Garcia v. Brockway ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NOLL GARCIA, 
Plaintiff-Appellant,
STATE FARM FIRE AND CASUALTY
COMPANY,
Intervenor-Appellee,
v.
DENNIS BROCKWAY; ROBERT No. 05-35647
STEWART; STEWART MILES &  D.C. No.
ASSOCIATES, CV-03-00193-MHW
Defendants-Appellees,
and
J. J. ZAVOSHY; Y. W. ZAVOSHY;
H&H PROPERTIES; ZAVOSHY REV.
INTER VIVOS TRUST,
Defendants.

5315
5316 GARCIA v. BROCKWAY
TAMARA THOMPSON; DISABLED 
RIGHTS ACTION COMMITTEE, (a Utah
non-profit corporation),
Plaintiffs-Appellants, No. 06-15042
v. D.C. No.
GOHRES CONSTRUCTION CO., a
Nevada corporation; MARC  CV-05-00156-ECR
ORDER AND
GOHRES, AMENDED
Defendants, OPINION
and
MICHAEL E. TURK,
Defendant-Appellee.

Appeal from the United States District Court
for the District of Idaho
Mikel H. Williams, Magistrate Judge, Presiding
Argued and Submitted
March 25, 2008—San Francisco, California
Filed May 13, 2008
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
GARCIA v. BROCKWAY 5319
COUNSEL
Ken Nagy, Keeton and Tait, Lewiston, Idaho; Maria E.
Andrade, Huntley Park, Boise, Idaho, for plaintiff-appellant
Noll Garcia.
Phillip S. Oberrecht and Candy W. Dale, Hall, Farley, Ober-
recht & Blanton, P.A., Boise, Idaho, for defendant-appellee
Dennis Brockway.
Kirtlan G. Naylor and Carlton R. Ericson, Naylor & Hales,
P.C., Boise, Idaho, for defendants-appellees Robert Stewart
and Stewart Miles & Associates.
5320 GARCIA v. BROCKWAY
Richard Armknecht, III, Armknecht & Cowdell, P.C., Lindon,
Utah, for plaintiffs-appellants Tamara Thompson and Dis-
abled Rights Action Committee.
Joshua H. Reisman, Stanley W. Parry and William P. Curran,
Curran & Parry, Las Vegas, Nevada, for defendant-appellee
Michael E. Turk.
Stephen M. Dane, Michael Allen and John P. Relman, Rel-
man & Dane PLLC, Washington, D.C.; Susan Ann Silverstein
and Julie Nepveu, AARP Foundation Litigation, Washington,
D.C.; Joan Sylvester Wise, AARP, Washington, D.C., for
amici curiae AARP, et al., in support of the appellants.
Thomas H. Keeling and Lee Roy Pierce, Jr., Freeman
D’Aiuto Pierce Gurev Keeling & Wolf, PLC, Stockton, Cali-
fornia, for amici curiae California Building Industry Associa-
tion, et al., in support of the appellees.
Jed W. Manwaring, Evans Keane LLP, Boise, Idaho, for
amicus curiae Idaho Association of Realtors, in support of the
appellees.
Christopher B. Hanback, Rafe Petersen and Elizabeth Phelps,
Holland & Knight LLP, Washington, D.C.; Robert A. Blei-
cher, Holland & Knight LLP, San Francisco, California, for
amici curiae National Multi Housing Council, et al., in sup-
port of the appellees.
Michael Evans, DePaul University College of Law; Christo-
pher Brancart and Elizabeth Brancart, Brancart & Brancart,
Pescadero, California, for amici curiae Silver State Fair Hous-
ing Council, Inc., et al., in support of the appellants.
