**CHAPTER 4**

**COMPLAINT INTAKE**

**4-1 INTRODUCTION**

This chapter provides guidance to staff involved in the complaint intake
process and covers the responsibilities of each Equal Opportunity
Specialist (EOS) who performs intake responsibilities, including how to
collect and review complaint information, interview aggrieved persons,
perfect complaints and recognize complaints that require special
processing.

Complaint intake begins when the Department first receives information
regarding an alleged discriminatory housing practice. This information
is called an inquiry. The words "claim" and "inquiry" have the same
meaning-- an allegation of a discriminatory housing practice that has
not been determined as jurisdictional. Title 24 of the Code of Federal
Regulations, Part 103 (24 CFR § 103), uses the term, "claim." TEAPOTS
uses the term "inquiry." For consistency, the Handbook uses "inquiry."

The EOS begins the investigation process by collecting information
necessary to determine whether HUD has jurisdiction under the Fair
Housing Act (the Act), other civil rights laws, or both, to investigate
the allegations contained in the inquiry. If the EOS determines that HUD
has jurisdiction, the EOS converts the inquiry into a complaint. If the
EOS determines that HUD does not have jurisdiction the inquiry is closed
and the person making the inquiry is notified of the closure. The EOS is
required to take actions and make decisions to ensure timely and
effective complaint processing. FHEO policy requires an EOS to process
inquiries within 20 days of receipt.

EOSs have the responsibility to educate aggrieved persons about the Act
and other civil rights laws enforced by HUD. The EOS must recognize all
civil rights laws relevant to the allegations included in an inquiry.
When an EOS converts an inquiry into a complaint, the complaint must be
filed under all relevant civil rights laws. A complaint filed under the
Act plus any other civil rights law(s) administered or enforced by HUD
is called a multi-jurisdictional complaint. Knowledge of civil rights
laws, rules and regulations enforced and administered by HUD, and the
ability to apply these laws to a particular set of facts and
circumstances is critical.

EOSs must enter all inquiries and the information collected concerning
the inquiry into the Title Eight Automated Paperless Office Tracking
System (TEAPOTS). TEAPOTS is HUD's official automated system for
processing and tracking fair housing complaints and is an important tool
for EOSs.

**4-2 THE INTAKE OPERATION**

A. The Intake Unit

Each Fair Housing Regional Office includes an Intake Unit staffed with
personnel properly trained to perform all complaint intake-processing
functions. The primary function of the Intake unit is to receive
inquiries and, when appropriate, convert them into complaints. Each
Intake Unit shall perform the functions listed below:

-   Receive and analyze incoming inquiries to determine whether HUD has
    jurisdiction under the Act or another civil rights statute;

-   Provide the aggrieved person with information about the coverage of
    the Act and other civil rights statutes and the Department's role in
    investigating and enforcing each law based on the allegations of the
    inquiry or complaint;

-   Identify situations that may require immediate attention such as
    complaints that require prompt judicial action, or complaints for
    which the statute of limitations is about to expire;

-   Record in TEAPOTS the method by which the aggrieved person learned
    about his or her right to file a fair housing complaint;

-   Identify complaints that should be "dual-filed" with HUD and with
    FHAP agencies;

-   Identify complaints that may require special processing, such as
    complaints raising First Amendment issues;

-   Appropriately refer matters that are not within HUD's jurisdiction;

-   Enter all inquiries and complaints into TEAPOTS to properly control
    and track incoming inquiries, correspondence and complaint activity;
    and

-   Assemble and maintain the case file during the time it is in Intake.

B. Customer Service during Intake

The Department's commitment to providing good customer service means
that intake personnel will perform the intake-processing function in a
proactive, consumer-oriented way. Intake personnel must be responsive to
the public. In addition to being knowledgeable about and having
responsibility for all facets of the complaint intake process, EOSs also
must be courteous and helpful and take the time to help aggrieved
persons understand the complaint process. Where HUD lacks jurisdiction
under the Act, EOSs must explain the basis for the determination and
inform aggrieved persons of other alternatives, where appropriate.

C. Reasonable Accommodations

Each Regional FHEO Office must make reasonable accommodations for a
disabled person who needs assistance in filing an inquiry or complaint.
Aggrieved persons may have a physical or mental disability that affects
their ability to read, speak or write. In addition, an aggrieved person
may have a physical or mental disability that requires sensitivity on
the part of intake personnel. Intake staff should make provisions for
assisting such individuals, whether they file in person or by telephone.
Further, every office receiving complaints must have a
Telecommunications Device for the Deaf (TDD) system in place in order to
receive inquiries and complaints from persons who are hearing-impaired
or deaf.

Each Regional Office should have a plan to accommodate persons with
disabilities. When a disabled person requests assistance in filing a
complaint or obtaining help from FHEO, the EOS must notify the
supervisor who will arrange for the acquisition of the services of
interpreters for the hearing impaired and readers for the visually
impaired through the Administrative Service Center, or other requested
accommodations.

D. Limited English Proficiency

> []{.mark}

Some clients may exhibit a limited ability to read or write the English
language. These clients may be treated as persons with limited English
proficiency (LEP). When HUD has no literature available in a language
that the clients can read or write, each office shall provide services
using the guidance that has been published on the HUD website at:
<http://www.hud.gov/offices/fheo/promotingfh/lep.cfm>. The website
includes Executive Order 13166, "Improving Access to Services for
Persons with Limited English Proficiency," HUD's guidance to implement
the Executive Order and best practices from our fair housing partners.

Each office should take reasonable steps to ensure that the LEP
population is served. For example if you are meeting with a client who
has LEP, you should use the "Language Identification Flashcard" that is
available through [www.lep.gov](http://www.lep.gov/). If you are unsure
what language a client speaks, show him or her this card. After the
client self-identifies the language he or she speaks, use HUD's online
interpreters. Online interpreters will provide over-the-phone
interpretation in 150 languages, 24 hours a day, seven days a week. To
access this interpreter service dial 1-866-800-0289, and follow the
instructions provided from the "Interactive Voice Response" unit.

**4-3 RECEIVING INQUIRIES**

Inquiries may be received at HUD Headquarters, and any Field or Regional
Office in person or by telephone, mail, facsimile or the Internet. The
EOS should review all inquiries, including the HUD 903.1, Housing
Discrimination Information Form, to determine whether the aggrieved
person's allegation(s) contains the elements required to establish
jurisdiction, as described in this Chapter. When an individual submits
an inquiry in person at Headquarters, or a field office that does not
have an Intake Unit, a copy of the interview and the aggrieved person's
data should be faxed or sent by electronic mail to the appropriate
Regional Office within one business day of receipt of the inquiry. The
EOS, Intake Supervisor and Regional FHEO Director will also review the
information to identify any First Amendment issues for referral to
Headquarters, FHEO Office of Enforcement (O/E). Callers who contact
Headquarters or a HUD Field Office that does not have an intake staff
should be provided with the toll-free number for the appropriate
Regional Office as well as any other civil rights information they
request.

Inquiries also may be filed with any FHAP agency for processing or
accepting of cases. Such complaints are considered dual-filed with a
FHAP agency under its own law and with HUD under the Act.

A. Inquiries Received by Telephone

Intake personnel shall accept telephone calls received by Regional Fair
Housing Offices regarding alleged discriminatory housing practices and
shall be available to respond to incoming inquiries during the entire
working day. A telephone answering machine, with messages in English and
where appropriate, in Spanish, should operate at all times, including
after official business hours. All information should be collected, and
the information read back to the aggrieved person. Although the Act
requires that a complaint be in writing, this requirement is satisfied
when the EOS takes the information by phone, enters the data into
TEAPOTS and processes a Housing Discrimination Complaint Form. The
Housing Discrimination Complaint Form should then be sent to the
aggrieved person by certified mail, return receipt requested, and by
regular mail, with a request that the complainant sign and return the
original signed complaint to HUD within 10 days.

B. In-Person Inquiries

In-person inquiry interviews should be conducted in a quiet, private
location. Inquiry information should be transcribed and the information
read back to the aggrieved person. The information should then be
entered into TEAPOTS and a Housing Discrimination Complaint Form
generated. The aggrieved person should be asked to sign the Housing
Discrimination Complaint Form. If the aggrieved person is unable to sign
the Housing Discrimination Complaint Form prior to leaving the office,
inform the aggrieved person that it will be mailed to him or her and
that the aggrieved person should return the original signed complaint to
HUD within 10 days.

C. Inquiries Received by Mail or Internet

Every attempt should be made to contact the aggrieved person, or the
aggrieved person's representative (if one has been identified) by
telephone, in order to obtain any missing or unclear information. The
allegation(s) should be entered into TEAPOTS as an inquiry and a Housing
Discrimination Complaint Form sent to the aggrieved person for signature
and return to HUD.

If the correspondence indicates that an attorney or an advocacy
organization represents the aggrieved person, the EOS should contact the
aggrieved person's representative to arrange a time to speak directly to
the aggrieved person. Information concerning the aggrieved person's
representative should be entered in TEAPOTS under the **Intake Tab:
Complainants/Claimants; Complainant's Representative,** and placed in
the case file under Tab B.

If the prospective aggrieved person has submitted documents in support
of his or her allegations, these documents must be included in the case
file and entered into TEAPOTS under the **Investigation Tab: Description
of Document**.

If an aggrieved person cannot be reached by telephone, the EOS should
write to the aggrieved person, or the aggrieved person's representative,
and request the information necessary to complete processing of the
inquiry. The aggrieved person should be informed that if the required
information is not returned to HUD within 10 business days of his or her
receipt of HUD's letter, the inquiry will be closed and no further
action will be taken with respect to the inquiry. Information requests
should be made by certified mail, return receipt requested.

Inquiries received by mail in Headquarters, or a Field Office that does
not have an Intake Unit, should be date-stamped to acknowledge the date
of actual receipt. The materials should be faxed or sent by electronic
mail to the appropriate Regional Office Intake Branch. The original
documents should be sent by mail to the Regional Office within one
business day.

D. Inquiries Received from a Substantially Equivalent State or Local
Agency

When an inquiry is first received by a FHAP agency under its fair
housing law or ordinance, and the aggrieved person alleges
discrimination cognizable under the Act, the agency will enter the data
as an inquiry into TEAPOTS within 5 working days. The EOS will review
the information in TEAPOTS to determine if the inquiry contains the four
elements of jurisdiction: timeliness, standing, jurisdiction over the
subject matter and jurisdiction over the respondent. The EOS, the
supervisor and the Regional FHEO Director will also review the
information to identify potential First Amendment issues that must be
referred to Headquarters for review by FHEO, O/E. If FHEO, O/E confirms
the presence of a First Amendment issue, the FHAP agency must be
notified that the complaint will not be accepted for dual filing. If the
complaint contains the elements that establish jurisdiction, and there
are no First Amendment issues, the inquiry will be accepted as
dual-filed and assigned a HUD case number. The Regional Office will
notify the agency within 5 working days of HUD's acceptance of the
inquiry as dual-filed and whether HUD has determined that other civil
rights authorities are applicable.

