Petition for Writ of Certiorari — Thompson v. Turk (No. 08-140)

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- 140 JUL 21 2008

ote. 2° 14

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

TAMARA THOMPSON and

DISABLED RIGHTS ACTION COMMITTEE,

Petitioners,

MICHAEL E. TURK,

Respondent.

On PETITION FOR A Writ OF CERTIORARI TO THE

UNITED StaTEs Court OF APPEALS

FOR THE NINTH CIRCUIT

—_—_—_—_—_——

——<—<—<$—$$

PETITION FOR A WRIT OF CERTIORARI

RICHARD F: ARMKNECHT, IIT

364 West 120 South

Lindon, Utah 84042

(801) 796-0901

Attorney for Petitioners

217176 Ic

COUNSEL PRESS

800) 274-3321 + (800) 359-6859

QUESTIONS PRESENTED

1. Whether the private enforcement of the Fair

Housing Act is limited by a statute of repose (and not a

statute of limitations) for claims brought alleging a

discriminatory housing practice ‘in violation of 42 U.S.C.

§ 3604(f)(2)) where the alleged discrimination is a failure

to design and construct multifamily housing to meet

the accessibility requirements set forth at 42 U.S.C.

§ 3604(f)(3)(C).

2. Whether the “continuing violations doctrine”

applies to the private enforcement of the Fair Housing

Act so that a discriminatory housing practice does not

“terminate” as long as the discriminatory conditions

remain extant.

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioners

Petitioner Tamara Thom. son is an individual citizen

of the United States, residing in Nevada. Tamara

Thompson is a member of Disabled Rights Action

Committee, but has no other corporate affiliations.

Tamara Thompson was a Plaintiff in the District Court,

and an Appellant in the Ninth Circuit Court of Appeals.

Petitioner Disabled Rights Action Committee is a

Utah nonprofit corporation. Disabled Rights Action

Committee has no stock - it is a member-controlled

corporation. Disabled Rights Action Committee has no

corporate affiliations. Disabled Pights Action Committee

was a Plaintiff in the District Court, and an Appellant in

the Ninth Circuit Court of Appeals.

Respondent

Respondent Michael E. Turk is an individual citizen

of the United States, residing in California. Michael E.

Turk was an officer of Gohres Construction Company

and of Rancho Del Norte Villas, Inc. in 1997. Michael E.

Turk was a Defendant in the District Court, and an

Appellee in the Ninth Circuit Court of Appeals.

i201

Because the Ninth Circuit consolidated for decision

(and for en banc oral argument) the appeal! of petitioners

Thompson and Disabled Rights Action Committee with

another case (Garcia v. Brockway (Ninth Circuit Docket

number 05-35647)), additional parties are identified as

Respondents.

Noll Garcia was the Plaintiff-Appellant in Garcia v.

Brockway.

State Farm Fire and Casualty Company was an

Intervenor-Appellee in Garcia v. Brockway.

Dennis Brockway was a Defendant-Appellee in

Garcia v. Brockway.

Robert Stewart was a Defendant-Appellee in Garcia

v. Brockway.

Stewart Miles & Associates was a Defendant-

Appellee in Garcia v. Brockway.

TABLE OF CONTENTS

Page

Ee ee i

Parties to the Proceeding and Rule 29.6

eee te eee eR cee l we aus ii

CNN cick eh ey CR ORe REESE iv

is po ckereeiusweep nee Vv

Table of Cited Authorities ................... vi

es i ciéc cc aeutneae seuss 1

Statement of Jurisdiction .................0. 1

Constitutional and Statutory Provisions Involved

ARAUGUE beter deh Geest ined) babe eCEd Ontos 2

EE GE eee 5

Reasons for Granting the Petition ............ 9

I a ee aes 23

TABLE OF APPENDICES

Page

Appendix A — Opinion Of The United States

Court Of Appeals For The Ninth Circuit Filed

Se Oe EE 2 sud sk cevdvnsiusuceteuavessas la

Appendix B — Order Of The United States

District Court For The District Of Nevada

Dated Getober 1%, BOGS... ce cccvccccccccccs 49a

TABLE OF CITED AUTHORITIES

Page

Cases:

Ackerman v. Deaf and Hearing Connection

of Tampa Bay, Ince.,

197 Fed.Appx. 879 (11th Cir. 2006) .......... 10

Astoria Fed. Sav. & Loan Ass’n v. Solimino,

I 16

Bangerter v. Orem City Corp.,

46 F:3d 1491 (10th Cir. 1995) ............... 10

Bay Area Laundry and Dry Cleaning Pension

Trust Fund v. Ferbar Corp. of Cal.,

i che ceevebeeseececceses 6,17

Bryant Woods Inn v. Howard County,

124 F.3d 597 (4th Cir. 1997) ................ 10

City of Edmonds v. Wash. State Bldg.

Code Council, 18 F.3d 802 (9th Cir. 1994) .... 10

City of Edmonds v. Oxford House,

ee Ae ccs ee tkessecececees 9,18

Clark v. Towa City,

ED \obccveevcstccdvcessesees 17

Curtis v. Loether,

Ne ewmeese 6,15

vii

Cited Authorities

Page

Elderhaven, Inc. v. City of Lubbock,

98 F.3d 175 (Sth Cir. 1906) ..........eseeee: 10

Fair Housing Council, Inc.

v. Village of Olde St. Andrews, Inc.,

210 Fed. Appx. 469 (6th Cir. Dec. 15, 2006)

cert. denied 128 S. Ct. 880 (2008) ........... 10

Garcia v. Brockway,

526 F.3d 456 (9th Cir. 2008) .............. passim

Gladstone Realtors v. Village of Bellwood,

Cf ES eee 19

Havens Realty Corp. v. Coleman,

CTD. occseesncceceseeess 6, 18, 20

Holley v. Crank,

258 F.3d 1127 (9th Cir. 2001) ............... 15

Hovsons, Inc. v. Township of Brick,

89 F'3d 1096 (3rd Cir. 1996) ................ 10

Lapid-Laurel v. Zoning Bd. of Adjustment,

284 F.3d 442 (3rd Cir. 2002) ................ 10

Meyer »v. Holley,

SEED. nc ccccccccecedcssens 6, 15, 16

National Railroad Passenger Corp. v. Morgan,

I ve cedure scccbecteedanes 11

vili

Cited Authorities

Oxford House-C v. City of St. Louis,

77 F.3d 249 (8th Cir. 1996) ...........

Patterson v. Shumate,

504 U.S. 753 (1992) ............ cee.

Rawlings v. Ray,

EE IED a nbc hvcccesdeces ves

Reg'l Econ. Cmty. Action Program

v. City of Middleton,

29 F.3d 35 (2nd Cir. 2002) ............

Reiter v. Cooper,

Se SI RUE dee nsccccccccccce

Samaritan Inns v. District of Columbia,

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

Skidmore v. Swift & Co.,

PP ME REED co cncncsccccvccss

Shapiro v. Camden Towers, Inc.,

51 F.3d 328 (2nd Cir. 1995) ...........

Page

sawses 10

eneeun 11

redwes 17

teewes 17

peneea 10

onaeen 19

Smith & Lee Associates v. City of Taylor,

102 F.3d 781 (6th Cir. 1996) ..........

Trafficante v. Metro. Life Ins. Co.,

a GL errr er rere

Cited Authorities

Page

United States v. City of Palatine,

3? FSd 1280 (Tth Cir. 1994) .............0. 10

United States v. Texas,

ED ass os bisdsncevenwises 16

Statutes:

ee 1

Fair Housing Act (42 U.S.C. § 3601, et seq.) .... 2

ED his al aad wed eennseesneen eae 3

ok 5 das open cdensveuenscadns 3

tess Dud ida wesseaebene 3, 11

Ge IED bo vacecccccececcessence 9, 10, 14

GE WA. BEOAE) «nc ccc ccccccccccss 9, 10, 11, 12

I os ns cv eccmeweevdcwey passim

Ge ED 6. ncnccccnvccccenssceus passim

I oe 9, 12, 13

Oe as BE) oc ccc cccccccccscess passim

UBL, SARE) 2... occ eccccccccns passim

ey IED boc ons cece cocvcicstecsues 13, 14

Cited Authorities

Page

Other Authorities:

Bwiack’s Law Dictionary 26 (8th ed. 2004) ..... 20

H.R. Rep. No. 711, 100th Cong., 2nd Sess. (1988),

reprinted in 1988 U.S.C.C.A.N. 2173 .... 11, 20, 21

Rouuin M. Perkins & RONALD N. Boyce,

CRIMINAL Law (3d ed. 1982) .............0-- 20

NORMAN J. SINGER, STATUTES AND STATUTORY

CONSTRUCTION (6th ed. 2000 and 7th ed. 2007)

Ss ed dae Gade te dabbled deine ua ceu deme 12, 15-16

U.S. Dep’t of Hous. & Urban Dev., Fair Housing

Act Design Manual: A Manual To Assist

Designers and Builders in Meeting the

Accessibility Requirements of the Fair

Housing Act (rev. 1998)) available at http://

ww.huduser.org/publications/destech/

fairhousing.htm] (Last visited Jul. 29, 2008)

WeEBSTER’S NINTH NEW COLLEGIATE DICTIONARY

Gre LE is ok 8 ee ee oe we 20

Tamara Thompson and Disabled Rights Action

Committee respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The Ninth Circuit opinion (App. A at la) is a

consolidated opinion. It is reported as Garcia v.

Brockway, 526 F.3d 456 (9" Cir. 2008). The opinion of

the district court (App. B at 49a) is not a reported

decision.

STATEMENT OF JURISDICTION

The en banc judgment of the Ninth Circuit Court

of Appeals was entered on May 13, 2008 (App. A at 2a).

The jurisdiction of this Court is invoked pursuant

to 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves statutory provisions of the Fair

Housing Act (codified at 42 U.S.C. § 3601, et seg.) (“FHA”).

Hereinafter, all section references (unless otherwise noted)

are to Title 42 of the United States Code.

A. The FHA’s statute of limitations for citizen

suits provides that:

An aggrieved person may commence a

civil action in an appropriate United

States district court or State court not

later than 2 years after the occurrence or

termination of an alleged discriminatory

housing practice, or the breach of a

conciliation agreement entered into under

this subchapter, whichever occurs last, to

obtain appropriate relief with respect to

such discriminatory housing practice or

breach.

§ 3613(a)(1 (A).

B. The FHA’s definitions provide that an:

“Aggrieved person” includes any person

who —

(1) claims to have been injured by a

discriminatory housing practice; or

(2) believes that such person will be

injured by a discriminatory housing

practice that is about to occur.

§ 3602(i)(1).

C. The FHA’s definitions further provide

that:

“Discriminatory housing practice”

means an act that is unlawful under

section 804, 805, 806, or 818.'

§ 3602(f).

D. The FHA makes it unlawful, inter alia:

To discriminate against any person in

the terms, conditions, or privileges of

sale or rental of a dwelling, or in the

provision of services or facilities in

connection with such dwelling, because

of a handicap of —

(A) that person; or

(B) aperson residing in or intending

to reside in that dwelling after it is

so sold, rented, or made available; or

person.

§ 3604(f)(2).

1. Such sections are codified at § 3604, § 3605, § 3606, and

$ 3617.

E. The FHA (at § 3604(f)(3)) provides that:

For the purposes of this subsection,

discrimination includes —

(A) + * *.

(B) ++ *. or

construction of covered multifamily

dwellings for first occupancy after the date

that is 30 months after September 13,

1988, a failure to design and construct

those dwellings in such a manner that to

design and construct those dwellings in

such a manner that:

(i) the public use and common use

portions of such dwellings are readily

accessible to and usable by

handicapped persons;

(ii) all the doors designed to allow

passage into and within all premises

within such dwellings are sufficiently

wide to allow passage by handicapped

persons in wheelchairs; and

(iii) all premises within such dwellings

contain the following features of

adaptive design:

(I) an accessible route through the

dwelling;

(II) light switches, electrical

outlets, thermostats, and other

environmental controls’. in

accessible locations;

(III) reinforcements in bathroom

walls to allow later installation of

grab bars; and

(TV) usable kitchens and bathrooms

such that an individual in a

wheelchair can maneuver about the

space.

§ 3604(f)(3).

STATEMENT OF THE CASE

Michael E. Turk was an officer of Gohres

Construction Company and Rancho Del Norte Villas,

Inc., the corporations which built “The Villas at Rancho

del Norte” (“the Villas”) in 1997.

In 2004, plaintiff Tamara Thompson (a member of

Disabled Rights Action Committee (“DRAC”)) visited

the Villas where she encountered physical barriers to

access. Within a year of Ms. Thompson’s visit to the

Villas, DRAC and Ms. Thompson filed a lawsuit against

Mr. Turk (as well as others who took part in the design

and construction of the Villas). The district court

dismissed the complaint as time-barred and expressly

held that “the statute of limitations provided by

Congress in § 3613 should be construed [as] a statute of

repose for Defendants.” App. B at 65a (emphasis added).

Moreover, the District Court recognized that the

continuing violation doctrine is generally applicable to

the FHA (citing Havens Realty Corp. v. Coleman, 455

U.S. 363 (1982)), but crafted an exception with regard

to discriminatory housing practices occasioned by

discrimination as defined at § 3604(f)(3)(C). App. B at

57a-58a.

DRAC and Ms. Thompson filed a timely appeal and

(after briefing and oral argument), the panel assigned

to the case affirmed the district court’s dismissal by a

2-1 majority.

Thompson and DRAC requested rehearing en bance,

noting significant inconsistencies between the panel’s

decision and both the language of the statute and this

Court’s decisions.

Citing Bay Area Laundry and Dry Cleaning

Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S.

192, 200-201 (1997), Petitioners noted that the Ninth

Circuit’s construction of § 3613(a)(1)(A) as a statute of

repose was inconsistent with the standard rule that a

limitations period will not begin to run until the plaintiff

has acomplete and present cause of action. Citing Curtis

v. Loether, 415 U.S. 189, 195 (1974) and Meyer v. Holley,

537 U.S. 280, 285 (2003), Petitioners further noted that

the panel decision’s excepting a claim under the FHA

from the standard rules for tort claims (Garcia v.

Brockway, 526 F.3d 456, 464 (9 Cir. 2008)) was contrary

to this Court’s precedent.

Most fundamentally, however, Petitioners refuted

the panel decision’s rationale for its decision to ignore

the plain structure of the statute, which shows that

§ 3604(f)(3)(C) merely sets forth a definition of

discrimination, but not an actionable “discriminatory

housing practice.” Such rationale was that conformance

with the plain language of the statute would hinder the

enforcement of the FHA by the Attorney General, but

Petitioners set forth the inaccuracy of the panel

decision’s rationale.

The Ninth Circuit ordered that the case be reheard

en banc. Subsequently, five amicus briefs were filed.

(1) Brief of Amici Curiae AARP; National Fair

Housing Alliance, Inc.; Paralyzed Veterans of America;

National Spinal Cord Injury Association, Inc.; The

Epilepsy Foundation; International Association of

Official Human Rights Agencies (IAOHRA); The ARC

of the United States in Support of Appellants and

Urging Reversal;

(2) Brief of Amici Curiae Silver State Fair Housing

Council, Inc., Nevada Disability Advocacy and law

Center, Disability Rights Education and Defense Fund,

Inc., Disability Rights Advocates, National Disability

Rights Network, The Impact Fund, Protection and

Advocacy, Inc., and law Professors Robert G. Schwemm,

Michael P Seng, and Michael Evans in Support of

Appellants Noll Garcia, Tamara Thompson, and Disabled

Rights Action Committee.

(3) Brief of Amici Curiae The California Building

Industry Association, California Chamber of Commerce,

and California Business Properties Association in

Support of Appellees and Urging Affirmance;

(4) Brief of Amici Curiae National Multi Housing

Council and National Apartment Association in Support

of Appellees and Urging Affirmaice; and

(5) Brief of Amicus Curiae Idaho Association of

Realtors in Support of Appellees.

After oral argument, the Ninth Circuit issued an

en banc decision that essentially adopted the original

panel decision. While minor technical changes were

made, the criticisms of the original panel decision that

Petitioners presented in their petition for rehearing en

banc were not addressed by the Ninth Circuit.

