No. 00-1770 

In the Supreme Court of the United States 

UNITED STATES DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT, PETITIONER 

v. 

PEARLIE RUCKER, ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

GEORGE L. WEIDENFELLER 
Acting 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 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

Counsel of Record 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

BARBARA C. BIDDLE 

HOWARD SCHER 

Attorney 

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 (Supp. IV 1998) provides that public housing 
leases must contain a clause stating that “any drug- 
related criminal activity on or off [the] premises en- 
gaged 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.” 

The question presented is: 
Whether the lease clause provided for in 42 U.S.C. 
1437d(l)(6) (Supp. IV 1998) is violated by such drug- 
related criminal activity, regardless of whether it can 
be shown that the tenant knew, or had reason to know, 
of the drug activity. 

(I) 

II 

PARTIES TO THE PROCEEDING 

In addition to the parties named in the caption, the 
parties in the court of appeals were Herman Walker, 
Willie Lee, Barbara Hill, Harold Davis, and the 
Oakland Housing Authority. 

TABLE OF CONTENTS 

Page 

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

Jurisdiction ...................................................................................... 1 

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

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

Reasons for granting the petition ............................................... 
15 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Ann Arbor Hous. Comm’n v. Wells, 618 N.W.2d 431 

(Mich. Ct. App. 2000) ............................................................... 

22 

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

13, 28 

Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 

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

23 

Chavez v. Housing Auth., 973 F.2d 1245 (5th Cir. 

1992) ........................................................................................... 23 

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

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

8 

City of S. San Francisco Hous. Auth. v. Guillory, 

49 Cal. Rptr. 2d 367 (App. Dep’t Super. Ct. 

1995) ........................................................................................... 22 

Delaware County Hous. Auth. v. Bishop, 749 A.2d 

997 (Pa. Commw. Ct.), app. denied, 764 A.2d 1073 

(Pa. 2000), cert. denied, No. 00-1272 (Apr. 16, 

2001) ......................................................................................... 22-23 

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

(1982) .......................................................................................... 27 

Housing Auth. v. Green, 657 So. 2d 552 (La. Ct. 

App.), writ denied, 661 So. 2d 1355 (La. 1995), cert. 

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

21, 22 

Lyng v. International Union, United Auto Workers 

of Am., 485 U.S. 360 (1988) ................................................... 15 

(III) 

IV 

Cases—Continued: Page 

Memphis Hous. Auth. v. Thompson, 38 S.W.3d 504 

(2001) ............................................................................... 

16, 20, 22 

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

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

16, 23 

Syracuse Hous. Auth. v. Boule, 701 N.Y.S.2d 541 

(App. Div. 1999) ....................................................................... 

22 

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

24 

Willock v. Schenectady Mun. Hous. Auth., 706 

N.Y.S.2d 503 (App. Div. 2000) ............................................... 

22 

Constitution, statutes and regulations: 

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

18 

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

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

8 

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

Tit. V, Subtit. C: 

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

4 

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

11 

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

Supp. IV 1998)) ............................................................ 

3, 15 

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

No. 106-185, § 2(a), 114 Stat. 202 (to be codified at 

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

11 

Cranston-Gonzalez National Affordable Housing Act, 

Pub. L. No. 101-625, Tit. V, Subtit. A, § 504, 104 

Stat. 4185 ................................................................................... 

4 

Departments of Veterans Affairs and Housing and 

Urban Development, and Independent Agencies 

Appropriations Act, 1999, Pub. L. No. 105-276, 

Tit. V: 

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

4 

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

3 

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

3 

§ 586(b)(2)(B), 112 Stat. 2646 ............................................ 3 

V 

Statutes and regulations—Continued: 
Page 

Housing Opportunity Program Extension Act of 1996, 

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

4 

United States Housing Act of 1937, 42 U.S.C. 1437 
et seq. .......................................................................................... 
2 

42 U.S.C. 1437b(a) ................................................................... 
2 

42 U.S.C. 1437d(c)(4)(A) (1994) ............................................. 
14 

42 U.S.C. 1437d(l) (1994 & Supp. IV 1998) ............... 
2, 4, 167a 

42 U.S.C. 1437d(l)(1) .......................................... 
8, 10, 14, 167a 

42 U.S.C. 1437d(l)(5) (1994) ................................................... 
4 

42 U.S.C. 1437(d)(l)(6) (Supp. IV 1998) ......................... 
passim 

21 U.S.C. 802 ................................................................................ 
5 

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

21 U.S.C. 881(a)(7) (1982 ed. Supp. V 1987) ........................... 
11 

21 U.S.C. 881(a)(7) (1994) .......................................................... 
25 

24 C.F.R.: 

Section 966.4(f)(12)(i) ........................................................ 

5, 170a 

Section 966.4(l)(5)(i) ....................................... 
6, 19, 170a-171a 

Miscellaneous: 

136 Cong. Rec. (1990): 

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

27 

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

27 

56 Fed. Reg. (1991): 

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

5 

p. 51,562 ..................................................................................... 
26 

p. 51,566 ..................................................................................... 
5 

pp. 51,566-51,567 ...................................................................... 
5 

p. 51,567 ................................................................................... 
6, 10 

H.R. Conf. Rep. No. 943, 101st Cong., 2d Sess. (1990) ...... 
27-28 

S. 566, 101st Cong., 2d Sess. (1990) ......................................... 
27 

S. Rep. No. 316, 101st Cong., 2d Sess. (1990) .................... 
12, 27 

Webster’s Third New International Dictionary (1976) ....... 24 

In the Supreme Court of the United States 

No. 

UNITED STATES DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT, PETITIONER 

v. 

PEARLIE RUCKER, ET AL. 

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

PETITION FOR A WRIT OF CERTIORARI 

The Acting Solicitor General, on behalf of the United 
States Department of Housing and Urban Develop- 
ment, respectfully petitions for a writ of certiorari to 
review the judgment of the United States Court of 
Appeals for the Ninth Circuit in this case. 

