UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEARLIE RUCKER; HERMAN WALKER;
WILLIE LEE; BARBARA HILL,
Plaintiffs-Appellees,
v.
No. 98-16322
HAROLD DAVIS; OAKLAND HOUSING
AUTHORITY,
D.C. No.
Defendants,
CV-98-00781-CRB
and
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT,
Defendant-Appellant.
PEARLIE RUCKER; HERMAN WALKER;
WILLIE LEE; BARBARA HILL,
Plaintiffs-Appellees,
v.
No. 98-16542
HAROLD DAVIS; OAKLAND HOUSING
D.C. No.
AUTHORITY,
CV-98-00781-CRB
Defendants-Appellants,
OPINION
and
UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
1025
Argued and Submitted
March 12, 1999--San Francisco, California
Opinion filed February 14, 2000
Rehearing En Banc Granted and
Opinion Withdrawn August 18, 2000
Argued and Submitted En Banc
September 19, 2000--San Francisco, California
Filed January 24, 2001
Before: Joseph T. Sneed, Mary M. Schroeder,
Harry Pregerson, Stephen Reinhardt, Ferdinand F. Fernandez,
Thomas G. Nelson, Michael Daly Hawkins,
Barry G. Silverman, M. Margaret McKeown,
Ronald M. Gould, and Richard A. Paez, Circuit Judges.
Opinion by Judge Hawkins;
Dissent by Judge Sneed
_________________________________________________________________
COUNSEL
Gary T. Lafayette, Lafayette, Kumagai & Clarke, San Fran-
cisco, California, for defendants-appellants Harold Davis and
The Oakland Housing Authority.
Howard S. Scher, U.S. Department of Justice, Civil Division,
Washington, D.C., for defendant-appellant U.S. Department
of Housing and Urban Development.
Whitty Somvichian, O'Melveny & Myers, San Francisco,
California, for the plaintiffs-appellees.
Alan L. Schlosser, American Civil Liberties Union Founda-
tion of Northern California, San Francisco, California, for
amicus curiae American Civil Liberties Union of Northern
California.
Gideon Anders, Catherine M. Bishop, and James R. Grow,
National Housing Law Project, Oakland, California; Richard
Rothchild, Western Center on Law & Poverty, Inc., Los
Angeles, California; Dara Lynn Schur, Western Center on
Law & Poverty, Inc., Oakland, California; Debra Gardner,
Public Justice Center, Baltimore, Maryland; Toby Rothchild,
Dennis Rockway, Susanne M. Browne, Legal Aid Foundation
of Long Beach, Long Beach, California; Ilene Jacobs, Califor-
nia Rural Legal Assistance, Inc., Marysville, California, for
amici curiae Carmelitos Tenants Association, et al.
Michael Nail, National Association of Housing and Redevel-
opment Officials ("NAHRO"), Washington, D.C., for amicus
NAHRO.
1031
William F. Maher, Housing and Development Law Institute
("HDLI"), Washington, D.C., for amicus HDLI.
_________________________________________________________________
OPINION
HAWKINS, Circuit Judge:
Many of our nation's poor live in public housing projects
that, by many accounts, are little more than illegal drug mar-
kets and war zones. Innocent tenants live barricaded behind
doors, in fear for their safety and the safety of their children.
What these tenants may not realize is that, under existing poli-
cies of the Department of Housing and Urban Development
("HUD"), they should add another fear to their list: becoming
homeless if a household member or guest engages in criminal
drug activity on or off the tenant's property, even if the tenant
did not know of or have any reason to know of such activity
or took all reasonable steps to prevent the activity from occur-
ring ("innocent tenants"). Today we examine the statutory
basis behind HUD's "One Strike and You're Out " policy, and
hold that Congress did not intend to authorize the eviction of
innocent tenants.
I. BACKGROUND
It is undisputed that serious criminal activity, especially
drug-related activity, has created a dangerous environment in
many public housing projects. Officially recognizing that
"public and other federally assisted low-income housing in
many areas suffers from rampant drug-related crime, " Con-
gress sought to address the problem with the Anti-Drug
Abuse Act of 1988. 42 U.S.C. S 11901(2). Congress required
each public housing agency to utilize leases which:
(5) provide that a public housing tenant, any mem-
ber of the tenant's household, or a guest or other per-
1032
son under the tenant's control shall not engage in
criminal activity, including drug related criminal
activity, on or near public housing premises, while
the tenant is a tenant in public housing, and such
criminal activity shall be cause for termination of
tenancy.
42 U.S.C. S 1437d(l)(5) (1989). Congress altered the language
of this provision slightly in 1990, to require leases that:
(5) provide that any criminal activity that threatens
the health, safety, or right to peaceful enjoyment of
the premises by other tenants, or any drug related
criminal activity on or near such premises, engaged
in by a public housing tenant, any member of the
tenant's household, or any guest or other person
under the tenant's control, shall be cause for termi-
nation of tenancy.
Id. (1991). In 1996, Congress replaced the phrase "on or near
such premises" with "on or off such premises. " Id. (1997).
Finally, in 1998, the section was unchanged, but redesignated
as subsection (l)(6), which is how we refer to it in this opin-
ion. Id. (1999).
In 1991, HUD issued regulations implementing subsection
(6), which track the pre-96 statutory language very closely.
HUD required local public housing authorities ("PHAs") to
impose a lease obligation on tenants:
To assure that the tenant, any member of the house-
hold, a guest, or another person under the tenant's
control, shall not engage in:
(A) Any criminal activity that threatens the health,
safety, or right to peaceful enjoyment of the
PHA's public housing premises by other resi-
dents or employees of the PHA, or
1033
(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). When issuing these regulations,
HUD made it clear that it interpreted the statute (and its own
regulations) as giving local PHAs the authority to evict a ten-
ant whose household members or guests are involved in drug
activity, whether the tenant knew or should have known of the
activity or tried to prevent the activity. Public Housing Lease
and Grievance Procedures, 56 Fed. Reg. 51,560, 51567 (Oct.
11, 1991) ("The tenant should not be excused from contrac-
tual responsibility by arguing that the tenant did not know,
could not foresee, or could not control behavior by other
occupants of the unit.").
Initially, HUD encouraged PHAs to use discretion in decid-
ing whether to evict:
In deciding to evict for criminal activity, the PHA
shall have discretion to consider all of the circum-
stances of the case, including the seriousness of the
offense, the extent of participation by family mem-
bers, and the effects that the eviction would have on
family members not involved in the proscribed activ-
ity. In appropriate cases, the PHA may permit con-
tinued occupancy by remaining family members and
may impose a condition that family members who
engaged in the proscribed activity will not reside in
the unit.
24 C.F.R. S 966.4(l)(5)(i). However, a directly conflicting
message was sent to the PHAs in 1996 when President Clin-
ton announced the "One Strike and You're Out" policy for
combating crime in public housing, which encourages evic-
1034
tions regardless of circumstances and ties federal funding to
increased crime-related evictions. John F. Harris, Clinton
Links Housing Aid to Eviction of Crime Suspects, Washington
Post, March 29, 1996, Section A, available at 1996 WL
3071468.
II. FACTS AND PROCEDURAL BACKGROUND
Because of the increased enforcement under the "One
Strike" policy, we are now beginning to see exactly how far-
reaching HUD's interpretation of S 1437d(l)(6) can be. In the
case before us, the Oakland Housing Authority ("OHA")
commenced separate unlawful detainer actions in Alameda
County Municipal Court against four tenants -- Pearlie
Rucker, Willie Lee, Barbara Hill and Herman Walker -- for
violation of the lease provision obligating tenants to "assure
that tenant, any member of the household, or another person
under the tenant's control, shall not engage in . . . [a]ny drug-
related criminal activity on or near the premises. .. ."
Pearlie Rucker is a sixty-three-year-old woman who has
lived in public housing since 1985. She lives with her men-
tally disabled daughter, her two grandchildren and one great-
granddaughter. OHA sought to evict Rucker because her
daughter was found in possession of cocaine three blocks
from the apartment. Rucker asserts that she regularly searches
her daughter's room for evidence of alcohol and drug use and
has never found any evidence or observed any sign of drug
use by her daughter. Willie Lee, seventy-one, has been a pub-
lic housing resident for over twenty-five years and Barbara
Hill, sixty-three, has been a public housing resident for over
thirty years. Lee and Hill currently live with their grandsons.
OHA sought to evict Lee and Hill because their grandsons
were caught smoking marijuana together in the apartment
complex parking lot. Lee and Hill contend they had no prior
knowledge of any illegal drug activity by their grandsons.
The fourth tenant, Herman Walker, presents a slightly dif-
ferent situation. He is a disabled seventy-five-year-old man
1035
who has lived in public housing for approximately ten years.
He is not capable of living independently and requires an in-
home caregiver. On three instances within a two-month time
frame, Walker's caregiver and two guests were found with
cocaine in Walker's apartment. Each time, Walker was issued
a lease violation notice; with the third notice, OHA terminated
the lease and initiated an unlawful detainer action. Shortly
thereafter, Walker fired his caregiver.
In response to OHA's actions, the tenants filed the present
action in federal district court under the Administrative Prac-
tices Act, 5 U.S.C. SS 701-706 (the "APA"), arguing that 42
U.S.C. S 1437d(l)(6) does not authorize the eviction of inno-
cent tenants. They also argued that if the statute does autho-
rize such evictions, then the statute is unconstitutional.
Plaintiff Walker also alleged that his eviction would violate
the Americans with Disabilities Act ("ADA").
The tenants sought a preliminary injunction enjoining the
unlawful detainer actions against them in state court and
enjoining the enforcement of HUD's regulation and the corre-
sponding provision in the OHA lease against innocent tenants.
To obtain a preliminary injunction, the moving party must
show either (1) a combination of probable success on the mer-
its and the possibility of irreparable harm, or (2) that serious
questions are raised, and the balance of hardships tips sharply
in favor of the moving party. Roe v. Anderson , 134 F.3d 1400,
1401-02 (9th Cir. 1998). Applying this standard, the district
court found that the tenants had raised serious questions on
their claim that HUD's interpretation of S 1437d(l)(6) violated
the APA. Weighing the plaintiffs' loss of their homes against
the delay in OHA's eviction proceedings, the district court
found the balance of hardships tipped decisively in the ten-
ants' favor, and enjoined OHA from "terminating the leases
of tenants pursuant to paragraph 9(m) of the `Tenant Lease'
for drug-related criminal activity that does not occur within
the tenant's apartment unit when the tenant did not know of
and had no reason to know of, the drug-related criminal activ-
1036
ity." The court also found that plaintiff Walker had raised a
serious question with respect to whether his eviction violated
the ADA and enjoined OHA from evicting Walker on the
basis of his caregiver's illegal drug use.
On appeal from the preliminary injunction, a panel of this
court reversed the district court, holding thatS 1437d(l)(6)
authorized the eviction of innocent tenants, that HUD's inter-
pretation was consistent with the statute, and that the statute,
so interpreted, was not unconstitutional. Rucker v. Davis, 203
F.3d 627 (9th Cir. 2000). We granted review en banc and
vacated the panel opinion. Rucker v. Davis, 222 F.3d 614 (9th
Cir. 2000). We now affirm the district court's grant of the pre-
liminary injunction.
III. STANDARD AND SCOPE OF REVIEW
This appeal presents the opportunity to clarify our standard
and scope of review for preliminary injunctions, in particular,
regarding when it is appropriate to reach the "merits" of the
underlying case.
