Amicus Curiae Brief — Oakland Housing Authority v. Rucker

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NOV 20 200No5. 00-1770, 00-1781

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Supreme Court of the United States

UNITED STATES DEPARTMENT OF HOUSING

AND URBAN DEVELOPMENT,

Petitioner,

Vv.

PEARLIE RUCKER, et al.,

Respondents.

OAKLAND HOUSING AUTHORITY, ef ai.,

Petitioners,

Vv.

PEARLIE RUCKER, ef al.,

Respondents.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF OF WASHINGTON LEGAL FOUNDATION

AND ALLIED EDUCATIONAL FOUNDATION

AS AMICI CURIAE IN SUPPORT OF PETITIONERS

Allison C. Rosenstock

Latham & Watkins

Daniel J. Popeo

Richard A. Samp

701 B Street, Suite 2100

San Diego, CA 92101

(619) 238-2815

Date: November 9, 2001

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

QUESTION PRESENTED

Whether the lease clause mandated by 42 U.S.C.

§ 1437d()(6) authorizes public housing authorities to

terminate tenancies on the basis of drug-related criminal

activity by household members or guests irrespective of the

tenants’ knowledge of, or control over, the drug-related

criminal activity.

TABLE OF AUTHORITIES

INTERESTS OF THE AMICI CURIAE

STATEMENT

SUMMARY OF ARGUMENT

ARGUMENT

TABLE OF CONTENTS

Drug-Related Criminal Activity in Public Housing

Is a Serious Epidemic and Cannot Be Effectively

Addressed Without Holding Tenants Strictly

Accountable for Bringing Drug Criminals onto

Pe. cia deca recenees

The Statutory Language Unambiguously Provides

for Termination of Tenancy Regardless of the

Tenant's Knowledge of, or Control Over, the

Offending Criminal Activity ..............

The Statutory Context and Legislative History

Also Support Termination of Tenancy Irrespective

of the Tenant’s Knowledge of, or Control Over,

the Offending Criminal Activity ............

A. Related Statutory Provisions ...........

1. 42 U.S.C. § 1437d(c)(4)(AVili) ......

iv

Page

2 SG ae. See os tcedesséoes 18

5. Beas. BO cbseccccsess 19

B. Legislative History ...........+2445. 20

C. Congress Failed To Amend § 1437d(/)

To Include an “Innocent Tenant”

I o-oo idee win ba ee oe oe 21

D. The Eviction of “Innocent Tenants” Does

Not Beget “Absurd Results” ........... 22

CE a ck dacauk oe tueseueee 23

Vv

TABLE OF AUTHORITIES

Page

Cases:

Bailey v. United States,

Ee ee eee 16, 18

Chevron U.S.A., Inc. v. Natural Resources De-

fense Council, Inc., 467 U.S. 837 (1984) ... 6, 16, 17

FCC v. Pacifica Foundation,

Rs PE ccc opesceeetweeeenebes 22

Lindsey v. Normet,

Pt £ ¢etcetakeeesdnceduese 22

Lyng v. International Union, UAW, 7

Dt occenceaeeeéesechnsees 9

Russello v. United States,

DCT, « cédgccctesceneceeess ees 18

United States v. Gonzales,

Ds PO cgecneeeeceedaeens ee 15, 16

Statutes and Regulations:

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,

102 Stat. 4301 (1994 and Supp. IV 1998) .. 2, 6, 11-12

Cranston-Gonzalez National Affordable Housing Act,

Pub. L. No. 101-625, § 504, 104 Stat. 4185 ....... 3

Housing Opportunity Program Extension Act of 1996,

Pub. L. No. 104-120, § 9(a)(2), 110 Stat. 836 ..... 3

United States Housing Act of 1937,

Ge es ER OPED cocccctvectosess 20-21

© BGSPERIIOMANED 2 nc ccc cc cccsccces 8, 17

Dt steneadeeseceesseteces 7,19

SD BGRUED CUPP co cccccccccceccresees 3

vi

Page

§ 1437d(J)(6) (Supp. IV 1998) .......... passim

21 U.S.C. § 881(a)(7) (1994) .........2.000. 6, 18

24 C.F.R. § 966.4(f)(12)) 0. eee 4

SOCTE: SHED oo ccc ectecesececss 4,5

Miscellaneous:

