FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND T. BALVAGE and
DEBORAH A. BALVAGE, husband
and wife; CHARLES E. WEAVER and
SUSAN M. WEAVER, husband and
wife; JOYCE MARIE ADAMS; LUVERN
HARLAND ALLEN; EDGAR AMES;
JAMES ALVIN BAKER and DARLA
JEAN BAKER, husband and wife;
RALPH ALVIN BARFELL, JR.; SHARON
MARIE BANTA; RAY BODINE and
JANIE KAY BODINE, husband and
wife; RICHARD ANTHONY BRAGA, Nos. 10-35714
JR. and MARGARET LOUISE BRAGA, 10-35970
husband and wife; CHARLES
THOMAS CALDWELL and SANDI KAY D.C. No.
3:09-cv-05409-BHS
CALDWELL, husband and wife;
LAREN WILLBUR COLEMAN and OPINION
PAMELA DENISE COLEMAN, husband
and wife; ALVIN DEE COLPITTS and
CORABELLE COLPITTS, husband and
wife; BETTY GENE DONOGHUE;
ELIZABETH ELAINE DUPREE; JOYCE
ELAIN FISCHER; JEANNETTE H.
HEADEN; GLENN RICHARD HUESTIS
and CAROL NADINE HUESTIS,
husband and wife; BARBARA JEAN
JOY; MIRIAM MARGARET KENNEDY-
ALLEN; GERALD BLAIR KOLB and
5413
5414 BALVAGE v. RYDERWOOD IMPROVEMENT
ETHEL MAY KOLB, husband and
wife; ALFRED WESLEY LEACH and
GLORIA EILEEN LEACH, husband
and wife; RAYMOND ERNEST
MORRIS and CAROLYN L. MORRIS,
husband and wife; ARNOLD
NADEAU; KAREN CAMPBELL; BOB
PISTONE and DORIS PISTONE,
husband and wife; VERN POWELL
and SHARON POWELL, husband and
wife; EARLEEN M. RUTHERFORD;
CHARLES JOHN SANTINEAU;
BARBARA LOUISE PEPPER; LUCAS
JOHN SHIMMIN; DON SMITH and
DIANE SMITH, husband and wife;
DONALD NEIL STROUD and SHARON
LEE STROUD, husband and wife;
WALTER GORDON WEST and JANET
MARIE WEST, husband and wife;
BEVERLY WHITE; BOB WHITE and
DIANE WHITE, husband and wife,
Plaintiffs-Appellees,
v.
RYDERWOOD IMPROVEMENT AND
SERVICE ASSOCIATION, INC., a
Washington non-profit corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Argued and Submitted
January 14, 2011—Seattle, Washington
BALVAGE v. RYDERWOOD IMPROVEMENT 5415
Filed April 27, 2011
Before: Susan P. Graber and Raymond C. Fisher,
Circuit Judges, and Consuelo B. Marshall, District Judge.*
Opinion by Judge Fisher
*The Honorable Consuelo B. Marshall, Senior United States District
Judge for the Central District of California, sitting by designation.
BALVAGE v. RYDERWOOD IMPROVEMENT 5417
COUNSEL
Steven Goldstein (argued), Richard Ross and Victoria M.
Pond, Betts, Patterson & Mines, P.S., Seattle, Washington, for
the defendant-appellant.
5418 BALVAGE v. RYDERWOOD IMPROVEMENT
Joseph E. Lynam (argued) and Abraham K. Lorber, Lane
Powell PC, Seattle, Washington, for the plaintiffs-appellees.
Thomas E. Perez, Assistant Attorney General, Dennis J. Dim-
sey and Jennifer Levin Eichhorn, Attorneys, U.S. Department
of Justice, Civil Rights Division, Appellate Section, Washing-
ton, D.C., for amicus curiae Secretary of the U.S. Department
of Housing and Urban Development.
OPINION
FISHER, Circuit Judge:
We hold that a residential community that has continuously
operated as a retirement community for persons age 55 or
older can qualify for the housing for older persons exemption
from the Fair Housing Act’s prohibition on familial status dis-
crimination by establishing that it currently satisfies the
exemption’s three statutory and regulatory criteria at the time
of the alleged violation, even if the community enforced age
restrictions when it first achieved compliance with the exemp-
tion’s age verification requirement.
BACKGROUND
I.
In 1988, Congress amended the Fair Housing Act (FHA)