OPINIONS BELOW 

The opinion of en banc court of appeals (Pet. App. 1a- 
67a) is reported at 237 F.3d 1113. The order of the 
court of appeals (Pet. App. 68a-69a) providing for 
rehearing 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. 

JURISDICTION 

The judgment of the court of appeals was entered on 
January 24, 2001. On April 11, 2001, Justice O’Connor 
extended the time for filing a petition for a writ of 

(1) 

2 

certiorari to and including May 24, 2001. The juris- 
diction of this Court is invoked under 28 U.S.C. 1254(1). 

STATUTORY PROVISIONS INVOLVED 

Relevant provisions of the United States Housing 
Act of 1937, 42 U.S.C. 1437d(l) (Supp. IV 1998), and 
regulations of the Department of Housing and Urban 
Development are set forth at Pet. App. 167a-172a. 

STATEMENT 

This case concerns the meaning of a clause that a 
federal statute requires each public housing authority 
(PHA) to include in leases of public housing units that 
receive federal housing assistance. The clause provides 
that drug-related criminal activity by specified individ- 
uals is a ground for eviction. The Oakland Housing 
Authority (OHA) instituted eviction proceedings 
against four tenants pursuant to that clause. The 
tenants instituted this action in the United States 
District Court for the Northern District of California to 
obtain an injunction against their eviction. The district 
court granted them a preliminary injunction, but a 
panel of the court of appeals reversed. On rehearing en 
banc, the court of appeals affirmed the district court’s 
decision. 

1. 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 effort to keep drug-related activity out of 

3 

public housing. Congress made the following findings: 

(1) the Federal Government has a duty to pro- 
vide 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-related 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 the physical environment that 
requires substantial governmental expenditures; 

(5) local law enforcement authorities often lack 
the resources to deal with the drug problem in pub- 
lic 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. IV 1998)).1 In light of those findings, Congress 
also mandated in 1988 that “[e]ach public housing 

1 The words “or violent” were inserted after “drug-related” in 
paragraphs (2) and (4) by Pub. L. No. 105-276, §§ 586(b)(1) and 
(2)(A), 112 Stat. 2646. Additional findings were added by Section 
586(b)(2)(B) of that Public Law. 

4 

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. 

Anti-Drug Abuse Act of 1988, § 5101, 102 Stat. 4300. 
That provision was amended in 1990 to require 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. 

Cranston-Gonzalez National Affordable Housing Act, 
Pub. L. No. 101-625, § 504, 104 Stat. 4185 (codified at 
42 U.S.C. 1437d(l)(5) (1994)). The provision was again 
amended in 1996 by changing the phrase “on or near 
such premises” to “on or off such premises.” Housing 
Opportunity Program Extension Act of 1996, Pub. L. 
No. 104-120, § 9(a)(2), 110 Stat. 836. It is now codified 
at 42 U.S.C. 1437d(l)(6) (Supp. IV 1998).2 See also 
42 U.S.C. 1437d(l) (1994 & Supp. IV 1998) (defining 
“drug-related criminal activity” to mean “the illegal 
manufacture, sale, distribution, use, or possession with 

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

5 

intent to manufacture, sell, distribute, or use, of a 
controlled substance (as defined in [21 U.S.C. 802]”). 

HUD’s regulation establishing mandatory lease 
terms for public housing tenants, which was promul- 
gated before the 1996 amendment that changed “on or 
near” to “on or off,” closely tracks the statutory lan- 
guage. The regulation requires 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 premises. 

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

24 C.F.R. 966.4(f )(12)(i). 

In issuing its regulation, HUD explained that 
permitting the landlord to evict a tenant 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 which can lead to eviction.” 56 Fed. Reg. 
51,560, 51,566 (1991). In light of Congress’s determina- 
tion 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 

6 

“tenant should not be excused from contractual respon- 
sibility by arguing that [the] tenant did not know, could 
not foresee, or could not control behavior by other 
occupants of the unit,” id. at 51,567. 

HUD’s regulations do not require public housing 
authorities to evict the tenant in every instance of a 
violation of the lease provisions. Instead, the regula- 
tions provide that “[i]n 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.” 24 C.F.R. 966.4(l)(5)(i). 

2. In late 1997 and early 1998, OHA instituted 
eviction proceedings in state court against the four 
public housing tenants who are plaintiffs in this 
case—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 
tenant’s control, shall not engage in . . . [a]ny drug- 
related criminal activity on or near the premises.” Pet. 
App. 5a-6a. 

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, was found 
with cocaine and a crack cocaine pipe three blocks from 
Rucker’s apartment. OHA subsequently sought and 
obtained a dismissal of the complaint without prejudice 
in February 1998. Pet. App. 6a; id. at 141a. 

Willie Lee is 71 years old and has lived in public 
housing for more than 25 years. OHA’s complaint al- 

7 

leged that Lee’s grandson, who resides with her, was 
caught smoking marijuana in the apartment complex 
parking lot. Pet. App. 6a; see also Gov’t C.A. E.R. 7. 

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, was 
caught with Lee’s grandson in the apartment complex 
parking lot and admitted smoking marijuana. Pet. App. 
6a; see also Gov’t C.A. E.R. 8. 

Herman Walker is a disabled 75-year-old man who 
has lived in public housing for ten years. He requires 
an in-home caregiver. OHA’s complaint alleged that on 
three instances within a two-month period, Walker’s 
caregiver and two others were found with cocaine in 
Walker’s apartment. Each time, Walker was issued a 
lease violation notice. After OHA instituted the action 
to evict Walker, Walker fired his caregiver. Pet. App. 
6a. 

