United States Court of Appeals
For the First Circuit
Nos. 09-2497
09-2589
ASTRALIS CONDOMINIUM ASSOCIATION,
Petitioner, Cross-Respondent,
v.
SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND
URBAN DEVELOPMENT, ON BEHALF OF CARLOS GARCÍA-GUILLÉN AND SONIA
VÉLEZ-AVILÉS,
Respondent, Cross-Petitioner.
PETITION FOR REVIEW OF AN ORDER OF THE UNITED STATES
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND CROSS-PETITION
FOR ENFORCEMENT
Before
Thompson, Selya and Dyk,*
Circuit Judges.
José E. De La Cruz Skerrett, Rafael G. Rivera-Rosario, Ricardo
A. Piovanetti Döhnert, and De La Cruz Skerrett Law Office on brief
for petitioner.
Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey,
and Nathaniel S. Pollock, Attorneys, Appellate Section, Civil
Rights Division, United States Department of Justice, on brief for
respondent.
September 16, 2010
*
Of the Federal Circuit, sitting by designation.
SELYA, Circuit Judge. Ours is a society in which people
live, work, relax, and shop in apartment complexes, office towers,
industrial parks, stadia, and malls that stretch as far as the eye
can see. It is, therefore, unsurprising that a mundane artifact of
modern life — the parking space — has become a prized possession.
This case illustrates the point. The complainants,
believing themselves entitled to preferred parking spaces at their
residence by reason of their handicaps, filed an administrative
claim against the condominium association that controlled those
spaces. A federal administrative law judge (ALJ) awarded the
contested spaces (and other relief) to the complainants. The ALJ's
decision became the final order of the Secretary of Housing and
Urban Development (HUD). See 42 U.S.C. § 3612(h)(1).
The condominium association petitioned for judicial
review, and the Secretary cross-applied for enforcement of the
order. See id. § 3612(i)(1), (j)(1); see also 28 U.S.C. § 2342(6).
We deny the petition for judicial review and enforce the order.
I. BACKGROUND
We briefly rehearse the factual and procedural
background.
Carlos García-Guillén and Sonia Vélez-Avilés (the
complainants) are husband and wife. Along with their adult
children, they reside in Unit 318 at the Astralis condominium
complex in Carolina, Puerto Rico. They own their unit and two
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parking spaces, which are located approximately 230 feet from the
entrance to their unit.
In addition to the parking spaces owned by individual
residents, the Astralis Condominium Association (Astralis)
maintains a large number of unallocated parking spaces, including
ten handicapped spaces. Two of those handicapped spaces are
located forty-five feet from the entrance to the complainants'
unit. Under the condominium documents, unallocated parking spaces,
including handicapped spaces, are regarded as common elements to be
used by residents and visitors on a first-come, first-served basis.
The handicapped spaces are time-limited; that is, parking in these
spaces is permitted only for a certain number of hours before the
vehicle must be moved.
The complainants purchased their unit in 2005. From the
start, they experienced problems with mobility. García-Guillén
suffers from leg and knee pain and has at times needed a walker or
other appliance in order to ambulate. In 2007, he underwent hip
surgery and continues to use a cane or other aid. Vélez-Avilés
suffers from osteoarthritis of the knees, distal neuropathy, and a
prolapsed lumbar disc. She is being treated by several physicians.
These impairments make physical activity, including the
use of the complainants' assigned parking spaces, difficult. To
cope, each complainant obtained a handicapped parking placard from
the Commonwealth of Puerto Rico.
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The same concerns prompted the complainants, in early
2006, to request that Astralis grant them the exclusive, non-time-
limited use of the two handicapped parking spaces most proximate to
their unit. They discussed this proposed accommodation at various
times with members of Astralis's board of directors (the Board).
During these encounters, the complainants proffered medical
information, the sufficiency of which is disputed. Astralis claims
that the complainants failed to furnish proper documentation of the
severity of their alleged disabilities; the complainants vehemently
disagree.
