Before getting started on the blog entry of the day, I wanted to mention a decision decided by the California Supreme Court on July 29, 2024, here. In that case, Bailey v. San Francisco District Attorney’s Office, the California Supreme Court held that: hostile work environment must be viewed in the totality of circumstances; hostile work environment must be viewed from the perspective of the person with the protected characteristic; a single occurrence might possibly suffice to have a hostile work environment; and retaliation doesn’t have to involve anything other than an effect on terms and conditions of employment. The decision is very similar to the decision of the Minnesota Supreme Court in the case that we discussed here. With respect to its discussion of retaliation, it isn’t surprising in light of the Supreme Court decision in Muldrow, discussed here, which interestingly was not cited in the California Supreme Court decision.

Turning to the blog entry of the day, the question is whether the HUD circular dealing with animals in dwellings survives Loper Bright. As usual, blog entry is divided into categories and they are: thoughts on why the HUD circular just might survive Kisor; thoughts on why the HUD circular just might survive the major question doctrine; whether the HUD circular survives Loper Bright; and thoughts/takeaways. The first two categories you have seen before in this blog entry, but I have amended the content in those categories a bit from that blog entry.

 

I

Thoughts on Why the HUD Circular Just Might Survive Kisor

 

  1. Previously we talked about Kisor v. Wilkie, here. In that blog entry, we discussed how the Supreme Court will look at whether agency interpretations of their regulations is entitled to judicial deference. Let’s do a deeper dive into that by looking at the factors laid out in that decision.
  2. Is 24 C.F.R. §100.204(b) genuinely ambiguous? It certainly is. We do know that seeing-eye dogs are protected under the HUD final regulations, but what about dogs used by people with disabilities that act as service dogs for other kinds of disabilities? What about what HUD calls assistance animals? What about emotional support animals? All of that is far from clear from just looking at the regulation.
  3. Is the circular a reflection of HUD’s authoritative, expertise-based, fair, or considered judgment? You certainly could argue that it is (but see, §III (3) of this blog entry). After all, Justice Kagan in her opinion specifically mentioned ADA regulations as being within an agency’s authoritative, expertise-based, fair, or considered judgment, and Fair Housing Act is a similar kettle of fish to the ADA.
  4. Uncertainty certainly exists when looking at the regulation, and more than one right answer also exists when looking at the regulation.
  5. The text, structure, history, and purpose of the regulation certainly leads to the circular as being one possibility.
  6. The circular is certainly an authoritative or official position of HUD and it implicates HUD’s expertise in some form. Finally, HUD certainly has expertise in this area of the law, and the circular quite arguably reflects the fair and considered judgment of HUD.
  7. The current circular did not create any unfair surprise to regulated parties, even if it did make a mess of things.

 

II

Thoughts on Why the HUD Circular Might Survive the Major Question Doctrine

 

  1. Justice Gorsuch listed several criteria in EPA v. West Virginia, here, about when would the major question doctrine apply, including: 1) doctrine applies when an agency’s claim to power involves a matter of great political significance; 2) doctrine may apply when seeking to regulate a significant portion of the American economy; and 3) doctrine may apply when an agency seeks to intrude into an area that is a particular domain of state law.
    1. Unclear whether animals in dwellings involves a matter of great political significance.
    2. The circular certainly regulates a significant portion of the American economy.
    3. Animals in housing is not a particular domain of state law.
    4. Unclear what other factors Justice Gorsuch might think is important.

 

  1. Justice Gorsuch also said that when figuring out congressional intent the following factors must be looked at: 1) the legislative provisions that which the agency seeks to rely with a view to their place in the overall statutory scheme. Oblique or elliptical language will not supply a clear statement; 2) examination of the age of focus of the statute the agency invokes in relation to the problem the agency seeks to address; 3) examination of the agency’s past interpretation of the relevant statute. A contemporaneous and long-held executive branch interpretation of the statute is entitled to some weight as evidence of the statute’s original charge to an agency; and 4) skepticism is merited when there is a mismatch between an agency’s challenged action and its congressionally assigned mission and expertise. That is when an agency has no comparative expertise in making certain policy, Congress presumably would not task it with doing so.

 

    1. The legislative provisions with respect to the Fair Housing Act is just the general grant of authority that one typically sees with respect to agencies having the ability to make regulation to carry out the legislation.
    2. The Fair Housing Act has been around for some time and is clearly focused on preventing discrimination so that people can find, use, and enjoy their dwellings.
    3. The original circular came out in 2013. So, the idea of emotional support animals/service animals in dwellings has been around for some time. While the current circular has made a mess of things, it wasn’t really a surprise in light of the 2013 circular and in light of case law that has evolved over time.
    4. There is no mismatch between the circular and HUD’s congressionally assigned mission and expertise as HUD certainly has comparative expertise in making policy in this area.

