RAMOS v. RARITAN VALLEY HABITAT FOR HUMANITY

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

____________________________________

:

LAURA RAMOS and CYNTHIA BAKER, :

:

Plaintiffs, :

: Case No. 3:16-cv-1938-BRM-LHG

v. :

:

RARITAN VALLEY HABITAT FOR :

HUMANITY, et al., :

: OPINION

:

Defendants. :

____________________________________:

MARTINOTTI, DISTRICT JUDGE

Before this Court are: (1) Defendant United States Department of Housing and Urban

Development’s (“HUD”) Motion to Dismiss (ECF No. 109) and (2) Defendant Division of

Housing and Community Resources, House Assistance Programs’ (“DCA”)1 Motion to Dismiss

or in the alternative for Summary Judgment (ECF No. 114).2 Plaintiffs Laura Ramos (“Ramos”)

and Cynthia Baker (“Baker”) (together with Ramos, “Plaintiffs”) oppose the motions. (ECF No.

118.) Having reviewed the submissions filed in connection with the motions and having declined

to hear oral argument pursuant to Federal Rule of Civil Procedure 78(b), for reasons set forth below

and for good cause shown, Defendants’ motions are GRANTED in part and DENIED in part.

1 HUD and DCA will collectively be referred to as “Defendants.”

2 The Court declines to treat DCA’s Motion as one for summary judgment. Plaintiffs have not had

the benefit of discovery to develop a record and the Court has not provided Plaintiffs with notice

nor given them an opportunity to respond to the Motion as if it were one for summary judgment.

I. BACKGROUND

For the purposes of these motions to dismiss, the Court accepts the factual allegations in

the First Amended Complaint as true and draws all inferences in the light most favorable to

Plaintiffs. See Phillips v. Cty. of Allegheny, 515 F. 3d 224, 228 (3d Cir. 2008). Further, the Court

considers any “document integral to or explicitly relied upon in the complaint.” In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citation omitted).

This matter arises out of Plaintiffs’ struggle to purchase a single-family residence in

Hunterdon County that meets their medical and other housing needs. Plaintiffs, both of whom

suffer from a variety of disabilities and physical handicaps, currently reside in a garden-level,

two-bedroom, one-bathroom apartment in Hunterdon County.3 (ECF No. 89 ¶¶ 8, 16.) Their

apartment is part of a special needs complex in a rural area in Hunterdon County, which “makes it

difficult for Plaintiffs to access medical doctors, grocery stores, and other basic conveniences of

living in a more developed part of the County.” (Id. ¶ 17.) The apartment is adjacent to a quarry,

which Plaintiffs allege causes the accumulation of dust throughout the area, triggering their

disabilities. (Id.) Plaintiffs rent this apartment with the assistance of a Section 8 voucher, which

they have received from DCA for over ten years.4 (Id. ¶ 16.) Plaintiffs also receive Social Security

Disability Income. (Id.)

3 Ramos suffers from, among other disabilities, Multiple Chemical Sensitivity, Vocal Cord

Dysfunction, asthma, vision issues, and reactive airways. (Id. ¶ 15.) She requires “assistive

mobility devices including a power wheelchair, rolling walker, or a quad cane.” (Id.) Baker suffers

from, among other disabilities, balance issues, reactive airways, spinal stenosis, and hearing

deficits. (Id.) She also occasionally uses a cane as needed. (Id.)

4 DCA “is responsible for effectuating all housing programs and services, policies, and procedures

in accordance with state and federal law.” (Id. ¶ 11.)

Plaintiffs contend the current apartment “fails to meet their basic needs.” (Id. ¶ 18.)

Specifically, they require a third bedroom to accommodate their medical and physical therapy

equipment and to perform physical therapy exercises. (Id.) Plaintiffs also require service dogs but

have been denied same due to the lack of space in their current apartment and lack of fenced

backyard. (Id.) Plaintiffs also contend the apartment presents many respiratory issues since the

landlord requires quarterly exterminations to be performed. (Id. ¶¶ 19-20.) Similarly, the scents

from soaps utilized in the shared washer and dryers and lack of an exhaust vent in the Plaintiffs’

kitchen presents an issue for Plaintiffs. (Id. ¶ 20.)

A. Habitat for Humanity and Raritan Valley Habitat for Humanity

Beginning in 2005, Plaintiffs attempted to purchase a single-family, handicap accessible,

three-bedroom ranch home in Hunterdon County through Raritan Valley Habitat for Humanity

(“RVHFH”).5 (Id. ¶¶ 24, 27.) RVHFH “is designed for low-income families who are committed

to building [a] better place to raise their families.” (Id. ¶ 26.)

Potential RVHFH homeowners are those: (1) currently and for the

prior year either living or working in Hunterdon, Somerset, or one

of the adjacent counties . . .; (2) currently living in inadequate

housing or paying rent that is too high; and (3) able to afford the

repayment of the interest-free mortgage and the utilities, taxes,

insurance, and maintenance expenses.

(Id.)

However, due to several Habitat for Humanity (“HFH”) and RVFHF policies, which

Plaintiffs allege have a disparate impact on them, they have endured many years of obstacles. (Id.