3. Following the institution of eviction proceedings 
against them in state court, the four tenants com- 
menced this action in the United States District Court 
for the Northern District of California. They sought, 
inter alia, a preliminary and permanent injunction that 
would prohibit OHA from evicting any tenants without 
proof “that a tenant personally participated in, had 
prior knowledge of, and the actual ability to prevent 
criminal activity on the premises.” Gov’t C.A. E.R. 14. 
The district court determined that neither Section 
1437d(l)(6) itself nor its legislative history “addressed 
the question of whether a housing authority may 
terminate the lease of an ‘innocent’ tenant,” Pet. App. 
147a, see also id. at 148a, which the court defined as a 
tenant who is “innocent of the drug-related criminal 
activity which is the cause of the lease termination and 

* * * also innocent of any knowledge of the drug- 

8 

related criminal activity,” id. at 141a. The court then 
considered whether HUD’s interpretation of the stat- 
ute to authorize eviction in such circumstances rests on 
a permissible construction of the statute, to which the 
courts must defer under Chevron U.S.A. Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 837 
(1984). Pet. App. 151a. The court adverted in that 
regard to 42 U.S.C. 1437d(l)(1), which prohibits public 
housing authorities from using leases that “contain 
‘unreasonable terms and conditions.’ ” 

Pet. App. 151a 
(quoting 42 U.S.C. 1437d(l)(1)). The court concluded 
that the tenants had “shown, at a minimum, the exis- 
tence of serious questions and a fair chance of success 
with respect * * * to whether OHA’s termination of a 
tenant’s lease for a household member’s drug-related 
criminal activity outside of the tenant’s unit is unrea- 
sonable within the meaning of 42 U.S.C. § 1437d(l)(1) 
when the tenant had no knowledge of, and no reason to 
know of, the activity.” Id. at 160a. The court further 
expressed the view that eviction in those circumstances 
would be “irrational” and for that reason unconstitu- 
tional. Id. at 160a-162a. 

The court also addressed claims by Rucker and 
Walker that evicting them would violate the Americans 
with Disabilities Act of 1990, 42 U.S.C. 12101 et seq. 
(ADA). 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—but not Rucker’s3—to proceed 
against the Oakland defendants. Id. at 156a-157a. The 
tenants did not appeal the district court’s ruling that 

3 The district court rejected Rucker’s ADA claim on the ground 
that she does not allege that she is disabled. Pet. App. 155a. 

9 

HUD was not subject to an ADA claim. As a result, no 
ADA claim is before the Court on this certiorari 
petition filed by HUD. 

The court issued a preliminary injunction prohibiting 
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. The 
injunction was not limited merely to the four tenants 
who had brought the case, but broadly applied to all 
“leases of tenants.” Id. at 165a. The court also enjoined 
OHA from prosecuting any of the three eviction actions 
that remained pending in state court after the Rucker 
action was dismissed. Id. at 166a. The court noted, 
however, that OHA “is not preliminarily enjoined 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 
ADA. Ibid.; see also id. at 163a. 

4. A divided panel of the Ninth Circuit reversed the 
district court’s decision and vacated the preliminary 
injunction. Pet. App. 68a-137a. The majority “con- 
cluded that the plain language 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, household 
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. 69a. By a 7-4 vote, the en banc court affirmed 
the district court’s entry of a preliminary injunction. 

10 

Id. at 1a-67a. The court noted that the issue before it 
was whether “the district court * * * based its deci- 
sion on an erroneous legal interpretation” of Section 
1437d(l)(6), “thereby abusing its discretion.” Id. at 10a. 
The court stated therefore that it would address “the 
proper interpretation of § 1437d(l)(6), a question of law 
which we review de novo.” Ibid. The court held that “if 
a tenant has taken reasonable steps to prevent criminal 
drug activity from occurring, but, for a lack of knowl- 
edge 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 interpre- 
tation of the statute, under which the tenant is not 
“excused from contractual responsibility 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. at 51,567, 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 interpretation is not entitled to 
deference” under Chevron. Pet. App. 11a. 

The court first examined the text of Section 
1437d(l)(6). The court concluded that the statutory lan- 
guage “does not compel either party’s interpretation” 
because it “does not expressly address the level of per- 
sonal knowledge or fault that is required for eviction, or 
even make it clear who can be evicted.” Pet. App. 12a. 
The court was of the view, however, that construing the 
statute to permit eviction of tenants who are not shown 
to have known of the drug-related activity would be 
“irrational” and “thus would require PHAs to include 
an unreasonable term in their leases,” in violation of 
Section 1437d(l)(1). Id. at 15a. In particular, the court 
stated, permitting such evictions “could not have a 

11 

deterrent effect because the tenant would have already 
done all that tenant could do to prevent the third-party 
drug activity.” Id. at 14a. 

The court also believed that a separate statutory 
provision supported its interpretation. The court noted 
that in 1988, when Congress first enacted what is now 
Section 1437d(l)(6), Congress also amended a pre- 
existing civil forfeiture provision in 21 U.S.C. 881(a)(7) 
(1982 ed. Supp. V 1987) specifically to include leasehold 
interests among the property that was subject to 
forfeiture because it was used to commit or facilitate a 
drug-related offense. See Anti-Drug Abuse Act of 
1988, § 5105, 102 Stat. 4301. At the time of the amend- 
ment, that provision already contained an “innocent 
owner” defense that precluded forfeiture “by reason of 
any act or omission established by th[e] owner to have 
been committed or omitted without the knowledge or 
consent of that owner.” 21 U.S.C. 881(a)(7) (1982 ed. 
Supp. V 1987).4 The court “presume[d] Congress meant 
[the forfeiture provision and Section 1437d(l)(6)] to be 
read consistently.” Pet. App. 17a. 

