Jacob Scoggins v. Lee's Crossing Homeowners Ass'n

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JACOB SCOGGINS, an individual; 
DAN SCOGGINS; DEBBIE SCOGGINS,
Plaintiffs-Appellants,
v.
LEE’S CROSSING HOMEOWNERS  No. 11-2202
ASSOCIATION, a Virginia
corporation and Property Owner’s
Association; JACK H. MERRITT, JR.,
an individual,
Defendants-Appellees.

JACOB SCOGGINS, an individual; 
DAN SCOGGINS; DEBBIE SCOGGINS,
Plaintiffs-Appellees,
v.
LEE’S CROSSING HOMEOWNERS  No. 11-2373
ASSOCIATION, a Virginia
corporation and Property Owner’s
Association; JACK H. MERRITT, JR.,
an individual,
Defendants-Appellants.

Appeals from the United States District Court
for the Eastern District of Virginia, at Alexandria.
Liam O’Grady, District Judge.
(1:10-cv-01157-LO-IDD)
2 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
Argued: March 20, 2013
Decided: May 17, 2013
Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.
Affirmed in part, vacated in part and remanded by published
opinion. Judge Keenan wrote the opinion, in which Judge
Niemeyer and Judge Motz joined.
COUNSEL
ARGUED: Charles Duke Ferguson, MARKO & MAGOLN-
ICK, Miami, Florida, for Appellants/Cross-Appellees.
Michael Sterling Dingman, REED SMITH, LLP, Falls
Church, Virginia, for Appellees/Cross-Appellants. ON
BRIEF: J. Damian Ortiz, THE JOHN MARSHALL LAW
SCHOOL, Fair Housing Legal Clinic, Chicago, Illinois;
Miguel M. de la O, DE LA O, MARKO, MAGOLNICK &
LEYTON, Miami, Florida, for Appellants/Cross-Appellees.
Richard D. Kelley, REED SMITH, LLP, Falls Church, Vir-
ginia, for Appellees/Cross-Appellants.
OPINION
BARBARA MILANO KEENAN, Circuit Judge:
In this appeal, we consider the district court’s summary
judgment holding that the plaintiffs, Dan Scoggins, Debbie
Scoggins, and their son Jacob Scoggins (collectively, the
plaintiffs), were not entitled under the Fair Housing Amend-
ments Act of 1988, 42 U.S.C. §§ 3601 through 3631 (the
FHAA), to an accommodation and a modification that they
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 3
requested from the Lee’s Crossing Homeowners Association
(the HOA). The plaintiffs had requested: (1) a modification to
add a ramp leading to the front door of their home for use by
Jacob, who requires the use of a wheelchair; and (2) an
accommodation to an HOA policy prohibiting the use of cer-
tain types of vehicles to allow Jacob to use an All-Terrain
Vehicle (ATV) within the Lee’s Crossing subdivision (Lee’s
Crossing or the community).
After the HOA failed to grant their requests, the plaintiffs
filed a complaint against the HOA and Jack Merritt, Jr., a
member of the HOA’s board of directors (together, the defen-
dants). The district court granted the defendants’ motion for
summary judgment, but denied their request for attorneys’
fees and costs. The plaintiffs appeal from the district court’s
award of summary judgment to the defendants, and the defen-
dants appeal from the court’s denial of their request for attor-
neys’ fees and costs.
Upon our review, we vacate the district court’s holding on
the merits of the modification request for the wheelchair
access ramp, because that claim is not ripe. We affirm the dis-
trict court’s holding with respect to the accommodation
request for permission to use an ATV, because that request
was not "reasonable" within the meaning of the FHAA. We
also affirm the district court’s denial of the defendants’
request for attorneys’ fees and costs.
I.
Dan and Debbie Scoggins purchased a ten-acre lot in 2002
in Lee’s Crossing, a subdivision in Loudoun County, Vir-
ginia, where they built a home in which they have resided for
several years.1 Dan and Debbie live with their 22-year-old son
1
We view the facts in the light most favorable to the plaintiffs as the
non-moving party. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d
111, 119 (4th Cir. 2011).
4 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
Jacob, who requires the use of a wheelchair because he is par-
tially paralyzed as a result of a car accident that occurred
when he was a child.
