Legal Advocacy
HOUSING AND LOW INCOME
2008 Supreme Court Preview
When can housing providers be held accountable for failing to meet the accessibility requirments of the fha?
Garcia v. Brockway; Thompson v. Gohres Constr. Co.,
526 F.3d 456 (9th Cir. 2007),
petition for cert. filed sub nom., Thompson v. Turk,
77 U.S.L.W. 3075 (No. 08-140) (July 31, 2008).
Conference has been scheduled on September 25, 2008.
In the case of Thompson v. Turk, the Supreme Court will address an issue absolutely critical to ensuring that older people are able to age in place: when can housing providers be held accountable for failing to meet the accessibility requirements of the Fair Housing Act (FHA) – within two years after completion of construction or at the time of a rental or sale of a unit.
Plaintiff Thompson is a member of a Fair Housing and Disability Rights organization in Nevada who conducted an investigative test of accessibility in 2004. She discovered that the Villas at Rancho del Norte, an apartment complex, did not comply with the FHA design and construction standards that have been required since 1991. She promptly filed suit against the current owner of the complex that was constructed in 1997. The United States District Court for the District of Nevada granted the building owner’s motion to dismiss in Thompson v. Gohres Construction Co., and plaintiffs appealed. The appeal was consolidated with a similar case in which the United States District Court for the District of Idaho granted summary judgment for defendants in Garcia v. Brockway. The Court of Appeals for the Ninth Circuit affirmed the panel decisions on September 20, 2007. Garcia v. Brockway, 503 F.3d 1092 (9th Cir. 2007). On rehearing en banc, the Court of Appeals adopted the panel opinions and held that: (1) the FHA’s two-year limitations period governing private civil actions ran from conclusion of design-and-construction phase; (2) commencement of limitations period was not extended under continuing violation doctrine; (3) commencement of limitations period was not extended until point when plaintiffs “encountered” FHA violations; and (4) commencement of limitations period was not extended until discovery of FHAThe district court in Equal Access largely granted Defendant’s motion to dismiss. However, the court denied the portion of the motion regarding the “equal access” claim of the Plaintiffs, holding that previous Fifth Circuit precedent compelled a finding that there was a private right to enforce this section of the Medicaid Act. See Evergreen Presbyterian Ministries Inc. v. Hood, 235 F.3d 908 (5th Cir. 2000). But, the district court believed the Supreme Court’s intervening decision in Gonzaga University violations. The Court reasoned, based on Ledbetter v. Goodyear Tire and Rubber Co., 127 S.Ct. 2162 (2007), that “a continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.” The Court found that the statute of limitations is thus triggered at the conclusion of the design-and-construction phase, which occurs on the date the last certificate of occupancy is issued.
The Ninth Circuit decision creates a conflict as to which point triggers the statute of limitations for bringing a private civil action under 42 U.S.C. § 3613(a)(1)(A). In Fair Housing Council v. Village of Olde St. Andrews, 210 Fed.Appx. 462 (6th Cir. 2006), the Sixth Circuit held that in cases where the owner of a multi-family housing development failed to design and construct the development to make it accessible to disabled individuals, the limitations period will depend on the specific circumstances of each case. The Sixth Circuit cited as an example a hypothetical where a disabled individual seeks to buy a particular unit and discovers that the unit is inaccessible because it was not designed in conformity with the FHA. The Court determined that the limitations period for that individual's claim would begin to run from the date that the individual attempted to buy the unit and discovered the nonconforming conditions. Although AARP has not filed a brief in the Supreme Court at the petition stage, in its amicus brief filed in the Ninth Circuit’s rehearing en banc, AARP argued that the Ninth Circuit’s decision serves to constructively eviscerate the design and construction portions of the FHA by limiting challenges to two years from the completion of design and construction. This case demonstrates that the troubling effects of Ledbetter are not confined to employment cases. Like the discriminatory employer in Ledbetter, a builder who fails to construct a building according to the standards plainly laid out in the FHA is completely immune from suit if the violation goes unnoticed for two years. These builders are immune even if no one—much less a disabled person who would be affected by the missing required accommodations—inspected the property within that two year timeframe. This is a fairly common occurrence—many new apartments remain vacant for some time after construction is complete, and many more may not have disabled tenants within two years.Housing features that meet the needs of people as they age is essential to ensuring successful aging. Community attachment and engagement have a direct impact on physical and mental health, but people who live in homes that do not meet their physical needs have lower levels of community attachment. They are also more likely to suffer falls if their home does not meet their physical needs. Features such as universal design, accessibility, and no-step entrances can be achieved through home modification. AARP's goal is to encourage new construction to incorporate such design elements to make modification unnecessary.
The Fair Housing Act includes requirements for design and construction of multifamily housing to ensure it is accessible to people with disabilities. Unfortunately, many developers are not complying with those standards. HUD and fair housing advocates have long taken the position that the continuing violation theory would permit people with disabilities to challenge the non-compliance until the violation is rectified. This Circuit split puts the legal theory, and the ability to provide greater amounts of accessible housing, in jeopardy.
Julie Nepveujnepveu@aarp.org
Susan Silverstein
ssilverstein@aarp.org