¶ 37.) HFH and RVHFH have certain requirements and policies, which Plaintiffs allege have a

5 RVHFH is a local affiliate of the non-profit HFH. (Id. ¶ 25.) HFH sets the policies with which

local affiliates, such as RVHFH must comply. (Id. ¶ 30.) HFH monitors its affiliates to ensure they

comply with the policies of HFH and applicable federal law. (Id.)

disparate impact on individuals with disabilities that they are not willing to forgo to accommodate

Plaintiffs. Specifically, HFH and RVHFH require that homeowners through their program “[b]e

willing to work on their own home and the homes of others in the habitat community (this work is

called ‘Sweat Equity’).” (Id. ¶ 31.) They require that all residential applicants complete the Sweat

Equity requirement prior to purchasing the house. (Id.) Plaintiffs, however, cannot perform the

Sweat Equity requirement necessary for the application process due to their disabilities and

handicaps. (Id. ¶ 32.)

HFH and RVHFH also has a policy of accepting only two checks per month for mortgage

payments. (Id. ¶ 34.) This has a disproportionate impact on Plaintiffs since they need to pay with

two checks plus the Section 8 housing voucher. (Id.) RVHFH also builds almost exclusively

two-story, duplex homes that are not handicap accessible. (Id. ¶ 35.) Only upon request will

RVHFH build handicap adaptable homes at an additional cost. (Id.) RVHFH’s income-setting

guidelines for eligibility are greater than and more restrictive than HUD’s, and, pursuant to the

guidelines, RVHFH currently only offers homes to families of three. (Id. ¶ 36.) Plaintiffs also

requested RVHFH send them visually accessible documents and materials, using Verdana font

size fourteen or larger, and digital copies of forms, which was not accommodated. (Id. ¶ 46.)

In 2013, Plaintiffs submitted a letter to the Board of RVHFH detailing the disability

discrimination they had incurred by them and requesting that they be permitted to apply to a home

being built in Kingwood Township in Hunterdon County. (Id. ¶ 38.) In 2014, Plaintiffs applied for

a three-bedroom ranch, which was denied on April 8, 2014. (Id. ¶¶ 39-40.) Plaintiffs were rejected,

in part, for being recipients of Section 8 funding. (Id. ¶ 53.)

B. DCA

Plaintiffs have also encountered several obstacles with DCA. DCA has made it difficult for

Plaintiffs to transition from Section 8 rental vouchers to the Section 8 homeownership program.

(Id. ¶ 55.) DCA failed to provide HUD-related forms in the appropriate print font and size for

Plaintiffs, failed to provide written responses to Plaintiffs’ accommodation requests, refused to

meet with Plaintiffs in their apartment or via video conferencing to discuss the Section 8

Homeownership program. (Id. ¶¶ 62-64.)

In September 2010, Plaintiffs filed an administrative complaint with HUD “to eliminate

the disability discrimination they faced as participants in the Section 8 rental program.” (Id. ¶ 56.)

On March 29, 2013, HUD, DCA, and Plaintiffs entered a Conciliation and Voluntary Compliance

Agreement (the “Conciliation Agreement”), which required DCA to:

(1) provide fair housing education for DCA staff; (2) revise policies

and practices to eliminate disability discrimination; (3) promulgate

procedures for DCA staff to process and manage requests for

reasonable accommodations from Section 8 applicants with

disabilities; and (4) appoint a Section 504 coordinator to assist

individuals with disabilities in the Section 8 process.

(Id. ¶ 57.) Pursuant to the Conciliation Agreement, DCA was required to create a “Reasonable

Accommodation Policy and Procedures: chapter for the “Administrative Plan.” (Id. ¶ 58.) Plaintiffs

contend, however, DCA failed to comply with these policies and procedures, thereby intentionally

discriminating against them. (Id.)

C. HUD

Plaintiffs contend they encountered similar obstacles with HUD.6 Like DCA, HUD failed

to grant Plaintiffs’ requests for reasonable accommodations, which they deem necessary in order

to file grievances to gain equal access to housing programs. (Id. ¶ 70.) HUD also: (1) failed to

provide Plaintiffs with large print documents to utilize in drafting Fair Housing Complaints; (2)

refused to allow Plaintiffs to make fair housing complaints via telephone; (3) failed to provide

written confirmation summarizing oral communications with Plaintiffs. (Id. ¶¶ 71-76.)

D. Procedural History

On April 7, 2016, Plaintiffs initiated this action by filing a pro se Complaint. (ECF No. 1.)

The Complaint alleged several claims of discrimination against approximately thirty-six

defendants. (Id.) On April 26, 2016, Plaintiffs filed a motion seeking the appointment of pro bono

counsel, which was granted on November 28, 2016. (ECF No. 48.) Esptein Becker & Greene, P.C.

was appointed as pro bono counsel on June 4, 2018. (ECF No. 72.)7

On November 7, 2018, Plaintiffs filed a First Amended Complaint, reducing the number

of defendants from thirty-six to four (HFH, RVHFH, DCA, and HUD) and alleging: (1) disparate

impact under the Fair Housing Act (“FHA”), Rehabilitation Act (“RHA”), and Americans with

Disabilities Act (“ADA”) against RVFHF and HFH; (2) failure to accommodate under the FHA,

RHA, and ADA against all Defendants; (3) intentional discrimination under the FHA, RHA, and

ADA against all Defendants; and (4) violation of the Equal Credit Reporting Act against HFH and

RVHFH. (See ECF No. 89.) Both RVHFH and RFH filed answers. (ECF Nos. 96 and 103.) HUD

6 HUD “is responsible for effectuating all housing laws, policies, and procedures in accordance

with federal law.” (Id. ¶ 12.)

