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 

APPENDIX TO THE 
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 

Assistant Attorney General 

EDWIN S. KNEEDLER 

Deputy Solicitor General 

JAMES A. FELDMAN 

Assistant to the Solicitor 

General 

HOWARD SCHER 

Attorney 

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

TABLE OF CONTENTS 

Page 

Appendix A (court of appeals opinion, Jan. 24, 
2001) ................................................................................ 1a 

Appendix B (court of appeals order, Aug. 18, 
2000) ................................................................................ 68a 

Appendix C (court of appeals opinion, Feb. 14, 
2000) ............................................................................... 70a 

Appendix D (district court memorandum, order 
and preliminary injunction, June 19, 1998) ............ 

138a 

Appendix E (statutory and regulatory provisions 
involved) ....................................................................... 167a 

(I) 

APPENDIX A 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

Nos. 98-16322, 98-16542 

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; 
BARBARA HILL, PLAINTIFFS-APPELLEES 

v. 

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, 
DEFENDANTS 

AND 

UNITED STATES DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT, DEFENDANT-APPELLANT 

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; 
BARBARA HILL, PLAINTIFFS-APPELLEES 

v. 

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, 
DEFENDANTS-APPELLANTS 

AND 

UNITED STATES DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT, DEFENDANT 

Argued and Submitted March 12, 1999 
Opinion filed Feb. 14, 2000 
Rehearing En Banc Granted and 
Opinion Withdrawn Aug. 18, 2000. 
Aruged and Submitted En Banc Sept. 19, 2000 
Filed Jan. 24, 2001 

(1a) 

2a 

Before: SNEED, SCHROEDER, PREGERSON, REIN- 
HARDT, FERNANDEZ, T.G. NELSON, HAWKINS, SILVER- 
MAN, MCKEOWN, GOULD, and PAEZ, Circuit Judges. 

Opinion by Judge MICHAEL DALY HAWKINS; Dis- 
senting by Judge SNEED 

MICHAEL DALY HAWKINS, Circuit Judge: 

Many of our nation’s poor live in public housing 
projects that, by many accounts, are little more than 
illegal drug markets and war zones. Innocent tenants 
live barricaded behind doors, in fear for their safety and 
the safety of their children. What these tenants may 
not realize is that, under existing policies of the Depart- 
ment of Housing and Urban Development (“HUD”), 
they should add another fear to their list: becoming 
homeless if a household member or guest engages in 
criminal drug activity on or off the tenant’s property, 
even if the tenant did not know of or have any reason to 
know of such activity or took all reasonable steps to 
prevent the activity from occurring (“innocent ten- 
ants”). Today we examine the statutory basis behind 
HUD’s “One Strike and You’re Out” policy, and hold 
that Congress did not intend to authorize the eviction of 
innocent tenants. 

I. BACKGROUND 

It is undisputed that serious criminal activity, espe- 
cially drug-related activity, has created a dangerous 
environment in many public housing projects. Officially 
recognizing that “public and other federally assisted 
low-income housing in many areas suffers from ram- 
pant drug-related crime,” Congress sought to address 
the problem with the Anti-Drug Abuse Act of 

3a 

1988. 42 U.S.C. § 11901(2). Congress required each 
public housing agency to utilize leases which: 

(5) 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 prem- 
ises, while the tenant is a tenant in public housing, 
and such criminal activity shall be cause for 
termination of tenancy. 

42 U.S.C. § 1437d(l)(5) (1989). Congress altered the 
language of this provision slightly in 1990, to require 
leases that: 

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

Id. (1991). In 1996, Congress replaced the phrase “on or 
near such premises” with “on or off such premises.” Id. 
(1997). Finally, in 1998, the section was unchanged, but 
redesignated as subsection (l)(6), which is how we refer 
to it in this opinion. Id. (1999). 

In 1991, HUD issued regulations implementing sub- 
section (6), which track the pre-96 statutory language 
very closely. HUD required local public housing 

4a 

authorities (“PHAs”) to impose a lease obligation on 
tenants: 

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). When issuing these 
regulations, HUD made it clear that it interpreted the 
statute (and its own regulations) as giving local PHAs 
the authority to evict a tenant whose household mem- 
bers or guests are involved in drug activity, whether 
the tenant knew or should have known of the activity or 
tried to prevent the activity. Public Housing Lease and 
Grievance Procedures, 56 Fed. Reg. 51,560, 51,567 (Oct. 
11, 1991) (“The tenant should not be 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.”). 

Initially, HUD encouraged PHAs to use discretion in 
deciding whether to evict: 

In deciding to evict for criminal activity, the PHA 
shall have discretion to consider all of the circum- 

5a 

stances of the case, including the seriousness of the 
offense, the extent of participation by family mem- 
bers, and the effects that the eviction would have on 
family members not involved in the proscribed 
activity. In appropriate cases, the PHA may permit 
continued occupancy by remaining family members 
and may impose a condition that family members 
who engaged in the proscribed activity will not 
reside in the unit. 

24 C.F.R. § 966.4(l)(5)(i). However, a directly conflict- 
ing message was sent to the PHAs in 1996 when 
President Clinton announced the “One Strike and 
You’re Out” policy for combating crime in public hous- 
ing, which encourages evictions regardless of circum- 
stances and ties federal funding to increased crime- 
related evictions. John F. Harris, Clinton Links Hous- 
ing Aid to Eviction of Crime Suspects, Washington 
Post, March 29, 1996, Section A, available at 1996 WL 
3071468. 

II. FACTS AND PROCEDURAL BACKGROUND 

Because of the increased enforcement under the “One 
Strike” policy, we are now beginning to see exactly how 
far-reaching HUD’s interpretation of § 1437d(l)(6) can 
be. In the case before us, the Oakland Housing Author- 
ity (“OHA”) commenced separate unlawful detainer 
actions in Alameda County Municipal Court against 
four tenants—Pearlie Rucker, Willie Lee, Barbara Hill 
and Herman Walker—for violation of the lease provi- 
sion obligating tenants to “assure that tenant, any 
member of the household, or another person under the 
tenant’s control, shall not engage in . . . 

6a 

[a]ny drug-related criminal activity on or near the 
premises. . . .” 

Pearlie Rucker is a sixty-three-year-old woman who 
has lived in public housing since 1985. She lives with 
her mentally disabled daughter, her two grandchildren 
and one great-granddaughter. OHA sought to evict 
Rucker because her daughter was found in possession 
of cocaine three blocks from the apartment. Rucker 
asserts that she regularly searches her daughter’s room 
for evidence of alcohol and drug use and has never 
found any evidence or observed any sign of drug use by 
her daughter. Willie Lee, seventy-one, has been a 
public housing resident for over twenty-five years and 
Barbara Hill, sixty-three, has been a public housing 
resident for over thirty years. Lee and Hill currently 
live with their grandsons. OHA sought to evict Lee 
and Hill because their grandsons were caught smoking 
marijuana together in the apartment complex parking 
lot. Lee and Hill contend they had no prior knowledge 
of any illegal drug activity by their grandsons. 

The fourth tenant, Herman Walker, presents a 
slightly different situation. He is a disabled seventy- 
five-year-old man who has lived in public housing for 
approximately ten years. He is not capable of living 
independently and requires an in-home caregiver. On 
three instances within a two-month time frame, 
Walker’s caregiver and two guests were found with 
cocaine in Walker’s apartment. Each time, Walker was 
issued a lease violation notice; with the third notice, 
OHA terminated the lease and initiated an unlawful 
detainer action. Shortly thereafter, Walker fired his 
caregiver. 

7a 

In response to OHA’s actions, the tenants filed the 
present action in federal district court under the 
Administrative Practices Act, 5 U.S.C. §§ 701-706 (the 
“APA”), arguing that 42 U.S.C. § 1437d(l)(6) does not 
authorize the eviction of innocent tenants. They also 
argued that if the statute does authorize such evictions, 
then the statute is unconstitutional. Plaintiff Walker 
also alleged that his eviction would violate the Ameri- 
cans with Disabilities Act (“ADA”). 

The tenants sought a preliminary injunction enjoin- 
ing the unlawful detainer actions against them in state 
court and enjoining the enforcement of HUD’s regu- 
lation and the corresponding provision in the OHA 
lease against innocent tenants. To obtain a preliminary 
injunction, the moving party must show either (1) a 
combination of probable success on the merits and the 
possibility of irreparable harm, or (2) that serious 
questions are raised, and the balance of hardships tips 
sharply in favor of the moving party. Roe v. Anderson, 
134 F.3d 1400, 1401-02 (9th Cir. 1998). Applying this 
standard, the district court found that the tenants had 
raised serious questions on their claim that HUD’s 
interpretation of § 1437d(l)(6) violated the APA. 
Weighing the plaintiffs’ loss of their homes against the 
delay in OHA’s eviction proceedings, the district court 
found the balance of hardships tipped decisively in the 
tenants’ favor, and enjoined OHA from “terminating 
the leases of tenants pursuant to paragraph 9(m) of the 
‘Tenant Lease’ for drug-related criminal activity that 
does not occur within the tenant’s apartment unit when 
the tenant did not know of and had no reason to know 
of, the drug-related criminal activity.” The court also 
found that plaintiff Walker had raised a serious 
question with respect to whether his eviction violated 

8a 

the ADA and enjoined OHA from evicting Walker on 
the basis of his caregiver’s illegal drug use. 

On appeal from the preliminary injunction, a panel of 
this court reversed the district court, holding that 
§ 1437d(l)(6) authorized the eviction of innocent ten- 
ants, that HUD’s interpretation was consistent with 
the statute, and that the statute, so interpreted, was 
not unconstitutional. Rucker v. Davis, 203 F.3d 627 
(9th Cir. 2000). We granted review en banc and vacated 
the panel opinion. Rucker v. Davis, 222 F.3d 614 (9th 
Cir. 2000). We now affirm the district court’s grant of 
the preliminary injunction. 

III. STANDARD AND SCOPE OF REVIEW 

This appeal presents the opportunity to clarify our 
standard and scope of review for preliminary injunc- 
tions, in particular, regarding when it is appropriate to 
reach the “merits” of the underlying case. 

In general, we review a grant or denial of a 
preliminary injunction for abuse of discretion. Gorbach 

v. Reno, 219 F.3d 1087, 1091 (9th Cir. 2000) (en banc). 
The district court, however, necessarily abuses its 
discretion when it bases its decision on an erroneous 
legal standard or on clearly erroneous findings of fact. 
Brookfield Communications, Inc. v . West Coast 
Entertainment Corp., 174 F.3d 1036, 1046 (9th Cir. 
1999); Roe, 134 F.3d at 1402. Thus, if the district court 
is alleged to have relied on an erroneous legal premise 
in reaching its decision to grant or deny a preliminary 
injunction, we will review the underlying issue of law, 
and we do so de novo. Does 1-5 v. Chandler, 83 F.3d 
1150, 1152 (9th Cir. 1996). 

9a 

The scope of our review is likewise normally very 
narrow. We review whether the court employed the 
appropriate legal standards governing the issuance of a 
preliminary injunction and whether the district court 
correctly apprehended the law with respect to the 
underlying issues in the case. California Prolife 
Council v. Scully, 164 F.3d 1189, 1190 (9th Cir. 1999); 
Gregorio T. v . Wilson, 59 F.3d 1002, 1004 (9th Cir. 
1995). We typically will not reach the merits of a case 
when reviewing a preliminary injunction. Roe, 134 F.3d 
at 1402; Gregorio T., 59 F.3d at 1004. By this we mean 
we will not second guess whether the court correctly 
applied the law to the facts of the case, which may be 
largely undeveloped at the early stages of litigation. 
“As long as the district court got the law right, ‘it will 
not be reversed simply because the appellate court 
would have arrived at a different result if it had applied 
the law to the facts of the case.’ ” 

Id. at 1004 (quoting 
Sports Form, Inc. v. United Press Int’l, 686 F.2d 750, 
752 (9th Cir. 1982)). 

Of course, there will be cases in which the district 
court’s interpretation of the law with respect to the 
underlying issues is challenged, and the resolution of 
such a legal question will be dispositive. If a district 
court’s ruling rests solely on a legal question, and the 
facts are established or of no controlling relevance, then 
we may undertake a plenary review of the decision to 
grant a preliminary injunction. Gorbach, 219 F.3d at 
1091 (citing Thornburgh v. American College of 
Obstetricians & Gynecologists, 476 U.S. 747, 755-57, 106 
S. Ct. 2169, 90 L.Ed.2d 779 (1986), overruled in part on 
other grounds, Planned Parenthood v. Casey, 505 U.S. 
833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992)). 

10a 

In this case, neither party suggests that the district 
court applied the wrong preliminary injunction stan- 
dard. HUD and OHA, however, do assert that the dis- 
trict court misapprehended the law with respect to the 
breadth of § 1437d(l)(6). They contend the district 
court therefore based its decision on an erroneous legal 
interpretation, thereby abusing its discretion. Accord- 
ingly, we must turn to the proper interpretation of 
§ 1437d(l)(6), a question of law which we review de 
novo. See, e.g., Foti v. City of Menlo Park, 146 F.3d 
629, 634-35 (9th Cir. 1998); Does 1-5, 83 F.3d at 1152. 

IV. SECTION 1437d(l)(6) 

The parties agree that in interpreting § 1437d(l)(6), 
we apply the framework set forth in Chevron U.S.A., 
Inc. v. Natural Resources Defense Council, Inc., 467 
U.S. 837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). Under 
Chevron, the first question is whether Congress has 
directly spoken to the precise question at issue. Id. at 
842, 104 S. Ct. 2778. To determine whether Congress 
has spoken on the question at issue, we employ the 
traditional tools of statutory construction; if Congress 
had an intent on this issue, that intent is the law and 
must be given effect. Id. at 843 n.9, 104 S. Ct. 2778. 

In this case, a number of statutory construction 
principles lead us to conclude that Congress has spoken 
on the issue and that HUD’s interpretation is contrary 
to congressional intent. In determining whether Con- 
gress has specifically addressed the question at issue, 
“a reviewing court should not confine itself to examin- 
ing a particular statutory provision in isolation.” FDA 

v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 
——, 120 S. Ct. 1291, 1300, 146 L.Ed.2d 121 (2000). 
Rather, the “the words of a statute must be read in 

11a 

their context and with a view to their place in the 
overall statutory scheme.” Id. at ——, 120 S. Ct. at 
1301 (quoting Davis v. Michigan Dept. of Treasury, 489 
U.S. 803, 809, 109 S. Ct. 1500, 103 L.Ed.2d 891 (1989)). 
When the proper interpretation of a statute is not clear 
from the language of the text or the broader context of 
the statute as a whole, the legislative history offers 
valuable guidance and insight into Congressional intent. 
United States v. Hockings, 129 F.3d 1069, 1071 (9th Cir. 
1997). We will not assume that Congress intended a 
statute to create odd or absurd results. United States 

v. X-Citement Video, Inc., 513 U.S. 64, 69-70, 115 S. Ct. 
464, 130 L.Ed.2d 372 (1994) (citing Public Citizen v. 
Dept. of Justice, 491 U.S. 440, 453-455, 109 S. Ct. 2558, 
105 L.Ed.2d 377 (1989)). Finally, because we cannot 
presume Congress intended an unconstitutional result, 
whenever possible, statutes should be construed to 
avoid serious doubts as to their constitutionality. Id. at 
78, 115 S. Ct. 464. 

Because we find that Congress had an intention on 
the precise question at issue that is contrary to HUD’s 
construction, HUD’s interpretation is not entitled to 
deference. See Chevron, 467 U.S. at 843 n.9, 104 S. Ct. 
2778. “The judiciary is the final authority on issues of 
statutory construction and must reject administrative 
constructions which are contrary to clear congressional 
intent.” Id. Thus, we do not reach the question under 
Chevron of whether an administrative interpretation is 
reasonable or permissible, for “[i]f the intent of Con- 
gress is clear, that is the end of the matter.” Id. at 842, 
104 S. Ct. 2778. 

12a 

A. Textual Interpretation 

We begin with the text of the statute. Section 
1437d(l)(6) provides that “any drug-related criminal 
activity on or off such premises, engaged in by a public 
housing tenant, any member of the tenant’s household, 
or any guest or other person under the tenant’s control, 
shall be cause for termination of tenancy.” HUD 
essentially argues that “any” means “all,” asserting that 
if a drug-related crime occurs by any of the enumerated 
individuals, then the statute clearly permits eviction of 
all tenants under the lease, regardless of personal 
involvement in or knowledge of the crime. The lan- 
guage of the statute, however, does not appear as plain 
as HUD would like it to be. The statutory provision 
does not expressly address the level of personal 
knowledge or fault that is required for eviction, or even 
make it clear who can be evicted. Although the statute 
permits “termination of tenancy,” it does not answer 
the question of whose tenancy. In situations with 
multiple tenants, does the statute authorize eviction of 
the offending party only, or all persons on the lease? 

The parties debate the significance that should be 
attributed to the use of the phrase “under the tenant’s 
control.” HUD argues that this phrase modifies only 
the term “other person” and that “control” means only 
that this other person has the tenant’s consent to be in 
the tenant’s unit. The tenants contend that “control” 
involves the “exercise of a restraining or directing 
influence” over another, and that this applies to all of 
the words in the group, i.e., household members, guests 
and other persons. The tenants further argue that it is 
implicit from the use of this wording that Congress 
intended tenants to be held accountable for the actions 

13a 

of those persons who are subject to their control, but 
that the statute does not impose sanctions on tenants 
who have taken reasonable steps to prevent criminal 
drug activity from occurring, but, for a lack of knowl- 
edge or other reason, could not realistically be expected 
to exercise control over the conduct of another. 

The text of subsection (6), viewed in isolation, does 
not compel either party’s interpretation. We therefore 
turn to the specific context in which the language is 
used and the broader context of the statute as a whole. 
Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S. Ct. 
843, 136 L.Ed.2d 808 (1997). 

1. Section 1437d(l) 

In examining the language of the statute, we must 
look to its place in the overall statutory scheme and “fit, 
if possible, all parts into a harmonious whole,” Brown & 
Williamson, 529 U.S. at ——, 120 S. Ct. at 1301 
(quoting FTC v. Mandel Bros., Inc., 359 U.S. 385, 389, 
79 S. Ct. 818, 3 L.Ed.2d 893 (1959)). First established in 
1937, the public housing program was a response to an 
acute shortage of “decent and safe dwellings for low- 
income families.” 42 U.S.C. § 1437. Understanding that 
these low income tenants face grave adversity if 
evicted, Congress has put a number of protections in 
place that limit the ability of local PHAs to evict. In 
§ 1437d(l) itself, the local PHAs are prohibited from 
using leases with unreasonable terms and conditions. 
Another subsection also provides that the leases must 
not permit the PHA to terminate tenancies except for 
“serious or repeated violation of the terms or conditions 
of the lease or for other good cause.” § 1437d(l)(5). We 
believe reading section (l) as a “harmonious whole,” 
requires us to presume that Congress also intended 

14a 

subsection (6) to be construed as a reasonable lease 
term and to permit eviction only if there is good cause. 

It is, of course, our task to determine the meaning of 
subsection (6) and not its wisdom. Our task is to 
examine HUD’s construction of subsection (6) in light of 
and in relation to the other provisions of section (l). 
There is undisputedly a significant problem with crime 
and drugs in public housing. The goal of providing safe 
and drug-free public housing is well served by 
permitting the local PHAs to evict tenants who engage 
in the proscribed criminal activities. It is also furthered 
by imposing a duty on tenants to take reasonable steps 
to control the drug or criminal activity of family 
members and guests or face eviction. There is no 
dispute that the eviction of tenants who personally 
engage in drug activity or of tenants who turn a blind 
eye to the activities of household members or guests 
falls squarely within the language of the statute under 
either party’s reading. 

While the policy considerations pointed out by the 
dissent may apply to the eviction of culpable tenants 
[Dissent at 1128 - 42], we do not believe they support 
the eviction of innocent ones. Imposing the threat of 
eviction on an innocent tenant who has already taken all 
reasonable steps to prevent third-party drug activity 
could not have a deterrent effect because the tenant 
would have already done all that tenant could do to 
prevent the third-party drug activity. Likewise, 
evicting the innocent tenant will not significantly 
reduce drug-related criminal activity in public housing, 
since the tenant has not engaged in any such activity 
personally or knowingly allowed such activity to occur. 
HUD’s construction of subsection (6) would allow such 

15a 

irrational evictions, and thus would require PHAs to 
include an unreasonable term in their leases and permit 
eviction without good cause. Read in the context of the 
overall statutory scheme and in light of the legislative 
history (discussed below), we cannot say Congress 
intended such a result. 

2. Forfeiture Provision 

Another amendment enacted at the same time as the 
original version of § 1437d(l)(6) also leads to the con- 
clusion that Congress did not intend to allow the 
eviction of innocent tenants. In the same chapter and 
subtitle of the Anti-Drug Abuse Act of 1988, Congress 
passed both the original version of subsection (6) and 
also amended a pre-existing civil forfeiture provision of 
the Controlled Substances Act, 21 U.S.C. § 881(a). The 
two statutes at issue were enacted together as parts of 
a single legislative scheme to combat drug abuse in 
public housing. The legislative history indicates how 
Congress envisioned the statutes working together: 

Chapter 1 of this subtitle codifies current HUD 
guidelines granting public housing agencies 
authority to evict tenants if they, their families or 
their guests engage in drug-related criminal 
activity. It also allows the federal government to 
seize housing units from tenants who violate drug 
laws by clarifying that public housing leases are 
considered property with respect to civil forfeiture 
laws. 

134 Cong. Rec. S17,360-02 (Nov. 10, 1998) available 
at 1988 WL 182529 (Cong. Rec.). 

16a 

The forfeiture provision was amended by inserting 
the phrase “(including any leasehold interest)” into the 
text of the pre-existing statute. The amended statute 
then read in relevant part: 

The following shall be subject to forfeiture to the 
United States. . . . 

. . . . 

(7) All real property, including any right, title 
and interest (including any leasehold interest) in the 
whole of any lot or tract of land and any appurte- 
nances or improvements, which is used, or intended 
to be used, in any manner or part, to commit, or to 
facilitate the commission of, a violation of this 
subchapter . . . except that no property shall be 
forfeited under this paragraph, to the extent of an 
interest of an owner, by reason of any act or 
omission established by that owner to have been 
committed or omitted without the knowledge or 
consent of that owner. 

21 U.S.C. § 881(a) (emphasis added).1 

HUD suggests we should place no importance on the 
availability of what clearly was an innocent owner 

1 The “innocent owner” defense which then appeared in 
21 U.S.C. § 881(a)(7) is now codified at 18 U.S.C. § 983(d) as part of 
the general rules for civil forfeiture procedures. In enacting 
§ 983(d), Congress clarified that an “innocent owner” is one who 
“(i) did not know of the conduct giving rise to forfeiture; or (ii) 
upon learning of the conduct giving rise to the forfeiture, did all 
that reasonably could be expected under the circumstances to 
terminate such use of the property.” 18 U.S.C. § 983(d)(2)(A). 
This continues to be consistent with our reading of § 1437d(l)(6). 

17a 

defense in the forfeiture provision, pointing to the 
differences between civil forfeiture and lease eviction 
proceedings. Although different animals, the Supreme 
Court instructs that the meaning of one statute may be 
illuminated by the language of another. Brown & 
Williamson, 529 U.S. at —— - —— , 120 S. Ct. at 1300- 

01. When dealing with two different statutes which not 
only govern the same subject matter but were also 
enacted at the same time in the same chapter of the 
same Act, we presume Congress meant them to be read 
consistently. HUD correctly points out that the forfei- 
ture provision deals with forfeitures of the leasehold to 
the federal government, while § 1437d(l)(6) deals with 
eviction by local PHAs. Although different processes, 
the purpose of both is the same. Moreover, the result is 
the same: the tenant loses the leasehold interest, which 
is taken over by a governmental entity. It makes little 
sense to provide protections for the innocent tenant 
from the federal government but not from local housing 
authorities.2 

HUD and the dissent also argue that the forfeiture 
provision illustrates that Congress knows how to 
provide an innocent tenant defense when it wants to, 

2 The dissent attempts to distinguish the provisions by arguing 
that Congress must have decided to provide substantive protec- 
tions to owners that it did not provide to tenants. [Dissent at 
1132]. Yet, § 881(a)(7) specifically applies to leasehold interests, 
and the legislative history indicates Congress was specifically 
thinking of public housing leases when it added this provision. We 
cannot agree with an interpretation of § 881(a)(7) that would not 
apply the innocent owner defense contained therein to the owners 
of leasehold interests. Congress’s recent clarification of the 
innocent owner defense confirms our interpretation. 18 U.S.C. 
§ 983(d)(6)(A). 

18a 

and that since it did not use the very same language in 
§ 1437d(l)(6), it must not have intended for one to be 
available. [Dissent at 1132]. We agree that the inno- 
cent tenant defense in § 881(a)(7) was more clear; it was 
also drafted by a different Congress than the one which 
enacted § 1437d(l)(6), which significantly weakens 
HUD’s argument. Cf. Lindh v. Murphy, 521 U.S. 320, 
330, 117 S. Ct. 2059, 138 L.Ed.2d 481 (1997) (negative 
implication argument is strongest when different provi- 
sions were joined together and considered simultane- 
ously when the language giving rise to the implication 
was inserted). The concurrent amendment of 
§ 881(a)(7) did not touch the previously drafted innocent 
owner defense; it merely extended the forfeiture 
provision to include leasehold interests. 

We are unpersuaded by the negative implication 
argument. To say Congress could have drafted the 
defense more explicitly in § 1437d(l)(6) is not to say it 
did not do so at all. 

3. Section 1437d(c)(4)(A)(iii) 

HUD asserts that its interpretation of § 1437d(l)(6) is 
reinforced by a version of § 1437d(c)(4)(A)(iii) which 
was in effect until 1996. This version prohibited 
individuals or families who were evicted because of 
drug-related criminal activity from receiving a 
statutory housing preference for three years, but 
exempted “any member of a family of an individual” 
who the agency determined “clearly did not participate 
in and had no knowledge of such criminal activity.” 
HUD argues that if innocent tenants could not be 
evicted under § 1437d(l)(6), there would have been no 
need for such an exemption, which would have 
rendered § 1437d(c)(4)(A)(iii) surplusage. 

19a 

The language HUD relies on is no longer part of the 
statute. We are therefore hesitant to even address an 
argument for harmonious interpretation when there is 
no longer a provision to harmonize. We do, however, 
note that even as originally drafted, § 1437d(c)(4)(A)(iii) 
was not entirely inconsistent with the tenants’ inter- 
pretation of § 1437d(l)(6). For example, an entire 
family, including minor children, can be evicted under 
§ 1437d(l)(6) if the parent engages in drug-related 
activities. These children, upon reaching the age of 
eighteen, would become eligible for public housing. The 
prior version of § 1437d(c)(4)(A)(iii) would have waived 
the three-year disqualification period for such children 
if they were not participants in the criminal activity 
which caused the family to be evicted, which means that 
this provision would not have been surplusage under 
the tenants’ interpretation. 

4. Summary 

Section 1437d(l )(6) is not a picture of clarity and may 
be subject to varying interpretations. When read in 
conjunction with the remainder of § 1437d(l ) and other 
provisions enacted at the same time, however, it 
appears that Congress did not intend subsection (6) to 
apply to the eviction of innocent tenants. Any doubts 
that persist about Congress’s intentions, however, are 
firmly resolved by the legislative history and the 
principles of statutory construction we discuss below. 

B. Legislative History 

If the intent of Congress is not clear from the 
language of the statute and the broader context of the 
statute as a whole, we consult the legislative history. 
Hockings, 129 F.3d at 1071. In doing so, we place par- 

20a 

ticular emphasis on the committee reports accompany- 
ing the statute. Garcia v. United States, 469 U.S. 70, 
76, 105 S. Ct. 479, 83 L.Ed.2d 472 (1984). 

No House or Senate reports accompanied the original 
version of § 1437d(l)(6), which was enacted as part of 
the Anti-Drug Abuse Act of 1988. In 1990, however, 
Congress amended the provision in question, and the 
legislative history specifically addressed the issue 
before us. The Senate Report explains: 

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

S. Rep. No. 101-316, at 179 (1990), reprinted in 1990 
U.S.C.C.A.N. 5763, 5941. The report also addressed an 
identical passage in the Section 8 housing assistance 
program: “The Committee assumes that if the tenant 
had no knowledge of the criminal activity or took 
reasonable steps to prevent it, then good cause to evict 
the innocent family members would not exist.” Id. at 
5889. 

HUD contends the legislative history indicates 
Congress’s intent to confer wide discretion on HUD 
and the local PHAs. It focuses on the statement that 
“each case will be judged on its individual merits and 
will require the wise exercise of humane judgment by 
the PHA and the eviction court.” It is true that the 
PHAs have discretion in deciding whether to initiate an 

21a 

eviction action under the statute, but this is true 
whether the statute authorizes eviction of innocent 
tenants or not. In other words, this passage suggests 
that even in a case involving a “culpable” tenant, the 
case must be looked at on its individual merits, which 
may counsel against eviction, even though eviction is 
clearly authorized by the statute.3 

In these reports, however, Congress specifically 
rejects the notion that the PHAs’ discretion is so broad 
that it extends to the eviction of innocent tenants. 
These reports are very clear that such evictions would 
not be appropriate, and that in such circumstances good 
cause to evict would not exist. The latter statement is 
also consistent with our discussion above that 
§ 1437d(l)(6) must be read in conjunction with the good 
cause requirement of § 1437d(l)(5). Accordingly, we 
reject HUD’s interpretation as contrary to the clearly 
expressed intent of Congress. Chevron, 467 U.S. at 
842-43, 104 S. Ct. 2778. 

C. Absurd Results 

Even if we did not find that the legislative history 
supports the tenants’ interpretation, a number of other 

3 HUD took the position at oral argument that an eviction court 
could only consider whether or not the lease term was violated, 
and could not review the PHAs’ decision that the violation war- 
ranted eviction. This issue is not before the court today, but we 
note that the quoted passage suggests that eviction courts do have 
a role to play in evictions under § 1437d(l)(6) and that the PHAs’ 
discretion does not appear to be unchallengeable. See, e.g., Robert 
Hornstein, Mean Things Happening in This Land: Defending 
Third Party Criminal Activity Public Housing Evictions, 
23 S.U.L.Rev. 257 (1996) (discussing abuse of discretion defense in 
PHA eviction cases). 

22a 

statutory interpretation tools would lead us to the same 
result. It is well established that we will not assume 
Congress intended an odd or absurd result. X- 
Citement Video, 513 U.S. at 69-70, 115 S. Ct. 464; Public 
Citizen, 491 U.S. at 453-55, 109 S. Ct. 2558. 

We need look no further than the facts of this case for 
an example of the odd and unjust results that arise 
under HUD’s interpretation. HUD conceded at oral 
argument that there was nothing more Pearlie Rucker 
could have done to protect herself from eviction, but 
argued that the statute authorized her eviction none- 
theless. HUD has also taken the position that the 
statute would apply and permit eviction of an entire 
family if a tenant’s child was visiting friends on the 
other side of the country and was caught smoking 
marijuana, even if the parents had no idea the child had 
ever engaged in such activity and even if they had no 
realistic way to control their child’s actions 3,000 miles 
away.4 HUD also asserted the provision would apply 
and authorize eviction if a household member had been 
convicted of a drug crime years earlier, arguing that the 
local PHA would have the discretion to determine if 
eviction were warranted in such circumstances. 

