Thomas v. Osegueda et al

Filing 11

MEMORANDUM OPINION Signed by Judge William M Acker, Jr on 6/16/15. (SAC )

FILED
2015 Jun-16 PM 04:21
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JAMES EARL THOMAS,
Petitioner,
v.
CARLOS OSEGUEDA, FHEO REGION
IV DIRECTOR, et al.,
Respondents.

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CIVIL ACTION NO.
2:15-CV-0042-WMA

MEMORANDUM OPINION
On January 26, 2015 this court issued a memorandum opinion
granting the petition of James Earl Thomas for a writ of mandamus
and ordered respondents Carlos Osegueda and Christian Newsome to
show cause why a hearing on the matter was not required. (Doc. 5).
On March 13, 2015, respondents filed their response requesting the
court to reconsider its memorandum opinion and order, and to
dismiss the petition for lack of jurisdiction because the "[Fair]
Housing Act [“FHA’] does not give [respondents] jurisdiction to
investigate

and

prosecute

complaints

raising

allegations

of

discrimination based on sexual orientation." (Doc. 8 at 6). On
April 23, 2015 Thomas filed a response (Doc. 9) and a separate
motion for a ruling on the case (Doc. 10).
For the reasons set forth below, respondents’ motion to
dismiss will be granted and petitioner’s motion for a ruling will
be denied.
I.

Jurisdiction under the FHA
1

Were this an earlier decade, the government’s motion to
dismiss

for

lack

of

jurisdiction

need

only

state

that

“[d]iscrimination based on sexual orientation is not covered under
the [FHA].” Swinton v. Fazekas, 2008 WL 723914, at *5 (W.D.N.Y.
Mar. 14, 2008); see 42 U.S.C. § 3601-19 and 24 C.F.R. § 100 et seq.
Recently, however, the Department of Housing and Urban Development
(“HUD”) has taken several steps to clarify and reinforce the fact
that certain acts of discrimination based on sexual orientation are
in fact within its jurisdiction. Therefore, a more exacting review
is required by the court of HUD’s jurisdiction over discrimination
based

on

sexual

orientation

and

whether

the

particular

discrimination alleged by Thomas is within such jurisdiction.
a. HUD’s expanded protections based on sexual orientation
While Congress has not amended the FHA for some time,1 HUD has
taken an increasingly expansive view of its delegated authority
under

the

FHA

relating

to

discrimination

based

on

sexual

orientation.
In the summer of 2010, HUD issued a guidance document stating
that

“while

the

[FHA]

does

not

specifically

include

sexual

orientation and gender identity as prohibited bases . . . [an] LGBT
person’s experience with sexual orientation or gender identity

1

Congress adopted minor revisions to the Fair Housing Act
most recently in 1995 and 1996. Housing for Older Persons Act of
1995, PL 104–76, December 28, 1995, 109 Stat. 787, and Omnibus
Consolidated Appropriations Act 1997, PL 104–208, September 30,
1996, 110 Stat. 3009.
2

housing discrimination may still be covered by the [FHA].” U.S.
DEPT. OF HOUSING AND URBAN DEVELOPMENT, ENDING HOUSING DISCRIMINATION AGAINST
LESBIAN, GAY, BISEXUAL AND TRANSGENDER INDIVIDUALS AND THEIR FAMILIES, June 15,
2010 (emphasis added). “The new [agency] guidance treats gender
identity discrimination . . . as gender discrimination under the
Fair Housing Act, and instructs all HUD staff to inform individuals
filing complaints.” Press Release, HUD Issues Guidance on LGBT
Housing Discrimination Complaints: Department addresses housing
discrimination based on sexual orientation and gender identity, HUD
No. 10-139 (July 1, 2010).

When a complaint is filed on these

grounds, “HUD now begins a formal investigation under the Fair
Housing Act . . . [and] [s]ince issuing this guidance . . . [has]
investigated more than 150 discrimination complaints under this
authority.” Prepared Remarks, Secretary of U.S. Dept. of Housing
and

Urban

Development

Shaun

Donovan,

Before

the

National

Association of Gay and Lesbian Real Estate Professionals, May 15,
2013.
On February 3, 2012 HUD published a final regulation,2 the
Equal Access Rule, to implement “policy to ensure that its core
programs

are

open

to

all

eligible

individuals

and

families

regardless of sexual orientation, gender identity, or marital
2

Congress has given HUD broad agency discretion to
effectuate its purpose via rules and regulations. 12 U.S.C. §
1701c(a) (“[t]he Secretary . . . may make such rules and
regulations as may be necessary to carry out his functions,
powers, and duties”).
3

status.” Equal Access to Housing in HUD Programs Regardless of
Sexual

Orientation

or

Gender

Identity,

77

Fed.