III

Whether the Circular Survive Loper Bright

  1. I am not the first to be thinking about how Loper Bright, here, affects the world of the Fair Housing Act. My colleague, Richard Hunt, did so in his July 6, 2024, blog entry, here, and his points on this subject are worth exploring in more detail. See §III(2), (3) of this blog entry).
  1. Richard mentions in his blog entry (the following comes verbatim from his blog entry), that Loper Bright does not mean, of course, that the courts should simply ignore what the Administration says about the laws it is supposed to implement. In Loper Bright the Supreme Court acknowledged and left in effect Skidmore  Swift & Co., 323 U. S. 134 (1944). In Skidmore the Supreme Court recognized (as described in the Loper Bright opinion): that the “interpretations and opinions” of the relevant agency, “made in pursuance of official duty” and “based upon . . . specialized experience,” “constitute[d] a body of experience and informed judgment to which courts and litigants [could] properly resort for guidance,” even on legal questions. Id., at 139–140. “The weight of such a judgment in a particular case,” the Court observed, would “depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.”
  1.  Richard follows up on the points made in §III(2) when he states it is his opinion that (quoting from his blog entry): “HUD’s guidance concerning service and assistance animals, FHEO-2020-01, also fails the Skidmore test for useful guidance. With respect to assistance animals FHEO-2020-01 must ultimately rest on an evaluation of how individuals with every kind of disability imaginable might be helped by an untrained animal in a way that improves their equal access to housing. There is no reason to believe HUD has the required expertise to make this determination. HUD’s sister agency, the Social Security Administration, does not accept evidence of disability from many of the professionals HUD says can be relied on for a disability determination. The Department of Defense conducted a thorough and expensive study of the effectiveness of assistance animals for individuals with PTSD and could not reach a conclusion that they were effective. HUD does not appear to have conducted any scientific studies of its own and does not seem to have referred to any of the relevant scientific literature concerning assistance animals. Instead, consistent with HUD’s political agenda, HUD’s concern was making it as easy as possible for those with disabilities to obtain housing despite “no pet” rules or pet deposit requirements. An analysis using Skidmore criteria leads to the conclusion that this guidance can and should be ignored by federal courts.”
  1. Richard’s opinion on whether the circular survive Loper Bright is certainly provocative and you can certainly see how he arrived there. My quibble is that I have personally seen the difference assistance animals and psychiatric service animals can make to the lives of individuals with disabilities. Also, the distance between an emotional support animal and a psychiatric service animal can be incredibly small. In fact, I would venture to say that the majority of emotional support animals with proper framing from a skilled attorney knowledgeable in this area, could be considered psychiatric service animals per the Title II and Title III DOJ regulatory scheme on service animals.
  2. Loper Bright can actually cut in favor of persons with disabilities. As I read Loper Bright, the key is whether there is a tight fit between the regulation and the legislation. The nature of the delegation of authority also informs that decision. As mentioned above, the delegation of authority is pretty general when it comes to the FHA. Is there a tight fit between the FHA regulation dealing with service animals and the FHA? What about a tight fit between the FHA regulation and the circular? Turning to the first question, one could argue that a tight fit does exist between the FHA and the service animal regulation the FHA has. This is especially so in light of DOJ’s more comprehensive regulations on service animals that you find in DOJ’s Title II and Title III final regulations, here and here. As such, one wonders whether the assistance animal part of the circular (the part of the circular talking about assistance animals can be animals acting as a service animal but are not dogs), would not survive after Loper Bright. On the other hand, one does have to wonder whether the ESA part of the circular can survive after Loper Bright because the fit between the statute, regulation, and the circular appears to be much more attenuated with respect to emotional support animals.

 

IV

Thoughts/Takeaways

 

  1. With NFL season starting shortly, it is perfectly appropriate to conduct further review. Upon further review, an argument can be made that the circular does survive Kisor and may be entitled to judicial deference for the reasons mentioned above.
  1. An argument can also be made, as discussed above, that the circular with respect to its provisions involving any animal not performing as a service animal, will not survive Loper Bright.
  2. It would take a lot of money for a Condominium Association or a landlord to argue that the circular should not get deference after Kisor. Further, it is not a slam dunk that the circular will not receive deference per Kisor. So, when it comes to animals and dwellings, preventive law would demand that the circular be the first authority that is looked at if an animal is requested as a reasonable accommodation in order to allow a person with a disability to enjoy his or her or they dwelling. On the plaintiff side, when dealing with an emotional support animal situation, you must investigate whether that animal is in fact a psychiatric service animal as that will put the matter in a much stronger position for a plaintiff.
  3. Did Loper Bright overrule Kisor v. Wilkie, which we discussed here. Both the majority and dissenting opinion cite to Kisor with approval. However, logically it is hard to square Loper Bright not overruling Kisor. It is not unusual for the Supreme Court to overrule prior decisions or severely narrow them without explicitly saying so and that may have happened with Loper Bright when compared to Kisor.
  4. The Fair Housing Act still uses the term “handicapped,” unfortunately. “Handicapped,” under the Fair Housing Act is defined in the same way as the ADA and the Rehabilitation Act, though there is a dispute about whether the ADA amendments, which amended how certain definitional terms must be interpreted, are applicable to the Fair Housing Act.
  5. It is unclear whether the major question doctrine would apply to the circular because the case establishing the doctrine involved a regulation and not an agency interpretation of its regulation. Logically speaking, it would seem Kisor would be the case that would apply to the circular and not EPA v. West Virginia. As mentioned above, the wildcard is the applicability, if at all, of Loper Bright to the HUD circular.