Johnson v. Guardian Management

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LARRY JOHNSON, Case No. 3:19-cv-485-SI

Plaintiff OPINION AND ORDER

v.

GUARDIAN MANAGEMENT and

UPTOWN TOWERS,

Defendants

Paul W. Conable and Sadie Y. Concepción, TONKON TORP LLP, 888 SW Fifth Avenue,

Suite 1600, Portland, OR 97204. Of Attorneys for Plaintiff.

Christopher J. Drotzmann, DAVIS ROTHWELL EARLE & XÓCHIHUA PC, 200 SW Market Street,

Suite 1800, Portland, OR 97204. Of Attorneys for Defendants.

Michael H. Simon, District Judge.

Plaintiff Larry Johnson filed this lawsuit against Defendants Guardian Management

(Guardian Management) and Uptown Tower Apartments, LLC (Uptown Tower)1 (collectively,

1 Plaintiff represented himself (pro se) when he filed the Complaint in this action and did

not correctly name Defendant Uptown Tower Apartments, LLC. Plaintiff now is represented by

counsel.

Defendants). Plaintiff asserts a claim under the Fair Housing Act (FHA),2 42 U.S.C. § 3604(f),

alleging that Defendants discriminated against Plaintiff when Defendants denied what Plaintiff

contends was a request for a reasonable accommodation. Plaintiff alleges that he is entitled to a

“live-in aide” as an accommodation for his disability. The income of a live-in aide is excluded

from the annual income Defendants are required to report to the U.S. Department of Housing and

Urban Development (HUD) to calculate a tenant’s Section 8 housing subsidy. Plaintiff alleges

that Defendants refused Plaintiff’s request for a reasonable accommodation that his wife,

Rowena Perpiñan Johnson (Mrs. Johnson) be considered as a live-in aide and that her income be

excluded from what Plaintiff is required to report, after Mrs. Johnson moved in with Plaintiff for

purposes of providing Plaintiff with needed caregiving.

Defendants argue that Mrs. Johnson cannot qualify as a live-in aide because HUD

regulations exclude all spouses from being considered as live-in aides. Defendants argue that the

Court should defer to the findings and determination of the HUD Office of Fair Housing and

Equal Opportunity (FHEO), as provided in the FHEO’s Preliminary Letter of Findings of

Compliance issued on September 8, 2020 (Letter of Findings),3 and the Letter of Determination

issued on January 13, 2021 (Letter of Determination).4 In its Letter of Findings, the FHEO stated

that Defendants did not discriminate under the FHA because spouses are excluded from the

definition of “live-in aide.” In the Letter of Determination ion), the FHEO reached the same

2 The Fair Housing Amendments Act of 1988 (FHAA) amended the FHA. The

amendment strengthened the Act’s provisions to combat housing discrimination and

neighborhood segregation. Pub. L. No. 100-430, 102 Stat. 1619 (1988) (amending 42 U.S.C.

§§ 3601-3619 (1982)).

3 ECF 37-1 at 12-17.

4 ECF 46-1.

conclusion. Defendants also argue that Mrs. Johnson does not meet the required elements of a

live-in aide as stated in 24 C.F.R. § 5.403, even if spouses are not categorically excluded.

Defendants assert that Mrs. Johnson does not meet those requirements because she lives with

Plaintiff “as his spouse” and is residing with Plaintiff for reasons other than to provide necessary

caregiving services to Plaintiff. Before the Court is Defendants’ motion for summary judgment.

For the reasons below, Defendants’ motion is denied.

STANDARD OF REVIEW

A party is entitled to summary judgment if the “movant shows that there is no genuine

dispute of any material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). The moving party has the burden of establishing the absence of a genuine

dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view

the evidence in the light most favorable to the non-movant and draw all reasonable inferences in

the non-movant’s favor. Clicks Billiards Inc. v. Sixshooters Inc., 251 F.3d 1252, 1257 (9th

Cir. 2001). Although “[c]redibility determinations, the weighing of the evidence, and the

drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling

on a motion for summary judgment,” the “mere existence of a scintilla of evidence in support of

the plaintiff’s position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252,

255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for

the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

BACKGROUND

A. The Parties

Defendant Uptown Tower is an apartment complex that participates in the Section 8

project-based housing assistance program through HUD. ECF 12 ¶ 3. Uptown Tower is a

covered dwelling under the FHA. Uptown Tower must comply with HUD regulations as a

Section 8 project-based housing program. Letter of Findings at 1. Defendant Guardian

Management is the property manager for Uptown Tower. Id.