Some State and local agencies enforce statutes or ordinances that
prohibit discrimination based on protected classes that are not covered
by Federal law. Only inquiries based upon race, sex, color, religion,
national origin, disability and familial status can be accepted as
dual-filed with HUD.

**[SPECIAL NOTE]{.underline}**: During all interaction with the
aggrieved person, no matter how the inquiry is received, the EOS should
maintain a neutral attitude and never create an impression, by word or
conduct that HUD will act as an advocate for the aggrieved person.
Explain that HUD receives many inquiries and handles them as
expeditiously as possible.

**4-4 PERFECTING INQUIRIES INTO COMPLAINTS**

The process by which the necessary jurisdictional elements are
established to convert an inquiry into a complaint, and the complaint is
put into the required form, is called "perfecting the complaint."
Perfecting complaints consists of collecting information through a
variety of sources and using the information to produce a completed
Housing Discrimination Complaint Form. The EOS should begin the
complaint perfection process as soon as the supervisor assigns the
inquiry. The process should be completed within 20 calendar days, unless
the inquiry requires a First Amendment review or a Section 901 referral.
Perfecting complaints often includes a search for information about the
respondent(s) so that the correct respondent(s) can be named in the
complaint, and the complaint can be properly served on the named
respondent. Perfecting complaints also includes a search for information
to establish at intake whether HUD has jurisdiction over the allegations
and at least one person who can legally be held responsible for at least
one of the alleged acts of discrimination. Whenever information provided
by the aggrieved person does not satisfy the four required elements to
establish jurisdiction the EOS must contact the aggrieved person and
other appropriate sources, and request the information necessary to
perfect the complaint.

The EOS will use the same general principles and procedures for
collecting, screening, and analyzing inquiry information at intake,
regardless of whether the information was received by telephone,
Internet, in-person or mail. The critical factor is the accuracy and
thoroughness of the initial interview of the aggrieved person. It is
essential that the EOS obtain as much information as possible about the
aggrieved person's allegations at that time. The EOS needs to know and
understand the substantive and procedural provisions of the Act and
other civil rights laws enforced by HUD to best determine what
information is necessary and what questions to ask, as well as to
recognize which allegations may require rapid or special processing.

**4-5 WHEN IS AN INQUIRY CONSIDERED FILED AS A FAIR HOUSING ACT
COMPLAINT?**

An inquiry is filed as a complaint under the Act when the EOS determines
that sufficient information has been obtained to establish that the
aggrieved person's allegation(s) contain the four elements of
jurisdiction identified below in the Housing Discrimination Complaint
Form as prescribed by the Secretary, in accordance with Section 810(a)
of the Act.

**[SPECIAL NOTE]{.underline}**: The requirements for establishing
jurisdiction under HUD's other civil rights authorities may differ from
the requirements of the Act. See Chapter 6, Multi-Jurisdictional
Complaints.

The four elements, necessary to establish jurisdiction, are: standing,
timeliness, respondent jurisdiction and subject matter jurisdiction.

1\. [Standing]{.underline}

In order for any person to have standing, he or she must be an
"aggrieved person" as defined by the Act. The Act defines an "aggrieved
person" as any person who claims to have been injured, or is about to be
injured, by a discriminatory housing practice. The term "any person"
includes individuals and other entities such as corporations or
organizations, e.g., private fair housing organizations, disability
rights groups or homeowners' associations.

At intake, it is not necessary to obtain evidence proving that the
aggrieved person suffered an injury; the aggrieved person's assertion of
the injury is sufficient for the filing of the complaint. If an
aggrieved person does provide financial or other documentation
demonstrating the extent of his or her injury, the records should be
placed and secured in Section II.B. of the case file, Complainant's
Evidence. See Chapter 10, Preparation of the Case File.

> TEAPOTS contains a brief checklist for use in collecting information
> regarding the aggrieved person's injury. This checklist is found under
> the **Intake** **Tab**: **Other** **Questions** **for the Claimant**.
>
> In order to have standing the aggrieved person must allege that he or
> she has been injured by a discriminatory housing practice, or will be
> injured by a discriminatory housing practice that is about to occur.
> The aggrieved person must also specifically allege that the respondent
> based the unlawful discriminatory housing practice on the aggrieved
> person's race, color, religion, sex, national origin, familial status
> or disability, or that the respondent discriminated against the
> aggrieved person because the aggrieved person associated with one or
> more persons who belonged to one or more of the protected classes. The
> aggrieved person might be a white woman denied a rental after the
> property manager met her African-American foster child, or a
> non-disabled man denied the opportunity to purchase a home, who
> suspects the denial was because he planned to establish a group home
> that would house four disabled adults. In both of these examples, the
> alleged discrimination is tied to the protected class status of
> someone other than, but associated with, the aggrieved person. Another
> example is the case where an aggrieved person, not in a protected
> class, complains that a protected class has been excluded, thereby
> denying the aggrieved person the right of free association. The
> aggrieved person might be a white male complaining that
> African-Americans have been excluded from his apartment complex. The
> aggrieved person's basis for filing his or her complaint is entered in
> TEAPOTS under the **Intake Tab:** **Why Did It Happen**?
>
> **[SPECIAL NOTE]{.underline}**: If the basis is disability the EOS
> should use the disability questionnaire found in TEAPOTS under the
> **Intake** **Tab**: **Why** **Did** **It** **Happen?** This
> questionnaire lists the questions the EOS should ask at intake to
> determine whether the aggrieved person is a person with a disability
> within the meaning of the Act. This checklist covers only the
> questions necessary at intake to make a threshold determination of
> jurisdiction while being sensitive to the aggrieved person's privacy.
> An EOS may need to ask additional questions during the investigation.
>
> Any individual filing a complaint on behalf of an aggrieved person
> must present documentation that confirms that he or she has the
> authority to represent the interests of the aggrieved person. Examples
> of such documentation include a signed statement by the aggrieved
> person, or court orders appointing the individual as legal guardian,
> custodial parent, conservator or administrator on behalf of the
> aggrieved person.

2\. [Timeliness]{.underline}

> The Act requires that an aggrieved person must file the Title VIII
> complaint within one year of the date of the most recent occurrence of
> the alleged discriminatory housing practice. To determine whether an
> aggrieved person filed the complaint within one year of the most
> recent date of the alleged act of discrimination, begin counting from
> the day after the date of the alleged violation to the date of filing.
> One year includes all legal holidays and weekends.
>
> The date that the Intake Branch receives an inquiry is entered into
> TEAPOTS under the **Intake Tab: Date of Initial Contact.** The date
> that an inquiry is "perfected" (determined to be jurisdictional under
> the Act) is entered into TEAPOTS under the **Jurisdiction** **Tab**:
> **Date** **of** **Filing**. In situations where the statute of
> limitation is about to expire, the inquiry will be considered as
> perfected and the date of receipt will be considered the filing date.
>
> The EOS should ask the aggrieved person to indicate the specific date
> or dates on which the alleged discriminatory housing practice
> occurred. If the aggrieved person alleges that the discrimination is
> continuing, the EOS should ask him or her to provide the date of the
> most recent discriminatory housing practice. This date is entered in
> TEAPOTS under the **Intake** **Tab**: **When** **Did** **It Happen?**
>
> The Act specifically allows a person to allege that a discriminatory
> act is about to occur, or that he or she will be subjected to
> retaliation if he or she exercises a right under the Act. Standing
> based upon an act of discrimination that has not yet occurred is
> sometimes difficult to discern. The EOS should seek the advice of a
> supervisor and consult with Regional Counsel when processing such
> complaints.

3\. [Respondent Jurisdiction]{.underline}

While HUD has jurisdiction over the vast majority of housing-related
transactions, the Act exempts some transactions from its coverage. These
include certain (1) single family houses owned by private individual
owners \[Sec. 803 (b)(1)\]; (2) religious organizations \[Sec. 807\];
(3) private clubs; and (4) housing for older persons \[Sec. 807\].
Information concerning respondent jurisdiction is entered into TEAPOTS
under three **Intake Tabs:** **Who discriminated? When did it happen?**
**Where Did It Happen?** Under the tab, "Who discriminated?", the EOS
should enter the name and address of the legal entity that owns the
property, and the names and addresses of the individuals or entities who
participated in the alleged act of discrimination. The EOS should also
ask the aggrieved person to provide copies of any applications, leases,
correspondence or other documents that may contain the name and address
of the individual, partnership or corporation.

The tab, "**Where did it happen?**" poses a series of questions designed
to assist the EOS in assessing whether the subject dwelling and/or the
respondent is exempt. However, there is often not enough information
available at the intake stage to accurately determine respondent
jurisdiction. Therefore, the EOS should always consult with his or her
supervisor before closing out an inquiry as non-jurisdictional based on
these exemptions.

> 4\. [Subject Matter Jurisdiction]{.underline}

The aggrieved person's statement should contain sufficient detail to
determine "subject matter" jurisdiction, i.e., whether the allegations
describe unlawful discrimination that would violate Sections 804, 805,
806 or 818 of the Act. Each separate allegation should be entered into
TEAPOTS under the **Intake Tab: What Happened?**

In addition to entering the information on jurisdiction in the TEAPOTS
screens listed above, the EOS should identify any issues concerning the
elements of jurisdiction that require additional investigation in
TEAPOTS under the **Investigation Screen: Investigation Planning;
Elements of Jurisdiction**. For a detailed discussion on issues
affecting jurisdiction see Chapter 3, Jurisdiction.

As stated earlier, the Act provides the Secretary with the authority to
establish the required form for the filing of fair housing complaints.
Complaints must conform to the regulations as set forth in 24 C.F.R. §
103. 30.

Under the regulations (24 C.F.R. § 103.30 (c)), Fair Housing complaints
must contain:

-   The name, address and telephone number (if any) of the aggrieved
    person;

-   The name and address of the respondent;

-   The date the aggrieved person believes the discrimination occurred;

-   The address and a description of the dwelling involved (if any); and

-   A description of the alleged discriminatory housing practice and a
    brief description of the facts and circumstances that cause the
    aggrieved person to believe that the respondent discriminated
    against him or her, including pertinent dates.

