Nos. 00-1770 and 00-1781 

In the Supreme Court of the United States 
UNITED STATES DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT, PETITIONER 

v. 
PEARLIE RUCKER, ET AL. 

OAKLAND HOUSING AUTHORITY, ET AL., PETITIONERS 

v. 
PEARLIE RUCKER, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT 

RICHARD A. HAUSER 

General Counsel 

CAROLE W. WILSON 

Associate General Counsel 

HOWARD M. SCHMELTZER 

Assistant General Counsel 

HAROLD J. RENNETT 

Attorney 
United States Department of 

Housing and Urban 
Development 
Washington, D.C. 20410 
THEODORE B. OLSON 

Solicitor General 

Counsel of Record 

ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

BARBARA C. BIDDLE 
HOWARD S. SCHER 

Attorneys 

Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTION PRESENTED 

Section 1437d(l)(6) of Title 42 of the United States Code 
provides that public housing leases must contain a clause 
stating that “any drug-related criminal activity on or off 
[the] 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.” 

The question presented is: 

Whether the lease clause provided for in 42 U.S.C. 
1437d(l)(6) (Supp. V 1999) is violated by drug-related crimi- 
nal activity of household members, regardless of whether it 
can be shown that the tenant knew, or had reason to know, 
of the drug-related activity. 

(I) 

TABLE OF CONTENTS 

Page 

Opinions below ............................................................................... 
1 

Jurisdiction ...................................................................................... 2 

Statutory provisions involved ..................................................... 
2 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 
14 

Argument: 

Section 1437d(l)(6) requires that a public housing 

authority be entitled under its leases to terminate a 

tenancy based on the illegal drug activity of household 

members or guests, without regard to the tenant’s 

knowledge of that activity .................................................... 

17 

I. Section 1437d(l)(6) by its terms requires that 

public housing authorities have discretion to 

terminate tenancy regardless of the tenant’s 

knowledge of the drug-related criminal activity ...... 

18 

A. The plain language of Section 1437d(l)(6) 

precludes a knowledge requirement as a 

prerequisite for eviction ......................................... 

19 

B. Section 1437d(l)(6) does not require a public 

housing authority to seek eviction for a lease 

violation, but instead vests it with discretion 

whether to invoke the lease termination 

clause ......................................................................... 20 

C. The court of appeals erred in finding ambiguity 

in the text of Section 1437d(l)(6) that would 

permit an “unknowning tenant” defense ............ 
22 

II. Other principles of statutory construction confirm 

that Section 1437d(l)(6) applies without regard to 

the tenant’s knowledge .................................................. 27 

(III) 

IV 

TABLE OF CONTENTS—Continued: 
Page 

A. Related statutory provisions confirm that 

Section 1437d(l)(6) authorizes termination of 

the tenancy regardless of the tenant’s 

knowledge ................................................................. 27 

B. Construing Section 1437d(l)(6) to authorize 

termination of the tenancy without regard to 

the tenant’s knowledge substantially advances 

Congress’s declared policy of eliminating drug 

criminals from public housing ............................... 
34 

C. The legislative history supports HUD’s 

reading of Section 1437d(l)(6) ............................... 

37 

D. Construing Section 1437d(l)(6) according to 

its terms does not lead to “absurd results” ........ 

44 

E. The principle of constitutional avoidance has 

no application here because the meaning of 

Section 1437d(l)(6) is clear and that provision 

is constitutional ........................................................ 
46 

F. Because HUD’s interpretation of Section 

1437d(l)(6) is reasonable, it is controlling if 

there are any lingering doubts ............................. 

48 

Conclusion ....................................................................................... 49 

Appendix ......................................................................................... 1a 

TABLE OF AUTHORITIES 

Cases: 

Arcadia v. Ohio Power Co., 498 U.S. 73 (1990) ................ 

26 

AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366 

(1999) ........................................................................................ 49 

Austin v. United States, 509 U.S. 602 (1993) ..................... 

47 

Bailey v. United States, 516 U.S. 137 (1995) .................... 

25 

Bennis v. Michigan, 516 U.S. 442 (1996) ................... 12, 17, 47 

V 

Cases—Continued: Page 

Burton v. Tampa Hous. Auth., No. 00-13607, 2001 

WL 1379724 (11th Cir. Nov. 7, 2001) ............. 

19, 20, 21, 30, 36 

Calero-Toledo v. Pearson Yacht Leasing Co., 416 

U.S. 663 (1974) ........................................................................ 

48 

Charlotte Hous. Auth. v. Patterson, 465 S.E.2d 68 

(N.C. Ct. App. 1995) .............................................................. 

41 

Chavez v. Housing Auth. of El Paso, 973 F.2d 1245 

(5th Cir. 1992) ......................................................................... 

41 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, 

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

17, 18, 48 

City of S.F. Hous. Auth. v. Guillory, 49 Cal. Rptr.2d 

367 (App. Dept. Super. Ct. 1995) ........................................ 

41 

Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 

437 (1987) ................................................................................. 

34 

Dunn v. Commodity Futures Trading Comm’n, 519 

U.S. 465 (1997) ........................................................................ 

49 

Edmond v. United States, 520 U.S. 651 (1997) ................. 

34 

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 

(1982) ........................................................................................ 45 

Housing Auth. of New Orleans v. Green, 657 So.2d 

552 (Ct. App.), writ denied, 661 So.2d 1355 (La. 

1995), cert. denied, 517 U.S. 1169 (1996) ........................... 

27, 41 

Lindahl v. Office of Pers. Mgmt., 470 U.S. 768 

(1985) ........................................................................................ 42 

Lindsey v. Normet, 405 U.S. 56 (1972) .............................. 

48 

Lorillard v. Pons, 434 U.S. 575 (1978) ................................ 

42 

Lyng v. International Union, United Auto Workers 

of Am., 485 U.S. 360 (1988) ................................................. 

13 

Merrill Lynch, Pierce, Fenner & Smith, Inc. v. 

Curran, 456 U.S. 353 (1982) ................................................ 

42 

Minneapolis Public Hous. Auth. v. Lor, 591 N.W.2d 

700 (Minn. 1999) ..................................................................... 

23 

Morales v. Trans World Airlines, Inc., 504 U.S. 

374 (1992) ................................................................................. 

34 

National Tenants Org. v. Pierce, Civ. Action No. 

88-3134 (D.D.C. Nov. 2, 1998) .............................................. 38 

VI 

Cases—Continued: Page 

Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1 

(1991) ........................................................................................ 35 

Reno v. Flores, 507 U.S. 292 (1993) .................................... 

46 

Robinson v. Shell Oil Co., 519 U.S. 337 (1997) ................. 

18 

Russello v. United States, 464 U.S. 16 (1983) ................... 

29 

Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) ....... 

23 

Shepard v. Dye, 242 P. 381 (Wash. 1926) ........................... 

23 

Udall v. Tallman, 380 U.S. 1 (1965) ................................... 

27 

United States v. Gonzales, 520 U.S. 1 (1997) .................... 

20, 37 

United States v. Monsanto, 491 U.S. 600 (1989) .............. 

20, 23 

United States v. Oakland Cannabis Buyers’ Coop., 

121 S. Ct. 1711 (2001) ............................................................ 

46 

United States v. Park, 421 U.S. 658 (1975) ....................... 

35 

United States Dep’t of Treasury v. Fabe, 508 U.S. 

491 (1993) ................................................................................. 

18 

Constitution, statutes and regulations: 

U.S. Const. Amend. V .............................................................. 

36 

Act of Oct. 12, 1984, Pub. L. No. 98-473, Tit. II, 

§ 306(a), 98 Stat. 2050 ............................................................ 

29 

Americans with Disabilities Act of 1990, 42 U.S.C. 

12101 et seq. ............................................................................. 

9 

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

102 Stat. 4181: 

§ 5101, 102 Stat. 4300 ................................................. 

4, 28, 30 

§ 5105, 102 Stat. 4301 ............................................... 

11, 28, 38 

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

Supp. V 1999)) ............................................................ 

4 

Civil Asset Forfeiture Reform Act of 2000, Pub. L. 

No. 106-185, 114 Stat. 202: 
§ 2(a), 114 Stat. 202 ........................................................... 

28 
§ 2(c), 114 Stat. 210 ........................................................... 
28 

Cranston-Gonzalez National Affordable Housing Act, 

Pub. L. No. 101-625, 104 Stat. 4079: 
§ 501, 104 Stat. 4079 (42 U.S.C. 1437d(c)(4)(A)(iii)) ... 

31, 32 
§ 504, 104 Stat. 4185 ................................................. 4, 5, 32, 40 

VII 

Statutes and regulations—Continued: 
Page 

Dire Emergency Supplemental Appropriations and 

Transfers, Urgent Supplements, and Correcting 
Enrollment Errors Act of 1989, Pub. L. No. 101-45, 
§ 404, 103 Stat. 129 ................................................................ 

31 
Housing Opportunity Program Extension Act of 
1996, Pub. L. No. 104-120, § 9(a)(2), 110 Stat. 836 .......... 
5 

Stewart B. McKinney Homeless Assistance Amend- 
ments Act of 1988, Pub. L. No. 100-628, § 1013, 102 
Stat. 3224 ................................................................................. 
38-39 

Quality Housing and Work Responsibility Act of 1998, 

Pub. L. No. 105-276, Tit. V, 112 Stat. 2518: 

§ 512(b)(1), 112 Stat. 2543 ............................................... 

5 

§ 576, 112 Stat. 2639 ......................................................... 

22 

§ 586(b)(1), 112 Stat. 2646 ................................................ 

4 

§ 586(b)(2)(A), 112 Stat. 2646 .......................................... 

4 

§ 586(b)(2)(B), 112 Stat. 2646 ......................................... 

4 

United States Housing Act of 1937, 42 U.S.C. 1437 

et seq. ........................................................................................ 

3 

42 U.S.C. 1437b(a) ............................................................ 

3 

42 U.S.C. 1437d(c)(4)(A) .................................................. 

13 

42 U.S.C. 1437d(c)(4)(A)(iii) (1994) ............................... 

31 

42 U.S.C. 1437d(l) (1994 & Supp. V 1999) ................ 

2, 5, 32 

42 U.S.C. 1437d(l)(1) .................................................... 

11, 13 

42 U.S.C. 1437d(l)(2) ............................................. 

32, 33, 34 

42 U.S.C. 1437d(l)(5) ................................................ 

32, 33, 34 

42 U.S.C. 1437d(l)(6) (Supp. V 1999) ........................ 

passim 

42 U.S.C. 1437f(d)(1)(B)(iii) ............................................ 

43 

18 U.S.C. 983(d) ........................................................................ 
28 

18 U.S.C. 983(d)(1) ................................................................... 
28 

18 U.S.C. 983(d)(2)(A)(i) ......................................................... 
28 

21 U.S.C. 802 (1994 & Supp. V 1999) .................................... 
5 

21 U.S.C. 881(a)(7) (Supp. V 1987) ........................................ 
28 

21 U.S.C. 881(a)(7) (1988) ....................................................... 
11 

21 U.S.C. 881(a)(7) (1994) ....................................................... 
28, 29 

42 U.S.C. 11901 (1994 & Supp. V 1999) ................................ 
4, 34 

42 U.S.C. 11901(1) .................................................................... 46 

VIII 

Statutes and regulations—Continued: 
Page 

42 U.S.C. 11901(3) .................................................................... 
19, 44 

42 U.S.C. 13661(b) (Supp. V 1999) ...................................... 
42, 1a 

42 U.S.C. 13661(b)(1)(A) (Supp. V 1999) ..................... 
21-22, 1a 

42 U.S.C. 13661(b)(2)(A) (Supp. V 1999) ............................. 
31, 2a 

42 U.S.C. 13662(a) (Supp. V 1999) ................................ 
22, 42, 3a 

24 C.F.R. (2000): 

Section 866.4(a)(1)-(2) (1987)............................................ 

25 

Section 866.4(f)(9)-(11) (1987) .......................................... 
25 

Section 966.4(a)(1)-(2) (1987)............................................ 
25 

Section 996.4(a)(1)-(2) ....................................................... 
25 

Section 966.4(f)(9)-(11) (1987) ......................................... 
25 

Section 966.4(f)(9)-(11) ..................................................... 
25 

Section 966.4(f)(12)(i) ........................................................ 
6, 6a 

Section 996.4(f)(12)(ii) ....................................................... 
6, 7a 

Section 966.4(l)(2)(i)(B) .................................................... 
6, 7a 

Section 966.4(l)(5)(i) .................................................... 
7, 20, 8a 

Section 966.4(l)(5)(i)(B) .................................................... 
6, 8a 

Section 966.4(l)(5)(vii)(B) ......................................... 
7, 21, 11a 

Section 966.53(f)(1) (1991) ................................................ 
25 

Miscellaneous: 

Black’s Law Dictionary (7th ed. 1999) ................................. 

24 

134 Cong. Rec. (1980): 

p. 32,692 ................................................................................... 

38 

p. 33,186 ................................................................................... 
38 

136 Cong. Rec. (1990): 

p. 15,991 ............................................................................... 

43 

p. 16,012 ............................................................................... 
43 

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, 101st Cong., 1st Sess. (1989) ......... 

39, 40 
Drugs in Public Housing: Hearings Before the 

Permanent Subcomm. on Investigations of the Senate 
Comm. on Governmental Affairs, 101st Cong., 1st 
Sess. (1989) .............................................................................. 

40 
40 Fed. Reg. 33,402 (1975) ....................................................... 
25 

53 Fed. Reg. (1988): 

p. 33,216 ............................................................................... 38 

IX 

Miscellaneous—Continued: Page 

pp. 33,245-33,246 ................................................................ 
25 

p. 33,306 ............................................................................... 
38 

54 Fed. Reg. (1989): 

p. 6886 .................................................................................. 

39 

p. 15,998 ............................................................................... 
43, 44 

56 Fed. Reg. (1991): 

p. 51,560 ............................................................................... 

7, 20 

p. 51,562 ............................................................................... 
27, 45 

p. 51,566 ............................................................................... 
7, 41 

pp. 51,566-51,567 ................................................................ 
7 

p. 51,567 ......................................... 
7, 20, 21, 33, 35, 36, 37, 41 

66 Fed. Reg. (May 24, 2001): 

p. 28,776 ............................................................................... 

6, 21 

p. 28,777 ............................................................................... 
21 

p. 28,781 ............................................................................... 
27 

p. 28,782 ............................................................................... 
21 

p. 28,783 ............................................................................... 
21 

p. 28,802 ............................................................................... 
6 

p. 28,803 ........................................................................... 
6, 7, 21 

H.R. Conf. Rep. No. 943, 101st Cong., 2d Sess. 
(1990) ........................................................................................ 43 

S. 566, 101st Cong., 2d Sess. (1990) ........................................ 

43 

S. Rep. No. 316, 101st Cong., 2d Sess. (1990) .............. 
11, 42, 43 

Webster’s Third New International Dictionary 
(1976) ........................................................................................ 20 

In the Supreme Court of the United States 
NO. 00-1770 
UNITED STATES DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT, PETITIONER 

v. 
PEARLIE RUCKER, ET AL. 

