Hunter Ex Rel. A.H. v. District of Columbia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ANTHONY HUNTER, on his behalf
and as parent of his minor
daughter, A.H.,
Plaintiffs,
v.
THE DISTRICT OF COLUMBIA,
a municipal corporation,
THE COMMUNITY PARTNERSHIP FOR Civil Action No. 12-1960 (GK)
THE PREVENION OF HOMELESSNESS,:
COALITION FOR THE HOMELESS,
and
COMMUNITY OF HOPE,
Defendants.
MEMORANDUM OPINION
Plaintiff Anthony Hunter ("Hunter") and his minor daughter
A.H. 1 (collectively/ "the Hunters") filed this action against the
District of Columbia ("the District// or "D.C.") 1 the Community
Partnership for the Prevention of Homelessness ("the
Partnership") 1 the Coalition for the Homeless ("the Coalition") 1
and Community of Hope ( "COW1 ) (collectively 1 "Defendants//) . The
Hunters allege that Defendants violated various federal and
local anti-discrimination statutes and were negligent.
1
Pursuant to Local Civil Rule 5.4(f) (2) Hunter S daughter will
1
1
be referred to by her initials in order to protect her privacy.
This matter is presently before the Court on the District's
Motion to Dismiss Plaintiffs' First Amended Complaint [Dkt. No.
65] and COR's Motion to Dismiss Plaintiffs' First Amended
Complaint [Dkt. No. 66]. Upon consideration of the Motions,
Oppositions [Dkt. Nos. 73 and 74], Replies [Dkt. Nos. 77 and
80], the United States of America's Statement of Interest [Dkt.
No. 79], the Responses to the United States' Statement of
Interest [Dkt. Nos. 93 and 94], the entire record herein, and
for the reasons stated below, the District's Motion is granted
in part and denied in part, and Defendant COR's Motion is
granted in part and denied in part.
I . BACKGROUND
A. Factual Background2
The District, through its Department of Human Services
( "DHS") , provides social services for indi victuals and families
in the city who are homeless or at risk of homelessness. First
Amended Complaint ( "Compl. ") ~ 8. In doing so, it entered into
contracts with various service providers. Id. ~ 9.
2
For purposes of ruling on a motion to dismiss, the factual
allegations of the complaint must be presumed to be true and
liberally construed in favor of the plaintiff. Aktieselskabet AF
21. November 2001 v. Fame Jeans Inc., 525 F.3d 8, 15 (D.C. Cir.
2008); Shear v. Nat'l Rifle Ass'n of Am., 606 F.2d 1251, 1253
(D.C. Cir. 1979). Therefore, the facts set forth herein are
taken from the First Amended Complaint [Dkt. No. 59].
-2-
One such contractor, the Partnership, has been retained to
manage and direct emergency shelter services. Id. ~~ 9-10. As
part of its duties, the Partnership runs the District-owned D.C.
General Shelter. Id. ~ 10. The Partnership contracted with the
Coalition to operate the Virginia Williams Family Resource
Center ("the Center"), which is the central intake facility for
all families seeking placements in shelters. Id. ~ 12. The
Partnership has also contracted with COH to manage the day-to-
day operations at the District-owned Girard Street Apartments.
Id. ~~ 8, 11.
At the time of the events relevant to this case, Plaintiff
Hunter lived with his six-year old daughter, A.H. Id. ~~ 7, 36.
She was born with and continues to suffer from spina bifida and
cri-du-chat syndrorne. 3 Id. ~~ 7, 35. As a result, she uses a
wheelchair and cannot engage in "self -care, such as bathing,
dressing and eating." Id. Her medical conditions leave her
3
Cri-du-chat syndrome is a chromosomal condition "characterized
by intellectual disability and delayed development, small head
size low birth weight, and weak muscle tone in
infancy." Cri-du-chat syndrome, Genetics Horne Reference,
http://ghr.nlrn.nih.gov/condition/cri-du-chat-syndrorne (last
visited June 30, 2014). Spina bifida is a "condition in which
the bones of the spinal column do not close completely around
the developing nerves of the spinal cord." Spina bifida,
Genetics Horne Reference, http://ghr.nlrn.nih.gov/condition/spina-
bifida (last visited June 30, 2014). It can result in "a loss of
feeling below the level of the opening, weakness or paralysis of
the feet or legs, and problems with bladder and bowel control."
Id.
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particularly susceptible to infections, and doctors have
recommended she live in an environment that minimizes exposure
to infections and other communicable diseases. Id.
On December 7 I 2011, the Hunters faced immediate
homelessness and applied for placement in a homeless shelter in
the District. Id. ~ 37. While at the Center discussing
placement, Hunter told the staff that A.H. had mobility
impairments and that the Hunters needed a non-communal
environment with a private bathroom that was wheelchair
accessible. Id. ~~ 3 7, 3 9. The Center staff failed to include
the request for a non-communal environment with a private
bathroom and included only the request for a wheelchair
accessible unit when writing up the Hunters' reasonable
accommodation request. Id. ~ 39.
The Hunters were placed in uBuilding 12" of the D.C.
General Shelter. Id. ~ 41. Although the room was private, the
ramp into the building was too steep to be wheelchair
accessible. Id. ~~ 43, 46. The Hunters had to share a bathroom
with several other families and the staff refused to let the
Hunters eat in a separate room. Id. ~~ 47-48, 50. While residing
in this shelter, A.H. developed a urinary tract infection
resulting in the need for treatment at Children's Hospital. Id.
~ 54. Asserting that the placement did not meet A. H.'s needs,
-4-
Hunter repeatedly asked that he and A.H. be relocated to an
accessible unit. Id. ~~ 51, 53.
On or about December 29, 2011, the Hunters were moved to
the Girard Street Apartments, where they were given a private
apartment. Id. ~~ 56, 66. The Hunters were told that the only
available unit at the Girard Street Apartments was on the third
floor and that they would not receive an accessible unit. Id.
~~ 69, 71. There was no elevator, so Hunter had to carry A.H.
and her wheelchair up and down two flights of stairs to arrive
at or leave the apartment. Id. ~ 74. Finally, the hallways in
the unit were too narrow to accommodate A.B.'s wheelchair. Id.
~ 75.
There was at least one accessible first floor unit at the
Girard Street Apartments that was occupied by a family that did
not need the accessible features. Id. ~ 78. Hunter was told by
the program director that she could not require that family to
move and that the Hunters would need to stay in the third floor
unit. Id. On February 10, 2012, after the intervention of the
Hunters' attorney, the Hunters were moved to a first floor unit.
Id. ~ 86. Because the wheelchair lift was broken, Hunter still
had to lift the wheelchair up three steps to get to this
apartment. Id. ~~ 73, 86. As a result of the need to lift and
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carry A.B.'s wheelchair, Hunter experienced back and chest pain.
Id. ~ 77.
On March 12, 2012, the Hunters moved out of the Girard
Street Apartments and into a supportive housing program. Id.
~ 88.
B. Procedural History
On December 6, 2012, the Hunters filed their Complaint
[Dkt. No. 1], and on April 29, 2013, they filed a Motion for
Leave to File an Amended Complaint [Dkt. No. 54] On May 17,
2013, the Motion was granted via Minute Order.
On June 3, 2 013, the District filed a Motion to Dismiss
("Mot.") [Dkt. No. 65]. On June 7, 2013, COH filed a Motion to
Dismiss ("COH Mot.") [Dkt. No. 66]. On July 3, 2013, the Hunters
filed their Opposition to the District's Motion ( "Opp' n") and
COR's Motion ("COH Opp'n") [Dkt. Nos. 73, 74]. On July 24, 2013,
COH filed its Reply ( "COH Reply") [Dkt. No. 77] , and an Answer
with regard to the two negligence claims [Dkt. No. 78]. On July
26, 2013, the District filed its Reply ("Reply") [Dkt. No. 81].
On July 2 6, 2 013, the U.S. Department of Justice ( "DoJ")
filed a Statement of Interest related to and opposing the
4
District's Motion to Dismiss [Dkt. No. 79] On October 29, 2013,
4
Pursuant to 28 U.S.C. § 517, "[t]he Solicitor General, or any
officer of the Department of Justice, may be sent by the
-6-
the District and COH both filed Responses to the Statement of
Interest [Dkt. Nos. 93, 94].
II. STANDARD OF REVIEW
Under Rule 12 (b) (6), a plaintiff need only plead "enough
facts to state a claim to relief that is plausible on its face"
and to "nudge[] [his or her] claims across the line from
conceivable to plausible." Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007). "[A] complaint [does not] suffice if it tenders
naked assertions devoid of further factual enhancement."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations
omitted) (citing Twombly, 550 u.s. at 557). Instead, the
complaint must plead facts that are more than "merely consistent
with" a defendant's liability; "the pleaded factual content
[must] allow[] the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Id. at 678
(citing Twombly, 550 U.S. at 556).
" [O] nee a claim has been stated adequately, it may be
supported by showing any set of facts consistent with the
allegations in the complaint." Twombly, 550 U.S. at 563. Under
the standard set forth in Twombly, a "court deciding a motion to
Attorney General to any State or district in the United States
to attend to the interests of the United States in a suit
pending in a court of the United States, or in a court of a
State, or to attend to any other interest of the United States."
-7-
dismiss must assume all the allegations in the complaint
are true (even if doubtful in fact) [and] must give the
plaintiff the benefit of all reasonable inferences derived from
the facts alleged." Aktieselskabet AF 21., 525 F.3d at 17
(internal quotations and citations omitted); see also Tooley v.
Napolitano, 586 F.3d 1006, 1007 (D.C. Cir. 2009) (declining to
reject or address the government's argument that Iqbal
invalidated Aktieselskabet) .
III. ANALYSIS
The District and COH raise several similar arguments.
Consequently, the Court will address together the issues raised
by both parties to each Count of the Complaint. 5
A. Counts I and III: Plaintiffs Have Sufficiently Alleged
Claims Under Title II of the Americans with
Disabilities Act and Section 504 of the Rehabilitation
Act
Count I of the Amended Complaint alleges that Defendants
violated Title II of the Americans with Disabilities Act
("ADA"), 42 U.S.C. § 12131 et seq, which provides that "no
qualified individual with a disability shall, by reason of such
5
COH originally argued that Plaintiffs' claims against it were
barred by the doctrine of release. COR Mot. at 19-21. Plaintiffs
then filed an Addendum to their Settlement Agreement with the
Partnership, clarifying that the document did not apply to or
settle any claims with any other organizations. Dkt. No. 69-2.
The Court approved this addendum in a Minute Order on June 17,
2013, and COH correspondingly withdrew this argument. COH Reply
at 2 n.l.
-8-
disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public
entity, or be subjected to discrimination by any such entity."
42 u.s.c. § 12132.
Count III of the Amended Complaint alleges that Defendants
violated Section 504 of the Rehabilitation Act, 29 U.S.C. § 701
et seq. Similar to Title II, Section 504 prohibits programs and
activities receiving federal funds from discriminating on the
basis of disability. 29 U.S.C. § 794 (a) ("No otherwise qualified
individual with a disability shall, solely by reason of
her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under
any program or activity receiving Federal financial assistance .
. "); see also Young v. D.C. Hous. Auth., No. 13-652, 2014 WL
948317, at *5 (D.D.C. Mar. 12, 2014).
The focus of the Rehabilitation Act is narrower than the
ADA because it only applies to programs receiving federal
financial assistance. Powell v. Nat'l Bd. of Med. Examiners/ 364
F.3d 79, 85, opinion corrected 1 511 F.3d 238 (2d Cir. 2004).
