the onus

of the striker’s actions against the rest of the family.”

UAW, 485 U.S. at 363, 108 S. Ct. 1184.

The denial of food stamps undoubtedly imposed a

hardship on “innocent” family members. So long as

non-striking family members continued to share their

household with a striker, they were prohibited from

enjoying a government benefit to which they were

otherwise entitled. Although the Court recognized that

associational rights were implicated by the food stamp

statute, it held that the “withdrawal of a government

benefit” did not pose a significant danger to the exer-

cise of that constitutional right. /d. at 367 n.5, 108 S. Ct.

1184.

In UAW, the Court also acknowledged that the

means used by Congress in addressing this objective

were imperfect because the “statute works at least

some discrimination against strikers and their house-

holds.” Jd. at 371-72, 108 S. Ct. 1184 (“in terms of the

scope and extent of their ineligibility for food stamps,

§ 109 is harder on strikers than voluntary quitters.”)

Nevertheless, the Court deferred to the congressional

view of “what constitutes wise economic or social

policy” and upheld the statute. /d. at 372, 108 S. Ct.

1184 (quoting Dandridge v. Williams, 397 U.S. at 486,

9) S. Ct. 1153.)

Similarly, in Lipscomb v. Simmons, 962 F.2d 1374

(9th Cir. 1992) (en bane), this court upheld a state’s

foster care funding scheme against a constitutional

challenge. The court noted that it must defer to the

legislatively determined allocation of scarce child care

60a

“Because Oregon has no affirmative obliga-

intiffs’ cise of a right to maintain

ee ee ies O00 governmental wre

cc, deine ap MN in

scomb, = eae ae no io function, a court wd

ogee ein such schemes on the basis of wenn -

~~ anne consequences in some individual yo

ae “1382 (quoting Califano v. Jobst, 434 U.S. . .

= S. C t 95, 54 L.Ed.2d 228 (1977)). ; oe

‘onted with 1 facial challenge to Utor’

perce st 4 eligibility, the Lipscomb —

eel to “only whether there Is a rationa ;

tage m viewed as a whole.” Id. paneer =" Y.

rm ae the potential for “unfavorable — ve

Se a individual plaintiffis],” the statutory sec i

my : stitutional because it was rationally ponerse o

a pam interest in “maximizing oo? =

a available” for the program as a W .

1380, 1381.

inter-

In this case, the government has ae pag a

Both reclaiming public housing from an ep os

: me and violence and ap :

ist 1 ort ar

public housing residents 7 = ~ eh “4

indisputably legitimate objec ; wonton

ore heowesn the knowing and ae

ant need survive only minimal scrutiny. /n

who may reside in federally subsidized housing, Con-

- distinctions “in order to make alloca-

gress must draw distinctions “in or¢ LAW, 485 U.S. at

f resources.

7. 1 ny See also Wyman v. Ja poe

US 509, O1 S.Ct, 381, 27 L.Ed.2d 408 (1971) (holding

iti ments

that the government may condition welfare pay

subsidies.

ests. :

of drug related cri

6la

on a recipients agreement to permit warrantless

homevisits by agency personne]).

Section 1437d(/)(6) facilitates the eviction of truly

culpable tenants, creates incentives for all tenants to

report drug-related criminal activity, and provides a

credible deterrent against criminal activity. Because

the eviction provision is discretionary, the provision

also motivates tenants to accept remedial actions short

of eviction. HUD, One Strike and Your Out Policy in

Public Housing, 8 (March 1996). The statute is,

therefore, rationally related to Congress’ legitimate

objectives. No more is required. Ohio Bureau of

Employment Servs. v. Hodory, 431 U.S. 471, 491, 97 S.

Ct. 1898, 52 L.Ed.2d 513 (1977) (statute that “provides

only rough justice is [nevertheless] far from

irrational.”)

The majority opinion ignores the discretionary

nature of the benefit at issue and instead focuses on the

property rights of those who currently reside in

federally subsidized housing. The majority finds “grave

doubt” as to the constitutionality of 1437d(/)(6) because

the statute authorizes eviction “without any relation-

ship to individual wrongdoing.” The majority’s analysis

flounders, however, because the Supreme Court has

repeatedly held that “the innocence of the owner of

property subject to forfeiture has almost uniformly

Even though the “one strike” policy was implemented eight

years after the passage of § 1437d(/)\(6) it still may offer a legiti-

mate rationale for the passage of the statute. Atonio v. Wards

Cove Packing Co., 10 F.3d 1485, 1494 (9th Cir. 1993) (“A rational

basis need not be one that actually motivated Congress. It is

enough that plausible reasons for Congress’ action exist.”

[citations omitted])

62a

been rejected as a defense.” Bennis v. Michigan, 516

U.S. 442, 449, 116 S. Ct. 994, 134 L.Ed.2d 68 (1996)

(quoting Calero-Toledo v. Pearson Yacht Leasing Co.,

416 U.S. 668, 683, 94S. Ct. 2080, 40 L.Ed.2d 452 (1974));

See also, J.W. Goldsmith, Jr. Grant Co. v. United

States, 254 U.S. 505, 41S. Ct. 189, 65 L.Ed. 376 (1921);

Van Oster v. Kansas, 272 U.S. 465, 47 S. Ct. 133, 71

L.Ed. 354 (1926).

The majority argues that this unbroken line of

authority is factually distinguishable from the present

case. Specifically, the majority hangs its constitutional

argument on the fact that two tenants face eviction for

drug related criminal activity that took place on public

housing premises but not in the tenant’s apartment.

This is a thin reed on which to hang “grave doubts” as

to the constitutionality of § 1437d(/)(6). The “cases

authorizing {forfeiture of the property of innocent

owners] are ‘too firmly fixed in the punitive and

remedial jurisprudence of the country to be now

displaced.” Bennis, 516 U.S. at 452, 116 S. Ct. 994.

(quoting Goldsmith-Grant, 254 U.S. at 511, 41 8S. Ct.

189). The facts of this case present no reason to create

a new constitutional rule. Those who engaged in drug-

related criminal activity were on the premises with the

consent of the tenants. No additional nexus among the

tenant, property, and the drug use is cons**tutionally

required.

C. Excessive Fines

The tenants’ contention that the lease provision

permitting eviction of ignorant tenants is an excessive

fine proscribed by the Eighth Amendment is without

63a

extracts payments, whether i ,

' n cash or in kind, ‘

wre ver-many for some offense.’” United pvr %

oe 524 U.S. 321, 328, 118 S. Ct. 2028 141

-Ed.2d 314 (1998) (quoting Austin y. United States

509 U.S. 602, 609

(1993)). “610, 113 S. Ct. 2801, 125 L.Ed.2d 488

The eviction of a tenant for violati

le eviction ¢ r violation of

provision is distinguishable from a cash ne

te poy Y | Eighth Amendment because it is not

payment directly j

payable to, the government.” /d. at 1976 mee Oy, and

Eviction from public] idi

mn fron y subsidized housing j -

able. Eviction is the return of a pessensery, steht to te

lb op. . °

peel, aor poser poe on not be required, nor excessive fines im-

nent nusual punishment inflicted.” U.S. Const.,

64a

original owner, the government. The government then

transfers the possessory right to another citizen under

the same conditions as it was held by the original

tenant. The purpose behind the excessive fines

clause—to limit the government’s power to enrich itself

by punishing its citizens—is absent in the case of

eviction from public housing. See Browning-Ferris

Industries of Vt. Inc. v. Kelco Disposal, Inc., 492 US.

257, 264-268, 109 S. Ct. 2909, 106 L.Ed.2d 219 (1989).

Evictiors cannot properly be characterized as “cash or

in kind payments” and should not be subject to exces-

sive fines analysis.

Moreover, evictions in these circumstances are not

punitive. They are remedial. A civil sanction is punitive

when it serves “either retributive or deterrent pur-

poses.” Austin, 509 U.S. at 610, 118 S. Ct. 2801.

Eviction serves the classic purpose of a contractual

remedy—it veturns the parties to “as good a position as

that occupied before the contract was made.”

Corbin on Contracts § 996. The remedy of eviction

alone is not punitive. Therefore, the Eighth Amend-

ment prohibition of excessive fines is inapplicable in

this case.