NO. 00-1781 
OAKLAND HOUSING AUTHORITY, ET AL., PETITIONERS 

v. 
PEARLIE RUCKER, ET AL. 

ON WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

BRIEF FOR THE DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT 

OPINIONS BELOW 

The opinion of the en banc court of appeals (Pet. App. 1a- 
67a1) is reported at 237 F.3d 1113. The order of the court of 
appeals (Pet. App. 68a-69a) directing that the case be re- 
heard en banc is reported at 222 F.3d 614. The opinion of the 
panel of the court of appeals (Pet. App. 70a-137a) is reported 
at 203 F.3d 627. The opinion of the district court (Pet. App. 
138a-166a) is unreported. 

1 All citations to Pet. and Pet. App. are to the petition for certiorari 
and the appendix thereto in No. 00-1770. 

(1) 

2 

JURISDICTION 

The judgment of the court of appeals was entered on 
January 24, 2001. On April 11, 2001, Justice O’Connor ex- 
tended the time within which to file a petition for a writ of 
certiorari to and including May 24, 2001, and the petition was 
filed on that date. The jurisdiction of this Court is invoked 
under 28 U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

42 U.S.C. 1437d(l) (1994 & Supp. V 1999) provides in per- 
tinent part: 

(l) Leases; terms and conditions; maintenance; termi- 
nation 

Each public housing agency shall utilize leases which— 

* * * * * 

(6) provide that any criminal activity that threatens 
the health, safety, or right to peaceful enjoyment of the 
premises by other tenants or any drug-related criminal 
activity on or off such premises, engaged in by a public 
housing tenant, any member of the tenant’s household, 
or any guest or other person under the tenant’s control, 
shall be cause for termination of tenancy. 

Other pertinent provisions of the United States Housing Act 
and regulations of the Department of Housing and Urban 
Development are set forth at Pet. App. 167a-172a and at 
App., infra, 1a-11a. 

STATEMENT 

This case concerns the meaning of a clause that the United 
States Housing Act requires each public housing agency 
(PHA) to include in leases of public housing units that re- 
ceive federal housing assistance. The clause provides that 
drug-related criminal activity by specified individuals on or 
off the premises of the PHA is cause for termination of ten- 
ancy and hence ground for eviction. The Oakland Housing 

3 

Authority (OHA) instituted eviction proceedings against 
four tenants pursuant to a lease clause compelled by that 
provision of the Housing Act. The tenants instituted this 
action in the United States District Court for the Northern 
District of California to obtain an injunction against OHA’s 
state court eviction actions. The district court issued a pre- 
liminary injunction barring OHA from terminating any lease 
of a tenant for drug-related criminal activity that occurred 
outside the tenant’s apartment if the tenant did not know of, 
or have reason to know of, that activity. The court of ap- 
peals, sitting en banc, affirmed the district court’s decision. 

1. a. The United States Housing Act of 1937 (Housing 
Act), 42 U.S.C. 1437 et seq., authorizes the Secretary of 
Housing and Urban Development (HUD) to make loans or 
loan commitments to public housing agencies to help finance 
the development, acquisition, or operation of low-income 
housing projects by such agencies. 42 U.S.C. 1437b(a). In 
1988 and 1990, Congress amended the Housing Act in an ef- 
fort to keep drug-related activity out of public housing. Con- 
gress made the following findings concerning the seriousness 
of the drug problem affecting public housing: 

(1) the Federal Government has a duty to provide 
public and other federally assisted low-income housing 
that is decent, safe, and free from illegal drugs; 

(2) public and other federally assisted low-income 
housing in many areas suffers from rampant drug-re- 
lated or violent crime; 

(3) drug dealers are increasingly imposing a reign of 
terror on public and other federally assisted low-income 
housing tenants; 

(4) the increase in drug-related and violent crime not 
only leads to murders, muggings, and other forms of 
violence against tenants, but also to a deterioration of 

4 

the physical environment that requires substantial gov- 
ernmental expenditures; 

(5) local law enforcement authorities often lack the 
resources to deal with the drug problem in public and 
other federally assisted low-income housing, particularly 
in light of the recent reductions in Federal aid to cities. 

Anti-Drug Abuse Act of 1988, Pub. L. No. 100-690, § 5122, 
102 Stat. 4301 (codified at 42 U.S.C. 11901 (1994 & Supp. V 
1999)).2 

In light of those findings, Congress mandated that “[e]ach 
public housing agency shall utilize leases which” provide that 

a public housing tenant, any member of the tenant’s 
household, or a guest or other person under the tenant’s 
control shall not engage in criminal activity, including 
drug-related criminal activity, on or near public housing 
premises, while the tenant is a tenant in public housing, 
and such criminal activity shall be cause for termination 
of tenancy. 

§ 5101, 102 Stat. 4300. 

That provision was reworded in 1990 without substantive 
change concerning drug-related criminal activity. As 
amended, the provision required that public housing leases 

provide that any criminal activity that threatens the 
health, safety, or right to peaceful enjoyment of the 
premises by other tenants or any drug-related criminal 
activity on or near such premises, engaged in by a public 
housing tenant, any member of the tenant’s household, or 
any guest or other person under the tenant’s control, 
shall be cause for termination of tenancy. 

2 The words “or violent” were inserted after “drug-related” in para- 
graphs (2) and (4) by the Quality Housing and Work Responsibility Act of 
1998, Pub. L. No. 105-276, §§ 586(b)(1) and (2)(A), 112 Stat. 2646. Addi- 
tional findings were added by Section 586(b)(2)(B) of that Public Law. 

5 

Cranston-Gonzalez National Affordable Housing Act, Pub. 
L. No. 101-625, § 504, 104 Stat. 4185. The provision was 
again amended in 1996 by changing the phrase “on or near 
such premises” to “on or off such premises.” Housing Oppor- 
tunity Program Extension Act of 1996, Pub. L. No. 104-120, 
§ 9(a)(2), 110 Stat. 836. As so amended, the provision is now 
codified at 42 U.S.C. 1437d(l)(6) (Supp. V 1999).3 See also 42 
U.S.C. 1437d(l) (1994 & Supp. V 1999) (defining “drug-re- 
lated criminal activity” to mean “the illegal manufacture, 
sale, distribution, use, or possession with intent to manufac- 
ture, sell, distribute, or use, of a controlled substance (as de- 
fined in [21 U.S.C. 802 (1994 & Supp. V 1999]”). 

HUD’s regulation establishing mandatory lease terms for 
public housing tenants closely tracks the statutory language. 
As recently amended, the regulation requires leases to im- 
pose an obligation on the tenant: 

(i) To assure that no tenant, member of the tenant’s 
household, or guest engages in: 

(A) Any criminal activity that threatens the 
health, safety or right to peaceful enjoyment of the 
premises by other residents; or 

(B) Any drug-related criminal activity on or off 
the premises; 

(ii) To assure that no other person under the tenant’s 
control engages in: 

(A) Any criminal activity that threatens the 
health, safety or right to peaceful enjoyment of the pre- 
mises by other residents; or 

(B) Any drug-related criminal activity on the 
premises. 

3 The provision was redesignated from paragraph (5) to paragraph (6) 
of Section 1437d(l) by Pub. L. No. 105-276, § 512(b)(1), 112 Stat. 2543. 

6 

66 Fed. Reg. 28,776, 28,802 (May 24, 2001) (to be codified at 
24 C.F.R. 966.4(f)(12)(i)). The regulations further state that 
“[t]he lease must provide that drug-related criminal activity 
engaged in on or off the premises by any tenant, member of 
the tenant’s household or guest, and any such activity en- 
gaged in on the premises by any other person under the ten- 
ant’s control, is grounds for the PHA to terminate tenancy.” 
66 Fed. Reg. at 28,803 (to be codified at 24 C.F.R. 
966.4(l)(5)(i)(B)). See also id. at 28,803 (to be codified at 24 
C.F.R. 966.4(l)(2)(i)(B)) (“The PHA may terminate the ten- 
ancy only for” certain lease violations, including “[f]ailure to 
fulfill household obligations, as described in” 24 C.F.R. 
966.4(f)(12)(i)). 

b. When HUD issued its original regulations imple- 
menting Section 1437d(l)(6) shortly after its enactment, it 
made clear that a tenant’s lease may be terminated for viola- 
tion of the lease provision required by Section 1437d(l)(6) 
without regard to the tenant’s knowledge of that activity.4 
HUD explained that permitting the landlord to evict a ten- 
ant for breach of lease obligations is a “normal and ordinary 
incident of tenancy,” and that permitting eviction based on 
the behavior of household members gives the tenant and 
other household members “a strong motive to avoid behavior 

4 The original regulations required leases to impose an obligation on 
the tenant: 

To assure that the tenant, any member of the household, a guest, 
or another person under the tenant’s control, shall not engage in: 

(A) Any criminal activity that threatens the health, safety, or 
right to peaceful enjoyment of the PHA’s public housing premises by 
other residents or employees of the PHA, or 

(B) Any drug-related criminal activity on or near such pre- 
mises. 

Any criminal activity in violation of the preceding sentence shall be 
cause for termination of tenancy, and for eviction from the unit. 

24 C.F.R. 966.4(f)(12)(ii) (2000). 

7 

which can lead to eviction.” 56 Fed. Reg. 51,560, 51,566 
(1991). In light of Congress’s determination that drug 
crimes “are a special danger to the security * * * of public 
housing residents,” id. at 51,566-51,567, HUD considered it 
appropriate that the “tenant should not be excused from con- 
tractual responsibility by arguing that [the] tenant did not 
know, could not foresee, or could not control behavior by 
other occupants of the unit,” id. at 51,567. 

Thus, under HUD’s interpretation, Section 1437d(l)(6) 
mandates a lease provision under which a PHA has “cause” 
to terminate a tenancy if the provision is violated, whether 
or not the tenant had knowledge of the drug-related criminal 
activity. But neither Section 1437d(l)(6) nor HUD’s regula- 
tions require public housing authorities to terminate any 
tenancy. Instead, the decision whether to invoke the lease 
clause and evict a particular tenant is for the PHA to make. 
HUD’s regulations provide that, in making that decision, 
“the PHA may consider all circumstances relevant to a par- 
ticular case such as the seriousness of the offending action, 
the extent of participation by the leaseholder in the offend- 
ing action, the effects that the eviction would have on family 
members not involved in the offending activity and the ex- 
tent to which the leaseholder has shown personal responsi- 
bility and has taken all reasonable steps to prevent or miti- 
gate the offending action.” 66 Fed. Reg. at 28,803 (to be 
codified at 24 C.F.R. 966.4(l)(5)(vii)(B)); see also 24 C.F.R. 
966.4(l)(5)(i) (2000) (predecessor regulation). 

2. In late 1997 and early 1998, the Oakland Housing 
Authority instituted eviction proceedings in state court 
against four public housing tenants who are plaintiffs in this 
case and respondents in this Court—Pearlie Rucker, Willie 
Lee, Barbara Hill, and Herman Walker. In each case, OHA 
alleged that the tenant had violated paragraph 9(m) of his or 
her lease, a provision that implements Section 1437d(l)(6) 
and that obligates the tenant to “assure that tenant, any 
member of the household, or another person under the ten- 

8 

ant’s control, shall not engage in * * * [a]ny drug-related 
criminal activity on or near the premises.” Pet. App. 5a-6a; 
J.A. 20-21, 46. Each tenant had also signed an agreement 
stating that the tenant is “aware of” paragraph 9(m); that 
the tenant is “aware that any drug-related criminal activity 
on or off the premises * * * by myself or any member of 
my household is prohibited”; and that the tenant “under- 
stand[s] that if I or any member of my household or guests 
should violate this lease provision, my tenancy may be ter- 
minated and I may be evicted.” J.A. 69 (Rucker); OHA C.A. 
E.R. 81 (Hill), 80 (Lee), 62 (Walker). 

Pearlie Rucker is a 63-year-old woman who has lived in 
public housing since 1985. OHA’s complaint alleged that her 
daughter, who resides with her and is listed on her lease as a 
resident, was found with cocaine and a crack cocaine pipe 
three blocks from Rucker’s apartment. OHA subsequently 
obtained a dismissal of the complaint without prejudice in 
February 1998. Pet. App. 6a, 141a; J.A. 13, 42. 

Willie Lee is 71 years old and has lived in public housing 
for more than 25 years. OHA’s complaint alleged that Lee’s 
grandson, who resides with her and is listed on her lease as a 
resident, was caught smoking marijuana in the apartment 
complex parking lot. Pet. App. 6a; J.A. 18, 34. 

Barbara Hill is 63 years old and has lived in public housing 
for more than 30 years. OHA’s complaint alleged that Hill’s 
grandson, who resides with her and is listed on her lease as a 
resident, was caught with Lee’s grandson in the apartment 
complex parking lot and admitted smoking marijuana. Pet. 
App. 6a; J.A. 19, 31. 

Herman Walker is a disabled 75-year-old man who has 
lived in public housing for ten years. OHA’s complaint al- 
leged that on three instances within a two-month period, 
Walker’s in-home caregiver and two others were found with 
cocaine in Walker’s apartment. Each time, Walker was is- 
sued a notice of lease violation. After the third notice and 

9 

OHA’s initiation of the eviction action, Walker fired his 
caregiver. Pet. App. 6a; J.A. 15-17, 37-39. 

3. Following the institution of eviction proceedings 
against them in state court, the four tenants commenced this 
action in the United States District Court for the Northern 
District of California. They sought, inter alia, a preliminary 
injunction that would prohibit OHA from evicting any ten- 
ants without proof of “the tenant’s personal participation in, 
prior knowledge of, and actual ability to prevent drug-re- 
lated or other criminal activity.” J.A. 24, 25. 

The district court issued a preliminary injunction prohib- 
iting OHA “from terminating the leases of tenants * * * for 
drug-related criminal activity that does not occur within the 
tenant’s apartment unit when the tenant did not know of, 
and had no reason to know of, the drug-related criminal 
activity.” Pet. App. 165a-166a; see generally id. at 138a- 
166a. The injunction is not limited merely to the four 
tenants who had brought the case, but broadly applies to all 
“leases of tenants.” Id. at 165a. The court also enjoined OHA 
from proceeding with any of the three eviction actions that 
remained pending in state court after the state eviction pro- 
ceeding against Rucker was dismissed. Id. at 166a. The 
court noted, however, that OHA “is not preliminarily en- 
joined from evicting tenants * * * for drug-related criminal 
activity in the tenant’s apartment, regardless of whether the 
tenant knew, or had reason to know, of the criminal activity,” 
except for Walker, the validity of whose eviction, the court 
concluded, would turn on the Americans with Disabilities 
Act of 1990 (ADA), 42 U.S.C. 12101 et seq. Pet. App. 165a- 
166a; see also id. at 162a-163a.5 

5 The court held that “[p]laintiffs may not state a claim under the 
ADA against HUD as the ADA does not apply to actions taken by the 
federal government.” Pet. App. 153a. The court, however, permitted 
Walker’s ADA claim to proceed against the Oakland defendants, id. at 
156a-157a, and issued a preliminary injunction barring Walker’s eviction 

10 

4. A divided panel of the Ninth Circuit reversed the dis- 
trict court’s decision and vacated the preliminary injunction. 
Pet. App. 70a-137a. The panel “concluded that the plain lan- 
guage of 42 U.S.C. § 1437d(l)(5), considered both by itself 
and in light of the broader statutory context, makes any 
drug-related criminal activity engaged in by a tenant, house- 
hold member, or guest cause for termination regardless of 
whether the tenant knew of such activity.” Id. at 107a. 
Judge William Fletcher dissented. Id. at 115a-137a. 