All individuals purchasing property in Lee’s Crossing are
required to abide by the rules of the HOA and certain restric-
tive covenants (collectively, the covenants). The covenants
require that homeowners obtain approval from the Lee’s
Crossing Architectural Review Board (the review board) for
any changes that the owners seek to make affecting the exter-
nal appearance of their property. During construction of their
home, the plaintiffs were granted permission from the review
board to build a walk-out basement to facilitate Jacob’s access
to the residence. The plaintiffs later installed a wheelchair
ramp in their garage, which is attached at the main level to
one end of their home, giving Jacob an additional means of
entering the residence in his wheelchair.
The covenants also contain rules governing activities con-
ducted on the common grounds of Lee’s Crossing. These
rules include a policy prohibiting the use of off-road vehicles
such as ATVs on the common driveways and roads of the
community.
The plaintiffs requested an exception to the HOA’s policy
prohibiting the use of ATVs (the ATV request). They made
this request because the streets of Lee’s Crossing are unpaved,
making it difficult for Jacob to travel within the community
using either his manual or power wheelchair.2 The plaintiffs
asserted that Jacob’s use of an ATV would allow him to
2
Jacob also owns a hand-powered tricycle that he sometimes uses for
recreational purposes. The plaintiffs assert, however, that the tricycle is
not an appropriate substitute for an ATV because Jacob experiences pain
when he begins to operate the tricycle. Jacob also was issued a driver’s
license by the Commonwealth of Virginia, but the plaintiffs assert that it
is not practical for him to use an automobile for short trips within the
neighborhood.
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 5
accompany his family and friends on walks within the com-
munity.
In May 2009, Debbie Scoggins sent an email to representa-
tives of the HOA, in which she asked that Jacob be allowed
to use an ATV on the common roads of Lee’s Crossing. At
HOA meetings in July 2009 and September 2009, the mem-
bers of the Lee’s Crossing board of directors (the board of
directors) discussed the ATV request, but "tabled" the request
on each occasion pending the receipt of further details. How-
ever, the board members did not contact the plaintiffs to
obtain these additional details. Further, although these board
meetings were open to the public, the plaintiffs were not noti-
fied that the ATV request was scheduled to be discussed and
they did not attend either meeting.
The ATV request remained dormant until August 26, 2010,
when Debbie Scoggins sent an email to the property manager
for Lee’s Crossing, renewing the ATV request and expressing
concern that the HOA had ignored the previous request. A
representative of the board of directors replied on September
11, 2010, 16 months after the plaintiffs’ initial ATV request,
seeking additional information concerning the request. The
plaintiffs did not respond to this inquiry.
About this same time, on September 20, 2010, the plaintiffs
submitted a written request to the review board seeking per-
mission to construct a ramp leading to the front door of their
home (the ramp request).3 The covenants require that home-
owners planning such external construction submit a written
application to the review board, containing "detailed plans
and specifications," including the size and materials for the
proposed construction.
3
The plaintiffs had made verbal requests to Merritt in 2003 and 2007
seeking permission to construct the ramp, which Merritt immediately "de-
nied" based on aesthetic concerns.
6 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
Under the covenants, the review board is allotted 30 days
to respond to a written request.4 The covenants also grant the
review board "the unilateral right to request additional infor-
mation as well as the right to reject any and all applications
which are not complete."
The plaintiffs did not wait for a denial or the expiration of
the 30-day period, but filed a complaint in the district court
on October 13, 2010, which included a claim based on the
"denial" of their ramp request. The review board later
responded to the plaintiffs’ ramp request in a letter dated
October 18, 2010, which stated that the board denied the
application "procedurally, as being incomplete." The review
board also identified "numerous missing items in the applica-
tion," and asked that those items be submitted. Finally, the let-
ter stated that the review board’s response was "not a
substantive denial of a request for a second ramp at your
house, but merely requires you to provide a complete applica-
tion so the [HOA] can properly determine what you wish to
construct."
In their amended complaint filed under the FHAA, the
plaintiffs asserted that the defendants’ failure to allow a rea-
sonable modification of the plaintiffs’ home, to add a front
ramp (the ramp request claim), violated 42 U.S.C.
§ 3604(f)(3)(A). The plaintiffs further alleged that the defen-
dants’ refusal to permit a reasonable accommodation allowing
Jacob to operate an ATV within the community (the ATV
request claim) violated 42 U.S.C. § 3604(f)(3)(B). The plain-
tiffs sought monetary damages and injunctive relief directing
the defendants to grant permission for construction of the
front ramp and to approve the ATV request.
