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 

REPLY BRIEF FOR THE DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT 

RICHARD A. HAUSER 

General Counsel 
United States Department of 

Housing and Urban 

Development 
Washington, D.C 20410 
THEODORE B. OLSON 
Solicitor General 

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

TABLE OF CONTENTS 

Page 

I. The text of Section 1437d(l)(6) does not require 
proof of the tenant’s knowledge ..................................... 
2 

II. Legislative history supports HUD’s construc- 
tion ....................................................................................... 10 

III. HUD’s construction rationally serves the 
statutory purposes ........................................................... 
12 

IV. There are no alternative grounds for affir- 
mance .................................................................................. 14 

V. Section 1437d(l)(6) is constitutional .............................. 

17 

TABLE OF AUTHORITIES 

Cases: 

B.D., In re, 720 So.2d 476 (Miss. 1998) ................................. 

19 

Bates v. United States, 522 U.S. 23 (1997) ........................ 
5 

Board of Educ. v. Caffiero, 431 A.2d 799 (N.J. 
1981) ......................................................................................... 19 

Burton v. Tampa Hous. Auth., 271 F.3d 1274 
(11th Cir. 2001) ...................................................................... 

5 

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

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

6 

Chevron U.S.A. Inc. v. NRDC, 467 U.S. 837 
(1984) ........................................................................................ 1 

City of New York v. FCC, 486 U.S. 57 (1988) ................... 

15-16 

Corley v. Lewless, 182 S.E.2d 766 (Ga. 1971) .................... 
19 

Crosby v. National Foreign Trade Coun., 530 

U.S. 363 (2000) ........................................................................ 

15 

Distinctive Printing & Packaging Co. v. Cox, 443 

N.W.2d 566 (Neb. 1989) ........................................................ 

19 

EEOC v. Associated Dry Goods Corp., 449 U.S. 
590 (1981) ................................................................................. 3 

(I) 

II 

Cases—Continued: Page 

Edwards’ Lessee v. Darby, 25 U.S. (12 Wheat.) 
206 (1827) ................................................................................. 
3 

Geier v. American Honda Motor Co., 529 U.S. 
861 (2000) ................................................................................. 
15 

Good Samaritan Hosp. v. Shalala, 508 U.S. 402 
(1993) ........................................................................................ 3 

Greene v. Lindsey, 456 U.S. 444 (1982) .............................. 

18 

Hayward v. Ramick, 285 S.E.2d 697 (Ga. 1982) .............. 
19 

Housing Auth. v. Massey, 335 A.2d 914 (R.I. 
1975) ......................................................................................... 15 

Keyishian v. Board of Regents, 385 U.S. 589 
(1967) ........................................................................................ 18 

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

11 

Minnesota Pub. Hous. Auth. v. Lor, 591 N.W.2d 
700 (Minn. 1999) ..................................................................... 
15 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 
(1982) ........................................................................................ 18 

Norwegian Nitrogen Prods. Co. v. United States, 
288 U.S. 294 (1933) ................................................................ 

3 

Plyler v. Doe, 457 U.S. 202 (1982) ................................... 
18, 20 

Scales v. United States, 367 U.S. 203 (1961) ..................... 
18 

Sorrell, In re, 315 A.2d 110 (Md. 1974) ................................ 
19 

United States v. Bajakajian, 524 U.S. 321 (1998) ............ 
20 

United States v. Oakland Cannabis Buyers’ Coop., 
121 S. Ct. 1711 (2001) ............................................................ 
15, 16 

Virginian R.R. v. Railway Employees, 300 U.S. 
515 (1937) ................................................................................. 
16 

Wieman v. Updegraff, 344 U.S. 183 (1952) ....................... 
18 

Constitution, statutes and regulations: 

U.S. Const.: 

Amend. VIII (Excessive Fines Clause) ............................ 

20 

Amend. XIV (Equal Protection Clause) ........................... 
20 

21 U.S.C. 881(a)(7) (1988) ........................................................ 4, 5, 6 

III 

Statutes and regulations—Continued: 
Page 

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

42 U.S.C. 11901 (1994 & Supp. V 1999) ................................. 
12 

42 U.S.C. 11901(2) (Supp. V 1999) ......................................... 
12 

42 U.S.C. 11901(4) (Supp. V 1999) ......................................... 
12 

42 U.S.C. 13661(b)(1)(A) (Supp. V 1999) .............................. 
11 

42 U.S.C. 13662(a)(1) (Supp. V 1999) ..................................... 
11 

42 U.S.C. 13662(a)(2) (Supp. V 1999) ..................................... 
10 

Ariz. Rev. Stat. Ann. § 12-661 (West Supp. 2001) .............. 
19 

Cal. Civil Code § 1714.1 (West 1998) ..................................... 
19 

Conn. Gen. Stat. Ann. § 52-572 (West Supp. 2001) ............. 
19 

Fla. Stat. Ann. § 741.24 (West 1997) ..................................... 
19 

Ind. Code Ann. § 34-31-4-1 (Michie 1998) ............................. 
19 

La. Civ. Code Ann. art. 2318 (West 1997) ............................ 
19 

Mass. Gen. Laws Ann. ch. 231, § 85G (West 2000) .............. 
19 

Me. Rev. Stat. Ann. tit. 14, § 304 (West Supp. 2001) .......... 
19 

Miss. Code Ann. § 43-21-619 (1999) ....................................... 
19 

Mo. Ann. Stat. § 537.045 (West 2000) .................................... 
19 

Mont. Code Ann. § 40-6-237 (1999) ........................................ 
19 

Neb. Rev. Stat. Ann. § 43-801 (Michie 1999) ....................... 
19 

N.Y. Gen. Oblig. Law § 3-112 (McKinney 2001) .................. 
19 

Ohio Rev. Code Ann. § 3109.09 (Anderson 2000) ................ 
19 

Okla. Stat. Ann. tit. 23, § 10 (West Supp. 2002) .................. 
19 

Or. Rev. Stat. § 30.765 (1999) .................................................. 
19 

23 Pa. Cons. Stat. Ann. § 5502 (West 1991) .......................... 
19 

Tenn. Code Ann. § 37-10-103 (West 1996) ............................ 
19 

Wis. Stat. Ann. § 895.035 (West Supp. 2000) ....................... 
19 

5 C.F.R. 5.100 ............................................................................. 
8 

24 C.F.R.: 

Section 901.1(c) ....................................................................... 