ORDER
The three-judge panel decision, Garcia v. Brockway, 503
F.3d 1092 (9th Cir. 2007), is adopted as the opinion of the en
banc court. The opinion is amended as follows:
GARCIA v. BROCKWAY 5321
Page 1095, Column 1, Replace with

Page 1097, Column 2, Delete footnote 4
Line 19
Page 1098, Column 1, Replace with
Line 10
Page 1101, Column 1, After insert a new
Line 5 footnote stating: 67 F.3d 260, 263 (9th Cir. 1995),
rev’d on other grounds, 519 U.S.
347 (1997).>
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).
5322 GARCIA v. BROCKWAY
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 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 modifi-
cations 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 that management make
accessibility improvements were ignored, as was his request
that management build a ramp to his door or that he be relo-
cated 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 dis-
trict 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 accom-
modations and interference claims, and they subsequently set-
GARCIA v. BROCKWAY 5323
tled. Garcia appeals the summary judgment in favor of
Brockway and Stewart.
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 Vil-
las were issued a final certificate of occupancy, and the prop-
erty 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 tes-
ters 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, Marc Gohres and Gohres
Construction, asserting an FHA design-and-construction
claim. The district court granted defendants’ motion to dis-
miss because the claim was time-barred. We granted plain-
tiffs’ motion to voluntarily dismiss the appeal as to Gohres
and Gohres Construction. Plaintiffs thus only appeal the dis-
trict court’s order with respect to Turk.
Analysis
The FHA prohibits the design and construction of multi-
family 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 reme-
dies include actual damages to the aggrieved person, civil
penalties and injunctive relief. See 24 C.F.R. § 180.670(b)(3).
5324 GARCIA v. BROCKWAY
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.” Id. § 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 gen-
eral three-year statute of limitations, 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.” Id. § 2462.
[1] The third enforcement mechanism—the one at issue
here—is a private civil action. The FHA provides that “[a]n
aggrieved person may commence a civil action in an appro-
priate 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 Id. § 3604(f)(3)(C). The statute
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
GARCIA v. BROCKWAY 5325
of limitations is thus triggered at the conclusion of the design-
and-construction phase, which occurs on the date the last cer-
tificate of occupancy is issued. In both cases, this triggering
event occurred long before plaintiffs brought suit.2
sale or rental of an FHA-noncompliant unit, rather than design and con-
struction of the building. Id. 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.” Id. 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.
Additionally, under the dissent’s interpretation, only the party that actu-
ally 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 sec-
tion (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 isolat-
ing (f)(1) and (f)(2) from (f)(3)(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 General to bring a design-and-construction
claim against builders under 42 U.S.C. § 3614(a), because design and con-
struction of an FHA-noncompliant building alone would not, under the
dissent’s interpretation, be actionable under the FHA. The dissent’s inter-
pretation 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—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 time-
barred, Garcia was able to obtain relief by settling with the current owners
and management of South Pond with respect to his accommodations
claim.
5326 GARCIA v. BROCKWAY
Plaintiffs advance three theories that would extend the limi-
tations 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, chal-
lenges 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 trigger-
ing 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 noncom-
pliance, 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 Build-
ers in Meeting the Accessibility Requirements of the Fair
Housing Act 22 (rev. 1998).3
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.
GARCIA v. BROCKWAY 5327
[2] Plaintiffs and HUD confuse a continuing violation with
the continuing effects of a past violation. “Termination” refers
to “the termination of an alleged discriminatory housing prac-
tice.” The Supreme Court has “stressed the need to identify
with care the specific [discriminatory] practice that is at
issue.” Ledbetter v. Goodyear Tire & Rubber Co., 127 S. Ct.
2162, 2167 (2007). Here, the practice is “a failure to design
and construct,” which is not an indefinitely continuing prac-
tice, 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 “continu-
ing” 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 [limita-
tions] period.” 455 U.S. at 381 (emphasis added).