5. a. The court of appeals ordered rehearing en banc. 
Pet. App. 68a-69a. By a 7-4 vote, the en banc court affirmed 
the preliminary injunction. Id. at 1a-67a. The court held 
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, 
§ 1437d(l)(6) does not authorize the eviction of such a 
tenant.” Id. at 26a. Rejecting HUD’s contrary interpretation 
of the statute, the court concluded that “Congress had an 
intention on the precise question at issue that is contrary to 
HUD’s construction,” and that therefore “HUD’s inter- 
pretation is not entitled to deference” under Chevron. Id. at 
11a. 

The court acknowledged that the text “does not compel ei- 
ther party’s interpretation” because it “does not expressly 
address the level of personal knowledge or fault that is re- 
quired for eviction, or even make it clear who can be 
evicted.” Pet. App. 12a. The court was of the view, how- 
ever, that to construe Section 1437d(l)(6) to permit eviction 

with respect to his ADA claim, id. at 165a, 166a. The district court 
rejected Rucker’s ADA claim on the ground that she does not allege that 
she is disabled. Id. at 155a. The court of appeals affirmed the preliminary 
injunction concerning Walker’s ADA claim. Id. at 29a-31a. The ADA 
issue was not presented in HUD’s petition, see Pet. 21 n.7, or in the 
Oakland Housing Authority’s petition. See 00-1783 Pet. i (question 
presented referring only to the Housing Act), 4 n.3. 

11 

of tenants who did not know or have reason to know of the 
drug-related activity would “require PHAs to include an un- 
reasonable term in their leases,” in violation of 42 U.S.C. 
1437d(l)(1), which prohibits “unreasonable” PHA lease 
terms. Id. at 15a. 

The court also noted that in 1988, when Congress first en- 
acted what is now Section 1437d(l)(6), Congress amended a 
pre-existing civil forfeiture provision in 21 U.S.C. 881(a)(7) 
(1988) that already had an express “innocent owner” defense. 
The amendment added leasehold interests to the property 
subject to forfeiture when used to commit or facilitate a 
drug-related offense. See Anti-Drug Abuse Act of 1988, 
Pub. L. No. 100-690, § 5105, 102 Stat. 4301. The court “pre- 
sume[d]” that Congress meant for the amended forfeiture 
provision and Section 1437d(l)(6) “to be read consistently.” 
Pet. App. 17a. 

The court relied as well on a Senate Report discussing one 
version of a bill before Congress in 1990, when it amended 
Section 1437d(l)(6). The report stated that the committee 
“anticipates that each case will be judged on its individual 
merits” and that eviction of an unknowing tenant would 
neither be the “appropriate course,” S. Rep. No. 316, 101st 
Cong., 2d Sess. 179 (1990), nor constitute “good cause” to 
evict, id. at 127. 

The court also expressed the view that HUD’s interpreta- 
tion of Section 1437d(l)(6) would lead to “absurd results.” 
Pet. App. 21a. The court stated that “there was nothing 
more Pearlie Rucker could have done to protect herself from 
eviction”; that “the statute would * * * permit eviction 

* * * if a tenant’s child was visiting friends on the other 
side of the country and was caught smoking marijuana”; and 
that “the provision would * * * authorize eviction if a 
household member had been convicted of a drug crime years 
earlier.” Id. at 22a. 

Finally, the court held that the principle of construing a 
statute to avoid substantial constitutional concerns sup- 

12 

ported its result, because “[p]enalizing conduct that involves 
no intentional wrongdoing by an individual can run afoul of 
the Due Process Clause.” Pet. App. 24a. The court distin- 
guished Bennis v. Michigan, 516 U.S. 442 (1996), which per- 
mitted forfeiture of a wife’s interest in a car because of her 
husband’s use of the car to engage in sexual activities with a 
prostitute, conduct of which the wife was unaware. The 
court pointed out that the property in Bennis had been 
“used in criminal activity,” while the leasehold interests here 
(with the exception of the one in Walker’s case) had not 
been. Pet. App. 25a. 

In affirming the preliminary injunction, the court of ap- 
peals noted that the injunction does not necessarily bar OHA 
from pursuing evictions based on drug-related activities that 
occur in the tenant’s unit, regardless of the tenant’s knowl- 
edge (see Pet. App. 166a), characterizing that general pres- 
ervation of OHA’s authority as “creat[ing] a rebuttable pre- 
sumption that a tenant controls what occurs in his or her 
unit.” Id. at 29a. In addition, without otherwise analyzing 
the question of who should bear the burden of proof, the 
court stated that “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.” Pet. 
App. 28a (emphasis added); see also id. at 29a & n.10. 

b. Judge Sneed, joined by three other judges, dissented. 
Pet. App. 32a-67a. In his view, “[b]ecause the statute is clear 
on its face, HUD’s interpretation is the only permissible con- 
struction.” Id. at 33a. But he noted as well that “whether 
one accepts our contention that the statutory language is 
clear or the majority’s argument that the language is silent, 
application of the Chevron test to the present controversy 
leads to the same conclusion.” Id. at 33a-34a. 

Judge Sneed concluded that other statutory provisions 
supported HUD’s construction of the statute. In his view, 
for example, the fact that Congress included an express “in- 
nocent owner” defense in the forfeiture statute underscored 

13 

the significance of Congress’s omission of any similar lan- 
guage in Section 1437d(l)(6). Pet. App. 42a-44a; see also id. 
at 40a-42a (analyzing 42 U.S.C. 1437d(c)(4)(A) (1994), dis- 
cussed at pp. 31-32, infra). 

Judge Sneed also disputed the majority’s contention that 
Section 1437d(l)(6) would impose an “unreasonable” lease 
term, in violation of Section 1437d(l)(1), if it permitted evic- 
tion of tenants who were ignorant of the drug-related con- 
duct. Pet. App. 49a-55a. He explained that “requir[ing] 
proof of knowledge on the part of the tenant of the criminal 
activity of a guest is impractical” in any case in which the 
tenant was not found in the presence of the offender during 
the drug-related criminal activity, and that permitting 
eviction of such tenants gives the public housing authority “a 
credible deterrent against criminal activity.” Id. at 51a. He 
also noted that “a provision permitting the eviction of 
unknowing tenants because of the wrongdoing of their 
household members or guests is a common and enforceable 
provision in leases between private owners of property and 
their tenants,” and that fact “attests to [its] reasonableness.” 
Id. at 54a. 

Finally, Judge Sneed concluded that Section 1437d(l)(6), 
without an “ignorant tenant” defense, is constitutional. Pet. 
App. 56a-64a. He explained that “[t]he failure to distinguish 
between the knowing and unknowing tenant need survive 
only minimal scrutiny,” because “Congress must draw dis- 
tinctions ‘in order to make allocations from a finite pool of 
resources.’ ” Pet. App. 60a (quoting Lyng v. International 
Union, United Auto Workers of Am., 485 U.S. 360, 373 
(1988)). In Section 1437d(l)(6), he reasoned, “Congress has 
limited the right to reside in public housing to those indi- 
viduals who agree to accept responsibility for the drug-re- 
lated criminal activity of their household members and 
guests.” Id. at 58a. The provision thus “facilitates the evic- 
tion of truly culpable tenants, creates incentives for all ten- 
ants to report drug-related criminal activity, and provides a 

14 

credible deterrent against criminal activity.” Id. at 61a. And 
“[b]ecause the eviction provision is discretionary, the provi- 
sion also motivates tenants to accept remedial actions short 
of eviction.” Ibid. For those reasons, Judge Sneed con- 
cluded, Section 1437d(l)(6) is constitutional. 

SUMMARY OF ARGUMENT 

Section 1437d(l)(6) requires public housing leases to pro- 
vide that “any drug-related criminal activity * * * engaged 
in by * * * any member of the tenant’s household 

* * * shall be cause for termination of tenancy.” HUD has 
interpreted that provision to authorize (but not to require) 
public housing authorities to terminate the tenancy of ten- 
ants whose household members have engaged in drug-re- 
lated criminal activity, without requiring proof that the ten- 
ants knew or should have known of that activity. HUD’s 
construction of Section 1437d(l)(6) is not only reasonable, but 
is the only permissible construction of the statute. Accord- 
ingly, it is controlling in this case, and the court of appeals’ 
holding that Section 1437d(l)(6) authorizes eviction only if 
the tenant knew or should have known of the drug-related 
criminal activity should be reversed. 

I. The plain language of Section 1437d(l)(6) unambigu- 
ously authorizes eviction without regard to tenants’ knowl- 
edge of the drug-related activity of guests or other persons 
under their control. It contains no term that can be read to 
make the authority to evict turn on the tenant’s state of 
mind or knowledge. To the contrary, Congress precluded 
reading artificial qualifications or restrictions into Section 
1437d(l)(6) by providing for termination of tenancy based on 
“any” drug-related criminal activity committed by “any” 
household member or “any” guest or other person under the 
tenant’s control. 

The use of the term “under the tenant’s control” does not 
support the court of appeals’ restriction, for two reasons. As 
a matter of grammar that phrase applies only to “other per- 

15 

son,” not “any household member.” Moreover, HUD has in 
any event consistently and authoritatively construed “under 
the tenant’s control” to refer only to the tenant’s control 
over the “other person’s” access to the premises, not to re- 
quire the likely unavailable proof that the tenant had control 
over the “other person’s” specific conduct. 

II. Other tools of statutory construction support HUD’s 
interpretation. Congress amended the civil forfeiture statute 
(which already contained an “innocent owner” exception) to 
authorize forfeiture of leasehold interests in the same legis- 
lation in which it enacted Section 1437d(l)(6). Congress thus 
had civil forfeiture (with its innocent owner defense) in its 
sights when it enacted Section 1437d(l)(6). Its decision not 
to include any language in Section 1437d(l)(6) that is re- 
motely similar to the express “innocent owner” forfeiture 
defense demonstrates that no such “unknowing tenant” ex- 
ception was intended. 

Two other paragraphs in Section 1437d(l)—one prohibit- 
ing “unreasonable” lease terms and the other permitting 
eviction only for “good cause”—were relied on by the court 
of appeals but provide no support for its conclusion. Con- 
gress’s decision in Section 1437d(l)(6) to require inclusion of a 
lease term authorizing eviction of a tenant for a household 
member’s drug-related criminal activity necessarily shows 
that Congress decided that such a term is not unreasonable 
and that a household member’s participation in drug-related 
criminal activity is “good cause” for the tenant’s eviction. 

While the court of appeals’ holding that Section 1437d(l)(6) 
precludes eviction of unknowing tenants disserves Con- 
gress’s avowed goal of ridding public housing of the “reign of 
terror” caused by the presence of drug criminals, construing 
Section 1437d(l)(6) to permit termination of tenancy without 
regard to the tenant’s knowledge substantially advances 
that declared purpose. Section 1437d(l)(6) gives the tenant 
maximum incentive to find out about and address drug-re- 
lated criminal activity engaged in by household members 

16 

and others for whom the tenant is responsible. It avoids 
what would often be the insuperable enforcement problems 
that a PHA would face if the ability to remove a tenant 
turned on the PHA’s ability to prove the tenant’s knowledge 
of the drug-related criminal activity over the likely denials of 
knowledge by the tenant and the offender. It deters other 
potential drug criminals in public housing who are likely to 
become aware of the serious consequences of their activities 
and gives PHAs leverage to encourage tenants to bar drug 
criminals from their premises. Finally, because drug crimi- 
nals pose a threat to their neighbors regardless of the ten- 
ant’s knowledge of their activities, Section 1437d(l)(6) em- 
bodies the reasonable policy of authorizing PHAs to replace 
households who are the cause of that threat with some of the 
numerous households on public housing waiting lists who 
would not pose a similar threat. 

The legislative history of Section 1437d(l)(6) supports 
HUD’s construction. In 1990, when Congress rewrote Sec- 
tion 1437d(l)(6), Congress was informed that the statute as 
originally enacted did not contain a knowledge or other 
state-of-mind defense, yet Congress did not alter the rele- 
vant terms to include such a defense. Moreover, Congress 
broadened Section 1437d(l)(6) to cover more drug-related 
criminal activities in 1996, five years after HUD had authori- 
tatively construed the statute not to provide such a state-of- 
mind defense and after several courts rendered decisions 
sustaining HUD’s construction. Because Congress is pre- 
sumed to have been aware of governing executive and judi- 
cial branch constructions, it is presumed to have adopted 
them when it broadened Section 1437d(l)(6) in 1996 without 
inserting any language that could suggest a state-of-mind 
defense. 

The court of appeals purported to rely on the rule of con- 
stitutional avoidance to construe Section 1437d(l)(6) to in- 
clude a knowledge requirement. That rule is inapplicable, 
however, because the terms of Section 1437d(l)(6) unambi- 

17 

guously preclude any such requirement. Moreover, Section 
1437d(l)(6) poses no serious constitutional question. It is not 
a “penalty” provision, as the court of appeals suggested, but 
instead enforces what is a contractual warranty by the ten- 
ant that those for whom the tenant is responsible will not 
engage in drug-related criminal activities. Such terms are 
commonly enforced in similar contractual settings without 
any state-of-mind requirement. In addition, this Court held 
in Bennis v. Michigan, 516 U.S. 442 (1996), that a State may 
constitutionally forfeit a private property interest to which it 
had no previous connection, without a showing of fault by the 
owner. That holding applies a fortiori here, where the gov- 
ernment is seeking to enforce a contractual commitment re- 
garding property it owns. 

ARGUMENT 

SECTION 1437d(l)(6) REQUIRES THAT A PUBLIC 

HOUSING AUTHORITY BE ENTITLED UNDER ITS 
LEASES TO TERMINATE A TENANCY BASED ON THE 
ILLEGAL DRUG ACTIVITY OF HOUSEHOLD MEM- 
BERS OR GUESTS, WITHOUT REGARD TO THE TEN- 
ANT’S KNOWLEDGE OF THAT ACTIVITY 

This case turns on the meaning of 42 U.S.C. 1437d(l)(6) 
(Supp. V 1999). The fundamental principles governing the 
interpretation of that statutory provision are not in dispute. 
As the court of appeals explained, “[t]he parties agree that in 
interpreting § 1437d(l)(6), [the court must] apply the frame- 
work set forth in Chevron U.S.A., Inc. v. Natural Resources 
Defense Council, Inc., 467 U.S. 837 (1984).” Pet. App. 10a 
(alternate citation omitted). Under that framework, “[i]f the 
intent of Congress is clear, that is the end of the matter; for 
the court, as well as the agency, must give effect to the un- 
ambiguously expressed intent of Congress.” Chevron, 467 
U.S. at 842-843. On the other hand, if Congress has not di- 
rectly addressed the issue or has done so ambiguously, the 

18 

court may not “simply impose its own construction on the 
statute,” but rather must determine whether the agency’s 
construction is based on a permissible interpretation of the 
statute. Id. at 843. 