Plaintiff is a low-income senior with significant health needs who lives in Uptown

Tower. He moved into Uptown Tower on May 12, 2015, after living for several months in a

nursing home, while recovering from back surgery. Letter of Findings at 2. His rent is subsidized

by the HUD Section 8 project-based housing program. The parties do not dispute that Plaintiff

qualifies for funding for a live-in aide through the Medicaid Independent Choices Program.

ECF 26 ¶ 8; ECF 27 ¶ 6; see also Or. Admin. R. 411-030-0100.

B. Plaintiff’s Requests for Accommodation

On July 22, 2015, approximately ten weeks after moving into Uptown Tower, Plaintiff

completed Guardian Management’s Reasonable Accommodation/Modification Request and

Verification Form (Accommodation Request).5 ECF 11-1 at 34. Plaintiff requested an

accommodation for a live-in aide6 because of increased health problems associated with falls,

memory issues, seizures, and other concerns resulting from Plaintiff’s spinal stenosis disabilities.

Id. Teyonda Overton, a Certified State of Oregon Caregiver, signed the Accommodation Request

form but did not state whether she considered Plaintiff disabled or whether she considered

Plaintiff’s requested accommodation necessary for Plaintiff to fully enjoy his rental unit. Id.

5 To complete Guardian Management’s Accommodation Request form, a medical

provider must sign the form and verify whether the requestor is a person with a disability,

whether the request for a live-in aide is related to the requestor’s disability, and whether the

accommodation is necessary to afford the requestor equal use and enjoyment of his rental.

6 The term “live-in aide” is used in the HUD regulations. See, e.g., 24 C.F.R. § 5.403.

The term “live-in caregiver” is used in the Letter of Findings and in some of the documentation

from HUD. In this context, the terms are interchangeable.

In April 2016, Plaintiff married Mrs. Johnson. ECF 40 ¶ 2. At the time of their marriage,

Plaintiff lived in Oregon and Mrs. Johnson lived in the Philippines. Id.; ECF 39, ¶ 2. Plaintiff

and Mrs. Johnson continued to live apart for the next two years. ECF 39 ¶ 2. During those two

years, Mrs. Johnson continued to live and maintain her own home in the Philippines, where she

worked as a teacher, with no intention of coming to live in the United States. ECF 39 ¶ 2;

ECF 40 ¶ 2.

On August 8, 2016, Plaintiff submitted a follow-up to his accommodation request, stating

that he had submitted his request on July 22, 2015 but had received no response; Plaintiff

requested an “expedited response so I can plan and prepare.” ECF 20 at 9. Defendants did not

respond to either request submitted by Plaintiff.

After two years of marriage, Mrs. Johnson offered to move to the United States to take

care of Plaintiff because of his declining health issues. See ECF 39 ¶ 3; ECF 40 ¶ 3. On

September 13, 2018, Plaintiff completed a second Accommodation Request form for a live-in

aide based on his disability. See Letter of Findings at 3. Shelby Erickson, Certified Medical

Assistant, wrote a letter of support for Plaintiff’s third Accommodation Request that verified

Plaintiff’s disability and his disability-related need for a live-in caregiver. Id. At about the same

time, Plaintiff told Uptown Tower that Mrs. Johnson would be moving in and would be his

live-in caregiver. Id.; see also ECF 36 ¶ 3. Mr. Genaro Lopez, the property manager at Uptown

Tower, told Plaintiff that a spouse is considered to be a member of the household, must be added

to the lease, and does not qualify as a live-in aide. Letter of Findings at 3; ECF 36 ¶ 4.

Mrs. Johnson took a leave of absence from her job in the Philippines. ECF 20 at 16. She

moved in with Plaintiff on November 5, 2018. She was certified as Plaintiff’s live-in aide under

the Medicaid Independent Choice Program on that same day. Id. The Medicaid Independent

Choice Program pays Mrs. Johnson for the services she provides to Plaintiff as his live-in aide.

Id.

On November 13, 2018, Plaintiff submitted to Guardian Management a Change Report,

notifying Guardian Management that Mrs. Johnson had moved in as his caregiver because of his

health needs. Letter of Findings at 3. In support, Plaintiff submitted a Verification for a

Reasonable Accommodation/Modification by Qualified Individual form (Verification Form).