56 Fed. Reg. 51,560; 51,566-51,567 (1991) .. 4, 19, 21

S. Rep. No. 101-316, 101st Cong., 2d Sess. (1990) 7, 20

Fs § § ~— — Frere rower 21

Drugs in Federally Assisted Housing: Hearing on S.566

Before the Subcomm. on Housing and Urban Affairs

of the Senate Comm. on Banking, Housing and Urban

Affairs, 10ist Cong., Ist Sess. (1989) ....... 12, 21

Drug Problems and Public Housing: Hearing Before the

House Select Comm. on Narcotics Abuse and Control,

101st Cong., Ist Sess. (1989) ............. 11-12

Dep't of Hou8ing and Urban Development, A Promise

Being Fulfilled, The Transformation of America's

Public Housing, A Report to the President,

Chapter 5 (July 2000) ............c eee eues 12

HUD Drug Ruling Is Played Down; Streamlining Evic-

tions Process May Not Aid Cities Much, Experts Say,

Wash. Post, Apr. 1, 1989, atA4 ............ 12

INTERESTS OF THE AMICI CURIAE

The Washington Legal Foundation (WLF)' is a non-

profit public interest law and policy center with supporters in

all 5O states. WLF devotes a substantial portion of its

resources to the support of government efforts to ensure that

law-abiding citizens can feel safe while in their homes and

walking in their neighborhoods. In particular, WLF has

appeared before this court as well as other federal and state

courts to support government efforts to control the sale of

illegal drugs and the violence necessarily attendant to such

sales. See, e.g., City of Chicago v. Morales, 527 U.S. 41

(1999); Vernonia School Dist. 47J v. Acton, 515 U.S. 646

(1995); Earls v. Bd. of Education, 242 F.3d 1264 (10th Cir.

2001), cert. granted, _U.S.___, No. 01-332 (U.S., Nov.

8, 2001); Housing Opportunities Comm'n v. Lacey, 332 Md.

56 (1991).

The Allied Educational Foundation (AEF) is a non-

profit charitable and educational foundation based in

Englewood, New Jersey. Founded in 1964, AEF is

dedicated to promoting education in diverse areas of study,

such as law and public policy, and has appeared as amicus

curiae in this Court on a number of occasions.

Amici believe that those who suffer the most from the

drug trade and associated violence are those, such as

occupants of government-subsidized housing, who cannot

afford housing in areas away from the center of drug

activity. Amici believe that the government should take

' Pursuant to Supreme Court Rule 37.6, amici curiae state that no

counsel for a party authored this brief in whole or in part; and that no

person or entity, other than amici and their counsel, contributed

monetarily to the preparation and submission of this brief.

2

every available step to provide all law-abiding citizens --

regardless of income -- with housing that is not ravaged by

the effects of drug dealing.

Amici submit this brief in support of Petitioners with the

consent of all parties. The written consents are on file with

the Clerk of the Court.

STATEMENT

In the interest of brevity, amici curiae incorporate by

reference the Statement contained in the brief of Petitioner

United States Department of Housing and Urban Develop-

ment (“HUD”).

The Statute. In short, public housing in this country

has been devastated by an epidemic of drug-related criminal

activity. Congress responded to this crisis by passing the

Anti-Drug Abuse Act of 1988. Pub. L. No. 100-690,

§ 5122, 102 Stat. 4301 (codified at 42 U.S.C. § 11901 (1994

& Supp. IV 1998)).

At issue here, one of the statute’s key weapons was the

requirement that leases used by public housing authorities

(PHA) shall:

(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 premises, while the tenant is a tenant in

public housing, and such criminal activity shall be cause

for termination of tenancy.

3

42 U.S.C. § 1437d(D(5) (1989). |

This section has been amended several times since its

enactment. In 1990, the Cranston-Gonzalez National

Affordable Housing Act substituted the more specific

“criminal activity that threatens the health, safety, or right to

peaceful enjoyment of the premises” for the introductory

language generally related to criminal and drug activity.

Pub. L. No. 101-625, § 504, 104 Stat. 4185 (codified at 42

U.S.C. § 1437d(D(5) (1994)). In 1996, the statute’s reach

was extended by replacing the phrase “on or near such

premises” with the phrase “on or off such premises.”

Housing Opportunity Program Extension Act of 1996, Pub.

L. No. 104-120, § 9(a)(2), 110 Stat. 836 (codified at 42

U.S.C. § 1437d()(6) (Supp. IV 1998)). Finally, in 1998

subsection (/)(5) was redesignated (/)(6).

As currently codified, the statute requires that public

housing leases shall:

(6) 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 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.

