Beverly POWELL, Appellee v. HOUSING AUTHORITY OF THE CITY OF PITTSBURGH, Appellant.
Supreme Court of Pennsylvania.
Argued March 4, 2002. Decided Dec. 20, 2002.
812 A.2d 1201
Richard Stephen Matesic, Pittsburgh, for appellant, Beverly Powell.
Witold J. Walczak, Martha Schaff Helmreich, for appellee amicus curiae, American Civ. Liberties Union of PA.
Evalynn Welling, for appellee amicus curiae, Metropolitan Tenants Organization.
Before: CAPPY, CASTILLE, NIGRO, NEWMAN SAYLOR and EAKIN, JJ.
OPINION
Justice CAPPY.
In this case, the appellee, Beverly Powell, received tenant-based housing assistance of the certificate type under Section 8 (“Section 8“) of the United States Housing Act of 1937 (“Housing Act“), as amended,
In the Housing Act, Congress declared that it is this Nation‘s policy to employ its funds to “remedy the unsafe housing conditions and the acute shortage of decent, safe and
The PHAs admit applicants into the Section 8 tenant-based assistance programs they administer. See
Under a final rule (“Rule“) issued in 1990, HUD authorized the PHAs “to deny or terminate [Section 8 tenant-based] assistance to applicants and participants in [Section 8] programs if family members engage in drug-related criminal activities or in violent criminal activities.” 55 Fed.Reg. 28538 (July 11, 1990).2 In doing so, HUD sought to further the purpose of the Housing Act to provide eligible persons with
decent, safe, and sanitary housing by encouraging applicants for and recipients of Section 8 benefits to refrain from such activities. Id. at 28538-39.
In the late 1990‘s, the Authority, the PHA for the City of Pittsburgh, admitted Appellee into its Section 8 tenant-based assistance program (“Section 8 Program“).3 Accordingly, Appellee made arrangements to lease an apartment in the Brighton Heights area of Pittsburgh, which the Authority approved. Appellee and the apartment‘s owner executed a lease agreement for an initial term of twelve and one-half months. In January 1998, Appellee and her three sons began to reside in the assisted unit.
As a Section 8 Program participant, Appellee signed a Notice of Obligations, which set forth the obligations HUD imposed by regulation upon Appellee and her family members (“Family Obligations“).
On August 25, 1998, Appellee‘s two teenage sons carjacked a vehicle in the parking lot of a supermarket located just under a mile from Appellee‘s apartment. During its commission, Appellee‘s sons used pepper spray on the car‘s elderly occupant and physically removed her from the car. After driving the car from the lot, Appellee‘s sons left the vehicle on the street some four blocks from Appellee‘s residence.
As a result, on September 15, 1998, the Authority sent Appellee a notice that her assistance was terminated for violation of the Family Obligations. Appellee filed a grievance. A Hearing Officer in the Authority‘s Section 8 Department held an administrative grievance hearing and issued a decision on November 30, 1998. The Hearing Officer upheld the termination of Appellee‘s assistance, finding that Appellee‘s sons were involved in a carjacking; that Appellee was given notice of the Family Obligations; and that Appellee was in violation of the Family Obligations for criminal activity.
On December 16, 1998, Appellee filed a statutory appeal in the court of common pleas, contending, inter alia, that the Regulations are invalid under Section 8 and may not be used to terminate her assistance. It was Appellee‘s position that while Section 8 authorizes landlords to terminate a tenancy in the event a family member commits certain crimes, it does not allow the PHAs to terminate Section 8 assistance on such a basis. In addition, Appellee asserted that the Regulations exceeded the scope of the legislation which HUD cited to support them.4
The common pleas court applied the test the United States Supreme Court set forth in Chevron USA, Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), for analyzing the lawfulness of a federal agency‘s regulations to Appellee‘s claim that the Regulations were invalid.5 While the court rejected Appellee‘s contention that Congress never intended to permit HUD to interfere with the landlord-tenant relationship by terminating a tenant‘s Section 8 benefits based on the criminal activities of family members, the court agreed with Appellee that the scope of the Regulations was excessive.
