Liana Revock v. Cowpet Bay West Condominium As , 853 F.3d 96 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 14-4776 & 14-4777
_____________
LIANA REVOCK,
Executrix of the Estate of Barbara Walters
Appellant in case no. 14-4776
v.
COWPET BAY WEST CONDOMINIUM ASSOCIATION;
THE BOARD OF THE COWPET BAY WEST
CONDOMINIUM ASSOCIATION;
MAX HARCOURT, in his personal capacity;
ALFRED FELICE; LANCE TALKINGTON;
ROBERT COCKAYNE; VINCENT VERDIRAMO
JUDITH KROMENHOEK
Appellant in case no. 14-4777
v.
COWPET BAY WEST CONDOMINIUM ASSOCIATION;
THE BOARD OF THE COWPET BAY WEST
CONDOMINIUM ASSOCIATION;
MAX HARCOURT, in his personal capacity;
ALFRED FELICE; LANCE TALKINGTON;
ROBERT COCKAYNE; VINCENT VERDIRAMO
______________
APPEAL FROM THE DISTRICT COURT
OF THE VIRGIN ISLANDS
(D.C. Nos. 3-12-cv-00024 & 3-12-cv-00025)
District Judge: Honorable Curtis V. Gómez
_____________
Argued: May 19, 2016
______________
Before: FUENTES,* VANASKIE and RESTREPO,
Circuit Judges
(Filed: March 31, 2017)
______________
Karin A. Bentz, Esq. [ARGUED]
Gregory A. Thorp, Esq.
Law Offices of Karin A. Bentz
5332 Raadets Gade, Suite 3
St. Thomas, VI 00802
Counsel for Appellants
W. Todd Boyd, Esq.
James K. Parker, Jr., Esq. [ARGUED]
Yvette R. Lavelle, Esq.
Boyd, Richards, Parker & Colonnelli, P.L.
100 Southeast Second Street, Suite 2600
*
Honorable Julio M. Fuentes assumed senior status on July
18, 2016.
2
Miami, FL 33131
Joseph G. Riopelle, Esq.
Boyd Richards Parker & Colonnelli
400 North Ashley Drive
Suite 1150
Tampa, FL 37606
Carl R. Williams, Esq.
Birch de Jongh & Hindels
1330 Estate Taarnebjerg
St. Thomas, VI 00802
Counsel for Appellees Cowpet Bay West Condominium
Association, Inc., Board of the Cowpet Bay West
Condominium Association, Robert Cockayne and
Vincent Verdiramo; former counsel for Appellee Max
Harcourt, deceased
John H. Benham, III, Esq,
Boyd L. Sprehn, Esq. [ARGUED]
Benham & Chan
P.O. Box 11720
St. Thomas, VI 00801
Counsel for Appellee Lance Talkington
Kyle R. Waldner, Esq. [ARGUED]
Ryan C. Meade, Esq.
Quintairos, Prieto, Wood & Boyer, P.A.
9300 South Dadeland Boulevard, Fourth Floor
Miami, FL 33156
Former counsel for Appellee Alfred Felice, deceased
3
Vanita Gupta, Esq.
Mark L. Gross, Esq.
April J. Anderson, Esq. [ARGUED]
United States Department of Justice
Civil Rights Division, Appellate Section
Ben Franklin Station
P.O. Box 14403
Ben Franklin Station
Washington, DC 20044
Counsel for Amicus Appellant United States of
America
______________
OPINION OF THE COURT
______________
RESTREPO, Circuit Judge
Appellants Barbara Walters and Judith Kromenhoek
filed these 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 allege violations of their right to a
reasonable accommodation of their disabilities, 42 U.S.C.
§ 3604(f)(3)(B), and interference with the exercise of their
fair housing rights, 42 U.S.C. § 3617. They also allege
supplemental territorial claims.
Among other issues, these cases raise the question
whether a Fair Housing Act claim survives the death of a
party. We hold that the District Court improperly answered
4
this question by applying a limited gap-filler statute,
42 U.S.C. § 1988(a), and, in turn, territorial law. We
conclude that the survival of claims under the Fair Housing
Act is not governed by Section 1988(a), but rather by federal
common law, under which a Fair Housing Act claim survives
the death of a party. Accordingly, we will reverse the District
Court’s grant of summary judgment against Walters’
executrix.
On the merits of the summary judgment motions, we
will reverse in part and vacate in part. We will remand to the
District Court with instructions to consider whether to permit
substitution for two deceased Appellees.
I1
Appellants Walters and 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 “no dogs” rule provided that “Dogs and
farm animals are prohibited, and owners will be fined as
specified by the Board of Directors.” App. 104. The rule had
no exceptions and Cowpet had no policy regarding assistive
1
In our recitation of the facts, we consider as
affidavits Walters and Kromenhoek’s sworn verified
complaints, to the extent that they are based upon personal
knowledge and set out facts that would be admissible in
evidence. See Fed. R. Civ. P. 56(c)(4); see also Reese v.
Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified
complaint as affidavit for summary judgment purposes).
5
animals, such as emotional support animals.2 The “no dogs”
rule was enforced by the Cowpet Board of Directors, which
has the authority to enforce the Cowpet “Rules and
Regulations with monetary fines and other sanctions . . . .”
App. 100.
Walters and Kromenhoek each attempted to request an
accommodation for an emotional support animal by filing
paperwork with Cowpet’s office manager, Louanne
Schechter. 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
2
We use the term “emotional support animal”
colloquially to refer to an animal that assists a person with a
disability-related need for emotional support. This is not a
term of art under the Fair Housing Act. See generally Pet
Ownership for the Elderly and Persons with Disabilities,
73 Fed. Reg. 63834, 63834-36 (Oct. 27, 2008) (discussing the
role of assistive animals, but noting that HUD regulations do
not provide a specific definition).
What we are not referring to is a “service animal”
under the Americans with Disabilities Act (ADA). See 28
C.F.R. § 35.104 (2016) (“Service animal means any dog that
is individually trained to do work or perform tasks for the
benefit of an individual with a disability . . . . [T]he provision
of emotional support, well-being, comfort, or companionship
do not constitute work or tasks for the purposes of this
definition.”). We use the phrases “service animal” and
“service dog” only when quoting the parties directly.
6
landlords are required to make reasonable accommodation”
under the Fair Housing Act. App. 1304, 2231. Walters
submitted her paperwork in February 2011 and Kromenhoek
in July 2011. Cowpet took no action at the time.
The presence of dogs at Cowpet drew the ire of some
residents. One resident, Appellee Lance Talkington, fanned
the flames by writing about dogs at Cowpet on his blog about
the community. In October 2011, Talkington wrote on his
blog that “Barbara[] [Walters] has a dog and claims to have
‘papers’ that allow her to have it.” App. 1904. He also wrote
that he had asked the office manager “whether the office has
Barbara[] [Walters’] paperwork in their files and whether
monetary fines have been assessed if not,” but had not
received an answer. Id.
In response to this blog post, Appellee Alfred Felice
posted the first of many inflammatory comments on
Talkington’s blog.3 Felice wrote that dog owners might be
“happier in another community rather than ostracized at
[Cowpet], which would be another fine recourse, besides a
significant $$ fine, with progressive amounts.” App. 1905.
Walters, having been named by Talkington, responded
on the blog. She wrote that “[s]ince you so tactfully used my
name in this blog, I am required to defend myself, not as a
‘violator’ of any laws, but a person with a disability . . . .”
App. 1906. Walters also wrote that she was “mortified, that
my personal business has been laid out over the internet
without my permission or forewarning.” App. 1912. Felice
3
Neither Talkington nor Felice were on the Cowpet
Board. Walters was a Board member.
7
replied that someone who needed an emotional support dog
“might go off his/her gourd without the pet at his/her side” in
a “violent reaction. We don’t even know we need
protection![] Bad Law![]” App. 1906-07. Talkington also
commented that Walters “has a pet and should be fined.”
