Hunter Ex Rel. A.H. v. District of Columbia

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

ANTHONY HUNTER, on his behalf

and as parent of his minor

daughter, A.H.,

Plaintiffs,

v.

THE DISTRICT OF COLUMBIA,

a municipal corporation,

THE COMMUNITY PARTNERSHIP FOR Civil Action No. 12-1960 (GK)

THE PREVENION OF HOMELESSNESS,:

COALITION FOR THE HOMELESS,

and

COMMUNITY OF HOPE,

Defendants.

MEMORANDUM OPINION

Plaintiff Anthony Hunter ("Hunter") and his minor daughter

A.H. 1 (collectively/ "the Hunters") filed this action against the

District of Columbia ("the District// or "D.C.") 1 the Community

Partnership for the Prevention of Homelessness ("the

Partnership") 1 the Coalition for the Homeless ("the Coalition") 1

and Community of Hope ( "COW1 ) (collectively 1 "Defendants//) . The

Hunters allege that Defendants violated various federal and

local anti-discrimination statutes and were negligent.

1

Pursuant to Local Civil Rule 5.4(f) (2) Hunter S daughter will

1

1

be referred to by her initials in order to protect her privacy.

This matter is presently before the Court on the District's

Motion to Dismiss Plaintiffs' First Amended Complaint [Dkt. No.

65] and COR's Motion to Dismiss Plaintiffs' First Amended

Complaint [Dkt. No. 66]. Upon consideration of the Motions,

Oppositions [Dkt. Nos. 73 and 74], Replies [Dkt. Nos. 77 and

80], the United States of America's Statement of Interest [Dkt.

No. 79], the Responses to the United States' Statement of

Interest [Dkt. Nos. 93 and 94], the entire record herein, and

for the reasons stated below, the District's Motion is granted

in part and denied in part, and Defendant COR's Motion is

granted in part and denied in part.

I . BACKGROUND

A. Factual Background2

The District, through its Department of Human Services

( "DHS") , provides social services for indi victuals and families

in the city who are homeless or at risk of homelessness. First

Amended Complaint ( "Compl. ") ~ 8. In doing so, it entered into

contracts with various service providers. Id. ~ 9.

2

For purposes of ruling on a motion to dismiss, the factual

allegations of the complaint must be presumed to be true and

liberally construed in favor of the plaintiff. Aktieselskabet AF

21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.

2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253

(D.C. Cir. 1979). Therefore, the facts set forth herein are

taken from the First Amended Complaint [Dkt. No. 59].

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One such contractor, the Partnership, has been retained to

manage and direct emergency shelter services. Id. ~~ 9-10. As

part of its duties, the Partnership runs the District-owned D.C.

General Shelter. Id. ~ 10. The Partnership contracted with the

Coalition to operate the Virginia Williams Family Resource

Center ("the Center"), which is the central intake facility for

all families seeking placements in shelters. Id. ~ 12. The

Partnership has also contracted with COH to manage the day-to-

day operations at the District-owned Girard Street Apartments.

Id. ~~ 8, 11.

At the time of the events relevant to this case, Plaintiff

Hunter lived with his six-year old daughter, A.H. Id. ~~ 7, 36.

She was born with and continues to suffer from spina bifida and

cri-du-chat syndrorne. 3 Id. ~~ 7, 35. As a result, she uses a

wheelchair and cannot engage in "self -care, such as bathing,

dressing and eating." Id. Her medical conditions leave her

3

Cri-du-chat syndrome is a chromosomal condition "characterized

by intellectual disability and delayed development, small head

size low birth weight, and weak muscle tone in

infancy." Cri-du-chat syndrome, Genetics Horne Reference,

http://ghr.nlrn.nih.gov/condition/cri-du-chat-syndrorne (last

visited June 30, 2014). Spina bifida is a "condition in which

the bones of the spinal column do not close completely around

the developing nerves of the spinal cord." Spina bifida,

Genetics Horne Reference, http://ghr.nlrn.nih.gov/condition/spina-

bifida (last visited June 30, 2014). It can result in "a loss of

feeling below the level of the opening, weakness or paralysis of

the feet or legs, and problems with bladder and bowel control."

Id.

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particularly susceptible to infections, and doctors have

recommended she live in an environment that minimizes exposure

to infections and other communicable diseases. Id.

On December 7 I 2011, the Hunters faced immediate

homelessness and applied for placement in a homeless shelter in

the District. Id. ~ 37. While at the Center discussing

placement, Hunter told the staff that A.H. had mobility

impairments and that the Hunters needed a non-communal

environment with a private bathroom that was wheelchair

accessible. Id. ~~ 3 7, 3 9. The Center staff failed to include

the request for a non-communal environment with a private

bathroom and included only the request for a wheelchair

accessible unit when writing up the Hunters' reasonable

accommodation request. Id. ~ 39.

The Hunters were placed in uBuilding 12" of the D.C.

General Shelter. Id. ~ 41. Although the room was private, the

ramp into the building was too steep to be wheelchair

accessible. Id. ~~ 43, 46. The Hunters had to share a bathroom

with several other families and the staff refused to let the

Hunters eat in a separate room. Id. ~~ 47-48, 50. While residing

in this shelter, A.H. developed a urinary tract infection

resulting in the need for treatment at Children's Hospital. Id.

~ 54. Asserting that the placement did not meet A. H.'s needs,

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Hunter repeatedly asked that he and A.H. be relocated to an

accessible unit. Id. ~~ 51, 53.

On or about December 29, 2011, the Hunters were moved to

the Girard Street Apartments, where they were given a private

apartment. Id. ~~ 56, 66. The Hunters were told that the only

available unit at the Girard Street Apartments was on the third

floor and that they would not receive an accessible unit. Id.

~~ 69, 71. There was no elevator, so Hunter had to carry A.H.

and her wheelchair up and down two flights of stairs to arrive

at or leave the apartment. Id. ~ 74. Finally, the hallways in

the unit were too narrow to accommodate A.B.'s wheelchair. Id.

~ 75.

There was at least one accessible first floor unit at the

Girard Street Apartments that was occupied by a family that did

not need the accessible features. Id. ~ 78. Hunter was told by

the program director that she could not require that family to

move and that the Hunters would need to stay in the third floor

unit. Id. On February 10, 2012, after the intervention of the

Hunters' attorney, the Hunters were moved to a first floor unit.

Id. ~ 86. Because the wheelchair lift was broken, Hunter still

had to lift the wheelchair up three steps to get to this

apartment. Id. ~~ 73, 86. As a result of the need to lift and

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carry A.B.'s wheelchair, Hunter experienced back and chest pain.

Id. ~ 77.

On March 12, 2012, the Hunters moved out of the Girard

Street Apartments and into a supportive housing program. Id.

~ 88.

B. Procedural History

On December 6, 2012, the Hunters filed their Complaint

[Dkt. No. 1], and on April 29, 2013, they filed a Motion for

Leave to File an Amended Complaint [Dkt. No. 54] On May 17,

2013, the Motion was granted via Minute Order.

On June 3, 2 013, the District filed a Motion to Dismiss

("Mot.") [Dkt. No. 65]. On June 7, 2013, COH filed a Motion to

Dismiss ("COH Mot.") [Dkt. No. 66]. On July 3, 2013, the Hunters

filed their Opposition to the District's Motion ( "Opp' n") and

COR's Motion ("COH Opp'n") [Dkt. Nos. 73, 74]. On July 24, 2013,

COH filed its Reply ( "COH Reply") [Dkt. No. 77] , and an Answer

with regard to the two negligence claims [Dkt. No. 78]. On July

26, 2013, the District filed its Reply ("Reply") [Dkt. No. 81].

On July 2 6, 2 013, the U.S. Department of Justice ( "DoJ")

filed a Statement of Interest related to and opposing the

4

District's Motion to Dismiss [Dkt. No. 79] On October 29, 2013,

4

Pursuant to 28 U.S.C. § 517, "[t]he Solicitor General, or any

officer of the Department of Justice, may be sent by the

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the District and COH both filed Responses to the Statement of

Interest [Dkt. Nos. 93, 94].

II. STANDARD OF REVIEW

Under Rule 12 (b) (6), a plaintiff need only plead "enough

facts to state a claim to relief that is plausible on its face"

and to "nudge[] [his or her] claims across the line from

conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007). "[A] complaint [does not] suffice if it tenders

naked assertions devoid of further factual enhancement."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations

omitted) (citing Twombly, 550 u.s. at 557). Instead, the

complaint must plead facts that are more than "merely consistent

with" a defendant's liability; "the pleaded factual content

[must] allow[] the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged." Id. at 678

(citing Twombly, 550 U.S. at 556).

" [O] nee a claim has been stated adequately, it may be

supported by showing any set of facts consistent with the

allegations in the complaint." Twombly, 550 U.S. at 563. Under

the standard set forth in Twombly, a "court deciding a motion to

Attorney General to any State or district in the United States

to attend to the interests of the United States in a suit

pending in a court of the United States, or in a court of a

State, or to attend to any other interest of the United States."

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dismiss must assume all the allegations in the complaint

are true (even if doubtful in fact) [and] must give the

plaintiff the benefit of all reasonable inferences derived from

the facts alleged." Aktieselskabet AF 21., 525 F.3d at 17

(internal quotations and citations omitted); see also Tooley v.

Napolitano, 586 F.3d 1006, 1007 (D.C. Cir. 2009) (declining to

reject or address the government's argument that Iqbal

invalidated Aktieselskabet) .

III. ANALYSIS

The District and COH raise several similar arguments.

Consequently, the Court will address together the issues raised

by both parties to each Count of the Complaint. 5

A. Counts I and III: Plaintiffs Have Sufficiently Alleged

Claims Under Title II of the Americans with

Disabilities Act and Section 504 of the Rehabilitation

Act

Count I of the Amended Complaint alleges that Defendants

violated Title II of the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12131 et seq, which provides that "no

qualified individual with a disability shall, by reason of such

5

COH originally argued that Plaintiffs' claims against it were

barred by the doctrine of release. COR Mot. at 19-21. Plaintiffs

then filed an Addendum to their Settlement Agreement with the

Partnership, clarifying that the document did not apply to or

settle any claims with any other organizations. Dkt. No. 69-2.

The Court approved this addendum in a Minute Order on June 17,

2013, and COH correspondingly withdrew this argument. COH Reply

at 2 n.l.

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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 any such entity."

42 u.s.c. § 12132.

Count III of the Amended Complaint alleges that Defendants

violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 701

et seq. Similar to Title II, Section 504 prohibits programs and

activities receiving federal funds from discriminating on the

basis of disability. 29 U.S.C. § 794 (a) ("No otherwise qualified

individual with a disability 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 under

any program or activity receiving Federal financial assistance .

. "); see also Young v. D.C. Hous. Auth., No. 13-652, 2014 WL

948317, at *5 (D.D.C. Mar. 12, 2014).

The focus of the Rehabilitation Act is narrower than the

ADA because it only applies to programs receiving federal

financial assistance. Powell v. Nat'l Bd. of Med. Examiners/ 364

F.3d 79, 85, opinion corrected 1 511 F.3d 238 (2d Cir. 2004).

Because Plaintiffs allege that the District receives federal

funds 1 Compl. ~~ 8-9, the Rehabilitation Act claims and the

Title II claims against the District may be considered together.