Although the dissent contends the Supreme Court 
frowns on consideration of hypothetical applications of 
statutes [Dissent at 1130], the Court itself has clearly 
looked beyond the facts of individual cases to the 

4 We should note that the HUD regulation employs language 
from an earlier version of the statute, and requires that the drug 
activity be “on or near” the premises, thus restricting the geo- 
graphical reach of the provision. 24 C.F.R. § 966.4(f )(12)(i). HUD 
acknowledges, however, that under the amended statute, there is 
no such geographic limitation. 

23a 

broader ramifications of a given interpretation when 
evaluating whether such interpretation creates absurd 
results. See, e.g., X-Citement Video, 513 U.S. at 69, 115 
S. Ct. 464. The absurdity and unjustness of the poten- 
tial results in this case confirms that HUD has missed 
the mark in discerning Congress’s intent. 

The dissent also argues that because Congress has 
not amended § 1437d(l)(6) to more clearly address the 
innocent tenant issue, this must mean that Congress 
intended these results, even if we may think them odd. 
[Dissent at 1134]. Congress’s inaction, however, may 
cut both ways. To the extent Congress may be aware 
of how HUD and some courts have interpreted this pro- 
vision, it must have also been aware that other courts 
were refusing to evict innocent tenants. See, e.g., 
Charlotte Hous. Auth. v. Patterson, 120 N.C.App. 552, 
464 S.E.2d 68, 72 (N.C. App. 1995); Richmond Tenants 
Org., Inc. v. Richmond Redev. and Hous. Auth., 751 F. 
Supp. 1204, 1205-6 (E.D. Va. 1990). And yet, Congress 
did not clarify the statute. Furthermore, the One 
Strike policy, which has led to increased enforcement 
and less exercise of discretion by the PHA’s, was only 
announced in 1996, the same year as the last substan- 
tive amendment to the section. Only now are cases 
beginning to surface which illustrate the breadth of 
HUD’s interpretation and which may attract enough 
attention to merit reconsideration or clarification of the 
statute by Congress. 

D. Constitutional Avoidance 

It is also a settled principle of statutory interpreta- 
tion that whenever possible, a statute should be con- 
strued to avoid substantial constitutional concerns. X- 
Citement Video, 513 U.S. at 69, 115 S. Ct. 464. HUD’s 

24a 

interpretation of § 1437d(l)(6), however, would raise 
serious questions under the Due Process Clause of the 
Fourteenth Amendment. 

Penalizing conduct that involves no intentional 
wrongdoing by an individual can run afoul of the Due 
Process Clause. Scales v. U.S., 367 U.S. 203, 224-25, 81 
S. Ct. 1469, 6 L.Ed.2d 782 (1961); Southwestern Tel. & 
Tel. Co. v. Danaher, 238 U.S. 482, 490, 35 S. Ct. 886, 59 
L.Ed. 1419 (1915). Public housing tenants have a 
property interest in their tenancy. Greene v. Lindsey, 
456 U.S. 444, 451, 102 S. Ct. 1874, 72 L.Ed.2d 249 (1982); 
Geneva Towers Tenants Org. v . Federated Mortgage 
Investors, 504 F.2d 483, 488-89 (9th Cir. 1974). HUD’s 
interpretation would permit tenants to be deprived of 
their property interest without any relationship to 
individual wrongdoing. 

HUD contends that the Supreme Court’s decision in 
Bennis v. Michigan, 516 U.S. 442, 116 S. Ct. 994, 134 
L.Ed.2d 68 (1996), forecloses any argument that depriv- 
ing an innocent owner of a property right violates due 
process. In Bennis, a woman’s husband used their 
jointly owned car to engage in sexual activity with a 
prostitute. Id. at 443, 116 S. Ct. 994. The car was 
forfeited and the wife contested the forfeiture on due 
process grounds. Id. at 446, 116 S. Ct. 994. In a 5-4 
decision, the Court upheld the forfeiture, but did so 
narrowly on facts which are easily distinguishable from 
the instant case. 

The Bennis Court pointed out that the proceeds from 
the sale did not exceed the costs of the sale so there was 
“practically nothing left” for Mrs. Bennis. Id. at 445, 116 
S. Ct. 994; id. at 456, 116 S. Ct. 994 (Thomas, J., con- 
curring); id. at 458, 116 S. Ct. 994 (Ginsburg, J., con- 

25a 

curring). The Court also noted the equitable nature of 
the Michigan forfeiture proceeding, and that the state 
court had taken special note of the fact the Bennises 
had a second automobile. Id. at 445, 116 S. Ct. 994; id. 
at 458, 116 S. Ct. 994 (Ginsburg, J., concurring). In this 
case, there is much more at stake than a negligible 
financial interest in a family’s second car: these families 
risk losing their entire property interest in their homes. 

Most important, in Bennis, the Court suggested that 
the fact that the property was used in criminal activity 
was decisive; the Court held that the spouse’s due 
process claim was defeated by “a long and unbroken 
line of cases hold[ing] that an owner’s interest in 
property may be forfeited by reason of the use to which 
the property is put even though the owner did not know 
that it was to be put to such use.” Bennis, 516 U.S. at 
446, 116 S. Ct. 994 (emphasis added); see also id. at 450, 
116 S. Ct. 994 (discussing the requirement that the 
property be an “instrumentality” of crime). In this 
case, with the exception of Plaintiff Walker’s caregiver, 
the illegal activities took place off the premises leased 
by the plaintiffs. Thus, the leasehold interest was not 
used in connection with the crime. 

Justice Thomas’s concurring opinion in Bennis ex- 
panded on the Court’s statement that the forfeiture 
was justified because the property in question was an 
instrumentality of the crime by strongly suggesting 
that a due process claim exists if there has been a 
forfeiture of property that was not used in the com- 
mission of a crime and the owner of the property had no 
knowledge of the illegal activity. Id. at 455-56, 116 S. 
Ct. 994 (Thomas, J., concurring); see also Calero-Toledo 

v. Pearson Yacht Leasing Co., 416 U.S. 663, 689-90, 94 

26a 

S. Ct. 2080, 40 L.Ed.2d 452 (1974). Therefore, we 
believe HUD’s interpretation of § 1437d(l)(6), which 
would permit the deprivation of a tenant’s property in- 
terest when the property was not used in the com- 
mission of a crime and when the tenant did not know of 
the illegal activity, would raise serious due process 
questions.5 

It is not necessary, however, to reach this constitu- 
tional issue if there is a construction of § 1437d(l)(6) 
which avoids the question and is “not plainly contrary 
to the intent of Congress.” X-Citement Video, 513 U.S. 
at 78, 115 S. Ct. 464. The tenants have proposed such a 
construction, by reading the use of the term “control” 
as a limitation on the breadth of the provision. Today 
we adopt that interpretation and hold that if a tenant 
has taken reasonable steps to prevent criminal drug 
activity from occurring, but, for a lack of knowledge or 
other reason, could not realistically exercise control 
over the conduct of a household member or guest, 
§ 1437d(l)(6) does not authorize the eviction of such a 
tenant. Cf. id. (reading “knowing” requirement of one 
criminal element as applying to second criminal element 
to avoid serious constitutional doubts); Ma v. Reno, 208 
F.3d 815, 828 (9th Cir. 2000) (finding reasonable time 

5 Several legal commentators have also recognized the poten- 
tial due process problems with HUD’s interpretation. See, e.g., 
Lisa Weil, Drug-Related Evictions in Public Housing: Congress’ 
Addiction to a Quick Fix, 9 Yale L. & Pol’y Rev. 161, 179 (1991) 
(vicarious liability makes HUD eviction policy both distressing and 
constitutionally suspect); Nelson H. Mock, Note, Punishing the 
Innocent: No-Fault Eviction of Public Housing Tenants for the 
Actions of Third Parties, 76 Tex. L.Rev. 1495, 1522-24 (1998) (not- 
ing due process problems because no relationship between liability 
and the action of the tenant). 

27a 

limitation implicit in statute to avoid serious due 
process concerns). 

V. PRELIMINARY INJUNCTION 

A. APA Claim 

The district court granted a preliminary injunction on 
the tenants’ APA claim because it found that the 
tenants had raised serious questions and that the 
balance of hardships tipped sharply in their favor, since 
they could lose their homes if OHA’s actions were not 
halted. The district court enjoined OHA from pursuing 
its unlawful detainer actions against Lee and Hill.6 The 
district court also enjoined OHA from terminating any 
other leases for off-premises drug-related activity in 
which the tenant did not know of or have reason to 
know of the criminal activity. 

Reviewing the interpretation of § 1437d(l)(6) de novo, 
we have concluded that HUD’s interpretation is 
inconsistent with Congressional intent and must be 
rejected. Chevron, 467 U.S. at 842-43, 104 S. Ct. 2778. 
The question remains whether the district court prop- 
erly enjoined OHA from evicting innocent tenants 
pursuant to paragraph 9(m) of the OHA lease. This 
provision was required by HUD regulations (24 C.F.R. 
§ 966.4(f )(12)(i)), which were, as discussed above, 
premised on HUD’s erroneous interpretation of 
§ 1437d(l)(6). 

Paragraph 9(m) is not an ordinary term found in 
residential leases and should not be treated as such. 

6 OHA dismissed the unlawful detainer proceeding against 
Rucker. 

28a 

There is certainly no bargained-for-exchange in public 
housing leases. The form of public housing leases is 
almost entirely dictated by HUD. This lease provision 
was required by the very HUD regulations we have 
invalidated, and is simply the embodiment of the 
erroneously broad interpretation of § 1437d(l)(6). As 
we discussed in section IV.A. above, such a provision 
would be unreasonable, and including an unreasonable 
term in a public housing lease is prohibited under 
§ 1437d(l), as are evictions without good cause.7 

Accordingly, we find that the district court properly 
granted the preliminary injunction generally enjoining 
OHA from pursuing evictions under paragraph 9(m) to 
the extent it seeks to do so for off-premises drug- 
related activity in which the tenant did not know of or 
have reason to know of the criminal activity.8 OHA 
remains free to proceed with evictions for off-premises 
drug activities when it can prove the tenant knew or 
should have known of the activity.9 Likewise, the dis- 
trict court specifically permitted OHA to pursue 
evictions of tenants when the drug-related activity 

7 There are also substantial constitutional considerations asso- 
ciated with enforcing this provision, as discussed in Section IV.D., 
above. 

8 We undertake plenary review of this portion of the injunction 
because it presents a situation in which the legal issues underlying 
the injunction are dispositive, and the facts of the individual claims 
are of no controlling relevance. Gorbach, 219 F.3d at 1091. 

9 The district court’s injunction does not address the issue of 
whether tenants who have knowledge of off-premises drug activi- 
ties by household members may be evicted if they attempt in good 
faith to prevent their household members from engaging in such 
activity, but are unable to do so. Accordingly, we do not consider 
that question here. 

29a 

occurs within the tenant’s apartment, creating a rebut- 
table presumption that a tenant controls what occurs in 
his or her unit. 

10 These directives are perfectly con- 
sistent with our interpretation of “control” in 
§ 1437d(l)(6). We therefore affirm this portion of the 
injunction. 

With respect to the portion of the injunction which 
enjoins OHA from pursuing its unlawful detainer 
actions against Lee and Hill, the facts of the underlying 
cases come into play. OHA, however, has not contested 
the assertions of Lee and Hill that they did not know or 
have reason to know of their grandsons’ drug use. 
Assuming these facts are true, Lee and Hill qualify as 
innocent tenants. On the facts before it, the district 
court did not abuse its discretion by enjoining their 
unlawful detainer actions. 

B. Walker’s ADA Claim 

Plaintiff Walker presents a different situation, since 
the illegal drug activity occurred within his apartment, 
and, at least after the first violation notice, he had 
knowledge of the criminal activity. The district court 
ultimately decided to enjoin Walker’s unlawful detainer 
action, finding that Walker had raised a serious ques- 
tion with respect to whether the eviction violated the 
ADA, and that the balance of hardships weighed in 
favor of permitting him to remain in his home until the 
ADA claim was fully litigated. 

10 This presumption should assuage some of the dissent’s con- 
cerns about the burden of proof placed on the local PHA. [Dissent 
at 1136] 

30a 

The district court noted that Walker alleged he 
required an in-home caregiver because of his disability 
and that he alleged he was not physically able to search 
persons entering his apartment. The district court 
concluded that the ADA might require some form of 
accommodation in the eviction policies for his situation, 
citing an Oregon case which required the housing 
authority to modify its “no dogs” policy for a hearing 
impaired tenant. Green v. Hous. Auth. of Clackamas 
County, 994 F. Supp. 1253, 1257 (D. Or. 1998). Al- 
though OHA asserted that there could be no reasonable 
accommodation in Walker’s case because the only 
alternative would be a “blanket exemption” from the 
drug policy, the district court found that, based on the 
allegations of the complaint, it could not rule as a 
matter of law that no reasonable accommodation exists. 

Walker’s ADA claim is replete with factual questions, 
including whether the guests in the apartment were 
Walker’s or the caregiver’s, and whether Walker’s 
disability prevented him from being able to search his 
caregiver or her guests. There are no answers to these 
questions at this stage of the proceedings. The district 
court’s decision to grant the injunction on the ADA 
claim turns on the application of law to the facts of 
Walker’s case. The district court applied the proper 
standard for issuing a preliminary injunction, and 
appears to have correctly apprehended the law of the 
ADA. We will not reverse simply because we might 
reach a different result on the limited facts before us. 
Gregorio T., 59 F.3d at 1004. A factfinder may ulti- 
mately determine that Walker cannot state a claim 
under the ADA or that OHA provided Walker with a 
reasonable accommodation by giving him two warnings 
and two months to find a new caregiver. On the facts 

31a 

before the district court at the time it made its decision, 
however, the district court did not abuse its discretion 
in entering the preliminary injunction with respect to 
Walker’s ADA claim. 

VI. CONCLUSION 

We find that Congress did not intend § 1437d(l)(6) to 
permit the eviction of innocent tenants. Thus, HUD’s 
contrary interpretation must be rejected. The district 
court therefore properly enjoined OHA from pursuing 
evictions based on the erroneous interpretation of 
§ 1437d(l)(6) as embodied in the OHA lease. On the 
limited factual record before it, the district court did 
not abuse its discretion in enjoining Walker’s eviction 
with respect to his ADA claim. The grant of the 
preliminary injunction is AFFIRMED. 

32a 

SNEED, Circuit Judge, with whom Judges FERNAN- 
DEZ, T.G. NELSON, and SILVERMAN, Circuit Judges, 
join, dissenting: 

In 1988, faced with a devastating and worsening 
epidemic of drug related crime and violence in public 
housing, Congress granted to local public housing 
authorities (“PHAs”) a new tool in the struggle to 
provide decent and safe low income housing. 42 U.S.C. 
§ 1437d(l)(6) mandated that every lease entered into by 
a PHA include a provision permitting termination of 
tenancy when “a public housing tenant, any member of 
the tenant’s household, or any guest or other person 
under the tenant’s control” engaged in “drug-related 
criminal activity on or near public housing premises.” 

In mandating this lease provision and thereby grant- 
ing additional discretion to local housing authorities, 
Congress used unmistakably clear statutory language 
based on reasonable findings that such legislation was 
necessary and would be effective. The majority’s 
decision reads into this statute a defense that the 
legislative branch rejected. Nothing in the Constitution 
prohibits the government from entering into reasonable 
lease provisions necessary to maintain the safety and 
structural soundness of its property. “The increase in 
drug-related crime not only leads to murders, mug- 
gings, and other forms of violence against tenants, but 
also to a deterioration of the physical environment that 
requires substantial government expenditures.” 
42 U.S.C. § 11901(4). Indeed, if the government is to 
act as a landlord, the Constitution must permit it to act 
as a prudent one. 

33a 

STANDARD OF REVIEW: CHEVRON DOCTRINE 

Congress authorized a tenant’s eviction from public 
housing when that “tenant, any member of the tenant’s 
household, or any guest or other person under the 
tenant’s control” engages in “any drug-related criminal 
activity, on or off such premises.” The question here 
presented is whether this language permits local PHAs 
to evict tenants who were ignorant of their household 
members’ or guests’ drug use (“ignorant tenants”). The 
answer to this question should be that it does permit 
such evictions. 

The Department of Housing and Urban Development 
(HUD), the agency charged with administering public 
housing, properly concluded that the statute did 
authorize the eviction of ignorant tenants. 24 C.F.R. 
§ 966.4(l)(1)(B); Public Housing Lease and Grievance 
Procedures, 56 Fed. Reg. 51,560, 51,567 (October 11, 
1991). If this interpretation is a “permissible construc- 
tion of the statute,” then this court may not substitute 
its own judgment for that of HUD. Chevron U.S.A., 
Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 
104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). Because the 
statute is clear on its face, HUD’s interpretation is the 
only permissible construction of the statute. 

The majority points out that the statute is silent on 
the question of a tenant’s required knowledge. This 
alters the relevant inquiry only slightly. The majority 
must explain why the regulation that tracks the precise 
language of the statute is not reasonable. Id. at 844, 104 
S. Ct. 2778. In short, whether one accepts our con- 
tention that the statutory language is clear or the ma- 
jority’s argument that the language is silent, appli- 
cation of the Chevron test to the present controversy 

34a 

leads to the same conclusion. HUD’s regulation per- 
mitting the eviction of ignorant tenants whose house- 
hold members or guests engaged in drug related 
criminal activity on or off public housing premises is 
valid and enforceable. 

The majority avoids the dictates of Chevron by 
finding that “Congress had an intention on the precise 
question at issue that is contrary to HUD’s construc- 
tion.” Maj. Op. at 1119. The majority’s evidence, how- 
ver, is wholly insufficient to support this conclusion. 
We will discuss the evidence in greater detail below, 
but note here the gap between what the majority pur- 
ports to prove and what it has in fact shown. According 
to the majority, the language of the statute is 
ambiguous. Maj. Op. at 1120.1 The legislative history 
noted by the majority is equally ambiguous. It simul- 
taneously provides discretion to local PHAs and 
suggests how that discretion should be exercised. “It is 
well established that legislative history which does not 
demonstrate a clear and certain congressional intent 
cannot form the basis for enjoining regulations.” Rust 

v. Sullivan, 500 U.S. 173, 189-190, 111 S. Ct. 1759, 114 
L.Ed.2d 233 (1991). 

The remainder of the majority’s congressional intent 
argument flows from its holding that permitting the 
eviction of ignorant tenants is “unreasonable” and 
“absurd.” This holding, however, is directly contrary to 
HUD’s interpretation of the statute. In such a circum- 
stance, this court should defer to HUD’s judgment. It 
is HUD, after all, that has experience and expertise in 

1 Indeed, the doctrine of constitutional doubt, on which the 
majority relies, is only applicable when a statute is ambiguous. 

35a 

the management of public housing. It is HUD, and not 
this court, that can best determine what is reasonable 
in the context of the public housing drug crisis. 

If the majority believes HUD’s construction of the 
statute is unconstitutional, it should say so. This court 
must step in when other branches of government 
exceed their constitutional authority. However, when 
this court rewrites legislative enactments and ignores 
the considered judgment of executive agencies—based 
on nothing more than the majority’s understanding of 
what is “reasonable” or “absurd”—it is this court that 
has overstepped its constitutional limits. 

DISCUSSION 

I. The Language, Legislative History, and Statu- 
tory Context of 42 U.S.C. § 1437d(l )(6) All Show 
that The Eviction Provision Applies to Ignorant 
Tenants. 

A. The Plain Language of the Statute Authorizes 
the Eviction of Ignorant Tenants Under 
42 U.S.C. § 1437(d)(l)(6) 

“Where there is no ambiguity in the words, there is 
no room for construction.” United States v. Gonzales, 
520 U.S. 1, 8, 117 S. Ct. 1032, 137 L.Ed.2d 132 (1997) 
(quoting United States v. Wiltberger, 18 U.S. (5 Wheat.) 
76, 95-96, 5 L.Ed. 37 (1820)). In the present case, the 
statute 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” 
engages in “any drug related criminal activity.” The 
majority reads into this statute the requirement that 
the tenant must be able to “realistically exercise 

36a 

control” over a household member or guest before 
eviction proceedings may begin. We do not believe the 
statute includes such a requirement. Rather, the 
obvious reading of the statute is to the contrary. 

Under § 1437d(l)(6) there are four categories of 
individuals whose drug related criminal activity on or 
near public housing property will result in the tenant’s 
eviction. First, the tenant is responsible for his or her 
own drug use. Second, criminal drug activity by the 
tenant’s household members is cause for termination.2 
Third, the tenant’s guests may not engage in criminal 
drug activity.3 Fourth, criminal drug activity by other 
persons under the tenant’s control is also cause for 
eviction. 

The structure of the statute suggests that tenants, 
household members, and guests are per se under the 
tenant’s control and, therefore, the drug related crimi- 
nal activity of anyone in one of these categories is cause 
for eviction. The tenant exercises “control” over these 
individuals when he or she permits them to reside in or 
visit the premises. No additional level of “control” is 
necessary. Congress’s use of the disjunctive connector 
“or” followed by the phrase “other person” shows it 
intended a fourth category of “other persons” who did 
not fall into the three enumerated categories, but 
whose drug activity could nevertheless result in 
eviction. 

2 HUD defines “members of the household” as those individuals 
who are listed as such by name on the lease. 24 C.F.R. 
§ 966.4(a)(2). 

3 HUD defines a “guest” as “a person in the leased unit with 
the consent of a household member.” 24 C.F.R. § 966.4(d)(1) 

37a 

The majority’s reading of the statute requires that 
the drug user fall into two of the categories—a drug 
user must be both a household member/guest and 
under the tenant’s control. See Maj. Op. at 1119-20. 
But, the statute does not say this. The majority’s 
reading renders the enumerated categories (tenants, 
household members, guests) superfluous. “We read 
[the statute] with the assumption that Congress in- 
tended each of its terms to have meaning. ‘Judges 
should hesitate . . . to treat [as surplusage] statutory 
terms in any setting. . . .’ ” Bailey v. United States, 

516 U.S. 137, 145, 116 S. Ct. 501, 133 L.Ed.2d 472 (1995) 
(quoting Ratzlaf v. United States, 510 U.S. 135, 140- 
141, 114 S. Ct. 655, 126 L.Ed.2d 615 (1994)). 

The majority justifies its tortured reading of the 
statute on the grounds that enforcement of the plain 
language of § 1437d(l)(6) would lead to absurd results. 
Specifically, both the district court and the majority 
note that the statute contains neither temporal nor 
geographic limitations on the drug related criminal 
activity. Therefore, a tenant could be evicted if that 
tenant’s guest used drugs “five years earlier on the 
other side of the country.” The district court reasoned 
that the possibility of any absurd result (even one not 
presented by the actual controversy) rendered the 
statutory language ambiguous. 

This approach is untenable. It would permit the 
judiciary to nullify any legislative act amenable to a 
single absurd hypothetical construction. This approach 
is inconsistent with the traditional role of a court to 
adjudicate the specific controversy before it and to 
avoid speculative and general pronouncements. The 
Supreme Court has repeatedly rejected judicial review 

38a 

of hypothetical applications of statutory language. FCC 

v. Pacifica, 438 U.S. 726, 743, 98 S. Ct. 3026, 57 L.Ed.2d 
1073 (1978) (“We will not now pass upon the consti- 
tutionality of these regulations by envisioning the most 
extreme applications conceivable, [citation omitted] but 
will deal with those problems if and when they arise.”); 
Lindsey v. Normet, 405 U.S. 56, 65, 92 S. Ct. 862, 31 
L.Ed.2d 36 (1972) (“[P]ossible infirmity in other situa- 
tions does not render [a statute] invalid on its face.”); 
Allen-Bradley Local No. 1111, United Electrical, 
Radio and Machine Workers of America v. Wisconsin 
Employment Relations Board, 315 U.S. 740, 746, 62 S. 
Ct. 820, 86 L.Ed. 1154 (1942) (court will not “assume in 
advance that a State will so construe its law as to” 
make it unenforceable). The issue before the court is 
not whether Congress legislated a temporal nexus 
between the guest’s drug-related criminal activity and 
the eviction.4 This court must limit its review to the 
controversy actually presented. 

The Supreme Court, in Atlantic Mut. Ins. Co. v. 
Comm’r of Internal Revenue, 523 U.S. 382, 118 S. Ct. 
1413, 140 L.Ed.2d 542 (1998), was asked to determine 
the meaning of the term “reserve strengthening” as 
used in the 1986 Tax Reform Act. Petitioner contended 
that the agency interpretation of the term was unrea- 
sonable because “in theory, it produces absurd results.” 
Atlantic Mut. Ins. Co., 523 U.S. at 389, 118 S. Ct. 1413. 
In support of this position, petitioner presented to the 
court a hypothetical example where application of the 
agency definition would result in manifest error. The 

4 Were that the issue, we might be required to analyze this case 
under the second prong of the Chevron doctrine (i.e. determine if 
HUD’s interpretation of this provision is reasonable). 

39a 

Court refused to find the agency interpretation unrea- 
sonable. Id. at 390, 118 S. Ct. 1413. It held that, despite 
the possibility of future error, the agency interpretation 
of the statute should control. 

In this case, the plain meaning of the statute is not 
absurd. In fact, as we discuss below, see infra, the 
eviction of ignorant tenants whose guests engage in 
drug-related criminal activity is supported by a 
reasonable rationale based on sound public policy. It is 
our obligation to read the statute as it was written even 
while “acknowledg[ing] the reality that the reach of a 
statute often exceeds the precise evil to be eliminated.” 
Brogan v. United States, 522 U.S. 398, 403, 118 S. Ct. 
805, 139 L.Ed.2d 830 (1998). 

We assume the legislative purpose is expressed by 
the ordinary meaning of the words used. American 
Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S. Ct. 
1534, 71 L.Ed.2d 748 (1982). The statute says “drug 
related criminal activity . . . engaged in by a public 
housing tenant, any member of the tenant’s household, 
or any guest or other person under the tenant’s control, 
shall be cause for termination of tenancy.” The 
majority asserts that in writing this language, Congress 
meant to say that drug related criminal activity en- 
gaged in by any person under the tenant’s control shall 
be cause for termination of tenancy. There is simply no 
support in the language for this interpretation. 

40a 

B. Related Statutory Provisions and Legislative 

History Reveal Congressional Intent to Omit 
an Innocent Tenant Defense 

1. Related Statutory Provisions 

Two related statutory provisions further reinforce 
the conclusion that § 1437d(l )(6) authorizes the eviction 
of public housing tenants who are ignorant of their 
guests’ drug-related criminal behavior. 

a. 42 U.S.C. § 1437d(c)(4)(A)(iii)5 

5 42 U.S.C. § 1437d(c) 

(4) the public housing agency shall comply with such proce- 
dures and requirements as the Secretary may prescribe to 
assure that sound management practices will be followed in 
the operation of the project, including requirements pertaining 
to— 

(A) . . . the establishment of tenant selection criteria which— 

(i) . . . give preference to families that occupy sub- 
standard housing (including families that are homeless or 
living in a shelter for homeless families), are paying more than 
50 percent of family income for rent, or are involuntarily 
displaced . . . at the time they are seeking assistance under 
this chapter. 

. . . 

(iii) prohibit any individual or family evicted from 

housing assisted under the chapter by reason of drug related 
criminal activity from having a preference under any pro- 
vision of this subparagraph for 3 years . . . except that the 
agency may waive the application of this clause under stan- 
dards established by the Secretary (which shall include waiver 
for any member of a family of an individual prohibited from 
tenancy under this clause who the agency determines clearly 
did not participate in and had no knowledge of such criminal 
activity . . .). (emphasis added) 

41a 

42 U.S.C. § 1437d(c)(4)(A), as it stood through 1996, 
mandated that PHAs fulfill three independent duties. 
First, under subsection (i), PHAs were required to 
allocate available housing units based on congression- 
ally determined “preferences.” Preferences were 
given, for example, to the homeless, to those paying 
more than 50% of their income in rent, and to those who 
had recently been displaced from housing. 

Second, under § 1437d(c)(4)(A)(iii), an individual or 
family otherwise eligible for preferential placement in 
available housing was disqualified from receiving a 
preference for a period of three years if evicted from 
public housing because of drug-related criminal 
activity. 

Finally, the final clause of § 1437d(c)(4)(A)(iii) specifi- 
cally required that local PHAs waive the three year 
disqualification period for those individuals who 
“clearly did not participate in and had no knowledge of 
such criminal activity.” These provisions 1) established 
preferential tenant selection criteria; 2) disqualified 
those evicted because of drug activity from the estab- 
lished preferences for a period of three years; and 3) 
exempted from disqualification those evicted who 
“clearly did not participate in and had no knowledge of 
the criminal activity.” 

Thus, the statutory mandate imposed by 
§ 1437d(c)(4)(A) required PHAs to differentiate two 
classes of tenants evicted from public housing for drug- 
related criminal activity. The first class, to repeat, 
consisted of those who participated in or had knowledge 
of the criminal activity. These individuals were dis- 
qualified from preferential placement in available public 
housing units for a period of three years. The second 

42a 

class consisted of those individuals evicted for drug- 
related criminal activity who did not participate in or 
have knowledge of that activity. These individuals 
were eligible to receive preferential treatment if they 
satisfied one of the other criteria listed in 
§ 1437d(c)(4)(A)(i). 

The distinction, between evicted tenants who “par- 
ticipated in” or “had knowledge of ” drug-related crimi- 
nal activity and those who did not have such knowl- 
edge, makes sense only if an ignorant public housing 
tenant could be evicted for the drug-related criminal 
activity of their household members or guests. Were 
that not so, there would have been no need for Con- 
gress to write a statute specifically waiving the 
applicability of the three-year prohibition period to the 
ignorant tenant. 

b. 21 U.S.C. § 881(a)(7) (“Forfeiture Statute”) 

This statute, 21 U.S.C. § 881(a)(7), also supports a 
plain language interpretation of § 1437d(l)(6). It is a 
civil forfeiture statute that makes leasehold interests 
subject to forfeiture when used to commit drug-related 
crimes.6 21 U.S.C. § 881(a)(7) was amended con- 

6 21 U.S.C. § 881(a)(7) provides: 

The following shall be subject to forfeiture to the United 
States and no property right shall exist in them: 

(7) All real property, including any right, title, and interest 

(including any leasehold interest) in the whole of any lot or 
tract of land and any appurtenances or improvements, which is 
used, or intended to be used, in any manner or part, to commit, 
or to facilitate the commission of, a violation of this subchapter 
punishable by more than one year’s imprisonment, except that 
no property shall be forfeited under this paragraph, to the 

43a 

currently with the passage of § 1437d(l)(6) as part of 
the Anti-Drug Abuse Act of 1988. Section 881(a)(7) 
specifically includes a knowledge requirement. Under 
it, no property otherwise subject to forfeiture may be 
seized if the owner establishes that the property was 
used in drug-related criminal activity “without the 
knowledge or consent of that owner.” 

The canons of statutory interpretation provide: 
“[W]here Congress includes particular language in one 
section of a 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. Russello v. United States, 464 U.S. 16, 23, 104 
S. Ct. 296, 78 L.Ed.2d 17 (1983) (quoting United States 

v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972)). 
Congress clearly perceived that forfeitures of lease- 
holds under 21 U.S.C. § 881(a)(7) were to function 
differently from evictions under 42 U.S.C. § 1437d(l)(6) 
and legislated different regimes to govern the two. 
Specifically, Congress recognized that the forfeiture 
statute permitted the government to seize property 
without providing any procedural protections to the 
owner of the property. 134 Cong. Rec. E1965-02 (1988) 
(use of seizure rather than eviction “cut[s] through the 
usual drawn-out process of first notifying the drug 
dealers that they would be evicted and then battling 
them in courts, sometimes for years, before they could 
be removed.”) Owing to the lack of procedural pro- 
tections, Congress recognized that additional substan- 

extent of an interest of an owner, by reason of any act or 
omission established by that owner to have been committed or 
omitted without the knowledge or consent of that owner. 