Under Chevron, HUD’s longstanding interpretation of 
Section 1437d(l)(6)—which requires that public housing 
leases provide for termination of the tenancy in the event of 
drug-related activities of a household member or guest, 
without regard to the tenant’s knowledge of those activi- 
ties—is clearly valid. That interpretation ensures that local 
public housing officials have the authority they need to as- 
sure the families who make their homes in public housing 
that they will have a safe, drug-free environment. 

I. SECTION 1437d(l)(6) BY ITS TERMS REQUIRES 

THAT PUBLIC HOUSING AUTHORITIES HAVE 
DISCRETION TO TERMINATE TENANCY RE- 
GARDLESS OF THE TENANT’S KNOWLEDGE OF 
THE DRUG-RELATED CRIMINAL ACTIVITY 

“[T]he starting point in a case involving construction * * * 
of a statute[] is the language of the statute itself.” United 
States Dep’t of Treasury v. Fabe, 508 U.S. 491, 500 (1993). 
“The plainness or ambiguity of statutory language is deter- 
mined by reference to the language itself, the specific con- 
text in which that language is used, and the broader context 
of the statute as a whole.” Robinson v. Shell Oil Co., 519 
U.S. 337, 341 (1997). Here, the lease clause required under 
the plain language of Section 1437d(l)(6) is violated when a 
household member engages in drug-related criminal activity, 
regardless of whether it can be shown that the tenant knew 
or had reason to know of that activity. Other provisions of 
the Housing Act confirm that reading. When the statute is 

19 

read as a whole, that is the only conclusion that makes 
sense.6 

A. The Plain Language Of Section 1437d(l)(6) Precludes A 

Knowledge Requirement As A Prerequisite For Evic- 
tion 

In an effort to combat what it found to be a “reign of ter- 
ror” imposed by drug dealers on public housing tenants, 42 
U.S.C. 11901(3), Congress required in Section 1437d(l)(6) 
that public housing leases must provide that “any drug-re- 
lated criminal activity on or off [the public-housing project’s] 
premises, engaged in by a public housing tenant, any mem- 
ber of the tenant’s household, or any guest or other person 
under the tenant’s control, shall be cause for termination of 
tenancy.” 42 U.S.C. 1437d(l)(6) (Supp. V 1999). Under that 
explicit language, there is “cause for termination of tenancy” 
whenever “any drug-related criminal activity” has been 
committed by the tenant, “any member of the tenant’s 
household, or any guest or other person under the tenant’s 
control.” 

Even without regard to its repeated use of the term 
“any,” Section 1437d(l)(6) contains no express or implied 
qualifications. If there has been drug-related criminal activ- 
ity, and if that activity has been engaged in by a member of 
the tenant’s household, it is a ground for termination of the 
tenancy and eviction. Had Congress intended to limit that 
consequence to only some criminal drug activities (such as 
those of which the tenant had knowledge), it surely would 
have said so. As HUD explained in promulgating the gov- 

6 As noted in the petition for certiorari, most of the lower federal and 
state courts to have addressed the question have held that eviction does 
not depend on the tenant’s knowledge of the criminal activity. See Pet. 22 

n.9 (citing cases). Since that time, the Eleventh Circuit has also defini- 
tively taken that position, in direct conflict with the Ninth Circuit’s 
holding in this case. See Burton v. Tampa Hous. Auth., No. 00-13607, 
2001 WL 1379724 (11th Cir. Nov. 7, 2001). 

20 

erning regulations shortly after Section 1437d(l)(6) was en- 
acted, Congress made the determination that “[t]he tenant 
should not be excused from contractual responsibility [under 
the lease] by arguing that [the] tenant did not know, could 
not foresee, or could not control behavior by other occupants 
of the unit.” 56 Fed. Reg. 51,560, 51,567 (1991). 

The use of the term “any” confirms the unqualified nature 
of the lease clause mandated by Section 1437d(l)(6). As this 
Court has explained, “the word ‘any’ has an expansive 
meaning, that is, ‘one or some indiscriminately of whatever 
kind.’ ” United States v. Gonzales, 520 U.S. 1, 5 (1997) 
(quoting Webster’s Third New International Dictionary 97 
(1976)). Accordingly, when Congress required the lease pro- 
vision to vest PHAs with authority to terminate a tenancy 
for “any drug-related criminal activity” by one of the speci- 
fied persons (tenant, household member, etc.), it intended it 
to apply “indiscriminately” to drug-related criminal activity 
“of whatever kind.” See also United States v. Monsanto, 491 
U.S. 600, 606-609 (1989). Congress’s use of the term “any,” 
and the otherwise unqualified text, thus renders the lease 
clause “comprehensive,” “broad and unambiguous,” id at 609, 
and precludes limiting the ground for eviction to only a sub- 
category of instances of drug-related criminal activities—i.e., 
those that the tenant knew about, participated in, approved, 
or foresaw. See Burton, 2001 WL 1379724, at *2 (“HUD’s 
interpretation is the only permissible construction of the 
statute.”). 

B. Section 1437d(l)(6) Does Not Require A Public Hous- 
ing Authority To Seek Eviction For A Lease Violation, 

But Instead Vests It With Discretion Whether To In- 
voke The Lease Termination Clause 

Section 1437d(l)(6) requires the lease provision to state 
that the specified drug activity is “cause for termination of 
tenancy,” not that the public housing authority must invoke 
that clause and terminate the tenancy in all cases—or in any 

21 

particular case—of drug-related criminal activity. HUD has 
consistently made clear that “[t]he fact that statutorily re- 
quired lease provisions would allow PHAs to terminate ten- 
ancy under certain circumstances does not mean that PHAs 
are required to do so in each case where the lease would al- 
low it.” 66 Fed. Reg. 28,776, 28,782 (May 24, 2001). See also 
id. at 28,783 (PHAs “are neither required by law nor encour- 
aged by HUD to terminate leaseholds in every circumstance 
in which the lease would give the PHA grounds to do so.”); 
56 Fed. Reg. at 51,567. 

HUD regulations provide that, in deciding whether to 
terminate the tenancy, “the PHA may consider all circum- 
stances relevant to a particular case such as the seriousness 
of the offending action, the extent of participation by the 
leaseholder in the offending action, the effects that the evic- 
tion would have on family members not involved in the of- 
fending activity and the extent to which the leaseholder has 
shown personal responsibility and has taken all reasonable 
steps to prevent or mitigate the offending action.” 66 Fed. 
Reg. at 28,803 (to be codified at 24 C.F.R. 966.4(l)(5)(vii)(B)); 
accord 24 C.F.R. 966.4(l)(5)(i) (2000) (similar, now super- 
seded); see also Burton, 2001 WL 1379724, at *6 (Section 
1437d(l)(6) “does not mandate eviction for all tenants whose 
household members or guests engage in drug-related crimi- 
nal activity, but rather it permits their eviction, granting 
discretion to the PHAs to make this determination on a case- 
by-case basis.”).7 

7 In the preamble to its recently promulgated regulations, HUD noted 
the distinction between “specifically authorized actions” and “mandatory 
actions.” 66 Fed. Reg. at 28,777. HUD explained that “[c]urrent illegal 
use of a drug” and “[p]ast eviction for drug-related criminal activity” are 
“the subject of * * * mandatory prohibition[s] on admission” to public 
housing, while “[c]ertain other drug-related criminal activity is required 
by statute to be included in the lease as a basis for eviction.” 
Ibid. 

(emphasis added). HUD’s reference to “[c]urrent illegal use of a drug” 
refers not to Section 1437d(l)(6), but to 42 U.S.C. 13661(b)(1)(A) (Supp. V 

22 

In this very case, OHA voluntarily ceased its effort to 
evict tenant Rucker, presumably based on a consideration of 
the factors enumerated by HUD. See p. 8, supra. As Judge 
Sneed recognized, leaving discretion with the public housing 
authority makes sense, both because it gives tenants an 
incentive “to accept remedial actions short of eviction,” Pet. 
App. 61a, and because the local public housing authority is in 
the best position to assess the seriousness of a drug problem 
at a given housing complex and the contribution to that 
problem made by a particular tenant, other household 
members, and other persons connected with the unit. 

C. The Court Of Appeals Erred In Finding Ambiguity In 

The Text Of Section 1437d(l)(6) That Would Permit An 

“Unknowing Tenant” Defense 

The court of appeals purported to find several ambiguities 
in the language of Section 1437d(l)(6). That language, how- 
ever, is not ambiguous with respect to whether there is an 
“unknowing tenant” defense under Section 1437d(l)(6). 

1. The court of appeals thought that Section 1437d(l)(6) is 
ambiguous because it “does not expressly address the level 

1999), which was enacted in 1998. See Quality Housing and Work 
Responsibility Act of 1998, Pub. L. No. 105-276, § 576, 112 Stat. 2639. That 
provision requires HUD to “establish standards that prohibit admission 
to” public housing or federally assisted housing “for any household with a 
member * * * who the public housing agency or owner determines is 
illegally using a controlled substance.” 42 U.S.C. 13661(b)(1)(A) (Supp. V 
1999). A related provision, 42 U.S.C. 13662(a) (Supp. V 1999), requires the 
use of lease provisions that “allow the agency or owner [of federally 
assisted housing] * * * to terminate the tenancy or assistance for any 
household with a member * * * who the public housing agency * * * 
determines is illegally using a controlled substance.” By requiring the use 
of lease provisions that “allow” the termination of the tenancy, Section 
13662(a), like Section 1437d(l)(6), vests the landlord with discretion 
whether to seek eviction in each case. Section 13662(a) differs from 
Section 1437d(l)(6) in that it applies only to illegal drug users, while 
Section 1437d(l)(6) applies also to illegal drug dealers. 

23 

of personal knowledge or fault that is required for eviction.” 
Pet. App. 12a. It is true that Section 1437d(l)(6) does not 
expressly address the tenant’s level of personal knowledge, 
in the sense that it does not expressly condition eviction on 
any state of personal knowledge. That does not, however, 
lead to the conclusion that the language of Section 
1437d(l)(6) is ambiguous on the point. Because Section 
1437d(l)(6) applies without qualification in the event of “any 
drug-related criminal activity” by “any member of the ten- 
ant’s household” or “any guest or other person under the 
tenant’s control,” the text of Section 1437d(l)(6) affirmatively 
precludes any such limitation. The fact that the mandatory 
lease clause reaches drug-related activity without regard to 
the tenant’s knowledge, “even though it contains no express 
provisions to that effect, ‘does not demonstrate ambiguity’ in 
the statute: ‘It demonstrates breadth.’ ” Monsanto, 491 U.S. 
at 609 (quoting Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 
499 (1985)). 

The lease clause required by Section 1437d(l)(6) does not 
differ in this respect from clauses in many leases—or from 
other clauses in the very public housing leases at issue in this 
case. Leases frequently include provisions in which the ten- 
ant warrants to the landlord that certain conditions will be 
satisfied—whether regarding the tenant’s behavior, the be- 
havior of the tenant’s visitors, the condition of the premises, 
or other factors. See, e.g., Minneapolis Public Hous. Auth. 

v. Lor, 591 N.W.2d 700, 704 (Minn. 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.”) (footnotes omitted); 
Shepard v. Dye, 242 P. 381 (Wash. 1926). 

As with other contractual warranties, whether such 
clauses are breached does not typically turn on the reasons 
for the breach or the presence or absence of a particular 
mental state on the tenant’s part. Indeed, the leases at issue 
in this case provide, for example, that the “[t]enant shall pay 

24 

such charges for the repair of those damages which are be- 
yond normal wear and tear to the dwelling unit, develop- 
ment buildings, facilities or common areas and for the clean- 
ing and extermination made necessary by the action(s) or 
neglect of the Tenant, members of the household or guests.” 
J.A. 52.8 

See also J.A. 58-59, para. 9(k) (similar). The leases 
also provide that “Tenant is * * * responsible for causing 
members of the household and guests to comply with” a 
number of requirements, J.A. 57, para. 9, including “[t]o keep 
[the] dwelling unit and such other areas as may be assigned 
to the tenant * * * in a clean and safe condition,” J.A. 58, 
para. 9(g), and “[t]o refrain from scattering rubbish, de- 
stroying, defacing, damaging or removing any part of the 
dwelling unit or development,” J.A. 58, para. 9(j). None of 
those clauses requires a showing of knowledge or any other 
mental state on the part of the tenant. The lease clause re- 
quired by Section 1437d(l)(6) operates in the same manner. 

2. The court of appeals also found that Section 1437d(l)(6) 
“does not * * * make it clear who can be evicted”—“the 
offending party only, or all persons on the lease.” Pet. App. 
12a. That is incorrect. The term “termination of tenancy” 
means termination of the leasehold interest. A tenancy is 
“[t]he possession or occupancy of land by right or title, esp. 
under a lease.” Black’s Law Dictionary 1477 (7th ed. 1999) 
(emphasis added).9 To terminate a tenancy is to terminate 
the lease. 

The Ninth Circuit’s statutory analysis is mistaken for an- 
other reason. Even if the words “tenant” and “tenancy” 
could somehow be considered ambiguous standing alone, the 

8 The lease of tenant Rucker is included in the Joint Appendix. The 
leases of the other tenants are in relevant respects identical. 

9 A “tenancy” may usefully be contrasted with an “occupancy,” which 
is defined as “[t]he act, state or condition of holding, possessing, or re- 
siding in or on something.” Black’s Law Dictionary 1477 (7th ed. 1999) 
(emphasis added). 

25 

Ninth Circuit failed to accord due deference to HUD’s regu- 
latory definition of those terms. HUD’s regulations make 
clear that “tenant” and “tenancy” mean “leaseholder” and 
“leasehold,” and that a “tenancy” is held only by the person 
“who executed the lease with the PHA as lessee of the 
dwelling unit.” See 24 C.F.R. 966.53(f) (1991). Continuously 
since 1975, HUD regulations have used the terms “tenant,” 
“member of the tenant’s household,” “guest,” and “other 
persons under the tenant’s control” to distinguish between 
the leaseholder/tenant, on the one hand, and authorized oc- 
cupants listed on the lease or nonoccupants for whom the 
leaseholder is legally responsible, on the other. See 40 Fed. 
Reg. 33,402 (1975), promulgating 24 C.F.R. 866.4(a)(1)-(2), 
866.4(f)(9)-(11); 24 C.F.R. 966.4(a)(1)-(2), 966.4(f)(9)-(11) 
(1987); 24 C.F.R. 966.4(a)(1)-(2), 966.4(f)(9)-(11) (2000). See 
also 53 Fed. Reg. 33,245-33,246 (1988). The leases in this 
case use the term “tenant” in exactly that sense to refer to 
the leaseholder. See J.A. 49. The HUD regulations inter- 
preting “tenancy” to mean “leasehold” are entitled to Chev- 
ron deference. 