ECF 11-1 at 39. Health Care Provider Abdul Ali Wright signed this form, verifying that Plaintiff

was disabled and that his need for a live-in aide was related to his disability and necessary for

him to have equal enjoyment of his rental unit. Id.

On February 4, 2019, Plaintiff submitted a Change Report form, requesting a “difficulty

of care” exemption for spouse and family member. Letter of Findings at 3. In support, he

submitted a Verification Form signed by Judith Becher, from the Multnomah County Health

Department NE Health Clinic, which conveyed that Plaintiff is disabled and in need of the

services of a live-in aide to have the same opportunity as a nondisabled individual to use and

enjoy his rental unit. Id. Although a copy of this request is not in the record, it appears that

Plaintiff was requesting, in the alternative, that if Defendants were not going to accept

Mrs. Johnson as a traditional live-in aide, they should still not count or consider her income for

purposes of Plaintiff’s qualifications under Section 8.

On February 13, 2019, Plaintiff submitted a handwritten third request for an

accommodation for Defendants to consider Mrs. Johnson as Plaintiff’s live-in aide. ECF 11-1

at 14. About this same time, Mr. Lopez asked Kory Thompson, the HUD Lead Compliance

Specialist for Guardian Management, if a spouse could be considered as a live-in aide. Letter of

Findings at 3. Mr. Thompson told Mr. Lopez that a live-in aide needs to be a person who does

not live in the unit for any other reason and whose finances are not tied together as a family unit.

Id. Defendants then informed Plaintiff that a spouse cannot be added to the lease as a live-in aide

and that HUD regulations required Defendants to consider Mrs. Johnson as a household member

whose income and assets must be included when Defendants reported Plaintiff’s household

income to HUD in calculating Plaintiff’s Section 8 housing subsidy. See Letter of Findings at 3;

ECF 36 ¶ 4. When Mr. Lopez asked Plaintiff and Mrs. Johnson to fill out paperwork to add her

name to Plaintiff’s lease and complete the recertification process for Section 8 housing, Plaintiff

became upset and responded that Mrs. Johnson could not be added because of the Independent

Choices Program. ECF 36 ¶ 6.

C. HUD Determination

Plaintiff filed this lawsuit in April 2019. In September 2019, Plaintiff filed a complaint

with the HUD FHEO. In his HUD complaint, Plaintiff alleged, among other things, that

Defendants violated the FHA, Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794,

and the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, when Defendants refused

Plaintiff’s reasonable accommodation request for Mrs. Johnson to be Plaintiff’s live-in aide. See

Letter of Findings at 1.

The FHEO issued the Letter of Findings on September 8, 2020. The Letter of Findings

addressed, among other things, Plaintiff’s complaint that Defendants discriminated against

Plaintiff by refusing the requested accommodation that Mrs. Johnson should be considered a

live-in aide whose income does not count for purposes of Section 8. The Letter of Findings states

that although Plaintiff proved the five elements of discrimination under the FHA, Plaintiff’s

request was not a reasonable accommodation. Letter of Findings at 4. The FHEO concluded that

Plaintiff’s request was not a reasonable accommodation because it created an undue financial

and administrative burden on Defendants and because it requested “a fundamental alteration to

[Defendants’] operation as a housing provider of HUD assisted housing.” Id. at 4-5. The FHEO

explained that “[w]hile a relative may be considered a live-in caregiver,” HUD’s “applicable

rules and regulations” do not allow a spouse to be a live-in aide. Id. at 5. The Letter of Findings

quotes HUD Handbook 4350.3 Rev. 1 (HUD Handbook),7 which mirrors the regulations in

setting out the three requirements for a live-in aide. Id. It does not mention spouses. Id. Because

the FHEO concluded that Mrs. Johnson could not qualify as a live-in aide, the FHEO determined

that Defendants did not unlawfully deny a reasonable accommodation request from Plaintiff on

this issue.