App. 1910.
There followed a flurry of emails among the Cowpet
Board, Walters and Kromenhoek. On October 27, 2011,
Walters emailed the members of the Board that “[m]y
paperwork is on file in the office, but my medical information
is no ones [sic] business and since this board has a history of
violating confidentiality, how the hell can I trust any one of
you to keep their mouth shut. Am I going to find my
information on Lance[] [Talkington’s] blog again?”
App. 492.
On October 28, 2011, the Board president, Appellee
Max Harcourt, notified Walters and Kromenhoek by email
that they were in violation of the “no dogs” rule. Harcourt
wrote that the office manager “tells me that both you have
‘papers in the office’ regarding service dogs; however you
have not applied for an exception to the rule.” App. 495.
Harcourt gave Walters and Kromenhoek ten days to submit a
request to the Board or be fined. Harcourt copied his email to
Talkington, who posted it on his blog.
The same day, Walters emailed the Board that “I am in
possession of a service dog, and under the disabilities act set
forth in the Fair Housing Amendment . . . I qualify to keep [a]
service animal even when policy explicitly prohibits pets.
. . . If any medical information is disclosed to Anderson,
Talkington or any one [sic] else, that will be taken as
8
violation of privacy, and will be dealt with accordingly.”
App. 581.
Kromenhoek also emailed Harcourt, although the copy
of the email in the record is undated. Like Walters,
Kromenhoek wrote that she had “filed the necessary
paperwork in the office and according to the Disabilities Act
set forth in the Fair Housing Amendment . . . I qualify to keep
a service animal even when policy explicitly prohibits pets.”
App. 583. She further wrote that she trusted the office
manager with her medical information, but not the Board “as
you have proved time and again that you cannot be
trusted. . . . This is not a request for you to consider but this is
informing you that I have a service dog and I am not in any
violation.” Id. Kromenhoek wrote that she would “disclose
my history and paperwork [to Harcourt] provided you sign a
confidentiality agreement with a monetary penalty for
disclosure . . . .” App. 584. Kromenhoek avers that she
personally spoke to Harcourt and “invited him” to review her
paperwork and to sign a confidentiality agreement, which he
refused to sign. App. 110.
Significantly, the parties dispute how the Board
responded. According to Walters and Kromenhoek, Harcourt
did review their paperwork in the Cowpet office. They point
to the affidavit of the office manager, Schechter, who avers
that Harcourt “came to the office and reviewed the
documents . . . .” App. 263, 349. Schechter further avers that
Harcourt “also sent his ‘representative’ Bill Canefield,
another Board member to review the documents.” App. 263-
64, 349-50.
9
Appellees deny that the Board reviewed the paperwork
on file in the Cowpet office. They rely on the affidavit of
Board treasurer, Sharon Koehler, who avers that the Board
“neither reviewed nor discussed the content of [Walters and
Kromenhoek]’s medical verification and accommodation
request, until March 2012, when Plaintiff submitted same to
then president, Ed Wardwell.” App. 526, 612. There is no
testimony from Harcourt, who died while the case was
pending in the District Court.
The Board did not grant an accommodation to Walters
or Kromenhoek in the fall of 2011. To the contrary, at a
January 2012 Board meeting, Appellee Vincent Verdiramo
moved to impose fines on dog owners. The Board voted to
fine Walters and Kromenhoek for violating the “no dogs”
rule. The fine was fifty dollars per day. These fines were
held in abeyance, pending legal advice.4
On Talkington’s blog, Felice and Talkington continued
to denigrate dog owners at Cowpet. For example, in
November 2011, Felice wrote “If you can’t remove the guilty,
4
Shortly after Cowpet imposed fines on them,
Walters and Kromenhoek each filed a complaint with the
United States Department of Housing and Urban
Development (“HUD”). HUD subsequently reviewed the
merits of their reasonable accommodation claims against
Cowpet and dismissed them for lack of “reasonable cause.”
42 U.S.C. § 3610(g)(3). This ruling does not foreclose a
private civil action. 42 U.S.C. § 3613(a)(2); see also
Turner v. Sec’y U.S. Dep’t Hous. & Urban Dev., 449 F.3d
536, 540 (3d Cir. 2006). Talkington posted the HUD
complaints on his blog.
10
you can certainly ostracize them.” App. 1920. In December
2011, Talkington wrote a blog post naming and labeling
Walters and Kromenhoek as “known violators” and their
emotional support animals as “illegal neighborhood puppy
dogs.” App. 1924. Talkington also reported that a neighbor
heard one dog barking and added, sarcastically, that “trained
service dogs are specifically trained to not bark unless the
owner is in imminent danger. Maybe one of the pups pooped
in the owner’s unit and was warning the owner to watch out?”
App. 1924.
Talkington subsequently wrote a blog post stating that
Walters and Kromenhoek have “certified” emotional support
dogs, but that such certifications are issued without
“verify[ing] either the animal’s credentials or the purported
disability.” App. 1930. Talkington later posted that “[t]hese
r[i]diculous puppy dog diplomas from the paper mills are out
of line.” App. 1934. Talkington wrote that the “diploma
mill” would accept “stress” as “a disability that qualifies for
their certification” without any doctor confirmation. App.
1935. Felice echoed this sentiment in belligerent terms. He
wrote: “PAY a few $’s on the internet and ‘PRESTO’ a
service dog is born . . . I could ‘certify’ my ceramic toy with
THAT process.” App. 1935.
Later that winter, Talkington wrote on his blog that
Cowpet should “go on the offensive and lawyer up to pursue
an action against owners who are noncompliant with the
policy on service dogs. . . . This is the type of action where
each party will bear their own legal costs regardless of the
outcome, so each party will have to decide how badly they
want to pursue it.” App. 1938. Felice then posted a
comment, describing Walters and Kromenhoek as
11
“miscreants.” App. 1939. Felice wrote that “failure to
comply [with the no dogs rule] must lead to liens and even
foreclosure, if needed, for compliance to be effective. These
ungracious owners are totally selfish, spoiled, brats, willing to
flaunt their illegality in every one[’]s face . . . . Such gall and
nerve require full responce [sic], with ostracizing the
offenders in every manner at our disposal![] Isolate them
completely to their little ‘dog patch’ on the beach and ignore
them at every venue or occasion![]” Id. Talkington followed
up by writing that Walters and Kromenhoek are “playground
bullie[s]” attempting to “hang onto their puppies.” App.
1940. He wrote that “it is time for the association to go on
the offensive and file suit in a court of law to force the issue.
When these ladies have to start spending their own cash
. . . the rubber will meet the road on how far everyone is
willing to go on this issue.” App. 1940-41.
The ferment finally came to a close after Harcourt
completed his term as President of the Cowpet Board and was
succeeded by a new President, Ed Wardwell. In March 2012,
Walters and Kromenhoek submitted to Wardwell formal
requests for accommodation. In April 2012, the Board
granted the requests and waived the accrued fines.
Walters and Kromenhoek, nevertheless, filed these
civil rights cases under the Fair Housing Act. They raised
two federal claims: (1) that Cowpet denied their reasonable
requests for accommodation in violation of 42 U.S.C.
§ 3604(f)(3)(B) and (2) that Cowpet and three individual
Appellees (Talkington, Felice and Harcourt) interfered with
the exercise of their fair housing rights in violation of
12
42 U.S.C. § 3617. Walters and Kromenhoek also asserted
supplemental territorial law claims against all Appellees.5
Tragically, Walters committed suicide while her case
was pending in the District Court.6 Appellees moved for
summary judgment. The District Court dismissed Walters’
Fair Housing Act claims entirely due to her death. As to
Kromenhoek, the District Court denied her Fair Housing Act
claims on the merits. The District Court declined to exercise
supplemental jurisdiction over the territorial claims in both
cases because no federal claims remained. See 28 U.S.C.