and prohibited housing discrimination on account of familial
status. See Fair Housing Amendments Act of 1988 (FHAA),
Pub. L. No. 100-430, 102 Stat 1619. As amended by the
FHAA, the FHA broadly prohibits discrimination against
families with children in connection with the sale and rental
of housing. See 42 U.S.C. §§ 3604(a)-(e), 3605, 3606, 3617,
3631.1
1
“ ‘Familial status’ means one or more individuals (who have not
attained the age of 18 years) being domiciled with . . . a parent or another
BALVAGE v. RYDERWOOD IMPROVEMENT 5419
At the same time, Congress recognized the effect these pro-
hibitions would have on retirement communities and created
exemptions in the FHA for qualified “housing for older per-
sons.” Id. § 3607(b). The housing for older persons exemp-
tions permit communities satisfying certain requirements to
discriminate on the basis of familial status. See id. The
exemptions apply to three types of housing, including, as rele-
vant here, housing for persons 55 years of age or older. See
id. § 3607(b)(2)(C).2
The familial status provisions of the FHA, including the
housing for older persons exemptions, became effective in
March 1989. See id. § 3601 note (quoting FHAA § 13(a)). In
January 1989, the Department of Housing and Urban Devel-
opment (HUD) issued final regulations implementing the
exemptions. See Implementation of the Fair Housing Amend-
ments Act of 1988, 54 Fed. Reg. 3232, 3290-3291 (Jan. 23,
1989); see also 24 C.F.R. §§ 100.10(b), 100.300-100.304
(1991). A few years later, in 1995, Congress passed the Hous-
ing for Older Persons Act (HOPA), Pub. L. No. 104-76, § 2,
109 Stat. 787, which revised the 55 or older exemption.
Under the FHA, as amended by the FHAA and HOPA,
housing qualifies for the 55 or older exemption (“the HOPA
exemption”) when it is “intended and operated for occupancy
by persons 55 years of age or older” and three requirements
are satisfied:
person having legal custody of such individual or individuals; or . . . the
designee of such parent or other person having such custody, with the
written permission of such parent or other person.” 42 U.S.C. § 3602(k).
The protections against familial status discrimination also apply to “any
person who is pregnant or is in the process of securing legal custody of
any individual who has not attained the age of 18 years.” Id.
2
Although not relevant here, the exemptions also include (1) housing
provided under certain state or federal programs specifically designed and
operated to assist elderly persons and (2) housing intended for, and solely
occupied by, persons 62 years of age or older. See 42 U.S.C.
§ 3607(b)(2)(A)-(B).
5420 BALVAGE v. RYDERWOOD IMPROVEMENT
(i) at least 80 percent of the occupied units are occu-
pied by at least one person who is 55 years of age or
older;
(ii) the housing facility or community publishes and
adheres to policies and procedures that demonstrate
the intent required under this subparagraph; and
(iii) the housing facility or community complies with
rules issued by the Secretary for verification of occu-
pancy, which shall —
(I) provide for verification by reliable sur-
veys and affidavits; and
(II) include examples of the types of poli-
cies and procedures relevant to a determina-
tion of compliance with the requirement of
clause (ii). Such surveys and affidavits shall
be admissible in administrative and judicial
proceedings for the purposes of such verifi-
cation.
42 U.S.C. § 3607(b)(2)(C).3 It is the third of these criteria —
the requirement that the community verify occupancy “by
reliable surveys and affidavits” — that is at issue here. In
1999, HUD published final regulations implementing HOPA.
3
Until 1995, when Congress adopted HOPA, a community claiming the
55 or older exemption had to demonstrate “the existence of significant
facilities and services specifically designed to meet the physical or social
needs of older persons, or if the provision of such facilities and services
is not practicable, that such housing is necessary to provide important
housing opportunities for older persons.” 42 U.S.C. § 3607(b)(2)(C)(i)
(1994). HOPA eliminated that requirement and replaced it with the verifi-
cation requirement now codified at 42 U.S.C. § 3607(b)(2)(C)(iii). See
Taylor v. Rancho Santa Barbara, 206 F.3d 932, 935 (9th Cir. 2000);
Implementation of the Housing for Older Persons Act of 1995, 64 Fed.
Reg. 16,324, 16,324 (Apr. 2, 1999).
BALVAGE v. RYDERWOOD IMPROVEMENT 5421
See Implementation of the Housing for Older Persons Act of
1995, 64 Fed. Reg. 16,324, 16,329-16,332 (Apr. 2, 1999); 24
C.F.R. §§ 100.304-100.308. HUD adopted a regulation, 24
C.F.R. § 100.307, specifying the actions a community must
take to satisfy the verification requirement mandated by 42
U.S.C. § 3607(b)(2)(C)(iii). Section 100.307 states:
(a) In order for a housing facility or community to
qualify as housing for persons 55 years of age or
older, it must be able to produce, in response to a
complaint filed under this title, verification of com-
pliance with § 100.305 [i.e., at least 80 percent of its
occupied units must be occupied by at least one per-
son 55 years of age or older] through reliable sur-
veys and affidavits.
(b) A facility or community shall, within 180 days of
the effective date of this rule, develop procedures for
routinely determining the occupancy of each unit,
including the identification of whether at least one
occupant of each unit is 55 years of age or older.
Such procedures may be part of a normal leasing or
purchasing arrangement.
(c) The procedures described in paragraph (b) of this
section must provide for regular updates, through
surveys or other means, of the initial information
supplied by the occupants of the housing facility or
community. Such updates must take place at least
once every two years. A survey may include infor-
mation regarding whether any units are occupied by
persons described in paragraphs (e)(1), (e)(3), and
(e)(4) of § 100.305.
(d) Any of the following documents are considered
reliable documentation of the age of the occupants of
the housing facility or community:
5422 BALVAGE v. RYDERWOOD IMPROVEMENT
(1) Driver’s license;
(2) Birth certificate;
(3) Passport;
(4) Immigration card;
(5) Military identification;
(6) Any other state, local, national, or inter-
national official documents containing a
birth date of comparable reliability; or
(7) A certification in a lease, application,
affidavit, or other document signed by any
member of the household age 18 or older
asserting that at least one person in the unit
is 55 years of age or older.
(e) A facility or community shall consider any one
of the forms of verification identified above as ade-
quate for verification of age, provided that it con-
tains specific information about current age or date
of birth.
(f) The housing facility or community must establish
and maintain appropriate policies to require that
occupants comply with the age verification proce-
dures required by this section.
