Opinion by Judge O'SCANNLAIN; Dissent by Judge 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.
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 housing 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 Housing: 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 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 (reporting 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 Community 34-35 (Fall 1996) (discussing the problem of drugs and crime in public housing).
In 1988, Congress took decisive steps towards improving 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 drugs," and that "public and other federally assisted low-income housing in many areas suffers from rampant drug-related
42 U.S.C. § 1437d(l)(5) (1989).
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).
In 1991, HUD issued regulations implementing section 1437d(l)(5). One such regulation, 24 C.F.R. § 966.4(f)(12)(i)(B), provides:
24 C.F.R. § 966.4(f)(12)(i)(B). Another regulation similarly provides:
Id. § 966.4(l)(2)(ii)(B).
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 behavior 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 behavior 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 contractual 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 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 leaseholder 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. Finally, 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 unequivocally 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 consideration in light of the equities of the tenant's particular 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).
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 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
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 development'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 incapable 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.
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.
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.
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 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 hardships 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.
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 erroneous 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); Planned 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).
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
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 disagreed 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).
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 termination of tenancy." 42 U.S.C. § 1437d(l)(5). The plain statutory language thus makes clear that Congress intended that there be cause for termination of tenancy when three conditions are met: there is (1) drug-related 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 contested; 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 "control" 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 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
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 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.
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 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 implications 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
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 meaning, 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 additional sentence stating "Yes, we really do mean `any.'" Even without such a statement, binding precedent instructs that, just as "no" means "no," "any" really does mean "any."
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.
Notwithstanding the expansiveness of the statutory language, Tenants strenuously attack the propriety of evicting "innocent tenants" and claim that a monumental 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 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 authorizes 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 discretion 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 responsibility 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.
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 arguments 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 formulating general principles to guide eviction determinations; 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 decisions to PHAs. Of particular relevance to the case at hand is 24 C.F.R. § 966.4(l)(5)(i):
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 individualized basis and to consider alternative remedies. This policy is further embodied in a HUD publication entitled "One Strike and You're Out": Policy in Public Housing:
Office of Policy Dev. & Research, U.S. Dep't of Hous. & Urb. Dev., supra, at 8.
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 practices 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)).
Our conclusion that section 1437d(l)(5) authorizes termination of tenancy regardless of the tenant's knowledge of the drug-related criminal activity is reinforced by two related statutory provisions.
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 original eviction. 42 U.S.C. § 1437d(c)(4)(A)(iii).
The second statute that lends credence to our interpretation of the public housing lease statute is a civil forfeiture statute which, inter alia, makes leasehold interests subject to forfeiture when used to commit drug-related criminal activities. See 21 U.S.C. § 881(a)(7).
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 government,
Second, to seize property under the forfeiture provision, the federal government need only show probable cause that the property was used for prohibited purposes, 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 federal 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 permitted, drug-related criminal activity — is an awesome power, which both Congress and the Supreme Court
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 leaseholder. 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).
Tenants rely heavily on another related statutory provision, 42 U.S.C. § 1437d(l)(1), which prohibits PHAs from including "unreasonable terms and conditions" in their leases. 42 U.S.C. § 1437d(l)(1).
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
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 families must cope on a daily basis. See id. Congress could reasonably have decided not to create an "innocent tenant" exception to avoid transforming efficient unlawful 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, distributed, manufactured, or possessed a controlled substance 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 disputes. 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.
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 substances in their apartments is [the landlord's] most effective, if not its only effective, means of eliminating drugs and providing a safe environment.").
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
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 parents" liable for their children's actions — to encourage 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 context, 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:
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 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.
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. denied, ___ U.S. ___, 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 interpretation." Leisnoi, Inc. v. Stratman, 154 F.3d 1062, 1070 (9th Cir.1998); see also id. ("[T]he use of legislative 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 Committee ("Committee"):
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, 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 legislative 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.
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, household 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 Amendment, 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.
According to the district court, the only rational objective served by authorizing
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 because 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 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 substantive 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 because of their failure to comply with a lease provision by which they agreed to abide.
We turn then to the right to intimate association under 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 Tenants' right to intimate association under the Fourteenth Amendment.