§ 1367(c)(3).
Walters and Kromenhoek now appeal the District
Court’s dismissal of their claims at summary judgment. In
addition, Walters and Kromenhoek have filed motions to
substitute representatives for Appellees Felice and Harcourt,
who died while these cases were pending in the District
Court.7
5
Walters and Kromenhoek have conceded their
claims against the Board. They have also conceded
previously-raised ADA claims.
6
We granted substitution of Liana Walters Revock as
personal representative under Federal Rule of Appellate
Procedure 43(a). We refer to Walters by name for ease of
reference.
7
We refer to Felice and Harcourt by name for ease of
reference. On appeal, former counsel for Felice purports to
represent Felice and explains that he is being paid by Felice’s
insurer. Harcourt is purportedly represented by counsel for
Cowpet, Cockayne and Verdiramo. As is consistent with our
13
II
The District Court had jurisdiction pursuant to
28 U.S.C. § 1331 and 48 U.S.C. § 1612(a). We have
jurisdiction under 28 U.S.C. § 1291.
The existence and scope of our jurisdiction are
disputed issues because, some Appellees contend, Walters
and Kromenhoek filed their notices of appeal prematurely.
However, to the extent that the initial judgment Walters and
Kromenhoek appealed was non-final, it was later replaced
with revised judgments on both dockets that ended the
litigation on the merits for all parties. See Morton Int’l, Inc.
v. A.E. Staley Mfg. Co., 460 F.3d 470, 476 (3d Cir. 2006)
(explaining that a decision is “final” under § 1291 when all
claims against all parties have been resolved). Within thirty
days of the entry of the revised judgments, and at the request
of the Clerk of our Court, Walters and Kromenhoek filed
jurisdictional statements identifying these final judgments as
the decisions to be challenged on appeal.
The simplest route to finding jurisdiction and defining
its scope is thus through Smith v. Barry, 502 U.S. 244 (1992),
under which we may consider a document to be the
equivalent of a notice of appeal so long as it meets the
requirements of Federal Rule of Appellate Procedure 3(c) and
is filed within the time limits of Federal Rule of Appellate
precedent, we do not refer to counsel in the caption as
“representing” Felice or Harcourt. Giles v. Campbell, 698
F.3d 153, 158 n.3 (3d Cir. 2012) (citing Bass v. Attardi, 868
F.2d 45, 50 n.12 (3d Cir. 1989)).
14
Procedure 4(a). See id. at 248-49; In re FMC Corp.
Packaging Sys. Div., 208 F.3d 445, 451 (3d Cir. 2000)
(treating petition for mandamus that satisfied Rule 3 as notice
of appeal “provided that it was filed, as it was, within the 30-
day limit set by Fed. R. App. P. 4(a)(1)”); see also Benn v.
First Judicial Dist. of Pa., 426 F.3d 233, 237 (3d Cir. 2005)
(emphasizing liberal construction of Rule 3); Intel Corp. v.
Terabyte Int’l, Inc., 6 F.3d 614, 618 (9th Cir. 1993) (treating
opening brief as amended notice of appeal that extended
appellate jurisdiction over post-judgment attorney’s fees
order). The jurisdictional responses were both timely under
Rule 4 and appropriately fashioned under Rule 3. We thus
have jurisdiction over the appeal extending to all of the
Appellees.8
III
We exercise plenary review over the question whether
a Fair Housing Act claim survives the death of a party, as this
is an issue of law. We also exercise plenary review over a
grant of a motion for summary judgment. Goldenstein v.
Repossessors Inc., 815 F.3d 142, 146 (3d Cir. 2016). We
draw all reasonable inferences in favor of the nonmoving
party. Id. at 146. We will affirm if “there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a).
IV
8
Felice’s pending motion to dismiss the appeal is
denied.
15
The Fair Housing Act was enacted in 1968 “to
eradicate discriminatory practices within a sector of our
Nation’s economy.” Texas Dep’t of Hous. & Cmty. Affairs v.
Inclusive Communities Project, Inc., 135 S. Ct. 2507, 2521
(2015). The stated policy is “to provide, within constitutional
limitations, for fair housing throughout the United States.” 42
U.S.C. § 3601. In 1988, Congress extended the Fair Housing
Act to protect against discrimination on the basis of disability.
City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1
(1995); Fair Housing Amendments Act of 1988, Pub. L. No.
100-430, 102 Stat. 1619 (1988). This was “a clear
pronouncement of a national commitment to end the
unnecessary exclusion of persons with handicaps from the
American mainstream.” Hovsons, Inc. v. Twp. of Brick, 89
F.3d 1096, 1105 (3d Cir. 1996) (emphasis and citations
omitted). The Supreme Court has held that when construing
the Fair Housing Act, “we are to give a ‘generous
construction’ to the statute’s ‘broad and inclusive’ language.”
Lakeside Resort Enters., LP v. Bd. of Supervisors of Palmyra
Twp., 455 F.3d 154, 156 (3d Cir. 2006) (quoting Trafficante
v. Metro. Life Ins. Co., 409 U.S. 205, 209 (1972)).
These cases require us to address an issue of first
impression—whether claims under the Fair Housing Act
survive the death of a party.9 The Fair Housing Act is silent
as to survival. In the face of this interstice, the District Court
9
The issue of survival was paramount in Walters’
case and formed the basis for the District Court’s ruling
against her. However, we address the survival issue with
respect to Walters and Kromenhoek, as both cases involve the
deceased Appellees, Felice and Harcourt.
16
answered the survival question by applying a limited gap-
filler statute, 42 U.S.C. § 1988(a), which in turn led the
District Court to apply territorial law. The District Court
applied a Virgin Islands statute, V.I. Code Ann. tit. 5, § 77,
under which it held that Walters’ Fair Housing Act claims did
not survive her death.10
We disagree with the District Court’s decision to apply
Section 1988(a) and, in turn, territorial law. For the reasons
below, we conclude that Section 1988(a) does not apply to the
issue of whether a Fair Housing Act claim survives the death
of a party. Rather, we apply a uniform rule of federal
common law. We will reverse the judgment of the District
Court dismissing Walters’ case due to her death.
A
Section 1988(a) of Title 42 provides:
The jurisdiction in civil and criminal matters
conferred on the district courts by the
provisions of titles 13, 24, and 70 of the Revised
Statutes for the protection of all persons in the
United States in their civil rights, and for their
vindication, shall be exercised and enforced in
conformity with the laws of the United States,
10
V.I. Code Ann. tit. 5, § 77 states, in relevant part:
“A thing in action arising out of a wrong which results in
physical injury to the person or out of a statute imposing
liability for such injury shall not abate by reason of the death
of the wrongdoer or any other person liable for damages for
such injury, nor by reason of the death of the person injured
or of any other person who owns any such thing in action.”
17
so far as such laws are suitable to carry the
same into effect; but in all cases where they are
not adapted to the object, or are deficient in the
provisions necessary to furnish suitable
remedies and punish offenses against law, the
common law, as modified and changed by the
constitution and statutes of the State wherein
the court having jurisdiction of such civil or
criminal cause is held, so far as the same is not
inconsistent with the Constitution and laws of
the United States, shall be extended to and
govern the said courts in the trial and
disposition of the cause, and, if it is of a
criminal nature, in the infliction of punishment
on the party found guilty.
42 U.S.C. § 1988(a) (2016) (emphasis added).11
11
Section 1988(a) is published at 42 U.S.C. § 1988(a),
which is only “prima facie” evidence of the law, as Title 42
has not been enacted into positive law. 1 U.S.C. § 204(a).
The authoritative text is Section 722 of the Revised Statutes
of 1874, which is positive law. U.S. Nat’l Bank of Or. v.
Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 449, 449 n.4
(1993). The texts are substantively the same, and so is our
analysis.
The slight difference between the two texts consists of
how they refer to three Titles of the Revised Statutes. Section
1988(a) refers to them by number and Section 722 of the
Revised Statutes, by name. Compare 42 U.S.C. § 1988(a)
(2016) (“titles 13, 24, and 70 of the Revised Statutes . . . .”),
with R.S. § 722 (“this Title [The Judiciary], and of Title
18
Section 1988(a) provides that where certain federal
laws “are deficient” the federal courts may apply “common
law, as modified and changed by the constitutions and
statutes of the State,” provided that the state law is “not
inconsistent with the Constitution and laws of the United
States.” 42 U.S.C. § 1988(a). For the reasons below, Section
1988(a) does not apply to the Fair Housing Act.
1
Our holding is based on the text of Section 1988(a).
On its face, the statute applies to certain statutes—those
found within three Titles of the Revised Statutes, “titles 13,
24, and 70.” 42 U.S.C. § 1988(a). If the Fair Housing Act
had been contained within one of these three Titles, it would
fall within Section 1988(a). Of course, the Fair Housing Act
was enacted almost a century after the Revised Statutes. It
was never codified in its Titles 13, 24 or 70. Trafficante, 409
U.S. at 365 (citing Civil Rights Act of 1968, Pub. L. No. 90-
284, 82 Stat. 73 (1968)). Therefore, Section 1988(a) by its
plain meaning does not apply to the Fair Housing Act. Cf.
Carlson v. Green, 446 U.S. 14, 24 n.11 (1980) (observing that
“Section 1988 does not in terms apply to Bivens [v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971)] actions . . . .”).
‘Civil Rights,’ and of Title ‘Crimes’”). The alteration is an
editorial decision by the publishers of the United States Code,
as we explain in more detail below.
19
Cowpet concedes this point, but urges us to ignore the
plain text of the statute. For the reasons below, we will not
do so.
2
Our text-based conclusion that Section 1988(a) does
not apply to the Fair Housing Act is consistent with the
legislative history, which shows that Section 1988(a) has
always applied to designated statutes only. Section 1988(a)
has never applied globally to any statute that could be
labelled a “civil rights” law.
Section 1988(a) was enacted as Section 3 of the Civil
Rights Act of April 9, 1866. Moor v. Cty. of Alameda, 411
U.S. 693, 704 (1973) (citing Civil Rights Act of April 9,
1866, ch. 31, § 3, 14 Stat. 27 (1866) (current version at 42
U.S.C. § 1988(a))). It was “intended to do nothing more than
to explain the source of law to be applied in actions brought
to enforce the substantive provisions of the [same] Act,
including [Section] 1.” Moor, 411 U.S. at 705. Those
substantive provisions later became 42 U.S.C. §§ 1981
and 1982. CBOCS West, Inc. v. Humphries, 553 U.S. 442,
448 (2008) (citation omitted).
In 1870 and 1871, Congress “directed . . . that § 1988
would guide courts in the enforcement of” particular statutes,
which later became 42 U.S.C. §§ 1981 and 1983. Moor, 411
U.S. at 705 n.19 (citing Act of May 31, 1870, ch. 114, § 16,
16 Stat. 140, 144 (1870) (current version at 42 U.S.C. § 1981)
and Act of April 20, 1871, ch. 22, § 1, 17 Stat. 13, 13 (1871)
(current version at 42 U.S.C. § 1983)).
20
Finally, in the Revised Statutes of 1874, Congress
made Section 1988 more “generally applicable” to three
specified Titles of the Revised Statutes. Moor, 411 U.S. at
705 n.19. Those three Titles are “this Title [The Judiciary],
and of Title ‘Civil Rights,’ and of Title ‘Crimes.’” R.S.
§ 722. Of these three, Title “Civil Rights” contains the
Reconstruction-era civil rights statutes, including what are
now 42 U.S.C. §§ 1981, 1982 and 1983. 42 U.S.C. § 1981
(original version at R.S. § 1977); 42 U.S.C. § 1982 (original
version at R.S. § 1978); 42 U.S.C. § 1983 (original version at
R.S. § 1979).
Here the amendments end. Congress has never again
amended the phrase “this Title [The Judiciary], and of Title
‘Civil Rights,’ and of Title ‘Crimes.’” R.S. § 722. As a
result, Section 1988(a) continues to apply only those laws
codified within these three Titles, Titles 13, 24 and 70, of the
Revised Statutes of 1874.12
12
The text of the United States Code, 42 U.S.C.
§ 1988(a), has changed. The editors of the United States
Code have used different phrases, always to refer to the same
three Titles of the Revised Statutes. The current phrase, “the
provisions of titles 13, 24, and 70 of the Revised Statutes,”
first appeared in 1988. 42 U.S.C. § 1988 (1988). Prior to
that, the editors used these three phrases: (i) “of this Title, and
of Title ‘CIVIL RIGHTS,’ and of Title ‘CRIMES,” 42 U.S.C.
§ 1988 (1982) and (1976); (ii) “this chapter and Title 18,”
42 U.S.C. § 1988 (1970), (1964), (1958) and 8 U.S.C. § 49a
(Supp. II 1948); and (iii) “chapter 3 of Title 8, and Title 18,”
28 U.S.C. § 729 (1940), (1934) and (1926).
21
We conclude that these are editorial changes for two
reasons. First, the changes were not made by congressional
amendment. Cf. Religious Land Use and Institutionalized
Persons Act of 2000, Pub. L. No. 106-274, § 4(d), 114 Stat.
804 (2000); Federal Courts Improvement Act of 1996, Pub.
L. No. 104-317, Title III, § 309(b), 110 Stat. 3847 (1996);
Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, Title IV, § 40303, 108 Stat. 1796
(1994); Religious Freedom Restoration Act of 1993, Pub. L.
No. 103-141, § 4(a), 107 Stat. 1488 (1993); Civil Rights Act
of 1991, Pub. L. No. 102-166, Title I, §§ 103, 113(a), 105
Stat. 1071 (1991); Act of Oct. 21, 1980, Pub. L. No. 96-481,
Title II, § 205(c), 94 Stat. 2321 (1980); Civil Rights
Attorney’s Fees Awards Act of 1976, Pub. L. No. 94-559,
§ 2, 90 Stat. 2641 (1976). Second, the editorial notes, which
accompany each version of the statute since 1940,
consistently refer back to the Revised Statutes.
Changes “made by a codifier without the approval of
Congress” are “given no weight.” United States v. Welden,
377 U.S. 95, 98 n.4 (1964). However, the changes do shed
light on a prior decision of this Court. In Miller v.
Apartments & Homes of New Jersey, Inc., we applied Section
1988, as the editors published it in 1970. 646 F.2d 101, 105
(3d Cir. 1981). At that time, the published version of Section
1988 purported to apply to claims under “this chapter.” Id. at
105 (quoting 42 U.S.C. § 1988); see also 42 U.S.C. § 1988
(1970). This Court applied Section 1988(a) to housing
discrimination claims, but without considering the textual
issue addressed here—that the Fair Housing Act does not fall
within the Revised Statutes, Titles 13, 24 and 70. We give
22
Congress’ inaction with regard to Section 1988(a)
stands in contrast to its frequent amendment of Section
1988(b), which relates to attorney’s fees. Congress enacted
Section 1988(b) in 1976 and then amended it repeatedly to
provide for attorney’s fees in cases under “sections 1981,
1981a, 1982, 1983, 1985, and 1986 of this title, title IX . . .,
the Religious Freedom Restoration Act of 1993 . . . , the
Religious Land Use and Institutionalized Persons Act of 2000
. . . , title VI of the Civil Rights Act of 1964 . . . , or section
13981 of this title . . . .” 42 U.S.C. § 1988(b) (2016). See,
e.g., Religious Land Use and Institutionalized Persons Act of
2000, Pub. L. No. 106-274, § 4(d), 114 Stat. 803 (2000);
Violent Crime Control and Law Enforcement Act of 1994,
Pub. L. No. 103-322, Title IV, § 40303, 108 Stat. 1796
(1994); Religious Freedom Restoration Act of 1993, Pub. L.
