# Appendix — Department of Housing and Urban Development v. Rucker > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0467%3A03 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2002 - **Citation:** 535 U.S. 125 ## Text 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DEFENDANT Argued and Submitted March 12, 1999 Opinion filed Feb. 14, 2000 Rehearing En Banc Granted and Opinion Withdrawn Aug. 18, 2000.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 l3a 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 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 Int'l, Inc., 686 F.2d moi 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 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 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 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 household members and guests. Just as states individual pahenegatay - deciding whether to evict in reasonably impose liability even on “innocent parents,” Congress to obli a hold that it is not unreasonable for Congress reasonably may authorize the eviction of sure that their a e all public housing tenants to en- “innocent tenants.” Such “no fault” liability is not from engagin ee members and guests refrain limited to parent-child cases. In the environmental con- other activiti vd sh rug-related criminal activities or text, a property owner can be held liable for the costs of other public hous; at threaten the health or safety of cleaning up waste on his property even if the waste was using tenants,” y legally deposited by a previous property owner. See F 42 U.S.C. § 9607. Thus, even an “innocent property Although bot owner” can be subjected to substantial liability under the legislative — Ap arguments based upon need to enamine ta co’ € conclude that there is no the Superfund laws. Any conclusion to the contrary is squarely foreclosed by the recent enactment of 42 U.S.C. § 13662(a)(1), States v.G erates v. Gonzales, 520 U.S which provides: L.Ed.2d 132 (1997): City 7 1, 6, 117 S. Ct. 1032, 137 Notwithstanding any other provision of law, a 154 F.3d 1025 1030 (9t1 yt Auburn v. United States public housing agency or an owner of federally command is stral h h Cir. 1998) ( “(Where statutory assisted housing (as applicable), shall establish stan- resort to legislati ~ erward, ‘there is no reason to dards or lease provisions for continued assistance or ive history.” (citation omitted)), cert occupancy in federally assisted housing that allow “We realize, as does the dj aa the agency . . . to terminate the tenancy or assis- existence when this sony dissent, that section 13662 was not in tance for any household with a member—(1) who policy decisions reflected in in govtttien ae Nevertheless, the Ss on The scattered case law on point conclusion. See Green, 657 So.2d - generally supports our 42 U.S.C. § 13662(a) (emphases added). Congress, in Yonkers Mun. Hous. Auth 254 555; cf. Coleman v. City of passing this statute expressly allowing the eviction of 25 (N.Y. App. Div. 1008) teliiemaee 2d 482, 679 N.Y.S.2d 624, 624. any household with a drug-using member, declared its : — actions); City of South hag — of tenant on the basis view that it is reasonable to evict a tenant on the basis a App. 4th Supp. at 16-20. But see Richy pie Atthes Al of another’s crimes. Unless we are so bold as to say felmond Redevelopment & Hous, / ‘ehmond Tenants Org. v, s . s (E.D. Va. 199% radi ous. Auth., 75] F. Su y - 140) (concluding that it is unre + SEPP. 1204, 1206 that a policy decision reflected in legislation enacted for an y conduct that occurs off-premises), 106a denied, 527 U.S. 1022, 119 S. Ct. 2367, 144 L.Ed.2d 771 (U.S. 1999). We have warned that: “Reliance on such history is particularly suspect when it is inconsistent with the ordinary understanding of the words in the statute and an otherwise reasonable agency inter- pretation.” Leisnoi, Inc. v. Stratman, 154 F.3d 1062, 1070 (9th Cir. 1998); see also id. (“{TJhe use of legis- lative history as a tool for statutory interpretation suffers from a host of infirmities: not only is legislative history ‘not passed by both houses of Congress and signed into law by the President,’ but it also ‘need not be written with the same care, Or scrutinized by those skeptical of the statute with the same care, as statutory language.’” (citations omitted)). In any event 1 if we were to resort to it here, the relevant legisic history is ambiguous. Both HUD and Tenants focus on the following statement by the Senate Banking, Housing and Urban Affairs Com- mittee (“Committee”): The Commi:tee 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 circumstances to prevent the activity. S. Rep. No. 101-316, at 179 (1990), reprinted in 1990 U.S.C.C.A.N. 5763, 5941. Tenants contend that the Committee’s statement that “eviction would not be the appropriate course” indicates that section 1437d(1)(5) does not authorize the eviction of tenants with no knowledge of the drug-related criminal activities. HUD, focusing on a different part of the same passage, 107a emphasizes that the Committee ici mes hat 01 explicitly e mectconay Serna decisions to the 0 tei moral j . gment' of the local PHA, reasoning that pow do or “ not intended to give PHAs discretion to pare: a with no knowledge of the drug-related ae . — it would not have talked about the ne = eel em judgment” by PHAs since there so nb _ gment to exercise. Whether the legis- a ad olsters HUD’s position or Tenants’ i ar. There are strong arguments on both sides. To the extent that legislative hi gislative hist var not of value in the present a is ever helpful, it is V “at rm rernny that the plain language of 42 eka - A. : (/)(5), considered both by itself aad in re theo roader statutory context, makes any drug- 0 oe activity engaged in by a tenant, coats, ces ° or guest cause for termination regardless —— ohm tenant knew of such activity, we must Soman 4 this statute is consistent with the here Se ; onstitution. Tenants maintain that the yenende ame oy provision violates their Fourteenth che iene i 7 to intimate association as well as png, edi om iment prohibition against excessive whether section 14374(I\5) violates the Firet Anat a ) es the First Amend- — ——e vp henna this provision that the yeti npn ed that the statute, as we have concluded interpreted, would be unconstitutional. 108a A - : ‘ rorKers . on i t to discourage W0 : sed upon = cpr h resulting costs that would be impose ; te prego ysehold, the Supreme Court rejectet ler” * . “ ( -eument on the basis that the statute = sa it sa tividesls not to associate with one ort acai living “directly and substantially interfere ; +184 (quoting sssiqneects.” Id. at 364-65, 108 rae Ct. 2727, 91 Lyng ». Castillo, 477 U.S. 635, 633, se 1437a(1)5) L.Ed.2d 527 (1986)). Similarly gt ssoelahe with one —. indivi Is not toa ; ; not order indiv idua ; iz interfere pe nor does it directly and a om ani with family living arrangements. = one Aneneter?" vi late the Constitution to deny an re ’s decision to ys | stamps on the basis of one — aa to evict posers ate in a strike it is not unconstitutl ber’s drug articips ’ s ame household on account of one mem use. ;, at of the Fifth ee ts with that 0 - conclusion compor er" ant on the C eeait, which has held that evicting 4 tenant the entire ho 109a basis of his son’s drug-related criminal activity does not interfere with constitutionally protected associational rights. See Chavez v. Housing Auth. of El Paso, 973 F.2d 1245, 1247-48 (5th Cir. 1992). Similar constitutional challenges have been reject [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0467%3A03. Public record. Not legal advice.