7 The Court attempted to appoint pro bono counsel several times, but there were several conflicts.

and DCA filed the pending motions to dismiss. (ECF Nos. 109 and 114.) Plaintiffs opposed both

motions. (ECF No. 118.)

II. LEGAL STANDARDS

A. Federal Rule of Civil Procedure 12(b)(1)

Rule 12(b)(1) mandates the dismissal of a case for “lack of subject-matter jurisdiction.”

Fed. R. Civ. P. 12(b)(1). An assertion of Eleventh Amendment immunity is a challenge to a district

court’s subject-matter jurisdiction. See Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 693 n.2

(3d Cir. 1996) (“[T]he Eleventh Amendment is a jurisdictional bar which deprives federal courts

of subject matter jurisdiction.”) (citing Pennhurst State School & Hosp. v. Halderman, 465 U.S.

89, 98-100 (1984)). Typically, when jurisdiction is challenged pursuant to Rule 12(b)(1), the

plaintiff bears the burden of persuading the court that subject-matter jurisdiction exists. Kehr

Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3d Cir. 1991). However, because “Eleventh

Amendment immunity can be expressly waived by a party, or forfeited through non-assertion, it

does not implicate federal subject matter jurisdiction in the ordinary sense,” and therefore, a party

asserting Eleventh Amendment immunity bears the burden of proving its applicability. Christy v.

Pa. Turnpike Comm., 54 F.3d 1140, 1144 (3d Cir. 1994); see also Carter v. City of Phila., 181

F.3d 339, 347 (3d Cir. 1999).

When evaluating a Rule 12(b)(1) motion to dismiss, a court must first determine whether

the motion attacks the complaint as deficient on its face, or whether the motion attacks the

existence of subject-matter jurisdiction in fact, apart from any pleadings. Mortensen v. First Fed.

Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). If the motion consists of a facial attack, the

court “must accept the complaint’s allegations as true,” Turicentro v. Am. Airlines, 303 F.3d 293,

300 n.4 (3d Cir. 2002), and “must only consider the allegations of the complaint and documents

referenced therein and attached thereto, in the light most favorable to the plaintiff,” Gould Elecs.

Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000) (citing Mortensen, 549 F.2d. at 891).

However, if the motion involves a factual attack, “the court may consider evidence outside the

pleadings.” Id. at 176 (citing Gotha v. United States, 115 F.3d 176, 178-79 (3d Cir. 1997)). Here,

the motions to dismiss for lack of jurisdiction are a facial attack, because the United States asserts

it is immune from Plaintiffs’ claims as pled. Therefore, on this question of immunity, the Court’s

review is limited to the allegations in the First Amended Complaint, which the Court must accept

as true and view in the light most favorable to Plaintiffs.

B. Federal Rule of Civil Procedure 12(b)(6)

In deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

district court is “required to accept as true all factual allegations in the complaint and draw all

inferences in the facts alleged in the light most favorable to the [plaintiff].” Phillips, 515 F.3d at

228. “[A] complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.”

Bell Atl. v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s “obligation to provide

the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a

formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,

478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal conclusion couched as a

factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the factual allegations in the

complaint are true, those “[f]actual allegations must be enough to raise a right to relief above the

speculative level.” Twombly, 550 U.S. at 555.

“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the

pleaded factual content allows the court to draw the reasonable inference that the defendant is

liable for misconduct alleged.” Id. This “plausibility standard” requires the complaint allege “more

than a sheer possibility that a defendant has acted unlawfully,” but it “is not akin to a ‘probability

requirement.’” Id. (quoting Twombly, 550 U.S. at 556). “Detailed factual allegations” are not

required, but “more than an unadorned, the defendant-harmed-me accusation” must be pled; it

must include “factual enhancements” and not just conclusory statements or a recitation of the

elements of a cause of action. Id. (citing Twombly, 550 U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 679. “[W]here the well-pleaded facts do not permit the court to infer

more than the mere possibility of misconduct, the complaint has alleged—but it has not

‘show[n]’—‘that the pleader is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

While as a general rule, a court many not consider anything beyond the four corners of the

complaint on a motion to dismiss pursuant to 12(b)(6), the Third Circuit has held “a court may

consider certain narrowly defined types of material without converting the motion to dismiss [to

one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184

F.3d 280, 287 (3d Cir. 1999). Specifically, courts may consider any “document integral to or

explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d at

1426 (emphasis in original).

III. DECISION

HUD argues the Court lacks subject-matter jurisdiction over claims against it because

Congress has not waived sovereign immunity under the FHA, ADA, and RHA against federal

agencies. (See ECF No. 109-1.) DCA also argues the First Amended Complaint must be dismissed

as barred by the Eleventh Amendment. (ECF No. 114-1 at 9-12.) In the alternative, DCA argues

Plaintiffs failed to sufficiently plead claims against them. (Id. at 12-26.) The Court will discuss

each in turn.