[3] Put differently, “[a] continuing violation is occasioned
by continual unlawful acts, not by continual ill effects from
an original violation.”4 Ward v. Caulk, 650 F.2d 1144, 1147
(9th Cir. 1981) (citing Collins v. United Airlines, Inc., 514
F.2d 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 contains inaccessible fea-
tures 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
4
The dissent maintains we’re making a “crucial error” by defining the
alleged discriminatory housing practice as the failure to design or con-
struct an FHA-compliant unit. Dissent at 5337. The dissent seems to
define the act of selling or leasing an FHA-noncompliant unit as the dis-
criminatory housing practice. Id. at 5338. However, this confuses the “dis-
crete 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” dis-
crete act of discrimination. Id. (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).
5328 GARCIA v. BROCKWAY
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.’ ” Ledbet-
ter, 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.5 Were 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
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. Pur-
suant 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 investiga-
tion is an act of discrimination. Further, if such participation were to re-
trigger 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 pri-
vate actions.
Garcia further contends that Brockway interfered with his FHA rights
by not notifying him about the modification fund. But nothing in the con-
ciliation agreement 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 consti-
tutes an act within the limitations period. Brockway hadn’t been associ-
ated 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.
GARCIA v. BROCKWAY 5329
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 Con-
gress 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 stat-
ute to say so explicitly.
Nor may we ignore the statute of limitations to help an
aggrieved person who suffers from the effects of such viola-
tion decades after construction. See Boise Cascade Corp. v.
EPA, 942 F.2d 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 limi-
tations periods, while guaranteeing the protection of the civil
rights laws to those who promptly assert their rights, also pro-
tect [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.6 This novel legal theory
was first articulated in a law review article. See Robert G.
Schwemm, Barriers to Accessible Housing: Enforcement
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.
5330 GARCIA v. BROCKWAY
Issues in “Design and Construction” Cases Under the Fair
Housing Act, 40 U. Rich. L. Rev. 753, 849-55 (2006).
[4] 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 con-
struction, 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 Vil-
las, which occurred within two years of filing suit.
[5] Plaintiffs make too much of the Supreme Court’s obser-
vation 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, 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 fail-
ure 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 dec-
GARCIA v. BROCKWAY 5331
ades 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 applica-
ble.” United States v. Kubrick, 444 U.S. 111, 125 (1979).
Plaintiffs’ 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 encoun-
tering such a building, they could presumably generate an
endless series of such injuries by repeated visits to the build-
ing. . . . Eventually, the limitations periods would run on the
claims based on the earlier 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 limi-
tations 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.7 Garcia advances this theory as both the
discovery rule and the equitable tolling doctrine, but neither
helps him.
7
Plaintiffs Thompson and DRAC do not raise this claim.
5332 GARCIA v. BROCKWAY
[6] 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 encoun-
tered or discovered. See 42 U.S.C. § 3613(a)(1)(A).
“Equitable tolling may be applied if, despite all due dili-
gence, a plaintiff is unable to obtain vital information bearing
on the existence of his claim.” Santa Maria v. Pac. Bell, 202
F.3d 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 limita-
tions has begun to run; but he cannot obtain information nec-
essary to decide whether the injury is due to wrongdoing and,
if so, wrongdoing by the defendant.” Cada v. Baxter Health-
care Corp., 920 F.2d 446, 451 (7th Cir. 1990).8
Here, Garcia doesn’t claim he was injured within the limi-
tations period but was unable to obtain vital information con-
cerning the existence of his claim until the period expired.9
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
GARCIA v. BROCKWAY 5333
Instead, he basically contends that 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 preju-
dice 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 limi-
tations 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.
* * *
[7] 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 comple-
tion 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 dis-
missed.
be appropriate if the builder prevented testers or problem tenants from vis-
iting 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 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).
5334 GARCIA v. BROCKWAY
AFFIRMED.
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 pur-
pose 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 dis-
abled 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 sat-
isfy 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 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.1 Thus, a disabled person
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: dis-
abled individuals.