Mot. at 5-6, 6 n.4; Opp 1 n at 4; see also Am. Council of the

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Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008)

(noting that the statutory provisions are so similar in

substance that "cases interpreting either are applicable and

interchangeable" (citation omitted)); Harrison v. Rubin, 174

F.3d 249, 253 (D.C. Cir. 1999) ("Claims and defenses under the

[ADA and the Rehabilitation Act] are virtually identical.").

COH argues that the ADA and the Rehabilitation Act do not

apply to it, for various reasons. The Court will first address

the substantive arguments raised by the District and then will

resolve applicability of these statutes to COH.

1. Plaintiffs Are Not Required to Prove Intentional

Discrimination to Plead a Claim for Declarative

Relief

To establish a prima facie case under either Title II or

the Rehabilitation Act, a plaintiff must allege that (1) she is

a qualified individual with a disability; (2) the defendant is

subject to the Acts; and (3) she was denied the opportunity to

participate in or benefit from the defendant's services,

programs, or activities, or was otherwise discriminated against

by the defendant because of her disability. 42 U.S.C. § 12131;

29 U.S.C. § 794 (a); see also McElwee v. Cnty. of Orange, 700

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F.3d 635, 640 (2d Cir. 2012) (citing Henrietta D. v. Bloomberg,

331 F.3d 261, 272 (2d Cir. 2003)). 6

Although a plaintiff "need not plead a prima facie case of

discrimination" in order to survive a motion to dismiss,

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002), the

District does not dispute that Plaintiffs have sufficiently

alleged a prima facie case under the Acts. 7 Instead, the

6

Title II defines "discriminate" to include a failure to make

"reasonable modifications." See 42 U.S.C. §§ 12131(2), 12132;

see also 28 C.F.R. § 35.130 (b) (7) ("A public entity shall make

reasonable modifications in policies, practices, or procedures

when the modifications are necessary to avoid discrimination on

the basis of disability, unless the public entity can

demonstrate that making the modifications would fundamentally

alter the nature of the service, program, or activity."); see

also McElwee, 700 F.3d at 640-41 (2d Cir. 2012) (noting that

"[u]nder both statutes, a defendant discriminates when it fails

to make a reasonable accommodation that would permit a qualified

individual to have access to and take a meaningful part in

public services") (internal quotation marks and citation

omitted)

The parties use the term "reasonable accommodations" to refer to

these requests. This Court will also use "reasonable

accommodations" to encompass "reasonable modifications" under

Title II. See McGary v. City of Portland, 386 F.3d 1259, 1266

n.3 (9th Cir. 2004) (citation omitted) ("Although Title II of

the ADA uses the term 'reasonable modification,' rather than

'reasonable accommodation,' these terms create identical

standards.").

7

In its Response to the United States' Statement of Interest,

the District argues for the first time that Plaintiffs failed to

sufficiently plead that the District discriminated against A.H.

"because of" her disability. Def. Dist. of Columbia's Resp. to

Statement of Interest of the United States of America

("Response") at 9-10. As the District failed to raise this

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District's primary argument is that Plaintiffs have failed to

allege facts to support a claim that the District acted with the

required intent. Mot. at 5-8.

As the District admits in its Response, the issue of

intentional discrimination is only relevant to the issue of

compensatory damages. Response at 9 n. 5; Liese v. Indian River

Cnty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012) (observing

that failure to provide reasonable accommodation "by itself will

not sustain a claim for compensatory damages; the [plaintiffs]

must also show by a preponderance that the [defendant] 's failure

to provide appropriate [reasonable accommodations] was the

result of intentional discrimination"); Meagley v. City of

Little Rock, 639 F.3d 384, 388 (8th Cir. 2011) (noting that

every Court of Appeals to address the issue has held that a

plaintiff may not recover compensatory damages under the ADA or

the Rehabilitation Act without proof of discriminatory intent) .

Therefore, Plaintiffs do not have to allege discriminatory

intent in order to be entitled to the declaratory relief they

request. Compl. at 38 (praying for declaratory relief); Am.

argument in either its Motion or its Reply, it has waived it.

See Alston v. Dist. of Columbia, 561 F. Supp. 2d 29, 37 (D.D.C.

2008); cf. Williams v. Romarm, SA, No. 13-7022, 2014 WL 2933222,

at *3 (D.C. Cir. July 1, 2014) ("Questions not presented and

argued by the parties in a sequence affording appropriate

consideration are forfeited, and we accordingly decline to rule

on the issue since it was not properly raised.").

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Council, 525 F. 3d at 1260 (noting that "section 504 does not

require proof of discriminatory intent 11

) (discussing Alexander

v. Choate, 469 U.S. 287, 295 (1985)); Powers v. MJB Acquisition

Corp., 184 F.3d 1147, 1152 (lOth Cir. 1999) ("[I]ntentional

discrimination is not an element of the plaintiff 1 s prima facie

case. 11

) • Consequently, Plaintiffs have sufficiently alleged

violations under both Title II of the ADA and the Rehabilitation

Act for declarative relief.

2. Plaintiffs Have Sufficiently Alleged Deliberate

Indifference By the District of Columbia

The District argues that Plaintiffs have failed to

sufficiently allege that it acted with deliberate indifference,

and, hence, that Plaintiffs, request for compensatory damages

under the ADA and the Rehabilitation Act must be dismissed. 8

8

In a footnote, the District argues that it does not "concede 11

that "deliberate indifference is the appropriate standard and

11

suggests that Plaintiffs must plead "intentional

discrimination. Mot. at 5 n. 3. Our Court of Appeals has not

11

addressed the appropriate standard, but almost all other Courts

of Appeal to reach the issue have concluded that the "deliberate

indifference standard is appropriate. See Liese, 701 F. 3d at

11

345-47 (noting that Eighth, Ninth, Tenth, and Second Circuit

have held that deliberate indifference standard applies, and

choosing to apply that standard); but see Delano-Pyle v.

Victoria Cnty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (finding

that "[t]here is no 'deliberate indifference, standard

applicable to public entities for purposes of the ADA or the 11

Rehabilitation Act). However, since the District does not

provide support for its argument that a higher standard should

apply, the Court will assume without deciding that the

deliberate indifference standard applies.

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Deliberate indifference occurs when a "defendant knew that

harm to a federally protected right was substantially likely and

. failed to act on that likelihood." Liese, 701 F.3d at 344

(quoting T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty.,

Fla., 610 F.3d 588, 604 (11th Cir. 2010)); Meagley, 639 F.3d at

389 (noting that deliberate indifference can be "inferred from a

defendant's deliberate indifference to the strong likelihood

that pursuit of its questioned policies will likely result in a

violation of federally protected rights") (quoting Barber ex

rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228-29

(lOth Cir. 2009)). 9

Plaintiffs present two different theories under which the

District can be found to have acted with deliberate

indifference. First, Plaintiffs allege the District acted with

deliberate indifference by failing to enforce its own

obligations under the ADA. Second, Plaintiffs allege the

District is responsible for the deliberate indifference of its

contractors. The Court will address each theory in turn.

9

The District argues that Plaintiffs have to allege and prove

"actual knowledge" of a violation to establish deliberate

indifference. Mot. at 6-8; Reply at 2-5. However, the case it

cites for that proposition, Liese, clearly states that the

standard only requires an allegation that a defendant have

knowledge that harm to a right is "substantially likely," not

that it have actual knowledge of a violation. Liese, 701 F.3d at

344.

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a. Direct Liability

First, Plaintiffs allege that the District was deliberately

indifferent to its affirmative obligation under the ADA to

ensure that its contractors not discriminate in the provision of

public services on the basis of disability. The District argues

that it does not have any affirmative obligation to monitor the

actions of the contractors.

Regulations promulgated by the DoJ make clear that public

entities cannot escape liability by contracting away the

provision of services to a private entity. 28 C.F.R.

§ 35.130 (b) (1) ("A public entity, in providing any aid, benefit,

or service, may not, directly or through contractual, licensing,

or other arrangements, on the basis of disability II

discriminate against an individual with a disability); id. pt.

35 , App ' x A, at 51 7 (2 0 02 ) ("All governmental activities of

public entities are covered, even if they are carried out by

contractors. For example, a State is obligated by title II to

ensure that the services, programs, and activities of a State

park inn operated under contract by a private entity are in

compliance with title II's requirements.")

Unless the DoJ regulations are "arbitrary, capricious, or

manifestly contrary to the statute," they should be given

"controlling weight." Chevron U.S.A., Inc. v. Natural Res. Def.

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Council, Inc., 467 U.S. 837, 844 (1984); see also City of

Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013) ("Statutory

ambiguities will be resolved, within the bounds of reasonable

interpretation, not by the courts but by the administering

agency."). The District does not argue that the regulations are

arbitrary or capricious. Indeed, all of the courts that have

addressed the regulations have concluded that they are entitled

to deference. See, e.g., Kerr v. Heather Gardens Ass'n, No. 09-

00409, 2010 WL 3791484, at *9 (D. Colo. Sept. 22, 2010) ("[T]he

regulations directing that a public entity is liable under Title

II for direct conduct as well as indirect conduct, achieved

through contracting, licensing, or the like, is not arbitrary,

capricious, or manifestly contrary to the statute. Therefore,

the regulations are entitled to controlling weight.") (citing

Chevron, 467 U.S. at 844); Armstrong v. Schwarzenegger, 622 F.3d

1058, 1065-67 (9th Cir. 2010) (analyzing statute and legislative

history and holding that regulations "reflect the fairest

reading of the statute").

Instead, the District argues that the statute and the

regulations are satisfied so long as the public entity merely

requires its contractors to comply with the statute. Mot. at 6-

7. Its only citation to support this argument is language

contained in an illustration in the DoJ' s Title II Technical

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Assistance Manual stating that a State parks department would be

"obligated to ensure by contract" that a privately owned

restaurant in a State park "operated in a manner that enables

the parks department to meet its title II obligations." Id. at 6

(citing United States Dep' t of Justice, Civil Rights Div., The

Americans With Disabilities Act: Title II Technical Assistance

Manual ("TAM") § II-1.3000, illus. 1).

However, other illustrations in the TAM demonstrate that

the ADA obligations of a public entity go beyond simply

including particular language in its contracts with private

contractors: Illustration 4 states that a public entity "must

ensure that its contracts are carried out in accordance with

title II." TAM § II-1. 3000, ill us. 4 (emphasis added). As the

District Court for the District of Colorado observed, these

examples "support a conclusion that a public entity cannot

escape its obligations under Title II by delegating its duties

to a private entity. Indeed, in each illustration the public

entity remains subject to Title II despite its delegation of

authority or duty to another, private entity." Kerr, 2010 WL

3791484, at *10.

A number of courts have confirmed that public entities have

an obligation to ensure that their private contractors comply

with title II of the ADA. Henrietta D., 331 F.3d at 284-86

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(holding that general rules of contract apply and supervisory

liability exists under Rehabilitation Act); Hahn ex rel. Barta

v. Linn Cnty., Iowa, 191 F. Supp. 2d 1051, 1054 n.2 (N.D. Iowa

2002) (noting that its earlier opinion had concluded that "a

contractual relationship between a public and a private entity

may obligate the public entity to ensure that the private

entities with which it contracts comply with the public entity's

Title II obligations,,); James v. Peter Pan Transit Mgmt., Inc.,

No . 9 7 - 7 4 7 , 19 9 9 WL 7 3 51 7 3 , at * 9 ( E . D . N . C . Jan . 2 0 , 19 9 9 ) ( "A

public entity must not only ensure by contract that the private

entity with whom it contracts complies with title II, but

further, must ensure that the private entity complies with the

contract.,,); Deck v. City of Toledo, 56 F. Supp. 2d 886, 895

(N.D. Ohio 1999) (noting that public entity can be held liable

for failing to oversee its contractors, even if it did not

affirmatively intend to discriminate) .