After Plaintiff received FHEO’s Letter of Findings, Plaintiff submitted a request for

review of the finding to the Regional Director of the FHEO. Susan H. Crawford, Director of

Compliance and Disability Rights for the FHEO, reviewed the decision and confirmed the Letter

of Findings. See Letter of Determination. The review cited the Office of Public and Indian

Housing Notice PIH 2014-25 (HA) as the authority for the determination that a spouse may not

be a live-in aide. Determination Letter at 2 (citing Off. of Pub. & Indian Hous. Not. PIH 2014-25

(HA), OVER SUBSIDIZATION IN HOUSING CHOICE VOUCHER PROGRAM (2014) available at

https://www.hud.gov/program_offices/public_indian_housing/publications/notices/2014 (PIH

Notice)). The Letter of Determination states that the PIH Notice “provides clarification on the

definition of live-in aides found at 24 CFR § 5.403. The PIH Notice applies to all properties in

the [Housing Choice Voucher] (HCV) program, including Uptown Tower Apartments.

According to the [PIH] Notice, ‘in accordance with this definition, a live-in aide is not a member

7 The HUD Handbook is available at

https://www.hud.gov/program_offices/administration/hudclips/handbooks/hsgh/4350.3.

of the assisted family and is not entitled to the HCV as the remaining member of the tenant

family.’” Id.

DISCUSSION

Plaintiff alleges that Defendants refused to make a reasonable accommodation, in

violation of 42 U.S.C. § 3604(f), by denying Plaintiff’s request for Mrs. Johnson to be Plaintiff’s

live-in aide. Defendants move for summary judgment, arguing that Plaintiff’s requested

accommodation was unreasonable because it was not legally permissible under HUD

regulations.8 Defendants assert that Mrs. Johnson does not qualify as a live-in aide and that the

Court should defer to the FHEO’s determination on this point as expressed in the Letter of

Findings and Letter of Determination. Defendants contend that this issue is dispositive of the

reasonableness of Plaintiff’s requested accommodation. Alternatively, they argue that the request

was unreasonable because she does not meet the requirements of the regulation even if spouses

are not categorically excluded.

Plaintiff responds that the HUD regulations do not categorically exclude a spouse from

being considered a live-in aide and that the Court should not defer to the FHEO’s determination

that Mrs. Johnson cannot qualify as a live-in aide as stated in the Letter of Findings and Letter of

Determination. Plaintiff also argues that Mrs. Johnson meets the definition in the governing

8 Defendants do not argue that, separate from the HUD regulation purportedly precluding

Mrs. Johnson from serving as a live-in aide, her doing so would impose on Defendants an undue

financial or administrative burden. Indeed, in Defendants’ opening brief they do not raise any

argument relating to undue burden, and in their reply they simply state, “To require Defendants

to exclude Mrs. Johnson’s income despite a HUD ruling to the contrary would be to expose

Defendants to unreasonable administrative burdens.” ECF 41 at 6. Thus, the Court does not

consider whether having Mrs. Johnson as a live-in aide imposes an undue financial or

administrative burden on Defendants.

regulations of a live-in aide and Defendants’ denial of Plaintiff’s request that Mrs. Johnson be

considered his live-in aide violates the requirements of 42 U.S.C. § 3604(f).

A. Standards under the Fair Housing Act

The FHA makes it unlawful “[t]o discriminate against any person in the terms,

conditions, or privileges of sale or rental of a dwelling, or in the provision of service or facilities

in connection with such dwelling because of a handicap.” 42 U.S.C. § 3604(f)(2) (as amended by

Pub. L. No 100-430, 102 Stat. 1619 (1988)). Under the FHA, discrimination includes “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 enjoy the

dwelling.” 42 U.S.C. § 3604 (f)(3)(B). The FHA states that the refusal of a reasonable disability

accommodation is a form of discrimination.

To establish a prima facie case of a refusal to make a reasonable accommodation, a

plaintiff must show that: (1) he or she suffers from a “handicap” as defined by 42 U.S.C.

§ 3602(h); (2) the defendants knew or should reasonably be expected to know of the plaintiff’s

handicap; (3) the accommodation of the handicap “may be necessary” to afford the plaintiff an

equal opportunity to use and enjoy the dwelling; and (4) the defendants refused to make such

accommodation. DuBois v. Ass’n of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179

(9th Cir. 2006); United States v. Cal. Mobile Home Park Mgmt. Co., 107 F.3d 1374, 1380 (9th

Cir. 1997).

