                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                          Assigned on Briefs October 11, 2010

                     CHERYL BROWN GIGGERS, ET AL.
                                 v.
                   MEMPHIS HOUSING AUTHORITY, ET AL.

               Direct Appeal from the Circuit Court for Shelby County
                     No. CT-000896-03     Kay S. Robilio, Judge


              No. W2010-00806-COA-R9-CV - Filed December 14, 2010


This is the second appeal of this wrongful death action, arising from a fatal shooting of a
tenant at a Memphis public housing property. This Court granted Appellant, Memphis
Housing Authority’s, Tenn. R. App. P. 9 interlocutory appeal to address the trial court’s
denial of summary judgment in favor of the Appellant. Finding that Appellees’ “failure to
evict” claim is preempted by 47 U.S.C. §1437, and that Appellant retains its sovereign
immunity under the discretionary function exception to the Tennessee Governmental Tort
Liability Act, we reverse and remand for entry of summary judgment in favor of Appellant.
Reversed and remanded.

 Tenn. R. App. P. 9. Interlocutory Appeal; Judgment of the Circuit Court Reversed
                                   and Remanded

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.

C. Wesley Fowler, Memphis, Tennessee, for the appellant, Memphis Housing Authority.

Archie Sanders, III, Memphis, Tennessee, for the appellees, Cheryl Brown Giggers, Charles
C. Brown, Jr., Angela Brown, and JoAnn Fisher.

Joe Lee Wyatt and William J. Wyatt, Memphis, Tennessee, for the appellee, Scruggs Security
and Patrol, LLC.

                                         OPINION

       The relevant facts are undisputed and are set out in this Courts’ opinion, Giggers, et
al. v. Memphis Housing Authority, No. W2006-00304-COA-R3-CV, 2007 WL 2216553
(Tenn. Ct. App. Aug. 3, 2007). On March 7, 2002, Charles Cornelius Brown, Sr.
(“Decedent”) was a resident of an apartment complex located at 741 Adams Avenue, in
Memphis, which was owned and operated by the Memphis Housing Authority (“MHA” or
“Appellant”) when he was fatally shot. Giggers, 2007 WL 2216553, at *1. The shooter,
L.C. Miller, who was approximately seventy years old at the time of the shooting, was also
a tenant at the Adams Avenue property. On the day of the shooting, Mr. Miller had been
asked to stop “using bad language and cursing” by a security guard for Scruggs Security &
Patrol, LLC (“Scruggs”). Id. Scruggs and the MHA had a contract, under which Scruggs
provided security for the Adams Avenue property. Id. When the security guard briefly left
his station, Mr. Miller went back to his apartment, apparently for the purpose of obtaining
a rifle. When the security guard returned, Mr. Miller began shooting at him. The Decedent,
who was in the manager’s office at the time, was struck and killed by one of the shots fired
by Mr. Miller. Id.

        On February 18, 2003, the Decedent’s surviving children, Cheryl Brown Giggers,
Charles C. Brown, Jr., and Angela G. Brown, and the Decedent’s sister, Joann Fisher,
(together with Ms. Giggers, Mr. Brown, Jr., and Ms. Brown (“Plaintiffs”) filed a complaint
against the City of Memphis (the “City”) and the MHA, asserting claims for the wrongful
death of the Decedent as a result of negligence, and for breach of contract pursuant to the
Decedent’s lease agreement with the MHA. Giggers, 2007 WL 2216553, at *1. Plaintiffs
alleged negligence by the defendants in: (1) failing to properly screen Mr. Miller prior to
leasing an apartment to him; (2) failing to enforce internal admissions and occupancy policies
with regard to Mr. Miller; (3) allowing Mr. Miller to possess a rifle; and (4) failing to
properly assess an allegedly known threat or risk to the other tenants of the public housing
property. Id. Plaintiffs further asserted that the MHA had breached its lease agreement with
Mr. Brown by failing to keep or maintain a “safe condition” at the premises. The City filed
a motion to dismiss, or alternatively, for summary judgment, arguing that it was not a proper
party to the litigation and that the MHA existed as a separate entity. Id. On September 12,
2003, the trial court entered an order, dismissing the City from the litigation and granting
leave to Plaintiffs to amend their complaint. Id.

        On September 16, 2003, Plaintiffs amended their complaint to name the MHA as the
sole defendant. Giggers, 2007 WL 2216553, at *2. On April 28, 2004, the MHA filed its
answer, in which it denied all liability and set forth several affirmative defenses. On May
27, 2004, Plaintiffs filed a second amended complaint, adding Scruggs (together with
Plaintiffs, “Appellees”) as a defendant and alleging that Scruggs had negligently failed to
secure the property pursuant to its security contract with the MHA. Id. On August 20, 2004,
Scruggs filed its answer, in which it denied liability and set forth various affirmative
defenses. Scruggs also asserted a cross-claim against the MHA, alleging that the MHA was

                                             -2-
negligent in screening Mr. Miller prior to his tenancy and in renting an apartment to him. Id.
By its cross-claim, Scruggs sought indemnity in defending the litigation pursuant to the
provisions of its contract with the MHA. Id. The MHA, in turn, filed its own cross-claim
against Scruggs, alleging that Scruggs was vicariously liable for the negligent acts of its
security guard, and that the MHA was entitled to indemnity from Scruggs pursuant to their
security contract. Id.