In sum, the District has not presented any support for its

argument that it has no obligation to ensure that its private

contractors comply with its ADA and Rehabilitation Act

obligations, and all courts to address the issue have found that

they have such an obligation. Thus, the Court holds that

Plaintiffs may proceed on a theory that the District is directly

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liable for its deliberate indifference to its obligations under

the ADA and the Rehabilitation Act.

b. Vicarious Liability

Plaintiffs also argue that the District can be held

vicariously liable for the deliberate indifference of its

contractors. The District concedes that a public entity can be

held liable under the ADA for the deliberate indifference of its

employees or agents. Mot. at 6 n.5. It argues, however, that the

other Defendants in this case are independent contractors for

whose actions it cannot be held liable. Id.

As a "general rule, 11

an entity is not held vicariously

liable for actions taken by an independent contractor.

Interstate Fire & Cas. Co. v. Wash. Hosp. Ctr. Corp., No. 13-

7024, 2014 WL 3538081, at *6 (D.C. Cir. July 18, 2014) (citing

W.M. Schlosser Co. v. Md. Drywall Co., 673 A.2d 647, 651 (D.C.

1996)). "In determining whether a person is an employee or an

independent contractor, District of Columbia courts consider

multiple specified factors. 11

Id. ( citations omit ted) . However,

the "decisive test is whether the employer has the right to

control and direct the servant in the performance of his work

and the manner in which the work is to be done. 11

Id. (internal

quotations and citation omitted) .

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Plaintiffs allege that the District not only had the right,

but the obligation, to control and ensure its contractors'

compliance with the ADA and the Rehabilitation Act. Compl. ~~ 8,

10, 59, 96, 100. Plaintiffs then point out that the District's

argument that its contractors are independent is based on

factual disputes that are not and cannot be appropriately

resolved in a motion to dismiss. Beegle v. Rest. Mgmt. , Inc. ,

679 A.2d 480, 485-86 (D.C. 1996) (relying on information from

discovery to determine the nature of the employment relationship

between an individual and a company) i Anderson v. Wash. Metro.

Area Transit Auth., No. 91-646, 1991 WL 197024, at *2 (D.D.C.

1991) ("[W]hether or not the subcontractors were in fact

independent contractors cannot be determined on a motion to

dismiss.") . 10 Although the District may again raise the issue of

its relationship to its contractors after discovery, Plaintiffs

have sufficiently pleaded facts that, in conjunction with "the

benefit of all reasonable inferences" Aktieselskabet AF 21., 525

10

Moreover, even if the contractors are found to be independent,

the District may still be held vicariously liable under various

exceptions to the independent contractor rule. See Cooper v.

U.S. Gov't & Gen. Servs. Admin., 225 F. Supp. 2d 1, 5 (D.D.C.

2002) (noting that the rule is "riddled with exceptions

specifying certain conditions under which employers may be held

vicariously liable," including an exception for "non-delegable

duties arising out of some relation toward the public")

(citing Restatement (Second) of Agency, § 219 (1958)).

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F.3d at 17, allow them to proceed on their theory of vicarious

liability at this time.

3. The District's Remaining Arguments Lack Merit

The Court will briefly address the remaining arguments

raised by the District.

First, the District argues that various allegations in the

Complaint are inconsistent. Mot. at 8-9. The Federal Rules

expressly permit parties to plead in the alternative. Fed. R.

Civ. P. 8 (d) (2) ("A party may set out 2 or more statements of a

claim or defense alternatively or hypothetically, either in a

single count or defense or in separate ones. If a party makes

alternative statements, the pleading is sufficient if any one of

them is sufficient."). Moreover, the Rules specifically permit a

party to "state as many separate claims or defenses as it has,

regardless of consistency." Fed. R. Ci v. P 8 (d) (3) . Therefore,

any inconsistency in Plaintiffs' allegations is not a basis to

dismiss their claims.

Second, the District argues that various "sub-counts" of

the Complaint are not pleaded with specificity. Mot. at 9-11.

This argument, too, misunderstands the relevant requirements.

Plaintiffs need merely include a "short and plain statement of

the claim," Fed. R. Ci v. P. 8 (a) (2) , sufficient to put a

defendant on notice of the claims against it. Kingman Park Civic

-21-

Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (" [T]he

complaint need only set forth a short and plain statement of the

claim giving the defendant fair notice of the claim and the

grounds upon which it rests.") (internal quotations and

citations omitted) .

Plaintiffs submitted a detailed Complaint, and each claim

specifically incorporates all of the facts alleged. Compl.

~~ 97, 104, 111, 119, 130, 143, 149. Moreover, rather than lack

specificity, the "sub-counts" identify the various theories

Plaintiffs intend to pursue as to each claim. Id. ~~ 101, 108,

116, 122-124, 140. Thus, Plaintiffs have provided more notice

and information than is required by the Rules, and this is not a

basis to dismiss these claims.

In sum, none of the District's remaining arguments support

a dismissal of Plaintiffs' claims.

4. Plaintiffs Have Sufficiently Alleged That COH Is

a "Public Entity"

COH argues that it is not subject to the ADA because it is

not a "public entity." COH Mot. at 5-8. 42 U.S.C. § 12131

defines a "public entity" as "any State or local government,"

and "any department, agency, special purpose district, or other

instrumentality of a State or States or local government." 42

-22-

u.s.c. § 12131 (1) (A) I (B) . The term "State" includes the

District of Columbia. Id. § 12103(2).

The TAM notes that, "[i]n some cases, it is difficult to

determine whether a particular entity that is providing a public

service . is in fact a public entity." TAM § II.l.2000. It

then lists four factors to be considered in examining "the

relationship between the entity and the governmental unit to

determine whether the entity is public or private":

1) Whether the entity is operated with public funds;

2) Whether the entity's employees are considered

government employees;

3) Whether the entity receives significant assistance

from the government by provision of property or

equipment; and

4) Whether the entity is governed by an independent

board selected by members of a private organization

or a board elected by the voters or appointed by

elected officials.

Id.

It is undisputed that Plaintiffs have alleged that COH is

"operated with public funds," and that COH "receives significant

assistance from the government by provision of property." See

Compl. ~ 11. COH argues that this is insufficient because

Plaintiffs have failed to allege that COH "employs government

employees or is governed by a board elected by voters or

appointed by elected officials." COH Mot. at 8.

-23-

The TAM does not state that all four factors must be

satisfied for an entity to be considered "public." Rather, it

notes that all four are "[f]actors to be considered. TAM

§ II.1.2000. Thus, COR's insistence that Plaintiffs' claim must

fail because they have not alleged all four of these factors

lacks merit.

COH cites a number of cases that concluded -- on motions

for summary judgment on a full factual record that a

particular entity is private. See COH Mot. at 6-7 (citing Edison

v. Douberly, 604 F.3d 1307, 1311 (11th Cir. 2010); Green v. City

of New York, 465 F.3d 75, 79 (2d Cir. 2006); Maxwell v. S. Bend

Work Release Ctr., 787 F. Supp. 2d 819, 822 (N.D. Ind. 2011);

Obert v. The Pyramid, 2005 WL 1009567 (W.D. Tenn. 2005); Doe v.

Adkins, 110 Ohio App. 3d 427, 434-35 (1996)).

COH argues that the analysis relied on in these cases

should be applied here. Given that there is no full factual

record in this case and that Plaintiffs have alleged sufficient

facts that, in combination with "all reasonable inferences" in

Plaintiffs' favor, support their claim that COH is a public

entity providing a public service, the Court will not dismiss

the ADA claim against COH at this time. See Aktieselskabet AF

21., 525 F.3d at 17 (internal quotations and citations omitted).

-24-

5. Plaintiffs Have Sufficiently Alleged that COH Is

a Recipient of "Federal Financial Assistance"

COH also argues that it is not subject to the

Rehabilitation Act because it does not receive "federal

financial assistance." COH Mot. at 13-15. Relying on cases from

other Circuits, COH argues that "purely compensatory payments"

do not constitute federal financial assistance, but "payments

that include a subsidy" do constitute such assistance. COH Mot.

at 13-14 (citing Jacobson v. Delta Airlines, Inc., 742 F.2d

1202, 1209 (9th Cir. 1984), and DeVargas v. Mason & Hanger-Silas

Mason Co., Inc., 911 F.2d 1377, 1382 (lOth Cir. 1990)).

Those cases held that courts should look to whether the

federal entity providing the alleged assistance intended "to

provide assistance or merely to compensate." Jacobson, 742 F. 2d

at 1210; DeVargas, 911 F.2d at 1382-83; see also Shepherd v.

U.S. Olympic Comm., 94 F. Supp. 2d 1136, 1146 (D. Colo. 2000)

(noting that "[t]he test to determine whether a government

transfer of money to an entity is a subsidy is whether Congress

or the federal agency administering the program intended to

subsidize the entity.")

Plaintiffs allege that COH "receives federal and District

funds for homeless programs, health programs and other programs

and services." Compl. ~ 11. In addition, they allege that COH

-25-

"has received substantial recent federal grants from [the

Departments of Health and Human Services] and [Housing and Urban

Development]." Compl. ~ 11. Health and Human Services ("HHS")

has promulgated a regulation specifically noting that grants of

funds are federal financial assistance. 42 C.F.R. § 84.3 (h) (1).

For purposes of this motion to dismiss, these allegations, in

conjunction with the HHS regulation, are sufficient to support

Plaintiffs' claim that COH receives federal financial

assistance. See Shepherd, 94 F. Supp. 2d at 1146-47 (denying

defendant's argument that claim should be dismissed as a matter

of law where plaintiff alleged defendant received federal grant,

based on "the broad definition of "financial assistance" in

Jacobson, cited with approval by the Tenth Circuit in DeVargas,"

and concluding that plaintiff "should be allowed the benefit of

discovery").

Therefore, the Court will not dismiss the Rehabilitation

Act claims against COH at this time.

6. Summary

Plaintiffs have sufficiently pleaded claims under both the

ADA and the Rehabilitation Act for both declarative relief and

compensatory damages.

-26-

B. Count II: Plaintiffs Have Sufficiently Alleged a Claim

Under the Fair Housing Act

In 1968, Congress passed the Fair Housing Act ("FHA") as

Title VIII of the Civil Rights Act. Pub. L. 90-284, Title VIII,

§ 804, 82 Stat. 83 (1968), codified at 42 U.S.C. § 3601 et seq.

As originally enacted, the FHA prohibited discrimination based

on race, color, religion, or national origin. Id.; see also City

of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1 (1995).

The Supreme Court has emphasized that the language of the FHA is

"broad and inclusive," and must be given a "generous

construction." Trafficante v. Metro. Life Ins. Co., 409 U.S.

205, 209, 212 (1972); see also Samaritan Inns, Inc. v. Dist. of

Columbia, 114 F.3d 1227, 1234 (D.C. Cir. 1997).

In 1988, Congress amended the FHA to extend coverage to

individuals with disabilities. See The Fair Housing Amendments

Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619. The Act's

definition of discrimination was expanded to include "a refusal

to make reasonable accommodations in rules, policies, practices,

or services, when such accommodations may be necessary to afford

[handicapped persons] equal opportunity to use and enjoy a

dwelling." 42 U.S.C. § 3604 (f) (3) (B).