Because Plaintiffs allege that the District receives federal
funds 1 Compl. ~~ 8-9, the Rehabilitation Act claims and the
Title II claims against the District may be considered together.
Mot. at 5-6, 6 n.4; Opp 1 n at 4; see also Am. Council of the
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Blind v. Paulson, 525 F.3d 1256, 1260 n.2 (D.C. Cir. 2008)
(noting that the statutory provisions are so similar in
substance that "cases interpreting either are applicable and
interchangeable" (citation omitted)); Harrison v. Rubin, 174
F.3d 249, 253 (D.C. Cir. 1999) ("Claims and defenses under the
[ADA and the Rehabilitation Act] are virtually identical.").
COH argues that the ADA and the Rehabilitation Act do not
apply to it, for various reasons. The Court will first address
the substantive arguments raised by the District and then will
resolve applicability of these statutes to COH.
1. Plaintiffs Are Not Required to Prove Intentional
Discrimination to Plead a Claim for Declarative
Relief
To establish a prima facie case under either Title II or
the Rehabilitation Act, a plaintiff must allege that (1) she is
a qualified individual with a disability; (2) the defendant is
subject to the Acts; and (3) she was denied the opportunity to
participate in or benefit from the defendant's services,
programs, or activities, or was otherwise discriminated against
by the defendant because of her disability. 42 U.S.C. § 12131;
29 U.S.C. § 794 (a); see also McElwee v. Cnty. of Orange, 700
-10-
F.3d 635, 640 (2d Cir. 2012) (citing Henrietta D. v. Bloomberg,
331 F.3d 261, 272 (2d Cir. 2003)). 6
Although a plaintiff "need not plead a prima facie case of
discrimination" in order to survive a motion to dismiss,
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 515 (2002), the
District does not dispute that Plaintiffs have sufficiently
alleged a prima facie case under the Acts. 7 Instead, the
6
Title II defines "discriminate" to include a failure to make
"reasonable modifications." See 42 U.S.C. §§ 12131(2), 12132;
see also 28 C.F.R. § 35.130 (b) (7) ("A public entity shall make
reasonable modifications in policies, practices, or procedures
when the modifications are necessary to avoid discrimination on
the basis of disability, unless the public entity can
demonstrate that making the modifications would fundamentally
alter the nature of the service, program, or activity."); see
also McElwee, 700 F.3d at 640-41 (2d Cir. 2012) (noting that
"[u]nder both statutes, a defendant discriminates when it fails
to make a reasonable accommodation that would permit a qualified
individual to have access to and take a meaningful part in
public services") (internal quotation marks and citation
omitted)
The parties use the term "reasonable accommodations" to refer to
these requests. This Court will also use "reasonable
accommodations" to encompass "reasonable modifications" under
Title II. See McGary v. City of Portland, 386 F.3d 1259, 1266
n.3 (9th Cir. 2004) (citation omitted) ("Although Title II of
the ADA uses the term 'reasonable modification,' rather than
'reasonable accommodation,' these terms create identical
standards.").
7
In its Response to the United States' Statement of Interest,
the District argues for the first time that Plaintiffs failed to
sufficiently plead that the District discriminated against A.H.
"because of" her disability. Def. Dist. of Columbia's Resp. to
Statement of Interest of the United States of America
("Response") at 9-10. As the District failed to raise this
-11-
District's primary argument is that Plaintiffs have failed to
allege facts to support a claim that the District acted with the
required intent. Mot. at 5-8.
As the District admits in its Response, the issue of
intentional discrimination is only relevant to the issue of
compensatory damages. Response at 9 n. 5; Liese v. Indian River
Cnty. Hosp. Dist., 701 F.3d 334, 344 (11th Cir. 2012) (observing
that failure to provide reasonable accommodation "by itself will
not sustain a claim for compensatory damages; the [plaintiffs]
must also show by a preponderance that the [defendant] 's failure
to provide appropriate [reasonable accommodations] was the
result of intentional discrimination"); Meagley v. City of
Little Rock, 639 F.3d 384, 388 (8th Cir. 2011) (noting that
every Court of Appeals to address the issue has held that a
plaintiff may not recover compensatory damages under the ADA or
the Rehabilitation Act without proof of discriminatory intent) .
Therefore, Plaintiffs do not have to allege discriminatory
intent in order to be entitled to the declaratory relief they
request. Compl. at 38 (praying for declaratory relief); Am.
argument in either its Motion or its Reply, it has waived it.
See Alston v. Dist. of Columbia, 561 F. Supp. 2d 29, 37 (D.D.C.
2008); cf. Williams v. Romarm, SA, No. 13-7022, 2014 WL 2933222,
at *3 (D.C. Cir. July 1, 2014) ("Questions not presented and
argued by the parties in a sequence affording appropriate
consideration are forfeited, and we accordingly decline to rule
on the issue since it was not properly raised.").
-12-
Council, 525 F.3d at 1260 (noting that "section 504 does not
require proof of discriminatory intent 11
) (discussing Alexander
v. Choate, 469 U.S. 287, 295 (1985)); Powers v. MJB Acquisition
Corp., 184 F.3d 1147, 1152 (lOth Cir. 1999) ("[I]ntentional
discrimination is not an element of the plaintiff 1 s prima facie
case. 11
) • Consequently, Plaintiffs have sufficiently alleged
violations under both Title II of the ADA and the Rehabilitation
Act for declarative relief.
2. Plaintiffs Have Sufficiently Alleged Deliberate
Indifference By the District of Columbia
The District argues that Plaintiffs have failed to
sufficiently allege that it acted with deliberate indifference,
and, hence, that Plaintiffs, request for compensatory damages
under the ADA and the Rehabilitation Act must be dismissed. 8
8
In a footnote, the District argues that it does not "concede 11
that "deliberate indifference is the appropriate standard and
11
suggests that Plaintiffs must plead "intentional
discrimination. Mot. at 5 n. 3. Our Court of Appeals has not
11
addressed the appropriate standard, but almost all other Courts
of Appeal to reach the issue have concluded that the "deliberate
indifference standard is appropriate. See Liese, 701 F.3d at
11
345-47 (noting that Eighth, Ninth, Tenth, and Second Circuit
have held that deliberate indifference standard applies, and
choosing to apply that standard); but see Delano-Pyle v.
Victoria Cnty., Tex., 302 F.3d 567, 575 (5th Cir. 2002) (finding
that "[t]here is no 'deliberate indifference, standard
applicable to public entities for purposes of the ADA or the 11
Rehabilitation Act). However, since the District does not
provide support for its argument that a higher standard should
apply, the Court will assume without deciding that the
deliberate indifference standard applies.
-13-
Deliberate indifference occurs when a "defendant knew that
harm to a federally protected right was substantially likely and
. failed to act on that likelihood." Liese, 701 F.3d at 344
(quoting T.W. ex rel. Wilson v. Sch. Bd. of Seminole Cnty.,
Fla., 610 F.3d 588, 604 (11th Cir. 2010)); Meagley, 639 F.3d at
389 (noting that deliberate indifference can be "inferred from a
defendant's deliberate indifference to the strong likelihood
that pursuit of its questioned policies will likely result in a
violation of federally protected rights") (quoting Barber ex
rel. Barber v. Colo. Dep't of Revenue, 562 F.3d 1222, 1228-29
(lOth Cir. 2009)). 9
Plaintiffs present two different theories under which the
District can be found to have acted with deliberate
indifference. First, Plaintiffs allege the District acted with
deliberate indifference by failing to enforce its own
obligations under the ADA. Second, Plaintiffs allege the
District is responsible for the deliberate indifference of its
contractors. The Court will address each theory in turn.
9
The District argues that Plaintiffs have to allege and prove
"actual knowledge" of a violation to establish deliberate
indifference. Mot. at 6-8; Reply at 2-5. However, the case it
cites for that proposition, Liese, clearly states that the
standard only requires an allegation that a defendant have
knowledge that harm to a right is "substantially likely," not
that it have actual knowledge of a violation. Liese, 701 F.3d at
344.
-14-
a. Direct Liability
First, Plaintiffs allege that the District was deliberately
indifferent to its affirmative obligation under the ADA to
ensure that its contractors not discriminate in the provision of
public services on the basis of disability. The District argues
that it does not have any affirmative obligation to monitor the
actions of the contractors.
Regulations promulgated by the DoJ make clear that public
entities cannot escape liability by contracting away the
provision of services to a private entity. 28 C.F.R.
§ 35.130 (b) (1) ("A public entity, in providing any aid, benefit,
or service, may not, directly or through contractual, licensing,
or other arrangements, on the basis of disability II
discriminate against an individual with a disability); id. pt.
35 , App ' x A, at 51 7 (2 0 02 ) ("All governmental activities of
public entities are covered, even if they are carried out by
contractors. For example, a State is obligated by title II to
ensure that the services, programs, and activities of a State
park inn operated under contract by a private entity are in
compliance with title II's requirements.")
Unless the DoJ regulations are "arbitrary, capricious, or
manifestly contrary to the statute," they should be given
"controlling weight." Chevron U.S.A., Inc. v. Natural Res. Def.
-15-
Council, Inc., 467 U.S. 837, 844 (1984); see also City of
Arlington v. FCC, 133 S. Ct. 1863, 1868 (2013) ("Statutory
ambiguities will be resolved, within the bounds of reasonable
interpretation, not by the courts but by the administering
agency."). The District does not argue that the regulations are
arbitrary or capricious. Indeed, all of the courts that have
addressed the regulations have concluded that they are entitled
to deference. See, e.g., Kerr v. Heather Gardens Ass'n, No. 09-
00409, 2010 WL 3791484, at *9 (D. Colo. Sept. 22, 2010) ("[T]he
regulations directing that a public entity is liable under Title
II for direct conduct as well as indirect conduct, achieved
through contracting, licensing, or the like, is not arbitrary,
capricious, or manifestly contrary to the statute. Therefore,
the regulations are entitled to controlling weight.") (citing
Chevron, 467 U.S. at 844); Armstrong v. Schwarzenegger, 622 F.3d
1058, 1065-67 (9th Cir. 2010) (analyzing statute and legislative
history and holding that regulations "reflect the fairest
reading of the statute").
Instead, the District argues that the statute and the
regulations are satisfied so long as the public entity merely
requires its contractors to comply with the statute. Mot. at 6-
7. Its only citation to support this argument is language
contained in an illustration in the DoJ' s Title II Technical
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Assistance Manual stating that a State parks department would be
"obligated to ensure by contract" that a privately owned
restaurant in a State park "operated in a manner that enables
the parks department to meet its title II obligations." Id. at 6
(citing United States Dep' t of Justice, Civil Rights Div., The
Americans With Disabilities Act: Title II Technical Assistance
Manual ("TAM") § II-1.3000, illus. 1).
However, other illustrations in the TAM demonstrate that
the ADA obligations of a public entity go beyond simply
including particular language in its contracts with private
contractors: Illustration 4 states that a public entity "must
ensure that its contracts are carried out in accordance with
title II." TAM § II-1. 3000, ill us. 4 (emphasis added). As the
District Court for the District of Colorado observed, these
examples "support a conclusion that a public entity cannot
escape its obligations under Title II by delegating its duties
to a private entity. Indeed, in each illustration the public
entity remains subject to Title II despite its delegation of
authority or duty to another, private entity." Kerr, 2010 WL
3791484, at *10.
