Nyc C.l.a.s.h., Inc. v. Marcia L. Fudge, Secretary of Housing

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2021 Decided August 26, 2022
No. 20-5126
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
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-01711)
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.

-- 1 of 19 --

2
Before: SRINIVASAN, Chief Judge, JACKSON, Circuit
Judge, and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SRINIVASAN.
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
 Circuit Judge, now Justice, Jackson was a member of the panel
at the time the case was argued but did not participate in this opinion.

-- 2 of 19 --

3
(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
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

-- 3 of 19 --

4
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).

-- 4 of 19 --

5
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.
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.

-- 5 of 19 --

6
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.” Id.
The ordinary meaning of terms such as “safe and
habitable,” “maintenance,” “health and sanitation,” and
“condition of dwellings” embraces a rule prohibiting use of lit
tobacco products in public housing units “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. Those objects of the Rule directly relate
to the “safety,” “habitability,” and “condition of dwellings” in
public housing and to “maintenance, health and sanitation
factors” associated with those dwellings. 42 U.S.C.
§ 1437d(f)(2). Below, we consider the extent to which the
Department adequately substantiated the connection between
the Rule and those objectives when we review C.L.A.S.H.’s
arbitrary-and-capricious challenge. But on the question we
consider here of whether the Rule lies within the statute’s grant
of authority to the Department, the plain language of the statute
encompasses the Rule.
In resisting that straightforward understanding of the
statutory terms, C.L.A.S.H. relies on a presumption against
preemption in fields traditionally occupied by state and local
governments. No degree of presumption, however, supports

-- 6 of 19 --

7
the conclusion that a rule directly related to, and promulgated
to ensure, the safety, health, habitability, and maintenance of
dwelling units falls outside a statutory grant of authority to
address those precise subjects by name.
C.L.A.S.H. emphasizes that states and localities “have a
long history of regulating housing standards for the health and
safety of the community.” C.L.A.S.H. Br. 39. The Rule,
though, operates only in the context of public housing
subsidized by federal funding—a context in which the
establishment and regulation of housing standards is entrusted
by statute to a federal agency. And within that domain, the
Department’s regulations impose an array of obligations on
tenants related to the health and safety of their housing—
including requirements that tenants safely dispose of garbage
and waste, refrain from disturbing the peaceful enjoyment of
accommodations by other residents, and maintain their
property in “decent, safe, and sanitary” conditions. 24 C.F.R.
§ 966.4(f)(6), (7), (9), (11). C.L.A.S.H. does not suggest that
those kinds of requirements fall outside the Department’s
statutory authority. And C.L.A.S.H. points to no material
distinction between those requirements and the Smoke Free
Rule vis-à-vis a presumption against preemption.
C.L.A.S.H.’s reliance on the Supreme Court’s recent
decision in Alabama Ass’n of Realtors v. HHS, 141 S. Ct. 2485
(2021), is off base. There, the Court held that the Director of
the Centers for Disease Control and Prevention (CDC) almost
certainly lacked authority under the Public Health Service Act
to impose a nationwide moratorium on eviction of tenants in
response to the COVID-19 pandemic. That holding rested on
the specific terms of the statutory grant of authority, which the
Court read to be focused on measures directly relating to the
spread of the disease itself as opposed to the indirect,
“downstream connection between eviction and the interstate

-- 7 of 19 --

8
spread of disease.” Id. at 2488. And the Court emphasized the
“sheer scope of the CDC’s claimed authority,” which
encompassed private landlords nationwide. Id. at 2489. Here,
by contrast, the Smoke Free Rule falls directly—not
indirectly—within the terms of the statutory grant of authority.
And the Rule applies only in the specific setting of Department-
funded public housing, a context in which the Housing Act
expressly contemplates—indeed, requires—Departmental
involvement.
C.L.A.S.H. gets no further in relying on FDA v. Brown &
Williamson Tobacco Corp., 529 U.S. 120 (2000). There, the
Court held that the Food and Drug Administration’s statutory
authority to regulate drugs and devices did not encompass the
power to regulate tobacco products. The Court reasoned that
Congress had shown in various ways that it intended to exclude
tobacco products from the agency’s jurisdiction, including
through a history of tobacco-related legislation leaving no role
for the FDA over tobacco products and through Congress’s
repeated rejection of legislation that would have granted the
FDA the authority to regulate tobacco. Id. at 142–44, 147–49.
C.L.A.S.H. points to no such legislative indicia here. And
importantly, the Brown & Williamson Court emphasized the
breadth of authority claimed by the agency, which
encompassed the purported power to regulate an industry
constituting a significant portion of the national economy and
to ban the industry’s products altogether. Id. at 159. This case,
again, is decidedly different in that the Rule applies only to
federally-funded public housing, a domain in which Congress
has granted the Department the express authority to regulate
dwelling conditions by setting health, safety, habitability, and
maintenance standards.