No. 103-141, § 4(a), 107 Stat. 1488 (1993); Civil Rights
Attorneys Fees Awards Act of 1976, Pub. L. No. 94-559, § 2,
90 Stat. 2641 (1976). In short, Congress has repeatedly
amended Section 1988(b), but not Section 1988(a). This
supports our holding that Congress intentionally applied
Section 1988(a) only to Titles 13, 24 and 70 of the Revised
Statutes. Cf. Lewis v. United States, 523 U.S. 155, 169-70
(1988) (considering repeated amendments as evidence of
Congressional intent).
3
Our decision is consistent with prior decisions
interpreting Section 1988(a). The Supreme Court has applied
Section 1988 to determine survival of a claim under Section
Miller little weight as to the applicability of Section 1988(a)
to the Fair Housing Act.
23
1983, a Reconstruction-era law. Robertson v. Wegman,
436 U.S. 584, 589 (1979) (citing Moor, 411 U.S. at 702 n.14).
It does not follow that Section 1988 also applies to the Fair
Housing Act. The Supreme Court has, in general, “rejected
linkage” between the Reconstruction-era Civil Rights Acts,
e.g. 42 U.S.C. §§ 1981, 1983, 1985 and 1986, and “other
federal statutes, emphasizing the independence of the
remedial scheme established by the Reconstruction-Era
Acts.” Burnett v. Grattan, 468 U.S. 42, 49 (1984) (citations
omitted). For example, there are “vast differences” between
Section 1982 and the Fair Housing Act. Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 416-17 (1968). See also Fleming v.
U.S. Postal Serv., 27 F.3d 259, 262 (7th Cir. 1994) (holding
Section 1988 inapplicable to claims under Title VII of the
Civil Rights Act of 1964 or the Rehabilitation Act of 1973);
Smith v. No. 2 Galesburg Crown Fin. Corp., 615 F.2d 407,
414 (7th Cir. 1980) (holding Section 1988 inapplicable to a
claim under the Truth in Lending Act), overruled on other
grounds by Pridegon v. Gates Credit Union, 638 F.2d 182,
194 (7th Cir. 1982); but see Slade v. U.S. Postal Serv.,
952 F.2d 357, 360 (10th Cir. 1991) (holding in a cursory
decision that Section 1988 applies to Title VII claim).
For all of these reasons, we will follow the plain text
of Section 1988(a), under which Section 1988(a) does not
apply to the Fair Housing Act. We must turn elsewhere to
determine whether a Fair Housing Act claim survives the
death of a party.
B
A Fair Housing Act claim is a federal statute, and
therefore whether a claim survives the death of a party “is a
24
question of federal law.” Carlson, 446 U.S. at 23; see also
United States v. Kimbell Foods, Inc., 440 U.S. 715, 726
(1979). As Congress has not provided statutory guidance, we
resolve the survival issue according to federal common law.
7C Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1954 (3d ed. 2016); 6-25 Jerry E. Smith,
Moore’s Federal Practice § 25.11 (2016). However, this
does not resolve the matter. The “more difficult” question is
not whether federal common law applies, but what its
“content” should be. Kimbell Foods, 440 U.S. at 727.
Specifically, we must determine whether to apply a uniform
rule of federal common law or adopt state law. Id. at 728.
“Developing a federal common law rule is the
exception rather than the rule.” In re Columbia Gas Sys. Inc.,
997 F.2d 1039, 1055 (3d Cir. 1993). In general, “[a]bsent a
demonstrated need for a federal rule of decision, the Court
has taken ‘the prudent course’ of ‘adopt[ing] the readymade
body of state law as the federal rule of decision until
Congress strikes a different accommodation.’” Am. Elec.
Power Co., Inc. v. Connecticut, 564 U.S. 410, 422 (2011)
(quoting Kimbell Foods, 440 U.S. at 740).
But while “the term and concept of ‘federal common
law’ may strike some as anathema to federal court
jurisprudence in the wake of Erie Railroad Co. v. Tompkins,
304 U.S. 64 [] (1938), . . . in some areas of the law . . . so-
called ‘federal common law’ still exists to provide direction.”
Wallach v. Eaton Corp., 837 F.3d 356, 365 n.11 (3d Cir.
2016) (citations omitted). One area where courts consistently
apply a uniform rule of federal common law is survival of a
federal claim. See 7C Federal Practice and Procedure, supra
§ 1954; 19 Federal Practice and Procedure, supra § 4516;
25
Moore’s Federal Practice, supra § 25.11. Indeed, numerous
cases have applied a uniform federal rule to the issue of
survival. See Figueroa v. Sec’y of Health & Human Servs.,
715 F.3d 1314, 1318 (Fed. Cir. 2013) (survival of claim under
the Vaccine Act); Harrow v. Prudential Ins. Co. of Am., 279
F.3d 244, 248 (3d Cir. 2002) (survival of an ERISA claim);
United States v. Land, Winston Cty., 221 F.3d 1194, 1197
(11th Cir. 2000) (survival of forfeiture claim under 18 U.S.C.
§ 1955); Sinito v. U.S. Dep’t of Justice, 176 F.3d 512, 513
(D.C. Cir. 1999) (survival of claim under the Freedom of
Information Act); United States v. NEC Corp., 11 F.3d 136,
137 (11th Cir. 1993), as amended, 11 F.3d 136 (1994)
(survival of qui tam action under the False Claims Act); Smith
v. Dep’t of Human Servs., 876 F.2d 832, 834 (10th Cir. 1989)
(survival of claim under the Age Discrimination in
Employment Act); Mallick v. Int’l Bhd. of Elec. Workers, 814
F.2d 674, 677 (D.C. Cir. 1987) (survival of a claim under the
Labor-Management Reporting and Disclosure Act of 1959);
James v. Home Constr. Co. of Mobile, Inc., 621 F.2d 727, 729
(5th Cir. 1980) (survival of claim under Truth in Lending
Act).
We find these decisions persuasive. Whether a Fair
Housing Act claim survives the death of a party is an issue
where a uniform federal common law rule is appropriate to
fulfill the “overall purposes” of the statute. Wallach, 837
F.3d at 366 (quoting Gulfstream III Assocs., Inc. v.
Gulfstream Aerospace Corp., 995 F.2d 425, 438 (3d Cir.
1993) (Greenberg, J., concurring and speaking for the
majority)). The federal interest at stake in the Fair Housing
Act, “to provide . . . for fair housing throughout the United
States,” 42 U.S.C. § 3601, “warrants displacement of state
law” on the “confined” issue of survival. Empire
26
Healthchoice Assurance, Inc. v. McVeigh, 547 U.S. 677, 692
(2006). Thus, we will apply a uniform rule.