In addition, the Ninth Circuit’s suggestion that Section 
1437d(l)(6) leaves open the question of who may be evicted 
would make no sense whatever with respect to at least two 
of the four categories of enumerated persons—a “guest or 
other person under the tenant’s control.” A mere “guest” or 
“other person” has no “tenancy” in any conceivable sense of 
those words. Thus, if Section 1437d(l)(6) permitted “termi- 
nation of tenancy” only of the “offending party,” the statute 
would have no meaning at all when that “offending party” is 
a “guest or other person under the tenant’s control.” See, 

e.g., Bailey v. United States, 516 U.S. 137, 145 (1995) (a stat- 
ute is read “with the assumption that Congress intended 
each of its terms to have meaning”). In short, “termination 
of tenancy” means termination of the leasehold interest, not 
simply a request that the offending party leave the premises. 

26 

3. Finally, the court of appeals suggested that the phrase 
“under the tenant’s control” in Section 1437d(l)(6) could 
mean that the tenant must “exercise * * * a restraining or 
directing influence over” the conduct of the person who en- 
gages in the drug-related activity. Pet. App. 12a. Thus, the 
court continued, it might be “implicit from the use of this 
wording that Congress intended tenants to be held account- 
able for the actions of those persons who are subject to their 
control” only in that sense and not where, “for lack of knowl- 
edge or other reason,” the tenant “could not realistically be 
expected to exercise control over the conduct of another.” 
Id. at 12a-13a. Indeed, the court ultimately adopted that 
reading of the statute. See id. at 26a. The court’s reading, 
however, is inconsistent with the text of Section 1437d(l)(6) 
for two reasons. 

First, the phrase “under the tenant’s control” does not ap- 
ply in this case, which concerns drug-related criminal activi- 
ties by members of the tenant’s household. Section 
1437d(l)(6) authorizes termination of the tenancy in the 
event of drug-related criminal activity “by a public housing 
tenant, any member of the tenant’s household, or any guest 
or other person under the tenant’s control” (emphasis 
added). The use of the disjunctive “or” before “guest” and 
again before “other person” means that the phrase “under 
the tenant’s control” modifies only “other person” or, at 
most, “guest or other person.” It cannot be read grammati- 
cally to modify each item on the list that precedes it. Cf. 
Arcadia v. Ohio Power Co., 498 U.S. 73, 79 (1990). In par- 
ticular, “under the tenant’s control” cannot be read to modify 
“household member.” 

Second, even if Section 1437d(l)(6) authorized termination 
of the tenancy only for drug-related criminal activity by 
“household members” who are “under the tenant’s control,” 
a “household member” by definition satisfies that condition. 
As HUD explained when it promulgated its recent amend- 
ments to the governing regulations, “the question is one of 

27 

legal control; by ‘control,’ the statute means control in the 
sense that the tenant has permitted access to the premises.” 
66 Fed. Reg. at 28,781. HUD has been consistent in that 
construction of “under the tenant’s control” since the time it 
issued its first regulations implementing Section 1437d(l)(6) 
in 1991. See 56 Fed. Reg. at 51,562 (“The question * * * is 
whether the person in question was in the premises with 
consent of a household member at the time of the criminal 
activity in question.”); cf. Udall v. Tallman, 380 U.S. 1, 16 
(1965) (deference particularly appropriate for contempora- 
neous interpretation of statute by agency entrusted with its 
implementation). Thus, “household members” and “guests” 
are necessarily “under the tenant’s control,” within the 
meaning of Section 1437d(l)(6), because they have the per- 
mission or consent of the tenant (or a household member) to 
be present on public housing property. Housing Auth. of 
New Orleans v. Green, 657 So. 2d 552, 554-555 (Ct. App.) 
(“control” under Section 1437d(l)(6) is a matter of “access to 
the premises”), writ denied, 661 So. 2d 1355 (La. 1995), cert. 
denied, 517 U.S. 1169 (1996). The category of “other persons 
under the tenant’s control” simply generalizes from “house- 
hold members” and “guests” (who by definition are on public 
housing property premises with the tenant’s or household 
member’s consent) to others who are similarly present with 
the same consent. 

II. OTHER PRINCIPLES OF STATUTORY CON- 
STRUCTION CONFIRM THAT SECTION 
1437d(l)(6) APPLIES WITHOUT REGARD TO 
THE TENANT’S KNOWLEDGE 

A. Related Statutory Provisions Confirm That Section 

1437d(l)(6) Authorizes Termination Of The Ten- 
ancy Regardless Of The Tenant’s Knowledge 

Related statutory provisions confirm that Section 
1437d(l)(6) authorizes termination of the tenancy without 
regard to the tenant’s knowledge of the drug-related crimi- 

28 

nal activity. The provisions cited by the court of appeals 
(Pet. App. 13a-19a) in support of an “unknowing tenant” ex- 
ception in fact demonstrate that Congress knew how to in- 
clude language that expressly provides tenants with state- 
of-mind and other defenses when it believed that such de- 
fenses were appropriate. They therefore buttress the con- 
clusion that Congress’s decision to enact Section 1437d(l)(6) 
without such defenses was deliberate and should be honored. 

1. Federal law authorizes civil forfeiture of “real prop- 
erty, including any right, title, and interest (including any 
leasehold interest) * * *, which is used * * * in any manner 
or part, to commit” a controlled substance offense. 21 U.S.C. 
881(a)(7) (emphasis added). Federal law also, however, pro- 
vides for a so-called “innocent owner” defense, 18 U.S.C. 
983(d)(1) (2000), for “an owner who * * * did not know 
of the conduct giving rise to forfeiture.” 18 U.S.C. 
983(d)(2)(A)(i). 

10 Congress easily could have included a 
similar defense in Section 1437d(l)(6) in 1988. Indeed, in the 
same Act in which Congress originally enacted Section 
1437d(l)(6), it also amended the pre-existing civil forfeiture 
provision in 21 U.S.C. 881(a)(7) (Supp. V 1987)—which al- 
ready contained an “innocent owner” defense—to include the 
explicit reference to “any leasehold interest” among 
forfeitable property. Anti-Drug Abuse Act of 1988, Pub. L. 
No. 100-690, §§ 5101, 5105, 102 Stat. 4300, 4301. Congress 
therefore had both civil forfeiture and termination of 
tenancy for drug-related criminal activity in its sights when 
it enacted Section 1437d(l)(6). Yet it enacted Section 

10 At the time this case arose, the “innocent owner” defense was 
codified as part of 21 U.S.C. 881(a)(7) (1994), which provided that “no 
property shall be forfeited * * * 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.” That provision was replaced in 2000 
by the general “innocent owner” defense to civil forfeiture in 18 U.S.C. 
983(d), discussed in the text. See Civil Asset Forfeiture Reform Act of 
2000, Pub. L. No. 106-185, §§ 2(a), 2(c), 114 Stat. 202, 210. 

29 

1437d(l)(6) without including anything comparable to the 
“innocent owner” defense that was in the civil forfeiture 
statute. See Russello v. United States, 464 U.S. 16, 23 
(1983). 

The Ninth Circuit expressed the view that the purpose of 
eviction from public housing and forfeiture of a lease “is the 
same”—“the tenant loses the leasehold interest”—and that 
Congress therefore must have meant for there to be an “in- 
nocent tenant” defense under Section 1437d(l)(6). Pet. App. 
17a. That conclusion is mistaken. 

As an initial matter, the inclusion of an express “innocent 
owner” defense in the civil forfeiture statute, which was en- 
acted in 1984, see Act of Oct. 12, 1984, Pub. L. No. 98-473, 
Tit. II, § 306(a), 98 Stat. 2050, could not possibly establish 
what Congress intended four years later when it enacted the 
very different language of Section 1437d(l)(6) that contains 
no comparable provision for “innocent tenants.” In any 
event, Section 1437d(l)(6) and civil forfeiture are very dif- 
ferent mechanisms, such that Congress’s decision to include 
an “innocent owner” defense in the latter but no “unknowing 
tenant” or “innocent tenant” defense in the former is entirely 
understandable. In seeking forfeiture of property, the 
government is acting solely in a law enforcement capacity, 
while in terminating a lease and seeking eviction of a tenant, 
the government is exercising its proprietary and contractual 
rights. Civil forfeiture is a mechanism by which the 
government may seize a private property interest to which it 
previously had no relationship at all; termination of a ten- 
ancy and eviction under Section 1437d(l)(6) is a mechanism 
by which the government takes back possession of property 
that it already owns when the leaseholder, by violating a 
term of the lease, has lost the contractual right to continued 
possession. And of course, 21 U.S.C. 881(a)(7) provides for 
forfeiture of a leasehold interest or other property to the 
United States, while Section 1437d(l)(6) provides for ter- 

30 

mination of the tenancy and reversion of possession to the 
local public housing authority. 

Because of those differences, as well as the greater proce- 
dural protections associated with eviction, see Pet. App. 43a- 
44a (Sneed, J., dissenting), Congress reasonably determined 
that an “innocent owner” defense to civil forfeiture was ap- 
propriate, while no comparable defense is appropriate in 
terminating a tenancy. Section 1437d(l)(6) requires the ten- 
ant to warrant to the government when entering into the 
lease that neither the tenant, members of the tenant’s 
household, guests, or other persons under the tenant’s con- 
trol will engage in drug-related activity. See Burton, 2001 
WL 1379724, at *4-*5. What is important to the government 
(and to other tenants) about that warranty is that the tenant 
makes good on his promise to prevent the unit from being a 
haven for drug users and dealers, not that the tenant act 
with (or without) any particular knowledge or state of mind. 

2. Two other provisions that were enacted at and around 
the time Congress enacted Section 1437d(l)(6) in 1988 and 
reworded it in 1990 further demonstrate that Congress knew 
how to mandate that consideration be given to a tenant’s 
lack of knowledge of drug-related activity when it found it 
appropriate to do so. In both cases, Congress defined quite 
precisely the category of persons that were to be protected 
and the type of protection to be afforded. Like the forfeiture 
statute, these two provisions refute the court of appeals’ no- 
tion that Congress intended to mandate an undefined “un- 
knowing tenant” defense in Section 1437d(l)(6) entirely by 
implication. 

a. Section 1437d(l)(6) was originally enacted in October 
1988 as part of the Anti-Drug Abuse Act of 1988, Pub. L. No. 
100-690, § 5101, 102 Stat. 4300. Eight months later, Con- 
gress included in a supplemental appropriations act a one- 
year provision (which has not since been renewed) that pre- 
vented a PHA from evicting, as a result of any person’s 
“drug-related criminal activity * * *[,] any other household 

31 

member who [was] not involved in such activity,” unless the 
latter was provided with an administrative grievance hear- 
ing prior to eviction. Dire Emergency Supplemental Appro- 
priations and Transfers, Urgent Supplementals, and Cor- 
recting Enrollment Errors Act of 1989, Pub. L. No. 101-45, 
§ 404, 103 Stat. 129. That provision accorded certain protec- 
tion (though not a substantive defense to eviction) to tenants 
who were not personally involved in drug-related activity, so 
that they would not be summarily removed from the prem- 
ises. In contrast to that one-year provision, Section 
1437d(l)(6), which governs on a permanent basis, contains no 
similar language conferring any rights on such tenants. 

b. Another provision, enacted in 1990 as Section 501 of 
the Cranston-Gonzalez Act, Pub. L. No. 101-625, 104 Stat. 
4079, and codified at 42 U.S.C. 1437d(c)(4)(A)(iii)(1994), ad- 
dressed priorities for admission of individuals to PHA 
housing. It directed that any individual or family evicted 
from public housing “by reason of drug-related criminal 
activity” must be denied a preference for readmission for 
three years, but created an exception that allowed a PHA to 
waive that restriction for any member of a family of an 
individual who was barred by the principal clause if the PHA 
determined that the family member “clearly did not 
participate in and had no knowledge of such criminal 
activity.” 

11 In enacting Section 501, Congress again speci- 
fically identified the special consideration it intended to 
allow in connection with drug-related criminal activity—i.e., 
a waiver of the bar to readmission following eviction—and 
precisely defined the class of persons it intended to qualify 
for that special consideration. The court of appeals erred in 

11 The provision quoted in the text was replaced in 1999 by 42 U.S.C. 
13661(b)(2)(A) (Supp. V 1999), which, inter alia, generally “prohibit[s] 

* * * admission to federally assisted housing for any household with a 
member * * * who * * * is illegally using a controlled substance.” See 
note 7, supra. 

32 

attempting to read a similar “unknowing tenant” exception 
into the unqualified language of Section 1437d(l)(6), which 
was revised and reenacted in Section 504 of the Cranston- 
Gonzalez Act and which governs the eviction (not subse- 
quent readmission) of persons because of drug-related activi- 
ties. 

12 Indeed, Section 501 itself confirms that persons who 
did not participate in and had no knowledge of the criminal 
activity are subject to eviction. 

3. The court of appeals believed that two other provi- 
sions of Section 1437d(l) support its view that an unknowing 
tenant cannot be evicted under Section 1437d(l)(6). Subsec- 
tions (2) and (5) of Section 1437d(l) provide that PHAs “shall 
utilize leases which * * * do not contain unreasonable 
terms and conditions” and “which * * * require that the 
public housing agency may not terminate the tenancy except 
for serious or repeated violation of the terms or conditions of 
the lease or for other good cause.” 42 U.S.C. 1437d(l)(2) and 
(5). The court of appeals stated that “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.” Pet. App. 13a-14a. The court recognized that 
the congressional “goal of providing safe and drug-free 
public housing is well served 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,” but concluded that that goal would not be served 
by terminating the tenancy of tenants “who ha[ve] already 

12 The Ninth Circuit was “hesitant” even to address the significance of 
Section 501 because it is no longer part of the Act. Pet. App. 19a. The 
significance of the provision, however, lies not in its current status, but 
rather in the fact that, because it was enacted in the very same Act as 
Section 1437d(l)(6), it demonstrates the error in construing the very 
different and unqualified language of Section 1437d(l)(6) to contain an 
entirely unexpressed unknowing tenant defense. 

33 

taken all reasonable steps to prevent third-party drug 
activity.” Id. at 14a. 

The court of appeals’ conclusion that subsections (2) and 
(5) of Section 1437d(l) impose substantive limits on the scope 
of subsection (6) is wrong. Subsection (6) has independent 
force under Section 1437d(l)(6), and it expressly provides, 
without qualification, that drug-related criminal activity by a 
household member or other specified person is “cause” for 
termination of the tenancy. But even reading the three sub- 
sections together, it is evident that, by requiring that a 
specified term concerning termination of the tenancy for 
drug-related activity be placed in a lease, subsection (6) em- 
bodies Congress’s legislative determination that the re- 
quired term is “reasonable” for purposes of subsection (2) 
and that violation of that term constitutes “good cause” for 
termination of the tenancy under subsection (5). Indeed, 
subsection (6) expressly states that a violation of its terms is 
“cause” for termination. As HUD explained in 1991, “Con- 
gress specified that these types of criminal activity by 
household members are grounds for termination of tenancy 
(without the need for a separate inquiry as to whether such 
criminal activity constitutes serious or repeated lease viola- 
tion or other good cause to evict).” 56 Fed. Reg. at 51,567. 
There is no basis for courts to second-guess that quite spe- 
cific congressional judgment. 