Id. (1998).

HUD’s Regulations. In 1991 HUD promulgated regu-

lations implementing the statute. In the process of doing so,

HUD received comments urging that the regulations include

4

an element of fault, knowledge, or foreseeability on the part

of the tenant. HUD rejected these pleas, concluding that

“[t}he tenant should not be excused from contractual respon-

sibility by arguing that the tenant did not know, could not

foresee, or could not control behavior by other occupants of

the unit.” Public Housing Lease and Grievance Procedures,

56 Fed. Reg. 51,560, 51,567 (Oct. 11, 1991).

As enacted, the HUD regulations closely tracked the

pre-1996 statutory language:

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 the termination of tenancy,

and for eviction from the unit.

24 C.F.R. § 966.4(f)(12)(i). The regulations have since been

revised to take into account the 1996 statutory amendment,

substituting the phrase “on or near such premises” with “on

or off such premises.” See 66 Fed. Reg. at 28,802-28,803

(promulgating 24 C.F.R. § 966.4(f)(12)(ii)(B) and 24 C.F.R.

§ 966.4(2(5)(i)(B)).

5

Importantly, HUD’s regulations do not require PHAs to

evict tenants for every drug infraction, but instead authorize

PHAs to exercise 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.” 24 C.F.R. § 966.4

(D(5)(i).

The Proceedings Below. This case arose when, in late

1997 and early 1998, Petitioner Oakland Housing Authority

instituted separate eviction proceedings against four tenants

pursuant to the lease clause mandated by 42 U.S.C.

§ 1437d(J(6). The tenants, in turn, sought an injunction

against their eviction in the United States District Court for

the Northern District of California. The district court

granted the tenants a preliminary injunction. Pet. App. 138a-

166a.

A panel of the Ninth Circuit reversed the district court

and vacated the preliminary injunction. Pet. App. 68a-137a.

The panel based its decision on the plain language of the

statute, which it held “makes any drug-related criminal

activity engaged in by a tenant, household member, or guest

cause for termination regardless of whether the tenant knew

of such activity." Jd. at 107a.

On rehearing en banc, the Ninth Circuit affirmed the

district court’s decision by a 7-4 vote. Reviewing the proper

interpretation of § 1437d(/(6) de novo, the majority held that

“if a tenant has taken reasonable steps to prevent criminal

activity, but, for a lack of knowledge or other reason, could

not realistically exercise control over the conduct of a

6

household member or guest, § 1437d(/)(6) does not authorize

the eviction of such a tenant.” Jd. at 26a.

The majority found that the language of § 1437d(/)(6)

“does not expressly address the level of personal knowledge

or fault that js required for eviction, or even make it clear

who can be evicted,” and concluded that this silence rendered

the statute ambiguous. Pet. App. 12a. The majority then

examined related statutory provisions and the legislative

history of § 1437d(/)(6) and concluded that “Congress had an

intention on the precise question at issue that is contrary to

HUD’s construction.” Pet. App. lla. Accordingly, the

majority held that “HUD’s interpretation is not entitled to

deference” under Chevron U.S.A., Inc. v. Natural Resources

Lefense Council, Inc., 467 U.S. 837 (1984).

In reaching this conclusion, the majority looked to 21

U.S.C. § 881(a)(7) (1982 ed. Supp. V 1987), a civil

forfeiture statute that includes an “innocent owner” defense

precluding forfeiture “by reason of any act or omission

established by th[e] owner to have been committed or omitted

without the knowledge or consent of that owner.” The

majority noted that Congress in 1988 amended 21 U.S.C.

§ 881(a)(7) specifically to include leasehold interests among

the property that was subject to forfeiture if used to commit

or facilitate a drug-related offense, the same year Congress

first enacted what is now § 1437d(J)(6). See Anti-Drug

Abuse Act of 1988, § 5105, 102 Stat. 4301. The majority

“presume[d] Congress meant [the forfeiture provision and

§ 1437d(D)(6)] to be read consistently.” Pet. App. 17a.

7

The majority also relied on the legislative history of the

1990 amendment to § 1437d(J)(6). The committee report on

the Senate version of the bill stated:

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 circumstances to prevent the

activity.

S. Rep. No. 316, 101" Cong., 2d Sess. 179 (1990).

Rejecting HUD’s argument that the report underscores

“Congress’s intent to confer wide discretion on HUD and the

local PHAs” (Pet. App. 20a), the majority held that the

“reports are very clear that such evictions would not be

appropriate, and that in such circumstances good cause to

evict would not exist.” Jd. at 21a (emphasis in original).