**[SPECIAL NOTE]{.underline}:** Every reasonable effort should be made
to obtain the aggrieved person's signature on the formal perfected
complaint as early in the process as possible, but the aggrieved
person's signature is *not* required for the conversion of an inquiry to
a complaint.

**4-6 AGGRIEVED PERSON INFORMATION**

The initial interview of the aggrieved person is one of the most
critical activities in the complaint intake process. The EOS must obtain
the information necessary to make an initial assessment of jurisdiction.
The EOS must also explain the investigation process to the aggrieved
person and make appropriate referrals when necessary.

A. Preliminary Information

The implementing regulations at 24 C.F.R. § 103.25 identify the
information that the aggrieved person should provide to HUD when filing
a complaint. Among other things, the aggrieved person should provide the
name, address and any telephone number of someone who will always know
where the aggrieved person can be reached. To obtain this information,
the EOS should:

1.  Ask the aggrieved person to provide his or her complete name and
    address and any telephone numbers where he or she can be reached.
    Check carefully for accuracy of spelling. Enter this information in
    TEAPOTS under the **Intake Tab: Complainant**. All names entered
    here will appear on the Housing Discrimination Complaint Form
    generated by TEAPOTS.

2.  Inform the aggrieved person that he/she must sign the Housing
    Discrimination Complaint Form. Generally, spouses, if both are
    aggrieved persons, should file a single, joint complaint. Note: A
    husband or wife may not sign the Housing Discrimination Complaint
    Form on behalf of his or her spouse. Both should sign the housing
    discrimination complaint if they are aggrieved persons.

3.  Ask the aggrieved person for the names of any other person or
    persons who may have been injured by the alleged discriminatory
    housing practice(s). Enter this information in TEAPOTS under the
    **Intake Tab: Other Aggrieved Persons**. Such persons might include
    children under the age of 18 who reside in the household.

4.  Ask the aggrieved person if there are any additional adults in the
    household, other than the aggrieved person's spouse, who may also
    want to file a complaint (e.g., a roommate, a sibling). If so,
    advise the aggrieved person to have that person contact the EOS. In
    any event, enter their names in TEAPOTS under the **Intake Tab:
    Witnesses**.

5.  Inform the aggrieved person that he or she should promptly notify
    the Regional Office and the investigator of any change in address,
    telephone number or contact person during the course of the
    investigation. The aggrieved person must be informed that failure to
    keep HUD apprised of his or her whereabouts might result in a
    dismissal of the complaint through administrative closure.

6.  Ask the aggrieved person for the name and telephone number of a
    contact person, such as a sibling or parent, through whom the
    aggrieved person can be reached. Enter this information into TEAPOTS
    under the **Intake Tab: Contact Person**.

**[SPECIAL NOTE]{.underline}:** Often, aggrieved persons continue to
look for housing at the time that they file their complaint, and may
move or be difficult to contact. Possible contacts might include friends
or relatives who will know the whereabouts of the aggrieved persons, as
well as current, former or prospective employers.

B. Information Concerning the Enforcement Process

The EOS should:

1.  Ask the aggrieved person to describe briefly the facts and
    circumstances that prompted the inquiry. Ascertain how the aggrieved
    person learned about fair housing and contacted HUD/FHEO. Record the
    referral source in TEAPOTS. The appropriate section is found behind
    the Complainant/Claimant screen.

2.  Briefly describe the complaint intake and investigation process,
    explain the coverage of the Act and the Department's role in
    enforcing the Act. Often, aggrieved persons have limited knowledge
    of the protections afforded by the Act.

3.  Explain the notification procedures to the aggrieved person. The
    aggrieved person needs to be made aware that under the Act; the
    respondent(s) will be notified of the complaint. It is important to
    emphasize this point to the aggrieved person, and distinguish
    between the notice requirements under the Act and the civil rights
    program statutes that permit aggrieved persons to file their
    complaints anonymously against HUD-funded recipients.

4.  Explain the referral process to the aggrieved person, if it appears
    that a complaint will be referred to a FHAP agency.

5.  Ascertain whether the aggrieved person wishes to file a complaint.

6.  If the Act clearly does not cover the alleged discriminatory housing
    practice or basis, but the aggrieved person believes that he or she
    is a victim of some form of discrimination that may be covered by a
    State statute or local ordinance (e.g., source of income, sexual
    preference, etc.), refer the aggrieved person to the appropriate
    State or local agency or private fair housing group that may be able
    to assist them. If it appears that the matter complained of does not
    fall within the jurisdiction of the Act or State or local laws,
    e.g., a landlord-tenant dispute, inform the aggrieved person of his
    or her right to seek advice from a private attorney. The EOS,
    however, should not refer the aggrieved person to a specific
    attorney. If the aggrieved person cannot afford an attorney,
    recommend that the aggrieved person contact a local non-profit legal
    aid society or lawyer referral service.

7.  If the aggrieved person does wish to file a complaint, obtain the
    necessary information to enter into TEAPOTS. Ensure that the
    information satisfies the requirements of the four basic elements of
    a filed complaint and establishes jurisdiction.

8.  Briefly describe the conciliation process to the aggrieved person.
    Explain that FHEO may attempt conciliation at any time, beginning
    with the filing of the complaint and ending with the filing of a
    charge or dismissal of a complaint. Explain that HUD must make a
    good faith effort to achieve a resolution of the complaint and
    obtain assurance that the respondent will satisfactorily remedy any
    discriminatory housing practices.

    C. Questions About the Respondent

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1.  For each specific violation alleged, an aggrieved person should name
    as respondents all persons who may be held liable for the
    discriminatory housing practice. Therefore, the aggrieved person
    should be asked with whom he or she had direct contact in the course
    of each alleged discriminatory action.

2.  Ask the aggrieved person about the employer of the person with whom
    the aggrieved person dealt directly.

3.  Ask the aggrieved person if he or she knows who might have had
    responsibility for creating the alleged discriminatory housing
    policy or practice.

4.  Ask the aggrieved person if he or she, or any respondent, receives
    any type of Federal housing assistance. If the answer is yes, other
    civil rights laws in addition to the Act may govern the respondent's
    actions. Attempt to identify the type of assistance that the
    aggrieved person or respondent receives. Check the box in TEAPOTS on
    the intake screen to indicate that Federal funding is involved.

    D. Other Important Information

Identify available evidence related to the alleged discriminatory act
and the injury. Ask the aggrieved person if he or she has any documents
relevant to the complaint and note the response in TEAPOTS. This will
alert the investigator to collect those documents, in addition to those
that may be obtained at intake. If the aggrieved person has the
documents in his or her possession during a personal interview, make
copies of the documents. Such documents should include any papers that
relate to the alleged discriminatory housing practice, (e.g., letters
concerning the issues, cancelled checks, applications, etc.) Aggrieved
persons should be advised to make photocopies of any documents they will
provide to HUD. The EOS should ask the aggrieved person to preserve and
retain the original documents. If the case involves a person seeking
housing, ask the aggrieved person to keep records of any further housing
searches. Remind the aggrieved person to retain any receipts or
documents relating to costs or other injury, financial or otherwise,
that he or she believes resulted from the alleged discriminatory
incident.

Ask the aggrieved person if he or she knows or has heard about any
individuals who the aggrieved person believes were treated either
differently or the same as the aggrieved person because of their race,
sex, national origin, color, religion, disability or familial status.
TEAPOTS includes in the Intake Screen special data boxes for recording
information on "Others Treated Differently" (than the aggrieved person)
and "Other Persons Treated the Same." Information about potential
comparators recorded in these data boxes will assist the investigator in
planning and conducting the investigation.

Conclude the interview. Upon concluding the interview, pertinent
information should be read back to the aggrieved person to make sure
that the information has been correctly recorded as provided by the
aggrieved person.

[A Housing Discrimination Complaint Form should be given to the
aggrieved person to sign if he or she is on-site or sent to the
aggrieved person, requesting that it be signed and returned to the
Regional Office within 10 days of receipt, or the inquiry may be closed
for failure to sign a Housing Discrimination Complaint
Form]{.underline}.

**[SPECIAL NOTE]{.underline}:** Throughout the complaint intake process,
it is critical that the EOS take good notes, record these notes in
TEAPOTS and safeguard and organize any records presented by the
aggrieved person. Hard copies of all complaint-related information
received during intake should be assembled and secured in the case file
before the case file leaves intake. For guidance in organizing intake
records see Chapter 10, Preparation of the Case File.

E. Aggrieved Person Wishes to File Anonymously

In cases where an aggrieved person requests that his or her name be
withheld, the EOS must explain that HUD cannot withhold a complainant's
name from a respondent. The Act does not provide for anonymous
complaints. The EOS must explain that the Act mandates that once the
complaint has been filed, HUD must notify the complainant and the
respondent. Each notification letter must include a copy of the original
complaint. Since the original complaint contains the name and the
signature of the complainant, HUD cannot comply with this notice
provision of the Act if it withholds the name and signature of the
complainant. The EOS should advise the aggrieved person that the Act
prohibits retaliation or reprisal for filing a complaint and that some
protective measures can be taken to not disclose the aggrieved person's
identity to persons other than the respondent. However, if federal
financial assistance is involved, Title VI and Section 504 allow for
anonymous complaints. See Multi-Jurisdictional Complaints at Section
4-11. The EOS should explain that aggrieved persons might choose to
forego their rights under the Act, and file a complaint under the
applicable civil rights program-related statute in order to obtain
anonymity.

It is important for aggrieved persons to understand that the parties
against whom a complaint is filed will have the opportunity to learn the
identity of the person who made the allegations, and the substance of
the allegations. This information will help aggrieved persons decide
whether they wish to proceed with the complaint filing.

**4-7 INFORMATION REGARDING THE RESPONDENT**

A. Identifying the Respondent

The Act defines a "respondent" as any person or entity accused of a
discriminatory housing practice. Obtaining accurate information about
the respondent named in a complaint may require more creativity and
research than other aspects of intake because the aggrieved person often
will not have complete information. It is not advisable to contact the
respondent before the complaint has been accepted as filed.

To obtain the best information on respondent(s), the EOS should:

1.  Ask the aggrieved person for the name, address and telephone number
    of potential respondents. If the aggrieved person does not know the
    names or addresses, attempt to get any other kind of identifying
    information: for example, the title of the person with whom the
    aggrieved person spoke, or a physical description of the person.

2.  Attempt to determine whether the respondent is a builder, owner,
    broker, salesperson, superintendent, manager, bank, lending
    institution, resident, tenant, etc., and enter the data in TEAPOTS.