Furthermore, if there were any tension between subsec- 
tions (2) and (5) on the one hand and subsection (6) on the 
other (but see pp. 34-37, infra, discussing subsection (6) as a 
reasonable response to the crisis caused by drug criminals in 
public housing), it must be resolved in favor of subsection (6). 
Subsections (2) and (5) address the general run of circum- 
stances in which a public housing authority may evict a ten- 
ant. The more specific terms of subsection (6) address the 
more specific (and especially serious) situation involving 
drug-related criminal activity. “[I]t is a commonplace of 
statutory construction that the specific governs the general.” 

34 

Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 
(1992); see also Edmond v. United States, 520 U.S. 651, 657 
(1997); Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 
437, 445 (1987). Accordingly, subsection (6) should not be 
artificially limited, even if a court were to perceive it to be in 
some tension with the court’s own view of what would be 
“reasonable” and “good cause” under subsections (2) and (5) 
as a general matter. 

B. Construing Section 1437d(l)(6) To Authorize Termina- 
tion Of The Tenancy Without Regard To The Tenant’s 

Knowledge Substantially Advances Congress’s Declared 

Policy Of Eliminating Drug Criminals From Public 

Housing 

Unlike the construction adopted by the court of appeals, 
construing Section 1437d(l)(6) in accordance with its terms 
to permit eviction without regard to the state of mind of the 
tenant substantially advances Congress’s declared goal of 
ridding public housing of drug criminals. Section 1437d(l)(6) 
grew out of a crisis in public housing, amply documented in 
congressional hearing testimony. See pp. 37-40, infra. When 
it enacted Section 1437d(l)(6), Congress made specific find- 
ings that “public and other federally assisted low-income 
housing in many areas suffers from rampant drug-related or 
violent crime,” that “drug dealers are increasingly imposing 
a reign of terror on * * * low-income housing tenants,” and 
that “the increase in drug-related and violent crime not only 
leads to murders, muggings, and other forms of violence 
against tenants, but also to a deterioration of the physical 
environment that requires substantial government expendi- 
tures.” 42 U.S.C. 11901 (1994 & Supp. V 1999). Congress’s 
response to the drug-related “reign of terror” in public 
housing projects was to arm PHAs with greater authority to 
remove those tenants who it believed should be held ac- 
countable for the problem. That response directly addresses 

35 

the problem Congress identified, in at least four important 
ways: 

First, “if household member criminal activity is ground for 
termination, then the tenant has reason to try to control or 
prevent the activity.” 56 Fed. Reg. at 51,567. Imposing that 
kind of legal responsibility on a tenant regardless of the ten- 
ant’s knowledge or ability to restrain the offender in a par- 
ticular instance ensures that the tenant has the maximum 
incentive to find out whether household members or guests 
are engaging in drug-relating criminal activity, to warn them 
of the serious consequences of their activity, and to take 
whatever other steps are necessary to protect the security of 
the housing project. In other areas of the law, it is well-set- 
tled that “strict liability” of that sort serves the function of 
maximizing incentives to learn of dangers and avoid harmful 
conduct. See, e.g., Pacific Mut. Life Ins. Co. v. Haslip, 499 
U.S. 1, 14 (1991) (“Imposing liability without independent 
fault deters fraud more than a less stringent rule. It there- 
fore rationally advances the [government’s] goal.”); United 
States v. Park, 421 U.S. 658, 670 (1975). Here, by giving 
greater incentives to a tenant whose knowledge or acquies- 
cence in the drug-related criminal activity the PHA might 
later be unable to prove in court, Section 1437d(l)(6) helps 
rid public housing projects of the drug-related activities that 
deprive other residents of the safety and security to which 
they are entitled. By contrast, adding a knowledge require- 
ment to Section 1437d(l)(6) would create a perverse incen- 
tive for tenants to remain ignorant of dangerous behavior by 
their household members and guests. 

Second, a requirement that termination of the tenancy and 
eviction be limited to cases in which the tenant’s knowledge 
could be demonstrated would pose enormous enforcement 
difficulties, which likely would be sufficient to render any 
such provision of very limited value in restoring peace and 
security to public housing projects. Aside from the rare case 
in which the tenant is caught in the immediate presence of a 

36 

household member or guest using or trafficking in drugs, a 
tenant threatened with eviction is likely to deny any knowl- 
edge of or ability to control drug-related criminal activity by 
others. Moreover, the household member or guest engaged 
in the drug-related activity is likely (if he does not invoke his 
Fifth Amendment privilege) to confirm the tenant’s denials. 
See 56 Fed. Reg. at 51,567 (“[I]n practice it will be extremely 
difficult for the PHA to show that the tenant knew, could 
have foreseen, could have prevented, or failed to take all 
reasonable measures to prevent crime by a household mem- 
ber.”); Burton, 2001 WL 1379724, at *6. Proving the knowl- 
edge of those who directly participate in criminal activity is 
difficult even for prosecutors who are armed with standard 
prosecutorial tools: the grand jury’s subpoena power, the 
ability to induce co-conspirators to cooperate, and even the 
ability to conduct wiretaps and use other similar investiga- 
tive techniques when appropriate. Public housing authori- 
ties have none of those tools. A rule under which eviction is 
possible only if the PHA can rebut the tenant’s likely denials 
of knowledge would leave the PHA with insufficient ability 
to eliminate drug criminals—and those who harbor 
them—from the project. 

Third, household-wide responsibility for drug-related 
criminal activity serves other worthwhile objectives. It has 
a significant general deterrent effect on the drug-related 
criminal conduct of other persons in public housing, when 
they become aware that their conduct may have adverse im- 
pacts on their entire household. Moreover, as Judge Sneed 
explained, if a PHA has the power to terminate a tenancy, it 
has the bargaining power to obtain an agreement by the ten- 
ant to bar the individual engaged in the drug-related crimi- 
nal activity from the premises when the PHA and lease- 
holder agree that that is the optimal result. See also 56 Fed. 
Reg. at 51,567 (“If a tenant cannot control criminal activity 
by a household member, the tenant can request that the 
PHA remove the person from the lease as an authorized unit 

37 

occupant, and may seek to bar access by that person to the 
unit.”). 

Fourth, even if a tenant is genuinely unaware of the 
household member’s drug-related criminal activity, termina- 
tion of the tenancy may nonetheless be an effective (even if 
sometimes harsh) measure. Whether or not the tenant had 
knowledge of or acquiesced in the drug-related activity, the 
presence on public housing premises of household members 
or guests who engage in such conduct poses a threat to the 
tenant’s neighbors—who are the truly “innocent ten- 
ants”—and to the general peace and security of the project. 
As HUD has noted, “a family which does not or cannot con- 
trol drug crime * * * is a threat to other residents and the 
project.” 56 Fed. Reg. at 51,567. The demand for public 
housing units regularly far outstrips the supply. In Section 
1437d(l)(6), Congress reasonably determined that this scarce 
public resource should be allocated to individuals whose 
household members and guests do not pose a threat to their 
neighbors, rather than to those whose household members 
and guests, with or without the tenant’s knowledge, threaten 
their security. 

C. The Legislative History Supports HUD’s Reading Of 

Section 1437d(l)(6) 

Where the language of the statute is plain and unambigu- 
ous on its face, as it is here, resort to legislative history to 
contravene that language is inappropriate. See, e.g., Gon- 
zales, 520 U.S. at 6. An examination of the legislative his- 
tory of Section 1437d(l)(6), however, in fact further confirms 
its meaning. Since its enactment in 1988, Section 1437d(l)(6) 
has been amended twice—in 1990 and 1996. Both times, 
Congress was on notice of the application of Section 
1437d(l)(6) to tenants without proof of knowledge or other 
independent fault, and after 1991 it was on notice both of 
HUD’s clear administrative construction of Section 
1437d(l)(6) and of judicial decisions agreeing with HUD’s 

38 

construction. Congress’s failure to alter the basic, non- 
knowledge-based text of the provision in these circum- 
stances reinforces HUD’s interpretation of the provision. 

1. As originally enacted in 1988, Section 1437d(l)(6) ap- 
plied to “criminal activity, including drug-related criminal 
activity, on or near public housing premises,” and it provided 
that “such criminal activity shall be cause for termination of 
tenancy.” See p. 4, supra. It thus authorized termination of 
the tenancy without any suggestion that the tenant’s knowl- 
edge was relevant—not only for “drug-related criminal ac- 
tivity”—but for “criminal activity” in general. 

As a section-by-section analysis of the Anti-Drug Abuse 
Act introduced by its sponsor in the Senate explained, Sec- 
tion 1437d(l)(6) “codifie[d] current HUD guidelines granting 
public housing agencies authority to evict tenants if they, 
their families, or their guests engage in drug-related crimi- 
nal activity.” 134 Cong. Rec. 32,692, 33,186 (1988). The 
“guidelines” mentioned were HUD regulations that had been 
promulgated on August 30, 1988, as part of an extensive re- 
vision of HUD rules. 

13 Section 1437d(l)(6) differed from the 

13 See 53 Fed. Reg. 33,216, 33,306 (1988) (“The lease shall provide that 
the Tenant and other members of the Household * * * [s]hall not engage 
in criminal activity in the dwelling unit or premises, and shall prevent 
criminal activity in the unit or premises by guests, visitors, or other 
persons under control of Household members. * * * [T]he lease may 
provide that any of the following criminal activities by any Household 
member, on or off the premises, shall be a violation of the lease, or other 
good cause for termination of tenancy: (i) Any crime of physical violence 
to persons or property. (ii) Illegal use, sale or distribution of narcotics.”). 
Shortly after both Houses of Congress had passed Section 1437d(l)(6) in 
October 1988, but before the President signed it on November 18, 1988, 
see 102 Stat. 4301, the entire package of HUD regulations was the subject 
of a temporary restraining order by a district court based on claims— 
unrelated to the substantive provisions quoted above—that the grievance 
provisions of the regulations would deny tenants certain procedural due 
process rights. National Tenants Org. v. Pierce, Civ. Action No. 88-3134 
(D.D.C. Nov. 2, 1998). Section 1013 of the Stewart B. McKinney Homeless 

39 

HUD regulations in some respects, in particular by broad- 
ening the grounds for termination of the tenancy when 
guests or other non-household members were involved in 
the criminal activity. But Section 1437d(l)(6) specifically 
adopted the approach of the HUD regulations that had 
authorized housing authorities to provide that drug-related 
crimes committed “by any household member, on or off the 
premises, shall be a violation of the lease, or other good 
cause for termination of tenancy.” See note 13, supra. 

2. On July 20, 1989, a Senate Subcommittee held hear- 
ings on the drug problem in federally assisted housing. See 
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, 
101st Cong., 1st Sess. (Senate Hearing). The American 
Civil Liberties Union submitted a statement that began by 
citing the recently enacted Section 1437d(l)(6). Id. at 76 n.2. 
The statement referred to the “problem * * * caused by 
the eviction of innocent family members.” Id. at 77; see also 
id. at 86 (“First among our concerns is the plight of the 
innocent family member who might be evicted as a part of 
HUD’s anti-drug crackdown.”). The statement concluded 
that “PHAs should be restrained from imposing the sanction 
of eviction unless they can prove that a tenant had knowl- 
edge and actual control over the actions of a household 
member or third party.” Id. at 90-91. 

14 

Assistance Amendments Act of 1988, Pub. L. No. 100-628, 102 Stat. 3224, 
which was signed into law on November 7, 1988, expressly permitted the 
HUD regulations to go into effect on an interim basis but required that 
the notice-and-comment period be reopened. On January 25, 1989, the 
district court in National Tenants Organization nonetheless issued a pre- 
liminary injunction barring implementation of the HUD regulations. In 
response, HUD ultimately withdrew the regulations on February 10, 1989. 
54 Fed. Reg. 6886. 

14 A representative of the ACLU also testified, referring to “the effect 
of the accelerated eviction procedure on innocent family members, persons 

40 

In 1990, aware of the application of Section 1437d(l)(6) to 
terminate the tenancy when a household member had en- 
gaged in criminal activity without a showing of knowledge or 
fault by the tenant, Congress amended Section 1437d(l)(6). 
The bill narrowed the category of prohibited non-drug 
criminal activity for which the tenant was to be held ac- 
countable to crimes that “threaten[] the health, safety, or 
right to peaceful enjoyment of the premises by other ten- 
ants.” Cranston-Gonzalez National Affordable Housing Act, 
Pub. L. No. 101-625, § 504, 104 Stat. 4185. The bill left un- 
changed, however, the general application of Section 
1437d(l)(6) to “[a]ny” drug-related criminal activity by mem- 
bers of the tenant’s household, or guests or other persons 
under the tenant’s control. 

3. In 1991, HUD adopted regulations implementing Sec- 
tion 1437d(l)(6). The preamble to the regulations, which has 
been extensively quoted above, see pp. 6-7, supra, made 

who themselves have not engaged in any criminal related activity, * * * 
but persons who would be subject to the severe sanction of being evicted 
from their apartment because they, too, happen to be residents in a unit 
that has been targeted for eviction.” Senate Hearing 9. Other witnesses 
also testified about the policy of evicting tenants whose household 
members use drugs. See id. at 24 (“If you evict that youngster [who has 
been arrested for a drug offense], the entire family has to go out with 
them.”) (testimony of Andres Garcia); id. at 25 (“[I]f an eviction policy is 
going to work it has to include the entire family.”) (testimony of (now- 
Representative) James Moran, Mayor of Alexandria, Va.); id. at 44 (“My 
tenants are the ones that are saying throw out that family with the 18- 
year-old drug dealer.”) (testimony of Richard Bowers, Jacksonville, Fla., 
housing official); id. at 48-49 (defense of policy of evicting the tenant 
without regard to knowledge by Mayor Moran). See also Drugs in Public 
Housing: Hearing Before the Permanent Subcomm. on Investigations of 
the Senate Comm. on Governmental Affairs, 101st Cong., 1st Sess. 18 
(1989) (reference by Sen. Roth to household-wide eviction as “what the 
legislation adopted last year intended”); id. at 147, 149 (minority report 
discussing household-wide eviction policies in Omaha, Nebraska, and 
Wilmington, Delaware). 

