No. 00-1770 

In the Supreme Court of the 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 

REPLY BRIEF FOR THE PETITIONER 

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 

A. The question presented is important .......................... 
2 

B. There is a conflict with state court authority ............ 
3 

C. The case is ripe for review ............................................ 
6 

TABLE OF AUTHORITIES 

Cases: 

Memphis Housing Authority v. Thompson, 38 

S.W.3d 504 (Tenn. 2001), petition for certiorari 
pending, No. 00-1861 (filed June 13, 2001) ........................ 

3, 5 
Minneapolis Public Housing Authority v. Lor, 
591 N.W.2d 700 (Minn. 1999) .............................................. 
3, 4 

United States v. Oakland Cannabis Buyers’ 

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

6 

Statutes and regulations: 

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

passim 

42 U.S.C. 11901(3) ..................................................................... 
2 

24 C.F.R. 

Section 996.4(f)(12)(ii)(B) ..................................................... 

8 

Section 996.4(l)(5)(i)(B) ......................................................... 
8 

Miscellaneous: 

66 Fed. Reg (May 24, 2001): 

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

8 

pp. 28,777-28,778 .................................................................... 
9 

p. 28,781 ................................................................................... 
8, 9 

p. 28,782 ................................................................................... 
9 

p. 28,791 ................................................................................... 
9 

p. 28,792 ................................................................................... 
9 

pp. 28,802-28,803 .................................................................... 8, 9 

(I) 

In the Supreme Court of the United States 

No. 00-1770 

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 

REPLY BRIEF FOR THE PETITIONER 

The statute at issue in this case is a critical tool for fight- 
ing the scourge of drug use and trafficking in public housing 
complexes and by public housing residents. See Pet. 15; Pet. 
App. 2a-3a. It provides that public housing leases must 

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

42 U.S.C. 1437d(l)(6) (Supp. V 1999). This petition involves 
drug-related criminal activity by a “member of the tenant’s 
household” that takes place outside the tenant’s apartment. 
See Pet. 21 n.7. The court of appeals held that in those cir- 
cumstances, “if a tenant has taken reasonable steps to 

(1) 

2 

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 ten- 
ant.” Pet. App. 26a. In other words, if the tenant does not 
have knowledge of the drug activity, the tenant may not be 
evicted under Section 1437d(l)(6). 

As we explain in the petition (at 24-29), the court of ap- 
peals’ decision is seriously flawed, conflicting with the text, 
purposes, legislative history, and HUD’s authoritative 
administrative interpretation of Section 1437d(l)(6). See also 
pages 8-9, infra. Indeed, in their brief in opposition, re- 
spondents offer no defense of the court of appeals’ ruling on 
the merits. That erroneous ruling by the en banc Ninth 
Circuit—issued over four dissents—warrants review by this 
Court, because it conflicts with state supreme court 
precedent and seriously undermines the ability of Congress 
and public housing authorities to afford public housing 
tenants protection from drug use and violent criminal activ- 
ity that is essential to the security of their homes. 

A. The Question Presented Is Important 

Section 1437d(l)(6) is based on the premise that drug- 
related criminal activity by someone living in or visiting a 
public housing unit poses a threat to innocent neighbors. 
Accordingly, a tenant who provides the wrongdoing individ- 
ual the license to be on public housing premises is held re- 
sponsible, regardless of whether the tenant knew of the 
drug-related criminal activity. As Judge Sneed explained, 
the provision thus “facilitates the eviction of truly culpable 
tenants” and “provides a credible deterrent against criminal 
activity.” Pet. App. 61a. 

The court of appeals’ decision drains much of the signifi- 
cance from Section 1437d(l)(6) as a tool to end the “reign of 
terror” imposed by drug dealers on public housing tenants. 
42 U.S.C. 11901(3); see Pet. 17-19. That is because it will be 

3 

difficult for housing authorities to prove the tenant’s knowl- 
edge in cases like these, in which the drug activity takes 
place outside the presence of the tenant. In such cases, both 
the tenant and the person engaging in the criminal drug 
activity are likely to deny that the tenant had knowledge of 
it, and the housing authority is likely to find it difficult or 
impossible to challenge such denials. See Pet. 18-19. 