The parties struggled to reach an agreement as to the
complainants' use of the handicapped parking spaces. They came
close on several occasions but never succeeded. During this
interval, which lasted into 2007, the complainants occasionally
made use of the nearby handicapped parking spaces without regard to
the time limits and without authorization from the Board. Because
such use violated Astralis's parking policy, security guards cited
the complainants for these infractions.
Frustrated by the Board's inaction, the complainants
filed an administrative complaint with HUD on February 21, 2007.
See 42 U.S.C. § 3610(a); 24 C.F.R. § 103.10. The agency assigned
Diana Ortíz to investigate the matter. In an attempt to reach an
accord, Ortíz spoke with several Board members and, as a result,
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the Board held an extraordinary assembly on March 15, 2007, to
address the parking issue.
Ortíz offered to attend the meeting, but the Board
declined her offer. The complainants were present. The Board did
not ask for, nor did the complainants volunteer, any medical
information. The complainants moved that they be granted exclusive
use of the two handicapped parking spaces. The Board voted to deny
the accommodation.
On September 11, 2008, HUD filed a charge of
discrimination against Astralis. An ALJ held a four-day
evidentiary hearing, at which the complainants, Ortíz, and several
Board members testified. The ALJ issued a written decision on
September 10, 2009, in which he found that Astralis had violated
the Fair Housing Amendments Act of 1988 (FHAA), Pub. L. No. 100-
430, 102 Stat. 1619 (codified as amended at 42 U.S.C. §§ 3601-3619,
3631),1 by refusing to grant a reasonable accommodation and by
unlawfully retaliating against the complainants. The ALJ directed
that the complainants receive exclusive use of the two handicapped
parking spaces at issue; provided, however, that they agree to
surrender their originally assigned spaces. In addition, the ALJ
awarded the complainants money damages for the retaliation,
assessed a civil penalty against Astralis, and enjoined Astralis
1
The FHAA extended Title VIII of the Civil Rights Act of 1968
to prohibit discrimination because of a person's handicap. See
FHAA, 102 Stat. 1619.
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and those acting in privity with it from any further interference
with the complainants' rights.
The ALJ's order ripened into the final order of the
Secretary of HUD. These timely cross-petitions followed.
II. DISCUSSION
We begin our analysis with the standard of review. We
then move to the merits of Astralis's arguments.2
A. Standard of Review.
A court inquiring into an agency's adjudicatory decision
can set it aside only if the decision is "arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law." 5
U.S.C. § 706(2)(A); see, e.g., S. Shore Hosp., Inc. v. Thompson,
308 F.3d 91, 97 (1st Cir. 2002). The ALJ's factual findings are
binding as long as they are supported by substantial evidence in
the record as a whole. See E.C. Waste, Inc. v. NLRB, 359 F.3d 36,
42 (1st Cir. 2004); see also White v. U.S. Dep't of Hous. & Urban
Dev., 475 F.3d 898, 904 (7th Cir. 2007) (explaining that HUD
Secretary's final determination of an FHAA claim will be disturbed
only if it is "legally or procedurally unsound, or is unsupported
by substantial evidence") (internal quotation marks omitted).
Substantial evidence "is more than a mere scintilla. It means such
2
Astralis makes no developed argumentation with respect to
the ALJ's finding of unlawful retaliation and the consequent award
of money damages. Accordingly, there is no need for us to discuss
these matters.
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relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)). In conducting this tamisage, the ALJ's credibility
determinations are entitled to great deference. See P. Gioioso &
Sons, Inc. v. OSHRC, 115 F.3d 100, 108 (1st Cir. 1997).