-- 8 of 19 --

9
2.
C.L.A.S.H. next contends that the Department’s
promulgation of the Smoke Free Rule was arbitrary, capricious,
and an abuse of discretion. We disagree.
Under the arbitrary and capricious standard, we do not
“substitute [our] judgment for that of the agency.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins.
Co., 463 U.S. 29, 43 (1983). The standard is met as long as
there is a “rational connection between the facts found and the
choice made.” Id. And we “give an extreme degree of
deference to the agency when it ‘is evaluating scientific data
within its technical expertise.’” Kennecott Greens Creek Min.
Co. v. Mine Safety & Health Admin., 476 F.3d 946, 954–55
(D.C. Cir. 2007) (quoting Hüls Am., Inc. v. Browner, 83 F.3d
445, 452 (D.C. Cir. 1996)).
Here, the Department documented considerable evidence
substantiating the health, safety, and cost-saving benefits of the
Rule. In terms of health, the Department found “the scientific
evidence for the adverse health effects of SHS [secondhand
smoke] exposure” to be “compelling.” 81 Fed. Reg. at 87,441.
The Department discussed, for instance, a report in which the
“Surgeon General concluded that there is no risk-free level of
exposure to SHS.” Id. “In children,” the Surgeon General
found, secondhand smoke “exposure can cause sudden infant
death syndrome, and can also cause acute respiratory
infections, middle ear infections and more severe asthma.” Id.
And in adults, exposure “causes heart disease, lung cancer, and
stroke,” id., resulting in the death of some 41,000 adult
nonsmokers each year from lung cancer and heart disease, 80
Fed. Reg. at 71,763. Accordingly, secondhand smoke is
considered a known human carcinogen. 81 Fed. Reg. at
87,441–442; see generally 80 Fed. Reg. at 71,763–764.

-- 9 of 19 --

10
The Department also described the evidence
demonstrating that, because of the way secondhand smoke
moves through a building, “individuals living in multiunit
housing can be exposed to SHS even if no one smokes in their
households.” 80 Fed. Reg. at 71,764. The Department
referenced studies and surveys examining the migration of
secondhand smoke in buildings, explaining that “SHS can
move both from external hallways into apartments and between
adjacent units.” Id. Studies thus showed that children in non-
smoking apartments had substantially higher levels of a
nicotine metabolite in their blood than children living in non-
smoking detached homes. Id. And while “improvements in
ventilation systems” and “increased air sealing of units” can
help reduce the movement of secondhand smoke through a
building, “these strategies cannot fully eliminate exposure.” 81
Fed. Reg. at 87,442. “Increased air sealing could also have the
disadvantage of increasing SHS exposures to non-smokers in
the sealed units, and could increase the amount of SHS that
settles on surfaces within the sealed units.” Id.
With regard to fire safety, the Department discussed the
number of residential fires and resulting deaths and injuries
caused by smoking and observed that “[s]moking is the leading
cause of fire deaths in multiunit properties.” 80 Fed. Reg.
71,764. As for maintenance costs, the Department determined
that “the costs and benefits” are “compelling in terms of
reduction in maintenance and unit turnover costs.” 81 Fed.
Reg. 87,438. Various surveys documented the substantial costs
associated with fires and smoking damage, with the CDC
estimating that a smoke-free policy in public housing would
annually save some $43 million in renovation expenses and
$16 million in averted fire losses. 80 Fed. Reg. 71,764.