A number of courts have confirmed that public entities have
an obligation to ensure that their private contractors comply
with title II of the ADA. Henrietta D., 331 F.3d at 284-86
-17-
(holding that general rules of contract apply and supervisory
liability exists under Rehabilitation Act); Hahn ex rel. Barta
v. Linn Cnty., Iowa, 191 F. Supp. 2d 1051, 1054 n.2 (N.D. Iowa
2002) (noting that its earlier opinion had concluded that "a
contractual relationship between a public and a private entity
may obligate the public entity to ensure that the private
entities with which it contracts comply with the public entity's
Title II obligations,,); James v. Peter Pan Transit Mgmt., Inc.,
No . 9 7 - 7 4 7 , 19 9 9 WL 7 3 51 7 3 , at * 9 ( E . D . N . C . Jan . 2 0 , 19 9 9 ) ( "A
public entity must not only ensure by contract that the private
entity with whom it contracts complies with title II, but
further, must ensure that the private entity complies with the
contract.,,); Deck v. City of Toledo, 56 F. Supp. 2d 886, 895
(N.D. Ohio 1999) (noting that public entity can be held liable
for failing to oversee its contractors, even if it did not
affirmatively intend to discriminate) .
In sum, the District has not presented any support for its
argument that it has no obligation to ensure that its private
contractors comply with its ADA and Rehabilitation Act
obligations, and all courts to address the issue have found that
they have such an obligation. Thus, the Court holds that
Plaintiffs may proceed on a theory that the District is directly
-18-
liable for its deliberate indifference to its obligations under
the ADA and the Rehabilitation Act.
b. Vicarious Liability
Plaintiffs also argue that the District can be held
vicariously liable for the deliberate indifference of its
contractors. The District concedes that a public entity can be
held liable under the ADA for the deliberate indifference of its
employees or agents. Mot. at 6 n.5. It argues, however, that the
other Defendants in this case are independent contractors for
whose actions it cannot be held liable. Id.
As a "general rule, 11
an entity is not held vicariously
liable for actions taken by an independent contractor.
Interstate Fire & Cas. Co. v. Wash. Hosp. Ctr. Corp., No. 13-
7024, 2014 WL 3538081, at *6 (D.C. Cir. July 18, 2014) (citing
W.M. Schlosser Co. v. Md. Drywall Co., 673 A.2d 647, 651 (D.C.
1996)). "In determining whether a person is an employee or an
independent contractor, District of Columbia courts consider
multiple specified factors. 11
Id. ( citations omit ted) . However,
the "decisive test is whether the employer has the right to
control and direct the servant in the performance of his work
and the manner in which the work is to be done. 11
Id. (internal
quotations and citation omitted) .
-19-
Plaintiffs allege that the District not only had the right,
but the obligation, to control and ensure its contractors'
compliance with the ADA and the Rehabilitation Act. Compl. ~~ 8,
10, 59, 96, 100. Plaintiffs then point out that the District's
argument that its contractors are independent is based on
factual disputes that are not and cannot be appropriately
resolved in a motion to dismiss. Beegle v. Rest. Mgmt. , Inc. ,
679 A.2d 480, 485-86 (D.C. 1996) (relying on information from
discovery to determine the nature of the employment relationship
between an individual and a company) i Anderson v. Wash. Metro.
Area Transit Auth., No. 91-646, 1991 WL 197024, at *2 (D.D.C.
1991) ("[W]hether or not the subcontractors were in fact
independent contractors cannot be determined on a motion to
dismiss.") . 10 Although the District may again raise the issue of
its relationship to its contractors after discovery, Plaintiffs
have sufficiently pleaded facts that, in conjunction with "the
benefit of all reasonable inferences" Aktieselskabet AF 21., 525
10
Moreover, even if the contractors are found to be independent,
the District may still be held vicariously liable under various
exceptions to the independent contractor rule. See Cooper v.
U.S. Gov't & Gen. Servs. Admin., 225 F. Supp. 2d 1, 5 (D.D.C.
2002) (noting that the rule is "riddled with exceptions
specifying certain conditions under which employers may be held
vicariously liable," including an exception for "non-delegable
duties arising out of some relation toward the public")
(citing Restatement (Second) of Agency, § 219 (1958)).
-20-
F.3d at 17, allow them to proceed on their theory of vicarious
liability at this time.
3. The District's Remaining Arguments Lack Merit
The Court will briefly address the remaining arguments
raised by the District.
First, the District argues that various allegations in the
Complaint are inconsistent. Mot. at 8-9. The Federal Rules
expressly permit parties to plead in the alternative. Fed. R.
Civ. P. 8 (d) (2) ("A party may set out 2 or more statements of a
claim or defense alternatively or hypothetically, either in a
single count or defense or in separate ones. If a party makes
alternative statements, the pleading is sufficient if any one of
them is sufficient."). Moreover, the Rules specifically permit a
party to "state as many separate claims or defenses as it has,
regardless of consistency." Fed. R. Ci v. P 8 (d) (3) . Therefore,
any inconsistency in Plaintiffs' allegations is not a basis to
dismiss their claims.
Second, the District argues that various "sub-counts" of
the Complaint are not pleaded with specificity. Mot. at 9-11.
This argument, too, misunderstands the relevant requirements.
Plaintiffs need merely include a "short and plain statement of
the claim," Fed. R. Ci v. P. 8 (a) (2) , sufficient to put a
defendant on notice of the claims against it. Kingman Park Civic
-21-
Ass'n v. Williams, 348 F.3d 1033, 1040 (D.C. Cir. 2003) (" [T]he
complaint need only set forth a short and plain statement of the
claim giving the defendant fair notice of the claim and the
grounds upon which it rests.") (internal quotations and
citations omitted) .
Plaintiffs submitted a detailed Complaint, and each claim
specifically incorporates all of the facts alleged. Compl.
~~ 97, 104, 111, 119, 130, 143, 149. Moreover, rather than lack
specificity, the "sub-counts" identify the various theories
Plaintiffs intend to pursue as to each claim. Id. ~~ 101, 108,
116, 122-124, 140. Thus, Plaintiffs have provided more notice
and information than is required by the Rules, and this is not a
basis to dismiss these claims.
In sum, none of the District's remaining arguments support
a dismissal of Plaintiffs' claims.
4. Plaintiffs Have Sufficiently Alleged That COH Is
a "Public Entity"
COH argues that it is not subject to the ADA because it is
not a "public entity." COH Mot. at 5-8. 42 U.S.C. § 12131
defines a "public entity" as "any State or local government,"
and "any department, agency, special purpose district, or other
instrumentality of a State or States or local government." 42
-22-
u.s.c. § 12131 (1) (A) I (B) . The term "State" includes the
District of Columbia. Id. § 12103(2).
The TAM notes that, "[i]n some cases, it is difficult to
determine whether a particular entity that is providing a public
service . is in fact a public entity." TAM § II.l.2000. It
then lists four factors to be considered in examining "the
relationship between the entity and the governmental unit to
determine whether the entity is public or private":
1) Whether the entity is operated with public funds;
2) Whether the entity's employees are considered
government employees;
3) Whether the entity receives significant assistance
from the government by provision of property or
equipment; and
4) Whether the entity is governed by an independent
board selected by members of a private organization
or a board elected by the voters or appointed by
elected officials.
Id.
It is undisputed that Plaintiffs have alleged that COH is
"operated with public funds," and that COH "receives significant
assistance from the government by provision of property." See
Compl. ~ 11. COH argues that this is insufficient because
Plaintiffs have failed to allege that COH "employs government
employees or is governed by a board elected by voters or
appointed by elected officials." COH Mot. at 8.
-23-
The TAM does not state that all four factors must be
satisfied for an entity to be considered "public." Rather, it
notes that all four are "[f]actors to be considered. TAM
§ II.1.2000. Thus, COR's insistence that Plaintiffs' claim must
fail because they have not alleged all four of these factors
lacks merit.
COH cites a number of cases that concluded -- on motions
for summary judgment on a full factual record that a
particular entity is private. See COH Mot. at 6-7 (citing Edison
v. Douberly, 604 F.3d 1307, 1311 (11th Cir. 2010); Green v. City
of New York, 465 F.3d 75, 79 (2d Cir. 2006); Maxwell v. S. Bend
Work Release Ctr., 787 F. Supp. 2d 819, 822 (N.D. Ind. 2011);
Obert v. The Pyramid, 2005 WL 1009567 (W.D. Tenn. 2005); Doe v.
Adkins, 110 Ohio App. 3d 427, 434-35 (1996)).
COH argues that the analysis relied on in these cases
should be applied here. Given that there is no full factual
record in this case and that Plaintiffs have alleged sufficient
facts that, in combination with "all reasonable inferences" in
Plaintiffs' favor, support their claim that COH is a public
entity providing a public service, the Court will not dismiss
the ADA claim against COH at this time. See Aktieselskabet AF
21., 525 F.3d at 17 (internal quotations and citations omitted).
-24-
5. Plaintiffs Have Sufficiently Alleged that COH Is
a Recipient of "Federal Financial Assistance"
COH also argues that it is not subject to the
Rehabilitation Act because it does not receive "federal
financial assistance." COH Mot. at 13-15. Relying on cases from
other Circuits, COH argues that "purely compensatory payments"
do not constitute federal financial assistance, but "payments
that include a subsidy" do constitute such assistance. COH Mot.
at 13-14 (citing Jacobson v. Delta Airlines, Inc., 742 F.2d
1202, 1209 (9th Cir. 1984), and DeVargas v. Mason & Hanger-Silas
Mason Co., Inc., 911 F.2d 1377, 1382 (lOth Cir. 1990)).
Those cases held that courts should look to whether the
federal entity providing the alleged assistance intended "to
provide assistance or merely to compensate." Jacobson, 742 F.2d
at 1210; DeVargas, 911 F.2d at 1382-83; see also Shepherd v.
U.S. Olympic Comm., 94 F. Supp. 2d 1136, 1146 (D. Colo. 2000)
(noting that "[t]he test to determine whether a government
transfer of money to an entity is a subsidy is whether Congress
or the federal agency administering the program intended to
subsidize the entity.")
Plaintiffs allege that COH "receives federal and District
funds for homeless programs, health programs and other programs
and services." Compl. ~ 11. In addition, they allege that COH
-25-
"has received substantial recent federal grants from [the
Departments of Health and Human Services] and [Housing and Urban
Development]." Compl. ~ 11. Health and Human Services ("HHS")
has promulgated a regulation specifically noting that grants of
funds are federal financial assistance. 42 C.F.R. § 84.3 (h) (1).
For purposes of this motion to dismiss, these allegations, in
conjunction with the HHS regulation, are sufficient to support
Plaintiffs' claim that COH receives federal financial
assistance. See Shepherd, 94 F. Supp. 2d at 1146-47 (denying
defendant's argument that claim should be dismissed as a matter
of law where plaintiff alleged defendant received federal grant,
based on "the broad definition of "financial assistance" in
Jacobson, cited with approval by the Tenth Circuit in DeVargas,"
and concluding that plaintiff "should be allowed the benefit of
discovery").
Therefore, the Court will not dismiss the Rehabilitation
Act claims against COH at this time.
6. Summary
Plaintiffs have sufficiently pleaded claims under both the
ADA and the Rehabilitation Act for both declarative relief and
compensatory damages.
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B. Count II: Plaintiffs Have Sufficiently Alleged a Claim
Under the Fair Housing Act
In 1968, Congress passed the Fair Housing Act ("FHA") as
Title VIII of the Civil Rights Act. Pub. L. 90-284, Title VIII,
§ 804, 82 Stat. 83 (1968), codified at 42 U.S.C. § 3601 et seq.
As originally enacted, the FHA prohibited discrimination based
on race, color, religion, or national origin. Id.; see also City
of Edmonds v. Oxford House, Inc., 514 U.S. 725, 728 n.1 (1995).