The court also relied on the legislative history of the 
1990 amendment to Section 1437d(l)(6). The committee 
report on the Senate version of the bill stated: 

The committee anticipates that each case will be 
judged on its individual merits and will require the 
wise exercise of humane judgment by the PHA and 
the eviction court. For example, eviction would not 
be the appropriate course if the tenant had no 
knowledge of the criminal activities of his/her guests 

4 This provision has now been replaced by a general “innocent 
owner” defense to civil forfeiture. See Pub. L. No. 106-185, § 2(a), 
114 Stat. 202, to be codified at 18 U.S.C. 983(d). See Pet. App. 16a 

n.1. 

12 

or had taken reasonable steps under the circum- 
stances 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 “the Committee assumes that if the tenant had no 
knowledge of the criminal activity or took reasonable 
steps to prevent it, then good cause to evict the 
innocent family members would not exi[s]t.” Id. at 127. 
Rejecting HUD’s argument that the report simply 
“indicates Congress’s intent to confer wide discretion 
on HUD and the local PHAs,” Pet. App. 20a, the court 
held that the “reports are very clear that such evictions 
would not be appropriate, and that in such circum- 
stances good cause to evict would not exist.” Id. at 21a. 
Accordingly, the court “reject[ed] HUD’s interpreta- 
tion as contrary to the clearly expressed intent of Con- 
gress.” Ibid. 

The court added that HUD’s interpretation of the 
statute should be rejected because it would, in the 
court’s view, 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 concluded that the principle of 
constitutional avoidance supported 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 dis- 

13 

tinguished Bennis v. Michigan, 516 U.S. 442 (1996), 
which permitted 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’s primary distinction of 
Bennis was that the property in Bennis had been “used 
in criminal activity,” while the leasehold interests here 
(with the exception of Walker’s apartment) had not 
been. Pet. App. 25a. 

The court affirmed the district court’s grant of a 
preliminary injunction. In addition, without discussing 
any issues concerning the allocation of the burden-of- 
proof, the court stated that “OHA remains free to 
proceed with evictions for off-premises drug activities 
when it can prove the tenant knew or should have 
known of the activity.” Pet. App. 28a (emphasis added); 
see also id. at 29a & 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 construction of the statute.” 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 contro- 
versy leads to the same conclusion.” Id. at 33a-34a. 
Judge Sneed noted that the text of Section 
1437d(l)(6) authorizes eviction when “ a ‘public housing 
tenant, any member of the tenant’s household, or any 
guest or other person under the tenant’s control’ en- 
gages in ‘any drug related criminal activity.’ ” Pet. App. 
35a. He explained that “[t]he majority’s reading of the 
statute requires that the drug user fall into two of the 
categories—a drug user must be both a household 
member/guest and under the tenant’s control”—a read- 

14 

ing that “renders the enumerated categories (tenants, 
household members, guests) superfluous.” Id. at 37a. 

Judge Sneed also believed that other statutory pro- 
visions supported HUD’s construction of the statute. 
In his view, for example, the fact that Congress 
included express “innocent owner” language in the for- 
feiture statute merely underscores the significance of 
Congress’s omission of any similar language in Section 
1437d(l)(6). Pet. App. 42a-44a. See also id. at 40a-42a 
(discussing 42 U.S.C. 1437d(c)(4)(A) (1994)). 

Judge Sneed disputed the majority’s contention that 
Section 1437d(l)(1) would impose an “unreasonable” 
lease term if it permitted eviction of tenants who were 
ignorant of the drug-related conduct. He explained 
that “[t]he ignorant tenant eviction provision rationally 
addresses” Congress’s concerns about the serious prob- 
lems caused by drug crimes in public housing projects, 
because it gives the public housing authority “a credible 
deterrent against criminal activity” and because 
“requir[ing] proof of knowledge on the part of the 
tenant of the criminal activity of a guest is impractical” 
in any case in which the tenant was not himself found in 
the presence of the offender during the drug-related 
criminal activity. Pet. App. 51a. He also noted that the 
provision empowers other tenants to report drug- 
related activity, and thereby help clean up their own 
projects, “without fearing the possibility of retaliation” 
from drug dealers. Id. at 53a. He added 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. 

15 

Finally, Judge Sneed concluded that Section 
1437d(l)(6), without an “ignorant owner” exception, is 
constitutional. He explained that “[t]he failure to dis- 
tinguish between the knowing and unknowing tenant 
need survive only minimal scrutiny,” especially in light 
of the fact that “Congress must draw distinctions ‘in 
order to make allocations from a finite pool of re- 
sources.’ ” 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 continued, “Congress 
has limited the right to reside in public housing to those 
individuals who agree to accept responsibility for the 
drug-related criminal activity of their household 
members and guests.” Id. at 58a. The provision thus 
“facilitates the eviction of truly culpable tenants, 
creates incentives for all tenants to report drug-related 
criminal activity, and provides a credible deterrent 
against criminal activity.” Id. at 61a. And “[b]ecause 
the eviction provision is discretionary, the provision 
also motivates tenants to accept remedial actions short 
of eviction.” Ibid. For those reasons, Judge Sneed 
concluded, the statute is constitutional. 

REASONS FOR GRANTING THE PETITION 

As the court of appeals itself recognized, “[m]any of 
our nation’s poor live in public housing projects that, by 
many accounts, are little more than illegal drug mar- 
kets and war zones. Innocent tenants live barricaded 
behind doors, in fear for their safety and the safety of 
their children.” Pet. App. 2a. In an effort to end what 
Congress termed the “reign of terror” imposed by drug 
dealers on public housing tenants, 42 U.S.C. 11901 (1994 
& Supp. IV 1998), Congress enacted Section 1437d(l)(6) 
in 1988 and strengthened it in 1990 and 1996. The 
decision of the court of appeals drains much of the 

16 

meaning and significance from that statute and the 
implementing regulation issued by HUD. The result is 
to deprive public housing authorities of an important 
tool to achieve safe and liveable public housing, and to 
deprive public housing tenants of protection that 
Congress found to be of central importance for their 
security and well-being. 

