By Jonathan Stempel

(Reuters) -A U.S. appeals court on Friday upheld a ban on smoking in federally subsidized public housing.

The D.C. Circuit Court of Appeals said the Department of Housing and Urban Development (HUD) properly enacted a 2016 rule requiring state and local public housing agencies to ban cigarettes, cigars and pipes inside housing units and indoor common areas, and outside within 25 feet of those spaces.

Six tenants and a smokers’ rights group, the New York City Citizens Lobbying Against Smoker Harassment (“NYC Clash”), challenged the ban, known as the Smoke Free Rule.

They said it improperly invaded their privacy and violated due process by preventing them from engaging in lawful activity — using tobacco — inside the home.

But in Friday’s 2-0 decision, Chief Judge Sri Srinivasan said HUD provided “considerable” evidence that the rule helped protect residents against the health risks of secondhand smoke, prevent fires and reduce property maintenance costs.

“The department adequately substantiated its rationales for the rule and did not act arbitrarily and capriciously in promulgating it,” the judge wrote.

Srinivasan also rejected a claim that the ban improperly restricted how the government spends money, violating a provision of the U.S. Constitution governing federal spending.

Larry Joseph, the plaintiffs’ lawyer, said his clients plan an appeal. He said the case involves significant issues involving federalism, and whether Congress actually empowered HUD to ban smoking.

NYC Clash founder Audrey Silk said the decision opens the door to letting the government outlaw “on the flimsiest of grounds” other lawful behavior in the home.

HUD did not immediately respond to requests for comment.

Srinivasan’s decision upheld a March 2020 lower court ruling, and was joined by Circuit Judge Douglas Ginsburg.

U.S. Supreme Court Justice Ketanji Brown Jackson heard oral arguments in the case in September 2021, when she was still on the appeals court, but did not participate in the decision.

The case is NYC CLASH Inc et al v Fudge, D.C. Circuit Court of Appeals, No. 20-5126.

(Reporting by Jonathan Stempel in New York; Editing by David Gregorio and Cynthia Osterman)

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