The Supreme Court has emphasized that the language of the FHA is
"broad and inclusive," and must be given a "generous
construction." Trafficante v. Metro. Life Ins. Co., 409 U.S.
205, 209, 212 (1972); see also Samaritan Inns, Inc. v. Dist. of
Columbia, 114 F.3d 1227, 1234 (D.C. Cir. 1997).
In 1988, Congress amended the FHA to extend coverage to
individuals with disabilities. See The Fair Housing Amendments
Act of 1988, Pub. L. No. 100-430, 102 Stat. 1619. The Act's
definition of discrimination was expanded to include "a refusal
to make reasonable accommodations in rules, policies, practices,
or services, when such accommodations may be necessary to afford
[handicapped persons] equal opportunity to use and enjoy a
dwelling." 42 U.S.C. § 3604 (f) (3) (B).
As a preliminary matter, Plaintiffs make clear that their
FHA claim is a "failure to accommodate" claim. Compl. ~ 108 (c)
-27-
(citing 42 U.S.C. § 3604 (f) (3) (B)); Opp'n at 26. Such "failure
to accommodate" claims do not require proof of intentional
discrimination. See Cinnamon Hills Youth Crisis Ctr. , Inc. v.
St. George City, 685 F.3d 917, 922-23 (lOth Cir. 2012) ("A claim
for reasonable accommodation does not require the
plaintiff to prove that the challenged policy intended to
discriminate . ") . The District argues to the contrary
relying solely on 2922 Sherman Ave. Tenants' Ass'n v. Dist. of
Columbia, 444 F.3d 673 (D.C. Cir. 2006) which does not even
address any failure to accommodate claims. Thus, the District's
argument that Plaintiffs' FHA claims fail for failure to allege
intentional discrimination lacks any merit and no case law
supports it. See Mot. at 15-16.
Moreover, the District is incorrect that Plaintiffs'
characterization of their FHA claims as "failure to accommodate"
claims constitutes an abandonment of any other claims. Reply at
11. A failure to accommodate is a form of discrimination under
3604 (f) (3) i sections (f) (1) and (f) (2) set out different
conditions under which such discrimination is unlawful. 42
u.s.c. § 3604 (f) . Plaintiffs are pursuing "failure to
accommodate" claims under both subsections (f) (1) and (f) (2).
The Court will now turn to the substantive arguments raised
by the District and COH.
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1. "Dwelling"
The District and COH argue that neither DC General nor the
Girard Street Apartments is a "dwelling" under the FHA. The FHA
defines a "dwelling" in relevant part as "any building,
structure, or portion thereof which is occupied as, or designed
or intended for occupancy as, a residence by one or more
families." 42 U.S.C. § 3602(b).
The FHA does not, however, define "residence." Most courts
that have considered the scope of the term have relied on the
definition used in United States v. Hughes Memorial Home, 396 F.
Supp. 544 (W. D. Va. 197 5) , which is "a temporary or permanent
dwelling place, abode or habitation to which one intends to
return as distinguished from the place of temporary sojourn or
transient visit." Id. at 549 (citing Webster's Third New
International Dictionary); see Defiore v. City Rescue Mission of
New Castle, No. 12-1590, 2013 WL 7157990, at *3 (W.D. Pa. Dec.
12, 2013); Jenkins v. New York City Dep't of Homeless Servs.,
643 F. Supp. 2d 507, 517-18 (S.D.N.Y. 2009) (noting that courts
"have continued to look to the Hughes 'plain meaning' analysis
in determining what constitutes a dwelling under the FHA") aff'd
on other grounds, 391 F. App'x 81 (2d Cir. 2010); Woods v.
Foster, 884 F. Supp. 1169, 1173 (N.D. Ill. 1995) (listing cases
citing Hughes).
-29-
Applying the definition used in Hughes, several courts have
concluded that temporary homeless shelters are "dwellings" under
the FHA. Defiore, 2013 WL 7157990, at *3-*4; Boykin v. Gray, 895
F. Supp. 2d 199, 207 (D.D.C. 2012); Jenkins, 643 F. Supp. 2d at
517-18; Woods, 884 F. Supp. at 1173-74. Other courts have noted
without deciding that it is likely that at least some temporary
shelters are "dwellings." Cmty. House, Inc. v. City of Boise,
490 F.3d 1041, 1044 n.2 (9th Cir. 2007) (en bane).
The District and COH argue that this Court should instead
rely on two cases that concluded that temporary homeless
shelters were not "dwellings." The first case, Johnson v. Dixon,
786 F. Supp. 1 (D.D.C. 1991), is not persuasive, since it merely
expressed "doubt" that an emergency overnight shelter would
qualify as a dwelling, and then assumed without deciding that it
did so for purposes of its analysis. Id. at 4. This expression
of "doubt," with no analysis, is neither holding nor persuasive
dicta. In any event, it is certainly not, as Defendants argue,
"the law of this Circuit."
The second case, Intermountain Fair Hous. Council v. Boise
Rescue Mission Ministries, 717 F. Supp. 2d 1101 (D. Idaho),
aff'd on other grounds, 657 F.3d 988 (9th Cir. 2011), concluded
on a motion for summary judgment, not a motion to dismiss, that
a particular homeless shelter did not qualify as a "dwelling."
-30-
Id. at 1109-12. The procedural distinction between that case and
this one is significant. To justify its conclusion, the
Intermountain court analyzed many specific factors regarding the
terms of residence at the shelter - a factual analysis that is
clearly inappropriate at this stage in these proceedings. See
Abigail Alliance for Better Access to Developmental Drugs v. Von
Eschenbach, 495 F.3d 695, 723 (D.C. Cir. 2007) (noting that
factual questions were "not properly resolved at the motion-to-
dismiss stage when all reasonable inferences must be drawn to
the plaintiff's benefit").
Moreover, the facts upon which the Intermountain court
based its conclusion are very different from the facts alleged
here. The court relied on the following evidence:
[G]uests of the shelter are not charged a fee for
staying in the shelter; are assigned a bed in a
dormitory-style room, a hallway, or the day room;
generally are allowed to stay for a maximum of
seventeen consecutive nights (except during the winter
months when the maximum stay is more flexible due to
the danger that cold weather presents to homeless
individuals during the night); are not guaranteed the
same bed each night they return; with limited
exceptions, are not allowed to stay at the shelter
during the day, are required to leave the shelter
every morning by 8:00 a.m., and may not return, except
for lunch, until 4:00 p.m.; are not allowed to leave
the shelter once they arrive in the evening; generally
are not allowed to stay at the shelter on a particular
evening if they do not check in during the designated
hours; are not allowed to personalize the bed area
assigned to them or leave belongings in their bed
area; and, with extremely limited exceptions, are not
-31-
allowed to receive phone calls, mail, or have visitors
at the shelter.
717 F. Supp. 2d at 1111.
In contrast, Plaintiffs allege that there is no time limit
set on how long residents can remain at either D.C. General or
the Girard Street Apartments, and that the Hunters expected to
remain there indefinitely. Compl. ~~ 42-43 (D.C. General); ~ 57
(Girard Street Apartments) . Indeed, the Hunters stayed at both
shelters longer than the seventeen-day maximum imposed by the
shelter at issue in Intermountain. Id. ~~ 37, 56 (alleging
Hunters stayed at D.C. General between December 7, 2011, and
December 29, 2011); ~~ 69, 88 (alleging Hunters stayed at Girard
Street Apartments between December 29, 2011, and March 12,
2 012) .
In addition, the Hunters allege that D.C. General provides
families with their own rooms, guarantees individuals the right
to access their rooms at all times of the day, allows families
to return to the same room each day, and permits families to
keep their belongings in their room. Id. ~ 43. The Hunters also
allege that Community of Hope gives each family its own
apartment- style room with a key, requires staff to give notice
before entering apartment units, and permits residents to
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decorate their units and place personal items in them. Id.
~~ 64-67.
All of these factual allegations support Plaintiffs' claim
that both D.C. General and the Girard Street Apartments are "a
temporary dwelling place, abode or habitation to which one
intends to return as distinguished from the place of temporary
sojourn or transient visit," Hughes, 396 F. Supp. at 549. Thus,
neither Johnson nor Intermountain supports dismissing
Plaintiffs' FHA claim at this time. See Boykin, 895 F. Supp. 2d
at 206-07 (rejecting District's reliance on Johnson and
Intermountain, and holding that the FHA was not categorically
inapplicable to homeless shelters).
In addition, the Department of Housing and Urban
Development ( "HUD") has promulgated a regulation which
explicitly identifies "sleeping accommodations in shelters
intended for occupancy as a residence for homeless persons" as
an example of a "dwelling unit." 24 C.F.R. § 100.201. HUD is
"the federal agency primarily charged with the implementation
and administration" of the FHA. Meyer v. Holley, 537 U.S. 280,
287 (2003) The District has offered no reason why the
regulation should not be entitled to the deference due
reasonable agency interpretations. See Chevron, 467 U.S. at 844;
see also United States v. Univ. of Neb. at Kearney, 940 F. Supp.
-33-
2d 974, 981 (D. Neb. 2013) (deferring to HUD's definition of
"dwelling unit"); Cmty. House, 490 F.3d at 1044-45 n.2 (noting
that "the regulations interpreting the coverage of the FHA
specifically contemplate that 'residences' within homeless
11
shelters qualify as 'dwellings'")
In sum, Plaintiffs have sufficiently alleged facts that,
with "the benefit of all reasonable inferences," Aktieselskabet
AF 21., 525 F.3d at 17, support their claim that both D.C.
General and the Girard Street Apartments were "dwellings" under
the FHA.
2. "Sale or Rental" and "Buyer or Renter"
The District and COH also argue that Plaintiffs have failed
to state a claim under the FHA because they are not "buyer[s] or
renters" who were discriminated against in the "sale or rental"
of a dwelling. Mot. at 11-12; COH Mot. at 10-13.
Plaintiffs bring claims under two subsections of the Fair
Housing Act. 42 U.S.C. § 3604 (f) (1) and (2). Both sections
11
COH argues that there is a distinction between a "dwelling
unit" and a "dwelling," COH Reply at 5-6, but it cites no
authority in support of that proposition. Moreover, HUD's
regulation on "reasonable accommodations" specifically uses the
term "dwelling unit." 24 C.F.R. § 100.204 ("It shall be unlawful
for any person to refuse to make reasonable accommodations in
rules, policies, practices, or services, when such
accommodations may be necessary to afford a handicapped person
equal opportunity to use and enjoy a dwelling unit, including
public and common use areas.").
-34-
require that the discrimination occur in connection with the
"sale or rental of a dwelling."
Some courts have noted the difficulties of establishing a
violation of section 3604(f) in the context of homeless
shelters. See Boykin, 895 F. Supp. 2d at 210 (expressing doubt
that FHA claim was cognizable given that former residents of a
homeless shelter were neither buyers nor renters)i Johnson, 786
F. Supp. at 4 ("Plaintiffs, and the other inhabitants of the two
shelters, are neither [buyers nor renters]. Such accommodations
as they have had at the shelters in the past have been provided
gratis by the District.") i see also Forziano v. Indep. Grp. Home
Living Program, Inc., No. 13-0370, 2014 WL 1277912, at *8 n.5
(E.D.N.Y. Mar. 26, 2014) ("Since [plaintiffs] are not renters or
buyers in their respective group homes, but rather receive
supervised housing as part of their Medicaid services, they
cannot state a claim for relief under the FHA.").
