Appeals from the United States District Courtfor the Northern District of CaliforniaCharles R. Breyer, District Judge, PresidingArgued and SubmittedMarch 12, 1999--San Francisco, CaliforniaFiled February 14, 2000Before: Joseph T. Sneed, Diarmuid F. O'Scannlain, andWilliam A. Fletcher, Circuit Judges.Opinion by Judge O'Scannlain;Dissent by Judge W. Fletcher
_____________________________COUNSEL Howard S. Scher (argued), United States Department of Jus-tice, Washington, D.C.; Carole W. Wilson, Howard M. Sch-meltzer, Harold J. Rennett, Office of Litigation and FairHousing Enforcement, Office of General Counsel, UnitedStates Department of Housing and Urban Development,Washington, D.C., for defendant-appellant United StatesDepartment of Housing and Urban Development.Gary T. Lafayette (argued), Susan T. Kumagai, Lafayette,Kumagai & Clarke, San Francisco, California, for defendants-appellants Oakland Housing Authority and Harold Davis.Ira Jacobowitz (argued), Oakland, California; Martin S. Che-cov, Whitty Somvichian, O'Melveny & Myers, San Fran-cisco, California; John Murcko, Oakland, California; AnneTamiko Omura, Donna Teshima, Robert Salinas, Oakland,California; William Simpich, Matthew Siegel, Oakland, Cali-fornia, for plaintiffs-appellees Pearlie Rucker, HermanWalker, Willie Lee, and Barbara Hill.H. Joseph Escher III, Howard, Rice, Nemerovski, Canady,Falk & Rabkin, San Francisco, California, for amicus curiaeCenter for the Community Interest.
_____________________________OPINION O'SCANNLAIN, Circuit Judge:We must decide whether a local public housing agencymay evict a tenant on the basis of drug-related criminal activ-ity engaged in by a household member on or near the prem-ises regardless of whether the tenant was personally aware ofsuch activity.IEstablished in 1937, the first public housing program wasintended to assist states and localities in providing affordablehousing to low-income families. See Pub. L. No. 75-412, 50Stat. 888 (1937). The Housing Act of 1937 vested responsibil-ity for managing, maintaining, and operating public housingdevelopments in local public housing agencies ("PHAs")rather than in the federal government. See 42 U.S.C. S 1437.Over 3,192 local PHAs currently oversee the 1,326,224 publichousing units that are home to over 3 million people. See U.S.Dep't of Hous. & Urban Dev., "One Strike and You're Out":Policy in Public Housing 3 (1996); Office of Policy Dev. &Research, U.S. Dep't of Hous. & Urban Dev., A Picture ofSubsidized Households, Volume 11, United States: LargeProjects & Agencies 14, 72 (1996); Michael H. Schill,Distressed Public Housing: Where Do We Go From Here? ,60 U. Chi. L. Rev. 497, 499-522 (1993). In exchange formonetary assistance for the construction and operation of low-income housing, local PHAs agree to abide by federal regula-tions promulgated by the Department of Housing and UrbanDevelopment ("HUD") under the United States Housing Act.See generally 42 U.S.C. S 1437 et seq .; see also Hodge v.Department of Hous. & Urban Dev., 862 F.2d 859, 860-61(11th Cir. 1989) (discussing the relationship between HUDand PHAs); Project B.A.S.I.C. v. Kemp, 947 F.2d 11, 20 (1stCir. 1991); Thomas v. Chicago Hous. Auth., 919 F. Supp.1159, 1163 (N.D. Ill. 1996).Intended as a sanctuary for low-income families, see Officeof Policy Dev. & Research, supra, at 72 (reporting that publichousing residents have an average total household income of$8,500 per year), many public housing projects -- primarilythe larger ones located in urban areas -- have been trans-formed into havens of crime, with severe and tragic social andphysical distress resulting for residents and for the surround-ing neighborhoods generally. See U.S. Dep't of Hous. &Urban Dev., supra, at 3; Schill, supra , at 500-01. A WhiteHouse report states: "Public housing has become a stagingarea for the distribution of drugs and the violence related todrug trafficking and consumption." Office of Nat'l Drug Con-trol Policy, Executive Office of the President, National DrugControl Strategy 64 (1991); see also D. Saffran, "PublicHousing Safety Versus Tenants' Rights," 6 The ResponsiveCommunity 34-35 (Fall 1996) (discussing the problem ofdrugs and crime in public housing).In 1988, Congress took decisive steps towards improvingliving conditions in public housing, attacking the problem ofdrugs and crimes, in particular, in the Anti-Drug Abuse Actof 1988. Beginning with the premise that "the Federal Gov-ernment has a duty to provide public and other federallyassisted low-income housing that is decent, safe, and freefrom illegal drugs," and that "public and other federallyassisted low-income housing in many areas suffers from ram-pant drug-related crime," 42 U.S.C. S 11901(1)-(2),1 Congresssought to create an effective and efficient mechanism for rid-ding public housing of those who sell or use drugs. More spe-cifically, Congress required that: Each public housing agency shall utilize leases which-- . . . . (5) provide that a public housing tenant, any member of the tenant's household, or a guest or other person under the tenant's control shall not engage in criminal activity, including drug-related criminal activity, on or near public housing prem- ises, while the tenant is a tenant in public housing, and such criminal activity shall be cause for termina- tion of tenancy.42 U.S.C. S 1437d(l)(5) (1989).2 In 1990 and in 1996, Con-gress altered the language of the statute, but left its effectunchanged in relevant part:
_____________________________ . . . (3) drug dealers are increasingly imposing a reign of terror on public and other federally assisted low-income housing tenants; (4) the increase in drug-related and violent crime not only leads to murders, muggings, and other forms of violence against tenants, but also to a deterioration of the physical environment that requires substantial government expenditures; (5) local law enforcement authorities often lack the resources to deal with the drug problem in public and other federally assisted low-income housing, particularly in light of the recent reductions in Federal aid to cities . . . .Id. S 11901(3)-(5).2 The term "drug-related criminal activity" was defined as "the illegalmanufacture, sale, distribution, use, or possession with intent to manufac-ture, sell, distribute, or use, of a controlled substance (as defined in section802 of Title 21)." Id. S 1437d(l). Each public housing agency shall utilize leases which-- . . . (5) provide that any criminal activity that threat- ens 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 termi- nation of tenancy . . . .Id. S 1437d(l)(5) (1991). Congress amended this statute fur-ther in 1996, replacing the phrase "on or near such premises"with "on or off such premises." Id. (1997).3In 1991, HUD issued regulations implementing section1437d(l)(5). One such regulation, 24 C.F.R. S 966.4(f)(12)(i)(B), provides: S 966.4 Lease requirements. A lease shall be entered into between the PHA and each tenant of a dwelling unit which shall contain the provisions described hereinafter. . . . (f) Tenant's obligations. The lease shall provide that the tenant shall be obligated: . . . (12)(i) To assure that the tenant, any member of the household, a guest, or another person under the tenant's control, shall not engage in: . . . (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. S 966.4(f)(12)(i)(B). Another regulation similarlyprovides: Either of the following types of criminal activity by the tenant, any member of the household, a guest, or another person under the tenant's control, shall be cause for termination of tenancy: . . . (B) Any drug-related criminal activity on or near such premises.Id. S 966.4(l)(2)(ii)(B).In formulating these regulations, HUD considered com-ment by legal aid and by tenant organizations that tenants"should not be required to `assure' the non-criminal conductof household members, or should have only a limited respon-sibility to prevent criminal behavior by members of thehousehold" and "that the tenant should not be responsible ifthe criminal activity is beyond the tenant's control, if the ten-ant did not know or have reason to foresee the criminal con-duct, if the tenant did not participate, give consent or approvethe criminal activity, or if the tenant did everything `reason-able' to control the criminal activity." 56 Fed. Reg. 51560,51566 (Oct. 11, 1991). Ultimately, however, HUD decidednot to accept these suggestions, instead choosing to grantlocal PHAs the discretion to evict a tenant whose householdmembers or guests use or sell drugs on or near the publichousing premises regardless of whether the tenant knew orshould have known of such activity. See id. at 51566-67.HUD stated quite explicitly: "The tenant should not beexcused from contractual responsibility by arguing that tenantdid not know, could not foresee, or could not control behaviorby other occupants of the unit." Id. at 51567.HUD offered several reasons for its decision. First, the"contractual responsibility of the tenant for acts of unit occu-pants is a conventional incident of tenant responsibility undernormal landlord-tenant law and practice, and is a valuable toolfor management of the housing. The tenant should not beexcused from contractual responsibility by arguing that tenantdid not know, could not foresee, or could not control behaviorby other occupants of the unit." Id. at 51567. Second, HUDfeared that allowing a tenant to escape eviction by claiminga lack of knowledge "would allow a variety of excuses for atenant's failure to prevent criminal activity by householdmembers" and "would thereby undercut the tenant's motiva-tion to prevent criminal activity by household members." Id.Third, PHAs may often have difficulty proving in court thatthe leaseholder had knowledge or control over the offendingperson, thus making it time-consuming, costly, and otherwisecumbersome to evict households causing drug-related prob-lems in public housing. See id. Finally, HUD noted that "afamily which does not or cannot control drug crime, or othercriminal activities by a household member which threatenhealth or safety of other residents, is a threat to other residentsand the project." Id.Importantly to this case, although HUD unequivocallyauthorizes eviction whenever a household member or guestsells or uses drugs on or near the apartment premises, it doesnot mandate or even encourage across-the-board evictionswhenever there is cause to evict. Instead, its regulations rec-ognize the importance of giving each case individualized con-sideration in light of the equities of the tenant's particularsituation and examining whether some remedial measureother than eviction of the tenant may be appropriate evenwhen there is clearly cause to evict the tenant. See infra PartIV-C; 24 C.F.R. S 966.4(l)(5)(i).IIPursuant to section 1437d(l)(5) and HUD regulations, theOakland Housing Authority ("OHA") includes in its leases aprovision obligating tenants to "assure that tenant, any mem-ber of the household, or another person under the tenant'scontrol, shall not engage in . . . [a]ny drug-related criminalactivity on or near the premises (e.g., manufacture, sale, dis-tribution, use, possession of illegal drugs or drug parapherna-lia, etc.)." It is this lease provision -- which OHA interpretsas authorizing the eviction of a tenant on the basis of a house-hold member's or guest's drug-related criminal activityregardless of whether the tenant knew or reasonably shouldhave known of such activity -- that has given rise to the pres-ent controversy.OHA commenced separate unlawful detainer actions in theAlameda County Municipal Court against Pearlie Rucker,Willie Lee, Barbara Hill, and Herman Walker (collectively"Tenants") after discovering a household member or guest ofeach Tenant engaging in drug-related criminal activity on ornear the public housing premises. The relevant facts regardingthe first three Tenants are quite similar. Rucker's daughterwas found in possession of cocaine and drug paraphernaliathree blocks from Rucker's apartment. Lee's grandson wascaught using marijuana in the housing development's parkinglot, as was Hill's grandson. All three Tenants claim to havebeen unaware of their household member's drug-related crim-inal activity.The fourth Tenant, Walker, presents a somewhat differentcase. Walker is partially paralyzed and incapable of livingindependently. OHA served him with a notice of terminationof tenancy after the third instance in which drugs or drug par-aphernalia were found in his apartment. On the first occasion,officers found cocaine chips and cocaine pipes in Walker'sbedroom as well as a cocaine pipe in the jacket of EleanorRandle, Walker's care-giver.4 Randle was arrested for posses-sion of narcotics paraphernalia, and OHA issued Walker alease violation notice. OHA officers and the housing managerconducted a follow-up check of Walker's apartment five dayslater and found another rock cocaine pipe, at which pointWalker was issued another lease violation notice. Twomonths later, drug paraphernalia was found in Walker's apart-ment yet again. In addition to issuing a third lease violationnotice, OHA served Walker with a notice of termination andinitiated an unlawful detainer action after he refused to vacate.It was not until after Walker received his third lease violationnotice that he fired his drug-using care-giver.In response to OHA's unlawful detainer actions, Tenantsfiled the present action in the United States District Court forthe District of Northern California against HUD, OHA, andOHA's director Harold Davis in December 1997. Tenantsargued that 42 U.S.C. S 1437d(l)(5) does not authorize theeviction of what they termed an "innocent tenant " -- namely,a tenant who did not know of and had no reason to know ofa household member's or guest's drug dealing or drug use.Tenants argued further that, if it does, the statute is unconsti-tutional. In addition, Walker alleged that his eviction wouldviolate Title II of the Americans with Disabilities Act("ADA"). See 42 U.S.C. S 12132, et seq.5Tenants sought a preliminary injunction against their evic-tion, and the parties agreed to stay Lee's, Hill's, and Walker'sstate court proceedings pending the resolution of the presentcase.6 "To obtain a preliminary injunction, the moving partymust show either (1) a combination of probable success on themerits and the possibility of irreparable injury, or (2) that seri-ous questions are raised and the balance of hardships tipssharply in its favor." Big Country Foods, Inc. v. Board ofEduc. of Anchorage School Dist., 868 F.2d 1085, 1088 (9thCir. 