As a preliminary matter, Plaintiffs make clear that their

FHA claim is a "failure to accommodate" claim. Compl. ~ 108 (c)

-27-

(citing 42 U.S.C. § 3604 (f) (3) (B)); Opp'n at 26. Such "failure

to accommodate" claims do not require proof of intentional

discrimination. See Cinnamon Hills Youth Crisis Ctr. , Inc. v.

St. George City, 685 F.3d 917, 922-23 (lOth Cir. 2012) ("A claim

for reasonable accommodation does not require the

plaintiff to prove that the challenged policy intended to

discriminate . ") . The District argues to the contrary

relying solely on 2922 Sherman Ave. Tenants' Ass'n v. Dist. of

Columbia, 444 F.3d 673 (D.C. Cir. 2006) which does not even

address any failure to accommodate claims. Thus, the District's

argument that Plaintiffs' FHA claims fail for failure to allege

intentional discrimination lacks any merit and no case law

supports it. See Mot. at 15-16.

Moreover, the District is incorrect that Plaintiffs'

characterization of their FHA claims as "failure to accommodate"

claims constitutes an abandonment of any other claims. Reply at

11. A failure to accommodate is a form of discrimination under

3604 (f) (3) i sections (f) (1) and (f) (2) set out different

conditions under which such discrimination is unlawful. 42

u.s.c. § 3604 (f) . Plaintiffs are pursuing "failure to

accommodate" claims under both subsections (f) (1) and (f) (2).

The Court will now turn to the substantive arguments raised

by the District and COH.

-28-

1. "Dwelling"

The District and COH argue that neither DC General nor the

Girard Street Apartments is a "dwelling" under the FHA. The FHA

defines a "dwelling" in relevant part as "any building,

structure, or portion thereof which is occupied as, or designed

or intended for occupancy as, a residence by one or more

families." 42 U.S.C. § 3602(b).

The FHA does not, however, define "residence." Most courts

that have considered the scope of the term have relied on the

definition used in United States v. Hughes Memorial Home, 396 F.

Supp. 544 (W. D. Va. 197 5) , which is "a temporary or permanent

dwelling place, abode or habitation to which one intends to

return as distinguished from the place of temporary sojourn or

transient visit." Id. at 549 (citing Webster's Third New

International Dictionary); see Defiore v. City Rescue Mission of

New Castle, No. 12-1590, 2013 WL 7157990, at *3 (W.D. Pa. Dec.

12, 2013); Jenkins v. New York City Dep't of Homeless Servs.,

643 F. Supp. 2d 507, 517-18 (S.D.N.Y. 2009) (noting that courts

"have continued to look to the Hughes 'plain meaning' analysis

in determining what constitutes a dwelling under the FHA") aff'd

on other grounds, 391 F. App'x 81 (2d Cir. 2010); Woods v.

Foster, 884 F. Supp. 1169, 1173 (N.D. Ill. 1995) (listing cases

citing Hughes).

-29-

Applying the definition used in Hughes, several courts have

concluded that temporary homeless shelters are "dwellings" under

the FHA. Defiore, 2013 WL 7157990, at *3-*4; Boykin v. Gray, 895

F. Supp. 2d 199, 207 (D.D.C. 2012); Jenkins, 643 F. Supp. 2d at

517-18; Woods, 884 F. Supp. at 1173-74. Other courts have noted

without deciding that it is likely that at least some temporary

shelters are "dwellings." Cmty. House, Inc. v. City of Boise,

490 F.3d 1041, 1044 n.2 (9th Cir. 2007) (en bane).

The District and COH argue that this Court should instead

rely on two cases that concluded that temporary homeless

shelters were not "dwellings." The first case, Johnson v. Dixon,

786 F. Supp. 1 (D.D.C. 1991), is not persuasive, since it merely

expressed "doubt" that an emergency overnight shelter would

qualify as a dwelling, and then assumed without deciding that it

did so for purposes of its analysis. Id. at 4. This expression

of "doubt," with no analysis, is neither holding nor persuasive

dicta. In any event, it is certainly not, as Defendants argue,

"the law of this Circuit."

The second case, Intermountain Fair Hous. Council v. Boise

Rescue Mission Ministries, 717 F. Supp. 2d 1101 (D. Idaho),

aff'd on other grounds, 657 F.3d 988 (9th Cir. 2011), concluded

on a motion for summary judgment, not a motion to dismiss, that

a particular homeless shelter did not qualify as a "dwelling."

-30-

Id. at 1109-12. The procedural distinction between that case and

this one is significant. To justify its conclusion, the

Intermountain court analyzed many specific factors regarding the

terms of residence at the shelter - a factual analysis that is

clearly inappropriate at this stage in these proceedings. See

Abigail Alliance for Better Access to Developmental Drugs v. Von

Eschenbach, 495 F.3d 695, 723 (D.C. Cir. 2007) (noting that

factual questions were "not properly resolved at the motion-to-

dismiss stage when all reasonable inferences must be drawn to

the plaintiff's benefit").

Moreover, the facts upon which the Intermountain court

based its conclusion are very different from the facts alleged

here. The court relied on the following evidence:

[G]uests of the shelter are not charged a fee for

staying in the shelter; are assigned a bed in a

dormitory-style room, a hallway, or the day room;

generally are allowed to stay for a maximum of

seventeen consecutive nights (except during the winter

months when the maximum stay is more flexible due to

the danger that cold weather presents to homeless

individuals during the night); are not guaranteed the

same bed each night they return; with limited

exceptions, are not allowed to stay at the shelter

during the day, are required to leave the shelter

every morning by 8:00 a.m., and may not return, except

for lunch, until 4:00 p.m.; are not allowed to leave

the shelter once they arrive in the evening; generally

are not allowed to stay at the shelter on a particular

evening if they do not check in during the designated

hours; are not allowed to personalize the bed area

assigned to them or leave belongings in their bed

area; and, with extremely limited exceptions, are not

-31-

allowed to receive phone calls, mail, or have visitors

at the shelter.

717 F. Supp. 2d at 1111.

In contrast, Plaintiffs allege that there is no time limit

set on how long residents can remain at either D.C. General or

the Girard Street Apartments, and that the Hunters expected to

remain there indefinitely. Compl. ~~ 42-43 (D.C. General); ~ 57

(Girard Street Apartments) . Indeed, the Hunters stayed at both

shelters longer than the seventeen-day maximum imposed by the

shelter at issue in Intermountain. Id. ~~ 37, 56 (alleging

Hunters stayed at D.C. General between December 7, 2011, and

December 29, 2011); ~~ 69, 88 (alleging Hunters stayed at Girard

Street Apartments between December 29, 2011, and March 12,

2 012) .

In addition, the Hunters allege that D.C. General provides

families with their own rooms, guarantees individuals the right

to access their rooms at all times of the day, allows families

to return to the same room each day, and permits families to

keep their belongings in their room. Id. ~ 43. The Hunters also

allege that Community of Hope gives each family its own

apartment- style room with a key, requires staff to give notice

before entering apartment units, and permits residents to

-32-

decorate their units and place personal items in them. Id.

~~ 64-67.

All of these factual allegations support Plaintiffs' claim

that both D.C. General and the Girard Street Apartments are "a

temporary dwelling place, abode or habitation to which one

intends to return as distinguished from the place of temporary

sojourn or transient visit," Hughes, 396 F. Supp. at 549. Thus,

neither Johnson nor Intermountain supports dismissing

Plaintiffs' FHA claim at this time. See Boykin, 895 F. Supp. 2d

at 206-07 (rejecting District's reliance on Johnson and

Intermountain, and holding that the FHA was not categorically

inapplicable to homeless shelters).

In addition, the Department of Housing and Urban

Development ( "HUD") has promulgated a regulation which

explicitly identifies "sleeping accommodations in shelters

intended for occupancy as a residence for homeless persons" as

an example of a "dwelling unit." 24 C.F.R. § 100.201. HUD is

"the federal agency primarily charged with the implementation

and administration" of the FHA. Meyer v. Holley, 537 U.S. 280,

287 (2003) The District has offered no reason why the

regulation should not be entitled to the deference due

reasonable agency interpretations. See Chevron, 467 U.S. at 844;

see also United States v. Univ. of Neb. at Kearney, 940 F. Supp.

-33-

2d 974, 981 (D. Neb. 2013) (deferring to HUD's definition of

"dwelling unit"); Cmty. House, 490 F.3d at 1044-45 n.2 (noting

that "the regulations interpreting the coverage of the FHA

specifically contemplate that 'residences' within homeless

11

shelters qualify as 'dwellings'")

In sum, Plaintiffs have sufficiently alleged facts that,

with "the benefit of all reasonable inferences," Aktieselskabet

AF 21., 525 F.3d at 17, support their claim that both D.C.

General and the Girard Street Apartments were "dwellings" under

the FHA.

2. "Sale or Rental" and "Buyer or Renter"

The District and COH also argue that Plaintiffs have failed

to state a claim under the FHA because they are not "buyer[s] or

renters" who were discriminated against in the "sale or rental"

of a dwelling. Mot. at 11-12; COH Mot. at 10-13.

Plaintiffs bring claims under two subsections of the Fair

Housing Act. 42 U.S.C. § 3604 (f) (1) and (2). Both sections

11

COH argues that there is a distinction between a "dwelling

unit" and a "dwelling," COH Reply at 5-6, but it cites no

authority in support of that proposition. Moreover, HUD's

regulation on "reasonable accommodations" specifically uses the

term "dwelling unit." 24 C.F.R. § 100.204 ("It shall be unlawful

for any person to refuse to make reasonable accommodations in

rules, policies, practices, or services, when such

accommodations may be necessary to afford a handicapped person

equal opportunity to use and enjoy a dwelling unit, including

public and common use areas.").

-34-

require that the discrimination occur in connection with the

"sale or rental of a dwelling."

Some courts have noted the difficulties of establishing a

violation of section 3604(f) in the context of homeless

shelters. See Boykin, 895 F. Supp. 2d at 210 (expressing doubt

that FHA claim was cognizable given that former residents of a

homeless shelter were neither buyers nor renters)i Johnson, 786

F. Supp. at 4 ("Plaintiffs, and the other inhabitants of the two

shelters, are neither [buyers nor renters]. Such accommodations

as they have had at the shelters in the past have been provided

gratis by the District.") i see also Forziano v. Indep. Grp. Home

Living Program, Inc., No. 13-0370, 2014 WL 1277912, at *8 n.5

(E.D.N.Y. Mar. 26, 2014) ("Since [plaintiffs] are not renters or

buyers in their respective group homes, but rather receive

supervised housing as part of their Medicaid services, they

cannot state a claim for relief under the FHA.").

However, none of those courts addressed Plaintiffs'

argument that federally-funded shelters fall under the

definition of the term "to rent" in the FHA. The FHA defines "to

rent" as "to lease, to sublease, to let and otherwise to grant

for a consideration the right to occupy premises not owned by

the occupant." 42 U.S.C. § 3602(e). Plaintiffs allege that

Defendants receive federal funds, and argue that this

-35-

constitutes "considerationn for giving homeless individuals the

right to occupy rooms in homeless shelters. Opp'n at 23;

Statement of Interest at 25-26.