The majority also believed that HUD’s interpretation of

the statute should be rejected because it would lead to

“absurd results” and conflict with § 1437d(/(1)’s prohibition

on “unreasonable” lease terms. Pet. App. 21a. The majority

speculated that the statute would permit eviction, for

example, “if a tenant’s child was visiting friends on the other

side of the country and was caught smoking marijuana” or

for “a drug crime years earlier.” /d. at 22a.

Finally, the majority concluded that the principle of

constitutional avoidance supported its result, because

“[pJenalizing conduct that involves no intentional wrongdoing

by an individual can run afoul of the Due Process Clause.”

Pet. App. 24a. Without discussing any issues concerning the

allocation of the burden of proof, the majority stated that

“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.” Pet. App. 28a (emphasis

added); see also id. at 29a and n.10.

The en banc dissent concluded that the statutory

language was “clear on its face” in permitting evictions

without regard to the tenants’ knowledge. /d. at 33a.

Although the dissent believed the statutory language was

dispositive, the dissent went on to examine the statutory

context and legislative history, concluding that both

supported HUD’s construction of the statute. For example,

the dissent argued that Congress’s inclusion of express

“innocent owner” language in the forfeiture statute merely

underscored the significance of Congress’s omission of any

similar language in § 1437d(J(6). Pet. App. 42a-44a. See

also id. at 40a-42a (discussing 42 U.S.C. § 1437d(c)(4)(A)

(1994)).

The dissent disputed the majority’s contention that

permitting the eviction of tenants who were ignorant of the

drug-related conduct would violate § 1437d(/)(1)’s ban on

“unreasonable” lease terms. In the dissent’s view, “[t}he

ignorant tenant eviction provision rationally addresses”

Congress’s concerns about the serious problems caused by

drug crimes in public housing projects, because it gives the

public housing authority “a credible deterrent against

criminal activity” and because “requir[ing] proof of

knowledge on the part of the tenant of the criminal activity of

a guest is impractical” in any case in which the tenant was

9

not himself found in the presence of the offender during the

drug-related criminal activity. Pet. App. 5la. Moreover,

the dissent stated that the provision empowers other tenants

to report drug-related activity, and thereby to help clean up

their own projects, “without fearing the possibility of

retaliation” from drug dealers. Jd. at 53a. The dissent

observed that “a provision permitting the eviction of

unknowing tenants because of the wrongdoing of their

household members or guests is a common and enforceable

provision in leases between private owners of property and

their tenants” and that fact “attests to [its] reasonableness.”

Id. at 54a.

Finally, the dissent concluded that § 1437d(/)(6) is

constitutional without an “innocent tenant” exception. The

dissent explained that “[t)he failure to distinguish between the

knowing and unknowing tenant need survive only minimal

scrutiny,” especially in light of the fact that “Congress must

draw distinctions ‘in order to make allocations from a finite

pool of resources.’” Pet. App. 60a (quoting Lyng v.

International Union, UAW, 485 U.S. 360, 373 (1988)). The

dissent asserted that § 1437d(/)(6) easily satisfies minimal

scrutiny as it “facilitates the eviction of truly culpable

tenants, creates incentives for all tenants to report drug-

related criminal activity, and provides a credible deterrent

against criminal activity.” /d. at6la. And “[bjecause the

eviction provision is discretionary, the provision also

motivates tenants to accept remedial actions short of

eviction.” Ibid.

The Court granted review in Case No. 00-1770 on

September 25, 2001 and in Case No. 00-1781 on October 1,

2001 and consolidated the cases.

10

SUMMARY OF ARGUMENT

The severity of the epidemic of drug-related criminal

activity in public housing cannot be overstated. Millions of

law abiding citizens are hostages in their own homes. They

live in constant terror of gangs, shootings, and violence,

intimidated into silence and inaction.

Recognizing the gravity of the problem, Congress

enacted § 1437d(/)(6) of the Anti-Drug Abuse Act of 1988 to

provide PHAs a potent weapon to combat the scourge of

drugs. In doing so, Congress unambiguously provided that

PHAs may terminate tenancies for drug-related criminal

activity of those on public housing premises at the tenant’s

behest regardless of whether the tenant knew of the drug

activity or had the ability to prevent it.