1989). The district court concluded that Tenants hadestablished a "fair chance of success" on their claim thatHUD's interpretation of section 1437d(l)(5) was inconsistentwith the statute itself and thus violated the AdministrativeProcedure Act ("APA"), see 5 U.S.C.SS 701-706. The courtdetermined further that HUD's interpretation raised substan-tial concerns with respect to Tenants' First Amendment rightto freedom of association. Finding that the balance of hard-ships tipped decisively in Tenants' favor, the district courtpreliminarily enjoined the eviction of any public housing ten-ant for "drug-related criminal activity that does not occurwithin the tenant's apartment unit when the tenant did notknow of, or have reason to know of, the drug-related criminalactivity."7 HUD, OHA, and Davis appeal this injunction.In addition, the district court held that Walker had estab-lished a fair chance of success on his ADA claim, reasoningthat, because Walker's disability prevents him from livingwithout a care-giver, he is at greater risk for termination oftenancy than tenants who do not require in-home care. Find-ing that the balance of hardships weighed in Walker's favor,the court enjoined OHA from evicting Walker on the basis ofhis care-giver's drug-related criminal activities. OHA andDavis appeal this ruling.IIIBefore turning to the merits, a word on the standard ofreview is in order. We review the district court's grant of pre-liminary injunctive relief for an abuse of discretion. SeeBrookfield Communications, Inc. v. West Coast EntertainmentCorp., 174 F.3d 1036, 1045-46 (9th Cir. 1999). Because a dis-trict court necessarily abuses its discretion if it bases its rulingon an erroneous view of the law, however, we review thelegal issues underlying a preliminary injunction de novo andmay rule on the merits of the controversy if legal issues aredispositive. See, e.g., id. at 1046 (citing cases); Foti v. City ofMenlo Park, 146 F.3d 629, 634-35 (9th Cir. 1998); Does 1-5v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 1996); see alsoThornburgh v. American College of Obstetricians &Gynecologists,
476 U.S. 747, 757
(1986), overruled in part onother grounds by Planned Parenthood v. Casey,
505 U.S. 833
(1992); Planned Parenthood v. Camblos, 155 F.3d 352, 359-60 (4th Cir. 1998), cert. denied, 119 S. Ct. 1031 (1999).IVThe first question before us is whether HUD in its applica-ble regulations has adopted a permissible interpretation of 42U.S.C. S 1437d(l)(5), or, more precisely, whether HUD'sinterpretation is "arbitrary, capricious, an abuse of discretion,or otherwise not in accordance with law." 5 U.S.C.S 706(2)(A). The parties agree that we resolve this issue byapplying the familiar framework set forth in Chevron U.S.A.,Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837
(1984). Chevron instructs us to begin our analysis by deter-mining whether "Congress has directly spoken to the precisequestion at issue." Id. at 842-43. "If the intent of Congress isclear, that is the end of the matter; for the court, as well as theagency, must give effect to the unambiguously expressedintent of Congress." Id. If, and only if, the language is silentor ambiguous on the precise question at hand do we proceedto step two, which is to defer to the agency unless its interpre-tation is arbitrary or capricious. See id. at 842-43 & n.9; seealso Young v. Community Nutrition Inst.,
476 U.S. 974
, 981(1986) ("This view of the agency charged with administeringthe statute is entitled to considerable deference; and to sustainit, we need not find that it is the only permissible constructionthat [the agency] might have adopted but only that [the agen-cy's] understanding of this very `complex statute' is a suffi-ciently rational one to preclude a court from substituting itsjudgment for that of [the agency]." (internal quotation marksand citation omitted)); Jang v. Reno, 113 F.3d 1074, 1076(9th Cir. 1997).HUD argues that section 1437d(l)(5) and the broader statu-tory context evince a clear congressional intent authorizingthe eviction of any tenant whose household member or guestengages in drug-related criminal activity on or near the publichousing premises even if the tenant did not know of suchactivity. Tenants maintain that the unambiguously expressedintent of Congress is to the contrary. The district court dis-agreed with both and instead concluded that the public hous-ing lease statute is silent with respect to the issue before us.In adjudicating among these conflicting views, we look totraditional tools of statutory construction for guidance. SeeChevron,
467 U.S. at 843
n.9. More specifically,"[t]he plain-ness or ambiguity of statutory language is determined by ref-erence to the language itself, the specific context in which thatlanguage is used, and the broader context of the statute as awhole." Robinson v. Shell Oil Co.,
519 U.S. 337, 340
(1997).A[1] We begin, as we must, with the express language of thestatute. "Where there is no ambiguity in the words, there is noroom for construction." United States v. Gonzales, 520 U.S.1, 8 (1997) (quoting United States v. Wiltberger , 18 U.S. (5Wheat.) 76, 95-96 (1820)). Section 1437d(l)(5), as amended,provides that "any drug-related criminal activity on or offsuch premises, engaged in by a public housing tenant, anymember of the tenant's household, or any guest or other per-son under the tenant's control, shall be cause for terminationof tenancy." 42 U.S.C. S 1437d(l)(5). The plain statutory lan-guage thus makes clear that Congress intended that there because for termination of tenancy when three conditions aremet: there is (1) drug-related criminal activity, (2) on or offthe public housing premises, (3) engaged in by the tenant, anyhousehold member, or any guest or other person under thetenant's control.[2] That each of Tenants' cases involved drug-related crim-inal activity as defined in section 1437d is not contested; simi-larly undisputed is the fact that the conduct in questionoccurred on or near the public housing premises . The onlyreal dispute concerns the third prong -- whether the activitywas engaged in by "a public housing tenant, any member ofthe tenant's household, or any guest or other person under thetenant's control." Id.Focusing on the statutory term "control," Tenants arguethat cause for termination exists only if the tenant could real-istically exercise "control" over the drug-dealing or drug-using household member or guest. Where, for example, ateenage son rarely heeds his mother's instructions and is gen-erally uncontrollable, Tenants contend that OHA lacks author-ity to evict the entire household on the basis of the son'sconduct -- even if he is selling drugs out of the apartment --because the mother does not have "control" over her son.Applying basic principles of grammar, we conclude thatthis construction of the public housing lease statute is untena-ble. The clause at issue -- "public housing tenant, any mem-ber of the tenant's household, or any guest or other personunder the tenant's control" -- includes three separate catego-ries of people: (1) the tenant, (2) any household member, and(3) any guest or other person under the tenant's control. Thephrase "under the tenant's control" has no relationship what-soever to either of the first two categories -- tenant or house-hold member.[3] With respect to the third category, implicit in the phrase"any guest or other person under the tenant's control" is thatguests are per se under the tenant's control. "Control" is alegal concept; tenants have control over their guests. Just asa tenant cannot escape liability for damage to a neighbor'sapartment caused by a drunken guest by arguing that the guestwas drunk and thus out of control, a tenant cannot avoid theimport of section 1437d(l)(5) by arguing that, because hisguests are stronger than he, he could not physically preventthem from selling drugs in his apartment. See, e.g., HousingAuth. v. Green, 657 So. 2d 552, 554 (La. Ct. App. 1995)("[W]here . . . the lease refers to `a guest or other personunder the tenant's control' it means that the tenant`controls'who has access to the premises. The lease makes the tenantresponsible for the drug activities of those persons givenaccess to the apartment by the tenant. `Control' as used in thelease in no way implies that the tenant knew or should haveknown of the drug activity . . . .").[4] Because the conduct for which OHA is attempting toevict Tenants unquestionably was committed by a householdmember or a guest, we conclude that the third, and final,prong of section 1437d(l)(5) is satisfied as well. Accordingly,the plain statutory language authorizes the termination of Ten-ants' tenancy. More generally, the express statutory language-- which, to repeat, provides that "[(1)] any drug-relatedcriminal activity [(2)] on or off such premises, [(3)] engagedin by a public housing tenant, any member of the tenant'shousehold, or any guest or other person under the tenant'scontrol" is cause for eviction -- evinces a clear congressionalintent to authorize termination of tenancy regardless ofwhether the tenant was aware that his household member orguest was selling, manufacturing, distributing, or using drugs.Thus, the statute makes clear that even purportedly "innocenttenants" may be evicted.8BNotwithstanding the fact that the statute makes any drug-related criminal activity by a household member or guestcause for termination of tenancy, the district court concludedthat section 1437d(l)(5) is silent as to whether Congressintended to authorize the eviction of "innocent tenants"because it fails to address explicitly the situation of "innocenttenants." In the district court's view, a statute contains aclearly expressed congressional intent on an issue only if itexplicitly addresses that issue. The district court appears tohave placed great emphasis on the fact that Congress couldhave provided, for example, that "any drug-related criminalactivity by a household member or guest including that ofwhich the tenant is unaware" or "any drug-related criminalactivity by a household member or guest regardless of thetenant's knowledge thereof" is cause for eviction.[5] The district court's failure to appreciate the implicationsof Congress's use of the term "any" when it made "any drug-related criminal activity [by a tenant, household member, orguest] . . . cause for termination" does violence to the plainlanguage rule. 42 U.S.C. S 1437d(l)(5) (emphasis added). Astatute covering "any drug-related criminal activity" has theexact scope as one covering "any drug-related criminal activ-ity including that of which the tenant is unaware" or "anydrug-related criminal activity regardless of the tenant'sknowledge thereof." These italicized hypothetical clauses aremere surplusage -- they add nothing of substance. Just as sec-tion 1437d(l)(5) covers drug-related criminal activity onweekends even though the statute does not explicitly refer to"any drug-related criminal activity including that whichoccurs on weekends," the statute covers conduct that the ten-ant does not know of even though it does not explicitly referto "any drug-related criminal activity including that of whichthe tenant is unaware." The hypothetical "including" clausesmerely enumerate subsets of cases already covered by thestatute as actually written.We have no reason to think that Congress meant anythingother than "any" when it used the term "any." "Read natu-rally, the word `any' has an expansive meaning, that is, `oneof some indiscriminately of whatever kind.' " United States v.Gonzales,
520 U.S. 1, 4