(g) If the occupants of a particular dwelling unit
refuse to comply with the age verification proce-
dures, the housing facility or community may, if it
has sufficient evidence, consider the unit to be occu-
pied by at least one person 55 years of age or older.
Such evidence may include:
BALVAGE v. RYDERWOOD IMPROVEMENT 5423
(1) Government records or documents, such
as a local household census;
(2) Prior forms or applications; or
(3) A statement from an individual who has
personal knowledge of the age of the occu-
pants. The individual’s statement must set
forth the basis for such knowledge and be
signed under the penalty of perjury.
(h) Surveys and verification procedures which com-
ply with the requirements of this section shall be
admissible in administrative and judicial proceedings
for the purpose of verifying occupancy.
(i) A summary of occupancy surveys shall be avail-
able for inspection upon reasonable notice and
request by any person.
24 C.F.R. § 100.307. The regulation requires communities to
conduct surveys of residents at least once every two years to
verify that at least 80 percent of its occupied units are occu-
pied by at least one person 55 years of age or older. See id.
§ 100.307(a), (c). The surveys must verify the ages of resi-
dents by using reliable documents or affidavits. See id.
§ 100.307(d), (e), (g). Summaries of the surveys must be
made available to the public upon request. See id.
§ 100.307(i). And the surveys themselves must be maintained
and produced in any administrative or judicial proceeding in
which the community asserts the 55 or older exemption as a
defense to a charge of discrimination. See id. § 100.307(a), (h).4
4
Only the summary of the surveys must be made available to the public.
See 24 C.F.R. § 100.307(i); 64 Fed. Reg. at 16,328 (“Only the overall sur-
vey summary is required to be available for review, not the supporting
documentation.”). The individual surveys, affidavits and copies of docu-
mentation, on the other hand, should be maintained in community files in
5424 BALVAGE v. RYDERWOOD IMPROVEMENT
The 1999 regulations also established a one-year transition
period, permitting communities that did not satisfy the 80 per-
cent occupancy requirement at the time the regulations were
issued to claim the exemption by satisfying the intent and ver-
ification requirements, see 42 U.S.C. § 3607(b)(2)(C)(ii)-(iii),
and reserving unoccupied units for residents 55 and older. See
24 C.F.R. § 100.305(e)(5). During the transition period, if a
community demonstrated an intent to be housing for persons
55 years or older and complied with the verification require-
ment, it could reserve unoccupied units for occupancy by at
least one person who was 55 years or older and not violate the
FHA’s prohibitions on discrimination on the basis of familial
status. See id. The transition period ended on May 3, 2000.
See id.; 64 Fed. Reg. at 16,324.5
The regulations did not address how an existing community
could obtain exempt status after expiration of the transition
period. HUD touched on that issue, however, in a March 2006
the event they must be produced in response to a charge of discrimination.
See 24 C.F.R. § 100.307(a), (h); 64 Fed. Reg. at 16,327 (“A summary of
the information gathered in support of the occupancy verification should
be retained for confirmation purposes. Copies of supporting information
gathered in support of the occupancy verification may be retained in a sep-
arate file with limited access, created for the sole purpose of complying
with HOPA, and not in general or resident files that may be widely acces-
sible to employees or other residents. The segregated documents may be
considered confidential and not generally available for public inspection.
HUD, state or local fair housing enforcement agencies, or the Department
of Justice may review this documentation during the course of an investi-
gation.”).
5
If, at the end of the transition period, the community satisfied the 80
percent occupancy requirement and continued to satisfy the other two
HOPA criteria, it could continue to operate as an exempt community. If
the community could not satisfy the 80 percent threshold at the end of the
transition period, it could no longer claim the exemption or discriminate
against families with children, but it would not be liable for having
reserved unoccupied units for persons 55 or older during the one-year
transition period. See 64 Fed. Reg. at 16,326.
BALVAGE v. RYDERWOOD IMPROVEMENT 5425
memorandum from Bryan Greene, HUD’s Deputy Assistant
Secretary for Enforcement and Programs, to HUD regional
directors. Greene’s memorandum (“HUD’s 2006 policy guid-
ance”) explains that communities can obtain exempt status
after the transition period by achieving compliance with each
of the statutory and regulatory requirements, including the 80
percent occupancy requirement. Beyond the transition period,
however, communities can no longer achieve compliance by
reserving unoccupied units for older residents or otherwise
discriminating on the basis of familial status. The guidance
explains:
[A]n existing community or facility can convert to
“housing for older persons” if 80 percent of its occu-
pied units become occupied by at least one person 55
years of age of older. Unlike during the transition
period, housing providers cannot discriminate
against families with children in order to achieve 80
percent occupancy by persons 55 or older. In other
words, a community of facility cannot reserve unoc-
cupied units for persons 55 or older, advertise itself
as housing for older persons, or evict families with
children in order to reach the 80 percent threshold.
If a family with children seeks to occupy a vacant
unit in an existing facility before it has met all of the
requirements necessary to become housing for older
persons, the community or facility must permit the
family to live there. Additionally, the facility may
not make existing families with children feel unwel-
come or otherwise encourage those families to move.