10 

Section 901.45(c)(1) ................................................................ 
10 

Sections 902.1 et seq. ............................................................. 
10 

Section 966.4(l)(5)(i) .............................................................. 7 

IV 

Miscellaneous: Page 

65 Fed. Reg. (2000): 

p. 40,024 ................................................................................... 

10 

p. 40,025 ................................................................................... 
10 

66 Fed. Reg. 28,782 (2001) ....................................................... 
7 

HUD, Instruction Guidebook for Completing Public 

Housing Assessment System Management 
Operations Certification Form HUD-50072 (Oct. 
2001) <http://www.hud.gov/utilities/intercept.cfm?/ 
offices/reac/pdf/guidebook_oct.01.pdf> ............................. 10 

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 

REPLY BRIEF FOR THE DEPARTMENT OF HOUSING 
AND URBAN DEVELOPMENT 

Respondents agree (Br. 4-5) that Chevron U.S.A. Inc. v. 
NRDC, 467 U.S. 837 (1984), “frame[s] the analysis in this 
case.” The Court therefore must determine, first, “whether 
Congress has directly spoken to the precise question at 
issue,” and, if not, whether HUD’s construction “is based on 
a permissible construction of the statute.” Id. at 842-843. 
Under that framework, the decision of the court of appeals 
must be reversed. First, Congress spoke to the precise issue 
of when tenancies may be terminated when it plainly 

(1) 

2 

provided in Section 1437d(l)(6), without qualification for 
unknowing tenants, that “any drug-related criminal activity” 
by “any member of the tenant’s household * * * shall be 
cause for termination of tenancy” (emphasis added). Second, 
HUD’s construction of the statute to mean precisely what it 
says is manifestly not unreasonable or impermissible; indeed, 
Section 1437d(l)(6) as so construed is not only an obviously 
correct construction of the statute, it rationally serves 
several important congressional purposes underlying the 
statute and is constitutional. It should be upheld according to 
its terms. 

In leases under Section 1437d(l)(6), tenants agree to a 
principle of household-wide responsibility. No one disputes 
that Section 1437d(l)(6) permits the government to deny con- 
tinued occupancy to an entire household when the actual 
tenant has violated the lease by engaging in drug-related 
criminal activity—even if the effect is to remove unknowing 
and entirely innocent househol members. Section 1437d(l)(6) 
in effect generalizes that rule, which is based on the reality 
that the lease between the public housing authority and the 
tenant permits occupancy not merely by the tenant, but by 
the entire household. Just as drug-related criminal activity 
by the tenant may result in the removal of the entire house- 
hold, drug-related criminal activity by other members of the 
household may, under Section 1437d(l)(6), have the same 
effect. The Ninth Circuit’s attempt to eliminate that prin- 
ciple of household-wide responsibility should be rejected. 

I. THE TEXT OF SECTION 1437d(l)(6) DOES 
NOT REQUIRE PROOF OF THE TENANT’S 
KNOWLEDGE 

Respondents’ Chevron burden in this case is daunting. 
There is not a word or phrase in Section 1437d(l)(6) that 
suggests an “unknowing tenant” exception. Respondents 
must thus attempt to establish not only that Congress had 
an intention to provide for such an unexpressed exception, 

3 

but that such intention is so clear that HUD’s contrary 
construction is impermissible. 

The principles of Chevron deference have particular force 
here, since HUD’s position that there is no “unknowing 
tenant” exception was articulated in regulations first adopted 
soon after the enactment of Section 1437d(l)(6) and con- 
sistently adhered to in the intervening years. Considerable 
weight is due “a contemporaneous construction of a statute 
by the men charged with the responsibility of setting its 
machinery in motion, of making the parts work efficiently 
and smoothly while they are yet untried and new.” Nor- 
wegian Nitrogen Prods. Co. v. United States, 288 U.S. 294, 
315 (1933). Accord, e.g., Good Samaritan Hosp. v. Shalala, 
508 U.S. 402, 414 (1993); Edwards’ Lessee v. Darby, 25 U.S. 
(12 Wheat.) 206, 210 (1827). “Moreover, such a contempo- 
raneous construction deserves special deference when it has 
remained consistent over a long period of time.” EEOC v. 
Associated Dry Goods Corp., 449 U.S. 590, 600 n.17 (1981).1 

1. The text of Section 1437d(l)(6) is unambiguous in per- 
mitting the termination of tenancy based on “any” drug 
activity by “any” of the specified persons, without any 
limitation based on the tenant’s knowledge. See U.S. Br. 19- 

20. Respondents identify no word or phrase in Section 
1437d(l)(6) that could be read—under even a tortured 
construction—to support an “unknowing tenant” exception. 