IV. The ADA Does Not Prevent the Eviction of Mr.

Walker.

In addition to the statutory and constitutional claims

raised by all tenants, one tenant, Mr. Walker, raises an

additional claim under the Americans with Disabilities

Act (“ADA”) 42 U.S.C. § 12101, et seq. Walker argues

that the ADA prevents his eviction despite the fact that

his caretaker and other guests engaged in drug-related

criminal activity in his apartment and on the premises

on at least three occasions.

65a

The district court enjoi

Boerne: Joined the unlawful]

eviction ee aeninat Walker. The court held rg

oes _ — of the lease placed Walker “at nie

one re of his tenancy than other tenants who

nance _ a Z home care.” While non-disabled

rarer mply with the lease provision simply by

& not to have any household pared >

Int'l, Inc., 686 F.2d

moi <d 750, .

reversible legal error, 752 (1982). This constitutes

The unlawful detaj

iner comr laint

' nt again

. mma three Separate, ‘deen of powder

= poveoagge nn in Mr. Walker’s apartment ang

dere - Only one of those incidents involved Mr.

pce eo - August 7, 1997 the OHA

Stopped and

won searched a

er on OHA premises. The guest was 4 rn a

66a

67a

of crack cocaine. Mr. Walker does not claim that this On appeal of

guest was employed as his caretaker. After arresting accept the housi : ;

Walker's guest, officers went to Walker’s unit where accuracy of th ing authority’s alle

Walker consented to a search. There officers met through the : - epee

Eleanor Randle. Ms. Randle had a cocaine pipe pinned unlawful detai gd “

inside her jacket. She was arrested for possession of GP osarny

preliminary injunction, we do not

narcotics paraphernalia. Mr. Walker alleges that Ms. reaso ssum

Randle is his caretaker. Officers also found a cardboard prev ae adie ae could be found thee —

box containing crack cocaine pipes and “suspected rock related criminal ner of Mr. Walker because of the drug-

cocaine chips.” OHA did not ascertain the ownership of could still be evict we — of his caretaker, Mr. Walker

these drugs found in Walker’s apartment. Mr. Walker other guests who ased = the drug possession of his

denied knowledge of all criminal drug activity that took ADA claim sho pcan not his caretakers. Mr. Walker’

place in his apartment. uld therefore be rejected.” ;

CONCLUSION

On August 12, 1997 officers found a cocaine pipe

inside a bag of hair rollers inside Walker’s apartment.

Walker’s alleged caretaker, Eleanor Randle, was not

present at the time, although another guest was.

On October 11, 1997 officers again found a cocaine

pipe in Walker's apartment. Walker’s guest at the time

was cited for possession of narcotics paraphernalia.

Walker does not allege that this guest was his careaker.

Under § 1437d(/)(6) any one of these incidents, if

proven, is sufficient justification for Mr. Walker's evic-

tion. Under the district court’s reasoning, Mr. Walker

requires a “reasonable accommodation” only because he

cannot, like a non-disabled resident, choose not to have

guests. He must permit a caretaker to enter his

apartment. This reasoning cannot sustain an accommo-

dation that exempts Walker from eviction for the drug-

related criminal activity of non-caretaker guests. There

are two alleged incidents of such conduct.

It is

t is obvious that when Congress authorized the

nants, the potential for individual

ve 1. Congress granted to | 7

power to evict and trusted that ike Shane

ad “ ;

apse hey ra officials and the procedural protec

change oe Agi se prevent the abuse of this powe '

it ae a : balance. ‘It did so in the face of “

poe roa : e ineffectiveness of traditional la :

Mo ome t bestowed upon the PHA vd

y challenged in this case. That authority Psa

Ss

not violate the Constitut;

: Stitution. Thi : .

interpreted as it was written ” ‘eeislation should be

We also

So note that the OHA di

tad id accom :

wer I to evict him until after sa “ve “pda 4

J M

en —— committed by one of his guests i

ane an guests. OHA is not

accommodation

rte Marin County Courts, 169 F.3d

equest to waive applicabili .

. cability

taker is not reasonable. _

68a

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 98-16322, 98-16542

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE;

BARBARA HILL, PLAINTIFFS-APPELLEES

v.

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY,

DEFENDANTS

AND

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DEFENDANT-APPELLANT

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE;

BARBARA HILL, PLAINTIFFS-APPELLEES

Vv.

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY,

DEFENDANTS-APPELLANTS

AND

UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, DEFENDANT

Filed Aug. 18, 2000

Before: Hu, Chief Judge.

69a

ORDER

1

Judges Wardlaw and Fisher were recused

70a

APPENDIX C

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 98-16322, 98-16542

° EE;

PEARLIE RUCKER; HERMAN WALKER; beg L

: BARBARA HILL, PLAINTIFFS-APPELL

v.

Y,

HAROLD DAVIS; OAKLAND HousING AUTHORIT

DEFENDANTS

AND

7 ’ D

UNITED STATES DEPARTMENT OF Hou — —

URBAN DEVELOPMENT, DEFENDANT-A

: EE;

PEARLIE RUCKER; HERMAN WALKER; WILLIE L

BARBARA HILL, PLAINTIFFS-APPELLEES

v.

, TY,

HAROLD DAVIS; OAKLAND HOUSING AUTHORI

DEFENDANTS-APPELLANTS

AND

, ; AND

UNITED STATES DEPARTMENT OF HousING AN

URBAN DEVELOPMENT, DEFENDANT

Filed Feb. 14, 2000

Tla

Before: SNEED, O’SCANNLAIN, and W. FLETCHER,

Circuit Judges.

Opinion by Judge O’SCANNLAIN; Dissent by Judge W.

FLETCHER.

O’SCANNLAIN, Circuit J udge:

We must decide whether a local public housing

agency may evict a tenant on the basis of drug-related

criminal activity engaged in by a household member on

or near the premises regardless of whether the tenant

was personally aware of such activity.

Established in 1937, the first public housing program

was intended to assist states and localities in providing

affordable housing to low-income families. See Pub.

L. No. 75-412, 50 Stat. 888 ( 1937). The Housing Act of

1937 vested responsibility for managing, maintaining,

and operating public housing developments in local

public housing agencies (“PH As”) rather than in the

federal government. See 42 U.S.C. § 1437. Over 3,192

local PHAs currently oversee the 1,326,224 public hous-

ing units that are home to over 3 million people. See

U.S. Dep’t of Hous. & Urban Dev., “One Strike and

You're Out”: Policy in Public Housing 3 (1996): Office

of Policy Dev. & Research, U.S. Dep’t of Hous. &

Urban Dev., A Picture of Subsidized Households,

Volume 11, United States: Large Projects & Agencies

14, 72 (1996); Michael H. Schill, Distressed Public Hous-

ing: Where Do We Go From Here?, 60 U. Chi. L.Rev.

497, 499-522 (1993). In exchange for monetary

assistance for the construction and operation of low-

income housing, local PHAs agree to abide by federal

regulations promulgated by the Department of Housing

72a

r ited

and Urban Development (“HUD”) “er He aaa 2

States Housing Act. See ater Jy at “4 : ~~ a

Dev rayrty a a ith Cir. 1989) rere

— iF tionship between HUD and a . “

BA SLC ». Kemp, 947 F.2d 11, 20 yf a

Thomas .. Chicago Hous. Auth., 919 F. Supp.

1163 (N.D. Ill. 1996).

low-income families, see

1 as a sanctuary for =

ae Dev. & Research, supra, poder, 2

ing that public housing residents have an _ aa

housshold income of $8,500 per sig eo Aeryn

sin rojects—primarily the larger ¢ sence

a swena—bave been transformed — we be

Sr ‘with severe and tragic social Boe A S a

yon resulting for residents ee 4 _~ eo

en 4 may bg pottnny 500-01. A

Dev., supra, at 9, jenall, , =

white House report states: Public er pms y =

a staging area for the distribution Oo = hon ine

violence related to dru (rahe cutive Office of

t’l Drug Con . be

ey erly National Drug Control wong» Me

991) see also D. Saffran, “Public aren —

v s Tenants’ Rights,” 6 The ———_ - mel

mas 35 (Fall 1996) (discussing the problem

ity o-- ;

= crime in public housing).

