Nyc C.L.A.S.H., Inc. v. Carson

Decision Date02 March 2020
Docket NumberCivil Action No. 18-1711 (ESH)
CourtU.S. District Court — District of Columbia
Parties NYC C.L.A.S.H., INC., et al., Plaintiffs, v. Ben CARSON, Secretary of Dep't of Housing & Urban Development, et al., Defendants.

Edward A. Paltzik, Pro Hac Vice, Joshpe Mooney Paltzik, Esq., New York, NY, Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, for Plaintiffs.

James D. Todd, Jr., U.S. Department of Justice, Washington, DC, for Defendants.


ELLEN S. HUVELLE, United States District Judge

Plaintiffs, a smokers' rights organization and six individual smokers who reside in public housing, have brought this action against the U.S. Department of Housing and Urban Development ("HUD") and Ben Carson, the Secretary of HUD, challenging a regulation that bans smoking in public housing, including in individual residential units. Plaintiffs claim that the regulation violates the Fourth, Fifth, Tenth, and Fourteenth Amendments and the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701 et seq. Before the Court are the parties' cross-motions for summary judgment. For the reasons stated herein, the Court will grant defendants' motion for summary judgment and deny plaintiffs' motion.


In order to "remedy the unsafe housing conditions and the acute shortage of safe dwellings for low-income families," Congress passed the Housing Act, which provides funding to state and local agencies that develop and operate public housing ("public housing agencies" or "PHAs").1 42 U.S.C. §§ 1437, 1437c, 1437g. Congress tasked HUD with disbursing this funding and ensuring that its use furthered the purposes of the Act. Section 1437d(f)(1) provides that "[e]ach contract for contributions for a public housing agency shall require that the agency maintain its public housing in a condition that complies with standards which meet or exceed the housing quality standards established under paragraph (2)." Congress required in paragraph (2) that:

The Secretary shall establish housing quality standards under this paragraph that ensure that public housing dwelling units are safe and habitable. Such standards shall include requirements relating to habitability, including maintenance, health and sanitation factors, condition, and construction of dwellings....

42 U.S.C. § 1437d(f)(2). Thus, PHAs are required to agree to comply with HUD's housing quality standards in exchange for public housing funding. 42 U.S.C. §§ 1437d(f)(1) ; see also Form HUD-53012A § 5 (incorporating HUD regulations and any amendments to them into HUD's contracts with PHAs).

Citing to its authority under Section 1437d, HUD proposed a rule in 2015 banning smoking in federally funded public housing. Instituting Smoke-Free Public Housing, 80 Fed. Reg. 71,762 (proposed November 17, 2015). After a period of notice and comment, HUD promulgated a final rule (the "Smoke Free Rule" or the "Rule"), which became effective on February 3, 2017. Instituting Smoke-Free Public Housing, 81 Fed. Reg. 87,430. In its final form, the Smoke Free Rule bans the use of all lit tobacco products, including cigarettes, cigars, pipes, and waterpipes.2 The ban applies to

all public housing living units and interior areas (including but not limited to hallways, rental and administrative offices, community centers, day care centers, laundry centers, and similar structures), as well as in outdoor areas within 25 feet from public housing and administrative office buildings (collectively, "restricted areas") in which public housing is located.

24 C.F.R. § 965.653(a), (c).3 HUD's stated purpose for the Rule was fourfold: (1) to "improve indoor air quality in the housing;" (2) to "benefit the health of public housing residents, visitors, and PHA staff;" (3) to "reduce the risk of catastrophic fires;" and (4) to "lower overall maintenance costs." 81 Fed. Reg. at 87,431.

To effectuate the Rule, HUD amended the existing regulation setting forth lease requirements to include a requirement that all future PHA leases provide that the tenants will abide by the Smoke Free Rule. 24 C.F.R. § 966.4(f)(12). HUD also required PHAs to amend existing leases to explicitly incorporate the terms of the Rule. 24 C.F.R. § 965.655(a)(2). A tenant's failure to comply with his lease agreement, and thus, the Rule, could lead to termination of the tenancy and eviction. 24 C.F.R. § 966.4(l )(2)(i)(B). All PHAs were required to be in full compliance with the Rule by July 30, 2018. 24 C.F.R. § 965.655(b).