In general, we review a grant or denial of a preliminary
injunction for abuse of discretion. Gorbach v. Reno, 219 F.3d
1087, 1091 (9th Cir. 2000) (en banc). The district court, how-
ever, necessarily abuses its discretion when it bases its deci-
sion on an erroneous legal standard or on clearly erroneous
findings of fact. Brookfield Communications, Inc. v. West
Coast Entm't Corp., 174 F.3d 1036, 1046 (9th Cir. 1999);
Roe, 134 F.3d at 1402. Thus, if the district court is alleged to
have relied on an erroneous legal premise in reaching its deci-
sion to grant or deny a preliminary injunction, we will review
the underlying issue of law, and we do so de novo. Does 1-5
v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 1996).
The scope of our review is likewise normally very narrow.
We review whether the court employed the appropriate legal
standards governing the issuance of a preliminary injunction
1037
and whether the district court correctly apprehended the law
with respect to the underlying issues in the case. California
Prolife Council v. Scully, 164 F.3d 1189, 1190 (9th Cir.
1999); Gregorio T. v. Wilson, 59 F.3d 1002, 1004 (9th Cir.
1995). We typically will not reach the merits of a case when
reviewing a preliminary injunction. Roe, 134 F.3d at 1402;
Gregorio T., 59 F.3d at 1004. By this we mean we will not
second guess whether the court correctly applied the law to
the facts of the case, which may be largely undeveloped at the
early stages of litigation. "As long as the district court got the
law right, `it will not be reversed simply because the appellate
court would have arrived at a different result if it had applied
the law to the facts of the case.' " Id. at 1004 (quoting Sports
Form, Inc. v. United Press Int'l, 686 F.2d 750, 752 (9th Cir.
1982)).
Of course, there will be cases in which the district court's
interpretation of the law with respect to the underlying issues
is challenged, and the resolution of such a legal question will
be dispositive. If a district court's ruling rests solely on a legal
question, and the facts are established or of no controlling rel-
evance, then we may undertake a plenary review of the deci-
sion to grant a preliminary injunction. Gorbach , 219 F.3d at
1091 (citing Thornburgh v. American Coll. of Obstetricans &
Gynecologists, 476 U.S. 747, 755-57 (1986), overruled in
part on other grounds, Planned Parenthood v. Casey, 505
U.S. 833 (1992)).
In this case, neither party suggests that the district court
applied the wrong preliminary injunction standard. HUD and
OHA, however, do assert that the district court misappre-
hended the law with respect to the breadth of S 1437d(l)(6).
They contend the district court therefore based its decision on
an erroneous legal interpretation, thereby abusing its discre-
tion. Accordingly, we must turn to the proper interpretation of
S 1437d(l)(6), a question of law which we review de novo.
See, e.g., Foti v. City of Menlo Park, 146 F.3d 629, 634-35
(9th Cir. 1998); Does 1-5, 83 F.3d at 1152.
1038
IV. SECTION 1437d(l)(6)
The parties agree that in interpreting S 1437d(l)(6), we
apply the framework set forth in Chevron U.S.A., Inc. v. Natu-
ral Resources Defense Council, Inc., 467 U.S. 837 (1984).
Under Chevron, the first question is whether Congress has
directly spoken to the precise question at issue. Id. at 842. To
determine whether Congress has spoken on the question at
issue, we employ the traditional tools of statutory construc-
tion; if Congress had an intent on this issue, that intent is the
law and must be given effect. Id. at 843 n.9.
[1] In this case, a number of statutory construction princi-
ples lead us to conclude that Congress has spoken on the issue
and that HUD's interpretation is contrary to congressional
intent. In determining whether Congress has specifically
addressed the question at issue, "a reviewing court should not
confine itself to examining a particular statutory provision in
isolation." FDA v. Brown & Williamson Tobacco Corp., 120
S. Ct. 1291, 1300 (2000). Rather, the "the words of a statute
must be read in their context and with a view to their place
in the overall statutory scheme." Id. at 1301 (quoting Davis v.
Michigan Dep't. of Treasury, 489 U.S. 803, 809 (1989)).
When the proper interpretation of a statute is not clear from
the language of the text or the broader context of the statute
as a whole, the legislative history offers valuable guidance
and insight into Congressional intent. United States v. Hock-
ings, 129 F.3d 1069, 1071 (9th Cir. 1997). We will not
assume that Congress intended a statute to create odd or
absurd results. United States v. X-Citement Video, Inc., 513
U.S. 64, 69-70 (1994) (citing Public Citizen v. Dep't. of Jus-
tice, 491 U.S. 440, 453-455 (1989)). Finally, because we can-
not presume Congress intended an unconstitutional result,
whenever possible, statutes should be construed to avoid seri-
ous doubts as to their constitutionality. Id. at 78.
Because we find that Congress had an intention on the pre-
cise question at issue that is contrary to HUD's construction,
1039
HUD's interpretation is not entitled to deference. See Chev-
ron, 467 U.S. at 843 n.9. "The judiciary is the final authority
on issues of statutory construction and must reject administra-
tive constructions which are contrary to clear congressional
intent." Id. Thus, we do not reach the question under Chevron
of whether an administrative interpretation is reasonable or
permissible, for "[i]f the intent of Congress is clear, that is the
end of the matter." Id. at 842.
A. Textual Interpretation
We begin with the text of the statute. Section 1437d(l)(6)
provides that "any drug-related criminal activity on or off
such premises, engaged in by a public housing tenant, any
member of the tenant's household, or any guest or other per-
son under the tenant's control, shall be cause for termination
of tenancy." HUD essentially argues that "any " means "all,"
asserting that if a drug-related crime occurs by any of the enu-
merated individuals, then the statute clearly permits eviction
of all tenants under the lease, regardless of personal involve-
ment in or knowledge of the crime. The language of the stat-
ute, however, does not appear as plain as HUD would like it
to be. The statutory provision does not expressly address the
level of personal knowledge or fault that is required for evic-
tion, or even make it clear who can be evicted. Although the
statute permits "termination of tenancy," it does not answer
the question of whose tenancy. In situations with multiple ten-
ants, does the statute authorize eviction of the offending party
only, or all persons on the lease?
The parties debate the significance that should be attributed
to the use of the phrase "under the tenant's control." HUD
argues that this phrase modifies only the term "other person"
and that "control" means only that this other person has the
tenant's consent to be in the tenant's unit. The tenants contend
that "control" involves the "exercise of a restraining or direct-
ing influence" over another, and that this applies to all of the
words in the group, i.e., household members, guests and other
1040
persons. The tenants further argue that it is implicit from the
use of this wording that Congress intended tenants to be held
accountable for the actions of those persons who are subject
to their control, but that the statute does not impose sanctions
on tenants who have taken reasonable steps to prevent crimi-
nal drug activity from occurring, but, for a lack of knowledge
or other reason, could not realistically be expected to exercise
control over the conduct of another.
The text of subsection (6), viewed in isolation, does not
compel either party's interpretation. We therefore turn to the
specific context in which the language is used and the broader
context of the statute as a whole. Robinson v. Shell Oil Co.,
519 U.S. 337, 341 (1997).
1. Section 1437d(l)
[2] In examining the language of the statute, we must look
to its place in the overall statutory scheme and "fit, if possi-
ble, all parts into a harmonious whole," Brown & Williamson,
120 S.Ct. at 1301 (quoting FTC v. Mandel Bros., Inc., 359
U.S. 385, 389 (1959)). First established in 1937, the public
housing program was a response to an acute shortage of "de-
cent and safe dwellings for low-income families. " 42 U.S.C.
S 1437. Understanding that these low income tenants face
grave adversity if evicted, Congress has put a number of pro-
tections in place that limit the ability of local PHAs to evict.
In S 1437d(l) itself, the local PHAs are prohibited from using
leases with unreasonable terms and conditions. Another sub-
section also provides that the leases must not permit the PHA
to terminate tenancies except for "serious or repeated viola-
tion of the terms or conditions of the lease or for other good
cause." S 1437d(l)(5). We believe reading section (l) as a
"harmonious whole," requires us to presume that Congress
also intended subsection (6) to be construed as a reasonable
lease term and to permit eviction only if there is good cause.
It is, of course, our task to determine the meaning of sub-
section (6) and not its wisdom. Our task is to examine HUD's
1041
construction of subsection (6) in light of and in relation to the
other provisions of section (l). There is undisputedly a signifi-
cant problem with crime and drugs in public housing. The
goal of providing safe and drug-free public housing is well
served by permitting the local PHAs to evict tenants who
engage in the proscribed criminal activities. It is also fur-
thered by imposing a duty on tenants to take reasonable steps
to control the drug or criminal activity of family members and
guests or face eviction. There is no dispute that the eviction
of tenants who personally engage in drug activity or of tenants
who turn a blind eye to the activities of household members
or guests falls squarely within the language of the statute
under either party's reading.
[3] While the policy considerations pointed out by the dis-
sent may apply to the eviction of culpable tenants[Dissent at
1073-78], we do not believe they support the eviction of inno-
cent ones. Imposing the threat of eviction on an innocent ten-
ant who has already taken all reasonable steps to prevent
third-party drug activity could not have a deterrent effect
because the tenant would have already done all that tenant
could do to prevent the third-party drug activity. Likewise,
evicting the innocent tenant will not significantly reduce drug-
related criminal activity in public housing, since the tenant
has not engaged in any such activity personally or knowingly
allowed such activity to occur. HUD's construction of subsec-
tion (6) would allow such irrational evictions, and thus would
require PHAs to include an unreasonable term in their leases
and permit eviction without good cause. Read in the context
of the overall statutory scheme and in light of the legislative
history (discussed below), we cannot say Congress intended
such a result.
2. Forfeiture Provision
[4] Another amendment enacted at the same time as the
original version of S 1437d(l)(6) also leads to the conclusion
that Congress did not intend to allow the eviction of innocent
1042
tenants. In the same chapter and subtitle of the Anti-Drug
Abuse Act of 1988, Congress passed both the original version
of subsection (6) and also amended a pre-existing civil forfei-
ture provision of the Controlled Substances Act, 21 U.S.C.
S 881(a). The two statutes at issue were enacted together as
parts of a single legislative scheme to combat drug abuse in
public housing. The legislative history indicates how Con-
gress envisioned the statutes working together:
Chapter 1 of this subtitle codifies current HUD
guidelines granting public housing agencies author-
ity to evict tenants if they, their families or their
guests engage in drug-related criminal activity. It
also allows the federal government to seize housing
units from tenants who violate drug laws by clarify-
ing that public housing leases are considered prop-
erty with respect to civil forfeiture laws.
134 Cong. Rec. S17360-02 (Nov. 10, 1998) available at
1988 WL 182529 (Cong. Rec.).
The forfeiture provision was amended by inserting the
phrase "(including any leasehold interest)" into the text of the
pre-existing statute. The amended statute then read in relevant
part:
The following shall be subject to forfeiture to the United
States. . . .
. . . .
(7) All real property, including any right, title and
interest (including any leasehold interest) in the
whole of any lot or tract of land and any appurte-
nances or improvements, which is used, or intended
to be used, in any manner or part, to commit, or to
facilitate the commission of, a violation of this sub-
chapter . . . except that no property shall be forfeited
1043
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).1
[5] HUD suggests we should place no importance on the
availability of what clearly was an innocent owner defense in
the forfeiture provision, pointing to the differences between
civil forfeiture and lease eviction proceedings. Although dif-
ferent animals, the Supreme Court instructs that the meaning
of one statute may be illuminated by the language of another.