REASONS FOR GRANTING THE PETITION

I. THE DECISION OF THE NINTH CIRCUIT

COURT OF APPEALS CONFLICTS WITH A

DECISION OF THIS COURT, WITH DECISIONS

OF TEN OTHER CIRCUITS, AND WITH

NATIONALLY APPLICABLE ADMINISTRATIVE

GUIDANCE.

City of Edmonds v. Oxford House, 514 U.S. 725

(1995) concerned a discriminatory housing practice (one

made unlawful under § 3604(f)(1)(A)) and discrimination

as defined under § 3604(f)(3)(B). 7d. at 729. In City of

Edmonds, this Court applied the plain language of

§ 3604(f) and treated one of the definitions of

discrimination provided at § 3604(f)(3) as subordinate

to the discriminatory housing practices described in

§ 3604(f). Id. at 729.

Even though the relation between the definitions

provided at § 3604(f)(3) and the discriminatory housing

practices described in § 3604(f) is of crucial significance

to deciding the questions presented, the Ninth Circuit

limited its discussion of such relationship to a footnote.

See Garcia, 526 F:3d at 461 (fn. 1).

Eleven Circuit Courts of Appeal (including the

Ninth Circuit) have construed the definition provided

at § 3604(f)(3)(B)) as subordinate to the discriminatory

housing practices described in § 3604(f)(1) and in

§ 3604(f)(2). See Reg’l Econ. Cmty. Action Program v.

City of Middleton, 29 F.3d 35, 45 (2? Cir. 2002)

(subordinate to § 3604(f)(1)); Shapiro v. Camden Towers,

Inc., 51 F.3d 328, 333 (2 Cir. 1995) (subordinate to

§ 3604(f)(2)); Hovsons, Inc. v. Township of Brick, 89 F:3d

1096, 1102-03 (3"™ Cir. 1996) (subordinate to § 3604(f)(1));

Lapid-Laurel v. Zoning Bd. of Adjustment, 284 F3d 442,

456 (3"™ Cir. 2002) (subordinate to § 3604(f)(2)); Bryant

Woods Inn v. Howard County, 124 F:3d 597, 602-03 (4th

Cir. 1997) (subordinate to § 3604(f)(1)); Elderhaven, Inc. v.

City of Lubbock, 98 F.3d 175, 178 (5" Cir. 1996) (subordinate

to § 3604(f)(1)); Smith & Lee Associates v. City of Taylor,

102 F'3d 781, 790 (6" Cir. 1996) (subordinate to § 3604(f)(1));

United States v. City of Palatine, 37 F3d 1230, 1232 (7"

Cir. 1994) (subordinate to § 3604(f)(1)); Oxford House-C v.

City of St. Louis, 77 F.3d 249, 250 (8 Cir. 1996)

(subordinate to § 3604(f)(2)); City of Edmonds v. Wash.

State Bldg. Code Council, 18 F:3d 802, 804 (9 Cir. 1994)

(subordinate to § 3604(f\(2)); Bangerter v. Orem City Corp.,

46 F.3d 1491, 1498, 1501 (10 Cir. 1995) (subordinate to

both § 3604(f)(1) and § 3604(f)(2)); Ackerman v. Deaf and

Hearing Connection of Tampa Bay, Inc., 197 Fed.Appx.

879, 881 (11" Cir. 2006) (subordinate to both § 3604(f)(1)

and § 3604(f)(2)); and Samaritan Inns v. District of

Columbia, 114 F.8d 1227, 1231-32 (D.C. Cir. 1997)

(subordinate to § 3604(f)(1)).

Moreover, the Sixth Circuit has held that

§ 3604(f)(3)(C) is subordinate to the discriminatory housing

practices described in § 3604(f). Fair Housing Council,

Inc. v. Village of Olde St. Andrews, Inc., 210 Fed. Appx.

469 (6th Cir. Dec. 15, 2006) cert. denied 128 S. Ct. 880 (2008).

Alternatively, if discrimination as defined under

§ 3604(f)(3)(C) is properly considered to set forth a

“discriminatory housing practice” that contstitutes an

actionable “unlawful act,” then the Ninth Circuit has

entered a decision on an important question of federal law

in a manner that is in direct conflict with HUD’s

interpretation of the FHA.

Il. THE DECISION OF THE NINTH CIRCUIT IS

INCORRECT.

A. The Plain Language Of § 3604 Shows That

§ 3604(f)(3)(C) Is Not An Actionable

“Discriminatory Housing Practice.”

1. The statutory structure is clear.

When interpreting statutes, courts start with the plain

language of the statute. See Patterson v. Shumate, 504

U.S. 753, 757-59 (1992). Critical to the resolution of both

questions presented is the relationship between the

definitions of discrimination set forth at § 3604(f)(3) and

the unlawful discriminatory housing practices set forth at

§ 3604(f)(1) and § 3604(f)(2).

Under § 3604(f)(2), it is unlawful to discriminate against

a disabled person “in the terms, conditions, or privileges?”

of sale or rental of a dwelling” or “in the provision of

services or facilities in connection with such dwelling.”

2. This Court has held that “[t)he phrase ‘terms, conditions,

or privileges of employment’” is not limited to “terms’ and

‘conditions’ in the narrow contractual sense.” National Railroad

Passenger Corp. v. Morgan, 536 U.S. 101, 115-116 (2002). The

“terms, conditions, or privileges” occasioned by a failure to

design and construct in an accessible manner are not

contractual. They are, instead, structural. Such structural

conditions have been found by Congress to constitute the

practical equivalent of a “posted sign saying ‘No Handicapped

People Allowed.’” H.R. Rep. No. 711, 100th Cong., 2nd Sess.

(1988), at 25, reprinted in 1988 U.S.C.C.A.N. 2173, 2186.

The introductory line of § 3604(f)(3) clearly states:

“For the purposes of this subsection, discrimination

includes.*” Thus, it is abundantly clear that § 3604(f)(3)

presents three definitions of “discrimination” that serve

to help define discrimination for the purpose of

§ 3604(f)(1) and § 3604(f)(2). Such definitions set forth

at § 3604(f)(3) are not “unlawful” in and of themselves:

While a failure to meet the standard of care set forth at

§ 3604(f)(3)(C) is “discrimination” (for the purpose of

§ 3604(f)(1) and § 3604(f)(2)), such failure is not

“unlawful” according to a plain reading of § 3604 and

does not — in and of itself - constitute a cause of action.

Quite simply, mere “discrimination” is not the same as a

“discriminatory housing practice.”

2. The Ninth Circuit’s public policy

considerations do not override the

statute’s plain language.

The Ninth Circuit based its decision on a belief that

“treating (f)(3)(C) as subordinate [to (f)(1) and (f)(2)]

makes no structural sense.” Garcia, 526 F.3d at 461

(fn 1). The Ninth Circuit, however, failed to reconcile its

holding with the “structural sense” that has been noted

by this Court (and by ten Circuit Courts of Appeals other

than the Ninth Circuit itself) with regard to

§ 3604(f)(3)(B). Such failure continued even after the

logical shortcoming of the Ninth Circuit’s decision was

identified in a petition for rehearing en banc. Rather

than provide a rationale whereby the statutory

3. The use of the word “includes” is characteristic of a

definition provision. See 2A Nokman J. SINGER, STATUTES AND

STATUTORY CONSTRUCTION § 47:7, p. 305 (7th ed. 2007).

vie)

structure would dictate that discrimination defined at

§ 3604(f)(3)(C) should be treated differently than

discrimination defined at § 3604(f)(3)(B), the Ninth

Circuit decision (in a mere footnote) presented its own

policy considerations.

In particular, the Ninth Circuit supported

divergence from the plain language of the statute based

upon a belief that adherence to the plain language of

the FHA:

would make it impossible, or at least more

difficult, for the Attorney General to bring a

design and construction claim against builders

under 42 U.S.C. § 3614(a), because design and

construction of an FHA-noncompliant

building alone would not, under the dissent’s

interpretation, be actionable under the FHA.

The dissent’s interpretation therefore may

help a few FHA plaintiffs today, but it could

harm many more people living in FHA-

noncompliant units in the future.

Garcia, 526 F.3d at 461 (fn. 1).

A plain reading of § 3614(a), however, shows that

the Attorney General’s authority to bring suit is not

limited to situations where there is an “alleged

discriminatory housing practice” (as is required of

private litigants under § 3613(a)(1)(A)). Rather, the

Attorney General may commence a civil action based

upon a “reasonable cause to believe that any person or

persons is engaged in a pattern or practice of resistance

to the full enjoyment of any of the rights granted by

[the Fair Housing Act].” While the construction of

inaccessible housing is (in and of itself) not an unlawful

“discriminatory housing practice,” such construction

certainly constitutes “resistance to the full enjoyment

of” rights granted by the FHA. Moreover, the Attorney

General (again, with “reasonable cause to believe”) may

commence a civil action under § 3614(a) where “any

group of persons has been denied any of the rights

granted by [the FHA] and such denial raises an issue of

general public importance.” In the hypothetical

situation presented by the Ninth Circuit, the “people

living in FHA-noncompliant units” would be the very

“group of persons” regarding whom the Attorney

General can bring a suit.

Finally, even if the language of § 3614(a) (together

with a construction of § 3604(f) that is consistent with

its plain language) could somehow be read to support a

limitation on FHA enforcement by the Attorney General,

the Ninth Circuit overlooks the comparative importance

of private enforcement and the Attorney General’s

enforcement of the FHA. Indeed, in Trafficante v. Metro.

Life Ins. Co., 409 U.S. 205 (1972), this Court noted that

“the enormity of the task makes the role of the Attorney

General minimal, [so] the main generating force must

be private suits.” /d. at 209, 211 (emphasis added). Quite

simply, the judicial amendment of the FHA to create a

statute of repose for the benefit of builders cannot be

considered to be in the best interests of the greater part

of the disabled community.

B. Treating § 3613(a)(1)(A) As A Statute Of

Repose Is Contrary To Cannons Of Statutory

Construction.

1. The Ninth Circuit’s construction of the

FHA is inconsistent with common law

principles related to tort actions.

“This Court has noted that an action brought for

compensation by a victim of housing discrimination is,

in effect, a tort action.” Meyer v. Holley, 587 U.S. at 285

(citing Curtis v. Loether, 415 U.S. at 195-196). The Ninth

Circuit, ignoring this Court’s reversal of the Ninth

Circuit in Meyer v. Holley,‘ held that this Court’s holding

in Curtis v. Loether was limited to the narrow issue of

the availability of jury trials. The Ninth Circuit, however,

did not cite to any decision of this Court (or of any other

Court of Appeals) to support its excepting FHA claims

from treatment as tort actions.

The classification of FHA claims as tort actions is

helpful for statutory interpretation as “[t}he common

law, having been classified and arranged into a logical

system of doctrine, principles, rules, and practices,

furnishes one of the most reliable backgrounds upon

which analysis of the objects and purposes of a statute

can be determined.” 2B NorMAN J. SINGER, STATUTES AND

_+ = - en —_—- —_——_——_—- — —-— —-———

4. In Holley v. Crank, 258 F:3d 1127, 1129 (9 Cir. 2001), the

Ninth Circuit held that “({a]lthough under general principles of

tort law corporate shareholders and officers usually are not

held vicariously liable for an employee’s action, the criteria for

the Fair Housing Act is different...” Jd. at 1129. Such exception

to general principles of tort law was rejected by this Court in

Meyer v. Holley, 537 U.S. 280 (2003).

StTaTUTORY CONSTRUCTION § 50.01, p. 139 (6th ed. 2000).

See also, Meyer v. Holley, 537 U.S. at 285 citing Astoria

Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108

(1991) (“Congress is understood to legislate against a

background of common-law... principles”); and United

States v. Texas, 507 U.S. 529, 584 (1993) (“In order to

abrogate a common-law principle, the statute must

‘speak directly’ to the question addressed by the

common law”). |

A simple analog to FHA liability under § 3604(f)(2)

based upon a failure to properly design and construct

covered multi-family housing was presented by Judge

Fisher in his thoughtful dissent to the Ninth Circuit’s

decision:

Before[a person is injured], the improperly

designed building (and the landlord’s

unimplemented rental policy) are much like a

potentially dangerous ditch into which no one

has yet fallen — capable of inflicting harm and

violating the law, but not yet actually doing

either.

Garcia, 526 F.3d at 471 (Fisher, J., dissenting (emphasis

in original)).

2. The Ninth Circuit fails to show that

Congress intended to create a statute of

repose.

“(T]he standard rule [is] that the limitations period

commences when the plaintiff has ‘a complete and

present cause of action.’”” Bay Area Laundry, 522 U.S.

at 200-201 (1997) quoting Rawlings v. Ray, 312 U.S. 96,

98 (1941); and citing Clark v. lowa City, 20 Wall. 583,

589 (1875) (“All statutes of limitation begin to run when

the right of action is complete ... .”). This Court has

noted that:

While it is theoretically possible for a statute

to create a cause of action that accrues at one

time for the purpose of calculating when the

statute of limitations begins to run, but at

another time for the purpose of bringing suit,

we will not infer such an odd result in the

absence of any such indication in the statute.

Reiter v. Cooper, 507 U.S. 258, 267 (1992).

Unless Congress directs otherwise in the legislation

at issue, “a cause of action does not become ‘complete

and present’ for limitations purposes until the plaintiff

can file suit and obtain relief.” Bay Area Laundry, supra,

at 200-201.

As § 3613(a)(1)(A) has been construed by the Ninth

Circuit, an even more odd result obtains because the

statute of repose does not give potential defendants

repose against claims for injunctive relief filed by the

Attorney General, a fact noted by the Ninth Circuit.

See, Garcia, 526 F.3d at 461 (fn. 2).

3. The Ninth Circuit’s construction is

inconsistent with the FHA’s remedial

intent.

This Court has been “mindful of the [Fair Housing]

Act’s stated policy ‘to provide, within constitutional

limitations, for fair housing throughout the United

States.’ ” City of Edmonds, 514 U.S. at 731 (quoting

§ 3601). The FHA is broadly interpreted so as to fully

effectuate Congress’ remedial purpose. See, e.g.,

Havens, 455 U.S. at 372-74; Trafficante, 409 U.S. at 209-

12 (holding that the language of the F'HA is “broad and

inclusive,” that the FHA carries out a “policy that

Congress considered to be of the highest priority,” and

that vitality can be given to this policy “only by a

generous construction” of the statute). Such generous

construction encompasses FHA provisions that concern

“complaint-filing.” City of Edmonds, 514 U.S. at 731.

C. Even If § 3604(f)(3)(C) Independently Sets

Forth An Actionable “Discriminatory

Housing Practice,” The Continuing

Violations Doctrine Is Applicable.

1. The Ninth Circuit’s decision is contrary

to HUD’s nationally applicable guidance.

HUD has published a manual taking the position

that suits can be filed “at any time that the building

continues to be in noncompliance, because the

discriminatory housing practice — failure to design and

construct the building in compliance —- does not

terminate.” U.S. Dep’t of Hous. & Urban Dev., Fair

Housing Act Design Manual: A Manual To Assist

Designers and Builders in Meeting the Accessibility

Requirements of the Fair Housing Act 22 (rev. 1998))

http://ww.huduser.org/publications/destech/fairhousing.

html (Last visited Jul. 29, 2008). The Ninth Circuit

understands that it’s decision is contrary to such

guidance. See, Garcia, 526 F.3d at 462.

2. HUD’s position is persuasive and is

consistent with the statute.

While HUD’s manual is entitled only to deference

under Skidmore v. Swift & Co., 323 U.S. 134 (1944),

HUD?’s interpretation is persuasive and dovetails with

both the statutory text and nontextual considerations.

See Gladstone Realtors v. Village of Bellwood, 441 U.S.

91, 107 (1979) (““[HUD’s] interpretation of the [FHA]

ordinarily commands considerable deference.”);

Trafficante, 409 U.S. at 210 (“[T]he consistent

administrative construction of the [Fair Housing] Act

... is entitled to great weight.”).