Although "the Constitution protects against unjustified 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 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 housing lease statute is not to burden tenants' intimate association rights, but to promote the weighty governmental interest of providing a safe, drug-free environment for low-income families. Because Tenants have not shown that enforcement of the lease "burdens a fundamental right by `directly and substantially' interfering
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 payments, 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 to, the government." Browning-Ferris Indus. of Vermont, 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 ratification 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 payments, 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 payment 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., 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.
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:
42 U.S.C. § 12182(b)(2)(A)(ii). A HUD regulation similarly focuses on the need to provide disabled persons with reasonable accommodation:
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 paraphernalia 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.
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 remand 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-grandchild. Appellants assert as a ground for her eviction that Ms. Rucker's mentally disabled daughter possessed 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. Appellants 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 possession. Appellee Barbara Hill is a 63 year-old woman who 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 eviction 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 grandson'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 paraphernalia in his apartment. Appellants do not allege that Mr. Walker himself engaged in drug-related activity.
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 activity. 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 home, many American families would be made homeless.
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.
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
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-household 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:
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 criminal activity on or near such premises . . . shall be cause for termination of tenancy" (emphasis added) means that no one, even an innocent tenant, is excluded. 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.
The majority reaches its conclusion by construing "any drug-related criminal activity" to mean "all" such activity without limitation. But such an all-encompassing 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 possible. See Lewis v. United States, 523 U.S. 155, 158-160, 118 S.Ct. 1135, 1139, 140 L.Ed.2d 271 (1998) (an all-encompassing reading of
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 termination 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 engaging 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:
Since all the subparagraphs specifying lease requirements under § 1437d(l) are joined with the connector "and" rather than "or," any construction of subparagraph (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 reasonableness 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 "ham-string" 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 relief to protect such a tenant (even if she was not personally involved in the drug-related activity).
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 housing, 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).
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 legislation, 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 subparagraph (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 Report
It is well established in this circuit that "the official committee reports provide the authoritative expression of legislative intent" when examining legislative history.
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 provision and the amendment to the anti-forfeiture provision 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 interest)" into the text of the pre-existing statute. As a result of the amendment, the Controlled Substances Act now provides, in relevant part:
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 Housing Act and the anti-forfeiture provision of the Controlled Substances Act. We must understand, and make consistent, section 5101 (the lease provision) and section 5105 (the amendment to the anti-forfeiture provision) of Public Law 100-690, which amended these two Acts. It is axiomatic that Congress must have 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 forfeitures to the federal government and that the lease provision deals with forfeitures to local housing authorities. The majority recognizes that there "may be a constitutional bar to forfeiture
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 government because of the federal government's temptation to enrich itself through forfeiture proceedings. This hypothesis is unsupported by the text, context, or history of the legislation, and I view it as an inappropriate attribution 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 government 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 majority's argument is that leasehold interests are typically terminated by eviction, and that the 1988 Act specifically 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 therefore 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 burden of proof for demonstrating knowledge is not relevant.
I am unwilling to assume that the constitutional concerns 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 comparable federal drug-related forfeiture statute applicable to local governments that Congress could have amended with comparable ease; indeed, there may even be some question about the scope of Congress' constitutional 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 constitutionality of forfeitures of the leaseholds of innocent tenants to local governments. And it certainly does not mean that Congress intended that the
C. Language in Related Statutory Provisions
1. Waiver of Disqualification Period for Preferences
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).
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 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 waiving 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 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
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 constitutional 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.
The majority further contends that the Excessive Fines Clause is inapplicable "because we are not 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 question 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
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 centuries of forfeiture law.
In the present case, the majority allows forfeiture of the leasehold of innocent ten-ants 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.
II. Eviction of Mr. Walker
Mr. Walker's case contains an element not present in the cases of Ms. Rucker,
Mr. Walker claims that his disability prevented him from complying with the anti-drug policy without a reasonable accommodation. The evidence about the extent 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 conflicting 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 of the anti-drug policy is not a reasonable accommodation. 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 reasonable. 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.
For the foregoing reasons, I respectfully dissent from the majority's construction of this statute.
Id. § 11901(3)-(5).
Although the dissent is correct to point out that the statute does not explicitly state what illegal drug-related activity constitutes 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).
Id. (1996) (emphases added). Congress significantly revised this statute in 1996 and again in 1998. See id. (1999); id. (1997).
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.