As to the content of a uniform federal rule, we are
cognizant that we lack the “creative power akin to that vested
in Congress.” Am. Elec. Power Co., 564 U.S. at 422; see also
Wallach, 837 F.3d at 369 (adopting as uniform common law
rule set forth in the Restatement of Contracts). For this
reason, we will follow the weight of authority, which applies
the pre-Erie Railroad Co. v. Tompkins common law rule of
survival, under which remedial claims survive, but penal
claims do not. See Moore’s Federal Practice, supra § 25.11;
Ex parte Schreiber, 110 U.S. 76, 80 (1884) (penal claims do
not survive). We are persuaded by the numerous cases that
have applied this rule. See, e.g., Harrow, 279 F.3d at 248
(ERISA claim remedial); Land, Winston Cty., 221 F.3d at
1198 (forfeiture claim under 18 U.S.C. § 1955 remedial);
NEC Corp., 11 F.3d at 137 (qui tam action under the False
Claims Act remedial); Kilgo v. Bowman Transp., Inc., 789
F.2d 859, 876 (11th Cir. 1986) (holding that if federal law
applies, Title VII is remedial, but declining to decide whether
federal law applies); James, 621 F.2d at 730 (Truth in
Lending Act remedial).13
A Fair Housing Act claim is remedial. As we have
stated, “[t]he Fair Housing Act was intended by Congress to
have ‘broad remedial intent.’” Alexander v. Riga, 208 F.3d
419, 425 (3d Cir. 2000) (quoting Havens Realty v. Coleman,
455 U.S. 363, 380 (1982)); see also Mt. Holly Gardens
13
Our decision today applies only to survival under
the Fair Housing Act. We do not consider whether a pre-Erie
rule of survival would be appropriate as to any other statute.
27
Citizens in Action, Inc. v. Twp. of Mount Holly, 658 F.3d 375,
385 (3d Cir. 2011) (“The FHA is a broadly remedial
statute . . . .”), cert. dismissed, 134 S. Ct. 636 (2013). Thus,
under the common law rule, Fair Housing Act claims survive
the death of a party.
V
We now reach the merits of the first of two Fair
Housing Act claims—whether Cowpet refused to provide a
reasonable accommodation for Walters and Kromenhoek’s
disabilities, in violation of the Fair Housing Act, 42 U.S.C.
§ 3604(f)(3)(B). We find that there are genuine issues of
material fact. Therefore, we will reverse the grant of
summary judgment for Cowpet.
A
The Fair Housing Act makes it unlawful “[t]o
discriminate against any person in the terms, conditions, or
privileges of sale or rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling,
because of a handicap.” 42 U.S.C. § 3604(f)(2).
“[D]iscrimination includes . . . a refusal to make reasonable
accommodations in rules, policies, practices, or services,
when such accommodations may be necessary to afford such
person equal opportunity to use and enjoy a dwelling.” 42
U.S.C. § 3604(f)(3)(B). To determine whether an
accommodation is “reasonable,” we consider “whether the
requested accommodation is ‘(1) reasonable and (2) necessary
to (3) afford handicapped persons an equal opportunity to use
and enjoy housing.’” Lapid-Laurel, L.L.C. v. Zoning Bd. of
28
Adjustment of the Twp. of Scotch Plains, 284 F.3d 442, 457
(3d Cir. 2002) (citation omitted).
A reasonable accommodation under the Fair Housing
Act may include the use of an emotional support animal in
one’s own home, despite the existence of a rule, policy or law
prohibiting such an animal. See, e.g., Castillo Condo. Ass’n
v. U.S. Dep’t of Hous. & Urban Dev., 821 F.3d 92, 100 (1st
Cir. 2016); Anderson v. City of Blue Ash, 798 F.3d 338, 363
(6th Cir. 2015); Bhogaita v. Altamonte Heights Condo. Ass’n,
Inc., 765 F.3d 1277, 1289 (11th Cir. 2014). In emotional
support animal cases, a housing provider may contest whether
the accommodation is reasonable. Cowpet does not. There is
no dispute that Walters and Kromenhoek are disabled and that
the use of an emotional support animal was reasonable and
necessary for their enjoyment of their homes.
Rather, what Cowpet does dispute is the additional
statutory requirement that there be a “refusal” to provide the
reasonable accommodation. 42 U.S.C. § 3604(f)(3)(B). To
this requirement, we now turn.
Whether there has been a “refusal” to provide a
reasonable accommodation under the Fair Housing Act
depends on the circumstances. As several of our sister
Circuits have held, a refusal may be “actual or constructive.”
Groome Res. Ltd. v. Par. of Jefferson, 234 F.3d 192, 199 (5th
Cir. 2000); accord Austin v. Town of Farmington, 826 F.3d
622, 629 (2d Cir. 2016); Bhogaita, 765 F.3d at 1286. An
undue delay in granting a reasonable accommodation may
amount to a refusal. Bhogaita, 765 F.3d at 1286; Astralis
Condo. Ass’n v. Sec’y, U.S. Dep’t Hous. & Urban Dev., 620
F.3d 62, 69 (1st Cir. 2010); Groome Res. Ltd., 234 F.3d at
199. Moreover, a refusal “occurs when the disabled resident
29
is first denied a reasonable accommodation, irrespective of
the remedies granted in subsequent proceedings.” Groome
Res. Ltd., 234 F.3d at 199 (quoting Bryant Woods Inn, Inc. v.
Howard Cty., 124 F.3d 597, 602 (4th Cir. 1997)).
However, we note that the same action, e.g. a denial,
may sometimes amount to a “refusal” and, at other times,
mere enforcement of a housing rule. For a housing provider’s
action to be considered a “refusal” under the Fair Housing
Act, the provider must have had a prior “opportunity to
accommodate.” Taylor v. Harbour Pointe Homeowners
Ass’n, 690 F.3d 44, 49 (2d Cir. 2012) (citing Tsombanidis v.
W. Haven Fire Dep’t, 352 F.3d 565, 578 (2d Cir. 2003),
superseded by regulation on other grounds, 24 C.F.R.
§ 100.500(c) (2016), as recognized in Mhany Mgmt., Inc. v.
Cty. of Nassau, 819 F.3d 581, 617 (2d Cir. 2016)). “The
defendants must have had an idea of what accommodation
[the plaintiff] sought prior to their incurring liability for”
refusing it. Id. (citing Tsombanidis, 352 F.3d at 579). For
example, a housing provider may have an opportunity to
accommodate because a plaintiff petitions for an
accommodation or declares that she is entitled to it. See, e.g.,
Castillo, 821 F.3d at 95, 98 (resident requested an
accommodation by providing a doctor’s note and advising
housing provider “that he planned to keep his emotional
support dog in his condominium unit and that he was entitled
to do so under federal law”). In other circumstances, the
disability and need for accommodation may be known or
obvious to the provider. Cf. Brady v. Wal-Mart Stores, Inc.,
531 F.3d 127, 135 (2d Cir. 2008) (considering such a
30
situation in the context of the ADA). These examples are
non-exhaustive.14
B
Cowpet contends that it did not “refuse” a reasonable
accommodation because Walters and Kromenhoek were
never deprived of their emotional support animals. This
argument fails. Cowpet did not have to deny Walters and
Kromenhoek their emotional support animals in order to
“refuse” a reasonable accommodation. As a matter of law,
Cowpet may have refused a reasonable accommodation by
declaring Walters and Kromenhoek in violation of the “no
dogs” rule, by fining them fifty dollars a day or through
14
Herein, we describe the “refusal” element of a Fair
Housing Act claim under 42 U.S.C. § 3604(f)(3)(B). We do
not adopt the position of the Eleventh Circuit, which
recognizes a freestanding “request” element. See Hunt v.
Aimco Props., L.P., 814 F.3d 1213, 1225 (11th Cir. 2016);
Bhogaita, 765 F.3d at 1285; but see Schwarz v. City of
Treasure Island, 544 F.3d 1201, 1218 (11th Cir. 2008)
(failing to list “request” as an element). We decline to follow
the Eleventh Circuit’s approach because it is a “refusal,” not a
“request” that is required by the text of Section 3604(f)(3)(B).
Even so, the substantive result may be the same. This
is because the Eleventh Circuit has defined “request” to
include any circumstances “sufficient to cause a reasonable
[housing provider] to make appropriate inquiries about the
possible need for an accommodation.” Hunt, 814 F.3d at
1226 (alteration in original) (citation omitted). We agree with
this broad interpretation, but do not take the same route to get
there.
31
undue delay. Cf. Astralis, 620 F.3d at 69 (refusal occurred
where condominium association cited residents for parking
infractions).