3.  Attempt to establish who owns the subject property. If a business
    entity is identified as the owner, determine its proper legal name.
    Attempt to identify all of the entities and individuals who
    participated in the alleged discriminatory act who may be properly
    named as respondents. This may include a parent company, a
    management company, a real estate broker or rental agent or an
    employee of a respondent company.

4.  When the aggrieved person can provide only a property address and/or
    a commercial property name (e.g., "Huntington Towers"), the EOS
    should conduct a property search and name the owner of the property
    as a respondent. The complaint should be served on the owner. If the
    owner is a corporation the complaint should be served upon the
    registered agent of the corporation. If the owner is a partnership
    the complaint should be served on the general partner. The complaint
    **cannot** be served upon an address of a property or the name of
    the property. **Note**: Registered agents should not be named as
    respondents. If the EOS is having difficulty identifying the proper
    respondent, he or she should contact his or her supervisor and
    consult with Regional Counsel.

5.  The EOS should determine the role of those individuals who allegedly
    had a direct role in the discriminatory conduct. Those persons may
    be served with the complaint and may be named as respondents.
    Attorneys who represent a respondent should not be named as a
    respondent for alleged discriminatory acts. If an attorney allegedly
    participated in the alleged discrimination, the EOS should consult
    with Regional Counsel prior to naming the attorney.

If an inquiry is filed without an identifiable respondent, the EOS must
advise the aggrieved person that an inquiry cannot be perfected and
filed as a complaint unless a respondent can be identified. If a
respondent is not identified within the 20 days for perfecting a
complaint, the inquiry should be closed.

**[SPECIAL NOTE]{.underline}:** Although FHEO has accepted complaints
that name apartment complexes and other buildings as respondents, for
the purposes of filing a complaint, this practice must be avoided.
Neither buildings nor apartment complexes, nor any form of real or
personal property, can be named as a respondent in a Fair Housing Act
complaint. Complaints can be pursued only against legal persons--- a
building or an address is not a legal person.

######## B. Other Methods of Identifying a Respondent and/or a Respondent's Property {#b.-other-methods-of-identifying-a-respondent-andor-a-respondents-property .unnumbered}

1.  [Newspaper records]{.underline}: If a respondent advertised the
    subject dwelling in a newspaper, but did not disclose a name or
    property address, contact the newspaper to find out the name and
    billing address of the person who placed the advertisement. If
    necessary, this information can be subpoenaed.

2.  [Telephone Numbers]{.underline}: If the aggrieved person has a
    telephone number he or she used to contact the respondent and no
    other identifying information, telephone numbers can be researched
    to identify the holder of the telephone number who may be the
    respondent.

3.  [Property searches]{.underline}: County and municipal property
    records are useful resources to identify property owned by the
    respondent(s). Because such records may contain property
    descriptions, they also may be helpful in determining whether HUD
    has jurisdiction over the dwelling in question.

4.  [Corporate records]{.underline}: If it appears that a respondent is
    a corporation, the appropriate State or local corporate records
    office should be contacted to obtain information concerning the
    respondent's articles and/or certificate of incorporation, the legal
    name of the corporation, the names of the members of the Board of
    Directors, and the name and local address of a registered agent. The
    "registered agent" of a corporation is a person who has registered
    with the Secretary of State as the agent for one or more
    corporations or business entities, and who accepts service of
    process for those business entities. Where the registered agent's
    sole function is fulfilling the state's requirement to identify a
    person within the state for service of process, that person should
    **not** be named as a respondent although the complaint should be
    served upon the registered agent who must accept the complaint on
    behalf of the respondent. Many Secretaries of State maintain
    corporate databases that can be researched on the Internet.

5.  [Boards of Directors of Corporations]{.underline}: If a corporate
    respondent operates under the control of a Board of Directors, the
    corporation must be named as a respondent. The individual members of
    the Board should not be named as respondents, unless the facts
    presented during intake allege that these board members directly
    participated in the alleged discriminatory housing practice.

6.  [Boards of Directors of Unincorporated Associations]{.underline}: If
    an organization has not incorporated itself under the laws of any
    State, the individual board members may be named as respondents. If
    the discriminatory act resulted from a vote of the members of the
    unincorporated Board, those members who voted in favor of the action
    that produced the discrimination may be named as respondents.

If an EOS has questions about identifying the proper respondent, the EOS
should consult with Regional Counsel.

[**SPECIAL NOTE**:]{.underline} If an aggrieved person believes that he
or she has been injured by separate and distinct discriminatory actions
committed by two or more respondents in a "single transaction," a
separate complaint should be filed against each individual respondent
whose conduct can stand alone as a separate violation of the Act. For
example, a couple alleges that their real estate broker attempted to
"steer" them away from viewing available houses in a community because
of their race. After successfully negotiating the purchase of a dwelling
in that community, the same couple then alleges that a local lending
institution denied their purchase loan application, also based upon
their race. If the aggrieved persons want to file a complaint against
the broker and the lender in such situations, the EOS should advise the
aggrieved persons to file a complaint alleging a violation of Sections
804(a) and (c) against the broker. A second complaint alleging a
violation of Section 805 should be filed against the lender because of
the alleged discriminatory conduct of each respondent.

**4-8 NOTIFICATION OF THE RESPONDENT AND COMPLAINANT**

Section 810(a)(1)(B) of the Act requires HUD to serve notice of the
filing of a Title VIII complaint upon the aggrieved person(s) and on
each respondent. The regulations require service by CERTIFIED MAIL --
RETURN RECEIPT REQUESTED, or personal service. Written proof of service
requires the signature of the party or the party's agent, or an
affidavit or certificate of service from the neutral third party who
personally served the respondent.

TEAPOTS has been designed to generate the notification letters, which
will be mailed to the complainant and the respondent as contemplated by
the regulations. The notification letter to the complainant consists of
HUD's acknowledgment of receipt of the complaint for filing, the
designation of a complaint number, information relating to HUD's
processing procedures and the complainant's rights and obligations under
the Act. The respondent's notification letter must include a summary of
the respondent's procedural rights and obligations under the Act. To
constitute effective notice under the Act, a copy of the original
complaint must accompany the respondent's notification letter. Copies of
the computer-generated letters to the complainant and the respondent
must be placed in the paper case file, along with proof that the parties
received the notification letters either by certified mail or personal
service, i.e., proof of service. See also Chapter 10, Preparation of the
Case File.

The implementing regulations at 24 C.F.R. § 103.202(b)(5) provide for
notification of a person who is not named in the complaint, but who is
nevertheless being joined as an additional or substitute respondent. The
provision states that effective notice to such a respondent consists of
a copy of the complaint, and a notification letter that satisfies the
criteria set forth in 24 C.F.R. § 103.202(a) and (b) of the implementing
regulations for notifying additional or substitute parties. This notice
also includes an explanation of the basis for the Assistant Secretary's
belief that the person being joined is a proper party to the complaint.

**4-9 PROOF OF SERVICE**

In order to establish HUD's authority under the Act to issue a
determination and charge affecting the rights of a respondent, it is
necessary to demonstrate that the respondent was served with a
notification letter that satisfies the statutory requirements, and a
copy of a verified Housing Discrimination Complaint, prior to the
issuance of HUD's determination.

A. Proof of Personal Service upon a Party

Proof of personal service consists of a Certificate of Service, signed
and dated by a qualified process server. The Certificate of Service
should contain the date, the location where service was accomplished
(full address), a description of the circumstances under which service
was effected (e.g., "personally in hand," or otherwise). The Certificate
of Service should be placed in the Evidentiary Section of the case file,
Section II.A., Jurisdiction (see Chapter 10, Preparation of the Case
File), and the date and manner of service should be included in the
Final Investigative Report Summary of the Investigation.

B. Proof of Service upon a Party by Certified Mail

Proof of certified mail service consists of a completed Certified Mail
Return Receipt showing the date mailed, stamped with the date served,
and the signature (and receipt date) of the recipient. To assist in the
identification and tracking of individual records, always record the
case name and HUD file number on the face of the Certified Mail Return
Receipt. Signed green cards should be retained in the paper case file
and attached to the corresponding letters.

4-10 REFERRALS TO SUBSTANTIALLY EQUIVALENT AGENCIES

Section 810(f) of the Act requires HUD to refer complaints alleging
discriminatory housing practices to Fair Housing Assistance Program
(FHAP) agencies before taking any further action with respect to the
complaint. Any non-Title VIII complaints in multi-jurisdictional cases
(e.g., Title VI, Section 504, Section 109 complaints, etc.) should not
be referred to FHAP agencies. At a minimum, processing of these cases
and findings should be coordinated for consistency. HUD should strongly
consider reactivating the Title VIII component of a multi-jurisdictional
complaint.

The following intake procedures should be followed for complaints that
HUD must refer to a FHAP Agency:

1.  For complaints that will be referred to a FHAP agency, review the
    specific allegations and bases contained in the complaint to
    determine whether:

    a.  HUD has jurisdiction over the allegations in the complaint; the
        agency has jurisdiction over the complaint;

    b.  The complaint should be referred or processed by HUD; and

    c.  The complaint involves other civil rights authorities that
        should be investigated by FHEO.

> If the FHAP agency has jurisdiction over the complaint, ensure that
> the complaint is referred to the agency for further processing in
> accordance with the terms of the Memorandum of Understanding or
> Interim Agreement, and the Cooperative Agreement in effect between the
> agency and HUD. The terms of these written agreements should govern
> all referrals and dual-filings.

2.  Record the status of the complaint by entering the appropriate
    processing information in the TEAPOTS system and in any other
    referral record-keeping systems maintained by the Intake Unit.

3.  All complaints identified for referral should be transmitted to
    agencies through the TEAPOTS system and by certified mail, return
    receipt requested. HUD's notification should be timely and the
    intake supervisor should communicate with the agency's intake
    supervisor or other supervisor, and determine whether the agency is
    planning to test the allegations set out in the complaint.

4.  Notification of HUD's referral of the complaint should be sent to
    each complainant and respondent by certified mail, return receipt
    requested, or personally served. If notice is delivered by personal
    service, documentary proof of a party's receipt of such service must
    be obtained and preserved in the case file.

5.  The FHEO Regional Office, in accordance with subparagraphs 2 and 3
    above, should forward complaints identified for referral to the
    agency within 5 days of receipt, whenever possible. To the extent
    possible, the jurisdiction of HUD and the FHAP agency should be
    resolved and established before referring the complaint. Complaints
    should never be retained in the Intake Unit for the purpose of
    "perfecting" or "accumulating a batch" prior to transmittal to the
    agency. Such complaints should be transmitted as they are received
    or within timeframes specified in the Agency's Memorandum of
    Understanding, Interim Agreement or Cooperative Agreement.