Brown & Williamson, 120 S. Ct. at 1300-01. When dealing
with two different statutes which not only govern the same
subject matter but were also enacted at the same time in the
same chapter of the same Act, we presume Congress meant
them to be read consistently. HUD correctly points out that
the forfeiture provision deals with forfeitures of the leasehold
to the federal government, while S 1437d(l)(6) deals with
eviction by local PHAs. Although different processes, the pur-
pose of both is the same. Moreover, the result is the same: the
tenant loses the leasehold interest, which is taken over by a
governmental entity. It makes little sense to provide protec-
tions for the innocent tenant from the federal government but
not from local housing authorities.2
_________________________________________________________________
1 The "innocent owner" defense which then appeared in 21 U.S.C.
S 881(a)(7) is now codified at 18 U.S.C. S 983(d) as part of the general
rules for civil forfeiture procedures. In enactingS 983(d), Congress clari-
fied that an "innocent owner" is one who "(i) did not know of the conduct
giving rise to forfeiture; or (ii) upon learning of the conduct giving rise to
the forfeiture, did all that reasonably could be expected under the circum-
stances to terminate such use of the property." 18 U.S.C. S 983(d)(2)(A).
This continues to be consistent with our reading ofS 1437d(l)(6).
2 The dissent attempts to distinguish the provisions by arguing that Con-
gress must have decided to provide substantive protections to owners that
it did not provide to tenants. [Dissent at 1068]. Yet, S 881(a)(7) specifi-
1044
HUD and the dissent also argue that the forfeiture provision
illustrates that Congress knows how to provide an innocent
tenant defense when it wants to, and that since it did not use
the very same language in S 1437d(l)(6), it must not have
intended for one to be available. [Dissent at 1067]. We agree
that the innocent tenant defense in S 881(a)(7) was more
clear; it was also drafted by a different Congress than the one
which enacted S 1437d(l)(6), which significantly weakens
HUD's argument. Cf. Lindh v. Murphy, 521 U.S. 320, 330
(1997) (negative implication argument is strongest when dif-
ferent provisions were joined together and considered simul-
taneously when the language giving rise to the implication
was inserted). The concurrent amendment of S 881(a)(7) did
not touch the previously drafted innocent owner defense; it
merely extended the forfeiture provision to include leasehold
interests.
We are unpersuaded by the negative implication argument.
To say Congress could have drafted the defense more explic-
itly in S 1437d(l)(6) is not to say it did not do so at all.
3. Section 1437d(c)(4)(A)(iii)
HUD asserts that its interpretation of S 1437d(l)(6) is rein-
forced by a version of S 1437d(c)(4)(A)(iii) which was in
effect until 1996. This version prohibited individuals or fami-
lies who were evicted because of drug-related criminal activ-
ity from receiving a statutory housing preference for three
years, but exempted "any member of a family of an individu-
al" who the agency determined "clearly did not participate in
and had no knowledge of such criminal activity." HUD argues
_________________________________________________________________
cally applies to leasehold interests, and the legislative history indicates
Congress was specifically thinking of public housing leases when it added
this provision. We cannot agree with an interpretation of S 881(a)(7) that
would not apply the innocent owner defense contained therein to the own-
ers of leasehold interests. Congress's recent clarification of the innocent
owner defense confirms our interpretation. 18 U.S.C.S 983(d)(6)(A).
1045
that if innocent tenants could not be evicted under
S 1437d(l)(6), there would have been no need for such an
exemption, which would have rendered S 1437d(c)(4)(A)(iii)
surplusage.
The language HUD relies on is no longer part of the statute.
We are therefore hesitant to even address an argument for har-
monious interpretation when there is no longer a provision to
harmonize. We do, however, note that even as originally
drafted, S 1437d(c)(4)(A)(iii) was not entirely inconsistent
with the tenants' interpretation of S 1437d(l)(6). For example,
an entire family, including minor children, can be evicted
under S 1437d(l)(6) if the parent engages in drug-related
activities. These children, upon reaching the age of eighteen,
would become eligible for public housing. The prior version
of S 1437d(c)(4)(A)(iii) would have waived the three-year
disqualification period for such children if they were not par-
ticipants in the criminal activity which caused the family to be
evicted, which means that this provision would not have been
surplusage under the tenants' interpretation.
4. Summary
Section 1437d(l)(6) is not a picture of clarity and may be
subject to varying interpretations. When read in conjunction
with the remainder of S 1437d(l) and other provisions enacted
at the same time, however, it appears that Congress did not
intend subsection (6) to apply to the eviction of innocent ten-
ants. Any doubts that persist about Congress's intentions,
however, are firmly resolved by the legislative history and the
principles of statutory construction we discuss below.
B. Legislative History
If the intent of Congress is not clear from the language of
the statute and the broader context of the statute as a whole,
we consult the legislative history. Hockings, 129 F.3d at 1071.
In doing so, we place particular emphasis on the committee
1046
reports accompanying the statute. Garcia v. United States,
469 U.S. 70, 76 (1984).
No House or Senate reports accompanied the original ver-
sion of S 1437d(l)(6), which was enacted as part of the Anti-
Drug Abuse Act of 1988. In 1990, however, Congress
amended the provision in question, and the legislative history
specifically addressed the issue before us. The Senate Report
explains:
The committee anticipates that each case will be
judged on its individual merits and will require the
wise exercise of humane judgment by the PHA and
the eviction court. For example, eviction would not
be the appropriate course if the tenant had no 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 1990
U.S.C.C.A.N. 5763, 5941. The report also addressed an iden-
tical passage in the Section 8 housing assistance program:
"The Committee assumes that if the tenant had no knowledge
of the criminal activity or took reasonable steps to prevent it,
then good cause to evict the innocent family members would
not exist." Id. at 5889.
HUD contends the legislative history indicates Congress's
intent to confer wide discretion on HUD and the local PHAs.
It focuses on the statement that "each case will be judged on
its individual merits and will require the wise exercise of
humane judgment by the PHA and the eviction court. " It is
true that the PHAs have discretion in deciding whether to ini-
tiate an eviction action under the statute, but this is true
whether the statute authorizes eviction of innocent tenants or
not. In other words, this passage suggests that even in a case
involving a "culpable" tenant, the case must be looked at on
1047
its individual merits, which may counsel against eviction,
even though eviction is clearly authorized by the statute.3
[6] In these reports, however, Congress specifically rejects
the notion that the PHAs' discretion is so broad that it extends
to the eviction of innocent tenants. These reports are very
clear that such evictions would not be appropriate, and that in
such circumstances good cause to evict would not exist. The
latter statement is also consistent with our discussion above
that S 1437d(l)(6) must be read in conjunction with the good
cause requirement of S 1437d(l)(5). Accordingly, we reject
HUD's interpretation as contrary to the clearly expressed
intent of Congress. Chevron, 467 U.S. at 842-43.
C. Absurd Results
Even if we did not find that the legislative history supports
the tenants' interpretation, a number of other statutory inter-
pretation tools would lead us to the same result. It is well
established that we will not assume Congress intended an odd
or absurd result. X-Citement Video, 513 U.S. at 69-70; Public
Citizen, 491 U.S. at 453-55.
We need look no further than the facts of this case for an
example of the odd and unjust results that arise under HUD's
interpretation. HUD conceded at oral argument that there was
nothing more Pearlie Rucker could have done to protect her-
self from eviction, but argued that the statute authorized her
_________________________________________________________________
3 HUD took the position at oral argument that an eviction court could
only consider whether or not the lease term was violated, and could not
review the PHAs' decision that the violation warranted eviction. This
issue is not before the court today, but we note that the quoted passage
suggests that eviction courts do have a role to play in evictions under
S 1437d(l)(6) and that the PHAs' discretion does not appear to be unchal-
lengeable. See, e.g., Robert Hornstein, Mean Things Happening in This
Land: Defending Third Party Criminal Activity Public Housing Evictions,
23 S.U.L. Rev. 257 (1996) (discussing abuse of discretion defense in PHA
eviction cases).
1048
eviction nonetheless. HUD has also taken the position that the
statute would apply and permit eviction of an entire family if
a tenant's child was visiting friends on the other side of the
country and was caught smoking marijuana, even if the par-
ents had no idea the child had ever engaged in such activity
and even if they had no realistic way to control their child's
actions 3,000 miles away.4 HUD also asserted the provision
would apply and authorize eviction if a household member
had been convicted of a drug crime years earlier, arguing that
the local PHA would have the discretion to determine if evic-
tion were warranted in such circumstances.
Although the dissent contends the Supreme Court frowns
on consideration of hypothetical applications of statutes [Dis-
sent at 1063], the Court itself has clearly looked beyond the
facts of individual cases to the broader ramifications of a
given interpretation when evaluating whether such interpreta-
tion creates absurd results. See, e.g. , X-Citement Video, 513
U.S. at 69. The absurdity and unjustness of the potential
results in this case confirms that HUD has missed the mark
in discerning Congress's intent.
The dissent also argues that because Congress has not
amended S 1437d(l)(6) to more clearly address the innocent
tenant issue, this must mean that Congress intended these
results, even if we may think them odd. [Dissent at 1070-72].
Congress's inaction, however, may cut both ways. To the
extent Congress may be aware of how HUD and some courts
have interpreted this provision, it must have also been aware
that other courts were refusing to evict innocent tenants. See,
e.g., Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 68, 72
(N.C. App. 1995); Richmond Tenants Org., Inc. v. Richmond
_________________________________________________________________
4 We should note that the HUD regulation employs language from an
earlier version of the statute, and requires that the drug activity be "on or
near" the premises, thus restricting the geographical reach of the provi-
sion. 24 C.F.R. S 966.4(f)(12)(i). HUD acknowledges, however, that under
the amended statute, there is no such geographic limitation.
1049
Redev. and Hous. Auth., 751 F. Supp. 1204, 1205-6 (E.D.Va.
1990). And yet, Congress did not clarify the statute. Further-
more, the One Strike policy, which has led to increased
enforcement and less exercise of discretion by the PHA's, was
only announced in 1996, the same year as the last substantive
amendment to the section. Only now are cases beginning to
surface which illustrate the breadth of HUD's interpretation
and which may attract enough attention to merit reconsidera-
tion or clarification of the statute by Congress.
D. Constitutional Avoidance
It is also a settled principle of statutory interpretation that
whenever possible, a statute should be construed to avoid sub-
stantial constitutional concerns. X-Citement Video, 513 U.S.
at 69. HUD's interpretation of S 1437d(l)(6), however, would
raise serious questions under the Due Process Clause of the
Fourteenth Amendment.
Penalizing conduct that involves no intentional wrongdoing
by an individual can run afoul of the Due Process Clause.
Scales v. U.S., 367 U.S. 203, 224-25 (1961); Southwestern
Tel. & Tel. Co. v. Danaher, 238 U.S. 482, 490 (1915). Public
housing tenants have a property interest in their tenancy.
Greene v. Lindsey, 456 U.S. 444, 451 (1982); Geneva Towers
Tenants Org. v. Federated Mortgage Investors, 504 F.2d 483,
488-89 (9th Cir. 1974). HUD's interpretation would permit
tenants to be deprived of their property interest without any
relationship to individual wrongdoing.
HUD contends that the Supreme Court's decision in Bennis
v. Michigan, 516 U.S. 442 (1996), forecloses any argument
that depriving an innocent owner of a property right violates
due process. In Bennis, a woman's husband used their jointly
owned car to engage in sexual activity with a prostitute. Id.
at 443. The car was forfeited and the wife contested the forfei-
ture on due process grounds. Id. at 446. In a 5-4 decision, the
1050
Court upheld the forfeiture, but did so narrowly on facts
which are easily distinguishable from the instant case.
The Bennis Court pointed out that the proceeds from the
sale did not exceed the costs of the sale so there was "practi-
cally nothing left" for Mrs. Bennis. Id. at 445; id. at 456
(Thomas, J., concurring); id. at 458 (Ginsburg, J., concurring).
The Court also noted the equitable nature of the Michigan for-
feiture proceeding, and that the state court had taken special
note of the fact the Bennises had a second automobile. Id. at
445; id. at 458 (Ginsburg, J., concurring). In this case, there
is much more at stake than a negligible financial interest in a
family's second car: these families risk losing their entire
property interest in their homes.