Whether Cowpet’s actions constituted a “refusal,”
however, depends upon whether Cowpet was given an
opportunity to accommodate. On this issue, the parties
dispute material issues of fact. There are two disputes of fact
that preclude summary judgment.
First, the parties dispute whether Walters and
Kromenhoek barred Cowpet from reviewing their paperwork.
The basis for the dispute is a series of emails sent by Walters
and Kromenhoek. Although the content of the emails is
undisputed, “there is a disagreement over the inferences that
can be reasonably drawn from the facts . . . .” Windsor Sec.,
Inc. v. Hartford Life Ins. Co., 986 F.2d 655, 659 (3d Cir.
1993). Viewing the emails in the light most favorable to
Walters and Kromenhoek, they are susceptible to two
inferences. On one hand, Walters and/or Kromenhoek may
have barred Cowpet from reviewing their paperwork. On the
other hand, Walters and/or Kromenhoek may have only asked
Cowpet to respect the privacy of their medical information. If
the factfinder concludes that the latter inference prevails—
that Cowpet was not barred from reviewing the paperwork—
then Cowpet had an opportunity to accommodate, which it
“refused.”
Second, the parties dispute whether the Cowpet Board
president, Harcourt, actually reviewed their paperwork on file
in the Cowpet office. The office manager, Schechter, avers
that Harcourt did so; the Board treasurer, Koehler, avers that
he did not. If Harcourt reviewed the paperwork, then Cowpet
32
had an opportunity to accommodate, which it refused. For
both of these reasons, we will reverse the grant of summary
judgment for Cowpet on Walters and Kromenhoek’s Fair
Housing Act reasonable accommodation claims.
VI
Walters and Kromenhoek also allege interference with
the exercise of their fair housing rights, in violation of
42 U.S.C. § 3617. The District Court granted summary
judgment for Appellees. We will reverse in part and vacate in
part.
A
Under the Fair Housing Act, “[i]t shall be 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
section 3603, 3604, 3605, or 3606 of this title.” 42 U.S.C.
§ 3617.
A Section 3617 claim does not require a substantive
violation of Sections 3603-3606. Hidden Village, LLC v. City
of Lakewood, 734 F.3d 519, 528 (6th Cir. 2013); Bloch v.
Fritschholz, 587 F.3d 771, 782 (7th Cir. 2009) (en banc);
United States v. City of Hayward, 36 F.3d 832, 836 (9th Cir.
1994). A claim may arise before or, as here, after a plaintiff
acquires housing. Bloch, 587 F.3d at 782; see also Hidden
Village, 734 F.3d at 529 (permitting post-acquisition Section
3617 claim to proceed to trial).
33
Walters and Kromenhoek’s cases involve one type of
Section 3617 claim—alleged “interfere[nce]” with fair
housing rights. 42 U.S.C. § 3617; see also 24 C.F.R.
§ 100.400(c)(2) (2016) (setting forth examples of unlawful
conduct, including interference with “enjoyment of a
dwelling”). A Section 3617 interference claim requires proof
of three elements: (1) that the plaintiff exercised or enjoyed15
“any right granted or protected by” Sections 3603-3606;
(2) that the defendant’s conduct constituted interference; and
(3) a causal connection existed between the exercise or
enjoyment of the right and the defendant’s conduct.
42 U.S.C. § 3617; see also Quid Pro Quo and Hostile
Environment Harassment and Liability for Discriminatory
Housing Practices Under the Fair Housing Act, 81 Fed. Reg.
63054, 63059 (Sept. 14, 2016).
The term “interference” is not defined by the Fair
Housing Act or the implementing regulation, 24 C.F.R.
§ 100.400 (2016). Therefore, the word must be “understood
by its ordinary meaning.” United States v. Piekarsky, 687
F.3d 134, 145 (3d Cir. 2012). The Ninth Circuit has
construed “interference” for the purposes of Section 3617
according to a dictionary definition as, “the act of meddling in
or hampering an activity or process.” Walker v. City of
Lakewood, 272 F.3d 1114, 1129 (9th Cir. 2001) (quoting
Webster’s Third New Int’l Dict. 1178 (14th ed. 1961)); see
also Brown v. City of Tucson, 336 F.3d 1181, 1192 (9th Cir.
2003) (observing that Walker involved alleged retaliation).
15
In the alternative, Section 3617 prohibits
discrimination on account of one “having aided or
encouraged any other person in the exercise or enjoyment of”
fair housing rights. 42 U.S.C. § 3617.
34
Interference is “broadly applied to reach all practices which
have the effect of interfering with the exercise of rights under
the federal fair housing laws.” Walker, 272 F.3d at 1129
(citation omitted). Interference does not require force or
threat of force. Id. at 1128 (citing 42 U.S.C. § 3631). Yet the
prohibition on interference “cannot be so broad as to prohibit
‘any action whatsoever tha[t] in any way hinders a member of
a protected class.’” Brown, 336 F.3d at 1192 (quoting
Michigan Prot. & Advocacy Serv., Inc. v. Babin, 18 F.3d 337,
347 (6th Cir. 1994)).
Interference under Section 3617 may consist of
harassment, provided that it is “sufficiently severe or
pervasive” as to create a hostile environment. Quigley v.
Winter, 598 F.3d 938, 947 (8th Cir. 2010); see also Honce v.
Vigil, 1 F.3d 1085, 1090 (10th Cir. 1993) (same). Numerous
decisions of our sister Circuits have recognized such a cause
of action in the housing context. See Neudecker v. Boisclair
Corp., 351 F.3d 361, 364 (8th Cir. 2003); Bloch, 587 F.3d at
783; Quigley, 598 F.3d at 946; Krueger v. Cuomo, 115 F.3d
487, 491 (7th Cir. 1997); DiCenso v. Cisneros, 96 F.3d 1004,
1008 (7th Cir. 1996); Honce, 1 F.3d at 1090. Harassment that
intrudes upon the “well-being, tranquility, and privacy of the
home” is considered particularly invasive. Frisby v. Schultz,
487 U.S. 474, 485 (1988) (citation omitted).16
16
Our interpretation is based upon the text of Section
3617 and the decisions of our sister Circuits. After we heard
oral argument, the Department of Housing and Urban
Development issued a regulation, providing that Section 3617
(Section 818 of the Fair Housing Act) may be violated by
“hostile environmental harassment because of . . . handicap.”
24 C.F.R. § 100.600(a) (2016). No party brought this
35
regulation to our attention or asked this Court to rely upon it.
Although this regulation is not necessary to our holding, it is
fully consistent with our interpretation of Section 3617. The
regulation provides, in relevant part, as follows:
Hostile environment harassment refers to
unwelcome conduct that is sufficiently severe or
pervasive as to interfere with: The availability,
sale, rental, or use or enjoyment of a dwelling;
the terms, conditions, or privileges of the sale or
rental, or the provision or enjoyment of services
or facilities in connection therewith; or the
availability, terms, or conditions of a residential
real estate-related transaction. Hostile
environment harassment does not require a
change in the economic benefits, terms, or
conditions of the dwelling or housing-related
services or facilities, or of the residential real-
estate transaction.
(i) Totality of the circumstances. Whether
hostile environment harassment exists depends
upon the totality of the circumstances.
(A) Factors to be considered to
determine whether hostile
environment harassment exists
include, but are not limited to, the
nature of the conduct, the context
in which the incident(s) occurred,
the severity, scope, frequency,
duration, and location of the
36
B
conduct, and the relationships of
the persons involved.
(B) Neither psychological nor
physical harm must be
demonstrated to prove that a
hostile environment exists.
Evidence of psychological or
physical harm may, however, be
relevant in determining whether a
hostile environment existed and,
if so, the amount of damages to
which an aggrieved person may
be entitled.