Reg.

5662-01

(effective March 5, 2012). While the new regulation made various
minor regulatory revisions to effectuate the rule’s broader policy
goal, the core provision of this new rule revised the eligibility
requirements for HUD-assisted or insured housing to now require
“such housing shall be made available without regard to actual or
perceived sexual orientation, gender identity, or marital status.”
Id. HUD’s new rule requirements are “handled in the same manner
that violations of other program requirements are handled . . .
[using

the

existing]

mechanisms

for

addressing

violations

of

program requirements.” Id. For HUD-assisted or insured programs,
“[i]f a participant . . . believes that the housing provider is not
complying with program requirements, the individual may complain to
the appropriate HUD office that administers the program (e.g., the
Office of Public and Indian Housing, the Office of Community
Planning and Development).” Id.
In HUD’s comments accompanying the final Equal Access Rule,
HUD noted that “certain complaints from LGBT persons would be
covered by the Fair Housing Act . . . includ[ing] discrimination
because of nonconformity with gender stereotypes.” 77 Fed. Reg.
5666. “HUD may also have jurisdiction to process a complaint filed
under the Fair Housing Act if an LGBT person obtains housing but
then experiences discrimination in the form of sexual harassment.”
4

Id. “A claim of discrimination based on nonconformity with gender
stereotypes may be investigated and enforced under the Fair Housing
Act as sex discrimination . . . [and] HUD recently published
guidance on this . . . [with] [s]uch claims . . . filed through
HUD's Office of Fair Housing and Equal Opportunity.” 77 Fed. Reg.
5671.
In an August 20, 2014 interpretive document, HUD included
examples in which certain actions “may violate both the Fair
Housing Act and the Equal Access Rule.” ACTING ASSISTANT SECRETARY FOR
PUBLIC AND INDIAN HOUSING JEMINE A. BRYONE, NOTICE PIH 2014-20 (HA), PROGRAM
ELIGIBILITY REGARDLESS OF SEXUAL ORIENTATION, GENDER IDENTITY OR MARITAL STATUS
AS

REQUIRED BY HUD’S EQUAL ACCESS RULE, August 20, 2014, at 6. One of

HUD’s included examples provided:
A gay man alleges he was harassed by the PHA’s maintenance
worker at the public housing complex where he resides. The
maintenance worker routinely told the tenant “you walk like a
girl” and “you should man up,” whistled at him and made sexual
gestures. The tenant reported the harassment to the PHA, but
the PHA made no effort to stop it. Therefore, as a result of
inaction by the PHA, the tenant moved out. Due to the
continued harassment, the PHA violated the requirement at 24
CFR 5.105(a)(2)(I) to make housing available without regard to
actual or perceived sexual orientation, gender identity, or
marital status. The rule prohibits consideration of a person’s
sexual orientation throughout the tenancy, not just at the
time of application. This conduct may also be considered sex
discrimination under the Fair Housing Act because the actions
of the maintenance worker may constitute discrimination based
on gender non-conformity and/or sexual harassment. (In the
example above, the tenant moved out of the assisted housing
unit as a result of the harassment by the PHA maintenance
work. Please note; a program participant is not required to
leave the assisted housing unit, or terminate participation in
the HCV program, for the purpose of filing a complaint for
violation under the Equal Access Rule.)
5

Id. at 6-7.
Given these recent agency actions broadly interpreting the
jurisdictional scope of HUD acting under the FHA for discrimination
based on sexual orientation, before addressing whether Thomas’
claim falls under this expanded jurisdictional scope, the court
must

determine

whether

HUD’s

interpretation

of

its

authority

squares with the statutory language of the FHA.3
b. Evaluating HUD’s expanded protections under the FHA
While HUD’s jurisdictional interpretation is not exclusively
the product of formal rulemaking, it is entitled to a certain level
of deference.4 City of Arlington, Tex. v. F.C.C., 133 S. Ct. 1863,
3