1 This brief addresses the “unknowing tenant” exception created by 
the preliminary injunction. Respondents refer to a broader, and po- 
tentially even more drastic, “innocent tenant defense,” which would apply 
in cases in which the tenant, though aware of the drug activity, “took 
reasonable steps to prevent the activity from occurring.” Resp. Br. 3 n.2; 
see also Pet. App. 28a n.9. That defense is particularly untenable because 
a showing that the tenant cannot control drug-related criminal activity 
would presumably give the household an immunity from removal, re- 
gardless of the amount or seriousness of the drug-related criminal activity 
or the threat it posed to neighbors. 

4 

a. Respondents do complain (Br. 8) that the government 
“places the full weight of its ‘plain language’ argument on 
Congress’s use of the word ‘any’ in section 1437d(l)(6).” That 
should be an ample foundation, but even without the word 
“any,” the remaining terms of Section 1437d(l)(6) authorize 
“termination of tenancy” when a member of the tenant’s 
household has engaged in drug-related criminal activity, 
with no qualification or limitation. See U.S. Br. 19-20. The 
term “any” simply underscores the absence of any such 
limitation. The court of appeals’ construction permits the 
termination of a tenancy only on the basis of certain drug- 
related criminal activity by household members—i.e., activ- 
ity that the tenant knew about. Congress, however, made 
clear that termination of the tenancy is authorized for “any 
drug-related criminal activity” by “any member of the 
tenant’s household.” 42 U.S.C. 1437d(l)(6) (Supp. V 1999) 
(emphasis added). Accordingly, respondents cannot carry 
even the burden of showing that the court of appeals’ 
construction is possible, let alone that it is the only possible 
construction. 

b. Respondents respond with the difficult argument that 
Congress expressed a clear intent respecting the meaning of 
42 U.S.C. 1437d(l)(6) that can be divined from a different 
statute in an entirely different title of the United States 
Code. Respondents argue (Br. 16) that “Congress created 
section 1437d(l)(6) in the same Subtitle in which it expressly 
provided an innocent owner defense for public housing 
tenants by amending [21 U.S.C. 881(a)(7) (1988)]”—a pre- 
existing forfeiture statute that already included an express 
innocent owner defense—to include leasehold (including 
public housing) interests. They conclude (Br. 16) that 
“[u]nder familiar standards of in pari materia construction, 
it reasonably follows that Congress understood the same 
innocent owner defense to apply to all public housing tenants 

5 

when confronted by the threatened loss of their leasehold 
interests.” 

Reduced to its essentials, respondents’ argument is that 
Congress expressed an intent—a clear intent—to provide 
for an innocent owner defense in Section 1437d(l)(6) by 
amending a separate, pre-existing property forfeiture 
statute that already included an innocent owner defense. The 
problem for respondents is that the much more reasonable 
inference to be drawn from this legislative change is directly 
contrary to that urged by respondents. By leaving 
undisturbed the express innocent owner defense in the 
forfeiture statute while omitting any such defense in Section 
1437d(l)(6), Congress surely intended that there be such a 
defense to forfeiture but not to termination of tenancy under 
Section 1437d(l)(6). “[W]here Congress includes particular 
language in one section of a statute but omits it in another 
section of the same Act, it is generally presumed that 
Congress acts intentionally and purposely in the disparate 
inclusion or exclusion.” Bates v. United States, 522 U.S. 23, 
29-30 (1997) (internal quotation marks and brackets 
omitted). It is, at the very least, not unreasonable to draw 
that inference from the stark differences in language 
between Section 1437d(l)(6) and Section 881(a)(7). See U.S. 
Br. 29; Burton v. Tampa Hous. Auth., 271 F.3d 1274, 1279- 
1280 (11th Cir. 2001). 

Respondents also fundamentally misunderstand the law of 
forfeiture when they assert (Br. 18) that the forfeiture 
statute and Section 1437d(l)(6) “are identical in purpose and 
result.” Section 881(a)(7) of Title 21 permits the federal 
government to obtain ownership interests in private prop- 
erty with which it had no previous connection whatever 
when it is used to facilitate a drug transaction, while Section 
1437d(l)(6) supplies a term in a lease—a contract based on 
the consent of the parties—that provides the basic con- 
ditions under which a local housing authority will permit a 

6 

private individual the use of the housing authority’s own 
property. Indeed, the lease provision required by Section 
1437d(l)(6) creates the contractual “privity” and “consent” 
that this Court in Calero-Toledo v. Pearson Yacht Leasing 
Co., 416 U.S. 663, 689 (1974), deemed significant in dis- 
tinguishing forfeiture from contract remedies. All property 
— including not only fee interests and public housing leases, 
but also tens of millions of private leasehold interests 
throughout the country—is subject to forfeiture if the con- 
ditions specified in Section 881(a)(7) are satisfied, while 
Section 1437d(l)(6) applies much more narrowly to public 
housing leases. See U.S. Br. 29-30. In light of those 
differences, Congress deliberately provided for an express 
innocent owner defense in Section 881(a)(7); it deliberately 
omitted one in Section 1437d(l)(6).2 

2. As HUD’s regulations recognize, Section 1437d(l)(6) 
does grant PHAs discretion in deciding whether to invoke 
the lease’s unqualified termination clause and pursue evic- 
tion in a particular case: 

In deciding to evict for criminal activity, the PHA shall 
have discretion to consider all of the circumstances of the 
case, including the seriousness of the offense, the extent 
of participation by family members, and the effects that 
the eviction would have on family members not involved 
in the proscribed activity. In appropriate cases, the 
PHA may permit continued occupancy by remaining 
family members and may impose a condition that family 

2 Respondents argue (Br. 8) that Section 1437d(l)(6), without an 
“unknowing tenant” exception, would “deprive a public housing tenant of 
any meaningful due process protections in seeking to avoid an eviction.” 
Respondents’ complaint, however, is not with the undoubtedly consti- 
tutional procedures that a state court would apply in an eviction action; it 
is with Congress’s decision in enacting Section 1437d(l)(6) not to recognize 
certain substantive defenses to eviction. Section 1437d(l)(6) has no effect 
on tenants’ constitutional rights to procedural protections in eviction 
actions. 