B. Section 8 housing requirements

Because the conduct at issue originated from adherence to the Section 8 housing

requirements and HUD regulation, the Court provides a brief explanation of the Section 8

housing program. In 1974, Congress added the Section 8 housing program to the United States

Housing Act of 1937 “[f]or the purpose of aiding low-income families in obtaining a decent

place to live.” 42 U.S.C. § 1473f. Section 8 gives eligible families either “tenant-based” or

“project-based” rent subsidies administered through state or local project housing authorities

(PHAs) using funds provided by HUD. Park v. Vill. Apartment Tenants Ass’n v. Mortimer Tr.,

636 F.3d 1150, 1152-1153 (9th Cir. 2011); 24 C.F.R. §§ 983.5(a)-(b), 982.4(b). Project-based

Section 8 housing helps families who live in specific housing developments or units. 42 U.S.C.

§ 1437f(f)(6). Under Section 8’s project-based program, a PHA contracts with a property owner

(the HAP contract) and makes rent subsidy payments, called housing assistance payments

(HAPs), for specific housing developments or units and for specified terms. 24 C.F.R. §§

983.5(a)(1)-(3), 983.3(b). During the term of the HAP Contract, the PHA makes HAPs to the

owner for the units leased and occupied by approved families. Id. §§ 983.5(a) (4), 983.202.

In the Section 8 program, low-income participants pay 30 percent of their adjusted

income for rent, and the housing authority pays the remainder. Id. § 5.628(a). HUD calculates a

tenant’s adjusted income using HUD income counting rules, which include the live-in aide

exemption. Id. § 5.609(c)(5). Annual income is defined broadly as “all amounts, monetary or

not.” Id. § 5.609(a). Income includes “compensation for personal services” that “[g]o[es] to, or

on behalf of, the family head or spouse (even if temporarily absent) or to any other family

member.” Id., §§ 5.609(a)(1); 5.609(b)(a). Income does not include such amounts specifically

excluded under the regulation. Id. § 5.609(a)(3). The regulations exclude sixteen categories of

income from qualifying as annual income. The exclusion that Plaintiff argues applies is the

exclusion for a live-in aide as defined in 24 C.F.R. § 5.403. Id. § 5.609(c)(5). Housing providers

who participate in a Section 8 project-based assistance program must reexamine and redetermine

family income and composition annually. Id. § 5.657.

C. Deference to the FHEO

Defendants argue that the Court should defer to the FHEO’s determination that

Mrs. Johnson does not qualify as a live-in aide and thus Plaintiff’s requested accommodation

was unreasonable. The FHEO was interpreting its own regulations. When an agency is

interpreting its own regulations, courts have traditionally accepted the agency’s reading unless it

is “plainly erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452 (1997);9

Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); see also Harkonen v. U.S. Dep’t of

Justice, 800 F.3d 1143, 1150 (9th Cir. 2015) (“An agency’s interpretation of its own regulation is

entitled to judicial deference unless that interpretation is ‘plainly erroneous or inconsistent with

the regulation.’” (quoting Auer, 519 U.S. at 461)).10

The FHEO investigated Plaintiff’s claim that Defendants violated the FHA, the

Rehabilitation Act, and the ADA when Defendants refused Plaintiff’s accommodation request to

consider Mrs. Johnson as Plaintiff’s live-in aide. In the Letter of Findings, the FHEO stated that

Plaintiff’s requested accommodation was an undue financial and administrative burden, with no

explanation or analysis.

The Letter of Findings also quotes the HUD Handbook, which sets forth three

requirements for a live-in aide that mirror the requirements in 24 C.F.R. § 5.403. These

9 The parties disagree over whether deference is appropriate under Skidmore v. Swift, 323

U.S. 134 (1944). Skidmore, however, applies when an agency is interpreting a statute, and here

the agency was interpreting its own regulations, which is governed by Auer. If the Court were to

consider deference under Skidmore, the Court would not defer here, because the agency’s

interpretation is not persuasive considering its thoroughness, the validity of its reasoning, and its

consistency with its other pronouncements. See id. at 140.

10 But see Decker v. Nw. Env’t Def. Ctr., 568 U.S. 597, 615 (2013) (Roberts, C.J.

concurring) (“It may be appropriate to reconsider that principle [of Auer deference] in an

appropriate case. But this is not that case.”).

requirements are that the caregiver “(1) Is determined to be essential to the care and well-being

of the persons; (2) Is not obligated for the support of the persons; and (3) Would not be living in

the unit except to provide the necessary supportive services.” 24 C.F.R. § 5.403. The Letter of

Findings concludes, without explanation or authority, that “while a relative may be considered a

live-in caregiver, HUD Multi Family Housing (MFH) who oversees properties funded through

the Housing Assistance Program, does not allow a spouse to be considered a live-in caregiver

(for purposes of calculating rent) per the applicable rules and regulations.” Letter of Findings

at 5.