-- 10 of 19 --

11
C.L.A.S.H. asserts that the health risks from secondhand
smoke to tenants living in other units are “scientifically
dubious.” C.L.A.S.H. Br. 50–51. But C.L.A.S.H. merely
states without elaboration that the data is “inconclusive,” and
then summarily references, without any further discussion,
what it describes as a list of “studies suggesting lack of transfer
and lack of adverse health effects.” Id. at 51–52. C.L.A.S.H.
acknowledges, moreover, that its “list of studies were not in the
record” before the agency. Id. at 52. Indeed, while C.L.A.S.H.
provided certain comments to the Department during the
comment period for the Rule, it submitted no scientific
information and cited no studies supportive of its position.
N.Y.C. C.L.A.S.H. Comment Letter on Proposed Rule
Instituting Smoke-Free Public Housing, 80 Fed. Reg. 71,762
(proposed Nov. 17, 2015). And we generally do not consider
information that was not before the agency when making its
decision. See CTS Corp. v. EPA, 759 F.3d 52, 64 (D.C. Cir.
2014). C.L.A.S.H.’s conclusory statements questioning the
evidence of health risks posed by secondhand smoke, finally,
have no bearing at all on the Department’s other rationales for
the Rule—i.e., the interest in reducing the risk of catastrophic
fires and in decreasing maintenance costs.
C.L.A.S.H. submits that the Department’s stated health,
safety, and cost-related reasons for the Rule are pretextual
because the Department in fact desires only to stop tenants
from smoking, not to improve air quality in their units. There
is no support for that contention. Indeed, the Department
expressly found “it important . . . to reiterate” that the Rule
“does not prohibit individual PHA residents from smoking,”
and that “PHAs should continue leasing to persons who
smoke.” 81 Fed. Reg. at 87,432. The Department also
specifically declined to bar the use of electronic nicotine
delivery systems, reasoning in part that doing so would “not

-- 11 of 19 --

12
necessarily reduce the risk of catastrophic fires or maintenance
costs.” Id. at 87,436.
C.L.A.S.H. also contends that the Department disregarded
the risks faced by vulnerable tenants when venturing outside
their units to smoke. C.L.A.S.H. Br. 49. But the record reflects
that the Department considered those very risks and
recommended ways to alleviate them. 81 Fed. Reg. at 87,434;
id. at 87,434, 87,436.
In short, the Department adequately substantiated its
rationales for the Rule and did not act arbitrarily and
capriciously in promulgating it.
B.
We turn next to C.L.A.S.H.’s constitutional challenges,
which we find to be uniformly without merit.
1.
C.L.A.S.H. first contends that the Rule amounts to an
impermissible condition on federal spending under the
Spending Clause. That Clause gives Congress the power to
“lay and collect Taxes, Duties, Imposts, and Excises, to pay the
Debts and provide for the common Defence and general
Welfare of the United States.” U.S. Const., art. I, § 8, cl. 1.
Under the Clause, “Congress may attach conditions on the
receipt of federal funds, and has repeatedly employed the
power to ‘further broad policy objectives by conditioning
receipt of federal moneys upon compliance by the recipient
with federal statutory and administrative directives.’” Ass’n of
Priv. Sector Colls. & Univs. v. Duncan, 681 F.3d 427, 459
(D.C. Cir. 2012) (emphasis in original) (citing South Dakota v.
Dole, 483 U.S. 203, 206 (1987)).

-- 12 of 19 --

13
But the ability to attach conditions on federal spending is
“not unlimited.” Dole, 483 U.S. at 207. The Supreme Court
has set out “several general restrictions” that a spending
condition must meet: first, the condition “must be in pursuit of
the general welfare”; second, it must be “unambiguous[],” such
that recipients can make a “knowing[]” choice to participate,
“cognizant of the consequences of their participation”; third, it
must be related “to the federal interest in particular national
projects or programs”; and fourth, it must comply with any
“other constitutional provisions that may provide an
independent bar to the conditional grant of federal funds.” Id.
at 207–08 (citations and quotation marks omitted).
C.L.A.S.H. argues that the Rule infringes the second Dole
factor, which requires conditions on federal funding to be
unambiguous in a manner giving funding recipients adequate
notice of the consequences of their participation. C.L.A.S.H.
does not suggest that there is any ambiguity about whether
funding recipients must comply with the Department’s housing
quality standards. C.L.A.S.H.’s argument instead is that the
Smoke Free Rule is impermissibly ambiguous because it vests
discretion in the Department with respect to the consequences
for noncomplying PHAs. On that score, the Rule states: “If
HUD determines that a PHA is not in compliance with its plan,
HUD will take whatever action it deems necessary and
appropriate.” 81 Fed. Reg. at 87,437.
The governing contracts between the Department and a
PHA, however, clearly set forth the consequences for “a
serious and material violation of any one or more of the
covenants contained” in the agreement—which generally
include the Department’s regulations, and which specifically
include the “failure to maintain and operate the project(s) under
[the contract] in a decent, safe, and sanitary manner.” Form