**4-11 MULTI-JURISDICTIONAL COMPLAINTS**

###  {#section .unnumbered}

In addition to the Act, HUD enforces Title VI of the Civil Rights Act of
1964, Section 109 of the Housing and Community Development Act of 1974,
Section 504 of the Rehabilitation Act of 1973, Title II of the Americans
with Disabilities Act of 1990, the Age Discrimination Act of 1975 and
Executive Order 11063. See also Chapter 6, Multi-Jurisdictional
Complaints, for additional guidance.

When an aggrieved person alleges discrimination cognizable under more
than one of these statutes the complaint should be concurrently
processed under all applicable statutes. For example, a housing
discrimination complaint filed against a recipient of Federal financial
assistance that alleges discrimination on the bases of national origin,
age, and disability should be processed as follows: national origin
under the Act and Title VI; disability under the Act, Section 504, and
the Americans with Disabilities Act; and age under the Age
Discrimination Act of 1975.

Title VI and Section 504 require that the identity of the complainant be
kept confidential absent written authorization from the complainant to
the contrary. Therefore, the EOS should obtain and include in the
investigative file a written waiver of confidentiality. If a Title VI,
Section 109 and/or Section 504 complaint is filed in addition to a Title
VIII complaint, it is not necessary to obtain a waiver of
confidentiality.

If the complainant does not file the complaint under any statute other
than Title VIII, but the allegations suggest noncompliance with another
civil rights statute or civil-rights- related program requirement, the
EOS should recommend the recipient for a compliance review in
conjunction with the Title VIII investigation, when appropriate, and
follow the guidance in the chapter on multi-jurisdictional complaints.
In addition, the FHEO Regional Director should notify the appropriate
program office, Housing, Public Housing or Community Planning and
Development (CPD), so that the program office can gather any necessary
information during a monitoring review, if one has been scheduled.

There may be instances when the aggrieved person, after counseling from
the EOS, refuses to file a complaint under the Act, or one of the other
civil rights statutes. In such instances the wishes of the aggrieved
person must be honored with respect to the decision not to proceed under
the Act. If possible, the EOS should obtain a written statement from the
aggrieved person stating that he or she understands the implications of
his or her decision, and that he or she voluntarily refuses to file
under the Act. With respect to the other civil rights statutes
administered by the Department, the EOS must explain the Department's
independent, public trust responsibility to eliminate discrimination
from all programs and activities that receive Federal financial
assistance.

When complaints allege discrimination by recipients of Federal funds,
the EOS should be alert for properties built with low-income housing tax
credits (LIHTC). Although Federal financial assistance does not include
tax credits, HUD, DOJ, and Treasury entered into a Memorandum of
Understanding, August 11, 2000, which establishes procedures that
require FHEO to notify the Department of the Treasury and the Department
of Justice whenever HUD finds breach of a settlement agreement, or
reasonable cause under the Act in a case that involves a LIHTC property.
Pertinent information on the MOU and its impact can be found on the HUD
Website at
[http://hudweb.hud.gov/po/e/enforce/LIHTC%20Policy.pdf.]{.underline}

##### A. Complaint Numbering {#a.-complaint-numbering .unnumbered}

#####   {#section-1 .unnumbered}

The general principle that applies to multi-jurisdictional complaints is
that there should be one investigation unless it is a Title VIII
complaint that must be referred to a FHAP agency. In such a case, the
complaint should not be concurrently processed under the Act. The
complaint must be separated: the Title VIII portion will be dual-filed
with the agency, and the allegations under all other civil rights
authorities will be processed by HUD. At a minimum, processing of these
cases and findings should be coordinated for consistency. HUD should
strongly consider reactivating the Title VIII component of a
multi-jurisdictional complaint. Multi-jurisdictional complaints should
be entered into TEAPOTS under "Other Authorities" and if there is an
allegation that the Act was violated it should also be entered as a
Title VIII complaint in TEAPOTS.

######### B. Respondents Receiving Federal Financial Assistance {#b.-respondents-receiving-federal-financial-assistance .unnumbered}

-   When a potential complaint of housing discrimination is filed, the
    EOS should determine whether the respondent is a recipient of
    Federal financial assistance. In some instances this can be easily
    determined, as when the respondent is a housing authority. EOSs
    should be aware that private landlords who accept housing choice
    vouchers are not recipients of federal financial assistance from
    HUD. Project based Section 8 assistance is federal financial
    assistance.

-   The EOS should ask the aggrieved person if he or she knows whether
    the respondent receives Federal financial assistance from HUD or
    another federal agency, e.g., the Department of Agriculture.

-   The EOS should use the software developed by HUD for the respective
    program offices to help determine whether a respondent/recipient
    receives Federal financial assistance from HUD.

-   If the information cannot be obtained otherwise, the EOS should
    inquire of the various program offices in HUD to determine if the
    respondent receives HUD funding.

**4-12 SPECIAL INTAKE ISSUES**

A. Complaints Requiring Injunctive Relief

Some complaints involve circumstances requiring urgent attention, such
as when aggrieved persons may be about to be evicted from their home or
apartment, lose their home through foreclosure or lose some other unique
housing opportunity. In these circumstances it may be imperative for HUD
to take immediate action---even before the complaint is
investigated---to prevent something from happening, or otherwise
maintain the status quo. In such situations, the EOS needs to consult
with Regional Counsel and determine whether the situation warrants
immediate action. HUD and DOJ attorneys will decide whether to seek
prompt judicial action and request injunctive relief.

Some examples of circumstances in which prompt judicial action may be
appropriate include:

-   A couple obtains legal guardianship of their 9-year old
    granddaughter. After they ask the park owner to add the child to the
    site lease for their mobile home, the park owner obtains an eviction
    order directing them to remove their dwelling from the park within
    ten days of the date of the order.

-   An aggrieved person provides convincing evidence that a respondent
    is likely to alter or destroy records critical to the investigation
    of the allegations in the complaint.

-   An aggrieved person alleges that a respondent is in the process of
    constructing a multifamily building whose design is in substantial
    noncompliance with the Design and Construction Requirements. If the
    construction is completed as planned, it will be more difficult,
    more expensive or impossible to correct the inaccessible features.

    B. Injunctive Relief

    \"Injunctive relief\" is an extraordinary legal remedy granted to an
    aggrieved person by a court of law that either prohibits someone
    from doing some specified act, or commands someone to undo some
    wrong or injury. There are two types of injunctive relief that are
    relevant during an investigation under the Act. These are:

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-   [Preliminary Injunctions.]{.underline} A form of extraordinary
    relief issued by a court to immediately compel or restrain a
    party\'s actions, and which may either be discharged or become
    perpetual, depending on the result of the controversy, as soon as
    the court determines the rights of the parties.

-   [Temporary Restraining Orders (TROs).]{.underline} A TRO is a form
    of extraordinary relief similar to a preliminary injunction, except
    that a TRO can be issued without the respondent's receiving notice
    or an opportunity to be heard.

    An EOS need not determine what type of injunctive relief is
    appropriate in a given set of circumstances\--that will be decided
    by attorneys for the Office of General Counsel, consistent with the
    current delegation of authority, and/or the Department of Justice
    who represents the Department in asking for an injunction in court.
    Nevertheless, the [EOS does play a critical role in identifying
    complaints involving situations that might warrant prompt judicial
    action]{.underline}. The EOS initiates the gathering of sufficient
    information to enable attorneys within the Office of General
    Counsel, consistent with the current delegation of authority, to
    determine whether prompt judicial action is appropriate. Since time
    is a critical factor, the EOS\'s efforts can help the Department
    identify the maximum time frame within which injunctive relief must
    be secured in order to preserve the housing rights of the aggrieved
    person.

    C. Authority to Seek Prompt Judicial Action

    Section 810(e) of the Act and 24 C.F.R. § 103.500 of the regulations
    permit the Secretary to authorize a prompt judicial action
    proceeding on behalf of an aggrieved person \"at any time following
    the filing of a \[Title VIII\] complaint.\" Under the regulations,
    the General Counsel, acting on behalf of the Secretary, formally
    requests the Attorney General (DOJ) to petition a United States
    District Court to grant temporary or preliminary \"[injunctive
    relief]{.underline}\" on behalf of an aggrieved person who:

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-   Has filed a Title VIII housing discrimination complaint; and

-   Believes that he or she is under an imminent threat of serious and
    irreparable injury, loss or damage from the respondent; or

-   Alleges facts that indicate that the respondent's actions subject
    the aggrieved person to an ongoing, continuing course of serious and
    irreparable injury, loss or damage for which prompt judicial action
    might be an appropriate remedy.

    D. Determining Whether to Identify a Complaint for Prompt Judicial
    Action

    When considering whether a complaint requires prompt judicial action
    processing, the EOS should carefully assess the allegations, and
    determine whether any or all of the following factors are present:

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-   The immediate threat of injury, loss or damage alleged by the
    aggrieved person is [serious]{.underline};

-   There is evidence indicating the [unique
    characteristics]{.underline} of the dwelling or housing benefit
    involved, such as size, layout, cost, location, amenities, evidence
    of scarcity of comparable housing in the local market, etc.;

-   There is a [relatively high degree of certainty that irreparable
    injury, loss or damage will occur]{.underline} unless injunctive
    relief is granted immediately;

-   There is [persuasive evidence]{.underline} that an alleged
    discriminatory housing practice has in fact occurred, and a
    significant likelihood that the aggrieved person will succeed on the
    merits of the case;

-   The dwelling [continues to be available]{.underline} and/or
    controlled by the respondent; and

-   The [aggrieved person continues to wish to rent or purchase the
    subject dwelling or obtain the housing benefit]{.underline}, or the
    respondent has prevented the aggrieved person from inspecting the
    dwelling in question, (as by false denial of availability, or
    steering) but the aggrieved person retains an interest in the
    dwelling based on its advertised specifications, its location, etc.

