Hardaway v. District of Columbia Housing Authority

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2016 Decided December 16, 2016

No. 14-7144

ANGELENE HARDAWAY AND LENA HARDAWAY,

APPELLANTS

v.

DISTRICT OF COLUMBIA HOUSING AUTHORITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-cv-01232)

Dina B. Mishra, appointed by the court, argued the cause

as amicus curiae in support of appellants. With her on the

briefs were Steven H. Goldblatt, appointed by the court, and

Sarah McDonough, Student Counsel.

Lena Hardaway and Angelene Hardaway, pro se, filed

the briefs for appellants.

Alex M. Chintella argued the cause for appellee. With

him on the brief were Frederick A. Douglas and Curtis A.

Boykin. Nicola Grey and Mashanda Y. Mosley entered

appearances.

Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.

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Opinion for the Court filed by Circuit Judge TATEL.

Opinion concurring in part filed by Circuit Judge

ROGERS.

TATEL, Circuit Judge: Appellants Angelene and Lena

Hardaway (“the Hardaways”) challenge the District of

Columbia Housing Authority’s (“the Authority”) denial of

approval for a live-in aide to care for Angelene. That denial,

they argue, violates provisions of the Americans with

Disabilities Act, 42 U.S.C. § 12132, Rehabilitation Act, 29

U.S.C. § 794, and Fair Housing Act, 42 U.S.C. § 3604(f)(1).

The district court dismissed the case on standing and

mootness grounds and, in the alternative, granted summary

judgment. Because these rulings were erroneous, we reverse.

And because the district court abused its discretion in

summarily denying the Hardaways’ motion to seal certain

medical records, we reverse that decision as well.

I.

Because this case arises from the district court’s grant of

a motion to dismiss and, in the alternative, summary

judgment, we take the factual allegations contained in the

complaint as true and draw all reasonable inferences in the

Hardaways’ favor. See Information Handling Services, Inc. v.

Defense Automated Printing Services, 338 F.3d 1024, 1029,

1032 (D.C. Cir. 2003). Moreover, we construe those

allegations liberally given that the Hardaways filed their

complaint pro se. See, e.g., Erickson v. Pardus, 551 U.S. 89,

94 (2007).

Under the Department of Housing and Urban

Development’s (HUD) Housing Choice Voucher Program

(“the program”), eligible families receive government

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subsidies to pay for “decent, safe, and sanitary housing.” 24

C.F.R. § 982.1(a)(1); see also 42 U.S.C. § 1437f (authorizing

HUD to administer the program). State or local government

entities called public housing agencies administer the program

using funds HUD provides. 24 C.F.R. § 982.1(a)(1). Once a

public housing agency selects a family to participate in the

program, it issues that family a voucher based on the family’s

size. Id. § 982.402(a). A family of one, for instance, normally

receives a one-bedroom voucher. The program then works in

a three-step process: First, the family “select[s] and rent[s] [a]

unit that meet[s] program housing quality standards”; second,

the public housing agency approves the unit and tenancy; and

third, the public housing agency contracts with the unit’s

owner to make rent subsidy payments on the family’s behalf.

Id. § 982.1(a)(2).

In March 2013, the Montgomery County, Maryland

Housing Opportunities Commission (“the Commission”)

selected Angelene Hardaway to participate in the program.

Based on a medical form provided by Angelene’s doctor, the

Commission determined that Angelene has a disability and

requires a live-in aide to care for her. Because HUD

regulations mandate that “[a]ny live-in aide (approved by the

[public housing agency] to reside in the unit to care for a

family member who is disabled . . .) must be counted in

determining the family unit size,” the Commission issued

Angelene a two-bedroom voucher, rather than a one-bedroom

voucher. Id. § 982.402(b)(6). Lena Hardaway, Angelene’s

sister, served as Angelene’s live-in aide.

Two months after being selected for the program,

Angelene decided to move to the District of Columbia.

Federal law requires that program vouchers be portable: once

a family secures voucher assistance in one jurisdiction, it has

a right to receive such assistance if it moves to another. See

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42 U.S.C. § 1437f(r)(1); 24 C.F.R. § 982.353(b). Relying on

this guarantee, Angelene obtained a two-bedroom voucher

from the Authority on June 6, 2013, and Angelene and Lena

moved into a two-bedroom apartment in the District three

weeks later.

The Hardaways were soon met with disturbing news. On

July 9, they received a letter from the Authority revoking

Angelene’s right to a live-in aide and, in turn, her legal

entitlement to a two-bedroom voucher. Two days later, the

Hardaways filed a complaint in district court seeking both

damages and injunctive relief. In the complaint, they alleged

that the Authority’s denial of Angelene’s request for a

reasonable accommodation of her disability violated

provisions of the Americans with Disabilities Act, 42 U.S.C.

