Charisse Allen v. Housing Authority of the City of Auburn, Alabama, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11343
________________________
D.C. Docket No. 3:14-cv-00706-WKW-TFM
CHARISSE ALLEN,
Plaintiff - Appellant,
versus
HOUSING AUTHORITY OF THE CITY OF AUBURN, ALABAMA,
a public corporation,
LEE EASTMAN, in his official capacity as Executive
Director of the Housing Authority,
STAR PASCHAL,
in her official capacity as director of the Section 8 program
for the Housing Authority of the City of Auburn, Alabama,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
________________________
(November 23, 2015)
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Before ROSENBAUM, JULIE CARNES, and DUBINA, Circuit Judges.
PER CURIAM:
Charisse Allen filed an action against the Housing Authority of the City of
Auburn, Alabama, alleging that the Housing Authority discriminated against her
when it terminated her Section 8 housing, in violation of the Fair Housing Act, as
amended by the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3600, et
seq. (“FHA”). In response, the Auburn Housing Authority filed a motion to
dismiss the Amended Complaint, arguing that Allen’s claim was barred by the
applicable two-year statute of limitations. The district court agreed and dismissed
Allen’s lawsuit with prejudice. In this appeal, Allen asserts that the district court
erred in dismissing her action because the two-year statute of limitations normally
applicable to FHA claims was tolled in her case. For the reasons set forth below,
we find no error in the dismissal of Allen’s FHA claim. Consequently, we affirm
the judgment of the district court.
I.
Allen was a tenant of Section 8 housing administered by the Tuskegee,
Alabama, Housing Authority.1 In June or July of 2010, Allen began the process of
1 Since we are reviewing an order granting a motion to dismiss, we take the factual
allegations from the operative complaint and view them in the light most favorable to Allen. See
Young Apartments, Inc. v. Town of Jupiter, 529 F.3d 1027, 1031 (11th Cir. 2008). We also take
the facts in this case from documents attached to Defendants’ motions to dismiss, since they are
“central to the plaintiff’s claim,” and their authenticity is not challenged. See Day v. Taylor, 400
F.3d 1272, 1276 (11th Cir. 2005).
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requesting to “port,” or relocate, from the Tuskegee Housing Authority to the
Auburn Housing Authority.
In connection with this request, Allen sought a two-bedroom unit to
accommodate her physical and mental disabilities. The Tuskegee Housing
Authority approved Allen’s request for a two-bedroom home on November 29,
2010.
According to Allen, however, the Auburn Housing Authority—to which she
sought to “port”—refused to acknowledge the Tuskegee-granted accommodation
and informed Allen that she would have to begin her request for an
accommodation anew. On January 24, 2011, Allen again submitted a request for
an accommodation.
She also filed a complaint with the Department of Housing and Urban
Development (“HUD”) against the Auburn Housing Authority in January 2011,
alleging that the Auburn Housing Authority violated both the FHA and § 504 of
the Rehabilitation Act, 29 U.S.C. § 794 (the “HUD Complaint”) by discriminating
against her based on her mental and physical disabilities. In the HUD Complaint,
Allen asserted that she had met “heavy resistance” from the Auburn Housing
Authority’s Section 8 Director Star Paschal, who she claimed intentionally caused
Allen’s move to be more difficult than necessary. In accordance with the FHA,
HUD notified the Auburn Housing Authority of the HUD Complaint on January
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24, 2011, explaining that it would investigate the matter to determine whether
Allen’s complaint had merit.
While the HUD Complaint was pending, on March 1, 2011, the Auburn
Housing Authority approved Allen’s request. Although Allen moved into her new
residence at that time, she refused to sign the lease agreement. According to Allen,
she refused to sign the agreement because she believed that the rental payment
calculation incorrectly failed to deduct or allow for certain medical expenses. In
response, the Auburn Housing Authority made repeated demands—through phone
calls and letters—that Allen sign the agreement.