(1997) (quoting Webster's Third NewInternational Dictionary 97 (1976)). We suppose that Con-gress could have included an additional sentence stating "Yes,we really do mean `any.' " Even without such a statement,binding precedent instructs that, just as "no " means "no,""any" really does mean "any."9 Tenants marshal policy arguments why we should restrictthe scope of "any." Even if were we to agree, we cannot avoidthe fact that Tenants' interpretation contradicts the expressstatutory language. We can limit section 1437d(l)(5)'s scopeas Tenants request only by reading into the statute words thatCongress did not see fit to include. This we refuse to do.Indeed, we may not so alter the statute's effect. As judges, weare interpreters, not authors, of the law.C[6] Notwithstanding the expansiveness of the statutory lan-guage, Tenants strenuously attack the propriety of evicting"innocent tenants" and claim that a monumental injustice willresult from the wholesale eviction of any and all tenants whohave a household member or guest who uses drugs. WhatTenants either fail to recognize -- or attempt to obscure --is that the question of whether there is cause to evict is whollyseparate from whether the PHA will actually evict. Section1437d(l)(5) merely requires that local PHAs make drug-related criminal activity "cause for termination of tenancy."42 U.S.C. S 1437d(l)(5). Where there is cause for termination,a PHA may evict, but it is not required to evict in all instancesin which there is cause to do so.[7] The public housing lease statute, although it authorizeseviction in a broad range of cases, is notably silent as to whentermination of tenancy is required. By structuring the statutein this way, Congress implicitly conveyed discretion to HUDand to PHAs to make termination decisions in individualcases. This discretion is consistent with the Housing Act'slong-established statement that "[i]t is the policy of the UnitedStates . . . to vest in public housing agencies that performwell, the maximum amount of responsibility and flexibility inprogram administration, with appropriate accountability topublic housing residents, localities, and the general public."Id. S 1437(a)(1)(C); see also Newbury Local Sch. Dist. Bd. ofEduc. v. Geauga County Metro. Hous. Auth., 732 F.2d 505,509 (6th Cir. 1984) (noting that the Housing Act is"structured 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) ("[T]he Housing Act gives local housing authoritiesdiscretion to . . . manage the day-to-day affairs of the subsi-dized housing projects.").10Leaving individual eviction decisions to HUD and localPHAs makes much sense. Eviction is a drastic remedy, andindividualized consideration of the equities in a particular ten-ant's case is appropriate. Difficult cases will inevitably arise.It would be exceedingly difficult to enumerate a priori whichtenants should be evicted, and Congress did not attempt to doso. With respect to "innocent tenants," for example, some ten-ants are more "innocent" than others. Should a tenant whoseson deals drugs at the public housing development unbe-knownst to the tenant be evicted? What about a tenant whosegrandson uses drugs in the parking lot unbeknownst to her?These are difficult policy questions. We see arguments onboth sides, but how we judges might weigh competing policyconsiderations is simply irrelevant. Congress entrusted thesequestions to HUD and to individual PHAs, not to the federaljudiciary. Congress charged HUD, the agency generallyresponsible for regulating and overseeing public housing, withformulating general principles to guide eviction determina-tions; it assigned local PHAs the responsibility for decidinghow to proceed in individual cases.HUD has provided some general guidance for dealing withindividual cases, but largely leaves eviction decisions toPHAs. Of particular relevance to the case at hand is 24 C.F.R.S 966.4(l)(5)(i): (5) Eviction for criminal activity--(i) PHA dis- cretion to consider circumstances. In deciding to evict for criminal activity, the PHA shall have dis- cretion 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 mem- bers 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. A PHA may require a family member who has engaged in the illegal use of drugs to present evi- dence of successful completion of a treatment pro- gram as a condition to being allowed to reside in the unit.24 C.F.R. S 966.4(l)(5)(i). Quite sensibly, HUD does notadvocate the eviction of all "innocent tenants, " but insteadcounsels PHAs to handle cases on an individualized basis andto consider alternative remedies. This policy is furtherembodied in a HUD publication entitled "One Strike andYou're Out": Policy in Public Housing: The lease language mandated by federal law imposes on tenants an affirmative obligation to assure that neither they nor any member of their household or guest or other person under their con- trol will engage in prohibited drug-related or other criminal activities. PHAs can generally enforce this obligation by terminating leases and evicting entire households when a household member or guest com- mits a crime in violation of lease provisions. A promise is a promise. Where the tenant has promised in a lease to ensure a crime-free household, the ten- ant is responsible for the household, regardless of whether he or she was personally engaged in the pro- hibited drug or other criminal activity. PHAs retain the flexibility to handle these cases on an individualized basis, and they should exercise reasonable discretion in light of all of the relevant circumstances. In particular, when a tenant has taken all reasonable steps to prevent the criminal activity, eviction may not always be warranted or proper. To ensure both humane results and success in court, PHAs should undertake a case-by-case analysis before proceeding with eviction. If they do seek eviction, PHAs should be prepared to persuade a court that eviction is justified. In some instances, eviction of an entire household may not be appropriate as a means of protecting the health, safety and welfare of the public housing com- munity. In others, alternative approaches may be appropriate, such as allowing a household to remain in occupancy on the condition that the offending member move and agree not to return. This latter approach does not always lead to effective long-term removal of the offending individual. PHAs, there- fore, should consider the likelihood of success in each particular case and their ability under local law to take action if an agreement is violated. In some cases, trespass laws and restraining orders may also help to keep former residents away from remaining household members.Office of Policy Dev. & Research, U.S. Dep't of Hous. &Urb. Dev., supra, at 8.11Leaving PHAs with discretion is sensible in light of the factthat local PHAs, being most closely associated with the ten-ants themselves and having the most knowledge about thelocal situation, are best situated to give individualized consid-eration to each case. See 42 U.S.C. S 1437(a)(1)(C); see alsoGholston, 818 F.2d at 781 ("The administration of local hous-ing authorities is a difficult task . . . . Consequently, the scopeof judicial review of a local housing authority's policies andpractices is limited, and we will not view its actions as a vio-lation of the Housing Act or HUD regulations unless it abusedits discretion." (citations omitted)).DOur conclusion that section 1437d(l)(5) authorizes termina-tion of tenancy regardless of the tenant's knowledge of thedrug-related criminal activity is reinforced by two related stat-utory provisions.1First, 42 U.S.C. S 1437d(c)(4)(A)(iii), which was in effectthrough 1996, prohibited any individual or family who wasevicted because of a household member's or guest's drug-related criminal activity from receiving a statutory preferencein applying for public housing, but exempted from this three-year prohibition period any member of a family of an individ-ual who "the agency determines clearly did not participate inand had no knowledge of" the activity that formed the basisof the original eviction. 42 U.S.C. S 1437d(c)(4)(A)(iii).12 Ifan "innocent tenant" could not have been evicted in the firstplace, there would have been no need for Congress to writea statute specifically waiving the three-year prohibition periodfor them. Adhering to the well-established "principle that stat-utes should not be construed to make surplusage of anyprovision," Northwest Forest Resource Council v. Glickman,82 F.3d 825, 834 (9th Cir. 1996), we must interpret section1437d(l)(5) as authorizing the eviction of "innocent tenants."This is especially so in light of the fact that Congress enactedthe three-year prohibition period of section 1437d(c)(4)(A)(iii) in 1990, the same year it made amendments tosection 1437d(l)(5).132The second statute that lends credence to our interpretationof the public housing lease statute is a civil forfeiture statutewhich, inter alia, makes leasehold interests subject to forfei-ture when used to commit drug-related criminal activities. See21 U.S.C. S 881(a)(7).14 In sharp contrast to section1437d(l)(5), this civil forfeiture statute includes an explicitexception for "innocent tenants": "no property shall be for-feited under this paragraph, to the extent of an interest of anowner, by reason of any act or omission established by thatowner to have been committed or omitted without the knowl-edge or consent of the owner." Id. (emphasis added). Thiscivil forfeiture provision makes abundantly clear that Con-gress knows how to legislate an "innocent tenants " exception.The absence of similar language in section 1437d(l)(5) indi-cates that Congress did not intend to create such an exceptionwith respect to public housing evictions.15Tenants interpret section 881(a)(7) quite differently. Theyargue, for the first time in supplemental briefing filed afteroral argument, that Congress understood the "innocent tenant"exception of section 881(a)(7) to be a constitutionally man-dated requirement such that it must have wanted to incorpo-rate the same exception into the public housing lease statute.We find this reasoning unpersuasive. That there may be aconstitutional bar to forfeiture of property when the propertyowner is uninvolved and unaware of the wrongful activity thatformed the cause for forfeiture, see Calero-Toledo v. PearsonYacht Leasing Co.,
416 U.S. 663
(1974), does not mean thatthere is a similar bar in the distinct context of eviction pro-ceedings.The statute governing civil forfeitures differs in manyrespects from the public housing lease statute. First, forfeitureunder section 881(a)(7) involves the transfer of private prop-erty to the federal government,16 which raises concerns ofmisdirected incentives. See Bennis v. Michigan ,
516 U.S. 442
,456 (1995) (Thomas, J., concurring) (noting that if abused,"forfeiture could become more like a roulette wheel employedto raise revenue from innocent but hapless owners"); UnitedStates v. James Daniel Good Real Property,
510 U.S. 43
, 81-82 (1993) (Thomas, J., concurring in part and dissenting inpart); Michele M. Jochner, Illinois Bar Journal , 87 Ill. B.J.78, 79 (1999) ("[T]he relative ease with which the govern-ment can seize and forfeit property, when measured againstthe disproportionately punitive nature of some forfeitures, hascaused concern that the considerable revenue added by theforfeited assets to the government's coffers may spur over-zealous prosecution." (footnote omitted)). The concerns raisedby allowing the federal government to fill its coffers throughseizures of property for minor offenses, see United States v.Bajakajian,
524 U.S. 321
, 118 S. Ct. 2028, 2032 (1998) (gov-ernment seized $357,144 in cash that Bajakajian attempted toleave the country with without complying with federal report-ing requirements); Calero-Toledo,
416 U.S. at 668
n.4, 693($20,000 yacht forfeited based upon the discovery of one mar-ijuana cigarette), simply do not arise under section1437d(l)(5), since PHAs do not reap a financial windfall whenthey evict tenants.Second, to seize property under the forfeiture provision, thefederal government need only show probable cause that theproperty was used for prohibited purposes, with the burdenthen shifting to the leaseholder to establish, by a preponder-ance of the evidence, lack of knowledge or consent. SeeUnited States v. 1 Parcel of Real Property, Lot 4, Block 5 ofEaton Acres, 904 F.2d 487, 490 (9th Cir. 1990). Probablecause is, of course, a lower standard of proof than the prepon-derance of evidence test typically required in civil proceed-ings. See United States v. All Right, Title & Interest in RealProperty & Bldg. Known as 303 West 116th Street, New York,New York, 901 F.2d 288, 291 (2d Cir. 1990); United States v.One 56-Foot Motor Yacht Named Tahuna, 702 F.2d 1276,1281 (9th Cir. 1983). Third, summary seizure procedures areavailable to the federal government in forfeiture cases. See 21U.S.C. S 881(b). The ability to seize a leaseholder's propertyusing such procedures -- without proof that it is more likelythan not that the resident engaged in, or permitted, drug-related criminal activity -- is an awesome power, which bothCongress and the Supreme Court have seen fit to rein in. Seeid. S 881(a)(7) (incorporating "innocent tenant" exception andallowing seizure of property only where the drug offense ispunishable by more than one year imprisonment); Bajakajian,118 S. Ct. at 2031 (holding that forfeitures may violate theEighth Amendment Excessive Fines Clause).17Congress sensibly limited forfeiture to the more reprehensi-ble violations of our drug laws -- specifically, drug offensespunishable by more than one year and committed with theknowledge or consent of the leaseholder. See 21 U.S.C.S 881(a)(7). Congress did not see the need to limit eviction byPHAs in a similar fashion. Thus, the "innocent tenants"exception contained in section 881(a)(7) applies only to thatsection, and not to section 1437d(l)(5).18 ETenants rely heavily on another related statutory provision,42 U.S.C. S 1437d(l)(1), which prohibits PHAs from includ-ing "unreasonable terms and conditions" in their leases. 42U.S.C. S 1437d(l)(1).19 Tenants argue that there is no sensiblereason for evicting a tenant who does not know of a house-hold member's or guest's drug-related criminal activity andthus that any lease provision authorizing the eviction of an"innocent tenant" violates section 1437d(l)(1)'s reasonable-ness requirement. We cannot agree.As an initial matter, Tenants' argument contravenes thecanon of statutory interpretation that a general statutory provi-sion typically cannot be used to trump a specific provision.See Green v. Bock Laundry Mach. Co.,