The Ninth Circuit majority opinion below wholly

eviscerates § 1437d(/)(6) and thwarts its intended effect. The

vast majority of criminal activity in public housing is

perpetrated by non-residents. By relieving tenants of strict

accountability for the criminal elements they invite onto

public housing, the Ninth Circuit has effectively rendered

PHAs powerless to improve the safety of their residents.

Moreover, by assigning PHAs the burden of proof con-

cerning the tenants’ knowledge, the Ninth Circuit has made

it virtually impossible for PHAs to evict even those tenants

who do know of the criminal activity of their household

members and guests.

The Ninth Circuit majority committed two fundamental

errors in reaching its conclusion. First, it erred in looking

beyond the plain statutory language where that language wes

11

unambiguous. Second, it improperly concluded that

Congress intended to impose a knowledge or control require-

ment. The statutory scheme and legislative history of

§ 1437d(/)(6) belie that conclusion. Thus the Ninth Circuit

erred in refusing to defer to HUD’s reasonable interpretation

of the statutory language.

ARGUMENT

I. Drug-Related Criminal Activity In Public Housing Is

a Serious Epidemic and Cannot Be Effectively

Addressed Without Holding Tenants Strictly

Accountable for Bringing Drug Criminals onto

Public Housing

The dire consequences of the drug epidemic in public

housing are well-known and beyond dispute. In enacting the

Anti-Drug Abuse Act of 1988, Congress found in pertinent

part:

(2) public housing projects in many areas suffer from

rampant drug-related crime;

(3) drug dealers are increasingly imposing a reign of

terror on public housing tenants;

(4) the increase in drug-related crime not only leads to

murders, muggings, and other forms of violence against

tenants, but also to deterioration of the physical

environment that requires substantial government

expenditures. . .

12

Pub. L. No. 100-690, § 5122, 102 Stat. 4301 (codified at 42

U.S.C. § 11901 (1994 & Supp. IV 1998)).

These findings are equally, if not more, pertinent today.

In a rare point of agreement, both the majority and dissent

below acknowledge the continuing scourge. See Pet. App. 2a

(majority opinion, “many of our nation’s poor live in public

housing projects that, by many accounts, are little more than

illegal drug tharkets and war zones. Innocent tenants live

barricaded behind doors, in fear for their safety and the

safety of their children.”); Pet. App. 32a (dissenting

opinion, notirig the “devastating and worsening epidemic of

drug related crime and violence in public housing”).

The Ninth Circuit opinion below effectively ensures the

perpetuation of the crisis. The vast majority of criminal acts

in public housing are committed by non-residents. See

Department of Housing and Urban Development, A Promise

Being Fulfilled, The Transformation of America’s Public

Housing, A Report to the President, Chapter 5 (July 2000)

(77 percent of the arrests in public housing in Macon,

Georgia in 1997 were non-residents); Torry and Ifill, HUD

Drug Ruling is Played Down; Streamlining Evictions Process

_May Not Aid Cities Much, Experts Say, Wash. Post. Apr. 1.

1989 at A4 (more than 85 percent of arrests on public

housing grounds in San Francisco during study period

involved non-residents); Drugs in Federally Assisted

Housing: Hearing on S. 566 before the Subcomm. on

Housing and Urban Affairs of the Senate Comm. on

Banking, Housing and Urban Affairs, 101" Cong., 1" Sess.

11 (1989) (statement of Vincent Lane) (approximately 80

percent of the erime in Chicago’s public housing during study

period was atttibuted to non-residents); Drug Problems and

13

Public Housing: Hearing Before the House Select Comm. on

Narcotics Abuse and Control, 101" Cong., 1" Sess. 6 (1989)

(testimony of Secretary Kemp). Quite simply, inviting drug

criminals onto public housing increases the likelihood of drug

crimes on site. The Ninth Circuit’s imposition of a barrier to

the eviction of tenants responsible for bringing a criminal

element on site renders PHAs powerless precisely where they

need the strongest weapons.

Moreover, by arguably assigning the burden of proof

concerning the tenant’s knowledge of, or control over, the

wrongdoer to the PHA (see Pet. App. 28a), the Ninth Circuit

has made it unlikely PHAs will be able to evict even those

tenants who do have knowledge of their household members’

or guests’ drug activity, parties who all sides agree should be

evicted. Faced with the possibility of eviction, and terrorized

by the fear of retribution, the tenant has every incentive to

deny knowledge or control. Witnesses will likewise be

frightened into silence. And the household member or guest

engaged in the criminal activity has every incentive to

confirm the tenant’s denial. It will be all but impossible for

PHAs to prove otherwise in these circumstances, particularly

given that PHAs do not enjoy prosecutorial investigative

powers such as grand jury subpoenas and wiretaps.