Most cases construing Section 1437d(l)(6) arise in 
state, not federal, court, because issues concerning its 
application typically arise in eviction cases brought in 
state court. There is division in the state courts as to 
whether Section 1437d(l)(6) authorizes eviction regard- 
less of the tenant’s knowledge of criminal conduct by 
persons specified in the statute, although most state 
courts have agreed with HUD’s position that the 
statute does not contain an exception for situations 
involving lack of knowledge. Moreover, the Ninth 
Circuit’s decision conflicts with the interpretation of the 
statute by the Supreme Court of Tennessee, which 
determined that “both the language of [the applicable] 
lease, and the federal statute from which it is derived, 
clearly impose strict liability upon the resident or 
household members for engaging in drug-related 
criminal activity.” Memphis Hous. Auth. v. Thompson, 
38 S.W.3d 504, 512 (2001). The Ninth Circuit’s decision 
also conflicts with the decision of the Minnesota 
Supreme Court in Minneapolis Public Housing 
Authority v. Lor, 591 N.W.2d 700 (1999), which held 
that Section 1437d(l)(6) and the implementing HUD 
regulation authorize a public housing authority to 
terminate a lease based on the criminal conduct of a 
household member even when the tenant does not have 
knowledge of the conduct. 

In addition, the Ninth Circuit’s decision is at odds 
with core principles of administrative law recognized by 

17 

this Court, since the court of appeals’ decision rested on 
its own conclusions about the best interpretation of 
Section 1437d(l)(6), rather than deference to HUD’s 
considered view that that provision does not admit of 
an “ignorant owner” or “innocent owner” exception. 
And because the en banc court’s decision rests on its de 
novo construction of the statute, it will not be open to 
modification in any further proceedings on remand. 
The court’s decision therefore will govern all public 
housing authorities in a large geographic area of the 
country. Accordingly, review by this Court of the 
important and recurring issue presented is warranted. 

1. The Ninth Circuit 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.” Pet. App. 26a. 
Indeed, the court’s decision could be read to have 
concluded that the burden of proof with respect to 
whether a tenant had “a lack of knowledge or other 
reason” for failure to control the drug-related activity 
rests with the public housing authority. See id. at 28a 
(“OHA remains free to proceed with evictions for off- 
premises drug activities when it can prove the tenant 
knew or should have known of the activity.”); id. at 29a 
& n.10; compare id. at 51a-54a (Sneed, J., dissenting).5 

5 The court of appeals noted that the district court did not 
enjoin OHA from pursuing evictions of tenants “when the drug- 
related activity occurs within the tenant’s apartment, creating a 
rebuttable presumption that [the] tenant controls what occurs in 
his or her unit.” Pet. App. 28a-29a. In fact, the reference in the 
district court’s opinion to a “rebuttable” presumption in those 
circumstances was to what the plaintiff tenants argued, not what 
the district court’s decision held. See id. at 162a. Of course, 

18 

Thus, eviction would depend on difficult questions of 
proof as to whether the tenant knew of the drug-related 
activity and, perhaps, whether the tenant had the 
ability to control it.6 

The Ninth Circuit’s interpretation of Section 
1437d(l)(6) essentially neutralizes an important tool 
that Congress designed to assist in ridding public 
housing of the scourge of drug-related criminal activity. 
Aside from the rare case in which the tenant is caught 
in the immediate presence of a household member or 
guest using or trafficking in drugs, the showing re- 
quired by the Ninth Circuit (especially if, as the Ninth 
Circuit appeared to suggest, the burden of proof is on 
the housing authority) will be an insuperable obstacle 
to eviction. In most cases, a tenant threatened with 
eviction is likely to deny any knowledge of or ability to 
control drug-related criminal activity. 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. 

The housing authority typically will have little ability 
to contest the tenant’s denial of knowledge or control. 
Proving the knowledge of those who directly partici- 

imposition of such a rebuttable of presumption of control, even 
when drug-related criminal activity occurs in the unit itself, would 
undermine the important purposes underlying Section 1437d(l)(6). 

6 The court’s test appears to rest ultimately on whether the 
tenant could control the household member or guest. See Pet. 
App. 26a. But in another portion of its opinion, the court stated 
that “[t]he district court’s injunction does not address the issue of 
whether tenants who have knowledge of off-premises drug 
activities by household members may be evicted if they attempt in 
good faith to prevent their household members from engaging in 
such activity, but are unable to do so. Accordingly, we do not con- 
sider that question here.” Id. at 28a n.9. 

19 

pate 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 investigative 
techniques when appropriate. Under the Ninth 
Circuit’s standard, however, public housing authorities, 
who have none of those tools available, apparently must 
prove the knowledge of tenants who are not necessarily 
direct participants in the criminal activity at all. 
Section 1437d(l)(6) was formulated to deal with that 
problem by enabling housing authorities to maintain 
the security of public housing projects by removing 
tenants who allow drug criminals into their units. The 
Ninth Circuit’s decision substantially undermines the 
ability of public housing authorities to use Section 
1437d(l)(6) to achieve that goal, and to do so as swiftly 
as possible. 

Of course, the fact that the clause permits PHAs to 
evict tenants who violate it does not mean that it 
requires PHAs to do so in all circumstances. To the 
contrary, HUD regulations provide that “[i]n 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 in- 
volved in the proscribed activity.” 24 C.F.R. 
966.4(l)(5)(i). In this very case, OHA voluntarily ceased 
its effort to evict tenant Rucker, presumably based on a 
consideration of the factors enumerated by HUD. 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 

20 

public housing authority is in the best position to assess 
the seriousness of a drug problem at a given project and 
the contribution to that problem made by a particular 
tenant, other household members, and other persons 
connected with the unit. Under the Ninth Circuit’s 
decision, however, that discretion is largely nullified. 