In its Chevron analysis, the common pleas court first determined whether there was a gap in Section 8 for HUD to fill. In doing so, the court set forth the terms of three provisions which concern a landlord‘s ability to end an assisted tenancy:
The public housing statute in
The court then determined whether the Regulations filled Section 8‘s gap in a permissible fashion. The court concluded that they did not. The court held that any regulations which permit a PHA to terminate Section 8 assistance for violent criminal activity and which do not reflect the crime-based standards for terminating a lease set out in
Accordingly, the court “construed” the Regulations to mirror the terms of
On June 24, 1999, the Authority held the remand hearing. On July 9, 1999, the Hearing Officer denied Appellee‘s grievance. Based on the testimony and exhibits he received into evidence, the Hearing Officer found that the carjacking occurred at the local supermarket, which is approximately a straight line distance of 3500 feet from Appellee‘s residence and approximately 0.8 miles from her residence by car; that the total amount of time necessary for Appellee‘s sons to walk to the market, overpower the victim, take possession of the car, drive the car to another location and walk from that point back home was no more than twenty minutes; and that the victim‘s residence and Appellee‘s apartment are in the same community, and approximately 1100 straight line feet and 0.2 to 0.3 miles by car travel apart. The Hearing Officer concluded that “[g]iven the short period of time, less than twenty minutes and the short distances, less than one mile, over which these events occurred, it is not possible to give practical effect to the HUD regulations and yet consider these activities to not be within the vicinity of the Section 8 unit.” Decision of the Hearing Officer of July 9, 1999 at 12.
Again, Appellee filed a statutory appeal with the court of common pleas. Focusing on where the criminal activity occurred, not on the location of the victim‘s residence, finding that the words “immediate vicinity of the premises” refer to premises that are located in the “immediate neighborhood“, and rejecting the Authority‘s argument that violent criminal activity, regardless of its location, threatens the health, safety, or right to peaceful enjoyment of those living in the immediate
The Authority filed an appeal in the Commonwealth Court. The Commonwealth Court panel affirmed, endorsing and tracking the reasoning of the court of common pleas. Powell v. Housing Authority of the City of Pittsburgh, 760 A.2d 473 (Pa.Cmwlth.2000). The Commonwealth Court agreed with the common pleas court that “Congress did not specifically, by statute, authorize a housing authority to terminate Section 8 assistance if one of the tenants engages in violent criminal activity[]“, and that the Regulations exceed the scope of Section 8 because they allow for termination of assistance for any violent criminal behavior, even though “the statute [
The present appeal followed.9 The Authority raises several issues. First, the Authority contends that contrary to the Commonwealth Court‘s decision, the Regulations pass the Chevron test without
Appellee counters that the Regulations are entitled to no deference under Chevron because they do not contain
We turn now to the important question this appeal raises--whether the Regulations are lawful. We begin our discussion by observing that Congress empowered HUD to promulgate rules and regulations consistent with and aimed at advancing the aims of the Housing Act.
Under Chevron, a reviewing court is confronted with two questions. “First, always, is the question whether Congress has directly spoken to the precise question at issue. 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.” Chevron, 467 U.S. at 842-43, 104 S.Ct. 2778. But if the court determines that Congress has not specifically addressed the question, the court “does not simply impose its own construction on the statute, as would be necessary in the absence of an administrative interpretation. Rather, if the statute is silent 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.” Id. at 843, 104 S.Ct. 2778. Where the legislative delegation to an agency to fill a gap is implicit, rather than explicit, a court may not substitute its own construction of a statutory provision for the agency‘s “reasonable interpretation“. Id. at 844, 104 S.Ct. 2778. If a regulation is reasonable, it should not be disturbed, unless it appears from the statute or its legislative history that the agency‘s construction of the statute is not one that Congress would sanction. Id. at 844-45 & n. 14, 104 S.Ct. 2778.
With these principles in mind, we begin with the Commonwealth Court‘s decision. The test the United States Supreme Court articulated in Chevron is straightforward: under the first prong, a court must determine whether Congress has addressed the precise question at issue by examining Congress’ intent on the matter. Id. at 842, 104 S.Ct. 2778. Nevertheless, the Commonwealth Court did not do so. Nowhere in its opinion does the court substantiate the observation, meant apparently to answer Chevron‘s first question, that Congress has not specifically authorized a PHA to terminate a
Before we apply the Chevron framework, however, due to the nature of Commonwealth Court‘s ultimate determination and judgment, we must clarify the question we are deciding. Ordinarily, the “precise question at issue” under the Chevron test is cast in terms of the regulation that has come under challenge. See Chevron, 467 U.S. at 840, 104 S.Ct. 2778. This is because the agency‘s construction of a statute, which has been put at issue as unlawful, is reflected in the agency‘s regulation. See e.g., HUD v. Rucker, 535 U.S. 125, 122 S.Ct. 1230, 1232-33, 152 L.Ed.2d 258 (2002); FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 125, 120 S.Ct. 1291 (2000).