A. Immunity as to HUD

The Court begins its analysis by addressing whether it lacks subject-matter jurisdiction

over Plaintiffs ADA, FHA, and RHA claims for prospective injunction and monetary damages

against HUD.

1. ADA

The United States, as a sovereign, is immune from suit unless it has consented to be sued.

F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994). Because sovereign immunity is jurisdictional in

nature, a court does not have jurisdiction over matters brought against the United States unless

immunity has been waived. Id. Only Congress can waive this immunity, and such waiver must be

explicit. Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999). Consent to suit “must be

unequivocally expressed” in statutory text and cannot be implied. White–Squire v. U.S. Postal

Serv., 592 F.3d 453, 456 (3d Cir. 2010).

Plaintiffs assert HUD violated Title II of the ADA. “Title II of the ADA ‘forbids

discrimination against persons with disabilities in . . . public services, programs and activities.’”

Coleman v. United States, No. 15-1942, 2016 WL 1241800, at *3 (D.N.J. Mar. 30, 2016) (quoting

Tennessee v. Lane, 541 U.S. 509, 516-17 (2004)). “Title II applies only to ‘any State or local

government, any department, agency, special purpose district, or other instrumentality of a State

or States or local government, and the national Railroad passenger Corporation.’” Emory v. U.S.

Dep’t of Hous. & Urban Dev., No. 05-00671, 2006 WL 8451336, at *4 (D. Haw. Aug. 31, 2006)

(citations omitted). It “does not apply to the federal government, its agencies or employees,” and

therefore, the United States is immune from suit. Id.; see Smith v. Pallman, 420 F. App’x 208, 214

(3d Cir. 2011); Venter v. Potter, 435 F. App’x 92, 95 n.1 (3d Cir. 2011) (stating “the entire federal

government is excluded from the coverage of the ADA”); United States v. Wishart, 146 F. App’x

171, 173 (9th Cir. 2005) (“By definition, the ADA does not apply to the federal government.”);

Luna v. Roche, 89 F. App’x 878, 881 n.4 (5th Cir. 2004) (same); Dyrek v. Garvey, 334 F.3d 590,

597 n.3 (7th Cir. 2003) (same); Sarvis v. United States, No. 99-0318, 2000 WL 1568230, at *2 (2d

Cir. 2000) (same); Whooten v. Bussanich, No. 04-223, 2005 WL 2130016, at *7 (M.D. Pa. Sept.

2, 2005) (stating the ADA does not contain a waiver of sovereign immunity so it does not apply to

the federal government); Wilson v. MVM, Inc., No. 03-4514, 2004 WL 765103, at *11 (E.D. Pa.

Apr. 1, 2004) (noting the ADA does not apply to any agency or branch of the federal government).

“Therefore, the federal government is not subject to Title II of the ADA, and Title II provides no

cause of action against [HUD].” Emory, 2006 WL 8451336, at *4 (citing Gray v. United States,

69 Fed. Cl. 95, 101 n.5 (2005) (“had [the plaintiff] sought relief against the United States under

Title II of the ADA, . . . no court would have been able to exercise subject-matter jurisdiction over

the matter”)). Therefore, all ADA claims against HUD must be denied.

2. FHA

Plaintiffs further assert claims against HUD under the FHA. HUD argues “there has been

no waiver of the Federal Government’s sovereign immunity to allow claims against it under the

FHA.” (ECF No. 109-1 at 9.) Plaintiffs “do not dispute” Congress did not abrogate sovereign

immunity when it enacted the FHA as to monetary relief. (ECF No. 118 at 35.) The Court agrees.

See Turner v. Sec. of U.S. Dep’t of Housing & Urban Dev., 449 F.3d 536, 539–40, n.5 (3d

Cir.2006); Peet v. Sidney, No. 17-1870, 2019 WL 542939, at *3 (D. Minn. Jan. 24, 2019); Super

v. J. D’Amelia & Assocs., LLC, No. 09-831, 2010 WL 3926887, at *12 (D. Conn. Sept. 30, 2010);

Gregory v. S.C. Dep’t of Transp., 289 F. Supp. 2d 721, 726 (D.S.C. 2003), aff’d, 114 F. App’x 87

(4th Cir. 2004).

However, Plaintiffs claim HUD could be sued for prospective injunctive relief through the

Administrative Procedures Act (“APA”). (ECF No. 109-1 at 35-37.) HUD, on the other hand,

concedes Plaintiffs can sue HUD for prospective injunctive relief under the APA, but argues

Plaintiffs have not met the elements to sue HUD under the APA. (ECF No. 109-1 at 16-17.) “The

United States has expressly waived sovereign immunity through the Administrative Procedure Act

for any action for nonmonetary relief brought against the United States.” Peet, 2019 WL 542939,

at *3 (citations omitted). Indeed, for claims for nonmonetary relief under the FHA, such as

prospective injunctive relief, courts have found sovereign immunity can be been waived through

the APA. Id.; Gregory, 289 F. Supp. 2d at 726.

