United States District Court, N.D. Alabama, Southern Division
WILLIAM M. ACKER, Jr., District Judge.
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
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,  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 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,  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 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." 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.)
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 ...