In 1988, Congress took decisive steps eo

he living conditions in public housing, Lae

aa ham of drugs and crimes, In particular, Lge

ped Abuse Act of 1988. Beginning 7 ae

ome eay Be “the Federal Government has a lu ae

see ublic and other federally assisted low —

sing that is decent, safe, and free from

73a

drugs,” and that “public and other federally assisted

low-income housing in many areas suffers from

rampant drug-related crime,” 42 U.S.C. § 11901(1)-(2),'

Congress sought to create an effective and efficient

mechanism for ridding public housing of those who sell

or use drugs. More specifically, Congress required

that:

Each public housing agency shall utilize leases

which—

(5) provide that a public housing tenant, any

member of the tenant’s household, or a guest or

other person under the tenant’s control shall not

engage in criminal activity, including drug-related

criminal activity, on or near public housing pre-

mises, while the tenant is a tenant in public

. housing,

and such criminal activity shall be cause for

termination of tenancy.

' Congress made three other related findings:

The Congress finds that—

(3) drug dealers are increasi

on public

tenants;

ngly imposing a reign of terror

and other federally assisted low-income housing

(4) the increase in drug-related and violent crime not only

leads to murders, mug ings, and other forms of violence

against tenants, but also to a deterioration of the physical en-

vironment that requires substantial government expendi-

tures; (5) local law enforcement authorities often lack the

resources to deal with the drug problem in public and other

federally assisted low-income

housing, particularly in light of

the recent reductions in Federal aid to cities. . _

Id. § 11901(3)-(5).

74a

42 U.S.C. § 1437d()) (1989)2 In 1990 and in 1996,

Congress altered the language of the statute, but left

its effect unchanged in relevant part:

Each public housing agency shall utilize leases

which-

(5) provide that any criminal activity that

threatens the health, safety, or right to peaceful

enjoyment of the premises by other tenants or any

drug-related criminal activity on or near such

premises, engaged in by a public housing tenant,

any member of the tenant’s household, or any guest

or other person under the tenant’s control, shall be

cause for termination of tenancy. - - -

Id. § 1437d(1)(5) (1991). Congress amended this

statute further in 1996, replacing the phrase “on or near

such premises” with “on or off such premises.” Jd.

(1997).”

In 1991, HUD issued regulations implementing sec-

tion 1437d(/)(5). One such regulation, 24 C.F.R.

§ 966.4(f (12)i(B), provides:

2 The term “drug-related criminal activity” was defined as

“the illegal manufacture, sale, distribution, use, or possession with

intent to manufacture, sell, distribute, or use, of a controlled

substance (as defined in section 802 of Title 21).” Id. § 1487d(/).

% In 1998, section 1437d(/)(5) was redesignated as subsection

(1) (6), but the language was left unchanged. We will continue to

refer to this provision as (/)(5).

75a

§ 966.4 Lease requirements.

Al

ond on — “g entered into between the PHA

contain th nt of a dwelling unit which

e provisions described here "4 shall

(f) Tenant's obliga

that the tenant shall tions. The lease shall provide

be obligated:

(12Xi) To assure

the household, a

tenant’s control,

hat the tenant, any member of

guest, or anot

shall not btm — under the

(B) Any drug- “ew

such ssaniienn” related criminal activity on or near

Any criminal activity j

Ivity in violatio

se n of th

aie shall be cause for terminati ‘co

or eviction from the unit on of tenancy,

24 C.F.R. § 966.4(f)(12)(i)(B).

similarly provides: Another regulation

(B) Any drug- oo

such fmm Aan g-related criminal activity on or near

Id. § 966.4(1)(2)(iiB).

T6a

egulations, HUD considered

” cea cor id ond tenant organizations na

—, eae not be required to ‘assure ~ ns a

ie juct of household members, or _— (“1

<tr ¢ tediad responsibility to wey A “thet the

only ° oy embers of the household and . : Arve

eo should not be responsible Aes — rr pe

—* ant’s control, if the tené

is me px = frase ph eno the criminal ©

oe . t did not participate, give consent a on en r

oe activity, or if the tenant did * bn Ped

the oo hea control the criminal activity. ¢ ‘ =

Rew 51560, 51566 (Oct. 11, 1991). Ultimately, paen

Reg. o of le I not to accept these suggestions, por

HUD dec dec rant local PHAs the discretion to ev ie -

choosing th nousehold members or guests se :

row ve pode the public — oe teen tet : (

r : : should hav .

of whether the ee eee, 67. HUD stated quite

such ge ts tenant should not be excused wae

pe onc responsibility by arguing that om =

ins could not foresee, or could not —_= 7

oh by other occupants of the unit.” /d. at 51567,

‘isi ‘irst,

HUD offered several = ae ae me Me of

» “contractual responsibility of the tena f tenant

the — ants is a conventional incident o yee:

si edits enler normal landlord-tenant rapes

om orw : | iis a valuable tool for management o one

mre ‘The tenant should not be excused ry ye

ore responsibility by arguing thet toneat GX Het

‘ could not foresee, or coul 51567. Second,

eager da occupants of the unit. he na perce por wa

HUD feared that allowing a — id allow a variety

by claiming a lack of knowledge “wou

77a

of excuses for a tenant’s failure to prevent criminal

activity by household members” and “would thereby

undercut the tenant’s motivation to prevent criminal

activity by household members.” /d. Third, PHAs may

often have difficulty proving in court that the lease-

holder had knowledge or control over the offending

person, thus making it time-consuming, costly, and

otherwise cumbersome to evict households causing

drug-related problems in public housing. See id. Fi-

nally, HUD noted that “a family which does not or

cannot control drug crime, or other criminal activities

by a household member which threaten health or safety

of other residents, is a threat to other residents and the

project.” Jd.

Importantly to this case, although HUD unequi-

vocally authorizes eviction whenever a household

member or guest sells or uses drugs on or near the

apartment premises, it does not mandate or even

encourage across-the-board evictions whenever there is

cause to evict. Instead, its regulations recognize the

importance of giving each case individualized con-

sideration in light of the equities of the tenant’s parti-

cular situation and examining whether some remedial

measure other than eviction of the tenant may be

appropriate even when there is clearly cause to evict

the tenant. See infra Part IV-C; 24 C.F.R.

§ 966.4(1)(5)(i),

I]

Pursuant to section 1437d(/)(5) and HUD regulations,

the Oakland Housing Authority (“OHA”) includes in its

leases a provision obligating tenants to “assure that

tenant, any member of the household, or another person

under the tenant’s control, shall not engage in

lalny drug-related criminal activity on or near the

78a

premises (e.g., manufacture, sale, distribution, use,

possession of illegal drugs or drug paraphernalia, etc.).”

It is this lease provision—which OHA interprets as

authorizing the eviction of a tenant on the basis of a

household member’s or guest’s drug-related criminal

activity regardless of whether the tenant knew or

reasonably should have known of such activity—that

has given rise to the present controversy.

OHA commenced separate unlawful detainer actions

in the Alameda County Municipal Court against Pearlie

Rucker, Willie Lee, Barbara Hill, and Herman Walker

(collectively “Tenants”) after discovering a household

member or guest of each Tenant engaging in drug-

related criminal activity on or near the public housing

premises. The relevant facts regarding the first three

Tenants are quite similar. Rucker’s daughter was

found in possession of cocaine and drug paraphernalia

three blocks from Rucker’s apartment. Lee’s grandson

was caught using marijuana in the housing develop-

ment’s parking lot, as was Hill’s grandson. All three

Tenants claim to have been unaware of their household

member’s drug-related criminal activity.

The fourth Tenant, Walker, presents a somewhat

different case. Walker is partially paralyzed and incap-

able of living independently. OHA served him with a

notice of termination of tenancy after the third instance

in which drugs or drug paraphernalia were found in his

apartment. On the first occasion, officers found cocaine

chips and cocaine pipes in Walker’s bedroom as well as

a cocaine pipe in the jacket of Eleanor Randle, Walker’s

care-giver.’ Randle was arrested for possession of nar-

4 Walker consented to this search, as well as to the subse-

quent searches.