        On February 11, 2005, the MHA filed a motion to dismiss or for summary judgment
as to all claims against it. Giggers, 2007 WL 2216553, at *2. On October 25, 2005,
Plaintiffs opposed the MHA’s motion for summary judgment, asserting, among other things,
the following facts: (1) Mr. Miller was charged with aggravated assault in 1979; (2) in June
1977, Mr. Miller pled guilty to firing a weapon within the city limits of Memphis; (3) in May
1998, Mr. Miller, while a resident of the property at 741 Adams Avenue, hid behind some
bushes in an attempt to stab another tenant with a knife and was, consequently, charged with
aggravated assault. Id. at *3. Based upon the foregoing averments, Plaintiffs argued that the
MHA had notice of Mr. Miller’s propensity for violence, and specifically that it had actual
notice of the 1998 incident, where Mr. Miller had attempted to stab another tenant. Id.

        On October 28, 2005, the trial court held a hearing on the MHA’s motion for summary
judgment. Giggers, 2007 WL 2216553, at *3. In written correspondence to the parties,
dated November 28, 2005, the trial court held that neither the internal policies of the MHA,
nor the contents of Mr. Miller’s criminal background check created any duty to the Plaintiffs
under these circumstances. Moreover, after observing that a policy excluding those with
prior records would result in a “massive underclass of ex-convicts homeless due to an
inability to find housing,” the trial court rejected Plaintiffs’ argument that there was an
affirmative duty on the part of the MHA to conduct a criminal background check on
prospective residents. Finally, the trial court held that the Plaintiffs were not entitled to
recover as third-party beneficiaries for breach of the terms of the lease agreement between
the MHA and Mr. Miller. Id. at *4.

       On direct appeal to this Court, Plaintiffs argued that, because the MHA had some
awareness of Mr. Miller’s propensity toward violence and, therefore, had a duty to take
reasonable steps to maintain a safe premise, the trial court erred by dismissing the alternative
theories of recovery in tort and contract. Based upon the MHA’s prior knowledge of Mr.
Miller’s violent behavior, the Plaintiffs asserted that the MHA had a duty to monitor Mr.
Miller’s actions, or to evict him from the premises. Giggers, 2007 WL 2216553, at *6. On
appeal, this Court affirmed the grant of summary judgment in favor of the MHA, holding that
“an isolated violent outburst...by Miller was [in]sufficient to notify the MHA that criminal
acts against its tenants were reasonably foreseeable.” Id. at *11. Consequently, we held that
the MHA owed no duty to Mr. Miller under the particular circumstances. Id. We further

                                              -3-
held that a landlord has no affirmative duty to evict or closely monitor a tenant who is known
to have a criminal history. Id. at *12. Balancing the foreseeability and the gravity of the
harm against the commensurate burden imposed on the landlord to provide protections
against that harm, we opined that public policy considerations weighed against the imposition
of any duty in this case. Id. We also considered the lease provisions requiring the MHA to
“maintain the dwelling unit and development in a decent, safe and sanitary condition” as a
separate basis for liability, and held that this language merely obligated the landlord to
maintain the property so that the apartments and common areas were free from physical
defects, and that the general rules of contract interpretation “did not contemplate protection
of [tenants] from harm by third persons.” Id. at 13 (quoting Archer v. Burton Plaza Assoc.,
Ltd., No. 03A01-9511-CV-00417, 1996 WL 93584, at *2 (Tenn. Ct. App. Mar. 4, 1996)).

        Our Supreme Court granted Plaintiffs’ application for permission to appeal to consider
the propriety of the negligence claim and, specifically, to determine whether the MHA’s
knowledge of Mr. Miller’s prior act of violence at the apartments created a duty of care to
Plaintiffs’ Decedent. Giggers, et al. v. Memphis Housing Auth., et al., 277 S.W.3d 359, 363
(Tenn. 2009). The Supreme Court reversed this Court in part, finding that “a special
relationship exists between a landlord and a tenant, placing an obligation on the landlord to
take reasonable measures of protections...[b]ecause a reasonable person could foresee the
probability of violence [at the Adams Avenue property,] and because the gravity of potential
harm outweighs... the burden [on the MHA] of taking protective measures for the safety of
the tenants.” Giggers, 277 S.W.3d at 371. Based upon this finding, our Supreme Court
concluded that it was unable to determine, as a matter of law, that the Plaintiffs were not
entitled to recover on a claim of negligence under any version of the facts, but cautioned that
its ruling did not foreclose the possibility that the Plaintiffs would be unable to present
sufficient evidence to support their claim. Id. at 372.1

       Upon remand to the trial court, on July 31, 2009, the MHA filed a motion to dismiss
for failure to state a cause of action pursuant to Tenn. R. Civ. P. 12.02(6), or, in the
alternative, for a more definite statement. The MHA’s motion was denied by order of
September 14, 2009,2 and Plaintiffs were allowed to file a third amended complaint on


        1
           We note that the Supreme Court did not disturb the trial court’s summary judgment, as affirmed
by this Court, dismissing Plaintiffs claims based on the “safe environment” language in the lease, Plaintiffs’
claims based on “allowing” Mr. Miller to possess a rifle, or Plaintiffs’ claims based on the MHA’s alleged
failure to perform a background check when initially leasing an apartment to Mr. Miller. Giggers, 277
S.W.3d at 362.
        2
          The trial court’s order dismisses the MHA’s motion, and does not contain a more definite statement
of the court’s ruling. Consequently, we infer that both the motion to dismiss and the motion for more definite
                                                                                                 (continued...)