. The end result of the Ninth Circuit’s decision is to make

it easier for PHAs to evict a tenant for not paying rent than

for posing a serious threat to the health and safety of the

other residents. Compounding this untenable result, by

opening the door to excuses for tenants’ professed lack of

knowledge, the majority undermines tenants’ motivation to

eradicate drug activity from public housing.

14

Ironically, while the objection of the Ninth Circuit and

others to the eviction of so-called “innocent tenants” is

clearly motivated by notions of equity and fairness (see Pet.

App. 22a-23a), the Ninth Circuit’s decision begets inequity

and unfairness. Those who object to the eviction of

“innocent tenants” are concerned with the hardship to the

evicted tenant and household members. Protecting the

“innocent tenant” and household members, however,

sacrifices the interests of the many (the law abiding tenants

victimized by drugs and crime) to the interest of the few (the

evicted tenants and household members). Given that demand

for public housing exceeds supply, it also necessarily

displaces other equally needy families on the waiting list.

Therefore, the Ninth Circuit’s opinion cannot be justified on

equity or fairness grounds.

Il. The Statutory Language Unambiguously Provides for

Termination of Tenancy Regardless of the Tenant’s

Knowledge of, or Control Over, the Offending

Criminal Activity

Section 1437d(/(6) is unmistakably clear. It provides,

“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.”

It contains no mention of a requirement that the tenant must

have knowledge of, or control over, the drug-related criminal

activity of household members or guests in order to support

eviction.

Basic rules of grammar dictate that the statute is not

susceptible to a reading that imposes a control requirement

15

with respect to household members and guests. The statute

contemplates four categories of individuals whose drug-

related criminal activity can be cause for eviction: (i) the

tenant, (ii) members of the tenant’s household, (iii) the

tenant’s guests, and (iv) other persons under the tenant’s

control. The control requirement modifies only the fourth

category. It has no applicability to the first three.

To justify its resort to extra-statutory materials, the

majority contends that the statutory language is ambiguous.

This conclusion runs afoul of several basic precepts of

Statutory interpretation. First, contrary to the majority’s

assertion (see Pet. App. 12a), the fact that the statute does not

expressly state the level of knowledge or fault required, does

not render it ambiguous. To hold otherwise, ignores the

plain meaning of the term “any” in the phrase “any drug-

related criminal activity” can be cause for termination of a

tenancy. As stated by the Ninth Circuit panel, “A statute

covering ‘any drug-related criminal activity’ has the same

exact scope as one covering ‘any drug-related criminal

activity including that of which the tenant is unaware’ or ‘any

drug-related criminal activity regardless of the tenant's

knowledge thereof.’” See Pet. App. 87a. “Read naturally,

the word ‘any’ has an expansive meaning, that is, ‘one or

some indiscriminately of whatever kind.’” United States v.

Gonzales, 520 U.S. 1, 5 (1997) (quoting Webster’s Third

New International Dictionary 97 (1976)).

Further, the claim of ambiguity flouts the import of the

disjunctive “or” preceding the phrase “other person.” ~The

“or” serves to differentiate “other persons” -- who must be

“under the tenants control” -- from the first three categories

(the tenant, members of the household, guests) for whom no

16

similar limitation is applicable. Reading the “or” entirely out

of the statute in order to support the assertion that the phrase

“under the tenant’s control” modifies each of the four

categories, impermissibly renders the enumerated categories

superfluous. Bailey v. United States, 516 U.S. 137, 145

(1995) (quoting Ratzlaf v. United States, 510 U.S. 135, 140-

141 (1994)) (“we read [the statute] with the assumption that

Congress intended each of its terms to have meaning. ‘Judges

should hesitate ... to treat [as surplusage] statutory terms in

any setting.’”).

In the face of this unambiguous statutory language, the

majority erred in looking beyond the statute. “Where there

is no ambiguity in the words, there is no room for

construction.” United States v. Gonzales, 520 U.S. at 8

(quoting United States v. Wittberger, 18 U.S. (5 Wheat.) 76

(1820)).

