With more than 40 new decisions in the last two weeks it hasn’t been easy getting this blog out. I’m not the only lawyer with too much to do too fast, as the following cases demonstrate.
The problem with industrial litigation
In a classic episode of “I Love Lucy” she and her friend Ethel get a job in a chocolate factory but find they can’t keep up with the assembly line and have to resort to stuffing chocolates in their mouths and shirts.³ I thought of their predicament when I read Garcia v. Hwangbo, 2021 WL 149086 (C.D. Cal. Jan. 15, 2021), one of hundreds of cases filed on behalf of Orlando Garcia by the “Center for Disability Access.” The problem with an assembly line practice is keeping up with the speed of the line, and Garcia’s lawyers found they couldn’t keep up on January 15 when Judge Olguin dismissed the Hwangbo case under the terms of a docket control order that required the defendants be served within 90 days of filing. More
Here’s a toast to the end of a bad year. I don’t know anyone who won’t be happy to see 2020 behind us, but it’s worth looking back at how the law of accessibility developed in the last year.
On October 9, which seems like an eternity ago based on the number of emails and texts I’ve gotten asking for contributions to various political parties and politicians, I reported on HUD’s new regulations on disparate impact claims published on September 24. It was a counterpoint to the decision in Connecticut Fair Housing Center v. CoreLogic Rental Property Solutions, LLC, 2020 WL 4570110 (D.Conn. August 7, 2020) holding that third party service providers could violate the FHA. I had to update the blog on October 22 when the National Fair Housing Alliance and others filed National Fair Housing Alliance v. Ben Carson, Secretary of the Department of Housing and Urban Development, Case No.3:20-cv-07388 in the United States District Court for the Northern District of California. That lawsuit attacked the legality of the new HUD regulations on numerous grounds. (the Complaint is 66 pages long). It wasn’t the only lawsuit in the works though. On October 25, 2020 the United States District Court for the District of Massachusetts entered a Preliminary Injunction staying the effect of the new HUD rule. Massachusetts Fair Housing Center et al v. United States Department of Housing and Urban Development, Case No. 3:20-cv-11765 (October 25, 2020). Judge Mastoianni found that the changes constituted a “massive overhaul of HUD’s disparate impact standards” to the benefit of housing providers and the detriment of buyers and renters. Of the three grounds for ultimately overturning the regulation Judge Mastoianni relied on only one; that the new rule was “arbitrary and capricious.” He found that the regulation went beyond the Supreme Court’s decision in Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 576 U.S. 519, 524 (2015), the leading case on disparate impact under the Fair Housing Act. Thus, it could not be justified as an effort to align regulations with case law. He also rejected HUD’s other reason for the regulation – that it provided greater clarity – on the ground that the new rule was far from clear.
On October 7, 2020 HUD filed a charge of discrimination against Fairfield Properties and Pinewood Estates at Commack Condominium because they denied an accommodation for two emotional support dogs. FHEO No. 02-17-5246-8. The Charge includes the facts, which don’t seem to be disputed. It does not include an explanation of how HUD thinks these facts constitute discrimination, but HUD’s thinking on the subject can be inferred from the Charge and shows why landlords and condominium or owners associations must be careful even when dealing with truly meritless requests. HUD is perfectly capable of making a charge of discrimination that cannot be reconciled with the text of the Fair Housing Act or the case law interpreting it. That’s hardly news, but it is worth remembering.