GARCIA v. BROCKWAY 5335
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 previ-
ously seen the property and no disabled person had been
aware of or injured by the violation until the would-be plain-
tiff 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 require-
ments was to protect an important civil right. 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 fea-
tures 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 construc-
tion. Compliance with these minimal standards will eliminate
many of the barriers which discriminate against persons with
disabilities in their attempts to obtain equal housing opportu-
nities.”). The Act, including its statute of limitations provi-
sion, 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 construc-
tion” of the FHA’s complaint-filing provisions to “give vital-
ity 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
5336 GARCIA v. BROCKWAY
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.
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 pur-
pose and structure of the FHA and its legislative and judicial
history.
I believe instead that the most plausible reading of the stat-
ute 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 limi-
tations 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 immu-
nized from suit long before a particular disabled individual
has been injured and able to challenge the noncompliant fea-
tures. 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 admin-
istering 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 protec-
GARCIA v. BROCKWAY 5337
tion and instead will be relegated to “reasonable modifica-
tions” 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 defec-
tive building’s construction. Ironically, by invoking provi-
sions Congress inserted into the FHA to expand disabled
persons’ access to the courts and to facilitate private enforce-
ment, 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 Vil-
las at Rancho del Norte. Accordingly, I would reverse the dis-
trict courts’ rulings and remand so that Appellants may
proceed with their cases.
I.
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 discrimi-
natory 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 [discrimi-
natory housing] practice is the ‘failure to design and con-
struct’ 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,
5338 GARCIA v. BROCKWAY
th[e] triggering event,” i.e., “the conclusion of the design-and-
construction phase,” “occurred long before plaintiffs brought
suit.” Id. 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 unlawful under section 3604 . . . of this title” (emphasis
added). Section 3604, in turn, states that “it shall be unlaw-
ful,” among other things, “[t]o 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, condi-
tions, 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 “[f]or purposes of this subsection, discrimination
includes — . . . a failure to design and construct [covered
multifamily] dwellings” in accordance with various require-
ments 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.1 At
1
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 hous-
ing practices,” has standing to sue under the FHA.
GARCIA v. BROCKWAY 5339
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[d]e 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 discrimina-
tory action. Analogously, the limitations period for an actual
tenant begins (at the earliest) when the individual first moves
into a FHA-noncompliant unit. Only at that point is it fair to
say that a real estate developer or landlord has “discrimi-
nate[d] against [the individual] . . . in the provision of services
or facilities . . . because of a handicap.” § 3604(f)(2).2
2
I suggest that the limitations period begins at the earliest when a plain-
tiff 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 been 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 prac-
tice” (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 discrimina-
tory 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 doc-
trines).
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. Id. at 381; see also id. (finding claims timely because they “are
based not solely on isolated incidents . . . but a continuing violation mani-
fested in 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
5340 GARCIA v. BROCKWAY
Because real 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).3
This reading is consistent with the understanding of other
courts, commentators and, as discussed below, the Depart-
ment 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 limita-
tions 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
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.” Id. 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.
3
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 § 3604(f)(3)(C) in their complaints, but Thompson’s
complaint further alleged violations of § 3604(f)(2) and Garcia’s com-
plaint 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 General would be ham-
pered in bringing design-and-construction claims under my interpretation
of the statute is baseless. See Majority Op. at 5324-25, n.1.
GARCIA v. BROCKWAY 5341
majority of . . . federal courts that have . . . rejected the posi-
tion 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, how-
ever, goes down a different path, contending that it is the
actions described by § 3604(f)(3)(C) — namely 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 “unlaw-
ful” “discriminatory housing practices” that begin the FHA’s
limitations period. In contrast, § 3604(f)(3)(C) is best read as
a specific example of the discrimination that 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 “dis-
crimination includes . . . the [faulty] design and construction
of covered multifamily dwellings,” rather than a provision
that actually sets forth a cause of action.4 The construction of
4
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), indicat-
ing that it is a definitional provision, not a coordinate one. Section 3604
5342 GARCIA v. BROCKWAY
a FHA-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 limi-
tations 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]rom a purely textual
standpoint a violation of the relevant Fair Housing Act provi-
sion 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 Apart-
ments 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 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 limita-
tions 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 con-
structed — that Garcia and Thompson were the victims of dis-
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 leg-
islative history confirms this interpretation. 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 character-
izing “[n]ew subsection [3604](f)(3)” as merely “augment[ing]” them).