III. The Statutory Context and Legislative History Also

Support Termination of Tenancy Irrespective of the

Tenant’s Knowledge of, or Control Over, the

Offending Criminal Activity

Even assuming, arguendo, that resort to extra-statutory

language was appropriate, the Ninth Circuit erred in refusing

to defer to HUD’s interpretation ~f § 1437d(/)(6). The

framework for analyzing the deference due HUD is set forth

in Chevron U.S.A., Inc. v. Natural Resources Defense

Council, Inc. , 467 U.S. 837 (1984). Under Chevron, “if the

intent of Congress is clear, that is the end of the matter; for

the court, as well as the agency, must give effect to the

unambiguously expressed intent of Congress.” Jd. If the

statute is silent or ambiguous, the court must defer to the

17

agency's interpretation unless its is arbitrary or capricious.

Id. at 842-843 & n.9.

The majority found that Congress “had an intention on

the precise question at issue” -- namely, that PHAs are not

permitted to evict so-called “innocent tenants.” Pet. App.

10a-l1la. Accordingly, the majority concluded that HUD’s

interpretation was not entitled to deference. Jd. These

findings are contrary to the statutory scheme surrounding

§ 1437d(/)(6), the legislative history of the statute, and

Congress’s treatment of it since its enactment, all of which

indicate that Congress intended to permit discretionary

eviction of those who invite a criminal element onto public

housing, irrespective of their culpability.

A. Related Statutory Provisions -

1. 42 U.S.C. § 1437d(c)(4)(A)(iii) -

As it stood until 1996, 42 U.S.C. § 1437d(c)(4)(A)(iii)

prohibited individuals or families who had been evicted from

public housing because of drug-related activity from

receiving a statutory housing preference for three years, but

exempted anyone who did not participate in or have

knowledge of the criminal activity. The distinction in

§ 1437d(c)(4)(A)(iii) between evicted tenants who had

knowledge of the drug-related activity and those who did not

have such knowledge would be unnecessary surplusage if

“innocent tenants” could not be evicted under § 1437d(/)(6).

Under the well-established principle that statutes are to be

construed so as to give meaning to each word, 42 U.S.C.

§ 1437d(c)(4)A)(iii) indicates that Congress intended the

18

eviction of “innocent tenants” under § 1437d(/)(6). Bailey v.

United States, 516 U.S. at 145.

2. 21 0U.S.C. § 881(a)(7)

21 U.S.C. § 881(a)(7) makes leasehold interest used to

commit drug-related criminal activities subject to forfeiture,

but includes an explicit exemption for “innocent owners.”

“[N]o property shall be forfeited under this paragraph, to the

extent of an ihterest 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 the owner.”

See 21 U.S.C. § 881(a)(7). The inclusion of the express

“innocent owner” exception in the civil forfeiture statute

evidences Cohgress’s ability to separately provide for

“innocent tenants” when it wishes to do so.

Moreover, because § 881(a)(7) was amended to include

leasehold interests as property subject to forfeiture

concurrently with the original passage of § 1437d(/)(6) as

part of the Anti-Drug Abuse Act of 1988, canons of statutory

construction call for the disparate inclusion and exclusion of

an “innocent tenant” exception to be presumed intentional

and given effect. “[W]here Congress includes particular

language in one section of the statute but omits it in another

section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate

inclusion and exclusion.” Russello v. United States, 464

U.S. 16, 23 (1983) (quoting United States v. Wong Kim Bo,

472 F.2d 720, 722 (5" Cir. 1972)).

While the parties and lower courts can and do dispute

the wisdom of Congress’s distinction between forfeiture and

19

eviction, that dialogue has no impact on the effect to be given

Congress’s words.

3. 42 U.S.C. § 1437d(D)(1)

Section 1437d(/(1) bars PHAs from including unreas-

onable terms and conditions in their leases. The majority

makes a normative judgment that evicting “innocent tenants”

is unreasonable and thus concludes that § 1437d(/)(6) cannot

be read to authorize the eviction of “innocent tenants”

without conflicting with § 1437d(J)(1). Pet. App. 13a-15a.

To the contrary, eviction of “innocent tenants” is

rationally related to the PHAs' legitimate end of eradicating

drugs from public housing. By removing the insuperable

obstacle of proving tenants’ knowledge, strict accountability

serves as a credible deterrent against drug-related criminal

activity and enables public housing residents to reclaim the

safety of their homes without fear of retribution. See Pet.

App. 49a-55a. Also, it is eminently reasonable for HUD to

assume that public housing will be safer if PHAs evict tenants

whose household members and guests have been engaging in

drug activity, regardless how "innocent" of wrongdoing those

tenants may be.