79a

cotics Paraphernalia

violation notice. OHA pda nto wry a

conducted a follow-u

-up ch

days later and found te ra

point Walker was issue

Two months later, drug

: 14374) F saio enants argued that 42 U.S.C.

8S eviction of wh

4 What

nocent tenant”—namely, a tenant

Disabilities A “ ”

ot seg: ct (“ADA”),

does not appeal thi

us.

SOa

Tenants sought a preliminary ry gen eareag

Pe and the parties agreed to stay to a

hu e oieee state court proceedings pending pn

vceaiea of the present case. To yr taal ell

leninary injunction, the moving party a pontoon and

a combination of probable euceens ae oo ea

the possibility of irreparable injury, 0 f hardships tips

peep tt soo me pcwsony “ter | ne. v. Board

— =— ( ! ’

wr wa rasa School Dist., 868 F.2d =< on

- . Cir 1989). The district court concludes + =

te seat had established a “fair chance of gorge Da

bs nan pee that HUD’s interpretation of wee

pyle (5) was inconsistent with ~~ yee Act

thus violated the Administrative -ourt determined

ADA” we 5b U.S.C. §§ 701-706. The — ubhstantial

. Al yl “s t HUD’s interpretation raised substantl .

narenet with respect to Tenants’ Fit, hemes

proges freedom of association. Finding that "

oe = f hardships tipped decisively in Tenants =

woe 4 court preliminarily enjoined the eviction al

pediges-o housing tenant for “drug-related —

— , rd t does not occur within the tenant's —

activity t pPrcanih sn tenant did not know of, or | ave

aria Soe of, the drug-related ertenine —

HUD, OHA, and Davis appeal this paren or

In addition, the district geome ADA faite:

eT ae Walker’s disability prevents

reas

/_ ‘ker was dismissed

‘ TI unlawful detainer action against pag Phe tro

> Ww « . é —- le in ) ous °

_. & tucker continues Lo resit

ebruary 100%. huc a ——-

" In addition, the court specifically enjoined as = me

nw , esi setae Lee, 3

ting its state court eviction proceedings agains

secuting Its :

Walker.

Sla

him from living without a care-giver, he is at greater

risk for termination of tenancy than tenants who do not

require in-home care. Fj

nding that the balance of hard-

ships weighed in Walk

er’s favor, the court enjoined

OHA from evicting Walker on the basis of his care-

giver’s drug-related criminal activities. OHA and

Davis appeal this ruling.

II]

Before turning to the merits, a word on the standard

of review is in order. We review the district court’s

grant of preliminary injunctive relief for an abuse of

discretion. See Brookfield ( ‘ommunications, Inc. v.

West Coast EB

ntertainment Corp., 174 F.3d 1036, 1045-

46 (9th Cir. 1999). Because a district court necessarily

abuses its discretion if it bases its ruling on an errone-

ous view of the law, however, we review the legal

issues underlying a preliminary injunction de novo and

may rule on the merits of the controversy if legal issues

are dispositive. See, ¢.g., id. at 1046 (citing cases); Foti

v. City of Menlo Park, 146 F.3d 629, 634-35 (9th Cir.

1998); Does 1-5 v. Chandler, 83 F 3d 1150, 1152 (9th Cir.

1996); see also Thornburgh v. American ( ‘ollege of

Obstetricians & Gynecologists, 476 U.S. 747, 757, 106 S.

Ct. 2169, 90 L.Ed.2d 779 (1986), overruled in part on

other grounds by Planned Parenthood v. Casey, 505

U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992); Plan-

ned Parenthood v. Ca mblos, 155 F.3d 352, 359-60 (4th

Cir. 1998), cert. denied, 525 U.S. 1140, 119 S. Ct. 1031,

143 L.Ed.2d 40 (1999),

IV

, — - HUD in its

The first question before us 1s nese gy steht

applicable regulations has adoptec ; a areggyensc

ao pretation of 42 U.S.C. § 1437 d( on « rbitrary

sede whether HUD’s interpretation 4 esi —

ret de liscretion, or otherwis

os » ¢ abuse of dise ad The

capricious, an = ” 5 USC. § 706(2)(A).

in accordance with law. 9 U.»5.' | nee tian

nano that we resolve this issue ny appy r of

familiar framework set forth i cneit, Inc, 467 US.

, sources Defense Counctt, » age Eine

7 —- th. O78 > L.Ed.2d 694 (1984). ¢ ae a

nto Po - to begin our ya toe cals

“Congress has directly spo 2

*hether < ongress has ¢ ae OTTS. “If the

promo at issue.” Id. at 842-43, 104 5. oo se aati

, tent of Congress is clear, that is the wer rive effect to

~~ the court, as well as the agency, or Ht gress.” Id.

tantra cpressed intent of © S.

ambiguously expresse@ In! - ambi s on

or, nd only if the language is silent 01 ees

> osc question at hand do we en es

which is to defer to the agency rey ry ; 9, 104 S.

‘t. 278; see also Young v. Com 2d 959 (1986)

poe nae. 981, 106 S. Ct. 2360, 90 re gor sot aaa

“This view of the agency charged wit = emg

m statute is entitled to considerable de ne nh pare

. ate m it we need not find that it Ah ‘cht renin

peso construction that [the pos at of

ase but only that [the aan hes nealanall en

is very ‘complex statute Is a sullicienhly t for

neg wor a oan from substituting Its — and

ot of [the agency].” (internal quot yo 1074, 1076

citation omitted)); Jang v. Reno, bis F.

(9th Cir. 1997).

the statute. “Where there i

there is

83a

HUD argues that section 1437d(1)(5) and the broader

statutory context evince a clear congressional intent

authorizing the eviction of any tenant whose household

member or guest engages in drug-related criminal

activity on or near the public housing premises even if

the tenant did not know of such activity. Tenants

maintain that the unambiguously expressed intent of

Congress is to the contrary. The district court dis-

agreed with both and instead concluded that the public

housing lease statute is silent with respect to the issue

before us.

In adjudicating among these conflicting views, we

look to traditional tools of Statutory construction for

guidance. See Chevron, 467 U.S. at 843 n.9, 104 S. Ct.

2778. More specifically, “(t]he plainness or ambiguity of

statutory language is determined by reference to the

language itself, the specific context in which that

language is used, and the broader context of the statute

as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337,

340, 117 S. Ct. 843, 136 L.Ed.2d 808 (1997).

A

We begin, as we must, with the express language of

S no ambiguity in the words,

no room for construction.” [ /nited States v.

Gonzales, 520 U.S. 1,8, 117 S. Ct. 1032, 137 L.Ed.2d

132 (1997) (quoting United States v.

U.S. (5 Wheat.) 76, 95-

1437d(/)(5), as amended,

related ¢

Wiltberger, 18

96, 5 L.Ed. 37 (1820)). Section

provides that “any drug-

riminal activity on or off such premises,

engaged in by a public housing tenant, any member of

the tenant’s household, or any guest or ot

under the tenant’s control, shall be cause fi

tion of tenancy.” 42 U.S.C. § 1437d(/)(5).

Statutory language thus

her person

wr termina-

The plain

makes clear that Congress

Sa

intended that there be cause for termination of tenancy

when three conditions are met: there is (1) drug-re-

activity, (2) on or off the public housing

wed in by the tenant, any household

other person under the

lated criminal

premises, (3) engi

member, or any guest or

tenant's control.

That each of Tenants’ cases involved drug-related

criminal activity as defined in section 1437d is not con-

id: similarly undisputed is the fact that the conduct

in question occurred on or near the public housing

premises. The only real dispute concerns the third

prong—whether the activity was engaged in by “a

public housing tenant, any member of the tenant's

household, or any guest or other person under the

tenant’s control.” Jd.

Focusing on the statutory term “control,” Tenants

argue that cause for termination exists only if the

tenant could realistically exercise “control” over the

drug-dealing or drug-using household member or guest.

Where, for example, a teenage son rarely heeds his

mother’s instructions and is generally uncontrollable,

Tenants contend that OHA lacks authority to evict

the entire household on the basis of the son's

conduct—even if he is selling drugs out of the

apartment—because the mother does not have “con-

trol” over her son.