41 

clear that HUD interpreted Section 1437d(l)(6) to permit 
termination of the tenancy regardless of the tenant’s knowl- 
edge or fault. The preamble specifically noted that com- 
menters had proposed “that the tenant should not be respon- 
sible if the criminal activity is beyond the tenant’s control, if 
the tenant did not know or have reason to foresee the crimi- 
nal conduct, if the tenant did not participate, give consent or 
approve the criminal activity, or if the tenant has done eve- 
rything ‘reasonable’ to control the criminal activity.” 56 Fed. 
Reg. at 51,566. HUD rejected those proposals, on the 
ground that “Congress specified that these types of criminal 
activity by household members are grounds for termination 
of tenancy (without the need for a separate inquiry as to 
whether such criminal activity constitutes serious or re- 
peated lease violation or other good cause for eviction).” Id. 
at 51,567. The preamble to the regulations explained in de- 
tail the rationales for Congress’s policy decision. See pp. 35- 
37, supra. 

4. In 1996, Congress once again amended Section 
1437d(l)(6). By that time, it had been five years since HUD 
had adopted its regulations. Two state appellate courts and 
the only federal court of appeals to address the issue had 
agreed with HUD’s interpretation; only a single intermedi- 
ate state appellate court had disagreed. 

15 Nonetheless, Con- 
gress expanded, rather than contracted, the grounds for 

15 See Housing Auth. of New Orleans v. Green, 657 So. 2d 552, 555 (Ct. 
App. 1995), writ denied, 661 So.2d 1355 (La.), cert. denied, 517 U.S. 1169 
(1996); City of San Francisco Hous. Auth. v. Guillory, 49 Cal. Rptr. 2d 
367, 372 (App. Dep’t Super. Ct. 1995); Chavez v. Housing Authority of El 
Paso, 973 F.2d 1245, 1248 (5th Cir. 1992) (holding in case addressing non- 
drug crime provision of Section 1437d(l)(6) that “[t]he lease makes the 
tenant subject to eviction if any household member or guest conducts 
himself or herself in a manner inconsistent with the lease.”). But see 
Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 68, 72 (N.C. Ct. App. 1995) 
(must be showing of tenant’s fault in case involving violent crime by 
household member). 

42 

termination of the tenancy, by authorizing termination 
where the drug-related criminal activity took place “on or 
off ”—rather than “on or near”—the public housing premises. 
That action is significant, because “Congress is presumed to 
be aware of an administrative or judicial interpretation of a 
statute and to adopt that interpretation when it re-enacts a 
statute without change.” Lorillard v. Pons, 434 U.S. 575, 580 
(1978); see also Lindahl v. Office of Personnel Management, 
470 U.S. 768, 782 (1985); Merrill Lynch, Pierce, Fenner & 
Smith, Inc. v. Curran, 456 U.S. 353, 381-382 (1982). 

16 

5. The court of appeals relied on two passages in the 
Senate committee report that accompanied the 1990 amend- 
ment. Neither support its interpretation. The report stated: 

The committee anticipates that each case will be judged 
on its individual merits and will require the wise exercise 
of humane judgment by the PHA and the eviction court. 
For example, eviction would not be the appropriate 
course if the tenant had no knowledge of the criminal ac- 
tivities of his/her guests or had taken reasonable steps 
under the circumstances to prevent the activity. 

S. Rep. No. 316, 101st Cong., 2d Sess. 179 (1990). The report 
also stated, in describing a parallel provision in the same bill 
concerning the Section 8 housing program, that “[t]he Com- 
mittee assumes that if the tenant had no knowledge of the 
criminal activity or took reasonable steps to prevent it, then 

16 Congress reaffirmed its support for the principle of household-wide 
responsibility in legislation passed in 1998. See note 7, supra (discussing 
42 U.S.C. 13661(b) and 42 U.S.C. 13662(a) (Supp. V 1999), which, 
respectively, bar “any household with a member * * * who * * * is 
illegally using a controlled substance” from admission to public housing, 
and authorize PHAs “to terminate the tenancy for any household with a 
member * * * who * * * is illegally using a controlled substance”). 

43 

good cause to evict the innocent family would not exist.” Id. 
at 127. 

17 

The passage in the committee report relied on by the 
court of appeals was discussing a Senate bill quite different 
from the one that was enacted. That bill would have im- 
posed a considerably stricter standard of cause for eviction 
for drug-related crimes than Section 1437d(l)(6) (or the cor- 
responding Section 8 provision, 42 U.S.C. 1437f(d)(1)(B)(iii)) 
as finally enacted. The Senate bill would have authorized 
termination of the tenancy only when the drug-related 
criminal activity “threatens the health or safety of, or right 
to quiet enjoyment of the premises by, other tenants.” 136 
Cong. Rec. 15,991, 16,012 (1990) (reproducing S. 566, 101st 
Cong., 2d Sess., §§ 521(f) and 714(a) (1990), as they passed 
the Senate). The Conference Report declined to accept that 
language from the Senate bill and instead adopted the un- 
qualified language of Section 1437d(l)(6) concerning drug- 
related criminal activity. See H.R. Conf. Rep. No. 943, 101st 
Cong., 2d Sess. 418 (1990). Accordingly, the Senate Report 
is not a useful guide to congressional intent with regard to 
the meaning of Section 1437d(l)(6) as ultimately enacted. 

Even if the Senate Report were a useful guide to congres- 
sional intent, however, the passages on which the court of 
appeals relied merely recognize that PHAs (or Section 8 
housing owners) have discretion in deciding whether, if at 
all, to evict tenants who have violated the Section 1437d(l)(6) 
lease provision, and urge the importance of a wise use of that 
discretion. See S. Rep. No. 316, supra, at 127 (quoting 54 
Fed. Reg. 15,998 (1989) (HUD statement of policy that 
decision whether to terminate tenancy under Section 

17 The Report preceded that comment with the recognition that “the 
ultimate decision to evict a family ‘remains a matter for good judgment by 
the PHA * * * based on the factual situation. The statutory policy does 
not restrict the PHA’s * * * exercise of wise and humane judgment.’ ” 
S. Rep. No. 316, supra, at 127. 

44 

1437d(l)(6) remains a matter for “wise and humane judg- 
ment” by PHA). It is significant that the Senate Report, in 
discussing the public housing provision, stated that eviction 
of a tenant who had no knowledge or control over the drug- 
related criminal activity would not be “appropriate,” not that 
it would be unauthorized or illegal. Congress’s recognition of 
the existence of such discretion confirms—rather than re- 
futes—the proposition that Section 1437d(l)(6) does not im- 
pose an absolute rule that a tenant’s lack of knowledge pre- 
cludes termination of the tenancy. Cf. 54 Fed. Reg. at 15,998 
(“On the other hand, the statute makes it clear that PHAs 
have full authority to initiate eviction for violation of the 
prohibition on criminal activity when they consider such 
action to be justified.”) (emphasis added). 

D. Construing Section 1437d(l)(6) According To Its 

Terms Does Not Lead To “Absurd Results” 

The Ninth Circuit also relied on the premise that applying 
the statute as written would lead to “absurd results,” which 
in the court’s view included eviction of tenants who in fact 
could not keep their household member from committing 
drug offenses, whose household member committed drug 
offenses at a place far removed from the public housing pro- 
ject, or whose household member committed a drug offense 
years ago. Pet. App. 21a-22a. For the reasons given above, 
see pp. 35-37, supra, Section 1437d(l)(6) embodies Congress’s 
reasonable policy judgments concerning the steps that have 
to be taken to rid public housing projects of the “reign of ter- 
ror” caused by the presence of drug criminals. 42 U.S.C. 
11901(3). 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 deter- 
rent against criminal activity.” Pet. App. 61a (Sneed, J., dis- 
senting). It therefore offers help and hope in combatting 
what Congress identified as a crisis situation, the foremost 
impact of which is on the truly innocent tenants in other 

45 

units of the same project whose households in no way con- 
tribute to the problem. The fact that the court could specu- 
late about potentially harsh results in some isolated in- 
stances in which a PHA could invoke the lease clause in no 
way suggests that Section 1437d(l)(6) would lead to such 
“absurd results” that HUD’s construction of the statute in 
accordance with its terms is impermissible. Cf. Griffin v. 
Oceanic Contractors, Inc., 458 U.S. 564, 574-576 (1982). 

It should be emphasized as well that the results about 
which the court of appeals was concerned are unlikely to oc- 
cur. A PHA would have little incentive, given its statutory 
mission, to evict a tenant who it believed is truly not culpa- 
ble—at least if it would be harsh to do so—unless it con- 
cluded in the end that that course was justified by the other 
benefits that Section 1437d(l)(6) was intended to produce for 
the security of the housing complex and its tenants gener- 
ally. 

Insofar as the court of appeals was concerned that Section 
1437d(l)(6) would authorize eviction where the drug-related 
criminal activity was undertaken far from home, it is not un- 
reasonable to believe that persons who commit drug offenses 
far from home will also commit (or have committed) similar 
offenses nearby. And insofar as the court of appeals was 
concerned that a tenancy could be terminated because of a 
drug offense committed by a household member or guest in 
the distant past, that prospect is remote. Section 1437d(l)(6), 
as construed by HUD, permits eviction only for drug-related 
criminal activity that occurs during the period that the indi- 
vidual is a household member or guest. See 56 Fed. Reg. at 
51,562 (“The question under the HUD rule is whether the 
person in question was in the premises with consent of a 
household member at the time of the criminal activity in 
question, not whether the person was a guest at some time 
in the past.”). Section 1437d(l)(6) is a reasonable, even if po- 
tentially stringent, measure intended to fulfill Congress’s 
commitment “to provide public and other federally assisted 

46 

low-income housing that is decent, safe, and free from illegal 
drugs.” 42 U.S.C. 11901(1). 

E. The Principle Of Constitutional Avoidance Has No Ap- 
plication Here Because The Meaning Of Section 

1437d(l)(6) Is Clear And That Provision Is Constitu- 
tional 

The Ninth Circuit erroneously relied on the principle of 
constitutional avoidance to reject HUD’s construction of 
Section 1437d(l)(6). The court based its conclusion on the 
proposition that “[p]enalizing conduct that involves no inten- 
tional wrongdoing by an individual can run afoul of the Due 
Process Clause,” and that “HUD’s interpretation would 
permit tenants to be deprived of their property interest 
without any relationship to individual wrongdoing.” Pet. 
App. 24a. Those principles have no application here. 

First, “the canon of constitutional avoidance has no appli- 
cation in the absence of statutory ambiguity.” United States 

v. Oakland Cannabis Buyers’ Coop., 121 S. Ct. 1711, 1719 
(2001). The text and purposes of Section 1437d(l)(6) are 
clear, and they are bolstered by the deference due to HUD’s 
administrative construction of the statute. In that situation, 
the doctrine of constitutional avoidance gives no warrant to 
alter the statute’s terms. 

Second, “[s]tatutes should be interpreted to avoid serious 
constitutional doubts, * * * not to eliminate all possible 
contentions that the statute might be unconstitutional.” 
Reno v. Flores, 507 U.S. 292, 314 n.9 (1993). Section 
1437d(l)(6) does not raise a “serious” constitutional doubt. 
Contrary to the court of appeals’ assumption, Section 
1437d(l)(6) does not impose a penalty. Rather, it prescribes 
what is essentially a contractual warranty by the tenant that 
his household will not be the source of a potential hazard (the 
commission of drug-related criminal offenses or the harbor- 
ing of persons who commit such offenses) to other tenants. 
The tenant is free to find other housing and thus not to make 

47 

that warranty. In that respect, the lease provision in this 
case is no different from numerous other ordinary lease pro- 
visions, the violation of which do not turn on a showing of 
intent or fault by the breaching party beyond the fact of the 
breach itself. This Court held in Bennis v. Michigan, 516 
U.S. 442 (1996), that a State constitutionally may forfeit an 
individual’s interest in her own property to the State with no 
showing that she has engaged in any wrongdoing, intentional 
or otherwise. It follows a fortiori that a tenancy may be 
terminated for the tenant’s failure to comply with a contrac- 
tual provision to which she agreed in her lease, even if that 
failure was not independently blameworthy. 

The court of appeals attempted to distinguish Bennis on 
the ground that the property here—unlike the automobile in 
Bennis—was not itself “used in connection with the crime.” 
Pet. App. 25a. Bennis did not turn on that factor. Moreover, 
although this Court stated prior to Bennis that it had never 
had the “occasion to decide * * * whether it would comport 
with due process to forfeit the property of a truly innocent 
owner,” Austin v. United States, 509 U.S. 602, 617 n.10 
(1993), Bennis at least held that property could be forfeited 
even if the owner was “in no way . . . involved in the crimi- 
nal enterprise” and “had no knowledge that its property was 
being used in connection with or in violation of ” the law. 516 
U.S. at 450 (citation omitted). Similarly, a tenant whose 
public housing premises are used as a haven by those who 
engage in drug-related criminal activity may not be directly 
“involved in the criminal enterprise” and may have “no 
knowledge” of that enterprise, but nonetheless, like the 
owner of the automobile in Bennis, may constitutionally be 
required to retain responsibility. The rationale for the Ben- 
nis rule is in large part that forfeitures have a “deterrent 
purpose distinct from any punitive purpose.” Id. at 452. The 
same is true of Section 1437d(l)(6). 

In any event, Section 1437d(l)(6) is constitutional because, 
as noted above, it provides for consensual lease clauses. This 

48 

Court has never suggested that the government may enforce 
a term of a government contract only upon a showing that 
the breaching party was at fault in some way beyond his 
having committed the breach itself. Even in Calero-Toledo 

v. Pearson Yacht Leasing Co., 416 U.S. 663, 689 (1974), in 
which the Court stated in dicta that “it would be difficult to 
reject the constitutional claim of an owner whose property 
subjected to forfeiture had been taken from him without his 
privity or consent,” the Court carefully recognized that 
“privity or consent”—which here is supplied by the tenants’ 
agreement to the lease term required by Section 
1437d(l)(6)—would be sufficient to defeat any constitutional 
claim. Cf. Lindsey v. Normet, 405 U.S. 56, 74 (1972) (there 
exists no “constitutional * * * right of a tenant to occupy 
the real property of [a tenant’s] landlord beyond the term of 
his lease without the payment of rent or otherwise contrary 
to the terms of the relevant agreement,” and “[a]bsent con- 
stitutional mandate, the assurance of adequate housing and 
the definition of landlord-tenant relationships are legislative, 
not judicial, functions.”). 

F. Because HUD’s Interpretation Of Section 1437d(l)(6) 

Is Reasonable, It Is Controlling If There Are Any Lin- 
gering Doubts 

For the reasons given above, even if Section 1437d(l)(6) 
were ambiguous on the issue, HUD’s interpretation of that 
provision in accordance with what is at least its most natural 
meaning and Congress’s purposes must be upheld. See 
Chevron, 467 U.S. at 843. As noted above, HUD adopted its 
construction of the statute shortly after it was enacted, and 
it has consistently adhered to that construction. The court of 
appeals no doubt disagreed with Congress’s weighing of the 
competing policies and, in particular, Congress’s determina- 
tion that the risk of the clause’s invocation in particular 
harsh circumstances is outweighed by the need to empower 
PHAs to rid public housing projects of those whose tenancy 

49 

threatens the safety and security of their neighbors. But it 
is not the courts’ place to second-guess Congress’s policy 
judgments. See, e.g., Dunn v. Commodity Futures Trading 
Comm’n, 519 U.S. 465, 479, 480 (1997) (“there is an impor- 
tant public policy dispute—with substantial arguments 
favoring each side,” but “these are arguments best ad- 
dressed to the Congress, not the courts”). Insofar as Con- 
gress left any ambiguity on the question, Congress assigned 
to HUD—not to the courts—the authority to resolve it. See 
AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 397 (1999) 
(“Congress is well aware that the ambiguities it chooses to 
produce in a statute will be resolved by the implementing 
agency.”). Even if it is not compelled by Congress’s clear 
intent, HUD’s construction is certainly reasonable. There- 
fore, it must be upheld. 