Respondents in their own brief, allude to the need for
more thorough analysis by acknowledging in a footnote that “[o]n
March 4, 2015, Petitioner’s Complaint was forwarded by FHEO
Region IV to the Office of Community Planing and Development
within HUD because the alleged conduct may violate the Equal
Access [Rule] . . . [r]espondents, however, do not work for the
Office of Community planning and Development.” (Doc. 8 at 6).
4

When reviewing an agency action, courts apply competing
levels of deference depending on the type of action at issue.
“Interpretations such as those in opinion letters—like
interpretations contained in policy statements, agency manuals,
and enforcement guidelines, all of which lack the force of law—do
not warrant Chevron-style deference[, although] [t]hey are
‘entitled to respect’ . . . but only to the extent that they are
persuasive.” Christensen v. Harris Cnty., 529 U.S. 576, 587
(2000) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140
(1944)). While “[generally such] interpretations contained in
policy statements, agency manuals, and enforcement guidelines . .
. are beyond the Chevron pale . . . [the Supreme Court] ha[s]
sometimes found reasons for Chevron deference even when no such
administrative formality [of notice-and-comment] was required and
none was afforded.” United States v. Mead Corp., 533 U.S. 218,
231, 234 (2001). “[D]eference under Chevron . . . does not
necessarily require an agency’s exercise of express notice-and6

1874 (2013). Assuming the most deferential level of review, a court
is confronted with two questions: “[f]irst, always, is the question
whether Congress has directly spoken to the precise question at
issue . . . [and] 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.”

Chevron,

U.S.A.,

Inc.

v.

Natural

Res.

Def.

Council, Inc., 467 U.S. 837 (1984). “No matter how it is framed
[either ‘jurisdictional’ or ‘nonjurisdictional’], the question a
court faces when confronted with an agency's interpretation of a
statute it administers is always, simply, whether the agency has
stayed within the bounds of its statutory authority.” City of
Arlington, 133 S. Ct. at 1868.
Here, the FHA explicitly makes it unlawful “[t]o discriminate
against any person in the terms, conditions, or privileges of sale
or rental of a dwelling, or in the provision of services or
facilities

in

connection

therewith,

because

of

race,

color,

religion, sex, familial status, or national origin.” 42 U.S.C. §
3604(b)

(emphasis

added).

While

Congress

included

precise

comment rulemaking power.” Edelman v. Lynchburg College, 535 U.S.
106, 114 (2002). For example where, “the interstitial nature of
the legal question, the related expertise of the Agency, the
importance of the question to administration of the statute, the
complexity of that administration, and the careful consideration
the Agency has given the question over a long period of time all
indicate that Chevron provides the appropriate legal lens through
which to view the legality of the Agency interpretation.”
Barnhart v. Walton, 535 U.S. 212, 222 (2002).
7

definitions for certain terms in the FHA (such as “familial status”
in 42 U.S.C. § 3602(k)), Congress did not define the scope of “sex”
discrimination. Rather, Congress generally delegated administration
of the FHA to HUD, 42 U.S.C. § 3608, which implicitly includes the
authority to interpret the precise meaning and scope of “sex” for
purposes of
Communities

§ 3604(b). See Babbitt v. Sweet Home Chapter of
for

a

Great

Oregon,

515

U.S.

687,

697-98

(1995)

(finding “harm” undefined in the Endangered Species Act to be
ambiguous and subject to the EPA’s reasonable interpretation).
Given the ambiguity of “sex” in the FHA, the court must
determine whether HUD’s interpretation is permissible. Importantly,
HUD’s expanded definition of “sex” under § 3604(b) does not broadly
include all types of discrimination based on sexual orientation,
but rather discretely includes discrimination for gender nonconformity.

Mirroring

the

reasoning

in

the

Supreme

Court’s

plurality opinion in Price Waterhouse v. Hopkins, 490 U.S. 228
(1989), prohibited discrimination by individuals of the same sex
stems from non-conformity to male and female stereotypes rather
than separate and distinct sexual orientation grounds. As an
example of this type of impermissible stereotyping under the FHA,
HUD points to discrimination for a gay man walking “like a girl” or
a lesbian woman dressing in masculine clothes. BRYONE at 6-7. These
types of expanded protections for such individuals under the FHA is
directly rooted in non-conformity with male or female gender