E. Examples of Documentation Necessary to Support a Request for Prompt
Judicial Action

The preliminary investigation conducted during intake must result in the
gathering of evidence that meets the legal standard that the court will
require to justify its decision to grant the TRO or preliminary
injunction. Supporting documentation must include, but need not be
limited to, the following:

-   A verified Housing Discrimination Complaint Form, together with the
    complainant\'s signed affidavit containing a detailed factual
    statement of the alleged discriminatory conduct, setting forth
    specific facts showing that the respondent\'s conduct threatens or
    is about to threaten the complainant with irreparable injury, loss
    or damage (e.g., specific dates or times when events detrimental to
    the complainant are expected to occur);

-   An analysis of the facts that clearly establishes the Department's
    jurisdiction (for example, review of possible property exemptions
    based upon number of units owned, type of housing, etc.);

-   Identification of the dwelling and verification of its continuing
    availability;

-   Evidence demonstrating the aggrieved person\'s special need for the
    housing sought (e.g., affordability, involuntary displacement
    (homelessness), overcrowding in current residence, physical
    accessibility, etc.);

-   Identification of respondents having authority to grant the relief
    sought by the aggrieved person (e.g., proof of property ownership,
    operational control of the dwelling, etc.);

-   Evidence that respondents have been notified of the filing of the
    complaint (in urgent circumstances, personal service of the
    complaint may be appropriate); and

-   Evidence indicating that the aggrieved person is likely to prevail
    on the issues of the complaint (for example, evidence that the
    aggrieved person is an otherwise qualified applicant, results of
    fair housing tests, witness statements, respondent\'s admissions,
    advertisements, brochures, policy statements, etc.).

    F. Intake Processing Procedures for Prompt Judicial Action

    The Memorandum of Understanding between HUD and DOJ executed on
    December 7, 1990, states that:

    Prior to HUD\'s making its decision concerning whether or not to
    authorize the filing of a civil action seeking prompt judicial
    action, consultation between appropriate representatives of HUD and
    the Department of Justice shall commence immediately. These
    consultations may occur by whatever means that is \[sic\]
    appropriate and feasible (e.g. telephone, meeting, or in writing)
    concerning the propriety of such an authorization and/or whether or
    not HUD needs to gather any additional information before such a
    decision is made, as well as when to notify respondents of potential
    HUD action.

    It is critical that Regional FHEO and Regional Counsel work together
    and notify their Headquarters counterparts at the earliest possible
    stage of complaint processing that a prompt judicial action
    proceeding may be required. Regional FHEO should provide Regional
    Counsel with early notification of requests for prompt judicial
    action or when a complaint appears to merit seeking prompt judicial
    action. Joint notification should be provided to Headquarters, O/E
    and the Office of General Counsel, Fair Housing Enforcement
    Division, immediately following identification of complaints
    warranting prompt judicial action.

    The EOS should assist the preliminary investigation by taking the
    following actions:

1.  Where possible, establish jurisdiction, prepare a Housing
    Discrimination Complaint Form and obtain the aggrieved person's
    signature;

2.  Enter the complaint in TEAPOTS to generate the case number, etc.;

3.  Conduct follow-up interviews as necessary with the aggrieved person
    (and witnesses, if any) to confirm that the aggrieved person still
    wants the dwelling in question, and develop as much investigative
    information as possible. Obtain additional evidence suggesting that
    the Act has been or is about to be violated. Request supporting
    documentation and, in particular, verify date(s) on which the
    alleged irreparable injury, loss or damage is expected to occur;

4.  Verify the type and location of the dwelling involved in the
    complaint;

5.  Establish the identity and whereabouts of the owner(s) of the
    subject dwelling who must be notified as essential respondents in
    any prompt judicial action proceeding;

6.  Discuss with the intake supervisor whether it is appropriate to
    contact the respondents directly to expedite the notification
    process;

7.  Verify that all proper respondents have received notice of the
    filing of the complaint by certified mail or personal service; and

8.  Document in TEAPOTS all contacts with any parties and witnesses,
    including preparation of narrative interview reports covering each
    contact.

    Where possible, send the perfected Housing Discrimination Complaint
    Form to the aggrieved person by facsimile for review and signature
    in order to expedite processing and referral to DOJ. Where feasible,
    complainants and witnesses should also be encouraged to facsimile
    executed affidavits. Where faxing occurs, original complaints and
    affidavits should be transmitted by regular mail.

    G. Referral Procedures for Complaints Requiring Prompt Judicial
    Action

    A memorandum, signed by the Regional FHEO Director, which recommends
    and requests such action, must accompany complaints referred to
    Regional Counsel for possible prompt judicial action proceedings.
    Copies of the complaint package, consisting of:

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1.  Copies of the Director\'s memorandum,

2.  The Housing Discrimination Complaint Form, and

3.  All supporting documentation

    should promptly be delivered to DOJ's Housing and Civil Enforcement
    Section, in accordance with the MOU between HUD and DOJ which states
    that the Regional FHEO Director must provide DOJ with \"all relevant
    information and documents relating to the matter\" at the same time
    that the complaint is transmitted to Regional Counsel. Headquarters
    Office of General Counsel, Fair Housing Enforcement Division, and
    FHEO, O/E should receive copies of all transmissions to DOJ.

    Upon receipt, the Office of General Counsel will review the
    complaint package in consultation with DOJ in order to reach a
    decision as to whether to authorize DOJ to seek prompt judicial
    action.

**4-13 COMPLAINTS NAMING HUD AS A RESPONDENT AND COMPLAINTS AGAINST
OTHER FEDERAL AGENCIES**

An aggrieved person may file a Title VIII complaint against HUD as the
sole respondent, or as one of several potentially responsible parties. A
Title VIII complaint also may be amended during an investigation to add
or substitute HUD as a responsible party. Typically, the aggrieved
person is an applicant or a current participant in a housing program
that is administered, funded or monitored by HUD.

Federal employees, including Field Offices, cannot be named as proper
respondents. If HUD is named in a complaint, the complaint is against
the Secretary of HUD. If an aggrieved person identifies a federal
employee or a federal agency as a respondent and the EOS perfects the
complaint, the head of the agency will be the proper respondent. A copy
of the perfected complaint should be served on the General Counsel for
the federal agency. A complaint against the Secretary of HUD should be
served on the Associate General Counsel for Litigation, Office of
General Counsel in Headquarters.

A. The Effect of DOJ\'s Position on Civil Enforcement of Housing
Discrimination Complaints filed Against Executive Branch Agencies
(Including HUD)

In 1994, the Office of Legal Counsel (OLC) for the Department of Justice
(DOJ) took the position that DOJ could not enforce a Charge of housing
discrimination issued by HUD against another federal agency in United
States district court under the Act. OLC based its position on
consideration of the President\'s authority under Article II of the U.S.
Constitution \"\...to supervise and direct executive branch agencies and
the Article III limitation that the jurisdiction of the federal courts
extends only to actual cases and controversies\...\[F\]ederal courts may
adjudicate only actual cases and controversies, and \...a lawsuit
involving the same person as both plaintiff and defendant does not
constitute an actual controversy, and\...this principle applies to suits
between two agencies of the executive branch\....\" OLC argued that
although HUD issues a Charge of housing discrimination on behalf of a
private complainant, HUD is still a \"real party in interest\" in any
civil action commenced as a result of an election and referral to DOJ
for enforcement. Therefore, such a civil action necessarily involves a
lawsuit between two executive branch agencies.

FHEO Regional Offices will continue to accept housing discrimination
complaints filed against federal agencies if the complaints are
otherwise jurisdictional. Investigations should be conducted, and
conciliation should be attempted in accordance with Section 810 of the
Act, and the additional processing procedures described below. If
conciliation is unsuccessful, the case file should be forwarded to FHEO
Headquarters, O/E for further action. Each case should be forwarded with
the FHEO Regional Director\'s recommendation for a Determination of
\"reasonable cause\" or \"no reasonable cause\", and the Final
Investigative Report summarizing the investigative findings and
conciliation efforts. FHEO Regional Offices should not administratively
close such complaints on the ground of lack of jurisdiction under the
Act.

B. Complaints Filed against HUD

An EOS who receives a complaint naming HUD as an Agency or the Secretary
of HUD as a respondent should take the following actions:

1.  If jurisdiction is established, enter the complaint information into
    TEAPOTS to generate a complaint number and notification letters.

2.  Prepare a cover memorandum for signature by the Regional Director,
    FHEO. Facsimile the memorandum, together with a copy of the Housing
    Discrimination Complaint Form, to the Assistant Secretary for FHEO,
    ATTENTION: Director, Office of Enforcement. The memorandum should:

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a.  Inform the Assistant Secretary of the nature of the complaint;

b.  Ask the Assistant Secretary to designate a contact person to handle
    investigation and/or conciliation matters; and

c.  Request that the Assistant Secretary advise the FHEO Regional Office
    whether the Assistant Secretary will designate another Regional
    Office to assume responsibility for investigating the complaint.

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3.  Transmit timely notification letters to the parties in accordance
    with the ten-day period provided in the Act and the implementing
    regulations. This constitutes official notice to the respondent of
    the filing of the complaint.

4.  Send a copy of the Housing Discrimination Complaint Form and the
    notification letters to Headquarters, OGC, addressed to the Office
    of General Counsel, Associate General Counsel for Litigation.

5.  If the Assistant Secretary for FHEO designates another office to
    assume responsibility for processing the complaint, the EOS should
    transmit the case file to that office via overnight mail.

Upon receipt of a complaint naming the Secretary of HUD as a respondent
that has been transferred from another office for processing, the EOS in
the receiving Office should take the following actions:

a.  Alert the intake supervisor regarding the status of the complaint,

b.  Send written notification of the transfer to all parties to the
    complaint by certified mail or personal service and to the Associate
    General Counsel for Litigation, and

c.  Process the complaint in accordance with standard intake procedures
    set forth in this chapter.

    **4-14 SUBSTANTIVE AND PROCEDURAL LIMITATIONS ON FILING AND
    INVESTIGATING FAIR HOUSING ACT COMPLAINTS THAT MAY IMPLICATE THE
    FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES**

    Certain forms of speech, even speech that is discriminatory, may be
    protected by the First Amendment when engaged in for the purpose of
    influencing governmental action by persons who are not using the
    speech in a commercial context. In such cases, the First Amendment
    may protect the speech, and the Department will not accept a
    complaint based on the speech.

    Sometimes the Department will be approached by individuals wishing
    to file complaints because they believe themselves to have been
    harmed by the statements, political activity, flyers, or legal
    activity opposing, in some way, their housing. Typically, these
    matters involve allegations that a third party, such as a neighbor,
    who is not directly participating in a real estate transaction,
    allegedly violated the Act. In order to ensure that the Department's
    investigative process does not interfere with speech protected under
    the First Amendment, no complaint alleging a violation of the Act
    where the respondents are private individuals (or groups/voluntary
    associations of private individuals) who allegedly engaged in
    non-violent, speech-related activities, may be filed absent prior
    formal approval from Headquarters, FHEO.