However, Plaintiffs have not satisfied the elements to sue under the APA. Such elements

are: “1) be a person adversely affected by a statute or regulation, 2) be the subject of a final agency

action, and 3) have no other adequate remedy.” Gregory, 289 F. Supp. 2d at 727 (citing 5 U.S.C.

§ 702). HUD maintains, and the Court agrees, Plaintiffs have failed to allege there has been a final

agency action. In September 2010, Plaintiffs filed an administrative complaint with HUD, which

resulted in the Conciliation Agreement. (ECF No. 89 ¶¶ 56-57.) However, Plaintiffs fail to plead,

and the Court cannot ascertain, whether that was the final agency action. Therefore, Plaintiffs’

claims against HUD pursuant to the FHA must be dismissed.

3. RHA

Plaintiffs assert disability discrimination claims against HUD under Section 504 of the

RHA for both monetary and injunctive relief. HUD argues the Court has no jurisdiction over this

claim because the federal government has not waived its sovereign immunity. (ECF No. 109-1 at

5-8.) HUD is correct in part. The United State Supreme Court addressed this issue in Lane v. Pena,

518 U.S. 187 (1996). The question in that case was “whether Congress has waived the Federal

Government’s sovereign immunity against awards of monetary damages for violations of [Section

504 of the RHA.]” Id. at 189. The Court found that although the government had waived its

sovereign immunity against monetary damages under Section 501, it did not waive them under

Section 504. Id. at 192-94. As such, the Court upheld the lower courts’ rulings granting injunctive

relief sought but denying damages under Section 504. Id. Accordingly, the Court finds the

monetary relief sought by Plaintiffs under the RHA is denied but that Plaintiffs may seek injunctive

relief.

4. Standing

“In an abundance of caution,” HUD argues in the alterative that even if this Court finds

there is subject-matter jurisdiction over any of Plaintiffs’ claims against HUD, Plaintiffs are not

entitled to prospective injunctive relief because they lack standing. (ECF No. 109-1 at 12 and ECF

No. 119 at 2.) Specifically, HUD contends Plaintiffs “cannot show that they are likely to suffer

future injury from HUD’s conduct.” (ECF No. 109-1 at 14.)

“Article III of the Constitution limits the jurisdiction of federal courts to ‘Cases’ and

‘Controversies.’” Lance v. Coffman, 549 U.S. 437, 439 (2007). “Standing to sue is a doctrine

rooted in the traditional understanding of a case or controversy.” Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016). “The standing inquiry focuses on whether the party invoking jurisdiction had

the requisite stake in the outcome when the suit was filed.” Constitution Party of Pa. v. Aichele,

757 F.3d 347, 360 (3d Cir. 2014) (citing Davis v. FEC, 554 U.S. 724, 734 (2008)).

A motion to dismiss for lack of standing is properly brought pursuant to Federal Rule of

Civil Procedure 12(b)(1), because standing is a matter of jurisdiction. Ballentine v. United States,

486 F.3d 806, 810 (3d Cir. 2007) (citing St. Thomas-St. John Hotel & Tourism Ass’n v. Gov’t of

the U.S. Virgin Islands, 218 F.3d 232, 240 (3d Cir. 2000) (“The issue of standing is

jurisdictional.”); Kaufman v. Dreyfus Fund, Inc., 434 F.2d 727, 733 (3d Cir. 1970) (“[W]e must

not confuse requirements necessary to state a cause of action . . . with the prerequisites of

standing.”)).

“Pursuant to Rule 12(b)(1), the Court must accept as true all material allegations set forth

in the complaint, and must construe those facts in favor of the nonmoving party.” Ballentine, 486

F.3d at 810 (citing Warth v. Seldin, 422 U.S. 490 (1975); Storino v. Borough of Point Pleasant

Beach, 322 F.3d 293, 296 (3d Cir. 2003)). Nevertheless, on a motion to dismiss for lack of

standing, the plaintiff “‘bears the burden of establishing’ the elements of standing, and ‘each

element must be supported in the same way as any other matter on which the plaintiff bears the

burden of proof, i.e., with the manner and degree of evidence required at the successive stages of

the litigation.’” FOCUS v. Allegheny Cty. Court of Common Pleas, 75 F.3d 834, 838 (3d Cir. 1996)

(quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). However, “general factual

allegations of injury resulting from the defendant’s conduct may suffice.” Lujan, 504 U.S. at 561

(emphasis added).

Article III “standing consists of three elements.” Spokeo, 136 S. Ct. at 1547 (quoting Lujan,

504 U.S. at 560). To establish standing, “[t]he plaintiff must have (1) suffered an injury in fact, (2)

that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.” Id. “The plaintiff, as the party invoking federal

jurisdiction, bears the burden of establishing these elements.” Id. (citing FW/PBS, Inc. v. Dallas,

493 U.S. 215, 231 (1990)).

As in Spokeo, “[t]his case primarily concerns injury in fact, the ‘[f]irst and foremost’ of

standing’s three elements.” Id. (quoting Steel Co. v. Citizens for Better Env’t, 523 U.S. 83, 103

(1998)). “To establish injury in fact, a plaintiff must show that he or she suffered ‘an invasion of

a legally protected interest’ that is ‘concrete and particularized’ and ‘actual or imminent, not

conjectural or hypothetical.’” Id. at 1548 (quoting Lujan, 504 U.S. at 560). “For an injury to be

‘particularized,’ it ‘must affect the plaintiff in a personal and individual way.’” Id. (citations

omitted). “Particularization is necessary to establish injury in fact, but it is not sufficient. An injury

in fact must also be ‘concrete.’” Id. “A ‘concrete’ injury must be ‘de facto’; that is, it must actually

exist.” Id. (explaining that “[w]hen we have used the adjective ‘concrete,’ we have meant to convey

the usual meaning of the term – ‘real,’ and not ‘abstract’”). “Concreteness, therefore, is quite

different from particularization.” Id.