Among these, in late March 2011, the Auburn Housing Authority sent Allen
a letter directing her to appear at its offices on April 13 to sign the necessary
paperwork. The letter also instructed Allen to bring documentation to substantiate
her claimed medical expenses. Allen arrived for the meeting, but she asserts that
an Auburn Housing Authority representative, Glen Ritta, refused to consider the
medical-expense deductions claimed by Allen. Instead, Ritta demanded that Allen
sign the lease. Allen again refused and “reacted extremely negatively.”
On April 18, 2011, the Auburn Housing Authority’s Section 8 Director
mailed Allen a Notice of Termination of Assistance. The Notice informed Allen
that her Section 8 benefits were being terminated because she refused to sign the
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lease and because she was a “threat.” The Notice advised Allen, however, that she
had the right to request an informal hearing.
Allen requested a review of the decision. On April 27, 2011, the Auburn
Housing Authority notified Allen that a “documents only review” of her appeal
was scheduled for May 6, 2011, because, in Allen’s words, “they were afraid of
her.”2 The April 27 letter also stated that review would be limited to the issue of
Allen’s failure to sign required Section 8 documents, and it informed Allen that the
matter would be presented to an independent fact finder.
A retired circuit judge conducted an informal hearing on June 7, 2011,
regarding the termination of Allen’s Section 8 benefits. During the hearing, the
judge heard from witnesses and received evidence, but Allen never appeared.
After consideration, the judge concluded that the Auburn Housing Authority had
presented “overwhelming evidence” that it was justified in terminating Allen’s
Section 8 assistance in accordance with HUD regulations. The decision was
memorialized in a June 29, 2011, report.
In the interim, on April 29, 2011, HUD issued a letter to Allen regarding her
earlier-filed HUD Complaint that had been pending since January 2011. The letter
2 The letter advising Allen of the hearing states that a few days after Allen received the
Termination Notice, she called HUD and told an investigator that she was “going to come to the
Housing Authority [and] lay [her] hands on Ms. Paschal and pop two in her.” When the
investigator asked Allen to clarify what she meant, Allen stated, “You know what I mean . . . .
I’m going to shoot her twice.” As a result, the Auburn Housing Authority notified the Auburn
Police Department of the alleged threat, and the police department issued a no trespass letter to
Allen.
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indicated that HUD had completed its investigation and concluded that, “[b]ased
on the evidence obtained during the investigation, . . . no reasonable cause
exist[ed] to believe that a discriminatory housing practice ha[d] occurred.” The
letter also informed Allen that HUD had “completed its administrative processing
of [her] complaint under the [Fair Housing] Act, and the complaint is hereby
dismissed.” Allen alleges, after receiving this determination letter, she “continued
to pursue administrative remedies through at least March 2013.”
Although the record does not contain the letter in which Allen sought review
of the FHA determination, it is apparent that sometime prior to September 2, 2011,
Allen, in fact, made such a request. A program analyst responded to Allen’s
request on September 2, 2011, by letter, advising Allen that HUD was responding
to her “request for review of the Department’s Letter of Findings, under Section
504 of the Rehabilitation Act of 1973 and Determination of No Reasonable Cause
pursuant to Title VIII of the Civil Rights Act of 1968, as amended by the Fair
Housing Act of 1988. . . .” The letter informed Allen that the “regulation that
governs the processing of the complaint, 24 CFR § 8.56(h), allows for review of
the [Letter of Findings] if the timely request for review includes supplementary
information.” In addition, the letter stated that the “reviewing civil rights official,
who will either sustain or modify the [Letter of Findings], is reviewing your letter
pursuant to 24 CFR 8.56(h). Once the review has been completed, the Department
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will advise you of its determination.” A few days later, on September 13, 2011,
the same program analyst sent Allen another letter attaching a copy of his
September 2, 2011, correspondence because there had been an incorrect address on
file for Allen.
Over three years later, on November 25, 2014, following an apparent inquiry
by Allen’s counsel, a HUD official notified Allen’s counsel that she was “unable to
locate the letter of determination for the review requested by Charisse Allen” and
that the office would “re-review the case and issue a formal letter of determination
as expeditiously as possible.”3 In the interim, but still over three years after HUD
3 Allen’s operative complaint alleges that Allen “continued to pursue administrative
remedies through at least March 2013.” To support this allegation, Allen filed only an email that
Allen forwarded to an employee of HUD on March 15, 2013. The forwarded email was a
response that Allen had received to an undisclosed email she had sent to the Office of Public
Affairs at the Department of Health and Human Services (“HHS”) Office of Inspector General.