    The EOS is responsible for preliminary identification of inquiries
    involving speech activities that may be protected by the First
    Amendment and for following the procedures identified below and
    explained in more detail in FHEO Notice 97-1 and subsequent
    extensions. This Notice can be found on the HUD Web at
    <http://hudweb.hud.gov/po/e/enforce/enforceguidance.html>. Neither
    this Notice nor the procedures established affect the Department's
    practice of referring certain complaints involving threats of
    violence to the Department of Justice for possible criminal
    prosecution. See Section 4-15, Complaints Alleging Violations of
    Section 901, below.

    A. Identifying Cases that Require Special Processing under the
    Department's First Amendment Guidance at Intake

    Absent force, physical harm, or a clear threat of force or physical
    harm to one or more individuals, speech-related activities directed
    toward motivating action on the part of a Federal, State or local
    governmental entity or official, are protected by the First
    Amendment---even if the statements involved are hostile, offensive,
    distasteful, obnoxious, reprehensible or bigoted. The right of
    private citizens to organize and assemble peacefully to petition
    their government to take action that they believe to be beneficial
    is an essential part of a constitutional democracy.

    The Department will not accept for filing or investigate any
    complaint alleging a violation of the Act involving speech-related
    activities by private individuals or organizations that:

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1.  Are directed toward achieving action by a governmental entity or
    official; and

2.  ***Do not*** involve force, physical harm or a clear threat of force
    or physical harm, to one or more individuals and/or their property.

    For example, suppose a citizen stands up in a public meeting
    convened by a county executive and says that the county "must" deny
    a proposed group home a conditional use permit because people with
    disabilities are "dangerous," will "ruin the neighborhood," and
    "shouldn't be allowed to live near children." The First Amendment
    protects that citizen's speech, however inaccurate and offensive.
    If, however, the same person slides a note under the door of the
    proposed group home threatening to burn the house down if it is
    occupied by disabled persons, that "speech" would *not* be protected
    because of its tangible threat of violent action.

    **[SPECIAL NOTE]{.underline}:** Additional examples of activities
    that are \"directed toward achieving action by a governmental entity
    or official\", include, but are not limited to:

    []{.mark}

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1.  Distributing fliers, pamphlets, brochures, posters or other written
    materials to the public at large;

2.  Participating in open community or neighborhood meetings or rallies;

3.  Writing articles or letters to the editor, making statements
    reported in a newspaper article, television or radio report;

4.  Participating in peaceful demonstrations (including picketing);

5.  Testifying and/or presenting petitions at public hearings;

6.  Communicating directly with a governmental entity or official
    concerning official governmental matters; and

7.  Litigation filed in courts. (If the court finds that the
    defendant/respondent filed a frivolous lawsuit, that finding should
    be assessed in accordance with the First Amendment Notice.)

    B. Procedures for Processing Inquiries that may Involve Protected
    Speech

    Allegations of Title VIII violations against persons who may be
    engaged in First Amendment protected activities should be accepted
    as inquiries. The EOS should obtain as much information as possible
    from the aggrieved person with respect to the precise nature of the
    alleged discriminatory actions. For example, information on what
    happened, where it happened and when it happened should be recorded
    in detail. Mere assertions of "threats," "intimidation," or "use of
    racial epithets" is insufficient to determine whether there are
    First Amendment implications. The EOS should acquire as much
    information as possible from the complainant and any publicly
    available sources such as newspapers or police reports.

    After collection of this information, a memorandum requesting First
    Amendment review and the compiled information should be sent to
    Headquarters, O/E. The complaint cannot be accepted before
    completion of the First Amendment Review. The EOS **shall not**
    contact any named respondents until Headquarters has approved the
    acceptance of the complaint for filing.

    **4-15 COMPLAINTS ALLEGING VIOLATIONS OF SECTION 901**

    Section 901 of the Act prohibits any person, \"[whether or not
    acting under color of law]{.underline}\" from using or attempting to
    use "force, or threat of force for the purpose of
    [intentionally]{.underline} injuring, intimidating, or interfering
    with any person because of his race, color, religion, sex, handicap,
    familial status, or national origin in the exercise of rights
    protected under the Act." Section 901 is intended to prohibit
    housing-related acts of violence directed against all persons
    covered under the Act, as well as their real or personal property.
    It imposes criminal penalties against any person convicted of such
    conduct, regardless of whether the alleged offender is or was
    involved in a housing-related transaction with the aggrieved person
    at the time of the alleged injury. In general, Section 901 contains
    prohibitions similar to those set forth in Section 818, the civil
    anti-harassment provision of the Act. Both sections prohibit
    threats, intimidation and interference with the rights of an
    aggrieved person; therefore, a respondent might engage in conduct
    prohibited under both sections of the Act.

    The Department of Justice (DOJ) is responsible for investigating
    potential violations of Section 901. HUD, however, maintains
    jurisdiction over any violations of Section 818. The 1990 Memorandum
    of Understanding (MOU) between DOJ and HUD outlines how such
    complaints should be processed. As per the MOU, ***FHEO Regional
    Offices refer all potential Section 901 complaints directly to
    DOJ***. Further, HUD holds its investigation of the complaint in
    abeyance until DOJ determines whether criminal prosecution is
    warranted. In 1998, the MOU was modified to provide for closer
    cooperation and coordination between the two agencies. The
    modification provides that DOJ, upon receipt of a referral, will
    notify HUD whether an investigation of the referral has already been
    initiated, and if no such investigation is underway, notify HUD
    within two (2) weeks whether or not it will conduct a criminal
    investigation of the referral. DOJ will also inform HUD of the
    closing of a criminal investigation of a complaint, or the
    completion of a criminal prosecution, whether successful or not.
    Pending notification that DOJ will not initiate an investigation or
    of the closing or completion of an investigation or prosecution, HUD
    will hold in abeyance any contact with any of the parties involved
    or the initiation of any investigation. In situations where some
    contact is necessary to perfect the filing of a complaint, such
    contact shall be by telephone and shall be conducted by staff at
    FHEO Headquarters.

    The following are examples of Section 901 complaints:

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1.  Evidence of infliction of physical injuries, serious threats of
    bodily injury, intimidation, or other violent interference directed
    against persons who have engaged in a protected activity (i.e.,
    exercised their right to rent or purchase a dwelling), and which
    appears to be motivated by a prohibited basis. Examples of such
    activities include: violent physical assaults; home invasions;
    rock-throwing; pursuits on foot or in vehicles; threatening with
    deadly weapons; generating excessive noise, light or offensive
    odors; obscene or threatening phone calls or other violent conduct
    intended to deny, prevent, disrupt or terminate an aggrieved
    person\'s use and enjoyment of a dwelling.

2.  Damage to the dwelling and/or property connected to the dwelling of
    a person, that is motivated by that person\'s protected class status
    or by other discriminatory bases covered under the Act. Examples of
    such conduct include: criminal trespass (unlawful entry);
    cross-burnings or effigy-hangings conducted on the aggrieved
    person\'s property; fire-bombing or other vandalism of vehicles;
    telephone calls featuring \"hate\" messages combined with threats of
    injury; arson or attempted arson; poisoning of pets; defacing
    property by spray-painting offensive insignia or epithets; posting
    signs and other displays containing offensive epithets on the
    dwelling; or other forms of serious and extensive deliberate damage
    to exteriors or interiors of dwellings.

    A. Factors to be Considered when Reviewing a Complaint for a
    Possible Section 901 Violation

    The EOS is often responsible for making an initial assessment as to
    whether the allegations in a Title VIII complaint constitute a
    violation of Section 901. Such an assessment should include, but
    need not be limited to, consideration of the following factors:

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1.  The [degree of intentional violent conduct]{.underline} involved or
    threatened (e.g., evidence of firearms and other instruments of
    potentially deadly force, including fire);

2.  The [intensity or the persistence]{.underline} of the alleged
    conduct (e.g., evidence of police reports of previous incidents,
    discounted warnings to housing providers, evidence of escalation of
    numbers of persons involved, recurring incidents and heightened
    levels of violence);

3.  The [impact]{.underline} of the alleged activity upon the aggrieved
    person\'s ability to use and enjoy the property (e.g., physical,
    psychological and financial impact, including possibility of loss of
    the dwelling due to damage, destruction or forced abandonment of the
    residence, including \"constructive eviction\" tactics); and

4.  The [apparent ability]{.underline} of the respondent to engage in
    the behavior.

    B. Intake Procedures for Processing Section 901 Complaints

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1.  [Previously filed complaints]{.underline}. If the aggrieved
    person\'s information relates to a complaint that was previously
    filed, the EOS should alert the Intake supervisor to the situation.
    Discuss with the supervisor whether circumstances warrant the filing
    of a new complaint or amendment of the previous complaint. Ascertain
    whether the previous complaint is still open, or has been
    conciliated, withdrawn or resolved through a determination. If the
    previous complaint has not yet been assigned for investigation,
    discuss with the supervisor whether the matter warrants referral to
    DOJ.

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2.  [New complaints]{.underline}. Upon receipt of a new complaint that
    appears to allege a violation of Section 901, the EOS should take
    the following actions:

    a.  Contact the aggrieved person.

#### Ascertain whether State or local law enforcement authorities have been informed of the activities complained of and, if so, whether they are currently investigating the matter. If the aggrieved person has reported the activity to State or local police, request names and phone numbers of any law enforcement representatives who have contacted the aggrieved person regarding their investigation. If the aggrieved person does not have copies of police reports relating to the alleged criminal activities, contact the State or local authorities to request copies.

#### Advise the aggrieved person to immediately report any recurrence of the criminal activity to State or local law enforcement authorities.

b.  Advise the aggrieved person to preserve any physical evidence
    relating to the alleged activities (including photographs of
    personal injury or property damage, audiotapes of "hate" calls,
    etc.)

#### Verify the location of the dwelling involved in the complaint; 

c.  Obtain as much information as possible relating to the identities
    and whereabouts of any unnamed respondents whose conduct is
    described in the complaint. Ask whether the aggrieved person/witness
    was able to identify such characteristics as sex, race, accent,
    approximate clothing and method of travel (on foot, bike, auto, van,
    truck). This information should be memorialized in a statement
    attached to the Housing Discrimination Complaint Form, and should be
    signed by the person providing the information.

d.  Prepare the complaint, (complaints cannot be forwarded to DOJ
    without a Title VIII number) and have the aggrieved person sign the
    Housing Discrimination Complaint Form.

    C. Referral Procedures for Section 901 Complaints

Referrals of Section 901 complaints to DOJ will be made directly from
the originating FHEO Regional Office. Referrals should include the name
of a HUD contact person who will be responsible for dealing with DOJ on
issues related to the referral. In complaints involving life-threatening
situations, HUD\'s recommendation of urgency will be supported with as
much documentation and identifying data as is available pursuant to the
MOU. As new information becomes available after the initial referral,
HUD must immediately provide updates to DOJ via facsimile transmittal.
The FHEO Regional Director also will promptly notify FHEO Headquarters
of the referral, and will promptly fax copies of the materials sent to
DOJ.