B. The Merits.
The FHAA prohibits discriminatory housing practices based
on a person's handicap. 42 U.S.C. § 3604(f). The statute defines
"handicap" to mean "(1) a physical or mental impairment which
substantially limits one or more of [a] person's major life
activities, (2) a record of having such an impairment, or (3) being
regarded as having such an impairment." Id. § 3602(h). It outlaws
discrimination "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 an
individual. Id. § 3604(f)(2). Discrimination includes a "refusal
to make reasonable accommodations in rules, policies, practices, or
services, when such accommodations may be necessary to afford
[handicapped persons] equal opportunity to use and enjoy a
dwelling." Id. § 3604(f)(3)(B).
There is not much case law under the FHAA in this
circuit. Nevertheless, authority under the Americans with
Disabilities Act (ADA) 42 U.S.C. §§ 12101-12213, is generally
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persuasive in assessing handicapped discrimination claims under the
FHAA. See Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 573
n.4 (2d Cir. 2003) ("Due to the similarities between the statutes,
we interpret them in tandem.").
The FHAA contemplates three types of claims for perceived
discrimination: "disparate treatment, disparate impact, and failure
to make reasonable accommodations." Smith & Lee Assocs. v. City of
Taylor, Mich., 102 F.3d 781, 790 (6th Cir. 1996); accord
Tsombanidis, 352 F.3d at 573. The adverse findings in this case
were premised on Astralis's failure to make reasonable
accommodations.
Astralis argues that our decision in Macone v. Town of
Wakefield, 277 F.3d 1 (1st Cir. 2002), requires a finding of either
discriminatory intent (disparate treatment) or disparate impact as
a predicate to FHAA liability. Astralis's reliance on Macone is
mislaid.
Disparate treatment and disparate impact do not comprise
the entire universe of pathways to FHAA liability. As the Supreme
Court explained, "[d]iscrimination covered by the FHA[A] includes
a refusal to make reasonable accommodations." City of Edmonds v.
Oxford House, Inc., 514 U.S. 725, 729 (1995) (citing 42 U.S.C.
§ 3604(f)(3)(B)) (internal quotation marks omitted). Thus, the ALJ
correctly deduced that a failure to make reasonable accommodations
can pave the way to FHAA liability.
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We move now to the particulars of the claim. To
establish a prima facie case of failure to accommodate under the
FHAA, a claimant must show that he is handicapped within the
purview of 42 U.S.C. § 3602(h) and that the party charged knew or
should reasonably have known of his handicap. Dubois v. Ass'n of
Apart. Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.
2006); cf. Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252,
264 (1st Cir. 1999) (enunciating similar prima facie case
requirement in claims brought under the ADA). Next the claimant
must show that he requested a particular accommodation that is both
reasonable and necessary to allow him an equal opportunity to use
and enjoy the housing in question. Bryant Woods Inn, Inc. v.
Howard Cnty., Md., 124 F.3d 597, 603 (4th Cir. 1997); cf. Reed v.
LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) ("[T]he
ADA's reasonable accommodation requirement usually does not apply
unless 'triggered by a request' from the employee.") (citation
omitted). Finally, the claimant must show that the party charged
refused to make the requested accommodation. 42 U.S.C.
§ 3604(f)(3)(B); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 336
(2d Cir. 1995).
The record in this case provides substantial evidence to
support the ALJ's serial findings that the complainants were
handicapped; that Astralis knew of their handicaps; that the
complainants requested a reasonable accommodation (exclusive use of
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the two handicapped parking spaces); and that Astralis refused to
honor their request.
Astralis mounts a no-holds-barred defense, disputing
these findings at every turn. On the first element, it asserts
that the complainants are not handicapped within the meaning of the
FHAA and that, in any event, it (Astralis) had no knowledge of
their handicaps. These denials do not withstand even the most
cursory scrutiny.
Testimony by the complainants, the HUD investigator, and
Board members makes manifest that García-Guillén had significant
mobility problems stemming from hip, knee, and leg ailments. These
conditions made the walk to and from his car difficult. The
testimony painted much the same picture as to Vélez-Avilés. The
evidence of her mobility problems showed that she walked with great
difficulty and pain, resorting to using a cane or even a shopping
cart for support, and that locomotion around the common areas of
the condominium exhausted her.