While the facility or community may not take any
measures deliberately designed to discourage fami-
lies with children from continuing to reside in the
community, nothing prevents the offering of positive
incentives that might lead some families to seek
housing elsewhere. If the community or facility
achieves the 80 percent threshold, without discrimi-
nating against families with children, it may then
5426 BALVAGE v. RYDERWOOD IMPROVEMENT
publish and adhere to policies and procedures that
demonstrate an intent to provide housing for persons
55 years or older and comply with verification of
occupancy rules. The facility or community cannot
publish such policies or procedures in advance of
meeting the 80 percent threshold (without discrimi-
nation) as such policies and procedures would have
a chilling impact upon potential applicants or current
occupants who are families with children.
Memorandum, Conversion to Housing for Older Persons
Under the Fair Housing Act and the Housing for Older Per-
sons Act of 1995, at 2 (Mar. 6, 2006) (emphasis in original).
II.
Ryderwood is a residential community located in Cowlitz
County, Washington. It currently consists of approximately
270 single-family homes. It was established in 1953 “as a
community to be occupied by and for the use and benefit of
persons who are bona fide recipients of a pension or retire-
ment annuity.” In 1975, the Ryderwood Improvement and
Service Association (RISA), which serves a role comparable
to a homeowners’ association for the community’s residents,
adopted amended bylaws limiting ownership and residence in
Ryderwood to persons age 55 or older. These 1975 rules state:
The qualifications for ownership or purchase of a
home within [Ryderwood] are:
Must be a bona-fide recipient of an annuity or a pen-
sion.
Must not be less than fifty-five years of age[.]
Must have no additional, permanent occupants of the
home, (other than the spouse) who do not meet the
above requirements. (Exceptions to the last require-
BALVAGE v. RYDERWOOD IMPROVEMENT 5427
ment may be made by the Board of Trustees in the
event that health or personal care of either party jus-
tifies such permission.)
The plaintiffs are 54 residents of Ryderwood. They filed
this action against RISA in July 2009, alleging that the age
restrictions imposed by RISA violate the FHA and that RISA
has never satisfied the requirements of the HOPA exemption.
Second Am. Compl. ¶¶ 72-73.6 They sought nominal and
punitive damages, attorney’s fees and costs, declaratory relief
and an injunction barring RISA from enforcing rules that dis-
criminate against families with children. Id. ¶¶ 75, 81.
The parties filed cross-motions for partial summary judg-
ment. The plaintiffs argued that RISA could not avail itself of
the HOPA exemption because it failed to properly “convert”
to exempt status. Relying on HUD’s 2006 policy guidance,
they argued that a community that did not achieve compliance
with all of the requirements of the HOPA exemption by the
end of the transition period could obtain the benefit of the
exemption only by “converting” to exempt status. They
argued that a community could permissibly “convert” to
exempt status only by achieving compliance with the exemp-
tion’s requirements without engaging in familial status dis-
crimination. Here, the plaintiffs argued, RISA first attempted
to “convert” to exempt status in 2006 or 2007, when it first
sought to comply with the verification requirement in 42
U.S.C. § 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. They
argued that any attempt to convert to exempt status at that
time was ineffective because, as RISA admits, RISA was then
restricting ownership and residence in Ryderwood to persons
age 55 or older. The plaintiffs argued that RISA never prop-
erly “converted” to exempt status and thus cannot claim the
benefit of the exemption. They contended that, “because
6
Among other things, the plaintiffs claim that they are injured because
RISA’s age restrictions preclude them from marketing their homes for sale
to potential buyers without restriction.
5428 BALVAGE v. RYDERWOOD IMPROVEMENT
RISA has never successfully converted to HOPA compliance
[by achieving compliance without engaging in discrimina-
tion], RISA’s discriminatory conduct constitutes a violation of
the FHA.” Pls.’ Mot. Partial Summ. J. 13; see also Pls’ Reply
Supp. Mot. Summ. J. 2 (“Plaintiffs assert RISA is not HOPA
compliant presently because it wrongfully discriminated
against families with children while attempting to convert to
HOPA compliance.”).
In its opposition to plaintiffs’ motion, and its own motion
for partial summary judgment, RISA argued that it was per-
mitted to rely on the HOPA exemption so long as it estab-
lished that it was in compliance with each of the exemption’s
requirements at the time the alleged discriminatory housing
practice occurred, irrespective of whether it first achieved
compliance with those requirements without discriminating.
RISA contended that “a community is entitled to rely on the
exemption if in compliance as of the date of the alleged act
of discrimination.” Defs.’ Opp’n Pl.’s Mot. Partial Summ. J.
18.
RISA also argued that it has satisfied each of the three
requirements of the HOPA exemption at all relevant times:
1. 80 Percent Occupancy. The FHA requires a commu-
nity claiming the HOPA exemption to show that “at least 80
percent of the occupied units are occupied by at least one per-
son who is 55 years of age or older.” 42 U.S.C.
§ 3607(b)(2)(C)(i). RISA argued that it has satisfied this
requirement through an age verification survey that it com-
pleted in September 2007. That survey found that there were
273 available total housing units in Ryderwood, that 25 of
those units were either vacant or unverifiable and that 248
housing units were occupied by at least one person age 55 or
older. Thus, according to RISA’s survey, over 90 percent of
the available units were occupied by persons 55 years of age
or older on that date.
BALVAGE v. RYDERWOOD IMPROVEMENT 5429
2. Policies and Procedures Demonstrating an Intent to
Operate as a 55 or Older Community. The FHA also requires
a community to show that “the housing facility or community
publishes and adheres to policies and procedures that demon-
strate the intent” to operate as a community for persons 55 or
older. Id. § 3607(b)(2)(C)(ii). RISA argued that it has satisfied
this requirement by enforcing age restrictions and posting
signs throughout the community stating that residency is lim-
ited to those 55 and older.