490 U.S. 504
, 524-26(1989); Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U.S.437, 444-45 (1987). "Where there is no clear intention other-wise, a specific statute will not be controlled or nullified bya general one, regardless of the priority of enactment."Radzanower v. Touche Ross & Co.,
426 U.S. 148, 153
(1976)(quoting Morton v. Mancari,
417 U.S. 535, 550
-51 (1974)).Moreover, crime in public housing -- much of which findsits roots in drugs20 -- is a severe problem. Authorizing theeviction of households with drug-dealing and drug-usingmembers is a reasonable step towards achieving Congress'sself-declared "duty to provide public housing that is decent,safe, and free from illegal drugs." Id. S 11901. By making ahousehold member's or guest's drug-related criminal activitygrounds for the tenant's eviction, Congress created a strongincentive for public housing tenants to refrain from invitingdrug dealers and drug users to their premises and to ensurethat household members and guests do not sell, manufacture,distribute, use, or possess controlled substances. See 56 Fed.Reg. 51560, 51566-67. Congress was reasonably concernedwith 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 reasonablyshould have known of a household member's or guests'sdrug-related criminal activities in order to evict would ham-string their efforts to rid public housing of the crime and vio-lence with which low-income families must cope on a dailybasis. See id. Congress could reasonably have decided not tocreate an "innocent tenant" exception to avoid transformingefficient unlawful detainer actions into fact-based and poten-tially costly and lengthy legal cases. At present, a PHA canevict a tenant simply by showing that the tenant, a member ofhis household, or his guest used, sold, distributed, manufac-tured, or possessed a controlled substance on or near the pub-lic housing premises. Such proof is relatively easy to obtain,since a PHA can offer arrest or conviction records to provethe drug-related criminal activity, leaving little room for fac-tual disputes. Significant delays would ensue if PHAs wererequired to expend time and effort litigating what the tenantactually knew or what he should have known. These areinherently factual issues which will often boil down to credi-bility determinations, the resolution of which will almostalways require an actual trial.21 PHAs might well agree that,the faster a drug-dealing or drug-using household is evicted,the better. Moreover, it may often be difficult to secure admis-sible proof of what the tenant knew or should have known.Even if everyone in the apartment building knows who thedrug dealers and drug users are, few, if any, may be willingto testify in court -- or even to go on the record -- againsta tenant with gun-toting, drug-dealing household members orfriends. Witness intimidation is a very real problem. See 18U.S.C. S 1512.The decision not to include an "innocent tenant " exceptionalso reasonably helps to keep down litigation costs. It is alltoo easy to belittle this problem, but we must remember thatPHAs already lack adequate funding. OHA, for example,stated before the district court that it does not even haveenough funds to maintain a full-time security staff at each ofits housing developments. Forcing OHA and other PHAs toutilize more of their already scarce funds in litigation willdeprive them of money needed to fund other important activi-ties such as security. To avoid this result is eminently reason-able. See Phillips Neighborhood Hous. Trust v. Brown, 564N.W.2d 573, 575 (Minn. Ct. App. 1997) ("[T]here is a strongpublic policy interest in eliminating drugs from subsidizedhousing. Evicting those who violate the lease by having con-trolled substances in their apartments is [the landlord's] mosteffective, if not its only effective, means of eliminating drugsand providing a safe environment.").The reasonableness of making drug use by household mem-bers and guests a ground for eviction from public housing issupported by the fact that leases for privately-owned housingoften hold tenants liable for the activities of their householdmembers and guests. The "contractual responsibility of thetenant for acts of unit occupants is a conventional incident oftenant responsibility under normal landlord-tenant law andpractice, and is a valuable tool for management of thehousing." 56 Fed. Reg. 51560, 51566 (Oct. 11, 1991). Thus,a private tenant can often be evicted if his children or otherhousehold members cause significant damage to property,harass neighbors, or engage in illegal activities. The fact thatprivate landlords include these provisions in their leases eventhough they are not obligated by law to do so shows that it issensible to make a third party's drug activities cause for ter-mination of tenancy.22We note that "no fault" liability is routinely imposed inrelated contexts. For example, many states hold parents vicar-iously liable for the intentional torts of their children regard-less of whether the parents knew, or should have known, thattheir children would cause bodily injury or property damage.See, e.g., Conn. Gen. Stat. S 52-572; Kan. Stat. Ann. S 38-120; Or. Rev. Stat. S 30.765(1). The rationale underlyingmaking "innocent parents" liable for their children's actions-- to encourage parents to oversee the behavior of their chil-dren -- is essentially the same as that underlying Congress'sdecision to impose a "no-fault" eviction policy -- to encour-age tenants to monitor the conduct of their household mem-bers and guests. Just as states reasonably impose liability evenon "innocent parents," Congress reasonably may authorize theeviction of "innocent tenants." Such "no fault" liability is notlimited to parent-child cases. In the environmental context, aproperty owner can be held liable for the costs of cleaning upwaste on his property even if the waste was legally depositedby a previous property owner. See 42 U.S.C.S 9607. Thus,even an "innocent property owner" can be subjected to sub-stantial liability under the Superfund laws.Any conclusion to the contrary is squarely foreclosed bythe recent enactment of 42 U.S.C. S 13662(a)(1), which pro-vides: Notwithstanding any other provision of law, a public housing agency or an owner of federally assisted housing (as applicable), shall establish standards or lease provisions for continued assistance or occu- pancy in federally assisted housing that allow the agency . . . to terminate the tenancy or assistance for any household with a member-- (1) who the public housing agency or owner determines is illegally using a controlled substance . . . .42 U.S.C. S 13662(a) (emphases added). Congress, in passingthis statute expressly allowing the eviction of any householdwith a drug-using member, declared its view that it is reason-able to evict a tenant on the basis of another's crimes. Unlesswe are so bold as to say that a policy decision reflected in leg-islation enacted with the votes of 409 Representatives and 96Senators is not rationally related to a legitimate housing pur-pose, we must conclude that HUD's interpretation of section1437d(l)(5) is indeed reasonable.23 Keeping in mind thatPHAs have discretion in deciding whether to evict in individ-ual cases, we hold that it is not unreasonable for Congress toobligate all public housing tenants to ensure that their house-hold members and guests refrain from engaging in drug-related criminal activities or other activities that threaten thehealth or safety of other public housing tenants. 24FAlthough both parties present arguments based upon thelegislative history, we conclude that there is no need to exam-ine it in the present case. Where, as here, the language of thestatute is plain and unambiguous, resort to legislative historyis unnecessary. See United States v. Gonzales ,
520 U.S. 1
, 6(1997); City of Auburn v. United States, 154 F.3d 1025, 1030(9th Cir. 1998) ("[W]here statutory command is straightfor-ward, `there is no reason to resort to legislative history.' "(citation omitted)), cert. denied, 1999 WL 169424 (U.S. June21, 1999) (No. 98-1511). We have warned that: "Reliance onsuch history is particularly suspect when it is inconsistentwith the ordinary understanding of the words in the statuteand an otherwise reasonable agency interpretation. " Leisnoi,Inc. v. Stratman, 154 F.3d 1062, 1070 (9th Cir. 1998); seealso id. ("[T]he use of legislative history as a tool for statutoryinterpretation suffers from a host of infirmities: not only islegislative history `not passed by both houses of Congress andsigned into law by the President,' but it also `need not be writ-ten with the same care, or scrutinized by those skeptical of thestatute with the same care, as statutory language.' " (citationsomitted)).In any event, even if we were to resort to it here, the rele-vant legislative history is ambiguous. Both HUD and Tenantsfocus on the following statement by the Senate Banking,Housing and Urban Affairs Committee ("Committee"): 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 knowl- edge 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 1990U.S.C.C.A.N. 5763, 5941. Tenants contend that the Commit-tee's statement that "eviction would not be the appropriatecourse" indicates that section 1437d(l)(5) does not authorizethe eviction of tenants with no knowledge of the drug-relatedcriminal activities. HUD, focusing on a different part of thesame passage, emphasizes that the Committee explicitlyentrusted individual eviction decisions to the "wise exerciseof humane judgment" of the local PHA, reasoning that, hadCongress not intended to give PHAs discretion to evict ten-ants with no knowledge of the drug-related criminal activity,it would not have talked about the exercise of "humanejudgment" by PHAs since there would be no "judgment" toexercise. Whether the legislative history bolsters HUD's posi-tion or Tenants' is unclear. There are strong arguments onboth sides. To the extent that legislative history is ever help-ful, it is not of value in the present case.VHaving concluded that the plain language of 42 U.S.C.S 1437d(l)(5), considered both by itself and in light of thebroader statutory context, makes any drug-related criminalactivity engaged in by a tenant, household member, or guestcause for termination regardless of whether the tenant knewof such activity, we must decide whether this statute is consis-tent with the United States Constitution. Tenants maintain thatthe public housing lease provision violates their FourteenthAmendment right to intimate association as well as the EighthAmendment prohibition against excessive fines. Before turn-ing to these challenges, we consider whether section1437d(l)(5) violates the First Amendment, since it was underthis provision that the district court concluded that the statute,as we have concluded it must be interpreted, would be uncon-stitutional.AAccording to the district court, the only rational objectiveserved by authorizing the eviction of "innocent tenants" is todiscourage household members and guests from using drugsbecause they know their conduct can lead to the tenant's evic-tion. In the district court's view, this objective violates theFirst Amendment guarantee of freedom of association. Thisconclusion, however, is foreclosed by the Supreme Court'sdecision in Lyng v. International Union, UAW,
485 U.S. 360
(1988).[8] Lyng involved a freedom of association challenge to astatute providing that no household would become eligible toreceive food stamps if any household member were on strike.Although the statute could be seen as an attempt to discourageworkers from striking because of the resulting costs thatwould be imposed upon the entire household, the SupremeCourt rejected this argument on the basis that the statute didnot "order" individuals not to associate with one another, nordid it "directly and substantially interfere with family livingassignments." Id. at 364-65 (quoting Lyng v. Castillo, 477U.S. 635, 638 (1986)). Similarly here, section 1437d(l)(5)does not order individuals not to associate with one another,nor does it directly and substantially interfere with family liv-ing arrangements. Just as it does not violate the Constitutionto deny an entire household food stamps on the basis of onemember's decision to participate in a strike, it is not unconsti-tutional to evict an entire household on account of one mem-ber's drug use.[9] Our conclusion comports with that of the Fifth Circuit,which has held that evicting a tenant on the basis of his son'sdrug-related criminal activity does not interfere with constitu-tionally protected associational rights. See Chavez v. HousingAuth. of El Paso, 973 F.2d 1245, 1247-48 (5th Cir. 1992).Similar constitutional challenges have been rejected by othercourts as well. See, e.g., City of South San Francisco Hous.Auth., 41 Cal. App. 4th Supp. at 19-20 (rejecting a tenant'ssubstantive due process challenge to eviction based on drugsfound in his son's room where there was no evidence that thetenant knew or had reason to know of his son's illegal con-duct). Tenants, quite simply, are not being evicted because oftheir association with drug users. Instead, OHA is terminatingtheir tenancy because of their failure to comply with a leaseprovision by which they agreed to abide.BWe turn then to the right to intimate association under theFourteenth Amendment. Tenants contend that any statute thatimposes an "undue burden" upon a constitutionally protectedprivacy right is subject to strict scrutiny, see Planned Parent-hood v. Casey,