7 

members who engaged in the proscribed activity will not 
reside in the unit. 

24 C.F.R. 966.4(l)(5)(i) (reprinted in Pet. App. 171a-172a). 
See U.S. Br. 20-22. 

a. Referring to the HUD regulation, respondents pose 
the question (Br. 10): “If section 1437d(l)(6) is a mandate 
from Congress to HUD to have PHAs evict any tenant 

* * * from public housing units where there is a violation of 
a drug law by a household member * * *, where does HUD 
find the authority to advise PHAs that they can use 
discretion in applying this mandate?” That question is easily 
answered. Section 1437d(l)(6) requires use of a lease pro- 
vision that sets forth a “cause for termination of tenancy.” 
Nothing in Section 1437d(l)(6) or any other law, however, 
requires public housing agencies actually to seek eviction for 
all violations of that (or any other) lease provision. See U.S. 
Br. 20-22. As with other lease violations, a PHA is author- 
ized, but not required, to terminate tenancy for violation of 
the Section 1437d(l)(6) lease provision.3 

b. Respondents’ amici Coalition to Protect Public Hous- 
ing, et al., recount a number of instances in which local public 
housing authorities are said to have exercised their dis- 
cretion to seek eviction of tenants with “results that are 
unjust and so absurd as to raise doubts that Congress could 
ever have intended” Section 1437d(l)(6) to have that effect. 

3 Respondents argue (Br. 10) that HUD’s regulations recognize that 
Congress “did not, in fact, mean ‘any’ literally to exclude all defenses of 
innocence,” because those regulations provide that drug-related criminal 
activity by a commercial visitor making a delivery is not in itself a cause 
for termination of tenancy under Section 1437d(l)(6). The regulation to 
which respondents refer (reprinted in U.S. Br. App. 5a), however, is not 
based on a free-floating “unknowing tenant” exception. It is instead based 
on HUD’s construction of “other person under the tenant’s control” in 
Section 1437d(l)(6)—a phrase that HUD has acknowledged is subject to 
more than one possible interpretation and therefore subject to elucidation 
by agency regulation. See 66 Fed. Reg. 28,782 (2001). 

8 

Amici Br. 5. The narratives, by amici’s own admission, are 
based on the tenants’ stories, apparently as told by the 
tenants to their attorneys, then retold to attorneys for amici, 
and finally set forth in the latter’s words in the brief 
submitted to this Court. See, e.g., id. at 22 n.10 (recited facts 
“provided by” counsel for the tenant); see also id. at 8 n.2, 12 

n.4, 15 n.5, 17 n.6, 20 n.8, 22 n.10, 25 n.12. These multiple 
hearsay accounts should not be relied upon by this Court in 
considering the issues in this case.4 
Amici’s narratives do, however, illustrate an important 
point. As the government’s opening brief explains (at 35-36), 
self-interested tenants (as well as the household members 
involved) may be expected to have more or less elaborate, 
and difficult to verify, explanations for their claimed lack of 
knowledge of the drug activity that is the basis for termi- 
nation of tenancy under Section 1437d(l)(6). Under the rule 
advocated by respondents and amici, a public housing 
authority would have to accept such self-serving explana- 
tions or disprove them in court. Public housing authorities, 
however, are not criminal prosecution organizations, and 
disproving such explanations given by two (or more) wit- 
nesses (i.e., the tenant and household member or members) 
in a court of law is likely to be beyond the means of the 
housing authority. See Council of Large Public Housing 
Authorities, et al. (CLPHA) Amici Br. 22-23. The state of 
mind of the party committing a lease violation is not ordinar- 
ily a defense to eviction, and making it one here would leave 
the housing authority with insufficient ability to eliminate 

4 Even if all of amici’s stories are entirely accurate, it is not apparent 
that each of the tenants involved would be subject to termination of 
tenancy under Section 1437d(l)(6), especially in light of the statutory 
restrictions on eviction for non-drug crimes (i.e., the crime must “threaten[] 
the health, safety, or right to peaceful enjoyment of the premises by other 
tenants”) and the regulatory definitions of “guest” and “other person 
under the tenant’s control,” see U.S. Br. App. 5a (newly promulgated 
5 C.F.R. 5.100). 

9 

drug criminals —and those who harbor them—from public 
housing projects. 

c. Notwithstanding the regulation expressly recognizing 
the discretion granted to local PHAs by Section 1437d(l)(6), 
respondents charge (Br. 25) that HUD has “implement[ed] 
strong rewards and punishments to compel PHAs to evict 
without exercising discretion.” That charge is mistaken.5 
For example, respondents quote the regulation governing 
the Public Housing Management Assessment Program 
(PHMAP), a now-superseded system under which public 
housing authorities’ effectiveness was assessed. Under one 
of many criteria used in PHMAP covering “lease enforce- 
ment,” public housing authorities were awarded the highest 
grade if “[t]he PHA Board * * * has adopted policies and 
the PHA has implemented procedures and can document 
that it appropriately evicts any public housing resident who 
engages in” the designated criminal activity. 24 C.F.R. 
901.45(c)(1) (emphasis added). The PHMAP criterion was 
thus based on the need to “appropriately” evict residents 
who themselves “engage in” criminal activity. Cf. Resp. Br. 
28 (stating that respondents “have no argument with a policy 
that enforces the provisions of section 1437d(l)(6) against 
actual wrongdoers”). The PHMAP criterion provided no 
disincentive to a PHA that exercises the discretion, 
explicitly recognized by HUD’s regulation, to decide not to 

5 Respondents selectively quote (Br. 24-25) from presidential 
statements and HUD publications to support the proposition that the goal 
of what was called the “One Strike” policy was to evict as many tenants as 
possible. That is not correct. The “One Strike” policy refers to the show- 
ing necessary to support eviction—a single instance of drug-related crimi- 
nal activity. It does not refer to the standards under which termination of 
tenancy should actually be sought, which have consistently recognized the 
discretion of the public housing authority to determine the appropriate 
action in each case. See CLPHA Amici Br. 27-29. 