HUD’s view that the continuing violations doctrine

is applicable to causes of action predicated upon

§ 3604(f)(3)(C) is based upon the fact that the failure to

properly design and construct “does not terminate.” The

Ninth Circuit held, however, that “a failure to design

and construct,’ .. . is not an indefinitely continuing

practice, but a discrete instance of discrimination that

terminates at conclusion of the design-and-construction

phase.” Garcia, 526 F.3d at 462. Such holding is

presented by the Ninth Circuit without any citation to

authority, but necessarily assumes that “a failure to

design and construct” can only be an act of commission

and not an act of omission. Such assumption is contrary

to both the customary breadth accorded to “acts”

proscribed by statutes® as well as Congress’ choice to

use of the word “failure” in § 3604(f)(3)(C). A “failure” is

inherently an act of omission.® Similarly, an “act of

omission” is defined as “the failure to do something that

is legally required; a nonoccurrence that involves the

breach of a legal duty to take positive action.” BLack’s

Law Dictionary 26 (8th ed. 2004).

When the “failure” described in § 3604(f)(3)(C) is

properly considered to constitute an act of omission,

effect can be given to the word “termination” as used in

§ 3613(a)(1)(A). The Ninth Circuit’s holding renders

superfluous the word “termination,” but the legislative

history shows that the word “termination” was

purposely included in the amendment to the FHA’s

statute of limitations to “reaffirm the concept of

continuing violations, under which the statute of

limitations is measured from the date of the last asserted

occurrence of the unlawful practice.” H.R.Rep. 100-711,

p.33, 100th Cong., 2nd Sess. (1988), reprinted in 1988

U.S.C.C.A.N. 2178, 2194 (citing Havens Realty Corp. v.

Coleman, 455 U.S. 363, 380-81 (1982)).

5. “(I)n a legislative enactment, .. . if the phrase act or omission

is found, the first word is being employed in the limited sense of

act of commission; whereas if only the word ‘act’ is used, it is

construed ordinarily to include also forbearance or omission.”

Roun M. Perkins & Ronatp N. Boyce, Criminau Law § 4, at 658

(3d ed. 1982) (footnotes omitted).

6. A “failure” is an “omission of occurrence or performance;

specy : a failing to perform a duty or expected action.” WeBsTER’s

Ninth New Couveciate Dictionary 445 (1985).

Finally, the Ninth Circuit’s rejection of HUD’s

guidance is contrary to Congress’ plain statement that

“(tlo the extent that terms, conditions, privileges,

services or facilities operate to discriminate against a

person because of a handicap, elimination of the

discrimination would be required in order to comply with

the requirements of this subsection.” H.R.Rep. 100-711,

p.23-24, 100th Cong., 2nd Sess. (1988), reprinted in 1988

U.S.C.C.A.N. 2173, 2184-85 (emphasis added).

Ill. THE QUESTIONS PRESENTED ARE IMPOR-

TANT.

Addressing the enforcement of the Fair Housing Act,

this Court has noted that “the enormity of the task

makes the role of the Attorney General minimal, [so]

the main generating force must be private suits.”

Trafficante, 409 U.S. at 209, 211. The Ninth Circuit’s

limitation on private suits undermines the FHA’s most

important enforcement mechanism - private suits.

The Amicus briefs filed in the Ninth Circuit highlight

the importance of the questions presented:

The legal issue presented in this appeal is of

great importance to these amici, their

members and constituents. The design and

construction provisions of the Fair Housing

Amendments Act of 1988 were intended to

benefit the estimated 49.7 million people in

the United States who have some type of

disability. As the nation’s population of older

persons rises dramatically over the next

several decades, and as a larger number of

veterans return from service to their country

with serious disabilities, the need for accessible

housing will grow at a much faster rate than the

United States has ever experienced. Unless

people with disabilities have the legal right to

enforce the design and construction standards

of the Fair Housing Act when they encounter

inaccessible housing, Congress’ intent to

eliminate the long-standing segregation of

people with disabilities will be frustrated.

Brief of Amici Curiae AARP; National Fair Housing

Alliance, Inc.; Paralyzed Veterans of America; National

Spinal Cord Injury Association, Inc.; The Epilepsy

Foundation; International Association of Official

Human Rights Agencies (I[AOHRA); The ARC of the

United States in Support of Appellants and Urging

Reversal, p. 4.

Similarly, another Amicus brief noted that:

[EJffective enforcement of the Fair Housing Act

is needed to realize the Fair Housing Act’s

objectives of integrating persons with disabilities

into the American mainstream and making it

possible for persons with disabilities to live

dignified and independent lives. Amici believe

that enforcement actions filed by private

individuals who are the victims of discrimination

are the key to effective enforcement of the Act’s

accessible housing requirements.

Brief of Amici Curiae Silver State Fair Housing

Council, Inc., Nevada Disability Advocacy and law

Center, Disability Rights Education and Defense Fund,

Inc., Disability Rights Advocates, National Disability

Rights Network, The Impact Fund, Protection and

Advocacy, Inc., and Law Professors Robert G.

Schwemm, Michael P Seng, and Michael Evans in

Support of Appellants Noll Garcia, Tamara Thompson,

and Disabled Rights Action Committee, p. 2.

CONCLUSION

If Congress had wanted to create (as part of an

amendment to the FHA intended to extended fair

housing protections to the disabled) a two year statute

of repose for the benefit of the housing industry where

such statute of repose does not even provide “repose”

in that suits can still be brought by the Attorney

General, then Congress could have done so. Instead,

the Ninth Circuit Court of Appeals has taken upon itself

the crafting of such an odd result.

For the reasons set forth above, the Petition for a

Writ of Certiorari should be granted.

Respectfully submitted,

RICHARD F: ARMKNECHT, [II

364 West 120 South

Lindon, Utah 84042

(801) 796-0901

Attorney for Petitioners

APPENDIX A — OPINION OF THE UNITED

STATES COURT OF APPEALS FOR THE NINTH

CIRCUIT FILED MAY 13, 2008

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 05-35647, No. 06-15042

NOLL GARCIA,

Plaintiff-Appellant,

STATE FARM FIRE AND CASUALTY COMPANY,

Intervenor-Appellee,

Vv.

DENNIS BROCKWAY; ROBERT STEWART;

STEWART MILES & ASSOCIATES,

Defendants-Appellees,

and

J. J. ZAVOSHY; Y. W. ZAVOSHY; H&H

PROPERTIES; ZAVOSHY REV. INTER

VIVOS TRUST,

Defendants.

Appendix A

TAMARA THOMPSON; DISABLED RIGHTS

ACTION COMMITTEE,

(a Utah non-profit corporation),

Plaintiffs-Appellants,

Vv.

GOHRES CONSTRUCTION CO.,

a Nevada corporation; MARC GOHRES,

Defendants,

and

MICHAEL E. TURK,

Defendant-Appellee.

Appeal from the United States District Court for the

District of Idaho. D.C. No. CV-03-00193-MHW, D.C. No.

CV-05-00156-ECR. Mikel H. Williams, Magistrate

Judge, Presiding.

Argued and Submitted

March 25, 2008 — San Francisco, California

Filed May 13, 2008

Appendix A

Before: Alex Kozinski, Chief Judge, Harry Pregerson,

Stephen Reinhardt, Andrew J. Kleinfeld, Barry G.

Silverman, M. Margaret McKeown, Kim McLane

Wardlaw, Johnnie B. Rawlinson, Richard R. Clifton,

Carlos T. Bea and N. Randy Smith, Circuit Judges.

Opinion by Chief Judge Kozinski;

Dissent by Judge Pregerson;

Dissent by Judge Fisher

OPINION

KOZINSKI, Chief Judge:

We consider when the statute of limitations begins

to run in a design-and-construction claim under the Fair

Housing Act (FHA).

Facts

In these consolidated cases, plaintiffs appeal the

district court’s determination that their FHA design-

and-construction claim was time-barred by the two-year

statute of limitations. The fact patterns in these cases

(at summary judgment) differ in several significant

respects:

Garcia v. Brockway, No. 05-35647: In 1993, Dennis

Brockway built the South Pond Apartments in Boise,

Idaho, and sold the last unit in 1994. In 1998, the Idaho

Appendix A

Fair Housing Council filed an administrative complaint

with the U.S. Department of Housing and Urban

Development (HUD), and in 2001 Brockway entered into

a conciliation agreement with HUD and the Idaho Fair

Housing Council that resolved the complaint and

provided a fund to pay for accessibility modifications to

any unit for any resident with a disability.

In 2001, plaintiff Noll Garcia rented a unit at South

Pond and resided there until 2003. Because of a disability

Garcia uses a wheelchair for mobility. While at South

Pond, his apartment did not comply with the design-

and-construction requirements of the FHA. It lacked

curb cuts from the parking lot to the sidewalk, it didn’t

have a ramp to the front entrance door and the doorways

were too narrow to allow clear passage of a wheelchair.

Garcia’s requests thal management make accessibility

improvements were ignored, as was his request that

management build a ramp to his door or that he be

relocated to a more accessible unit. Within two years of

leasing the apartment, Garcia sued the original builder

and architect (Brockway and Robert Stewart,

respectively), and the current owners and management

(the Zavoshy defendants). The district court granted

summary judgment in favor of Brockway and Stewart

because Garcia’s design-and-construction claim was not

filed within the limitations period. The court denied the

Zavoshy defendants’ summary judgment on the

accommodations and interference claims, and they

subsequently settled. Garcia appeals the summary

judgment in favor of Brockway and Stewart.

Appendix A

Thompson v. Gohres Construction Co., No. 06-15042:

In 1997, Gohres Construction built the Villas at Rancho

del Norte in North Las Vegas, Nevada. Shortly

thereafter, the Villas were issued a final certificate of

occupancy, and the property was sold through

foreclosure in 2001. Defendant Michael Turk is an officer

of Rancho del Norte Villas, Inc., and of Gohres

Construction. In 1997, the Disabled Rights Action

Committee (DRAC) filed a complaint with HUD, and

HUD terminated the complaint in 2001 because the

complainants, as “testers,” lacked standing. We

subsequently held that testers have standing to sue

under the FHA. See Smith v. Pac. Props. & Dev. Corp.,

358 F.3d 1097, 1104 (9th Cir. 2004).

In 2004, plaintiff Tamara Thompson, a member of

DRAC, “tested” the Villas and found discriminatory

conditions—including an inaccessible building entrance,

no curb cuts for the handicapped parking spaces and

inadequate access to the pool. Within a year of

Thompson's inspection, plaintiffs Thompson and DRAC

sued Turk, Mare Gohres and Gohres Construction,

asserting an FHA design-and-construction claim. The

district court granted defendants’ motion to dismiss

because the claim was time-barred. We granted

plaintiffs’ motion to voluntarily dismiss the appeal as to

Gohres and Gohres Construction. Plaintiffs thus only

appeal the district court’s order with respect to Turk.

Appendix A

Analysis

The FHA prohibits the design and construction of

multifamily dwellings that do not have certain listed

accessibility features. 42 U.S.C. § 3604(f)(3)(C). The

statute provides three enforcement mechanisms. First,

an administrative complaint may be initiated with HUD,

see id. §§ 3610-3612, and remedies include actual

damages to the aggrieved person, civil penalties and

injunctive relief. See 24 C.F.R. § 180.670(b)(3). An

aggrieved person—i.e., any person who “claims to have

been injured by a discriminatory housing practice,”

42 U.S.C. § 3602(i)(1)—must file the complaint “not later

than one year after an alleged discriminatory

housing practice has occurred or terminated.” /d.

§ 3610(a)(1)(A)(i). HUD may also file a complaint sua

sponte; it’s unclear whether HUD is subject to the same

limitations period. See id.

Second, the Attorney General may bring a civil

action if a defendant has “engaged in a pattern or

practice of resistance” to FHA rights, or if a “group of

persons has been denied any [FHA] rights... and such

denial raises an issue of general public importance.”

Id. § 3614(a). The FHA does not provide a statute of

limitations for these actions, and other courts have held

that such actions seeking equitable relief are not subject

to any time limit. See, e.g., United States v. Inc. Vill. of

Island Park, 791 F. Supp. 354, 364-68 (E.D.N.Y. 1992);

United States v. City of Parma, 494 F. Supp. 1049, 1094

n.63 (N.D. Ohio 1980). Actions seeking damages are

subject to the general three-year statute of limitations,

Appendix A

see 28 U.S.C. § 2415(b), and those for civil penalties must

be “commenced within five years from the date when

the claim first accrued.” Jd. § 2462.

The third enforcement mechanism—the one at issue

here—is a private civil action. The FHA provides that

“{ajn aggrieved person may commence a civil action in

an appropriate United States district court or State

court not later than 2 years after the occurrence or the

termination of an alleged discriminatory housing

practice.” 42 U.S.C. § 3613(a)(1)(A). In other words, an

aggrieved person must bring the lawsuit within two

years of either “the occurrence .. . of an alleged

discriminatory housing practice” or “the termination of

an alleged discriminatory housing practice.” Here, the

practice is the “failure to design and construct” a

multifamily dwelling according to FHA standards.’

1. The dissent concedes that our reading of the statute is

“not entirely implausible,” Dissent at 5341, but insists that the

practice at issue is the sale or rental of an FHA-noncompliant

unit, rather than design and construction of the building. /d. at

5338. Therefore, according to the dissent, the statute of

limitations begins to run when a party “first attempts to buy or

rent or tests a FHA-noncompliant unit.” Jd. The dissent reaches

this conclusion by distinguishing section (f)(3)(C) from sections

(f)(1) and (f(2) on the grounds that (f)(3)(C) is a definitional

provision, whereas (f)(1) and (f)(2) provide causes of action.

Id. at 5338, 5341-42. However, (f)(3)(C) is a coordinate section,

not a subordinate section within (f)(1) or (f)(2), so treating

(f)(3)(C) as subordinate makes no structural] sense.

(Cont'd)

Appendix A

Id. § 3604(f)(3)(C). The statute of limitations is thus

triggered at the conclusion of the design-and-

construction phase, which occurs on the date the last

certificate of occupancy is issued. In both cases, this

triggering event occurred long before plaintiffs brought

suit.’

(Cont'd)

Additionally, under the dissent’s interpretation, only the

party that actually does the selling or renting would be liable,

not the party that designed or constructed an FHA-

noncompliant unit, because section (f)(1) prohibits only

discrimination “in the sale or rental . . . [of] a dwelling,” while

section (f)(2) prohibits discrimination “in the terms, conditions,

or privileges of sale or rental of a dwelling.” Thus, if (f)(3)(C)

does not operate as an independent prohibition, but merely

defines the meaning of “discriminate” under (f)(1) or (f)(2),

Garcia wouldn’t have a private cause of action under the FHA

against Brockway and Stewart (the builders) because they sold

or rented no individual units.

The fundamental] problem with the dissent’s interpretation

is that isolating (f)(1) and (f)(2) from (f)(8)(C) alters both the

starting point for the statute of limitations and who is liable

under the FHA. Were we to adopt the dissent’s interpretation,

we would make it impossible, or at least more difficult, for the

Attorney Generai to bring a design-and-construction claim

against builders under 42 U.S.C. § 3614(a), because design and

construction of an FHA-noncompliant building alone would not,

under the dissent’s interpretation, be actionable under the

FHA. The dissent’s interpretation therefore may help a few

FHA plaintiffs today, but it could harm many more people living

in FHA-noncompliant units in the future.

2. This does not leave plaintiffs without any recourse. They

can still report the violation to the Attorney General, and—

(Cont'd)

Appendix A

Plaintiffs advance three theories that would extend

the limitations period to cover their lawsuits. We address

each in turn.

1. Plaintiffs contend that an FHA design-and-

construction violation is a continuing one that does not

terminate until the building defects are cured. The

Supreme Court has held that “where a plaintiff,

pursuant to the Fair Housing Act, challenges not just

one incident of conduct violative of the Act, but an

unlawful practice that continues into the limitations

period, the complaint is timely when it is filed within

{the statutory period, running from] the last asserted

occurrence of that practice.” Havens Realty Corp. v.

Coleman, 455 U.S. 363, 380-81 (1982) (footnote omitted).