However, none of those courts addressed Plaintiffs'
argument that federally-funded shelters fall under the
definition of the term "to rent" in the FHA. The FHA defines "to
rent" as "to lease, to sublease, to let and otherwise to grant
for a consideration the right to occupy premises not owned by
the occupant." 42 U.S.C. § 3602(e). Plaintiffs allege that
Defendants receive federal funds, and argue that this
-35-
constitutes "considerationn for giving homeless individuals the
right to occupy rooms in homeless shelters. Opp'n at 23;
Statement of Interest at 25-26.
A handful of courts have considered this argument and found
it persuasive. See Woods, 884 F. Supp. at 1175 (holding that the
receipt of federal funds in return for providing shelter for the
homeless was sufficient to establish that defendants "rent[ed]n
the shelter); Anonymous v. Goddard Riverside Cmty. Ctr., Inc.,
No. 96-9198, 1997 WL 475165, at *3 n.4 (S.D.N.Y. July 18, 1997)
(assuming federal funds constitute consideration for housing for
purposes of resolving motion to dismiss) ; cf. Wai v. Allstate
Ins. Co., 75 F. Supp. 2d 1, 7 (D.D.C. 1999) (rejecting
contention that section 3604 (f) (2) "only applies to landlords or
providers of housingn).
Defendants argue that this Court should instead follow the
district court in Jenkins, 643 F. Supp. 2d at 519, which stated
that a "far more plausible reading of the statute would limit
the word 'rent' to consideration paid by the person who has the
right to occupy the dwelling.n However, the Second Circuit
specifically noted that the district court had "erred in
reaching the question of whethern the plaintiff was a renter
under section 3604 (f). 391 Fed. App'x 81, 83 (2d Cir. 2010)
(upholding district court's conclusion that plaintiff had failed
-36-
to state an FHA claim on other grounds) . Thus, the district
court's decision in Johnson has no precedential value on this
issue.
Moreover, the Court finds that this case is more similar to
Defiore, 2013 WL 7157990, in which the court observed that,
"[w]hat qualifies as consideration under the FHA has been
examined by a limited number of courts and this Court finds that
resolution of the issue will turn on whether [the shelter]
receives consideration for a resident's stay -- whether it be
from federal or other funding directed to subsidizing the costs
of providing housing to the homeless or whether shelter
residents provide some form of consideration for their stay."
Id. at *4.
In sum, Plaintiffs have alleged that the District and COH
receive federal funds in order to provide homeless individuals
with programs and services, including the right to occupy
certain premises. Compl. ~~ 8, 11. These allegations and "all
reasonable inferences" therefrom, Aktieselskabet AF 21., 525
F.3d at 17 (internal quotations and citations omitted), satisfy
the broad definition of "to rent" set out in the statute, 42
U.S.C. § 3602(e), particularly in light of the Supreme Court's
direction to give the statute "generous construction."
Trafficante, 409 U.S. at 209, 212.
-37-
This reading of the definition of "rent" makes sense in the
context of subsection (f) (2), which makes it unlawful to
"discriminate against any person in the terms, conditions, or
privileges of [] rental of a dwelling, or in the provision of
services or facilities in connection with such dwelling." 42
U.S.C. § 3604 (f) (2). Plaintiffs have alleged that they were
discriminated against in the provision of services or facilities
that appropriately accommodated A. H. Is handicap. Thus,
Plaintiffs have sufficiently stated a claim under subsection
3604 (f) (2).
A harder question is whether a broad construction of the
term "rent" can still save Plaintiffs' claim under subsection
3604(f) (1). That provision makes it unlawful to "discriminate in
the sale or rental, or to otherwise make unavailable or deny, a
dwelling to any buyer or renter because of a handicap." 42
u.s.c. § 3604 (f) (1).
The primary problem is that the discrimination in the sale
or rental under subsection (f) (1) must be to "any buyer or
renter." Id. Even under Plaintiffs' construction of the term
rent, the "renters" are the federal agencies that provide funds
to Defendants, not the Plaintiffs. The statutory language of
subsection (f) (1) seems to limit the scope of unlawful
-38-
discrimination to the entity buying or renting the dwelling in
question.
The United States argues that "courts have applied the FHA
to encompass a wide variety of conduct that does not involve a
refusal to sell or rent housing to owners or tenants." Statement
of Interest at 24 & 24 n. 16. It cites several cases that have
interpreted the phrase "otherwise make unavailable or deny" to
expand the scope of the FHA. The Court notes that cases in this
District have similarly found that section 3604 (a) reaches a
broad range of actors whose actions affect the opportunity to
buy or rent a dwelling. Greater New Orleans Fair Hous. Action
Ctr. v. Dep't of Hous. & Urban Dev., 723 F. Supp. 2d 14, 22-23
(D.D.C. 2010) (permitting plaintiffs to pursue claim that grant
program for disaster recovery prevented homeowners from
inhabiting their homes); Nat'l Cmty. Reinvestment Coal. v.
Accredited Home Lenders Holding Co., 573 F. Supp. 2d 70, 76-77
(D.D.C. 2008) (permitting claim against mortgage lenders); Nat'l
Cmty. Reinvestment Coal. v. Novastar Fin., Inc., No. 07-0861,
2008 WL 977351, at *1-*3 (D.D.C. Mar. 31, 2008).
However, these cases were brought under a different
subsection of section 3604, which makes it unlawful "[t]o
otherwise make unavailable or deny[] a dwelling to any person
because of race, color, religion, sex, familial status, or
-39-
national origin." 42 U.S.C. § 3604 (a) (emphasis added); compare
id. § 3604 (f) (1) (making it unlawful "to otherwise make
unavailable or deny[] a dwelling to any buyer or renter")
(emphasis added). See, e.g., N.A.A.C.P. v. Am. Family Mut. Ins.
Co., 978 F.2d 287, 301 (7th Cir. 1992) (holding that section
3604 "applies to discriminatory denials of insurance, and
discriminatory pricing, that effectively preclude ownership of
housing because of the race of the applicant"). Thus, these
cases do not provide support for the proposition that the
"otherwise make unavailable or deny" language in section
3604 (f) (1) means that Plaintiffs do not have to establish that
they were a "buyer or renter.,,
Even in light of the Court,s obligation to construe the FHA
as broadly as possible, the clear language of the statute
restricts the class of people who can bring a claim under
section 3604(f) (1) to a "buyer or renter," or, at its broadest,
individuals who were otherwise denied the opportunity to become
a buyer or a renter. There is no such allegation that the
Hunters fall into either category. Therefore, the Court must
conclude that the Hunters have failed to sufficiently allege
that the District or COH discriminated against them as "buyers
or renters" under 42 U.S.C. § 3604 (f) (1).
-40-
3. Summary
Plaintiffs have sufficiently alleged that the homeless
shelters at issue in this case should be considered "dwellings"
under the FHA. Plaintiffs have also sufficiently alleged that
Defendants received some consideration in exchange for
permitting them to reside in such dwellings, such that they can
proceed with their claim of discrimination under 42 U.S.C.
§ 3604 (f) (2). However, Plaintiffs have not sufficiently alleged
that they are "buyer[s]" or "renter[s]" such that they may bring
a claim under 42 U.S.C. § 3604 (f) (1).
C. Count IV: Plaintiffs Have Sufficiently Alleged Claims
Under the District of Columbia Human Rights Act
The Hunters argue that Defendants have violated several
provisions of the District of Columbia Human Rights Act
("DCHRA"), D.C. Code §§ 2-1401.01 et seq. The District of
Columbia Court of Appeals has noted that the DCHRA "is a
remedial civil rights statute that must be generously
construed." See Lively v. Flexible Packaging Ass'n, 830 A.2d
874, 887 (D.C. 2003) (quoting Executive Sandwich Shoppe, Inc. v.
Carr Realty Corp., 749 A.2d 724, 731 (D.C. 2000)).
The District and COH challenge Plaintiffs' six DCHRA claims
as deficient for different reasons. The Court shall address each
claim in turn.
-41-
1. Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code § 2-1402.21(d) (2), But Not § 2-
1402.21 (d) (1)
First, the District and COH argue that Plaintiffs' claims
under section 2-1402.21(d) of the DCHRA fail for the same
reasons that Plaintiffs' FHA claims fail; namely, that
Plaintiffs are neither "buyer [s] 11
nor "renter [s] 11
and that the
shelters at issue are not "dwellings. 11
See Mot. at 16-17; COH
Mot. at 15-16.
Defendants are correct that section 2-1402.21(d) makes
discrimination associated with the sale or rental of a dwelling
unlawful in language that parallels the analogous provision of
the FHA. Compare D.C. Code § 2-1402.21(d) with 42 U.S.C.
§ 3604 (f) . "District of Columbia courts interpreting the DCHRA
'have generally looked [for guidance] to cases from the federal
courts' arising under federal civil rights statutes. 11
Whitbeck
v. Vital Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997)
(quoting Benefits Comm'n Corp. v. Klieforth, 642 A.2d 1299,
1301-02 (D.C. 1994)); see also Paralyzed Veterans of Am. v.
Ellerbe Becket Architects & Eng'rs, P.C., 950 F. Supp. 393, 405
(D.D.C. 1996) ("The D.C. courts have always looked to cases from
the federal courts in interpreting the D.C. Human Rights Act,
and have followed, wherever applicable, precedents from the
-42-
federal courts' treatment of comparable civil rights statutes. 11
)
(citations omitted) .
As discussed above, see supra Sec. III.B.1, Plaintiffs have
sufficiently stated facts in their complaint to support their
claim that the shelters in question are "dwellings. 11
In
addition, although Plaintiffs have failed to sufficiently allege
they are "buyer[s] or renter [s] 11
to satisfy section 2-
1402.21(d) (1) of the DCHRA, there is no such language in section
2-1402.21(d) (2) of the DCHRA. See supra Sec. III.B.2 (discussing
difference in language between provisions of the FHA) . Thus,
because this section of the DCHRA and the FHA should be
interpreted in a parallel fashion, the Court concludes that
Plaintiffs may proceed on its claim that Defendants
discriminated against them in the "terms, conditions, or
privileges of sale or rental of a dwelling or in the provision
of services or facilities in connection with the dwelling
because of a disability, 11
D.C. Code § 2-1402.21(d) (2), but not
on its claim that Defendants discriminated against them under
section 2-1402.21(d) (1).
2. Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code§ 2-1402.2l(d) (3) (D)
In a footnote, the District argues that Plaintiffs have
failed to assert facts sufficient to support their claims
-43-
"regarding the accessibility of their units." Mot. at 17 n.13.
This argument seems to be challenging Plaintiffs' claim that
they were discriminated against under D.C. Code § 2-
1402.21 (d) (3) (D) . That section defines "unlawful discrimination"
to include a failure to ensure that premises within a dwelling
contain "[a] n accessible route into and through the dwelling,"
and "usable kitchens and bathrooms so that an individual in a
wheelchair can maneuver about the space." Compl. ~~ 123(a), (b);
see D.C. Code § 2-1402.21(d) (3) (D) (i), (iv).
Plaintiffs have sufficiently alleged facts to support a
claim that both D.C. General and the Girard Street Apartments
did not include accessible routes into the building and/or their
units. See Compl. ~ 46 (alleging that A. H. could not get into
front door of D.C. General because ramp is "excessively steep"
and sidewalk is broken); ~ 72 (ramp leading up to Girard Street
Apartments was not accessible for A. H.); ~ 73 (wheelchair lift
in Girard Street Apartments was broken) ; ~ 74 (no elevator in
Girard Street Apartments to get to third floor apartment); ~ 75
(hallways within Girard Street apartment were too narrow to
accommodate wheelchair) . They have also sufficiently alleged
that D.C. General did not include a usable bathroom. See id.