4
Pursuant to the covenants, if the review board fails to act within the ini-
tial 30-day period, the homeowner may send a notice by certified mail to
the board requesting action. If the review board fails to act within 30 days
from receiving the certified notice, the request is deemed approved.
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 7
Upon completion of discovery, the defendants filed a
motion for summary judgment.5 The district court granted the
defendants’ motion, concluding that the plaintiffs’ evidence
failed to show that the ramp was "necessary," within the
meaning of the FHAA. The court alternatively held that the
ramp request claim was premature because the review board
had not denied the ramp request but, rather, timely had
informed the plaintiffs that the ramp request would be consid-
ered if they completed the application process and filed the
necessary materials. With respect to the ATV request claim,
the district court held that the plaintiffs failed to produce evi-
dence showing that the ATV request was either "reasonable"
or "necessary," within the meaning of the FHAA.6 The court
also held alternatively that the ATV request claim was prema-
ture.
After the district court entered final judgment, the defen-
dants filed a motion seeking attorneys’ fees and costs. The
court denied the motion, holding that the lawsuit was not friv-
olous and that, therefore, an award of attorneys’ fees and costs
was not required under the FHAA. The court also declined to
apply a provision in the covenants requiring that a home-
owner pay the HOA’s attorneys’ fees and costs if the HOA
substantially prevailed in litigation brought by the home-
owner. The court concluded that such a provision was unen-
forceable in this action as being contrary to the public policy
interest of encouraging private parties to pursue potential
FHAA violations.
II.
We first address the issues presented in the plaintiffs’
5
The plaintiffs filed a cross-motion for partial summary judgment,
which the district court denied, that is not at issue in this appeal.
6
The district court also held that the evidence failed to show that Merritt
acted with discriminatory intent in opposing the ATV request and the
ramp request.
8 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
appeal. We review de novo the district court’s award of sum-
mary judgment in favor of the defendants, viewing the facts,
and all reasonable inferences that may be drawn from those
facts, in the light most favorable to the plaintiffs. See Bonds
v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011); S.C. Green
Party v. S.C. State Election Comm’n, 612 F.3d 752, 755 (4th
Cir. 2010). Summary judgment is appropriate only when
"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); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d
289, 295 (4th Cir. 2010).
A.
We begin by addressing the plaintiffs’ ramp request claim.
The plaintiffs initially assert that the district court erred in
concluding that the ramp request claim was premature. They
argue that this claim was ripe for judicial consideration
because the defendants both actually and constructively
denied the ramp request before the present complaint was
filed in the district court. We disagree with the plaintiffs’
argument.
The "ripeness" requirement originates in the "case or con-
troversy" constraint of Article III, and presents a "threshold
question[ ] of justiciability." Lansdowne on the Potomac
Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, __
F.3d ___, 2013 WL 1364274, at *4 (4th Cir. Apr. 5, 2013)
(Lansdowne); see also DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 341 (2006) (explaining that "[i]f a dispute is not a
proper case or controversy, the courts have no business decid-
ing it, or expounding the law in the course of doing so"). The
issue of ripeness entails an analysis considering the fitness of
the issues before the court, as well as the hardship that the
parties will experience if the court withholds consideration of
the dispute. Lansdowne, 2013 WL 1364274, at *7 (citing Mil-
ler v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)).
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 9
"The doctrine of ripeness prevents judicial consideration of
issues until a controversy is presented in clean-cut and con-
crete form." Miller, 462 F.3d at 318–19 (citation and internal
quotation marks omitted). As explained by the Supreme
Court, the purpose of the ripeness doctrine is to require courts
to avoid taking premature judicial action, thereby preventing
them from becoming entangled in "abstract disagreements."
Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abro-
gated on other grounds by Califano v. Sanders, 430 U.S. 99,
105 (1977).
A case is fit for adjudication "when the action in contro-
versy is final and not dependent on future uncertainties." Mil-
ler, 462 F.3d at 319; Franks v. Ross, 313 F.3d 184, 195 (4th
Cir. 2002). Stated alternatively, "[a] claim is not ripe for adju-
dication if it rests upon contingent future events that may not
occur as anticipated, or indeed may not occur at all." Texas v.
United States, 523 U.S. 296, 300 (1998) (citation and internal
quotation marks omitted); see also Bryant Woods Inn, Inc. v.
Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997) (in
determining whether a claim is ripe, we "decide whether the
issue is substantively definitive enough to be fit for judicial
decision and whether hardship will result from withholding
court consideration").
An issue becomes ripe for adjudication under the FHAA
when a disabled resident first is denied a reasonable and nec-
essary modification or accommodation. See Bryant Woods,
124 F.3d at 602. As the parties bringing this FHAA action, the
plaintiffs have the burden of establishing that their claims are
ripe. See Miller, 462 F.3d at 319.
It is undisputed that the plaintiffs’ first written application
to construct the ramp was made on September 20, 2010.
Under the covenants, the review board was required to
respond to that application within 30 days. However, the
plaintiffs did not wait the full 30-day period for a response,
10 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
but instead initiated the present court action on October 13,
2010.
Additionally, as developed in discovery in this case, the
review board sent the plaintiffs a letter on October 18, 2010,
stating that the application was "incomplete" and asking for
further information about the proposed ramp. Although the
plaintiffs do not dispute the board’s finding that the applica-
tion was incomplete, they declined to supplement the applica-
tion as requested by the review board. In light of these facts,
the defendants did not "deny" the ramp request, as would be
necessary to present a controversy in "clean-cut and concrete
form" appropriate for adjudication by a federal court. Miller,
462 F.3d at 318–19. Further, contrary to the plaintiffs’ argu-
ment, the defendants’ actions have not amounted to a con-
structive denial of the ramp request.
We also observe that the defendants stipulated during oral
argument before this Court that the review board will approve
the plaintiffs’ ramp request upon their submission of the spec-
ifications requested by the board. The fact that the defendants
will grant the ramp request upon the plaintiffs’ proper submis-
sion of that request is material to our analysis of the hardship
prong of the ripeness inquiry. See Abbott Labs., 387 U.S. at
149 (discussing hardship prong of the ripeness analysis);
Lansdowne, 2013 WL 1364274, at *7-8 (same). We further
observe that the ramp request claim is not time-sensitive, and
thus a holding that the claim is not ripe will not present an
immediate threat to the plaintiffs. See Lansdowne, 2013 WL
1364274, at *8 (stating that the hardship prong is analyzed by
considering the immediacy of any threat and the burden
imposed on a plaintiff) (citation omitted). Moreover, our hold-
ing encourages, rather than forecloses, the plaintiffs’ ability to
submit the information requested by the review board, and
thus withholding consideration of this claim does not impose
a significant burden on the plaintiffs. Therefore, we conclude
that the parties will not experience a significant hardship as a
result of our withholding consideration of the ramp request
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 11
claim. Accordingly, we hold that the ramp request claim is not
ripe for review, because final action on the request is still
forthcoming and is "dependent on future uncertainties." See
Miller, 462 F.3d at 319.
In reaching this conclusion, we agree with the district
court’s determination that the verbal inquiries made by the
plaintiffs in 2003 and 2007 are barred from consideration in
determining ripeness, because those requests were made out-
side the two-year statute of limitations. See 42 U.S.C.
§ 3613(a)(1)(A). Those oral requests also do not qualify for
consideration pursuant to the "continuing violation" doctrine,
under which acts occurring outside the statute of limitations
may be considered when there is a "fixed and continuing
practice" of unlawful acts both before and during the limita-
tions period. Nat’l Advertising Co. v. City of Raleigh, 947
F.2d 1158, 1166-67 (4th Cir. 1991) (citation omitted); see
also Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81
(1982) (applying "continuing violation" doctrine to Fair
Housing Act claim).
Here, even if we assume that those two oral requests made
during a seven-year period qualified as valid applications for
the review board’s consideration, we conclude that the
board’s failure to act on them did not constitute a "fixed and
continuing practice." See Nat’l Advertising Co., 947 F.2d at
1166-67; cf. A Soc’y Without A Name v. Virginia, 655 F.3d
342, 348 (4th Cir. 2011) (noting that for purposes of continu-
ing violation doctrine, plaintiff must show that illegal act "did
not occur just once, but rather in a series of separate acts")
(citation and internal quotation marks omitted). Thus, we hold
that the continuing violation doctrine is not applicable in this
case. Accordingly, because the ramp request claim is not ripe
for judicial review, we vacate the portion of the district
court’s judgment adjudicating the merits of that claim in favor
of the defendants. See Giovani Carandola, Ltd. v. Fox, 470
F.3d 1074, 1085 n.5 (4th Cir. 2006) (holding that portion of
12 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
plaintiff’s complaint was not ripe, and vacating that aspect of
the district court’s decision).