Most important, in Bennis, the Court suggested that the fact
that the property was used in criminal activity was decisive;
the Court held that the spouse's due process claim was
defeated by "a long and unbroken line of cases hold[ing] that
an owner's interest in property may be forfeited by reason of
the use to which the property is put even though the owner did
not know that it was to be put to such use." Bennis, 516 U.S.
at 446 (emphasis added); see also id. at 450 (discussing the
requirement that the property be an "instrumentality" of
crime). In this case, with the exception of Plaintiff Walker's
caregiver, the illegal activities took place off the premises
leased by the plaintiffs. Thus, the leasehold interest was not
used in connection with the crime.
Justice Thomas's concurring opinion in Bennis expanded
on the Court's statement that the forfeiture was justified
because the property in question was an instrumentality of the
crime by strongly suggesting that a due process claim exists
if there has been a forfeiture of property that was not used in
the commission of a crime and the owner of the property had
no knowledge of the illegal activity. Id. at 455-56 (Thomas,
J., concurring); see also Calero-Toledo v. Pearson Yacht
Leasing Co., 416 U.S. 663, 689-90 (1974). Therefore, we
1051
believe HUD's interpretation of S 1437d(l)(6), which would
permit the deprivation of a tenant's property interest when the
property was not used in the commission of a crime and when
the tenant did not know of the illegal activity, would raise
serious due process questions.5
[7] It is not necessary, however, to reach this constitutional
issue if there is a construction of S 1437d(l)(6) which avoids
the question and is "not plainly contrary to the intent of Con-
gress." X-Citement Video, 513 U.S. at 78. The tenants have
proposed such a construction, by reading the use of the term
"control" as a limitation on the breadth of the provision.
Today we adopt that interpretation and hold that if a tenant
has taken reasonable steps to prevent criminal drug activity
from occurring, but, for a lack of knowledge or other reason,
could not realistically exercise control over the conduct of a
household member or guest, S 1437d(l)(6) does not authorize
the eviction of such a tenant. Cf. id. (reading "knowing"
requirement of one criminal element as applying to second
criminal element to avoid serious constitutional doubts); Ma
v. Reno, 208 F.3d 815, 828 (9th Cir. 2000) (finding reason-
able time limitation implicit in statute to avoid serious due
process concerns).
_________________________________________________________________
5 Several legal commentators have also recognized the potential due pro-
cess problems with HUD's interpretation. See, e.g., Lisa Weil, Drug-
Related Evictions in Public Housing: Congress' Addiction to a Quick Fix,
9 Yale L. & Pol'y Rev. 161, 179 (1991) (vicarious liability makes HUD
eviction policy both distressing and constitutionally suspect); Nelson H.
Mock, Note, Punishing the Innocent: No-Fault Eviction of Public Housing
Tenants for the Actions of Third Parties, 76 Tex. L. Rev. 1495, 1522-24
(1998) (noting due process problems because no relationship between lia-
bility and the action of the tenant).
1052
V. PRELIMINARY INJUNCTION
A. APA Claim
The district court granted a preliminary injunction on the
tenants' APA claim because it found that the tenants had
raised serious questions and that the balance of hardships
tipped sharply in their favor, since they could lose their homes
if OHA's actions were not halted. The district court enjoined
OHA from pursuing its unlawful detainer actions against Lee
and Hill.6 The district court also enjoined OHA from terminat-
ing any other leases for off-premises drug-related activity in
which the tenant did not know of or have reason to know of
the criminal activity.
Reviewing the interpretation of S 1437d(l)(6) de novo, we
have concluded that HUD's interpretation is inconsistent with
Congressional intent and must be rejected. Chevron, 467 U.S.
at 842-43. The question remains whether the district court
properly enjoined OHA from evicting innocent tenants pursu-
ant to paragraph 9(m) of the OHA lease. This provision was
required by HUD regulations (24 C.F.R. S 966.4(f)(12)(i)),
which were, as discussed above, premised on HUD's errone-
ous interpretation of S 1437d(l)(6).
[8] Paragraph 9(m) is not an ordinary term found in resi-
dential leases and should not be treated as such. There is cer-
tainly no bargained-for-exchange in public housing leases.
The form of public housing leases is almost entirely dictated
by HUD. This lease provision was required by the very HUD
regulations we have invalidated, and is simply the embodi-
ment of the erroneously broad interpretation ofS 1437d(l)(6).
As we discussed in section IV.A. above, such a provision
would be unreasonable, and including an unreasonable term
_________________________________________________________________
6 OHA dismissed the unlawful detainer proceeding against Rucker.
1053
in a public housing lease is prohibited under S 1437d(l), as are
evictions without good cause.7
[9] Accordingly, we find that the district court properly
granted the preliminary injunction generally enjoining OHA
from pursuing evictions under paragraph 9(m) to the extent it
seeks to do so for off-premises drug-related activity in which
the tenant did not know of or have reason to know of the
criminal activity.8 OHA remains free to proceed with evic-
tions for off-premises drug activities when it can prove the
tenant knew or should have known of the activity. 9 Likewise,
the district court specifically permitted OHA to pursue evic-
tions of tenants when the drug-related activity occurs within
the tenant's apartment, creating a rebuttable presumption that
a tenant controls what occurs in his or her unit. 10 These direc-
tives are perfectly consistent with our interpretation of "con-
trol" in S 1437d(l)(6). We therefore affirm this portion of the
injunction.
[10] With respect to the portion of the injunction which
enjoins OHA from pursuing its unlawful detainer actions
against Lee and Hill, the facts of the underlying cases come
into play. OHA, however, has not contested the assertions of
Lee and Hill that they did not know or have reason to know
of their grandsons' drug use. Assuming these facts are true,
_________________________________________________________________
7 There are also substantial constitutional considerations associated with
enforcing this provision, as discussed in Section IV.D., above.
8 We undertake plenary review of this portion of the injunction because
it presents a situation in which the legal issues underlying the injunction
are dispositive, and the facts of the individual claims are of no controlling
relevance. Gorbach, 219 F.3d at 1091.
9 The district court's injunction does not address the issue of whether
tenants who have knowledge of off-premises drug activities by household
members may be evicted if they attempt in good faith to prevent their
household members from engaging in such activity, but are unable to do
so. Accordingly, we do not consider that question here.
10 This presumption should assuage some of the dissent's concerns about
the burden of proof placed on the local PHA. [Dissent at 1074-75]
1054
Lee and Hill qualify as innocent tenants. On the facts before
it, the district court did not abuse its discretion by enjoining
their unlawful detainer actions.
B. Walker's ADA Claim
Plaintiff Walker presents a different situation, since the ille-
gal drug activity occurred within his apartment, and, at least
after the first violation notice, he had knowledge of the crimi-
nal activity. The district court ultimately decided to enjoin
Walker's unlawful detainer action, finding that Walker had
raised a serious question with respect to whether the eviction
violated the ADA, and that the balance of hardships weighed
in favor of permitting him to remain in his home until the
ADA claim was fully litigated.
The district court noted that Walker alleged he required an
in-home caregiver because of his disability and that he alleged
he was not physically able to search persons entering his
apartment. The district court concluded that the ADA might
require some form of accommodation in the eviction policies
for his situation, citing an Oregon case which required the
housing authority to modify its "no dogs" policy for a hearing
impaired tenant. Green v. Hous. Auth. of Clackamas County,
994 F. Supp. 1253, 1257 (D. Or. 1998). Although OHA
asserted that there could be no reasonable accommodation in
Walker's case because the only alternative would be a "blan-
ket exemption" from the drug policy, the district court found
that, based on the allegations of the complaint, it could not
rule as a matter of law that no reasonable accommodation
exists.
[11] Walker's ADA claim is replete with factual questions,
including whether the guests in the apartment were Walker's
or the caregiver's, and whether Walker's disability prevented
him from being able to search his caregiver or her guests.
There are no answers to these questions at this stage of the
proceedings. The district court's decision to grant the injunc-
1055
tion on the ADA claim turns on the application of law to the
facts of Walker's case. The district court applied the proper
standard for issuing a preliminary injunction, and appears to
have correctly apprehended the law of the ADA. We will not
reverse simply because we might reach a different result on
the limited facts before us. Gregorio T., 59 F.3d at 1004. A
factfinder may ultimately determine that Walker cannot state
a claim under the ADA or that OHA provided Walker with a
reasonable accommodation by giving him two warnings and
two months to find a new caregiver. On the facts before the
district court at the time it made its decision, however, the dis-
trict court did not abuse its discretion in entering the prelimi-
nary injunction with respect to Walker's ADA claim.
VI. CONCLUSION
We find that Congress did not intend S 1437d(l)(6) to per-
mit the eviction of innocent tenants. Thus, HUD's contrary
interpretation must be rejected. The district court therefore
properly enjoined OHA from pursuing evictions based on the
erroneous interpretation of S 1437d(l)(6) as embodied in the
OHA lease. On the limited factual record before it, the district
court did not abuse its discretion in enjoining Walker's evic-
tion with respect to his ADA claim. The grant of the prelimi-
nary injunction is AFFIRMED.
1056
Volume 2 of 2
1057
_________________________________________________________________
SNEED, Circuit Judge, with whom Judges Fernandez, T.G.
Nelson, and Silverman, Circuit Judges, join, dissenting:
In 1988, faced with a devastating and worsening epidemic
of drug related crime and violence in public housing, Con-
gress granted to local public housing authorities ("PHAs") a
new tool in the struggle to provide decent and safe low
income housing. 42 U.S.C. S 1437d(l)(6) mandated that every
lease entered into by a PHA include a provision permitting
termination of tenancy when "a public housing tenant, any
member of the tenant's household, or any guest or other per-
son under the tenant's control" engaged in "drug-related crim-
inal activity on or near public housing premises."
1058
In mandating this lease provision and thereby granting
additional discretion to local housing authorities, Congress
used unmistakably clear statutory language based on reason-
able findings that such legislation was necessary and would
be effective. The majority's decision reads into this statute a
defense that the legislative branch rejected. Nothing in the
Constitution prohibits the government from entering into rea-
sonable lease provisions necessary to maintain the safety and
structural soundness of its property. "The increase in drug-
related 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 govern-
ment expenditures." 42 U.S.C. S11901(4). Indeed, if the gov-
ernment is to act as a landlord, the Constitution must permit
it to act as a prudent one.
STANDARD OF REVIEW: CHEVRON DOCTRINE
Congress authorized a tenant's eviction from public hous-
ing when that "tenant, any member of the tenant's household,
or any guest or other person under the tenant's control"
engages in "any drug-related criminal activity, on or off such
premises." The question here presented is whether this lan-
guage permits local PHAs to evict tenants who were ignorant
of their household members' or guests' drug use ("ignorant
tenants"). The answer to this question should be that it does
permit such evictions.
The Department of Housing and Urban Development
(HUD), the agency charged with administering public hous-
ing, properly concluded that the statute did authorize the evic-
tion of ignorant tenants. 24 C.F.R. S 966.4(l)(1)(B); Public
Housing Lease and Grievance Procedures, 56 Fed.Reg.
51,560, 51,567 (October 11, 1991). If this interpretation is a
"permissible construction of the statute," then this court may
not substitute its own judgment for that of HUD. Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
1059
(1984). Because the statute is clear on its face, HUD's inter-
pretation is the only permissible construction of the statute.
The majority points out that the statute is silent on the ques-
tion of a tenant's required knowledge. This alters the relevant
inquiry only slightly. The majority must explain why the reg-
ulation that tracks the precise language of the statute is not
reasonable. Id. at 844. In short, whether one accepts our con-
tention that the statutory language is clear or the majority's
argument that the language is silent, application of the Chev-
ron test to the present controversy leads to the same conclu-
sion. HUD's regulation permitting the eviction of ignorant
tenants whose household members or guests engaged in drug
related criminal activity on or off public housing premises is
valid and enforceable.