                                                     -4-
September 30, 2009, alleging a new claim for “failure to evict.” The “failure to evict” claim
had previously been argued by Plaintiffs on appeal, but had not been pled until the third
amended complaint. On October 23, 2009, the MHA filed an answer to the third amended
complaint, in which it denied liability and asserted the defenses of preemption and
discretionary function immunity in response to the Plaintiffs’ claims that the MHA had a
common law duty to evict Mr. Miller. On November 13, 2009, the MHA filed a motion to
dismiss, or alternately, for summary judgment, on grounds that the Plaintiffs’ only remaining
claim against the MHA (i.e., failure to evict) is preempted by federal law, and is barred by
the discretionary function exception to the waiver of immunity provided for by the Tennessee
Governmental Tort Liability Act (“TGTLA”), Tenn. Code Ann. §29-20-101, et seq. The
MHA’s motion was heard on February 19, 2010. On March 4, 2010, the trial court entered
an order denying the MHA’s motion for summary judgment as to the indemnity claim of
Scruggs. A second order was entered on March 4, 2010, which order provides, in relevant
part, as follows:

               The two issues presented by MHA’s Motion for Summary
               Judgment are:

               1. Whether the Plaintiffs’ new state law claims alleging a duty
               to evict Mr. L.C. Miller based on a prior altercation between Mr.
               Miller and another tenant are preempted by federal law requiring
               the MHA to use discretion in making eviction and occupancy
               decisions.

               2. Whether Plaintiffs’ new claims alleging a duty to evict Mr.
               L.C. Miller are barred by the Discretionary Function Exception
               to the waiver of sovereign immunity under the Tennessee
               Governmental Tort Liability Act.

               Although the Court finds merit to these arguments, given the
               prior appeal in this case the Court finds that the MHA’s Motion
               for Summary Judgment should be denied.

       In response to the trial court’s denial of its motion for summary judgment, the MHA
moved the lower court for permission to file an interlocutory appeal under Tenn. R. App. P.
9, which motion was granted by the trial court’s order of April 6, 2010. By order of June 24,
2010, this Court granted the interlocutory appeal to address two issues, as stated by the MHA


       2
        (...continued)
statement were denied.

                                              -5-
in its brief (and adopted by Scruggs in its brief), to-wit:

              1. Whether Plaintiffs’ state law claim, alleging a duty on the
              part of the MHA to evict Mr. Miller is preempted by 42
              U.S.C.S. §1437(d)(1)(6) and 24 C.F.R. §966.4?

              2. Whether Plaintiffs’ state law claim, alleging a duty on the
              part of the MHA to evict Mr. Miller is barred by the
              discretionary function exception to the waiver of sovereign
              immunity under Tenn. Code Ann. §29-20-101, et seq., the
              Tennessee Governmental Tort Liability Act?

        Before reaching these issues, we pause to discuss a deficiency in the trial court’s order
denying the MHA’s motion for summary judgment. Prior to July 1, 2007, the trial court was
not required to state the legal grounds for granting or denying summary judgment in its order;
inclusion of the legal grounds were only necessary “upon request” of either party. However,
Tenn. R. Civ. P. 56.04 was amended, effective July 1, 2007, to state: “[t]he trial court shall
state the legal grounds upon which the court denies or grants the motion, which shall be
included in the order reflecting the court's ruling” (emphasis added). As set out above, the
order appealed in this case does not comply with Tenn. R. Civ. P. 56.04. When the legal
grounds for the trial court's decision are omitted, a reviewing court cannot analyze the
decision's validity, and appellate review becomes unnecessarily speculative. The 2007
amendment to Tenn. R. Civ. P. 56.04 was intended to cure this problem. The Rule's
requirements are specific and without exception. Winn v. Welch Farms, No.
M2009-01595-COA-R3-CV, 2010 WL 2265451 (Tenn. Ct. App., June 4, 2010) (citing
Eluhu v. HCA Health Servs. of Tenn. Inc., No. M2008-01152-COA-R3-CV, 2009 WL
3460370, at *21 (Tenn. Ct. App. Oct. 27, 2009)). Here, the trial court states only that,
“[a]lthough the Court finds merit to [the MHA’s] arguments, given the prior appeal in this
case the Court finds that the MHA’s Motion for Summary Judgment should be denied.” This
is not a legal basis for the decision to deny the MHA’s motion; consequently, we find that
the trial court erred in failing to include the legal basis for its denial of summary judgment
in the order.

       However, the case before us presents the rare instance when such an error will not
compel a remand to the trial court. See White v. Pulaski Elec. Sys., No.
M2007-01835-COA-R3-CV, 2008 WL 3850525, at *3 (Tenn. Ct. App. Aug. 18, 2008);
Burgess v. Kone, Inc., No. M2007-02529-COA-RC-CV, 2008 WL 2796409, at *2 (Tenn.
Ct. App. July 18, 2008). Here, the record presents clear legal issues (i.e., whether Plaintiffs’
case is preempted by federal law and/or whether it is barred by the discretionary function
exception to the waiver of sovereign immunity under the TGTLA), which issues were almost

                                               -6-
certainly the basis for the trial court's decision to deny summary judgment in favor of the
MHA. Therefore, for the sake of judicial economy, we will “soldier on without guidance
from the trial court.” Church v. Perales, 39 S.W.3d 149, 158 (Tenn. Ct. App. 2000).
However, in so doing, we do not recognize any general exception to the clear requirements
of Tenn. R. Civ. P. 56.04.

       Turning to the issues, we first note that it is well settled that a motion for summary
judgment should be granted when the movant demonstrates that there are no genuine issues
of material fact and that the moving party is entitled to a judgment as a matter of law. See
Tenn. R. Civ. P. 56.04. The party moving for summary judgment bears the burden of
demonstrating that no genuine issue of material fact exists. See Bain v. Wells, 936 S.W.2d
618, 622 (Tenn. 1997). On a motion for summary judgment, the court must take the strongest
legitimate view of evidence in favor of the nonmoving party, allow all reasonable inferences
in favor of that party, and discard all countervailing evidence. See id. In Byrd v. Hall, 847
S.W.2d 208 (Tenn. 1993), our Supreme Court stated:

              Once it is shown by the moving party that there is no genuine
              issue of material fact, the nonmoving party must then
              demonstrate, by affidavits or discovery material, that there is a
              genuine, material fact dispute to warrant a trial. In this regard,
              Rule 56.05 provides that the nonmoving party cannot simply
              rely upon his pleadings but must set forth specific facts showing
              that there is a genuine issue of material fact for trial.