44a 

tive protections are needed to prevent the use of this 
weapon against undeserving parties. 

Similarly, in a 1989 emergency supplemental appro- 
priations measure, Congress directed the Secretary of 
HUD to issue waivers of certain administrative griev- 
ance procedures “as long as evictions of a household 
member involved in drug-related criminal activity shall 
not affect the right of any other household member who 
is not involved in such activity to continue tenancy.” 
Dire Emergency Supplemental Appropriations and 
Transfers, Pub. L. No. 101-45, § 404, 103 Stat. 97 (1989). 
This measure, like the forfeiture statute, permits the 
taking of property without any pre-deprivation proce- 
dural protection. Congress, therefore, included a 
substantive protection for ignorant tenants. A similar 
substantive right, however, was not provided to 
tenants who received the full procedural protections 
offered by HUD and local PHAs. 

Thus, the “innocent” owner exception in both 
21 U.S.C. § 881(a)(7) and Pub. L. No. 101-45, § 404 
reflected distinctly different congressional judgments 
about the proper tradeoff between procedural and 
substantive protections. Owners were provided sub- 
stantive protections not available to tenants. Congress 
concluded that the forfeiture statute should not be 
applied to owners who did not know of or consent to the 
illegal use of their property. However, Congress did 
not afford innocent tenants the same protection. 
Congress determined that local PHAs should have 
greater discretion to evict than federal agents have to 
seize property of innocent owners used in drug-related 
criminal activity. 

45a 

2. Legislative History 

Having discounted the plain language of the statute, 
the majority next examines the scant legislative history 
of § 1437d(l)(6). This endeavor is both unnecessary, see 
supra, and unhelpful. Official legislative history consists 
almost entirely of a single statement in a 1990 Senate 
Report. The report reads in pertinent part: 

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

S. Rep. No. 101-316, at 179 (1990). Both parties make 
much of this statement. The government emphasizes 
the committee’s deference to the PHA’s “humane 
judgment,” while the tenants rely on the suggestion 
that eviction of ignorant tenants “would not be the 
appropriate course.” 

The committee report should be read in a manner 
consistent with the language of the remainder of the 
statute and the purposes of the Act. Robinson v. Shell 
Oil Co., 519 U.S. 337, 341, 117 S. Ct. 843, 136 L.Ed.2d 
808 (1997) (“the specific context in which that language 
is used and the broader context of the statute as a 
whole” relevant to determining meaning of statutory 
language). It is a declared purpose of the United States 
Housing Act “to vest in local public housing agencies 
the maximum amount of responsibility in the admini- 
stration of their housing programs.” 42 U.S.C. § 1437 

46a 

(Declaration of Policy).7 Evidence exists that 
§ 1437d(l)(6) was intended to further this purpose. Dur- 
ing floor debate on the measure, one member of the 
House of Representatives commended the eviction 
provision as an “additional tool to enhance HUD’s and 
the Nation’s public housing managers’ ability to deal 
with the problem of drugs in public housing.” 134 Cong. 
Rec. 33,148 (1988) (statement of Rep. Wylie). 

Read in the context of an unambiguous legislative 
declaration of policy, and its consistent implementation 
throughout the Act, the Senate committee report sup- 
ports the proposition that Congress intended to provide 
local housing authorities with wide discretion to evict 
tenants connected with drug-related criminal behavior. 
By permitting the eviction of ignorant as well as 
knowledgeable tenants, Congress deferred to the judg- 
ment of local officials who would possess a more 
extensive understanding of the individualized circum- 
stances. Any suggestion by the committee as to when 
eviction would or would not be appropriate is properly 
seen as just that—a suggestion. The language is preca- 
tory and the “humane judgment” of the local agencies 
should control. 

7 This policy judgment is reflected throughout the Act. Local 
authorities, for example, have the responsibility to determine the 
public housing needs in their community. 42 U.S.C. § 1437c(e). See 
also, 42 U.S.C. § 1437d(c)(4)(A). 

47a 

3. Congress Failed to Amend § 1437d(l)(6) to Include 
an Innocent Owner Defense. 

Congressional treatment of § 1437d(l)(6) since its 
initial passage in 1988 makes clear that Congress meant 
what it said. Long before this litigation began, concerns 
about the eviction provision’s applicability to ignorant 
tenants were expressed. In a 1989 congressional 
hearing, for example, the associate director of the 
American Civil Liberties Union (ACLU) argued that 
“PHAs should be restrained from imposing the sanction 
of eviction unless they can prove that a tenant had 
knowledge and actual control over the actions of a 
household member or third party.” Drugs in Federally 
Assisted Housing: Hearings on S.566 Before the 
Subcomm. on Housing and Urban Affairs of the Senate 
Comm. on Banking, Housing, and Urban Affairs, 
S. Doc. No. 101-234, at 90-91 (1989). In that hearing, 
the ACLU brought to the attention of the committee 
several instances where ignorant tenants were sub- 
jected to eviction proceedings. S. Doc. No. 101-234, at 
86-87; Davidson, Public Housing Aides Push to Evict 
Drug Users, Sometimes Violating the Rights of other 
Tenants, Wall St. J., Jul. 6, 1989 at A12. Congress did 
not respond favorably. Subsequent to this hearing, 
Congress amended the eviction provision, but failed to 
include an innocent owner exception. National Afford- 
able Housing Act, Pub. L. 101-625, § 504, 104 Stat. 4079 
(1990) (substituting provisions relating to criminal 
activity threatening health, safety or peaceful enjoy- 
ment of other tenants for provisions relating to criminal 
activity generally). 

Likewise, as part of the notice and comment proce- 
dure necessary for implementing its regulations, HUD 

48a 

received substantial criticism of the applicability of 
§ 1437d(l)(6) to ignorant tenants. “Comment by legal 
aid and by tenant organizations . . . alleges that the 
tenant should not be responsible if the criminal activity 
is beyond the tenant’s control, if the tenant did not 
know or have reason to foresee the criminal conduct, 

. . . or if the tenant has done everything “reasonable” 
to control the criminal activity.” 56 Fed. Reg. at 51,566 
(1991). HUD nevertheless interpreted § 1437d(l)(6) to 
grant discretion to PHAs to evict ignorant tenants. 
56 Fed. Reg. at 51,567. 

Subsequent to these comments and subsequent to 
implementation of the HUD regulations, Congress once 
more amended the eviction statute—and again failed to 
include an innocent owner exemption.8 These inactions 
of Congress are highly significant. “As a matter of 
statutory construction, we ‘presume that Congress is 
knowledgeable about existing law pertinent to the 
legislation it enacts.’ ” 

United States v. Hunter, 101 
F.3d 82, 85 (9th Cir. 1996) (quoting Goodyear Atomic 
Corp. v. Miller, 486 U.S. 174, 184-185, 108 S. Ct. 1704, 
100 L.Ed.2d 158 (1988)). In Hunter, this court pre- 
sumed Congress was aware of judicial decisions inter- 
preting a criminal statute when it amended that statute 
many years after its initial passage. “Accordingly, the 
only reasonable interpretation of Congress omission of 
language . . . is that Congress intended [the judicial 
interpretation to control].” Hunter, 101 F.3d at 85. 

8 In fact, in the 1996 amendment to § 1437d(l)(6), Congress 
expanded the provision such that an ignorant tenant could be 
evicted for drug-related criminal activity that took place “on or 
off ” public housing premises, rather than simply “on or near” the 
premises as the legislation had previously read. Pub. L. No. 104- 
120, § 9(a)(2), 110 Stat. 836 (1996). 

49a 

Likewise, in this instance, Congress was aware that 
the administrative agency charged with implementing 
the eviction provision construed it to permit eviction of 
ignorant tenants. This interpretation had been chal- 
lenged on both policy and constitutional grounds before 
Congress and in HUD’s notice and comment proce- 
dures. Congress itself has shown its concern for 
ignorant tenants by protecting them with specific 
language in other legislative enactments. See supra.9 
Congress, however, did not provide an exemption for 
ignorant tenants when it amended § 1437d(l)(6) in 1996. 
This court does not have the power to amend the 
statute. Congress clearly intended HUD’s interpreta- 
tion of the eviction statute to prevail. 

II. Section 1437d(l )(6), Properly Interpreted, Does 
Not Conflict with 42 U.S.C. § 1437d(l )(1) Prohibit- 
ing Public Housing Leases that Contain Unrea- 
sonable Terms and Conditions. 

Section 1437d(l)(6) is part of a comprehensive pro- 
gram of legislative initiatives aimed at the public 
housing drug crisis. See Anti-Drug Abuse Act of 1988, 
Pub. L. No. 100-690, §§ 5101-5105 (1988); Dire Emer- 
gency Supplemental Appropriations and Transfers, 
Pub. L. No. 101-45, § 404 (1989); 42 U.S.C. 
§ 1437d(c)(4)(A) (1990). The district court held that one 
aspect of the legislative response was “unreasonable” 

9 21 U.S.C. § 881(a)(7) protects owners from forfeiture when 
they did not know nor consent to the illegal use of their property. 
42 U.S.C. § 1437d(c)(4)(a)(iii) protected ignorant public housing 
tenants from disqualification from future placement. Pub. L. No. 
101-45, § 404 provided ignorant tenants with additional procedural 
protections not available to those tenants who were aware of the 
drug-related criminal activity of their guests. 

50a 

because it was “on its face . . . irrational.” The 
majority opinion echoes this holding. Both the district 
court and the majority misconceive the rationale behind 
the law and ignore a considered policy judgment on the 
part of Congress. Section 1437d(l)(6) permits, but does 
not mandate, eviction for all tenants whose household 
members or guests engage in drug-related criminal 
activity. It grants discretion to PHAs to make this 
determination on a case-by-case basis. This was a 
reasonable decision on the part of Congress. 

Local PHAs, it must be remembered, operate “with 
tax funds provided from federal as well as from state 
sources. The State . . . has appropriate and para- 
mount interest and concern in seeing and assuring that 
the intended and proper objects of that tax-produced 
assistance are the ones who benefit from the aid it 
dispenses.” Wyman v. James, 400 U.S. 309, 318-19, 91 
S. Ct. 381, 27 L.Ed.2d 408 (1971). The district court 
properly defined a reasonable lease term: 

The lease term must be rationally related to a 
legitimate housing purpose. In applying this term, 
the crucible of reasonableness will be defined by the 
particular problems and concern confronting the 
local housing authority. Lease provisions which are 
arbitrary and capricious, or excessively overbroad 
or under-inclusive, will be invalidated. 

citing Richmond Tenants Org., Inc. v. Richmond Rede- 
velopment and Hous. Auth., 751 F. Supp. 1204, 1205-06 
(E.D. Va. 1990). 

Congress confronted two interrelated problems when 
it passed § 1437d(l)(6) permitting the eviction of igno- 
rant tenants. First, it faced increasing drug related 

51a 

crime in the nation’s public housing. Ample testimony 
before Congress demonstrated that drug use had 
rendered many public housing complexes unsafe and, in 
several instances, unlivable. 42 U.S.C. § 11901(3) 
(“drug dealers are increasingly imposing a reign of 
terror on public and other federally assisted low income 
housing tenants.”) 

10 Second, Congress was confronted 
with increasing and understandable reluctance on the 
part of public housing tenants to cooperate with efforts 
of local PHAs to address the drug problem. “Our 
inability to get pushers out of the buildings rapidly 
enough has caused tenants to think the Housing 
Authority has been working against them rather than 
with them.” 134 Cong. Rec. E1965-02 (June 14, 1988). 
Housing authorities were increasingly seen as “paper 
tigers” unable or unwilling to take decisive action 
against drug use in public housing. 134 Cong. Rec. at 
E1965-02. 

The ignorant tenant eviction provision rationally 
addresses both of these concerns. The power to evict 
an unknowing tenant provides the PHA with a credible 
deterrent against criminal activity. To require proof of 
knowledge on the part of the tenant of the criminal 
activity of a guest is impractical. Proper authorities 
would seldom, if ever, discover the tenant seated with 

10 One resident of public housing described living conditions in 
the following terms. 

“At night, when people are trying to rest, hallways are being 
used [for smoking crack], stairwells are being slept in, elevators 
are being mutilated with people using them for personal bath- 
rooms. . . . There is crack being sold openly.” 

Just Saying No is not Enough: HUD’s Inadequate Response to 
the Drug Crisis in Public Housing, H.R. Rep. No. 100-702, at 4 
(1988). 

52a 

the drug using guest or while the latter engaged in 
other drug-related criminal acts. Absent this rare 
factual situation, the housing authority would be forced 
to rely on evidence consisting of hearsay, gossip and 
rumor. Moreover, the lengthy public housing eviction 
procedure permits a culpable tenant to intimidate or 
threaten potential witnesses. “When suspected drug 
dealers were notified that eviction proceedings against 
them had been started, they sought to punish tenants 
who might have identified them.” 134 Cong. Rec. 
E1965-02. These tactics against housing tenants have 
furthered the public housing drug epidemic. 

In this case, for example, members of plaintiffs’ 
household engaged in drug-related criminal activity 
outside the tenant’s apartment. 

11 Since the tenant was 
not with the drug-user at the time of detection, evi- 
dence that the tenant knew of the drug related criminal 
activity must come from either the tenant, the drug 
user, or other residents. Only the latter, if available, 
would be a reliable source of such information. For 
obvious reasons, PHAs will rarely secure statements 
from either the drug user or the tenant. 

Based on substantial and credible evidence, Congress 
concluded that other residents were equally unlikely to 
present the necessary testimony. “Tenants are 
frightened. They are scared for themselves and their 
children. They are afraid to report drug incidents to 
the PHA management and to the police because usually 
nothing is done by either agency.” The Drug Problem 
and Public Housing: Hearings Before the House Select 

11 Mr. Walker’s guest was found in possession of drugs inside of 
Walker’s apartment. 

53a 

Comm. on Narcotics Abuse and Control, H.R. Rep. No. 
101-1019, at 66 (1989) (summary of testimony of Nancy 
Brown, Chairperson, State of Connecticut Task Force 
on Public Housing and Drugs); “The fear of retaliation 
makes it almost impossible to provide normal police 
protection.” H.R. Rep. No. 101-1019, at 69 (summary of 
testimony of Vincent Lane, Chairman, Chicago Housing 
Authority). 

By granting PHAs the authority to evict tenants 
without proving the tenant knew of the drug-related 
criminal activity, Congress passed reasonable legisla- 
tion designed to address these well-documented obsta- 
cles to effective law enforcement. Residents of public 
housing are empowered by § 1437d(l)(6) to monitor and 
report drug activity without fearing the possibility of 
retaliation. This will reduce the need for residents to 
confront drug dealers in court in order to prove the 
tenant knew of the drug-related criminal activity and 
secure their eviction. “Once tenants realize that they 
can rejoin the fight against drug dealers without fear of 
retaliation, we will have achieved an important 
victory.” 134 Cong. Rec. E1965-02 (article written by 
Emmanuel P. Popolizio, Chairman, New York City 
Housing Authority). 

Much of the public housing drug eradication program 
was aimed at obtaining the cooperation and support of 
public housing tenants. HUD Secretary Jack Kemp, for 
example, recommended that PHAs establish anony- 
mous ‘drug tip’ hotlines “so that residents can anony- 
mously report drug activity in their area.” H.R. Rep. 
No. 101-1019, at 64 (testimony of Jack Kemp, Secretary 
of HUD). Like the anonymous hotline, § 1437d(l)(6) 
was a reasonable response to the legitimate housing 

54a 

objective of reestablishing tenant control of drug- 
ridden public housing units. Mayor James P. Moran Jr. 
of Alexandria, Virginia argued before a Senate subcom- 
mittee that the eviction provision was critical to “giv- 
[ing] a sense of control back to the tenant leadership 
within the communities.” Drugs in Federally Assisted 
Housing: Hearings on S. 566 Before the Subcomm. on 
Housing and Urban Affairs of the Senate Comm. on 
Banking, Housing, and Urban Affairs, S. Doc. No. 101- 
234, at 27 (1989). 

Furthermore, a provision permitting the eviction of 
unknowing tenants because of the wrongdoing of their 
household members or guests is a common and 
enforceable provision in leases between private owners 
of property and their tenants. Shepard v. Dye, 137 
Wash. 180, 242 P. 381 (1926) (eviction upheld even 
though lessee neither knew of nor consented to the 
gambling activity engaged in by sublessee); Minnesota 
Public Hous. Auth. v. Lor, 591 N.W.2d 700, 704 (1999) 
(“A lease is a form of contract. Unambiguous contract 
language must be given its plain and ordinary meaning, 
and shall be enforced by courts even if the result is 
harsh.” [citations omitted] ); 56 Fed. Reg. at 51,566 
(Oct. 11, 1991) (The “ability of PHA or other landlord to 
enforce covenants relating to acts of unit residents . . . 
is a normal and ordinary incident of tenancy.”) The 
regular use and enforcement of these provisions among 
private parties attests to their reasonableness. 

The fact that one of the parties to this particular 
lease was a government agency does not render an 

55a 

12 Fre- 
quently, governments impose liability on individuals 
without requiring that the individual had actual 
knowledge of the wrongdoing. See Conn. Gen. Stat. 
§ 52-572 (imposing tort liability on “ignorant” parents 
for actions of their children); 42 U.S.C. § 9607 (property 
owner liable for environmental cleanup when waste was 
legally deposited by a previous owner without current 
owner’s knowledge or consent). 

Thus, it must be acknowledged that the congressional 
imposition of liability without fault on individuals is not, 
per se, unreasonable. Such liability, furthermore, is 
frequently negotiated between private landlords and 
tenants. Congress, by enacting § 1437d(l)(6), deter- 
mined that the safety and security of public housing 
tenants justified the potential eviction of ignorant 
tenants. Housing Lease and Grievance Procedures, 56 
Fed. Reg. at 51,567 (“Congress has determined that 
drug crime and criminal threats by public housing 
household members are a special danger to the security 
and general benefit of public housing residents war- 
ranting special mention in the law.”) This determination 
was entirely reasonable. 

12 Whether the lease provision is “reasonable” within the mean- 
ing of § 1437d(l)(1) is a separate question from whether the 
constitution permits the government to include it in every public 
housing lease. We deal with the constitutional questions below. 

otherwise prudent provision unreasonable. 

56a 

III. The Constitution Does Not Prohibit the Eviction 
of Ignorant Tenants from Federally Subsidized 
Housing. 

Section 1437d(l)(6) is not proscribed by the Consti- 
tution. In evicting Walker, Lee and Hill 

13 for the 
actions of their household members and guests, the 
Oakland Housing Authority was exercising its right to 
terminate tenancy because of a violation of the lease. 
As noted above, this is not an unusual provision. 

14 The 
fact that the landlord in this case was a government 
agency should not transform an otherwise proper 
eviction into a constitutional question. 

A. Constitutional Doubt 

The majority does not reach the constitutional issues 
raised by the tenants in this case. Rather, applying the 
doctrine of “constitutional doubt,” the majority instead 
imposes its own construction on the statute. The 
majority, however, has misapplied this doctrine. “The 
‘constitutional doubt’ doctrine does not apply mechani- 
cally whenever there arises a significant constitutional 
question the answer to which is not obvious.” 
Almendarez-Torres v. United States, 523 U.S. 224, 239, 
118 S. Ct. 1219, 140 L.Ed.2d 350 (1998). The doctrine is 
to be applied only when 1) the statute is “genuinely 
susceptible to two constructions” and 2) there is a 
“serious likelihood” that the statute will be held uncon- 

13 In an exercise of its “humane judgment,” the OHA has 
decided not to seek the eviction of plaintiff Rucker. 

14 “Were we dealing with the same lease provision in a lease 
between private parties we could have affirmed the [eviction] in 
one short paragraph relying solely on the lease provision.” Hous. 
Auth. of New Orleans v. Green, 657 So.2d 552, 555 (La. App. 1995). 

57a 

stitutional. Id. at 238, 118 S. Ct. 1219; United States v. 
Jin Fuey Moy, 241 U.S. 394, 401, 36 S. Ct. 658, 60 L.Ed. 
1061 (1916) (Holmes, J.) (statute must be construed so 
as to avoid “grave doubts” as to its constitutionality). 
We have already articulated the reasons we do not 
believe the statute is susceptible to multiple interpre- 
tations. We would also hold that the statute, as written 
by Congress and implemented by HUD, is consti- 
tutional. 

B. Due Process 

Government plays many parts. When it acts in one of 
its many proprietary roles (employer, purchaser, or 
landlord, to name a few), it must be able to enforce 
reasonable and germane conditions. National Endow- 
ment for the Arts v. Finley, 524 U.S. 569, 587-588, 118 S. 
Ct. 2168, 141 L.Ed.2d 500 (1998) ( “[T]he Government 
may allocate competitive funding according to criteria 
that would be impermissible were direct regulation 

. . . or a criminal penalty at stake.”) A government em- 
ployer, for example, may impose restraints on employee 
speech that would violate the First Amendment if 
imposed on an ordinary citizen. Pickering v. Bd. of 
Educ. Of Township High School Dist. 205, Will County, 
Illinois, 391 U.S. 563, 568, 88 S. Ct. 1731, 20 L.Ed.2d 
811 (1968) (applying intermediate rather than strict 
scrutiny to dismissal of public school teacher for 
exercising First Amendment rights). Likewise, when 
the government acts to subsidize a purchase of certain 
services but not others, there may be no constitutional 
implications. Maher v. Roe, 432 U.S. 464, 475, 97 S. Ct. 
2376, 53 L.Ed.2d 484 (1977) (subsidizing childbirth, but 
not abortion “does not interfere” with a fundamental 
right, but merely “encourages” childbirth). 

58a 

When managing a public housing complex, the 
government’s role is not unlike that of an employer or 
purchaser. The constitution does not require the 
government to provide decent and safe housing to its 
citizens. Lindsey, 405 U.S. at 74, 92 S. Ct. 862 (there is 
no “constitutional guarantee of access to dwellings of a 
particular quality.”) The rights provided in the Housing 
Act of 1937 and its subsequent amendments arise from 
congressional notions of sound policy not constitutional 
necessity. In furtherance of such policy, Congress 
should be accorded considerable flexibility in fixing the 
necessary rules with which beneficiaries must comply. 

In this case, Congress has limited the right to reside 
in public housing to those individuals who agree to 
accept responsibility for the drug-related criminal 
activity of their household members and guests. It has 
granted to PHAs the authority to withdraw this benefit 
from those who will not or cannot prevent their guests 
from engaging in such activity. So long as this condi- 
tion is relevant to the government’s underlying interest 
as a landlord, it is constitutionally permissible. Nollan 

v. Cal. Coastal Comm’n, 483 U.S. 825, 836, 107 S. Ct. 
3141, 97 L.Ed.2d 677 (1987) (if governmental purpose is 
sufficient to justify outright refusal of benefit, it is 
sufficient to justify conditions on that benefit). See also 
Dandridge v. Williams, 397 U.S. 471, 90 S. Ct. 1153, 25 
L.Ed.2d 491 (1970). 

In Lyng v. Int’l Union, United Auto., Aerospace and 
Agric. Implement Workers of America, UAW 
(“UAW”), 485 U.S. 360, 108 S. Ct. 1184, 99 L.Ed.2d 380 
(1988), the Supreme Court upheld the denial of food 
stamps to an entire household because a single member 
of that household was on strike. Like the tenants in the 

59a 

present case, the appellees in UAW argued that the 
statute unconstitutionally burdened the right to 
association because it “impermissibly directs the onus 
of the striker’s actions against the rest of the family.” 
UAW, 485 U.S. at 363, 108 S. Ct. 1184. 

The denial of food stamps undoubtedly imposed a 
hardship on “innocent” family members. So long as 
non-striking family members continued to share their 
household with a striker, they were prohibited from 
enjoying a government benefit to which they were 
otherwise entitled. Although the Court recognized that 
associational rights were implicated by the food stamp 
statute, it held that the “withdrawal of a government 
benefit” did not pose a significant danger to the exer- 
cise of that constitutional right. Id. at 367 n.5, 108 S. Ct. 
1184. 

In UAW, the Court also acknowledged that the 
means used by Congress in addressing this objective 
were imperfect because the “statute works at least 
some discrimination against strikers and their house- 
holds.” Id. at 371-72, 108 S. Ct. 1184 (“in terms of the 
scope and extent of their ineligibility for food stamps, 
§ 109 is harder on strikers than voluntary quitters.”) 
Nevertheless, the Court deferred to the congressional 
view of “what constitutes wise economic or social 
policy” and upheld the statute. Id. at 372, 108 S. Ct. 
1184 (quoting Dandridge v. Williams, 397 U.S. at 486, 
90 S. Ct. 1153.) 

Similarly, in Lipscomb v. Simmons, 962 F.2d 1374 
(9th Cir. 1992) (en banc), this court upheld a state’s 
foster care funding scheme against a constitutional 
challenge. The court noted that it must defer to the 
legislatively determined allocation of scarce child care 

60a 

subsidies. “Because Oregon has no affirmative obliga- 
tion to fund plaintiffs’ exercise of a right to maintain 
family relationships free from governmental interfer- 
ence, we decline to apply heightened scrutiny.” Lip- 
scomb, 962 F.2d at 1379. Because the allocation of 
welfare payments is a legislative function, a court may 
not strike down such schemes on the basis of “seem- 
ingly arbitrary consequences in some individual cases.” 
Id. at 1382 (quoting Califano v. Jobst, 434 U.S. 47, 53, 
98 S. Ct. 95, 54 L.Ed.2d 228 (1977)). Rather, when 
confronted with a facial challenge to a statutory 
determination of eligibility, the Lipscomb court limited 
its inquiry to “only whether there is a rational basis for 
the program viewed as a whole.” Id. Consequently, 
despite the potential for “unfavorable results in the 
cases of individual plaintiff[s],” the statutory scheme 
was constitutional because it was rationally related to 
the government’s interest in “maximizing the amount of 
money available” for the program as a whole. Id. at 
1380, 1381. 

In this case, the government has interrelated inter- 
ests. Both reclaiming public housing from an epidemic 
of drug related crime and violence and empowering 
public housing residents to assist in this effort are 
indisputably legitimate objectives. The failure to 
distinguish between the knowing and unknowing ten- 
ant need survive only minimal scrutiny. In determining 
who may reside in federally subsidized housing, Con- 
gress must draw distinctions “in order to make alloca- 
tions from a finite pool of resources.” UAW, 485 U.S. at 
373, 108 S. Ct. 1184. See also Wyman v. James, 400 
U.S. 309, 91 S. Ct. 381, 27 L.Ed.2d 408 (1971) (holding 
that the government may condition welfare payments 

61a 

on a recipients agreement to permit warrantless 
homevisits by agency personnel). 

Section 1437d(l)(6) facilitates the eviction of truly 
culpable tenants, creates incentives for all tenants to 
report drug-related criminal activity, and provides a 
credible deterrent against criminal activity. Because 
the eviction provision is discretionary, the provision 
also motivates tenants to accept remedial actions short 
of eviction. HUD, One Strike and Your Out Policy in 
Public Housing, 8 (March 1996). 

15 The statute is, 
therefore, rationally related to Congress’ legitimate 
objectives. No more is required. Ohio Bureau of 
Employment Servs. v. Hodory, 431 U.S. 471, 491, 97 S. 
Ct. 1898, 52 L.Ed.2d 513 (1977) (statute that “provides 
only rough justice . . . is [nevertheless] far from 
irrational.”) 

The majority opinion ignores the discretionary 
nature of the benefit at issue and instead focuses on the 
property rights of those who currently reside in 
federally subsidized housing. The majority finds “grave 
doubt” as to the constitutionality of 1437d(l)(6) because 
the statute authorizes eviction “without any relation- 
ship to individual wrongdoing.” The majority’s analysis 
flounders, however, because the Supreme Court has 
repeatedly held that “the innocence of the owner of 
property subject to forfeiture has almost uniformly 

15 Even though the “one strike” policy was implemented eight 
years after the passage of § 1437d(l)(6) it still may offer a legiti- 
mate rationale for the passage of the statute. Atonio v. Wards 
Cove Packing Co., 10 F.3d 1485, 1494 (9th Cir. 1993) (“A rational 
basis need not be one that actually motivated Congress. It is 
enough that plausible reasons for Congress’ action exist.” 
[citations omitted]) 

62a 

been rejected as a defense.” Bennis v. Michigan, 516 
U.S. 442, 449, 116 S. Ct. 994, 134 L.Ed.2d 68 (1996) 
(quoting Calero-Toledo v. Pearson Yacht Leasing Co., 
416 U.S. 663, 683, 94 S. Ct. 2080, 40 L.Ed.2d 452 (1974)); 
See also, J.W. Goldsmith, Jr. Grant Co. v . United 
States, 254 U.S. 505, 41 S. Ct. 189, 65 L.Ed. 376 (1921); 
Van Oster v. Kansas, 272 U.S. 465, 47 S. Ct. 133, 71 
L.Ed. 354 (1926). 

The majority argues that this unbroken line of 
authority is factually distinguishable from the present 
case. Specifically, the majority hangs its constitutional 
argument on the fact that two tenants face eviction for 
drug related criminal activity that took place on public 
housing premises but not in the tenant’s apartment. 
This is a thin reed on which to hang “grave doubts” as 
to the constitutionality of § 1437d(l)(6). The “cases 
authorizing [forfeiture of the property of innocent 
owners] are ‘too firmly fixed in the punitive and 
remedial jurisprudence of the country to be now 
displaced.’ ” 

Bennis, 516 U.S. at 452, 116 S. Ct. 994. 
(quoting Goldsmith-Grant, 254 U.S. at 511, 41 S. Ct. 
189). The facts of this case present no reason to create 
a new constitutional rule. Those who engaged in drug- 
related criminal activity were on the premises with the 
consent of the tenants. No additional nexus among the 
tenant, property, and the drug use is constitutionally 
required. 

C. Excessive Fines 

The tenants’ contention that the lease provision 
permitting eviction of ignorant tenants is an excessive 
fine proscribed by the Eighth Amendment is without 

63a 

16 No court has held that government enforce- 
ment of a valid lease provision constitutes an excessive 
fine. To do so would be to “federalize the substantive 
law of landlord-tenant relations.” Lindsey, 405 U.S. at 
68, 92 S. Ct. 862. Excessive fines analysis is limited to 
those circumstances where “the government . . . 
extracts payments, whether in cash or in kind, ‘as 
punishment for some offense.’ ” 

merit. 

United States v . 
Bajakajian, 524 U.S. 321, 328, 118 S. Ct. 2028, 141 
L.Ed.2d 314 (1998) (quoting Austin v. United States, 
509 U.S. 602, 609-610, 113 S. Ct. 2801, 125 L.Ed.2d 488 
(1993)). 

The eviction of a tenant for violation of a valid lease 
provision is distinguishable from a cash payment to the 
government. In Kim v. United States, 121 F.3d 1269 
(9th Cir. 1997), a grocery store owner sought review of 
his permanent disqualification from participation in the 
federal food stamp program. The basis for the disquali- 
fication was that an employee—without plaintiff ’s 
knowledge or consent—illegally exchanged cash for 
food stamps. Id. at 1271. The owner insisted that 
permanent disqualification constituted an excessive fine 
in that there was no evidence of individual wrongdoing 
on his part. The court rejected this argument. “Perma- 
nent disqualification . . . is not an excessive fine 
prohibited by the Eighth Amendment because it is not 
cash or in kind payment directly imposed by, and 
payable to, the government.” Id. at 1276. 