Plaintiffs are New York City Citizens Lobbying Against Smoker Harassment ("NYC C.L.A.S.H."), a nonprofit organization "dedicated to protecting the interests of adults who smoke," and six individuals who are smokers and who live in public housing funded by HUD.4 (Pls.' Mem. Supp. Summ. J. at 2–3, ECF No. 26-1 ("Pls.' Mem.").) They initiated this action on July 23, 2018, against HUD and Carson, in his official capacity. The complaint alleges that the Smoke Free Rule violates the anticommandeering principle of the Tenth Amendment (Counts One and Two), the Fourth Amendment's ban on unreasonable searches and seizures (Counts Three and Four), the Due Process Clause of the Fifth Amendment (Counts Five and Six), and the unconstitutional conditions doctrine (Count Seven). The complaint further alleges that the Rule is not a proper exercise of Congress' Commerce Clause power (Counts Eight and Nine), that HUD did not have the statutory authority to promulgate the Rule (Counts Ten, Eleven, and Twelve), and that the Rule is arbitrary, capricious, and an abuse of discretion (Count Thirteen).5 Plaintiffs seek vacatur of the Rule, or, alternatively, modification of the Rule to eliminate the ban on smoking in private residences.

The parties have filed cross-motions for summary judgment, which have been fully briefed. (See Pls.' Mot. for Summ. J., ECF No. 26; Defs.' Cross Mot. for Summ. J., ECF No. 33 ("Defs.' Mot."); Defs.' Resp. to Pls.' Mot. for Summ. J., ECF No. 34; Pls.' Opp. to Defs.' Cross Mot., ECF No. 37 ("Pls.' Opp."); Pls.' Reply to Defs.' Resp., ECF No. 38; Defs.' Reply to Pls.' Opp., ECF No. 40 ("Defs.' Reply").)

A. Constitutional Claims

Under Federal Rule of Civil Procedure 56(a), summary judgment will be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Because the parties' statements of facts and responses thereto reveal no genuine disputes of material fact, the Court need only determine whether either party is entitled to judgment as a matter of law.

B. APA Claims

Plaintiffs' claims brought under the APA are not governed by Rule 56 "because of the limited role of a court in reviewing the administrative record" under the APA. Alston v. Lew , 950 F. Supp. 2d 140, 143 (D.D.C. 2013). Under that statute

it is the role of the agency to resolve factual issues to arrive at a decision that is supported by the administrative record, whereas "the function of the district court is to determine whether or not as a matter of law the evidence in the administrative record permitted the agency to make the decision it did."

Sierra Club v. Mainella , 459 F. Supp. 2d 76, 90 (D.D.C. 2006) (quoting Occidental Eng'g Co. v. INS , 753 F.2d 766, 769–70 (9th Cir. 1985) ). Under the APA, a court may hold an agency action unlawful when it is, inter alia , "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law"; "contrary to constitutional right, power, privilege, or immunity"; or "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right." 5 U.S.C. § 706(2)(A)(C).

An agency rule is arbitrary and capricious

if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co. , 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983). This standard of review is "highly deferential" and "presumes the validity of agency action." Nat'l Ass'n of Clean Air Agencies v. EPA , 489 F.3d 1221, 1228 (D.C. Cir. 2007) (citation, alteration, and internal quotation marks omitted). So long as the agency "explain[s] the evidence which is available, and ... offer[s] a rational connection between the facts found and the choice made," a court will not invalidate an agency rule. Motor Vehicle Mfrs. Ass'n , 463 U.S. at 52, 103 S.Ct. 2856 (citation and internal quotation marks omitted).

An agency abuses its discretion in promulgating a rule "if there is no evidence to support the decision or if the decision was based on an improper understanding of the law." Statewide Bonding, Inc. v. DHS , 422 F.Supp.3d 35, 39 (D.D.C. 2019) (citations and internal quotation marks omitted). "Put another way, the court's role is only to consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment." Id. (citations and internal quotation marks omitted).

Finally, in assessing constitutional challenges brought under the APA, a court does not defer to the agency's pronouncement on constitutional issues; instead, it "make[s] ‘an independent assessment of a citizen's claim of constitutional right.’ " Poett v. United States , 657 F. Supp. 2d 230, 241 (D.D.C. 2009) (quoting Lead Indus. Ass'n v. EPA , 647 F.2d 1130, 1173–74 (D.C. Cir. 1980) ).


Plaintiffs argue that the Smoke Free Rule violates the anticommandeering principle of the Tenth Amendment and exceeds Congress' Spending Clause power because the Rule impermissibly...

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