Applying basic principles of grammar, we conclude

that this construction of the public housing lease statute

is untenable. The clause at issue—"public housing

tenant, any member of the tenant’s household, or

any guest or other person under the tenant's

control” —includes three separate categories of people:

(1) the tenant, (2) any household member, and (3) any

rson under the tenant’s control. The

teste

yuest or other pe

Sha

phrase “under the te °

nants P .

whatsoever to either of the trol” has no relationship

firs ;

or household member. t two cateygories—tenant

With respec

Pp aah the third category, implicit in the

control” is that ilies ase person under the tenant's

control. “C ge * per se under the te ’

re lee er is a legal concept; Arena cor

saiihe tune ed guests. Just as a tenant cannot

hin o rd rd damage to a neighbor's apartment

was drunk post thes Ruest by arguing that the guest

aveld the leanert us out of control, a tenant cannot

ieenetien tele port of section 1437d(/\(5) by arguing that

physically senna are stronger than he, he could not

apartment ‘Sos ae them from selling drugs in his

se. 854 a. = ya Housing Auth. v. Green, 657 So.2d

refers to ‘a pate pp. 1995) (“(Whhere . the lease

aaieet ts ht st or other person under the tenant's

access to the — the tenant ‘controls’ who has

responsible for the yee The lease makes the tenant

Git tenine tm th 7 drug activities of those persons

as used in the ni asen by the * tenant. ‘Control’

knew or should have known w+ Araya nevada —

\ re |

Because . ;

evict Tenants oe for which OHA is attempting to

household member sey ae committed by a

third, and final er or a guest, we conclude that the

as well, essodionh of section L437(/ 5) is satisfied

authorizes the t gly, the plain statutory language

seliaiie te eremination of Tenants’ tenancy. More

repeat, prevides thes 4 oi janguage—which, to

activi any drug-related crimin;

by colon. on or off such premises, | (:3) eae

diet are we tenant, any member of the tenant’

» OF any guest or other person + athe sa i

Sa

for eviction—evinces a clear

i inatt f tenancy

congressional intent to authorize vpn cae

liens of whether the tenant was a

’ acturing,

- guest was selling, manufact

hold member or guest was . makes

may be

tenant's control” is cause

regi

mat » statute

distributing, or using drugs. Thus, the s

: “innocent tenants”

clear that even purportedly “innocent ten:

evicted.

ie

te » makes ant

Notwithstanding the fact that the tee + pea

trug-related criminal activity by a neues , stay sowed

) ; ial cause for termination of pooner th silent as to

~— rere intendec to au re

wun - , oer because it fails to — yp ee

a ve "The . ” » abs .

Prange ion of “innocent tenants. ‘| be expressed

_* view, a statute contains a i "te explicitly

Co : ’ : ° sue on y " f

, ssional intent on an Iss Pave ave

re at son that issue. The district court appears ape

‘ . aSS * « hal . ‘ ‘ ne ¢

nent yreat emphasis on the ee that : ‘a pen

. . ‘ , t alt “an) ‘

ave provided, for example, ruest

ene activity by a household member or £

criminal ¢ \ ae.

Only a handful of other courts have oe

i they have reached conflicting oe “4, 41 Cal. App.

Se ‘rancisco Hous. Auth. e. Guillory, vofien

a ’ 1495) (cone

Supp. 13. 1X-10 (Cal. App. Dept Super. ('t. weet mene

2 wes ha het activity by any member - oe ni | oe veneer

gol per se for termination of the yo pte ae aaah

Ss « . 5 ") wr ’ f) . ;

‘ ity receives federal funds”), bh od ex 72 (1995) (With no

yar 20 N.C. App. 552, 464 S.E2d 64, ~ noma this case

a we ” »and lease at issue ;

wnal fault, the statute ane . ;

mention of personal npn a0 by a member of a tenant's house hold

ee = : However, as noted above, the legis-

legislative intent that

personally at fault for a

addressed this precise

Compare

Issue,

City of South San k

provide that cr dey

ix cause for ending a tenancy. —

lative history reveals a clearly eX} . °

: . . . . . . - '

eviction is appropriate only if the tena

breach of the lease. . . . ).

87a

including that of which the tenant is Mnaware “ or “an

drug-related criminal activity by a household member

or guest regardless of the tenant's knowledge thereof” is

cause for eviction.

The district court's failure to appreciate the impli-

cations of Congress's use of the term “any” when it

made “any drug-related criminal activity [by a tenant,

household member, or guest} . . . cause for

termination” does violence to the plain language rule.

42 U.S.C. § 1437d( 5) (emphasis added). A statute

covering “any drug-related criminal activity” has the

exact scope as one covering “any drug-related criminal

activity ineluding that of which the tenant is unaware”

or “any drug-related criminal activity regardless of

the tenant's knowledge thereof.” These italicized hypo-

thetical clauses are mere surplusage—they add nothing

of substance. Just as section 1437d(/)(5) covers drug-

related criminal activity on weekends even though the

statute does not explicitly refer to “any drug-related

criminal activity including that which occurs on

weekends,” the statute covers conduct that the tenant

does not know of even though it does not explicitly

refer to “any drug-related criminal activity including

that of which the tenant is unaware.” The hypothetical

“including” clauses merely enumerate subsets of cases

already covered by the statute as actually written.

We have no reason to think that Congress meant

anything other than “any” when it used the term “any.”

“Read naturally, the word ‘any’ has an expansive mean-

ing, that is, ‘one of some indiscriminately of whatever

kind.’” United States v. Gonzales, 520 U.S. 1, 4,117

S. Ct. 1082, 137 L.Ed.2d 132 (1997) (quoting Webster's

Third New International Dictionary 97 (1976)). We

suppose that Congress could have included an

SSa

i ‘Yes, we really do mean

additional sentence stating ° Yes, = be ee <4

y.” Even without such a statement,

‘any.

” anne tae * See”

cedent instructs that, just as “no” means “no, y

really does mean “any. — ae

Tenants marshal ony mayo hy . : A mre

strict the scope of “any.” Even if w ee

aaa avoid the fact that Tenants in — =

jn See aie express statutory language. aie

ones = : 1437d(1) (5)’s scope as Tenants ae —

eset to the statute words that Congress dic

= pope eet This we refuse to do. Indeed, pont pnd

a ns ies the statute’s effect. oe judges,

hematite, not authors, of the law.

C

‘pansiveness of the statutory

| mane “onent drs “pr my? opr hon

wieting “i ants” and claim nor

aa Remorse Mem vy Mr the wholesale ae

po nd all tenants who have a household —s ad

a ses drugs. What Tenants either oe

ove scasrenge ti to obscure—is that the quest!

reco

: > rm “any

The dissent argues that a broad mating of aa hie nd

° € Gisse petting veges nae ble becaus :

, ity tena ,

ri al activity is un “ - might

rer isk” Dissenting Op. at 651. This argument mig

rithin

= her language wit!

fact that othe chin

“absurd result [s]. | ne ©

suaSIVe t for the ns ps

. e persuasive if no wt ber tr a a

pot vextaitys) places limits upon the ot

se :

° . . ‘ ivity Ns

scope of “any drug-related criminal activity

’ » statute

h the dissent is correct to point = oe phente con-

Although ‘citly state what illegal drug-relatec ation to this

does not explicit aie the relevance of such observa - atom

stitutes cause for vee ane aphysical ambiguity in the ; weve

case is —- ring on the task at hand: rego eso an of

ae oer oro constitute a permissible interpreta

HUD’s regulations con:

section 1437d(1 (5).

89a

of whether there is cause to evict is wholly separate

from whether the PHA will actually evict. Section

1437d(1)(5) merely requires that local PHAs make drug-

related criminal activity “cause for termination of

tenancy.” 42 U.S.C. § 1437d(/)(5). Where there is cause

for termination, a PHA may evict, but it is not required

to evict in all instances in which there is cause to do so.