Congress has since codified this continuing violation

doctrine by amending the FHA to include both “the

occurrence [and] the termination of an alleged

discriminatory housing practice” as events triggering

(Cont'd)

long after construction is complete—he can seek to enforce

defendants’ legal duty to design and construct if there’s

“a pattern or practice of resistance,” or if “any group of persons

has been denied any [FHA] rights . . . and such denial raises an

issue of general public importance.” 42 U.S.C. § 3614(a). They

can also request accommodations, for which they bear the costs,

to remedy an impediment. See id. § 3604(f)(3)(A)-(B). Garcia’s

case is a good example. Despite the fact that his claims against

Stewart and Brockway were timebarred, Garcia was able to

obtain relief by settling with the current owners and

management of South Pond with respect to his accommodations

claim.

10a

Appendix A

the two-year statute of limitations. 42 U.S.C. §

3613(a)(1)(A) (emphasis added).

Plaintiffs claim Congress’s insertion of

“termination” would be meaningless if it weren’t read

as termination of the design-and-construction defect.

HUD’s Fair Housing Act Design Manual supports this

reading: “With respect to the design and construction

requirements, complaints could be filed at any time that

the building continues to be in noncompliance, because

the discriminatory housing practice—failure to design

and construct the building in compliance—does not

terminate.” U.S. Dep’t of Hous. & Urban Dev., Fair

Housing Act Design Manual: A Manual to Assist

Designers and Builders in Meeting the Accessibility

Requirements of the Fair Housing Act 22 (rev. 1998).*

Plaintiffs and HUD confuse a continuing violation

with the continuing effects of a past violation.

1. “Termination” refers to “the termination of an

alleged discriminatory housing practice.” The Supreme

3. Plaintiffs DRAC and Thompson urge us to remand so

that the district court can give the HUD Manual proper weight.

See United States v. Mead Corp., 533 U.S. 218, 234 (2001) (giving

deference under Skidmore v. Swift & Co., 323 U.S. 134 (1944), to

interpretations contained in agency manuals or enforcement

guidelines). Mead does not require us to do so, see id. at 238,

and we decline their invitation. Instead, we have considered

the HUD manual in our analysis and have given it the proper

Skidmore weight.

lla

Appendix A

Court has “stressed the need to identify with care the

specific [discriminatory] practice that is at issue.”

Ledbetter v. Goodyear Tire & Rubber Co., 1278. Ct. 2162,

2167 (2007). Here, the practice is “a failure to design

and construct,” which is not an indefinitely continuing

practice, but a discrete instance of discrimination that

terminates at the conclusion of the design-and-

construction phase. This violation differs from the one

Congress codified as “continuing” in light of Havens,

where the claims were “based not solely on isolated

incidents ..., but a continuing violation manifested in a

number of incidents—including at least one . . . that

[wa]s asserted to have occurred within the [limitations]

period.” 455 U.S. at 381 (emphasis added).

Put differently, “[a] continuing violation is

occasioned by continual unlawful acts, not by continual

ill effects from an original violation.”* Ward v. Caulk,

650 F.2d 1144, 1147 (9th Cir. 1981) (citing Collins v.

4. The dissent maintains we’re making a “crucial error”

by defining the alleged discriminatory housing practice as the

failure to design or construct an FHA-compliant unit. Dissent

at 5337. The dissent seems to define the act of selling or leasing

an FHA-noncompliant unit as the discriminatory housing

practice. /d. at 5338. However, this confuses the “discrete act of

alleged . . . discrimination” with the “date when the effects of

this practice were felt.” Ledbetter, 127 S. Ct. at 2168. The failure

to design and construct the unit according to FHA standards is

the “underlying” discrete act of discrimination. /d. (quoting

Lorance v. AT&T Techs., Inc., 490 U.S. 900, 911 (1989)). And the

date of this underlying act “governs the limitations period.”

Id. at 2169 (quoting Lorance, 490 U.S. at 911).

12a

Appendix A

United Airlines, Inc., 514 F2d 594, 596 (9th Cir. 1975));

see also Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d

492, 507 (E.D. Va. 2002) (“[An] FHA non-compliant

building which cor tains inaccessible features to disabled

persons is more akin to a continuing effect rather than

a continuing violation under the FHA.”). The Supreme

Court last Term reiterated the distinction between a

continuing violation and continual effects when it held

that “current effects alone cannot breathe life into prior,

unchanged discrimination; as we held in Evans, such

effects in themselves have ‘no present legal

consequences.” Ledbetter, 127 S. Ct. at 2169 (quoting

United Air Lines, Inc. v. Evans, 431 U.S. 553, 558

(1977)). Although the ill effects of a failure to properly

design and construct may continue to be felt decades

after construction is complete, failing to design and

construct is a single instance of unlawful conduct. Here,

this occurred long before plaintiffs brought suit.° Were

5. Garcia argues that defendants’ involvement with the

HUD complaint filed in 1998 continues their prior failure to

design and construct. The complaint was resolved in 2001, and

Stewart was dismissed from it. Pursuant to a conciliation

agreement, Brockway contributed to a modification fund to

assist persons with disabilities to modify the properties,

including South Pond. We reject the argument that participation

in a HUD investigation is an act of discrimination. Further, if

such participation were to retrigger the statute of limitations,

this would create a large disincentive for builders and architects

to cooperate in such proceedings when, as here, HUD initiates

them after the two-year limitations period has run for private

actions.

(Cont'd)

13a

Appendix A

we to now hold the contrary, the FHA’s statute of

limitations would provide little finality for developers,

who would be required to repurchase and modify (or

destroy) buildings containing inaccessible features in

order to avoid design-and-construction liability for every

aggrieved person who solicits tenancy from subsequent

owners and managers. Indeed, now that we have

recognized tester standing, an aggrieved person

wouldn’t even need to solicit tenancy, but merely observe

the violation. See Smith, 358 F.3d at 1104. This is not

what Congress provided in erecting a two-year statute

of limitations for FHA design-and-construction claims.

If Congress wanted to leave developers on the hook

years after they cease having any association with a

building, it could have phrased the statute to say so

explicitly.

(Cont'd)

Garcia further contends that Brockway interfered with his

FHA rights by not notifying him about the modification fund.

But nothing in the conciliation agyecment requires Brockway

to notify any tenant, and no one disputes that Brockway

complied with the agreement. Garcia identifies no action by

defendants that would amount to “interference” with FHA

rights. See Walker v. City of Lakewood, 272 F-3d 1114, 1128-29

(9th Cir. 2001).

Garcia also claims that installation of a ramp to his front

door constitutes an act within the limitations period. Brockway

hadn’t been associated with South Pond for almost eight years

when Garcia moved in, and he didn’t install the ramp. Nor did

Stewart design it. Events that occur after the statute of

limitations has run and that do not involve defendants cannot

operate to re-start the statute of limitations as to them.

14a

Appendix A

Nor may we ignore the statute of limitations to help

an aggrieved person who suffers from the effects of such

violation decades after construction. See Boise Cascade

Corp. v. EPA, 942 F2d 1427, 1432 (9th Cir. 1991) (“Under

accepted canons of statutory interpretation, we must

interpret statutes as a whole, giving effect to each word

and making every effort not to interpret a provision in

a manner that renders other provisions of the same

statute inconsistent, meaningless or superfluous.”).

As the Supreme Court has held,”[t]he limitations

periods, while guaranteeing the protection of the civil

rights laws to those who promptly assert their rights,

also protect [defendants] from the burden of defending

claims arising from . . . decisions that are long past.”

Del. State Coll. v. Ricks, 449 U.S. 250, 256-57 (1980).

“A discriminatory act which is not made the basis for a

timely charge .. . is merely an unfortunate event in

history which has no present legal consequences.”

Ledbetter, 127 S. Ct. at 2168 (quoting Evans, 431 U.S.

at 558).

2. Plaintiffs also argue that the statute of limitations

should not begin to run until the aggrieved person

encounters the design-and-construction defect.* This

novel legal theory was first articulated in a law review

article. See Robert G. Schwemm, Barriers to Accessible

Housing: Enforcement Issues in “Design and

Construction” Cases Under the Fair Housing Act, 40

U. Rich. L. Rev. 753, 849-55 (2006).

6. Thompson and DRAC raise this claim, but Garcia only

argues that his claim would be timely if the continuing violation

doctrine, discovery rule or equitable tolling doctrine applied.

1Sa

Appendix A

There’s some support for this “encounter” theory:

“A damages action under the [FHA] sounds basically in

tort—the statute merely defines a new legal duty, and

authorizes the courts to compensate a plaintiff for the

injury caused by the defendant’s wrongful breach.”

Curtis v. Loether, 415 U.S. 189, 195 (1974). Because an

FHA damages action “sounds basically in tort,” plaintiffs

claim the statute of limitations is not triggered until a

disabled person is actually damaged by the practice.

Plaintiffs contend that, upon completion of construction,

no injury has yet occurred, and “the standard rule [for

tort purposes is] that the limitations period commences

when the plaintiff has a complete and present cause of

action.” Bay Area Laundry & Dry Cleaning Pension

Tr. Fund v. Ferbar Corp. of Cal. , 522 U.S. 192, 201 (1997)

(internal quotation marks omitted). Under this theory,

the statute of limitations did not begin to run until

Thompson tested the Villas, which occurred within two

years of filing suit.

Plaintiffs make too much of the Supreme Court’s

observation that the FHA “sounds basically in tort.”

The Court was not dealing with the statute of limitations

but with the very different question of whether FHA

plaintiffs are entitled to a jury trial. This passing

reference to tort law cannot be read to trump statutory

provisions that deal expressly with the statute of

limitations. The FHA’s limitations period does not start

when a particular disabled person is injured by a

housing practice, but by “the occurrence or the

termination of an alleged discriminatory housing

practice.” 42 U.S.C. § 3613(a)(1)(A). Under the FHA,

16a

Appendix A

the ability to privately enforce the “new legal duty” thus

only lasts for two years from the time of the violation,

and the violation here is “a failure to design and

construct.” Id. § 3604(f)(3)(C). Plaintiff’s injury only

comes into play in determining whether she has standing

to bring suit. See id. §§ 3602(i)(1), 3604(f)(2). Some

aggrieved persons may not encounter this violation until

decades after the limitations period has run and thus

will be unable to file a civil action, even though they have

standing to raise the claim. However, “(i]t goes without

saying that statutes of limitations often make it

impossible to enforce what were otherwise perfectly

valid claims. But that is their very purpose, and they

remain as ubiquitous as the statutory rights or other

rights to which they are attached or are applicable.”

United States v. Kubrick, 444 U.S. 111, 125 (1979).

Piaintiffs’ theory is further undercut by our decision

in Smith, in which we held that the harm of the violation

occurs when a design-and-construction defect is

observed. 358 F.3d at 1104. Under plaintiffs’ theory post-

Smith, any individual with a disability who merely

observes the design-and-construction defect could bring

suit—even if the limitations period had long run for

every tenant and/or owner. The author of plaintiffs’

encounter theory concedes that Smith creates serious

problems for his theory: “{If] testers do have standing

based on injury to their § (f)(1)-(2) rights caused by

encountering such a building, they could presumably

generate an endless series of such injuries by repeated

visits to the building. . . . Eventually, the limitations

periods would run on the claims based on the earlier

17a

Af ppendix A

encounters, but the tester could always start a new clock

by returning to the building.” Schwemm, 40 U. Rich. L.

Rev. at 859 (footnote omitted). The encounter theory

thus “raise[s] serious equitable issues with respect to

timeliness,” id., because it strips the statute of

limitations of all meaning.

3. Garcia argues that the limitations period does not

begin to run until the aggrieved person discovers the

design-and-construction defect.’ Garcia advances this

theory as both the discovery rule and the equitable

tolling doctrine, but neither helps him.

The discovery rule serves to extend the time from

which the limitations period starts to run until “the

plaintiff knows both the existence and the cause of his

injury.” Kubrick, 444 U.S. at 113. Garcia thus contends

that the limitations period shouldn’t have started to run

until he first visited South Pond in 2001. The discovery

rule is strikingly similar to plaintiffs’ encounter theory,

and thus fails for the same reasons. See pp. 5329-31

supra. Holding that each individual plaintiff has a claim

until two years after he discovers the failure to design

and construct would contradict the text of the FHA, as

the statute of limitations for private civil actions begins

to run when the discriminatory act occurs—not

when it’s encountered or discovered. See 42 U.S.C.

§ 3613(a)(1)(A).

“Equitable tolling may be applied if, despite all due

diligence, a plaintiff is unable to obtain vital information

7. Plaintiffs Thompson and DRAC do not raise this claim.

18a

Appendix A

bearing on the existence of his claim.” Santa Maria v.

Pac. Bell, 202 F.8d 1170, 1178 (9th Cir. 2000). This

doctrine “focuses on a plaintiff’s excusable ignorance

and lack of prejudice to the defendant.” Leong v. Potter,

347 F.3d 1117, 1123 (9th Cir. 2003). As Judge Posner has

explained, “{e]quitable tolling is frequently confused

. . with the discovery rule. . . . It differs from the

(discovery rule] in that the plaintiff is assumed to know

that he has been injured, so that the statute of

limitations has begun to run; but he cannot obtain

information necessary to decide whether the injury is

due to wrongdoing and, if so, wrongdoing by the

defendant.” Cada v. Baxter Healthcare Corp., 920 F:2d

446, 451 (7th Cir. 1990).®

Here, Garcia doesn’t claim he was injured within the

limitations period but was unable to obtain vital

information concerning the existence of his claim until

the period expired.’ Instead, he basically contends that

8. Contrary to the dissent’s claim, we’re not “holding that

Congress intended to bar equitable tolling for all FHA claims.”

Dissent at 5343 n.5. Rather, equitable tolling simply doesn’t

apply here, as this is not a case where the plaintiff was injured

within the limitations period yet unable to determine the source

of his injury.

9. Nothing we say precludes the application of equitable

tolling if the requirements of the doctrine are met. For example,

equitable tolling may be appropriate if the builder prevented

testers or problem tenants from visiting the property after the

issuance of a certificate of occupancy, or if a medical condition

prevented a plaintiff from filing suit for some time after testing

(Cont'd)

19a

Appendix A

it would be inequitable not to allow him to bring a civil

lawsuit. Fairness, without more, is not sufficient

justification to invoke equitable tolling, and the district

court properly refused to apply it. In his plea for a fairer

outcome, Garcia fails to mention the extreme prejudice

defendants would suffer if plaintiffs could indefinitely

bring civil damages actions for buildings defendants no

longer own and cannot fix without the cooperation of

the current owners. This is hardly a situation where

there is a “lack of prejudice to the defendant.” Leong,

347 F.3d at 1123.

In sum, application of the discovery rule or the

equitable tolling doctrine, as the district court noted in

Garcia, “would render the clear language of the statute

meaningless and superfluous.” Both doctrines would

have the same effect as the continuing violation doctrine

by tolling the statute of limitations indefinitely and thus

stripping it of all meaning. See pp. 5326-29 supra. Even

if we thought this interpretation were more equitable,

we don't have the authority to “interpret a provision in

a manner that renders other provisions of the same

statute inconsistent, meaningless or superfluous.” Boise

Cascade, 942 F.2d at 1432.

(Cont’d)

the property, see Brockamp v. United States, 67 F.3d 260, 263

(9th Cir. 1995), rev’d on other grounds, 519 U.S. 347 (1997).

20a

Appendix A

As both district courts held, an aggrieved person

must bring a private civil action under the FHA for a

failure to properly design and construct within two years

of the completion of the construction phase, which

concludes on the date that the last certificate of

occupancy is issued. Because neither plaintiff brought

a timely suit, their cases were properly dismissed.

AFFIRMED.

2la

Appendix A

DISSENT BY: Harry Pregerson; Stephen Reinhardt;

Fisher

DISSENT

PREGERSON and REINHARDT, Circuit Judges,

dissenting:

We adopt in full Judge Fisher’s dissent to the three-

judge panel’s decision, Garcia v. Brockway, 503 F.3d

1092, 1101-11 (9th Cir. 2007) (Fisher, Circuit Judge,

dissenting), which also appears immediately below, as

the dissenting opinion of the en banc minority. We write

additionally only to emphasize the extent to which the

majority’s holding perverts the purpose and intent of

the statute. Indeed, the majority’s decision well

illustrates how statutes of limitations have been twisted

by courts to limit the scope and thrust of civil rights

laws.