10 

evict a tenant who is free of any personal involvement in 
criminal activity.6 

II. LEGISLATIVE HISTORY SUPPORTS HUD’S 
CONSTRUCTION 

The legislative history of Section 1437d(l)(6) strongly sup- 
ports HUD’s construction of the statute. See U.S. Br. 27-34, 
37-44. Respondents continue to rely (Br. 14) on a single 
statement from a 1990 Senate committee report. But that 
statement discussed a bill quite different from the one that 
was enacted, and in any event even that statement does not 
suggest that public housing authorities are without authority 
to terminate a tenancy in any particular circumstances. See 
U.S. Br. 43. Other contemporaneous expressions of congres- 

6 PHMAP applied only until September 30, 1999. 24 C.F.R. 901.1(c). 
The new system of assessment, entitled Public Housing Assessment 
System (PHAS), is similar to PHMAP in relevant respects. See 24 C.F.R. 
902.1 et seq. Under PHAS, public housing authorities are rated on a 100- 
point scale, of which one point (or a fraction of a point) may be awarded for 
“lease enforcement.” 65 Fed. Reg. 40,024, 40,025 (2000). HUD has 
provided that “[t]his component measures whether a PHA has formally 
adopted policies and implemented procedures to evict residents who the 
PHA has reasonable cause to believe” satisfy what HUD terms the “One- 
Strike” criteria—i.e., residents who “[e]ngage in” criminal or drug-related 
activity prohibited by Section 1437d(l)(6) or “[a]buse alcohol” in a way 
prohibited by 42 U.S.C. 13662(a)(2) (Supp. V 1999) (reprinted in U.S. Br. 
App. 4a). HUD, Instruction Guidebook for Completing Public Housing 
Assessment System Management Operations Certification Form HUD- 
50072, at 30 (Oct. 2001) <http://www.hud.gov/utilities/intercept.cfm?/ 
offices/reac/pdf/guidebook_oct01.pdf>. The form used by HUD asks, inter 
alia, for “[t]he total number of evictions as a result of the One-Strike 
criteria.” Ibid. HUD has noted, however, that “PHAs are scored for this 
component based on the formal adoption and implementation of eviction 
policies and procedures and [whether the PHA] has incorporated One- 
Strike criteria in the eviction of residents.” Id. at 31. While the raw 
number of evictions may provide HUD with information that is useful in 
discussions with PHAs regarding the level of their crime problem, the 
PHA’s score is based on the adoption and implementation of “appropriate” 
policies for evicting residents who “[e]ngage in” the prohibited activities, 
not the total number of evictions. 

11 

sional intent, including the section-by-section analysis of the 
original bill containing Section 1437d(l)(6), see id. at 38-39, 
and a series of related measures enacted between 1988 and 
1990, see id. at 30-32, establish that Congress was both 
aware that Section 1437d(l)(6) did not include an “unknowing 
tenant” exception to its otherwise clear language, and knew 
how to address issues relating to the termination of tenancy 
of “unknowing tenants” when it wanted to. 

Moreover, in 1996, long after the promulgation of HUD’s 
1991 regulations definitively stating that Section 1437d(l)(6) 
does not admit of an “unknowing tenant” defense, Congress 
broadened Section 1437d(l)(6) to include criminal activity “on 
or off ”—and not merely “on or near”—the public housing 
premises. See U.S. Br. 5. Congress also enacted other mea- 
sures in 1998 that both “prohibit[ed] admission to [public 
housing] for any household with a member * * * who the 
public housing agency * * * determines is illegally using a 
controlled substance,” 42 U.S.C. 13661(b)(1)(A) (Supp. V 
1999), and authorized termination of the tenancy for those 
same households, see 42 U.S.C. 13662(a)(1) (Supp. V 1999). 
See U.S. Br. 37-44; CLHPA Amici Br. 15-21. Under respon- 
dents’ theory, Congress presumably intended in all of those 
enactments to re-enact sub silentio an entirely implicit 
“unknowing tenant” exception, even where that exception 
would require public housing authorities to grant initial 
leases to households that included illegal drug users, so long 
as the tenant could make a case on lack of knowledge of the 
drug crime at issue. The much more logical conclusion is 
that Congress, in all of those enactments, intended to adopt 
HUD’s longstanding administrative interpretation of Section 
1437d(l)(6). Lorillard v. Pons, 434 U.S. 575, 580 (1978); see 
U.S. Br. 38-42. 

12 

III. HUD’S CONSTRUCTION RATIONALLY SERVES 
THE STATUTORY PURPOSES 

Congress enacted Section 1437d(l)(6) in response to a 
“reign of terror” caused by drug-related violence in public 
housing. 42 U.S.C. 11901 (1994 & Supp. V 1999). Congress 
made express findings that “public * * * housing in many 
areas suffers from rampant drug-related or violent crime,” 
which “leads to murders, muggings, and other forms of 
violence against tenants,” as well as “a deterioration of the 
physical environment” in the projects. 42 U.S.C. 11901(2) 
and (4) (Supp. V 1999). Those findings were well supported. 
Amici International City-County Management Association, 
et al., explain in detail (Br. 6-10) that, at around the time 
Section 1437d(l)(6) was enacted, the violent crime rate in 
public housing developments was frequently several times 
higher than the local average. The court of appeals itself 
agreed that public housing projects had become “little more 
than illegal drug markets and war zones,” in which 
“[i]nnocent tenants live barricaded behind doors, in fear for 
their safety and the safety of their children.” Pet. App. 2a. 