B.
We next address the issue whether the district court erred
in awarding summary judgment to the defendants on the ATV
request claim. Initially, we observe that, contrary to the dis-
trict court’s conclusion, the ATV request claim was not pre-
mature. A denial of a request need not be explicit, but rather
may be treated as a "constructive" denial based on the deci-
sion maker’s conduct. See Groome Res. Ltd. v. Parish of Jef-
ferson, 234 F.3d 192, 199 (5th Cir. 2000) (noting that a denial
under the FHAA may be "actual or constructive, as an inde-
terminate delay has the same effect as an outright denial").
It is undisputed that the plaintiffs made the ATV request in
writing in May 2009, and there is no suggestion that the man-
ner in which they made their request violated the HOA’s pro-
cedures. The board of directors twice "tabled" the ATV
request pending a decision to seek additional information
from the plaintiffs, but the board did not ask the plaintiffs to
provide such information until more than 15 months later.
Under these circumstances, the HOA’s failure to take any
action for such an extended period operated as a constructive
denial of the ATV request.7 See Groome Res., 234 F.3d at 199(concluding that defendant’s failure to act for over three
months on an application for an accommodation constituted
a constructive denial of the accommodation request, and that
the issue therefore was ripe for review). Accordingly, we turn
to address the issue whether the HOA’s constructive denial of
the ATV request violated the FHAA.
7
Although not dispositive, we note that the defendants conceded during
oral argument before this Court that they would have denied the plaintiffs’
ATV request, even had the HOA received the additional information
sought.
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 13
The FHAA forbids discrimination against any person
because of a handicap or disability in the provision of services
in connection with a dwelling.8 See 42 U.S.C. §§ 3601–3631;
Bryant Woods, 124 F.3d at 602-03 (discussing the FHAA).
The FHAA defines "discrimination" in relevant part as "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); Bryant Woods,
124 F.3d at 603.
A party raising an accommodation claim under the FHAA
bears the burden of establishing that the proposed accommo-
dation is "(1) reasonable and (2) necessary (3) to afford handi-
capped persons equal opportunity to use and enjoy housing."
Bryant Woods, 124 F.3d at 603-04 (citing 42 U.S.C.
§ 3604(f)(3)). For purposes of the ATV claim, we focus our
analysis on the "reasonableness" prong of this standard. In
determining whether a proposed accommodation is reasonable
under the FHAA, we undertake a fact-specific inquiry, con-
sidering, among other things, "the extent to which the accom-
modation would undermine the legitimate purposes and
effects of [the] existing [ ] regulations and the benefits that the
accommodation would provide" to the plaintiff. Id. at 604.
In enacting the FHAA, Congress made clear that the health
and safety of other persons are relevant factors in determining
whether a person or entity violated the FHAA. See 42 U.S.C.
§ 3604(f)(9) ("Nothing in this subsection requires that a
dwelling be made available to an individual whose tenancy
would constitute a direct threat to the health or safety of other
individuals.") (emphasis added).9 We join other courts that
8
There is no dispute that Jacob is a person with a "handicap" or "disabil-
ity," within the meaning of the FHAA.
9
Although the language of § 3604(f)(9) mentions a "dwelling [to] be
made available," the concern about a threat to the safety of others is also
relevant to a reasonable accommodation claim. See Dadian v. Village of
Wilmette, 269 F.3d 831, 840 n.6 (7th Cir. 2001) (citing School Bd. of Nas-
sau Cnty., Fla. v. Arline, 480 U.S. 273, 288 n.16 (1987)).
14 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
have recognized this principle, and hold that the potential for
personal injury is a relevant consideration in examining
whether a modification or accommodation request was rea-
sonable. See Dadian v. Village of Wilmette, 269 F.3d 831,
840-41 (7th Cir. 2001) (analyzing 42 U.S.C. § 3604(f)(9) and
observing that a defendant may, in certain circumstances,
deny a plaintiff’s accommodation request if that request poses
a direct threat to safety of others)10; Howard v. City of Beaver-
creek, 108 F. Supp. 2d 866, 875 (S.D. Ohio 2000) (holding
that defendant was not required by the FHAA to grant plain-
tiff permission to construct a six foot fence to alleviate the
effects of post traumatic stress disorder, because the fence
posed a threat to pedestrian and vehicular traffic), aff’d on
other grounds, 276 F.3d 802 (6th Cir. 2002); Bangerter v.