3. Verification by Reliable Surveys and Affidavits. RISA
also argued that it has satisfied the requirement for verifying
occupancy “by reliable surveys and affidavits.” Id.
§ 3607(b)(2)(C)(iii)(I). RISA contended that it completed a
survey of all residents in September 2007. The survey entailed
“a request for each resident to show they met the 55+ condi-
tion by providing a drivers license, birth certificate, passport,
and/or a state identification card.” Defs.’ Mot. Partial Summ.
J. 22.
RISA also argued that it satisfied the verification require-
ment before 2007 because, although no age verification sur-
veys were conducted, it “engaged in less formalized processes
that were equally effective.” Id. RISA presented evidence that
it maintained and “regularly updat[ed] an active rolodex that
records each residence by address and the current identi[t]ies
of each resident.” DeBriae Summ. J. Decl. ¶ 18. The rolodex
cards include notations of residents’ dates of birth. RISA also
maintained “a Ryderwood phone book, which lists all resi-
dents in Ryderwood.” Id. ¶ 19.
In the event that a new resident moves to Ryder-
wood, this information would be reflected in our
annual phone list update, which would then be
reflected in RISA’s files. If this person was not
known to us or not a member, a volunteer from
RISA would stop at that home and ask them to join
5430 BALVAGE v. RYDERWOOD IMPROVEMENT
RISA which, since 1996, has included requiring
them to verify their age.
Id. In addition, when properties in Ryderwood are sold, RISA
asks title companies “to inform the buyers that they need to
contact the RISA office and to sign a membership certificate.”
Id. ¶ 20.
The plaintiffs challenged the adequacy of RISA’s Septem-
ber 2007 survey in their opposition to RISA’s motion for par-
tial summary judgment. They asserted a number of flaws in
the survey, arguing that the survey therefore failed to satisfy
the FHA’s statutory and regulatory requirements.
III.
The district court granted partial summary judgment to the
plaintiffs and denied RISA’s motion for partial summary
judgment. The court accorded deference to HUD’s 2006 pol-
icy guidance under Auer v. Robbins, 519 U.S. 452, 461
(1997), which holds that judicial deference is owed to an
agency’s interpretation of its own regulations. The court
agreed with the plaintiffs that the guidance bars a defendant
from qualifying for the HOPA exemption unless the commu-
nity first achieved compliance with the exemption’s require-
ments without discriminating against families with children.
The court ruled that “[t]he memo is clear that under the regu-
lations, once the transition period ended in May of 2000, any
existing community seeking to comply with the HOPA is
required to cease discrimination during the period of gaining
compliance.” Order Granting Mot. Partial Summ. J. June 4,
2010, at 12-13. The court ruled that RISA could not claim the
HOPA exemption because it continued to discriminate while
attempting to comply with the verification requirements.
In attempting to comply with the HOPA require-
ments [by completing an age verification survey in
2007], RISA admits that it . . . never ceased discrimi-
BALVAGE v. RYDERWOOD IMPROVEMENT 5431
nating against persons under the age of fifty-five.
Therefore, the Court concludes that RISA is not enti-
tled to summary judgment on its affirmative defense
that it is compliant with the HOPA.
Id. at 13 (citation omitted). Having rejected RISA’s HOPA
defense, the court concluded that RISA’s rules restricting
sales of homes in Ryderwood violated the FHA. The court did
not address the plaintiffs’ alternative argument that RISA did
not qualify for the HOPA exemption because the 2007 survey
failed to satisfy the age verification requirements set out in
§ 3607(b)(2)(C)(iii) and 24 C.F.R. § 100.307. The district
court subsequently granted the plaintiffs’ motion for a prelim-
inary injunction, ordering RISA to “immediately cease any
and all enforcement of age restrictions on the sale, rental, or
residency of homes in Ryderwood.” Order Granting Prelim.
Inj. Mot. Aug. 11, 2010, at 5.
RISA timely appealed the preliminary injunction order. The
district court also certified its summary judgment order for
interlocutory appeal, and we granted RISA permission to
appeal. See 28 U.S.C. § 1292(b). We also granted RISA’s
motion for a stay of the injunction pending appeal and invited
the Secretary of HUD to file an amicus brief. We are grateful
to the Secretary for having done so.
STANDARD OF REVIEW
We review de novo a district court’s grant or denial of a
motion for partial summary judgment. See Aguilera v. Alaska
Juris F/V, O.N. 569276, 535 F.3d 1007, 1009 (9th Cir. 2008)
(denial); Dare v. California, 191 F.3d 1167, 1171 (9th Cir.
1999) (grant). We review for an abuse of discretion the dis-
trict court’s grant of a preliminary injunction. See Nike, Inc.
v. McCarthy, 379 F.3d 576, 580 (9th Cir. 2004).
We defer to HUD’s reasonable interpretation of the FHA.
See Meyer v. Holley, 537 U.S. 280, 287-88 (2003); Harris v.
5432 BALVAGE v. RYDERWOOD IMPROVEMENT
Itzhaki, 183 F.3d 1043, 1051-52 (9th Cir. 1999). “[T]he
agency is entitled to further deference when it adopts a rea-
sonable interpretation of regulations it has put in force.” Bar-
rientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1214 (9th
Cir. 2009) (quoting Fed. Express Corp. v. Holowecki, 552
U.S. 389, 397 (2008) (internal quotation marks omitted)).