Id. at 211 (citations omitted).

        Summary judgment is only appropriate when the facts and the legal conclusions drawn
from the facts reasonably permit only one conclusion. See Carvell v. Bottoms, 900 S.W.2d
23, 26 (Tenn.1995). In the instant case, the material facts are not disputed. Because only
questions of law are involved, there is no presumption of correctness regarding a trial court's
denial of summary judgment. See Bain, 926 S.W.2d at 622. Therefore, our review of the trial
court's denial of summary judgment is de novo on the record before this Court. See Warren
v. Estate of Kirk, 954 S.W.2d 722, 723 (Tenn. 1997).

 Whether a State Law Tort Claim Against a Public Housing Authority for “Failure
           to Evict” a Tenant is Barred by the Doctrine of Preemption.

       In raising their “failure to evict” claim against the MHA, Plaintiffs allege that the
MHA had a common law duty to evict Mr. Miller after he attempted to stab another tenant
in 1998. The MHA argues that, if this Court were to hold that Plaintiffs’ claim for “failure

                                              -7-
to evict” is not preempted, this decision would “create a common law duty to evict a tenant,
which is inconsistent with, or stands as an obstacle to, the accomplishment of the full
purposes and objectives of federal law controlling public housing authorities eviction and
occupancy decisions.”        Plaintiffs argue that MHA’s position misapprehends the
congressional purpose underlying 42 U.S.C. § 1437d and 24 C.F.R. § 966.4, and also
misconstrues the nature of the Plaintiffs’ claim.

        As part of the Anti-Drug Abuse Act of 1988, Congress enacted legislation giving local
public housing authorities (“PHAs”) the authority to evict tenants. Because Plaintiffs argue
that the MHA should have evicted Mr. Miller following the 1998 stabbing incident, MHA’s
authority to do so was governed by statutes and regulations in effect at that time. Here, that
statute is the 1997 version of 42 U.S.C. § 1437d, which provides, in relevant part, as follows:
                (l) Leases; terms and conditions; maintenance; termination

              Each public housing agency shall utilize leases which–

              *                                     *                  *

              (5) provide that any criminal activity that threatens the health,
              safety, or right to peaceful enjoyment of the premises by other
              tenants or any drug-related criminal activity on or off such
              premises, engaged in by a public housing tenant, any member of
              the tenant’s household, or any guest or other person under the
              tenant’s control, shall be cause for termination of tenancy;

Concerning the reason for the enactment of this statute, 56 Fed. Reg. 51,560 (Oct. 11, 1991)
provides, in relevant part, as follows:

              The Congress has determined that drug crime and criminal
              threats by public housing household members are a special
              danger to the security and general benefit of public housing
              residents, warranting special mention in the law. (U.S.H. Act,
              section 6(l)(5), 42 U.S.C. § 1437d(l)(5).) For this reason, the
              Congress specified that these types of criminal activity by
              household members are grounds for termination of tenancy
              (without the need for a separate inquiry as to whether such
              criminal activity constitutes serious or repeated lease violation
              or other good cause for eviction). The legislative determination
              by the Congress rests on a reasonable judgment that the potential
              for a PHA to exercise eviction as a contractual sanction against

                                              -8-
                criminal behavior by unit occupants will promote the welfare of
                public housing residents in general, and will support the
                effective management of the housing. Since this judgment is
                reasonable, and promotes a legitimate public purpose, the
                legislation is Constitutional under the normal equal protection
                standard.

See 56 Fed. Reg at 51,560-67 for full context.

       In accordance with the intent of the Anti-Drug Abuse Act, HUD regulations mandate
that PHAs have authority to determine whether to evict tenants. As is applicable to this case,
24 C.F.R. § 966.4 (1997) provides:

                (l) Termination of tenancy and eviction.–

                *                                 *                          *

                (5) Eviction for criminal activity–

                (i) PHA discretion to consider circumstances. In deciding to
                evict for criminal activity, the PHA shall have discretion to
                consider all of the circumstances of the case, including the
                seriousness of the offense, the extent of participation by family
                members, the effects that the eviction would have on family
                members not involved in the proscribed activity. In appropriate
                cases, the PHA may permit continued occupancy by remaining
                family members and may impose a condition that the family
                members who engaged in the proscribed activity will not reside
                in the unit....3


       3
          The current version of 24 C.F.R. § 966.4 is more expansive than the 1997 version, and provides
further guidance in determining the Legislative intent underlying the Anti-Drug Abuse Act. The current
regulation provides, in relevant part, as follows:

                (l) Termination of tenancy and eviction.–

                *                            *                        *
                (5) PHA termination of tenancy for criminal activity or alcohol abuse.
                (i) Evicting drug criminals.
                (A) Methamphetamine conviction. The PHA must immediately terminate
                                                                                          (continued...)