§ 12132, Rehabilitation Act, 29 U.S.C. § 794, and Fair

Housing Act, 42 U.S.C. § 3604(f)(1). The Hardaways also

sought a temporary restraining order and moved to seal their

complaint, all medical records, and all “nondispositive

materials.” Hardaway v. DCHA, No. 13-1232, ECF No. 8, at

1 (D.D.C. Aug. 29, 2013). The district court denied both

motions. See Hardaway, No. 13-1232, ECF No. 5 (D.D.C.

Aug. 9, 2013) (denying temporary restraining order);

Hardaway, No. 13-1232, ECF No. 10 (D.D.C. Sept. 5, 2013)

(denying motion to seal).

On September 26, while the Hardaways’ case was

pending, the Authority sent another letter reaffirming that

Angelene’s “request for a live-in aide has been denied” on the

ground that “there was no documentation submitted with [her]

request to support [her] need for a reasonable

accommodation.” At the same time, however, the letter stated

that “this determination will not reverse the decision of the

[program] to provide [Angelene] with a two (2) bedroom

voucher.”

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Shortly after sending this letter, the Authority moved to

dismiss or for summary judgment, asserting that the

Hardaways’ complaint failed to state a claim for which relief

could be granted and that their claims were moot. The district

court granted the Authority’s motion, holding on its own

accord that the Hardaways lacked standing because they had

alleged no injury in fact. “Nothing in plaintiffs’ Complaint,”

the court reasoned, “indicates that the [Authority] denied

[them] access to or participation in the [program] because of

Angelene’s disability.” Hardaway, No. 13-1232, ECF No. 18,

slip op. at 4 (D.D.C. July 30, 2014). And because, in the

court’s view, the Authority’s September 26 letter showed that

it had “acquiesced to plaintiffs’ desired living arrangement,”

the court determined that the Hardaways had suffered no

cognizable harm. Id. at 5. For that reason, too, it concluded

that their claims were moot. Id. n.3. The court dismissed the

case with prejudice, and the Hardaways appealed. In

considering the issues before us, we have been ably assisted

by a court-appointed amicus.

II.

We review dismissals for lack of Article III jurisdiction

de novo. See LaRoque v. Holder, 650 F.3d 777, 785 (D.C.

Cir. 2011) (standing); Schmidt v. United States, 749 F.3d

1064, 1068 (D.C. Cir. 2014) (mootness). We begin with

standing and then turn to mootness.

A.

Article III standing requires, among other things, an

injury in fact, which is “‘an invasion of a legally protected

interest’ that is ‘concrete and particularized’ and ‘actual or

imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.

Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan v.

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Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As the

Supreme Court has emphasized, when the plaintiff is herself

“an object of [government] action[,] . . . there is ordinarily

little question that the action . . . has caused [her] injury.”

Lujan, 504 U.S. at 561–562. Indeed, this court has explained

that standing is “self-evident” when the plaintiff is herself

“the object of the challenged agency action.” Fund for

Animals v. Norton, 322 F.3d 728, 734 (D.C. Cir. 2003).

Critically for this case, the standing inquiry focuses on

whether the plaintiff has demonstrated an injury “at the outset

of the litigation.” Friends of the Earth, Inc. v. Laidlaw

Environmental Services (TOC), 528 U.S. 167, 180 (2000); see

also Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C.

Cir. 2012) (“[S]tanding is assessed at the time of filing . . . .”).

Applying these principles, we think it obvious that

Angelene has demonstrated injury in fact. The Hardaways’

complaint alleges that Angelene received a July 9 letter from

the Authority denying her “request for reasonable

accommodation.” Construed liberally, the complaint clearly

refers to a rescission of Angelene’s live-in aide approval. By

revoking that approval, the Authority extinguished

Angelene’s legal entitlement to a two-bedroom voucher

because only approved live-in aides may count toward family-

unit size. See 24 C.F.R. § 982.551(h)(2) (“No other person

[i.e., nobody but members of the assisted family] may reside

in the unit (except for a . . . live-in aide . . . .).”); id. §

982.551(h)(4) (“If the [public housing agency] has given

approval, . . . a live-in aide may reside in the unit.”). As a

result, Angelene instantly became vulnerable to losing both

her round-the-clock care and her home. The Hardaways filed

their complaint two days after receiving the letter.