The public housing lease statute, although it author-

izes eviction in a broad range of cases, is notably silent

as to when termination of tenancy is required. By

structuring the statute in this way, Congress implicitly

conveyed discretion to HUD and to PHAs to make

termination decisions in individual cases. This dis-

cretion is consistent with the Housing Act’s long-

established statement that “ijt is the policy of the

United States . . . to vest in public housing agencies

that perform well, the maximum amount of responsi-

bility and flexibility in program administration, with

appropriate accountability to public housing residents,

localities, and the general public.” Jd. § 1437(a) 1\(C);

see also Newbury Local Sch. Dist. Bd. of Educ. v.

Geauga ( ‘ounty Metro. Hous. Auth., 732 F.2d 505, 509

(6th Cir. 1984) (noting that the Housing Act is “struc-

tured to place the ‘maximum amount of responsibility’

of administration on the local public housing agencies”):

Gholston v. Housing Auth., 818 F.2d 776, 781 (11th Cir.

1987) ( “(The Housing Act gives local housing authori-

ties discretion to . . . manage the day-to-day affairs of

the subsidized housing projects.”),"”

” Congress recently reaffirmed its desire to leave discretion

in the hands of PHAs when it enacted 42 U.S.C. § 13662. Like

section 1437d(/)(5), section 13662 requires PHAs to include a lease

provision that allows the PHA to terminate the tenancy of any

household with a member whose drug use threatens the health or

Wa

= - D and

Leaving individual repay ond bingy otha

: sense. atic

— + a aemestaatiand consideration of the —

ee healer tenant’s case is appropriate. a fic

pe c " evitably arise. It would be excee wee!

difficult ‘Seemerate a priori which tenants : 0 -

“> “d or Congress did not attempt to co 3 :

li and to “innocent a A es .

7 ent” than others.

rose r= re je ay at the public ro

ramet 2 unbeknownst to the tenant be evic a

a yom a tenant whose grandson uses drugs in

lite lot unbeknownst to her?

; stions e argu-

These are difficult policy mere 5 stoi hae

ments on both sides, but how oe eee

ue icy considerations is s

: ing policy considera ; ond te

Sempens eeu these aa gt mag ongress

ndividual PHAs, not to the federal judiciary. ——

vo ed HUD, the agency generally on cali formu-

pos ot and overseeing pore go ge dane

inci ide

ati eneral principles to gu bility for

ane assigned local ae Se Sarees y

deciding how to proceed in individual cases.

dealing

r ' neral guidance for ¢

has provided some ge , auietion a>»

ois aie cases, but largely cag enee ot

isions to PHAs. Of particular relevance

cisions nt

hand is 24 C.F.R. § 966.4(/)(5)(Q):

. . - p . HA

X y 'e

. . . . . .

basis. See 42 U.S.C. § 13662.

9la

(5) Eviction for criminal activity-(i) PHA discre-

tion to consider circn mstances. In deciding to evict

for criminal activity, the PHA shall have discretion

to consider all of the circumstances of the case,

including the seriousness of the offense, the extent

of participation by family members, and the effects

that the eviction would have on family members not

involved in the proscribed activity. In appropriate

cases, the PHA may permit continued occupancy by

remaining family members and may impose a con-

dition that family members who engaged in the

proscribed activity will not reside in the unit. A

PHA may require a family member who has en-

gaged in the illegal use of drugs to present evidence

of successful completion of a treatment program as a

condition to being allowed to reside in the unit.

24 C.F.R. § 966.4(1)(5)(i), Quite sensibly, HUD does not

advocate the eviction of all “innocent tenants,” but

instead counsels PHAs to handle cases on an individu-

alized basis and to consider alternative remedies. This

policy is further embodied in a HUD publication en-

titled “One Strike and You're Out”: Policy in Public

Housing:

The lease language mandated by federal law im-

poses on tenants an affirmative obligation to assure

that neither they nor any member of their household

or guest or other person under their control will

engage in prohibited drug-related or other criminal

activities. PHAs can generally enforce this obli-

gation by terminating leases and evicting entire

households when a household member or guest

commits a crime in violation of lease provisions. A

promise is a promise. Where the tenant has pro-

2a

rime-free household,

mised in a lease to ensure a crime-fre - = cers

th . tenant is responsible for the se ' n raged in

| | of whether he or she was persona 4 eon

ess — s . » @ ° lV Pa

the prohibited drug or othe Cc! iminal ac s

se Cases ON an

PHAs retain the flexibility to yn pancho isn

individualized basis, and they — vs Vi nt circum-

— die ‘etion in light of all of the relevan i rea-

wrens a articular, when a tenant has taken - Ye of

wr hes : to prevent the criminal activity, seorencce

pion ns hp be warranted or Dag chet

re rei results and success in court, | Ss ine

both oorme ase-by-case analysis before proceet 0

—— : “Tf they do seek eviction, PH As — “d

-_ wae roaptanticine 4 a court that eviction 1s fo - ,

sipeaonie tant eviction of an entire caoaprnngtiane 4

cr wopriate as a means of alareetnigiten t ss ™

me i a welfare of the public —e - auien

SAICLY « as ‘coaches may wea ’

. sree je see ‘ ne aanetere “ remain in occupancy -

such as allow a the offending member move =

the gegen berennin This latter approach does a

agree wd 1 to effective long-term removal veal “el

always 2 lividual. PHAs, therefore, should ge e !

ramos, ae of success in each parry oon

saede dhiiie —— law Se oar and re-

ic violated. In some cases, ye _ wuidents

prem se may also help to keep former Off a

straining emaining household members. “ .

Policy Dew "& Research, U.S. Dep't of Hous. & Urb.

Dev. supra, at 8."

—_—_-- -

; e sare . Up regula-

Under section 1437d)(5) and the sponse apse » to

‘ aie of a household is not - on ae PiAs howe the

es ated criminal activity, hte

uuexn involving drug-relatec sium gemnedion in auch

oem eae Pro a wide range of alternative re medies

discretion to uae i

Ya

Leaving PHAs with discretion is sensible in light of

the fact that local PHAs, being most closely associated

with the tenants themselves and having the most

knowledge about the local situation, are best situated to

give individualized consideration to each case. See

42 U.S.C. 8 1437(a1 VC): see also Gholston, 818 F.2d at

781 (“The administration of local housing authorities is

a difficult task. . . . ¢ ‘onsequently, the scope of judicial

review of a local housing authority’s policies and prac-

tices is limited, and we wil] not view its actions as a

Violation of the Housing Act or HUD regulations unless

it abused its discretion.” ( citations omitted)).

I)

Our conclusion that section 1437d(1\(

termination of tenancy re

knowledge of the drug-re

fore

5) authorizes

gardless of the tenant’s

lated criminal activity is rein-

ed by two related statutory provisions.

First, 42 U.S.C. § 1437d(¢)(4)(A iii), which was in

effect through 1996, prohibited any individual or family

who was evicted because of a household member's or

guest's drug-related criminal activity from receiving a

statutory preference in applying for public housing, but

exempted from this three-year prohibition period any

member of a family of an individual w

determines clearly did not partic

knowledge of” the ac

ho “the agency

ipate in and had no

tivity that formed the basis of the

causes. In challenging HU D's interpretation of the

sent places significant emphasis upon the existence of such re-

medies, See Dissenting ( Ip. at 652. That alternative remedies are

available does not mean, of course, that they are the only options

open to PHAs under the statute.

Statute, the dis-

95a

94a

5 § 1487d(eX 4 AGI). If an — oe : a the Same year it made

e ‘ ‘ ”) , s ‘ . ‘ 5). ‘

original —. 42 a - ; se een ceaanadie die amendments to section d(/)(5)

“innocent tenant” co

Congress

first place, there would have apes no get t

prohibition period for them. r= “es should not be

ere renege nthe pr pean se North-

construed to make surplusé :

2

The second Statute that lends ¢

pretation of the public housing lease statute is a civil

forfeiture statute which, inter alia, makes leasehold

redence to our inter-

il». Glickman, 82 F.3d

’ ‘orest Resource Couneil v. Gl lent

mors ' ee 1996), we must remy.e ae

2), . . . nee tat t “innoce

vestautXs) as authorizing pap oogeee a9 mae

t , ants.” This is especially so in light of wate of

saeco enacted the three-year prohibition |

2 The statute reads in relevant part: ly with such

. ow . . ° ) f .