Moreover, it is commonplace for conventional leases to

hold tenants liable for the activities of their household

members and guests. The “contractual responsibility of the

tenant for acts of unit occupants is a conventional incident of

tenant responsibility under normal landlord-tenant law and

practice, and is a valuable tool for the management of the

housing.” 56 Fed. Reg. 51560, 51566 (Oct. 11, 1991). This

entirely reasonable and prudent assignment of responsibility

20

does not become unreasonable merely because the

government is the landlord.

B. Legislative History of 1437d(J)(6)

The only legislative history concerning § 1437d(/)(6) is

a statement by the Senate Banking, Housing and Urban

Affairs Committee made in connection with the 1990

amendment of the statute. It provides:

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 circumstances to prevent the

activity.

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

U.S.C.C.A.N. 5763, 5941.” On its face, this language could

arguably support either side.

However, viewed in the broader context of the United

State Housing Act’s declared purpose to “vest in local public

housing agencies . . . the maximum amount of responsibility

and flexibility in program administration,” (See 42 U.S.C.

2 Notably, this Committee report is silent concerning the eviction of

household members. This silence further weakens the majority’s finding

that Congress had an intent on the precise question at issue, a finding

necessary to render HUD’s allegedly contrary construction of the statute

impermissible.

21

§ 1437 (Declaration of Policy)), the committee report bolsters

the conclusion that Congress intended to provide PHAs the

widest discretion. A Senate committee’s precatory suggestion

that eviction of an “innocent tenant” would not be

appropriate is but one consideration to be factored by PHAs,

with the ultimate decision delegated to the more experienced

judgment of the PHA. Were the committee’s suggestion

meant to be dispositive, there would be no need for PHAs to

exercise their “humane judgment.”

C. Congress Failed To Amend § 1437d(J)(6) To Include

an “Innocent Tenant” Defense

Congress’s failure to amend § 1437d(/)(6) in the 13

years since its passage attests to Congress’s intent to provide

for strict accountability for those who bring drug criminals

onto public housing. Congress was well aware of the

criticism directed at the “innocent tenant” eviction provision.

Such criticism was expressed directly to Congress. See e.g.,

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.

Doc. No. 101-234, at 90-91 (1989) (associate director of the

American Civil Liberties Union argued to Congress: “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.”). Criticism was also voiced to HUD in connection

with its adoption of implementing regulations. See 56 Fed.

Reg. at 51,566 (1991) (“Comment by legal aid and by tenant

organization... alleges that 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

22

conduct, . . . or if the tenant has done everything

‘reasonable’ to control the criminal activity.”).

Despite this criticism, and despite twice otherwise

amending § 1437d(/(6) since its enactment, Congress

declined to amend the “innocent tenant” eviction provision.

This inaction is at least some evidence that Congress intended

for, and was satisfied with, the eviction of “innocent

tenants.”

D. The Eviction of “Innocent Tenants” Does Not Beget

“Absurd Results”

The majority contends that § 1437d(/)(6) cannot be read

to authorize the eviction of “innocent tenants” because such

reading would lead to “absurd results,” and proffers a few

extreme, worse-case hypothetical in support. See Pet. App.

21a-23a. It is well-settled that hypothetical application of

Statutory language is not a valid consideration in statutory

construction. FCC v. Pacifica Foundation, 438 U.S. 726,

743 (1978) (“We will not now pass upon the constitutionality

of these regulations by envisioning the most extreme

application conceivable, [citations omitted] but will deal with

these problems if and when they arise.”); Lindsey v.

Normet, 405 U.S. 56, 65 (1972) (“[P]ossible infirmity in

other situations does not render [a statute] invalid on its

face.”).

Further, as discussed above, the results obtained if

“innocent tenant” evictions are permitted are not absurd. To

the contrary, they are necessary to protect the health and -

safety of vulnerable citizens who are precluded from helping

23

themselves by the very threat of violence § 1437d(J)(6) is

designed to address.

CONCLUSION

For the foregoing reasons the judgment of the U.S.

Court of Appeals for the Ninth Circuit should be reversed.

Respectfully submitted,

Allison C. Rosenstock

Latham & Watkins

701 B Street, Suite 2100

San Diego, CA 92101

(619) 238-2815

Daniel J. Popeo

Richard A. Samp

(Counsel of Record)

Washington Legal Foundation

2009 Massachusetts Ave., NW

Washington, DC 20036

(202) 588-0302

November 9, 2001