Orem City Corp., 46 F.3d 1491, 1503-04 (10th Cir. 1995)
(observing that the FHAA permits "reasonable restrictions on
the terms or conditions of housing [to disabled individuals]
when justified by public safety concerns," so long as those
concerns are not based on "blanket stereotypes" about persons
with disabilities).
Without question, the plaintiffs established that use of an
ATV would make it easier for Jacob to travel on the unpaved
roads of Lee’s Crossing, and that it would be impractical for
him to use his power wheelchair for this purpose because of
the potential damage to the wheelchair’s electronic compo-
nents. Accordingly, the plaintiffs established that the use of an
ATV would afford Jacob the benefit of easier transportation
within the community.
Nevertheless, the present record shows that such benefit to
10
In Dadian, the court observed that it was the defendant’s burden to
show that the requested accommodation posed substantial safety concerns.
269 F.3d at 840. We need not determine in this case which party holds the
burden of proof because, as we explain later, the defendants produced sub-
stantial evidence establishing that the ATV request posed significant
safety concerns, and the plaintiffs failed to rebut this evidence.
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 15
Jacob is outweighed substantially by the potential danger that
use of the ATV could cause to the residents of the commu-
nity. The defendants produced overwhelming evidence show-
ing that the use of an ATV as a general matter within Lee’s
Crossing, and Jacob’s use of such a vehicle in particular, pre-
sent a significant threat to Jacob’s own safety as well as to the
safety of the other residents of the community.
Among other items, the defendants included in the record
a copy of the owner’s manual (the manual) for the ATV
model that Jacob sought to operate. The manual emphasizes
that the use of the ATV is "FOR OFF-ROAD USE ONLY,"
and that the ATV does not conform to federal motor vehicle
safety standards. The manual contains the additional warning
that "the ATV does not have turn signals and other features
required for use on public roads." Separately, the manual
again states that "[y]ou should never ride your ATV on public
streets, roads or highways, even if they are not paved. Drivers
of street vehicles may have difficulty seeing and avoiding
you, which could lead to a collision." (Emphasis added.)
The evidence further showed that drivers traveling the
roads of Lee’s Crossing are permitted to operate their vehicles
at speeds up to 35 miles per hour, in excess of the speed limits
in effect on many public roads. Thus, it is of particular note
that the Code of Virginia prohibits, as a general matter, the
operation of any all-terrain vehicle "[o]n any public highway,
or other public property." Va. Code § 46.2-915.1.
We also observe that the defendants’ expert witness, Gary
E. Kilpatrick, a certified professional engineer with experi-
ence in the operation of ATVs, submitted a report describing
the dangers inherent in operating an ATV in an area such as
Lee’s Crossing. In his report, Kilpatrick stated that "ATVs are
designed specifically for operation on off-road dirt terrain,"
and that the tires of an ATV "do not handle well on hard
packed dirt roads, graveled roads and hard surfaced paved
roads." Kilpatrick further opined that ATVs are difficult for
16 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
drivers of other vehicles to see and are not equipped with
headlights, brake lights, or other devices to make them visible
to other drivers on the road.
In addition to this evidence concerning the general dangers
of operating an ATV within Lee’s Crossing, the defendants
produced evidence showing the increased danger posed in
ATV use by persons who have physical impairments. In his
report, Kilpatrick stated that riding an ATV is physically
demanding, and that, to operate an ATV safely, a rider must
"have full use of his entire body, especially his hands, arms,
torso and legs." Kilpatrick, who examined Jacob’s medical
reports, opined that the physical limitations caused by Jacob’s
partial paralysis render his use of an ATV very dangerous,
and that the medication he takes to control spasms in his
lower extremities poses additional dangers. Accordingly, Kil-
patrick concluded that "because of the hazards associated with
riding ATVs, the surrounding terrain and his physical limita-
tions, [Jacob] is and will be a danger to himself, other drivers,
[and] pedestrians" if he were allowed to operate an ATV
within Lee’s Crossing.