The majority avoids the dictates of Chevron by finding that
"Congress had an intention on the precise question at issue
that is contrary to HUD's construction." Maj . Op. at 1039.
The majority's evidence, however, is wholly insufficient to
support this conclusion. We will discuss the evidence in
greater detail below, but note here the gap between what the
majority purports to prove and what it has in fact shown.
According to the majority, the language of the statute is
ambiguous. Maj. Op. at 1040.1 The legislative history noted
by the majority is equally ambiguous. It simultaneously pro-
vides discretion to local PHAs and suggests how that discre-
tion should be exercised. "It is well established that legislative
history which does not demonstrate a clear and certain con-
gressional intent cannot form the basis for enjoining regula-
tions." Rust v. Sullivan, 500 U.S. 173, 189-190 (1991).
The remainder of the majority's congressional intent argu-
ment flows from its holding that permitting the eviction of
ignorant tenants is "unreasonable" and "absurd." This hold-
_________________________________________________________________
1 Indeed, the doctrine of constitutional doubt, on which the majority
relies, is only applicable when a statute is ambiguous.
1060
ing, however, is directly contrary to HUD's interpretation of
the statute. In such a circumstance, this court should defer to
HUD's judgment. It is HUD, after all, that has experience and
expertise in the management of public housing. It is HUD,
and not this court, that can best determine what is reasonable
in the context of the public housing drug crisis.
If the majority believes HUD's construction of the statute
is unconstitutional, it should say so. This court must step in
when other branches of government exceed their constitu-
tional authority. However, when this court rewrites legislative
enactments and ignores the considered judgment of executive
agencies -- based on nothing more than the majority's under-
standing of what is "reasonable" or "absurd " -- it is this court
that has overstepped its constitutional limits.
DISCUSSION
I. The Language, Legislative History, and Statutory
Context of 42 U.S.C. S1437d(l)(6) All Show that The
Eviction Provision Applies to Ignorant Tenants.
A. The Plain Language of the Statute Authorizes the
Eviction of Ignorant Tenants Under 42 U.S.C.
S 1437(d)(l)(6)
"Where there is no ambiguity in the words, there is no
room for construction." United States v. Gonzales, 520 U.S.
1, 8 (1997) (quoting United States v. Wiltberger, 18 U.S. (5
Wheat.) 76, 95-96 (1820). In the present case, the statute
authorizes eviction when a "public housing tenant, any mem-
ber of the tenant's household, or any guest or other person
under the tenant's control" engages in "any drug related crim-
inal activity." The majority reads into this statute the require-
ment that the tenant must be able to "realistically exercise
control" over a household member or guest before eviction
proceedings may begin. We do not believe the statute includes
1061
such a requirement. Rather, the obvious reading of the statute
is to the contrary.
Under S 1437d(l)(6) there are four categories of individuals
whose drug related criminal activity on or near public housing
property will result in the tenant's eviction. First, the tenant
is responsible for his or her own drug use. Second, criminal
drug activity by the tenant's household members is cause for
termination.2 Third, the tenant's guests may not engage in
criminal drug activity.3 Fourth, criminal drug activity by other
persons under the tenant's control is also cause for eviction.
The structure of the statute suggests that tenants, household
members, and guests are per se under the tenant's control and,
therefore, the drug related criminal activity of anyone in one
of these categories is cause for eviction. The tenant exercises
"control" over these individuals when he or she permits them
to reside in or visit the premises. No additional level of "con-
trol" is necessary. Congress's use of the disjunctive connector
"or" followed by the phrase "other person " shows it intended
a fourth category of "other persons" who did not fall into the
three enumerated categories, but whose drug activity could
nevertheless result in eviction.
The majority's reading of the statute requires that the drug
user fall into two of the categories -- a drug user must be
both a household member/guest and under the tenant's con-
trol. See Maj. Op. p. 1040-41. But, the statute does not say
this. The majority's reading renders the enumerated categories
(tenants, household members, guests) superfluous."We read
[the statute] with the assumption that Congress intended each
of its terms to have meaning. `Judges should hesitate . . . to
treat [as surplusage] statutory terms in any setting . . . .' " Bai-
_________________________________________________________________
2 HUD defines "members of the household" as those individuals who are
listed as such by name on the lease. 24 C.F.R. S 966.4(a)(2).
3 HUD defines a "guest" as "a person in the leased unit with the consent
of a household member." 24 C.F.R. S 966.4(d)(1)
1062
ley v. United States, 516 U.S. 137, 145 (1995) (quoting Rat-
zlaf v. United States, 510 U.S. 135, 140-141 (1994)).
The majority justifies its tortured reading of the statute on
the grounds that enforcement of the plain language of
S 1437d(l)(6) would lead to absurd results. Specifically, both
the district court and the majority note that the statute contains
neither temporal nor geographic limitations on the drug
related criminal activity. Therefore, a tenant could be evicted
if that tenant's guest used drugs "five years earlier on the
other side of the country." The district court reasoned that the
possibility of any absurd result (even one not presented by the
actual controversy) rendered the statutory language ambigu-
ous.
This approach is untenable. It would permit the judiciary to
nullify any legislative act amenable to a single absurd hypo-
thetical construction. This approach is inconsistent with the
traditional role of a court to adjudicate the specific contro-
versy before it and to avoid speculative and general pro-
nouncements. The Supreme Court has repeatedly rejected
judicial review of hypothetical applications of statutory lan-
guage. FCC v. Pacifica, 438 U.S. 726, 743 (1978) ("We will
not now pass upon the constitutionality of these regulations
by envisioning the most extreme applications conceivable,
[citation omitted] but will deal with those problems if and
when they arise."); Lindsey v. Normet, 405 U.S. 56, 65 (1972)
("[P]ossible infirmity in other situations does not render [a
statute] invalid on its face."); Allen-Bradley Local No. 1111,
United Electrical, Radio and Machine Workers of America v.
Wisconsin Employment Relations Board, 315 U.S. 740, 746
(1942) (court will not "assume in advance that a State will so
construe its law as to" make it unenforceable). The issue
before the court is not whether Congress legislated a temporal
nexus between the guest's drug-related criminal activity and
the eviction.4 This court must limit its review to the contro-
versy actually presented.
_________________________________________________________________
4 Were that the issue, we might be required to analyze this case under
the second prong of the Chevron doctrine (i.e. determine if HUD's inter-
pretation of this provision is reasonable).
1063
The Supreme Court, in Atlantic Mut. Ins. Co. v. Comm'r of
Internal Revenue, 523 U.S. 382 (1998), was asked to deter-
mine the meaning of the term "reserve strengthening" as used
in the 1986 Tax Reform Act. Petitioner contended that the
agency interpretation of the term was unreasonable because
"in theory, it produces absurd results." Atlantic Mut. Ins. Co.,
523 U.S. at 389. In support of this position, petitioner pre-
sented to the court a hypothetical example where application
of the agency definition would result in manifest error. The
Court refused to find the agency interpretation unreasonable.
Id. at 390. It held that, despite the possibility of future error,
the agency interpretation of the statute should control.
In this case, the plain meaning of the statute is not absurd.
In fact, as we discuss below, see infra, the eviction of ignorant
tenants whose guests engage in drug-related criminal activity
is supported by a reasonable rationale based on sound public
policy. It is our obligation to read the statute as it was written
even while "acknowledg[ing] the reality that the reach of a
statute often exceeds the precise evil to be eliminated." Bro-
gan v. United States, 522 U.S. 398, 403 (1998).
We assume the legislative purpose is expressed by the ordi-
nary meaning of the words used. American Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982). The statute says "drug
related criminal activity . . . 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 ter-
mination of tenancy." The majority asserts that in writing this
language, Congress meant to say that drug related criminal
activity engaged in by any person under the tenant's control
shall be cause for termination of tenancy. There is simply no
support in the language for this interpretation.
1064
B. Related Statutory Provisions and Legislative History
Reveal Congressional Intent to Omit an Innocent
Tenant Defense
1. Related Statutory Provisions
Two related statutory provisions further reinforce the con-
clusion that S 1437d(l)(6) authorizes the eviction of public
housing tenants who are ignorant of their guests' drug-related
criminal behavior.
a. 42 U.S.C. S 1437d(c)(4)(A)(iii)5
42 U.S.C. S 1437d(c)(4)(A), as it stood through 1996, man-
_________________________________________________________________
5 42 U.S.C. S 1437d(c)
(4) the public housing agency shall comply with such procedures
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
--
(i) . . . give preference to families that occupy substandard
housing (including families that are homeless or living in
a shelter for homeless families), are paying more than 50
percent of family income for rent, or are involuntarily dis-
placed . . . at the time they are seeking assistance under
this chapter.
. . .
(iii) prohibit any individual or family evicted from housing
assisted under the chapter by reason of drug related crim-
inal activity from having a preference under any provision
of this subparagraph for 3 years . . . 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 pro-
hibited from tenancy under this clause who the agency
determines clearly did not participate in and had no
knowledge of such criminal activity . . .). (emphasis added)
1065
dated that PHAs fulfill three independent duties. First, under
subsection (i), PHAs were required to allocate available hous-
ing units based on congressionally determined "preferences."
Preferences were given, for example, to the homeless, to those
paying more than 50% of their income in rent, and to those
who had recently been displaced from housing.
Second, under S 1437d(c)(4)(A)(iii), an individual or fam-
ily otherwise eligible for preferential placement in available
housing was disqualified from receiving a preference for a
period of three years if evicted from public housing because
of drug-related criminal activity.
Finally, the final clause of S 1437d(c)(4)(A)(iii) specifically
required that local PHAs waive the three year disqualification
period for those individuals who "clearly did not participate
in and had no knowledge of such criminal activity. " These
provisions 1) established preferential tenant selection criteria;
2) disqualified those evicted because of drug activity from the
established preferences for a period of three years; and 3)
exempted from disqualification those evicted who "clearly did
not participate in and had no knowledge of the criminal activi-
ty."
Thus, the statutory mandate imposed by S 1437d(c)(4)(A)
required PHAs to differentiate two classes of tenants evicted
from public housing for drug-related criminal activity. The
first class, to repeat, consisted of those who participated in or
had knowledge of the criminal activity. These individuals
were disqualified from preferential placement in available
public housing units for a period of three years. The second
class consisted of those individuals evicted for drug-related
criminal activity who did not participate in or have knowledge
of that activity. These individuals were eligible to receive
preferential treatment if they satisfied one of the other criteria
listed in S 1437d(c)(4)(A)(i).
The distinction, between evicted tenants who "participated
in" or "had knowledge of" drug-related criminal activity and
1066
those who did not have such knowledge, makes sense only if
an ignorant public housing tenant could be evicted for the
drug-related criminal activity of their household members or
guests. Were that not so, there would have been no need for
Congress to write a statute specifically waiving the applicabil-
ity of the three-year prohibition period to the ignorant tenant.
b. 21 U.S.C. S 881(a)(7) ("Forfeiture Statute")
This statute, 21 U.S.C. S 881(a)(7), also supports a plain
language interpretation of S 1437d(l)(6). It is a civil forfeiture
statute that makes leasehold interests subject to forfeiture
when used to commit drug-related crimes.6 21 U.S.C.
S 881(a)(7) was amended concurrently with the passage of
S 1437d(l)(6) as part of the Anti-Drug Abuse Act of 1988.
Section 881(a)(7) specifically includes a knowledge require-
ment. Under it, no property otherwise subject to forfeiture
may be seized if the owner establishes that the property was
used in drug-related criminal activity "without the knowledge
or consent of that owner."
The canons of statutory interpretation provide:"[W]here
Congress includes particular language in one section of a stat-
ute but omits it in another section of the same Act, it is gener-
ally presumed that Congress acts intentionally and purposely
in the disparate inclusion or exclusion." Russello v. United
_________________________________________________________________
6 21 U.S.C. S881(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 viola-
tion of this subchapter punishable 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.