Eviction from publicly subsidized housing is compar- 
able. Eviction is the return of a possessory right to its 

16 “Excessive bail shall not be required, nor excessive fines im- 
posed, nor cruel and unusual punishment inflicted.” U.S. Const., 
amend. 8. 

64a 

original owner, the government. The government then 
transfers the possessory right to another citizen under 
the same conditions as it was held by the original 
tenant. The purpose behind the excessive fines 
clause—to limit the government’s power to enrich itself 
by punishing its citizens—is absent in the case of 
eviction from public housing. See Browning-Ferris 
Industries of Vt. Inc. v. Kelco Disposal, Inc., 492 U.S. 
257, 264-268, 109 S. Ct. 2909, 106 L.Ed.2d 219 (1989). 
Evictions cannot properly be characterized as “cash or 
in kind payments” and should not be subject to exces- 
sive fines analysis. 

Moreover, evictions in these circumstances are not 
punitive. They are remedial. A civil sanction is punitive 
when it serves “either retributive or deterrent pur- 
poses.” Austin, 509 U.S. at 610, 113 S. Ct. 2801. 
Eviction serves the classic purpose of a contractual 
remedy—it returns the parties to “as good a position as 
that occupied . . . before the contract was made.” 
Corbin on Contracts § 996. The remedy of eviction 
alone is not punitive. Therefore, the Eighth Amend- 
ment prohibition of excessive fines is inapplicable in 
this case. 

IV. The ADA Does Not Prevent the Eviction of Mr. 
Walker. 

In addition to the statutory and constitutional claims 
raised by all tenants, one tenant, Mr. Walker, raises an 
additional claim under the Americans with Disabilities 
Act (“ADA”) 42 U.S.C. § 12101, et seq. Walker argues 
that the ADA prevents his eviction despite the fact that 
his caretaker and other guests engaged in drug-related 
criminal activity in his apartment and on the premises 
on at least three occasions. 

65a 

The district court enjoined the unlawful detainer 
proceedings against Walker. The court held that the 
eviction provision of the lease placed Walker “at more 
risk for forfeiture of his tenancy than other tenants who 
do not require in home care.” While non-disabled 
tenants can comply with the lease provision simply by 
“choosing not to have any household members or 
guests,” Mr. Walker—because of his disability—does 
not have that choice. He requires an in home caretaker. 
Consequently, the district court concluded that the 
ADA may require the OHA to provide some accommo- 
dation exempting Walker from responsibility for the 
drug-related criminal activity of his caretaker. 

The district court erred, however, because the OHA 
did not seek to evict Mr. Walker based solely on the 
drug-related criminal activity of his caretaker. 
Whether there is a “reasonable accommodation” that 
would permit Mr. Walker to engage the services of a 
drug-using caretaker without risk of eviction was not 
presented by the facts of this case. Consequently, 
although the district court applied the appropriate 
standard to a request for preliminary relief, it “mis- 
apprehend[ed] the law with respect to the underlying 
issues in litigation.” Sports Form, Inc. v. United Press 
Int’l, Inc., 686 F.2d 750, 752 (1982). This constitutes 
reversible legal error. 

The unlawful detainer complaint against Mr. Walker 
alleged three separate incidents of drug-related 
criminal activity in Mr. Walker’s apartment and/or by 
his guests. Only one of those incidents involved Mr. 
Walker’s caretaker. On August 7, 1997, the OHA 
contends that it stopped and searched a guest of Mr. 
Walker on OHA premises. The guest was in possession 

66a 

of crack cocaine. Mr. Walker does not claim that this 
guest was employed as his caretaker. After arresting 
Walker’s guest, officers went to Walker’s unit where 
Walker consented to a search. There officers met 
Eleanor Randle. Ms. Randle had a cocaine pipe pinned 
inside her jacket. She was arrested for possession of 
narcotics paraphernalia. Mr. Walker alleges that Ms. 
Randle is his caretaker. Officers also found a cardboard 
box containing crack cocaine pipes and “suspected rock 
cocaine chips.” OHA did not ascertain the ownership of 
these drugs found in Walker’s apartment. Mr. Walker 
denied knowledge of all criminal drug activity that took 
place in his apartment. 

On August 12, 1997 officers found a cocaine pipe 
inside a bag of hair rollers inside Walker’s apartment. 
Walker’s alleged caretaker, Eleanor Randle, was not 
present at the time, although another guest was. 

On October 11, 1997 officers again found a cocaine 
pipe in Walker’s apartment. Walker’s guest at the time 
was cited for possession of narcotics paraphernalia. 
Walker does not allege that this guest was his careaker. 

Under § 1437d(l)(6) any one of these incidents, if 
proven, is sufficient justification for Mr. Walker’s evic- 
tion. Under the district court’s reasoning, Mr. Walker 
requires a “reasonable accommodation” only because he 
cannot, like a non-disabled resident, choose not to have 
guests. He must permit a caretaker to enter his 
apartment. This reasoning cannot sustain an accommo- 
dation that exempts Walker from eviction for the drug- 
related criminal activity of non-caretaker guests. There 
are two alleged incidents of such conduct. 

67a 

On appeal of a preliminary injunction, we do not 
accept the housing authority’s allegations as true. The 
accuracy of these allegations should be determined 
through the normal adjudication of the pending 
unlawful detainer action. We only believe that even 
assuming Mr. Walker is disabled and assuming that a 
reasonable accommodation could be found that would 
prevent the eviction of Mr. Walker because of the drug- 
related criminal activity of his caretaker, Mr. Walker 
could still be evicted based on the drug possession of his 
other guests who were not his caretakers. Mr. Walker’s 
ADA claim should therefore be rejected. 

17 

CONCLUSION 

It is obvious that when Congress authorized the 
eviction of innocent tenants, the potential for individual 
unfairness existed. Congress granted to local PHA’s 
the power to evict and trusted that the “humane 
judgment” of PHA officials and the procedural protec- 
tions of the Act would prevent the abuse of this power. 
Congress struck a balance. It did so in the face of a 
drug crisis and the ineffectiveness of traditional law 
enforcement. It bestowed upon the PHAs the 
authority challenged in this case. That authority does 
not violate the Constitution. This legislation should be 
interpreted as it was written. 

17 We also note that the OHA did accommodate Mr. Walker by 
not attempting to evict him until after the third drug-related 
criminal offense committed by one of his guests. OHA is not 
required by the ADA to provide Walker with an accommodation 
that is not reasonable. Memmer v. Marin County Courts, 169 F.3d 
630, 633-634 (9th Cir. 1999). A request to waive applicability of 
§ 1437d(l)(6) to a tenant’s caretaker is not reasonable. 

68a 

APPENDIX B 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

Nos. 98-16322, 98-16542 

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; 
BARBARA HILL, PLAINTIFFS-APPELLEES 

v. 

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, 
DEFENDANTS 

AND 

UNITED STATES DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT, DEFENDANT-APPELLANT 

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; 
BARBARA HILL, PLAINTIFFS-APPELLEES 

v. 

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, 
DEFENDANTS-APPELLANTS 

AND 

UNITED STATES DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT, DEFENDANT 

Filed Aug. 18, 2000 

Before: HUG, Chief Judge. 

69a 

ORDER 

Upon the vote of a majority of nonrecused regular 
active judges of this court,1 it is ordered that this case 
be reheard by the en banc court pursuant to Circuit 
Rule 35-3. The three-judge panel opinion shall not be 
cited as precedent by or to this court or any district 
court of the Ninth Circuit, except to the extent adopted 
by the en banc court. 

1 Judges Wardlaw and Fisher were recused. 

70a 

APPENDIX C 

UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 

Nos. 98-16322, 98-16542 

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; 
BARBARA HILL, PLAINTIFFS-APPELLEES 

v. 

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, 
DEFENDANTS 

AND 

UNITED STATES DEPARTMENT OF HOUSING AND 

URBAN DEVELOPMENT, DEFENDANT-APPELLANT 

PEARLIE RUCKER; HERMAN WALKER; WILLIE LEE; 
BARBARA HILL, PLAINTIFFS-APPELLEES 

v. 

HAROLD DAVIS; OAKLAND HOUSING AUTHORITY, 
DEFENDANTS-APPELLANTS 

AND 

UNITED STATES DEPARTMENT OF HOUSING AND 
URBAN DEVELOPMENT, DEFENDANT 

Filed Feb. 14, 2000 

71a 

Before: SNEED, O’SCANNLAIN, and W. FLETCHER, 
Circuit Judges. 

Opinion by Judge O’SCANNLAIN; Dissent by Judge W. 
FLETCHER. 

O’SCANNLAIN, Circuit Judge: 

We must decide whether a local public housing 
agency may evict a tenant on the basis of drug-related 
criminal activity engaged in by a household member on 
or near the premises regardless of whether the tenant 
was personally aware of such activity. 

I 

Established in 1937, the first public housing program 
was intended to assist states and localities in providing 
affordable housing to low-income families. See Pub. 
L. No. 75-412, 50 Stat. 888 (1937). The Housing Act of 
1937 vested responsibility for managing, maintaining, 
and operating public housing developments in local 
public housing agencies (“PHAs”) rather than in the 
federal government. See 42 U.S.C. § 1437. Over 3,192 
local PHAs currently oversee the 1,326,224 public hous- 
ing units that are home to over 3 million people. See 
U.S. Dep’t of Hous. & Urban Dev., “One Strike and 
You’re Out”: Policy in Public Housing 3 (1996); Office 
of Policy Dev. & Research, U.S. Dep’t of Hous. & 
Urban Dev., A Picture of Subsidized Households, 
Volume 11, United States: Large Projects & Agencies 
14, 72 (1996); Michael H. Schill, Distressed Public Hous- 
ing: Where Do We Go From Here?, 60 U. Chi. L.Rev. 
497, 499-522 (1993). In exchange for monetary 
assistance for the construction and operation of low- 
income housing, local PHAs agree to abide by federal 
regulations promulgated by the Department of Housing 

72a 

and Urban Development (“HUD”) under the United 
States Housing Act. See generally 42 U.S.C. § 1437 et 
seq.; see also Hodge v. Department of Hous. & Urban 
Dev., 862 F.2d 859, 860-61 (11th Cir. 1989) (discussing 
the relationship between HUD and PHAs); Project 
B.A.S.I.C. v . Kemp, 947 F.2d 11, 20 (1st Cir. 1991); 
Thomas v. Chicago Hous. Auth., 919 F. Supp. 1159, 
1163 (N.D. Ill. 1996). 

Intended as a sanctuary for low-income families, see 
Office of Policy Dev. & Research, supra, at 72 (report- 
ing that public housing residents have an average total 
household income of $8,500 per year), many public 
housing projects—primarily the larger ones located in 
urban areas—have been transformed into havens of 
crime, with severe and tragic social and physical 
distress resulting for residents and for the surrounding 
neighborhoods generally. See U.S. Dep’t of Hous. & 
Urban Dev., supra, at 3; Schill, supra, at 500-01. A 
White House report states: “Public housing has become 
a staging area for the distribution of drugs and the 
violence related to drug trafficking and consumption.” 
Office of Nat’l Drug Control Policy, Executive Office of 
the President, National Drug Control Strategy 64 
(1991); see also D. Saffran, “Public Housing Safety 
Versus Tenants’ Rights,” 6 The Responsive Commun- 
ity 34-35 (Fall 1996) (discussing the problem of drugs 
and crime in public housing). 

In 1988, Congress took decisive steps towards im- 
proving living conditions in public housing, attacking 
the problem of drugs and crimes, in particular, in the 
Anti-Drug Abuse Act of 1988. Beginning with the 
premise that “the Federal Government has a duty to 
provide public and other federally assisted low-income 
housing that is decent, safe, and free from illegal 

73a 

drugs,” and that “public and other federally assisted 
low-income housing in many areas suffers from 
rampant drug-related crime,” 42 U.S.C. § 11901(1)-(2),1 
Congress sought to create an effective and efficient 
mechanism for ridding public housing of those who sell 
or use drugs. More specifically, Congress required 
that: 

Each public housing agency shall utilize leases 
which— 

. . . . . 

(5) 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 pre- 
mises, while the tenant is a tenant in public housing, 
and such criminal activity shall be cause for 
termination of tenancy. 

1 Congress made three other related findings: 

The Congress finds that— 

. . . . . 

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

Id. § 11901(3)-(5). 

74a 

42 U.S.C. § 1437d(l)(5) (1989).2 In 1990 and in 1996, 
Congress altered the language of the statute, but left 
its effect unchanged in relevant part: 

Each public housing agency shall utilize leases 

. . . . . 
which- 

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

Id. § 1437d(l)(5) (1991). Congress amended this 
statute further in 1996, replacing the phrase “on or near 
such premises” with “on or off such premises.” Id. 
(1997).3 

In 1991, HUD issued regulations implementing sec- 
tion 1437d(l)(5). One such regulation, 24 C.F.R. 
§ 966.4(f )(12)(i)(B), provides: 

2 The term “drug-related criminal activity” was defined as 
“the illegal manufacture, sale, distribution, use, or possession with 
intent to manufacture, sell, distribute, or use, of a controlled 
substance (as defined in section 802 of Title 21).” Id. § 1437d(l). 

3 In 1998, section 1437d(l)(5) was redesignated as subsection 
(l) (6), but the language was left unchanged. We will continue to 
refer to this provision as (l)(5). 

75a 

§ 966.4 
Lease requirements. 

A lease shall be entered into between the PHA 
and each tenant of a dwelling unit which shall 
contain the provisions described hereinafter. 

. . . . . 

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

. . . . . 

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

. . . . . 

(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)(B). Another regulation 
similarly provides: 

Either of the following types of criminal activity 
by the tenant, any member of the household, a 
guest, or another person under the tenant’s control, 
shall be cause for termination of tenancy: 

. . . . . 

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

Id. § 966.4(l)(2)(ii)(B). 

76a 

In formulating these regulations, HUD considered 
comment by legal aid and by tenant organizations that 
tenants “should not be required to ‘assure’ the non- 
criminal conduct of household members, or should have 
only a limited responsibility to prevent criminal be- 
havior by members of the household” and “that the 
tenant should not be responsible if the criminal activity 
is beyond the tenant’s control, if the tenant did not 
know or have reason to foresee the criminal conduct, if 
the tenant did not participate, give consent or approve 
the criminal activity, or if the tenant did everything 
‘reasonable’ to control the criminal activity.” 56 Fed. 
Reg. 51560, 51566 (Oct. 11, 1991). Ultimately, however, 
HUD decided not to accept these suggestions, instead 
choosing to grant local PHAs the discretion to evict a 
tenant whose household members or guests use or sell 
drugs on or near the public housing premises regardless 
of whether the tenant knew or should have known of 
such activity. See id. at 51566-67. HUD stated quite 
explicitly: “The tenant should not be excused from 
contractual responsibility by arguing that tenant did 
not know, could not foresee, or could not control be- 
havior by other occupants of the unit.” Id. at 51567. 

HUD offered several reasons for its decision. First, 
the “contractual responsibility of the tenant for acts of 
unit occupants is a conventional incident of tenant 
responsibility under normal landlord-tenant law and 
practice, and is a valuable tool for management of the 
housing. The tenant should not be excused from con- 
tractual responsibility by arguing that tenant did not 
know, could not foresee, or could not control behavior 
by other occupants of the unit.” Id. at 51567. Second, 
HUD feared that allowing a tenant to escape eviction 
by claiming a lack of knowledge “would allow a variety 

77a 

of excuses for a tenant’s failure to prevent criminal 
activity by household members” and “would thereby 
undercut the tenant’s motivation to prevent criminal 
activity by household members.” Id. Third, PHAs may 
often have difficulty proving in court that the lease- 
holder had knowledge or control over the offending 
person, thus making it time-consuming, costly, and 
otherwise cumbersome to evict households causing 
drug-related problems in public housing. See id. Fi- 
nally, HUD noted that “a family which does not or 
cannot control drug crime, or other criminal activities 
by a household member which threaten health or safety 
of other residents, is a threat to other residents and the 
project.” Id. 

Importantly to this case, although HUD unequi- 
vocally authorizes eviction whenever a household 
member or guest sells or uses drugs on or near the 
apartment premises, it does not mandate or even 
encourage across-the-board evictions whenever there is 
cause to evict. Instead, its regulations recognize the 
importance of giving each case individualized con- 
sideration in light of the equities of the tenant’s parti- 
cular situation and examining whether some remedial 
measure other than eviction of the tenant may be 
appropriate even when there is clearly cause to evict 
the tenant. See infra Part IV-C; 24 C.F.R. 
§ 966.4(l)(5)(i). 

II 

Pursuant to section 1437d(l)(5) and HUD regulations, 
the Oakland Housing Authority (“OHA”) includes in its 
leases a provision obligating tenants to “assure that 
tenant, any member of the household, or another person 
under the tenant’s control, shall not engage in . . . 
[a]ny drug-related criminal activity on or near the 

78a 

premises (e.g., manufacture, sale, distribution, use, 
possession of illegal drugs or drug paraphernalia, etc.).” 
It is this lease provision—which OHA interprets as 
authorizing the eviction of a tenant on the basis of a 
household member’s or guest’s drug-related criminal 
activity regardless of whether the tenant knew or 
reasonably should have known of such activity—that 
has given rise to the present controversy. 

OHA commenced separate unlawful detainer actions 
in the Alameda County Municipal Court against Pearlie 
Rucker, Willie Lee, Barbara Hill, and Herman Walker 
(collectively “Tenants”) after discovering a household 
member or guest of each Tenant engaging in drug- 
related criminal activity on or near the public housing 
premises. The relevant facts regarding the first three 
Tenants are quite similar. Rucker’s daughter was 
found in possession of cocaine and drug paraphernalia 
three blocks from Rucker’s apartment. Lee’s grandson 
was caught using marijuana in the housing develop- 
ment’s parking lot, as was Hill’s grandson. All three 
Tenants claim to have been unaware of their household 
member’s drug-related criminal activity. 

The fourth Tenant, Walker, presents a somewhat 
different case. Walker is partially paralyzed and incap- 
able of living independently. OHA served him with a 
notice of termination of tenancy after the third instance 
in which drugs or drug paraphernalia were found in his 
apartment. On the first occasion, officers found cocaine 
chips and cocaine pipes in Walker’s bedroom as well as 
a cocaine pipe in the jacket of Eleanor Randle, Walker’s 
care-giver.4 Randle was arrested for possession of nar- 

4 Walker consented to this search, as well as to the subse- 
quent searches. 

79a 

cotics paraphernalia, and OHA issued Walker a lease 
violation notice. OHA officers and the housing manager 
conducted a follow-up check of Walker’s apartment five 
days later and found another rock cocaine pipe, at which 
point Walker was issued another lease violation notice. 
Two months later, drug paraphernalia was found in 
Walker’s apartment yet again. In addition to issuing a 
third lease violation notice, OHA served Walker with a 
notice of termination and initiated an unlawful detainer 
action after he refused to vacate. It was not until after 
Walker received his third lease violation notice that he 
fired his drug-using care-giver. 

In response to OHA’s unlawful detainer actions, 
Tenants filed the present action in the United States 
District Court for the District of Northern California 
against HUD, OHA, and OHA’s director Harold Davis 
in December 1997. Tenants argued that 42 U.S.C. 
§ 1437d(l)(5) does not authorize the eviction of what 
they termed an “innocent tenant”—namely, a tenant 
who did not know of and had no reason to know of a 
household member’s or guest’s drug dealing or drug 
use. Tenants argued further that, if it does, the statute 
is unconstitutional. In addition, Walker alleged that his 
eviction would violate Title II of the Americans with 
Disabilities Act (“ADA”). See 42 U.S.C. § 12132, 
et seq.5 

5 Rucker also presented an ADA claim, which the district 
court dismissed because she did not allege a disability. Rucker 
does not appeal this ruling, so only Walker’s ADA claim is before 
us. 

80a 

Tenants sought a preliminary injunction against their 
eviction, and the parties agreed to stay Lee’s, Hill’s, 
and Walker’s state court proceedings pending the 
resolution of the present case.6 “To obtain a pre- 
liminary injunction, the moving party must show either 
(1) a combination of probable success on the merits and 
the possibility of irreparable injury, or (2) that serious 
questions are raised and the balance of hardships tips 
sharply in its favor.” Big Country Foods, Inc. v. Board 
of Educ. of Anchorage School Dist., 868 F.2d 1085, 1088 
(9th Cir. 1989). The district court concluded that 
Tenants had established a “fair chance of success” on 
their claim that HUD’s interpretation of section 
1437d(l)(5) was inconsistent with the statute itself and 
thus violated the Administrative Procedure Act 
(“APA”), see 5 U.S.C. §§ 701-706. The court determined 
further that HUD’s interpretation raised substantial 
concerns with respect to Tenants’ First Amendment 
right to freedom of association. Finding that the 
balance of hardships tipped decisively in Tenants’ favor, 
the district court preliminarily enjoined the eviction of 
any public housing tenant for “drug-related criminal 
activity that does not occur within the tenant’s apart- 
ment unit when the tenant did not know of, or have 
reason to know of, the drug-related criminal activity.” 7 

HUD, OHA, and Davis appeal this injunction. 

In addition, the district court held that Walker had 
established a fair chance of success on his ADA claim, 
reasoning that, because Walker’s disability prevents 

6 The unlawful detainer action against Rucker was dismissed 
in February 1998. Rucker continues to reside in OHA housing. 

7 In addition, the court specifically enjoined OHA from pro- 
secuting its state court eviction proceedings against Hill, Lee, and 
Walker. 

81a 

him from living without a care-giver, he is at greater 
risk for termination of tenancy than tenants who do not 
require in-home care. Finding that the balance of hard- 
ships weighed in Walker’s favor, the court enjoined 
OHA from evicting Walker on the basis of his care- 
giver’s drug-related criminal activities. OHA and 
Davis appeal this ruling. 

III 

Before turning to the merits, a word on the standard 
of review is in order. We review the district court’s 
grant of preliminary injunctive relief for an abuse of 
discretion. See Brookfield Communications, Inc. v. 
West Coast Entertainment Corp., 174 F.3d 1036, 1045- 
46 (9th Cir. 1999). Because a district court necessarily 
abuses its discretion if it bases its ruling on an errone- 
ous view of the law, however, we review the legal 
issues underlying a preliminary injunction de novo and 
may rule on the merits of the controversy if legal issues 
are dispositive. See, e.g., id. at 1046 (citing cases); Foti 

v. City of Menlo Park, 146 F.3d 629, 634-35 (9th Cir. 
1998); Does 1-5 v. Chandler, 83 F.3d 1150, 1152 (9th Cir. 
1996); see also Thornburgh v. American College of 
Obstetricians & Gynecologists, 476 U.S. 747, 757, 106 S. 
Ct. 2169, 90 L.Ed.2d 779 (1986), overruled in part on 
other grounds by Planned Parenthood v . Casey, 505 
U.S. 833, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992); Plan- 
ned Parenthood v. Camblos, 155 F.3d 352, 359-60 (4th 
Cir. 1998), cert. denied, 525 U.S. 1140, 119 S. Ct. 1031, 
143 L.Ed.2d 40 (1999). 

82a 

IV 

The first question before us is whether HUD in its 
applicable regulations has adopted a permissible 
interpretation of 42 U.S.C. § 1437d(l)(5), or, more 
precisely, whether HUD’s interpretation is “arbitrary, 
capricious, an abuse of discretion, or otherwise not 
in accordance with law.” 5 U.S.C. § 706(2)(A). The 
parties agree that we resolve this issue by applying the 
familiar framework set forth in Chevron U.S.A., Inc. v. 
Natural Resources Defense Council, Inc., 467 U.S. 
837, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984). Chevron 
instructs us to begin our analysis by determining 
whether “Congress has directly spoken to the precise 
question at issue.” Id. at 842-43, 104 S. Ct. 2778. “If the 
intent of Congress is clear, that is the end of the matter; 
for the court, as well as the agency, must give effect to 
the unambiguously expressed intent of Congress.” Id. 
If, and only if, the language is silent or ambiguous on 
the precise question at hand do we proceed to step two, 
which is to defer to the agency unless its interpretation 
is arbitrary or capricious. See id. at 842-43 & n.9, 104 S. 
Ct. 2778; see also Young v. Community Nutrition Inst., 
476 U.S. 974, 981, 106 S. Ct. 2360, 90 L.Ed.2d 959 (1986) 
(“This view of the agency charged with administering 
the statute is entitled to considerable deference; and to 
sustain it, we need not find that it is the only 
permissible construction that [the agency] might have 
adopted but only that [the agency’s] understanding of 
this very ‘complex statute’ is a sufficiently rational one 
to preclude a court from substituting its judgment for 
that of [the agency].” (internal quotation marks and 
citation omitted)); Jang v. Reno, 113 F.3d 1074, 1076 
(9th Cir. 1997). 

83a 

HUD argues that section 1437d(l)(5) and the broader 
statutory context evince a clear congressional intent 
authorizing the eviction of any tenant whose household 
member or guest engages in drug-related criminal 
activity on or near the public housing premises even if 
the tenant did not know of such activity. Tenants 
maintain that the unambiguously expressed intent of 
Congress is to the contrary. The district court dis- 
agreed with both and instead concluded that the public 
housing lease statute is silent with respect to the issue 
before us. 

In adjudicating among these conflicting views, we 
look to traditional tools of statutory construction for 
guidance. See Chevron, 467 U.S. at 843 n.9, 104 S. Ct. 
2778. More specifically, “[t]he plainness or ambiguity of 
statutory language is determined by reference to the 
language itself, the specific context in which that 
language is used, and the broader context of the statute 
as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 
340, 117 S. Ct. 843, 136 L.Ed.2d 808 (1997). 

A 

We begin, as we must, with the express language of 
the statute. “Where there is no ambiguity in the words, 
there is no room for construction.” United States v. 
Gonzales, 520 U.S. 1, 8, 117 S. Ct. 1032, 137 L.Ed.2d 
132 (1997) (quoting United States v. Wiltberger, 18 
U.S. (5 Wheat.) 76, 95-96, 5 L.Ed. 37 (1820)). Section 
1437d(l)(5), as amended, provides that “any drug- 
related criminal activity on or off such premises, 
engaged in by a public housing tenant, any member of 
the tenant’s household, or any guest or other person 
under the tenant’s control, shall be cause for termina- 
tion of tenancy.” 42 U.S.C. § 1437d(l)(5). The plain 
statutory language thus makes clear that Congress 

84a 

intended that there be cause for termination of tenancy 
when three conditions are met: there is (1) drug-re- 
lated criminal activity, (2) on or off the public housing 
premises, (3) engaged in by the tenant, any household 
member, or any guest or other person under the 
tenant’s control. 

That each of Tenants’ cases involved drug-related 
criminal activity as defined in section 1437d is not con- 
tested; similarly undisputed is the fact that the conduct 
in question occurred on or near the public housing 
premises. The only real dispute concerns the third 
prong—whether the activity was 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.” Id. 

Focusing on the statutory term “control,” Tenants 
argue that cause for termination exists only if the 
tenant could realistically exercise “control” over the 
drug-dealing or drug-using household member or guest. 
Where, for example, a teenage son rarely heeds his 
mother’s instructions and is generally uncontrollable, 
Tenants contend that OHA lacks authority to evict 
the entire household on the basis of the son’s 
conduct—even if he is selling drugs out of the 
apartment—because the mother does not have “con- 
trol” over her son. 

Applying basic principles of grammar, we conclude 
that this construction of the public housing lease statute 
is untenable. The clause at issue—”public housing 
tenant, any member of the tenant’s household, or 
any guest or other person under the tenant’s 
control”—includes three separate categories of people: 
(1) the tenant, (2) any household member, and (3) any 
guest or other person under the tenant’s control. The 

85a 

phrase “under the tenant’s control” has no relationship 
whatsoever to either of the first two categories—tenant 
or household member. 

With respect to the third category, implicit in the 
phrase “any guest or other person under the tenant’s 
control” is that guests are per se under the tenant’s 
control. “Control” is a legal concept; tenants have 
control over their guests. Just as a tenant cannot 
escape liability for damage to a neighbor’s apartment 
caused by a drunken guest by arguing that the guest 
was drunk and thus out of control, a tenant cannot 
avoid the import of section 1437d(l)(5) by arguing that, 
because his guests are stronger than he, he could not 
physically prevent them from selling drugs in his 
apartment. See, e.g., Housing Auth. v. Green, 657 So.2d 
552, 554 (La. Ct. App. 1995) (“[W]here . . . the lease 
refers to ‘a guest or other person under the tenant’s 
control’ it means that the tenant ‘controls’ who has 
access to the premises. The lease makes the tenant 
responsible for the drug activities of those persons 
given access to the apartment by the tenant. ‘Control’ 
as used in the lease in no way implies that the tenant 
knew or should have known of the drug activity. . . .”). 

Because the conduct for which OHA is attempting to 
evict Tenants unquestionably was committed by a 
household member or a guest, we conclude that the 
third, and final, prong of section 1437d(l)(5) is satisfied 
as well. Accordingly, the plain statutory language 
authorizes the termination of Tenants’ tenancy. More 
generally, the express statutory language—which, to 
repeat, provides that “[ (1) ] any drug-related criminal 
activity [ (2) ] on or off such premises, [ (3) ] engaged in 
by a public housing tenant, any member of the tenant’s 
household, or any guest or other person under the 

86a 

tenant’s control” is cause for eviction—evinces a clear 
congressional intent to authorize termination of tenancy 
regardless of whether the tenant was aware that his 
household member or guest was selling, manufacturing, 
distributing, or using drugs. Thus, the statute makes 
clear that even purportedly “innocent tenants” may be 
evicted.8 

B 

Notwithstanding the fact that the statute makes any 
drug-related criminal activity by a household member 
or guest cause for termination of tenancy, the district 
court concluded that section 1437d(l)(5) is silent as to 
whether Congress intended to authorize the eviction of 
“innocent tenants” because it fails to address explicitly 
the situation of “innocent tenants.” In the district 
court’s view, a statute contains a clearly expressed 
congressional intent on an issue only if it explicitly 
addresses that issue. The district court appears to have 
placed great emphasis on the fact that Congress could 
have provided, for example, that “any drug-related 
criminal activity by a household member or guest 

8 Only a handful of other courts have addressed this precise 
issue, and they have reached conflicting conclusions. Compare 
City of South San Francisco Hous. Auth. v. Guillory, 41 Cal. App. 
4th Supp. 13, 18-19 (Cal. App. Dep’t Super. Ct. 1995) (concluding 
that “drug-related activity by any member of a tenant’s household 
is cause per se for termination of the lease where . . . the housing 
authority receives federal funds”), with Charlotte Hous. Auth. v. 
Patterson, 120 N.C. App. 552, 464 S.E.2d 68, 72 (1995) (“With no 
mention of personal fault, the statute and lease at issue in this case 
provide that criminal activity by a member of a tenant’s household 
is cause for ending a tenancy. However, as noted above, the legis- 
lative history reveals a clearly expressed legislative intent that 
eviction is appropriate only if the tenant is personally at fault for a 
breach of the lease. . . .”). 

87a 

including that of which the tenant is unaware “ or “any 
drug-related criminal activity by a household member 
or guest regardless of the tenant’s knowledge thereof ” is 
cause for eviction. 