2. The Ninth Circuit’s construction of Section 
1437d(l)(6) conflicts with the interpretation of the same 
statute by the Tennessee Supreme Court in Memphis 
Housing Authority v. Thompson, supra. In that case, 
the court reviewed the conflicting decisions from lower 
courts addressing the meaning of Section 1437d(l)(6), 
including the Ninth Circuit’s en banc decision in this 
case. See 38 S.W.3d at 509-511. The court noted that 
the statute, and the lease provisions that were derived 
from the statute, “refer to four separate categories of 
people: (1) the resident * * *; (2) household members; 
and (3) guests or (4) other persons under the resident’s 
control.” Id. at 511-512. It then concluded that “both 
the language of this lease, and the federal statute from 
which it is derived, clearly impose strict liability upon 
the resident or household members for engaging in 
drug-related criminal activity.” Id. at 512 (emphasis 
added). By contrast, the Court concluded that “the 
language is not clear with respect to the standard that 
applies to a guest or other person under the resident’s 
control.” Ibid. In those situations, the court held that 
the statute and lease provision “permit[] eviction only if 
[the housing authority] establishes that [the tenant] 
knew or should have known of the drug-related crimi- 
nal activity ‘of a guest or other person’ and failed to 
take reasonable steps to prevent or halt it.” Id. at 513. 
The Supreme Court of Tennessee thus explicitly dis- 
agreed with the Ninth Circuit that knowledge must be 
shown in cases in which the eviction is based on conduct 

21 

of household members—as it was in the case of the 
three tenants (Rucker, Lee, and Hill) whose claims are 
the focus of this petition.7 Although the Supreme Court 
of Tennessee in Thompson agreed with the Ninth 
Circuit’s approach when Section 1437d(l)(6) is applied 
to drug-related activity by guests or other persons 
under the tenant’s control—i.e., non-household mem- 
bers—none of the three tenants whose claims are at 
issue here was threatened with eviction based on con- 
duct of a non-household-member.8 Accordingly, there is 
an explicit disagreement between the Ninth Circuit and 
the Supreme Court of Tennessee with respect to each 
of the claims at issue in this petition. 

It is true that Thompson itself arose from an 
attempted eviction based on the conduct of a guest of a 
tenant—unlike this case, which arose from attempted 
evictions based on the drug-related conduct of house- 

7 Three instances of drug-related criminal activity occurred in 
Walker’s apartment. Therefore, in the absence of Walker’s ADA 
claim, even the Ninth Circuit would have held that knowledge 
could be presumed and he could be evicted under Section 
1437d(l)(6). See Pet. App. 29a. Based on the district court’s unap- 
pealed ruling that HUD may not be sued under the ADA, 
however, HUD is no longer a defendant with respect to Walker’s 
ADA claim. See p. 8, supra. Accordingly, we do not challenge in 
this petition the court of appeals’ ruling or the district court’s 
injunction against OHA insofar as it concerns Walker’s ADA claim. 

8 In our view, the court in Thompson erred in holding that the 
tenant’s knowledge or control must be shown where the eviction is 
based on drug-related criminal activity by a “guest or other per- 
son.” The statutory term “control” simply “means that the tenant 
‘controls’ who has access to the premises” and it “in no way implies 
that the tenant knew or should have known of the drug activity.” 
Housing Auth. v. Green, 657 So. 2d 552, 554 (La. Ct. App.), writ 
denied, 661 So. 2d 1355 (La. 1995), cert. denied, 517 U.S. 1169 
(1996). 

22 

hold members. But the Supreme Court of Tennessee 
was unequivocal in its interpretation of Section 
1437d(l)(6), stating that “we hold that the lease agree- 
ment imposes strict liability for drug-related criminal 
activity engaged in by the tenant or any household 
member.” 38 S.W.3d at 505. Regardless of whether the 
court’s statement thus amounts to a square holding in 
light of the particular facts of Thompson, it is at least 
true that the Supreme Court of Tennessee has 
definitively spoken to the question of the meaning of 
Section 1437d(l)(6), and that ruling would have resulted 
in a decision reversing the district court in this case.9 

9 Most other courts that have addressed the issue likewise have 
held that eviction does not depend on the tenant’s knowledge of 
the criminal activity, without distinguishing (as the Tennessee 
Supreme Court did) between members of the household and guests 
or other persons under the tenant’s control. The cases typically 
have involved drug-related activities in the tenant’s apartment. 
See, e.g., City of South San Francisco Hous. Auth. v. Guillory, 49 
Cal. Rptr. 2d 367, 371-372 (App. Dep’t Super. Ct. 1995) (eviction 
permissible without showing of tenant’s knowledge); Housing 
Auth. v. Green, 657 So. 2d at 554 (“[W]hen the Congress * * * 
enacted this law it did so without the imposition of a knowledge 
requirement.”); Ann Arbor Hous. Comm’n v. Wells, 618 N.W.2d 
43, 45 (Mich. Ct. App. 2000) (“[W]e hold that a public housing 
tenancy may be terminated under [Section 1437d(l)(6)] regardless 
of whether the tenant had knowledge of the drug-related activity 
conducted on or off the premises by the tenant, a member of the 
tenant’s household, or a guest or another person under the tenant’s 
control.”); Willock v. Schenectady Mun. Hous. Auth., 706 N.Y.S.2d 
503, 505 (App. Div. 2000) (permitting eviction “regardless of 
knowledge or fault on the part of the tenant”); Syracuse Hous. 
Auth. v. Boule, 701 N.Y.S.2d 541, 541 (App. Div. 1999) (“We reject 
the contention of respondent that, because she was not aware of 
the drug-related criminal activity and did not consent to it, good 
cause did not exist for her eviction.”). But see Delaware County 
Hous. Auth. v. Bishop, 749 A.2d 997 (Pa. Commw. Ct.) (“[W]e 

23 

Moreover, in Minneapolis Public Housing Authority 

v. Lor, supra, the Supreme Court of Minnesota has 
squarely held, in a case that did involve an eviction 
based on the criminal conduct of a household member, 
that Section 1437d(l)(6) and the implementing HUD 
regulation authorized the termination of a lease and 
eviction of the tenant by a court, even though the trial 
court in that case found that the tenant had no 
knowledge of the criminal conduct of the household 
member and no reason to anticipate that conduct. 
These considerations, the court held, were instead 
factors the housing authority could take into account in 
deciding, in the exercise of its discretion, whether to 
terminate the lease and seek eviction. See 591 N.W.2d 
at 702, 703-704. 