Here, HUD asserts a facial challenge. Therefore, the Court considers the allegations in the

Amended Complaint in the light most favorable to Plaintiffs. HUD merely argues Plaintiffs cannot

show they are likely to suffer future injury from HUD’s conduct. The Court disagrees. The

Amended Complaint alleges ongoing violations of federal discrimination law conduct by HUD.

HUD has: (1) failed to, in the past or present, provide Plaintiffs with large print documents to

utilize in drafting Fair Housing Complaints; (2) refused to allow Plaintiffs to make fair housing

complaints via telephone in the past and refuses to allow them to do it in the future; (3) failed to

provide written confirmation summarizing oral communications with Plaintiffs in the past and

refuses to do it in the future. (ECF No. 89 ¶¶ 71-76.) The Court finds Plaintiffs may bring an RHA

claim against HUD for injunctive relief.8

8 HUD does not argue the RHA claim should be dismissed for a failure to state a claim. As such,

the Court will not address the merits of the claim.

Accordingly, HUD’s Motion to Dismiss all FHA and ADA claims against it is

GRANTED. It’s Motion to Dismiss RHA claims against it is DENIED in part and GRANTED

in part: denied as to claims seeking injunctive relief but granted as to claims seeking monetary

damages.

B. Immunity as to DCA

1. ADA

DCA argues the Court lacks subject-matter jurisdiction over Plaintiffs’ ADA claim. (ECF

No. 114-1 at 10-11.) DCA acknowledges that Eleventh Amendment immunity was abrogated for

certain types of ADA claims against a State but not “this case because Plaintiffs’ [First Amended]

Complaint does not allege that DCA or any of its employees actually violated the Fourteenth

Amendment.” (Id. at 11.) Plaintiffs argue Congress abrogated sovereign immunity under the ADA.

(ECF No. 118 at 32-34.)

“The Supreme Court has held that Congress, in enacting the ADA, did abrogate state

sovereign immunity.” Heine v. Comm’r of Dep’t of Cmty. Affairs of N.J., No. 11-5347, 2014 WL

4199203, at *6 (D.N.J. Aug. 22, 2014) (citing United States v. Georgia, 546 U.S. 151, 154 (2006)

(citing Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 363–364 (2001) and 42 U.S.C. §

12131 et seq.) (noting that the ADA specifically states that “[a] State shall not be immune under

the eleventh amendment to the Constitution of the United States from an action in [a] Federal or

State court of competent jurisdiction for a violation of this chapter”))). The Eleventh Amendment

therefore does not bar ADA claims asserted against DCA.

2. FHA

DCA argues the Court lacks subject-matter jurisdiction over Plaintiffs’ FHA claim. (ECF

No. 114-1 at 12.) Plaintiffs do not dispute Congress did not abrogate sovereign immunity when

enacting the FHA. (ECF No. 118 at 35.) Instead, they argue that while they are precluded from

receiving an award of monetary damages against the DCA for a violation of the FHA, they are

entitled to prospective injunctive relief. (Id.) The Court agrees with Plaintiffs.

“It has repeatedly been held that Congress did not abrogate state sovereign immunity when

it enacted the Fair Housing Act.” Heine, 2014 WL 4199203, at *6 (citing Gregory, 289 F. Supp.

2d at 721; Welch v. Century 21 Chimes Real Estate Inc., 90–3410, 1991 WL 29950, at *1

(E.D.N.Y. Feb. 27, 1991) (“Because plaintiffs complaint seeks money damages from [defendant]

[for a violation of the FHA], money which would come from the state treasury, the eleventh

amendment acts to bar this suit.”)). However, while the Eleventh Amendment precludes an award

of damages against state officials for violation of the FHA, it allows for prospective injunctive

relief. Project Life, Inc. v. Glendening, 139 F. Supp. 2d 703, 711 (D. Md. 2001) aff’d, 46 F. App’x

147 (4th Cir. 2002) (finding that “[w]hile Eleventh Amendment immunity precludes the award of

damages against . . . Defendants, the Court has the authority, under the doctrine of Ex Parte Young,

209 U.S. 123 (1908), to issue an injunction to compel State officials to comply with Federal law”).

The Court finds Plaintiffs may bring an FHA claim against HUD for injunctive relief.9

C. Failure to Accommodate

Plaintiffs allege they requested several reasonable accommodations from DCA in

efforts to own a home, including but not limited to, larger font sizes

for all state and federal forms, conducting meetings regarding their

housing issue at their home or via video conference, effective

communications including email summaries of phone meetings and

video conferences, and for DCA to respond to all of Plaintiffs’

9 DCA does not contest that it is subject to suit in Federal Court for a violation of Section 504 of

the RHA. Indeed, Congress amended Section 504 to provide that “[a] state shall not be immune

under the Eleventh Amendment of the Constitution of the United States from suit in Federal court

for a violation of section 504 of the Rehabilitation Act of 1973.” Koslow v. Pennsylvania, 302 F.3d

161, 169 (3d Cir. 2002) (quoting 42 U.S.C. § 2000d-7(a)(1)). The Eleventh Amendment therefore

does not bar RHA claims asserted against DCA for monetary or injunctive relief.

requests in writing in text no smaller than Verdana 14 pt font, in

black text on white background.