-- 13 of 19 --

14
HUD-53012A, §§ 5, 17(B), J.A. 156, 158, 162–63. If a PHA
commits such a violation, the Department may take title to the
project, take possession and control of it, terminate the
contract, or seek other remedies at law. Id. § 17(E)–(F),
J.A. 163. Before exercising any such remedy, the Department
must provide a notice of default to the PHA, including a period
in which to cure, and the PHA has a right to an administrative
appeal. Id. § 17(C). Those potential penalties are longstanding
and not specific to the Rule at issue here, and any participating
PHA knows of the potential consequences when entering into
a contract. PHAs thus accept federal funds fully aware of the
potential consequences if they violate the Rule.
C.L.A.S.H. also briefly contends that the Rule infringes
the third Dole factor, which requires conditions on the receipt
of federal funds to be related “to the federal interest in
particular national projects or programs.” Dole, 483 U.S. at
207. C.L.A.S.H. characterizes the Rule as out of step with the
statute’s delegated authority to the Department. C.L.A.S.H.’s
argument in this respect thus essentially restates its argument
that the Rule lies outside the Department’s statutory authority,
which we have already addressed and rejected.
C.L.A.S.H. additionally asserts that the Rule imposes a
“financial inducement” that is “so coercive as to pass the point
at which pressure turns into compulsion.” Id. at 211 (quotation
marks omitted). But C.L.A.S.H. cites no evidence about
funding levels demonstrating that the Rule could be considered
coercive in the constitutional sense, nor did it do so before the
district court. Compare Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519, 581–82 (2012) (NFIB) (plurality opinion).
Finally, relying on the plurality opinion in NFIB,
C.L.A.S.H. contends that the spending condition is an
impermissible “shift in kind” to the preexisting public housing

-- 14 of 19 --

15
program. See id. at 583. Congress, though, may permissibly
“make adjustments” to a federal program. Id. In C.L.A.S.H.’s
view, the Rule unconstitutionally transforms PHA’s
obligations from providing safe housing infrastructure “to
micromanaging tenants’ private lives.” C.L.A.S.H. Br. 17. But
PHAs agree in their contracts to abide by future amendments
to Departmental regulations, Form HUD-53012A § 5, J.A. 158,
and the Rule is in keeping with other obligations imposed by
the Department on public housing tenants.
Under the Department’s preexisting regulations, for
instance, PHA leases already require tenants “[t]o keep the
dwelling unit . . . in a clean and safe condition,” 24 C.F.R.
§ 966.4(f)(6), and “[t]o dispose of all ashes, garbage, rubbish,
and other waste from the dwelling unit in a sanitary and safe
manner,” id. § 966.4(f)(7). Tenants must also agree “[t]o abide
by necessary and reasonable regulations promulgated by the
PHA for the benefit and well-being of the housing project and
the tenants.” Id. § 966.4(f). And tenants must further “assure
that no member of the household engages in an abuse or a
pattern of abuse of alcohol that affects the health, safety, or
right to peaceful enjoyment of the premises by other residents.”
Id. § 966.4(f)(12)(iii).
C.L.A.S.H.’s attempt to analogize the Rule to the
legislation considered in NFIB is inapt. Before the enactment
of the Affordable Care Act, the Medicaid program required
states to cover only certain discrete categories of individuals—
pregnant women, children, needy families, the blind, the
elderly, and the disabled. The Act’s Medicaid expansion,
invalidated by the Supreme Court as an impermissible “shift in
kind,” required States to expand their programs to
cover all individuals under the age of 65 with incomes below
133 percent of the federal poverty line. NFIB, 567 U.S. at 575–
76 (plurality opinion). That was viewed to amount to an