                                                  -9-
       In Dep’t of Housing and Urban Dev. v. Rucker, 535 U.S. 125 (2002), the Supreme
Court discussed the Congressional intent underlying the mandatory lease provisions that
afford PHAs the right to evict a tenant for drug-related crimes committed on or off premises
by members of the tenant’s household, a guest, or someone under the tenant’s control. Id.
at 127-28. While the Rucker Court recognized that the strict liability inherent in a “no-fault”
eviction “maximizes deterrence and eases enforcement difficulties,” Rucker, 535 U.S. at 134,
the Court nonetheless recognized the legislative intent to place discretion with the PHAs to
make those eviction decisions:

                  The statute [i.e., 42 U.S.C. § 1437d(l)(6)] does not require the
                  eviction of any tenant who violated the lease provision. Instead,


       3
           (...continued)
                   the tenancy if the PHA determines that any member of the household has
                   ever been convicted of drug-related criminal activity for manufacture or
                   production of methamphetamine on the premises of federally assisted
                   housing.
                   *                                *                           *
                   (ii) Evicting other criminals.
                   (A) Threat to other residents. The lease must provide that any criminal
                   activity by a covered person that threatens the health, safety, or right to
                   peaceful enjoyment of the premises by other residents (including PHA
                   management staff residing on the premises) or threatens the health, safety,
                   or right to peaceful enjoyment of their residences by persons residing in the
                   immediate vicinity of the premises is grounds for termination of tenancy.
                   *                                 *                            *
                   (iii) Eviction for criminal activity.
                   (A) Evidence. The PHA may evict the tenant by judicial action for criminal
                   activity in accordance with this section if the PHA determines that the
                   covered person has engaged in the criminal activity, regardless of whether
                   the covered person has been arrested or convicted for such activity and
                   without satisfying the standard of proof used for a criminal conviction.
                  *                                     *                                *
                  (vii) PHA action, generally.
                  *                                     *                                *
                  (B) Consideration of circumstances. In a manner consistent with such
                  policies, procedures and practices, the PHA may consider all circumstances
                  relevant to a particular case such as the seriousness of the offending action,
                  the extent of participation by the leaseholder in the offending action, the
                  effects that the eviction would have on family members not involved in the
                  offending activity and the extent to which the leaseholder has shown
                  personal responsibility and has taken all reasonable steps to prevent or
                  mitigate the offending action.


                                                      -10-
             it entrusts that decision to the local public housing authorities,
             who are in the best position to take account of, among other
             things, the degree to which the housing project suffers from
             “rampant drug-related or violent crime,” 42 U.S.C. § 11901(2)
             (1994 ed. and Supp. V), “the seriousness of the offending
             action,” 66 Fed. Reg., at 28803, and “the extent to which the
             leaseholder has ... taken all reasonable steps to prevent or
             mitigate the offending action,” ibid.

Rucker, 535 U.S. 125 at 133-34.

        According to a letter provided by Appellant, after the Supreme Court’s opinion in
Rucker, the Secretary of HUD reiterated to directors of local PHAs that they were to use
their federally granted discretion, and were to balance important policies when making
decisions based on criminal activities:

             June 6, 2002

             Dear Public Housing Directors:

             In light of several inquiries that HUD has received recently, the
             Secretary has asked me to share with you our views regarding
             the March 26, 2002 decision of the Supreme Court in HUD v.
             Rucker. In Rucker, the Court unanimously affirmed the right of
             the public housing authorities, under a statutorily-required lease
             clause, to evict entire public housing households whenever any
             member of the household, or any household guest, engages in
             drug-related or certain other criminal activity. The Rucker
             decision upholds HUD regulations that, since 1991, have made
             it clear both that the lease provision gives PHAs such authority
             and that PHAs are not required to evict an entire household–or,
             for that matter, anyone–every time a violation of the lease clause
             occurs.

             Therefore, after Rucker, PHAs remain free, as they deem
             appropriate, to consider a wide range of factors in deciding
             whether, and whom, to evict as a consequence of such a lease
             violation. Those factors include, among many other things, the
             seriousness of the violation, the effect that eviction of the entire
             household would have on household members not involved in

                                            -11-
              the criminal activity, and the willingness of the head of
              household to remove the wrongdoing household member from
              the lease as a condition for continued occupancy. The Secretary
              and I encourage you to consider such factors and to balance
              them against the competing policy interests that support the
              eviction of the entire household.

              Like Congress and the Supreme Court, HUD recognizes that
              PHAs are in the best position to determine what lease
              enforcement policy will most appropriately serve the statutory
              interest of protecting the welfare of the entire tenant population.
              I know that you will continue to act in a manner that protects
              that general welfare, while giving consideration–when you deem
              it appropriate–to the interest of individuals who share a
              household with the wrongdoer, but were otherwise unconnected
              with the wrongdoing.

       In addition to the foregoing letter, on October 29, 2002, HUD issued NOTICE H2002-
22 to all Directors of PHAs in the United States, which Notice provides, in relevant part, as
follows:

              TERMINATING TENANCY–LEASE PROVISIONS
              In accordance with the regulation at 24 C.F.R. 5.861, the
              Landlord may terminate tenancy and evict the tenant through
              judicial action for criminal activity by a covered person if the
              Landlord determines that the covered person has engaged in the
              criminal activity, regardless of whether the covered person has
              been arrested, or convicted for such activity and without
              satisfying a criminal standard of proof of the activity. HUD
              encourages, but does not require, Landlords to take into account
              individual circumstances when making a determination to
              terminate tenancy; such circumstances might include, among
              other things, the seriousness of the offending action, the extent
              of participation by the leaseholder in the offending action, and
              whether the leaseholder, if not the wrongdoer, took all feasible
              steps to prevent the offending action from occurring and has
              removed the offending person from the lease or otherwise
              banned the offending person from the premises in the future.

HUD NOTICE H 2002-22, Screening and Eviction for Drug Abuse and Other Criminal

                                             -12-
Activity–Final Rule (Oct. 29, 2002).                     Available                 at   http://
www.hud.gov/offices/adm/hudclips/notices/hsg/02hsgnotices.cfm.