Section 1437d(l)(6) as interpreted by HUD—i.e., without 
an “unknowing tenant” exception—addresses the crisis 
situation in a number of ways. First, Section 1437d(l)(6) 
gives maximum incentives to tenants to prevent, discover, 
and remedy drug problems of household members, rather 
than to ignore them and thereby retain a defense to eviction. 
See U.S. Br. 35. Respondents argue (see Br. 29-30) that the 
incentive is not effective with respect to an “unknowing” 
tenant who is actually evicted, but the general deterrent 
effect of the rule of household-wide responsibility is obvious. 
Respondents also argue (Br. 31) that, absent an “unknowing 
tenant” exception, some tenants might be afraid to report 
drug-related criminal activity by their household members 
to housing management. It is uncertain whether tenants are 

13 

likely to report drug-related crimes by household members 
in any event. More importantly, amici’s views on whether 
the incentive structure created by Section 1437d(l)(6) in fact 
works out in practice as Congress intended is of no signifi- 
cance. It is entirely rational for Congress to decide not to 
include an “unknowing tenant” exception in order both to 
increase the incentives for tenants to control household 
members and ban lawbreaking guests from their premises 
and to decrease the incentives for tenants to remain ignorant 
of drug-related criminal activity. 

Second, adding an “unknowing tenant” exception would 
create severe enforcement problems. See pp. 8-9, supra. 
Contrary to the court of appeals, see Pet. App. 28a, respon- 
dents now concede (Br. 30) that “it is the tenant who has the 
burden of raising and proving the defense.” Even so, the 
public housing authority will likely face similar obstacles in 
rebutting the likely testimony of the self-interested tenant 
and household member that the tenant had no knowledge of 
the drug-related activity. Respondents argue (ibid.) that 
“[t]he government’s burden of rebuttal is no more onerous 
tha[n] it is in connection with any other affirmative defense.” 
Few if any contract or lease defenses, however, require the 
parties to litigate the tenant’s state of mind, as would an 
“unknowing tenant” defense.7 

Third, household-wide responsibility under Section 
1437d(l)(6) helps housing authorities obtain agreements from 
tenants in appropriate cases to bar the individual engaged in 
drug-related activity from the premises. Respondents 
assert (Br. 30) that there will be no “bargaining chip” under 

7 Respondents argue that “HUD has not suggested that the existence 
of an innocent tenant defense makes the provisions of section 881(a)(7) of 
‘limited value in restoring peace and security to public housing projects.’ ” 
Resp. Br. 30 (quoting U.S. Br. 35). Forfeiture actions, however, serve a 
law enforcement function, are typically undertaken by agencies that have 
substantial investigative tools available, and are not designed specifically 
to restore peace to public housing projects. 

14 

the HUD interpretation because tenants will be afraid to 
seek assistance from management. Management, however, 
has a “bargaining chip” in cases in which it takes the initia- 
tive since Section 1437d(l)(6) provides the leverage neces- 
sary in appropriate cases to encourage tenants to bar drug 
criminals from their units. Indeed, without such leverage, 
public housing authorities do not generally have the legal 
authority to dictate to tenants which household members or 
guests may be admitted to the unit. See CLPHA Amici Br. 
25 (explaining that “as a practical matter, the use of removal 
and bar is dependent upon the tenant’s agreement”).8 

Finally, household-wide responsibility under Section 
1437d(l)(6) is ultimately based on the proposition that the 
households of those public housing tenants who—knowingly 
or unknowingly—harbor drug criminals pose a threat to 
their neighbors, and that the scarce resource of public hous- 
ing should be allocated to tenants whose household members 
do not so threaten their neighbors’ security. See U.S. Br. 37. 
Holding tenants responsible for the conduct of their house- 
hold members and guests is not uncommon in leases, 
including elsewhere in the public housing leases at issue in 
this case. See id. at 23-24. Respondents’ social policy objec- 
tions to that principle should be addressed to Congress, not 
the courts. 

IV. THERE ARE NO ALTERNATIVE GROUNDS FOR 
AFFIRMANCE 

Respondents amici Lawrence Lessig, et al., do not attempt 
to support the court of appeals’ actual reasoning and holding. 
They argue instead as alternative grounds for affirmance 

8 In many cases involving a minor child engaged in drug activity, 
barring the minor child while permitting the tenant to remain may not be 
realistic or desirable. The rationale of household-wide responsibility 
under Section 1437d(l)(6) is, inter alia, that parents and guardians should 
be given maximum incentive to prevent drug activity by their household 
members before it occurs. 

15 

that it is a “faulty premise” to conclude that lease terms that 
would support eviction “would, as a matter of contract law, 
be strictly enforced,” Br. 15; see Br. 15-22, and that “the 
leases actually at issue in this case would not support 
Respondents’ eviction,” Br. 2; see Br. 6-15. See also Resp. 
Br. 42-44. Those theories provide no basis for affirming the 
decision below. 

