NYC C.L.A.S.H., Inc., et al. v. Marcia L. Fudge, Secretary of Housing and Urban Development, et al.

Public-housing tenants challenge an in-unit ban on smoking imposed on public housing authorities as a condition of federal funding by the Department of Housing and Urban Development (“HUD”) under decades-old authority to ensure “safe and habitable” housing. On cross motions for summary judgment, the parties briefed and the trial court granted summary on an unpleaded Spending-Clause claim, finding the ban insufficiently coercive based on a lack of evidence (i.e., tenants did not prove coercion, but HUD did not prove non-coercion). Applying “extreme deference” to agency expertise and the broad literal scope of “safe,” the court of appeals affirmed notwithstanding HUD’s disclaimer of relevant expertise, clear-statement rules under the federalism canon and Spending Clause, the emerging “major-questions doctrine” and constitutional avoidance for a case with significant additional policy and constitutional issues (e.g., Fourth and Fifth Amendment concerns given a nexus with the home, limited congressional delegations on smoking policy). The questions presented are:

1. Whether HUD lacks authority to adopt or enforce its smoking ban as a means to ensure “safe and habitable” public housing.

2. Whether the lower courts erred in granting HUD summary judgment on the smoking ban’s compliance with the Spending Clause without any evidence that the Smoking Ban is not coercive.

3. Whether the lower courts erred by ignoring non-record evidence in constitutional adjudication.

4. Whether extra-pleading issues or evidence briefed and reached on summary judgment are “tried” by implied consent under FED. R. CIV. P. 15(b)(2).