The subject line of the email stated, “Fw: Letter I wrote to the President sent from Charisse
Allen.” Its body read,
In response to your Email to Ms. Davis, we have reviewed
the material you sent.
Your correspondence shows that you have contacted the
correct federal agencies regarding your situation.
Recommend you continue your efforts to reach resolution
with the Department of Housing and Urban Development via their
Office of Inspector General.
If you have not yet heard from the White House since your
letter of 2010, you may want to consider contacting them to find
out what happened to your correspondence.
We do not find this email to have any relevance to the statute-of-limitations issue or any other
issue in this case, as it does not reference any particular complaint or actions that Allen
undertook. Moreover, whatever Allen’s original “[e]mail to Ms. Davis,” the responding HHS
employee suggested contact with only HUD’s Office of Inspector General, and Allen’s
administrative complaint in this case was never pending with HUD’s Office of Inspector
General. Nothing else in the record demonstrates any interaction by Allen with HUD or the
Auburn Housing Authority between September 13, 2011, and November 25, 2014.
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dismissed the FHA claim, Allen commenced the underlying lawsuit on July 25,
2014. The operative complaint advanced only an FHA claim against the Auburn
Housing Authority.
II.
On February 27, 2015, the district court dismissed Allen’s Amended
Complaint, finding it to be time-barred by the FHA’s two-year statute of
limitations. First, the district court noted that Allen did not dispute that April 18,
2011—the date her Section 8 benefits were terminated—was the “occurrence” date
for purposes of the accrual of her claim, or that she filed her Complaint on July 25,
2014.4 Because Allen filed her lawsuit more than two years after the accrual of her
FHA claim, the district court recognized that Allen had to rely on the FHA’s
tolling provision—42 U.S.C. § 3613(a)(1)(B)5—to rescue her lawsuit from
dismissal. The district court acknowledged that an administrative proceeding that
meets § 3613(a)(1)(B)’s requirements tolls the running of the statute of limitations
during the proceeding’s pendency. Allen asserted that her original HUD
4 Allen suggested that the “occurrence” date should be adjusted to account for the fact
that she did not receive the notice of termination until August 24, 2011. But even using this date,
the action was filed well past the expiration of the two-year statute of limitations.
5 Section 3613(a)(1)(B) provides, in relevant part,
The computation of such 2-year period shall not include any time
during which an administrative proceeding under this subchapter
was pending with respect to a complaint or charge under this
subchapter based upon such discriminatory housing practice. . . .
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Complaint (filed in January 2011) and subsequent correspondence tolled the
limitations period. The district court disagreed.
In its order of dismissal, the district court acknowledged that Allen relied on
the September 2, 2011, letter from HUD, which informed her that her request for
review of HUD’s letter of findings under § 504 was pending, to toll the statute of
limitations. The court also noted that Allen pointed to email correspondence from
a HUD official, dated November 25, 2014, to substantiate her argument that the
limitations period was tolled. But in the district court’s view, the September 2,
2011, letter could not, as a matter of law, have indicated—and did not indicate—
that review of Allen’s FHA claim was being undertaken—only that review of her §
504 claim was occurring. And, the district court reasoned, the allegedly ongoing §
504 review proceeding could not have tolled the FHA’s statute of limitations.
Consequently, the district court found that Allen’s FHA claim—the only claim in
her operative complaint—had to be dismissed because it was filed after the
expiration of the applicable statute of limitations. Allen now appeals.
III.
We review a district court’s dismissal of a complaint pursuant to Rule
12(b)(6), Fed. R. Civ. P., de novo. In doing so, we accept the allegations in the
complaint as true and construe them in the light most favorable to the plaintiff.
Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006). Generally, the
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scope of review under Rule 12(b)(6) is limited to the four corners of the complaint,
but a court may also consider “an extrinsic document if it is (1) central to the
plaintiff’s claim, and (2) its authenticity is not challenged.” Speaker v. U.S. Dep’t
of Health & Human Servs. Ctrs. For Disease Control & Prevention, 623 F.3d
1371, 1379 (11th Cir. 2010); Harris v. Ivax Corp., 182 F.3d 799, 802 n.2 (11th Cir.
1999).
The interpretation and application of a statute of limitations present legal
questions that this Court reviews de novo. United States v. Rojas, 718 F.3d 1317,
1319 (11th Cir. 2013); Harris, 182 F.3d at 802. We may affirm the decision of the
district court for any reason supported by the record, even if that ground was not
relied upon or considered by the district court. Kernel Records Oy v. Mosley, 694
F.3d 1294, 1309 (11th Cir. 2012) (citing Krutzig v. Pulte Home Corp., 602 F.3d
1231, 1234 (11th Cir. 2010) (“This court may affirm a decision of the district court
on any grounds supported by the record.”).
IV.
The FHA prohibits discrimination in housing on the basis of race, color,
religion, sex, national origin, familial status, and disability. 42 U.S.C. § 3601, et
seq. It also provides a mechanism by which private parties can vindicate their
rights. The relevant provision of the FHA states,
An aggrieved person may commence a civil action in an
appropriate United States district court or State court not
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later than 2 years after the occurrence or the termination
of an alleged discriminatory housing practice, or the
breach of a conciliation agreement entered into under this
subchapter, whichever occurs last, to obtain appropriate
relief with respect to such discriminatory housing
practice or breach.
42 U.S.C. § 3613(a)(1)(A). Thus, the FHA provides for a two-year statute of
limitations in which a plaintiff must commence her action. This statute of
limitations, however, may be tolled, as § 3613(a)(1)(B) provides.6 The FHA’s
tolling provision is at the center of this appeal.
Because the FHA’s tolling provision applies only during the timeframe
when an administrative proceeding under the subchapter of which the tolling
provision is a part is pending, the question becomes whether an FHA determination
of no reasonable cause is subject to administrative review. If it is, we must
evaluate whether this type of proceeding was pending after Allen received the
April 29, 2011, letter informing her that her FHA complaint was dismissed. Allen
claims that administrative review of an FHA determination of no reasonable cause
is possible and, in this case, such a proceeding was pending. The Auburn Housing
Authority disagrees.
Allen makes various arguments as to why the two-year statute of limitations
was tolled in this case. In short, she argues that the district court improperly found
that FHA determinations are not subject to administrative review and that, as a
6 See supra at n.5.
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result, the clock on her federal lawsuit began running on April 29, 2011.
According to Allen, the district court ignored HUD’s interpretations of the FHA’s
review provisions as embodied in its Notice FHEO 96-1 (which establishes how
the government handles the processing of multi-jurisdictional complaints) and in
HUD’s Fair Housing Complaint process set forth on HUD’s website. In Allen’s
view, the website evidences that administrative review of FHA determinations is
possible if requested. See http://portal.hud.gov/hudportal/HUD?src=/program_
offices/fair_housing_equal_opp/complaint-process (last visited November 23,
2015). And since she never heard back from HUD with a resolution regarding the
September 2, 2011, letter, the statute of limitations had not run when Allen filed
her complaint in the pending case on July 25, 2014.
The success of Allen’s appeal depends in part upon whether HUD may
administratively review no-cause determinations under the FHA. But nothing in
the statutory scheme of the FHA expressly contemplates such review. And unlike
with the implementing regulations for § 504, the FHA’s implementing regulations
do not provide for administrative review of determinations of no reasonable cause.
Allen responds to these problems by relying on Notice FHEO 96-1 and HUD’s
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website as evidence that HUD permits administrative review of no-reasonable-
cause determinations.7
For this reason, we must consider whether Notice FHEO 96-1 and HUD’s
website are entitled to deference. Typically, to answer this question, we would
review both the Notice and website to determine whether they are entitled to any
deference under Skidmore v. Swift & Co., 323 U.S. 134, 65 S. Ct. 161 (1944).8
Under Skidmore, the weight afforded depends on “the thoroughness evident in [the
agency interpretation’s] 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.” United States v. Mead Corp., 533 U.S. 218,
228, 121 S. Ct. 2164, 2172 (2001) (quoting Skidmore, 323 U.S. at 140, 65 S. Ct.