~ 47 (bathroom in D.C. General unsuitable for A.B.'s needs
-44-
because she had to be supported by Hunter and he could not hold
her and operate shower at same time) .
Thus, Plaintiffs have alleged facts sufficient to proceed
on their claims under sections 2-1402.21 (d) (3) (D) (i) and (iv) of
the DCHRA.
3. Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code§ 2-1402.3l(a) (1}
a. Intentional Discrimination
Plaintiffs allege that Defendants have violated section 2-
1402.31(a) (1) of the DCHRA, which establishes, among other
things, that it is an "unlawful discriminatory practice" to
"deny, directly or indirectly, any person the full and equal
enjoyment of the goods, services, facilities, privileges,
advantages, and accommodations of any place of public
accommodations" because of a disability. D.C. Code § 2-
1402.31 (a) (1) .
In a footnote, the District argues that this section of the
DCHRA requires a plaintiff to plead and prove intentional
discrimination. Mot. at 16 n.12. It is true that the DCHRA
includes language, which is not included in either Title III of
the ADA or Title II of the Civil Rights Act, 12 requiring that the
12
Defendants discuss Title III of the ADA, 42 U.S.C. § 12181 et
seq., which prohibits discrimination on the basis of disability
in the "full and equal enjoyment" of "any place of public
-45-
discriminatory act be "wholly or partially for a discriminatory
reason based on the actual or perceived . . disability." Mot.
at 16 n.12.
However, the parties have identified no case that discusses
a plaintiff's burden to prove a defendant acted "wholly or
partially for a discriminatory reason" under the public
accommodations section of the DCHRA. Even if the burden for
pleading intentional discrimination was the same in this context
as it is in the FHA context, the Court has already concluded
that Plaintiffs have met that burden at this stage. See supra
Sec. III.A.4. Therefore, the Court will allow Plaintiffs to
proceed on their claim against the District for discrimination
in the provision of public accommodations under D.C. Code § 2-
1402.31(a) (1) at this time.
b. "Place of Public Accommodation"
COH argues that the Girard Street Apartments are not a
"place of public accommodation" under the DCHRA. See COH Mot. at
16-17; COH Reply at 17. Specifically, it argues that the DCHRA's
enumerated list of "places of public accommodation" does not
accommodation." Mot. at 16 n .12 (discussing 42 U.S. C.
§ 12182 (a)). In addition, the Court notes that Title II of the
Civil Rights Act, 42 U.S.C. § 2000a et seq., also outlaws
discrimination in the provision of public accommodations. 42
U.S.C. § 2000a(a)
-46-
include a homeless shelter. Id. (citing D.C. Code § 2-
1401.02 (24)).
Section 2-1401.02(24) of the DCHRA defines places of public
accommodation as "all places included in the meaning of" a long
list of terms. D.C. Code § 2-1401.02(24) Although COH is
correct that homeless shelter is not one of the terms listed, a
member of this court has already noted that the term "place of
public accommodation" is defined "broadly" under the DCHRA and
"would seem to include homeless shelters." Boykin, 895 F. Supp.
2d at 217 n.16.
Moreover, the parallel provision defining "public
accommodation" under Title III of the Americans with
Disabilities Act, 42 U.S. C. § 12181, does include a homeless
shelter as an entity considered a public accommodation. 42
U.S.C. § 12181 (7) (K). Given that D.C. courts look for guidance
to the parallel federal civil rights statutes, see Boykin, 895
F. Supp. 2d at 219 (citation omitted), and in light of the
District of Columbia's determination that the DCHRA should be
"generally construed," Lively, 830 A.2d at 887, the Court
concludes that the Girard Street Apartments should be considered
a "place of public accommodation" under section 2-14 02. 31 (a) ( 1)
of the DCHRA.
-47-
4. Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code § 2-1402.73
Section 2-1402.73 of the DCHRA establishes, among other
things, that it is an "unlawful discriminatory practice for a
District government agency or office to limit or refuse to
provide any facility, service, program, or benefit" on the basis
of an individual's disability. D.C. Code § 2-1402.73. 13
Defendants argue that Plaintiffs have failed to allege
sufficient facts to support this claim. First, the District
argues that Plaintiffs have failed to sufficiently allege that
any District agency or office "limit [ed]" or "refuse [d]" any
service to the Hunters because no such agency or office
"directly interacted" with Plaintiffs. Mot. at 17; Reply at 13.
The text of the statute does not contain or suggest such a
"direct interaction" requirement. In George Washington Uni v. v.
D.C. Bd. of Adjustment, 831 A.2d 921 (D.C. 2003), the District
of Columbia Court of Appeals discussed the provision and noted
that it "appears to be directed at the administration of
District of Columbia government programs." Id. at 941 n.16.
Plaintiffs have alleged that they relied on the Department of
Human Services ( "DHS") and the Office of Shelter Monitoring
13
Another member of this court has noted that, "[t] here is a
dearth of case law respecting this provision, which became
effective in 2002, and the [c]ourt has not located any decisions
applying it." Boykin, 895 F. Supp. 2d at 218.
-48-
("OSM") to ensure compliance with federal and local anti-
discrimination provisions and to maintain records of shelter
inventory and information relating to their accessibility to
those with disabilities. Compl. ~~ 89-91. Construed in the light
most favorably to Plaintiffs, as this Court must, Aktieselskabet
AF 21., 525 F.3d at 17 (internal quotations and citations
omitted), these allegations support a claim that District
agencies refused to provide an appropriate "facility, service,
program, or benefit" to the Hunters based on A.H.'s needs as a
disabled individual. Therefore, the Court will not dismiss
Plaintiffs' claim under this section of the DCHRA on this basis.
Second, the District argues that homeless shelter services
are not the type of "services" covered by this provision. Mot.
at 17 n.14. In support of its argument, it cites only one case,
A Society Without a Name v. Virginia, 655 F.3d 342 (4th Cir.
2011). Society Without a Name construed the scope of the term
"services" under the FHA, 42 U.S.C. § 3604 (b) and (f) (2), to be
limited to "services generally provided by governmental units."
Id. at 349-50. However, the relevant section of the DCHRA is
much broader than the FHA provisions, encompassing "any
facility, service, program, or benefit." D.C. Code § 2-1402.73;
compare 42 U.S. C. § 3604 (b) (making unlawful discrimination "in
the provision of services or facilities") ; id. § 3 604 (f) (2)
-49-
(same) . Thus, the Court is not persuaded that Society Without a
Name provides an adequate basis to dismiss Plaintiffs' claim
under this section of the DCHRA at this time.
5. Plaintiffs Have Sufficiently Stated a Claim Under
D.C. Code § 2-1402.67
Section 2-1402.67 of the DCHRA states:
All permits, licenses, franchises, benefits,
exemptions, or advantages issued by or on behalf of
the government of the District of Columbia, shall
specifically require and be conditioned upon full
compliance with the provisions of this chapter; and
shall further specify that the failure or refusal to
comply with any provision of this chapter shall be a
proper basis for revocation of such permit, license,
franchise, benefit, exemption, or advantage.
D.C. Code § 2-1402.67. The District argues that Plaintiffs'
claim under this section fails for two reasons. 14
First, the District argues that because the Hunters have
failed to identify any particular document in which the District
14
The District notes for the first time in its reply that
section 2-14 02. 67 only references "permits, licenses,
franchises, benefits, exemptions, or advantages," but does not
specify "contracts." Reply at 13. Thus, it argues that the
Hunters' allegations regarding contracts are inherently
insufficient.
The District does not explain why the contracts at issue here
should not be considered "permits, licenses, franchises,
benefits, exemptions, or advantages." D.C. Code § 2-1402.67
(emphasis added) . Moreover, given the fact that the District
raised this argument for the first time in its reply brief, the
Court will not address it here. See supra n.7; see also St. Paul
Mercury Ins. Co. v. Capitol Sprinkler Inspection, Inc., 657 F.
Supp. 2d 243, 247 n.1 (D.D.C. 2009) (declining to address
argument that was raised for the first time in reply brief) .
-50-
did not condition compliance with the DCHRA 1 their claim must be
dismissed. Mot. at 18. However 1 the Hunters allege that the
District had contracts with the operators of the shelters.
Compl. ~ 9-10. They also allege that the operators discriminated
against them on the basis of disability/ in violation of the
anti-discrimination provisions of the DCHRA. Id. ~ 122.
Plaintiffs argue that these allegations that the shelters did
not comply with the DCHRA allow the Court to reasonably infer
that the District did not condition its contracts with the
shelter operators on compliance with the DCHRA. Opp n at 29. 1
The Hunters are correct that when these allegations are
read together 1 it is reasonable to infer that the District did
not condition the contracts on compliance with the DCHRA. 15 Thus/
the Court will not dismiss Plaintiffs/ claim under this
subsection of the DCHRA on that basis.
Second 1 the District argues that even if the Hunters have
sufficiently alleged a violation of section 2-1402.67 1 the claim
must be dismissed because the District has sovereign immunity
15
Moreover 1 the Court has already ruled that the contracts
between the District and the other Defendants will be reviewed
for the purpose of determining the relationship between the
Defendants. See supra Sec. III.A.4.b. Whether those contracts
contain a provision requiring compliance with the DCHRA can be
resolved definitively once those contracts have been exchanged
in discovery.
-51-
regarding "[e] nforcement of the DCHRA' s compliance requirement
for permits and licenses." Mot. at 19.
The doctrine of sovereign immunity protects the District of
Columbia from suit for its discretionary activities. Nealon v.
Dist. of Columbia, 669 A.2d 685, 690 (D.C. 1995) (citing Powell
v. Dist. of Columbia, 602 A.3d 1123, 1126 (D.C. 1992)).
"Generally, discretionary acts involve the formulation of
policy, while ministerial acts involve the execution of policy."
Nealon, 669 A.2d at 690.
Although the District describes the statute as "refer[ring]
to enforcement decisions," Reply at 14, the language of the
statute does not support that interpretation. Section 2-14 02. 67
states that the District "shall" condition its "permits,
licenses, franchises, benefits, exemptions, or advantages" on
compliance with the statute. D.C. Code § 2-1402.67. The word
"shall" creates a mandatory obligation, not a discretionary
ability to enforce. See Kakeh v. United Planning Org., Inc., 655
F. Supp. 2d 107, 123 (D.D.C. 2009) ("It is well-settled that
when a statute uses the term 'shall,' it creates a mandatory
duty."). The District fails to provide any convincing reason why
the use of the word "shall" in this statute suggests anything
other than a mandatory duty.
-52-
The crux of the Hunters' claim is not that the District
failed to enforce a provision it had in any particular contract
that required compliance with the DCHRA, but, instead, that it
failed to include such a provision at all. Because the statute
creates a mandatory duty to include such provisions, it should
be considered a ministerial duty and outside the scope of the
District's sovereign immunity. Nealon, 669 A.2d at 690 ("If the
act is committed in the exercise of a ministerial function, the
District is not immune.").
In sum, Plaintiffs have sufficiently alleged that the
District failed to comply with its mandatory duty to require
compliance with the DCHRA in issuing "permits, licenses,
franchises, benefits, exemptions, or advantages," and the
Plaintiffs' claim under this subsection of the DCHRA may
proceed.
6. Summary
Plaintiffs allege claims under six subsections of the
DCHRA. Although they may not proceed under section § 2-
1402.21 (d) (1), they have sufficiently pleaded facts to support
their other five claims.
