I will post slides on the course page after class.

2. I will post slides on the course pageafter class.

3. Agencies & Chevron: Overview AGENCIES GENERALLY • Authority Delegated by/from Legislature • Expertise in Particular Field • Efficiency (Addressing Details) • Executive Branch Authority/Responsibility • Operation • Regulation (Formal & Informal) • Enforcement & Administrative Hearings

4. Agencies & Chevron: Overview CHEVRON DEFERENCE (p.262) Courts “defer to an agency's interpretation of a statute that it is charged with implementing if the statute is ambiguous and the agency's interpretation is reasonable.”

5. Agencies & Chevron: Overview Chevron STEP 1: Is Statute Ambiguous? • P.262: A statute is ambiguous if Congress has not “directly spoken to the precise question at issue.” Chevron, 467 U.S. at 842. • P.263: In determining whether a statute is ambiguous, we apply the traditional tools of statutory construction, including looking to the plain meaning of the text or the underlying purpose of the statute.

6. Agencies & Chevron: Overview Chevron STEP 1: Is Statute Ambiguous? • If court overturns agency interpretation, it is usually at this stage, saying that agency interpretation directly contradicts clear intent of Congress • If court finds statute ambiguous on relevant point, move on to Step 2.

7. Agencies & Chevron: Overview STEP 2: Agency Interpretation Reasonable? Standard Very Deferential in Practice • Doesn’t have to be only permissible interpretation • Doesn’t have to be result court would have chosen

8. Agencies & Chevron: Overview STEP 2: Agency Interpretation Reasonable? Standard Very Deferential in Practice: E.g., Nationwide Mutual Ins. Co. v. Cisneros., 52 F.3d 1351 (6th Cir. 1995): Only overturn if • inconsistent with the statutory mandate; • frustrate[s] the policy that Congress sought to implement; • compelling reasons to believe agency is wrong

9. Agencies & Chevron: Overview STEP 2: Agency Interpretation Reasonable? Standard Very Deferential in Practice: E.g., Nationwide Mutual Ins. Co. v. Cisneros., 52 F.3d 1351 (6th Cir. 1995): Only overturn if • inconsistent with the statutory mandate; • frustrate[s] the policy that Congress sought to implement; • [Note difficulty of determining “the policy” (Speluncean Explorers) • compelling reasons to believe agency is wrong

10. Putnam Overview • Significance of Case for Our Course • Legislative/Regulatory Timeline • Dispute at Issue

11. Putnam Overview: Significance of Case for Our Course • Good example of Chevron Analysis • Good examples of common statutory arguments • Not responsible for substance of interpretation of Housing for Older Persons exception

12. Putnam Overview: Legislative/Regulatory Timeline • 1968: FHA enacted • 1974: “Sex” added to statute (note error p.259) • 1988: FHAA adds “familial status” & exception for “housing for older persons” • 1988-95: Restrictive interpretations of exception by HUD & lower courts • 1995: HOPA enacted • 1999: New HUD regulations

13. Putnam Overview: Legislative/Regulatory Timeline 1995: HOPA Enacted: Purposes (pp.260-61) • Generally “to preserve housing for older persons.” • Clarify which housing qualifies for exemption • Eliminate “significant facilities and services” requirement

14. Putnam Overview: Legislative/Regulatory Timeline 1995: HOPA Enacted: Specific Changes (p.259-60) • Eliminates “significant facilities and services” requirement • Policies and procedures must demonstrate : • “intent by the owner & manager” changed to • “intent required under this subparagraph” • Specific mandate to HUD for regulations changed: • From: determining what housing qualifies for exemption • To: rules for verifying senior occupancy and examples of relevant policies & procedures

15. Putnam Overview: Legislative/Regulatory Timeline 1999: New HUD Regulations (p.261) • Define “housing facility or community” that must issue & comply with “policies and procedures” to include a “municipally zoned area” • In Appendix, HUD “listed specific examples of how various facilities and communities could meet this intent requirement” Example 2 dealt with the requirement in the context of a zoned area.

16. Putnam Overview: Dispute at Issue • As of 2009, Yucaipa County: • Has disproportionate number of senior citizens • Has several mobile home parks that currently are operated as exempted “housing for older persons” • County passes ordinance creating zoning area in which mobile home parks operating as senior housing cannot switch to all-age

17. Putnam Overview: Dispute at Issue Mobilehome park owners sue, claiming ordinance violates FHA “familial status” provisions. • Ps: Can’t force us to remain senior housing b/c forces us to reject families w children when we don’t want to • Court: Not familial status discrimination if housing qualifies for senior exception

18. Putnam Overview: Dispute at Issue Statutory Question re Senior Exception • Exception applies if housing “intended and operated for occupancy by persons 55 years of age or older…” Must relevant intent be that of the private housing provider or can it be supplied by municipality? • HUD regs say municipal intent OK • After Chevron analysis, Ct.App. defers to this interp.