In this case, the Commonwealth Court did not hold that the Regulations are unlawful or hold that a PHA may not terminate Section 8 benefits for violent criminal behavior and preclude the application of those Regulations. Rather, the court held that the Regulations as written are inconsistent with
We now turn to applying Chevron‘s teaching. With respect to Chevron‘s first inquiry, which asks whether Congress has expressed a clear intent on the precise question at issue, the Supreme Court has instructed a reviewing court to use the traditional tools of statutory construction to ascertain whether Congress has done so. Id. at 842-43 & n. 9, 104 S.Ct. 2778. The Court has also instructed that a reviewing court should not confine itself to examining any statutory provision in isolation, but should interpret the statute as a “symmetrical and coherent regulatory scheme.” FDA v. Brown, 529 U.S. at 132-33, 120 S.Ct. 1291 (quotation omitted). Moreover, because subsequent acts can shape or focus the range of plausible meanings that a statute may have had at the time it was enacted, a reviewing court should consult later legislation, particularly where Congress has spoken more specifically to the topic at hand. Id. at 133, 120 S.Ct. 1291.
Both the Authority and Appellee contend that Chevron‘s first prong is satisfied. While the Authority claims that Congress has clearly shown that a PHA may end the benefits
We turn first to Appellee‘s position. Appellee begins by stating that in public housing, where benefits are not “mobile“, a tenant‘s eviction for breach of the lease also amounts to a loss of benefits. (Appellee‘s Brief at 16.) Appellee then states that HUD has seen to it that Section 8 assistance likewise terminates upon breaches of an assisted lease agreement.12 Based on these statements, Appellee concludes that “Congress and HUD [have recognized] that terminations of housing assistance are effected through lease enforcement.” (Appellee‘s Brief at 16) (emphasis in original). Thus, Appellee asserts, Congress intends for the crime-based standards in
At first glance, Appellee‘s position has a certain logical appeal. Upon closer scrutiny, however, it remains unsupported. The process of ascertaining Congress’ intent, of course, begins with the language of the statute. Consumer Product Safety Comm‘n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 64 L.Ed.2d 766 (1980). In this regard, Appellee does not point to any language in Section 8 or in another federal housing statute which shows that Congress intends for the termination of an assisted lease to represent the sole means of terminating Section 8 assistance or that
Significantly, Appellee‘s basic premise, that Congress intends for the termination of Section 8 benefits by a PHA to amount to no more than “lease enforcement“, is belied by
As to the Authority‘s assertion that the statutes governing Section 8 housing plainly evidence Congress’ intent to permit a PHA to terminate the assistance of violent criminal offend-
Looking to the history of Section 8 and related legislation for guidance, we observe that when HUD issued the Rule in 1990, Congress had not referred to violent criminal activity as a category of crime nor had it addressed a PHA‘s authority to deny or terminate Section 8 benefits. Then, in 1998, Congress spoke to these matters, enacting
14. Section 577 of the statute that governs “Residency and Service Requirements in Federally Assisted Housing” provides in pertinent part:
(a) In general. Notwithstanding any other provision of law, a public housing agency or an owner of federally assisted housing (as applicable) shall establish standards or lease provisions for continued assistance or occupancy in federally assisted housing that allow the agency or owner (as applicable) to terminate the tenancy or assistance for any household with a member--
(1) who the public housing agency or owner determines is illegally using a controlled substance;
or
(2) whose illegal use (or pattern of illegal use) of a controlled substance, or whose abuse (or pattern of abuse) of alcohol, is determined by the public housing agency or owner to interfere with the health, safety, or right to peaceful enjoyment of the premises by other residents.