The majority takes an Act that was designed to

protect disabled persons by mandating that multifamily

housing be made accessible to them and construes its

statute of limitations in a way that solely benefits the

housing construction industry and renders the statute

of far less use to disabled individuals than Congress

intended. The Fair Housing Act (“FHA”) contains a

30 month grace period that gave developers building

new multifamily housing clear notice of what was

required to satisfy the statute’s accessibility standards.

See 42 U.S.C. § 3604(f)(3)(C). There is no reason that a

developer who fails to comply with these requirements

22a

Appendix A

should not be held accountable for such violations.

Nevertheless, the majority holds that unless a disabled

person happens to become aware of the developer’s

failure to comply within two years after the certificate

of completion is issued, the developer is home-free—

completely immune from suit.' Thus, a disabled person

who seeks to acquire an FHA non-compliant unit in a

housing development more than two years after the

development is certified for occupancy cannot sue the

developer even if no person familiar with the needs of

disabled persons had previously seen the property and

no disabled person had been aware of or injured by the

violation until the would-be plaintiff attempted to buy

or lease the unit. It seems apparent to us that Congress

intended the statute of limitations to have the opposite

result: that the disabled person who is injured by the

developer’s violation of the FHA should be able to sue

that developer if he institutes his action within two years

of the injury. It did not intend to invite the developer to

assume the risk of non-compliance, in order to save

construction costs, by taking the chance that his

violation of the law would remain undiscovered by the

disabled community for a period of two years.

The purpose of the FHA’s design and construction

requirements was to protect an important civil right.

1. We recognize that “testers” may also bring FHA design-

and-construct claims. We do not believe, however, that the

efforts of disability rights organizations, however effective they

may be, can somehow make up for the fact that the majority's

construction essentially precludes causes of action brought by

the very persons the statute was intended to protect: disabled

individuals.

23a

Appendix A

It was to help provide disabled individuals equal access

to multifamily housing and to_eliminate the de facto

segregation to which handicap-inaccessible housing

gives rise. See H.R. Rep. No. 100-711, at 27-28 (1988),

reprinted in 1988 U.S.C.C.A.N. 2173, 2188-89 (“The

Committee believes that these basic features of

adaptability are essential for equal access and to avoid

future de facto exclusion of persons with handicaps, as

well as being easy to incorporate in housing design and

construction. Compliance with these minimal standards

will eliminate many of the barriers which discriminate

against persons with disabilities in their attempts to

obtain equal housing opportunities.”). The Act,

including its statute of limitations provision, is to be

construed in a manner that accomplishes this purpose.

See Trafficante v. Metropolitan Life Ins. Co., 409 U.S.

205, 209, 212 (1972) (mandating a “generous

construction” of the FHA’s complaint-filing provisions

to “give vitality to” the statute’s “broad and inclusive”

language); McGary v. City of Portland, 386 F.3d 1259,

1262 (9th Cir. 2004). This the majority has not done.

Instead, it construes the FHA’s statute of limitations so

as to offer the least benefit to disabled persons and the

most to developers of multifamily housing. Because we

cannot condone a construction so wholly at odds with

the purpose of the statute, and the manner in which we

are to construe it, we respectfully dissent.

24a

Appendix A

FISHER, Circuit Judge, dissenting:

I respectfully dissent. The majority erroneously

treats a building’s improper design and construction as

the event that triggers the Fair Housing Act’s (FHA)

two-year statute of limitations. It does so by finding an

ambiguity in the statute and then resolving that

ambiguity contrary to the overall purpose and structure

of the FHA and its legislative and judicial history.

I believe instead that the most plausible reading of

the statute is that the limitations period begins (at the

earliest) when a disabled person actually experiences

discrimination — either in attempting to buy or rent a

noncompliant housing unit, in “testing” such a unit or

upon moving in as a tenant. The majority contravenes

the general rule that statutes of limitations are triggered

by the accrual of a plaintiff’s cause of action. Under the

majority’s approach, a real estate developer or landlord

of a noncompliant building will often be immunized from

suit long before a particular disabled individual has been

injured and able to challenge the noncompliant features.

Importantly, the majority’s position is at odds with the

FHA’s legislative history, with Supreme Court precedent

regarding the statute’s construction and with the

longstanding interpretation of the government agency

charged with administering the FHA.

As a result of the majority’s reading, disabled

persons — the statute’s actual intended beneficiaries

— will be stripped of their ability to enforce the FHA’s

most important protection and instead will be relegated

25a

Appendix A

to “reasonable modifications” at their own expense. In

contrast, real estate developers and landlords who

ignore the FHA’s design requirements will receive a free

pass once two years have elapsed since a defective

building’s construction. Ironically, by invoking provisions

Congress inserted into the FHA to expand disabled

persons’ access to the courts and to facilitate private

enforcement, the majority transforms a statute of

limitations into a highly unusual statute of repose for

the benefit of real estate developers and landlords.

I would hold that Appellants’ claims are not time-

barred. Noll Garcia filed suit within two years of moving

into the South Pond Apartments, and Tamara

Thompson sued less than a year after finding

discriminatory conditions at the Villas at Rancho del

Norte. Accordingly, I would reverse the district courts’

rulings and remand so that Appellants may proceed with

their cases.

The majority begins its analysis of private civil

actions under the FHA by correctly quoting

the applicable statute of limitations. See 42 U.S.C.

§ 3613(a)(1)(A) (“An aggrieved person may commence a

civil action... not later than 2 years after the occurrence

or the termination of an alleged discriminatory housing

practice ... whichever occurs last. ...”). But the majority

then commits a crucial error that underlies the rest of

its decision. “Here,” the majority states, “the

{discriminatory housing] practice is the ‘failure to design

26a

Appendix A

and construct’ a multifamily dwelling according to FHA

standards.” Majority Op. at 5324; see also id. at 5327

(“Here, the practice is ‘a failure to design and construct,’

... ); id. at 5330 (“T]he violation here is ‘a failure to

design and construct.’”). Having conceived of

Appellants’ claims as being limited to the design and

construction of the South Pond Apartments and the

Villas at Rancho del Norte, the majority leaps to the

conclusion that those claims are time-barred. “In both

cases, th[e] triggering event,” i.e., “the conclusion of the

design-and-construction phase,” “occurred long before

plaintiffs brought suit.” Jd. at 5325-26.

The problem with the majority’s analysis is that a

“failure to design and construct” is not itself an event

that can trigger the FHA’s statute of limitations. Under

§ 3613(a)(1)(A), an “aggrieved person” must file suit .

within two years of “the occurrence or the termination

of an alleged discriminatory housing practice”

(emphases added). Section 3602(f) defines a

discriminatory housing practice, in relevant part, as “an

act that is wnlawful under section 3604 . . . of this title”

(emphasis added). Section 3604, in turn, states that “it

shall be unlawful,” among other things, “[tJo discriminate

in the sale or rental, or to otherwise make unavailable

or deny, a dwelling to any buyer or renter because of a

handicap,” § 3604(f)(1), and “[t]o discriminate against

any person in the terms, conditions, or privileges of sale

or rental of a dwelling, or in the provision of services or

facilities in connection such dwelling, because of a

handicap,” § 3604(f)(2). Section 3604 separately

states that “|fjor purposes of this subsection,

27a

Appendix A

discrimination includes — .. . a failure to design and

construct [covered multifamily] dwellings” in accordance

with various requirements concerning accessibility to

and use by disabled persons. § 3604(f)(3)(C).

The most natural reading of these provisions is that

the FHA’s statute of limitations is triggered when

someone is aggrieved by one of the unlawful actions

specified by § 3604(f)(1) or § 3604(f)(2), with the two-

year period running from the occurrence or termination

of the offending practice. The limitations period for a

disabled would-be buyer or renter or tester thus begins

(at the earliest) when that individual first attempts to

buy or rent or tests a FHA-noncompliant unit.’

At that point — but not previously — it can be said

that a real estate developer or landlord has

“discriminate[d] in the sale or rental, or [has] otherwise

ma[djle unavailable or den[ied] a dwelling to [the

individual] because of a handicap,” § 3604(f)(1), or has

“discriminate[d] against (the individual] in the terms,

conditions, or privileges of sale or rental of a dwelling

... because of a handicap,” § 3604(f)(2). Until then, the

disabled person has not been subjected to any

discriminatory action. Analogously, the limitations

period for an actual tenant begins (at the earliest) when

the individual first moves into a FHA-noncompliant unit.

2. Under Smith v. Pac. Prop. & Dev. Corp., 358 F.3d 1097,

1102 (9th Cir. 2004), a “tester,” i.e. “someone having no interest

in actually buying or renting that poses as buyer or renter to

collect evidence of unlawful housing practices,” has standing to

sue under the FHA.

28a

Appendix A

Only at that point is it fair to say that a real estate

developer or landlord has “discriminate[d] against [the

individual] . . . in the provision of services or facilities

... because of a handicap.” § 3604(f)(2).* Because real

3. I suggest that the limitations period begins at the

earliest when a plaintiff is first injured because there is a

colorable argument that the statute of limitations is not actually

triggered until a covered dwelling’s statutory violations have

bees cured. When Congress amended the FHA in 1988, it

rewrote § 3613(a)(1)(A) so that the limitations period begins

“after the occurrence or the termination of an alleged

discriminatory housing practice” (emphasis added). See also

House Report at 33, 1988 U.S.C.C.A.N. at 2194 (“[T])he statute

of limitations is measured from the date of the last asserted

occurrence of the unlawful practice.”) (emphasis added). This

language suggests that once a plaintiff has been injured by a

discriminatory housing practice (and thus is “aggrieved”), he

may file suit up until two years have passed since that practice

was terminated. If the practice is never terminated, because

the dwelling is never brought into compliance with the FHA,

then the limitations period presumably never begins to run

(though the plaintiff’s suit may be barred by laches or other

equitable doctrines).

The Supreme Court’s decision in Havens Realty Corp. v.

Coleman, 455 U.S. 363 (1982), lends support to this reading.

Considering an alleged “continuing pattern, practice, and policy

of unlawful racial steering,” the Court held that suits under the

FHA were timely as long as they were filed within

180 days (the pre-1988 limitations period) of the last application

of that policy. Jd. at 381; see also id. (finding claims

timely because they “are based not solely on isolated

incidents . . . but a continuing violation manifested in

(Cont'd)

29a

Appendix A

estate developers, like landlords, engage in the

“provision of services or facilities” and “make

unavailable or deny| }] a dwelling” to a handicapped

individual, they can be liable under (f)(2) and (f)(1).‘

(Cont'd)

a number of incidents — including at least one . . . that is asserted

to have occurred within the 180-day window”). The limitations

period in Havens thus did not begin when the plaintiffs were

first injured, but rather when the continuing statutory violation

of which they were complaining finally terminated. In Montana

Fair Housing, Inc. v. Am. Capital Dev., Inc.,81 F. Supp. 2d 1057,

1063 (D. Mont. 1999), similarly, the district court cited Havens

and concluded that “[t]he pivotal date is . . . the date of the last

alleged [statutory] violation.” The limitations period for a

disabled tenant therefore “did not begin to run on the date

[she] moved in. . . but, at the earliest .. . when a ramp was

finally installed outside her apartment.” Jd. But see Fair

Housing Council, Inc. v. Village of Olde St. Andrews, Inc., 210

F. App’x 469, 480 (6th Cir. 2006) (unpublished) (rejecting

proposition that FHA’s limitations period “is tolled until the

noncompliant conditions are remedied”).

We need not decide here whether the limitations period

for FHA claims begins when a plaintiff is first injured or when

the alleged discriminatory housing practice terminates. Garcia

and Thompson’s suits were clearly timely even under a first-

injury rule.

4. Even if the majority were correct that § (f)(3) provides

a cause of action separate from subsections (f)(1) and (f)(2), it

is undeniable that plaintiffs do not have to bring suit under

(f)(3) if they wish to bring a claim against real estate developers.

Here, for example, both Thompson and Garcia cited

(Cont'd)

30a

Appendix A

This reading is consistent with the understanding

of other courts, commentators and, as discussed below,

the Department of Housing and Urban Development

(HUD), the agency charged with enforcing the FHA.

See, e.g., Fair Housing Council, Inc. v. Village of Olde

St. Andrews, Inc., 210 F. App’x 469, 481 (6th Cir. 2006)

(unpublished) (FHA limitations period “begin[{s] to run

from the date that the individual attempted to buy the

unit and discovered the nonconforming conditions”); id.

at 480 (referring to the “overwhelming majority of . . .

federal courts that have .. . rejected the position

advanced” here by the majority); Montana Fair

Housing, Inc. v. Am. Capital Dev., Inc., 81 F. Supp. 2d

1057, 1063 (D. Mont. 1999); Robert G. Schwemm,

Barriers to Accessible Housing: Enforcement Issues

in “Design and Construction” Cases Under the Fair

Housing Act, 40 U. Rich L. Rev. 753, 851 (2006) (“If a

disabled homeseeker’s § (f)(1)-(2) rights are not violated

until his first encounter with the defendant’s building,

then a complaint filed promptly thereafter is timely,

regardless of how old the building is.”). The majority,

however, goes down a different path, contending that it

is the actions described by § 3604()(3)(C) — namely

(Cont'd)

§ 3604(f)(3)(C) in their complaints, but Thompson’s complaint

further alleged violations of § 3604(f)(2) and Garcia's complaint

further alleged violations of both § 3604(f)(1) and § 3604(f)(2),

both of which can be applied to developers as well as landlords.

For the same reason, the majority’s concern that the Attorney

Gencral would be hampered in bringing design-and-

construction claims under my interpretation of the statute is

baseless. See Majority Op. at 5324-25, n.1.

3la

Appendix A

the faulty design and construction of a covered dwelling

— that trigger the FHA’s statute of limitations. The

majority’s construction, while not entirely implausible,

ultimately fails for the simple reason that § 3604(f)(3)(C)

is crucially different from § 3604(f)(1) and § 3604(f)(2).

The activities specified by § 3604(f)(1) and

§ 3604(f)(2) — all of which involve taking action against

a disabled person “because of” that person’s “handicap”

— are clearly “unlawful” “discriminatory housing

practices” that begin the FHA’s limitations period. In

contrast, § 3604(f)(3)(C) is beet. read as a specific example

of the discrimination tiat in fact becomes actionable

under § 3604(f)(1) and § 3604(f)(2) — when that

discrimination takes place “in the sale or rental . . . to

any buyer or renter,” § 3604(f)(1), or “against any person

in the terms, conditions, or privileges of sale or rental

. .. or in the provision of services or facilities,”

§ 3604(f)(2). Section § 3604(f)(3)(C) is a definitional

provision, stating that “discrimination includes . . . the

[faulty] design and construction of covered multifamily

dwellings,” rather than a provision that actually sets

forth a cause of action.® The construction of a FHA-

5. The majority reads far too much into § 3604(f)(3)(C)’s

placement as coordinate with subsections (f)(1) and (f)(2). See

Majority Op. at 5324-25, n.1. Section (f)(3) is framed very

differently from (f){1) and (f)(2), indicating that it is a

definitional provision, not a coordinate one. Section 3604 states

that it is “unlawful” to do the actions described in (f)(1) and

(f)(2), but does not state that the actions in (f)(3) are similarly

unlawful. The legislative history confirms this interpretation.

(Cont'd)

32a

Appendix A

noncompliant building thus no more triggers the FHA’s

statute of limitations than the creation of any other

latent discriminatory condition or policy (e.g., a

landlord’s policy — as yet unenforced — not to rent to

disabled people). It is only when that latent condition

or policy results in an action prohibited by § 3604(f)(1)

or § 3604(f)(2) that the limitations period begins.

Beforehand, the improperly designed building (and the

landlord’s unimplemented rental policy) are much like

a potentially dangerous ditch into which no one has yet

fallen — capable of inflicting harm and violating the law,

but not yet actually doing either. See Village of Olde St.

Andrews, Inc., 210 F. App’x at 480 (“[F]Jrom a purely

textual standpoint a violation of the relevant Fair

Housing Act provision here requires more than the mere

design and construction of a noncompliant housing unit.