In addition, the fact that the Commonwealth had issued
handicapped parking placards to both the complainants lends support
to the anecdotal evidence. Under Puerto Rico law, such placards
may be issued only for the benefit of persons with disabilities.
See P.R. Laws Ann. tit. 9, § 5022(c).
Relatedly, the record offers ample support for the ALJ's
finding that Astralis knew or reasonably should have known of the
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complainants' handicaps. The complainants' difficulties in
ambulating were visible to the naked eye. Moreover, on several
occasions the complainants presented pertinent medical information
to members of the Board, thus documenting their conditions. In
fact, former presidents of the Board, although apparently acting
ultra vires, attempted to grant a parking space accommodation to
the complainants. Against this mise-en-scène, Astralis's protest
that it was unaware of the complainants' physical handicaps rings
hollow.
As to the second element of the prima facie case,
Astralis offers no coherent counter-argument. It cannot be
gainsaid that the complainants, long and loudly, requested a
parking space accommodation. Moreover, we think it plain that, on
this record, a rational person could logically infer (and, thus,
plausibly find) that the requested accommodation was both
reasonable and necessary to allow the complainants equal use and
enjoyment of their residence. See Jankowski Lee & Assocs. v.
Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (upholding ALJ's finding
of FHAA violation where landlord was aware of individual's mobility
handicap yet denied request for a parking space accommodation); see
also 24 C.F.R. § 100.204(b) (illustrating reasonable accommodation
by citing example of a person with a mobility impairment who
requests a closer parking space).
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Indeed, an example in the HUD guidelines mirrors this
case:
A resident with a mobility impairment . . .
requests an assigned accessible parking space
close to the entrance to her unit as a
reasonable accommodation. There are available
parking spaces near the entrance to her unit
that are accessible, but those spaces are
available to all residents on a first come,
first served basis. The provider must make an
exception to its policy of not providing
assigned parking spaces to accommodate this
resident.
Joint Statement of Dep't of Hous. & Urban Dev. & Dep't of Justice,
Reasonable Accommodations Under the Fair Housing Act 6 (May 17,
2004) [hereinafter Joint HUD/DOJ Statement].
Finally, we scrutinize the last element of the
complainants' prima facie case. Astralis tries to undermine the
ALJ's finding that it denied the accommodation by insisting that
the complainants obstructed the grant of the accommodation. This
came about, Astralis says, because the complainants failed to
participate in an interactive process.3 The ALJ's rejection of
this claim is supported by substantial evidence in the record.
The ALJ found that the complainants had been requesting
a parking space accommodation for at least a year prior to the
3
The HUD guidelines contemplate that parties may engage in an
"interactive process" to discuss the need for the accommodation and
possible alternatives if the housing provider refuses to grant a
requested accommodation on the ground that it is not reasonable.
Joint HUD/DOJ Statement, at 7; see, e.g., Huberty v. Wash. Cnty.
Hous. & Redev. Auth., 374 F. Supp. 2d 768, 775 (D. Minn. 2005).
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commencement of the HUD investigation. Although Board
representatives had at times offered to grant the accommodation, it
never materialized. Astralis's suggestion that the complainants,
who pursued their request assiduously, needed to bring the matter
for a full vote of the condominium owners elevates hope over
reason. Among other things, the suggestion overlooks testimony,
credited by the ALJ, that such a vote was predestined to fail. The
complainants had no obligation to undertake a futile act in order
to vindicate their federally guaranteed rights.
In sum, the circumstances permit a reasonable inference
that Astralis effectively short-circuited the interactive process.
See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st
Cir. 2004) (finding an actionable refusal to grant accommodation
where, as here, a factfinder could supportably conclude that
"defendants simply stonewalled").