161, 164)).
Here, however, we need not and do not decide whether the provisions
contained in Notice FHEO 96-1 and HUD’s website are entitled to Skidmore
7 Allen emphasizes that section A.2.d of Notice FHEO 96-1 provides, “If, under Section
504/ADA/section 109, the complainant requests a review, the review by Headquarters will
encompass those statutes and the Fair Housing Act finding.” Based upon this provision, Allen
claims that it is clear that if Allen requested review under § 504, such review will necessarily
include review of the FHA finding. Additionally, Allen points to the HUD website, which states
that a complainant who disagrees with a determination of no reasonable cause “can request
reconsideration of the case” by sending a letter to the Director of the Office of Enforcement in
Washington, D.C.”
8 “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.” Christensen v. Harris Cty., 529 U.S. 576, 587, 120 S. Ct.
1655, 1662 (2000) (citations omitted).
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deference. Even assuming that HUD’s April 29, 2011, determination of no
reasonable cause were subject to administrative review, Allen’s FHA claim, as
presented to the district court, was untimely. Significantly, the implementing
regulations for § 504 provide the process by which a § 504 determination may be
reviewed. See 24 C.F.R. § 8.56. Subsection (h)(3) of the regulation states that the
“reviewing civil rights official shall either sustain or modify the letter of findings
within 60 days of the request for review.” 24 C.F.R. § 8.56(h)(3) (emphasis
added). This decision constitutes the formal determination on administrative
review. Id.
According to Allen, she sought review of both her § 504 and FHA claims
sometime before September 2011, and these multi-jurisdictional claims were being
processed pursuant to Notice FHEO 96-1. Because the claims were processed
together, Allen would have received notice regarding the status of her appeal of
both claims at the same time, in the same letter. And because, under the
implementing regulations for § 504, official review of the claims was required to
be completed within sixty days of Allen’s request for review, Allen was on notice
that she should have received a decision on her appeal by the end of October or
beginning of November 2011, at the latest. When Allen did not receive notice of a
formal determination on administrative review after sixty days, she should have
followed up with HUD to be sure that review was actually pending.
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But Allen did not do that. Instead, she waited for more than three years
before asking HUD about the status of her claim. This delay was plainly
unreasonable. While we do not suggest that Allen had to follow up on her claims
on the 61st day after her request for review, she was required to have done so
within a reasonable time. If that were not the case, the congressionally enacted
statute of limitations would be meaningless because a party could always breathe
new life into an expired claim by simply inquiring into the status of the claim—no
matter how much time had passed since making the claim in the first place.
As we have noted previously, limitations periods “represent a pervasive
legislative judgment that it is unjust to fail to put the adversary on notice to defend
within a specified period of time.” Crawford v. LVNV Funding, LLC, 758 F.3d
1254, 1260 (11th Cir. 2014) cert. denied, 135 S. Ct. 1844 (2015) (quoting United
States v. Kubrick, 444 U.S. 111, 117, 100 S. Ct. 352, 356–57 (1979)). This is
because “the right to be free of stale claims in time comes to prevail over the right
to prosecute them.” Id. (citation omitted). Statutes of limitations “protect
defendants and the courts from having to deal with cases in which the search for
truth may be seriously impaired by the loss of evidence, whether by death or
disappearance of witnesses, fading memories, disappearance of documents, or
otherwise.” Id. (citation omitted). Here, by failing to follow up on her FHA claim
for over three years, Allen abandoned these claims, and the district court did not
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err when it dismissed the Amended Complaint for failure to comply with the two-
year statute of limitations.
V.
For the reasons set forth herein, we affirm the district court’s dismissal of
Allen’s FHA claim for failure to comply with the two-year statute of limitations.
AFFIRMED.
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