Recall, the text of the Fair Housing Act itself focuses on

housing discrimination in the sale or rental of housing

units.”) (emphasis in original).

Applying this analysis to the cases at hand,

Appellants’ suits were plainly timely. While both the

South Pond Apartments and the Villas at Rancho del

Norte were built more than two years before Garcia and

Thompson sued, this fact is irrelevant since their rights

under § 3604(f)(1) and § 3604(f)(2) were not violated until

(Cont'd)

See H.R. Rep. No. 100-711, at 24 (1988), reprinted in 1988

U.S.C.C.A.N. 2173, 2185 (“House Report”) (referring to “the

general prohibitions under (f)(1) and (2)” and characterizing

“[njew subsection [(3604](f)(3)” as merely “augment[ing]”

them).

33a

Appendix A

they came into contact with the defective buildings.

Garcia’s limitations period thus began no earlier than

when he moved into South Pond (less than two years

before he filed suit), and Thompson’s limitations period

began no earlier than when she tested the Villas (less

than one year before she brought her claims). It is on

those dates — not when South Pond and the Villas were

constructed — that Garcia and Thompson were the

victims of discriminatory housing practices that

triggered the FHA’s statute of limitations.

My conclusion that Appellants’ suits are not time-

barred is thus based directly on the statutory text, and

does not depend on the statute’s codification of the

continuing violations doctrine. Nevertheless, it is worth

noting that the majority’s analysis of that doctrine, see

Majority Op. at 5826-29, suffers from the same defect

as its analysis of the rest of the statutory text.

Appellants “confuse a continuing violation with the

continuing effects of a past violation,” id. at 5327, only

if the relevant violation is defined (incorrectly) as a

failure to design and construct FHA-compliant

dwellings. If the violation is properly characterized as a

practice of carrying out the actions prohibited by

§ 3604(f)(1) and § 3604(f)(2), then it is plain that

Appellees’ unlawful conduct itself — as opposed to

merely its consequences — continues until that practice

is halted. See Schwemm, supra, at 848 (“[A]

nonconforming building amounts to an ongoing

discriminatory denial of ‘privileges’ or ‘facilities’ to

disabled tenants and homeseekers regardless of how

many years have passed since the building was

34a

Appendix A

completed.”); cf Havens Realty Corp. v. Coleman, 455

U.S. 363, 380-81 (1982) (holding that FHA suit is timely

if allegedly unlawful policy continues into the limitations

period).®

6. Even if my reading of the statutory text is incorrect and

the majority is right that the FHA’s statute of limitations begins

to run “at the conclusion of the design-and-construction phase,”

Majority Op. at 5324, the majority’s reasons for rejecting the

equitable tolling doctrine are unpersuasive. The starting

presumption, read into every federal statute of limitations is

that filing deadlines are subject to equitable tolling unless there

is “good reason to believe that Congress did not want the

equitable tolling doctrine to apply.” Socop-Gonzalez v. INS, 272

F.3d 1176, 1188 (9th Cir. 2001) (en banc) (quoting United States

v. Brockamp, 519 U.S. 347, 350 (1997)). The statutorv

considerations that preclude the application of the equit:

tolling doctrine are absent in this case.

First, § 3613 sets forth its time limitation in “fairly simple”

form, neither “unusually emphatic” nor “highly detailed” and

“technical.” Brockamp, 519 U.S. at 350. Second, tolling the FHA’s

statute of limitations would not produce the kind of

administrative nightmare that suggests “Congress would likely

have wanted to decide explicitly whether, or just where and

when, to expand the statute’s limitations periods, rather than

delegate to the courts a generalized power to do so wherever a

court concludes that equity so requires.” /d. at 353. Indeed, the

Department of Housing and Urban Development (HUD) —

the administrative agency charged with administering the FHA

— has weighed in against the majority’s interpretation of

§ 3613. Finally, the FHA does not already provide for generous

tolling or other broad exceptions. See United States v. Beggerly,

524 U.S. 38, 48-49 (1998).

(Cont'd)

35a

Appendix A

Il.

The majority’s interpretation not only disconnects

“design and construction” from § 3604(f)(1) and

§ 3604(f)(2), but it is also flawed because it triggers the

limitations period before a particular plaintiff has been

“aggrieved”’—i.e., injured. See Majority Op. at 5329

(“The FHA’s limitations period does not start when a

particular disabled person is injured by a housing

practice ....”); id. at 5330 (“Some aggrieved persons

... will be unable to [ever] file a civil action ....”). This

reading conflicts with the statutory text as well as the

presumption that statutes of limitations are not

triggered at least until the plaintiff’s cause of action

has accrued. In effect, the majority converts what is

plainly a statute of limitations into a statute of repose.

Subsection 3613(a)(1)(A) states that only “[a]n

aggrieved person” may file suit under the FHA

(emphasis added). Under § 3602(i), “ ‘[a]ggrieved

person’ includes any person who — (1) claims to have

been injured by a discriminatory housing practice; or

(2) believes that such person will be injured by a

discriminatory housing practice that is about to occur.”

Accordingly, until a plaintiff has become “aggrieved,”

(Cont'd)

Whether the doctrine of equitable tolling should be applied

in these cases remains an open question that the district courts

should address in the first instance on remand. What I cannot

accept is the majority’s implied holding that Congress intended

to bar equitable tolling for ali FHA claims.

36a

Appendix A

he cannot “commence a civil action”; and until he can

legally initiate his action, there is no reason even to

consider the further requirement that FHA suits be

filed “not later than 2 years after the occurrence or the

termination of an alleged discriminatory housing

practice.” $ 3613(a)(1)(A); see Havens, 455 U.S. at 381

(linking start of FHA’s limitations period to plaintiffs’

assertions that they were “deprived . . . of the benefits

of interracial association” and suffered “injury to [their]

counseling and referral services”); Village of Olde St.

Andrews, 210 F. App’x at 481.

The majority asserts, however, that the “aggrieved

person” terminology pertains only to potential plaintiffs’

standing to file suit. But this is not how very similar

language in other statutes of limitations has been

interpreted. Title VII of the Civil Rights Act of 1964,

for example, refers to “person(s] aggrieved” and states

that the limitations period begins “after the alleged

unlawful employment practice occurred.” 42 U.S.C.

§ 2000e-5(e)(1). In its recent decision interpreting this

provision, the Supreme Court never so much as hinted

that Title VII’s limitations period would commence

before a plaintiff was injured. Indeed, the Court declared

that if “an employer forms an illegal discriminatory

intent towards an employee but does not act on it until

181 days later,” “[t}he charging period would not begin

to run until the employment practice was executed on

day 181 because until that point the employee had no

cause of action. The act and intent had not yet been

joined.” Ledbetter v. Goodyear Tire & Rubber Co., 127

S. Ct. 2162, 2171 n.3 (2007) (emphasis added); see also

37a

Appendix A

Nat” R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114

n.7 (2002) (declining to decide “whether [Title VII’s

limitations period] begins to run when the injury occurs

as opposed to when the injury reasonably should have

been discovered,” but not suggesting that limitations

period might commence before injury takes place).’

The decisions the majority cites also undercut its

reading of the “aggrieved person” language. “The issue”

in United States v. Kubrick, 444 U.S. 111, 113 (1979),

was “whether the claim [under the Feaeral Tort Claims

Act] ‘accrues’ .. . when the plaintiff knows both the

existence and the cause of his injury or at a later time

when he also knows that the acts inflicting the injury

may constitute medical malpractice.” Both of these

possibilities are plainly inconsistent with a theory under

which the FTCA’s limitations period would begin before

a plaintiff has been injured in the first place. Similarly,

Judge Posner recognized in Cada v. Baxter Healthcare

Corp., 920 F.2d 446, 449 (7th Cir. 1990), that until an

“adverse personnel action {has been] taken,” a plaintiff’s

7. The majority misreads Ledbetter as standing for the

proposition that an individual’s first experience of

discrimination can nonetheless [**47] constitute the mere

“effects” of a past discriminatory decision for statute of

limitations purposes. See Majority Op. at 5328, n.5. As Ledbetter

makes clear, however, the statute of limitations does not begin

to run until the individual actually experiences the

discrimination herself — i.e., when a discriminatory decision

“was made and communicated to [the plaintiff]” — not when

the defendant adopted a policy that might someday impact a

particular plaintiff. See Ledbetter, 127 S. Ct. at 2169.

38a

Appendix A

“claim has not accrued and the statute of limitations has

not begun to run.” In Judge Posner’s view, in fact,

limitations periods do not begin when plaintiffs are

injured but rather when they discover that they have

been injured. See id. at 450 (“Accrual is the date on which

the statute of limitations begins to run. It is not the date

on which the wrong that injures the plaintiff occurs, but

the date — often the same, but sometimes later — on

which the plaintiff discovers that he has been injured.”).

Ledbetter, Morgan, Kubrick and Cada are all

illustrations of the general rule that statutes of

limitations are not triggered at least until a plaintiff’s

cause of action has accrued. This general rule — which

the majority fails to acknowledge, let alone rebut — has

been explicitly articulated by the Supreme Court.

“While it is theoretically possible for a statute to create |

a cause of action that accrues at one time for the

purpose of calculating when the statute of limitations

begins to run, but at another time for the purpose of

bringing suit, we will not infer such an odd result in the

absence of any such indication in the statute.” Reiter v.

Cooper, 507 U.S. 258, 267 (1993) (emphasis added); see

also Bay Area Laundry & Dry Cleaning Pension Trust

Fund v. Ferbar Corp., 522 U.S. 192, 201 (1997) (“Unless

Congress has told us otherwise in the legislation at

issue, a cause of action does not become ‘complete and

present’ for limitations purposes until the plaintiff can

file suit and obtain relief.”); cf Meyer v. Holley, 537 U.S.

280, 285 (2003) (FHA claims are analogous to suits in

tort, for which limitations period begins at time of

injury); Curtis v. Loether, 415 U.S. 189, 195 (1974) (same).

39a

Appendix A

Under the majority’s reading, the “odd result” discussed

in Reiter becomes the law of this circuit. The FHA’s two-

year limitations period begins to run as soon as a covered

building’s construction has been completed, even though

no plaintiff has yet been injured or can yet sue. Such an

unusual rule should follow only if it were unambiguously

compelled by the statutory text — which it is not.

The majority’s error is further exposed by our case

law on statutes of limitations in contrast to statutes of

repose. “Although the distinction between [the two] is

often blurred, statutes of limitations differ from statutes

of repose because the former bar[ ] plaintiff[s] from

bringing an already accrued claim after a specified

period of time, whereas the latter terminate[ ] a right of

action after a specific time, even if the injury has not

yet occurred.” Fields v. Legacy Health Sys., 413 F.3d

943, 952 n.7 (9th Cir. 2005) (third alteration in original)

(internal quotation marks omitted); see also Johnson v.

Aljian, 490 F.3d 778, 781 n.12 (9th Cir. 2007) (same);

Underwood Cotton Co. v. Hyundai Merchant Marine

(Am.), Inc., 288 F.3d 405, 408-09 (9th Cir. 2002) (statute

of limitations bars suit because “plaintiff was not diligent

enough,” while statute of repose “is not concerned with

the plaintiff’s diligence; it is concerned with the

defendant’s peace”). The majority’s interpretation

effectively transforms § 3613 into a statute of repose.

A disabled plaintiff’s “right of action” is “terminate[d]

... after a specific time,” namely the construction of a

covered dwelling, “even if the injury has not yet

occurred,” Fields, 413 F.3d at 952 n.7, and even if the

plaintiff has been “diligent enough,” Underwood Cotton,

288 F3d at 408.

40a

Appendix A

It is patently clear, however, that § 3613 is actually

a statute of limitations. The Supreme Court explicitly

labeled it as such in Havens, see 455 U.S. at 369, 381;

the provision is almost identical to 42 U.S.C. § 2000e-

5(e)(1), which the Court described as a statute of

limitations in Ledbetter, see 127 S. Ct. at 2166, 2177;

Congress repeatedly referred to § 3613 as a statute of

limitations in the legislative history, see House Report

at 16-17, 33, 39, 1988 U.S.C.C.A.N. at 2177-78, 2194,

2200; and even the majority characterizes § 3613 as a

statute of limitations and never utters the term “statute

of repose.”* The majority’s reading is thus precluded

by both our case law and the majority’s own terminology.

If § 3613 is in fact a statute of limitations rather than a

statute of repose, then it cannot be triggered by the

construction of an FHA-noncompliant dwelling.

IIl.

The majority’s position also conflicts with the

relevant legislative history, Supreme Court precedent

regarding the FHA’s construction and HUD’s

interpretation of the statute it is responsible for

administering. The House Report that accompanied the

8. Moreover, “one typically expects to see a longer period

{before suits are barred] in true statutes of repose.” Underwood

Cotton, 288 F:3d at 408; see, e.g., Caldwell v. Enstrom Helicopter

Corp., 230 F.3d 1155, 1156 (9th Cir. 2000) (referring to the

General Aviation Revitalization Act of 1994’s 18-year statute of

repose). A two-year limitations period is relatively short and

thus further confirms that § 3613 is a statute of limitations

rather than a statute of repose.

4la

Appendix A

Fair Housing Amendments Act of 1988 (in which the

current language of § 3613(a)(1)(A) was adopted) stated

that private enforcement of the FHA had been

“hampered by a short statute of limitations” and that

“({e)xisting law has been ineffective because it lacks an

effective enforcement mechanism.” House Report at 16,

1988 U.S.C.C.A.N. at 2177. Accordingly, “[tjhe bill

strengthen[ed] the private enforcement section by

expanding the statute of limitations” from 180 days to

two years. /d. at 17, 1988 U.S.C.C.A.N. at 2178. The

House Report added that the term “termination” had

been added to § 3613(a)(1)(A) in order to “reaffirm the

concept of continuing violations, under which the statute

of limitations is measured from the date of the last

asserted occurrence of the unlawful practice.” /d. at 33,

1988 U.S.C.C.A.N. at 2194. This language demonstrates

that Congress intended to expand access to the courts

and facilitate private enforcement when it amended the

FHA. This intent, however, cannot be reconciled with

the majority’s interpretation of the statute, which

forever immunizes developers and landlords of FHA-

noncompliant buildings from disabled persons’ private

enforcement actions once two years have passed since

the buildings’ construction.

In accordance with the statutory text and the

legislative history, the Supreme Court has frequently

instructed that the FHA should be interpreted flexibly

in order to effectuate Congress’ ambitious remedial

goals in passing the statute. See, e.g., City of Edmonds

v. Oxford House, Inc., 514 U.S. 725, 731 (1995) (“We also

note precedent recognizing the FHA’s ‘broad and

42a

Appendix A

inclusive’ compass, and therefore according a ‘generous

construction’ to the Act’s complaint-filing provision.”)

(citation omitted); Havens, 455 U.S. at 380 (referring to

the “broad remedial intent of Congress embodied in the

Act”); id. (warning against a “wooden application” of the

FHA’s statute of limitations); Trafficante v. Metro. Life

Ins. Co., 409 U.S. 205, 209 (1972) (“The language of the

Act is broad and inclusive.”). The majority’s position

defies these repeated admonitions. Instead of

construing the FHA with an eye toward realizing its

broad remedial aims, the majority improperly elevates

a definitional provision, § 3604(f)(3)(C), above the

provisions under which plaintiffs actually bring their

claims, and disregards the presumption that statutes

of limitations are not triggered at least until the plaintiff

has been injured. As a result, Congress’ goal of

“removing barriers to the use of court enforcement by

private litigants” — a goal the Court has explicitly

endorsed — is thwarted rather than advanced. House

Report at 13, 1988 U.S.C.C.A.N. at 2174.

Lastly, as the majority acknowledges, HUD has

issued a manual taking the position that suits can be

filed “ ‘at any time that the building continues to be in

noncompliance.” Majority Op. at 5326 (quoting U.S.

Dep’t of Hous. & Urban Dev., Fair Housing Act Design

Manual: A Manual To Assist Designers and Builders

in Meeting the Accessibility Requirements of the Fair

Housing Act 22 (rev. 1998)); see also U.S. Dep’t of Hous.