(ECF No. 89 ¶ 102.) They contend, however, DCA did not provide these reasonable

accommodations. (Id. ¶ 103.) DCA contends Plaintiffs failed to plead a prima facie case of

discrimination. (ECF No. 114-1 at 12-18.) In the alternative, DCA argues that even if the Court

finds Plaintiffs have established a prima facie case for discrimination, they made accommodations

that were reasonable and feasible. (Id. at 19-26.)10

Courts considering claims raised under the FHA, ADA, and RHA have noted they contain

“similar language and related purposes.” Solivan v. Valley Hous. Dev. Corp., No. 08-2722, 2009

WL 3763920, at *3 (E.D. Pa. Nov. 9, 2009). “Both the ADA and the R[H]A provide that public

entities must reasonably modify their ‘policies, practices, or procedures’ to avoid discrimination

against individuals with disabilities, as long as the modification does not fundamentally alter the

nature of the institution’s services, programs, or activities or otherwise impose undue burden.”

Kongtcheu v. Constable, No. 12-6872, 2016 WL 270075, at *5 (D.N.J. Jan. 20, 2016), aff’d, 674

F. App’x 216 (3d Cir. 2016) (citations omitted). The RHA provides that “[n]o otherwise qualified

individual with a disability in the United States . . . shall, solely by reason of her or his disability,

be excluded from the participation in, be denied the benefits of, or be subjected to discrimination

10 The DCA’s opposition attaches email exhibits to demonstrate Plaintiffs’ allegations, that the

DCA failed to accommodate them, are false. The Court cannot and will not consider anything

beyond the four corners of the First Amended Complaint. The Third Circuit has held “a court may

consider certain narrowly defined types of material without converting the motion to dismiss [to

one for summary judgment pursuant under Rule 56].” In re Rockefeller Ctr. Props. Sec. Litig., 184

F.3d 280, 287 (3d Cir.1999). Specifically, courts may consider any “‘document integral to or

explicitly relied upon in the complaint.” In re Burlington Coat Factory Sec. Litig., 114 F.3d at

1426 (emphasis in original). These exhibits are neither integral to nor explicitly relied upon in the

First Amended Complaint. The Court is “required to accept as true all factual allegations in the

complaint and draw all inferences in the facts alleged in the light most favorable to the [plaintiff].”

Phillips, 515 F.3d at 228.

under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). The

ADA states that “no qualified individual with a disability shall, by reason of such disability, be

excluded from participation in or be denied the benefits of the services, programs, or activities of

a public entity, or be subjected to discrimination by an such entity.” 42 U.S.C. § 12132. The FHA

makes it unlawful “[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny,

a dwelling to any buyer or renter because of a handicap.” 42 U.S.C. § 2604(f)(1). Under the FHA

discrimination is defined as “a refusal to make reasonable accommodations in rules, policies,

practices, or services, when such accommodations may be necessary to afford such person equal

opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B).

Because requirements of the FHA, ADA, and RHA are similar, courts have determined the

FHA analysis can be applied to ADA and RHA claims, where claims are brought under all three

statutes. Lapid Ventures, LLC v. Twp. of Piscataway, No. 10-6219, 2011 WL 2429314, at *5

(D.N.J. June 13, 2011); Reg’l Econ. Cmty. Action Program v. City of Middletown, 294 F.3d 35,

45–46 (2d Cir. 2002). “A plaintiff may prove a violation of the FHA[], ADA or [RHA] in one of

three ways: (1) showing disparate treatment, also termed intentional discrimination, (2) showing

disparate impact, or (3) showing a refusal to make reasonable accommodations.” 901 Ernston Rd.,

LLC v. Borough of Sayreville Zoning Bd. of Adjustment, No. 18-2442, 2018 WL 2176175, at *6

(D.N.J. May 11, 2018) (quoting Lapid Ventures, LLC, 2011 WL 2429314, at *9). Here, Counts II

and III of Plaintiffs’ First Amended Complaint allege DCA failed to accommodate them and

intentionally discriminated against them based on their disabilities. (See ECF No. 89.)

To determine whether a violation of either the ADA, RHA, or FHA has occurred, the Court

must first determine if there is a prima facie showing of disability discrimination. Kongtcheu, 2016

WL 270075, at *5. To establish a prima facie showing of disability discrimination under, a plaintiff

must demonstrate: “1) he or she has a disability; 2) he or she is otherwise qualified; and 3) he or

she is being excluded from participation in, being denied the benefits of, or being subjected to

discrimination under the program solely because of her disability.” Id. (citation omitted). Once

there has been a prima facie showing of disability discrimination, the Court can engage in a

reasonable accommodation analysis. Id.

