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Media Alerts - Revock v. Cowpet Bay West Condominium Association - Third Circuit
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April 12, 2017
  Revock v. Cowpet Bay West Condominium Association - Third Circuit
Headline: Third Circuit Holds that Fair Housing Act Claims Survive the Death of a Party, and Reverses District Court's Grant of Summary of Judgment

Area of Law: Fair Housing Act, Statutory Interpretation

Issue(s) Presented: (1) Whether a Fair Housing Act claim survives the death of a party; (2) Whether the district court properly dismissed Walters' Fair Housing Act claims entirely due to her death; (3) Whether the district court properly denied Kromenhoek's Fair Housing Act claims on the merits.

Brief Summary: Appellants Barbara Walters and Judith Kromenhoek filed civil rights actions under the Fair Housing Act. Walters and Kromenhoek sought accommodations for their disabilities in the form of emotional support animals, which were not permitted under the rules of their condominium association. They alleged violations of their right to a reasonable accommodation of their disabilities and interference with the exercise of their fair housing rights. Among other issues, these cases raised the question of whether a Fair Housing Act claim survives the death of a party. The Third Circuit held that the district court improperly answered this question by applying a limited gap-filler statute and, in turn, territorial law. It then concluded that the survival of claims under the Fair Housing Act is not governed by the gap-filler statute, but rather by federal common law, under which a Fair Housing Act claim survives the death of a party. Accordingly, it reversed the district court's grant of summary judgment against Walters' executrix. On the merits of the summary judgment motions, the Third Circuit reversed in part and vacated in part, and remanded to the district court with instructions to consider whether to permit substitution for two deceased appellees.

Extended Summary: Appellants Barbara Walters and Judith Kromenhoek suffered from disabilities, for which each was prescribed an emotional support animal. Each woman obtained a dog. This violated the "no dogs" rule of their condominium association, Cowpet Bay West. Cowpet's rule had no exceptions and Cowpet had no policy regarding assistive animals like emotional support animals. Walters and Kromenhoek each attempted to request an accommodation for an emotional support animal by filing paperwork with Cowpet's office manager. The paperwork included a doctor's letter prescribing an emotional support animal, and a dog certification. Each certification stated that the dog was "prescribed and deemed necessary to assist . . . the confirmed disabled handler" and that "property managers and landlords are required to make reasonable accommodation" under the Fair Housing Act. Certain residents at Cowpet became upset that Walters kept a dog in violation of the rule, and these views were expressed on one of the residents' online blog posts. Both Walters and Kromenhoek maintained their right to keep a dog in spite of the rule. Despite both women having submitted accommodation requests and medical verifications to Cowpet, the association and its representatives denied having reviewed the paperwork, and subsequently imposed a fine upon both Walters and Kromenhoek for violating the rule. Several months later, Cowpet's board changed presidents, and Walters and Kromenhoek again submitted accommodation requests, which were granted.

Despite being granted an accommodation, both women subsequently filed civil rights lawsuits under the Fair Housing Act, raising two federal claims: (1) that Cowpet denied their reasonable requests for accommodation in violation of the Act; and (2) that Cowpet and certain Cowpet residents interfered with the exercise of their fair housing rights in violation of the Act. While the case was pending in the district court, Walters committed suicide. The court granted the substitution of Liana Walters Revock as Walters' personal representative. Defendants moved for summary judgment. The district court dismissed Walters' Fair Housing Act claims entirely due to her death, and denied Kromenhoek's Fair Housing Act claims on the merits. Both appealed to the Third Circuit.

The Third Circuit first addressed the question of whether a Fair Housing Act claim survives the death of a party, which was an issue of first impression. The court began by explaining that the Fair Housing Act is construed broadly in light of its purpose of providing fair housing and eradicating discriminatory practices, including discrimination on the basis of disability. Because the Act is silent as to survival, the district court applied a "gap-filler statute," which in turn led it to apply territorial law. The district court applied a Virgin Islands statute under which it held that Walters' Fair Housing Act claims did not survive her death. The Third Circuit reversed the judgment of the district court on this issue, holding that the gap-filler statute does not apply to the issue of whether a Fair Housing Act claim survives the death of the party because the plain text of the statute did not apply to the Fair Housing Act. So, absent statutory guidance, the Third Circuit applied federal common law. The weight of authority as to the common law rule of survival indicates that remedial claims survive, but penal claims do not. The court explained that a Fair Housing Act claim is remedial because the Act was intended by Congress to have "broad remedial intent." Thus, under the common law rule, Fair Housing Act claims survive the death of a party, which means that Walters' claim survived her death.

Next, the court examined the merits of the first Fair Housing Act claim, considering whether Cowpet refused to provide a reasonable accommodation for Walters' and Kromenhoek's disabilities in violation of the Act. Because the court found that there were genuine issues of material fact as to this claim, it reversed the district court's grant of summary judgment for Cowpet. Specifically, Cowpet disputed the statutory requirement that there be a "refusal" to provide the reasonable accommodation. Whether there has been a refusal to provide a reasonable accommodation under the Fair Housing Act depends on the circumstances, and a refusal may be "actual or constructive." An undue delay in granting a reasonable accommodation may amount to a refusal. Moreover, a refusal occurs when the disabled resident is first denied a reasonable accommodation, irrespective of the remedies granted in subsequent proceedings. The Third Circuit noted, however, that the same action might sometimes amount to a "refusal" and, at other times, mere enforcement of a housing rule. In this case, whether Cowpet's actions constituted a refusal depends upon whether Cowpet was given an opportunity to accommodate. On this issue, the parties disputed material issues of fact that precluded summary judgment.

Then, the court considered the issue of whether the Defendants interfered with Walters' and Kromenhoek's exercise of their fair housing rights in violation of the Fair Housing Act. The district court granted summary judgment for the Defendants, and the Third Circuit reversed in part and vacated in part. The Act makes it "unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of his having exercised or enjoyed . . . any right granted or protected by" the provisions of the Act. Because the term "interference" is not defined in the Act, the court looked at its ordinary meaning, and found that interference under the Act may consist of harassment, provided that it is sufficiently severe or pervasive as to create a hostile environment. There were genuine issues of material fact that existed as to this claim, requiring the Third Circuit to reverse the district court's grants of summary judgment. The court also vacated the district court's grant of summary judgment for the former president of Cowpet's board, who had since passed away, and directed the district court on remand to determine whether to substitute a party for him.

The full opinion can be found at http://www2.ca3.uscourts.gov/opinarch/144776p.pdf

Panel: Fuentes, Vanaskie, and Restrepo, Circuit Judges

Argument Date: May 19, 2016

Date of Issued Opinion: March 31, 2017

Docket Number: Nos. 14-4776 & 14-4777

Decided: Reversed in part, vacated in part, remanded in part

Case Alert Author: Samuel M. Ventresca

Counsel: Karin A. Bentz, Gregory A. Thorp, Counsel for Appellants; W. Todd Boyd, James K. Parker, Jr., Yvette R. Lavelle, Joseph G. Riopelle, Carl R. Williams, John H. Benham, III, Boyd L. Sprehn, Kyle R. Waldner, Ryan C. Meade, Counsel for Appellees; Vanita Gupta, Mark L. Gross, April J. Anderson, Counsel for Amicus Appellant United States of America.

Author of Opinion: Circuit Judge Restrepo

Circuit: Third Circuit

Case Alert Circuit Supervisor: Professor Mary E. Levy

    Posted By: Susan DeJarnatt @ 04/12/2017 02:50 PM     3rd Circuit  

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