The plaintiffs have not refuted the defendants’ evidence
that any operation of an ATV for other than off-road uses is
inherently dangerous.11 Instead, the plaintiffs challenge Kil-
patrick’s conclusion that Jacob’s physical limitations make
his use of an ATV exceptionally dangerous. The plaintiffs
11
The plaintiffs, however, cite the provision in the covenants that allow
a homeowner to petition the HOA for permission to use an off-road vehi-
cle such as an ATV within Lee’s Crossing. But the mere mention in the
covenants of that possibility, without evidence that such petitions are
sometimes or routinely granted, does not cast doubt on the safety concerns
underlying the general prohibition of such vehicles on the community’s
common roads. And, although the plaintiffs further assert that certain
maintenance workers employed by the HOA "use four-wheeled vehicles
similar to ATVs," the only evidence on this point cited by the plaintiffs
relates to a six-wheeled farm vehicle that, according to the testimony, is
not similar to an ATV.
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 17
rely primarily on Jacob’s own testimony, in which he stated
that he could operate an ATV safely, and on a video recording
of Jacob operating an ATV on the plaintiffs’ property without
incident.12 Having considered this evidence alongside the
defendants’ evidence, we conclude that the plaintiffs have not
presented facts sufficient to create an issue for trial whether
Jacob could operate an ATV within Lee’s Crossing without
creating a danger to the residents of the community. Cf. Wil-
liams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004)
(plaintiff’s subjective belief about her abilities, absent suffi-
cient objective corroboration, cannot defeat summary judg-
ment).
In light of this conclusion, we need not reach the other ele-
ments of the ATV request claim, including whether the
request would be "necessary" to afford Jacob an equal oppor-
tunity to enjoy the Lee’s Crossing community.13 Accordingly,
we affirm the district court’s award of summary judgment in
the defendants’ favor on the ATV request claim, because the
plaintiffs failed to establish that the proposed accommodation
is "reasonable," within the meaning of the FHAA. See Bryant
Woods, 124 F.3d at 604 (directing courts to consider the bene-
fits of the proposed accommodation against the extent to
which the legitimate purposes and effects of the regulation
would be undermined by the accommodation).
III.
We next consider the defendants’ contention on cross-
appeal that the district court erred in declining to award them
12
The self-selective nature of the video submitted by the plaintiffs,
along with its controlled environment, does not sufficiently constitute "ob-
jective corroboration" in this case. Cf. Williams v. Giant Food Inc., 370
F.3d 423, 433 (4th Cir. 2004) (citation omitted).
13
In light of our conclusion that the denial of the ATV request did not
constitute a violation of the FHAA, we need not consider whether Merritt
could be found individually liable for the HOA’s action in denying that
request.
18 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
attorneys’ fees and certain additional costs incurred in defend-
ing this matter.14 The defendants filed a motion seeking an
award of attorneys’ fees and costs, relying on the attorneys’
fees and costs provision of the FHAA, 42 U.S.C.
§ 3613(c)(2), as well as on the language in the covenants pro-
viding for the payment of attorneys’ fees when the HOA is a
prevailing party.
With respect to their motion, the defendants requested an
evidentiary hearing at which they could present evidence con-
cerning the "reasonableness of [their] invoices, costs and
expenses." The record does not show the nature or the amount
of such costs at issue in the motion for attorneys’ fees and
costs, nor do the defendants argue on appeal the nature or
amount of those additional costs sought.
We also observe that the defendants do not assert a separate
basis for entitlement to an award of these unspecified costs
independent from their asserted right to an award of reason-
able attorneys’ fees. The district court considered the defen-
dants’ motion without distinguishing the attorneys’ fees
request from the present request for costs, and the defendants
do not argue on appeal that the district court erred in consider-
ing those requests in tandem.
In analyzing the merits of the defendants’ contention that
they are entitled to attorneys’ fees and costs, we observe that
14
Separately, in the district court, the defendants filed a bill of costs pur-
suant to 28 U.S.C. § 1920 and the Eastern District of Virginia’s Taxation
of Costs Guidelines (the guidelines). The defendants sought in the bill of
costs reimbursement of $8,413.81 for fees paid to court reporters, certain
printing costs, private process server fees and delivery costs, and allow-
ances for the appearance of certain witnesses and their travel expenses.
The district court granted the bill of costs in the amount of $7,508.81,
declining to award the defendants any money for private process server
fees and delivery costs. The parties do not argue that the district court
erred in awarding the defendants $7,508.81 and, accordingly, the court’s
decision relating to the bill of costs is not at issue in this appeal.