Respondents argue (Br. in Opp. 7) that what they term 
our “speculation about the practical impact of [the court of 
appeals’ decision] relies on the false assumption that the 
decision definitively placed the burden on housing authori- 
ties to affirmatively prove a tenant’s knowledge of drug 
activity.” Our argument, however, does not depend on any 
assumption about the burden of proof on that issue (although 
the Ninth Circuit’s opinion does suggest in at least one place 
that the burden rests with the housing authority, see Pet. 17; 
Pet. App. 28a). Regardless of who has the burden of proof, 
the tenant and household member are likely to deny that the 
tenant had knowledge of the criminal activity, and the 
housing authority is likely to find it difficult or impossible 
to prove to the contrary. See Pet. 18-19. Accordingly, 
as the amici state, the en banc Ninth Circuit’s decision 
“impos[es] unnecessary and improper legal impediments to 
removing criminal elements from public housing, thus 
diminishing the security and quality of life for all public 
housing residents.” Br. of Amici Housing and Development 
Law Institute, et al., at 1. 

B. There Is A Conflict With State Court Authority 

Respondents contend (Br. in Opp. 1-4) that the decision of 
the court of appeals does not conflict with the decisions in 
Minneapolis Public Housing Authority v. Lor, 591 N.W.2d 
700 (Minn. 1999), and Memphis Housing Authority v. 
Thompson, 38 S.W.3d 504, 512 (Tenn. 2001), petition for cert. 
pending, No. 00-1861 (filed Jun. 13, 2001). Although a 
conflict is not a necessary condition to a grant of certiorari, 

4 

there is in fact a conflict in this case. The decision of the en 
banc court of appeals conflicts with the decision of the 
Minnesota Supreme Court in Lor, and it conflicts with the 
interpretation of Section 1437d(l)(6)—although not the 
holding—of the Tennessee Supreme Court in Thompson. 

1. Contrary to respondents’ claim (Br. in Opp. 4) that the 
Minnesota Supreme Court did not “analyze or decide” the 
issues that were before the Ninth Circuit in this case, the 
Minnesota Supreme Court in Lor in fact examined Section 
1437d(l)(6), HUD regulations, and the Senate report relied 
upon by the Ninth Circuit. See 591 N.W.2d at 702-703. 
After considering those materials, the court concluded that 
the trial court “was bound to determine only whether [the 
tenant’s] son engaged in [the] criminal activity and thus 
whether the lease was breached.” Id. at 704 (emphasis 
added). The trial court in Lor had found that the tenant “did 
not have any knowledge of her son’s criminal activity or 
reason to anticipate her son’s acts,” and the Minnesota 
Supreme Court did not question that finding. Id. at 702. 
Notwithstanding the finding that the tenant did not have 
knowledge of or reason to anticipate the household member’s 
criminal activities, the Minnesota Supreme Court held 
that those activities “amount to a material breach of [the 
tenant’s] lease.” Id. at 704.1 
After Lor, therefore, a tenant in Minnesota cannot claim 
that, because the tenant had no knowledge of the criminal ac- 
tivity, the tenant cannot be evicted under Section 1437d(l)(6) 
or its implementing regulations and lease terms. Nor could a 
Minnesota court enjoin a public housing authority from 

1 Lor involved a violent shooting by a household member, not drug- 
related activity, as in this case. Both types of conduct, however, are 
governed by the same terms in Section 1437d(l)(6) permitting eviction for 
the specified conduct (either threatening criminal conduct or criminal 
drug-related activity) that is “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.” 42 U.S.C. 1437d(l)(6) (Supp. V 1999). See Pet. 23. 

5 

evicting tenants who had no knowledge of the criminal activ- 
ity. By contrast, the Ninth Circuit held that “the district 
court properly * * * enjoin[ed] [the public housing author- 
ity] from pursuing evictions under [a lease term dictated by 
Section 1437d(l)(6)] to the extent it seeks to do so for off-pre- 
mises drug-related activity in which the tenant did not know 
of or have reason to know of the criminal activity.” Pet. App. 
28a. Under the Ninth Circuit’s decision, the tenant’s lack of 
knowledge precludes the public housing authority from 
evicting the tenant. The Ninth Circuit’s decision thus con- 
flicts with Lor. 