505 U.S. 833, 874
(1992), and that section1437d(l)(5) unjustifiably burdens Tenants' right to intimateassociation under the Fourteenth Amendment.[10] Although "the Constitution protects against unjustifiedgovernment interference with an individual's choice to enterinto and maintain certain intimate or private relationships,"Board of Directors of Rotary Int'l v. Rotary Club, 481 U.S.537, 544 (1987), OHA's no-fault eviction policy serves thereasonable objective of deterring drug-related criminal activ-ity. Casey, on which Tenants rest their argument, states that"[t]he fact that a law which serves a valid purpose, one notdesigned to strike at the right itself, has the incidental effectof making it more difficult or more expensive to procure anabortion cannot be enough to invalidate it." Casey, 505 U.S.at 873-84. The purpose of the public housing lease statute isnot to burden tenants' intimate association rights, but to pro-mote the weighty governmental interest of providing a safe,drug-free environment for low-income families. Because Ten-ants have not shown that enforcement of the lease "burdensa fundamental right by `directly and substantially' interferingwith family living arrangements," Chavez, 973 F.2d at 1248(quoting Lyng,
477 U.S. at 638
), we conclude that section1437d(l)(5) does not impose an undue burden and thus doesnot violate tenants' freedom of intimate association.C[11] Tenants raise an excessive fines challenge to section1437d(l)(5). The Eighth Amendment's Excessive FinesClause "limits the government's power to extract payments,whether in cash or in kind, `as punishment for someoffense.' " Bajakajian, 118 S. Ct. at 2033 (quoting Austin v.United States,
509 U.S. 602, 609
-10 (1993) (emphasisdeleted)).[12] A punishment is not, however, subject to excessivefines analysis if it is "not cash or in kind payment directlyimposed by, and payable, to the government." Kim v. UnitedStates, 121 F.3d 1269, 1276 (9th Cir. 1997). In rejecting anexcessive fines challenge to a punitive damages award, theSupreme Court explained that "the history of the EighthAmendment convinces us that the Excessive Fines Clause wasintended to limit only those fines directly imposed by, andpayable to, the government." Browning-Ferris Indus. of Ver-mont, Inc. v. Kelco Disposal, Inc.,
492 U.S. 257, 268
(1989)(emphasis added); see also id. at 265 ("[W]e think it signifi-cant that at the time of the drafting and ratification of theAmendment, the word `fine' was understood to mean a pay-ment to a sovereign as punishment for some offense."(emphases added)). The Supreme Court has made clear thatthe Excessive Fines Clause applies only when the govern-ment, acting with punitive intent, extracts a payment to itself.See Bajakajian, 118 S. Ct. at 2033 ("Forfeitures -- paymentsin kind -- are thus `fines' [subject to Eighth Amendmentscrutiny] if they constitute punishment for an offense.");Austin,
509 U.S. at 609
-10 ("The Excessive Fines Clause lim-its the government's power to extract payments, whether incash or in kind, `as punishment for some offense.' ").[13] The purported "punishment" in the present case -- ter-mination of tenancy -- is neither a cash nor an in-kind pay-ment imposed by and payable to the government.Accordingly, it is not subject to analysis as an excessive fine.Seeking to overcome this hurdle, Tenants cite cases involvingexcessive fines challenges to civil forfeitures. Civil forfeituresdo involve a payment to the government -- in the case ofleaseholds, the government assumes the property right in thetenancy (e.g., if the tenant in a private apartment building haspaid rent for the year, the federal government acquires thetenant's rights in that apartment for the remainder of the yearand can utilize that apartment for the remainder of the yearwithout having to pay additional rent) -- and thus may besubject to excessive fines analysis under the Eighth Amend-ment. See, e.g., United States v. 3814 NW Thurman, 164 F.3d1191, 1197 (9th Cir. 1999), amended by 172 F.3d 689 (9thCir. 1999). These civil forfeiture cases are, however, inappo-site to the present case because we are not dealing with anattempt by the federal government to seize Tenants' propertyunder the civil forfeiture laws. See supra Part IV-D-2.25VIHaving resolved the APA and constitutional issues, we nowturn to Walker's ADA claim. The district court held that, asa result of Walker's disability which renders him incapable ofliving alone, the burden imposed by 42 U.S.C. S 1437d(l)(5)to ensure that guests do not engage in drug-related criminalactivity weighs more heavily on him than on others. While atenant without Walker's disability can choose not to inviteguests over, Walker does not have this option because herequires the constant assistance of a care-giver. The districtcourt held that OHA cannot evict him on the basis of his care-giver's drug-related criminal activity.[14] It is not disputed that OHA must provide reasonableaccommodations to disabled tenants. See, e.g. , Green v. Hous-ing Authority, 994 F. Supp. 1253, 1255-56 (D. Or. 1998). TheADA specifically provides that the failure to provide disabledpersons with reasonable modifications constitutes discrimina-tion: [Discrimination includes] a failure to make reason- able modifications in policies, practices, or proce- dures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations.42 U.S.C. S 12182(b)(2)(A)(ii). A HUD regulation similarlyfocuses on the need to provide disabled persons with reason-able accommodation: For all aspects of the lease and grievance proce- dures, a handicapped person shall be provided rea- sonable accommodation to the extent necessary to provide the handicapped person with an opportunity to use and occupy the dwelling unit equal to a non- handicapped person.24 C.F.R. S 966.7(a).[15] Walker needs a care-giver; he does not, however, needa drug-using care-giver. OHA did accommodate Walker bynot attempting to terminate his tenancy until after the thirdtime that drugs or drug paraphernalia were found in his apart-ment. On each occasion, OHA issued Walker a lease violationnotice, thus giving him ample notice of the fact that his care-giver was using drugs within his apartment. Facing twostrikes, Walker chose to retain his care-giver even though shepersisted in using drugs in his apartment.26 OHA is notrequired by the ADA to provide Walker with accommodationthat is not reasonable, see Memmer v. Marin County Courts,169 F.3d 630, 633-34 (9th Cir. 1999); Zukle v. Regents ofUniv. of Cal., 166 F.3d 1041, 1048-51 (9th Cir. 1999), and wehold that a request to waive applicability of section1437d(l)(5) to a tenant's care-giver is not reasonable (at leastwhere it has not been shown that only a care-giver who usesdrugs can provide the tenant with "an opportunity to use andoccupy the dwelling unit equal to a non-handicappedperson"). 24 C.F.R. S 966.7(a).VII[16] With no likelihood of success on the merits of theirclaims, Tenants are not entitled to a preliminary injunction.See Coalition for Economic Equity v. Wilson, 122 F.3d 692,710-11 (9th Cir. 1997). We accordingly vacate the prelimi-nary injunction and remand to the district court for furtherproceedings consistent with this opinion.The order granting the preliminary injunction isREVERSED, and the preliminary injunction is VACATED.Argued and SubmittedMarch 12, 1999--San Francisco, CaliforniaFiled February 14, 2000Before: Joseph T. Sneed, Diarmuid F. O'Scannlain, andWilliam A. Fletcher, Circuit Judges.Opinion by Judge O'Scannlain;Dissent by Judge W. Fletcher
_____________________________W. FLETCHER, Circuit Judge, dissenting:This case involves the attempted eviction of four tenantsand their families from public housing in Oakland, California.Appellee Pearlie Rucker is a 63 year-old woman who haslived in public housing for 13 years. She currently lives withher mentally disabled daughter, her two grandchildren, andher great-grandchild. Appellants assert as a ground for hereviction that Ms. Rucker's mentally disabled daughter pos-sessed cocaine three blocks from her apartment. Ms. Ruckerregularly searches her daughter's room for evidence of drugactivity and has warned her and others that drug activity in theapartment could result in their eviction. Appellee Willie Leeis a 71 year-old man who has lived in Oakland public housingfor 25 years. He currently lives with his grandson. Appellantsassert as a ground for his eviction that Mr. Lee's grandsonpossessed marijuana in a parking lot of the housing complex.Appellants do not allege that Mr. Lee had any knowledge ofhis grandson's marijuana possession. Appellee Barbara Hill isa 63 year-old woman who has lived in the same public hous-ing apartment for 30 years. Like Mr. Lee, she currently liveswith her grandson. Appellants assert as a ground for her evic-tion that her grandson possessed marijuana in the parking lotof the housing complex. Appellants do not allege that Ms. Hillhad any knowledge of her grandson's marijuana possession.Appellee Herman Walker is a disabled 75 year-old manwho has lived in "senior" public housing for eight years. Heis not capable of living independently and requires an in-home caregiver. Appellants assert as a ground for Mr. Walk-er's eviction that his caregiver and his caregiver's guests pos-sessed cocaine and drug paraphernalia in his apartment.Appellants do not allege that Mr. Walker himself engaged indrug-related activity.Appellants contend that 42 U.S.C. S 1437d(l)(5), part of theNational Housing Act, authorizes eviction of public housingtenants and their families if any member of the householdengages in any drug-related criminal activity (including pos-session of marijuana) on or near the public housing premises,whether or not the tenant had any knowledge of, or ability tocontrol, that activity. Under appellants' construction of thestatute, a parent who disapproves of drugs and diligently triesto keep her children off drugs, but who has an adolescentchild who experiments with marijuana, is subject to eviction.Needless to say, this law, as construed by appellants, is notthe standard under which American families are permitted toremain in private homes. If families were permitted to remainin their private homes only on condition that no family mem-ber had ever used or possessed illegal drugs in or near thehome, many American families would be made homeless.The district court preliminarily enjoined the evictions as notauthorized under 42 U.S.C. S 1437d(l)(5), and the majorityreverses. Because I believe that the majority misconstrues theapplicable law, I respectfully dissent.DiscussionI will first discuss the attempted eviction of appellees Ms.Rucker, Mr. Lee, and Ms. Hill. I will then discuss theattempted eviction of appellee Mr. Walker, whose case pres-ents an additional issue concerning the Americans with Dis-abilities Act.I. Eviction of Appellees Ms. Rucker, Mr. Lee, and Ms. HillThe central issue in this case is whether tenants withoutknowledge of, or ability to control, off-premises drug-relatedactivity of household members may be evicted from publichousing. If appellants had sought only to evict the householdmember engaged in drug-related activity, we would not behere today. However, appellants seek to evict not only theoffending member of the household, but also the innocenthead-of-household and other innocent family members.A. The Lease ProvisionThe directly governing statutory provision in this case wasoriginally passed as part of the Anti-Drug Abuse Act of 1988,Public Law 100-690, 102 Stat. 4300, now amended and codi-fied at 42 U.S.C. S 1437(d)(l). In its current form, it provides,in relevant part: Each public housing agency shall utilize leases which -- (1) do not contain unreasonable terms and condi- tions; [and] *** (5) provide that any criminal activity that threat- ens 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 termi- nation of tenancy[.]1. Plain Meaning of the StatuteThe district court found that the express language of thelease provision is silent as to the treatment of "innocenttenants." An examination of the text of the statute and thearguments of the parties reveals that the district court was cor-rect.Appellant HUD argues, and the majority agrees, that Con-gress meant to provide for the eviction of innocent tenantsbecause the language "any drug-related criminal activity on ornear such premises . . . shall be cause for termination oftenancy" (emphasis added) means that no one, even an inno-cent tenant, is excluded. The majority thus equates Congress'silence as to whether a tenant is required to know about, orbe able to control, the drug-related criminal activity with Con-gress' specific intent that the statute be applied to innocenttenants.The majority reaches its conclusion by construing "anydrug-related criminal activity" to mean "all " such activitywithout limitation. But such an all-encompassing readingleads to absurd results. If "any" truly means "all," withoutlimitation, Congress must also have specifically intended thatthe drug-related criminal activity could occur at any time andstill be cause for termination of the lease, since the statute issilent as to when the drug-related criminal activity mustoccur. In other words, such a reading leads to the conclusionthat Congress specifically intended that if a family memberengaged in drug-related activity five years ago, or if the tenantinvites a guest into her apartment and the guest engaged insuch activity five years ago, the drug-related criminal activityof the family member or guest would be cause for termina-tion, regardless of whether the tenant had any knowledge ofthat activity.Congress could not have intended such an absurd result.See Inter-Modal Rail Employees Ass'n v. Atchison, Topeka, &SF Ry. Co.,
520 U.S. 510, 516