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 19
the defendants base the first part of their argument on the
FHAA provision granting district courts the discretion to
award attorneys’ fees and costs to a "prevailing party." See 42
U.S.C. § 3613(c)(2) (providing that "the court, in its discre-
tion, may allow the prevailing party . . . reasonable attorney’s
fee[s] and costs"); Bryant Woods, 124 F.3d at 606. However,
the Supreme Court has held that when an action involves a
civil rights matter, and the prevailing party is a defendant,
attorneys’ fees may be awarded by a district court only "upon
a finding that the plaintiff’s action was frivolous, unreason-
able, or without foundation, even though not brought in sub-
jective bad faith." Christiansburg Garment Co. v. EEOC, 434
U.S. 412, 421 (1978) (construing § 706(k) of Title VII of the
Civil Rights Act of 1964).
This Court held in Bryant Woods that the above standard in
Christiansburg also applies to attorneys’ fees requests for
claims brought under the FHAA. 124 F.3d at 606. We hold
that this standard is equally applicable to a request for an
award of costs pursuant to the FHAA. See Taylor v. Harbour
Pointe Homeowners Ass’n, 690 F.3d 44, 50-51 (2d Cir. 2012)
(analyzing prevailing defendants’ requests for attorneys’ fees
and costs together under the Christiansburg standard in Fair
Housing Act action).
Citing Christiansburg, the district court concluded that the
plaintiffs’ complaint was not "frivolous, unreasonable, or
without foundation," 434 U.S. at 421, and, accordingly,
declined to award attorneys’ fees to the defendants. After
reviewing the record and the parties’ arguments, we conclude
that the district court did not abuse its discretion in reaching
this conclusion and in denying the defendants’ request on this
basis.
The defendants argue separately, however, that they are
entitled to attorneys’ fees and costs based on a provision in
the covenants stating that, "[s]hould the Association, Board,
Architectural Review Board or the Declarant substantially
20 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
prevail in any litigation brought by or against an Owner, the
Owner shall be required to pay all attorney’s fees and costs
of the litigation, including expert witness fees, incurred by
any such entity." The defendants contend that the district
court was required under this provision to award them attor-
neys’ fees and costs, irrespective of the standard set forth in
Christiansburg and Bryant Woods. We disagree with the
defendants’ argument.
Congress’ decision to encourage private civil actions under
statutes such as the FHAA and the Civil Rights Act reflects
a legislative choice to allow aggrieved citizens to advance the
public interest. As the Supreme Court explained in Christian-
sburg with respect to the Civil Rights Act, "the plaintiff [in
such cases] is the chosen instrument of Congress to vindicate
a policy that Congress considered of the highest priority." 434
U.S. at 418 (citation and internal quotation marks omitted).
Further, as we observed in Bryant Woods, the FHAA’s prohi-
bitions "draw on the same policies attending Title VII of the
Civil Rights Act." 124 F.3d at 606 (observing similarities
between the Civil Rights Act and the FHAA). We therefore
conclude that, like the Civil Rights Act plaintiff discussed in
Christiansburg, a plaintiff filing a lawsuit under the FHAA
acts to effectuate the intent of Congress to vindicate the poli-
cies underlying that Act.
In light of the public policy objectives inherent in encour-
aging private plaintiffs to seek redress of FHAA violations, it
would be incongruous to allow bodies such as the HOA to
enforce by contract an attorneys’ fees provision against a
plaintiff who has brought an FHAA action in good faith. Such
a provision, if enforced by the courts, would have the natural
and counterproductive effect of dissuading individuals from
filing an FHAA lawsuit when they have a reasonable basis on
which to assert their claims. Based on these considerations,
we conclude that the district court did not err in refusing to
award attorneys’ fees and costs to the defendants based on the
SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 21
fee provision in the covenants. Accordingly, we affirm the
district court’s judgment in the defendants’ cross-appeal.
IV.
For these reasons, we vacate the district court’s summary
judgment holding on the ramp request claim, because that
claim is not ripe for judicial review, and we remand the claim
to the district court with instructions to dismiss this portion of
the complaint without prejudice. We affirm the district court’s
award of summary judgment in favor of the defendants on the
ATV request claim, and, with respect to the cross-appeal, we
affirm the district court’s judgment denying the defendants’
request for attorneys’ fees and costs.
AFFIRMED IN PART,
VACATED IN PART AND REMANDED