       The above directives and instructions to PHAs appear to be consistent with the
federally established role of the PHAs when faced with potential eviction decisions. In
essence, PHAs are to exercise discretion by balancing the various competing policy
considerations in light of all relevant circumstances. The question, then, is whether a state
law claim against a PHA for failure to evict a tenant stands as an obstacle to the
accomplishment of the full purpose and objective of 42 U.S.C. § 1437d and 24 C.F.R. §
966.4.

      Federal preemption of state law is derived from the Supremacy Clause, which
provides that state legislation shall be subordinate to federal law:

              This Constitution, and the laws of the United States which shall
              be made in pursuance thereof; and all treaties made, or which
              shall be made, under the authority of the United States, shall be
              the supreme law of the land; and the judges in every state shall
              be bound thereby, any thing in the Constitution or laws of any
              state to the contrary notwithstanding.

U.S. Const. art. VI, § 1, cl. 2. Addressing the meaning of the Supremacy Clause in Perez v.
Campbell, 402 U.S. 637 (1971), the United States Supreme Court explained:

              As early as Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824),
              Chief Justice Marshall stated the governing principle-that “acts
              of the State Legislatures * * * (which) interfere with, or are
              contrary to the laws of Congress, made in pursuance of the
              constitution,” are invalid under the Supremacy Clause. Id., at
              211.... Three decades ago Mr. Justice Black, after reviewing the
              precedents, wrote in a similar vein that, while “(t)his Court, in
              considering the validity of state laws in the light of treaties or
              federal laws touching the same subject, ha(d) made use of the
              following expressions: conflicting; contrary to; occupying the
              field; repugnance; difference; irreconcilability; inconsistency;
              violation; curtailment; and interference (,) * * * (i)n the final
              analysis, our function is to determine whether a challenged state
              statute stands as an obstacle to the accomplishment and
              execution of the full purposes and objectives of Congress.”
              Hines v. Davidowitz, 312 U.S. 52, 67, 61 S.Ct. 399, 404, 85

                                             -13-
              L.Ed. 581 (1941).

Id. at 649.
        Moreover, in Barnett Bank of Marion Co., N.A. v. Nelson, 517 U.S. 25 (1996), the
United States Supreme Court noted appropriate considerations with respect to determining
the preemption question in those cases where the federal statute does not contain language
showing that Congress explicitly intended to preempt state law:

              Sometimes courts, when facing the pre-emption question, find
              language in the federal statute that reveals an explicit
              congressional intent to pre-empt state law. More often, explicit
              pre-emption language does not appear, or does not directly
              answer the question. In that event, courts must consider whether
              the federal statute's “structure and purpose,” or nonspecific
              statutory language, nonetheless reveal a clear, but implicit,
              pre-emptive intent. A federal statute, for example, may create a
              scheme of federal regulation “so pervasive as to make
              reasonable the inference that Congress left no room for the
              States to supplement it.” Alternatively, federal law may be in
              “irreconcilable conflict” with state law. Compliance with both
              statutes, for example, may be a physical impossibility.

Id. at 31 (citations omitted).

       Under so-called “conflict preemption,” “[a] state cannot impose common law damages
on individuals for doing what a federal act or regulation authorized them to do.” See, e.g.,
Irving v. Mazda Motor Corp., 136 F.3d 764, 769 (11th Cir. 1998). In this case, the MHA,
a federally funded PHA, asserts that Plaintiffs’ claim for “failure to evict” falls within the
doctrine of conflict preemption because such a claim would “at the very least, interfere with
the federally vested discretion granted to PHAs in making eviction decisions by subjecting
PHAs to potential civil money damages if [the discretion granted to PHAs under the
foregoing statutory scheme] were to be used” in any way other than eviction.

       The question of implicit conflict preemption was discussed by the United States
Supreme Court in Fidelity Federal Savings & Loan Association v. de la Cuesta, 458 U.S.
141 (1982). In that case, a federal regulation permitted federal savings and loan associations
to include a due-on-sale clause in loan instruments at their option. The defendant federal
savings and loan association exercised its option to include the clause. Plaintiff borrowers
sued the association for damages, and claimed the due-on-sale clause in their loan instrument
was unenforceable under a rule of California common law. The Supreme Court held that the

                                             -14-
federal regulation preempted the California common law because the common law rule
prohibited the exercise of the federally authorized option. Id. at 155. In reaching its
decision, the Supreme Court held that a state common law rule cannot take away the
flexibility provided by a federal regulation, and cannot prohibit the exercise of a federally
granted option. Id.

        As discussed above, pursuant to 47 U.S.C. § 1437 and the federal regulations
promulgated thereunder, there is no indication that the federal statute mandates PHAs to evict
tenants for criminal activities. Rather, from the legislative history, the federal regulations,
and the HUD analysis of the statutory scheme, we conclude that it was the legislative intent
of 47 U.S.C. § 1437 to allow PHAs to use their discretion to determine whether eviction is
necessary under the particular facts presented. If we were to hold, as Plaintiffs suggest, that
the MHA was required to evict Mr. Miller for conduct constituting criminal activity, we
would negate the discretion granted by the statute. Here, the record indicates that the MHA
exercised its discretion after the 1998 stabbing incident between Mr. Miller and Mr. Triplett.
Although the record does not elaborate on the exact steps that the MHA took in response to
the 1998 stabbing incident, the parties agreed that the MHA did conduct an investigation,
and that the MHA placed Mr. Miller on probation for one year as a result of that
investigation. If we were to allow Plaintiffs’ claim for “failure to evict,” such a holding
could result in the MHA being liable for money damages solely because the MHA exercised
its discretion and chose to allow Mr. Miller a second opportunity to conduct himself in
accordance with the rules and regulations of the property. While we concede that the MHA’s
decision ultimately proved unwise, we nonetheless conclude that 47 U.S.C. § 1437 gave it
the discretion to make that choice. In accordance with the Supreme Court’s holding in de la
Cuesta, we conclude that allowing Plaintiffs’ “failure to evict” claim would, in effect,
remove the element of choice authorized under 47 U.S.C. § 1437, and would frustrate the
federal regulatory scheme. Therefore, we hold that Plaintiffs’ theory of recovery is implicitly
preempted by 47 U.S.C. § 1437 and the federal regulations pertaining thereto.