In affirming the conclusion of the Letter of Findings, the Letter of Determination cites the

PIH Notice. The PIH Notice is addressing the problem of over-subsidization. One “red flag”

issue is when payments are made for more bedrooms than the number of family members. The

PIH Notice explains that this most often occurs when there is a live-in aide. After setting out the

definition of a “live-in aide,” with its three requirements, the PIH Notice states that in

accordance with that definition, “a live-in aide is not a member of the assisted family and is not

entitled to the HCV as the remining member of the tenant family.” See PIH Notice, at 3. Relying

on the PIH Notice, the Letter of Determination concludes that Defendants denied Plaintiff’s

request for a live-in aide based on HUD rules and not based on Plaintiff’s disability. Thus, there

is no discrimination based on disability.

The HUD regulation defining live-in aides, however, does not exclude a spouse or family

member from acting as a live-in aide. Indeed, when the definition was established, the agency

intentionally deleted proposed text that would have precluded spouses and family members from

serving as live-in aides specifically to encourage such persons to serve as live-in aides. See

Section 8 Certificate and Voucher Programs Conforming Rule: Admissions, 59 Fed. Reg. 36662,

36665 (July 18, 1994) (“The final rule deletes a proposed change of the live-in aide definition

(not included in the parallel language of other Section 8 rules) to provide that a live-in aide may

not be related by blood, marriage or operation of law to the persons receiving Section 8

assistance for occupancy of the unit. Comments objected to this proposal, stating that HUD

should encourage a family relative to act as a live-in aide.”).

Further, the PIH Notice does not discuss whether a spouse can qualify to serve as a live-

in aide—it does not mention spouses at all. The PIH Notice is not clearly drafted, but it appears

to mention live-in aides not being a member of the assisted family in the context of explaining

over-subsidization and the number of bedrooms as compared to family members, and in the

technical sense for “remaining family member” status after the tenant passes. See PIH Notice at 3

(“In accordance with this definition, a live-in aide is not a member of the assisted family and is

not entitled to the HCV as the remaining member of the tenant family.”). In other words, the

notice explains that a live-in aide is not technically a family member and thus is not entitled to

remain in the property after the tenant passes.

Further, this issue has been discussed by courts, when adult children have served as live-

in aides and argued that they have a right to remain in the Section 8 housing. In those

circumstances, courts have explained that live-in aides, even when family members, are not

entitled to remain in the property after the tenant passes. See, e.g., Daniels v. Dep’t of Hous. &

Urb. Dev., 2017 WL 3161207, at *5 (E.D. Ark. July 25, 2017), aff’d, 730 F. App’x 399 (8th Cir.

2018); Washington v. Los Angeles Second Baptist Homes, Inc., 2014 WL 2197757, at *6 (C.D.

Cal. May 24, 2014). Thus, if the PIH Notice intended to state that no family member can ever be

a live-in aide, it is inconsistent with the regulatory definition set forth in 24 C.F.R. § 5.403.

The FHEO’s interpretation of the PIH Notice and HUD’s other rules and regulations as

categorically requiring that spouses may not serve as live-in aides is plainly erroneous and

inconsistent with the regulation. Indeed, the cited text from the PIH Notice would mean that all

family members could not serve as live-in aides, and the FHEO cited that text for the proposition

that family members except spouses could serve as live-in aides. Thus, the FHEO’s own analysis

was internally inconsistent. It also conflicts with the written guidance provided by HUD in the

HUD Handbook. The HUD Handbook specifically states that a relative may be a live-in aide if

they meet the requirements of 24 C.F.R. § 5.403.11 HUD Handbook 4350.3 Rev. 1, at 3-10.

Defendants argue that the Live-In Aides and Housing Choice Voucher Program Fact

Sheet specifically notes examples of an adult child or a nephew moving into an apartment and

acting as a live-in aide but includes no examples of a spouse acting as a live-in aide. See Lisa

Sloan, Live-in Aides and the Hous. Choices Voucher Prog. Fact Sheet, 6 (2003). Of course,

sisters and cousins are not included in the Fact Sheet examples, but Defendants could not

plausibly argue that they could not serve as live-in aides when nephews and adult children can.