A handful of courts have considered this argument and found

it persuasive. See Woods, 884 F. Supp. at 1175 (holding that the

receipt of federal funds in return for providing shelter for the

homeless was sufficient to establish that defendants "rent[ed]n

the shelter); Anonymous v. Goddard Riverside Cmty. Ctr., Inc.,

No. 96-9198, 1997 WL 475165, at *3 n.4 (S.D.N.Y. July 18, 1997)

(assuming federal funds constitute consideration for housing for

purposes of resolving motion to dismiss) ; cf. Wai v. Allstate

Ins. Co., 75 F. Supp. 2d 1, 7 (D.D.C. 1999) (rejecting

contention that section 3604 (f) (2) "only applies to landlords or

providers of housingn).

Defendants argue that this Court should instead follow the

district court in Jenkins, 643 F. Supp. 2d at 519, which stated

that a "far more plausible reading of the statute would limit

the word 'rent' to consideration paid by the person who has the

right to occupy the dwelling.n However, the Second Circuit

specifically noted that the district court had "erred in

reaching the question of whethern the plaintiff was a renter

under section 3604 (f). 391 Fed. App'x 81, 83 (2d Cir. 2010)

(upholding district court's conclusion that plaintiff had failed

-36-

to state an FHA claim on other grounds) . Thus, the district

court's decision in Johnson has no precedential value on this

issue.

Moreover, the Court finds that this case is more similar to

Defiore, 2013 WL 7157990, in which the court observed that,

"[w]hat qualifies as consideration under the FHA has been

examined by a limited number of courts and this Court finds that

resolution of the issue will turn on whether [the shelter]

receives consideration for a resident's stay -- whether it be

from federal or other funding directed to subsidizing the costs

of providing housing to the homeless or whether shelter

residents provide some form of consideration for their stay."

Id. at *4.

In sum, Plaintiffs have alleged that the District and COH

receive federal funds in order to provide homeless individuals

with programs and services, including the right to occupy

certain premises. Compl. ~~ 8, 11. These allegations and "all

reasonable inferences" therefrom, Aktieselskabet AF 21., 525

F.3d at 17 (internal quotations and citations omitted), satisfy

the broad definition of "to rent" set out in the statute, 42

U.S.C. § 3602(e), particularly in light of the Supreme Court's

direction to give the statute "generous construction."

Trafficante, 409 U.S. at 209, 212.

-37-

This reading of the definition of "rent" makes sense in the

context of subsection (f) (2), which makes it unlawful to

"discriminate against any person in the terms, conditions, or

privileges of [] rental of a dwelling, or in the provision of

services or facilities in connection with such dwelling." 42

U.S.C. § 3604 (f) (2). Plaintiffs have alleged that they were

discriminated against in the provision of services or facilities

that appropriately accommodated A. H. Is handicap. Thus,

Plaintiffs have sufficiently stated a claim under subsection

3604 (f) (2).

A harder question is whether a broad construction of the

term "rent" can still save Plaintiffs' claim under subsection

3604(f) (1). That provision makes it unlawful to "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. § 3604 (f) (1).

The primary problem is that the discrimination in the sale

or rental under subsection (f) (1) must be to "any buyer or

renter." Id. Even under Plaintiffs' construction of the term

rent, the "renters" are the federal agencies that provide funds

to Defendants, not the Plaintiffs. The statutory language of

subsection (f) (1) seems to limit the scope of unlawful

-38-

discrimination to the entity buying or renting the dwelling in

question.

The United States argues that "courts have applied the FHA

to encompass a wide variety of conduct that does not involve a

refusal to sell or rent housing to owners or tenants." Statement

of Interest at 24 & 24 n. 16. It cites several cases that have

interpreted the phrase "otherwise make unavailable or deny" to

expand the scope of the FHA. The Court notes that cases in this

District have similarly found that section 3604 (a) reaches a

broad range of actors whose actions affect the opportunity to

buy or rent a dwelling. Greater New Orleans Fair Hous. Action

Ctr. v. Dep't of Hous. & Urban Dev., 723 F. Supp. 2d 14, 22-23

(D.D.C. 2010) (permitting plaintiffs to pursue claim that grant

program for disaster recovery prevented homeowners from

inhabiting their homes); Nat'l Cmty. Reinvestment Coal. v.

Accredited Home Lenders Holding Co., 573 F. Supp. 2d 70, 76-77

(D.D.C. 2008) (permitting claim against mortgage lenders); Nat'l

Cmty. Reinvestment Coal. v. Novastar Fin., Inc., No. 07-0861,

2008 WL 977351, at *1-*3 (D.D.C. Mar. 31, 2008).

However, these cases were brought under a different

subsection of section 3604, which makes it unlawful "[t]o

otherwise make unavailable or deny[] a dwelling to any person

because of race, color, religion, sex, familial status, or

-39-

national origin." 42 U.S.C. § 3604 (a) (emphasis added); compare

id. § 3604 (f) (1) (making it unlawful "to otherwise make

unavailable or deny[] a dwelling to any buyer or renter")

(emphasis added). See, e.g., N.A.A.C.P. v. Am. Family Mut. Ins.

Co., 978 F.2d 287, 301 (7th Cir. 1992) (holding that section

3604 "applies to discriminatory denials of insurance, and

discriminatory pricing, that effectively preclude ownership of

housing because of the race of the applicant"). Thus, these

cases do not provide support for the proposition that the

"otherwise make unavailable or deny" language in section

3604 (f) (1) means that Plaintiffs do not have to establish that

they were a "buyer or renter.,,

Even in light of the Court,s obligation to construe the FHA

as broadly as possible, the clear language of the statute

restricts the class of people who can bring a claim under

section 3604(f) (1) to a "buyer or renter," or, at its broadest,

individuals who were otherwise denied the opportunity to become

a buyer or a renter. There is no such allegation that the

Hunters fall into either category. Therefore, the Court must

conclude that the Hunters have failed to sufficiently allege

that the District or COH discriminated against them as "buyers

or renters" under 42 U.S.C. § 3604 (f) (1).

-40-

3. Summary

Plaintiffs have sufficiently alleged that the homeless

shelters at issue in this case should be considered "dwellings"

under the FHA. Plaintiffs have also sufficiently alleged that

Defendants received some consideration in exchange for

permitting them to reside in such dwellings, such that they can

proceed with their claim of discrimination under 42 U.S.C.

§ 3604 (f) (2). However, Plaintiffs have not sufficiently alleged

that they are "buyer[s]" or "renter[s]" such that they may bring

a claim under 42 U.S.C. § 3604 (f) (1).

C. Count IV: Plaintiffs Have Sufficiently Alleged Claims

Under the District of Columbia Human Rights Act

The Hunters argue that Defendants have violated several

provisions of the District of Columbia Human Rights Act

("DCHRA"), D.C. Code §§ 2-1401.01 et seq. The District of

Columbia Court of Appeals has noted that the DCHRA "is a

remedial civil rights statute that must be generously

construed." See Lively v. Flexible Packaging Ass'n, 830 A.2d

874, 887 (D.C. 2003) (quoting Executive Sandwich Shoppe, Inc. v.

Carr Realty Corp., 749 A.2d 724, 731 (D.C. 2000)).

The District and COH challenge Plaintiffs' six DCHRA claims

as deficient for different reasons. The Court shall address each

claim in turn.

-41-

1. Plaintiffs Have Sufficiently Stated a Claim Under

D.C. Code § 2-1402.21(d) (2), But Not § 2-

1402.21 (d) (1)

First, the District and COH argue that Plaintiffs' claims

under section 2-1402.21(d) of the DCHRA fail for the same

reasons that Plaintiffs' FHA claims fail; namely, that

Plaintiffs are neither "buyer [s] 11

nor "renter [s] 11

and that the

shelters at issue are not "dwellings. 11

See Mot. at 16-17; COH

Mot. at 15-16.

Defendants are correct that section 2-1402.21(d) makes

discrimination associated with the sale or rental of a dwelling

unlawful in language that parallels the analogous provision of

the FHA. Compare D.C. Code § 2-1402.21(d) with 42 U.S.C.

§ 3604 (f) . "District of Columbia courts interpreting the DCHRA

'have generally looked [for guidance] to cases from the federal

courts' arising under federal civil rights statutes. 11

Whitbeck

v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997)

(quoting Benefits Comm'n Corp. v. Klieforth, 642 A.2d 1299,

1301-02 (D.C. 1994)); see also Paralyzed Veterans of Am. v.

Ellerbe Becket Architects & Eng'rs, P.C., 950 F. Supp. 393, 405

(D.D.C. 1996) ("The D.C. courts have always looked to cases from

the federal courts in interpreting the D.C. Human Rights Act,

and have followed, wherever applicable, precedents from the

-42-

federal courts' treatment of comparable civil rights statutes. 11

)

(citations omitted) .

As discussed above, see supra Sec. III.B.1, Plaintiffs have

sufficiently stated facts in their complaint to support their

claim that the shelters in question are "dwellings. 11

In

addition, although Plaintiffs have failed to sufficiently allege

they are "buyer[s] or renter [s] 11

to satisfy section 2-

1402.21(d) (1) of the DCHRA, there is no such language in section

2-1402.21(d) (2) of the DCHRA. See supra Sec. III.B.2 (discussing

difference in language between provisions of the FHA) . Thus,

because this section of the DCHRA and the FHA should be

interpreted in a parallel fashion, the Court concludes that

Plaintiffs may proceed on its claim that Defendants

discriminated against them in the "terms, conditions, or

privileges of sale or rental of a dwelling or in the provision

of services or facilities in connection with the dwelling

because of a disability, 11

D.C. Code § 2-1402.21(d) (2), but not

on its claim that Defendants discriminated against them under

section 2-1402.21(d) (1).

2. Plaintiffs Have Sufficiently Stated a Claim Under

D.C. Code§ 2-1402.2l(d) (3) (D)

In a footnote, the District argues that Plaintiffs have

failed to assert facts sufficient to support their claims

-43-

"regarding the accessibility of their units." Mot. at 17 n.13.

This argument seems to be challenging Plaintiffs' claim that

they were discriminated against under D.C. Code § 2-

1402.21 (d) (3) (D) . That section defines "unlawful discrimination"

to include a failure to ensure that premises within a dwelling

contain "[a] n accessible route into and through the dwelling,"

and "usable kitchens and bathrooms so that an individual in a

wheelchair can maneuver about the space." Compl. ~~ 123(a), (b);

see D.C. Code § 2-1402.21(d) (3) (D) (i), (iv).

Plaintiffs have sufficiently alleged facts to support a

claim that both D.C. General and the Girard Street Apartments

did not include accessible routes into the building and/or their

units. See Compl. ~ 46 (alleging that A. H. could not get into

front door of D.C. General because ramp is "excessively steep"

and sidewalk is broken); ~ 72 (ramp leading up to Girard Street

Apartments was not accessible for A. H.); ~ 73 (wheelchair lift

in Girard Street Apartments was broken) ; ~ 74 (no elevator in

Girard Street Apartments to get to third floor apartment); ~ 75

(hallways within Girard Street apartment were too narrow to

accommodate wheelchair) . They have also sufficiently alleged

that D.C. General did not include a usable bathroom. See id.

~ 47 (bathroom in D.C. General unsuitable for A.B.'s needs

-44-

because she had to be supported by Hunter and he could not hold

her and operate shower at same time) .

Thus, Plaintiffs have alleged facts sufficient to proceed

on their claims under sections 2-1402.21 (d) (3) (D) (i) and (iv) of

the DCHRA.