“[W]e accept the agency’s position unless it is ‘plainly erro-
neous or inconsistent with the regulation.’ ” Fed. Express
Corp., 552 U.S. at 397 (quoting Auer, 519 U.S. at 461). “Fur-
ther, an agency’s litigation position in an amicus brief is enti-
tled to deference if there is ‘no reason to suspect that the
interpretation does not reflect the agency’s fair and considered
judgment on the matter.’ ” Barrientos, 583 F.3d at 1214
(quoting Auer, 519 U.S. at 462). Finally, HUD’s “interpretive
policy statements are at least ‘entitled to a measure of respect
under the less deferential Skidmore standard.’ ” Id. (quoting
Fed. Express Corp., 552 U.S. at 399). In interpreting the
HOPA exemption, we bear in mind that “[e]xemptions from
the Fair Housing Act are to be construed narrowly, in recogni-
tion of the important goal of preventing housing discrimina-
tion.” United States v. City of Hayward, 36 F.3d 832, 837 (9th
Cir. 1994) (quoting Massaro v. Mainlands Section 1 & 2
Civic Ass’n, 3 F.3d 1472, 1475 (11th Cir. 1993) (internal quo-
tation marks omitted)).
DISCUSSION
RISA does not dispute that it engages in conduct that,
unless exempt, constitutes unlawful familial status discrimina-
tion under the FHA. RISA restricts ownership and residence
in Ryderwood to persons who are 55 years of age or older,
practices that would violate several provisions of the FHA.
See 42 U.S.C. § 3604(a)-(d). The sole issue, therefore, is
whether RISA is exempt from the FHA’s prohibitions on
familial status discrimination under one of the housing for
older persons exemptions set out in § 3607(b). RISA relies
exclusively on the 55 or older exemption (“the HOPA exemp-
tion”). See id. § 3607(b)(2)(C). As the HOPA exemption is an
BALVAGE v. RYDERWOOD IMPROVEMENT 5433
affirmative defense, RISA bears the burden of establishing
that Ryderwood satisfies each of the HOPA requirements. See
Massaro, 3 F.3d at 1475; Gibson v. Cnty. of Riverside, 181 F.
Supp. 2d 1057, 1076 (C.D. Cal. 2002); 64 Fed. Reg. at
16,325. RISA must show that it satisfied the HOPA require-
ments at the time that the alleged discriminatory housing
practice occurred.7
The district court concluded that RISA does not qualify for
the HOPA exemption with respect to any time between the
end of the transition period in May 2000 and the present. We
agree in part and disagree in part with that conclusion. The
court properly concluded that RISA did not qualify for the
HOPA exemption between May 2000 and September 2007,
when RISA completed its first HOPA verification survey,
because during that time RISA did not verify by reliable sur-
veys and affidavits — or through other adequate means —
that at least 80 percent of its occupied units were occupied by
at least one person who was 55 years of age or older. See 42
U.S.C. § 3607(b)(2)(C)(iii). The court erred, however, when
it concluded that RISA was barred from availing itself of the
exemption beginning in September 2007, when it completed
the initial verification survey, merely because it had failed to
“convert” to exempt status without engaging in familial status
discrimination.
7
See 24 C.F.R. § 100.304(a) (explaining that “[h]ousing qualifies for
this exemption if . . . the housing community . . . complied with the HUD
regulations in effect at the time of the alleged violation” (emphasis
added)); 64 Fed. Reg. at 16,331 (explaining that the 80 percent “occu-
pancy requirement must be met at the time of any alleged violation of the
Act” (emphasis added)); HUD, Questions and Answers Concerning the
Final Rule Implementing the Housing for Older Persons Act of 1995, at
13 (“If an individual files a complaint based on familial status and the
housing community . . . claims the exemption as a defense, . . . [t]he com-
munity . . . has the burden of proving that it was in compliance with
HOPA requirements on the date of occurrence of the alleged act or inci-
dent of discrimination.” (emphasis added)).
5434 BALVAGE v. RYDERWOOD IMPROVEMENT
I. Compliance Between May 2000 and September 2007
[1] To qualify for HOPA’s affirmative defense, a commu-
nity must satisfy all three statutory and regulatory require-
ments. See Hayward, 36 F.3d at 837; see also 42 U.S.C.
§ 3607(b); 24 C.F.R. §§ 100.304-100.307.8 Between May
2000 and September 2007, RISA did not satisfy one of these
requirements — the obligation to verify by reliable surveys
and affidavits that at least 80 percent of Ryderwood’s occu-
pied units were occupied by at least one person who was 55
years of age or older. See 42 U.S.C. § 3607(b)(2)(C)(iii); 24
C.F.R. § 100.307.
RISA did not perform verification surveys between 2000
and 2006. With respect to 2000-2004, RISA concedes that it
did not conduct surveys. See Opening Brief 2 (“RISA does
not dispute that in the years 2000-04, it failed to conduct a
formal ‘HOPA survey’ to verify Ryderwood residents’ ages,
as HOPA regulations provide . . . .”). With respect to 2005-
2006, RISA contends that it did conduct a survey, but has
declined to place evidence of the 2006 survey in the record,
instead relying exclusively on the September 2007 survey to
establish its compliance with HOPA. We construe RISA’s
actions as a concession that the 2006 survey does not satisfy
HOPA.