2. The court of appeals’ decision does not conflict in re- 
sult with Thompson, because Thompson itself involved drug 
activity by a short-term guest (rather than, as in this case, a 
household member), and the Tennessee Supreme Court in 
Thompson construed Section 1437d(l)(6) to impose less strict 
standards on the tenant where a guest—rather than a 
household member—was involved in the drug activity. But 
the decision of the court of appeals does conflict with the in- 
terpretation of Section 1437d(l)(6) adopted by the Tennessee 
Supreme Court in Thompson. See Pet. 20-22. The Tennes- 
see Supreme Court unequivocally stated that “both the lan- 
guage of [the tenant’s] 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.” 38 S.W.3d at 512. By contrast, the Ninth 
Circuit in this case held that if a tenant, “for a lack of 
knowledge or other reason, could not realistically exercise 
control over the conduct of a household member * * *, 
§ 1437d(l)(6) does not authorize the eviction of such a ten- 
ant.” Pet. App. 26a. The tenant’s lack of knowledge of the 
drug activity of a household member completely precludes 
eviction under the Ninth Circuit’s decision; the tenant’s lack 
of knowledge of the drug activity of a household member 
is of no relevance under the strict liability construction 
of Section 1437d(l)(6) adopted by the Tennessee Supreme 

6 

Court. At the very least, Thompson sets forth a considered, 
unequivocal, and very recent construction of Section 
1437d(l)(6) by the highest court of Tennessee that is in direct 
conflict with the construction of the statute adopted by the 
en banc court of appeals in this case.2 

C. The Case Is Ripe For Review 

1. Respondents argue (Br. in Opp. 5) that the fact that 
“the Ninth Circuit’s opinion merely affirms a preliminary in- 
junction * * * alone provides a sufficient basis for denying 
review.” The en banc court of appeals, however, went out of 
its way to make clear that its conclusions were not based 
on a tentative view of the meaning of the statute, but on 
“the proper interpretation of § 1437d(l)(6), a question of law 
which we review de novo” even when it arises on review of a 
preliminary injunction. Pet. App. 10a; see Pet. 29. And, as 
we explain in the petition, the court’s conclusion regarding 
the meaning of Section 1437d(l)(6) was unequivocal. See Pet. 

29. Indeed, the Ninth Circuit presumably decided to render 
an en banc decision for the very purpose of issuing a defini- 
tive ruling on an issue it regarded as being of circuit-wide 
significance. The Ninth Circuit’s construction of Section 
1437d(l)(6) will govern proceedings on remand in this case, 
as well as any subsequent appeal. It will also limit the ability 
of public housing authorities throughout the Ninth Circuit 
to use Section 1437d(l)(6) as a tool to fight drugs in public 
housing projects. The procedural posture of this case thus 
does not affect the need for this Court’s review. See United 
States v. Oakland Cannabis Buyers’ Cooperative, 121 S. Ct. 
1711, 1716-1717 (2001) (noting grant of certiorari to review 
legal ruling at preliminary injunction stage). 

2 As we note in the petition (at 22 n.9), the issue in this case is fre- 
quently litigated, usually in the state courts. The decision of the court of 
appeals conflicts with most of the decisions of the lower state courts that 
have addressed the issue. See Pet. 22 n.9 (citing cases). 

7 

2. Respondents also argue (Br. in Opp. 5) that “further 
proceedings in this case might resolve not only factual dis- 
putes but also significant legal issues affecting the very 
questions that petitioners urge the Court to resolve at this 
time.” In particular, respondents argue (ibid.) that the court 
of appeals did not address “the allocation of the burden of 
proof under the ‘one-strike’ lease provision and the showing 
of knowledge (if any) required in cases where drug activity 
occurs inside a tenant’s apartment unit.” 

a. There is no reason to delay resolution of the question 
presented until the Ninth Circuit has finally determined (if 
it has not done so already, see Pet. 17) the allocation of the 
burden of proof as to the tenant’s knowledge. Indeed, the 
question of how the burden of proof with respect to the 
tenant’s knowledge should be allocated does not even arise 
under our view of Section 1437d(l)(6), since the ability of 
the public housing authority to act does not depend on the 
tenant’s knowledge. The en banc Ninth Circuit’s decision de- 
finitively holds that HUD’s regulations are defective because 
they do permit eviction of owners who are unaware of the 
drug-related criminal activity. That holding is not subject to 
further revision on remand or in a later case. Thus, the 
decision in this case will have a very substantial impact, and 
warrants further review. 

b. There is also no reason to delay review of the question 
presented here until the court of appeals decides the show- 
ing of knowledge required when the drug-related activity 
takes place within the tenant’s housing unit.3 In many cases 