We cannot accept the Authority‘s position. The first prong of Chevron asks whether Congress “has directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842, 104 S.Ct. 2778. We are simply unable, as the Authority urges, to
Thus, we conclude that under Chevron, Congress has not plainly and unambiguously expressed its intent as to whether a PHA may terminate Section 8 assistance based on a family member‘s violent criminal activity without having to meet
Accordingly, we turn to the second prong of the Chevron test: are the Regulations, insofar as they do not burden a PHA with having to make such a showing before it may terminate assistance, a “permissible construction of the statute.” Chevron, 467 U.S. at 843, 104 S.Ct. 2778. As to the second prong, the United States Supreme Court has instructed that a reviewing court “need not conclude that the agency‘s construction was the only one it permissibly could have adopted to uphold the construction, or even the reading the court would have reached if the question initially had arisen in a judicial proceeding.” Id. at 843 n. 11, 104 S.Ct. 2778. The Court has made it clear that “[w]hen a challenge to an agency
We begin with Appellee‘s argument on Chevron‘s second prong. Appellee first contends that HUD‘s interpretation of Section 8 is entitled to no deference because HUD‘s rationale for the Rule is inadequate. In this regard, Appellee challenges a response HUD made when issuing the Rule in 1990 to one particular public comment. That comment asked why the Rule did not reflect the policies in
In its response, HUD pointed out that
The Department has not limited the proscribed activities under this rule to activities carried out on or near the premises. Section 8 certificates and housing vouchers are very mobile forms of housing assistance. The holder can lease suitable housing with federal assistance anywhere in the PHA‘s jurisdiction, in the metropolitan area, or in a contiguous metropolitan area. If a PHA were [only] permitted to terminate assistance for activities on or near the assisted premises, the deterrent effect of this policy would be substantially diminished because the family could lease
housing outside the area where the family member engages in the proscribed activities.
Id. at 28539-40. Appellee roundly criticizes HUD for “invok[ing] the mobility concept” of Section 8 assistance in this passage and then “commit[ing] a logical sleight of hand, as it switches to a different, wholly irrelevant definition of mobility ... that of a tenant who lives in one community, and commits crimes in another.” (Appellee‘s Brief at 35).
While we would agree that the adequacy of an agency‘s reasoning when engaged in rule-making bears upon a court‘s evaluation of the agency‘s statutory interpretation, see Federal Election Comm‘n v. Democratic Senatorial Campaign Comm., 454 U.S. 27, 37, 102 S.Ct. 38, 70 L.Ed.2d 23 (1981), we find no merit in Appellee‘s argument. In our view, HUD‘s rationale makes sense, when considered in context. In the Rule, HUD granted a PHA the authority to deny Section 8 benefits to violent criminal actors. If HUD had burdened a PHA‘s authority to terminate such benefits with
Appellee also asserts that the Regulations are flawed because it gives a PHA broader powers in connection with Section 8 housing, where a PHA is a mere administrator, than it does in connection with the public housing statute, where a PHA is both administrator and landlord. Here too, Appellee misses the mark. As HUD observed when issuing the Rule, private owners who do not live on the premises or who face
In essence, this and Appellee‘s other argument against the Regulations really focus on the wisdom of HUD‘s judgment. As Chevron teaches, however, such challenges are insufficient to deny deference to an agency‘s administrative interpretation of a statute. Chevron, 467 U.S. at 866, 104 S.Ct. 2778. Rather, the deference this court owes to the Regulations HUD has promulgated depends on “whether [HUD‘s policy] is a reasonable choice within a gap left open by Congress....” Id. As we noted, it is this Nation‘s policy in the Housing Act to use public resources to alleviate the shortage of decent, safe and affordable dwellings for low income families, and to aid the PHAs in the execution of their duties. See
This brings us to whether the Rule and the Regulations would be acceptable to Congress. Chevron, 467 U.S. at 844-45 & n. 14, 104 S.Ct. 2778. In this vein, we find it significant that Congress, “‘presumed to be aware‘” of HUD‘s interpretation of Section 8 in the Rule and Regulations, has done nothing to change the statute, even though it has amended Section 8 several times in other ways since HUD issued them. See HUD v. Rucker, 535 U.S. 125, 122 S.Ct. at 1234 n. 4, 152 L.Ed.2d 258 (quoting Lorillard v. Pons, 434 U.S. 575, 580, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978)); Explanatory notes to
Accordingly, we hold that a PHA may terminate Section 8 benefits for the violent criminal activity of a family member without having to prove that the violent criminal activity threatens the health, safety, or right to peaceful enjoyment of the premises by other residents or threatens the health, safety, or right to peaceful enjoyment of their residences of persons residing in the immediate vicinity of the Section 8 premises.17
The judgment of the Commonwealth Court is reversed, and this case is remanded to the court of common pleas for further proceedings consistent with this opinion, including a determi-
Chief Justice ZAPPALA did not participate in the consideration or decision of this case.
Justice NIGRO and Justice SAYLOR file concurring opinions.
Justice NIGRO, concurring.