RISA nonetheless argues that it satisfied the age verifica-
tion requirement between 2000 and 2006 because, although it
did not conduct adequate verification surveys during that
period, it “engaged in less formal verification processes that
were equally effective.” Opening Br. 28. RISA describes
these efforts as follows:
8
In Hayward, we applied the pre-HOPA version of the 55 or older
exemption. The same principle — that a community must satisfy all three
statutory and regulatory requirements to qualify for the exemption —
applies equally to the current version of the exemption, as the plain text
of the statute and regulations dictate.
BALVAGE v. RYDERWOOD IMPROVEMENT 5435
Every home in Ryderwood is subject to the bylaws
and deed conditions that require all owners to abide
by the 55 and over provision. RISA requires every
homeowner to join RISA, and to confirm his or [her]
age upon joining. RISA regularly updates its rolodex
of all families and its annual neighborhood phone
book. This multi-faceted process of verification
complemented the covenants and bylaws [that
restrict Ryderwood to persons 55 or older].
Id.
These verification efforts fall short of the statutory require-
ments. To satisfy HOPA’s verification requirement, a com-
munity must verify the age of its residents at least once every
two years; the verification must cover all housing units in the
community; residents’ ages must be verified using reliable
documents; a record of the verification, including copies of
the relevant documentation, must be maintained in the com-
munity’s files; and the community must be able to produce
that record in response to a complaint of discrimination. See
24 C.F.R. § 100.307(a)-(e). Whether considered individually
or collectively, the verification efforts described by RISA —
the rolodex cards and RISA membership forms — do not sat-
isfy these criteria.
1. The Rolodex. RISA apparently maintains a rolodex
card for each home in the Ryderwood community. Based on
our review of the four sample cards RISA has included in the
excerpts of record, we infer that each card contains a list of
household residents and information about their dates of birth.
[2] These cards do not satisfy HOPA, however. First, they
provide current information on Ryderwood residents, rather
than providing a record of verifications that should have been
conducted biennially between 2000 and 2006. RISA cannot
rely on current rolodex information to establish that it verified
the ages of Ryderwood’s residents in 2000, 2002, 2004 or
5436 BALVAGE v. RYDERWOOD IMPROVEMENT
2006 — especially when no claim has been made that any
such verifications actually occurred. Second, although the
cards include information about residents’ ages, RISA does
not contend that this information rests on reliable documenta-
tion, such as driver’s licenses, birth certificates, passports and
signed certifications, as § 100.307(d) requires.
2. RISA Membership Forms. RISA also argues that its
membership forms satisfy the HOPA verification requirement
between 2000 and 2006. RISA explains that it has continu-
ously required Ryderwood homeowners to join its association.
To become members, residents are required to complete and
sign a membership form. Since 1996, that form has required
residents to include information regarding their ages. RISA
contends that the existence of these forms is adequate to
establish that it verified Ryderwood’s compliance with the
occupancy requirement at all times between 2000 and 2006.
[3] We disagree. Verifications, which must take place at
least once every two years, occur at fixed points in time. To
satisfy the requirement, a community must do more than col-
lect some data over some period of time. It must collect com-
plete data for all residences. The data must be current (as of
the time of the verification). And the community must com-
pile the data: the community must show that it actually used
the data to verify that the community in fact satisfied HOPA’s
80 percent occupancy requirement at the time of the verifica-
tion. Here, we have no basis to conclude that the membership
forms covered all residences or that they provided current
information at any time between 2000 and 2006. See Brief of
the Secretary of the U.S. Department of Housing and Urban
Development as Amicus Curiae (“HUD Br.”) 22 (“Requiring
new residents to join RISA and purportedly attest to their age
does not establish that all members or an occupant of all
households have signed this verification, nor has RISA so
claimed. . . . Notwithstanding the bylaws’ requirement that
homeowners be at least 55 years old, RISA membership
forms dated from 1990-1992 did not specifically require that
BALVAGE v. RYDERWOOD IMPROVEMENT 5437
a resident report his or her age.”). Furthermore, even if the
membership forms contained complete and current informa-
tion, at no time between 2000 and 2006 did RISA use the
information to verify that the occupancy requirement was sat-
isfied. We agree with the HUD Secretary that “[t]he mere
possession of various records collected over the years . . . ,
without more, is inadequate to satisfy the verification obliga-
tion. A community must collate information from its files to
assess whether, in fact, it has verifiable data of all current
occupants and it satisfies the 80% occupancy requirement.”
Id. at 20-21. Here, RISA “has not shown that it has compiled
a list of RISA members and compared [the membership] data
with occupants for any given year to verify that the 80%
occupancy requirement was met.” Id. at 22. Merely requiring
residents to fill out membership forms, “absent any compila-
tion of data, is . . . insufficient to meet the verified survey
requirement.” Id.
[4] We accordingly agree with HUD that “RISA’s pre-
2007 efforts fail to satisfy HOPA’s age verification require-
ments.” Id. In doing so, we do not disagree with RISA’s con-
tention that the HOPA verification requirement may be
satisfied by means other than conducting a survey: HUD’s
regulations provide that a community may verify occupancy
“through surveys or other means.” 24 C.F.R. § 100.307(c)
(emphasis added).9 The means employed, however, must sat-
isfy the minimum criteria established by the statute and regu-
lations. The efforts undertaken by RISA between 2000 and
2006 do not do so. (Nor were they designed to do so. See
DeBriae R. 30(b)(6) Dep. 31:3-19, Feb. 12, 2010 (testifying
that it was not until spring 2006 that RISA even decided to
comply with the HOPA requirements).) The district court thus
9
Although other means of verification are permissible, a survey of occu-
pants “is the most effective means” of collecting reliable data. HUD Br.