3. Plaintiffs Have Sufficiently Stated a Claim Under

D.C. Code§ 2-1402.3l(a) (1}

a. Intentional Discrimination

Plaintiffs allege that Defendants have violated section 2-

1402.31(a) (1) of the DCHRA, which establishes, among other

things, that it is an "unlawful discriminatory practice" to

"deny, directly or indirectly, any person the full and equal

enjoyment of the goods, services, facilities, privileges,

advantages, and accommodations of any place of public

accommodations" because of a disability. D.C. Code § 2-

1402.31 (a) (1) .

In a footnote, the District argues that this section of the

DCHRA requires a plaintiff to plead and prove intentional

discrimination. Mot. at 16 n.12. It is true that the DCHRA

includes language, which is not included in either Title III of

the ADA or Title II of the Civil Rights Act, 12 requiring that the

12

Defendants discuss Title III of the ADA, 42 U.S.C. § 12181 et

seq., which prohibits discrimination on the basis of disability

in the "full and equal enjoyment" of "any place of public

-45-

discriminatory act be "wholly or partially for a discriminatory

reason based on the actual or perceived . . disability." Mot.

at 16 n.12.

However, the parties have identified no case that discusses

a plaintiff's burden to prove a defendant acted "wholly or

partially for a discriminatory reason" under the public

accommodations section of the DCHRA. Even if the burden for

pleading intentional discrimination was the same in this context

as it is in the FHA context, the Court has already concluded

that Plaintiffs have met that burden at this stage. See supra

Sec. III.A.4. Therefore, the Court will allow Plaintiffs to

proceed on their claim against the District for discrimination

in the provision of public accommodations under D.C. Code § 2-

1402.31(a) (1) at this time.

b. "Place of Public Accommodation"

COH argues that the Girard Street Apartments are not a

"place of public accommodation" under the DCHRA. See COH Mot. at

16-17; COH Reply at 17. Specifically, it argues that the DCHRA's

enumerated list of "places of public accommodation" does not

accommodation." Mot. at 16 n .12 (discussing 42 U.S. C.

§ 12182 (a)). In addition, the Court notes that Title II of the

Civil Rights Act, 42 U.S.C. § 2000a et seq., also outlaws

discrimination in the provision of public accommodations. 42

U.S.C. § 2000a(a)

-46-

include a homeless shelter. Id. (citing D.C. Code § 2-

1401.02 (24)).

Section 2-1401.02(24) of the DCHRA defines places of public

accommodation as "all places included in the meaning of" a long

list of terms. D.C. Code § 2-1401.02(24) Although COH is

correct that homeless shelter is not one of the terms listed, a

member of this court has already noted that the term "place of

public accommodation" is defined "broadly" under the DCHRA and

"would seem to include homeless shelters." Boykin, 895 F. Supp.

2d at 217 n.16.

Moreover, the parallel provision defining "public

accommodation" under Title III of the Americans with

Disabilities Act, 42 U.S. C. § 12181, does include a homeless

shelter as an entity considered a public accommodation. 42

U.S.C. § 12181 (7) (K). Given that D.C. courts look for guidance

to the parallel federal civil rights statutes, see Boykin, 895

F. Supp. 2d at 219 (citation omitted), and in light of the

District of Columbia's determination that the DCHRA should be

"generally construed," Lively, 830 A.2d at 887, the Court

concludes that the Girard Street Apartments should be considered

a "place of public accommodation" under section 2-14 02. 31 (a) ( 1)

of the DCHRA.

-47-

4. Plaintiffs Have Sufficiently Stated a Claim Under

D.C. Code § 2-1402.73

Section 2-1402.73 of the DCHRA establishes, among other

things, that it is an "unlawful discriminatory practice for a

District government agency or office to limit or refuse to

provide any facility, service, program, or benefit" on the basis

of an individual's disability. D.C. Code § 2-1402.73. 13

Defendants argue that Plaintiffs have failed to allege

sufficient facts to support this claim. First, the District

argues that Plaintiffs have failed to sufficiently allege that

any District agency or office "limit [ed]" or "refuse [d]" any

service to the Hunters because no such agency or office

"directly interacted" with Plaintiffs. Mot. at 17; Reply at 13.

The text of the statute does not contain or suggest such a

"direct interaction" requirement. In George Washington Uni v. v.

D.C. Bd. of Adjustment, 831 A.2d 921 (D.C. 2003), the District

of Columbia Court of Appeals discussed the provision and noted

that it "appears to be directed at the administration of

District of Columbia government programs." Id. at 941 n.16.

Plaintiffs have alleged that they relied on the Department of

Human Services ( "DHS") and the Office of Shelter Monitoring

13

Another member of this court has noted that, "[t] here is a

dearth of case law respecting this provision, which became

effective in 2002, and the [c]ourt has not located any decisions

applying it." Boykin, 895 F. Supp. 2d at 218.

-48-

("OSM") to ensure compliance with federal and local anti-

discrimination provisions and to maintain records of shelter

inventory and information relating to their accessibility to

those with disabilities. Compl. ~~ 89-91. Construed in the light

most favorably to Plaintiffs, as this Court must, Aktieselskabet

AF 21., 525 F.3d at 17 (internal quotations and citations

omitted), these allegations support a claim that District

agencies refused to provide an appropriate "facility, service,

program, or benefit" to the Hunters based on A.H.'s needs as a

disabled individual. Therefore, the Court will not dismiss

Plaintiffs' claim under this section of the DCHRA on this basis.

Second, the District argues that homeless shelter services

are not the type of "services" covered by this provision. Mot.

at 17 n.14. In support of its argument, it cites only one case,

A Society Without a Name v. Virginia, 655 F. 3d 342 (4th Cir.

2011). Society Without a Name construed the scope of the term

"services" under the FHA, 42 U.S.C. § 3604 (b) and (f) (2), to be

limited to "services generally provided by governmental units."

Id. at 349-50. However, the relevant section of the DCHRA is

much broader than the FHA provisions, encompassing "any

facility, service, program, or benefit." D.C. Code § 2-1402.73;

compare 42 U.S. C. § 3604 (b) (making unlawful discrimination "in

the provision of services or facilities") ; id. § 3 604 (f) (2)

-49-

(same) . Thus, the Court is not persuaded that Society Without a

Name provides an adequate basis to dismiss Plaintiffs' claim

under this section of the DCHRA at this time.

5. Plaintiffs Have Sufficiently Stated a Claim Under

D.C. Code § 2-1402.67

Section 2-1402.67 of the DCHRA states:

All permits, licenses, franchises, benefits,

exemptions, or advantages issued by or on behalf of

the government of the District of Columbia, shall

specifically require and be conditioned upon full

compliance with the provisions of this chapter; and

shall further specify that the failure or refusal to

comply with any provision of this chapter shall be a

proper basis for revocation of such permit, license,

franchise, benefit, exemption, or advantage.

D.C. Code § 2-1402.67. The District argues that Plaintiffs'

claim under this section fails for two reasons. 14

First, the District argues that because the Hunters have

failed to identify any particular document in which the District

14

The District notes for the first time in its reply that

section 2-14 02. 67 only references "permits, licenses,

franchises, benefits, exemptions, or advantages," but does not

specify "contracts." Reply at 13. Thus, it argues that the

Hunters' allegations regarding contracts are inherently

insufficient.

The District does not explain why the contracts at issue here

should not be considered "permits, licenses, franchises,

benefits, exemptions, or advantages." D.C. Code § 2-1402.67

(emphasis added) . Moreover, given the fact that the District

raised this argument for the first time in its reply brief, the

Court will not address it here. See supra n.7; see also St. Paul

Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 657 F.

Supp. 2d 243, 247 n.1 (D.D.C. 2009) (declining to address

argument that was raised for the first time in reply brief) .

-50-

did not condition compliance with the DCHRA 1 their claim must be

dismissed. Mot. at 18. However 1 the Hunters allege that the

District had contracts with the operators of the shelters.

Compl. ~ 9-10. They also allege that the operators discriminated

against them on the basis of disability/ in violation of the

anti-discrimination provisions of the DCHRA. Id. ~ 122.

Plaintiffs argue that these allegations that the shelters did

not comply with the DCHRA allow the Court to reasonably infer

that the District did not condition its contracts with the

shelter operators on compliance with the DCHRA. Opp n at 29. 1

The Hunters are correct that when these allegations are

read together 1 it is reasonable to infer that the District did

not condition the contracts on compliance with the DCHRA. 15 Thus/

the Court will not dismiss Plaintiffs/ claim under this

subsection of the DCHRA on that basis.

Second 1 the District argues that even if the Hunters have

sufficiently alleged a violation of section 2-1402.67 1 the claim

must be dismissed because the District has sovereign immunity

15

Moreover 1 the Court has already ruled that the contracts

between the District and the other Defendants will be reviewed

for the purpose of determining the relationship between the

Defendants. See supra Sec. III.A.4.b. Whether those contracts

contain a provision requiring compliance with the DCHRA can be

resolved definitively once those contracts have been exchanged

in discovery.

-51-

regarding "[e] nforcement of the DCHRA' s compliance requirement

for permits and licenses." Mot. at 19.

The doctrine of sovereign immunity protects the District of

Columbia from suit for its discretionary activities. Nealon v.

Dist. of Columbia, 669 A.2d 685, 690 (D.C. 1995) (citing Powell

v. Dist. of Columbia, 602 A.3d 1123, 1126 (D.C. 1992)).

"Generally, discretionary acts involve the formulation of

policy, while ministerial acts involve the execution of policy."

Nealon, 669 A.2d at 690.

Although the District describes the statute as "refer[ring]

to enforcement decisions," Reply at 14, the language of the

statute does not support that interpretation. Section 2-14 02. 67

states that the District "shall" condition its "permits,

licenses, franchises, benefits, exemptions, or advantages" on

compliance with the statute. D.C. Code § 2-1402.67. The word

"shall" creates a mandatory obligation, not a discretionary

ability to enforce. See Kakeh v. United Planning Org., Inc., 655

F. Supp. 2d 107, 123 (D.D.C. 2009) ("It is well-settled that

when a statute uses the term 'shall,' it creates a mandatory

duty."). The District fails to provide any convincing reason why

the use of the word "shall" in this statute suggests anything

other than a mandatory duty.

-52-

The crux of the Hunters' claim is not that the District

failed to enforce a provision it had in any particular contract

that required compliance with the DCHRA, but, instead, that it

failed to include such a provision at all. Because the statute

creates a mandatory duty to include such provisions, it should

be considered a ministerial duty and outside the scope of the

District's sovereign immunity. Nealon, 669 A. 2d at 690 ("If the

act is committed in the exercise of a ministerial function, the

District is not immune.").

In sum, Plaintiffs have sufficiently alleged that the

District failed to comply with its mandatory duty to require

compliance with the DCHRA in issuing "permits, licenses,

franchises, benefits, exemptions, or advantages," and the

Plaintiffs' claim under this subsection of the DCHRA may

proceed.

6. Summary

Plaintiffs allege claims under six subsections of the

DCHRA. Although they may not proceed under section § 2-

1402.21 (d) (1), they have sufficiently pleaded facts to support

their other five claims.

-53-

D. Count V: Plaintiffs Have Not Sufficiently Alleged a

Claim Under the Homeless Services Reform Act

Defendants argue that Plaintiffs have failed to state a

claim under the Homeless Services Reform Act ("HSRA 11 ) , D.C. Code

§ 4-751.01 et. seq. The HSRA implements a "continuum of care, 11

defined as "the system of services for individuals and families

who are homeless or at imminent risk of becoming homeless and

designed to serve clients based on their individual level of

need. 11

Id. § 4-751.01(8). The statute establishes standards for

all providers of services to the homeless. Id. § 4-754.21

("Section 21 11 ) . The HSRA also requires that the District provide

"shelter in severe weather, 11

id. § 4-754.11(5), and specifies

additional standards required for providers of severe weather

shelter. id. § 4-754.22 ("Section 22 11 ) .