(1997). Contrary to the readingadopted by the majority, the only reasonable interpretation ofthe statute is that Congress did not mean "any " in the mostall-encompassing sense possible. See Lewis v. United States,
523 U.S. 155
, _______, 118 S.Ct. 1135, 1139 (1998) (an all-encompassing reading of the words "any enactment " "is nota sensible interpretation of this language [since such a read-ing] would dramatically separate the statute from its intendedpurpose."). HUD itself has rejected an all-encompassing inter-pretation of the word "any." In adopting its regulation imple-menting S 1437d(l)(5), HUD limited the words "any drug-related criminal activity" to mean any such activity takingplace at the time a wrong-doer is a guest, 56 Fed. Reg. 51562(1991), even though HUD does not contend this limitation to"any" is in the statute. While HUD's reading of when "any"activity must take place is the only reasonable construction ofthe statute, it is contrary to the "plain meaning " of that samestatute as found by the majority.Moreover, no matter how broadly "any" is read, the statuteis ambiguous as to whose tenancy may be terminated. Section1437d(l)(5) allows for "termination of tenancy " but does notexplain whether such termination applies to the tenancies ofall members of the household or only to the tenancy of thetenant engaged in the drug-related criminal activity. As I readthe statute, Congress contemplated that a termination underthis section might be applied only to a tenant engaged in drug-related activity, or to a tenant in a position to know about andcontrol such activity. In support of this reading, I note, forexample, that S 1437d(n) specifically provides for notificationof the local post office when "a public housing agency evictsan individual or family from a dwelling unit for engaging incriminal activity, including drug-related criminal activity[.]"(emphasis added). Congress thus foresaw cases where only anindividual, rather than an entire family, would be evicted, andthe district court did not err in finding that the plain languageof the statute did not necessarily require the eviction of inno-cent tenants.The district court concluded that any lease term must bereasonable under 42 U.S.C. S 1437d(l)(1). There is nothingremarkable about the court's conclusion since the actual lan-guage of 42 U.S.C. S 1437d(l)(1) provides: Each public housing agency shall utilize leases which-- (1) do not contain unreasonable terms and con- ditions;Since all the subparagraphs specifying lease requirementsunder S 1437d(l) are joined with the connector "and" ratherthan "or," any construction of subparagraph (5) of S 1437d(l)must also be "reasonable" under subparagraph (1) of thatsame section. The majority contends that if there is some con-flict between their construction of subparagraph (5) and thereasonableness requirement of (1), subparagraph (5), the morespecific, controls over subparagraph (1), the more general. Ibelieve that this is a method for reading the reasonablenessrequirement out of the statute rather than for reading the twoprovisions consistently. Where a construction can eliminatepotential conflict between the two sections, that constructionmust prevail. Helen & Associates, Inc. v. Phoenix ResortCorp., 958 F.2d 295, 297 (9th Cir. 1992).The majority contends that appellants' construction is rea-sonable because giving protection to innocent tenants would"hamstring" efforts to fight drugs in public housing. In soconcluding, the majority relies on facts that are not in therecord. The district court found, on the record before it, thatthe evidence showed that eviction of persons who did notknow, could not foresee, and could not control the conduct ofothers does nothing to further the battle against drugs in pub-lic housing. By contrast, where the district court did find thata tenant could do something to assure drug activity would notoccur, the court did not extend injunctive relief to protect sucha tenant (even if she was not personally involved in the drug-related activity).1The majority further contends that evicting innocent tenantsis reasonable because barring innocence as a defense holdsdown litigation costs. There are many ways to hold down liti-gation costs, not all of them reasonable or appropriate. I amconfident that the majority does not believe that a publichousing authority should be allowed to skip the eviction pro-cess altogether and just change the locks. Nor should itbelieve that it is reasonable to punish the innocent along withthe guilty because it is cheaper to litigate under that standardthan under a standard that protects the innocent.Finally, the majority compares eviction from public hous-ing to eviction from private rental property. I find this com-parison unhelpful. Suffice it to say that good cause is alwaysrequired for eviction from public housing, 42 U.S.C.S 1437d(l)(4), whereas, absent such a provision in the lease,a similar requirement of good cause is generally not requiredin private residential leases. See, e.g., S.P. Growers Ass'n v.Rodriguez, 17 Cal.3d 719, 730 (1976).2. Legislative HistorySince the plain language of the lease provision does notcompel either party's interpretation, this court may properlylook at legislative history to determine Congress' intent. Ibelieve that the legislative history supports the tenants' inter-pretation.The original version of 42 U.S.C. S 1437d(l)(5) wasenacted as part of the Anti-Drug Abuse Act of 1988. NoHouse or Senate Reports accompanied this legislation, andnone of the committee reports had anything to do with theprovisions affecting HUD. However, in 1990, Congress revis-ited termination of tenancy for drug-related activity and effec-tively rewrote subparagraph (l)(5) into its present form. PublicLaw 101-625. The legislative history indicates that Congressdid not intend for innocent family members to be evicted. TheSenate Report2 specifically stated that eviction would not beappropriate "if the tenant had no knowledge of the criminalactivities of his/her guests or had taken reasonable steps underthe circumstances to prevent the activity." 1990 USCCAN5941. Likewise, the Conference Report said of an identicalpassage in the Section 8 housing assistance program: "[T]heCommittee assumes that if the tenant had no knowledge of thecriminal activity or took reasonable steps to prevent it, thengood cause to evict the innocent family members would notexist." Id. at 5889.It is well established in this circuit that "the official com-mittee reports provide the authoritative expression of legisla-tive intent" when examining legislative history. 3 See In reKelly, 841 F.2d 908, 912 n.3 (9th Cir. 1988). The majorityopinion attempts to explain these comments as evidence thatCongress granted HUD and the public housing authorities(PHAs) discretion not to evict in these situations. However,Congress did not appeal only to the PHAs; it appealed to the"wise exercise of the humane judgment by the PHA and theeviction court." 1990 USCCAN 5941 (emphasis added). IfCongress had meant to leave the discretion solely with thePHAs, the judgment of the courts would never come intoplay. Further, the Committee Reports were very clear thatthese evictions "would not" be appropriate, not that theymight not. Id. Congress thus left no room for the unchallenge-able discretion the majority would grant the government.B. The Anti-Forfeiture ProvisionIn the Anti-Drug Abuse Act of 1988, Congress both passedthe original version of the lease provision (just discussed),which amended the National Housing Act, and amended apre-existing anti-forfeiture provision of the Controlled Sub-stances Act. Both the lease provision and the amendment tothe anti-forfeiture provision were part of Chapter 1 of SubtitleC of Public Law 100-690 (Preventing Drug Abuse in PublicHousing). The anti-forfeiture provision was amended byinserting the phrase "(including any leasehold interest)" intothe text of the pre-existing statute. As a result of the amend-ment, the Controlled Substances Act now provides, in rele-vant part: (a) Subject property The following shall be subject to forfeiture to the United States and no property right shall exist in them: * * * (7) All real property, including any right, title, and interest (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 sub- chapter punishable by more than one year's impris- onment, 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 estab- lished by that owner to have been committed or omitted without the knowledge or consent of that owner.21 U.S.C. S 881(a) (emphasis added: italics indicate materialadded in 1988; underlined text was already in the statute).We are faced with a more specific task than merely under-standing the lease provision of the National Housing Act andthe anti-forfeiture provision of the Controlled Substances Act.We must understand, and make consistent, section 5101 (thelease provision) and section 5105 (the amendment to the anti-forfeiture provision) of Public Law 100-690, which amendedthese two Acts. It is axiomatic that Congress must have meantthese provisions -- passed as part of the same chapter of thesame Act -- to be interpreted consistently. Gustafson v.Alloyd Co., Inc.,
513 U.S. 561, 570
(1995). The majorityargues that the amendment of the anti-forfeiture provisionsimultaneously with the enactment of the lease provision sup-ports its position. It concludes that Congress (implicitly)intended to deprive innocent tenants of protection under sec-tion 5101 of PL 100-690 at the same time it (expressly)intended to protect tenants who had no "knowledge " of, andhad not given any "consent" to, drug-related activity undersection 5105 of that same law.In order to conclude that Congress intended the forfeitureof the leasehold interest of an innocent tenant, the majoritydistinguishes between forfeiture to the federal governmentand forfeiture to a local government agency. The majority iscorrect in pointing out that the anti-forfeiture provision dealswith forfeitures to the federal government and that the leaseprovision deals with forfeitures to local housing authorities.The majority recognizes that there "may be a constitutionalbar to forfeiture of property when the property owner is unin-volved and unaware of the wrongful activity," ante at 1807,and it argues that the explicit incorporation of that bar into theanti-forfeiture provision alleviates that constitutional concernwhen forfeitures to the United States are at issue. But themajority assumes that Congress' awareness of, and intent toalleviate, that same concern somehow disappeared when for-feitures to a public housing authority were at issue. I disagree.To the extent that a reading of a forfeiture statute is driven bya concern to avoid an unconstitutional construction, that con-cern should be equally present whether the forfeiture is to thefederal government or to a local governmental authority.The majority distinguishes between forfeitures to the fed-eral government and forfeitures to local authorities based ona hypothesized congressional conclusion that tenants needmore protection from the federal government because of thefederal government's temptation to enrich itself through for-feiture proceedings. This hypothesis is unsupported by thetext, context, or history of the legislation, and I view it as aninappropriate attribution to Congress of a base view of themotivations of federal authorities in forfeiture cases.The majority further argues that a forfeiture proceeding --whether conducted by the federal government or by a localhousing authority -- is sufficiently different from an evictionproceeding that the anti-forfeiture provision should in anyevent not apply to evictions. The most obvious problem withthe majority's argument is that leasehold interests are typi-cally terminated by eviction, and that the 1988 Act specifi-cally added "leasehold interests" to the anti-forfeitureprovision. See, e.g., United States v. The Leasehold Interest in121 Nostrand Ave., 760 F.Supp. 1015 (E.D.N.Y. 1991)(applying the anti-forfeiture provision, 21 U.S.C.S 881(a), toforfeiture of a leasehold).The majority argues, finally, that a forfeiture under the stat-ute is available on a lower standard of proof than an ordinaryeviction, and that an eviction is therefore not included in theanti-forfeiture provision. But what is at issue in this case isnot the burden of proof but the substantive liability of a per-son who did not and could not know of the criminal activityof another. For purposes of determining whether the statuteallows eviction of a person concededly without knowledge,the burden of proof for demonstrating knowledge is notrelevant.4I am unwilling to assume that the constitutional concernsthat appear to have motivated Congress when considering for-feiture to the federal government were irrelevant to Congresswhen considering forfeiture to local governments. Congressmade its intent explicit as to the federal government by addingfour words to a pre-existing drug-related forfeiture statuteapplicable to the federal government. There was (and is) nocomparable federal drug-related