The district court’s failure to appreciate the impli- 
cations of Congress’s use of the term “any” when it 
made “any drug-related criminal activity [by a tenant, 
household member, or guest] . . . cause for 
termination” does violence to the plain language rule. 
42 U.S.C. § 1437d(l)(5) (emphasis added). A statute 
covering “any drug-related criminal activity” has the 
exact scope as one covering “any drug-related criminal 
activity including that of which the tenant is unaware” 
or “any drug-related criminal activity regardless of 
the tenant’s knowledge thereof.” These italicized hypo- 
thetical clauses are mere surplusage—they add nothing 
of substance. Just as section 1437d(l)(5) covers drug- 
related criminal activity on weekends even though the 
statute does not explicitly refer to “any drug-related 
criminal activity including that which occurs on 
weekends,” the statute covers conduct that the tenant 
does not know of even though it does not explicitly 
refer to “any drug-related criminal activity including 
that of which the tenant is unaware.” The hypothetical 
“including” clauses merely enumerate subsets of cases 
already covered by the statute as actually written. 

We have no reason to think that Congress meant 
anything other than “any” when it used the term “any.” 
“Read naturally, the word ‘any’ has an expansive mean- 
ing, that is, ‘one of some indiscriminately of whatever 
kind.’ ” United States v. Gonzales, 520 U.S. 1, 4, 117 
S. Ct. 1032, 137 L.Ed.2d 132 (1997) (quoting Webster’s 
Third New International Dictionary 97 (1976)). We 
suppose that Congress could have included an 

88a 

additional sentence stating “Yes, we really do mean 
‘any.’ ” Even without such a statement, binding pre- 
cedent instructs that, just as “no” means “no,” “any” 
really does mean “any.”9 

Tenants marshal policy arguments why we should 
restrict the scope of “any.” Even if were we to agree, 
we cannot avoid the fact that Tenants’ interpretation 
contradicts the express statutory language. We can 
limit section 1437d(l) (5)’s scope as Tenants request only 
by reading into the statute words that Congress did not 
see fit to include. This we refuse to do. Indeed, we may 
not so alter the statute’s effect. As judges, we are 
interpreters, not authors, of the law. 

C 

Notwithstanding the expansiveness of the statutory 
language, Tenants strenuously attack the propriety of 
evicting “innocent tenants” and claim that a monu- 
mental injustice will result from the wholesale eviction 
of any and all tenants who have a household member or 
guest who uses drugs. What Tenants either fail to 
recognize—or attempt to obscure—is that the question 

9 The dissent argues that a broad reading of the term “any 
drug-related criminal activity” is untenable because it leads to 
“absurd result [s].” Dissenting Op. at 651. This argument might 
be more persuasive if not for the fact that other language within 
section 1437d(l)(5) places limits upon the otherwise expansive 

scope of “any drug-related criminal activity.” 

Although the dissent is correct to point out that the statute 
does not explicitly state what illegal drug-related activity con- 
stitutes cause for eviction, the relevance of such observation to this 
case is unclear. Any metaphysical ambiguity in the statutory 
language has no bearing on the task at hand: determining whether 
HUD’s regulations constitute a permissible interpretation of 
section 1437d(l)(5). 

89a 

of whether there is cause to evict is wholly separate 
from whether the PHA will actually evict. Section 
1437d(l)(5) merely requires that local PHAs make drug- 
related criminal activity “cause for termination of 
tenancy.” 42 U.S.C. § 1437d(l)(5). Where there is cause 
for termination, a PHA may evict, but it is not required 
to evict in all instances in which there is cause to do so. 

The public housing lease statute, although it author- 
izes eviction in a broad range of cases, is notably silent 
as to when termination of tenancy is required. By 
structuring the statute in this way, Congress implicitly 
conveyed discretion to HUD and to PHAs to make 
termination decisions in individual cases. This dis- 
cretion is consistent with the Housing Act’s long- 
established statement that “[i]t is the policy of the 
United States . . . to vest in public housing agencies 
that perform well, the maximum amount of responsi- 
bility and flexibility in program administration, with 
appropriate accountability to public housing residents, 
localities, and the general public.” Id. § 1437(a)(1)(C); 
see also Newbury Local Sch. Dist. Bd. of Educ. v . 
Geauga County Metro. Hous. Auth., 732 F.2d 505, 509 
(6th Cir. 1984) (noting that the Housing Act is “struc- 
tured to place the ‘maximum amount of responsibility’ 
of administration on the local public housing agencies”); 
Gholston v. Housing Auth., 818 F.2d 776, 781 (11th Cir. 
1987) ( “[T]he Housing Act gives local housing authori- 
ties discretion to . . . manage the day-to-day affairs of 
the subsidized housing projects.”). 

10 

10 Congress recently reaffirmed its desire to leave discretion 
in the hands of PHAs when it enacted 42 U.S.C. § 13662. Like 
section 1437d(l)(5), section 13662 requires PHAs to include a lease 
provision that allows the PHA to terminate the tenancy of any 
household with a member whose drug use threatens the health or 

90a 

Leaving individual eviction decisions to HUD and 
local PHAs makes much sense. Eviction is a drastic 
remedy, and individualized consideration of the equities 
in a particular tenant’s case is appropriate. Difficult 
cases will inevitably arise. It would be exceedingly 
difficult to enumerate a priori which tenants should 
be evicted, and Congress did not attempt to do so. 
With respect to “innocent tenants,” for example, some 
tenants are more “innocent” than others. Should a 
tenant whose son deals drugs at the public housing 
development unbeknownst to the tenant be evicted? 
What about a tenant whose grandson uses drugs in the 
parking lot unbeknownst to her? 

These are difficult policy questions. We see argu- 
ments on both sides, but how we judges might weigh 
competing policy considerations is simply irrelevant. 
Congress entrusted these questions to HUD and to 
individual PHAs, not to the federal judiciary. Congress 
charged HUD, the agency generally responsible for 
regulating and overseeing public housing, with formu- 
lating general principles to guide eviction determina- 
tions; it assigned local PHAs the responsibility for 
deciding how to proceed in individual cases. 

HUD has provided some general guidance for dealing 
with individual cases, but largely leaves eviction de- 
cisions to PHAs. Of particular relevance to the case at 
hand is 24 C.F.R. § 966.4(l)(5)(i): 

safety of others, but explicitly makes clear that a PHA may con- 
sider other factors in deciding whether actually to evict on this 
basis. See 42 U.S.C. § 13662. 

91a 

(5) Eviction for criminal activity-(i) PHA discre- 
tion to consider circumstances. 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 con- 
dition that family members who engaged in the 
proscribed activity will not reside in the unit. A 
PHA may require a family member who has en- 
gaged in the illegal use of drugs to present evidence 
of successful completion of a treatment program as a 
condition to being allowed to reside in the unit. 

24 C.F.R. § 966.4(l)(5)(i). Quite sensibly, HUD does not 
advocate the eviction of all “innocent tenants,” but 
instead counsels PHAs to handle cases on an individu- 
alized basis and to consider alternative remedies. This 
policy is further embodied in a HUD publication en- 
titled “One Strike and You’re Out”: Policy in Public 
Housing: 

The lease language mandated by federal law im- 
poses on tenants an affirmative obligation to assure 
that neither they nor any member of their household 
or guest or other person under their control will 
engage in prohibited drug-related or other criminal 
activities. PHAs can generally enforce this obli- 
gation by terminating leases and evicting entire 
households when a household member or guest 
commits a crime in violation of lease provisions. A 
promise is a promise. Where the tenant has pro- 

92a 

mised in a lease to ensure a crime-free household, 
the tenant is responsible for the household, regard- 
less of whether he or she was personally engaged in 
the prohibited drug or other criminal activity. 

PHAs retain the flexibility to handle these cases on an 
individualized basis, and they should exercise reason- 
able discretion in light of all of the relevant circum- 
stances. In particular, when a tenant has taken all rea- 
sonable steps to prevent the criminal activity, eviction 
may not always be warranted or proper. To ensure 
both humane results and success in court, PHAs should 
undertake a case-by-case analysis before proceeding 
with eviction. If they do seek eviction, PHAs should be 
prepared to persuade a court that eviction is justified. 
In some instances, eviction of an entire household may 
not be appropriate as a means of protecting the health, 
safety and welfare of the public housing community. In 
others, alternative approaches may be appropriate, 
such as allowing a household to remain in occupancy on 
the condition that the offending member move and 
agree not to return. This latter approach does not 
always lead to effective long-term removal of the 
offending individual. PHAs, therefore, should consider 
the likelihood of success in each particular case and 
their ability under local law to take action if an agree- 
ment is violated. In some cases, trespass laws and re- 
straining orders may also help to keep former residents 
away from remaining household members. Office of 
Policy Dev. & Research, U.S. Dep’t of Hous. & Urb. 
Dev., supra, at 8. 

11 

11 Under section 1437d(l)(5) and the applicable HUD regula- 
tions, eviction of a household is not the only possible response to 
cases involving drug-related criminal activity; PHAs have the 
discretion to utilize a wide range of alternative remedies in such 

93a 

Leaving PHAs with discretion is sensible in light of 
the fact that local PHAs, being most closely associated 
with the tenants themselves and having the most 
knowledge about the local situation, are best situated to 
give individualized consideration to each case. See 
42 U.S.C. § 1437(a)(1)(C); see also Gholston, 818 F.2d at 
781 (“The administration of local housing authorities is 
a difficult task. . . . Consequently, the scope of judicial 

review of a local housing authority’s policies and prac- 
tices is limited, and we will not view its actions as a 
violation of the Housing Act or HUD regulations unless 
it abused its discretion.” (citations omitted)). 

D 

Our conclusion that section 1437d(l)(5) authorizes 
termination of tenancy regardless of the tenant’s 
knowledge of the drug-related criminal activity is rein- 
forced by two related statutory provisions. 

1 

First, 42 U.S.C. § 1437d(c)(4)(A)(iii), which was in 
effect through 1996, prohibited any individual or family 
who was evicted because of a household member’s or 
guest’s drug-related criminal activity from receiving a 
statutory preference in applying for public housing, but 
exempted from this three-year prohibition period any 
member of a family of an individual who “the agency 
determines clearly did not participate in and had no 
knowledge of” the activity that formed the basis of the 

cases. In challenging HUD’s interpretation of the statute, the dis- 
sent places significant emphasis upon the existence of such re- 
medies. See Dissenting Op. at 652. That alternative remedies are 
available does not mean, of course, that they are the only options 
open to PHAs under the statute. 

94a 

12 If an 
“innocent tenant” could not have been evicted in the 
first place, there would have been no need for Congress 
to write a statute specifically waiving the three-year 
prohibition period for them. Adhering to the well- 
established “principle that statutes should not be 
construed to make surplusage of any provision,” North- 
west Forest Resource Council v. Glickman, 82 F.3d 
825, 834 (9th Cir. 1996), we must interpret section 
1437d(l)(5) as authorizing the eviction of “innocent 
tenants.” This is especially so in light of the fact that 
Congress enacted the three-year prohibition period of 

12 The statute reads in relevant part: 

(4) [T]he public housing agency shall comply with such 

procedures and requirements as the Secretary may prescribe 
to assure that sound management practices will be followed in 
the operation of the project, including requirements pertain- 
ing to— 

(A) . . . the establishment of tenant selection criteria 
which— 

(iii) prohibit any individual or family evicted from hous- 
ing assisted under the chapter by reason of drug-related 
criminal activity from having a preference under any provi- 
sion of this subparagraph for 3 years unless the evicted tenant 
successfully completes a rehabilitation program approved by 
the agency, except that the agency may waive the application 
of this clause under standards established by the Secretary 
(which shall include waiver for any member of a family of an 
individual prohibited from tenancy under this clause who the 
agency determines clearly did not participate in and had no 
knowledge of such criminal activity or when circumstances 
leading to eviction no longer exist ). 

Id. (1996) (emphases 

added). Congress significantly revised this statute in 1996 and 
again in 1998. See id. (1999); id. (1997). 

original eviction. 42 U.S.C. § 1437d(c)(4)(A)(iii). 

95a 

section 1437d(c)(4)(A)(iii) in 1990, the same year it made 
amendments to section 1437d(l)(5). 

13 

2 

The second statute that lends credence to our inter- 
pretation of the public housing lease statute is a civil 
forfeiture statute which, inter alia, makes leasehold 
interests subject to forfeiture when used to com- 
mit drug-related criminal activities. See 21 U.S.C. 
§ 881(a)(7). 

14 In sharp contrast to section 1437d(l)(5), 

13 With respect, the dissent’s reading of section 1437d(c)(4) 
(A)(iii) does not make sense. The dissent essentially argues that 
the statutory waiver applies to applicants for public housing re- 
gardless of whether such applicants had ever been evicted 
from such housing. What the dissent overlooks is that only an 
“individual or family evicted from [public] housing by reason 
of drug-related criminal activity” would ever need a waiver, 
because only such evicted former tenants would be subject to the 
three-year prohibition period in the first place. 42 U.S.C. 
§ 1437d(c)(4)(A)(iii) (emphasis added). Thus the waiver would be 
utterly irrelevant to someone who had never lived in nor been 
evicted from public housing. As a matter of simple logic, one must 
be a tenant of public housing before one can be evicted from public 
housing for drug-related activity. In other words, the scope of the 
waiver of the prohibition period cannot be any broader than the 
scope of the prohibition itself. 

14 Section 881(a)(7) provides: 

The following shall be subject to forfeiture to the United States 

and no property right shall exist in them: 

(7) All real property, including any right, title, and in- 
terest (including any leasehold interest) in the whole of any lot 
or tract of land and any appurtenances or improvements, 
which is used, or intended to be used, in any manner or part, 
to commit, or to facilitate the commission of, a violation of this 
subchapter punishable by more than one year’s imprisonment, 
except that no property shall be forfeited under this para- 
graph, to the extent of an interest of an owner, by reason of 

96a 

this civil forfeiture statute includes an explicit excep- 
tion for “innocent tenants”: “no property shall be 
forfeited under this paragraph, to the extent of an 
interest of an owner, by reason of any act or omission 
established by that owner to have been committed or 
omitted without the knowledge or consent of the owner.” 
Id. (emphasis added). This civil forfeiture provision 
makes abundantly clear that Congress knows how to 
legislate an “innocent tenants” exception. The absence 
of similar language in section 1437d(l)(5) indicates that 
Congress did not intend to create such an exception 
with respect to public housing evictions. 

15 

Tenants interpret section 881(a)(7) quite differently. 
They argue, for the first time in supplemental briefing 
filed after oral argument, that Congress understood the 
“innocent tenant” exception of section 881(a)(7) to be a 
constitutionally mandated requirement such that it 
must have wanted to incorporate the same exception 
into the public housing lease statute. We find this 
reasoning unpersuasive. That there may be a consti- 
tutional bar to forfeiture of property when the property 
owner is uninvolved and unaware of the wrongful 

any act or omission established by that owner to have been 
committed or omitted without the knowledge or consent of 
that owner. Id. 

15 The dissent argues that “Congress must have meant 
[section 1437d(l)(5) and amended section 881(a)(7) ]—passed as 
part of the same chapter of the same Act—to be interpreted con- 
sistently.” Dissenting Op. at 654. But the dissent’s recommended 
course of action—giving these two provisions the same meaning, 
despite their clearly different language—is surely no recipe for 
consistent interpretation. Cf. Dissenting Op. at 657 (“The fact that 
Congress chose to use different language in similar situations 
tends to show it intended a different meaning.”). 

97a 

activity that formed the cause for forfeiture, see Calero- 
Toledo v. Pearson Yacht Leasing Co., 416 U.S. 663, 94 
S. Ct. 2080, 40 L.Ed.2d 452 (1974), does not mean that 
there is a similar bar in the distinct context of eviction 
proceedings. 

The statute governing civil forfeitures differs in 
many respects from the public housing lease statute. 
First, forfeiture under section 881(a)(7) involves the 
transfer of private property to the federal govern- 
ment, 

16 which raises concerns of misdirected incentives. 
See Bennis v. Michigan, 516 U.S. 442, 456, 116 S. Ct. 
994, 134 L.Ed.2d 68 (1996) (Thomas, J., concurring) 
(noting that if abused, “forfeiture could become more 
like a roulette wheel employed to raise revenue from 
innocent but hapless owners”); United States v. James 
Daniel Good Real Property, 510 U.S. 43, 81-82, 114 
S. Ct. 492, 126 L.Ed.2d 490 (1993) (Thomas, J., concur- 
ring in part and dissenting in part); Michele M. Jochner, 
Illinois Bar Journal, 87 Ill. B.J. 78, 79 (1999) (“[T]he 
relative ease with which the government can seize and 
forfeit property, when measured against the dispro- 
portionately punitive nature of some forfeitures, has 
caused concern that the considerable revenue added by 
the forfeited assets to the government’s coffers may 
spur overzealous prosecution.” (footnote omitted)). The 
concerns raised by allowing the federal government to 
fill its coffers through seizures of property for minor 
offenses, see United States v. Bajakajian, 524 U.S. 321, 
118 S. Ct. 2028, 2032, 141 L.Ed.2d 314 (1998) (govern- 
ment seized $357,144 in cash that Bajakajian attempted 

16 Forfeiture proceedings involve suits by the federal 
government against the property. See, e.g., United States v . 1 
Parcel of Real Property, Lot 4, Block 5 of Eaton Acres, 904 F.2d 
487, 490 (9th Cir. 1990). 

98a 

to leave the country with without complying with 
federal reporting requirements); Calero-Toledo, 416 
U.S. at 668 n.4, 693, 94 S. Ct. 2080 ($20,000 yacht for- 
feited based upon the discovery of one marijuana 
cigarette), simply do not arise under section 1437d(l)(5), 
since PHAs do not reap a financial windfall when they 
evict tenants. 

Second, to seize property under the forfeiture pro- 
vision, the federal government need only show probable 
cause that the property was used for prohibited pur- 
poses, with the burden then shifting to the leaseholder 
to establish, by a preponderance of the evidence, lack of 
knowledge or consent. See United States v. 1 Parcel of 
Real Property, Lot 4, Block 5 of Eaton Acres, 904 F.2d 
487, 490 (9th Cir. 1990). Probable cause is, of course, a 
lower standard of proof than the preponderance of 
evidence test typically required in civil proceedings. 
See United States v. All Right, Title & Interest in Real 
Property & Bldg. Known as 303 West 116th Street, New 
York, New York, 901 F.2d 288, 291 (2d Cir. 1990); 
United States v . One 56-Foot Motor Yacht Named 
Tahuna, 702 F.2d 1276, 1281 (9th Cir. 1983). Third, 
summary seizure procedures are available to the fed- 
eral government in forfeiture cases. See 21 U.S.C. 
§ 881(b). The ability to seize a leaseholder’s property 
using such procedures—without proof that it is more 
likely than not that the resident engaged in, or per- 
mitted, drug-related criminal activity—is an awesome 
power, which both Congress and the Supreme Court 
have seen fit to rein in. See id. § 881(a)(7) (incorporat- 
ing “innocent tenant” exception and allowing seizure of 
property only where the drug offense is punishable by 
more than one year imprisonment); Bajakajian, 118 

99a 

S. Ct. at 2031 (holding that forfeitures may violate the 
Eighth Amendment Excessive Fines Clause). 

17 

Congress sensibly limited forfeiture to the more 
reprehensible violations of our drug laws—specifically, 
drug offenses punishable by more than one year and 
committed with the knowledge or consent of the lease- 
holder. See 21 U.S.C. § 881(a)(7). Congress did not see 
the need to limit eviction by PHAs in a similar fashion. 
Thus, the “innocent tenants” exception contained in 
section 881(a)(7) applies only to that section, and not to 
section 1437d(l)(5). 

18 

E 

Tenants rely heavily on another related statutory 
provision, 42 U.S.C. § 1437d(l)(1), which prohibits 
PHAs from including “unreasonable terms and condi- 
tions” in their leases. 42 U.S.C. § 1437d(l)(1). 

19 Tenants 
argue that there is no sensible reason for evicting a 
tenant who does not know of a household member’s or 

17 Although eviction under California law has been denomi- 
nated a “summary proceeding,” Dissenting Op. at 634 n.4, a 
landlord seeking to evict a tenant still has to prove the existence of 
a ground for eviction by a preponderance of the evidence. See 
Western Land Office, Inc. v. Cervantes, 175 Cal. App. 3d 724, 220 
Cal. Rptr. 784, 797-98 & 797 n. 10 (1985). 

18 At times the dissent appears to argue that the anti-for- 
feiture provision of section 881(a)(7), in addition to reflecting 
certain general constitutional concerns, applies directly to the 
termination of tenancies as authorized under section 1437d(l)(5). 
See Dissenting Op. at 654-55. If this is in fact the dissent’s argu- 
ment, it is untenable, because the anti-forfeiture provision by its 
terms governs only forfeitures made “under this paragraph,” i.e., 
forfeitures to the federal government pursuant to section 881(a)(7). 

19 In 1998, this provision was recodified as section 1437d(l)(2). 
As do the parties, we will continue to refer to this subsection as 
(l)(1). 

100a 

guest’s drug-related criminal activity and thus that any 
lease provision authorizing the eviction of an “innocent 
tenant” violates section 1437d(l)(1)’s reasonableness 
requirement. We cannot agree. 

As an initial matter, Tenants’ argument contravenes 
the canon of statutory interpretation that a general 
statutory provision typically cannot be used to trump a 
specific provision. See Green v. Bock Laundry Mach. 
Co., 490 U.S. 504, 524-26, 109 S. Ct. 1981, 104 L.Ed.2d 
557 (1989); Crawford Fitting Co. v. J.T. Gibbons, Inc., 
482 U.S. 437, 444-45, 107 S. Ct. 2494, 96 L.Ed.2d 385 
(1987). “Where there is no clear intention otherwise, a 
specific statute will not be controlled or nullified by a 
general one, regardless of the priority of enactment.” 
Radzanower v. Touche Ross & Co., 426 U.S. 148, 153, 96 
S. Ct. 1989, 48 L.Ed.2d 540 (1976) (quoting Morton v. 
Mancari, 417 U.S. 535, 550-51, 94 S. Ct. 2474, 41 
L.Ed.2d 290 (1974)). 

Moreover, crime in public housing—much of which 
finds its roots in drugs 

20—is a severe problem. 
Authorizing the eviction of households with drug- 
dealing and drug-using members is a reasonable step 
towards achieving Congress’s self-declared “duty to 
provide public housing that is decent, safe, and free 
from illegal drugs.” Id. § 11901. By making a household 
member’s or guest’s drug-related criminal activity 
grounds for the tenant’s eviction, Congress created a 

20 That Congress viewed drug-related criminal activity as 
especially pernicious is evidenced by the fact that, with respect to 
non-drug-related criminal activity, only that which “threatens the 
health, safety, or right to peaceful enjoyment of the premises by 
other tenants” is cause for termination of tenancy, whereas this 
limiting provision does not apply to drug-related criminal activity, 
which is per se cause for eviction. See 42 U.S.C. § 1437d(l)(5). 

101a 

strong incentive for public housing tenants to refrain 
from inviting drug dealers and drug users to their 
premises and to ensure that household members and 
guests do not sell, manufacture, distribute, use, or 
possess controlled substances. See 56 Fed. Reg. 51560, 
51566-67. Congress was reasonably concerned with 
preventing tenants from turning a blind eye to the con- 
duct of a household member or guest. 

Requiring PHAs to prove that a tenant knew or 
reasonably should have known of a household member’s 
or guests’s drug-related criminal activities in order to 
evict would hamstring their efforts to rid public housing 
of the crime and violence with which low-income fami- 
lies must cope on a daily basis. See id. Congress could 
reasonably have decided not to create an “innocent 
tenant” exception to avoid transforming efficient un- 
lawful detainer actions into fact-based and potentially 
costly and lengthy legal cases. At present, a PHA can 
evict a tenant simply by showing that the tenant, a 
member of his household, or his guest used, sold, distri- 
buted, manufactured, or possessed a controlled sub- 
stance on or near the public housing premises. Such 
proof is relatively easy to obtain, since a PHA can offer 
arrest or conviction records to prove the drug-related 
criminal activity, leaving little room for factual dis- 
putes. Significant delays would ensue if PHAs were 
required to expend time and effort litigating what the 
tenant actually knew or what he should have known. 
These are inherently factual issues which will often boil 
down to credibility determinations, the resolution of 
which will almost always require an actual trial. 

21 

21 This would be so even if the knowledge factor were incor- 
porated as an affirmative defense with the burden of proof on the 
tenant to show his “innocence.” 

102a 

PHAs might well agree that, the faster a drug-dealing 
or drug-using household is evicted, the better. More- 
over, it may often be difficult to secure admissible proof 
of what the tenant knew or should have known. Even if 
everyone in the apartment building knows who the 
drug dealers and drug users are, few, if any, may be 
willing to testify in court—or even to go on the 
record—against a tenant with gun-toting, drug-dealing 
household members or friends. Witness intimidation is 
a very real problem. See 18 U.S.C. § 1512. 

The decision not to include an “innocent tenant” 
exception also reasonably helps to keep down litigation 
costs. It is all too easy to belittle this problem, but we 
must remember that PHAs already lack adequate 
funding. OHA, for example, stated before the district 
court that it does not even have enough funds to 
maintain a full-time security staff at each of its housing 
developments. Forcing OHA and other PHAs to utilize 
more of their already scarce funds in litigation will 
deprive them of money needed to fund other important 
activities such as security. To avoid this result is 
eminently reasonable. See Phillips Neighborhood Hous. 
Trust v. Brown, 564 N.W.2d 573, 575 (Minn. Ct. App. 
1997) (“[T]here is a strong public policy interest in 
eliminating drugs from subsidized housing. Evicting 
those who violate the lease by having controlled sub- 
stances in their apartments is [the landlord’s] most 
effective, if not its only effective, means of eliminating 
drugs and providing a safe environment.”). 

103a 

The reasonableness of making drug use by household 
members and guests a ground for eviction from public 
housing is supported by the fact that leases for 
privately-owned housing often hold tenants liable for 
the activities of their household members and guests. 
The “contractual responsibility of the tenant for acts 
of unit occupants is a conventional incident of tenant 
responsibility under normal landlord-tenant law and 
practice, and is a valuable tool for management of the 
housing.” 56 Fed. Reg. 51560, 51566 (Oct. 11, 1991). 
Thus, a private tenant can often be evicted if his 
children or other household members cause significant 
damage to property, harass neighbors, or engage in 
illegal activities. The fact that private landlords include 
these provisions in their leases even though they are 
not obligated by law to do so shows that it is sensible to 
make a third party’s drug activities cause for termina- 
tion of tenancy. 

22 

We note that “no fault” liability is routinely imposed 
in related contexts. For example, many states hold 
parents vicariously liable for the intentional torts of 
their children regardless of whether the parents knew, 
or should have known, that their children would cause 
bodily injury or property damage. See, e.g., Conn. Gen. 
Stat. § 52-572; Kan. Stat. Ann. § 38-120; Or. Rev. Stat. 
§ 30.765(1). The rationale underlying making “innocent 

22 A Minnesota statute provides that: “In every lease or 
license of residential premises, whether in writing or parol, the 
lessor or licensor and the lessee or licensee covenant that . . . 
neither will . . . unlawfully allow controlled substances in those 
premises or in the common area and curtilage of the premises.” 
Minn. Stat. § 504.181, subd. 1. In Minnesota, a tenant is liable for 
activities that breach the lease even if the tenant did not partici- 
pate in or control the conduct. See Phillips Neighborhood Hous. 
Trust, 564 N.W.2d at 575. 

104a 

parents” liable for their children’s actions—to en- 
courage parents to oversee the behavior of their 
children—is essentially the same as that underlying 
Congress’s decision to impose a “no-fault” eviction 
policy—to encourage tenants to monitor the conduct 
of their household members and guests. Just as states 
reasonably impose liability even on “innocent parents,” 
Congress reasonably may authorize the eviction of 
“innocent tenants.” Such “no fault” liability is not 
limited to parent-child cases. In the environmental con- 
text, a property owner can be held liable for the costs of 
cleaning up waste on his property even if the waste was 
legally deposited by a previous property owner. See 
42 U.S.C. § 9607. Thus, even an “innocent property 
owner” can be subjected to substantial liability under 
the Superfund laws. 

Any conclusion to the contrary is squarely foreclosed 
by the recent enactment of 42 U.S.C. § 13662(a)(1), 
which provides: 

Notwithstanding any other provision of law, a 
public housing agency or an owner of federally 
assisted housing (as applicable), shall establish stan- 
dards or lease provisions for continued assistance or 
occupancy in federally assisted housing that allow 
the agency . . . to terminate the tenancy or assis- 
tance for any household with a member—(1) who 
the public housing agency or owner determines is 
illegally using a controlled substance . . . . 

42 U.S.C. § 13662(a) (emphases added). Congress, in 
passing this statute expressly allowing the eviction of 
any household with a drug-using member, declared its 
view that it is reasonable to evict a tenant on the basis 
of another’s crimes. Unless we are so bold as to say 
that a policy decision reflected in legislation enacted 

105a 

with the votes of 409 Representatives and 96 Senators 
is not rationally related to a legitimate housing purpose, 
we must conclude that HUD’s interpretation of section 
1437d(l)(5) is indeed reasonable. 

23 Keeping in mind that 
PHAs have discretion in deciding whether to evict in 
individual cases, we hold that it is not unreasonable for 
Congress to obligate all public housing tenants to en- 
sure that their household members and guests refrain 
from engaging in drug-related criminal activities or 
other activities that threaten the health or safety of 
other public housing tenants. 

24 

F 

Although both parties present arguments based upon 
the legislative history, we conclude that there is no 
need to examine it in the present case. Where, as here, 
the language of the statute is plain and unambiguous, 
resort to legislative history is unnecessary. See United 
States v. Gonzales, 520 U.S. 1, 6, 117 S. Ct. 1032, 137 
L.Ed.2d 132 (1997); City of Auburn v. United States, 
154 F.3d 1025, 1030 (9th Cir. 1998) ( “[W]here statutory 
command is straightforward, ‘there is no reason to 
resort to legislative history.’ ” (citation omitted)), cert. 

23 We realize, as does the dissent, that section 13662 was not in 
existence when this lawsuit was commenced. Nevertheless, the 
policy decisions reflected in that provision shed light upon the rea- 
sonableness of HUD’s interpretation of section 1437d(l)(5). 

24 The scattered case law on point generally supports our 
conclusion. See Green, 657 So.2d at 555; cf. Coleman v . City of 
Yonkers Mun. Hous. Auth., 254 A.D.2d 482, 679 N.Y.S.2d 624, 624- 
25 (N.Y. App. Div. 1998) (affirming eviction of tenant on the basis 
of son’s actions); City of South San Francisco Hous. Auth., 41 
Cal.App. 4th Supp. at 16-20. But see Richmond Tenants Org. v. 
Richmond Redevelopment & Hous. Auth., 751 F. Supp. 1204, 1206 
(E.D. Va. 1990) (concluding that it is unreasonable to evict a tenant 
for any conduct that occurs off-premises). 

106a 

denied, 527 U.S. 1022, 119 S. Ct. 2367, 144 L.Ed.2d 771 
(U.S. 1999). We have warned that: “Reliance on such 
history is particularly suspect when it is inconsistent 
with the ordinary understanding of the words in the 
statute and an otherwise reasonable agency inter- 
pretation.” Leisnoi, Inc. v. Stratman, 154 F.3d 1062, 
1070 (9th Cir. 1998); see also id. (“[T]he use of legis- 
lative history as a tool for statutory interpretation 
suffers from a host of infirmities: not only is legislative 
history ‘not passed by both houses of Congress and 
signed into law by the President,’ but it also ‘need not 
be written with the same care, or scrutinized by those 
skeptical of the statute with the same care, as statutory 
language.’ ” (citations omitted)). 