I join in the holding and analysis of the majority, and write separately solely to emphasize that although HUD regulations authorize a PHA to terminate Section 8 benefits for violent criminal activity of a family member, they by no means require PHAs to do so. Compare
may consider all relevant circumstances such as the seriousness of the case, the extent of participation or culpability of individual family members, mitigating circumstances related to the disability of a family member, and the effects of denial or termination of assistance on other family members who were not involved in the action or failure.
impose, as a condition of continued assistance for other family members, a requirement that other family members who participated in or were culpable for the action or failure will not reside in the unit. The PHA may permit other
Given these additional regulations, I believe that it is incumbent on PHAs to consider “all relevant circumstances” before terminating a family‘s assistance based on the errant conduct of less than all of its members.
Justice SAYLOR, concurring.
I join the majority opinion generally, subject to the following:
First, I read the majority‘s issue-narrowing logic, see Majority Opinion, at 1209-10, as merely an indication that the Court is limiting its review to the correctness of the reasoning of the Commonwealth Court and common pleas court, leaving open other questions concerning the validity of the HUD regulations at issue and the underlying administrative action of the PHA in terminating Appellee‘s Section 8 benefits.
Second, although I acknowledge that, like the majority, the United States Supreme Court has employed the yardstick of “reasonableness” in delimiting the class of substantive regulations that are due the greatest judicial deference, I believe that, given the broader context, it would be preferable to employ the term “reasoned.” In this regard, where, as here, there is an express Congressional delegation of lawmaking authority to an administrative agency, see Majority Opinion, at 1208 (citing
Phrased as such, I agree with the majority that HUD‘s legislative regulations in this area are reasoned, a permissible application of delegated authority under the Housing Act, and not arbitrary, capricious, or ultra vires on their face, where: national housing policy is intended to remedy unsafe housing conditions, see
Notes
Section 8 assistance has been of two types: certificate and voucher. With a certificate, the rental subsidy is generally based on the actual rent of the assisted unit; with a voucher, the rental subsidy is determined by formula.
Appellee indicates, and the Authority does not disagree, that she receives certificate assistance. (Appellee‘s Brief at 14 n. 21). Unless indicated otherwise, the words “assistance“, “benefits” and “subsidies” as used in this opinion refer to Section 8 tenant-based assistance of the certificate type.
A federal agency which administers a Congressionally created program is permitted to make regulations to fill gaps left by Congress. If the regulation is simply filling a gap, the regulation shall be upheld unless it is clearly outside the scope of what Congress would have intended. If on the other hand, Congress directly addressed the issue, the court shall strike down any regulation that conflicts with Congress’ specific intent.
Common Pleas Court Opinion of May 25, 1999 at 5.***
(d) Required provisions and duration of contracts for assistance payments; waiver of limitation. (1) Contracts to make assistance payments entered into by a public housing agency with an owner of existing housing units shall provide (with respect to any unit) that--
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(B)(iii) during the term of the lease, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of the premises by other tenants, any criminal activity that threatens the health, safety, or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises, or any drug related criminal activity on or near such premises, engaged in by a tenant of any unit, any member of the tenant‘s household, or any guest or other person under the tenant‘s control, shall be cause for termination of the tenancy....
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(c) Criminal activity. Any 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:
(1) Any criminal activity that threatens the health, safety or right to peaceful enjoyment of the premises by other residents;
(2) Any criminal activity that threatens the health, safety or right to peaceful enjoyment of their residences by persons residing in the immediate vicinity of the premises; or
(3) Any drug-related criminal activity on or near the premises.
According to Appellee, since Section 8 assistance attaches to the tenant and continues upon eviction, HUD promulgated regulations allowing the PHAs to terminate Section 8 assistance for lease violations so that benefits terminate in such circumstances. In 1998, one of the Family Obligations provided that a family may not commit any serious or repeated violations of the lease.
We set forth Appellee‘s position for argument‘s sake. We do not consider the merits of Appellee‘s assertions concerning HUD‘s motivation for these regulations.
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(c) Authority to deny admission to criminal offenders. Except as provided in subsection (a) [Ineligibility because of eviction for drug crimes] and (b) [Ineligibility of illegal users and alcohol abusers] and in addition to any other authority to screen applicants, in selecting among applicants for admission to the program or to federally
assisted housing, if the public housing agency or owner of such housing (as applicable) determines that an applicant or any member of the applicant‘s household is or was, during a reasonable time preceding the date when the applicant household would otherwise be selected for admission, engaged in any drug-related or violent criminal activity or other criminal activity which would adversely affect the health, safety, or right to peaceful enjoyment of the premises by other residents, the owner, or the public agency employees, the public housing agency or the owner may--
(1) deny such applicant admission to the program or to federally assisted housing....
(o) Voucher program.
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