1067
States, 464 U.S. 16, 23 (1983) (quoting United States v. Wong
Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). Congress clearly
perceived that forfeitures of leaseholds under 21 U.S.C.
S881(a)(7) were to function differently from evictions under
42 U.S.C. S 1437d(l)(6) and legislated different regimes to
govern the two. Specifically, Congress recognized that the
forfeiture statute permitted the government to seize property
without providing any procedural protections to the owner of
the property. 134 Cong. Rec. E1965-02 (1988) (use of seizure
rather than eviction "cut[s] through the usual drawn-out pro-
cess of first notifying the drug dealers that they would be
evicted and then battling them in courts, sometimes for years,
before they could be removed.") Owing to the lack of proce-
dural protections, Congress recognized that additional sub-
stantive protections are needed to prevent the use of this
weapon against undeserving parties.
Similarly, in a 1989 emergency supplemental appropria-
tions measure, Congress directed the Secretary of HUD to
issue waivers of certain administrative grievance procedures
"as long as evictions of a household member involved in
drug-related criminal activity shall not affect the right of any
other household member who is not involved in such activity
to continue tenancy." Dire Emergency Supplemental Appro-
priations and Transfers, Pub L. No. 101-45,S404, 103 Stat.
97 (1989). This measure, like the forfeiture statute, permits
the taking of property without any pre-deprivation procedural
protection. Congress, therefore, included a substantive protec-
tion for ignorant tenants. A similar substantive right, however,
was not provided to tenants who received the full procedural
protections offered by HUD and local PHAs.
Thus, the "innocent" owner exception in both 21 U.S.C.
S 881(a)(7) and Pub. L. No. 101-45 S404 reflected distinctly
different congressional judgments about the proper tradeoff
between procedural and substantive protections. Owners were
provided substantive protections not available to tenants. Con-
gress concluded that the forfeiture statute should not be
1068
applied to owners who did not know of or consent to the ille-
gal use of their property. However, Congress did not afford
innocent tenants the same protection. Congress determined
that local PHAs should have greater discretion to evict than
federal agents have to seize property of innocent owners used
in drug-related criminal activity.
2. Legislative History
Having discounted the plain language of the statute, the
majority next examines the scant legislative history of
S 1437d(l)(6). This endeavor is both unnecessary, see supra,
and unhelpful. Official legislative history consists almost
entirely of a single statement in a 1990 Senate Report. The
report reads in pertinent part:
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). Both parties make much
of this statement. The government emphasizes the commit-
tee's deference to the PHA's "humane judgment, " while the
tenants rely on the suggestion that eviction of ignorant tenants
"would not be the appropriate course."
The committee report should be read in a manner consistent
with the language of the remainder of the statute and the pur-
poses of the Act. Robinson v. Shell Oil Co., 519 U.S. 337, 341
(1997) ("the specific context in which that language is used
and the broader context of the statute as a whole " relevant to
determining meaning of statutory language). It is a declared
purpose of the United States Housing Act "to vest in local
1069
public housing agencies the maximum amount of responsibil-
ity in the administration of their housing programs. " 42
U.S.C. S 1437 (Declaration of Policy).7 Evidence exists that
S 1437d(l)(6) was intended to further this purpose. During
floor debate on the measure, one member of the House of
Representatives commended the eviction provision as an "ad-
ditional tool to enhance HUD's and the Nation's public hous-
ing managers' ability to deal with the problem of drugs in
public housing." 134 Cong. Rec. 33,148 (1988) (statement of
Rep. Wylie).
Read in the context of an unambiguous legislative declara-
tion of policy, and its consistent implementation throughout
the Act, the Senate committee report supports the proposition
that Congress intended to provide local housing authorities
with wide discretion to evict tenants connected with drug-
related criminal behavior. By permitting the eviction of igno-
rant as well as knowledgeable tenants, Congress deferred to
the judgment of local officials who would possess a more
extensive understanding of the individualized circumstances.
Any suggestion by the committee as to when eviction would
or would not be appropriate is properly seen as just that -- a
suggestion. The language is precatory and the "humane judg-
ment" of the local agencies should control.
3. Congress Failed to Amend S 1437d(l)(6) to Include
an Innocent Owner Defense.
Congressional treatment of S 1437d(l)(6) since its initial
passage in 1988 makes clear that Congress meant what it said.
Long before this litigation began, concerns about the eviction
provision's applicability to ignorant tenants were expressed.
In a 1989 congressional hearing, for example, the associate
_________________________________________________________________
7 This policy judgment is reflected throughout the Act. Local authorities,
for example, have the responsibility to determine the public housing needs
in their community. 42 U.S.C. S 1437c(e). See also, 42 U.S.C.
S 1437d(c)(4)(A).
1070
director of the American Civil Liberties Union (ACLU)
argued that "PHAs should be restrained from imposing the
sanction of eviction unless they can prove that a tenant had
knowledge and actual control over the actions of a household
member or third party." Drugs in Federally Assisted Housing:
Hearings on S.566 Before the Subcomm. on Housing and
Urban Affairs of the Senate Comm. on Banking, Housing, and
Urban Affairs, S. Doc. No. 101-234, at 90-91 (1989). In that
hearing, the ACLU brought to the attention of the committee
several instances where ignorant tenants were subjected to
eviction proceedings. S. Doc. No. 101-234, at 86-87; David-
son, Public Housing Aides Push to Evict Drug Users, Some-
times Violating the Rights of other Tenants, Wall St. J., Jul.
6, 1989 at A12. Congress did not respond favorably. Subse-
quent to this hearing, Congress amended the eviction provi-
sion, but failed to include an innocent owner exception.
National Affordable Housing Act, Pub. L. 101-625, S504, 104
Stat. 4079 (1990) (substituting provisions relating to criminal
activity threatening health, safety or peaceful enjoyment of
other tenants for provisions relating to criminal activity gener-
ally).
Likewise, as part of the notice and comment procedure nec-
essary for implementing its regulations, HUD received sub-
stantial criticism of the applicability of S 1437d(l)(6) to
ignorant tenants. "Comment by legal aid and by tenant organi-
zations . . . alleges that the tenant should not be responsible
if the criminal activity is beyond the tenant's control, if the
tenant did not know or have reason to foresee the criminal
conduct, . . . or if the tenant has done everything "reasonable"
to control the criminal activity." 56 Fed. Reg. at 51,566
(1991). HUD nevertheless interpreted S 1437d(l)(6) to grant
discretion to PHAs to evict ignorant tenants. 56 Fed. Reg. at
51,567.
Subsequent to these comments and subsequent to imple-
mentation of the HUD regulations, Congress once more
amended the eviction statute -- and again failed to include an
1071
innocent owner exemption.8 These inactions of Congress are
highly significant. "As a matter of statutory construction, we
`presume that Congress is knowledgeable about existing law
pertinent to the legislation it enacts.' " United States v.
Hunter, 101 F.3d 82, 85 (9th Cir. 1996) (quoting Goodyear
Atomic Corp. v. Miller, 486 U.S. 174, 184-185 (1988)). In
Hunter, this court presumed Congress was aware of judicial
decisions interpreting a criminal statute when it amended that
statute many years after its initial passage. "Accordingly, the
only reasonable interpretation of Congress omission of lan-
guage . . . is that Congress intended [the judicial interpretation
to control]." Hunter, 101 F.3d at 85.
Likewise, in this instance, Congress was aware that the
administrative agency charged with implementing the eviction
provision construed it to permit eviction of ignorant tenants.
This interpretation had been challenged on both policy and
constitutional grounds before Congress and in HUD's notice
and comment procedures. Congress itself has shown its con-
cern for ignorant tenants by protecting them with specific lan-
guage in other legislative enactments. See supra.9 Congress,
however, did not provide an exemption for ignorant tenants
when it amended S 1437d(l)(6) in 1996. This court does not
have the power to amend the statute. Congress clearly
intended HUD's interpretation of the eviction statute to pre-
vail.
_________________________________________________________________
8 In fact, in the 1996 amendment to S 1437d(l)(6), Congress expanded
the provision such that an ignorant tenant could be evicted for drug-related
criminal activity that took place "on or off" public housing premises,
rather than simply "on or near" the premises as the legislation had previ-
ously read. Pub L. No. 104-120, S9(a)(2), 110 Stat. 836 (1996).
9 21 U.S.C. S 881(a)(7) protects owners from forfeiture when they did
not know nor consent to the illegal use of their property. 42 U.S.C.
S 1437d(c)(4)(a)(iii) protected ignorant public housing tenants from dis-
qualification from future placement. Pub L. No. 101-45, S404 provided
ignorant tenants with additional procedural protections not available to
those tenants who were aware of the drug-related criminal activity of their
guests.
1072
II. Section 1437d(l)(6), Properly Interpreted, Does Not
Conflict with 42 U.S.C. S 1437d(l)(1) Prohibiting
Public Housing Leases that Contain Unreasonable
Terms and Conditions.
Section 1437d(l)(6) is part of a comprehensive program of
legislative initiatives aimed at the public housing drug crisis.
See Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690,
SS5101-5105 (1988); Dire Emergency Supplemental Appro-
priations and Transfers, Pub. L. No. 101-45,S404 (1989); 42
U.S.C. S 1437d(c)(4)(A) (1990). The district court held that
one aspect of the legislative response was "unreasonable"
because it was "on its face . . . irrational. " The majority opin-
ion echoes this holding. Both the district court and the major-
ity misconceive the rationale behind the law and ignore a
considered policy judgment on the part of Congress. Section
1437d(l)(6) permits, but does not mandate, eviction for all
tenants whose household members or guests engage in drug-
related criminal activity. It grants discretion to PHAs to make
this determination on a case-by-case basis. This was a reason-
able decision on the part of Congress.
Local PHAs, it must be remembered, operate "with tax
funds provided from federal as well as from state sources. The
State . . . has appropriate and paramount interest and concern
in seeing and assuring that the intended and proper objects of
that tax-produced assistance are the ones who benefit from the
aid it dispenses." Wyman v. James, 400 U.S. 309, 318-319
(1971). The district court properly defined a reasonable lease
term:
The lease term must be rationally related to a legiti-
mate housing purpose. In applying this term, the cru-
cible of reasonableness will be defined by the
particular problems and concern confronting the
local housing authority. Lease provisions which are
arbitrary and capricious, or excessively overbroad or
under-inclusive, will be invalidated.
1073
citing Richmond Tenants Org., Inc. v. Richmond Redevelop-
ment and Hous. Auth., 751 F.Supp. 1204, 1205-1206 (E.D.
Va. 1990).
Congress confronted two interrelated problems when it
passed S 1437d(l)(6) permitting the eviction of ignorant ten-
ants. First, it faced increasing drug related crime in the
nation's public housing. Ample testimony before Congress
demonstrated that drug use had rendered many public housing
complexes unsafe and, in several instances, unlivable. 42
U.S.C. S11901(3) ("drug dealers are increasingly imposing a
reign of terror on public and other federally assisted low
income housing tenants.")10 Second, Congress was confronted
with increasing and understandable reluctance on the part of
public housing tenants to cooperate with efforts of local PHAs
to address the drug problem. "Our inability to get pushers out
of the buildings rapidly enough has caused tenants to think the
Housing Authority has been working against them rather than
with them." 134 Cong. Rec. E1965-02 (June 14, 1988). Hous-
ing authorities were increasingly seen as "paper tigers" unable
or unwilling to take decisive action against drug use in public
housing. 134 Cong. Rec. at E1965-02
The ignorant tenant eviction provision rationally addresses
both of these concerns. The power to evict an unknowing ten-
ant provides the PHA with a credible deterrent against crimi-
nal activity. To require proof of knowledge on the part of the
tenant of the criminal activity of a guest is impractical. Proper
authorities would seldom, if ever, discover the tenant seated
_________________________________________________________________
10 One resident of public housing described living conditions in the fol-
lowing terms.