GARCIA v. BROCKWAY 5343
criminatory 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 doc-
trine. Nevertheless, it is worth noting that the majority’s anal-
ysis of that doctrine, see Majority Op. at 5326-29, suffers
from the same defect as its analysis of the rest of the statutory
text. Appellants “confuse a continuing violation with the con-
tinuing effects of a past violation,” id. at 5327, only if the rel-
evant 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 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).5
5
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 conclu-
sion of the design-and-construction phase,” Majority Op. at 5324, the
majority’s reasons for rejecting the equitable tolling doctrine are unper-
suasive. The starting presumption, read into every federal statute of limita-
tions 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 statutory considerations that preclude the application of the
equitable tolling doctrine are absent in this case.
First, § 3613 sets forth its time limitation in “fairly simple” form, nei-
ther “unusually emphatic” nor “highly detailed” and “technical.” Brock-
amp, 519 U.S. at 350. Second, tolling the FHA’s statute of limitations
5344 GARCIA v. BROCKWAY
II.
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 con-
flicts with the statutory text as well as the presumption that
statutes of limitations are not triggered at least until the plain-
tiff’s cause of action has accrued. In effect, the majority con-
verts 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,” he can-
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 con-
cludes that equity so requires.” Id. at 353. Indeed, the Department of
Housing and Urban Development (HUD) — the administrative agency
charged with administering the FHA — has weighed in against the majori-
ty’s interpretation of § 3613. Finally, the FHA does not already provide
for generous tolling or other broad exceptions. See United States v. Beg-
gerly, 524 U.S. 38, 48-49 (1998).
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 all
FHA claims.
GARCIA v. BROCKWAY 5345
not “commence a civil action”; and until he can legally initi-
ate 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 discrimi-
natory housing practice.” § 3613(a)(1)(A); see Havens, 455
U.S. at 381 (linking start of FHA’s limitations period to plain-
tiffs’ assertions that they were “deprived . . . of the benefits
of interracial association” and suffered “injury to [their] coun-
seling 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 plain-
tiff 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
Nat’l 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).6
6
The majority misreads Ledbetter as standing for the proposition that an
individual’s first experience of discrimination can nonetheless constitute
5346 GARCIA v. BROCKWAY
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 Federal 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 “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
the mere “effects” of a past discriminatory decision for statute of limita-
tions purposes. See Majority Op. at 5328, n.5. As Ledbetter makes clear,
however, the statute of limitations does not begin to run until the individ-
ual actually experiences the discrimination herself — i.e., when a discrim-
inatory decision “was made and communicated to [the plaintiff]” — not
when the defendant adopted a policy that might someday impact a particu-
lar plaintiff. See Ledbetter, 127 S. Ct. at 2169.
GARCIA v. BROCKWAY 5347
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 Clean-
ing Pension Trust Fund v. Ferbar Corp., 522 U.S. 192, 201
(1997) (“Unless Congress has told us otherwise in the legisla-
tion 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). Under the majority’s read-
ing, 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. “Al-
though the distinction between [the two] is often blurred, stat-
utes 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 ter-
minate[ ] 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 orig-
inal) (internal quotation marks omitted); see also Johnson v.
Aljian, 490 F.3d 778, 781 n.12 (9th Cir. 2007) (same); Under-
wood 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 dili-
gence; 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 construc-
5348 GARCIA v. BROCKWAY
tion of a covered dwelling, “even if the injury has not yet
occurred,” Fields, 413 F.3d at 952 n.7, and even if the plain-
tiff has been “diligent enough,” Underwood Cotton, 288 F.3d
at 408.
It is patently clear, however, that § 3613 is actually a stat-
ute 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.”7 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.