-53-
D. Count V: Plaintiffs Have Not Sufficiently Alleged a
Claim Under the Homeless Services Reform Act
Defendants argue that Plaintiffs have failed to state a
claim under the Homeless Services Reform Act ("HSRA 11 ) , D.C. Code
§ 4-751.01 et. seq. The HSRA implements a "continuum of care, 11
defined as "the system of services for individuals and families
who are homeless or at imminent risk of becoming homeless and
designed to serve clients based on their individual level of
need. 11
Id. § 4-751.01(8). The statute establishes standards for
all providers of services to the homeless. Id. § 4-754.21
("Section 21 11 ) . The HSRA also requires that the District provide
"shelter in severe weather, 11
id. § 4-754.11(5), and specifies
additional standards required for providers of severe weather
shelter. id. § 4-754.22 ("Section 22 11 ) .
1. The District of Columbia Court of Appeals Has
Strictly Limited Private Rights of Action Under
the HSRA
The District's first argument is that Plaintiffs do not
have a private right of action under the HSRA. Section 4-
755.01(a) of the HSRA states that "no provision of this chapter
shall be construed to create an entitlement (either direct or
implied) to any services within the Continuum of Care,
other than shelter in severe weather conditions as authorized by
§ 4-754.11(5) . 11 Thus, the District insists that Plaintiffs'
-54-
claims under the HSRA, other than a claim based on a failure to
provide shelter during severe weather, are precluded.
The District of Columbia Court of Appeals has directly
addressed this section of the HSRA. In Baltimore v. District of
Columbia, 10 A.3d 1141 (D.C. 2011), former residents of a
homeless shelter brought suit under the HSRA arguing that the
District had failed to conform to the standards identified in
the statute as part of the "Continuum of Care." Id. at 1146-47.
The Court acknowledged that the statute created "standards" in
Section 21, but concluded that the legislature did not intend to
"create a direct or implied entitlement to any other particular
service" than the right to shelter in severe weather. Id. at
1143-44. Consequently, the District is correct that there is no
private right of action available to Plaintiffs other than an
action to enforce the right to shelter in severe weather.
The Hunters attempt to distinguish Baltimore on the ground
that they are not seeking any particular service, but instead
are seeking to enforce "non-service rights." Opp'n at 29-30 & 30
n.4. This distinction between service and non-service rights
appears nowhere in the statute, which lists all of the standards
in a single section without distinguishing between services and
non-services. Moreover, it is unclear how one would protect
"non-service rights," such as the right to be free from
-55-
discrimination, without putting them in the context of provision
of services. Indeed, Section 4-754.21(10) does precisely that by
requiring that shelters "[p]rovide services free from
discrimination II
D.C. Code § 4-754.21(10) (emphasis
added).
The District of Columbia Court of Appeals has interpreted
the scope of private rights of action under the HSRA narrowly,
and this Court is bound by that determination. See In re Sealed
Case (Medical Records), 381 F.3d 1205, 1211 n.5 (D.C. Cir. 2004)
(noting that the District of Columbia Court of Appeal's
interpretation of District of Columbia law is authoritative).
Therefore, Plaintiffs' claims under the HSRA, other than those
related to the right to shelter in severe weather, must be
dismissed. 16
2. Plaintiffs Have Not Sufficiently Pleaded a
Violation of the Right to Shelter in Severe
Weather
The Hunters allege that the District failed to place them
in a shelter that reasonably accommodated A. H. 's disabilities
during severe weather conditions. Compl. ~ 140 (h) (citing D.C.
Code § 4-754.11(5); see also id. ~~ 38, 138 (alleging that, when
16
Because the Court dismisses these claims, it need not address
the District's argument that these claims should also be
dismissed because it is not a "provider" under the HSRA. Mot. at
21-23.
-56-
the Hunters requested shelter, temperatures were below 32
degrees Fahrenheit); D.C. Code § 4-751.01(35) (defining "severe
weather conditions" to include when the temperature falls below
32 degrees Fahrenheit) .
The Hunters do not dispute that they were provided with
shelter during severe weather, but they argue that they were
entitled to shelter that complied with the standards set forth
in Section 21 and Section 22. Opp'n at 30. The District responds
that its obligation to provide shelter in severe weather does
not extend to the provisions of the Continuum of Care in Section
21. Mot. at 23 (citing Baltimore, 10 A.3d at 1150-51).
Section 21 states that providers shall "[p] rovide services
free from discrimination on the basis of . . disability," D.C.
Code § 4-754-21(10), and "[provide reasonable modifications,"
Id. § 4-754-21(11). However, Section 21 is the same section that
the District of Columbia Court of Appeals analyzed in Baltimore
and found to be a list of standards, rather than a list of
rights to which an individual was entitled. Baltimore, 10 A.3d
at 1151. Citing both Section 21 and Section 22, the Baltimore
court determined that the word "standards" suggested "norms or
what is acceptable or desirable, not a statutory entitlement."
The Baltimore court concluded that there was a statutory
entitlement to "shelter in severe or frigid weather," id., but
-57-
it did not identify the contours of that right because it found
that the plaintiffs in that case had failed to allege a denial
of shelter during severe weather conditions. Id. (noting that
the declarations did not reveal "any specific complaint about
the denial of other shelter during severe weather conditions").
Thus, despite the fact that plaintiffs in that case argued they
were entitled to a particular shelter during severe weather
conditions, the court found that the fact that they had received
some shelter was dispositive of their claim.
Similarly, Plaintiffs in this case have failed to allege
that they were not provided with shelter during severe weather.
Therefore, although there is a private right of action for
individuals to enforce their right to shelter in severe weather,
Plaintiffs have failed to sufficiently allege a denial of that
right.
Plaintiffs insist that mere shelter is insufficient - there
must be some substantive content to the right to ensure that the
shelter is "appropriate" or the right would be "meaningless."
Opp'n at 30-31 (citing D.C. Code § 4-753.01(c) (1)). Although
Plaintiffs are correct that there must be some substantive
content to the right, it does not follow that such a right
encompasses all of the "standards" set out in Section 21 of the
HSRA. As the District correctly points out, this would mean that
-58-
Plaintiffs would have a statutory entitlement to all services in
the Continuum of Care for emergency shelters, but no statutory
entitlement to services whatsoever in regular shelters.
Given the clear language of Baltimore, this Court must
conclude that, as a legal matter, individuals are not entitled
to all of the provisions listed in Section 21 as part of their
right to shelter in severe weather. Because the District of
Columbia Court of Appeals has held that the only private right
of action under the HSRA is a right to severe weather shelter,
and Plaintiffs have failed to allege a violation of that right,
their claim must be dismissed.
3. Exhaustion of Administrative Remedies
In the alternative, COH argues that Plaintiffs' claims
under the HSRA must be dismissed for failure to exhaust their
administrative remedies. It argues that Plaintiffs failed to
"exercise their appeal rights under the HSRA relative to their
request for respite care," and, hence, Plaintiffs "failed to
comply with the mechanism for relief provided for by the
HSRA [.]" COH Mot. at 18-19.
The statutory language of the HSRA does not require a
client to appeal a provider's decision. D.C. Code § 4-754.41(b)
(stating that "[a] client or client representative may request a
fair hearing") (emphasis added) . Rather, the HSRA imposes a
-59-
requirement on the Office of Administrative Hearings ( "OAH") ,
stating that OAH "shall grant a fair hearing to any client or
client representative who wishes to appeal a decision . and
who requests such a hearing, orally or in writing, within 90
days of receiving written notice of the adverse action." D.C.
Code § 4-754.41 (a) (emphasis added). Thus, the Court will not
conclude that Plaintiffs' HSRA claims should be dismissed
because they failed to exhaust their administrative remedies.
4. Summary
Plaintiffs have failed to sufficiently allege facts to
support its claim that its right to shelter during severe
weather was violated, the only claim under the HSRA for which it
has a private right of action.
E. Count VI: Plaintiffs Have Not Sufficiently Alleged a
Negligence Claim Against the District of Columbia 17
The elements of a cause of action for negligence are: "a
duty of care owed by the defendant to the plaintiff, a breach of
that duty by the defendant, and damage to the interests of the
plaintiff, proximately caused by the breach." Woods v. Dist. of
Columbia, 63 A.3d 551, 553 (D.C. 2013).
17
COH does not argue that the negligence claims against it
should be dismissed. See Answer to Counts VI and VII [Dkt. No.
78] .
-60-
In Count VI, Plaintiffs allege that the District
negligently breached duties imposed upon it by the DoJ
Settlement and th e HSRA . Comp l . fl
11 144. 18 In the D1' str1' ct of
Columbia, a suit against the District alleging negligence will
fail as a matter of law absent a "special duty" or "special
relationship" between the District and the plaintiff. 19 Id.
(quoting Warren, 444 A.2d at 3, 4); see also Klahr v. Dist. of
Columbia, 576 A.2d 718, 719 (D.C. 1990) ("Under the public duty
doctrine, a person seeking to hold the District of Columbia
liable for negligence must allege and prove that the District
owed a special duty to the injured party, greater than or
different from any duty which it owed to the general public.").
"The threshold for establishing a special relationship is
very high." Jefferies v. Dist. of Columbia, 917 F. Supp. 2d 10,
33 (D.D.C. 2013) (internal quotations and citation omitted).
18
Plaintiffs also allege that the District is vicariously liable
for the negligence of its contractors and agents in breaching
contractual duties. Id. ~ 147. However, this claim cannot
survive because "the mere negligent breach of a contract
is not enough to sustain an action sounding in tort." Curry v.
Bank of Am. Home Loans Servicing, 802 F. Supp. 2d 105, 109
(D.D.C. 2011) (quoting Towers Tenant Ass'n, Inc. v. Towers Ltd.
Partnership, 563 F. Supp. 566, 570 (D.D.C. 1983)). The District
cannot therefore be held vicariously liable for its contractors'
negligent breach of contract.
19
"The terms 'special relationship' and 'special duty' may be
used interchangeably," because "'a special relationship
imposes a special legal duty."' Powell, 602 A.2d at 1127 n.4
(quoting Warren v. Dist. of Columbia, 444 A.2d 1, 3 (D.C. 1981)
(en bane)) .
-61-
"If, based on reading the Complaint, the public duty doctrine
applies, the Court may appropriately dismiss the tort claims
under 12 (b) (6) for failing to state a claim. 11
Jefferies, 917 F.
Supp. 2d at 32 (D.D.C. 2013) (citing Warren, 444 A.2d at 1).
There are two exceptions to the public duty doctrine.
Jefferies, 917 F. Supp. 2d at 33; Snowder v. Dist. of Columbia,
949 A.2d 590, 603-04 (D.C. 2008). First, a plaintiff can allege
and prove two things: "((1) a direct or continuing contact
between [the plaintiff] and a governmental agency or official,
and (2) a justifiable reliance on the part of [the plaintiff] . 11
Jefferies, 917 F. Supp. 2d at 33 (quoting Klahr, 576 A.2d at
720). Second, a plaintiff can identify a "specific statute or
regulation that prescribes 'mandatory acts clearly for the
protection of a particular class of persons rather than the
public as a whole.' 11
Jefferies, 917 F. Supp. 2d at 34 (quoting
Turner v. Dist. of Columbia, 532 A.2d 662, 667 (D.C. 1987)). The
Court will refer to this as the second exception to the public
duty doctrine.
Thus, for Plaintiffs' negligence claim to survive, they
must sufficiently allege facts to support a conclusion that the
claim falls under one of the two exceptions to the public duty
doctrine.
-62-
1. First Exception: Contact and Justifiable Reliance
Plaintiffs argue that they have alleged facts sufficient to
support the first exception to the public duty doctrine: namely,
that they have sufficiently alleged "direct or continuing
contact" between themselves and the District of Columbia and
"justifiable reliance." Jefferies, 917 F. Supp. 2d at 33.