At the outset of the litigation, then, the Authority had just

stripped Angelene of a government benefit to which she

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claimed a legal entitlement. Because Angelene was thus the

“object” of government action, there should have been “little

question” that she suffered cognizable injury. See Lujan, 504

U.S. at 561. Said otherwise, by rescinding Angelene’s

claimed statutory entitlement to a live-in aide and two-

bedroom voucher, the Authority’s July 9 letter “inva[ded] . . .

a legally protected interest,” and that invasion was “concrete

and particularized” because it denied her care and could well

have led to her eviction. See Spokeo, 136 S. Ct. at 1548

(quoting Lujan, 504 U.S. at 560); see also Yesler Terrace

Community Council v. Cisneros, 37 F.3d 442, 446 (9th Cir.

1994) (threatened eviction is concrete and particularized

harm). This analysis shows why plaintiffs have long been

empowered to challenge the rescission of government benefits

in federal court. See, e.g., Mathews v. Eldridge, 424 U.S. 319

(1976); Goldberg v. Kelly, 397 U.S. 254 (1970); see also

Americans for Safe Access v. DEA, 706 F.3d 438, 445–46

(D.C. Cir. 2013) (holding that injury in fact was “clearly

establish[ed]” where a veteran challenged a Veterans

Administration policy denying him a benefit to which he

claimed an entitlement).

The district court confused standing and mootness. In

granting the Authority’s motion, the district court relied on

the Authority’s September 26 letter reaffirming the live-in

aide denial but “acquiesc[ing]” to Angelene’s retention of a

two-bedroom voucher. Hardaway, No. 13-1232, ECF No. 18,

slip op. at 5. But, as noted earlier, the standing inquiry trains

attention on whether a plaintiff has alleged cognizable injury

“at the outset of the litigation.” Friends of the Earth, 528 U.S.

at 180. The mootness inquiry, by contrast, asks whether

events subsequent to the filing of the complaint “have so

transpired that the decision will neither presently affect the

parties’ rights nor have a more-than-speculative chance of

affecting them in the future.” American Bar Association v.

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FTC, 636 F.3d 641, 645 (D.C. Cir. 2011). Because the

Authority sent the September 26 letter after the Hardaways

filed their complaint, it should have played no role

whatsoever in the district court’s standing analysis. That

analysis should have turned exclusively on the July 9 letter, in

which the Authority rescinded Angelene’s live-in aide

approval.

The Authority argues that even if we focus on the time of

filing, the Hardaways’ complaint alleges no injury. Yet, as we

have explained, when construed liberally, the complaint

alleges a rescission of Angelene’s live-in aide approval

through its reference to the Authority’s “denial of participant

request for reasonable accommodation.” And without such

approval, Angelene lacked a legal entitlement to a two-

bedroom voucher. At the pleading stage, a plaintiff’s general

allegation that the government has denied or revoked a benefit

suffices to show injury in fact.

With injury in fact established, the other two

requirements for standing—causation and redressability, see

Lujan, 504 U.S. at 560–61—flow easily: Angelene’s loss of a

statutory entitlement traces directly to the Authority’s July 9

letter and would be redressed were we to direct the Authority

to officially approve her live-in aide request. Because we

conclude that Angelene has standing to bring this action, we

need not reach amicus’s alternative contention that Lena has

standing to sue under the Fair Housing Act. See Mountain

States Legal Foundation v. Glickman, 92 F.3d 1228, 1232

(D.C. Cir. 1996) (“For each claim, if . . . standing can be

shown for at least one plaintiff, we need not consider the

standing of the other plaintiffs to raise that claim.”).

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B.

Having determined that Angelene had standing at the

time of filing, we turn to the question of mootness. As

explained already, whereas standing is measured by the

plaintiff’s “concrete stake” at the outset of the litigation,

mootness depends on whether the parties maintain “a

continuing interest” in the litigation today. See Laidlaw, 528

U.S. at 191–92. Pointing to the Authority’s September 26

letter—which stated that it would “not reverse the decision of

the [program] to provide [Angelene] with a two (2) bedroom

voucher”—the district court saw no such continuing interest.

Again, we disagree.

Although the Authority’s September 26 letter refrained

from revoking Angelene’s two-bedroom voucher, it expressly

reaffirmed the denial of her live-in aide request. As a result,

Angelene is legally entitled to only a one-bedroom voucher.

The Authority’s permission for Angelene to keep a two-

bedroom voucher thus amounts to an act of administrative

grace, and it retains authority to revoke that voucher at any

time. Indeed, as amicus points out, by permitting Angelene to

keep a two-bedroom voucher after denying her live-in aide

request (and without granting an official exception based on

Angelene’s handicap, see 24 C.F.R. § 982.402(b)(8)), the

Authority appears to be violating HUD regulations, which

allow only approved live-in aides to reside with an assisted

family, see id. § 982.551(h)(2) (“No other person [i.e. nobody

but members of the assisted family] may reside in the unit

(except for a . . . live-in aide . . . .).”); id. § 982.551(h)(4) (“If

the [public housing agency] has given approval, a . . . live-in

aide may reside in the unit.”). Angelene therefore continues to

suffer the same injury that she sustained at the outset of the

litigation: denial of a legal entitlement to a two-bedroom

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voucher, which renders her perpetually vulnerable to having

that voucher revoked. Consequently, her claims are not moot.

Even if the Authority could lawfully allow Angelene to

retain the two-bedroom voucher and assured us that it would

not withdraw that accommodation in the future, Angelene’s

claim would still present a live controversy. For a case to be

rendered moot through the defendant’s voluntary cessation of

a challenged practice, it must be “absolutely clear that the

allegedly wrongful behavior could not reasonably be expected

to recur.” Laidlaw, 528 U.S. at 189 (quoting United States v.

Concentrated Phosphate Export Association, 393 U.S. 199,

203 (1968)). “The heavy burden of persuading the court that

the challenged conduct cannot reasonably be expected to start

up again lies with the party asserting mootness.” Id.

Here, the Authority has failed to provide any evidence

that it will refrain from revoking Angelene’s two-bedroom

voucher in the future. Instead, attempting to foist its burden

onto the Hardaways, it argues that they have offered no

evidence to prove that the Authority will rescind the voucher.

Appellee’s Br. 19. This tactic ignores the Supreme Court’s

command that “the party asserting mootness” must carry the

“heavy burden” of proving mootness through cessation.

Laidlaw, 528 U.S. at 189. At bottom, the Authority’s

argument amounts to a meager “promise not to” revoke the

voucher. See Kifafi v. Hilton Hotels Retirement Plan, 701

F.3d 718, 725 (D.C. Cir. 2012). Unfortunately for the

Authority, courts never permit parties to deprive them of

jurisdiction through a mere “wave of [the] hand.” Id. at 724.

III.

This brings us, finally, to amicus’s argument that the

district court erred in denying the Hardaways’ motion to seal

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their complaint, all medical records, and all non-dispositive

materials. We review that denial for abuse of discretion.

EEOC v. National Children’s Center, Inc., 98 F.3d 1406,

1409 (D.C. Cir. 1996).

“The starting point in considering a motion to seal court

records is a strong presumption in favor of public access to

judicial proceedings.” Id. That said, in United States v.

Hubbard, 650 F.2d 293 (D.C. Cir. 1980), we set forth six

factors “that might act to overcome this presumption”:

(1) the need for public access to the documents at

issue; (2) the extent of previous public access to the

documents; (3) the fact that someone has objected to

disclosure, and the identity of that person; (4) the

strength of any property and privacy interests

asserted; (5) the possibility of prejudice to those

opposing disclosure; and (6) the purposes for which

the documents were introduced during the judicial

proceedings.

National Children’s Center, 98 F.3d at 1409 (citing Hubbard,

650 F.2d at 317–22).

In this case, the district court offered scarce explanation

for its denial of the Hardaways’ motion. It failed to consider

the Hubbard factors, simply stating that: “The disability is a

critical fact that must be alleged and proved in order for

plaintiffs to prevail. It alone is not information so sensitive

that all pleadings, discovery materials, and non-dispositive

motions must be filed under seal.” Hardaway, No. 13-1232,

ECF No. 10, slip op. at 2. The court also incorrectly assumed

that “none of the documents filed in this action is a medical

record,” id. n.1, when in fact a form containing a doctor’s

description of Angelene’s disability had been docketed, see

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Hardaway, No. 13-1232, ECF No. 1 (D.D.C. Aug. 9, 2013).

By failing to weigh the six relevant factors and

mischaracterizing the record, the district court abused its

discretion. See National Children’s Center, 98 F.3d at 1410

(“Without a full explanation, we are unable to review the

district court’s exercise of its discretion.”).

Because we are remanding to the district court, we could

instruct it to consider the Hubbard factors and decide whether

to seal the relevant documents. But given the clarity of the

issue, we think it best to weigh the factors ourselves. The

public has no need for access to documents that describe

Angelene’s disability; Angelene, the plaintiff, has objected to

their disclosure; and she possesses a strong privacy interest in

keeping the details of her disability confidential. For its part,

the Authority conceded at oral argument that it has no

objection to sealing or redacting Angelene’s medical

documents. Oral Arg. Rec. 34:33–39. As a result, the single

medical form currently in the record, and all future medical

records describing Angelene’s disability, must be sealed. In

addition, descriptions of Angelene’s disability contained in

any filing—including appellate briefs and appendices—

should be or remain redacted. Contrary to the concurrence’s

suggestion, nothing in this opinion limits the district court’s

discretion in determining whether to seal current or future

documents unrelated to Angelene’s disability.

IV.

For the foregoing reasons, we reverse the district court’s

grant of the Authority’s motion to dismiss or for summary

judgment, as well as its denial of the Hardaways’ motion to

seal as it pertains to medical records and descriptions of

Angelene’s disability. We also grant, in part, amicus’s

motion to seal appellate briefs and appendices: all

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descriptions of Angelene’s disability should be or remain

redacted. We remand for further proceedings consistent with

this opinion.

So ordered.

ROGERS, Circuit Judge, concurring in part. I join the

court’s opinion save in two respects.

First, I concur in holding that appellant Angelene Hardaway

has standing under Article III of the Constitution, and that

appellants’ claims arising out of denials of requests for

accommodation under the Housing Choice Voucher Program –

a federally funded program administered locally by the D.C.

Housing Authority, see 42 U.S.C. § 1437f(b)(1) – are not moot.

Due to her disability, Angelene had received approval in

February 2013 from Montgomery County, Maryland for her

sister Lena to serve as her live-in aide, entitling Angelene to a

two-bedroom housing voucher. When she subsequently moved

to the District of Columbia, she was issued a two-bedroom

voucher by the D.C. Housing Authority pursuant to the voucher

program’s portability requirements. See id. § 1437f(r)(1); 24

C.F.R. §§ 982.353(b), 982.355. A month later, however, the

Authority, by letter of July 9, 2013, denied Angelene’s request

for a live-in aide. See Compl. ¶ 13. That letter provided

grounds to find that rescission of live-in aide approval

jeopardized Angelene’s entitlement to a two-bedroom apartment

under the voucher program. See 28 C.F.R. § 982.402(b)(7).

This was sufficient to establish the requisite injury-in-fact under

Article III, and Angelene otherwise meets the causation and

redressibility requirements. See Lujan v. Defenders of Wildlife,

504 U.S. 555, 560–61(1992).

The Authority’s September 26, 2013, letter, which affirmed

the denial of a live-in aide but did not rescind the two-bedroom

voucher, did not moot appellants’ claims. See Already, LLC v.

Nike, Inc., 133 S. Ct. 721, 726-27 (2013). That letter did not cite

authority under which Angelene remained entitled to a two-

bedroom unit once the Authority had disapproved her live-in

aide. Neither did it indicate that Lena Hardaway qualified as a

family member under 24 C.F.R. § 982.551(h)(2). Nor did it

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otherwise establish that Angelene’s legal entitlement to a two-

bedroom apartment was unaffected by the live-in-aide denial.

It thus appears that the Authority’s September 26 letter amounts

to nothing more than “an act of administrative grace.” Op. at 9.

Because it is unnecessary, at this stage of the proceedings,

for the court to decide more, and the matter has not been fully

briefed, however, I would defer opining on whether appellants

faced eviction or whether the Authority could lawfully acquiesce

to appellants remaining in the two-bedroom apartment.

Second, I concur in holding that the district court abused its

discretion in denying appellants’ motion to seal because it failed

to apply the factors in United States v. Hubbard, 650 F.2d 293,

317-22 (D.C. Cir. 1980), and erred in finding no medical record

had been filed, see Order at 2 n.1 (Sept. 5, 2013). Appellants

moved to seal in part because public disclosure of Angelene’s

medical records relating to her disability could adversely affect

her employment prospects. Mot. to Seal at 2. In the district

court, the Authority did not dispute her assertion about adverse

impact on her employment prospects, and on appeal expressed

no objection to such sealing, Oral Arg Rec. 34:33–39.

Regardless, notwithstanding the strong presumption that the

public shall have access to judicial proceedings, see Nixon v.

Warner Commc’ns, Inc., 435 U.S. 589, 597-98 (1978);

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573

(1980), I concur in holding that Angelene’s medical records

relating directly to her disability that are currently in the record

on appeal, and the redacted portions of the joint appendix on

appeal, appellee’s brief, and the opening brief filed on her behalf

by amicus, should be sealed.

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As regards additional sealing, the court has decided to opine

regarding certain documents that may be presented in future

proceedings. Op. at 12. I would leave that question to the

district court to decide, in the first instance, upon applying the

Hubbard factors, and taking into account appellants’ pro se

status. See Order at 2 n.1 (Sept. 5, 2013). It is not

inconceivable that future distinctions may be appropriately

drawn, even as to types of medical records.