In any event, even if we were to resort to it here, the 
relevant legislative history is ambiguous. Both HUD 
and Tenants focus on the following statement by the 
Senate Banking, Housing and Urban Affairs Com- 
mittee (“Committee”): 

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 
or had taken reasonable steps under the 
circumstances to prevent the activity. 

S. Rep. No. 101-316, at 179 (1990), reprinted in 1990 
U.S.C.C.A.N. 5763, 5941. Tenants contend that the 
Committee’s statement that “eviction would not be the 
appropriate course” indicates that section 1437d(l)(5) 
does not authorize the eviction of tenants with no 
knowledge of the drug-related criminal activities. 
HUD, focusing on a different part of the same passage, 

107a 

emphasizes that the Committee explicitly entrusted 
individual eviction decisions to the “wise exercise of 
humane judgment” of the local PHA, reasoning that, 
had Congress not intended to give PHAs discretion to 
evict tenants with no knowledge of the drug-related 
criminal activity, it would not have talked about the 
exercise of “humane judgment” by PHAs since there 
would be no “judgment” to exercise. Whether the legis- 
lative history bolsters HUD’s position or Tenants’ is 
unclear. There are strong arguments on both sides. To 
the extent that legislative history is ever helpful, it is 
not of value in the present case. 

V 

Having concluded 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, house- 
hold member, or guest cause for termination regardless 
of whether the tenant knew of such activity, we must 
decide whether this statute is consistent with the 
United States Constitution. Tenants maintain that the 
public housing lease provision violates their Fourteenth 
Amendment right to intimate association as well as 
the Eighth Amendment prohibition against excessive 
fines. Before turning to these challenges, we consider 
whether section 1437d(l)(5) violates the First Amend- 
ment, since it was under this provision that the district 
court concluded that the statute, as we have concluded 
it must be interpreted, would be unconstitutional. 

108a 

A 

According to the district court, the only rational 
objective served by authorizing the eviction of “inno- 
cent tenants” is to discourage household members and 
guests from using drugs because they know their 
conduct can lead to the tenant’s eviction. In the district 
court’s view, this objective violates the First Amend- 
ment guarantee of freedom of association. This con- 
clusion, however, is foreclosed by the Supreme Court’s 
decision in Lyng v. International Union, UAW, 485 
U.S. 360, 108 S. Ct. 1184, 99 L.Ed.2d 380 (1988). 

Lyng involved a freedom of association challenge to a 
statute providing that no household would become 
eligible to receive food stamps if any household member 
were on strike. Although the statute could be seen as 
an attempt to discourage workers from striking be- 
cause of the resulting costs that would be imposed upon 
the entire household, the Supreme Court rejected this 
argument on the basis that the statute did not “order” 
individuals not to associate with one another, nor did it 
“directly and substantially interfere with family living 
assignments.” Id. at 364-65, 108 S. Ct. 1184 (quoting 
Lyng v. Castillo, 477 U.S. 635, 638, 106 S. Ct. 2727, 91 
L.Ed.2d 527 (1986)). Similarly here, section 1437d(l)(5) 
does not order individuals not to associate with one 
another, nor does it directly and substantially interfere 
with family living arrangements. Just as it does not 
violate the Constitution to deny an entire household 
food stamps on the basis of one member’s decision to 
participate in a strike, it is not unconstitutional to evict 
an entire household on account of one member’s drug 
use. 

Our conclusion comports with that of the Fifth 
Circuit, which has held that evicting a tenant on the 

109a 

basis of his son’s drug-related criminal activity does not 
interfere with constitutionally protected associational 
rights. See Chavez v. Housing Auth. of El Paso, 973 
F.2d 1245, 1247-48 (5th Cir. 1992). Similar constitutional 
challenges have been rejected by other courts as well. 
See, e.g., City of South San Francisco Hous. Auth., 41 
Cal. App. 4th Supp. at 19-20 (rejecting a tenant’s sub- 
stantive due process challenge to eviction based on 
drugs found in his son’s room where there was no 
evidence that the tenant knew or had reason to know of 
his son’s illegal conduct). Tenants, quite simply, are not 
being evicted because of their association with drug 
users. Instead, OHA is terminating their tenancy be- 
cause of their failure to comply with a lease provision 
by which they agreed to abide. 

B 

We turn then to the right to intimate association un- 
der the Fourteenth Amendment. Tenants contend that 
any statute that imposes an “undue burden” upon a 
constitutionally protected privacy right is subject to 
strict scrutiny, see Planned Parenthood v. Casey, 505 
U.S. 833, 874, 112 S. Ct. 2791, 120 L.Ed.2d 674 (1992), 
and that section 1437d(l)(5) unjustifiably burdens Ten- 
ants’ right to intimate association under the Fourteenth 
Amendment. 

Although “the Constitution protects against unjusti- 
fied government interference with an individual’s 
choice to enter into and maintain certain intimate or 
private relationships,” Board of Directors of Rotary 
Int’l v. Rotary Club, 481 U.S. 537, 544, 107 S. Ct. 1940, 
95 L.Ed.2d 474 (1987), OHA’s no-fault eviction policy 
serves the reasonable objective of deterring drug- 
related criminal activity. Casey, on which Tenants rest 
their argument, states that “[t]he fact that a law which 

110a 

serves a valid purpose, one not designed to strike at the 
right itself, has the incidental effect of making it more 
difficult or more expensive to procure an abortion 
cannot be enough to invalidate it.” Casey, 505 U.S. at 
873-84, 112 S. Ct. 2791. The purpose of the public hous- 
ing lease statute is not to burden tenants’ intimate 
association rights, but to promote the weighty govern- 
mental interest of providing a safe, drug-free environ- 
ment for low-income families. Because Tenants have 
not shown that enforcement of the lease “burdens a 
fundamental right by ‘directly and substantially’ inter- 
fering with family living arrangements,” Chavez, 973 
F.2d at 1248 (quoting Lyng, 477 U.S. at 638, 106 S. Ct. 
2727), we conclude that section 1437d(l)(5) does not im- 
pose an undue burden and thus does not violate tenants’ 
freedom of intimate association. 

C 

Tenants raise an excessive fines challenge to section 
1437d(l) (5). The Eighth Amendment’s Excessive Fines 
Clause “limits the government’s power to extract pay- 
ments, whether in cash or in kind, ‘as punishment for 
some offense.’ ” Bajakajian, 118 S. Ct. at 2033 (quoting 
Austin v. United States, 509 U.S. 602, 609-10, 113 S. Ct. 
2801, 125 L.Ed.2d 488 (1993) (emphasis deleted)). 

A punishment is not, however, subject to excessive 
fines analysis if it is “not cash or in kind payment 
directly imposed by, and payable, to the government.” 
Kim v. United States, 121 F.3d 1269, 1276 (9th Cir. 
1997). In rejecting an excessive fines challenge to a 
punitive damages award, the Supreme Court explained 
that “the history of the Eighth Amendment convinces 
us that the Excessive Fines Clause was intended to 
limit only those fines directly imposed by, and payable 

111a 

to, the government.” Browning-Ferris Indus. of Ver- 
mont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 268, 109 
S. Ct. 2909, 106 L.Ed.2d 219 (1989) (emphasis added); 
see also id. at 265, 109 S. Ct. 2909 (“[W]e think it 
significant that at the time of the drafting and ratifica- 
tion of the Amendment, the word ‘fine’ was understood 
to mean a payment to a sovereign as punishment for 
some offense.” (emphases added)). The Supreme Court 
has made clear that the Excessive Fines Clause applies 
only when the government, acting with punitive intent, 
extracts a payment to itself. See Bajakajian, 118 S. Ct. 
at 2033 (“Forfeitures—payments in kind—are thus 
‘fines’ [subject to Eighth Amendment scrutiny] if they 
constitute punishment for an offense.”); Austin, 509 
U.S. at 609-10, 113 S. Ct. 2801 (“The Excessive Fines 
Clause limits the government’s power to extract pay- 
ments, whether in cash or in kind, ‘as punishment for 
some offense.’ ”). 

The purported “punishment” in the present 
case—termination of tenancy—is neither a cash nor an 
in-kind payment imposed by and payable to the 
government. Accordingly, it is not subject to analysis 
as an excessive fine. Seeking to overcome this hurdle, 
Tenants cite cases involving excessive fines challenges 
to civil forfeitures. Civil forfeitures do involve a pay- 
ment to the government—in the case of leaseholds, the 
government assumes the property right in the tenancy 
(e.g., if the tenant in a private apartment building has 
paid rent for the year, the federal government acquires 
the tenant’s rights in that apartment for the remainder 
of the year and can utilize that apartment for the 
remainder of the year without having to pay additional 
rent)—and thus may be subject to excessive fines 
analysis under the Eighth Amendment. See, e.g., 

112a 

United States v. 3814 NW Thurman, 164 F.3d 1191, 
1197 (9th Cir. 1999), amended by 172 F.3d 689 (9th 
Cir. 1999). These civil forfeiture cases are, however, 
inapposite to the present case because we are not 
dealing with an attempt by the federal government to 
seize Tenants’ property under the civil forfeiture laws. 
See supra Part IV-D-2. 

25 

25 The dissent appears to view our rejection of Tenants’ exces- 
sive fines challenge as based upon a belief that the Excessive Fines 
Clause does not apply to the states. We need not, and do not, 
express any view on such issue. As previously discussed, an evic- 
tion from public housing based upon breach of a lease provision 
relating to drug-related criminal activity simply does not implicate 
civil forfeiture laws, be they state or federal in origin. 

Treating an eviction authorized by section 1437d(l)(5) as a 
forfeiture, the dissent expresses its view that HUD’s regulations, 
insofar as they permit eviction of “innocent tenants,” may 
violate the Fourteenth Amendment’s Due Process Clause. Even 
assuming that such an eviction could be treated as a forfeiture, we 
cannot agree. The dissent relies most heavily upon the concurring 
opinions of Justice Thomas and Justice Ginsburg in Bennis v. 
Michigan, 516 U.S. 442, 116 S. Ct. 994, 134 L.Ed.2d 68 (1996). 
While these opinions are quite interesting, the opinion of the 
Court—which both Justice Thomas and Justice Ginsburg joined in 
full— controls. The Bennis Court upheld, as consistent with due 
process, the forfeiture of Bennis’s entire interest in a car that she 
co-owned with her husband—even though she had no knowledge 
that he would use the car to engage in illegal sexual activity with a 
prostitute. In rejecting Bennis’s “innocent owner” defense, the 
Court made clear that “a long and unbroken line of cases holds that 
an owner’s interest in property may be forfeited by reason of the 
use to which the property is put even though the owner did not 
know that it was to be put to such use.” Id. at 446, 116 S. Ct. 994. 
Bennis simply cannot support the dissent’s analysis. 

113a 

VI 

Having resolved the APA and constitutional issues, 
we now turn to Walker’s ADA claim. The district court 
held that, as a result of Walker’s disability which 
renders him incapable of living alone, the burden 
imposed by 42 U.S.C. § 1437d(l)(5) to ensure that guests 
do not engage in drug-related criminal activity weighs 
more heavily on him than on others. While a tenant 
without Walker’s disability can choose not to invite 
guests over, Walker does not have this option because 
he requires the constant assistance of a care-giver. The 
district court held that OHA cannot evict him on the 
basis of his care-giver’s drug-related criminal activity. 

It is not disputed that OHA must provide reasonable 
accommodations to disabled tenants. See, e.g., Green v. 
Housing Authority, 994 F. Supp. 1253, 1255-56 (D. Or. 
1998). The ADA specifically provides that the failure to 
provide disabled persons with reasonable modifications 
constitutes discrimination: 

[Discrimination includes] a failure to make rea- 
sonable modifications in policies, practices, or pro- 
cedures, when such modifications are necessary to 
afford such goods, services, facilities, privileges, 
advantages, or accommodations to individuals with 
disabilities, unless the entity can demonstrate that 
making such modifications would fundamentally 
alter the nature of such goods, services, facilities, 
privileges, advantages, or accommodations. 

42 U.S.C. § 12182(b)(2)(A)(ii). A HUD regulation simi- 
larly focuses on the need to provide disabled persons 
with reasonable accommodation: 

For all aspects of the lease and grievance pro- 
cedures, a handicapped person shall be provided 

114a 

reasonable accommodation to the extent necessary 
to provide the handicapped person with an opportu- 
nity to use and occupy the dwelling unit equal to a 
non-handicapped person. 

24 C.F.R. § 966.7(a). 

Walker needs a care-giver; he does not, however, 
need a drug-using care-giver. OHA did accommodate 
Walker by not attempting to terminate his tenancy 
until after the third time that drugs or drug para- 
phernalia were found in his apartment. On each 
occasion, OHA issued Walker a lease violation notice, 
thus giving him ample notice of the fact that his care- 
giver was using drugs within his apartment. Facing 
two strikes, Walker chose to retain his care-giver even 
though she persisted in using drugs in his apartment. 

26 

OHA is not required by the ADA to provide Walker 
with accommodation that is not reasonable, see 
Memmer v. Marin County Courts, 169 F.3d 630, 633-34 
(9th Cir. 1999); Zukle v. Regents of Univ. of Cal., 166 
F.3d 1041, 1048-51 (9th Cir. 1999), and we hold that a 
request to waive applicability of section 1437d(l)(5) to a 
tenant’s care-giver is not reasonable (at least where it 
has not been shown that only a care-giver who uses 
drugs can provide the tenant with “an opportunity to 
use and occupy the dwelling unit equal to a non- 
handicapped person”). 24 C.F.R. § 966.7(a). 

26 Walker did fire his care-giver after the issuance of the third 
lease violation, but has not offered any reason why he did not take 
this step earlier. 

115a 

VII 

With no likelihood of success on the merits of their 
claims, Tenants are not entitled to a preliminary 
injunction. See Coalition for Economic Equity v. 
Wilson, 122 F.3d 692, 710-11 (9th Cir. 1997). We 
accordingly vacate the preliminary injunction and re- 
mand to the district court for further proceedings 
consistent with this opinion. 

The order granting the preliminary injunction is 

REVERSED, and the preliminary injunction is 

VACATED. 

W. FLETCHER, Circuit Judge, dissenting: 

This case involves the attempted eviction of four 
tenants and their families from public housing in 
Oakland, California. Appellee Pearlie Rucker is a 63 
year-old woman who has lived in public housing for 13 
years. She currently lives with her mentally disabled 
daughter, her two grandchildren, and her great-grand- 
child. Appellants assert as a ground for her eviction 
that Ms. Rucker’s mentally disabled daughter pos- 
sessed cocaine three blocks from her apartment. Ms. 
Rucker regularly searches her daughter’s room for 
evidence of drug activity and has warned her and 
others that drug activity in the apartment could result 
in their eviction. Appellee Willie Lee is a 71 year-old 
man who has lived in Oakland public housing for 25 
years. He currently lives with his grandson. Appel- 
lants assert as a ground for his eviction that Mr. Lee’s 
grandson possessed marijuana in a parking lot of the 
housing complex. Appellants do not allege that Mr. Lee 
had any knowledge of his grandson’s marijuana posses- 
sion. Appellee Barbara Hill is a 63 year-old woman who 

116a 

has lived in the same public housing apartment for 30 
years. Like Mr. Lee, she currently lives with her 
grandson. Appellants assert as a ground for her evic- 
tion that her grandson possessed marijuana in the 
parking lot of the housing complex. Appellants do not 
allege that Ms. Hill had any knowledge of her grand- 
son’s marijuana possession. 

Appellee Herman Walker is a disabled 75 year-old 
man who has lived in “senior” public housing for eight 
years. He is not capable of living independently and 
requires an in-home caregiver. Appellants assert as a 
ground for Mr. Walker’s eviction that his caregiver and 
his caregiver’s guests possessed cocaine and drug para- 
phernalia in his apartment. Appellants do not allege 
that Mr. Walker himself engaged in drug-related activ- 
ity. 

Appellants contend that 42 U.S.C. § 1437d(l)(5), part 
of the National Housing Act, authorizes eviction of 
public housing tenants and their families if any member 
of the household engages in any drug-related criminal 
activity (including possession of marijuana) on or near 
the public housing premises, whether or not the tenant 
had any knowledge of, or ability to control, that activ- 
ity. Under appellants’ construction of the statute, a 
parent who disapproves of drugs and diligently tries to 
keep her children off drugs, but who has an adolescent 
child who experiments with marijuana, is subject to 
eviction. Needless to say, this law, as construed by 
appellants, is not the standard under which American 
families are permitted to remain in private homes. If 
families were permitted to remain in their private 
homes only on condition that no family member had 
ever used or possessed illegal drugs in or near the 

117a 

home, many American families would be made home- 
less. 

The district court preliminarily enjoined the evictions 
as not authorized under 42 U.S.C. § 1437d(l)(5), and the 
majority reverses. Because I believe that the majority 
misconstrues the applicable law, I respectfully dissent. 

Discussion 

I will first discuss the attempted eviction of appellees 
Ms. Rucker, Mr. Lee, and Ms. Hill. I will then discuss 
the attempted eviction of appellee Mr. Walker, whose 
case presents an additional issue concerning the Ameri- 
cans with Disabilities Act. 

I. Eviction of Appellees Ms. Rucker, Mr. Lee, and 
Ms. Hill 

The central issue in this case is whether tenants 
without knowledge of, or ability to control, off-premises 
drug-related activity of household members may be 
evicted from public housing. If appellants had sought 
only to evict the household member engaged in drug- 
related activity, we would not be here today. However, 
appellants seek to evict not only the offending member 
of the household, but also the innocent head-of-house- 
hold and other innocent family members. 

A. The Lease Provision 

The directly governing statutory provision in this 
case was originally passed as part of the Anti-Drug 
Abuse Act of 1988, Public Law 100-690, 102 Stat. 4300, 
now amended and codified at 42 U.S.C. § 1437d(l). In 
its current form, it provides, in relevant part: 

118a 

Each public housing agency shall utilize leases 
which— 

(1) do not contain unreasonable terms and con- 
ditions; [and] 

* * * 

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

1. Plain Meaning of the Statute 

The district court found that the express language of 
the lease provision is silent as to the treatment of 
“innocent tenants.” An examination of the text of the 
statute and the arguments of the parties reveals that 
the district court was correct. 

Appellant HUD argues, and the majority agrees, that 
Congress meant to provide for the eviction of innocent 
tenants because the language “any drug-related crimi- 
nal activity on or near such premises . . . shall be 
cause for termination of tenancy” (emphasis added) 
means that no one, even an innocent tenant, is ex- 
cluded. The majority thus equates Congress’ silence as 
to whether a tenant is required to know about, or be 
able to control, the drug-related criminal activity with 
Congress’ specific intent that the statute be applied to 
innocent tenants. 

119a 

The majority reaches its conclusion by construing 
“any drug-related criminal activity” to mean “all” such 
activity without limitation. But such an all-encom- 
passing reading leads to absurd results. If “any” 
truly means “all,” without limitation, Congress must 
also have specifically intended that the drug-related 
criminal activity could occur at any time and still be 
cause for termination of the lease, since the statute is 
silent as to when the drug-related criminal activity 
must occur. In other words, such a reading leads to the 
conclusion that Congress specifically intended that if a 
family member engaged in drug-related activity five 
years ago, or if the tenant invites a guest into her 
apartment and the guest engaged in such activity five 
years ago, the drug-related criminal activity of the 
family member or guest would be cause for termination, 
regardless of whether the tenant had any knowledge of 
that activity. 

Congress could not have intended such an absurd 
result. See Inter-Modal Rail Employees Ass’n v . 
Atchison, Topeka, & SF Ry. Co., 520 U.S. 510, 516, 117 
S. Ct. 1513, 137 L.Ed.2d 763 (1997). Contrary to the 
reading adopted by the majority, the only reasonable 
interpretation of the statute is that Congress did not 
mean “any” in the most all-encompassing sense possi- 
ble. See Lewis v. United States, 523 U.S. 155, 158-160, 
118 S. Ct. 1135, 1139, 140 L.Ed.2d 271 (1998) (an all-en- 
compassing reading of the words “any enactment” “is 
not a sensible interpretation of this language [since 
such a reading] would dramatically separate the statute 
from its intended purpose.”). HUD itself has rejected 
an all-encompassing interpretation of the word “any.” 
In adopting its regulation implementing § 1437d(l)(5), 
HUD limited the words “any drug-related criminal 

120a 

activity” to mean any such activity taking place at the 
time a wrong-doer is a guest, 56 Fed. Reg. 51562 (1991), 
even though HUD does not contend this limitation to 
“any” is in the statute. While HUD’s reading of when 
“any” activity must take place is the only reasonable 
construction of the statute, it is contrary to the “plain 
meaning” of that same statute as found by the majority. 

Moreover, no matter how broadly “any” is read, the 
statute is ambiguous as to whose tenancy may be 
terminated. Section 1437d(l)(5) allows for “termination 
of tenancy” but does not explain whether such termina- 
tion applies to the tenancies of all members of the 
household or only to the tenancy of the tenant engaged 
in the drug-related criminal activity. As I read the 
statute, Congress contemplated that a termination 
under this section might be applied only to a tenant 
engaged in drug-related activity, or to a tenant in a 
position to know about and control such activity. In 
support of this reading, I note, for example, that 
§ 1437d(n) specifically provides for notification of the 
local post office when “a public housing agency evicts 
an individual or family from a dwelling unit for en- 
gaging in criminal activity, including drug-related 
criminal activity[.]” (emphasis added). Congress thus 
foresaw cases where only an individual, rather than an 
entire family, would be evicted, and the district court 
did not err in finding that the plain language of the 
statute did not necessarily require the eviction of 
innocent tenants. 

The district court concluded that any lease term must 
be reasonable under 42 U.S.C. § 1437d(l)(1). There is 
nothing remarkable about the court’s conclusion since 
the actual language of 42 U.S.C. § 1437d(l)(1) provides: 

121a 

Each public housing agency shall utilize leases 
which— 

(1) do not contain unreasonable terms and con- 
ditions; 

* * * 

Since all the subparagraphs specifying lease require- 
ments under § 1437d(l) are joined with the connector 
“and” rather than “or,” any construction of subpara- 
graph (5) of § 1437d(l) must also be “reasonable” under 
subparagraph (1) of that same section. The majority 
contends that if there is some conflict between their 
construction of subparagraph (5) and the reasonable- 
ness requirement of (1), subparagraph (5), the more 
specific, controls over subparagraph (1), the more 
general. I believe that this is a method for reading the 
reasonableness requirement out of the statute rather 
than for reading the two provisions consistently. 
Where a construction can eliminate potential conflict 
between the two sections, that construction must 
prevail. Hellon & Associates, Inc. v. Phoenix Resort 
Corp., 958 F.2d 295, 297 (9th Cir. 1992). 

The majority contends that appellants’ construction 
is reasonable because giving protection to innocent 
tenants would “hamstring” efforts to fight drugs in 
public housing. In so concluding, the majority relies on 
facts that are not in the record. The district court 
found, on the record before it, that the evidence showed 
that eviction of persons who did not know, could not 
foresee, and could not control the conduct of others does 
nothing to further the battle against drugs in public 
housing. By contrast, where the district court did find 
that a tenant could do something to assure drug activity 
would not occur, the court did not extend injunctive 

122a 

relief to protect such a tenant (even if she was not 
personally involved in the drug-related activity).1 

The majority further contends that evicting innocent 
tenants is reasonable because barring innocence as a 
defense holds down litigation costs. There are many 
ways to hold down litigation costs, not all of them rea- 
sonable or appropriate. I am confident that the major- 
ity does not believe that a public housing authority 
should be allowed to skip the eviction process alto- 
gether and just change the locks. Nor should it believe 
that it is reasonable to punish the innocent along with 
the guilty because it is cheaper to litigate under that 
standard than under a standard that protects the 
innocent. 

Finally, the majority compares eviction from public 
housing to eviction from private rental property. I find 
this comparison unhelpful. Suffice it to say that good 
cause is always required for eviction from public hous- 
ing, 42 U.S.C. § 1437d(l)(4), whereas, absent such a 
provision in the lease, a similar requirement of good 
cause is generally not required in private residential 
leases. See, e.g., S.P. Growers Ass’n v. Rodriguez, 17 
Cal.3d 719, 730, 131 Cal. Rptr. 761, 552 P.2d 721 (1976). 

1 For example, the court refused to extend protection of 
innocent tenants to situations where drug activity occurred in the 
apartment. “A tenant may control what occurs in her unit by 
ensuring that no one is present when she is not and searching her 
apartment and perhaps, her guests and household before they 
enter. In other words, terminating the lease of a tenant for her 
failure to maintain a drug-free environment in her apartment holds 
the tenant responsible for something over which she has some 
control. Eviction under such circumstances appears rationally re- 
lated to a legitimate public housing goal.” Only where a tenant has 
no ability at all to prevent the drug-related criminal activity did 
the district court find that the tenant’s eviction is unreasonable. 

123a 

2. Legislative History 

Since the plain language of the lease provision does 
not compel either party’s interpretation, this court may 
properly look at legislative history to determine 
Congress’ intent. I believe that the legislative history 
supports the tenants’ interpretation. 

The original version of 42 U.S.C. § 1437d(l)(5) was 
enacted as part of the Anti-Drug Abuse Act of 1988. 
No House or Senate Reports accompanied this legis- 
lation, and none of the committee reports had anything 
to do with the provisions affecting HUD. However, in 
1990, Congress revisited termination of tenancy for 
drug-related activity and effectively rewrote sub- 
paragraph (l)(5) into its present form. Public Law 101- 
625. The legislative history indicates that Congress did 
not intend for innocent family members to be evicted. 
The Senate Report2 specifically stated that eviction 
would not be appropriate “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.” 1990 USCCAN 5941. Likewise, 
the Conference Report said of an identical passage in 
the Section 8 housing assistance program: “[T]he Com- 
mittee assumes that if the tenant had no knowledge of 
the criminal activity or took reasonable steps to 
prevent it, then good cause to evict the innocent family 
members would not exist.” Id. at 5889. 

It is well established in this circuit that “the official 
committee reports provide the authoritative expression 
of legislative intent” when examining legislative 

2 The Senate version of this amendment was adopted in the 
final statute. 1990 USCCAN 6123. 

124a 

history.3 See In re Kelly, 841 F.2d 908, 912 n.3 (9th Cir. 
1988). The majority opinion attempts to explain these 
comments as evidence that Congress granted HUD and 
the public housing authorities (PHAs) discretion not to 
evict in these situations. However, Congress did not 
appeal only to the PHAs; it appealed to the “wise 
exercise of the humane judgment by the PHA and the 
eviction court.” 1990 USCCAN 5941 (emphasis added). 
If Congress had meant to leave the discretion solely 
with the PHAs, the judgment of the courts would never 
come into play. Further, the Committee Reports were 
very clear that these evictions “would not” be 
appropriate, not that they might not. Id. Congress thus 
left no room for the unchallengeable discretion the 
majority would grant the government. 

B. The Anti-Forfeiture Provision 

In the Anti-Drug Abuse Act of 1988, Congress both 
passed the original version of the lease provision (just 
discussed), which amended the National Housing Act, 
and amended a pre-existing anti-forfeiture provision of 
the Controlled Substances Act. Both the lease pro- 
vision and the amendment to the anti-forfeiture pro- 
vision were part of Chapter 1 of Subtitle C of Public 
Law 100-690 (Preventing Drug Abuse in Public 
Housing). The anti-forfeiture provision was amended 
by inserting the phrase “(including any leasehold 

3 In an attempt to show a contrary intent, HUD has only 
quoted isolated statements from witnesses and legislators rather 
than committee reports. Such statements “cannot be attributed to 
the full body that voted on the bill.” See In re Kelly at 912 n.3. 
Further, even taken at face value, these statements only go to the 
problem of drugs, a problem all parties as well as the district court 
acknowledge as serious, not to the question of whether innocent 
tenants should be evicted. 

125a 

interest)” into the text of the pre-existing statute. As a 
result of the amendment, the Controlled Substances 
Act now provides, in relevant part: 

(a) Subject property 

The following shall be subject to forfeiture to the 
United States and no property right shall exist in 
them: 

* * * 

(7) All real property, including any right, title, 
and interest (including any leasehold interest) in 
the whole of any lot or tract of land and any 
appurtenances or improvements, which is used, or 
intended to be used, in any manner or part, to com- 
mit, or to facilitate the commission of, a violation of 
this subchapter punishable by more than one year’s 
imprisonment, except that no property shall be 
forfeited under this paragraph, to the extent of an 
interest of an owner, by reason of any act or 
omission established by that owner to have been 
committed or omitted without the knowledge or 
consent of that owner. 

21 U.S.C. § 881(a) (emphasis added: italics indicate 
material added in 1988; underlined text was already in 
the statute). 

We are faced with a more specific task than merely 
understanding the lease provision of the National Hous- 
ing Act and the anti-forfeiture provision of the Con- 
trolled Substances Act. We must understand, and 
make consistent, section 5101 (the lease provision) and 
section 5105 (the amendment to the anti-forfeiture pro- 
vision) of Public Law 100-690, which amended these 
two Acts. It is axiomatic that Congress must have 

126a 

meant these provisions—passed as part of the same 
chapter of the same Act—to be interpreted 
consistently. Gustafson v. Alloyd Co., Inc., 513 U.S. 
561, 570, 115 S. Ct. 1061, 131 L.Ed.2d 1 (1995). The 
majority argues that the amendment of the anti- 
forfeiture provision simultaneously with the enactment 
of the lease provision supports its position. It concludes 
that Congress (implicitly) intended to deprive innocent 
tenants of protection under section 5101 of PL 100-690 
at the same time it (expressly) intended to protect 
tenants who had no “knowledge” of, and had not given 
any “consent” to, drug-related activity under section 
5105 of that same law. 

In order to conclude that Congress intended the 
forfeiture of the leasehold interest of an innocent 
tenant, the majority distinguishes between forfeiture to 
the federal government and forfeiture to a local 
government agency. The majority is correct in pointing 
out that the anti-forfeiture provision deals with for- 
feitures to the federal government and that the lease 
provision deals with forfeitures to local housing authori- 
ties. The majority recognizes that there “may be a 
constitutional bar to forfeiture of property when the 
property owner is uninvolved and unaware of the 
wrongful activity,” ante at 642, and it argues that the 
explicit incorporation of that bar into the anti-forfeiture 
provision alleviates that constitutional concern when 
forfeitures to the United States are at issue. But the 
majority assumes that Congress’ awareness of, and 
intent to alleviate, that same concern somehow dis- 
appeared when forfeitures to a public housing authority 
were at issue. I disagree. To the extent that a reading 
of a forfeiture statute is driven by a concern to avoid an 
unconstitutional construction, that concern should be 

127a 

equally present whether the forfeiture is to the federal 
government or to a local governmental authority. 

The majority distinguishes between forfeitures to the 
federal government and forfeitures to local authorities 
based on a hypothesized congressional conclusion that 
tenants need more protection from the federal govern- 
ment because of the federal government’s temptation to 
enrich itself through forfeiture proceedings. This hypo- 
thesis is unsupported by the text, context, or history of 
the legislation, and I view it as an inappropriate attri- 
bution to Congress of a base view of the motivations of 
federal authorities in forfeiture cases. 