forfeiture statute applicableto local governments that Congress could have amended withcomparable ease; indeed, there may even be some questionabout the scope of Congress' constitutional power to enactsuch a general statute. It is therefore not surprising that Con-gress did not put into the Drug Control Act of 1988 an explicitanti-forfeiture provision applicable to local governments. Butthe absence of such a provision in the Act does not mean thatCongress had no concern about the constitutionality of forfei-tures of the leaseholds of innocent tenants to local govern-ments. And it certainly does not mean that Congress intendedthat the lease provision enacted as part of the same Act shouldbe construed to allow forfeitures to local governments that itexplicitly forbade to the federal government.C. Language in Related Statutory Provisions 1. Waiver of Disqualification Period for PreferencesThe majority points to an earlier version of 42 U.S.C.S 1437d(c)(4)(A)(iii) in support of its reading of S 1437d(l).5The version of the statute that existed until 1996 -- and uponwhich the majority relies -- provided for a three-year disqual-ification period for "preferences" that would otherwise beavailable to those applying for tenancy in public housing.Preferences were given, for example, to the homeless, to thosepaying more than 50% of their income in rent, and to thosewho had recently been displaced from housing. See, e.g.,S 1437d(c)(4)(A)(i). The three-year disqualification for suchpreferences period applied to "any individual or family"evicted from public housing "by reason of drug-relatedactivity."6 However, the statute specifically required that therebe a waiver of the disqualification period for "any member ofa family of an individual prohibited from tenancy under thisclause who the agency clearly determines did not participatein and had no knowledge of such criminal activity[.]"The majority contends that the statutory waiver to an inno-cent family member must mean that such a family membercould have been evicted in the first place, for otherwise thatinnocent family member would not be re-applying for publichousing. According to the majority, "If an `innocent tenant'could not have been evicted in the first place, there wouldhave been no need for Congress to write a statute specificallywaiving the three-year waiting period for them." The majorityhas read into the statute a limiting concept that was not there.The statute nowhere used the word "re-apply" or its equiva-lent. Rather, the statute gave its preferences to all those apply-ing -- not merely those re-applying -- for public housing;and it similarly imposed its three-year disqualification forpreferences on all those applying -- not merely those reapply-ing -- for public housing.Once one understands that the statute covered anyoneapplying for public housing, the statute made perfect sense.The waiver provision of the statute ensured that applicants forpublic housing who were entitled to preference did not losethat preference because of the sins of a family member. Solong as the applicants had not participated in and had had noknowledge of the drug-related activities of their family mem-ber, they were not subject to the three-year disqualificationperiod. Far from supporting the majority's argument, the stat-ute showed Congress' concern that innocent applicants forpublic housing not suffer because of their family member'sdrug-related activities.2. The Veterans Affairs Act of 1999The majority also relies on S 577 of the Veterans AffairsAct of 1999 (codified at 42 U.S.C. S 13662) for its view thatCongress plainly meant to evict innocent tenants. The Act wasnot in effect at the time the case was argued to us, was neverpresented to the district court, and has major textual interpre-tation issues of its own. I do not believe that we should beanalyzing this statute at this stage of the litigation, in partbecause of the obvious hazards inherent in attempting toresolve complex questions of statutory interpretation under astatute that has not been the focus of the parties or the districtcourt, and in part because appellants have not sought to usethis statute to evict the tenants in this case. Under the circum-stances, I will simply point out that the language of S 577 ofthe Veterans Affairs Act is different from that of the leaseprovision of the National Housing Act, and that there is noindication that Congress intended these two provisions tohave the same interpretation. The fact that Congress chose touse different language in similar situations tends to show itintended a different meaning. See Florida Telecommunica-tions Ass'n v. FCC, 54 F.3d 857, 860 (D.C. Cir. 1995). I donot read S 577 as supporting the wholesale eviction of inno-cent tenants, for it addresses households with a member whois a drug user, rather than on households with a memberengaged in unspecified and off-premises drug-related activity,and it addresses rehabilitation of the offending member. Fur-ther, and in any event, "the views of a subsequent Congressform a hazardous basis for inferring intent of an earlier one."South Dakota v. Yankton Sioux Tribe,
522 U.S. 329
, 355(1998).D. Avoiding Substantial Constitutional QuestionsA statute that can be construed to avoid substantial consti-tutional questions should be so construed. United States v.X-Citement Video, Inc.,
513 U.S. 64, 78
(1994). The construc-tion adopted by the majority raises substantial constitutionalquestions both under the Excessive Fines Clause of the EighthAmendment and the Due Process Clause of the FourteenthAmendment. Since the statute is clearly capable of a construc-tion that will avoid these questions, I believe we should adoptthat construction.1. Excessive FinesThe Excessive Fines Clause provides: "Excessive bail shallnot be required, nor excessive fines imposed, nor cruel andunusual punishment inflicted." U.S. Const., amend. 8 (empha-sis added). Relying on Kim v. United States, 121 F.3d 1269,1276 (9th Cir. 1997), the majority contends that the forfeitureof a leasehold interest is not subject to the clause because itonly applies to " `cash or in kind payment directly imposedby, and payable to, the government.' " Ante at 1819. How-ever, Kim holds only that an administrative disqualification isnot subject to the Excessive Fines Clause. It does not hold thata forfeiture of a property interest is not subject to the clause.Indeed, Austin v. United States,
509 U.S. 602
(1993), onwhich Kim relies, 121 F.3d at 1276, is directly to the contrary,holding squarely that forfeiture of property is covered by theExcessive Fines Clause,
509 U.S. at 622
.7 The majority further contends that the Excessive FinesClause is inapplicable "because we are not dealing with anattempt by the federal government to seize Tenants' propertyunder the civil forfeiture laws." Ante at 1820, referring to itsearlier discussion of the anti-forfeiture provision, 21 U.S.C.S 881(a). It is, of course, true that the forfeiture in this caseis sought by a local government rather than the federal gov-ernment, but it is a forfeiture nonetheless. Although the ques-tion is not entirely settled, it is very likely that the ExcessiveFines Clause applies to the states. As Justice O'Connor wrotein Browning-Ferris Industries of Vermont, Inc. v. Kelco Dis-posal, Inc.,
492 U.S. 257
, 282, 284 (1989) (O'Connor, J., con-curring), "[T]he Cruel and Unusual Punishments Clause [ofthe Eighth Amendment] has been regularly applied to theStates. . . . In addition, the Court has assumed that the Exces-sive Bail Clause of the Eighth Amendment applies to theStates. . . . I see no reason to distinguish one Clause of theEighth Amendment from another for purposes of incorpora-tion, and would hold that the Excessive Fines Clause alsoapplies to the States." The majority does not argue that JusticeO'Connor is wrong about the incorporation of the ExcessiveFines Clause through the Fourteenth Amendment. Indeed, itdoes not discuss the incorporation issue and JusticeO'Connor's opinion at all. But if the majority were to engagein such a discussion, it would have to concede, at the veryleast, that the incorporation of the Excessive Fines Clause andthe application of the Clause to the forfeiture of appellees'leasehold to a local government pose substantial constitu-tional questions.2. Due ProcessThe forfeiture of a tenant's leasehold interest under the cir-cumstances presented in this case also raises substantial ques-tions under the Due Process Clause. It is undisputed thattenants of public housing have a property interest in their ten-ancy. See Geneva Towers Tenants Org. v. Federated Mort-gage Inv., 504 F.2d 483, 488-89 (9th Cir. 1974). The holdingof the Supreme Court in Bennis v. Michigan,
516 U.S. 442
(1996), and the discussion in the concurring opinions of Jus-tices Thomas and Ginsburg in that case, strongly suggest thatforfeiture of property violates due process if the property hasnot been used in the commission of the illegal activity inquestion, and if the owner of the property did not know about,could not foresee, and could not control that activity.In Bennis, a man was arrested for sexual activity with aprostitute in a car co-owned with his wife, and the car wasforfeited as a public nuisance. His wife brought suit for thevalue of her ownership interest in the forfeited car. In a 5-4decision, the Court held that an innocent owner is subject toforfeiture of her property "by reason of the use to which theproperty was put even though the owner did not know that itwas to be put to such use." Id. at 446. Justice Thomas, thefifth vote for the majority, wrote a separate concurring opin-ion in which he expressed a belief that the result in Benniswas ordained by centuries of forfeiture law.8 However, JusticeThomas also expressed a grave concern that forfeiture not beextended beyond cases where the property itself is used for acrime. Id. at 456 (Thomas, J., concurring); see also id. at 458(Ginsburg, J., concurring) (the government "has not embarkedon an experiment to punish innocent third parties. .. . Nor dowe condone any such experiment.")In the present case, the majority allows forfeiture of theleasehold of innocent tenants for drug-related activity that didnot involve the use of the leasehold property and of which thetenants were unaware. This forfeiture thus deprives innocentpeople of property that was not involved in any crime andpunishes innocent people for crimes that they did not commitand could not prevent.9 I believe that under Bennis this islikely a violation of the Due Process Clause.II. Eviction of Mr. WalkerMr. Walker's case contains an element not present in thecases of Ms. Rucker, Mr. Lee, and Ms. Hill. He contends thatthe Americans with Disabilities Act ("ADA"), 42 U.S.C.S 12101, et seq., protects him from eviction despite the use ofdrugs in his apartment by his caretaker and his caretaker'sguests. As the majority opinion correctly observes, Mr.Walker unquestionably has a right under the ADA to a live-incaretaker, but he does not have a right under the ADA to havea live-in caretaker who violates the drug laws. If deciding thecase de novo on the current record, I might conclude that Mr.Walker had both knowledge of his caretaker's activities andthe ability to replace the caretaker. However, this court is notat liberty independently to reweigh the evidence presented tothe district court. The district court's findings of fact must bereviewed under the clearly erroneous standard. Roe v.Anderson, 134 F.3d at 1400, 1402 n.1 (9th Cir. 1997).Although Mr. Walker clearly had knowledge of his live-incaretaker's drug-related activity after she was initially foundto be keeping drugs and drug paraphernalia on the premises,the district court could reasonably have believed that Mr.Walker was, because of his disability, powerless to stop heror find a replacement any sooner than he did.Mr. Walker claims that his disability prevented him fromcomplying with the anti-drug policy without a reasonableaccommodation. The evidence about the extent of Mr. Walk-er's disability and the degree to which it prevented him fromcomplying with the anti-drug policy is disputed, with bothsides presenting conflicting declarations. The majority ignoresthis dispute and simply adopts appellants' version of the factsas it own. Appellants may be able to establish their version ofthe facts at trial, but on the record now before us the districtcourt did not abuse its discretion in finding that Mr. Walker'sclaim was sustainable.Accepting for present purposes that Mr. Walker may havebeen prevented from complying with the anti-drug policy byhis disability, the question then becomes whether a reasonableaccommodation can be made that will bring Mr. Walker intocompliance with his lease agreement. Appellants maintainthat a blanket waiver of the anti-drug policy is not a reason-able accommodation. I agree. The district court's order, how-ever, does not require such a waiver. Rather, the district courtspecifically rejected appellants' claim that a blanket waiverwas the only possible accommodation, and held that, based onthe complaint, Mr. Walker may be able to show that anotheraccommodation is reasonable. While the district court mayultimately decide in favor of appellants once the record isdeveloped further, the district court did not abuse its discre-tion by finding that, on the record before it, Mr. Walker hada fair chance of sustaining his claim under the ADA.ConclusionFor the foregoing reasons, I respectfully dissent from themajority's construction of this statute.