3 In any event, the Ninth Circuit did address the showing required 
when the drug-related activity takes place in the apartment. The court 
understood that the district court’s decision “creat[ed] a rebuttable pre- 
sumption that a tenant controls what occurs in his or her unit,” and found 
that approach “perfectly consistent with [its] interpretation of ‘control’ in 
§ 1437d(l)(6).” Pet. App. 29a; see Pet. 17 n.5. Such a “rebuttable pre- 
sumption” is problematic for the same reasons as the court of appeals’ 
holding in this case, since it permits a tenant and household member to 

8 

(like the ones at issue here, see Pet. 21 n.7), the drug-related 
criminal activity can be expected to occur outside the ten- 
ant’s apartment, even when it takes place (as it did in two of 
the instances at issue in this case, see Pet. 6-7) in the parking 
lot or other grounds of the public housing project. The Ninth 
Circuit definitively held that a tenant without knowledge of 
the drug activity cannot be evicted in such a case. For the 
reasons given above and in the petition, that holding war- 
rants review. 

3. HUD has promulgated new regulations implementing 
Section 1437d(l)(6) and related provisions. 66 Fed. Reg. 
28,776 (May 24, 2001). The regulatory provisions governing 
this case, which involve the eviction of tenants for criminal 
drug activity of household members, are substantively un- 
changed, although they now take into account the 1996 
amendment to Section 1437d(l)(6) (see Pet. 4-5), which 
changed the phrase “on or near such premises” to “on or 
off such premises.” See 66 Fed. Reg. at 28,802-28,803 
(promulgating 24 C.F.R. 966.4(f)(12)(ii)(B) and 24 C.F.R. 
966.4(l)(5)(i)(B)). 

The revised regulations do clarify the statutory terms 
“guest” and “other person under the tenant’s control”— 
neither of which is directly at issue in this case. The over- 
arching principle is that Section 1437d(l)(6) “is not qualified 
by whether the resident knew about or literally ‘controlled’ 
the guest’s unlawful actions. Rather, the question is one of 
legal control; by ‘control,’ the statute means control in the 
sense that the tenant has permitted access to the premises.” 

avoid eviction by denying that the tenant had control over drug use in the 
apartment—a denial that the public housing authority will find it very 
hard as a practical matter to challenge. Indeed, the court of appeals’ 
“rebuttable presumption” necessarily contemplates that there will be 
cases in which the presumption will be rebutted. In such cases, it pre- 
sumably will be impossible to evict the tenant, regardless of the amount of 
drug-related criminal activity that occurs in the apartment. 

9 

66 Fed. Reg. at 28,781. The preamble to the new regulations 
accordingly explains: 

In order to distinguish the concept of ‘other person’ from 
‘guest,’ HUD is defining ‘other person under the tenant’s 
control’ to mean a short-term invitee who is not ‘staying’ 
in the unit. The rule specifies that such a person is only 
under the tenant’s control during the period of the 
invitation and the person is on the premises because of 
that invitation. 

Id. at 28,777-28,778. The regulations add that, “[a]bsent evi- 
dence to the contrary, a person temporarily and infrequently 
on the premises solely for legitimate commercial purposes is 
not under the tenant’s control.” Id. at 28,792; see also id. at 
28,782. Thus, the new regulations provide that drug-related 
criminal activity by a “guest” is a ground for eviction only if 
it occurs during the period when the person is a guest who is 
“staying in” the unit; drug-related criminal activity by some- 
one who is an “other person under the tenant’s control” is 
a ground for eviction only if it occurs on the public housing 
premises; and temporary commercial invitees are not con- 
sidered to be “other person[s] under the tenant’s control.” 
See generally id. at 28,781-28,782 (preamble), 28,791-28,792 
(§ 5.100 (definitions)), 28,802-28,803 (§ 966.4 (grounds for 
eviction)). 

Those changes are entirely consistent with HUD’s long- 
standing position with regard to the issues in this case, and 
they do not alter the analysis or affect the question pre- 
sented. Indeed, because the en banc court of appeals rested 
its decision on what it concluded was the clear statutory 
mandate, see Pet. 29, a change in HUD’s regulations could 
not affect the continued authority of that court’s decision. 

* * * * * 

10 

For the reasons given above and in the petition, the peti- 
tion for a writ of certiorari should be granted. 

Respectfully submitted. 

RICHARD A. HAUSER 

General Counsel 
United States Department of 

Housing and Urban Development 
THEODORE B. OLSON 
Solicitor General 

AUGUST 2001