8

stereotypes, and not directly derivative of sexual orientation as
an independent and separate ground for protection.
The distinction drawn by HUD under the FHA is similar to a
distinction made by the undersigned in the analogous context of
Title VII.5 In E.E.O.C. v. McPherson Companies, Inc., the court
determined that various gay slurs towards a masculine male in the
workplace

were

outside

the

scope

of

“the

narrowly

tailored

stereotype theory of sex discrimination” of Price Waterhouse due to
the lack of “obvious gender non-conformity” by the plaintiff. 914
F.Supp.2d 1234, 1243 (N.D. Ala. 2012). Such a distinction is in
accord with “all the previous stereotyping cases [where] there was
undisputed evidence that the male target of the alleged harassing
behavior

clearly

displayed

effeminate

characteristics

.

.

.

virtually advertis[ing] their non-conforming sexual image.” Id. at
1242 n.8, 1243. While these cases often involve harassment that is
offensive, relief for “sex” discrimination is narrowly limited and
expanding

such

protections

further

would

“require

action

by

Congress.” Id. at 1245.
Considering

the

deference

due

5

by

the

court

to

agency

“Most courts applying the FHA, as amended by the FHAA, have
analogized it to Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e et seq., which prohibits discrimination in
employment.” Larkin v. State of Mich. Dep't of Soc. Servs., 89
F.3d 285, 289 (6th Cir. 1996) citing Bangerter v. Orem City
Corp., 46 F.3d 1491, 1501 (10th Cir. 1995) and Doe v. City of
Butler, Pa., 892 F.2d 315, 323 (3rd Cir. 1989); see Gamble v.
City of Escondido, 104 F.3d 300, 304 (9th Cir. 1997).
9

interpretations,

HUD’s

narrow

tailoring

of

jurisdiction

for

discrimination based on sexual orientation to protections for
gender

stereotyping

in

its

interpretation

of

the

FHA

is

a

permissible reading of “sex.” Price Waterhouse v. Hopkins, 490 U.S.
228, 251 (1989); but see McPherson, 914 F.Supp.2d at 1242 n.8
(“This may or may not be good jurisprudence”).
c.

Thomas’ claim under the FHA

While HUD has jurisdiction under the FHA over discrimination
based on gender non-conformity, HUD lacks jurisdiction to enforce
Thomas’ claim which flatly alleges discrimination “because he is
not gay.” (Doc. 1 at 6 and Doc. 9 at 7). Thomas does not petition
under a theory of gender non-conformity but rather relies on sexual
orientation as the sole basis for discrimination separate and
independent of gender. (Doc. 1 and Doc. 9). In fact, Thomas alleges
that he was discriminated against based on his conformity

to male

stereotypes, such as stereotypes regarding cooking and buying
furniture. (Doc. 9 at 37). Even under HUD’s expanded interpretation
of the FHA for gender stereotyping, these allegations are outside
the

scope

of

the

FHA’s

“sex”

discrimination

protection

and

therefore HUD lacks the jurisdiction for respondents to act upon
them.
II.

Jurisdiction under the Equal Access Rule
Beyond the FHA, HUD’s promulgation of the Equal Access Rule

requires recipients of federal funds to abstain from discrimination
10

based on sexual orientation. 77 Fed. Reg. 5662-01. While the
particular facts in this case are inconclusive, it appears from the
filings that the housing involved, “Aletheia House”, is a recipient
of federal funds and subject to the Equal Access Rule. (Doc. 8-1 at
10-11). However, Thomas sought a writ of mandamus for relief
against two employees of HUD’s Office of Fair Housing and Equal
Opportunity whereas administration of the Equal Access Rule is
under the Office of Community Planning and Development (“CPD”). Id.
Further, HUD has forwarded Thomas’ complaint to CPD and it is
currently under investigation (Doc. 8-1 at 10-11) meaning that even
if Thomas were to make a case for relief, it would not be ripe for
review. Nat'l Park Hospitality Ass'n v. Dep't of Interior, 538 U.S.
803, 807-08 (2003). Therefore, there is no jurisdiction for relief
on the basis of the Equal Access Rule.
CONCLUSION
For the reasons detailed above, the court will by separate
order grant defendants’ motion to dismiss and deny petitioner’s
motion for a ruling.
DONE this 16th day of June, 2015.

_____________________________
WILLIAM M. ACKER, JR.
UNITED STATES DISTRICT JUDGE

11