___________________________FOOTNOTES 1 Congress made three other related findings: The Congress finds that--3 In 1998, section 1437d(l)(5) was redesignated as subsection (l)(6), butthe language was left unchanged. We will continue to refer to this provi-sion as (l)(5).4 Walker consented to this search, as well as to the subsequent searches.5 Rucker also presented an ADA claim, which the district court dis-missed because she did not allege a disability. Rucker does not appeal thisruling, so only Walker's ADA claim is before us.6 The unlawful detainer action against Rucker was dismissed in February1998. Rucker continues to reside in OHA housing.7 In addition, the court specifically enjoined OHA from prosecuting itsstate court eviction proceedings against Hill, Lee, and Walker.8 Only a handful of other courts have addressed this precise issue, andthey have reached conflicting conclusions. Compare City of South SanFrancisco Hous. Auth. v. Guillory, 41 Cal. App. 4th Supp. 13, 18-19 (Cal.App. Dep't Super. Ct. 1995) (concluding that "drug-related activity by anymember of a tenant's household is cause per se for termination of the leasewhere . . . the housing authority receives federal funds"), with CharlotteHous. Auth. v. Patterson, 464 S.E.2d 68, 72 (N.C. Ct. App. 1995) ("Withno mention of personal fault, the statute and lease at issue in this case pro-vide that criminal activity by a member of a tenant's household is causefor ending a tenancy. However, as noted above, the legislative historyreveals a clearly expressed legislative intent that eviction is appropriateonly if the tenant is personally at fault for a breach of the lease . . . .").9 The dissent argues that a broad reading of the term "any drug-relatedcriminal activity" is untenable because it leads to "absurd result[s]." Dis-senting Op. at 1827. This argument might be more persuasive if not forthe fact that other language within section 1437d(l)(5) places limits uponthe otherwise expansive scope of "any drug-related criminal activity."Although the dissent is correct to point out that the statute does notexplicitly state what illegal drug-related activity constitutes cause for evic-tion, the relevance of such observation to this case is unclear. Any meta-physical ambiguity in the statutory language has no bearing on the task athand: determining whether HUD's regulations constitute a permissibleinterpretation of section 1437d(l)(5).10 Congress recently reaffirmed its desire to leave discretion in the handsof PHAs when it enacted 42 U.S.C. S 13662. Like section 1437d(l)(5),section 13662 requires PHAs to include a lease provision that allows thePHA to terminate the tenancy of any household with a member whosedrug use threatens the health or safety of others, but explicitly makes clearthat a PHA may consider other factors in deciding whether actually toevict on this basis. See 42 U.S.C. S 13662.11 Under section 1437d(l)(5) and the applicable HUD regulations, evic-tion of a household is not the only possible response to cases involvingdrug-related criminal activity; PHAs have the discretion to utilize a widerange of alternative remedies in such cases. In challenging HUD's inter-pretation of the statute, the dissent places significant emphasis upon theexistence of such remedies. See Dissenting Op. at 1828. That alternativeremedies are available does not mean, of course, that they are the onlyoptions open to PHAs under the statute.12 The statute reads in relevant part: (4) [T]he public housing agency shall comply with such pro- cedures and requirements as the Secretary may prescribe to assure that sound management practices will be followed in the operation of the project, including requirements pertaining to -- (A) . . . the establishment of tenant selection criteria which-- (iii) prohibit any individual or family evicted from housing assisted under the chapter by reason of drug-related crimi- nal activity from having a preference under any provision of this subparagraph for 3 years unless the evicted tenant suc- cessfully completes a rehabilitation program approved by the agency, except that the agency may waive the application of this clause under standards established by the Secretary (which shall include waiver for any member of a family of an individual prohibited from tenancy under this clause who the agency determines clearly did not participate in and had no knowledge of such criminal activity or when circumstances leading to eviction no longer exist).Id. (1996) (emphases added). Congress significantly revised this statute in1996 and again in 1998. See id. (1999); id. (1997).13 With respect, the dissent's reading of section 1437d(c)(4)(A)(iii) doesnot make sense. The dissent essentially argues that the statutory waiverapplies to applicants for public housing regardless of whether such appli-cants had ever been evicted from such housing. What the dissent over-looks is that only an "individual or family evicted from [public] housingby 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. S 1437d(c)(4)(A)(iii)(emphasis added). Thus the waiver would be utterly irrelevant to someonewho had never lived in nor been evicted from public housing. As a matterof simple logic, one must be a tenant of public housing before one can beevicted from public housing for drug-related activity. In other words, thescope of the waiver of the prohibition period cannot be any broader thanthe scope of the prohibition itself.14 Section 881(a)(7) provides: The following shall be subject to forfeiture to the United States and no property right shall exist in them: (7) All real property, including any right, title, and interest (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 pun- ishable by more than one year's imprisonment, 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 estab- lished by that owner to have been committed or omitted without the knowledge or consent of that owner.Id.15 The dissent argues that "Congress must have meant [section1437d(l)(5) and amended section 881(a)(7)] -- passed as part of the samechapter of the same Act -- to be interpreted consistently." Dissenting Op.at 1833. But the dissent's recommended course of action -- giving thesetwo provisions the same meaning, despite their clearly different language-- is surely no recipe for consistent interpretation. Cf. Dissenting Op. at1838 ("The fact that Congress chose to use different language in similarsituations tends to show it intended a different meaning.").16 Forfeiture proceedings involve suits by the federal government againstthe property. See, e.g., United States v. 1 Parcel of Real Property, Lot 4,Block 5 of Eaton Acres, 904 F.2d 487, 490 (9th Cir. 1990).17 Although eviction under California law has been denominated a"summary proceeding," Dissenting Op. at 1835 n.4, a landlord seeking toevict a tenant still has to prove the existence of a ground for eviction bya preponderance of the evidence. See Western Land Office, Inc. v.Cervantes, 220 Cal. Rptr. 784, 797-98 & 797 n.10 (Ct. App. 1985).18 At times the dissent appears to argue that the anti-forfeiture provisionof section 881(a)(7), in addition to reflecting certain general constitutionalconcerns, applies directly to the termination of tenancies as authorizedunder section 1437d(l)(5). See Dissenting Op. at 1834-35. If this is in factthe dissent's argument, it is untenable, because the anti-forfeiture provi-sion by its terms governs only forfeitures made "under this paragraph,"i.e., forfeitures to the federal government pursuant to section 881(a)(7).19 In 1998, this provision was recodified as section 1437d(l)(2). As dothe parties, we will continue to refer to this subsection as (l)(1).20 That Congress viewed drug-related criminal activity as especially per-nicious is evidenced by the fact that, with respect to non-drug-relatedcriminal activity, only that which "threatens the health, safety, or right topeaceful enjoyment of the premises by other tenants " is cause for termina-tion of tenancy, whereas this limiting provision does not apply to drug-related criminal activity, which is per se cause for eviction. See 42 U.S.C.S 1437d(l)(5).21 This would be so even if the knowledge factor were incorporated asan affirmative defense with the burden of proof on the tenant to show his"innocence."22 A Minnesota statute provides that: "In every lease or license of resi-dential premises, whether in writing or parol, the lessor or licensor and thelessee or licensee covenant that . . . neither will . . . unlawfully allow con-trolled substances in those premises or in the common area and curtilageof the premises." Minn. Stat. S 504.181, subd. 1. In Minnesota, a tenantis liable for activities that breach the lease even if the tenant did not partic-ipate in or control the conduct. See Phillips Neighborhood Hous. Trust,564 N.W.2d at 575.23 We realize, as does the dissent, that section 13662 was not in exis-tence when this lawsuit was commenced. Nevertheless, the policy deci-sions reflected in that provision shed light upon the reasonableness ofHUD's interpretation of section 1437d(l)(5).24 The scattered case law on point generally supports our conclusion. SeeGreen, 657 So.2d at 555; cf. Coleman v. City of Yonkers Mun. Hous.Auth., 679 N.Y.S.2d 624, 624-25 (N.Y. App. Div. 1998) (affirming evic-tion of tenant on the basis of son's actions); City of South San FranciscoHous. Auth., 41 Cal. App. 4th Supp. at 16-20. But see Richmond TenantsOrg. v. Richmond Redevelopment & Hous. Auth., 751 F. Supp. 1204, 1206(E.D. Va. 1990) (concluding that it is unreasonable to evict a tenant forany conduct that occurs off-premises).25 The dissent appears to view our rejection of Tenants' excessive fineschallenge as based upon a belief that the Excessive Fines Clause does notapply to the states. We need not, and do not, express any view on suchissue. As previously discussed, an eviction from public housing basedupon breach of a lease provision relating to drug-related criminal activitysimply does not implicate civil forfeiture laws, be they state or federal inorigin.Treating an eviction authorized by section 1437d(l)(5) as a forfeiture,the dissent expresses its view that HUD's regulations, insofar as they per-mit eviction of "innocent tenants," may violate the Fourteenth Amend-ment's Due Process Clause. Even assuming that such an eviction could betreated as a forfeiture, we cannot agree. The dissent relies most heavilyupon the concurring opinions of Justice Thomas and Justice Ginsburg inBennis v. Michigan,
516 U.S. 442
(1996). While these opinions are quiteinteresting, the opinion of the Court -- which both Justice Thomas andJustice Ginsburg joined in full -- controls.The Bennis Court upheld, as consistent with due process, the forfeitureof Bennis's entire interest in a car that she co-owned with her husband --even though she had no knowledge that he would use the car to engagein illegal sexual activity with a prostitute. In rejecting Bennis's "innocentowner" defense, the Court made clear that "a long and unbroken line ofcases holds that an owner's interest in property may be forfeited by reasonof the use to which the property is put even though the owner did notknow that it was to be put to such use." Id. at 446. Bennis simply cannotsupport the dissent's analysis.26 Walker did fire his care-giver after the issuance of the third lease vio-lation, but has not offered any reason why he did not take this step earlier.Volume 2 of 2FOR PUBLICATIONUNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUITPEARLIE RUCKER; HERMAN WALKER;WILLIE LEE; BARBARA HILL,Plaintiffs-Appellees,v. No. 98-16322HAROLD DAVIS; OAKLAND HOUSINGAUTHORITY, D.C. No.Defendants, CV-98-00781-CRBandU.S. DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT,Defendant-Appellant.PEARLIE RUCKER; HERMAN WALKER;WILLIE LEE; BARBARA HILL,Plaintiffs-Appellees,v. No. 98-16542HAROLD DAVIS; OAKLAND HOUSING D.C. No.AUTHORITY, CV-98-00781-CRBDefendants-Appellants, OPINIONandU.S. DEPARTMENT OF HOUSING ANDURBAN DEVELOPMENT,Defendant.Appeals from the United States District Courtfor the Northern District of CaliforniaCharles R. Breyer, District Judge, Presiding1 For example, the court refused to extend protection of innocent tenantsto situations where drug activity occurred in the apartment. "A tenant maycontrol what occurs in her unit by ensuring that no one is present whenshe is not and searching her apartment and perhaps, her guests and house-hold before they enter. In other words, terminating the lease of a tenant forher failure to maintain a drug-free environment in her apartment holds thetenant responsible for something over which she has some control. Evic-tion under such circumstances appears rationally related to a legitimatepublic housing goal." Only where a tenant has no ability at all to preventthe drug-related criminal activity did the district court find that the ten-ant's eviction is unreasonable.2 The Senate version of this amendment was adopted in the final statute.1990 USCCAN 6123.3 In an attempt to show a contrary intent, HUD has only quoted isolatedstatements from witnesses and legislators rather than committee reports.Such statements "cannot be attributed to the full body that voted on thebill." See In re Kelly at 912 n.3. Further, even taken at face value, thesestatements only go to the problem of drugs, a problem all parties as wellas the district court acknowledge as serious, not to the question of whetherinnocent tenants should be evicted.4 A related misapprehension in the majority opinion is that innocent ten-ants need more protection in a forfeiture action but less in an evictionaction because forfeiture is a summary proceeding. First, as noted above,the nature of the proceeding has nothing to do with the substantivedefenses available. Second, under California law eviction is itself a sum-mary proceeding. Nork v. Pacific Coast Medical Enterprises, 73Cal.App.3d 410, 413 (1977).5 The statutory language relied upon by the majority was superceded in1996. The majority's argument is not available under the language of thecurrent statute.6 The statutory reference to an "individual or family" evicted for drug-related activity does not imply that innocent family members could beevicted. An entire family could be evicted if all the members of the familyeither themselves engaged in drug-related activity, or knew about andfailed to control drug-related activity.7 Austin also suggests that a determination of whether a forfeiture vio-lates the Excessive Fines Clause depends on the facts of the case. Austinat 622. Even if this court did need to reach the issue of whether HUD'sapplication of its regulation to appellees violated the Excessive FinesClause, the proper procedure would be to remand to the district court forsuch a determination. See id. at 622-23.8 See also Austin at 615 for an examination of the principles underlyingforfeiture. The theories supporting the forfeiture of an innocent person'sproperty are limited to situations where the property to be forfeited wasitself misused or where "the owner has been negligent in allowing hisproperty to be misused and that he is properly punished for thatnegligence." Id.9 The district court refused to extend the injunctive relief to situationswhere the property to be forfeited, the leasehold interest, is directlyinvolved in the drug-related criminal activity. That is, if drugs are foundin the apartment, the leasehold is forfeited, regardless of the actual knowl-edge of the tenants.