Although Lor involved a violent shooting by a house- 
hold member, not drug-related activity, the question 
whether a tenant’s lease may be terminated under Sec- 
tion 1437d(l)(6) for criminal conduct by a household 
member of which the tenant had no knowledge is the 
same under that Section for both types of criminal 
conduct. The Ninth Circuit’s decision in this case thus 

refuse to hold a tenant strictly liable for unforeseeable criminal 
acts committed, without the tenant’s knowledge, by family 
members who are not under the tenant’s control.”), app. denied, 
764 A.2d 1073 (Pa. 2000), cert. denied, No. 00-1272 (Apr. 16, 2001). 

In cases involving non-drug violent conduct, the courts have 
divided. Compare Charlotte Hous. Auth. v. Patterson, 464 S.E.2d 
68, 71 (N.C. Ct. App. 1995) (must be showing of tenant’s fault in 
case involving violence by household member), with Chavez v. 
Housing Auth., 973 F.2d 1245, 1248 (5th Cir. 1992) (stating in case 
involving violence by household member or guest 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”); Minneapolis Pub. Hous. Auth. v. Lor, supra (no need for 
showing of fault in case involving violence by household member). 

24 

conflicts with that of the Minnesota Supreme Court in 
Lor as well. 

3. The court of appeals misread the applicable stat- 
ute and disrespected settled principles of administra- 
tive law in refusing to defer to HUD’s interpretation. 

a. The court of appeals erred in finding that the 
statutory text is ambiguous. Section 1437d(l)(6) re- 
quires a particular clause to be included in public 
housing leases. The clause does not condition a lease 
violation on the tenant’s knowledge of the drug activity. 
Nor does it condition a lease violation on the tenant’s 
“control” over the offender’s criminal conduct, espe- 
cially where, as here, the activity was undertaken by a 
“tenant” or a “member of the tenant’s household.” See 
note 8, supra. Instead, drug-related criminal activity 
by “any” individual within those categories is sufficient 
to warrant eviction. 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 Web- 
ster’s Third New International Dictionary 97 (1976)). 
To paraphrase Gonzales, because “Congress did not add 
any language limiting the breadth of that word,” it 
must be read as “referring to all [tenants, members of 
the tenant’s household, or guests].” Ibid. 

b. Even if Section 1437d(l)(6) were ambiguous, 
however, HUD’s regulation construing that statute not 
to require proof of knowledge or control by the tenant 
would be dispositive. The court gave four bases for its 
contrary conclusion. None of them supports the court 
of appeals’ conclusion. But even if they did, they would 
at most show that the court’s de novo interpretation of 
the statute is inconsistent with HUD’s conclusion. 
Taken separately or together, they do not show that 
HUD’s interpretation is impermissible under Chevron. 

25 

i. The court of appeals relied in large part on the 
“innocent owner” defense that Congress provided in 
21 U.S.C. 881(a)(7) (1994) to civil forfeiture of any 
property (not merely a leasehold interest) that is used 
“to facilitate the commission of ” drug related offenses. 
Pet. App. 15a-18a. That defense precludes forfeiture on 
the basis of “any act or omission established by th[e] 
owner to have been committed or omitted without the 
knowledge or consent of th[e] owner.” Id. at 43a n.6. 
Congress’s determination to include an express inno- 
cent owner defense to civil forfeiture underscores the 
significance of Congress’s failure to include any such 
defense or exception in the lease clause mandated by 
Section 1437d(l)(6). The civil forfeiture provision thus 
supports HUD’s construction of the statute. See id. at 
42a-44a (Sneed, J., dissenting). But even if we were 
incorrect in contending that the civil forfeiture provi- 
sion affirmatively supports HUD’s interpretation, the 
inclusion of that express defense in the civil forfeiture 
statute enacted four years before Section 1437d(l)(6) 
could not possibly establish that HUD’s interpretation 
of the very different language of Section 1437d(l)(6)— 
which contains no similar clause and applies to consen- 
sual lease transactions rather than forfeitures that have 
nothing to do with consent—is impermissible. 

ii. The court of appeals also relied on the proposition 
that applying the statute as written would lead to 
“absurd results,” such as the eviction of tenants who in 
fact could not keep their household member from com- 
mitting drug offenses, whose household member com- 
mitted drug offenses at a place far removed from the 
public housing project, or whose household member 
committed a drug offense years ago. Pet. App. 21a-22a. 
The examples posited by the court of appeals, however, 
would not be “absurd” in all cases, and PHAs do not 

26 

ordinarily choose to evict tenants unless harsh results 
are in the end justified by the other benefits of the 
statute in its general operation. 

There is no reason to believe that public housing 
authorities have exercised (or would exercise) their 
discretion to evict tenants in extreme cases; the only 
concrete example given by the court of appeals (that of 
tenant Rucker, see Pet. App. 22a) is one in which OHA 
dropped its effort to evict the tenant. Moreover, it is 
not at all unreasonable to believe that persons who 
commit drug offenses far from home will also commit 
(or have committed) similar offenses close to home as 
well. And the prospect of evicting a tenant because of a 
long-past drug offense of a household member or guest 
is not likely to be realistic; the statute as construed by 
HUD permits eviction only for drug-related criminal 
activity that occurs while the individual 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 house- 
hold member at the time of the criminal activity in 
question, not whether the person was a guest at some 
time in the past.”). 