Here, “DCA acknowledges that Plaintiffs are disabled persons, that they are qualified

participants in the Section 8 voucher program, and that DCA received federal assistance.” (ECF

No. 114-1 at 15.) However, DCA argues Plaintiffs have not alleged “they were denied their

benefits because of their disability.” (Id.) The Court does not agree. The First Amended Complaint

alleges DCA made it difficult for Plaintiffs to transition from Section 8 rental vouchers to the

Section 8 homeownership program. (ECF No. 89 ¶ 55.) DCA failed to provide HUD-related forms

in the appropriate font and size for Plaintiffs, failed to provide written responses to Plaintiffs’

accommodation requests, and refused to meet with Plaintiffs in their apartment or via video

conferencing to discuss the Section 8 Homeownership program. (Id. ¶¶ 62-64.) The Court finds

this is sufficient to plead Plaintiffs were denied their benefits because of their disability, and in

turn to establish a prima facie case of disability discrimination.

Next, the Court must undertake a reasonable accommodation analysis. To determine

whether DCA failed to reasonably accommodate Plaintiffs under the FHA, RHA and ADA, the

Court must consider: “1) whether Plaintiff[s’] requested accommodation/modification was

necessary to afford her an equal opportunity to use and enjoy the dwelling; and 2) whether

Plaintiff[s’] requested accommodation was reasonable, or whether it imposed an undue hardship

on [DCA].” Solivan, 2009 WL 3763920, at *5. To demonstrate that a requested accommodation

is necessary, Plaintiffs’ must demonstrate that, “but for the accommodation, [they] will likely be

denied an equal opportunity to enjoy the house of [their] choice.” Id. (quoting Lapid–Laurel, LLC

v. Zoning Bd. Of Adjustment of Twp. Of Scotch Plains, 284 F.3d 442, 461 (3d Cir. 2002).

Here, without the accommodation of forms in the appropriate font sizes and visits to their

apartment or via video conferencing, Plaintiffs cannot apply for housing that meets their medical

needs because they have trouble with their vision and physically cannot make it to the office visits.

As such, Plaintiffs have plead sufficient facts as to whether their requested accommodation is

necessary given their medical condition.

Whether an accommodation is reasonable is a question of fact to be decided by a jury.

Bowers v. Nat’l Collegiate Athletic Ass’n, 563 F. Supp. 2d 508, 524 (D.N.J. 2008); see Buskirk v.

Apollo Metals, 307 F.3d 160, 170 (3d Cir. 2002) (“Generally, the question of whether a proposed

accommodation is reasonable is a question of fact.”) Because the determination of whether an

accommodation is reasonable is a question of fact to be decided by a jury, the Court finds Plaintiffs

have sufficiently pled a reasonable accommodation claim under the FHA, RHA, and ADA at this

juncture. Accordingly, DCA’s Motion to Dismiss Count II against it is DENIED.11

D. Intentional Discrimination

Plaintiffs allege DCA “took adverse actions against Plaintiffs, which was motivated by

Plaintiffs’ disabilities.” (ECF No. 89 ¶ 115.) Specifically, they argue DCA intentionally

disregarded “policies it created under the ‘Reasonable Accommodation Policy and Procedures’

chapter it added to its Administrative Plan, did not comply with the Conciliation Agreement, and

refused to afford Plaintiffs with an equal opportunity to a single-family, handicap accessible home

within their chosen community of Hunterdon County.” (Id.)

11 Plaintiffs, however, are limited to seeking prospective injunctive relief as to their FHA

accommodation claim against DCA for the reasons articulated above.

To plead an intentional discrimination claim, “there must be evidence of discriminatory

purpose motivating the action.” 901 Ernston Rd., LLC, 2018 WL 2176175, at *6 (citing Cmty.

Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005)). “The discriminatory

purpose need not be malicious or invidious, nor need it figure in ‘solely, primarily, or even

predominantly’ into the motivation behind the challenged action.” Id.

Plaintiffs allege DCA ignored their requests, “made comments suggesting that Plaintiffs’

need to conduct in-home interviews was unreasonable and unnecessary,” and disregard the

Conciliation Agreement’s requirement to provide Plaintiffs with denials of reasonable

accommodation within five days. (ECF No. 89 ¶¶ 55-69.) The Court finds Plaintiffs plead

sufficient facts of discriminatory treatment and intent at this stage of the litigation. Accordingly,

DCA’s Motion to Dismiss Count III against it is DENIED.12

IV. CONCLUSION

For the reasons set forth above: (1) HUD’s Motion to Dismiss all FHA and ADA claims

against it is GRANTED; (2) HUD’s Motion to Dismiss the RHA claims against it is DENIED in

part and GRANTED in part, specifically, denied as to claims seeking injunctive relief but

granted as to claims seeking monetary damages; (3) DCA’s Motion to Dismiss Count II against it

is DENIED; and (4) DCA’s Motion to Dismiss Count III against it is DENIED.13

Date: September 12, 2019 /s/ Brian R. Martinotti___________

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE

13 Plaintiffs, however, are limited to seeking prospective injunctive relief as to their FHA claims

against DCA for the reasons articulated above.