CONCLUSION 

The judgment of the court of appeals should be reversed. 

Respectfully submitted. 

RICHARD A. HAUSER 

General Counsel 

CAROLE W. WILSON 

Associate General Counsel 

HOWARD M. SCHMELTZER 

Assistant General Counsel 

HAROLD J. RENNETT 

Attorney 
United States Department of 

Housing and Urban 
Development 
THEODORE B. OLSON 

Solicitor General 

ROBERT D. MCCALLUM, JR. 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

BARBARA C. BIDDLE 
HOWARD S. SCHER 

Attorneys 

NOVEMBER 2001 

APPENDIX 

1. Section 13661 of Title 42 of the United States Code 
(Supp. V 1999) provides: 

§ 13661. Screening of applicants for Federally 
assisted housing 

(a) Ineligibility because of eviction for drug crimes 

Any tenant evicted from federally assisted housing by 
reason of drug-related criminal activity (as such term is 
defined in section 3(b) of the United States Housing Act 
of 1937 (42 U.S.C. 1437a(b)) shall not be eligible for 
federally assisted housing during the 3-year period be- 
ginning on the date of such eviction, unless the evicted 
tenant successfully completes a rehabilitation program 
approved by the public housing agency (which shall in- 
clude a waiver of this subsection if the circumstances 
leading to eviction no longer exist). 

(b) Ineligibility of illegal drug users and alcohol 
abusers 

(1) In general 

Notwithstanding any other provision of law, a public 
housing agency or an owner of federally assisted hous- 
ing, as determined by the Secretary, shall establish stan- 
dards that prohibit admission to the program or admis- 
sion to federally assisted housing for any household with 
a member— 

(A) who the public housing agency or owner deter- 
mines is illegally using a controlled substance; or 

(B) with respect to whom the public housing agency 
or owner determines that it has reasonable cause to 
believe that such household member’s illegal use (or pat- 
tern of illegal use) of a controlled substance, or abuse (or 

(1a) 

2a 

pattern of abuse) of alcohol, may interfere with the 
health, safety, or right to peaceful enjoyment of the pre- 
mises by other residents. 

(2) Consideration of rehabilitation 

In determining whether, pursuant to paragraph 
(1)(B), to deny admission to the program or federally 
assisted housing to any household based on a pattern of 
illegal use of a controlled substance or a pattern of abuse 
of alcohol by a household member, a public housing 
agency or an owner may consider whether such 
household member— 

(A) has successfully completed a supervised drug or 
alcohol rehabilitation program (as applicable) and is no 
longer engaging in the illegal use of a controlled 
substance or abuse of alcohol (as applicable); 

(B) has otherwise been rehabilitated successfully and 
is no longer engaging in the illegal use of a controlled 
substance or abuse of alcohol (as applicable); or 

(C) is participating in a supervised drug or alcohol 
rehabilitation program (as applicable) and is no longer 
engaging in the illegal use of a controlled substance or 
abuse of alcohol (as applicable). 

(c) Authority to deny admission to criminal offenders 

Except as provided in subsections (a) and (b) of this 
section and in addition to any other authority to screen 
applicants, in selecting among applicants for admission 
to the program or to federally assisted housing, if the 
public housing agency or owner of such housing (as ap- 
plicable) determines that an applicant or any member of 
the applicant’s household is or was, during a reasonable 
time preceding the date when the applicant household 
would otherwise be selected for admission, engaged in 

3a 

any drug-related or violent criminal activity or other 
criminal activit which woul adversel affect the health, 
safety, or right to peaceful enjoyment of the premises by 
other residents, the owner, or public housing agency 
employees, the public housing agency or owner may— 

(1) deny such applicant admission to the program or 
to federally assisted housing; and 

(2) after the expiration of the reasonable period be- 
ginning upon such activity, require the applicant, as a 
condition of admission to the program or to federally 
assisted housing, to submit to the public housing agency 
or owner evidence sufficient (as the Secretary shall by 
regulation provide) to ensure that the individual or in- 
dividuals in the applicant’s household who engaged in 
criminal activity for which denial was made under 
paragraph (1) have not engaged in any criminal activity 
during such reasonable period. 

2. Section 13662 of Title 42 of the United States Code 
(Supp. V 1999) provides: 

§ 13662. Termination of tenancy and assistance 
for illegal drug users and alcohol abusers in Federally 

assisted housing 

(a) In general 

Notwithstanding any other provision of law, a public 
housing agency or an owner of federally assisted housing 
(as applicable), shall establish standards or lease pro- 
visions for continued assistance or occupancy in federally 
assisted housing that allow the agency or owner (as ap- 
plicable) to terminate the tenancy or assistance for any 
household with a member— 

4a 

(1) who the public housing agency or owner deter- 
mines is illegally using a controlled substance; or 

(2) whose illegal use (or pattern of illegal use) of a 
controlled substance, or whose abuse (or pattern of 
abuse) of alcohol, is determined by the public housing 
agency or owner to interfere with the health, safety, or 
right to peaceful enjoyment of the premises by other 
residents. 

(b) Consideration of rehabilitation 

In determining whether, pursuant to subsection (a)(2), 
to terminate tenancy or assistance to any household 
based on a pattern of illegal use of a controlled substance 
or a pattern of abuse of alcohol by a household member, 
a public housing agency or an owner may consider 
whether such household member— 

(1) has successfully completed a supervised drug or 
alcohol rehabilitation program (as applicable) and is no 
longer engaging in the illegal use of a controlled sub- 
stance or abuse of alcohol (as applicable); 

(2) has otherwise been rehabilitated successfully and 
is no longer engaging in the illegal use of a controlled 
substance or abuse of alcohol (as applicable); or 

(3) is participating in a supervised drug or alcohol 
rehabilitation program (as applicable) and is no longer 
engaging in the illegal use of a controlled substance or 
abuse of alcohol (as applicable). 

3. Section 5.100 of Title 24 of the Code of Federal 
Regulations (promulgated by 66 Fed. Reg. 28,791 (May 24, 
2001)) provides, in pertinent part: 

§ 5.100 Definitions. 

5a 

Covered person, for purposes of 24 CFR 5, subpart I, 
and parts 966 and 982, means a tenant, any member of 
the tenant’s household, a guest or another person under 
the tenant’s control. 

Guest, only for purposes of 24 CFR part 5, subparts A 
and I, and parts 882, 960, 966, and 982, means a person 
temporarily staying in the unit with the consent of a 
tenant or other member of the household who has ex- 
press or implied authority to so consent on behalf of the 
tenant. The requirements of parts 966 and 982 apply to a 
guest as so defined. 

* * * * * 

Household, for purposes of 24 CFR part 5, subpart I, 
and parts, 960, 966, 882, and 982, means the family and 
PHA-approved live-in aide. 

* * * * * 

Other person under the tenant’s control, for the pur- 
poses of the definition of covered person and for parts 5, 
882, 966, and 982 means that the person, although not 
staying as a guest (as defined in this section) in the unit, 
is, or was at the time of the activity in question, on the 
premises (as premises is defined in this section) because 
of an invitation from the tenant or other member of the 
household who has express or implied authority to so 
consent on behalf of the tenant. Absent evidence to the 
contrary, a person temporarily and infrequently on the 
premises solely for legitimate commercial purposes is 
not under the tenant’s control. 

6a 

4. Section 960.102 of Title 24 of the Code of Federal 
Regulations (promulgated by 66 Fed. Reg. 28,799 (May 24, 
2001)) provides in pertinent part: 

§ 960.102 Definitions. 

(a) Definitions found elsewhere. (1) General defini- 
tions. The following terms are defined in part 5, subpart 
A of this title: * * * guest, household[.] 

5. Section 966.4 of Title 24 of the Code of Federal 
Regulations (promulgated by 66 Fed. Reg. 28,799 (May 24, 
2001)) provides in pertinent part: 

§ 966.4 Lease requirements. 

* * * * * 

(d) Tenant’s right to use and occupancy. (1) The 
lease shall provide that the tenant shall have the right to 
exclusive use and occupancy of the leased unit by the 
members of the household authorized to reside in the 
unit in accordance with the lease, including reasonable 
accommodation of their guests. The term guest is de- 
fined in 24 CFR 5.100. 

* * * * * 

(f) Tenant’s obligations. The lease shall provide that 
the tenant shall be obligated: * * * 

(12) (i) To assure that no tenant, member of the 
tenant’s household, or guest engages in: 

(A) Any criminal activity that threatens the health, 
safety or right to peaceful enjoyment of the premises by 
other residents; or 

(B) Any drug-related criminal activity on or off the 
premises; 

7a 

(ii) To assure that no other person under the tenant’s 
control engages in: 

(A) Any criminal activity that threatens the health, 
safety or right to peaceful enjoyment of the premises by 
other residents; or 

(B) Any drug-related criminal activity on the pre- 
mises; 

(iii) To assure that no member of the household en- 
gages in an abuse or pattern of abuse of alcohol that 
affects the health, safety, or right to peaceful enjoyment 
of the premises by other residents. 

* * * * * 

(1) * * * 

(2) Grounds for termination of tenancy. The PHA 
may terminate the tenancy only for: 

(i) Serious or repeated violation of material terms of 
the lease, such as the following: 

(A) Failure to make payments due under the lease; 

(B) Failure to fulfill household obligations, as de- 
scribed in paragraph (f) of this section; 

* * * * * 

(3) Lease termination notice. (i) The PHA must give 
written notice of lease termination of: 

(A) 14 days in the case of failure to pay rent; 

(B) A reasonable period of time considering the seri- 
ousness of the situation (but not to exceed 30 days): 

8a 

(1) If the health or safety of other residents, PHA 
employees, or persons residing in the immediate vicinity 
of the premises is threatened; or 

(2) If any member of the household has engaged in 
any drug-related criminal activity or violent criminal 
activity; or 

(3) If any member of the household has been con- 
victed of a felony; 

(C) 30 days in any other case, except that if a State or 
local law allows a shorter notice period, such shorter 
period shall apply. 

* * * * * 

(5) PHA termination of tenancy for criminal activity 
or alcohol abuse. 

(i) Evicting drug criminals. (A) Methamphetamine 
conviction. The PHA must immediately terminate the 
tenancy if the PHA determines that any member of the 
household has ever been convicted of drug-related cri- 
minal activity for manufacture or production of metham- 
phetamine on the premises of federally assisted housing. 

(B) Drug crime on or off the premises. The lease 
must provide that drug-related criminal activity en- 
gaged in on or off the premises by any tenant, member 
of the tenant’s household or guest, and any such activity 
engaged in on the premises by any other person under 
the tenant’s control, is grounds for the PHA to termi- 
nate tenancy. In addition, the lease must provide that a 
PHA may evict a family when the PHA determines that 
a household member is illegally using a drug or when the 
PHA determines that a pattern of illegal use of a drug 

9a 

interferes with the health, safety, or right to peaceful en- 
joyment of the premises by other residents. 

(ii) Evicting other criminals. (A) Threat to other 
residents. The lease must provide that any criminal 
activity by a covered person that threatens the health, 
safety, or right to peaceful enjoyment of the premises by 
other residents (including PHA management staff re- 
siding on the premises) or threatens the health, safety, 
or right to peaceful enjoyment of their residences by 
persons residing in the immediate vicinity of the pre- 
mises is grounds for termination of tenancy. 

(B) Fugitive felon or parole violator. The PHA 
may terminate the tenancy if a tenant is fleeing to avoid 
prosecution, or custody or confinement after conviction, 
for a crime, or attempt to commit a crime, that is a fel- 
ony under the laws of the place from which the individ- 
ual flees, or that, in the case of the State of New Jersey, 
is a high misdemeanor; or violating a condition of pro- 
bation or parole imposed under Federal or State law. 

(iii) Eviction for criminal activity. (A) Evidence. 

The PHA may evict the tenant by judicial action for 
criminal activity in accordance with this section if the 
PHA determines that the covered person has engaged in 
the criminal activity, regardless of whether the covered 
person has been arrested or convicted for such activity 
and without satisfying the standard of proof used for a 
criminal conviction. 

(B) Notice to Post Office. When a PHA evicts an 
individual or family for criminal activity, the PHA must 
notify the local post office serving the dwelling unit that 
the individual or family is no longer residing in the unit. 

(iv) Use of criminal record. If the PHA seeks to 
terminate the tenancy for criminal activity as shown by 

10a 

a criminal record, the PHA must notify the household of 
the proposed action to be based on the information and 
must provide the subject of the record and the tenant 
with a copy of the criminal record before a PHA griev- 
ance hearing or court trial concerning the termination of 
tenancy or eviction. The tenant must be given an op- 
portunity to dispute the accuracy and relevance of that 
record in the grievance hearing or court trial. 

(v) Cost of obtaining criminal record. The PHA 
may not pass along to the tenant the costs of a criminal 
records check. 

(vi) Evicting alcohol abusers. The PHA must 
establish standards that allow termination of tenancy if 
the PHA determines that a household member has: 

(A) Engaged in abuse or pattern of abuse of alcohol 
that threatens the health, safety, or right to peaceful 
enjoyment of the premises by other residents; or 

(B) Furnished false or misleading information con- 
cerning illegal drug use, alcohol abuse, or rehabilitation 
of illegal drug users or alcohol abusers. 

(vii) PHA action, generally. (A) Assessment under 
PHAS. Under the Public Housing Assessment System 
(PHAS), PHAs that have adopted policies, implemented 
procedures and can document that they appropriately 
evict any public housing residents who engage in certain 
activity detrimental to the public housing community 
receive points. (See 24 CFR 902.43(a)(5).) This policy 
takes into account the importance of eviction of such 
residents to public housing communities and program 
integrity, and the demand for assisted housing by fami- 
lies who will adhere to lease responsibilities. 

11a 

(B) Consideration of circumstances. In a manner 
consistent with such policies, procedures and practices, 
the PHA may consider all circumstances relevant to a 
particular case such as the seriousness of the offending 
action, the extent of participation by the leaseholder in 
the offending action, the effects that the eviction would 
have on family members not involved in the offending 
activity and the extent to which the leaseholder has 
shown personal responsibility and has taken all rea- 
sonable steps to prevent or mitigate the offending action. 

(C) Exclusion of culpable household member. 

The PHA may require a tenant to exclude a household 
member in order to continue to reside in the assisted 
unit, where that household member has participated in 
or been culpable for action or failure to act that warrants 
termination.