(4) [T]he public housing agency on prescribe

procedures and requirements as the svat be followed in

ageme ractices

= 6 management p ' ain-

assure that sound ; : . ements pertain

- 7 ration Of the project, including requirem |

the oper

ing to— : =

Lgelgeg? € 1 ite ria

A the establishment of tenant selection

(fap. 6 F

which— : j ,

£ spicted from hous

(iii) prohibit any individual or family evr . a related

ul ‘hy reason of drug-

. » , Ui reas ¢ .

te ler the chapter by provi-

ing assisted unc ; ‘ference under any pr

nee ae activity from having a pre , ate he evicted tenant

; . e ’ ae rs u 7

. _— ‘ aph for 4 yea ed by

of this subparagr: at cee am approved by

ps ssfully completes a rehabilitation spi mee tag yplication

* “ag ass . - ‘fn st

Pe ney, ¢ xcept that the agency may ones th > cr oary

1 agency, © » eatetiiclnn ' the See :

this clause under standards extahtished A temile Wen

‘ hi hall include waiver for any member @ teed a naee

‘hich shi a clause w

(Ww lividuat prohibited from tenancy unde r ce rience

; a ° . ‘ »

ra oe of such criminal activity or perce rr mphases

rnowleds - * . ist) ad. (La) Ce .

. wiction no longer exist ). n 1996 and

vading to eviction no | a is statute in 1996 a

preg Congress significantly revised this stat

a > ; al ‘ - ’

poern in 1998. See id. (1999); id. (1997)

apc —e

Scope of the prohibition itself

and no property right shall exist in them:

interests subject to forfeiture when ‘used to com-

mit drug-related criminal activities. See 21 U.S.C.

§ 881(a)(7)." In sharp contrast to section 1437d(1)(5),

With respect, the dissent’s readi

(Aili) does not make sense. The dissent essentially argues that

the statutory waiver applies to applicants for public housing re-

gardiess of whether such applicants had ever been evicted

from such housing. What the dissent overlooks is that only an

“individual or family evicted from [public] housing by reason

of drug-related criminal activity” would ever need a waiver,

because only such evicted former tenants would be subject to the

three-year prohibition period in the first place. 42 U.S.C,

8 1437d(¢)(4)(A iii) (emphasis added). Thus the waiver would be

utterly irrelevant to someone who had never lived in nor been

evicted from public housing. As a matter of simple logic, one must

be a tenant of public housing before one can be evicted from public

housing for drug-related activity. In other words, the scope of the

waiver of the prohibition period cannot be any broader than the

ng of section 1437d(e)(4)

'! Section 8¥1(a)(7) provides:

The following shall be subject to forfeiture to the United States

(7) All real property, including any right, title, and in-

terest (including any leasehold interest) in the whole of any lot

or tract of land and any appurtenances or improvements,

which is used, or intended to be used, in any manner or part,

to commit, or to facilitate the commission of, a violation of this

subchapter punishable by more than one year’s imprisonment,

except that no property shall be forfeited under this para-

graph, to the extent of an interest of an owner, by reason of

YOu

this civil forfeiture statute includes an mayan

tion for “innocent tenants; “no ¢"~ extent of an

forfeited wader this op ep eg or omission

interest of an owner, by rea: ~i itted or

parrot? by that owner to have —_ eee

a ted without the knowledge or consen sh sgt ine sil

pegencdowees added). This civil forfeiture p ihe “es

soiiee abundantly clear that ¢ ats

w prernhags Banners ya 1457416) indicates that

“similar language In sec , aetaiailll

Se —— See to create such an exception

with respect to public housing evictions. let

Tenants interpret section 481 (a)(7) quite mega

They argue, for the first time in ee —

filed after oral argument, that ( ong! = eae to bea

“innocent tenant” exception of wreennes ccs Saeed

constitutionally mandated ne pte: exception

must have wanted to parts tanger t “dy of re this

into the public housing lease <-nsengnl -Apmpnibons

reasoning unpersuasive. That are « i property

tutional bar to forfeiture of dette . . the wrongful

owner is uninvolved and unaware 0

Rae — , sh atetmaaen tay anes Dine

tor omission established by that owner to h ain ial

any act o - | Jedge or conse

eniaiieed or omitted without the knowledge on

ch

that owner. Id

‘ “ave meant

\ The dissent argues that “Congress must : — ye

’ ” i 61S ‘ ; ‘ ai MM I(T) = pussec uM!

47 5) and amended section or

meq’ f ! ] iT) anne , : . preted con

a f the ame chapter of the same Act—to be inter

part © we Be

© 4. | h | }

, / meaning,

f action—yiving these two provisions the same t ie for

‘ourse Of acho ' iti ‘ely ne recipe

re ite their clearly different language—is gern fot mt that

cenpive : Opp. at fore 7

ow ('), Dissenting OF ,

consistent interpretation, hae i * situations

oa chose to use different language in similar

Congress © Rie “ ~

tends to show ituntended a different meaning. )

974

activity that formed the cause for forfeiture, see Calero-

Toledo v. Pearson Y. acht Leasing ¢ ‘o., 416 U.S. 663, 94

S. Ct. 2080, 40 L.Ed.2d 452 ( 1974), does not mean that

there is a similar bar in the distinct context of eviction

proceedings.

The statute governing civil forfeitures differs in

many respects from the public housing lease statute.

First, forfeiture under section S81(a7) involves the

transfer of private property to the federal govern-

ment," which raises concerns of misdirected incentives.

See Bennis v, Michigan, 516 US. 442, 456, 116 S. Ct.

994, 134 L.Ed.2d 6x (1996) (Thomas, J., concurring)

(noting that if abused, “forfeiture could become more

like a roulette wheel employed to raise revenue from

innocent but hapless owners”): United States v. James

Daniel Good Real Property, 510 US. 443, %1-82, 114

S. Ct. 492, 126 L.Ed.2d 490 (1993) (Thomas, J., concur-

ring in part and dissenting in part); Michele M. Jochner,

Illinois Bar Journal, 87 Th. B.J. 78, 79 (1999) (“(T }he

relative ease with which the government can seize and

forfeit property, when measured against the dispro-

portionately punitive nature of some forfeitures, has

caused concern that the considerable revenue added by

the forfeited assets to the government's coffers may

Spur overzealous prosecution.” (footnote omitted)). The

concerns raised by allowing the federal government to

fill its coffers through seizures of property for minor

offenses, see United States ". Bajakajian, 524 US. 321,

11S 'S. Ct. 2028, 2032, 14] L.Ed.2d 314 (199s) (yovern-

ment seized $357,144 in cash that Bajakajian attempted

lle

Forfeiture proceedings invulve suits by the federu|

kovernment ayainst the property. See, eg, United States wv. ]

Parcel of Real Property, Lot 4, Block 5 of Raton Acres, WA F Yd

IST, 490 (9th Cir, 194g)

Na

to leave the country with without a a

~" lt te rting requirements), Colere-79 vee ' for-

federal bie n.d, 693, 94 8. Ct. 2080 ($20,000 yacht for

sien tena aa the discovery of one bp orem

igarette), simply do not arise under section 4 “en

a do not reap a financial windians wae

since

evict tenants. ; i

Second, to seize property under = wrest wert

vision, the federal atbrdagencesgo = ‘prohibi ted pur-

rth the burden then shifting tothe leaseholer

BES, — e evidence, .

ti establish, y a poe | Parcel b

pate eA Lot 4, Block 5 of Eaton Acres, 904 F.

hoes > cath ( ‘ir 1990). Probable cause 1s, of eounee, Y

te > ce of proof than the ries Speen = -

parading typically required in civil proceeding

pane ’ d States p. All Right, Title & ner se ‘aes

See U n ( & Bldg. Known as 303 West 116th posing

Fee ew York, WL F.2d 288, 291 (2d Cir, 19%

et , aealla ” ; One 56-Foot Motor room ‘aa

apse 8 702 F.2d 1276, 1281 (9th os beans no

summary seizure procedures are aver “" 1 USC.

jon ‘ernment in forfeiture cases. me =

we 0 “The ability to seize a leaseholder's gt y

§ rte ii procedures—without proof that it is —

ne than not that the resident engaged ni: neh. ol

mitted, drug-related criminal and the Sua Court

; SS -

snaey apy i id. § 881(a)(7) (incorporat-

ave se :

4 1

eb

operty only where the drug offense 1s srs br

- : ¢ than one year imprisonment), Bajakajian,

more ye

Cal. Rptr. 784, 797-96 & 797 n. 10( 195).

feiture provision of section SM1(a(7), in addition to re

certain general constitutional concerns, applies directly

termination of tenancies as authorized under section 1L47d(/ 5).