19. A Statute [the Agency] is Charged with Implementing • Generally: • p.265: “Congress has invested the HUD Secretary with rulemaking authority, §3535(d), and with the general ‘authority and responsibility for administering [the FHA.]’ §3608(a).” • P.262: Courts generally defer to HUD re interpretations of FHA

20. A Statute [the Agency] is Charged with Implementing • Ps: Congress didn’t given HUD specific authority to define “housing facility or community” • Court (p.265-66): • Don’t need explicit authority re particular phrases & here Congress hadn’t defined terms itself • HOPA did give express authority to “HUD to illustrate how a housing facility or community could demonstrate the intent to provide senior housing. … HUD's Example 2… is an exercise of this expressly delegated authority

21. A Statute [the Agency] is Charged with Implementing • Ps argued that Congress in HOPA was trying to overturn HUD’s interpretations of the senior exemption and thus intended to take away HUD’s authority to regulate re the exemption. • Court says Congress’s “remedy” for HUD errors re “facilities and services” requirement “was removing that requirement rather than cabining HUD's general authority to issue regulations.” (p.266)

22. The Statute is Ambiguous: Arguments from Plain Meaning of the Text (263-64) • Statute doesn’t say whose intent matters, although HUD’s own regs say must be intent of “the housing facility or community,” so need to look to meaning of that language.

23. The Statute is Ambiguous: Arguments from Plain Meaning of the Text (263-64) Meaning of “housing facility or community” • Ps: Plain meaning does not include “city” • Court: Even if true, part of city defined by zoning could be community.

24. The Statute is Ambiguous: Arguments from Plain Meaning of the Text (263-64) Meaning of “housing facility or community” • Statute & legislative history do not define term • Text & history provide some clarification: Must… • be able to publish and adhere to policies and procedures re senior housing & comply with rules re verification of occupancy • “be broader than … owners or managers” b/c HOPA added “housing facility or community” when it deleted earlier language re “an intent by the owner or manager ….” • Statute gives no guidance as to what entities can meet these reqmts

25. The Statute is Ambiguous: Arguments from Plain Meaning of the Text (263-64) Meaning of “housing facility or community” • “natural reading … is a group of dwellings bound together by shared characteristics, such as a common set of rules or a shared governing structure. In the context of the senior exemption, the relevant shared characteristic would be a common set of [residency] rules….”

26. The Statute is Ambiguous: Arguments from Plain Meaning of the Text (263-64) Meaning of “housing facility or community” • “natural reading … is a group of dwellings bound together by … a common set of [residency] rules….” • FHA doesn’t address whether these must be internal or instead can be externally imposed • Doesn’t say what to do when “various actors affiliated with the housing disagree over whether it should operate as senior housing—for example, when a condominium association wants to operate as senior housing but some of the individual owners of the condominiums do not.”

27. The Statute is Ambiguous: Arguments from Plain Meaning of the Text (263-64) Meaning of “housing facility or community” • Court concludes statutory language doesn’t resolve question, so looks to purpose

28. The Statute is Ambiguous: Arguments from Statutory Purpose(265) • Generally: Any time you have a statutory exception at least two purposes at issue: • Purpose for enacting statute • Purpose for including exception (by definition, will contradict first purpose to some extent) • Usual way to handle is: • Interpret remedial language of statute broadly • Interpret exemption narrowly (e.g., pre-HOPA interps of senior housing exception)

29. The Statute is Ambiguous: Arguments from Statutory Purpose(265) • Here, court identifies two purposes at odds: • FHA: to limit discrimination in the housing arena (specifically re families w children) • Senior exemption: preserve housing for older persons (which will limit housing for families) • Court does not apply usual rule reading exceptions narrowly, but says HUD’s broader reading is plausible.

30. The Statute is Ambiguous: Arguments from Statutory Purpose(265) • Court finds HUD’s broader reading of exception not inconsistent w Congressional intent b/c • HOPA was subsequent very strong (nearly unanimous) Congressional support for policy behind exception • Political Spinelessness Argument: “[D]eference is particularly appropriate when we are dealing with interpretive decisions that Congress would likely have chosen to delegate to the agency. Congress may well prefer to delegate the task of balancing competing policies and interests, especially when (as with seniors and families), both are popular.”

31. The Agency’s Interpretation is Reasonable (265 paras. 3-4) • Fits w HOPA intent to preserve senior housing • Not a significant expansion of exception b/c • only applies to existing senior housing • City must ensure rigorous requirements met • Purposes of “intent” requirement met: • Exclusion of kids really to ensure senior housing, not pretext for animus • Policies give notice of exempt status and ensure age reqmts applied consistently