1. The decision below cannot be affirmed on the basis of 
state contract or landlord-tenant law. Even under general 
principles of landlord-tenant law, a court may not add limita- 
tions and qualifications to a lease provision prescribed by 
legislation. As the Rhode Island Supreme Court explained, 
in discussing strict enforcementof a lease provision, “the 
prevailing view * * * is ‘* * * that where the law 
prescribes there shall be a forfeiture the court cannot say 
there shall be none; that the expression of the legislative will 

* * * (is) not to be defeated upon the ground that the law is 
harsh and severe in its character.” Housing Auth. v. 
Massey, 335 A.2d 914, 915-916 (R.I. 1975) (citing cases). A 
court may not “reject the balance that [the legislature] has 
struck in a statute.” United States v. Oakland Cannabis 
Buyers’ Coop., 121 S. Ct. 1711, 1721 (2001). See also, e.g., 
Minnesota Pub. 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.”) (footnote omitted). 

If it were otherwise—if the law of a particular State 
attempted to add limitations to the grounds for termination 
of tenancy specified in lease terms under Section 1437d(l)(6) 
—then that law would be preempted. A state law that 
conflicts with a federal statute, see Geier v. American 
Honda Motor Co., 529 U.S. 861, 869-874 (2000), or frustrates 
its purposes, see Crosby v. National Foreign Trade Council, 
530 U.S. 363, 373 (2000), is preempted. See also City of New 

16 

York v. FCC, 486 U.S. 57, 64 (1988) (similar preemption for 
regulations). Congress has determined in Section 1437d(l)(6) 
that any drug-related criminal activity by any household 
member “shall be cause for termination of tenancy,” without 
regard to the tenant’s knowledge of the activity. Section 
1437d(l)(6) does not give the States a license to engraft 
whatever limitations and qualifications on termination of 
tenancy they deem advisable. A State could no more create 
an “unknowing tenant” exception to Section 1437d(l)(6) than 
it could an exception for criminal activity related to certain 
particular drugs (marijuana, for example), certain household 
members (adult household members, for example), or certain 
categories of public housing (low-rise units, for example). 
Although amici rely (Br. 21) on purported “equitable con- 
siderations,” even “a court sitting in equity cannot ‘ignore 
the judgment of Congress, deliberately expressed in legisla- 
tion.’ ” Oakland Cannabis Buyers’ Coop., 121 S. Ct. at 1721 
(quoting Virginian R.R. v. Railway Employees, 300 U.S. 
515, 551 (1937)). 

In any event, the decision below was not based on—and 
cannot be defended on the basis of—state contract or 
landlord-tenant law. Neither court below cited or discussed 
state-law precedents. The district court refused to abstain 
in this case on the ground that OHA had “not identified what 
important state interests are implicated by an unlawful de- 
tainer action which involves federally subsidized housing and 
the interpretation and constitutionality of a lease provision 
mandated by federal regulations.” Pet. App. 146a. The court 
of appeals similarl 
made entirely clear that its decision was 

based on “the proper interpretation of § 1437d(l)(6).” Id. at 
10a; see also Pet. 29. This Court should decide the federal 
question on which certiorari was granted, not a state-law 
question that was not passed upon below. 

2. The terms of respondents’ lease also do not provide an 
alternative ground for affirmance. Both courts below held 

17 

that respondents’ leases embody the rule adopted by HUD 
that precludes an “unknowing tenant” defense, thereby 
rejecting amici’s (and respondents’) creative construction of 
the leases. The court of appeals noted that the lease 
provisions were “simply the embodiment of ” what the court 
held was HUD’s “erroneously broad interpretation of 
§ 1437d(l)(6).” Pet. App. 28a. The district court similarly 
held that the lease terms were “mandated by federal 
regulations.” Id. at 146a. There is no reason for this Court 
to revisit that fact-specific conclusion, rather than decide the 
questions of far more general importance on which certiorari 
was granted.9 

V. SECTION 1437d(l)(6) IS CONSTITUTIONAL 

Although the court of appeals purported to rest its de- 
cision in part on the principle of constitutional avoidance 
where a statute is ambiguous, see Pet. App. 23a-27a, Section 
1437d(l)(6)—especially in light of HUD’s authoritative con- 
struction—is not ambiguous. Accordingly, even the exis- 
tence of a genuine and serious constitutional doubt would not 
warrant distorting the plain statutory meaning. In any 
event, respondents’ various efforts to identify constitutional 
problems in Section 1437d(l)(6) fail to raise any such “seri- 
ous” constitutional doubt. See U.S. Br. 46-49. 

1. Based on the proposition that “[p]ublic housing tenants 
indisputably hold protected property rights in their leases,” 
respondents argue that what they term the “seizure of public 
housing from innocent tenants is precisely the kind of arbi- 
trary deprivation of property that due process forbids.” 
Resp. Br. 34. To the extent that respondents argue (ibid.) 

9 The decision of the court of appeals could not in any event be 
affirmed on these grounds because the injunction that court affirmed 
generally limited OHA’s ability to terminate leases. See Pet. App. 165a- 
166a. Such an injunction could not have been based on the specific terms 
of respondents’ leases (or on any other facts specific to respondents) since 
it extends to all of OHA’s tenants, regardless of the terms of their leases. 

18 

that the eviction of “unknowing” tenants authorized by the 
statutorily-mandated lease provision is “without any reason- 
able justification” and serves no “legitimate governmental 
objective,” those arguments have already been addressed 
herein. See pp. 12-14, supra. 

In any event, the fact that tenants have a “property 
interest” in their leases establishes only that they are 
entitled to full procedural due process protections before 
those leases are terminated. Greene v. Lindsey, 456 U.S. 
444, 450-451 (1982). It does not suggest that particular 
substantive lease terms regarding the conditions of their 
occupancy violate the Constitution. To the contrary, the 
substantive lease term required by Section 1437d(l)(6) 
specifically limits the property interest that respondents 
have acquired. 