"At night, when people are trying to rest, hallways are being used
[for smoking crack], stairwells are being slept in, elevators are
being mutilated with people using them for personal bathrooms
. . . . There is crack being sold openly."
Just Saying No is not Enough: HUD's Inadequate Response to the Drug
Crisis in Public Housing, H.R. Rep. No. 100-702, at 4 (1988).
1074
with the drug using guest or while the latter engaged in other
drug-related criminal acts. Absent this rare factual situation,
the housing authority would be forced to rely on evidence
consisting of hearsay, gossip and rumor. Moreover, the
lengthy public housing eviction procedure permits a culpable
tenant to intimidate or threaten potential witnesses. "When
suspected drug dealers were notified that eviction proceedings
against them had been started, they sought to punish tenants
who might have identified them." 134 Cong. Rec. E1965-02.
These tactics against housing tenants have furthered the pub-
lic housing drug epidemic.
In this case, for example, members of plaintiffs' household
engaged in drug-related criminal activity outside the tenant's
apartment.11 Since the tenant was not with the drug-user at the
time of detection, evidence that the tenant knew of the drug
related criminal activity must come from either the tenant, the
drug user, or other residents. Only the latter, if available,
would be a reliable source of such information. For obvious
reasons, PHAs will rarely secure statements from either the
drug user or the tenant.
Based on substantial and credible evidence, Congress con-
cluded that other residents were equally unlikely to present
the necessary testimony. "Tenants are frightened. They are
scared for themselves and their children. They are afraid to
report drug incidents to the PHA management and to the
police because usually nothing is done by either agency." The
Drug Problem and Public Housing: Hearings Before the
House Select Comm. on Narcotics Abuse and Control , H.R.
Rep. No. 101-1019, at 66 (1989) (summary of testimony of
Nancy Brown, Chairperson, State of Connecticut Task Force
on Public Housing and Drugs); "The fear of retaliation makes
it almost impossible to provide normal police protection."
_________________________________________________________________
11 Mr. Walker's guest was found in possession of drugs inside of Walk-
er's apartment.
1075
H.R. Rep. No. 101-1019, at 69 (summary of testimony of
Vincent Lane, Chairman, Chicago Housing Authority).
By granting PHAs the authority to evict tenants without
proving the tenant knew of the drug-related criminal activity,
Congress passed reasonable legislation designed to address
these well-documented obstacles to effective law enforce-
ment. Residents of public housing are empowered by
S 1437d(1)(6) to monitor and report drug activity without
fearing the possibility of retaliation. This will reduce the need
for residents to confront drug dealers in court in order to
prove the tenant knew of the drug-related criminal activity
and secure their eviction. "Once tenants realize that they can
rejoin the fight against drug dealers without fear of retaliation,
we will have achieved an important victory." 134 Cong. Rec.
E1965-02 (article written by Emmanuel P. Popolizio, Chair-
man, New York City Housing Authority).
Much of the public housing drug eradication program was
aimed at obtaining the cooperation and support of public
housing tenants. HUD Secretary Jack Kemp, for example,
recommended that PHAs establish anonymous `drug tip'
hotlines "so that residents can anonymously report drug activ-
ity in their area." H.R. Rep. No. 101-1019, at 64 (testimony
of Jack Kemp, Secretary of HUD). Like the anonymous
hotline, S 1437d(l)(6) was a reasonable response to the legiti-
mate housing objective of reestablishing tenant control of
drug-ridden public housing units. Mayor James P. Moran Jr.
of Alexandria, Virginia argued before a Senate subcommittee
that the eviction provision was critical to "giv[ing] a sense of
control back to the tenant leadership within the communities."
Drugs in Federally Assisted Housing: Hearings on S.566
Before the Subcomm. on Housing and Urban Affairs of the
Senate Comm. on Banking, Housing, and Urban Affairs , S.
Doc. No. 101-234, at 27 (1989).
Furthermore, a provision permitting the eviction of
unknowing tenants because of the wrongdoing of their house-
1076
hold members or guests is a common and enforceable provi-
sion in leases between private owners of property and their
tenants. Shepard v. Dye, 137 Wash. 180 (1926) (eviction
upheld even though lessee neither knew of nor consented to
the gambling activity engaged in by sub-lessee); Minnesota
Public Hous. Auth. v. Lor, 591 N.W. 2d 700, 704 (1999) ("A
lease is a form of contract. Unambiguous contract language
must be given its plain and ordinary meaning, and shall be
enforced by courts even if the result is harsh."[citations omit-
ted]); 56 Fed. Reg. at 51,566 (Oct. 11, 1991) (The "ability of
PHA or other landlord to enforce covenants relating to acts of
unit residents . . . is a normal and ordinary incident of tenan-
cy.") The regular use and enforcement of these provisions
among private parties attests to their reasonableness.
The fact that one of the parties to this particular lease was
a government agency does not render an otherwise prudent
provision unreasonable.12 Frequently, governments impose
liability on individuals without requiring that the individual
had actual knowledge of the wrongdoing. See Conn. Gen.
Stat. S52-572 (imposing tort liability on "ignorant" parents for
actions of their children); 42 U.S.C. S 9607 (property owner
liable for environmental cleanup when waste was legally
deposited by a previous owner without current owner's
knowledge or consent).
Thus, it must be acknowledged that the congressional
imposition of liability without fault on individuals is not, per
se, unreasonable. Such liability, furthermore, is frequently
negotiated between private landlords and tenants. Congress,
by enacting S 1437d(1)(6), determined that the safety and
security of public housing tenants justified the potential evic-
tion of ignorant tenants. Housing Lease and Grievance Proce-
_________________________________________________________________
12 Whether the lease provision is "reasonable" within the meaning of
S 1437d(l)(1) is a separate question from whether the constitution permits
the government to include it in every public housing lease. We deal with
the constitutional questions below.
1077
dures, 56 Fed. Reg. at 51,567 ("Congress has determined that
drug crime and criminal threats by public housing household
members are a special danger to the security and general ben-
efit of public housing residents warranting special mention in
the law.") This determination was entirely reasonable.
III. The Constitution Does Not Prohibit the Eviction
of Ignorant Tenants from Federally Subsidized
Housing.
Section 1437d(l)(6) is not proscribed by the Constitution.
In evicting Walker, Lee and Hill13 for the actions of their
household members and guests, the Oakland Housing Author-
ity was exercising its right to terminate tenancy because of a
violation of the lease. As noted above, this is not an unusual
provision.14 The fact that the landlord in this case was a gov-
ernment agency should not transform an otherwise proper
eviction into a constitutional question.
A. Constitutional Doubt
The majority does not reach the constitutional issues raised
by the tenants in this case. Rather, applying the doctrine of
"constitutional doubt," the majority instead imposes its own
construction on the statute. The majority, however, has misap-
plied this doctrine. "The `constitutional doubt' doctrine does
not apply mechanically whenever there arises a significant
constitutional question the answer to which is not obvious."
Almendarez-Torres v. United States, 523 U.S. 224, 239
(1998). The doctrine is to be applied only when 1) the statute
is "genuinely susceptible to two constructions " and 2) there is
_________________________________________________________________
13 In an exercise of its "humane judgment," the OHA has decided not to
seek the eviction of plaintiff Rucker.
14 "Were we dealing with the same lease provision in a lease between
private parties we could have affirmed the [eviction] in one short para-
graph relying solely on the lease provision." Hous. Auth. of New Orleans
v. Green, 657 So.2d 552, 555 (La. App. 1995).
1078
a "serious likelihood" that the statute will be held unconstitu-
tional. Id. at 238; United States v. Jin Fuey Moy, 241 U.S.
394, 401 (1916) (Holmes, J.) (statute must be construed so as
to avoid "grave doubts" as to its constitutionality). We have
already articulated the reasons we do not believe the statute
is susceptible to multiple interpretations. We would also hold
that the statute, as written by Congress and implemented by
HUD, is constitutional.
B. Due Process
Government plays many parts. When it acts in one of its
many proprietary roles (employer, purchaser, or landlord, to
name a few), it must be able to enforce reasonable and ger-
mane conditions. National Endowment for the Arts v. Finley,
524 U.S. 569, 587-588 (1998) ("[T]he Government may allo-
cate competitive funding according to criteria that would be
impermissible were direct regulation . . . or a criminal penalty
at stake.") A government employer, for example, may impose
restraints on employee speech that would violate the First
Amendment if imposed on an ordinary citizen. Pickering v.
Bd. of Educ. Of Township High School Dist. 205, Will
County, Illinois, 391 U.S. 563, 568 (1968) (applying interme-
diate rather than strict scrutiny to dismissal of public school
teacher for exercising First Amendment rights). Likewise,
when the government acts to subsidize a purchase of certain
services but not others, there may be no constitutional impli-
cations. Maher v. Roe, 432 U.S. 464, 475 (1977) (subsidizing
childbirth, but not abortion "does not interfere " with a funda-
mental right, but merely "encourages" childbirth).
When managing a public housing complex, the govern-
ment's role is not unlike that of an employer or purchaser.
The constitution does not require the government to provide
decent and safe housing to its citizens. Lindsey , 405 U.S. at
74 (there is no "constitutional guarantee of access to dwell-
ings of a particular quality.") The rights provided in the Hous-
ing Act of 1937 and its subsequent amendments arise from
1079
congressional notions of sound policy not constitutional
necessity. In furtherance of such policy, Congress should be
accorded considerable flexibility in fixing the necessary rules
with which beneficiaries must comply.
In this case, Congress has limited the right to reside in pub-
lic housing to those individuals who agree to accept responsi-
bility for the drug-related criminal activity of their household
members and guests. It has granted to PHAs the authority to
withdraw this benefit from those who will not or cannot pre-
vent their guests from engaging in such activity. So long as
this condition is relevant to the government's underlying
interest as a landlord, it is constitutionally permissible. Nollan
v. Cal. Coastal Comm'n, 483 U.S. 825, 836 (1987) (if govern-
mental purpose is sufficient to justify outright refusal of bene-
fit, it is sufficient to justify conditions on that benefit). See
also Dandridge v. Williams, 397 U.S. 471 (1970).
In Lyng v. Int'l Union, United Auto., Aerospace and Agric.
Implement Workers of America, UAW ("UAW"), 485 U.S.
360 (1988), the Supreme Court upheld the denial of food
stamps to an entire household because a single member of that
household was on strike. Like the tenants in the present case,
the appellees in UAW argued that the statute unconstitution-
ally burdened the right to association because it "impermiss-
ibly directs the onus of the striker's actions against the rest of
the family." UAW, 485 U.S. at 363.
The denial of food stamps undoubtedly imposed a hardship
on "innocent" family members. So long as non-striking fam-
ily members continued to share their household with a striker,
they were prohibited from enjoying a government benefit to
which they were otherwise entitled. Although the Court rec-
ognized that associational rights were implicated by the food
stamp statute, it held that the "withdrawal of a government
benefit" did not pose a significant danger to the exercise of
that constitutional right. Id. at 367 n.5.
1080
In UAW, the Court also acknowledged that the means used
by Congress in addressing this objective were imperfect
because the "statute works at least some discrimination
against strikers and their households." Id. at 371-2 ("in terms
of the scope and extent of their ineligibility for food stamps,
S 109 is harder on strikers than voluntary quitters.") Neverthe-
less, the Court deferred to the congressional view of "what
constitutes wise economic or social policy" and upheld the
statute. Id. at 372 (quoting Dandridge v. Williams, 397 U.S.
at 486.)
Similarly, in Lipscomb v. Simmons, 962 F.2d 1374 (9th Cir.