In any event, whatever might be the appropriate 
course for a PHA to follow in the myriad factual 
scenarios that may arise, there can be no question that 
the broad sweep of Section 1437d(l)(6), as authorita- 
tively construed by HUD, “facilitates the eviction of 
truly culpable tenants, creates incentives for all tenants 
to report drug-related criminal activity, and provides a 
credible deterrent against criminal activity.” Pet. App. 
61a (Sneed, J., dissenting). It therefore offers hope to 
help resolve what Congress identified as a crisis situa- 
tion in public housing, the foremost impact of which is 
on the truly innocent tenants in other units of the same 

27 

project whose households in no way contribute to the 
problem. The fact that the result might seem harsh in 
some instances in no way suggests that the scheme as a 
whole 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). 

iii. The court’s reliance on the legislative history of 
the 1990 version of Section 1437d(l)(6) also furnishes no 
justification for rejecting HUD’s construction. The 
Senate Report on which the court relied (see Pet. App. 
20a-21a) stated that cases arising under Section 
1437d(l)(6) lease provisions “will require the wise exer- 
cise of humane judgment by the PHA and the eviction 
court” and that “eviction would not be the appropriate 
course if the tenant had no knowledge of the criminal 
activities of his/her guests or had taken reasonable 
steps under the circumstances to prevent the activity.” 
S. Rep. No. 316, supra, at 179; see also id. at 127 (“[T]he 
Committee assumes that if the tenant had no knowl- 
edge of the criminal activity or took reasonable steps to 
prevent it, then good cause to evict the innocent family 
members would not exi[s]t.”). 

The court of appeals failed to recognize that the 
committee report was discussing a Senate bill quite 
different from the one that was enacted, and one that 
imposed a considerably greater burden on the PHA in 
terms of what would constitute cause for eviction for 
drug-related crimes than Section 1436d(l)(6) as finally 
enacted. See 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 Confer- 
ence Report declined to accept that language from the 
Senate bill and instead adopted the unqualified lan- 
guage of Section 1436d(l)(6). See H.R. Conf. Rep. No. 

28 

943, 101st Cong., 2d Sess. 418 (1990). Moreover, even 
the passages on which the court of appeals relied 
establish no more than an intent to endow PHAs with 
discretion and suggest how that discretion should be 
exercised. Those passages do not establish that 
Congress intended to withhold all discretion from 
PHAs to proceed with eviction in cases where they 
cannot prove knowledge or control by the tenant. And 
those passages in a report describing provisions that 
were not enacted into law certainly do not establish 
that Section 1437d(l)(6) as enacted forecloses HUD’s 
interpretation. 

iv. Finally, the court of appeals relied on the doctrine 
of constitutional avoidance to reject HUD’s construc- 
tion of Section 1437d(l)(6). The court based its con- 
clusion on the proposition that “[p]enalizing conduct 
that involves no intentional wrongdoing by an individ- 
ual 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, however, have no application here. 
Section 1437d(l)(6) does not impose a penalty. Instead, 
it enforces what is essentially a warranty by a tenant 
that his household will not be the source of a potential 
hazard (the commission of drug-related criminal 
offenses or the harboring of people who commit such 
offenses) to other tenants. The tenant is free to find 
other housing and thus not to make that warranty. 
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 wrong- 
doing, intentional or otherwise. It follows a fortiori 
that a tenant may be evicted for her failure to comply 

29 

with a consensual provision to which she agreed in her 
lease, even if that failure was not otherwise her fault. 
That result follows from the straightforward applica- 
tion of settled principles of contract interpretation and 
enforcement. 

4. Although the appeal in this case was taken from 
the issuance of a preliminary injunction, the procedural 
posture of the case poses no obstacle to this Court’s 
review. The Ninth Circuit itself noted that, although it 
reviews a preliminary injunction for abuse of discretion, 
“[t]he district court * * * necessarily abuses its 
discretion when it bases its decision on an erroneous 
legal standard or on clearly erroneous findings of fact.” 
Pet. App. 8a. Given the contentions of the parties in 
this case, the court stated that the issue before it was 
“the proper interpretation of § 1437d(l)(6), a question of 
law which we review de novo.” Id. at 10a. The court 
went on to state its conclusions regarding the meaning 
of Section 1437d(l)(6) in entirely unequivocal terms. 
See, e.g., ibid. (“Congress has spoken on the issue and 

* * * HUD’s interpretation is contrary to congres- 
sional intent.”); id. at 14a (“It is * * * our task to 
determine the meaning of subsection (6).”); id. at 21a 
(“Accordingly, we reject HUD’s interpretation as con- 
trary to the clearly expressed intent of Congress.”); 
id. at 31a (“We find that Congress did not intend 
§ 1437d(l)(6) to permit the eviction of innocent ten- 
ants.”). The court of appeals also made quite clear that 
its holding turned on the provisions of Section 
1437d(l)(6), not the particular lease terms at issue in 
this case. See id. at 28a (“Th[e] lease provision was 
required by the very HUD regulations we have 
invalidated, and is simply the embodiment of the 
erroneously broad interpretation of § 1437d(l)(6).”). 
Thus, the Ninth Circuit, sitting en banc, has definitively 

30 

interpreted Section 1437d(l)(6). That determination is 
not open to modification or reconsideration on remand 
in this case or in any other case. The legal issues are 
squarely presented at this time. For the reasons given 
above, review of the court of appeals’ decision by this 
Court is warranted. 

CONCLUSION 

The petition for a writ of certiorari should be 
granted. 

Respectfully submitted. 

GEORGE L. WEIDENFELLER 
Acting 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 
BARBARA D. UNDERWOOD 

Acting Solicitor General 

STUART E. SCHIFFER 

Acting Assistant Attorney 

General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

BARBARA C. BIDDLE 
HOWARD SCHER 

Attorney 

MAY 2001