To sufficiently allege "contact," Plaintiffs must allege a
"direct transaction with the party injured or an arms-length
relationship in which the city's agent is dealing directly, in
some form, with the person injured." Id. (citing Powell, 602
A.2d at 1130). Plaintiffs argue that "the District, through its
agent contractors, maintained direct and continuing contact with
the Hunter family from the moment Mr. Hunter sought shelter."
Opp'n at 33. Mr. Hunter's first application for housing, as well
as his multiple requests for accommodations, all appear to be
"direct and personal transaction[s]" that satisfy this prong
under District of Columbia precedent. Powell, 602 A.2d at 1131
(finding that application and payment of fee to Bureau of Motor
Vehicle Services satisfied "contact" prong) ; see also Compl.
~ 37 (alleging Hunter applied for placement in a homeless
shelter at the District's central intake office); ~ 41 (alleging
certain statements made by Center staff to Hunter) ; ~ 78
-63-
(alleging conversation between Hunter and program director at
Girard Street Apartments) .
The District cites Powell for the proposition that "even a
series of contacts over a period of time is not enough absent
some showing that the agency assumed a greater duty to that
person than the duty owed to the public at large." Reply at 16
n.4 (citing Powell, 602 A.2d at 1130). However, the District of
Columbia Court of Appeals has clarified that the burden of
showing a "greater duty" than one owed to the public is
satisfied by also requiring proof of justifiable reliance.
Powell, 602 A.2d at 1131; Snowder, 949 A.2d at 604 n.12 (noting
that the two-part inquiry "takes this greater duty factor into
account by requiring justifiable reliance") . Thus, Plaintiffs
have sufficiently alleged "contact" with the District through
its agents. 20
To show "justifiable reliance," Plaintiffs must allege that
the District has "specifically undertaken to protect a
particular individual and the individual has specifically relied
upon the undertaking." Morgan v. Dist. of Columbia, 468 A.2d
13 06, 1315 (D.C. 1983) . It requires "particular or special
reliance," Powell, 602 A.2d at 1131 n.11, on some "affirmative
20
As discussed above, see supra Sec. III.A.4.b, the Hunters have
sufficiently alleged that the District's contractors are its
"agents" to proceed on that theory at this time.
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act[]" that uactually and directly worsened the plaintiff's
condition," Woods, 63 A.3d at 554 (internal quotations and
citation omitted) .
Plaintiffs argue that they justifiably relied on the
District's uaffirmative obligation" as set forth in Paragraph 24
of its Settlement Agreement with the DoJ. Opp'n at 34. However,
the Settlement Agreement specifically states that it is
uenforceable only by the parties" and that uno person or entity
may assert any claim or right as a beneficiary or protected
class" under the Agreement. Settlement Agreement ~ 37 [Dkt. No.
79-1]. Whatever the scope of the District's duties under the
Settlement Agreement, it is clear that signing the Agreement was
not an uaffirmative act[]" that uactually and directly worsened
the plaintiff's condition." Woods, 63 A.3d at 554 (internal
quotations and citation omitted) .
Plaintiffs identify no other portion of their Complaint
that alleges an uaffirmatively negligent act" as compared to a
ufailure to act." Snowder, 949 A.2d at 604. Therefore,
Plaintiffs have failed to sufficiently plead justifiable
reliance, and, thus, have not satisfied the first exception to
the public duty doctrine. See Woods, 63 A.3d at 554 (noting that
District of Columbia Court of Appeals uhas adhered to a strict
interpretation of the special relationship test, including the
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justifiable reliance prong") (quoting Taylor v. Dist. of
Columbia, 776 A.2d 1208, 1218 (D.C. 2001)).
2. Second Exception: Statute
In the alternative, Plaintiffs argue that they have
satisfied the second exception to the public duty doctrine,
because the HSRA is a specific statute that "prescribes
mandatory acts clearly for the protection of a particular class
of persons rather than the public as a whole." Jefferies, 917 F.
Supp. 2d at 34 (quoting Turner, 532 A.2d at 667); see Compl.
~~ 144-46 (alleging that HSRA imposes particular duties upon
Defendants) .
The District of Columbia Court of Appeals stated in Turner
that "if a state agency is required by statute or regulation to
take a particular action for the benefit for a particular class
and fails to do so, or negligently does so, and the plaintiffs
justifiably rely to their detriment on the agency's duty to act,
a cause of action in negligence will lie against the state or
its agency." Turner, 532 A.2d at 672.
In Turner, the District of Columbia Court of Appeals
concluded that the Child Abuse Prevention Act imposes "upon
certain public officials specific duties and responsibilities
which are intended to protect a narrowly defined and otherwise
helpless class of persons: abused and neglected children." Id.
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at 668. The Child Abuse Prevention Act specifies that District
officials act in certain ways to protect a special class, and
when officials breach those duties, "that statutorily protected
class suffers in a way uniquely different from the public at
large." Id.
Plaintiffs argue that the HSRA imposes certain duties and
responsibilities on the District in order to protect "disabled
individuals seeking shelter." Opp'n at 34 (citing D.C. Code § 4-
754.52 (a) (3), (b)- (d)). However, the District of Columbia Court
of Appeals has concluded that the HSRA does not create legally
enforceable obligations, but merely creates a list of standards.
See supra Sec. III.D.l. (discussing Baltimore, 10 A.3d 1141).
Therefore, the HSRA is not a statute that "prescribes mandatory
acts clearly for the protection of a particular class of persons
rather than the public as a whole." Jefferies, 917 F. Supp. 2d
at 34 (quoting Turner, 532 A.2d at 667).
The one mandatory act that is prescribed by the HSRA is to
provide shelter in severe weather. See supra Sec. III.D.2.
Plaintiffs failed to allege that they were, in fact, denied
shelter in severe weather. Id. Thus, Plaintiffs have not
sufficiently alleged that the District was required to "take a
particular action for the benefit for a particular class and
fail [ed] to do so [.]" Turner, 532 A.2d at 672 (emphasis added) .
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Consequently, even this portion of the HSRA cannot provide the
basis for the second exception to the public duty doctrine.
3. SUilllnary
Plaintiffs have failed to sufficiently allege facts to
support its negligence claim against the District, because it
has not demonstrated that either of the exceptions to the public
duty doctrine apply.
F. Count VII: Plaintiffs Have Not Sufficiently Alleged a
Negligence Per Se Claim Against the District of
Colwnbia
Plaintiffs also allege that Defendants "were negligent per
se in failing to meet their duties and obligations under the
ADA, FHA, Rehabilitation Act, DCHRA, and HSRA." Compl. ~ 150.
However, negligence per se is not in and of itself a
separate legal claim rather, it permits a plaintiff under
"certain circumstances and under specified conditions," to "rely
on a statute or regulation as proof of the applicable standard
of care." McNeil Pharm. v. Hawkins, 686 A.2d 567, 578 (D.C.
1996) (citation omitted) If the plaintiff can prove that the
defendant violated such a statute or regulation, it "renders the
defendant negligent as a matter of law so long as the
violation was the proximate cause of the injuries, and the
alleged injuries were of the type which the statute was designed
to prevent." Id. (internal quotations and citation omitted).
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"The decision to adopt from a statute a standard of care to
be applied in determining common law negligence" is a judicial
decision for the court to make. Id. at 579 (internal quotations
and citation omitted) . The Court must decide whether the statute
or regulation "promote [s] public safety and [was] enacted to
protect persons in the plaintiff's position or to prevent the
type of accident that occurred." Id. (internal quotation marks
and citation omitted) .
The District argues that the "gravamen of Plaintiffs'
claims is discrimination," and that the statutes they rely on
are intended to combat discrimination, not to prevent physical
harm. Mot. at 26-27. Plaintiffs identify no precedent supporting
their argument that anti-discrimination statutes such as the
ADA, the FHA, the DCHRA, and the Rehabilitation Act should be
considered statutes that "promote public safety."
Although neither party identifies cases evaluating whether
negligence per se should be applied to the FHA, the DCHRA, or
the Rehabilitation Act, cases addressing the ADA are
instructive. Multiple courts have found that the ADA is not a
public safety statute for purposes of the negligence per se
doctrine. See, e.g., McCree v. Se. Pa. Transp. Auth., No. 07-
4908, 2009 WL 166660, at *12 (E.D. Pa. Jan. 22, 2009)
(" [V] iolation of an ADA regulation may not be used as evidence
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of negligence per se in a personal injury action like this
one."); White v. NCL Am., Inc., No. 05-22030, 2006 WL 1042548,
at *5 (S.D. Fla. Mar. 8, 2006) ("Because the ADA was not
designed to protect those with disabilities from personal
injuries, Plaintiff is unable to state a claim for per se
negligence."); James v. Peter Pan Transit Mgmt., Inc., No. 97-
747, 1999 WL 735173, at *9 (E.D.N.C. Jan. 20, 1999) (concluding
that ADA was "enacted to 'provide a clear and comprehensive
national mandate for the elimination of discrimination against
individuals with disabilities,' and, thus, it was "unlikely that
the North Carolina courts would find that the ADA is a safety
statute or that violation of the ADA constitutes negligence per
se") (quoting 42 U.S.C. § 12101(b)); Dalgliesh v. Theatre Mgmt.
Grp., Inc., No. 96- 3985, 1999 WL 638127, at *1 (D.C. Super. May
28, 1999) ("Obviously, it would have been error if the court had
instructed the jury that evidence of the ADA and the applicable
C. F. R. violations constituted negligence per se, since the Act
was promulgated to prevent discrimination, not physical
injury.") .
Plaintiffs argue that accommodating the needs of disabled
individuals does have a "public safety" rationale. However, as
the court observed in White, "[w]hile protection from injury for
the disabled is no doubt a fortunate by-product of the ADA, it
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is clear that the statute was not designed with that purpose in
mind[.]" White, 2006 WL 1042548, at *5. The Court agrees and
concludes that the same rationale prevents the Rehabilitation
Act, the FHA, and the DCHRA from serving as the basis of a
negligence per se claim as well.
Plaintiffs argue that the HSRA subsection mandating that
the District provide shelter during severe weather is a "public
safety" statute. They may be correct, but, as discussed above,
see supra Sec. III.D.2, Plaintiffs failed to plead a claim under
that subsection. Moreover, in order to adopt a particular
standard of care, the statute must be "enacted to . prevent
the type of accident that occurred[.]" Sibert-Dean v. Washington
Metro. Area Transit Auth., 721 F.3d 699, 702-03 (D.C. Cir. 2013)
(quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 557
(D.C. Cir. 1993)). The relevant subsection of the HSRA is
directed at protecting individuals from exposure to severe
weather. There is no allegation that the injuries suffered by
the Hunters occurred because they were exposed to severe
weather. Therefore, even if that section of the HSRA "promotes
public safety," it still does not support a negligence per se
claim in this case.
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In sum, Plaintiffs have failed to identify a statute that
supports its negligence per se claim against the District, and
this claim must be dismissed.
IV. CONCLUSION
For the foregoing reasons, the District's Motion to Dismiss
shall be granted in part as to Counts V, VI, and VII, the
portion of Count II brought under 42 U.S.C. § 3604 (f) (1), and
the portion of Count IV brought under D.C. Code § 2-
1402.21 (d) ( 1) , and denied in part as to all other arguments;
Defendant COR's Motion to Dismiss shall be granted in part as to
Count V, the portion of Count II brought under 42 U.S.C. §
3604(f) (1), and the portion of Count IV brought under D.C. Code
§ 2-1402.21(d) (1), and denied in part as to all other arguments.
August 18, 2014 Gff:iaer I~
United States District Judge
Copies to: attorneys on record via ECF
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