& Urban Dev., Title VIII Complaint Intake,

43a

Appendix A

Investigation, and Conciliation Handbook 3-5 (1995)

(“A complainant aggrieved because an otherwise

covered multifamily dwelling unit was not designed and

constructed [properly] . . . may allege a continuing

violation regardless of when construction of the building

was completed.”). I agree that HUD’s manual and

handbook are entitled only to deference under Skidmore

v. Swift & Co., 323 U.S. 134 (1944), but I believe, contrary

to the majority, that HUD’s interpretation is persuasive

and dovetails with both the statutory text and

nontextual considerations. Jee Gladstone Realtors v.

Village of Bellwood, 441 U.S. 91, 107 (1979) (““[HUD’s]

interpretation of the [FHA] ordinarily commands

considerable deference.”); Trafficante, 409 U.S. at 210

(“{T]he consistent administrative construction of the

[Fair Housing] Act . . . is entitled to great weight.”).

IV.

The majority argues that my interpretation of the

statute — under which the limitations period for private

suits brought under the FHA begins no earlier than

when a plaintiff is first injured by a discriminatory

housing practice — would “eviscerate[ ]” the FHA’s

statute of limitations and have adverse consequences

for real estate developers. Majority Op. at 5328;

see id. at 5331-32 (discussing the “extreme prejudice

defendants would suffer if plaintiffs could indefinitely

bring civil damages actions for buildings defendants no

longer own and cannot fix without the cooperation of

44a

Appendix A

the current owners”).* This contention is meritless.

First, the FHA’s limitations period would not be obviated

by my reading of the statute. In fact, plaintiffs would be

barred from bringing suit under § 3604(f)(1) and

§ 3604(f)(2) once two years have elapsed since their

injuries, and potential defendants would be immunized

from suit two years after remedying the statutory

violations of covered dwellings.'® It is also hard to see

how an interpretation that follows the accrual rule

presumption can be more radical than one that

flouts it.

Second, the legislative history demonstrates that

Congress did not share the majority’s solicitude for real

estate developers. In passing the FHA, and then in

amending it in 1988, Congress intended to issue “a clear

9. The majority expresses no particular concern for

landlords, but it is clear that its approach would immunize them

from suit as well. While Garcia appeals only the summary

judgment in favor of Brockway and Stewart (the original

builder and architect of the South Pond Apartments), Thompson

appeals only the dismissal of her claims against Turk (the

current owner of the Villas at Rancho del Norte). The majority

affirms the district court’s dismissal of Thompson’s claims even

though its professed worry about “plaintiffs .. . indefinitely

bringfing] civil damages actions for buildings defendants no

longer own and cannot fix without the cooperation of the current

owners,” Majority Op. at 5332, is plainly groundless as to Turk.

10. Under the alternate theory discussed in footnote 2,

supra, plaintiffs would be barred from filing suit after

dwellings’ statutory violations have been cured and two years

have elapsed since that curing.

45a

Appendix A

pronouncement of a national commitment to end the

unnecessary exclusion of persons with handicaps from

the American mainstream.” House Report at 18, 1988

U.S.C.C.A.N. at 2179.'' Congress notably did not

express any concern about builders who failed to comply

with the relatively modest requirements of

§ 3604(f)(3)(C) being held to account for their failures

more than two years after the offending dwellings were

constructed. Indeed, in 1999, Congress rejected a

proposed bill that would have barred the FHA’s

application to housing that was FHA-noncompliant but

that had “received a building permit or other similar

approval... as meeting the requirements of the

applicable building code.” Justice in Fair Housing

Enforcement Act of 1999, H.R. 2437, 106th Cong. § 2(2).

Congress was unpersuaded by the bill’s proponents that

it should “provide relief from prosecution to those in

the building community who may have committed

building design violations” since the FHA was amended

11 years earlier. Justice in Fair Housing Enforcement

—s~

11. Echoing Congress’ “clear pronouncement,” the

Supreme Court has emphasized the rights of the disabled in its

FHA decisions. The Court’s repeated references to the FHA’s

“broad and inclusive” language, the “generous construction”

that the statute should be accorded and the “broad remedial

intent of Congress embodied in the Act” plainly contain no

loophole for real estate developers’ interests. Havens, 455 U.S.

at 380; Trafficante, 409 U.S. at 209; see also City of Edmonds,

514 U.S. at 731-32 (recommending that “an exception to a

general statement of policy [in the FHA be] read narrowly in

order to preserve the primary operation of the [policy]”) (second

alteration in original) (internal quotation marks omitted).

46a

Appendix A

Act of 1999: Hearing on H.R. 2437 Before the Subcomm.

on the Constitution of the H. Comm. on the Judiciary,

1999 WL 983520 (statement of Chairman Charles T.

Canady). Ironically, the majority now creates for real

estate developers the time-bar they were denied by

Congress.”

Third, to the extent policy considerations are

relevant here, they cut against the majority’s position.

Under its reading of the statute, the intended

beneficiaries of the FHA — disabled persons — are

barred from enforcing their right to accessible housing

(other than through reasonable modifications at their

own expense) as soon as two years have elapsed since

the completion of a dwelling’s construction. A builder

could even construct a FHA-noncompliant dwelling and

insulate himself altogether from suit simply by waiting

two years to look for tenants. See Village of Olde St.

Andrews, 210 F. App’x at 480 (“Often, housing units go

unsold or unlet for some time after they are built. If the

statute of limitations were to begin running immediately

upon completion of the building, potential buyers may

not even look at the property until after the statute of

limitations has run. Such a result would run counter to

... the broad remedial intent of Congress embodied in

the Act.’’) (internal quotation marks omitted). Moreover,

the judicial interest in having cases brought while

relevant evidence is still available is at a low ebb here.

12. Notably, no matter how the FHA’s statute of limitations

for private suits is interpreted, developers may still in some

instances be subject to suits brought by the Department of

Justice under its “pattern or practice” authority. See § 3614(a).

47a

Appendix A

As one district court has observed, “as the FHA

requires no showing of intent, defendant’s architectural

plans and apartment complexes can themselves speak

to the alleged construction violations.” Silver State Fair

Housing Council, Inc. v. ERGS, Inc., 362 F. Supp. 2d

1218, 1222 n.1 (D. Nev. 2005).

Finally, the lot of real estate developers would not

be as dire as the majority fears under my reading of the

statute. One would hope that relatively few developers

are (or have been) building dwellings that do not comply

with § 3604(f)(3)(C). Moreover, developers might seek

to shift or share their exposure through contractual

provisions when they sell dwellings under which the new

owners would indemnify the developers against any

suits brought under § 3604. Indeed, developers are not

the only parties wio may be sued under the FHA. For

instance, the current owner and landlord of the Villas

at Rancho del Norte, Turk, is the sole remaining

defendant in Thompson’s case; and according to one

commentator, “the general view has emerged that a

wide range of participants ... may be named as proper

defendants.” Schwemm, supra, at 778; see also

Baltimore Neighborhoods, Inc. v. Rommel Builders,

Inc., 3 F. Supp. 2d 661, 665 (D. Md. 1998) (“[AJll

participants in the process as a whole are bound to follow

the FHAA....{A]ny entity who contributes to a violation

of the FHAA [is] liable.”) (emphasis in original).

48a

Appendix A

The majority’s reading of the FHA’s statute of

limitations is inconsistent with the statutory text, the

presumption in favor of an accrual rule, the relevant

legislative history, the generous construction that the

FHA must be accorded and HUD’s reading of the

provision. In accordance with both the statute’s

language itself and these non-textual considerations, I

would hold that the limitations period for claims brought

under § 3604(f)(1) and § 3604(f)(2) commences at the

earliest when a plaintiff is first injured by a

discriminatory housing practice. Applying that

approach, I would reverse the district courts’ rulings

because both Garcia and Thompson were first injured

less than two years before they filed suit, and remand

for further proceedings. Therefore, I respectfully

dissent.

49a

APPENDIX B — ORDER OF THE UNITED STATES

DISTRICT COURT FOR THE DISTRICT OF

NEVADA DATED OCTOBER 12, 2005

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

CV-S-05-0156-ECR (PAL)

TAMARA THOMPSON, and DISABLED RIGHTS

ACTION COMMITTEE

(a Utah non-profit corporation),

Piaintiffs,

Vs.

RANCHO DEL NORTE VILLAS, INC., A Nevada

Corporation; GOHRES CONSTRUCTION CO., a

Nevada Corporation; WILLIAM L. GOHRES; MARCH

GOHRES; T ALLEN THOMPSON; MICHAEL E.

TURK; DOES I-X; and ROE ENTITIES I-X.

Defendants.

ORDER

I. Procedural Background

On February 3, 2005, Tamara Thompson and

Disabled Rights Action Committee (“Thompson”,

“DRAC” or “Plaintiffs’) filed a Complaint (#1) for an

injunction and damages for Defendants’ violation of the

50a

Appendix B

Fair Housing Act (“FHA”), 42 U.S.C. $3601 ¢¢ seq.

On July 14, 2005, Defendant Mare Gohres and uohres

Construction (“Gohres” or “Defendants”) filed a Motion

to Dismiss. Plaintiffs responded to the Motion on July

30, 2005 and Defendants filed a reply on August 3, 2005.

On August 1, 2005, Defendant Michael E. Turk (“Turk”

or “Defendant”) filed a Motion to Dismiss or in_the

alternative, for Summary Judgment. Plaintiffs

responded to the Motion on August 18, 2005, and

Defendant Turk filed a reply on September 16, 2005.

The motions are ripe, and we nowrrule on them. We treat

both motions as motions to dismiss. Since Defendants

Turk, Gohres and Gohres Construction Company raise

the same arguments in their motions to dismiss, we will

consider the motions together in this Order.

For the reasons stated below, Defendants’ motions

will be granted.

II. Statement of Facts

In considering the Motions to Dismiss, we take the

evidence as presented in the complaint in the light most

favorable to the Plaintiff.

Rancho del Norte Villas (“Rancho”) is a multifamily

apartment development comprising of twenty-one

buildings and one clubhouse in Las Vegas, Nevada.

There are sixteen units in each building creating 336

apartments in total (168 are ground floor units). Rancho

was finished in early 1997.

Sla

Appendix B

Defendants Marc Gohres and Gohres Construction

Company were the general contractors for Rancho and

Michael Turk is the office/director of Rancho and Gohres

Construction Company.

Plaintiff, Disabled Rights Action Committee, is a

Utah non-profit corporation organized with the

principal purpose of helping to eliminate discrimination

against individuals with disabilities by ensuring

compliance with laws intended to provide access to

housing, public buildings, transportation, goods and

services. Plaintiff Tamara Thompson is a Nevada

resident who requires a wheelchair for mobility.

In July, 1997, Ronald Ray Smith, a member of the

DRAC, visited Rancho and encountered the following

discriminatory conditions which he found to be in

violation of the FHA, 42 U.S.C. §3604 (f) (7) (A): (1)

inaccessible doorways and (2) lack of an accessible

ground floor unit (all ground floor units had steps up on

the front door). On Octeber 2, 1997, DRAC filed a

Housing Discrimination Complaint with the United

States Department of Housing and Urban Development

(“HUD”) (HUD Case Number 09-97-1258-8). On April

30, 2001, HUD dismissed the DRAC’s complaint with a

“Determination of No Reasonable Cause.” HUD found

multiple violations of the FHA but still ruled against

DRAC on the basis that they did not have “tester”

standing. The DRAC thereafter dropped its complaint

and did not appeal the decision.

52a

Appendix B

On January 26, 2004, the Ninth Circuit Court of

Appeals filed its decision in Smith v. Pac. Props. & Dev.

Corp., 358 F.3d 1097 (9 Cir. 2004), which involved DRAC,

but a different individual plaintiff and different

defendants. In Smith, the Ninth Circuit held that FHA

did allow “tester” standing for jurisdiction meaning that

DRAC could bring a case on behalf of its members

through “tester” suits.

Plaintiffs then decided to re-contest the HUD ruling

of 2001 by filing this action in federal court. Tamara

Thompson, a new Plaintiff, visited Rancho on October

12, 2004 finding discriminatory conditions in violation

of the FHA including: (1) a lack of an accessible building

entrance on an accessible route; (2) handicapped parking

spaces without curb cuts and with curb cuts blocked by

parking spaces; and (3) a lack of access to the pool.

Plaintiff also contends that the interior of the

apartments at Rancho also may contain discriminatory

conditions.

Plaintiffs claim that Thompson has sustained

injuries associated with these discriminatory conditions

including mental anguish and embarrassment,

constraint of housing opportunities, and lack of ability

to visit other Las Vegas residents. Plaintiffs claim that

Thompson’s injuries are “continuing” and will continue

until the discriminatory conditions are fixed.

53a

Appendix B

III. Discussion

Defendant Turk and Defendants Marc Gohres and

Gohres Construction request dismissal of Plaintiff’s

claim on the basis that the Plaintiffs have failed to state

a claim upon which relief can be granted.

A. Standard of Review

A motion to dismiss under Fed. R. Civ. P 12(b)(6)

will only be granted if “it appears beyond doubt that

plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.” Lewis v. Tel.

Employees Credit Union, 87 F3d 1537, 1545 (9 Cir.

1996). On a motion to dismiss, “we presum[e] that

general allegations embrace those specific facts that are

necessary to support the claim.” Lujan v. Defenders of

Wildlife 504 U.S. 555, 561(1992) (quoting Lujan v. Natl

Wildlife Fed’n, 497 U.S. 871, 889 (1990)) (alteration in

original). Moreover, “[a]ll allegations of materia! fact in

the complaint are taken as true and construed in the

light most favorable to the non-moving party.” Jn re Stac

Elecs. Sec. Litig., 89 F.3d 1399, 1403 (9 Cir. 1996)

(citation omitted).

Although courts generally assume the facts alleged

are true, courts do not “assume the truth of legal

conclusions merely because they are cast in the form of

factual allegations.” W. Mining Council v. Watt, 643 F2d

618, 624 (9 Cir. 1981). Accordingly, “{[cJonclusory

allegations and unwarranted inferences are insufficient

to defeat a motion to dismiss.” /n re Stac Elecs., 89 F.3d

at 1403 (citation omitted).

S4a

Appendix B

Review on a motion pursuant to Fed. R. Civ. P.

12(b)(6) is normally limited to the complaint itself.

See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9" Cir.

2001). If the district court relies on materials outside

the pleadings in making its ruling, it must treat the

motion to dismiss as one for for summary judgment and

give the non-moving party an opportunity to respond.

Fed R. Civ. P 12(b); see United States v. Ritchie, 342

F.3d 903, 907 (9 Cir. 2003). “A court may, however,

consider certain materials — documents attached to the

complaint, or matters of judicial notice — without

converting the motion to dismiss into a motion for

summary judgment.” Ritchie, 342 F.3d at 908.

If documents are physically attached to the

complaint, then a court may consider them if their

“authenticity is not contested” and “the plaintiff’s

complaint necessarily relies on them.” Lee, 250 F.3d at

688 (citation, internal quotations and el’:»sis omitted).

A court may also treat certain documents as

incorporated by reference into the plaintiff’s complaint

if the complaint “refers extensively to the document or

the document forms the basis of the plaintiff’s claim.”

Ritchie, 342 F.3d at 908. Finally, if adjudicative facts or

matters of public record meet the requirements of Fed.

R. Evid. 201, a court may judicially notice them in

deciding a motion to dismiss. /d. at 909: see Fed. R. Evid.

201(b) (“A judicially noticed fact must be one not subject

to reasonable dispute in that it is either (1) generally

known within the territorial jurisdiction of the trial court

or (2) capable of accurate and ready determination by

resort to sources whose accuracy cannot reasonably be

questioned.”).

‘55a

Appendix B

“Dismissal on statute of limitations grounds can be

granted pursuant to Fed. R. Civ. P 12(b)(6) ‘only if the

assertions of the complaint, read with the required

liberality, would not permit the plaintiff to prove that

the statute was tolled.” TwoRivers v. Lewis, 174 F.3d

987, 991 (9 Cir. 1999) (quoting Vaughan v. Grijalva,

927 F.2d 476, 478 (9" Cir. 1991) (internal citations

omitted)).

