NYC C.L.A.S.H., Inc. v. Fudge

• Decision Date: 26 August 2022
• Docket Number: 20-5126
• Citation: 47 F.4th 757
• Parties: NYC C.L.A.S.H., INC., et al., Appellants v. Marcia L. FUDGE, Secretary of Housing and Urban Development, in Her Official Capacity and United States Department of Housing & Urban Development, Appellees
• Court: U.S. Court of Appeals — District of Columbia Circuit

47 F.4th 757

NYC C.L.A.S.H., INC., et al., Appellants
v.
Marcia L. FUDGE, Secretary of Housing and Urban Development, in Her Official Capacity and United States Department of Housing & Urban Development, Appellees

No. 20-5126

United States Court of Appeals, District of Columbia Circuit.

Argued September 9, 2021
Decided August 26, 2022

Lawrence J. Joseph argued the cause and filed the briefs for appellants.

Lindsey Powell, Attorney, U.S. Department of Justice, argued the cause for appellees. With her on the brief were Brian M. Boynton, Acting Assistant Attorney General, and Mark B. Stern and Alisa B. Klein, Attorneys.

Before: Srinivasan, Chief Judge, Jackson^* , Circuit Judge, and Ginsburg, Senior Circuit Judge.

Srinivasan, Chief Judge:

In 2016, the Department of Housing and Urban Development promulgated a rule prohibiting the use of lit tobacco products in HUD-subsidized public housing units and their immediate surroundings. The Smoke Free Rule is meant to improve air quality within public housing, protect residents from health risks associated with secondhand smoke, reduce the risk of fires, and decrease the cost of property maintenance.

Appellants here, led by New York City Citizens Lobbying Against Smoker Harassment (C.L.A.S.H.), brought an action raising a number of statutory and constitutional challenges to the Rule. The district court rejected all of C.L.A.S.H.’s claims. We agree with the district court and thus affirm its grant of summary judgment to the Department.

I.

A.

The Housing Act of 1937 declares it to be "the policy of the United States" to "assist States and political subdivisions of States to remedy the unsafe housing conditions and the acute shortage of decent and safe dwellings for low-income families." 42 U.S.C. § 1437(a)(1)(A). The statute authorizes the Department of Housing and Urban Development to provide federal financial contributions to public housing agencies (PHAs) to develop and maintain public housing. Id. § 1437c. PHAs are state and local entities "authorized to engage in or assist in the development or operation of public housing." Id. § 1437a(b)(6)(A).

Contribution contracts for PHAs "shall require that the agency maintain its public housing in a condition that complies with ... housing quality standards" established by the Department. Id. § 1437d(f)(1). The Department's "housing quality standards" must "ensure that public housing dwelling

47 F.4th 761

units are safe and habitable." Id. § 1437d(f)(2). To that end, the standards "shall include requirements relating to habitability, including maintenance, health and sanitation factors," and "condition ... of dwellings." Id.

B.

In November 2015, relying on its authority under § 1437d(f)(2) "to ensure that public housing dwelling units are safe and habitable," the Department proposed a rule requiring PHAs to implement a smoke-free policy in public housing units. Instituting Smoke-Free Public Housing, 80 Fed. Reg. 71,762 (proposed Nov. 17, 2015). In December 2016, after a period of notice and comment, the Department promulgated the final rule. Instituting Smoke-Free Public Housing, 81 Fed. Reg. 87,430 (Dec. 5, 2016).

The Rule instructs PHAs to prohibit lit tobacco products in all indoor areas of public housing, including but not limited to living units, indoor common areas, electrical closets, and administrative office buildings. Id. at 87,444 ; 24 C.F.R. § 965.653(a). The prohibition also extends to outdoor areas within twenty-five feet of public housing and administrative buildings. PHAs retain the discretion to establish designated smoking areas outside the twenty-five-foot perimeter. 81 Fed. Reg. at 87,444 ; 24 C.F.R. § 965.653(b).

The Department explained that the Rule "is expected to improve indoor air quality in public housing; benefit the health of public housing residents, visitors, and PHA staff; reduce the risk of catastrophic fires; and lower overall maintenance costs." 81 Fed. Reg. at 87,431. The Department relied on scientific evidence documenting both the deleterious health effects of secondhand smoke and the migration of secondhand smoke along hallways and between apartments within multi-unit buildings. 80 Fed. Reg. at 71,763 –64. The Department noted that "[t]he Surgeon General has concluded that there is no risk-free level of exposure to SHS [secondhand smoke]." Id. at 71,763. With regard to the link between smoking and the risk of fires, the Department cited studies documenting the connection and establishing that "[s]moking is the leading cause of fire deaths in multiunit properties." Id. at 71,764. "Smoking is also associated with higher maintenance costs for landlords," the Department explained, including "the need for additional cleaning, painting, and repair of damaged items at unit turnover compared to non-smoking units." Id. The Department reviewed various studies and surveys estimating those additional costs.

To implement the Rule, the Department amended the regulations governing PHA leases to include the requirement that tenants agree not to smoke in restricted areas. 24 C.F.R. § 966.4(f)(12)(i)(B), (ii)(B). The regulations also require PHAs to amend existing tenant leases and applicable PHA plans in accordance with the Rule. Id. § 965.655. A tenant's failure to fulfill household obligations can be grounds for termination or eviction, although the terms of the Rule leave enforcement to the discretion of each PHA. Id. § 966.4(l ).

C.

In July 2018, C.L.A.S.H. and aligned parties filed an action against the Department, raising constitutional and statutory challenges to the Smoke Free Rule. C.L.A.S.H. argued that the Department lacked statutory authority to promulgate the Rule and that the Rule is arbitrary, capricious, and an abuse of discretion. C.L.A.S.H. further claimed that the Rule exceeds the Department's powers under the Spending and Commerce Clauses, and that it violates the Fourth, Fifth, and Tenth Amendments.

47 F.4th 762

The district court granted summary judgment in favor of the Department, rejecting all of C.L.A.S.H.’s challenges in a thorough opinion. NYC C.L.A.S.H., Inc. v. Carson , 442 F. Supp. 3d 200, 223 (D.D.C. 2020). C.L.A.S.H. now appeals.

II.

C.L.A.S.H. renews the same statutory and constitutional claims it unsuccessfully advanced in the district court. We first address the statutory challenges and then turn to the constitutional ones. We, like the district court, conclude that all the challenges lack merit.

A.

In its statutory arguments, C.L.A.S.H. contends that the Smoke Free Rule exceeds the authority granted to the Department under the Housing Act, and that the Rule is arbitrary and capricious in contravention of the Administrative Procedure Act.

1.

We first consider—and reject—C.L.A.S.H.’s contention that the Department's grant of authority under the Housing Act does not encompass the Smoke Free Rule. The Act directs the Department to "establish housing quality standards ... that ensure that public housing dwelling units are safe and habitable." 42 U.S.C. § 1437d(f)(2). And those housing quality standards must include "requirements relating to habitability, including maintenance, health and sanitation factors," and "condition ... of dwellings." I...