III.
The majority’s position also conflicts with the relevant leg-
islative 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 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 “ham-
pered by a short statute of limitations” and that “[e]xisting law
7
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 rela-
tively short and thus further confirms that § 3613 is a statute of limitations
rather than a statute of repose.
GARCIA v. BROCKWAY 5349
has been ineffective because it lacks an effective enforcement
mechanism.” House Report at 16, 1988 U.S.C.C.A.N. at
2177. Accordingly, “[t]he bill strengthen[ed] the private
enforcement section by expanding the statute of limitations”
from 180 days to two years. Id. 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.” Id. at 33, 1988
U.S.C.C.A.N. at 2194. This language demonstrates that Con-
gress 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 interpreta-
tion of the statute, which forever immunizes developers and
landlords of FHA-noncompliant buildings from disabled per-
sons’ private enforcement actions once two years have passed
since the buildings’ construction.
In accordance with the statutory text and the legislative his-
tory, the Supreme Court has frequently instructed that the
FHA should be interpreted flexibly in order to effectuate Con-
gress’ 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 inclusive’ compass, and therefore according a
‘generous construction’ to the Act’s complaint-filing provi-
sion.”) (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, § 3603(f)(3)(C),
above the provisions under which plaintiffs actually bring
their claims, and disregards the presumption that statutes of
5350 GARCIA v. BROCKWAY
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 Require-
ments of the Fair Housing Act 22 (rev. 1998)); see also U.S.
Dep’t of Hous. & Urban Dev., Title VIII Complaint Intake,
Investigation, and Conciliation Handbook 3-5 (1995) (“A
complainant aggrieved because an otherwise covered multi-
family dwelling unit was not designed and constructed [prop-
erly] . . . 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 non-
textual 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.”).
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 “evis-
cerate[ ]” the FHA’s statute of limitations and have adverse
consequences for real estate developers. Majority Op. at 5328;
GARCIA v. BROCKWAY 5351
see id. at 5331-32 (discussing the “extreme prejudice defen-
dants 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”).8
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 immu-
nized from suit two years after remedying the statutory viola-
tions of covered dwellings.9 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 develop-
ers. In passing the FHA, and then in amending it in 1988,
Congress intended to issue “a clear pronouncement of a
national commitment to end the unnecessary exclusion of per-
sons with handicaps from the American mainstream.” House
Report at 18, 1988 U.S.C.C.A.N. at 2179.10 Congress notably
8
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 cur-
rent 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 bring[ing] civil damages actions
for buildings defendants no longer own and cannot fix without the cooper-
ation of the current owners,” Majority Op. at 5332, is plainly groundless
as to Turk.
9
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.
10
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
5352 GARCIA v. BROCKWAY
did not express any concern about builders who failed to com-
ply 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 Enforce-
ment Act of 1999, H.R. 2437, 106th Cong. § 2(2). Congress
was unpersuaded by the bill’s proponents that it should “pro-
vide relief from prosecution to those in the building commu-
nity who may have committed building design violations”
since the FHA was amended 11 years earlier. Justice in Fair
Housing Enforcement 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 Con-
gress.11
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
“generous construction” that the statute should be accorded and the “broad
remedial intent of Congress embodied in the Act” plainly contain no loop-
hole for real estate developers’ interests. Havens, 455 U.S. at 380; Traffi-
cante, 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 omit-
ted).
11
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).
GARCIA v. BROCKWAY 5353
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 run-
ning 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. As one district court has
observed, “as the FHA requires no showing of intent, defen-
dant’s architectural plans and apartment complexes can them-
selves 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 expo-
sure 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 who may be sued under the FHA. For
instance, the current owner and landlord of the Villas at Ran-
cho 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) (“[A]ll
participants in the process as a whole are bound to follow the
5354 GARCIA v. BROCKWAY
FHAA. . . . [A]ny entity who contributes to a violation of the
FHAA [is] liable.”) (emphasis in original).
V.
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.