1. The District of Columbia Court of Appeals Has

Strictly Limited Private Rights of Action Under

the HSRA

The District's first argument is that Plaintiffs do not

have a private right of action under the HSRA. Section 4-

755.01(a) of the HSRA states that "no provision of this chapter

shall be construed to create an entitlement (either direct or

implied) to any services within the Continuum of Care,

other than shelter in severe weather conditions as authorized by

§ 4-754.11(5) . 11 Thus, the District insists that Plaintiffs'

-54-

claims under the HSRA, other than a claim based on a failure to

provide shelter during severe weather, are precluded.

The District of Columbia Court of Appeals has directly

addressed this section of the HSRA. In Baltimore v. District of

Columbia, 10 A.3d 1141 (D.C. 2011), former residents of a

homeless shelter brought suit under the HSRA arguing that the

District had failed to conform to the standards identified in

the statute as part of the "Continuum of Care." Id. at 1146-47.

The Court acknowledged that the statute created "standards" in

Section 21, but concluded that the legislature did not intend to

"create a direct or implied entitlement to any other particular

service" than the right to shelter in severe weather. Id. at

1143-44. Consequently, the District is correct that there is no

private right of action available to Plaintiffs other than an

action to enforce the right to shelter in severe weather.

The Hunters attempt to distinguish Baltimore on the ground

that they are not seeking any particular service, but instead

are seeking to enforce "non-service rights." Opp'n at 29-30 & 30

n.4. This distinction between service and non-service rights

appears nowhere in the statute, which lists all of the standards

in a single section without distinguishing between services and

non-services. Moreover, it is unclear how one would protect

"non-service rights," such as the right to be free from

-55-

discrimination, without putting them in the context of provision

of services. Indeed, Section 4-754.21(10) does precisely that by

requiring that shelters "[p]rovide services free from

discrimination II

D.C. Code § 4-754.21(10) (emphasis

added).

The District of Columbia Court of Appeals has interpreted

the scope of private rights of action under the HSRA narrowly,

and this Court is bound by that determination. See In re Sealed

Case (Medical Records), 381 F.3d 1205, 1211 n.5 (D.C. Cir. 2004)

(noting that the District of Columbia Court of Appeal's

interpretation of District of Columbia law is authoritative).

Therefore, Plaintiffs' claims under the HSRA, other than those

related to the right to shelter in severe weather, must be

dismissed. 16

2. Plaintiffs Have Not Sufficiently Pleaded a

Violation of the Right to Shelter in Severe

Weather

The Hunters allege that the District failed to place them

in a shelter that reasonably accommodated A. H. 's disabilities

during severe weather conditions. Compl. ~ 140 (h) (citing D.C.

Code § 4-754.11(5); see also id. ~~ 38, 138 (alleging that, when

16

Because the Court dismisses these claims, it need not address

the District's argument that these claims should also be

dismissed because it is not a "provider" under the HSRA. Mot. at

21-23.

-56-

the Hunters requested shelter, temperatures were below 32

degrees Fahrenheit); D.C. Code § 4-751.01(35) (defining "severe

weather conditions" to include when the temperature falls below

32 degrees Fahrenheit) .

The Hunters do not dispute that they were provided with

shelter during severe weather, but they argue that they were

entitled to shelter that complied with the standards set forth

in Section 21 and Section 22. Opp'n at 30. The District responds

that its obligation to provide shelter in severe weather does

not extend to the provisions of the Continuum of Care in Section

21. Mot. at 23 (citing Baltimore, 10 A.3d at 1150-51).

Section 21 states that providers shall "[p] rovide services

free from discrimination on the basis of . . disability," D.C.

Code § 4-754-21(10), and "[provide reasonable modifications,"

Id. § 4-754-21(11). However, Section 21 is the same section that

the District of Columbia Court of Appeals analyzed in Baltimore

and found to be a list of standards, rather than a list of

rights to which an individual was entitled. Baltimore, 10 A.3d

at 1151. Citing both Section 21 and Section 22, the Baltimore

court determined that the word "standards" suggested "norms or

what is acceptable or desirable, not a statutory entitlement."

The Baltimore court concluded that there was a statutory

entitlement to "shelter in severe or frigid weather," id., but

-57-

it did not identify the contours of that right because it found

that the plaintiffs in that case had failed to allege a denial

of shelter during severe weather conditions. Id. (noting that

the declarations did not reveal "any specific complaint about

the denial of other shelter during severe weather conditions").

Thus, despite the fact that plaintiffs in that case argued they

were entitled to a particular shelter during severe weather

conditions, the court found that the fact that they had received

some shelter was dispositive of their claim.

Similarly, Plaintiffs in this case have failed to allege

that they were not provided with shelter during severe weather.

Therefore, although there is a private right of action for

individuals to enforce their right to shelter in severe weather,

Plaintiffs have failed to sufficiently allege a denial of that

right.

Plaintiffs insist that mere shelter is insufficient - there

must be some substantive content to the right to ensure that the

shelter is "appropriate" or the right would be "meaningless."

Opp'n at 30-31 (citing D.C. Code § 4-753.01(c) (1)). Although

Plaintiffs are correct that there must be some substantive

content to the right, it does not follow that such a right

encompasses all of the "standards" set out in Section 21 of the

HSRA. As the District correctly points out, this would mean that

-58-

Plaintiffs would have a statutory entitlement to all services in

the Continuum of Care for emergency shelters, but no statutory

entitlement to services whatsoever in regular shelters.

Given the clear language of Baltimore, this Court must

conclude that, as a legal matter, individuals are not entitled

to all of the provisions listed in Section 21 as part of their

right to shelter in severe weather. Because the District of

Columbia Court of Appeals has held that the only private right

of action under the HSRA is a right to severe weather shelter,

and Plaintiffs have failed to allege a violation of that right,

their claim must be dismissed.

3. Exhaustion of Administrative Remedies

In the alternative, COH argues that Plaintiffs' claims

under the HSRA must be dismissed for failure to exhaust their

administrative remedies. It argues that Plaintiffs failed to

"exercise their appeal rights under the HSRA relative to their

request for respite care," and, hence, Plaintiffs "failed to

comply with the mechanism for relief provided for by the

HSRA [.]" COH Mot. at 18-19.

The statutory language of the HSRA does not require a

client to appeal a provider's decision. D.C. Code § 4-754.41(b)

(stating that "[a] client or client representative may request a

fair hearing") (emphasis added) . Rather, the HSRA imposes a

-59-

requirement on the Office of Administrative Hearings ( "OAH") ,

stating that OAH "shall grant a fair hearing to any client or

client representative who wishes to appeal a decision . and

who requests such a hearing, orally or in writing, within 90

days of receiving written notice of the adverse action." D.C.

Code § 4-754.41 (a) (emphasis added). Thus, the Court will not

conclude that Plaintiffs' HSRA claims should be dismissed

because they failed to exhaust their administrative remedies.

4. Summary

Plaintiffs have failed to sufficiently allege facts to

support its claim that its right to shelter during severe

weather was violated, the only claim under the HSRA for which it

has a private right of action.

E. Count VI: Plaintiffs Have Not Sufficiently Alleged a

Negligence Claim Against the District of Columbia 17

The elements of a cause of action for negligence are: "a

duty of care owed by the defendant to the plaintiff, a breach of

that duty by the defendant, and damage to the interests of the

plaintiff, proximately caused by the breach." Woods v. Dist. of

Columbia, 63 A.3d 551, 553 (D.C. 2013).

17

COH does not argue that the negligence claims against it

should be dismissed. See Answer to Counts VI and VII [Dkt. No.

78] .

-60-

In Count VI, Plaintiffs allege that the District

negligently breached duties imposed upon it by the DoJ

Settlement and th e HSRA . Comp l . fl

11 144. 18 In the D1' str1' ct of

Columbia, a suit against the District alleging negligence will

fail as a matter of law absent a "special duty" or "special

relationship" between the District and the plaintiff. 19 Id.

(quoting Warren, 444 A.2d at 3, 4); see also Klahr v. Dist. of

Columbia, 576 A.2d 718, 719 (D.C. 1990) ("Under the public duty

doctrine, a person seeking to hold the District of Columbia

liable for negligence must allege and prove that the District

owed a special duty to the injured party, greater than or

different from any duty which it owed to the general public.").

"The threshold for establishing a special relationship is

very high." Jefferies v. Dist. of Columbia, 917 F. Supp. 2d 10,

33 (D.D.C. 2013) (internal quotations and citation omitted).

18

Plaintiffs also allege that the District is vicariously liable

for the negligence of its contractors and agents in breaching

contractual duties. Id. ~ 147. However, this claim cannot

survive because "the mere negligent breach of a contract

is not enough to sustain an action sounding in tort." Curry v.

Bank of Am. Home Loans Servicing, 802 F. Supp. 2d 105, 109

(D.D.C. 2011) (quoting Towers Tenant Ass'n, Inc. v. Towers Ltd.

Partnership, 563 F. Supp. 566, 570 (D.D.C. 1983)). The District

cannot therefore be held vicariously liable for its contractors'

negligent breach of contract.

19

"The terms 'special relationship' and 'special duty' may be

used interchangeably," because "'a special relationship

imposes a special legal duty."' Powell, 602 A.2d at 1127 n.4

(quoting Warren v. Dist. of Columbia, 444 A.2d 1, 3 (D.C. 1981)

(en bane)) .

-61-

"If, based on reading the Complaint, the public duty doctrine

applies, the Court may appropriately dismiss the tort claims

under 12 (b) (6) for failing to state a claim. 11

Jefferies, 917 F.

Supp. 2d at 32 (D.D.C. 2013) (citing Warren, 444 A.2d at 1).

There are two exceptions to the public duty doctrine.

Jefferies, 917 F. Supp. 2d at 33; Snowder v. Dist. of Columbia,

949 A.2d 590, 603-04 (D.C. 2008). First, a plaintiff can allege

and prove two things: "((1) a direct or continuing contact

between [the plaintiff] and a governmental agency or official,

and (2) a justifiable reliance on the part of [the plaintiff] . 11

Jefferies, 917 F. Supp. 2d at 33 (quoting Klahr, 576 A.2d at

720). Second, a plaintiff can identify a "specific statute or

regulation that prescribes 'mandatory acts clearly for the

protection of a particular class of persons rather than the

public as a whole.' 11

Jefferies, 917 F. Supp. 2d at 34 (quoting

Turner v. Dist. of Columbia, 532 A.2d 662, 667 (D.C. 1987)). The

Court will refer to this as the second exception to the public

duty doctrine.

Thus, for Plaintiffs' negligence claim to survive, they

must sufficiently allege facts to support a conclusion that the

claim falls under one of the two exceptions to the public duty

doctrine.

-62-

1. First Exception: Contact and Justifiable Reliance

Plaintiffs argue that they have alleged facts sufficient to

support the first exception to the public duty doctrine: namely,

that they have sufficiently alleged "direct or continuing

contact" between themselves and the District of Columbia and

"justifiable reliance." Jefferies, 917 F. Supp. 2d at 33.