See Dissenting Op. at 654-

ment, it is untenable, because the anti-forfe

terms governs only forfeitures made “unde

forfeitures to the federal

99a

S. Ct. at 2031 (holding that forfeitures may violate the

Eighth Amendment Excessive Fines Clause)."’

Congress sensibly limited forfeiture to the more

reprehensible violations of our drug laws—specifically,

drug offenses punishable by more than one year and

committed with the knowledge or consent of the lease-

holder. See 21 U.S.C. § 881(a)(7). Congress did not see

the need to limit eviction by PHAs in a similar fashion.

Thus, the “innocent tenants” exception contained in

section 881(a)(7) applies only to that section, and not to

section 1437d(/)(5)."”

LD

Tenants rely heavily on another related statutory

provision, 42 U.S.C. § 1437d(/)\(1), which prohibits

PHAs from including “unreasonable terms and condi-

ions” in their leases. 42 U.S.C. § 1437d(/)(1)," Tenants

argue that there is no sensible reason for evicting a

tenant who does not know of a household member’s or

Although eviction under California law has been denomi-

nated 4 “summary proceeding,” Dissenting Op. at 634 n4. a

landlord seeking to evict a tenant still has to prove the existence of

a ground for eviction by a preponderance of the evidence, Sve

Western Land Office, Inc. v. Cervantes, 175 Cal. App. 4d 724, 220

"At times the dissent appears to argue that the anti-for-

flecting

to the

55. If this is in fact the dissent’s argu-

iture provision by its

r this paragraph,” i.e.,

government pursuant to section SX1(a\(7).

In 199%, this provision was recodified as section 1437d(/(2).

As do the parties, we will continue to refer to this subsection as

(11).

100a

oe ' on

guest's drug-related criminal actly ity apt nag nt

e provisi izing the eviction of a

as ovision authorizing me =

co violates section 1437d(/)(1)'s reasonablen

ena Ss se

requirement. We cannot agree.

, ; avenes

As an initial matter, Tenants argument os

the canon of statutory interpretation oo he eee :

statutory provision typically cannot be _ sori oh

: cific provision. See Green v. Bock Lai on 4 vee

Co 490 U.S. 504, 524-26, 109 5S. Ct. ry nto

J, Be * . ¥ . rr Co. » JT. sib .

557 (1989); Crawford Fitting 70. oo

os v S 437 444-45, 107 S. Ct. 2494, 96 yo ca .

OST). “Where there is no clear intention saehed . . .

= fic statute will not be controlled or nulli a A a

peer one, regardless of the we fr = - a

R tdzanower v. Touche Ross & ¢ 0, 426 5. den -

S. Ct 1989, 48 L.Ed.2d 540 (1976) (quoting gh

Senausl. 417 U.S. 535, 550-51, 94 5. Ct. .

L.Ed.2d 290 (1974)). = | a

Moreover, crime in public honing sae =

' ' i “~—is a seve ;

; its roots in drugs”—1s ve | ;

peed the eviction of households = hee

dealing and drug-using members is a vena gr he P

towards achieving Congress’s self-dec a cary A

owards ! aye 7 4 |

i ; hat is decent, safe,

‘ide public housing t = where

vom illegal drugs.” Id. § 11901. By making a “pore

“o ber’s or guest’s drug-related criminal a ie

email for the tenant’s eviction, Congress create

ty :

at © sss viewed drug-related criminal pontion as

; : ume aie is evidenced by the fact that, with ars. carl

sar vos - | criminal activity, only that which threa e ie

health, sé no pa right to peaceful enjoyment of amas emanate

ealtn, — a ix cause for termination of tenancy, e 4 siete

ser rpenen Bo does not apply to drug-related pon nent y.

avery a ws cause for eviction, See 42 U.S.C. 8 1457d(/ 09).

non-drug-rel

l0la

strong incentive for public housing tenants to refrain

from inviting drug dealers and drug users to their

premises and to ensure that household members and

guests do not sell, manufacture, distribute, use, or

possess controlled substances. See 56 Fed. Reg. 51560,

51566-67. Congress was reasonably concerned with

preventing tenants from turning a blind eye to the con-

duct of a household member or guest.

Requiring PHAs to prove that a tenant knew or

reasonably should have known of a household member’s

or guests’s drug-related criminal activities in order to

evict would hamstring their efforts to rid public housing

of the crime and violence with which low-income fami-

lies must cope on a daily basis. See id. Congress could

reasonably have decided not to create an “innocent

tenant” exception to avoid transforming efficient un-

lawful detainer actions into fact-based and potentially

costly and lengthy legal cases. At present, a PHA can

evict a tenant simply by showing that the tenant, a

member of his household, or his guest used, sold, distri-

buted, manufactured, or possessed a controlled sub-

stance on or near the public housing premises. Such

proof is relatively easy to obtain, since a PHA can offer

arrest or conviction records to prove the drug-related

criminal activity, leaving little room for factual dis-

putes. Significant delays would ensue if PHAs were

required to expend time and effort litigating what the

tenant actually knew or what he should have known.

These are inherently factual issues which will often boil

down to credibility determinations, the resolution of

which will almost always require an actual trial."

*! This would be so even if the knowledge

porated as an affirmative defense with the

tenant to show his “innocence.”

factor were incor-

burden of proof on the

102a

PHAs might well agree that, the faster a drug-dealing

or drug-using household is evicted, the better. More-

over, it may often be difficult to secure admissible proof

of what the tenant knew or should have known. Even if

everyone in the apartment building knows who the

drug dealers and drug users are, few, if any, may be

willing to testify in court—or even to go on the

record—against a tenant with gun-toting, drug-dealing

household members or friends. Witness intimidation is

a very real problem. See 18 U.S.C. § 1512.

The decision not to include an “innocent tenant”

exception also reasonably helps to keep down litigation

costs. It is all too easy to belittle this problem, but we

must remember that PHAs already lack adequate

funding. OHA, for example, stated before the district

court that-it does not even have enough funds to

maintain a full-time security staff at each of its housing

developments. Forcing OHA and other PHAs to utilize

more of their already scarce funds in litigation will

deprive them of money needed to fund other important

activities such as security. To avoid this result is

eminently reasonable. See Phillips Neighborhood Hous.

Trust v. Brown, 564 N.W.2d 573, 575 (Minn. Ct. App.

1997) (“|T]}here is a strong public policy interest in

eliminating drugs from subsidized housing. Evicting

those who violate the lease by having controlled sub-

stances in their apartments is [the landlord’s] most

effective, if not its only effective, means of eliminating

drugs and providing a safe environment.”).

damage to pro

® Property, harass neighbors

illegal activities. The fact that saitate bandlendsienens

rey! ror! or property damage. See, é.g., Conn. Gen

§ 307651) ep hat: Stat. Ann. § 38-120; Or. Rev. Stat

- Lhe rationale underlying making “innocent

A Minnesota st

atute provid ; =

mind © provides that: “In eve

— ~ residential premises, whether in writin rey ou

—_ i po and the lessee or licensee pone. did ya

a unlawfully allow controlled Sdisteeeen ts th

ose

pate in vat ws

or control the conduct. See Phillips Neighborhood Hons

104a _

parents” liable for their children’s actions—to en- wit

courage parents to oversee the behavior of their is oe of mes Representatives and 96 Senators

children—is essentially the same as that underlying we must reer elated to a legitimate housing purpose

Congress’s decision to impose a “no-fault” eviction 1437d(1)(5) is in + ey HUD's interpretation of section

policy—to encourage tenants to monitor the conduct PHAs have dis Teasonable.* Keeping in mind that

of their househ

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