1992) (en banc), this court upheld a state's foster care funding
scheme against a constitutional challenge. The court noted
that it must defer to the legislatively determined allocation of
scarce child care subsidies. "Because Oregon has no affirma-
tive obligation to fund plaintiffs' exercise of a right to main-
tain family relationships free from governmental interference,
we decline to apply heightened scrutiny." Lipscomb, 962 F.2d
at 1379. Because the allocation of welfare payments is a legis-
lative function, a court may not strike down such schemes on
the basis of "seemingly arbitrary consequences in some indi-
vidual cases." Id. at 1382 (quoting Califano v. Jobst, 434 U.S.
47, 53 (1977)). Rather, when confronted with a facial chal-
lenge to a statutory determination of eligibility, the Lipscomb
court limited its inquiry to "only whether there is a rational
basis for the program viewed as a whole." Id . Consequently,
despite the potential for "unfavorable results in the cases of
individual plaintiff[s]," the statutory scheme was constitu-
tional because it was rationally related to the government's
interest in "maximizing the amount of money available" for
the program as a whole. Id. at 1380, 1381.
In this case, the government has interrelated interests. Both
reclaiming public housing from an epidemic of drug related
crime and violence and empowering public housing residents
to assist in this effort are indisputably legitimate objectives.
The failure to distinguish between the knowing and unknow-
1081
ing tenant need survive only minimal scrutiny. In determining
who may reside in federally subsidized housing, Congress
must draw distinctions "in order to make allocations from a
finite pool of resources." UAW, 485 U.S. at 373. See also
Wyman v. James, 400 U.S. 309 (1971) (holding that the gov-
ernment may condition welfare payments on a recipients
agreement to permit warrantless homevisits by agency per-
sonnel).
Section 1437d(l)(6) facilitates the eviction of truly culpable
tenants, creates incentives for all tenants to report drug-related
criminal activity, and provides a credible deterrent against
criminal activity. Because the eviction provision is discretion-
ary, the provision also motivates tenants to accept remedial
actions short of eviction. HUD, One Strike and Your Out Pol-
icy in Public Housing, 8 (March 1996).15 The statute is, there-
fore, rationally related to Congress' legitimate objectives. No
more is required. Ohio Bureau of Employment Servs. v.
Hodory, 431 U.S. 471, 491 (1977) (statute that "provides only
rough justice . . . is [nevertheless] far from irrational.")
The majority opinion ignores the discretionary nature of the
benefit at issue and instead focuses on the property rights of
those who currently reside in federally subsidized housing.
The majority finds "grave doubt" as to the constitutionality of
1437d(l)(6) because the statute authorizes eviction "without
any relationship to individual wrongdoing." The majority's
analysis flounders, however, because the Supreme Court has
repeatedly held that "the innocence of the owner of property
subject to forfeiture has almost uniformly been rejected as a
defense." Bennis v. Michigan, 516 U.S. 442, 449 (1996)
_________________________________________________________________
15 Even though the "one strike " policy was implemented eight years after
the passage of S 1437d(l)(6) it still may offer a legitimate rationale for the
passage of the statute. Antonio v. Wards Cove Packing Co., 10 F.3d 1485,
1494 (9th Cir. 1993) ("A rational basis need not be one that actually moti-
vated Congress. It is enough that plausible reasons for Congress' action
exist." [citations omitted])
1082
(quoting Calero-Toledo v. Pearson Yacht Leasing Co., 416
U.S. 663, 683 (1974)); See also, J.W. Goldsmith, Jr. Grant
Co. v. United States, 254 U.S. 505 (1921); Van Oster v. Kan-
sas, 272 U.S. 465 (1926).
The majority argues that this unbroken line of authority is
factually distinguishable from the present case. Specifically,
the majority hangs its constitutional argument on the fact that
two tenants face eviction for drug related criminal activity
that took place on public housing premises but not in the ten-
ant's apartment. This is a thin reed on which to hang "grave
doubts" as to the constitutionality of S 1437d(l)(6). The "cases
authorizing [forfeiture of the property of innocent owners] are
`too firmly fixed in the punitive and remedial jurisprudence of
the country to be now displaced.' " Bennis , 516 U.S. at 452.
(quoting Goldsmith-Grant, 254 U.S. at 511). The facts of this
case present no reason to create a new constitutional rule.
Those who engaged in drug-related criminal activity were on
the premises with the consent of the tenants. No additional
nexus among the tenant, property, and the drug use is consti-
tutionally required.
C. Excessive Fines
The tenants' contention that the lease provision permitting
eviction of ignorant tenants is an excessive fine proscribed by
the Eighth Amendment is without merit.16 No court has held
that government enforcement of a valid lease provision con-
stitutes an excessive fine. To do so would be to "federalize the
substantive law of landlord-tenant relations." Lindsey, 405
U.S. at 68. Excessive fines analysis is limited to those circum-
stances where "the government . . . extracts payments,
whether in cash or in kind, `as punishment for some
offense.' " United States v. Bajakajian , 524 U.S. 321, 328
_________________________________________________________________
16 "Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishment inflicted." U.S. Const., amend. 8.
1083
(1998) (quoting Austin v. United States, 509 U.S. 602, 609-
610 (1993)).
The eviction of a tenant for violation of a valid lease provi-
sion is distinguishable from a cash payment to the govern-
ment. In Kim v. United States, 121 F.3d 1269 (9th Cir. 1997),
a grocery store owner sought review of his permanent dis-
qualification from participation in the federal food stamp pro-
gram. The basis for the disqualification was that an employee
-- without plaintiff's knowledge or consent -- illegally
exchanged cash for food stamps. Id. at 1271. The owner
insisted that permanent disqualification constituted an exces-
sive fine in that there was no evidence of individual wrongdo-
ing on his part. The court rejected this argument."Permanent
disqualification . . . is not an excessive fine prohibited by the
Eighth Amendment because it is not cash or in kind payment
directly imposed by, and payable to, the government. " Id. at
1276.
Eviction from publicly subsidized housing is comparable.
Eviction is the return of a possessory right to its original
owner, the government. The government then transfers the
possessory right to another citizen under the same conditions
as it was held by the original tenant. The purpose behind the
excessive fines clause -- to limit the government's power to
enrich itself by punishing its citizens -- is absent in the case
of eviction from public housing. See Browning-Ferris Indus-
tries of Vt. Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 264-268
(1989). Evictions cannot properly be characterized as "cash or
in kind payments" and should not be subject to excessive
fines analysis.
Moreover, evictions in these circumstances are not puni-
tive. They are remedial. A civil sanction is punitive when it
serves "either retributive or deterrent purposes. " Austin, 509
U.S. at 610. Eviction serves the classic purpose of a contrac-
tual remedy -- it returns the parties to "as good a position as
that occupied . . . before the contract was made. " Corbin on
1084
Contracts S996. The remedy of eviction alone is not punitive.
Therefore, the Eighth Amendment prohibition of excessive
fines is inapplicable in this case.
IV. The ADA Does Not Prevent the Eviction of
Mr. Walker.
In addition to the statutory and constitutional claims raised
by all tenants, one tenant, Mr. Walker, raises an additional
claim under the Americans with Disabilities Act ("ADA") 42
U.S.C. S 12101, et seq. Walker argues that the ADA prevents
his eviction despite the fact that his caretaker and other guests
engaged in drug-related criminal activity in his apartment and
on the premises on at least three occasions.
The district court enjoined the unlawful detainer proceed-
ings against Walker. The court held that the eviction provision
of the lease placed Walker "at more risk for forfeiture of his
tenancy than other tenants who do not require in home care."
While non-disabled tenants can comply with the lease provi-
sion simply by "choosing not to have any household members
or guests," Mr. Walker -- because of his disability -- does
not have that choice. He requires an in home caretaker. Con-
sequently, the district court concluded that the ADA may
require the OHA to provide some accommodation exempting
Walker from responsibility for the drug-related criminal activ-
ity of his caretaker.
The district court erred, however, because the OHA did not
seek to evict Mr. Walker based solely on the drug-related
criminal activity of his caretaker. Whether there is a "reason-
able accommodation" that would permit Mr. Walker to
engage the services of a drug-using caretaker without risk of
eviction was not presented by the facts of this case. Conse-
quently, although the district court applied the appropriate
standard to a request for preliminary relief, it "misapprehend-
[ed] the law with respect to the underlying issues in litiga-
1085
tion." Sports Form, Inc. v. United Press Int'l, Inc., 686 F.2d
750, 752 (1982). This constitutes reversible legal error.
The unlawful detainer complaint against Mr. Walker
alleged three separate incidents of drug-related criminal activ-
ity in Mr. Walker's apartment and/or by his guests. Only one
of those incidents involved Mr. Walker's caretaker. On
August 7, 1997, the OHA contends that it stopped and
searched a guest of Mr. Walker on OHA premises. The guest
was in possession of crack cocaine. Mr. Walker does not
claim that this guest was employed as his caretaker. After
arresting Walker's guest, officers went to Walker's unit where
Walker consented to a search. There officers met Eleanor
Randle. Ms. Randle had a cocaine pipe pinned inside her
jacket. She was arrested for possession of narcotics parapher-
nalia. Mr. Walker alleges that Ms. Randle is his caretaker.
Officers also found a cardboard box containing crack cocaine
pipes and "suspected rock cocaine chips." OHA did not ascer-
tain the ownership of these drugs found in Walker's apart-
ment. Mr. Walker denied knowledge of all criminal drug
activity that took place in his apartment.
On August 12, 1997 officers found a cocaine pipe inside a
bag of hair rollers inside Walker's apartment. Walker's
alleged caretaker, Eleanor Randle, was not present at the time,
although another guest was.
On October 11, 1997 officers again found a cocaine pipe in
Walker's apartment. Walker's guest at the time was cited for
possession of narcotics paraphernalia. Walker does not allege
that this guest was his caretaker.
Under S 1437d(l)(6) any one of these incidents, if proven,
is sufficient justification for Mr. Walker's eviction. Under the
district court's reasoning, Mr. Walker requires a "reasonable
accommodation" only because he cannot, like a non-disabled
resident, choose not to have guests. He must permit a care-
taker to enter his apartment. This reasoning cannot sustain an
1086
accommodation that exempts Walker from eviction for the
drug-related criminal activity of non-caretaker guests. There
are two alleged incidents of such conduct.
On appeal of a preliminary injunction, we do not accept the
housing authority's allegations as true. The accuracy of these
allegations should be determined through the normal adjudi-
cation of the pending unlawful detainer action. We only
believe that even assuming Mr. Walker is disabled and assum-
ing that a reasonable accommodation could be found that
would prevent the eviction of Mr. Walker because of the
drug-related criminal activity of his caretaker, Mr. Walker
could still be evicted based on the drug possession of his other
guests who were not his caretakers. Mr. Walker's ADA claim
should therefore be rejected.17
CONCLUSION
It is obvious that when Congress authorized the eviction of
innocent tenants, the potential for individual unfairness
existed. Congress granted to local PHA's the power to evict
and trusted that the "humane judgment" of PHA officials and
the procedural protections of the Act would prevent the abuse
of this power. Congress struck a balance. It did so in the face
of a drug crisis and the ineffectiveness of traditional law
enforcement. It bestowed upon the PHAs the authority chal-
lenged in this case. That authority does not violate the Consti-
tution. This legislation should be interpreted as it was written.
_________________________________________________________________
17 We also note that the OHA did accommodate Mr. Walker by not
attempting to evict him until after the third drug-related criminal offense
committed by one of his guests. OHA is not required by the ADA to pro-
vide Walker with an accommodation that is not reasonable. Memmer v.
Marin County Courts, 169 F.3d 630, 633-634 (9th Cir. 1999). A request
to waive applicability of S 1437d(l)(6) to a tenant's caretaker is not rea-
sonable.
1087