The cases cited by respondents (Br. 35-37) do not support 
the kind of constitutional limitations on substantive pro- 
visions in public housing leases (or, perhaps, in other govern- 
ment contracts) that respondents seek. Those cases are 
based on the principles that there may be limits on the ex- 
tent to which the government may criminalize mere mem- 
bership in an association, see Scales v. United States, 367 
U.S. 203 (1961), and that government employment may not 
be conditioned, see Wieman v. Updegraff, 344 U.S. 183 
(1952); Keyishian v. Board of Regents, 385 U.S. 589, 605-606 
(1967), nor civil liability imposed, see NAACP v. Claiborne 
Hardware Co., 458 U.S. 886 (1982), based on an individual’s 
exercise of constitutionally protected associational rights. 
Termination of tenancy under Section 1437d(l)(6) is not 
based on tenants’ exercise of constitutionally protected 
rights. It is based on the breach of lease terms agreed to by 
tenants that serve important public purposes that redound 
to the benefit of public housing tenants generally. 

2. Respondents argue (Br. 37) that Plyler v. Doe, 457 
U.S. 202 (1982), supports their argument, because the Court 

19 

in that case stated that “legislation directing the onus of a 
parent’s misconduct against his children does not comport 
with fundamental conceptions of justice.” Id. at 220. Plyler, 
however, did not involve a contract, and the general prin- 
ciple for which respondents cite it—that the law may not 
impose disabilities on children for their parent’s misconduct 
—has nothing to do with this case. To the contrary, it is 
presumably common ground that children may be removed 
from their apartments—sometimes with dire consequences 
—when their parents have violated conditions of their leases. 
Conversely, many States have enacted laws that impose 
liability on custodial parents or guardians for torts com- 
mitted by their children. 

10 Liability under those statutes is 
entirely a matter of legal compulsion, unlike Section 
1437d(l)(6), which is based on the enforcement of lease pro- 
visions to which the tenant has agreed. The constitutionality 
of Section 1437d(l)(6) follows a fortiori from the 
constitutionality of the parental liability statutes. See, e.g., 
In re B.D., 720 So. 2d 476, 478-479 (Miss. 1998); Distinctive 
Printing & Packaging Co. v. Cox, 443 N.W.2d 566 (Neb. 
1989); Board of Educ. v. Caffiero, 431 A.2d 799, 805 (N.J. 
1981); In re Sorrell, 315 A.2d 110, 114-116 (Md. 1974); but see 
Corley v. Lewless, 182 S.E.2d 766 (Ga. 1971), limited by 
Hayward v. Ramick, 285 S.E.2d 697 (Ga. 1982). 

10 See, e.g., Ariz. Rev. Stat. Ann. § 12-661 (West Supp. 2001); Cal. Civil 
Code § 1714.1 (West 1998); Conn. Gen. Stat. Ann. § 52-572 (West Supp. 
2001); Fla. Stat. Ann. § 741.24 (West 1997); Ind. Code Ann. § 34-31-4-1 
(Michie 1998); La. Civ. Code Ann. art. 2318 (West 1997); Mass. Gen. Laws 
Ann. ch. 231, § 85G (West 2000); Me. Rev. Stat. Ann. tit. 14, § 304 (West 
Supp. 2001); Miss. Code Ann. § 43-21-619 (1999); Mo. Ann. Stat. § 537.045 
(West 2000); Mont. Code Ann. § 40-6-237 (1999); Neb. Rev. Stat. Ann. § 43- 
801 (Michie 1999); N.Y. Gen. Oblig. Law § 3-112 (McKinney 2001); Ohio 
Rev. Code Ann. § 3109.09 (Anderson 2000); Okla. Stat. Ann. tit. 23, § 10 
(West Supp. 2002); Or. Rev. Stat. § 30.765 (1999); 23 Pa. Cons. Stat. Ann. 
§ 5502 (West 1991); Tenn. Code Ann. § 37-10-103 (1996); Wis. Stat. Ann. 
§ 895.035 (West Supp. 2000). 

20 

More fundamentally, Plyler was based on the fact that the 
state law in that case, which deprived children of undocu- 
mented aliens of the ability to attend public schools, 
“impose[d] a lifetime hardship on a discrete class of children 
not accountable for their disabling status.” 457 U.S. at 223. 
The Court’s conclusion in Plyler that such a classification 
violates the Equal Protection Clause has no bearing on the 
question whether the lease term required by Section 
1437d(l)(6) is constitutional. 

3. Finally, respondents argue (Br. 47) that the lease pro- 
vision required by Section 1437d(l)(6) “violates the Eighth 
Amendment’s excessive fine prohibition.” As this Court has 
explained, “[t]he Excessive Fines Clause * * * limits the 
government’s power to extract payments, whether in cash or 
in kind, as punishment for some offense.” United States v. 
Bajakajian, 524 U.S. 321, 328 (1998) (internal quotation 
marks omitted). Because the Clause has to do with the in- 
voluntary imposition by the government of penalties on an 
individual, it has been applied to forfeitures of property (as 
in Bajakajian), which are not based on consent. The Exces- 
sive Fines Clause has nothing to do with the terms on which 
the government and a private party may contract for the 
private individuals’ use of government property, nor does it 
have any application to the circumstances under which the 
government may enforce its contractual and property rights 
to take back possession of its own premises. Expanding the 
Excessive Fines Clause to police government contracts or 
leases would be inconsistent with its text, purposes, and 
history. 

* * * * * 

For the reasons given above and those in the govern- 
ment’s opening brief, the judgment of the court of appeals 
should be reversed. 

Respectfully submitted. 

21 

RICHARD A. HAUSER 

General Counsel 
United States Department of 

Housing and Urban 

Development 
THEODORE B. OLSON 
Solicitor General 

JANUARY 2002