The majority further argues that a forfeiture 
proceeding—whether conducted by the federal govern- 
ment or by a local housing authority—is sufficiently 
different from an eviction proceeding that the anti- 
forfeiture provision should in any event not apply to 
evictions. The most obvious problem with the major- 
ity’s argument is that leasehold interests are typically 
terminated by eviction, and that the 1988 Act specifi- 
cally added “leasehold interests” to the anti-forfeiture 
provision. See, e.g., United States v. The Leasehold 
Interest in 121 Nostrand Ave., 760 F. Supp. 1015 
(E.D.N.Y. 1991) (applying the anti-forfeiture provision, 
21 U.S.C. § 881(a), to forfeiture of a leasehold). 

The majority argues, finally, that a forfeiture under 
the statute is available on a lower standard of proof 
than an ordinary eviction, and that an eviction is there- 
fore not included in the anti-forfeiture provision. But 
what is at issue in this case is not the burden of proof 
but the substantive liability of a person who did not and 
could not know of the criminal activity of another. For 
purposes of determining whether the statute allows 
eviction of a person concededly without knowledge, the 

128a 

burden of proof for demonstrating knowledge is not 
relevant.4 

I am unwilling to assume that the constitutional con- 
cerns that appear to have motivated Congress when 
considering forfeiture to the federal government were 
irrelevant to Congress when considering forfeiture to 
local governments. Congress made its intent explicit as 
to the federal government by adding four words to a 
pre-existing drug-related forfeiture statute applicable 
to the federal government. There was (and is) no com- 
parable federal drug-related forfeiture statute appli- 
cable to local governments that Congress could have 
amended with comparable ease; indeed, there may even 
be some question about the scope of Congress’ consti- 
tutional power to enact such a general statute. It is 
therefore not surprising that Congress did not put into 
the Drug Control Act of 1988 an explicit anti-forfeiture 
provision applicable to local governments. But the 
absence of such a provision in the Act does not mean 
that Congress had no concern about the consti- 
tutionality of forfeitures of the leaseholds of innocent 
tenants to local governments. And it certainly does not 
mean that Congress intended that the lease provision 
enacted as part of the same Act should be construed to 
allow forfeitures to local governments that it explicitly 
forbade to the federal government. 

4 A related misapprehension in the majority opinion is that 
innocent tenants need more protection in a forfeiture action but 
less in an eviction action because forfeiture is a summary pro- 
ceeding. First, as noted above, the nature of the proceeding has 
nothing to do with the substantive defenses available. Second, 
under California law eviction is itself a summary proceeding. Nork 

v. Pacific Coast Medical Enterprises, 73 Cal. App. 3d 410, 413, 140 
Cal. Rptr. 734 (1977). 

129a 

C. Language in Related Statutory Provisions 

1. Waiver of Disqualification Period for Pre- 
ferences 

The majority points to an earlier version of 42 U.S.C. 
§ 1437d(c)(4)(A)(iii) in support of its reading of 
§ 1437d(l).5 The version of the statute that existed until 
1996—and upon which the majority relies—provided 
for a three-year disqualification period for “prefer- 
ences” that would otherwise be available to those 
applying for tenancy in public housing. Preferences 
were given, for example, to the homeless, to those 
paying more than 50% of their income in rent, and to 
those who had recently been displaced from housing. 
See, e.g., § 1437d(c)(4)(A)(i). The three-year disqualifi- 
cation for such preferences period applied to “any 
individual or family” evicted from public housing “by 
reason of drug-related activity.”6 However, the statute 
specifically required that there be a waiver of the 
disqualification period for “any member of a family of 
an individual prohibited from tenancy under this clause 
who the agency clearly determines did not participate 
in and had no knowledge of such criminal activity[.]” 

The majority contends that the statutory waiver for 
an innocent family member must mean that such a 
family member could have been evicted in the first 

5 The statutory language relied upon by the majority was 
superceded in 1996. The majority’s argument is not available 
under the language of the current statute. 

6 The statutory reference to an “individual or family” evicted 
for drug-related activity does not imply that innocent family mem- 
bers could be evicted. An entire family could be evicted if all the 
members of the family either themselves engaged in drug-related 
activity, or knew about and failed to control drug-related activity. 

130a 

place, for otherwise that innocent family member would 
not be re-applying for public housing. According to the 
majority, “If an ‘innocent tenant’ could not have been 
evicted in the first place, there would have been no 
need for Congress to write a statute specifically waiv- 
ing the three-year waiting period for them.” The 
majority has read into the statute a limiting concept 
that was not there. The statute nowhere used the word 
“re-apply” or its equivalent. Rather, the statute gave 
its preferences to all those applying—not merely those 
re-applying—for public housing; and it similarly 
imposed its three-year disqualification for preferences 
on all those applying—not merely those reapplying— 
for public housing. 

Once one understands that the statute covered 
anyone applying for public housing, the statute made 
perfect sense. The waiver provision of the statute 
ensured that applicants for public housing who were 
entitled to preference did not lose that preference 
because of the sins of a family member. So long as the 
applicants had not participated in and had had no 
knowledge of the drug-related activities of their family 
member, they were not subject to the three-year 
disqualification period. Far from supporting the 
majority’s argument, the statute showed Congress’ 
concern that innocent applicants for public housing not 
suffer because of their family member’s drug-related 
activities. 

2. The Veterans Affairs Act of 1999 

The majority also relies on § 577 of the Veterans 
Affairs Act of 1999 (codified at 42 U.S.C. § 13662) for its 
view that Congress plainly meant to evict innocent 
tenants. The Act was not in effect at the time the case 
was argued to us, was never presented to the district 

131a 

court, and has major textual interpretation issues of its 
own. I do not believe that we should be analyzing this 
statute at this stage of the litigation, in part because of 
the obvious hazards inherent in attempting to resolve 
complex questions of statutory interpretation under a 
statute that has not been the focus of the parties or the 
district court, and in part because appellants have not 
sought to use this statute to evict the tenants in this 
case. Under the circumstances, I will simply point out 
that the language of § 577 of the Veterans Affairs Act is 
different from that of the lease provision of the 
National Housing Act, and that there is no indication 
that Congress intended these two provisions to have 
the same interpretation. The fact that Congress chose 
to use different language in similar situations tends to 
show it intended a different meaning. See Florida 
Telecommunications Ass’n v. FCC, 54 F.3d 857, 860 
(D.C. Cir. 1995). I do not read § 577 as supporting the 
wholesale eviction of innocent tenants, for it addresses 
households with a member who is a drug user, rather 
than households with a member engaged in unspecified 
and off-premises drug-related activity, and it addresses 
rehabilitation of the offending member. Further, and in 
any event, “the views of a subsequent Congress form a 
hazardous basis for inferring intent of an earlier one.” 
South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 118 
S. Ct. 789, 139 L.Ed.2d 773 (1998). 

D. Avoiding Substantial Constitutional Questions 

A statute that can be construed to avoid substantial 
constitutional questions should be so construed. United 
States v. X-Citement Video, Inc., 513 U.S. 64, 78, 115 
S. Ct. 464, 130 L.Ed.2d 372 (1994). The construction 
adopted by the majority raises substantial consti- 

132a 

tutional questions both under the Excessive Fines 
Clause of the Eighth Amendment and the Due Process 
Clause of the Fourteenth Amendment. Since the 
statute is clearly capable of a construction that will 
avoid these questions, I believe we should adopt that 
construction. 

1. Excessive Fines 

The Excessive Fines Clause provides: “Excessive 
bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishment inflicted.” U.S. 
Const., amend. 8 (emphasis added). Relying on Kim v. 
United States, 121 F.3d 1269, 1276 (9th Cir. 1997), the 
majority contends that the forfeiture of a leasehold 
interest is not subject to the clause because it only 
applies to “ ‘cash or in kind payment directly imposed 
by, and payable to, the government.’ ” 

Ante at 648. 
However, Kim holds only that an administrative 
disqualification is not subject to the Excessive Fines 
Clause. It does not hold that a forfeiture of a property 
interest is not subject to the clause. Indeed, Austin v. 
United States, 509 U.S. 602, 113 S. Ct. 2801, 125 
L.Ed.2d 488 (1993), on which Kim relies, 121 F.3d at 
1276, is directly to the contrary, holding squarely that 
forfeiture of property is covered by the Excessive 
Fines Clause, 509 U.S. at 622, 113 S. Ct. 2801.7 

The majority further contends that the Excessive 
Fines Clause is inapplicable “because we are not 

7 Austin also suggests that a determination of whether a 
forfeiture violates the Excessive Fines Clause depends on the facts 
of the case. Austin at 622, 113 S. Ct. 2801. Even if this court did 
need to reach the issue of whether HUD’s application of its regu- 
lation to appellees violated the Excessive Fines Clause, the proper 
procedure would be to remand to the district court for such a 
determination. See id. at 622-23, 113 S. Ct. 2801. 

133a 

dealing with an attempt by the federal government to 
seize Tenants’ property under the civil forfeiture laws.” 
Ante at 649, referring to its earlier discussion of the 
anti-forfeiture provision, 21 U.S.C. § 881(a). It is, of 
course, true that the forfeiture in this case is sought by 
a local government rather than the federal government, 
but it is a forfeiture nonetheless. Although the ques- 
tion is not entirely settled, it is very likely that the 
Excessive Fines Clause applies to the states. As 
Justice O’Connor wrote in Browning-Ferris Industries 
of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 
282, 284, 109 S. Ct. 2909, 106 L.Ed.2d 219 (1989) 
(O’Connor, J., concurring), “[T]he Cruel and Unusual 
Punishments Clause [of the Eighth Amendment] has 
been regularly applied to the States. . . . In addition, 

the Court has assumed that the Excessive Bail Clause 
of the Eighth Amendment applies to the States. . . . I 

see no reason to distinguish one Clause of the Eighth 
Amendment from another for purposes of incor- 
poration, and would hold that the Excessive Fines 
Clause also applies to the States.” The majority does 
not argue that Justice O’Connor is wrong about the 
incorporation of the Excessive Fines Clause through 
the Fourteenth Amendment. Indeed, it does not dis- 
cuss the incorporation issue and Justice O’Connor’s 
opinion at all. But if the majority were to engage in 
such a discussion, it would have to concede, at the very 
least, that the incorporation of the Excessive Fines 
Clause and the application of the Clause to the 
forfeiture of appellees’ leasehold to a local government 
pose substantial constitutional questions. 

134a 

2. Due Process 

The forfeiture of a tenant’s leasehold interest under 
the circumstances presented in this case also raises 
substantial questions under the Due Process Clause. It 
is undisputed that tenants of public housing have a 
property interest in their tenancy. See Geneva Towers 
Tenants Org. v. Federated Mortgage Inv., 504 F.2d 483, 
488-89 (9th Cir. 1974). The holding of the Supreme 
Court in Bennis v. Michigan, 516 U.S. 442, 116 S. Ct. 
994, 134 L.Ed.2d 68 (1996), and the discussion in the 
concurring opinions of Justices Thomas and Ginsburg in 
that case, strongly suggest that forfeiture of property 
violates due process if the property has not been used 
in the commission of the illegal activity in question, and 
if the owner of the property did not know about, could 
not foresee, and could not control that activity. 

In Bennis, a man was arrested for sexual activity 
with a prostitute in a car co-owned with his wife, and 
the car was forfeited as a public nuisance. His wife 
brought suit for the value of her ownership interest in 
the forfeited car. In a 5-4 decision, the Court held that 
an innocent owner is subject to forfeiture of her 
property “by reason of the use to which the property 
was put even though the owner did not know that it 
was to be put to such use.” Id. at 446, 116 S. Ct. 994. 
Justice Thomas, the fifth vote for the majority, wrote a 
separate concurring opinion in which he expressed a 
belief that the result in Bennis was ordained by cen- 
turies of forfeiture law.8 

However, Justice Thomas also 
8 See also Austin at 615, 113 S. Ct. 2801 for an examination of 
the principles underlying forfeiture. The theories supporting the 
forfeiture of an innocent person’s property are limited to situations 
where the property to be forfeited was itself misused or where 

135a 

expressed a grave concern that forfeiture not be 
extended beyond cases where the property itself is 
used for a crime. Id. at 456, 116 S. Ct. 994 (Thomas, J., 
concurring); see also id. at 458, 116 S. Ct. 994 (Ginsburg, 
J., concurring) (the government “has not embarked on 
an experiment to punish innocent third parties. . . . 

Nor do we condone any such experiment.”) 

In the present case, the majority allows forfeiture of 
the leasehold of innocent tenants for drug-related 
activity that did not involve the use of the leasehold 
property and of which the tenants were unaware. This 
forfeiture thus deprives innocent people of property 
that was not involved in any crime and punishes 
innocent people for crimes that they did not commit and 
could not prevent.9 I believe that under Bennis this is 
likely a violation of the Due Process Clause. 

II. Eviction of Mr. Walker 

Mr. Walker’s case contains an element not present in 
the cases of Ms. Rucker, Mr. Lee, and Ms. Hill. He 
contends that the Americans with Disabilities Act 
(“ADA”), 42 U.S.C. § 12101, et seq., protects him from 
eviction despite the use of drugs in his apartment by his 
caretaker and his caretaker’s guests. As the majority 
opinion correctly observes, Mr. Walker unquestionably 
has a right under the ADA to a live-in caretaker, but he 
does not have a right under the ADA to have a live-in 

“the owner has been negligent in allowing his property to be 
misused and that he is properly punished for that negligence.” Id. 

9 The district court refused to extend the injunctive relief to 
situations where the property to be forfeited, the leasehold 
interest, is directly involved in the drug-related criminal activity. 
That is, if drugs are found in the apartment, the leasehold is 
forfeited, regardless of the actual knowledge of the tenants. 

136a 

caretaker who violates the drug laws. If deciding the 
case de novo on the current record, I might conclude 
that Mr. Walker had both knowledge of his caretaker’s 
activities and the ability to replace the caretaker. 
However, this court is not at liberty independently to 
reweigh the evidence presented to the district court. 
The district court’s findings of fact must be reviewed 
under the clearly erroneous standard. Roe v. Ander- 
son, 134 F.3d at 1400, 1402 n. 1 (9th Cir. 1998). Al- 
though Mr. Walker clearly had knowledge of his live-in 
caretaker’s drug-related activity after she was initially 
found to be keeping drugs and drug paraphernalia on 
the premises, the district court could reasonably have 
believed that Mr. Walker was, because of his disability, 
powerless to stop her or find a replacement any sooner 
than he did. 

Mr. Walker claims that his disability prevented him 
from complying with the anti-drug policy without a 
reasonable accommodation. The evidence about the ex- 
tent of Mr. Walker’s disability and the degree to which 
it prevented him from complying with the anti-drug 
policy is disputed, with both sides presenting conflict- 
ing declarations. The majority ignores this dispute and 
simply adopts appellants’ version of the facts as it own. 
Appellants may be able to establish their version of the 
facts at trial, but on the record now before us the 
district court did not abuse its discretion in finding that 
Mr. Walker’s claim was sustainable. 

Accepting for present purposes that Mr. Walker may 
have been prevented from complying with the anti- 
drug policy by his disability, the question then becomes 
whether a reasonable accommodation can be made that 
will bring Mr. Walker into compliance with his lease 
agreement. Appellants maintain that a blanket waiver 

137a 

of the anti-drug policy is not a reasonable accom- 
modation. I agree. The district court’s order, however, 
does not require such a waiver. Rather, the district 
court specifically rejected appellants’ claim that a 
blanket waiver was the only possible accommodation, 
and held that, based on the complaint, Mr. Walker may 
be able to show that another accommodation is reason- 
able. While the district court may ultimately decide in 
favor of appellants once the record is developed further, 
the district court did not abuse its discretion by finding 
that, on the record before it, Mr. Walker had a fair 
chance of sustaining his claim under the ADA. 

Conclusion 

For the foregoing reasons, I respectfully dissent from 
the majority’s construction of this statute. 

138a 

APPENDIX D 

UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF CALIFORNIA 

NO. C 98-00781 CRB 

PEARLIE RUCKER, ET AL., PLAINTIFFS 

v. 

HAROLD DAVIS, ET AL., DEFENDANT 

June 19, 1998 

MEMORANDUM, ORDER AND PRELIMINARY 

INJUNCTION 

BREYER, J. 

This action arises from defendant Oakland Housing 
Authority’s termination of plaintiffs’ public housing 
leases on the ground that a member of each plaintiff ’s 
household engaged in drug-related criminal activity, 
even though such activity allegedly occurred without 
the knowledge of each plaintiff. Defendants Oakland 
Housing Authority (“OHA”), Department of Housing 
and Urban Development (“HUD”), and Harold Green, 
the Director of OHA, have moved to dismiss the first 
amended complaint and plaintiffs have moved for a pre- 
liminary injunction. After carefully considering the 
papers submitted by the parties, and having heard oral 
argument on June 2, 1998, the Court concludes that the 
motions to dismiss should be DENIED in part and 

139a 

GRANTED in part, and that a preliminary injunction 
should issue. 

BACKGROUND 

A. The Statute, Regulations and Lease. 

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

42 U.S.C. § 1437d(1)(5) (emphasis added). 

In reliance on this statute, HUD has issued a regula- 
tion requiring public housing leases to contain the 
following provision: 

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

(A) Any criminal activity that threatens the 
health, safety, or quiet enjoyment of the PHA’s 
[public housing authority’s] public housing premises 
by other residents or employees of the PHA, or 

(B) Any drug-related criminal activity on or near 
the premises. Any criminal activity in violation of 
the preceding sentence shall be cause for termina- 
tion of tenancy, and for eviction from the unit. 

140a 

24 C.F.R. 966.4(f)(12)(i). In accordance with this 
regulation, OHA includes in its leases the obligation 
that a tenant must 

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

(i.) Any criminal activity that threatens the health, 
safety, or right to peaceful enjoyment of the pre- 
mises by other public housing residents or threatens 
the health and safety of the housing authority 
employees. . . , or (ii) Any drug-related criminal ac- 
tivity on or near the premises (e.g., manufacture, 
sale distribution, use, or possession of illegal drugs 
or drug paraphernalia, etc.). 

OHA Lease ¶ 9(m). 

HUD interprets the statute, 42 U.S.C. § 1437d(1)(5), 
and its regulation as permitting termination of the lease 
even when the tenant “did not know, could not foresee, 
or could not control behavior by other occupants of the 
unit.” Public Housing Lease and Grievance Proce- 
dures, 56 Fed. Reg. 51560, 51567 (1991). In their pa- 
pers, and at oral argument, the plaintiffs referred to the 
termination of leases under such circumstances as hold- 
ing the tenant “strictly liable” for the conduct of her 
household members. See also Charlotte Housing 
Authority v. Patterson, 120 N.C. App. 552, 554, 64 
S.E.2d 68, 70 (1995) (describing the tenant as being held 
“strictly liable” for acts committed by her son outside 
her presence). As defendants note, however, such a 
term is a misnomer because the tenant is not being held 
liable, rather, the tenant forfeits her interest in the 
leasehold. The term is also imprecise because under the 
law a person is strictly liable for something the person 

141a 

did. For example, if a person runs a red light she is 
held “strictly liable” for her conduct even if she did not 
intend to run the red light. Here, however, the tenant 
is not alleged to have done anything herself. 

The Court will refer to the termination of tenancies 
under such circumstances as the termination of the 
lease of an “innocent” tenant as it is conceded that the 
tenant is innocent of the drug-related criminal activity 
which is the cause of the lease termination and it is 
alleged that the tenant is also innocent of any knowl- 
edge of the drug-related criminal activity. 

B. The Allegations of the Complaint. 

1. The Plaintiffs. 

Plaintiff Pearlie Rucker is 63 years old and has lived 
in public housing for 13 years. She shares her apart- 
ment unit with her daughter Gelinda, who is mentally 
disabled, two grandchildren and one great-granddaugh- 
ter. (First Amended Complaint (“FAC”) ¶ 5.) OHA 
served Rucker with a 3-day notice of termination of her 
tenancy. Rucker did not vacate her apartment as OHA 
ordered. OHA subsequently filed (and then dismissed) 
an unlawful detainer action against her in Alameda 
County Municipal Court, No. 012528. The unlawful de- 
tainer complaint alleged that Rucker had violated 
paragraph 9(m) of her lease, and in particular, that her 
daughter Gelinda had possessed cocaine three blocks 
from Rucker’s apartment and that her adult son had 
possessed cocaine eight blocks away. (Id. ¶¶ 7-8.) Ruc- 
ker’s son does not reside with her. (Id. ¶ 6.) Rucker 
had no knowledge of Gelinda’s drug activity; regularly 
searches her room for evidence of alcohol and drug acti- 
vity; and has warned her mentally disabled daughter 

142a 

and others that any drug activity on the premises can 
result in eviction. (Id. ¶¶ 9-10.) 

Plaintiff Herman Walker is 75 years old and disabled. 
He is no longer capable of living independently and re- 
quires an in-home caregiver. He has lived in “senior” 
public housing for eight years. (FAC ¶¶ 11-12.) OHA 
served Walker with a three-day notice of termination of 
his tenancy and when he did not vacate his apartment 
unit OHA filed an unlawful detainer action against him 
in Alameda County Municipal Court, No. 011040. The 
unlawful detainer complaint alleges, among other 
things, that Walker violated paragraph 9(m) when his 
caregiver, and caregiver’s guests, possessed cocaine in 
Walker’s apartment. It does not allege that Walker en- 
gaged in the drug activity or was aware of such 
activity. (Id. ¶ 12-14.) 

Plaintiff Willie Lee is 71 years old and has resided in 
OHA housing for 25 years. (FAC ¶ 16.) Plaintiff 
Barbara Hill is 63 years old and has lived at her apart- 
ment for 30 years. (Id. ¶ 21.) OHA served both Lee 
and Hill with three day notices to vacate. When they 
did not vacate their apartments, OHA filed unlawful 
detainer actions against them on the ground that they 
had violated paragraph 9(m) of their lease. In par- 
ticular, the actions allege that Lee’s and Hill’s grand- 
sons, who reside with them, possessed marijuana in a 
parking lot of the housing complex. (Id. ¶¶ 17-18, 22- 

23.) There is no allegation that Lee or Hill had any 
prior knowledge of their grandsons’ drug-related activ- 
ity or that they engaged in any drug-related activities 
themselves. (Id. ¶¶ 19, 21.) Both Lee and Hill had 
warned their household members that any drug use or 

143a 

criminal activity on the premises can result in eviction. 
(Id. ¶ 20, 24). 

2. Plaintiffs’ Claims. 

Plaintiffs allege that HUD’s regulation, and more 
precisely, its interpretation of the regulation as per- 
mitting termination of the leases of “innocent” tenants, 
is unlawful under the Administrative Procedures Act 
(“APA”). In particular, plaintiffs contend that the regu- 
lation violates the APA because it is not permitted by, 
and in fact contradicts, the authorizing statute, 42 
U.S.C. § 1437d, or, in the alternative, because it violates 
Congress’s mandate that public housing leases not con- 
tain unreasonable terms. See 42 U.S.C. § 1437d(a). 
They also argue that terminating the leases of “inno- 
cent” tenants violates due process and the first amend- 
ment right to freedom of association, and that the 
attempted evictions of plaintiffs Rucker and Walker 
violate the Americans with Disabilities Act (“Act”). 
Plaintiffs also contend that the lease provision at issue 
here is unenforceable under state contract law. 

DISCUSSION 

I. DEFENDANTS’ MOTIONS TO DISMISS. 

A. Standing. 

Defendants contend that the action must be dis- 
missed because plaintiffs do not have standing to 
challenge their eviction notices and HUD’s regulation. 
To have standing a plaintiff must establish three ele- 
ments: 

First, the plaintiff must point to a concrete injury 
which the plaintiff personally has suffered or with 

144a 

which it is imminently threatened (an “injury in 
fact”). . . . Second, the plaintiff must show that the 

alleged injury is “fairly traceable” to the defen- 
dant’s action. . . . Third, the plaintiff must demon- 
strate that a favorable decision is likely to redress 
that injury. 

Yesler Terrace Community v. Cisneros, 37 F.3d 442, 
445 (9th Cir. 1994). In addition, when a plaintiff chal- 
lenges an agency action under the APA she must show 
that “the interests she seeks to protect “are arguably 
within the zone of interests to be protected by the sta- 
tute in question.” Id. Defendants argue that none of 
the plaintiffs has suffered an injury, or is imminently 
threatened with an injury, because none has forcefully 
been evicted yet. They contend that unless and until 
the unlawful detainer actions are resolved against 
plaintiffs, plaintiffs will not have been injured and thus 
have standing to contest HUD’s regulation and OHA’s 
lease. 

Defendants ignore that OHA has served each plain- 
tiff with a three-day notice to quit. The notice itself 
terminated each plaintiff’s tenancy and ordered each 
plaintiff to vacate the premises. See Cal. Code Civ. Pro. 
§ 1161.3 (a tenant is guilty of unlawful detainer upon 
service of a three-day notice). Plaintiffs were thus 
injured at the time OHA served each with the notice. 
It was only because plaintiffs did not vacate as ordered 
to do so that OHA filed the unlawful detainer actions. 
If plaintiffs had vacated, thus eliminating the need for 
an unlawful detainer action, they would still have 
standing to sue since they would have suffered an 
injury—the loss of their apartments. In Tyson v. New 
York City Housing Authority, 369 F. Supp. 513 

145a 

(S.D.N.Y. 1974), for example, the court considered 
plaintiffs’ challenge to a housing authority’s finding that 
plaintiffs were ineligible to continue residing in public 
housing even though court proceedings had not been 
initiated to evict plaintiffs from their apartment. See 
id. at 517; see also Chavez v. Housing Authority of the 
City of El Paso, 973 F.2d 1245, 1247 (5th Cir. 1992) 
(federal court complaint filed before housing authority 
filed unlawful detainer in county court). The service of 
the three-day notice, and thus OHA’s determination 
that plaintiffs’ tenancies are over, created a “substan- 
tial controversy, between parties having adverse legal 
interests, of sufficient immediacy and reality.” Mary- 
land Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 
270, 273, 61 S. Ct. 510, 85 L.Ed. 826 (1941). 

OHA’s dismissal of the unlawful detainer action does 
not eliminate Rucker’s standing. See United States v. 
W.T Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L.Ed. 
1303 (1953); Yesler Terrace Community, 37 F.3d at 446. 
Rucker has shown that she has a reasonable expecta- 
tion that she will again be subject to the challenged 
policy. See City of Los Angeles v. Lyons, 461 U.S. 95, 
109, 103 S. Ct. 1660, 75 L.Ed.2d 675 (1983). OHA has 
not rescinded the eviction notice. Moreover, OHA dis- 
missed the unlawful detainer against Rucker without 
prejudice. Finally, paragraph 9(m) is still included in 
Rucker’s lease. 

Walker also has standing even though one of grounds 
on which OHA terminated his lease is not related to 
paragraph 9(m). OHA is still seeking to have him force- 
fully removed from his apartment on the ground that he 
violated paragraph 9(m). Walker, like the others, has 
been injured. 

146a 

b. Younger Abstention. 

Defendants also contend that the Court should dis- 
miss this action based on the Younger abstention doc- 
trine. Under that doctrine, federal courts must abstain 
where state court proceedings (1) are pending when the 
federal action is filed; (2) implicate important state 
interests; and (3) provide adequate opportunity to raise 
the federal claims. See Middlesex County Ethics Com- 
mittee v. Garden State Bar Ass’n, 457 U.S. 423, 431, 102 
S. Ct. 2515, 73 L.Ed.2d 116 (1983); Dubinka v. Judges of 
Superior Court, 23 F.3d 218, 223 (9th Cir. 1994). Such 
abstention is inappropriate here because the second and 
third criteria are not present. Defendants have not 
identified what important state interests are implicated 
by an unlawful detainer action which involves federally 
subsidized housing and the interpretation and consti- 
tutionality of a lease provision mandated by federal re- 
gulations. Moreover, the state unlawful detainer 
actions will not provide plaintiffs with an adequate 
opportunity to raise their federal APA claims as HUD 
is not a party to those actions and the federal courts 
have exclusive jurisdiction of such claims. See Aminoil 
U.S.A., Inc. v . California State Water Resources 
Control Bd., 674 F.2d 1227, 1233 (9th Cir. 1982). Accor- 
dingly, the Court has jurisdiction to adjudicate this 
action. 

C. The APA Claim. 

Under the APA a court must invalidate an adminis- 
trative regulation which conflicts with an authorizing 
statute. See I.N.S. v. Cardoza-Fonseca, 480 U.S. 421, 
447-48, 107 S. Ct. 1207, 94 L.Ed.2d 434 (1987) (“[t]he 
judiciary is the final authority on issues of statutory 
construction and must reject administrative construc- 

147a 

tions which are contrary to clear congressional intent”) 
(citation omitted). If Congress has addressed the pre- 
cise question at issue in an APA action challenging an 
agency interpretation of a statute, a court is bound by 
the intent of Congress. If, however, Congress has not 
addressed the precise question, and “the statute is si- 
lent or ambiguous with respect to the specific issue, the 
question for the court is whether” the agency’s answer 
is based on a permissible construction of the statute.” 
Chevron U.S.A., Inc. v. Natural Resources Defense 
Council, Inc., 467 U.S. 837, 842-43, 104 S. Ct. 2778, 81 
L.Ed.2d 694 (1984). 

Defendants assert that plaintiffs’ APA claim fails as a 
matter of law because Congress expressly authorized 
the termination of leases of “innocent” tenants. The au- 
thorizing statute provides that “any drug-related cri- 
minal 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 te- 
nant’s control” shall be cause for termination of the 
lease. 42 U.S.C. § 1437d(1)(5). Defendants infer from 
Congress’s silence as to the tenant’s required know- 
ledge of the drug-related criminal conduct or the 
tenant’s ability to control the drug activity that Con- 
gress specifically intended that a tenant could be 
evicted for the drug conduct of another even if she is 
not aware, and has no reason to be aware, of such 
conduct or if the tenant does not have the ability to 
control the wrong-doer’s conduct. 

The Court concludes that Congress has not ad- 
dressed the question of whether a housing authority 
may terminate the lease of an “innocent” tenant. The 
statute is silent as to whether a tenant must have 

148a 

knowledge of, or the ability to control, the drug-related 
criminal activity of a household member, guest or other 
person in order for that other person’s conduct to be 
cause for terminating the tenant’s lease. Defendants in- 
sist that by its silence Congress specifically intended 
that no knowledge or ability to control is required. Un- 
der that reasoning, however, Congress must also have 
specifically intended that the drug-related criminal acti- 
vity could occur anywhere and at anytime in order to be 
cause for termination of the lease since the statute is 
silent as to when the drug-related criminal activity 
must occur and as to what is meant by “off-premises.” 
In other words, such reasoning leads to the conclusion 
that Congress specifically intended that if the tenant 
invites a guest into her apartment and the guest en- 
gaged in drug-related criminal activity five years 
earlier on the other side of the country, the drug-re- 
lated criminal activity of the guest could be cause for 
termination, regardless of whether the tenant had any 
knowledge or reason to know of the activity. The Court 
doubts that Congress specifically intended that a tenant 
could be terminated under such unreasonable circum- 
stances. It is more likely that Congress did not address 
in the statute when the drug-related criminal activity 
must occur in relation to the termination of the lease 
just as it did not address whether a tenant must have 
knowledge of, or the ability to control, the wrong-doer’s 
conduct in order for such conduct to be grounds for 
terminating the tenant’s lease. 