To sufficiently allege "contact," Plaintiffs must allege a

"direct transaction with the party injured or an arms-length

relationship in which the city's agent is dealing directly, in

some form, with the person injured." Id. (citing Powell, 602

A.2d at 1130). Plaintiffs argue that "the District, through its

agent contractors, maintained direct and continuing contact with

the Hunter family from the moment Mr. Hunter sought shelter."

Opp'n at 33. Mr. Hunter's first application for housing, as well

as his multiple requests for accommodations, all appear to be

"direct and personal transaction[s]" that satisfy this prong

under District of Columbia precedent. Powell, 602 A. 2d at 1131

(finding that application and payment of fee to Bureau of Motor

Vehicle Services satisfied "contact" prong) ; see also Compl.

~ 37 (alleging Hunter applied for placement in a homeless

shelter at the District's central intake office); ~ 41 (alleging

certain statements made by Center staff to Hunter) ; ~ 78

-63-

(alleging conversation between Hunter and program director at

Girard Street Apartments) .

The District cites Powell for the proposition that "even a

series of contacts over a period of time is not enough absent

some showing that the agency assumed a greater duty to that

person than the duty owed to the public at large." Reply at 16

n.4 (citing Powell, 602 A.2d at 1130). However, the District of

Columbia Court of Appeals has clarified that the burden of

showing a "greater duty" than one owed to the public is

satisfied by also requiring proof of justifiable reliance.

Powell, 602 A.2d at 1131; Snowder, 949 A.2d at 604 n.12 (noting

that the two-part inquiry "takes this greater duty factor into

account by requiring justifiable reliance") . Thus, Plaintiffs

have sufficiently alleged "contact" with the District through

its agents. 20

To show "justifiable reliance," Plaintiffs must allege that

the District has "specifically undertaken to protect a

particular individual and the individual has specifically relied

upon the undertaking." Morgan v. Dist. of Columbia, 468 A. 2d

13 06, 1315 (D.C. 1983) . It requires "particular or special

reliance," Powell, 602 A.2d at 1131 n.11, on some "affirmative

20

As discussed above, see supra Sec. III.A.4.b, the Hunters have

sufficiently alleged that the District's contractors are its

"agents" to proceed on that theory at this time.

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act[]" that uactually and directly worsened the plaintiff's

condition," Woods, 63 A.3d at 554 (internal quotations and

citation omitted) .

Plaintiffs argue that they justifiably relied on the

District's uaffirmative obligation" as set forth in Paragraph 24

of its Settlement Agreement with the DoJ. Opp'n at 34. However,

the Settlement Agreement specifically states that it is

uenforceable only by the parties" and that uno person or entity

may assert any claim or right as a beneficiary or protected

class" under the Agreement. Settlement Agreement ~ 37 [Dkt. No.

79-1]. Whatever the scope of the District's duties under the

Settlement Agreement, it is clear that signing the Agreement was

not an uaffirmative act[]" that uactually and directly worsened

the plaintiff's condition." Woods, 63 A.3d at 554 (internal

quotations and citation omitted) .

Plaintiffs identify no other portion of their Complaint

that alleges an uaffirmatively negligent act" as compared to a

ufailure to act." Snowder, 949 A. 2d at 604. Therefore,

Plaintiffs have failed to sufficiently plead justifiable

reliance, and, thus, have not satisfied the first exception to

the public duty doctrine. See Woods, 63 A.3d at 554 (noting that

District of Columbia Court of Appeals uhas adhered to a strict

interpretation of the special relationship test, including the

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justifiable reliance prong") (quoting Taylor v. Dist. of

Columbia, 776 A.2d 1208, 1218 (D.C. 2001)).

2. Second Exception: Statute

In the alternative, Plaintiffs argue that they have

satisfied the second exception to the public duty doctrine,

because the HSRA is a specific statute that "prescribes

mandatory acts clearly for the protection of a particular class

of persons rather than the public as a whole." Jefferies, 917 F.

Supp. 2d at 34 (quoting Turner, 532 A. 2d at 667); see Compl.

~~ 144-46 (alleging that HSRA imposes particular duties upon

Defendants) .

The District of Columbia Court of Appeals stated in Turner

that "if a state agency is required by statute or regulation to

take a particular action for the benefit for a particular class

and fails to do so, or negligently does so, and the plaintiffs

justifiably rely to their detriment on the agency's duty to act,

a cause of action in negligence will lie against the state or

its agency." Turner, 532 A.2d at 672.

In Turner, the District of Columbia Court of Appeals

concluded that the Child Abuse Prevention Act imposes "upon

certain public officials specific duties and responsibilities

which are intended to protect a narrowly defined and otherwise

helpless class of persons: abused and neglected children." Id.

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at 668. The Child Abuse Prevention Act specifies that District

officials act in certain ways to protect a special class, and

when officials breach those duties, "that statutorily protected

class suffers in a way uniquely different from the public at

large." Id.

Plaintiffs argue that the HSRA imposes certain duties and

responsibilities on the District in order to protect "disabled

individuals seeking shelter." Opp'n at 34 (citing D.C. Code § 4-

754.52 (a) (3), (b)- (d)). However, the District of Columbia Court

of Appeals has concluded that the HSRA does not create legally

enforceable obligations, but merely creates a list of standards.

See supra Sec. III.D.l. (discussing Baltimore, 10 A.3d 1141).

Therefore, the HSRA is not a statute that "prescribes mandatory

acts clearly for the protection of a particular class of persons

rather than the public as a whole." Jefferies, 917 F. Supp. 2d

at 34 (quoting Turner, 532 A.2d at 667).

The one mandatory act that is prescribed by the HSRA is to

provide shelter in severe weather. See supra Sec. III.D.2.

Plaintiffs failed to allege that they were, in fact, denied

shelter in severe weather. Id. Thus, Plaintiffs have not

sufficiently alleged that the District was required to "take a

particular action for the benefit for a particular class and

fail [ed] to do so [.]" Turner, 532 A. 2d at 672 (emphasis added) .

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Consequently, even this portion of the HSRA cannot provide the

basis for the second exception to the public duty doctrine.

3. SUilllnary

Plaintiffs have failed to sufficiently allege facts to

support its negligence claim against the District, because it

has not demonstrated that either of the exceptions to the public

duty doctrine apply.

F. Count VII: Plaintiffs Have Not Sufficiently Alleged a

Negligence Per Se Claim Against the District of

Colwnbia

Plaintiffs also allege that Defendants "were negligent per

se in failing to meet their duties and obligations under the

ADA, FHA, Rehabilitation Act, DCHRA, and HSRA." Compl. ~ 150.

However, negligence per se is not in and of itself a

separate legal claim rather, it permits a plaintiff under

"certain circumstances and under specified conditions," to "rely

on a statute or regulation as proof of the applicable standard

of care." McNeil Pharm. v. Hawkins, 686 A. 2d 567, 578 (D.C.

1996) (citation omitted) If the plaintiff can prove that the

defendant violated such a statute or regulation, it "renders the

defendant negligent as a matter of law so long as the

violation was the proximate cause of the injuries, and the

alleged injuries were of the type which the statute was designed

to prevent." Id. (internal quotations and citation omitted).

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"The decision to adopt from a statute a standard of care to

be applied in determining common law negligence" is a judicial

decision for the court to make. Id. at 579 (internal quotations

and citation omitted) . The Court must decide whether the statute

or regulation "promote [s] public safety and [was] enacted to

protect persons in the plaintiff's position or to prevent the

type of accident that occurred." Id. (internal quotation marks

and citation omitted) .

The District argues that the "gravamen of Plaintiffs'

claims is discrimination," and that the statutes they rely on

are intended to combat discrimination, not to prevent physical

harm. Mot. at 26-27. Plaintiffs identify no precedent supporting

their argument that anti-discrimination statutes such as the

ADA, the FHA, the DCHRA, and the Rehabilitation Act should be

considered statutes that "promote public safety."

Although neither party identifies cases evaluating whether

negligence per se should be applied to the FHA, the DCHRA, or

the Rehabilitation Act, cases addressing the ADA are

instructive. Multiple courts have found that the ADA is not a

public safety statute for purposes of the negligence per se

doctrine. See, e.g., McCree v. Se. Pa. Transp. Auth., No. 07-

4908, 2009 WL 166660, at *12 (E.D. Pa. Jan. 22, 2009)

(" [V] iolation of an ADA regulation may not be used as evidence

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of negligence per se in a personal injury action like this

one."); White v. NCL Am., Inc., No. 05-22030, 2006 WL 1042548,

at *5 (S.D. Fla. Mar. 8, 2006) ("Because the ADA was not

designed to protect those with disabilities from personal

injuries, Plaintiff is unable to state a claim for per se

negligence."); James v. Peter Pan Transit Mgmt., Inc., No. 97-

747, 1999 WL 735173, at *9 (E.D.N.C. Jan. 20, 1999) (concluding

that ADA was "enacted to 'provide a clear and comprehensive

national mandate for the elimination of discrimination against

individuals with disabilities,' and, thus, it was "unlikely that

the North Carolina courts would find that the ADA is a safety

statute or that violation of the ADA constitutes negligence per

se") (quoting 42 U.S.C. § 12101(b)); Dalgliesh v. Theatre Mgmt.

Grp., Inc., No. 96- 3985, 1999 WL 638127, at *1 (D.C. Super. May

28, 1999) ("Obviously, it would have been error if the court had

instructed the jury that evidence of the ADA and the applicable

C. F. R. violations constituted negligence per se, since the Act

was promulgated to prevent discrimination, not physical

injury.") .

Plaintiffs argue that accommodating the needs of disabled

individuals does have a "public safety" rationale. However, as

the court observed in White, "[w]hile protection from injury for

the disabled is no doubt a fortunate by-product of the ADA, it

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is clear that the statute was not designed with that purpose in

mind[.]" White, 2006 WL 1042548, at *5. The Court agrees and

concludes that the same rationale prevents the Rehabilitation

Act, the FHA, and the DCHRA from serving as the basis of a

negligence per se claim as well.

Plaintiffs argue that the HSRA subsection mandating that

the District provide shelter during severe weather is a "public

safety" statute. They may be correct, but, as discussed above,

see supra Sec. III.D.2, Plaintiffs failed to plead a claim under

that subsection. Moreover, in order to adopt a particular

standard of care, the statute must be "enacted to . prevent

the type of accident that occurred[.]" Sibert-Dean v. Washington

Metro. Area Transit Auth., 721 F.3d 699, 702-03 (D.C. Cir. 2013)

(quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 557

(D.C. Cir. 1993)). The relevant subsection of the HSRA is

directed at protecting individuals from exposure to severe

weather. There is no allegation that the injuries suffered by

the Hunters occurred because they were exposed to severe

weather. Therefore, even if that section of the HSRA "promotes

public safety," it still does not support a negligence per se

claim in this case.

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In sum, Plaintiffs have failed to identify a statute that

supports its negligence per se claim against the District, and

this claim must be dismissed.

IV. CONCLUSION

For the foregoing reasons, the District's Motion to Dismiss

shall be granted in part as to Counts V, VI, and VII, the

portion of Count II brought under 42 U.S.C. § 3604 (f) (1), and

the portion of Count IV brought under D.C. Code § 2-

1402.21 (d) ( 1) , and denied in part as to all other arguments;

Defendant COR's Motion to Dismiss shall be granted in part as to

Count V, the portion of Count II brought under 42 U.S.C. §

3604(f) (1), and the portion of Count IV brought under D.C. Code

§ 2-1402.21(d) (1), and denied in part as to all other arguments.

August 18, 2014 Gff:iaer I~

United States District Judge

Copies to: attorneys on record via ECF

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