20. “Direct and timely communication with current occupants ensures that
a community has verifiable data since the occupants themselves will pro-
vide the primary source documentation.” Id.
5438 BALVAGE v. RYDERWOOD IMPROVEMENT
properly concluded that RISA does not qualify for the HOPA
exemption between 2000 and 2006.
II. RISA’s Compliance Since 2007
The district court concluded that, even assuming that RISA
completed a valid verification survey in September 2007, it
cannot qualify for the HOPA exemption because it neither
achieved full compliance with HOPA’s requirements during
the transition period nor properly “converted” to exempt sta-
tus after the transition period ended by achieving full compli-
ance without discriminating against families with children.
A.
[5] We agree with HUD that the district court erred. The
HUD Secretary’s amicus brief explains that
a community like Ryderwood, which has continu-
ously operated as a retirement community for per-
sons age 55 or older, can qualify for the HOPA
defense after May 3, 2000 (the end of the regulatory
transition period) . . . by establishing that it currently
satisfies the three statutory and regulatory criteria,
even if it did not satisfy HOPA’s age verification
requirement before the transition ended. Such a com-
munity is not barred now or in the future from assert-
ing the HOPA defense, notwithstanding the fact that
it may have engaged in familial status discrimination
after the transition period and prior to establishing
compliance with HOPA’s age verification require-
ment. To the extent the district court held otherwise,
its ruling is in error.
HUD Br. 12-13.
[6] HUD’s position is consistent with the FHA’s plain text.
Section 3607(b) provides that a community is exempt from
BALVAGE v. RYDERWOOD IMPROVEMENT 5439
the prohibitions on familial status discrimination when the
three HOPA requirements are satisfied. See 42 U.S.C.
§ 3607(b)(2)(C) (providing that the FHA’s familial status pro-
hibitions do not apply to housing when “at least 80 percent of
the occupied units are occupied by at least one person who is
55 years of age or older,” that the “community publishes and
adheres to policies and procedures” demonstrating the intent
to operate as a HOPA community and that the “community
complies with rules issued by [HUD] for verification of occu-
pancy” (emphasis added)). Nothing in the statute suggests that
a community’s past actions preclude it from qualifying for the
exemption based on current compliance.
[7] The district court erred by relying on HUD’s 2006 pol-
icy guidance to reach a different conclusion. The guidance
addresses a situation not presented here — “how a community
that had not reached the 80% occupancy threshold by the end
of the transition period could convert to housing for older per-
sons and take advantage of the HOPA exception.” HUD Br.
24.
It does not address how a community that has con-
sistently maintained the 80% threshold but has failed
to comply with HOPA’s age-verification require-
ments can come into compliance with HOPA and
take advantage of HOPA’s affirmative defense going
forward. Nor does the guidance dictate what should
happen prospectively if a community maintains the
80% threshold after the end of the transition period
by engaging in familial-status discrimination. Thus,
to the extent the district court concluded that HUD’s
2006 guidance dictated that RISA is not entitled now
or in the future to take advantage of the HOPA
exception, that reliance was incorrect.
Nothing in HUD’s 2006 guidance forbids a hous-
ing community that has continuously operated as
housing for persons 55 and over from availing itself
5440 BALVAGE v. RYDERWOOD IMPROVEMENT
of the HOPA exemption on a prospective basis sim-
ply because it has previously failed to comply with
age-verification requirements.
Id.
This conclusion does not reward RISA for having disre-
garded the verification requirement, as the plaintiffs contend.
Assuming arguendo that the September 2007 survey satisfies
the verification requirement, RISA became exempt from the
FHA’s prohibitions on familial status discrimination at that
time, but RISA cannot claim the exemption for any prior
period. See Hayward, 36 F.3d at 837 (housing must meet all
three HOPA requirements to qualify for the exemption);
HUD, Questions and Answers Concerning the Final Rule
Implementing the Housing for Older Persons Act of 1995, at
13 (“If an individual files a complaint based on familial status
and the housing community . . . claims the exemption as a
defense, . . . [t]he community . . . has the burden of proving
that it was in compliance with HOPA requirements on the
date of occurrence of the alleged act or incident of discrimi-
nation.” (emphasis added)). Current compliance with the ver-
ification requirement, in other words, will not shield a
community from liability for discrimination occurring before
compliance was achieved. And any person aggrieved by that
pre-compliance discrimination has two years in which to
bring suit. See 42 U.S.C. § 3613(a)(1)(A) (“An aggrieved per-
son may commence a civil action in an appropriate United
States district court or State court not later than 2 years after
the occurrence or the termination of an alleged discriminatory
housing practice . . . .”). A community may not, therefore, dis-
regard the verification requirement with impunity.
B.
[8] The parties dispute whether RISA’s September 2007
survey satisfies the statutory and regulatory criteria. The dis-
BALVAGE v. RYDERWOOD IMPROVEMENT 5441
trict court, which has not yet addressed that issue, should do
so on remand.
CONCLUSION
We affirm in part and vacate in part the district court’s
grant of partial summary judgment to the plaintiffs. We vacate
the preliminary injunction and remand for further proceed-
ings. Each party shall bear its own costs on appeal.
AFFIRMED IN PART, VACATED IN PART and
REMANDED.