Astralis also complains that it should not be held
responsible because it never expressly refused to accommodate the
complainants. In voicing this plaint, Astralis mistakenly relies
on Dubois. Unlike in this case, the condominium association in
Dubois granted a temporary exemption pending an inquiry into the
accommodation request. 453 F.3d at 1178. That exemption — a
reasonable accommodation for the perceived medical necessity — was
in place when the administrative claim was instituted, and the
condominium association "thus never refused to make the requested
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accommodation." Id. at 1179. That is a far cry from the instant
case, in which Astralis never granted the complainants permission
to park in the handicapped spaces nearest to their unit. In fact,
when the complainants unilaterally parked in those spaces, they
received violation notices. Dubois is, therefore, readily
distinguishable.
In a last-ditch effort to snatch victory from the jaws of
defeat, Astralis argues that portions of Puerto Rico's condominium
law, P.R. Laws Ann. tit. 31, §§ 1291i to 1291l-1, legitimize its
actions. To the extent that Astralis claims that it could not be
guilty of intentional discrimination because its actions were in
seeming compliance with that law, its argument is a red herring.
The ALJ never found intentional discrimination to be a basis for
Astralis's liability under the FHAA.
In a variation on this theme, Astralis claims that the
ALJ's order cannot stand because local law contains explicit
prerequisites for the transfer of common elements in condominium
developments, which have not been satisfied here. This amounts to
a claim that the FHAA cannot trump local law because it does not
evince a congressional intent to preempt or displace local law,
such as the Puerto Rico condominium law, regarding the transfer of
common elements. We reject this argument not only because it turns
the Supremacy Clause, U.S. Const. art. VI, § 2, on its head, but
also because there is no meaningful conflict between the FHAA and
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Puerto Rico's condominium law. As the ALJ recognized, compliance
with both the FHAA and the condominium law is possible. We
explain.
Under Puerto Rico condominium law, the transfer of common
elements after the construction of a property requires the
unanimous consent of the condominium owners. P.R. Laws Ann. tit.
31, § 1291i(b)(4). Even though this provision conceivably could be
construed to preclude compliance with the Secretary's order — after
all, there has been no affirmative vote of all the condominium
owners — Astralis is duty bound not to enforce a statutory
provision if doing so would either cause or perpetrate unlawful
discrimination. Cf. Gittleman v. Woodhaven Condo. Ass'n, 972 F.
Supp. 894, 899 (D.N.J. 1997) (enunciating similar prohibition with
regard to a discriminatory master deed provision). In other words,
to the extent that state statutes or local ordinances would
undercut the FHAA's anti-discrimination provision, the former
cannot be enforced. See Trovato v. City of Manchester, N.H., 992
F. Supp. 493, 498, 499 (D.N.H. 1997) (finding FHAA violation and
enjoining enforcement of a conflicting zoning code provision).
Thus, Astralis must regulate the use of common elements in
compliance with the FHAA's anti-discrimination policies, regardless
of local law.
This conclusion is buttressed by two additional
considerations. First, contrary to Astralis's importunings, the
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language of the FHAA itself manifests a clear congressional intent
to vitiate the application of any state law that would permit
discrimination based on physical handicap. See 42 U.S.C. § 3615
(expressly commanding that "any law of a State . . . that purports
to require or permit any action that would be a discriminatory
housing practice under this subchapter shall to that extent be
invalid") (emphasis supplied). Second, adopting Astralis's view
would create a sinkhole that would swallow the general rule and
cripple the effectiveness of the FHAA. To say that private
agreements under a state's condominium statute are capable of
trumping federal anti-discrimination law verges on the ridiculous.
We disavow that proposition. See, e.g., Shelley v. Kraemer, 334
U.S. 1, 11 (1948) ("It is . . . clear that restrictions on
[housing] of the sort sought to be created by the private
agreements in these cases could not be squared with the
requirements of the Fourteenth Amendment if imposed by state
statute or local ordinance.").
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we deny Astralis's petition for judicial review and grant HUD's
cross-application for enforcement of the Secretary's final order.
So Ordered.
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