See, e.g., Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 976 (D.C. Cir. 2016) (noting that a sister

served as a live-in aide). Regardless of the specific examples given in the Handbook or the Fact

Sheet, the text of the regulatory definition does not exclude spouses (or adult children, nephews,

nieces, cousins, sisters, and so forth). Further, if the PIH Notice intended to exclude persons, as

11 The issue of whether a live-in aide would otherwise be living in the apartment is one

that HUD faces often. “The issue of relatives or family members as live-in aides is one of the

most complicated for PHAs to address. Although relatives are not automatically excluded as

eligible live-in aides, they must meet the definition stated earlier. It is fairly clear that a

pre-existing household member does not qualify as a live-in aide. It is more complicated when a

child moves into a unit to assist an ailing parent or vice versa or when a live-in aide becomes a

boyfriend of girlfriend after moving into the unit.” Lisa Sloan, Live-in Aides and the Hous.

Choices Voucher Prog. Fact Sheet, 5-6 (2003).

FHEO contends, then it would also exclude a nephew or adult child acting as a live-in aide

because an adult child and nephew would be “a member of the assisted family.” FHEO’s

interpretation of the PIH Notice cannot plausibly be that the PIH Notice excludes spouses (which

it does not mention) but does not exclude other family members (which it expressly mentions).

Thus, the FHEO’s interpretation is clearly erroneous and conflicts with the governing

regulations.

The FHEO’s interpretation that spouses cannot qualify as a live-in aide is plainly

erroneous.12 It also conflicts with the regulatory definition of live-in aide codified in 24 C.F.R.

§ 5.403, the HUD guidance in the HUD Handbook, case law discussing family members serving

as live-in aides, and the legislative history of the definition of a live-in aide. Thus, the Court does

not give the FHEO’s interpretation deference.

D. Whether Plaintiff’s Request was Unreasonable

It is undisputed that Plaintiff has a disability, that Defendants knew about that disability,

and Defendants denied the request for the accommodation. It is similarly undisputed that

Defendants must comply with the FHA. The only issue for the Court to resolve is whether there

is a genuine dispute of material fact regarding whether Plaintiff’s requested accommodation was

unreasonable. Defendants argue that because Mrs. Johnson does not qualify as a live-in aide,

Plaintiff’s request was unreasonable.

12 Kory Thompson, HUD Lead Compliance Specialist for Defendant Guardian

Management, appears to agree with the Court. He stated in his declaration, “A spouse is almost

always excluded from the definition of ‘live-in aide’ because a spouse lives in the unit for

reasons other than to provide supportive services.” ECF 35 ¶ 8 (emphasis added). Thus,

Mr. Thompson appears to recognize that there may be circumstances in which a spouse lives in

the unit to provide supportive services and thus could meet the definition of a live-in aide.

Plaintiff bears the burden of showing that a requested accommodation “seems reasonable

on its face.” Giebeler v. M & B Assocs., 343 F.3d 1143, 1156 (9th Cir. 2003). If Plaintiff meets

this initial burden, Defendants may rebut the presumption of reasonableness and necessity by

showing that “the accommodation would cause undue hardship in the particular circumstances.”

Kuhn v. McNary Estates Homeowners Ass’n., Inc., 228 F. Supp. 3d 1142, 1147 (D. Or. 2017).

Defendants are only obligated to provide an accommodation if it is both necessary and

reasonable. Giebeler, 343 F.3d at 1148. “[A]n accommodation is reasonable under the FHAA

when it imposes no fundamental alteration in the nature of the program or undue financial or

administrative burdens.” Id, at 1157 (quotation marks omitted).

Under the FHA, “[t]he reasonable accommodation inquiry is highly fact-specific,

requiring case-by-case determination.” United States v. Cal. Mobile Home Park Mgmt. Co., 29

F.3d 1413, 1418 (9th Cir. 1994). The Act “imposes an affirmative duty upon landlords

reasonably to accommodate the needs of handicapped persons.” Id. This duty applies “not only

with regard to the physical accommodations, but also with regard to the administrative policies

governing rentals.” Giebeler, 343 F.3d at 1146-47 (citation omitted).

Defendants argue that Plaintiff’s accommodation request is unreasonable because

Mrs. Johnson cannot meet the definition of a live-in aide. As noted, a “live-in aide” is defined as

a person who resides with one or more elderly persons, or near-

elderly persons, or persons with disabilities, and who: (1) Is

determined to be essential to the care and well-being of the

persons; (2) Is not obligated for the support of the persons; and

(3) Would not be living in the unit except to provide the necessary

supportive services.