               Discretionary Function Exception to Sovereign Immunity

       Even if we assume that Plaintiffs’ “failure to evict” claim is not preempted by 47
U.S.C. § 1437, Plaintiffs’ claim is, nonetheless, barred by the discretionary function
exception to sovereign immunity.

        It is well settled that local governmental entities are immune from suit except when
a statute explicitly allows them to be sued. See, e.g., Jane Doe v. Coffee Co. Bd. of Educ.,
852 S.W.2d 899, 906 (Tenn. Ct. App. 1992). The TGTLA removes this immunity only in
certain enumerated situations. Tenn. Code Ann. § 29-20-205 (Supp. 2010) removes the
sovereign immunity of governmental entities for injuries proximately caused by the

                                             -15-
negligence of an employee acting within the scope of his or her employment; however, there
are several exceptions to this removal of sovereign immunity. The exception that is
applicable to the instant case provides that immunity is not removed if the injury arises out
of “the exercise of performance or the failure to exercise or perform a discretionary function,
whether or not the discretion is abused.” Tenn. Code Ann. § 29-20-205. In Limbaugh v.
Coffee Med. Ctr., 59 S.W.3d 73 (Tenn. 2001), our Supreme Court discussed the discretionary
function exception to the TGTLA as follows:

              This exception immunizes local governmental entities from
              liability for an employee's negligence if the injury arises out of
              “the exercise or performance or the failure to exercise or
              perform a discretionary function, whether or not the discretion
              is abused.” Essentially, the discretionary function exception
              prevents the use of tort actions to second-guess what are
              essentially legislative or administrative decisions involving
              social, political, economic, scientific, or professional policies or
              some mixture of these policies. Doe v. Coffee County Bd. of
              Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992) (citing
              United States v. Gaubert, 499 U.S. 315, 323, 111 S. Ct. 1267,
              113 L. Ed.2d 335 (1991)). The rationale for preserving
              immunity for certain acts performed by governmental entities is
              that the government should be permitted to operate without
              undue interference by the courts, as courts are often
              “ill-equipped to investigate and balance the numerous factors
              that go into an executive or legislative decision.” Bowers v. City
              of Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992) (quoting
              Wainscott v. State, 642 P.2d 1355, 1356 (Alaska 1982)); see
              also Carlson v. State, 598 P.2d 969, 972 (Alaska 1979).

Limbaugh, 59 S.W.3d at 84-85 (emphasis added).

       In Bowers v. City of Chattanooga, 826 S.W.2d 427 (Tenn. 1992), our Supreme Court
explained that “discretionary function immunity attaches to all conduct properly involving
the balancing of policy considerations. Therefore, there may be occasions where an
‘operational act’ is entitled to immunity, where, for instance, the operational actor is
properly charged with balancing policy considerations.” Id. at 431 (emphasis added). In
Doe v. Coffee Co. Bd. of Educ., 852 S.W.2d 899, 907 (Tenn. Ct. App. 1992), this Court
construed Tenn. Code Ann. § 29-20-205(1) to prevent the use of tort actions to challenge
policy. The question, then, is whether eviction decisions by PHAs constitute discretionary
functions.

                                             -16-
       As discussed above, the legislative intent of 47 U.S.C. § 1437 vests PHAs with
discretion in deciding whether to evict its tenants. Other statutes also indicate that eviction
decisions made by PHAs constitute discretionary functions. Tenn. Code Ann. § 13-20-
104(a)(9) provides that a housing authority has the power to “[a]ct as agent for the federal
government in connection with the acquisition, construction, operation and/or management
of a housing project or any part thereof.” Likewise, 24 C.F.R. §966.4(l)(5)(vii)(B) clearly
vests PHAs with discretion to determine whether to evict a tenant based on the type of
criminal activity, and considering “all circumstances.” See supra note 3. Consequently,
when determining whether to evict a tenant, a PHA is performing a function delegated to the
PHA by the federal government. In delegating this discretionary function to local PHAs, the
federal government recognizes that a local PHA is better able to consider the individual facts
and circumstances and to make a determination regarding occupancy and evictions. As
stated by the Supreme Court in Rucker, “[t]he statute does not require the eviction of any
tenant who violated the lease provision. Instead, it entrusts that decision to the local public
housing authorities, who are in the best position to take account of [all relevant
circumstances].” Rucker, 533 U.S. at 133-34.

       This Court has also recognized that eviction decisions by PHAs involve federally
granted discretionary decision making, to-wit:

              Among the powers granted a Housing Authority under this Act
              [Tenn. Code Ann. §§13-801 et seq., 13-804(8)] is the power to
              act as agent for the Federal Government in connection with the
              acquisition, construction, operation and/or management of a
              housing project or any part thereof (13-804 (8)). Under said
              statute (13-812) the powers and duties of the Housing Authority
              with respect to rentals and tenant selection are regulated and
              restricted. Thus, it is seen that the operation of a housing
              project by the plaintiff is the exercising of a governmental
              function and it follows that, in the exercise of this function, the
              agents of said authority cannot act arbitrarily or capriciously in
              the renting of space to tenants or in the eviction of tenants from
              the project.