-- 15 of 19 --

16
entirely “new health care program.” Id. at 584. Unlike the
Medicaid expansion at issue in NFIB, the Smoke Free Rule
does not fundamentally transform the nature of the public
housing program or expand the population served.
Moreover, the operative inquiry concerns whether the new
condition “surpris[es] participating States with post-acceptance
or ‘retroactive’ conditions.” See id. (quotation marks and
citation omitted). Here, PHAs were on notice that the
Department might make adjustments to the terms of the
program: the contract states that it “incorporates by
reference . . . those regulations issued by HUD for the
development, modernization, and operation of public and
Indian housing projects . . . .” Form HUD-53012A, J.A. 156.
PHAs thus knew that they could be subject to future
Department regulations. And as explained, PHAs were also on
notice of the consequences resulting from violating applicable
Departmental rules and regulations.
Because we find that the Rule is a valid exercise of the
federal government’s power under the Spending Clause, we
have no need to reach C.L.A.S.H.’s arguments about the scope
of the Commerce Clause.
2.
C.L.A.S.H. contends that the Smoke Free Rule
commandeers the States in violation of the Tenth Amendment.
Under the Tenth Amendment, “the Federal Government may
not compel the States to enact or administer a federal regulatory
program.” Printz v. United States, 521 U.S. 898, 933 (1997)
(quoting New York v. United States, 505 U.S. 144, 188 (1992));
see also New York, 505 U.S. at 176–77; Murphy v. Nat’l
Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1478 (2018). The
Rule, however, leaves the choice to the States of whether to

-- 16 of 19 --

17
accept federal public housing funding and its attached
conditions. The Rule neither commands the States directly to
take any actions nor compels the involvement of state officials
in a regulatory scheme. The Rule therefore does not infringe
the Tenth Amendment’s anti-commandeering principle.
3.
C.L.A.S.H. argues that the Rule violates the Fourth
Amendment by permitting unconstitutional searches. The
Rule, however, does not contain any type of new authorization
to search premises. Instead, the Rule by its terms leaves
enforcement up to the discretion of each PHA. See 81 Fed Reg.
87,437. The Department’s preexisting regulations require
PHAs to identify the circumstances under which they may
enter the dwelling unit during the tenancy, including for routine
inspections, and to provide written notice before entering a
dwelling absent a reasonable belief that there is an emergency.
24 C.F.R. § 966.4(j). And the Department Guidebook
specifically states that “[t]enants cannot be asked to waive
their Fourth Amendment rights” and that it “does not authorize
PHAs or police departments to enter units for security purposes
unless the police department has a search warrant or they are in
hot pursuit of a suspect who has run into the unit.” J.A. 170
(emphasis added).
4.
In its last constitutional challenge, C.L.A.S.H. submits that
the Rule violates tenants’ “fundamental due-process right
[under the Fifth Amendment] to engage in legal activities
within the privacy of their homes.” C.L.A.S.H. Br. 29. But
C.L.A.S.H. identifies no authority establishing such a right.
The federal decisions C.L.A.S.H. cites involve the exercise of
First Amendment rights or “personal decisions relating to

-- 17 of 19 --

18
marriage, procreation, contraception, family relationships,
child rearing, and education.” See, e.g., Lawrence v. Texas,
539 U.S. 558, 574 (2003); Paris Adult Theatre I v. Slaton, 413
U.S. 49, 65, 69 (1973). And the state decisions C.L.A.S.H.
cites rely on state constitutional privacy protections, not federal
due process guarantees. See, e.g., Ravin v. State, 537 P.2d 494,
504 (Alaska 1975).
Because the Rule does not impinge on a fundamental right,
C.L.A.S.H. must show that the Rule’s requirements bear no
rational relationship to a legitimate state interest. E.g., Abigail
All. for Better Access to Dev. Drugs v. von Eschenbach, 495
F.3d 695, 712 (D.C. Cir. 2007). The Supreme Court has
expressly held that the protection of tenants is a legitimate state
interest. See Pennell v. City of San Jose, 485 U.S. 1, 14 (1988).
And the Rule, intended to reduce health and safety risks to
tenants, readily passes muster under the forgiving rational basis
test. See Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483,
487–88 (1955).
III.
We last briefly address C.L.A.S.H.’s appeal from the
district court’s denial of certain post-judgment motions.
C.L.A.S.H.’s post-judgment motion for reconsideration and
amendment of the judgment simply reprises arguments we
have already considered and rejected. C.L.A.S.H. also moved
under Rule 15(b)(2) to amend its complaint to introduce the
argument that the threat of losing public housing funding is
unconstitutionally coercive. The district court did not err in
denying a motion to amend the complaint brought after
judgment had already been entered (and in any event, as
explained above, C.L.A.S.H. included no evidence in its
motion showing that the threat of losing the funding at issue
reached the level of unconstitutional coercion).

-- 18 of 19 --

19
* * * * *
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

-- 19 of 19 --