24 C.F.R. § 5.403.

The Court rejects Defendants’ argument that spouses categorically are excluded from

serving as live-in aides, for the reasons the Court declined to defer to the FHEO. Thus, to qualify

as a live-in aide, Mrs. Johnson must meet the three elements in 24 C.F.R. § 5.403. The parties do

not dispute the first two elements. The only dispute concerns the third element, that Mrs. Johnson

would not be living with Plaintiff except to provide the necessary supportive services.

Defendants argue that because Plaintiff alleges that in 2016, he intended to move to the

Philippines to live with his wife, then Plaintiff and Mrs. Johnson must be living together for

reasons other than simply allowing Mrs. Johnson to provide supportive services. Defendants also

argue that Plaintiff has produced no evidence showing that Mrs. Johnson moved in with Plaintiff

solely to provide supportive services to Plaintiff, and that such a claim is “contrary to the idea of

marriage.”

Plaintiff’s declaration, however, states that Mrs. Johnson would not have moved in with

Plaintiff and would not continue to reside with Plaintiff were it not for his serious health issues

that require the services of a live-in aide. Mrs. Johnson’s declaration states that the reason she

moved in with Plaintiff was to provide caregiving services and that she would not have moved in

with him if he did not need caregiving services. She unequivocally states: “The only reason I am

living in his apartment is to provide him with these supportive services.” ECF 39 ¶ 3 (emphasis

added). That Mrs. Johnson did not move to the United States for two years after marrying

Plaintiff, until his health deteriorated further, is further evidence supporting Plaintiff’s contention

that Mrs. Johnson resides with Plaintiff solely for the purposes of providing Plaintiff with

caregiving.

Viewing the evidence in the light most favorable to Plaintiff and drawing all reasonable

inferences in Plaintiff’s favor, as the Court must do at this stage of the litigation, the Court finds

there is sufficient evidence in the record to survive Defendants’ motion for summary judgment.

Plaintiff’s and Mrs. Johnson’s declarations, along with the two-year gap between the time their

marriage occurred and when Mrs. Johnson moved to Oregon are sufficient evidence to support

Plaintiff’s contention that Mrs. Johnson lives in Plaintiff’s unit exclusively to provide Plaintiff

with supportive services. Additionally, Plaintiff’s request for a live-in aide started in 2015

(before his marriage) and continued until just before Mrs. Johnson’s arrival in Oregon, as well as

after she arrived. Plaintiff’s genuine need for a live-in aide is well documented in the record, and

Mrs. Johnson’s arrival and Plaintiff’s request for Mrs. Johnson to act as his live-in aide before

her arrival in Oregon are further support that Mrs. Johnson would not be living in the unit except

to provide necessary Plaintiff with needed supportive services.

Defendants argue that they cannot approve Mrs. Johnson as a live-in aide because she is

in the United States on a marriage visa. Defendants specifically point to information provided by

Plaintiff in his Affidavit of Support for Mrs. Johnson’s application for a marriage visa as

evidence that Plaintiff and Mrs. Johnson intended to cohabitate. Defendants argue that Plaintiff’s

statement that he wanted “to have [Mrs. Johnson] approved for a marriage visa to travel between

our countries” is evidence that Plaintiff and Mrs. Johnson would spend time together beyond his

need for a live-in aide.

Before his medical issues, Plaintiff intended to move to the Philippines to live with

Mrs. Johnson. The question at issue in determining whether a relative qualifies as a live-in aide is

whether that person would not be living in the unit except to provide supportive services.

Whether Plaintiff wanted Mrs. Johnson to have a marriage visa and the ability to travel between

countries does not resolve whether Mrs. Johnson is living in the unit for reasons other than to

provide Plaintiff with needed supportive services. The Court does not make credibility

determinations at the summary judgment stage. Defendants may argue to the jury the

implications of the marriage visa or the fact that Plaintiff previously intended to live in the

Philippines. At this stage, however, Plaintiff has provided sufficient evidence to show a genuine

dispute of material fact about whether Mrs. Johnson is living with Plaintiff solely to provide

necessary supportive services.

CONCLUSION

The Court DENIES Defendants’ Renewed Motion for Summary Judgment (ECF 34).

IT IS SO ORDERED.

DATED this 26th day of April, 2021.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge