Petition for Writ of Certiorari — Gabriel N. Schwartz, Petitioner v. Beauvallon Condominium Association, Inc.

Supreme Court briefAug 22, 2024

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No. 24-

FILED

AUG 2 2 2024

3Jn tJje

Supreme Court of tfje GUntteb States

OFFICE OF THE CLERK

RIIPREME COURT. U.S.

GABRIEL N. SCHWARTZ, ESQ.,

Petitioner,

BEAUVALLON CONDOMINIUM ASSOCIATION, INC,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Colorado

PETITION FOR A WRIT OF CERTIORARI

Gabriel N. Schwartz, Esq.

Petitioner Pro Se

755 Grand Blvd. Suite B-105, #125

Miramar Beach, FL 32550

(212) 671-0448

gns2000@msn.com

August 22, 2024

SUPREME COURT PRESS

(888) 958-5705

Boston, Massachusetts

QUESTIONS PRESENTED

1. For purposes of receiving a reasonable accom

modation and/or an exemption, from a homeowners

association (HOA) mask mandate, may the HOA

require voluminous and intrusive disclosure of a

homeowner’s private/confidential medical records,

diagnosis, prognosis, treatment, take the deposition of

his medical doctor, all of which is well beyond what is

prescribed in the HOA’s mask rule, that of the

Executive Order of the Governor of the State of

Colorado, the requirements and safeguards provided

and afforded under the Fair Housing Act 42 U.S.C.

§ 3604 (FHA) together with the Joint Statement of the

Department of Housing and Urban Development and

the Department of Justice Reasonable Accommodations

under the Fair Housing Act?

2. Further, in the case at bar, the HOA’s affirm

ative claims were mooted by the trial court, should the

compulsory counterclaims also be mooted and dis

missed with the judgment vacated? Similar to the

issues in 23-621 Lackey v. Stinnie Whether a party

must obtain an enduring change in the parties’ legal

relationship from a judicial act, as opposed to a non

judicial event that moots the case, to prevail under 42

U.S.C. § 1988.

3. In the alternative, since Mr. Schwartz prevailed

upon all claims brought by the HOA affirmatively

against him, is he entitled to his reasonable attorney

fees and costs per the HOA’s Declarations, Colorado

Common Interest Ownership Act C.R.S. § 38-33.3-123,

and the Fair Housing Act 42 U.S. Code § 3613(l)(c)(2)

regardless of the outcome of his counterclaims? Also,

similar to the issues presented in 23-621 Lackey v.

Stinnie Mr. Schwartz is entitled to his reasonable

attorney fees and costs.

Ill

LIST OF PROCEEDINGS

Colorado Supreme Court

No. 2023SC960

Gabriel N. Schwartz, Esq., Petitioner v. Beauvallon

Condominium Association, Inc., Respondent.

Date of Final Opinion: May 28, 2024

Colorado Court of Appeals

No. 22CA1474

Beauvallon Condominium Association, Inc. PlaintiffAppelee, v. Gabriel N. Schwartz Defendant-Appellant.

Date of Final Order: April 11, 2024

Denver District Court

No. 2020CV553

Beauvallon Condominium Association, Inc. Plaintiff,

v. Gabriel N. Schwartz, Esq, Defendant.

Date of Final Order: July 15, 2022

County Court, City and County of Denver

No. 20C00851

Beauvallon Condominium Association, Inc. Plaintiff,,

v. Gabriel N. Schwartz, Esq., Defendant.

Date of Final Order: November 16, 2020

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED.................................

LIST OF PROCEEDINGS....................................

TABLE OF AUTHORITIES.................................

Vlll

PETITION FOR A WRIT OF CERTIORARI......

OPINIONS BELOW.............................................

JURISDICTION....................................................

CONSTITUTIONAL PROVISIONS INVOLVED..... 2

STATEMENT OF THE CASE

A. Summary of Law...........................................

B. Background of the Case................................

REASONS FOR GRANTING THE PETITION.....

There Is a Conflict Amongst the Circuits as to

Mask and Vaccine Mandates........................

II. This Court Has Already Deemed This Issue

Important Enough to Grant Certiorari....... 11

III. The FHA and the Joint Statement Does

Not Give Homeowner Associations the

Authority to Mandate Disclosure of

Voluminous and Intrusive Medical Records

and Require Deposition of a Party’s

Personal Medical Doctor to Receive an

Exemption or Reasonable Accommodation

from a Mask Mandate................................... 12

TABLE OF CONTENTS - Continued

Page

IV. Mr. Schwartz Prevailed Upon Every

Affirmative Claim Brought by the HOA and

Is Entitled to His Reasonable Attorney

Fees and Costs Pursuant to the HOA

Declaration, Colorado Common Interest

Ownership Act (CCIOA) C.R.S § 38-33.3-123

and the Fair Housing Act (FHA) 42 U.S.C.

§ 3613 (l)(c)(2)............................................... 26

V. Alternatively, If the HOA’s Claims Were

Truly Moot Then the Compulsory Counter

claims Should Also Be Mooted and the

Standard Dismissal and Vacation of Judgment

Should Apply to This Matter......................... 34

CONCLUSION.......................................................... 36

TABLE OF CONTENTS - Continued

Page

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Order Denying Review,

Supreme Court of Colorado (May 28, 2024)..... la

Opinion, Court of Appeals of the

State of Colorado (April 11, 2024).................... 2a

District Court, City and County ofDenver, Colorado

No. 2020CVS53

Omnibus Order, District Court,

City and County of Denver, Colorado

(July 15, 2022).............................................

15a

Amended Judgment, District Court,

City and County of Denver, Colorado

(April 5, 2022)..............................................

37a

Order Regarding Pending Motions,

District Court, Denver County, Colorado

(August 5, 2021)..........................................

40a

Minute Order and Order to File Attorney Fees

(December 15, 2020)....................................

44a

County Court, City and County ofDenver, Colorado

No. 20C00851

Order Granting Motion for Temporary

Restraining Order (November 16, 2020)........ 46a

Vll

TABLE OF CONTENTS - Continued

Page

Other Documents

Transcript of Proceedings, Relevant Excerpts

(December 15, 2020)........................................ 52a

Interview of Anthony S. Fauci (Day 2), Redacted

in the Public Record, Relevant Excerpts

(January 9, 2024)............................................. 71a

TABLE OF AUTHORITIES

Page

CASES

Al Najjar v. Ashcroft,

273 F.3d 1340 (11th Cir. 2001).........

Alabama Association of Realtors, et al.

v. Department of Health and Human

Services, et al, 594 U.S. 758 (2021)...

5, 12

Al-Maleki v. Holder,

558 F.3d 1200 (10th Cir.2009)..........

Arizona v. Mayorkas,

143 S.Ct. 1312,

216 L.Ed.2d 452 (2023)......................

26, 34, 35

Arnal v. Aspen View Condo. Ass’n, Inc.,

226 F.Supp.3d 1177 (D. Colo. 2016)..

Bell v. Bd. of Cnty. Comm’rs,

451 F.3d 1097 (10th Cir.2006)..........

Bhogaita v. Altamonte Heights Condo. Ass’n,

Inc., 765 F.3d 1277 (11th Cir. 2014).........

Bragdon v. Abbott,

524 U.S. 624 (1998)........... ........................

Brock v. Weidner,

93 P.3d 576 (Colo. App. 2004)....... ............

Buckhannon Board & Care Home, Inc. v. West

Virginia Department of Health and

Human Resources, 532 U.S. 598 (2001).... 28, 29

Calvary Chapel Dayton Valley v. Sisolak,

140 S.Ct. 2603 (2020).................................

Commonwealth of Kentucky, et al. v. Joseph R.

Biden, et al., 23 F.4th 585 (6th Cir. 2022).

TABLE OF AUTHORITIES - Continued

Page

Corbett v. Transportation Security

Administration et al., 19 F.4th 478

(D.C. Cir. 2021)................................

Denver Bible Church v. Azar,

No. l:20-cv-02362-DDD-NRN,

494 F.Supp.3d 816 (D. Colo. 2020).

20, 25, 26

Diffenderfer v. Gomez-Colon,

587 F.3d 445 (1st Cir. 2009)...........

Duke Power Co. v. Greenwood Cty.,

299 U.S. 259, 57 S.Ct. 202,

81 L.Ed. 178 (1936).........................

E. T. et al. v. Kenneth Paxton,

19 F.4th 760 (5th Cir. 2021)...........

5, 9

Flanigan’s Enters., Inc. of Ga v. City of Sandy

Springs, 868 F.3d 1248 (11th Cir. 2017)..

FSDW, LLC v. First Nat’l Bank,

94 P.3d 1260 (Colo. App. 2004)......... ....... 32, 33

Groome Res. Ltd., L.L.C. v. Par. Of Jefferson,

234 F.3d 192 (5th Cir. 2000)............... .....

Hamdi v. Rumsfeld,

542 U.S. 507, 124 S.Ct. 2633,

159 L.Ed.2d 578 (2004).............................

Hawn v. Shoreline Towers Phase 1

Condominium Association, Inc.,

347 Fed.Appx. 464 (11th Cir.2009)...........

Health Freedom Defense Fund v. President of

the United States, et al., 71 F.4th 888

(11th Cir. 2023)

5, 34, 35

TABLE OF AUTHORITIES - Continued

Page

Hensley v. Eckerhart,

461 U.S. 431 (1983)..................................

Hewitt v. Helms,

482 U.S. 755 (1987)..................................

27, 28

High Plains Harvest Church v. Polis,

592 U. S. 141 S.Ct. 527, 208 L.Ed.2d 503

(2020).........................................................

In re Ghandtchi,

705 F.2d 1315 (11th Cir. 1983)................

Kansas Judicial Watch v. Stout,

653 F.3d 1230 (10th Cir. 2011). 27, 28, 29, 30, 31

Klaassen, et al. v. Trustees of Indiana

University, 24 F.4th 638 (7th Cir. 2022)...

Lackey v. Stinnie,

Sup. Ct. No. 23-621, set for argument July

26, 2024....................................................... i, 5, 11

League of Women Voters of Fla. Inc. v. Fla.

Sec’y of State, 66 F.4th 905 (11th Cir.

2023)............................................................

Lewis v. Cont’l Bank Corp.,

494 U.S. 472, 110 S.Ct. 1249,

108 L.Ed.2d 400 (1990)............... ...............

Lorillard Tobacco Co. v. Engida,

611 F.3d 1209 (10th Cir.2010)...................

McQueary v. Conway,

614 F.3d 591 (6th Cir. 2010).......................

National Federation of Independent Business,

et al. v. Department of Labor, et al.,

595 U.S. 109 (2022)..................................... 5, 12

TABLE OF AUTHORITIES - Continued

Page

Overlook Mutual Homes, Inc. v. Spencer,

415 Fed.Appx. 617 (6th Cir.2011)....

4, 16, 19

Powers v. Prof lRodeo Cowboys,

832 P.2d 1099 (Colo. App. 1992).....

32, 33

Robinson v. Att’y Gen.,

957 F.3d 1171 (11th Cir. 2020)........

Roman Catholic Diocese of Brooklyn v. Cuomo,

592 U.S.__ , 141 S.Ct. 68 (2020)..............

Sabal Palm Condos of Pine Island

Ridge Ass’n, Inc. v. Fisher,

6 F.Supp.3d 1272 (S.D. Fla. 2014).... 4, 17, 18, 19

Shrimpers & Fishermen of RGV v. Tex.

Comm’n on Env’t Quality, 968 F.3d 419

(5th Cir. 2020).........................................

South Bay United Pentecostal Church

v. Newsom, 592 U.S.__ , 141 S.Ct. 720,

___L.Ed.2d___ (2021)...............................

Spokeo, Inc. v. Robins,

578 U.S. 340, 136 S.Ct. 1540 (2016)......

Tandon v. Newson,

141 S.Ct. 1294 (2021).............................. 6, 12, 33

Texas State Teachers Ass’n v. Garland

Independent School District (TSTA), 489

U.S. 782, 109 S.Ct. 1486,

103 L.Ed.2d 866 (1989)............................

28, 30

The Arc of Iowa et al. v. Kimberly Reynolds,

et al., 33 F.4th 1042 (8th Cir. 2022)........

Xll

TABLE OF AUTHORITIES - Continued

Page

Trump v. Hawaii,

__ U.S.___ , 138 S.Ct. 2392,

201 L.Ed.2d 775 (2018)............

United States v. Munsingwear, Inc.,

340 U.S. 36, 71 S.Ct. 104,

95 L.Ed. 36 (1950)....................

Watson v. County of Riverside,

300 F.3d 1092 (9th Cir. 2002)...

CONSTITUTIONAL PROVISIONS

U.S. Const, amend. IX.........................

2, 6, 26

U.S. Const, amend. XIV, § 1...............

2, 6, 26

STATUTES

28 U.S.C. § 1257(a)...............

42 U.S.C. § 1988.....................

i, 27, 29

42 U.S.C. § 3604,

Fair Housing Act (FHA),

i, 4, 7, 16, 19, 20, 31

42 U.S.C. § 3604(f)(3)(B).......

.......... 16, 17, 18, 19

42 U.S.C. § 3613(l)(c)(2),

Fair Housing Act (FHA).

i, 26

42 U.S.C. § 3613(c)(2)...... .

42 U.S.C. § 12205,

Americans with Disabilities Act of 1990

C.R.S. § 38-33.3-123,

Common Interest Ownership Act

(CCIOA),

i, 7, 8, 20, 26

Xlll

TABLE OF AUTHORITIES - Continued

Page

JUDICIAL RULES

Colo. R. Civ. P. 41....

Colo. R. Civ. P. 41(a)

Sup. Ct. R. 13.1.......

EXECUTIVE ORDERS

Colorado Governor Executive Order D 2020

138 Order Dated July 16, 2020.............

3, 22

OTHER AUTHORITIES

Black’s Law Dictionary 479 (9th ed. 2009)

HUD and DOJ,

Joint Statement on Reasonable

Accommodations under the Fair Housing

Act

i, 4, 7, 12, 13, 15, 19

Random House Dictionary Of The English

Language 305 (1967)...............................

Webster’s Third New International

Dictionary 472 (1971).............................

PETITION FOR A WRIT OF CERTIORARI

Gabriel N. Schwartz, Esq. pro se respectfully

petitions this Court for a writ of certiorari to review

the judgment of the Colorado Supreme Court.

OPINIONS BELOW

The Colorado Supreme Court’s Order denying

certiorari in Gabriel N. Schwartz, Esq. v. Beauvallon

Condominium Association, Inc. is included in the

Appendix (“App.”) at App.la. The Colorado Court of

Appeals affirming the judgment of the District Court

City and County of Denver in Gabriel N. Schwartz,

Esq. v. Beauvallon Condominium Association, Inc. is

included in the at App.2a. The District Court City

and County of Denver Orders in Case No. 2020CV553

are included at App.l5a, App.37a, App.40a. The Order

of the County Court City and County of Denver Order

in Case No. 2020C851, granting a temporary restrain

ing order is included at App.46a.

These opinions were not designated for publication.

JURISDICTION

The Colorado Supreme Court denied certiorari on

May 28, 2024. App.la. Petitioner invokes this Court’s

jurisdiction pursuant to 28 U.S.C. § 1257(a) and files

within the time required pursuant to Sup. Ct. R. 13.1.

CONSTITUTIONAL PROVISIONS INVOLVED

U.S. Const, amend. IX:

The enumeration in the Constitution, of certain

rights, shall not be construed to deny or disparage

others retained by the people.

U.S. Const, amend. XTV, § 1:

All persons born or naturalized in the United

States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State

wherein they reside. No State shall make or

enforce any law which shall abridge the privileges

or immunities of citizens of the United States; nor

shall any State deprive any person of life, liberty,

or property, without due process of law; nor deny

to any person within its jurisdiction the equal

protection of the laws.

STATEMENT OF THE CASE

Summary of Law

Mr. Schwartz has epilepsy, anxiety, asthma and

claustrophobia. Mr. Schwartz is medically intolerant

of wearing a face covering as it gives him seizures,

additional anxiety, and he is unable to breathe. This

case arises out of the HOA’s mask rule dated October

12, 2020 requiring all residents, visitors and commercial

tenants to wear face coverings while in common areas

of the association. The plain language of the mask

rule:

Until further notice, all persons not exempted

from the requirements of applicable Colorado

and Denver COVID-19 public health orders

related to face covering requirements, must

wear face coverings or masks that are

compliant with said requirements, at all

times entering or moving around within the

following areas located on Association prop

erty: Building lobby, stairwells, hallways,

elevators, and any other indoor portion of the

property that is not the interior of a private

residence or otherwise subject to a relevant

exception under applicable Colorado and

Denver COVID-19 public health orders. Indi

viduals with a health issue that prevents

them from wearing a face covering should

provide a request for an accommodation under

fair housing laws.

Under no circumstances will an unmasked

individual share an elevator with others

except with members of their own party.

Failure to comply with this Rule may result

in sanctions being imposed which may include

a monetary fine or other action. If a violation

is found to have occurred, the Board may

deem the violation as Severe and impose a

fine in accordance with the provisions of the

Covenant and Rule Enforcement Policy.

At the time the HOA mask rule was mandated,

Colorado’s Governor had previously issued Executive

Order D 2020 138 which mandated masks be worn in

public places however it provided for two exemptions,

individuals ten years old and younger, or individuals

who cannot medically tolerate a face covering. This

emergency executive order did not require any medical

documentation or any other proof that an individual

is medically intolerant of a face covering.

The Fair Housing Act 42 U.S.C. § 3604 (FHA) and

the Joint Statement of the Department of Housing and

Urban Development and the Department of Justice

Reasonable Accommodations under the Fair Housing

Act also does not require anything more than a credible

statement be made by the person making the request

for accommodation or a reliable third party who is in

a position to know about the individual’s disability.

See, Sabal Palm Condos of Pine Island Ridge Ass’n,

Inc. v. Fisher, 6 F.Supp.3d 1272 (S.D. Fla. 2014), and

Overlook Mutual Homes, Inc. v. Spencer, 415 Fed.Appx.

617, 620-21 (6th Cir. 2011).

The Circuits are split on mask and vaccine

mandates.

The District of Columbia held in Corbett v.

Transportation Security Administration et al., 19

F.4th 478 (D.C. Cir. 2021) the Transportation Security

Administration, has authority to mandate masks.

The Seventh Circuit mooted vaccine and mask

mandates in Klaassen, et al. v. Trustees of Indiana

University, 24 F.4th 638 (7th Cir. 2022).

The Eighth Circuit also mooted mask mandates

in The Arc of Iowa et al. v. Kimberly Reynolds, et al.,

33 F.4th 1042 (8th Cir. 2022).

The Eleventh Circuits mooted mask mandates in

Health Freedom Defense Fund v. President of the

United States, et al, 71 F.4th 888 (11th Cir. 2023).

The Fifth Circuit held in E.T. et al. v. Kenneth

Paxton, 19 F.4th 760 (5th Cir. 2021). that mask

mandates were not allowed in schools. The Court

went on to discuss that these types of mandates are

based on speculation and if enacted would create a

mobile mask mandate requiring everyone to wear a

mask when someone else was afraid of a risk. This is

exactly what the HOA did in the case at bar.

The Sixth Circuit in Commonwealth of Kentucky,

et al. v. Joseph R. Biden, et al., 23 F.4th 585 (6th Cir.

2022) held that mask and vaccine mandates were

beyond the authority of the government.

This Court has found the issue of what is pre

vailing party and mootness when it granted Certiorari

in 23-621 Lackey v. Stinnie.

This Court has found the issue of mask and

vaccine mandates compelling. The cases taken on by

this Court have only been viewed through the lens of

government-imposed mandates.

This Court ruled in National Federation of

Independent Business, et al. v. Department of Labor,

et al., 595 U.S. 109 (2022). that the government did

not have authority to mandate vaccines and masks.

Further, this Court in Alabama Association of

Realtors, et al. v. Department of Health and Human

Services, et al., 594 U.S. 758 (2021) held that the gov

ernment lacked the authority to implement a national

eviction moratorium.

This Court in Tandon v. Newson, 141 S.Ct. 1294

(2021) held that COVID-19 mandates when impheating

religion must be strictly scrutinized.

It appears that the case at bar presents a case of

first impression whereas can an HOA delve into highly

personal and private medical matters of its members?

The HOA’s mask rule clearly implicates Consti

tutional rights contained in Amendments IX and XIV

§1.

B. Background of the Case

As described above the HOA mandated a mask

rule upon its residents and commercial tenants. Mr.

Schwartz together with his wife owned two adjacent

condominiums that were their residence on the 11th

floor of the Beauvallon building. Mr. Schwartz’s law

practice was located on the second floor of the same

building. They also had deeded and leased parking

spaces on various floors throughout the building. Mr.

Schwartz resided in the Beauvallon from 2006 until

the HOA forced him out in 2021 and even served on

the HOA many years prior to this matter.

When the HOA mandated masks Mr. Schwartz

promptly notified the HOA in writing he was exempt

from the rule pursuant to the Governor’s Executive

Order which the HOA mask rule relied upon.

Approximately a month later the HOA obtained

an ex parte temporary restraining order App.46a in

the County Court City and County of Denver against

Mr. Schwartz prohibiting him from accessing common

areas of the Beauvallon denying him access to his

residence and business. Thus depriving Mr. Schwartz

of his home and his livelihood. The HOA then sought

to jail Mr. Schwartz through contempt of court for not

abiding by the ex parte temporary restraining order.

Next, Mr. Schwartz brought compulsory counter

claims which removed the matter to the District Court

City and County of Denver.

The HOA filed for a preliminary injunction in the

District Court City and County of Denver to again

prohibit Mr. Schwartz access to his residence and

business. The preliminary injunction hearing was

held on December 15, 2020. The District Court Judge

found that Mr. Schwartz gave adequate notice under

the mask rule, the Governor’s Executive Order, the

FHA and its Joint Statement that he was exempt from

the mask rule and that he had no further duty to

engage in the “interactive process” with the HOA as to

an exemption and/or reasonable accommodation,

App.52a.

Most importantly the District Court found that

the HOA had no likelihood of success on the merits of

their case against Mr. Schwartz which resulted in the

Court denying the preliminary injunction, App.52a.

The Court also dismissed the Contempt of Court

matter, App.52a. At the same hearing the District

Court ordered that Mr. Schwartz file for his attorney

fees and costs in successfully defending against the

case, App.44a. The HOA filed a response and declared

that they owed a reasonable amount of attorney fees

and costs to Mr. Schwartz in the $40,000-$45,000

range. The District Court failed to award Mr. Schwartz

his fees and costs although the HOA governing docu

ments and the Colorado Common Interest Ownership

Act C.R.S. § 38-33.3-123 required said payment. The

Court claimed Mr. Schwartz did not prevail. Mr.

Schwartz won the preliminary injunction hearing, the

contempt of court seeking jail was dismissed and the

HOA’s claims against him were dismissed. Mr.

Schwartz won every single matter in the HOA’s case

against him.

Mr. Schwartz filed a MSJ on March 3, 2021 as to

the FHA issue. He also brought the FHA issue up in

subsequent motions and at jury trial.

The HOA moved to dismiss their claims against

Mr. Schwartz as moot. The Court did so without con

ditions pursuant to C.R.C.P. 41 and ultimately preju

diced the counterclaims of Mr. Schwartz App.40a. Mr.

Schwartz opposed the HOA mootness motion on the

grounds that any voluntary dismissal of their claims

required an award of attorney fees and costs to Mr.

Schwartz pursuant to the C.R.C.P. 41(a), the Beauvallon Declaration, and CCIOA C.R.S. § 38-33.3-123.

Further the actions of the HOA (not those of

anyone else) by repealing its own mask rule was the

cause of the mootness.

On August 5, 2021, the Court dismissed the HOA’s

claims without prejudice App.40a. The Court failed to

apply conditions to the dismissal per C.R.C.P. 41 and

especially since Mr. Schwartz had a ripe and pending

Motion for Summary Judgment against the HOA’s

claims. The dismissal also prejudiced Mr. Schwartz’s

counterclaims against the HOA.

A five-day jury trial was held in March of 2021 as

to Mr. Schwartz’s claims against the HOA where the

jury (who were allowed by the Court to wear masks

although there was no public mandate) found in favor

of the HOA.

The Court then awarded unreasonable attorney

fees and costs against Mr. Schwartz although he had

prevailed on all of the HOA’s claims against him via

its July 15, 2022, Order. App.l5a.

Mr. Schwartz then appealed to the Colorado Court

of Appeals who issued its opinion on April 11, 2024,

App.2a.

Mr. Schwartz filed a petition for certiorari with

the Colorado Supreme Court, which was denied on

May 28, 2024, App.la.

REASONS FOR GRANTING THE PETITION

There Is a Conflict Amongst the Circuits as to

Mask and Vaccine Mandates.

Since the circuits are split about mask and vaccine

mandates the subject matter is ripe for decision by

this Court.

The Fifth Circuit lays forth the most accurate legal

analysis as to this important public matter. In E.T. et

al. v. Kenneth Paxton, 19 F.4th 760 (5th Cir. 2021) the

court held that mask mandates were not allowed in

schools because the mandate was based upon specu

lation and fear.

Distilled down, their alleged harm—depri

vation of access to in-person school—wholly

derives from the assumption that the Attor

ney General’s enforcement of GA-38’s pro

hibition of local mask mandates increases

plaintiffs’ risk of contracting COVID-19 while

attending school. Such an assumption is,

after all, the only alleged basis by which the

plaintiffs could be “forced out of in-person

learning.” But “[a] ‘concrete’ injury must be

‘de facto’; that is, it must actually exist....

When [the Supreme Court has] used the

adjective ‘concrete,’ [it has] meant to convey

the usual meaning of the term—‘real,’ and

not ‘abstract.’” Spokeo, 578 U.S. at 340,

136 S.Ct. 1540 (quoting BLACK’S Law DICT

IONARY 479 (9th ed. 2009); 766-766 WEBSTER’S

Third New International Dictionary 472

(1971); Random House Dictionary Of The

English Language 305 (1967)).

The risks of contracting COVID-19 for these

plaintiffs are certainly real, but the alleged

injury to plaintiffs from the enforcement of

GA-38 is, at this point, much more abstract.

This is so because the binary choice envi

sioned by the district court—either stay

home or catch COVID-19—is a false one: it

wholly elides the various accommodations

available to the plaintiffs (e.g., distancing,

voluntary masking, class spacing, plexiglass,

and vaccinations) to ensure a safer learning

environment, regardless of GA-38’s prohib

ition of local mask mandates.

Beyond whether plaintiffs allege a “concrete”

injury, they also likely fail to show any

actual or imminent injury as a result of the

enforcement of GA-38. This is so because

“[i]ncreased-risk claims—even when they

are particularized—often cannot satisfy the

‘actual or imminent’ requirement.” Shrimpers

& Fishermen of RGV, 968 F.3d at 424.

Indeed, Much government regulation slightly

increases a citizen’s risk of injury—or insuf

ficiently decreases the risk compared to what

some citizens might prefer.... Opening the

courthouse to these kinds of increased-risk

claims would drain the “actual or

imminent” requirement of meaning [and]

expand the “proper—and properly limited”—

constitutional role of the Judicial Branch

beyond deciding actual cases or controver

sies. . ..

In the case at bar, the HOA enacted their mask

rule based purely on speculation and fear. They never

claimed Mr. Schwartz had COVID or transmitted it to

anyone. The HOA did not even seek damages in their

pleadings and answers to discovery. Their only two

claims were seeking a permanent injunction, (which

they were denied at the preliminary injunction hearing

as the District Court found they had no likelihood of

success on the merits, App.l5a, and breach of contract

(failure to follow the HOA mask rule). In order to have

a breach of contract claim it is essential to have dam

ages as that is a necessary element in a breach of con

tract claim. The HOA by its own multiple admissions

had no damages. For these and other reasons the

HOA’s affirmative claims fail.

II. This Court Has Already Deemed This Issue

Important Enough to Grant Certiorari.

Similar to issues presented in 23-621 Lackey v.

Stinnie the HOA dismissed their claims as moot and

Mr. Schwartz was not awarded his reasonable attorney

fees and costs although he prevailed on every claim

made affirmatively against him.

This Court has taken a number of COVID

related cases including National Federation of

Independent Business, et al. v. Department of Labor,

et al., 595 U.S. 109 (2022)., Alabama Association of

Realtors, et al. v. Department of Health and Human

Services, et al., 594 U.S. 758 (2021), and Tandon v.

Newson 141 S.Ct. 1294 (2021).

These cases all involved government overreach.

The case at bar is an HOA that overreached the

boundaries of established law—FHA, Constitutional

rights, and even that of the Governor’s Executive

Order which specifically stated clear exemptions to

his mask mandate including medical intolerance.

III. The FHA and the Joint Statement Does Not

Give Homeowner Associations the Authority

to Mandate Disclosure of Voluminous and

Intrusive Medical Records and Require

Deposition of a Party’s Personal Medical

Doctor to Receive an Exemption or Reason

able Accommodation from a Mask Mandate.

Mr. Schwartz has epilepsy, anxiety, asthma and

claustrophobia. Mr. Schwartz is medically intolerant

of wearing a face covering as it gives him seizures,

additional anxiety, and he is unable to breathe. He

wanted to keep these medical issues private. Instead,

his hostile HOA demanded full medical record disclo

sure, and conducted a deposition of his medical doctor,

they even wanted an independent medical evaluation.

The HOA was never satisfied and would never exempt

Mr. Schwartz from the overreaching and unconstitu

tional mask rule.

In refusing to grant Mr. Schwartz a reasonable

accommodation/exemption, the HOA would not accept

Mr. Schwartz’s email within days of implementation

of the mask rule that he was exempt from the mask

rule pursuant to the Governor’s Executive Order, they

did not accept Mr. Schwartz’s affidavit regarding his

medical intolerance of a mask, they did not accept

Mrs. Schwartz’s affidavit that he was medically intol

erant of a face covering, they did not accept Mr.

Schwartz’s Medical Doctor’s Affidavit that he was

medically intolerant of a face covering, they did not

accept years of Mr. Schwartz’s medical records (which

the District Court forced Mr. Schwartz to turn over to

the HOA) indicating that he has asthma, anxiety,

claustrophobia, and epilepsy, the HOA also did not

accept the deposition testimony of his medical doctor

regarding his medical intolerance to a face covering.

Meanwhile, other residents received accommodations

and exemptions with notes from herbalists, and phony

doctor notes.

The Joint Statement of the Department of Housing

and Urban Development and the Department of

Justice Reasonable Accommodations under the Fair

Housing Act, dated May 17, 2004, p.3, 13 states:

3. Who qualifies as a person with a disability

under the Act?

The Act defines a person with a disability to

include (1) individuals with a physical or

mental impairment that substantially limits

one or more major life activities; (2) individ

uals who are regarded as having such an

impairment; and (3) individuals with a

record of such an impairment. The term

“physical or mental impairment” includes,

but is not limited to, such diseases and conditions as orthopedic, visual, speech and

hearing impairments, cerebral palsy, autism,

epilepsy, muscular dystrophy, multiple

sclerosis, cancer, heart disease, diabetes,

Human Immunodeficiency Virus infection,

mental retardation, emotional illness, drug

addiction (other than addiction caused by

current, illegal use of a controlled substance)

and alcoholism.

The term “substantially limits” suggests

that the limitation is “significant” or “to a

large degree.” The term “major life activity”

means those activities that are of central

importance to daily life, such as seeing,

hearing, walking, breathing, performing

manual tasks, caring for one’s self, learning,

and speaking. 8 This list of major life activities

is not exhaustive. See e.g., Bragdon v. Abbott,

524 U.S. 624, 691-92 (1998) (holding that for

certain individuals reproduction is a major

life activity).

[...]

18. If a disability is not obvious, what kinds

of information may a housing provider

request from the person with a disability in

support of a requested accommodation?

A housing provider may not ordinarily inquire

as to the nature and severity of an individ

ual’s disability (see Answer 16, above). How

ever, in response to a request for a reason

able accommodation, a housing provider

may request reliable disability-related infor

mation that(l) is necessary to verify that the

person meets the Act’s definition of disability

(i.e., has a physical or mental impairment

that substantially limits one or more major

life activities), (2) describes the needed accom

modation, and (3) shows the relationship

between the person’s disability and the need

for the requested accommodation. Depending

on the individual’s circumstances, informa

tion verifying that the person meets the Act’s

definition of disability can usually be pro

vided by the individual himself or herself

(e.g., proof that an individual under 65 years

of age receives Supplemental Security Income

or Social Security Disability Insurance bene

fits or a credible statement by the individ

ual). A doctor or other medical professional,

a peer support group, a non-medical service

agency, or a reliable third party who is in a

position to know about the individual’s dis

ability may also provide verification of a

disability. In most cases, an individual’s medi

cal records or detailed information about the

nature of a person’s disability is not neces

sary for this inquiry.

Courts applying the provisions of the Joint State

ment have ruled that “housing providers need only the

information necessary to apprise them of the disability

and the desire and possible need for an accommo

dation.” Bhogaita, 765 F.3d at 1287. Just because a

housing provider is skeptical about a requestor’s

request, that “does not entitle a [provider] to extran

eous information.” Id. A provider may not condition the

grant of an accommodation on a requestor providing

“unreasonably excessive information.” Overlook Mut.

Homes, Inc. v. Spencer, 415 F.App’x 617, 622 (6th Cir.

2011).

Arnal v. Aspen View Condo. Assn, Inc., 226

F.Supp.3d 1177, 1185-86 (D. Colo. 2016). Under the

FHA, a person has a right to accommodations that

“may be necessary to afford such person equal oppor

tunity to use and enjoy a dwelling.” 42 U.S.C. § 3604

(f)(3)(B). An accommodation is necessary for purposes

of an FHA claim “when there is evidence showing that

the desired accommodation will affirmatively

enhance a disabled plaintiffs quality of life by

ameliorating the effects of the disability.” Arnal, 226

F.Supp.3d at 1185.

A provider refuses to make an accommodation

when “the disabled resident is first denied a reasonable

accommodation, irrespective of the remedies granted

in subsequent proceedings.” Arnal, 226 F.Supp. at 1186.

Refusal to accommodate “can be both actual or

constructive, as an indeterminate delay has the same

effect as an outright denial.” Groome Res. Ltd., L.L.C.

v. Par. Of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000).

“[A] housing provider that refuses to make a deci

sion unless a requestor provides unreasonably exces

sive information could be found to have constructively

denied the request by ‘stonewalling’ and shortcircuiting the process.” Overlook Mut. Homes, Inc. v.

Spencer, 415 F.App’x 617, 622 (6th Cir. 2011).

When a requestor has “provided enough informa

tion such that the only reasonable decision is to grant

the request”, a provider violates the FHA by

“refusing to grant the request, demanding more

information, and suing,” even if the housing provider

allows the requestor to temporarily enjoy an accommo-

dation while the lawsuit is pending. Sabal Palm

Condominiums of Pine Island Ridge Ass’n, Inc. v.

Fisher, 6 F.Supp.3d 1272, 1293 (S.D. Fla. 2014).

In Sabal Palm, a resident submitted a letter to

her condominium association advising she was

acquiring a service dog. The association, which had a

no-pets policy, requested extensive documentation

which the resident declined to produce. The association

sued the resident to enforce the no-pets rule but

allowed her to keep the dog pending a court ruling.

Granting the resident’s motion for summary judgment

on her counterclaim for refusal to accommodate, the

court reasoned as follows:

A contrary conclusion leads to absurd results.

For example, say a blind person requests to

be allowed to keep a seeing-eye dog and

objects to the housing provider’s request for

medical records proving that the person is

blind and prescribing a seeing-eye dog.

Under [the association’s] logic, the housing

provider would not violate § 3604(f)(3)(B)

when it sued to have a court determine

whether it was entitled to the records it

requested, so long as the housing provider

allowed the blind person to temporarily keep

the service animal while the suit is pending.

That is not the law. Or consider this case: a

housing provider has enough information to

grant a request—indeed, the information it

has makes granting the request the only rea

sonable choice—but instead it sits on its

laurels indefinitely, all the while demanding

more information and only allowing the

requestor to temporarily keep the service

animal while it considers the request. Under

[the association’s] logic, the housing provider

would not have constructively denied the

request even though the requestor must live

with the annoyance and harassment of

requests for additional information and with

the uncertainty of whether their request

would be granted. The right to a valid and

reasonable accommodation under the FHA

necessarily implies that housing providers

must make a decision. They cannot delay

indefinitely. Because it is clear in the present

case that the request should be granted,

continuing to delay for months and asking

for even more information amounts to a con

structive denial.

Sabal Palm at 1292 (emphasis added).

Here, the HOA denied Mr. Schwartz’s request for

accommodation. With other residents who made iden

tically-worded requests for accommodation, the Asso

ciation sent them letters recognizing their requests

and proposing alternative accommodations. But in

response to Mr. Schwartz, the Association immediately

turned the request over to its general counsel, who

refused to recognize Mr. Schwartz’s request for accom

modation. The Association admits that prior to suing

Mr. Schwartz, it did not propose any accommodations

to him as it did with various other residents. Rather,

it sued him, obtained an ex parte restraining order

against him on the basis of a falsified affidavit, and

sought contempt citations and an injunction against

him. Even after this Court denied the Association’s

Motion for Preliminary Injunction, the Association

persisted in its refusal to recognize any accommodation

for Mr. Schwartz and continued to insist upon compel

ling him to wear a face covering. After engaging in

months of protracted correspondence with Mr.

Schwartz about the matter, the Association finally

granted what it has called a “conditional accom

modation” on February 26, 2021. Just as the associa

tion’s non-committal response in Sabal Palm, this

disingenuous arrangement was not an accommoda

tion, but a constructive denial.

Further in Overlook Mutual Homes, Inc. v.

Spencer, 415 Fed.Appx. 617, 620-21 (6th Cir.2011)

(quoting 42 U.S.C. § 3604(f)(3)(B)).

“To prevail on a [§ ]3604(f)(3)(B) claim”—that

is, a claim that a housing provider refused

to reasonably accommodate a disability—

”a plaintiff must establish that (1) he is

disabled or handicapped within the meaning

of the *1281 FHA, (2) he requested a reason

able accommodation, (3) such accommodation

was necessary to afford him an opportunity

to use and enjoy his dwelling, and (4) the

defendants refused to make the requested

accommodation.” Hawn v. Shoreline Towers

Phase 1 Condominium Association, Inc., 347

Fed.Appx. 464, 467 (11th Cir. 2009). An

accommodation can also be constructively

denied by delaying making the decision.

Overlook, 415 Fed.Appx. at 620; Joint Statement at 9,

11.

The mask rule was outside the HOA’s legal

authority. The Colorado legislature did not provide for

nor contemplate such powers be given to HOAs when

it enacted the Colorado Common Interest Ownership

Act C.R.S. § 38-33.3-123, nor did Congress when it

enacted the FHA.

Would we allow or did we allow HOAs the same

access to medical records/information during other

pandemics? No, we did not. Imagine requiring people

with HIV/AIDS to be forced to disclose that to their

HOA. Did we or do we allow HOAs to obtain private

information related to sexual orientation, sexual

identity, health records with respect to transgender

surgeries or hormone treatments? No, we do not.

In an Order signed on October 15, 2020 the Fed

eral Court for the District of Colorado Denver Bible

Church v. Azar, Civil Action No. l:20-cv-Q2362-DDDNRN, states:

But the Constitution does not allow the State

to tell a congregation how large it can be

when comparable secular gatherings are not

so limited, or to tell a congregation that its

reason for wishing to remove facial

coverings is less important than a restaurant’s

or spa’s . . . But the existence of a crisis does

not mean that the inalienable rights recog

nized in the Constitution become unenforce

able. Cf. Hamdi v. Rumsfeld, 542 U.S. 507,

532, 124 S.Ct. 2633, 159 L.Ed.2d 578 (2004)

(plurality opinion) (“It is during our most

challenging and uncertain moments that our

Nation’s commitment to due process is most

severely tested; and it is in those times that

we must preserve our commitment at home to

the principles for which we fight abroad.”).

The court cannot accept the position that the

Constitution and the rights it protects are

somehow less important, or that the judicial

branch should be less vigilant in enforcing

them, simply because the government is

responding to a national emergency. The

judiciary’s role may, in fact, be all the more

important in such circumstances. Cf. Trump

v. Hawaii,__ U.S.

, 138 S.Ct. 2392, 2423,

201 L.Ed.2d 775 (2018)

Jacobson, while an important and instructive

case, isn’t a “blank check for the exercise of

governmental power.” Robinson v. Att’y Gen.,

957 F.3d 1171,1181 (11th Cir. 2020); see also

Calvary Chapel, 140 S.Ct. at 2605 (Alito, J.,

dissenting) (“[A] public health emergency

does not give Governors and other public

officials carte blanche to disregard the Con

stitution for as long as the medical problem

persists.”). Indeed, Jacobson itself says that

“no rule prescribed by a state, nor any regu

lation adopted by a local governmental

agency acting under the sanction of state

legislation” to safeguard public health and

safety may “contravene the Constitution of

the United States, nor infringe any right

granted or secured by that instrument.” 197

U.S. at 25, 25 S.Ct. 358. “A local enactment

or regulation, even if based on the acknow

ledged police powers of a state, must always

yield in case of conflict.. . with any right [the

Constitution] gives or secures.” Id. (emphasis

added). And so, while the State can and must

take action to respond to an emergency, it

must do so within the confines of the Con

stitution.^] In other words, while an

emergency might provide justification to

curtail certain civil rights, that justification

must fit within the framework courts use to

evaluate constitutional claims in nonemergent times. *833 Consider as well the

face-mask mandate in Executive Order D

2020 138, which is incorporated by reference

into to Public Health Order 20-35. It gener

ally requires persons older than ten to wear

a face covering when inside a Public Indoor

Space, which includes houses of worship.

[See EO D 2020 138, Doc. 1-15 at 2, 4.] Yet,

for example, “individuals who are seated at a

food service establishment” are exempt from

the face-mask requirement. [Id. at 3.] “Indi

viduals who are receiving a personal service

where the temporary removal of the face

covering is necessary to perform the service”

are also exempt, as are “Individuals who are

exercising alone or with others from the indi

vidual’s household and a face covering would

interfere with the activity.” [Id.] Executive

Order D 2020 138 contains a total of eight

exemptions, none of which apply to worship

services. [Id.] While the court accepts these

facts as true, Colorado’s transient-versusprolonged approach to differential treatment of

houses of worship is flawed. The State’s evi

dence regarding what constitutes a “close”—

and thus dangerous—contact requires both a

proximity and a duration component.

According to Dr. Herlihy, “data are insuffi

cient to precisely define the duration of

exposure that constitutes prolonged

exposure and thus a close contact. However,

a close contact is defined as being within 6

feet for at least a period of 15 minutes to 30

minutes or more depending upon the

exposure.” [Id. at 26.] So according to the

State’s own evidence, for a contact to be

“close” and thus significantly riskier, it must

(1) be within six feet and (2) last for more

than fifteen minutes. If so, a limit on either

proximity or duration is adequate to avoid

risky close contacts. And under the

Distancing Requirements of Public Health

Order 20-35, no entity open to the public,

including houses of worship, may allow non

household person-to-person contact indoors

within six feet. So even without an occupancy

restriction, Plaintiffs are subject to a regula

tion that prevents one of the two necessary

components of a risky close contact. That,

according to the State’s own evidence, ought

to be enough. And, for most other critical

businesses, it is: warehouses, schools, critical

manufacturing, groceries, pharmacies, liquor

stores, and others are allowed to operate at

full capacity for presumably full shifts of well

over an hour, on the assumption that the

distancing restrictions will be adequate to

protect against virus transmission.

If church congregates can stay in a confined space for

an hour or more with no mask, then why wouldn’t Mr.

Schwartz be able to walk to his residence or business

with no people around or one or two people around

with social distancing as Mr. Schwartz practiced. Fur

ther the time it took Mr. Schwartz to go from his

residence to his business was less than three minutes.

Social distancing was part and parcel to the

HOA’s mask rule but social distancing was not based

upon any data or scientific studies pursuant to Dr.

Fauci, see App.70a-71a.

21 Q Do you recall when discussions regard

ing, kind of, the at-least-a-6-foot22threshold

began? 23 A The 6-foot in the school? 24 Q

Six-foot overall. I mean, 6-foot was applied at

businesses—25 A Yeah. 1 Q-it was applied in

schools, it was applied here. At least how the

messaging 2 was applied was that 6-foot

distancing was the distance that needed to

be—3 A You know, I don’t recall. It sort of just

appeared. I don’t recall, like, a 4 discussion

of whether it should be 5 or 6 or whatever. It

was just that 6-foot is-5 Q Did you see any

studies that supported 6 feet? 6 A I was not

aware of studies that-in fact, that would be a

very difficult study 7 to do.8 Q I know. I’m

just trying to figure out why 6 versus 3 or 4

or 5. 9 A Yeah. Yeah. 10 Q Like, 6 is a

significant distance. I mean, you’ve testified

here. I think you 11 testified in front of Mr.

Scalise a couple times when I was working

for him. And recalling 12 the hearing rooms,

instead of, like, seven members on the top of

the dais, there’s two, 13 and-14 A Right. 15

Q-it was just two staffers behind. 1 6A

Yeah. Yeah. I think it would fall under the

category of empiric. Just an 17 empiric deci

sion that wasn’t based on data or even data

that could be accomplished. 18 But I’m

thinking hard as I’m talking to you. 19 Q

Uh-huh. 20 AI don’t recall, like, a discussion

of, “Now it’s going to be”-it sort of just 21

appeared, that 6 feet is going to be the

distance.

Colorado’s own, Associate Justice Gorsuch of the

United States Supreme Court eloquently stated:

Since March 2020, we may have experienced

the greatest intrusions on civil liberties in

the peacetime history of this country .. .

Governors and local leaders-imposed lockdown

orders forcing people to remain in their

homes ... They threatened violators not just

with civil penalties but with criminal

sanctions too. They surveilled church parking

lots, recorded license plates, and issued

notices warning that attendance at even

outdoor services satisfying all state socialdistancing and hygiene requirements could

amount to criminal conduct. They divided

cities ... into color-coded zones, forced individ

uals to fight for their freedoms in court on

emergency timetables, and then changed

their color-coded schemes when defeat in

court seemed imminent... state legislatures

and Congress . . . too often fell silent. Courts

bound to protect our liberties addressed a

few—but hardly all... One lesson might be

this: Fear and the desire for safety are

powerful forces. They can lead to a clamor for

action—almost any action—as long as

someone does something to address a

perceived threat. A leader or an expert who

claims he can fix everything, if only we do

exactly as he says, can prove an irresistible

force. We do not need to confront a bayonet,

we need only a nudge, before we willingly

abandon the nicety of requiring laws to be

adopted by our legislative representatives

and accept rule by decree. Along the way, we

will accede to the loss of many cherished civil

liberties—the right to worship freely, to

debate public policy without censorship, to

gather with friends and family, or simply to

leave our homes. United States Supreme

Court Opinion to Order, 5/18/23 22-592

Arizona v. Mayorkas, NG 598/2.

The HOA clearly violated Mr. Schwartz’s Constitutional

rights under Amendments IX and XIV.

IV. Mr. Schwartz Prevailed Upon Every

Affirmative Claim Brought by the HOA and

Is Entitled to His Reasonable Attorney Fees

and Costs Pursuant to the HOA

Declaration, Colorado Common Interest

Ownership Act (CCIOA) C.R.S § 38-33.3-123

and the Fair Housing Act (FHA) 42 U.S.C.

§ 3613 (l)(c)(2).

Both the CCIOA and the FHA as well as the

HOA’s Declaration provide for attorney fees and costs

to the prevailing party. In fact, the HOA Declaration

uses the word “shall” in its fee shifting provision.

Mr. Schwartz clearly prevailed in every single

aspect of the HOA’s affirmative claims against him.

Mr. Schwartz nor any third party mooted the case

rather the HOA mooted its own case by repealing its

mask mandate. It did so knowing that defeat was

imminent, there was a ripe motion for summary

judgment pending and they were clearly on the

wrong side of the law. This was a strategy to avoid any

repercussions for their egregious abuse of the legal

system. The HOA’s claims should have been dismis

sed at the summary judgment stage if not prior to that

at the preliminary injunction stage.

To qualify as the prevailing party, a plaintiff is

neither required to litigate a case to final judgment

nor demonstrate success on every claim. See Hewitt v.

Helms, 482 U.S. 755, 761 (1987) (describing circum

stances in which a “plaintiff is deemed to have

prevailed despite the absence of a formal judgment”);

Hensley, 461 U.S. at 431 (addressing “proper standard

for setting a fee award where the plaintiff has

achieved only limited success”).

, In Kansas Judicial Watch v. Stout, the Tenth

Circuit provided clear guidelines for determining

whether a plaintiff who obtains a preliminary injunction

is eligible for an award of attorney fees as the

prevailing party when events outside the plaintiffs

control moot the case. 653 F.3d 1230 (10th Cir. 2011).

In doing so, it stated that a preliminary injunction

is a form of court-ordered relief... [that]

carries all the ‘judicial imprimatur’ neces

sary” to confer prevailing party status.

Kansas Judicial Watch, 653 F.3d at 1237

(quoting Watson v. County of Riverside, 300

F.3d 1092, 1096 (9th Cir. 2002)). “Whether a

litigant qualifies as

“prevailing party”

under a fee-shifting statute such as § 1988 is

a question of law that we review de novo. See

Lorillard Tobacco Co. v. Engida, 611 F.3d

1209, 1214-15 (10th Cir.2010); Al-Maleki v.

Holder, 558 F.3d 1200, 1204 (10th Cir. 2009).

Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1235

(10th Cir. 2011).

The Supreme Court set forth the general

standard governing the prevailing-party de

termination in Texas State Teachers Ass’n v.

Garland Independent School District (TSTA),

489 U.S. 782, 109 S.Ct. 1486, 103 L.Ed.2d

866 (1989). There, the Court stated that

“[t]he touchstone of the prevailing party

inquiry must be the material alteration of the

legal relationship of the parties in a manner

which Congress sought to promote in the fee

statute.” Id. at 792-93, 109 S.Ct. 1486. The

Court explained that a material alteration in

the parties’ legal relationship occurs when

“the plaintiff has succeeded on any

significant issue in litigation which achieved

some of the benefit the parties sought in

bringing suit.” Id. at 791-92, 109 S.Ct. 1486

(internal alteration and quotation marks

omitted). This standard requires that ‘a

plaintiff receive at least some relief on the

merits of his claim before he can be said to

prevail.’ Id. at 792, 109 S.Ct. 1486 (quoting

Hewitt v. Helms, 482 U.S. 755, 760, 107 S.Ct.

2672, 96 L.Ed.2d 654 (1987)).

Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1235

(10th Cir. 2011).

Although the Supreme Court in Buckhannon

interpreted the term “prevailing party” under

the fee-shifting provisions of the Fair Housing

Amendments Act of 1988, 42 U.S.C. § 3613

(c)(2), and the Americans with Disabilities

Act of 1990, 42 U.S.C. § 12205, the Court

recognized that “prevailing party” is a term

of art that Congress has used to mean the

same thing in numerous statutes. See

Buckhannon, 532 U.S. at 602-03 & n. 4, 121

S.Ct. 1835. Accordingly, Buckhannon’s “judi

cial imprimatur” requirement applies to the

prevailing-party analysis under § 1988. See

Bell v. Bd. of Cnty. Comm’rs, 451 F.3d 1097,

1102 (10th Cir. 2006) (applying Buckhannon’s

definition of “prevailing party” in a § 1988

case).

Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1237,

fn.3 (10th Cir. 2011).

First, and most fundamental, in order for a

preliminary injunction to serve as the basis

for prevailing-party status, the injunction

must provide at least some relief on the

merits of the plaintiffs claim(s). A preliminary

injunction provides relief on the merits when

it (a) affords relief sought in the plaintiffs

complaint and (b) represents an unambiguous

indication of probable success on the merits.

By contrast, a preliminary injunction does

not provide relief on the merits if the district

court does not undertake a serious examina

tion of the plaintiff s likelihood of success on

the merits but nonetheless grants the prelim

inary injunction to preserve the status quo

because the balance of equities favors the

plaintiff.

Second, if a preliminary injunction satisfies

the relief-on-the-merits requirement, the

plaintiff qualifies as a “prevailing party”

even if events outside the control of the

plaintiff moot the case. If, however, the pre-

liminary injunction is undone by a subsequent

adverse decision on the merits, the plaintiffs

transient success in obtaining the injunction

does not render the plaintiff a “prevailing

party.”

Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1238

(10th Cir. 2011).

Instead, the critical inquiry is whether “the

plaintiff has succeeded on any significant

issue in litigation which achieved some of the

benefit the parties sought in bringing suit.”

Id. at 791—92, 109 S.Ct. 1486 (emphases

added) (alteration and internal quotation

marks omitted); see also McQueary v.

Conway, 614 F.3d 591, 603 (6th Cir. 2010)

(“A plaintiff crosses the threshold to

‘prevailing party’ status by succeeding on a

single claim, even if he loses on several

others and even if that limited success does

not grant him the ‘primary relief he

sought.”). Where, as in this case, that stan

dard has been met, “the degree of the

plaintiffs overall success goes to the reason

ableness of the award... , not to the

availability of a fee award vel non.” TSTA,

489 U.S. at 793, 109 S.Ct. 1486; see also

McQueary, 614 F.3d at 603 (“The

significance of the relief obtained goes only

to the amount of fees.”).

Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1240

(10th Cir. 2011).

The First Circuit recently explained the

distinction as follows: Reversal on the merits

deprives a plaintiff of “prevailing party”

status because it repudiates the favorable

change in the parties’ legal relationship

effectuated by the district court’s judgment

and holds that the plaintiff was never legally

entitled to such relief. In contrast, in the

mootness context, a “prevailing part/’ is a

party who managed to obtain a favorable,

material alteration in the legal relationship

between the parties prior to the intervening

act of mootness. Diffenderfer v. Gomez-Colon,

587 F.3d 445, 453 (1st Cir. 2009).

Kan. Judicial Watch v. Stout, 653 F.3d 1230, 1240, fn.4

(10th Cir. 2011).

In the case at bar, Mr. Schwartz successfully

defended against the preliminary injunction which

was never overturned. He was never ordered to wear

a face covering, and he was never jailed for not

wearing a face covering.

The HOA received no relief they sought in their

affirmative actions against Mr. Schwartz. In fact, the

trial court ruled they had no likelihood of success on

the merits, see App.7a.

The HOA received no benefit whatsoever from

their lawsuit against Mr. Schwartz. The HOA did not

succeed on any of their affirmative claims they won no

significant issue in their affirmative claims, thus Mr.

Schwartz is the prevailing party and entitled to his

attorney fees and costs pursuant to the HOA Declara

tion, CCIOA, and the FHA.

The HOA’s claims were dismissed against him,

and there could not have been any other Court

hearing or trial that would have given Mr. Schwartz

more of a win on the HOA’s claims against him.

See Brock v. Weidner, 93 P.3d 576 (Colo. App.

2004) ruling that trial court abused its discretion by

failing to identify defendants as the prevailing party

and awarding attorney’s fees in a similar breach of

covenant action.

Before granting a plaintiffs motion for voluntary

dismissal without prejudice, the trial court must

determine that any harm to the defendant may be

avoided by imposing terms and conditions of dismissal.

FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260 (Colo.

App. 2004)

In determining whether a dismissal without pre

judice would cause harm to a defendant, the trial court

should consider: Duplicative expense of separate litigation; extent to which current suit has progressed,

including effort and expenses incurred by defendant;

adequacy of plaintiff’s explanation for need to dismiss;

plaintiffs diligence in bringing motion to dismiss; and

any undue vexatiousness on plaintiffs part. Powers v.

Prof’l Rodeo Cowboys, 832 P.2d 1099 (Colo. App.

1992).

In the case at bar, the dismissal of the HOA’s

claims caused harm to Mr. Schwartz’s counterclaims

as he was not able to prove the HOA was clearly

discriminating against him, especially in light of their

amended complaint which sought to rim Mr. Schwartz

out of his home and law office.

Also, Mr. Schwartz was greatly harmed in

spending hundreds upon hundreds of thousands of

dollars on attorney fees and costs defending against

the HOA’s claims and so close to the then set jury trial

date.

When a trial court grants a plaintiffs motion for

voluntary dismissal without prejudice under section

(a)(2) and does so over the defendant’s objection,

without imposing terms and conditions that the

defendant requests, or without making allowances for

the defendant’s counterclaims, the court’s order is suf

ficiently final to support the defendant’s appeal.

FSDW, LLC v. First Nat’l Bank, 94 P.3d 1260 (Colo.

App. 2004).

Terms and conditions of dismissal may include

award of costs and fees. Powers v. Prof’l Rodeo

Cowboys, 832 P.2d 1099 (Colo. App. 1992).

In Tandon v. Newson, 141 S.Ct. 1294 (2021) the

US Supreme Court found that, even if the government

withdraws or modifies a COVID restriction in the

course of litigation, that does not necessarily moot the

case. And so long as a case is not moot, litigants

otherwise entitled to emergency injunctive relief remain

entitled to such relief where the applicants “remain

under a constant threat” that government officials

will use their power to reinstate the challenged

restrictions. Roman Catholic Diocese, 592 U.S. __ ,

141 S.Ct. at 68; see also High Plains Harvest Church

v. Polis, 592 U. S. 141 S.Ct. 527, 208 L.Ed.2d 503

(2020).

And fourth, although California officials changed

the challenged policy shortly after this application

was filed, the previous restrictions remain in place

until April 15th, and officials with a track record of

“moving the goalposts” retain authority to reinstate

those heightened restrictions at any time. South Bay,

592 U.S.

J.).

141 S.Ct., at 720 (statement of Gorsuch,

The HOA argued that they may need to reinstate

a mask rule as the pandemic was ongoing.

After the HOA rescinded their mask rule Mr.

Schwartz continued to live there for several more

months (he was constantly in fear a new mask rule

could be implemented at any time and he could be

sued and threatened with jail yet again), and after he

moved, he returned to obtain mail, visit friends, and

business located there.

V. Alternatively, If the HOA’s Claims Were

Truly Moot Then the Compulsory Counter

claims Should Also Be Mooted and the

Standard Dismissal and Vacation of Judg

ment Should Apply to This Matter.

If the HOA’s claims are truly moot then so are the

compulsory counter claims and as such should be dis

missed and the judgment vacated. If mootness only

applies to the bad actor then we are re-victimizing the

aggreived party.

Health Freedom Defense Fund v. President of the

United States, et al., 71 F.4th 888 (11th Cir. 2023).

states:

And lastly, as in all cases, we look to the

Supreme Court for guidance. Recently, the

Court dismissed as moot a motion by a

collection of States to intervene in a case

involveing “Title 42 orders”—emergency

immigration decrees designed to prevent the

spread of COVID-19. Arizona v. Mayorkas,

U.S. 143 S.Ct. 1312, 216 L.Ed.2d 452 (2023)

(mem). While the Court’s brief Order was

devoid of analysis, a separate Statement from

Justice Gorsuch revealed that the Court’s

decision was based on the end of the public

health emergency underlying the Title 42

orders. See id. at 1313-14 (Gorsuch, J.,

statement). The same reasoning applies here.

Having determined this case to be moot, we

turn to the final question of this saga: What

next? The parties argue over this point, but

fortunately, our longstanding case law pro

vides a clear answer. “The ‘ordinary practice

in disposing of a case that has become moot on

appeal is to vacate the judgment with direc

tions to dismiss.’” League of Women Voters of

Fla. Inc. v. Fla. Sec’y of State, 66 F.4th 905,

949 (11th Cir. 2023) (quoting Lewis v. Cont’l

Bank Corp., 494 U.S. 472, 482, 110 S.Ct.

1249,108 L.Ed.2d 400 (1990)); see also United

States v. Munsingwear, Inc., 340 U.S. 36, 39,

71 S.Ct. 104, 95 L.Ed. 36 (1950); Duke Power

Co. v. Greenwood Cty., 299 U.S. 259, 267, 57

S.Ct. 202, 81 L.Ed. 178 (1936); Flanigan’s

Enters., Inc. of Ga v. City of Sandy Springs,

868 F.3d 1248, 1271 & n.24 (11th Cir. 2017)

(en banc); Al Najjar, 273 F.3d at 1340; In re

Ghandtchi, 705 F.2d 1315, 1316 (11th Cir.

1983) (per curiam). So, in a case born of extra

ordinary circumstances, we conclude with a

familiar routine.

If these cases are applied in the case at bar, it is clear

that reversal of the jury verdict as to the counter

claims is warranted.

CONCLUSION

For the foregoing reasons, Gabriel N. Schwartz,

Esq. respectfully request that this Court issue a writ

of certiorari to review the judgment of the Colorado

Supreme Court.

Respectfully submitted,

Gabriel N. Schwartz, Esq.

Petitioner Pro Se

755 Grand Blvd. Suite B-105, #125

Miramar Beach, FL 32550

(212) 671-0448

gns2000@msn.com

August 22, 2024

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