Nashville Hous. Auth. v. Taylor, 442 S.W.2d 668, 672 (Tenn. Ct. App. 1968) (emphasis
added).

       In Bowers, our Supreme Court adopted a planning-operational test, under which it is
the “nature of the conduct” (i.e., the decision-making process), as opposed to the “status of
the actor,” that governs the question of whether the exception applies. Bowers, 826 S.W.2d

                                             -17-
at 430-31. Under this test, decisions that rise to the level of planning or policy-making are
considered discretionary acts that do not give rise to tort liability. On the other hand,
decisions that are merely operational are generally not considered discretionary acts and,
therefore, do not trigger immunity. Id. However, the Bowers Court went on to explain that,
“there may be occasions where an ‘operational act’ is entitled to immunity, where, for
instance, the operational actor is properly charged with balancing policy considerations.”
Id. (emphasis added); see also United States v. Gaubert, 499 U.S. 315, 326 (Tenn. 1991).
As discussed above, a PHA’s decision concerning whether to evict a tenant after allegations
of criminal activity clearly involves fact-specific considerations of “all circumstances,” and
requires a “balancing of policy considerations.” Bowers, 826 S.W.2d at 430-31; 24 C.F.R.
§ 966.4(l)(5)(vii)(B).

        Although the distinction between decisions by governmental actors that involve
“balancing policy considerations,” and those that are truly operational in nature is admittedly
murky, in Bowers, the Court considered the distinction under the facts of that case and held
that, “[t]here being a clear plan and policy of the State of Tennessee and City of Chattanooga
to provide safe passage across an immediate street toward a child’s destination, we find that
a decision left to a school bus driver on where to stop at a particular intersection is an
operational act not within the discretionary function exception.” Bowers, 826 S.W.2d at 432.
In its brief, the MHA, relying upon the Bowers holding, asserts that a bus driver’s decision
to stop or not stop at an intersection is clearly operational, whereas decisions by PHAs as to
whether to evict a tenant involve fact-specific investigations and discretionary balancing of
federal policies, thus rendering such activities “planning” in nature. We agree.

        If PHA eviction decisions involving all criminal activity merely followed a pre-
determined, mandated policy (i.e., such as the mandatory eviction for manufacturing
methamphetamine, see 24 C.F.R. § 966.4(1)), then these decisions would be truly operational
in nature. However, in determining whether to evict tenants after allegations of criminal
activity, PHAs must balance the effect of that decision on the tenant with the potential effect
on other tenants of declining eviction of the offending tenant. This decision requires
investigations into the allegations, and consideration of the mission of HUD. Consequently,
the decision to evict (for other criminal activity) involves “balancing policy considerations”
because the decision must be made in light of the individual circumstances of each case
(except for the narrow exception of methamphetamine manufacturing, which requires
mandatory eviction). Therefore, we hold that the MHA’s decision whether to evict Mr.
Miller was a “planning” level decision to which the discretionary function exception to
sovereign immunity applies.

       Even were we to assume that the MHA’s decision whether to evict was operational
in nature, the discretionary function exception would still apply to the specific facts of this

                                             -18-
case. Where an operational decision-maker acts reasonably in implementing an established
policy and such actions further the underlying policy, then the entity’s immunity is not
abrogated. Limbaugh v. Coffee Med. Ctr., 59 S.W.3d 73, 85 (Tenn. 2001). It is when such
an operational decision-maker does not “act reasonably but pursues a course of conduct that
violates mandatory regulation [that] the discretionary function exception will not apply
because the action would be contrary to the entity’s established policy.” Id. In Limbaugh,
a nursing home resident’s conservator filed suit against the Coffee Medical Center, a
governmental entity, seeking damages for injuries resulting from a nursing home employee’s
alleged assault on the resident. Limbaugh, 59 S.W.3d at 76. The Court determined that the
nursing home had implemented a specific policy regarding discipline of employees, but had
failed to follow its own policy. Id. at 85. The Court held that “the nursing home’s broad
discretion to implement a policy governing the questions of whether and how to discipline
combative employees is indeed a policy determination that cannot give rise to tort liability.”
Id. at 86. However, because the nursing home had negligently failed to follow its prescribed
guidelines, the discretionary function exception did not apply and governmental immunity
was waived. Id. at 85-86.

       Limbaugh is distinguishable from the case at bar. Here, the undisputed facts establish
that the MHA acted consistently with its federal mandate, by exercising its discretion in
evaluating the circumstances involved in the 1998 stabbing incident. Although, as noted
above, the record does not fully outline the extent or nature of the MHA’s inquiry into the
1998 incident, the parties do not dispute the fact that the inquiry occurred. Moreover,
following its inquiry, the MHA further exercised its discretion in placing Mr. Miller on
probation. Because the MHA reasonably implemented its federally mandated discretion,
Limbaugh would not abrogate governmental immunity even if the eviction determination
was an operational level decision.


       For the foregoing reasons, we reverse the trial court’s order, denying summary
judgment in favor of the MHA. Because Appellees’ cause of action for “failure to evict” is
preempted under 42 U.S.C. § 1437, and because the Appellant retains sovereign immunity
under the discretionary function exception to the TGTLA, we remand the case for entry of
summary judgment in favor of the MHA, and for such further proceedings as may be
necessary and consistent with this Opinion. Costs of this appeal are assessed against the
Appellees, Cheryl Brown Giggers, Charles C. Brown, Jr., Angela Brown, Joann Fisher, and
Scruggs Security and Patrol, for which execution may issue if necessary.


                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE

                                             -19-