(C) Whether unwelcome conduct
is sufficiently severe or pervasive
as to create a hostile environment
is evaluated from the perspective
of a reasonable person in the
aggrieved person’s position. . . .
24 C.F.R. § 100.600(a)(2) (2016). The regulation further
provides that “[h]arassment can be written, verbal, or other
conduct, and does not require physical contact.” 24 C.F.R.
§ 100.600(b) (2016). In addition, “[a] single incident of
harassment because of race, color, religion, sex, familial
status, national origin, or handicap may constitute a
discriminatory housing practice, where the incident is
sufficiently severe to create a hostile environment, or
evidences a quid pro quo.” 24 C.F.R. § 100.600(c) (2016).
37
Walters and Kromenhoek raised Section 3617 claims
against four Appellees: Cowpet, Felice, Talkington and
Harcourt. We address each Appellee in turn.
1
As to Cowpet, we previously explained that there is a
material dispute as to whether Walters and Kromenhoek
barred it from reviewing their accommodation requests. We
addressed this factual dispute in the context of Section
3604(f)(3)(B). We now address the same facts under an
entirely different legal standard. We conclude that the factual
dispute is material to the Section 3617 interference claim. If
Walters and Kromenhoek barred Cowpet from reviewing
their accommodation requests, then Cowpet did not
“interfere” with their rights. But if there was not such a ban,
then Cowpet did “interfere” with their rights by failing to
review their requests for a reasonable accommodation of their
disabilities. Thus, we will reverse the District Court’s grant
of summary judgment in favor of Cowpet on the Section 3617
claim.
2
Walters and Kromenhoek allege that Felice, their
neighbor, violated Section 3617 by posting derogatory,
harassing and, at times, threatening comments on
Talkington’s blog. Felice wrote that dog owners might be
“happier in another community rather than ostracized at
[Cowpet], which would be another fine recourse, besides a
significant $$ fine, with progressive amounts.” App. 1905.
He wrote that someone who needed an emotional support
38
animal “might go off his/her gourd” in a “violent reaction.
We don’t even know we need protection![] Bad Law![]”
App. 1906-07. He wrote “[i]f you can’t remove the guilty,
you can certainly ostracize them.” App. 1920. He called dog
owners “miscreants” and “totally selfish, spoiled, brats,
willing to flaunt their illegality in every one[’]s face.” App.
1939. He wrote that dog owners’ “gall and nerve require full
responce [sic], with ostracizing the offenders in every manner
at our disposal,” including “[i]solat[ing] them completely to
their little ‘dog patch’ on the beach and ignor[ing] them at
every venue or occasion![]” Id. He wrote that “failure to
comply [with the no dogs rule] must lead to liens and even
foreclosure, if needed, for compliance to be effective.” Id.
Felice posted at least nine harassing messages, over a
period of more than five months, from October 2011 through
March 2012.17 All of these writings were made public on the
Internet. Felice continued his postings even after Walters
responded, on the blog, that she was “mortified, that my
personal business has been laid out over the internet without
my permission or forewarning.” App. 1912.
We conclude that there are genuine disputes of
material fact “over the inferences that can be reasonably
drawn from” Felice’s blog posts. Windsor, 986 F.2d at 659.
17
Although Felice engaged in multiple instances of
harassment, this is not necessary to a hostile environmental
harassment claim under Section 3617. A single act may be
sufficient, provided that the conduct is “sufficiently severe or
pervasive.” Quigley, 598 F.3d at 946; see also Honce, 1 F.3d
at 1090 (same).
39
A reasonable jury could find that Felice’s harassment was
sufficiently severe or pervasive as to “interfere” with Walters
and Kromenhoek’s fair housing rights under 42 U.S.C.
§ 3617. A reasonable jury could also infer that there was a
causal connection—that Felice engaged in harassing conduct
“on account of” Walters and Kromenhoek’s exercise of their
fair housing rights. Id. Accordingly, we will reverse the
grant of summary judgment for Felice.
3
Walters and Kromenhoek allege that Talkington, their
neighbor, interfered with their fair housing rights by writing
on his blog.18 Talkington named Walters and Kromenhoek
and made public and derided their requests for
accommodation of their disabilities. He posted that
“Barbara[] [Walters] has a dog and claims to have ‘papers’
that allow her to have it.” App. 1904. He wrote that Walters
“has a pet and should be fined.” App. 1910. Talkington
posted an email from Harcourt to both Walters and
Kromenhoek stating that they were in violation of the “no
dogs” rule. Talkington wrote that Walters and Kromenhoek
were “known violators” and that their emotional support
animals were “illegal neighborhood puppy dogs.” App. 1924.
He wrote that Walters and Kromenhoek’s certifications for
their emotional support animals were issued by disreputable
websites without “verify[ing] either the animal’s credentials
or the purported disability.” App. 1930. He suggested that
Walters and Kromenhoek obtained their emotional support
18
Walters and Kromenhoek do not seek to hold
Talkington liable for the posts of others, as they conceded in
the District Court.
40
animal certifications from “diploma mill[s]” that would
accept “stress” as a disability. App. 1935. Talkington wrote
that Cowpet should “go on the offensive” and sue Walters
and Kromenhoek. App. 1938. He explained that this would
force them to “spend[] their own cash,” and “the rubber will
meet the road on how far everyone is willing to go on this
issue.” App. 1941.
Overall, Talkington posted numerous harassing blog
posts and comments over more than five months. He posted
these comments publicly on the Internet. He continued to do
so after Walters expressed her “mortifi[cation]” that her need
for an emotional support animal was made public. App.
1912.
We hold that there are genuine disputes of fact over
the inferences that can be drawn from Talkington’s blog
posts. Windsor, 986 F.2d at 659. A reasonable jury could
find that his conduct constituted harassment that was
sufficiently severe or pervasive as to “interfere” with Walters
and Kromenhoek’s fair housing rights. 42 U.S.C. § 3617. A
reasonable jury could also find that there was a causal
connection between Talkington’s conduct and Walters and
Kromenhoek’s exercise of their fair housing rights. As such,
we will reverse the grant of summary judgment for
Talkington.
4
Walters and Kromenhoek also alleged a Section 3617
claim against Harcourt. The District Court did not analyze
this claim, but rather dismissed it on the ground that the claim
was purportedly identical to the claim against Cowpet. As we
41
reverse the Section 3617 claim against Cowpet, we will
vacate the grant of summary judgment in favor of Harcourt.
On remand, the District Court must determine whether or not
to substitute a party for Harcourt. See infra Section VII. If
the District Court grants substitution, the Court may be called
upon to readdress the Section 3617 claim in light of this
opinion.
VII
The final issue before us is whether to permit
substitution for the deceased Appellees Felice and Harcourt.
The issues pertaining to substitution were raised below but
were not resolved due to the District Court’s rulings on the
merits. Thus, while we deny the pending motions to
substitute filed on our docket, we ask the District Court to
decide the matter of substitution on remand, in light of our
ultimate disposition.
VIII
For the forgoing reasons, we will reverse in part and
vacate in part the judgment of the District Court. We will
reverse the grant of summary judgment in favor of Cowpet on
both the Fair Housing Act reasonable accommodation and
interference claims, 42 U.S.C. §§ 3604(f)(3)(B) and 3617.
We will reverse the grant of summary judgment in favor of
Felice and Talkington on the interference claims, 42 U.S.C.
§ 3617. We will vacate the grant of summary judgment in
favor of Harcourt on the interference claim, 42 U.S.C. § 3617,
and remand to the District Court for further proceedings
consistent with this opinion. On remand, the District Court
shall determine in the first instance whether to permit
42
substitution for Appellees Felice and Harcourt. Since the
federal claims are restored, the District Court’s Section
1367(c) rationale for dismissing the territorial claims no
longer applies; thus, we will reinstate the supplemental
territorial claims against all Appellees. Each of these rulings
shall apply to both Walters and Kromenhoek.
43