The legislative history is inconclusive as to whether 
Congress intended to permit the termination of “inno- 
cent” tenants’ leases. Plaintiffs have cited legislative 
history that suggests Congress specifically did not in- 
tend to allow evictions under such circumstances. See 

149a 

S. Rep. No. 316, 101st Cong., 2d Sess. 179 (1990), 
reprinted in 1990 U.S.C.C.A.N. 5763, 5941 (“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, 101st Cong., 
2d Sess. 179 (1990) reprinted in 1990 U.S.C.C.A.N. 5763, 
5889 (“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 inno- 
cent family members would not exit [sic]”); see also 
Charlotte Housing Authority v . Patterson, 120 N.C. 
App. 552, 464 S.E.2d 68 (1995) (holding that 42 U.S.C. 
§ 1437d(1)(6 ) is silent as to the requirement of personal 
fault of the tenant and that the legislative history 
“reveals a clearly expressed legislative intent that evic- 
tion is appropriate only if the tenant is personally at 
fault for breach of the lease, i.e., if the tenant had know- 
ledge of the criminal activities, or if the tenant had 
taken no reasonable steps under the circumstances to 
prevent the activity”). 

Defendants respond that the authors of the Senate 
reports cited by plaintiffs simply did not prevail in their 
attempts to include language in the statute which 
would have protected “innocent” tenants. They cite 
authority which suggests Congress did intend to permit 
the termination of leases of “innocent” tenants. For 
example, in an expired emergency supplemental ap- 
propriations measures, Pub. L. No. 101-45, § 404(a), 103 
Stat. 97, 128-29 (1989), Congress directed the Secretary 
to issue waivers of certain administrative grievance 
procedures “as long as evictions of a household member 
involved in drug-related criminal activity shall not 
affect the right of any other household member who is 

150a 

not involved in such activity to continue tenancy.” De- 
fendants contend that the “innocent” tenants would not 
need the protections of additional grievance procedures 
if the law did not already permit the termination of 
their tenancies. They also cite floor debate on the bill 
which evinces concern over drug use in public housing 
by people “who are not on leases.” See 134 Cong.Rec. 
33148 (daily ed. Oct. 21, 1988). 

This legislative history, however, like the statute 
itself, is silent on the issue of the tenant’s knowledge of 
or ability to control the wrong-doer’s criminal behavior. 
For example, the temporary extra “protection” applied 
to household members who were not personally in- 
volved in the criminal activity, but who may have had 
knowledge or a reason to know of the drug-related 
criminal activity. The statute says nothing about te- 
nants who did not know, and had no reason to know, of 
the criminal activity. In other words, if Congress had 
intended that a tenant’s lease could not be terminated 
without the tenant having knowledge or the ability to 
control the drug-related criminal activity, the tempo- 
rary protection still would have been necessary since 
the statute would permit terminating the leases of te- 
nants who knew of the activity but were not personally 
involved. Similarly, concern about drug use by people 
who are not on leases does not equate with an intention 
to permit termination of the leases of “innocent” 
tenants. Such a concern may be addressed by terminat- 
ing the leases tenants who knowingly permit such 
criminal behavior or knowingly allow guests into public 
housing who they have reason to know may engage in 
criminal behavior. 

151a 

In sum, the legislative history is, at best, inconclu- 
sive. It is significant that defendants cannot identify 
anything in the legislative history that unambiguously 
indicates that Congress specifically intended that a 
public housing authority may terminate a tenant’s lease 
for drug-related criminal activity of someone else even 
when the tenant had no knowledge, or no reason to 
know, of the criminal activity and no ability to control 
the person for whom HUD wants to hold the tenant 
responsible. 

Since Congress has not spoken on the issue of 
terminating “innocent” tenants’ leases, the next inquiry 
is whether HUD’s interpretation of the statute as per- 
mitting termination under such circumstances is a 
permissible construction of the statute. See Chevron 
U.S.A., Inc., 467 U.S. at 842-43. The Court’s determina- 
tion must be guided by the statute itself which provides 
that public housing authorities shall not utilize leases 
which contain “unreasonable terms and conditions.” 42 
U.S.C. § 1437d(l)(1). The only federal court which has 
addressed what constitutes an “unreasonable” lease 
term in a published opinion interpreted the clause to 
mean that the lease term 

must be rationally related to a legitimate housing 
purpose. In applying this test, the crucible of 
reasonableness will be defined by the particular 
problems and concerns confronting the local housing 
authority. Lease provisions which are arbitrary 
and capricious, or excessively overbroad or under- 
inclusive, will be invalidated. 

Richmond Tenants Organization, Inc. v. Richmond 
Redevelopment and Housing authority, 751 F. Supp. 
120, 1205 (E.D. Va. 1990). The court concluded, after a 

152a 

trial on the merits, that a lease provision which prohi- 
bited tenants from the illegal use, sale or distribution of 
drugs and alcoholic beverages off the premises was 
unreasonable. See id. at 1206. 

On a motion to dismiss, the Court must accept plain- 
tiffs’ allegations as true and construe them in a light 
most favorable to the plaintiffs. See School of Business 

v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). Based 
on the allegations in the complaint, it does not appear as 
a matter of law that terminating the leases of “inno- 
cent” tenants is reasonable. The Court simply cannot 
conclude—without any evidence before it—that the 
statute is not overbroad by permitting evictions of te- 
nants who themselves had no knowledge and no reason 
to know of the drug-related criminal activity of another, 
or of tenants who had no ability to control the alleged 
wrong-doer. Accordingly, plaintiffs have stated a claim 
under the APA. 

D. The Section 1983 Claim. 

42 U.S.C. § 1983 creates a cause of action against per- 
sons who act “under color of state law” to deprive citi- 
zens of their federal rights. Plaintiffs’ section 1983 
claims against HUD and OHA must therefore be dis- 
missed as HUD and OHA are not “persons” within the 
meaning of the statute. See Hurt v . Philadelphia 
Housing Authority, 806 F. Supp. 515, 524 (E.D. Pa. 
1992). Plaintiffs argue, citing Savage v. Toan, 636 
F. Supp. 159 (S.D.N.Y. 1986), that they may state a 
claim against a federal official of HUD if HUD pres- 
sured a local entity (here, OHA) to violate the plaintiff ’s 
federal rights. See Hurt, 806 F. Supp. at 523 (to state a 
section 1983 claim against a federal official, the com- 
plaint must plead specific acts taken by the federal 

153a 

official together with local officials toward some 
unlawful end). The first amended complaint does not 
name any federal official, let alone include the required 
specific allegations. As this is defendants’ first motion 
to dismiss, the Court will grant plaintiffs leave to 
amend to add a federal official defendant and make the 
required allegations, provided they can do so consistent 
with Federal Rule of Civil Procedure 11. 

OHA’s Director Harold Green argues that the section 
1983 claim against him must be dismissed because the 
lease provision pursuant to which OHA terminated 
plaintiffs’ tenancies, paragraph 9(m), is mandated by 
federal regulations and as a result, he—a local govern- 
ment official—was not acting under color of state law. 
The federal regulations, however, merely permit ter- 
mination of the lease of an “innocent” tenant, they do 
not mandate termination of the tenancy. Thus, Green 
was acting under color of state law when he, a state 
actor, exercised OHA’s discretion to serve plaintiffs 
with three-day notices to quit. 

E. The ADA Claims. 

Defendants contend that neither Rucker nor Walker 
has stated a claim for violation of the ADA. Plaintiffs 
may not state a claim under the ADA against HUD as 
the ADA does not apply to actions taken by the federal 
government. See 42 U.S.C. § 12131(1), 12132 (omitting 
federal entities from definition of pertinent “public 
entity”; 12181-82 (prohibiting discrimination by private 
entities in public accommodation). 

The Rehabilitation Act, on the other hand, does apply 
to federal entities. Since giving plaintiffs leave to 
amend to state a claim under the Rehabilitation Act 
would be futile if they cannot state such a claim, the 

154a 

Court will address whether under the facts alleged in 
the first amended complaint plaintiffs can state such a 
claim. 

The Rehabilitation Act prohibits excluding a person 
from participation in a federal program “solely by 
reason of his or her disability.” See 29 U.S.C. § 794(a). 
To prevail on a Rehabilitation Act claim a plaintiff must 
show “(1) he is an ‘individual with a disability’; (2) he is 
‘otherwise qualified’ to receive the benefit; (3) he was 
denied the benefit of the program solely by reason of 
his disability; and (4) the program receives federal 
financial assistance.” Weinreich v. Los Angeles County 
Metropolitan Transp. Authority, 114 F.3d 976, 978 (9th 
Cir.), cert. denied, 522 U.S. 971, 118 S. Ct. 423, 139 
L.Ed.2d 324 (1997). Plaintiff Rucker argues that 
HUD’s regulation excludes her from the public housing 
program by permitting the termination of her tenancy 
for her mentally disabled daughter’s conduct. Walker 
argues that HUD’s regulation excludes him from public 
housing on account of his disability by permitting the 
termination of his tenancy for the conduct of his care- 
giver—conduct of which he was not aware and could 
not control. 

Plaintiff Rucker’s claim must fail because she does 
not allege that she has a disability. 

Plaintiff Walker’s claims similarly must fail because 
HUD’s regulation does not mandate his eviction; 
rather, it gives the housing authority discretion as to 
when to evict. The housing authority’s discretion must 
be exercised consistent with HUD’s edict that the 
housing authorities not discriminate against anyone on 
account of a disability. See 24 C.F.R. § 966.7(a) (“[f ]or 
all aspects of the lease and grievance procedures, a han- 

155a 

dicapped person shall be provided reasonable accom- 
modation to the extent necessary to provide the handi- 
capped person with an opportunity to use and occupy 
the dwelling unit equal to a non-handicapped person”). 
Accordingly, HUD’s regulation does not deprive Wal- 
ker of participation in a federal program on account of 
his disability. Plaintiffs, therefore, will not be granted 
leave to amend to state a Rehabilitation Act claim 
against HUD. 

Plaintiffs Rucker and Walker also make a claim for 
violation of the ADA against defendants OHA and 
Green. The ADA provides in relevant part that 

no qualified individual with a disability shall, by rea- 
son of such disability, be excluded from participa- 
tion in or be denied the benefits of the services, pro- 
grams, or activities of a public entity, or be sub- 
jected to discrimination by such entity. 

42 U.S.C. § 12132. To prove a public program violates 
the ADA a plaintiff must show that 

(1) he is a “qualified individual with a disability”; 
(2) he was either excluded from participation in or 
denied the benefits of a public entity’s services, 
programs or activities, or was otherwise discrimi- 
nated against by a public entity, and (3) such exclu- 
sion, denial of benefits, or discrimination was by 
reason of his disability. 

Weinreich, 114 F.3d at 978. 

As plaintiff Rucker does not and cannot allege that 
she is a “qualified individual with a disability,” she can- 
not state a claim under the ADA. 

156a 

OHA argues that plaintiff Walker similarly cannot 
state a claim because paragraph 9(m) of the lease treats 
all tenants equally. A tenant may be evicted for the 
drug-related criminal activity of a household member 
even if the tenant did not know of or could not control 
the household member’s conduct. Therefore, OHA 
argues, Walker’s inability to control his caregiver due 
to his disability is immaterial and OHA has not as a 
matter of law excluded Walker from participation in 
public housing on account of his disability. 

A tenant can ensure that she will not forfeit her 
tenancy pursuant to lease paragraph 9(m) for the con- 
duct of a household member, guest or other person 
which the tenant controls by choosing not to have any 
household members or guests. Plaintiff Walker, on the 
other hand, does not have that choice. He alleges that 
he requires a caregiver in order to live. Cf. Green v . 
Housing Authority of Clackmas County, 994 F. Supp. 
1253 (D. Or. 1998) (ADA required housing authority to 
modify “no dogs” policy to allow a hearing impaired te- 
nant to have hearing assistance dog). Based on the alle- 
gations of the first amended complaint, OHA’s eviction 
of Walker may thus violate the ADA since paragraph 
9(m) places him at more risk for forfeiture of his 
tenancy than other tenants who do not require in-home 
care. 

OHA also argues that plaintiff Walker’s disability 
cannot be reasonably accommodated other than to 
grant him a blanket exemption from paragraph 9(m) 
which, OHA contends, is not reasonable and would per- 
mit a disabled person’s apartment unit to become a 
drug haven. Based on the allegations of the complaint, 
however, the Court cannot rule as a matter of law that 

157a 

no reasonable accommodation exists and that nothing 
short of a blanket exemption from the rule prohibiting 
drug-related criminal activity will accommodate Wal- 
ker’s interests and that of the OHA and the other 
public housing tenants. See Niece v . Fitzner, 922 
F. Supp. 1208, 1218 (E.D. Mich. 1996) (concluding that 
“reasonable accommodation” is generally a question of 
fact inappropriate for resolution on a motion to dis- 
miss). 

F. State Law Claims. 

Plaintiffs also allege that paragraph 9(m) of the lease 
is unenforceable under California law as a contract of 
adhesion containing unconscionable terms. (FAC ¶ 43.) 
As a preliminary matter, as HUD is not a party to the 
contract at issue plaintiff may not state a contract claim 
against it. In any event, defendants argue that the 
unenforceable contract claim is preempted because, 
among other reasons, Congress has already mandated 
that public housing leases not contain any unreasonable 
terms. If the Court ultimately concludes that para- 
graph 9(m) is reasonable, a conclusion that it nonethe- 
less is unconscionable under state law would conflict 
with federal law. Accordingly, plaintiffs’ “unconscion- 
able” contract claim is preempted. See Gibbons v. 
Ogden, 9 Wheat. 1, 22 U.S. 1, 210, 6 L.Ed. 23 (1824); 
Free v . Bland, 369 U.S. 663, 666, 82 S. Ct. 1089, 8 
L.Ed.2d 180 (1962); Industrial Truck Ass’n, Inc. v . 
Henry, 125 F.3d 1305, 1309 (9th Cir. 1997). 

Plaintiffs also argue in their memoranda that para- 
graph 9(m) of the lease is ambiguous as to what it 
means for a tenant “to assure” that the tenant and a 
member of the tenant’s household not engage in drug- 
related criminal activity. Plaintiffs have not made the 

158a 

“ambiguous language” claim in their first amended 
complaint. 

Nonetheless, defendants argue that the proposed 
“ambiguous language” contract claim is also preempted 
since HUD’s regulations require public housing au- 
thorities to include the “to assure” language in their 
leases. As defendants must admit, however, Congress 
did not mandate that public housing leases include a 
provision requiring tenants “to assure.” That language 
was added by HUD. To the extent that language may 
make the lease provision ambiguous, plaintiffs have 
stated a claim. See American Apartment Management 
Co. v. Phillips, 274 Ill. App.3d 556, 566, 210 Ill. Dec. 639, 
653 N.E.2d 834, 840 (1995); see also Diversified Realty 
Group, Inc. v. Davis, 257 Ill. App.3d 417, 421-22, 195 Ill. 
Dec. 617, 628 N.E.2d 1081, 1084-85 (1993) (strict liability 
provision of lease, while federally mandated, must be 
read in connection with other terms of lease under 
contract law). The fact that HUD adopted the language 
is immaterial. The Court is not aware of any law which 
would allow HUD to require housing authorities to use 
ambiguous lease language and then deprive the affected 
tenants of arguing that the lease provision is 
ambiguous. To put it another way, a conclusion that the 
lease language is ambiguous will not conflict with 
Congress’s directive that drug-related criminal activity 
may be cause for termination of a lease. 

OHA argues even if the “ambiguous language’ claim 
is not preempted, the claim must nonetheless fail be- 
cause the court in City of South San Francisco Hous- 
ing Authority v. Guillory, 49 Cal. Rptr.2d 367, 41 Cal. 
App.4th Supp. 13 (1995) concluded after a trial upon 
stipulated facts that the words “to assure” in the lease 

159a 

at issue there were not ambiguous. The Guillory court, 
however, was interpreting a similar, but different, lease 
between parties not present in this lawsuit. The parties 
to this action and this Court are not bound by that 
decision. Accordingly, the Court will grant plaintiffs 
leave to amend to make a contract claim which alleges 
that paragraph 9(m) is ambiguous under state law. 

G. Claims Against Defendant Green. 

Defendant Green makes additional arguments as to 
why he cannot be individually liable in this action. 
Plaintiffs, however, are not making claims against him 
in his individual capacity. Rather, they have named in 
his official capacity only as the Director of Oakland 
Housing Authority. (FAC ¶ 2.) Since the complaint 
also names OHA, and OHA is the real party in interest, 
the claims against defendant Green in his official capa- 
city will be dismissed as redundant except for the sec- 
tion 1983 claim. See Walston v. City of Port Neches, 980 
F. Supp. 872, 878 (D. Tex. 1997). 

II. PLAINTIFFS’ MOTION FOR PRELIMINARY 
INJUNCTION. 

Plaintiffs move for an order enjoining the unlawful 
detainer action and enjoining the enforcement of 
HUD’s regulation and paragraph 9(m) of OHA’s form 
lease without evidence of a tenant’s personal partici- 
pation in, prior knowledge of, or actual ability to pre- 
vent the drug-related criminal activity. 

To be entitled to a preliminary injunction, plaintiffs 
must show “either (1) a combination of probable success 

160a 

on the merits and the possibility of irreparable harm, or 
(2) the existence of serious questions going to the 
merits, the balance of hardships tipping sharply in its 
favor, and at least a fair chance of success on the me- 
rits.” Miller v. California Pacific Medical Center, 19 
F.3d 449, 456 (9th Cir. 1994). 

A. The Merits. 

The Court concludes that plaintiffs have shown, at a 
minimum, the existence of serious questions and a fair 
chance of success with respect as to whether OHA’s 
termination of a tenant’s lease for a household mem- 
ber’s drug-related criminal activity outside of the te- 
nant’s unit is unreasonable 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. In opposition 
to plaintiffs’ motion the defendants have not offered 
any evidence as to how terminating the lease of an 
“innocent” tenant for conduct which occurred outside of 
the tenants’s apartment unit is rationally related to a 
legitimate housing goal and constitutional. 

The policy on its face appears irrational because 
evicting the tenant will not reduce drug-related crimi- 
nal activity since the tenant has not engaged in any 
such activity or knowingly allowed such activity to 
occur. To the contrary, terminating the leases of “inno- 
cent” tenants may facilitate, or least conceal, criminal 
drug-activity by ensuring that tenants who learn of 
such activity by their household members or guests will 
not report the activity to the public housing or other 
authorities. If a tenant were to report such conduct she 
would be advising the housing authority that she is in 
breach of the lease and subject to termination of her 

161a 

tenancy since her guest or household member engaged 
in drug-related criminal activity. 

The only “rational relationship” which is immediately 
apparent to the Court is that household members may 
be less likely to engage in drug-related criminal activity 
on or off the premises if they know their conduct could 
lead to the eviction of the tenant. Such a rationale, 
however, would appear to violate the first amendment 
guarantee of freedom of association. See Tyson v. New 
York City Housing Authority, 369 F. Supp. 513, 530 
(S.D.N.Y. 1974) (holding that complaint that challenges 
eviction of tenant for conduct of adult son who did not 
live with tenant states a claim for violation freedom of 
association). For example, under that rationale, one 
could argue that husbands should be held responsible 
for the crimes of their wives because the wives will be 
less likely to commit crimes if they know the govern- 
ment will punish their husbands for their crimes. In 
such a situation, and the situation present here, the 
person penalized is not being punished for his own con- 
duct and failure to police his own apartment or home, 
but rather because he lives with someone who com- 
mitted a drug-related crime while outside of the apart- 
ment or home. 

Defendants argue that with respect to drug-related 
criminal activity outside of the apartment the tenant is 
not being punished for her association with the house- 
hold member, but rather for her failure to ensure that 
the household member does not ever—in or outside the 
apartment unit—engage in drug-related criminal acti- 
vity. See Chavez v. The Housing Authority of El Paso, 
973 F.2d 1245, 1248 (5th Cir. 1992). But the same argu- 
ment could be made with respect to the husband/wife 

162a 

analogy; the husband is being punished for his failure to 
ensure that his wife does not commit a crime even if he 
had no way of knowing she was likely to commit a 
crime. To say that a person is being held responsible 
for their failure to do something necessarily implies 
that they could do something. See Tyson, 369 F. Supp. 
at 520 (“[t]here must be some causal nexus between the 
imposition of the sanction of eviction and the plaintiff ’s 
own conduct”). If they could not do something they are 
in practice being punished merely for their association 
with the wrong-doer. 

The Court is not persuaded, however, that OHA 
should be preliminarily enjoined from terminating the 
leases of tenants for drug-related criminal activity that 
occurs in the tenant’s unit. A tenant may control what 
occurs in her unit by ensuring that no one is present 
when she is not and searching her apartment and per- 
haps, her guests and household members before they 
enter. In other words, terminating the lease of a tenant 
for her failure to maintain a drug-free environment in 
her apartment holds the tenant responsible for some- 
thing over which she has some control. Eviction under 
such circumstances appears rationally related to a 
legitimate public housing goal and constitutional. 

Plaintiffs argue that the presumption that a tenant 
has control over what occurs in her apartment should 
be a rebuttable presumption for there may be situations 
when that presumption simply does not apply. Plaintiff 
Walker may present such a situation. He is unique, 
however, because it is alleged that he could not choose 
not to let his caregiver into his apartment and because 
he requires his caregiver to live as a result of his disa- 
bility. He further alleges that he would not be physical- 

163a 

ly able to search his caregiver. Thus, the ADA may re- 
quire that defendants modify their policy to accom- 
modate his disability. Accordingly, the Court will 
enjoin the eviction of plaintiff Walker on account of the 
drug-related criminal activity of the caregiver. The 
Court will not enjoin all OHA evictions for drug-related 
criminal activity in the tenant’s apartment even if the 
tenant did not know, and had no reason to know of, or 
ability to control, the drug-related criminal activity. 
The Court cautions, however, that it is not foreclosing 
plaintiffs’ claim on this issue. The Court’s ruling herein 
is based merely upon the showing that the parties have 
made thus far. 

B. The Balance of the Hardships. 

The balance of the hardships weighs strongly in favor 
of granting preliminary injunctive relief. If OHA’s pro- 
secution of the unlawful detainer actions against plain- 
tiffs or its termination of the leases of other “innocent” 
tenants are not enjoined, the plaintiffs and other “inno- 
cent” tenants will lose their homes. OHA, on the other 
hand, has not offered any evidence of the hardship it 
and the other public housing tenants will suffer if te- 
nants who themselves have not engaged in drug-related 
criminal activity are not evicted pending trial in this 
action. Such a hardship might be present if the Court 
were to enjoin OHA from terminating the leases of te- 
nants who themselves engage in drug-related criminal 
activity or who knowingly permit such activity by 
guests or household members. The Court, however, 
has not done so. 

164a 

C. The Bond. 

Federal Rule of Civil Procedure 65(c) requires “the 
giving of security by the applicant, in such sum as the 
court deems proper” before a preliminary injunction 
may issue. Nonetheless, “[t]he court has discretion to 
dispense with the security requirement where giving 
security would effectively deny access to judicial re- 
view, . . . or where suit is brought on behalf of a class 
of poor persons.” Walker v. Pierce, 665 F. Supp. 831, 
843-44 (N.D. Cal. 1987). This lawsuit is brought by 
plaintiffs proceeding in forma pauperis. 

Moreover, 
defendants have not asked for a bond. The Court will 
therefore exercise its discretion not to require a bond 
since to do so may deprive plaintiffs of their right to 
judicial review. 

CONCLUSION 

For the foregoing reasons, defendants’ motions to 
dismiss are GRANTED in part and DENIED in part as 
follows: 

1. Defendant Green’s motion to dismiss the claims 
against him is GRANTED as to all claims except the 42 
U.S.C. § 1983 claim, without leave to amend; 

2. HUD’s motion to dismiss the APA claim is 

DENIED; 

3. HUD’s motion to dismiss the section 1983 claim is 
GRANTED with 30 days leave to amend; 

4. HUD’s motion to dismiss the ADA claim is 

GRANTED without leave to amend; 

165a 

5. HUD’s motion to dismiss the state contract claim 
is GRANTED without leave to amend; 

6. OHA’s motion to dismiss the section 1983 claim is 

GRANTED without leave to amend; 

7. OHA’S motion to dismiss the ADA claim is 

GRANTED as to plaintiff Rucker without leave to 
amend and DENIED as to plaintiff Walker; and 

8. OHA’s motion to dismiss the state contract claim 
is GRANTED with 30 days leave to amend. 

The Court also concludes that plaintiffs have shown, 
at a minimum, that there is a serious question and a fair 
chance of success on the merits as to the lawfulness of 
OHA’s termination of the leases of “innocent” tenants 
for drug-related criminal activity that occurs outside of 
the tenant’s unit, and that the balance of hardships 
weighs in favor of enjoining OHA’s termination of the 
tenants’ leases under such circumstances pending trial 
in this lawsuit. Plaintiff Walker has also demonstrated 
a serious question with respect to whether OHA’s evic- 
tion of him for the drug-related criminal activity of his 
caregiver violates the ADA and that the balance of 
hardships weighs in favor of enjoining the prosecution 
of the unlawful detainer action against him on this 
ground. Accordingly, 

IT IS HEREBY ORDERED that defendant Oakland 
Housing Authority (“OHA”), its officers, agents, ser- 
vants, employees, and attorneys, are preliminarily en- 
joined, until further order of this Court, from termi- 
nating the leases of tenants pursuant to paragraph 9(m) 
of the “Tenant Lease” for drug-related criminal activity 
that does not occur within the tenant’s apartment unit 

166a 

when the tenant did not know of, and had no reason to 
know of, the drug-related criminal activity. OHA is not 
preliminarily enjoined from evicting tenants pursuant 
to paragraph 9(m) of the Tenant Lease 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 as is set forth below with 
respect to plaintiff Walker. 

IT IS FURTHER ORDERED that defendant OHA, its 
officers, agents, servants, employees, and attorneys, 
are preliminarily enjoined, until further order of this 
Court, from prosecuting the Oakland-Piedmont-Emery- 
ville Judicial District, Alameda County eviction pro- 
ceedings in Oakland Housing Authority v. Hill, No. 
013198, Oakland Housing Authority v. Lee, No. 013197, 
Oakland Housing Authority v. Walker, No. 011040 on 
the ground that the defendants in those actions violated 
paragraph 9(m) of the Tenant Lease. 

IT IS FURTHER ORDERED that plaintiffs shall not 
be required to post a bond pursuant to Fed.R.Civ.P. 
65(c) as to require them to do so would effectively deny 
them judicial review of their complaints. 

IT IS SO ORDERED. 

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APPENDIX E 

STATUTORY AND REGULATORY PROVISION 

INVOLVED 

1. Section 1437d(l) of Title 42 of the United States 
Code (Supp. IV 1998) provides: 

(l) Leases; terms and conditions; maintenance; 
termination 

Each public housing agency shall utilize leases 
which— 

(1) have a term of 12 months and shall be 
automatically renewed for all purposes except for 
noncompliance with the requirements under 
section 1437j(c) of this title (relating to 
community service requirements); except that 
nothing in this subchapter shall prevent a 
resident from seeking timely redress in court for 
failure to renew based on such noncompliance; 

(2) do not contain unreasonable terms and 
conditions; 

(3) obligate the public housing agency to 
maintain the project in a decent, safe, and 
sanitary condition; 

(4) require the public housing agency to give 
adequate written notice of termination of the 
lease which shall not be less than— 

(A) a reasonable period of time, but not to 
exceed 30 days— 

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(i) if the health or safety of other 
tenants, public housing agency employees, or 
persons residing in the immediate vicinity of 
the premises is threatened; or 

(ii) in the event of any drug-related or 
violent criminal activity or any felony convic- 
tion; 

(B) 14 days in the case of nonpayment of 
rent; and 

(C) 30 days in any other case, except that 
if a State or local law provides for a shorter 
period of time, such shorter period shall apply; 

(5) require that the public housing agency 
may not terminate the tenancy except for serious 
or repeated violation of the terms or conditions of 
the lease or for other good cause; 

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

(7) specify that with respect to any notice of 
eviction or termination, notwithstanding any 
State law, a public housing tenant shall be 
informed of the opportunity, prior to any hearing 
or trial, to examine any relevant documents, 

169a 

records, or regulations directly related to the 
eviction or termination; 

([8]) provide that any occupancy in violation of 
section 13661(b) of this title (relating to 
ineligibility of illegal drug users and alcohol 
abusers) or the furnishing of any false or 
misleading information pursuant to section 13662 
of this title (relating to termination of tenancy 
and assistance for illegal drug users and alcohol 
abusers) shall be cause for termination of 
tenancy; 

(9) provide that it shall be cause for immedi- 
ate termination of the tenancy of a public housing 
tenant if such tenant— 

(A) is fleeing to avoid prosecution, or 
custody or confinement after conviction, under 
the laws of the place from which the individual 
flees, for a crime, or attempt to commit a crime, 
which is a felony under the laws of the place from 
which the individual flees, or which, in the case of 
the State of New Jersey, is a high misdemeanor 
under the laws of such State; or 

([B]) is violating a condition of probation or 
parole imposed under Federal or State law. 

For purposes of paragraph (5), the term “drug- 
related criminal activity” means the illegal 
manufacture, sale, distribution, use, or possession 
with intent to manufacture, sell, distribute, or 
use, of a controlled substance (as defined in 
section 802 of title 21). 

170a 

2. Part 966.4(f) of Title 24 of the Code of Federal 
Regulations provides in pertinent part: 

(f ) 
Tenant’s obligations. The lease shall provide that 

the tenant shall be obligated: 

* * * * * 

(12)(i) 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. 

(ii) For purposes of subparts A and B of this part 
966, the term drug-related criminal activity means 
the illegal manufacture, sale, distribution, use, or 
possession with intent to manufacture, sell, distri- 
bute, or use, of a controlled substance (as defined in 
section 102 of the Controlled Substances Act (21 
U.S.C. 802)). 

3. Part 966.4(l) of Title 24 of the Code of Federal 
Regulations provides in pertinent part: 

(l) Termination of tenancy and eviction.— 

* * * * * 

171a 

( 2) Grounds for termination of tenancy. 

(i) The PHA may terminate the tenancy only for 
serious or repeated violation of material terms of 
the lease, such as failure to make payments due 
under the lease or to fulfill tenant obligations, as 
described in paragraph (f ) of this section, or for 
other good cause (including failure to accept the 
PHA’s offer of a lease revision in accordance with 
paragraph (l)(2)(iv) of this section). 

(ii) Either of the following types of criminal 
activity by the tenant, any member of the house- 
hold, a guest, or another person under the tenant’s 
control, shall be cause for termination of tenancy: 

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

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

* * * * * 

(5) Eviction for criminal activity.— 

(i) PHA discretion to consider circumstances. 
In deciding to evict for criminal activity, the PHA 
shall have discretion to consider all of the cir- 
cumstances 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 pro- 
scribed activity. In appropriate cases, the PHA may 
permit continued occupancy by remaining family 
members and may impose a condition that family 

172a 

members who engaged in the proscribed activity 
will not reside in the unit. A PHA may require a 
family member who has engaged in the illegal use of 
drugs to present evidence of successful completion 
of a treatment program as a condition to being 
allowed to reside in the unit. 

(ii) Notice to Post Office. When a PHA evicts an 
individual or family from a dwelling unit for 
engaging in criminal activity, including drug-related 
criminal activity, the PHA shall notify the local post 
office serving that dwelling unit that such individual 
or family is no longer residing in the dwelling unit. 
(So that the post office will terminate delivery of 
mail for such persons at the unit, and that such 
persons not return to the project for pickup of the 
mail.)