B. Statute of Limitations

Defendant Turk, Gohres and Gohres Construction

Company have moved for dismissal of Plaintiff’s claims

on the ground that the statute of limitations has run

and that Plaintiff’s claims are therefore untimely.

Defendants argue that Plaintifis had two years from the

completion of Rancho to file their claim under the FHA,

42 U.S.C. §3613(a) (1) (A).

Plaintiffs reply by arguing that: (1) the continuing

violation doctrine is applicable which creates continuing

discrimination due to the existence of defendants’ failure

to fix the items which were not in compliance with the

FHA; (2) the injury alleged in their complaint did not

occur until Thompson became aware of the

discriminatory conditions in October of 2004; (3) that

§3613(a) (1) (A) constitutes a statute of limitations and

not a statute of repose; and (4) equitable to!ling should

apply.

Under §3613(a) (1) (A), “An aggrieved person may

commence a civil action in an appropriate United States

56a

Appendix B

district court or State court not later than 2 years after

the occurrence or termination of an alleged

discriminatory practice .. .” §3613(a) (1) (A). A

discriminatory housing practice is “an act that is

unlawful under section 3604, 3605, 3606, or 3617 of this

title.” 42 U.S.C. §3602(f). Under §3604(f) (2), which

forms the basis of Plaintiff’s claim of discriminatory

practice, it is illegal to “discriminate against any person

in terms, condition, or privileges of sale or rental of a

dwelling . . . because of a handicap...”

We begin by noting that the issue of construction

and design and statute of limitations claims has not been

reviewed by the Ninth Circuit. However, this case very

closely resembles a case heard by this court just a few

months ago as well as other cases not within this

jurisdiction. Silver State Fair Housing Council v.

ERGS, Inc., et al., 362 F.Supp.2d 1218 (D. Nev. 2005);

Moseke v. Miller & Smith, Inc., 202 FSupp.2d 492 (E.D.

Va. 2002); United States v. Hallmark Homes, 2003 U.S.

Dist LEXIS 20814 (D. Idaho 2003); United States v.

Taigen & Sons, Inc., 303 FSupp.2d 1129 (D. Idaho,

2003); United States v. Pac. Northwest Elec., Inc. , 2003

U.S. Dist. LEXIS 7990 (D. Idaho 2003); Fair Hous.

Council, Inc. v. Village of Old St. Andrews, Inc., 250

F:Supp.2d 706 (W.D. Ky. 2003). All of these cases have

held that the pivotal date for the running of the statute

of limitations for purposes of the FHA is the construction

of a building which has inaccessibility in violation of the

FHA.

S7a

Appendix B

1. Continuing Violation

Plaintiffs claims that because the DRAC and

Thompson continued to be discriminated against

because of the inaccessibility of the building Defendants

constructed, that the continuing violation doctrine will

apply to the facts of this case. |

In Havens Realty Corporation v. Coleman, 455 U.S.

363 (1982), the Supreme Court recognized that the

continuing violation doctrine applied to the FHA. In

Havens, the Supreme Court held that an action would

not be time-barred where the plaintiffs challenged “an

unlawful practice that continues into the limitations

period.” /d, at 381. In that case, the specific conduct

that was challenged was repeat acts by the defendant

of telling black applicants for housing that there was no

availability where the same defendants told white

applicants that there was availability. /d., at 369. The

Supreme Court held that even though five of the

incidents of discrimination took place outside of the

limitations time period, evidence of those violations to

establish a practice of discrimination would be allowed

in under the continuing violations doctrine. /d., at 380.

The Court held that because at least one of the incidents

occurred within the limitations time period and because

the violation was manifested in a policy and practice

which had several incidents, the continuing violations

doctrine would be applicable and therefore the plaintiffs

claims were not barred by the statute of limitations. /d.

58a

Appendix B

Havens is distinguishable from the case at hand in

that the discriminatory acts challenged in that case

constituted a practice that defendants had of

discrimination against several people and not of the

construction of a building which is in violation of the

disability accessibility provisions of the FHA.

However, Plaintiffs seek to provide other bases upon

which the continuing violation doctrine may be applied

to this case. Plaintiffs first argue that the language of

§3613 (a) (1) (A) is significant in that it demonstrates

that the violation is continuing until the violations have

been terminated by being remedied. As was held by the

court in Moseke, the plain meaning of the FHA militates

against the application of the continuing violation

doctrine to the case of the construction of a non-

complying building. Moseke, 202 F.Supp.2d, at 502-04.

Plaintiffs argue that §3613 runs the statute of

limitations at the “termination” or “occurrence” of a

discriminatory practice. While Plaintiffs contend that

the word “termination” is the key word that should

trigger the statute of limitations in this case, we

disagree holding that “occurrence” should be the focal

word in the case of construction of buildings.

Plaintiffs argue that the word “termination” should

be the focus in the case of construction of non-complying

buildings because such construction creates a

“condition” which manifests an ongoing failure by

Defendants to remedy the violation. We reject this

reading holding that the creation of the building that is

59a

Appendix B

non-complying is a single act which has ill effects — not

multiple acts that constitute several violations.

See Silver State, 362 F.Supp.2d, at 1222. Therefore,

since creation of a non-complying building is a single

act, the act has already “occurred” and terminated at

the time the building was designed and constructed.

Plaintiffs also attempt to analogize the facts of this

case to other cases of continuing violation discrimination

in the field of employment. Plaintiffs argue that the

doctrine of systematic continuing violation developed

by the Ninth Circuit should be applied to this case in

finding that a continuing violation existed at the time

Plaintiffs filled their case. The Ninth Circuit has yet to

apply the continuing violations doctrine to the FHA

claims based on the construction of a non-complying

building. However, this issue has been tackled by this

court as well as other courts beyond this jurisdiction.

Silver State, at 1221-22.

The Ninth Circuit has developed two types of

continuing violations doctrine: serial continuing

violations and systematic continuinl violations.!

Hart v. Los Angeles County Metro Transp. Auth.,

1999 U.S. App. 29616, at *4-5 (9 Cir. 1999). Under the

1. Serial continuing violations are made up of a series of

related events at least one of which occurs within the limitations

time period.. A.M.R. Enterprises v. Cityof Phoenix, 1997 U.S.

Dist. LEXIS 3752, at *15 (__, 1997) (citations omitted). Here,

Plaintiffs complain of only one “act” and not a pattern of acts

making the serial continuing violations doctrine inapplicable

lo the case at hand

a a a

60a

Appendix B

systematic continuing violation doctrine in cases of

employment, a systematic policy of discrimination is

actionable even if some or all of the events which

evidence the policy occurred before the limitations

period. Williams v. Owens-Illinois, Inc., 665 F. 2d 918,

924 (9 Cir. 1982). The systematic continuing violations

are claimed usually in failure to promote cases.

See td. In these cases, employees who fail'to be promoted

are subjected to the injury every day. They fail to occupy

the position to which they have net been promoted

because of the employer’s discriminatory policy.’ /d.

However, the analogy between systematic

continuing violation doctrine and the facts of this case

is unavailing. The cases that deal with the systematic

continuing violations involve a policy or practice which

is applied by the defendant that has the effect of

creating a violation on daily basis. The cases applying

systematic continuing violations do not involve the

continuing effects of the discrete act of discrimination

but are instead based on the affirmative creation of

2. The Ninth Circuit has distinguished between a failure

to hire as a result of a policy and a failure to promote because of

a policy. Whereas the employee who had failed to be hired

because of a policy suffers a discrete injury and can be distaneed

from the policy and further injury, the employee who fails to be

promoted suffers the injury of not being in the promoted

position ona daily basis. Williams v. Owens-Illinois, Inc., 665 F-

2d 918, 924 (9 Cir. 1982). The employee who fails to be promoted

suffers from a continuing violation whereas the employee who

fails to be hired suffers from a continuing effect of the violation.

Id.

6la

Appendix B

policy of practice that will be applied to the several

people over an expansive time period. Bawer v. Bd. of

Supervisors, 44 Fed. Appx. 194, at *10-11 (9" Cir.2002)

(holding that “To assert the continuing violations

doctrine, a plaintiff must show that the untimely

incidents were: (1) part of an ongoing pattern of

discrimination; (2) that defendant continued this pattern

into the relevant limitations period”). The facts of this

case do not involve a practice or policy like the cases to

which Plaintiffs cite. Instead, this FHA claim deals with

the one discrete act-the construction of non-complying

building-which had the ill effect of making buildings

inaccessible to disabled people.*

The other courts examining this issue have come to

the same conclusion regarding continuing violation.

Recently, in Silver State, this court held that while the

continuing violation doctrine was applicable to some

provisions of the FHA, it was inapplicable to the

construction of a non-complying building. In so holding,

we reasoned that the injury which plaintiffs claimed they

suffered constituted the ill effects of a violation and not

~~ a continuing violation itself. Silver States, at 1221-22;

Moseke, 202 F- Supp.2d, at 507.

We hold again that the only acts that should be

considered in determining when the statute of limitation

in §3613 (a) (1) (A) started to run are the date of design

3. See Fair Housing Council, Inc., v. Village of Olde St.

Andrews, Inc. , 250 F-Supp.2d 706. 719 (W.D. Ky. 2003)(“the mere

existence of a non-compliant building, however, is not an act.”).

62a

Appendix B

and completion of construction of the apartments. Here,

Plaintiffs have failed to present any evidence of

construction or design that took place after early 1997

and therefore, the statute of limitations began to run at

that time-—giving the Plaintiffs until 1999 to file suit.‘

2. Requirement of Injury/Statute of Repose

Plaintiffs claim that a “discriminatory housing

practice” occurs only at the point when a person is

injured (meaning they discover the inaccessibility) and

not at the construction of design of a non-complying

building. They argue several bases for this proposition.

First Plaintiffs argue that since the Ninth Circuit

has held that “tester” standing can be established by

an injury “fairly traceable’ to |defendant’s] actions,” |

that the injury that the Plaintiffs suffer should be start

of the time period for the statute of limitations for

purposes of §3613 (a) (1) (A). See Smith, 358 F. 3d, at

1103-1104.

However, Plaintiffs’ argument here is inapposite.

The “injury” that Plaintiffs complain of is an ill “effect”

of the violation that took place when Rancho was

constructed and not a violation of the FHA in and of

itself as is discussed above in Section 1.

4. We note that Plaintiff DRAC did file a complaint with

the HUD and that the action then ended in 2001. Plaintiff DRAC

would then have had until 2003 to file a claim in district court

since their institution of an administrative action would toll the

statute of limitations until the completion of the action. 42 U.S.C

§ 3613 (a) (1) (B).

63a

Appendix B

Plaintiffs also argue that the requirement of injury

for purposes of the FHA should be analogized to the

dangerous condition standard for housing. Art common

law, argue Plaintiffs, the statute of limitations does not

start to run at the creation of a dangerous condition

but only when the injury caused by the dangerous

condition actually occurs.* At common law, defendants

have an ongoing duty to make sure that conditions are

safe— Plaintiffs argue that Defendants here have an

ongoing duty to construct their housing in compliance

with the FHA.

This analogy is incomplete-housing that

discriminates and housing or construction that harms

physically are two separate claims based on two separate

types of laws.® We refuse to extend this common law

notion into the realm of housing discrimination

5. See Russo Farms v. Vineland Bd. Of Educ., 144 N.J. 84,

106 (1996) (“Each new injury resulting from a dangerous

condition includes every element of a new tort — injury and

the current existence of a dangerous condition. Therefore, the

statute of limitations for each injury runs from the date of that

injury”).

6. We note, also, that the timing of the two injuries of

dangerous condition and housing discrimination are different.

Where, in a tort cause of action, the dangerous condition causes

injury to the plaintiff when it physically affects her, while in a

housing discrimination case, the plaintiff is injured at the time

the non-complying housing is created regardless of when she

discovers the inaccessible housing. See. Moseke, 202 FSupp.2d,

at 509 (holding that the discovery rule did not apply to toll the

statute of limitations for an FHA construction case).

64a

Appendix B

especially in the absence of any evidence of

Congressional intent or statutory construction.

Plaintiffs also argue that Congress intended that

the FHA provide for private enforcement similar to the

creation of a private attorney general to ensure

compliance with the statute. They argue that turning

the FHA into a “statute of repose” goes against this

Congressional] intent.

We begin by noting that statutes of limitation grant

repose to potential defendants, protecting them from

prejudice and uncertainty that can occur when a plaintiff

files its claims only after an extended period of time.

Kennecott Utah Copper Corp. v. United States DOI, 319

U.S. App. D.C. 128, 1212 (D.C. 1996). While it is the job

of Congress to strike a balance between “remediation

of all injuries and a policy of repose”, in this case, the

intent of Congress in creating a statute of limitations is

clear and expressed within the statute in $3613. Order

of Railroad Telegrapher v. Railway Express Agency,

321 U.S. 342, 348-50 (1944); see Albillo-DeLeon v.

Gonzales, 410 F.3d 1090, 1095 (9 Cir. 2005) (“even if

one has a just claim it is unjust not to put the adversary

on notice to defend within the period of limitation and

that the right to be free from stale claims in time comes

to prevail over the right to prosecute them.”) The

Supreme Court has held that “it is a cardinal principle

of modern law .. . that [statutes of limitation] are to be

treated as statutes of repose, and are not to be

construed as to defeat their obvious intent to secure

the prompt enforcement of claims . . .” Campbell v.

Haverhill, 155 U.S. 610, 617 (1895).

65a

Appendix B

We cannot agree with Plaintiffs that the statute of

limitations provided by Congress in 33613 should be

construed against being a statute of repose for

Defendants. We note that just because Congress relies

heavily on private plaintiffs to enforce the statute and

become “private attorneys general” does not militate

against the imposition of some point of repose for

defendants.

Here, Defendants constructed Rancho almost eight

years ago. Since that time, the property has changed

hands, been subject to default and undergone other

property changes. It would seem unfair to read the

express statute of limitations in the FHA in a way that

would subject construction companies and original

investors to ongoing liability years after the

construction of the building.

3. Equitable Tolling

Plaintiffs also claim that the doctrine of equitable

tolling applies to this case. Plaintiffs argue that because

the HUD’s ruling barred their claims in 2001, we should

now allow them the right to pursue this action against

Defendants.

Equitable tolling applies to excuse a Plaintiff’s

failure to comply with time limitations where she had

neither actual nor constructive notice of the filing period.

Leorna v. U.S. Dep't of State, 105 F.3d 548, 551 (9 Cir.

1997). “Equitable tolling may be applied if, despite all

due diligence, a plaintiff is unable to obtain vital

66a

Appendix B

information bearing on the existence of his claim.” Silver

State, 362 F.Supp.2d, at 1221 (quoting Holmberg v.

Armbrecht, 327 U.S. 392, 397 (1946)). Equitable tolling

gives Plaintiffs the ak “ity to gather the information that

they need in order to file suit. Santa Maria v. Pacific

Bell, 202 F.3d 1170, 1178 (9 Cir. 2000). The court has

discretion to grant equitable tolling based on whether

Plaintiffs acted with due diligence, but such application

should be made sparingly. AMTRAK v. Morgan,

536 U.S. 101, 113-114 (2002).

Because DRAC filed its claim in 1997, it was aware

of the violations at that time. There is no valid claim

that equitable tolling applies in this case as Plaintiff

DRAC was fully aware of the construction and non-

compliance of Rancho.

In regard to Piaintiffs’ other claim for applying

equitable tolling based on the fact that their action was

barred by the rejection of their claims by HUD, it must

be noted that Plaintiffs failed to appeal that case.

Although they eventually won on the issue of standing

in a separate and unrelated case involving different

defendants, such a ruling by the Ninth Circuit has no

effect on the case at bar. Plaintiffs gave up their rights

to litigate at that time when they failed to appeal the

case and they are now bound by the decision.

67a

Appendix B

IV. Conclusion

Defendants’ Motions to Dismiss will be granted as

to all of Plaintiff’s claims.

IT IS HEREBY ORDERED that the Defendants’

Motions to Dismiss are GRANTED.

This 12 day of October, 2005.

/s/ Edward C. Reed

UNITED STATES DISTRICT COURT JUDGE

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