During DOJ's review of a 901-complaint referral or criminal
investigation, HUD will hold in abeyance the issuance of any notice
letters (ten (10) day notice -- 100-day notice) to either the
complainant or respondent.

Upon receipt of a referral, DOJ will advise whether the complaint
allegations are already under investigation and whether the allegations
warrant a criminal investigation. In the event that DOJ decides not to
commence a criminal investigation of a complaint, DOJ will notify HUD of
that decision within two weeks of its receipt of the complaint. If DOJ
decides not to investigate, HUD may contact any individual involved and,
as it deems appropriate, initiate and proceed with the processing and
investigation of the complaint.

In the event that DOJ fails to notify HUD of the status of a complaint
referred under Section 901, FHEO Regional Office supervisory staff may
initiate contact with DOJ to ascertain the status of the referral.

If it appears that a delay in commencing or completing a criminal
investigation may jeopardize an aggrieved person\'s safety and/or
rights, FHEO Regional Offices will immediately contact FHEO
Headquarters. Headquarters will consult with the Deputy Chief of DOJ\'s
Housing and Civil Enforcement Section.

**4-16 FAIR HOUSING TESTING**

Sometimes HUD receives information that warrants the use of testing.
Although no complaint has been filed, testing may be used to corroborate
allegations received by HUD relating to a housing provider\'s alleged
ongoing discriminatory housing practice. In such cases, the FHEO
Regional Office may direct a private organization to conduct a fair
housing test. A fair housing test is a planned interaction between a
housing provider and an individual pretending to be a home- or
apartment-seeker for the specific purpose of gathering information
concerning the manner in which the respondent does business. Sometimes,
tests will involve a pair of testers who are essentially identical in
their qualifications for the housing being sought and who differ in only
one significant way---their respective protected basis for the purposes
of comparing their treatment and the respondent's statements and actions
in the test. The results of such tests can provide compelling evidence
in court. The EOS may play a role in identifying an inquiry as suitable
for testing. The EOS will collect the supporting information, and
present the facts to his or her supervisor for consideration.

The EOS may also encounter testing as the basis of a complaint filing.
Private fair housing groups that conduct audit tests of housing and
housing-related service providers sometimes file complaints based upon
findings of apparent disparate treatment. In addition, an individual who
has participated as a tester---playing the role of the home- or
apartment-seeker and interacting with the provider---may file a
complaint on his or her behalf if he or she was given false information
or otherwise injured by the experience of conducting the test.

A. Identifying Complaints that may be Suitable for Testing During Intake

The effectiveness of testing as a tool for the investigation of a
particular allegation rests upon the ability of a testing organization
to place a third person into precisely the same relationship with the
test subject as was the aggrieved person. Thus, if weeks or months have
passed since the aggrieved person's encounter, or the housing desired by
the aggrieved person is no longer available, or if the persons
responsible for the housing have changed, it may be impossible to create
a situation that mirrors that of the aggrieved person's closely enough
for a test to be effective.

Some scenarios follow that might help an EOS identify cases that may be
suitable for testing:

-   The aggrieved person reports that he or she received conflicting
    information about the availability of a dwelling. The aggrieved
    person is told that a dwelling is no longer available although it is
    still being advertised.

-   The respondent is alleged to have made statements indicating a
    discriminatory preference or limitation; there are no other
    witnesses, no written statements consistent with the preference or
    limitation, and no reason to believe that the respondent will admit
    to making the statements.

-   There is evidence that a respondent has a [history]{.underline} of
    conduct violating the Act. (A review of TEAPOTS, for example,
    reveals the existence of several previous Title VIII complaints
    filed against the same respondent based upon similar allegations,
    all conciliated for modest sums). Testing may make it clear whether
    the respondent is engaged in the alleged discriminatory practices.

-   The respondent has executed a HUD Conciliation Agreement requiring
    him or her to refrain from engaging in discriminatory housing
    practices. Periodic testing may be used to monitor the respondent\'s
    compliance with the public interest provisions of the Agreement.

    B. Intake Procedures for Complaints Appropriate for Fair Housing
    Testing

Timeliness and credible testers are critical factors in successful
testing. Therefore, every reasonable effort must be made during the
initial stage of intake to gather as much useful and detailed
information as possible regarding the aggrieved person\'s encounter with
the respondent.

1.  To lay the proper groundwork for fair housing testing, the EOS
    should obtain a particularly detailed description of the manner in
    which the aggrieved person contacted the respondent. Details such as
    the location (office, home, the subject property, etc.); the time of
    day at which the contact occurred; whether the contact occurred in
    person or over the telephone; the aggrieved person\'s manner of
    dress; or the presence of a spouse, co-tenant or minor children can
    be critical information for a test provider. It is also necessary to
    establish the manner in which the aggrieved person learned that the
    dwelling was being marketed for sale or rent. For example, if the
    aggrieved person responded to a newspaper advertisement, ask whether
    the aggrieved person can provide a copy of the advertisement that
    shows the name of the newspaper and the date of publication. If sale
    or rental signs were posted on the property, obtain details of the
    text (e.g., photographs, drawings or verbatim transcripts)
    describing the dwellings. If the aggrieved person believes that the
    respondent falsely denied that the dwelling was unavailable, the EOS
    should identify the size and type of dwelling involved and should
    determine whether the aggrieved person has information suggesting
    that the dwelling was still being listed/posted/advertised for sale
    or rental on or after the date of the alleged discrimination.

2.  The more information a tester has regarding the aggrieved person\'s
    experience with the respondent, the greater the likelihood that he
    or she will be able to conduct an effective test of the
    respondent\'s housing practices. Therefore, it is important to have
    the aggrieved person describe details of the respondent\'s
    application procedures. The aggrieved person also should be asked to
    recall the nature of any information that he or she provided to the
    respondent during the course of the alleged discriminatory action.
    For example, ask the aggrieved person whether the respondent
    specifically requested personal information regarding the aggrieved
    person\'s race, national origin, disability status, presence and/or
    number of children in the household or whether the aggrieved person
    volunteered the information.

3.  Ascertain whether there is any reason to believe that the respondent
    already is on notice that a complaint has been or is about to be
    filed. Ask the aggrieved person whether he or she told anyone that a
    complaint might or could be filed against the respondent, either on
    the date of the alleged violation, or subsequently. Prior
    confrontations between the parties may serve to taint test results.

    C. Intake Procedures for Complaints Based on Testing Evidence

EOSs are responsible for collecting and assessing information necessary
to determine whether HUD has jurisdiction to investigate a housing
discrimination complaint. Complaints that are supported in whole or in
part by testing evidence must meet the same jurisdictional requirements
that apply to all other complaints filed under the Act. In other words,
whether the complaint is filed by the organization that sponsored the
testing or by an individual tester, the aggrieved person
[must]{.underline} articulate how he, she or it was injured by the
respondent's discriminatory action.

D. Information Necessary to Establish Jurisdiction for a Testing
Complaint at Intake.

To insure that HUD has sufficient information to establish jurisdiction
for complaints that are based solely on testing evidence, individual
tester complainants and testing organization complainants, at a minimum,
should provide information about the testing activity in the form of a
summary. A "Testing Questionnaire" is provided in TEAPOTS. It can be
accessed through the intake screen. Completing this questionnaire will
assure that you have collected all the information you need to establish
jurisdiction. (For ease of use, you may wish to save the questionnaire
as a word-processed document. The questionnaire should then be completed
and placed as a document into the Evidentiary Section of the paper file.
The testers' *names,* and other identifying details, however, will be
redacted as explained in greater detail below.)

E. Verification of Authority to File on Behalf of a Testing Organization

When an individual claims to have authority to file a complaint on
behalf of a testing organization, the EOS should always request written
verification of that individual's authority to file in the name of the
organization. Acceptable examples of written authorization include
official minutes of an executive board meeting in which authority to
file was granted, or written authorization to file on behalf of the
organization signed by an appropriate board officer.

F. Confidentiality of Testers' Identities.

If an individual tester's identity is disclosed to the public, that
person's ability to conduct future tests may be compromised. A tester's
identity may be disclosed, if and when, a complaint proceeds to
litigation. However, EOSs and investigators have a duty to protect the
confidentiality of tester identities during the intake process and the
administrative complaint investigation. During the complaint
investigation, the Department will treat testers as "anonymous
witnesses," and will protect their identities from disclosure to the
public, including all respondents. Disclosure of a tester's identity is
appropriate only if the tester personally files a complaint with HUD
alleging a violation of the Act.

In order to protect a tester's identity, his/her name, address,
telephone number, e-mail address and other information that could
reasonably reveal his/her identity will be maintained in the
Deliberative Section of the case file. The Department has held that
documents within this section are not subject to disclosure in response
to a FOIA request. To enter confidential information into TEAPOTS
properly go to the "Investigations" Tab and click on the heading that
says "Deliberative Impressions/Opinions." Right click on the field and
enter the information there.

G. Information that Must Be Provided to Testing Organization
Complainants at Intake

EOSs should inform all testing organization complainants that the
testing coordinator, and all testers who participated in any tests
conducted in support of the complaint, must be made available to the HUD
investigator for interviews.

EOSs should also inform all testing organization complainants that they
will be required to submit additional testing materials during the
investigation, including the results of all tests associated with the
complaint, regardless of the outcome of those tests. This information is
necessary to enable HUD to conduct an independent assessment of the
testing evidence supporting the complaint. Specifically, the complainant
should be prepared to provide copies of the following testing materials
to HUD:

(1) Tester profiles,

(2) Test reports,

(3) Test coordinator logs,

(4) Debriefing forms,

(5) Test narratives,

(6) Testing methodology,

(7) Any materials that a tester received from the housing provider
    during the test transaction, and

(8) Any other documents related to the tests associated with the
    complaint.

Complainants may redact their testing materials in order to protect the
identities of their testers. Complainants should also be informed that
these testing materials, **except for the testing** **methodology**,
will be placed in the Evidentiary Section of the investigative file. The
testing methodology documents will be protected in the Deliberative
Section of the investigative file. (See Chapter 10, Preparation of the
Case File.) For further guidance on the Treatment of Testing Evidence in
Fair Housing Complaint Investigations, refer to FHEO's guidance dated
April 10, 2003 located on the HUD Web at
<http://hudweb.hud.gov/po/e/enforce/enforceguidance.html>.

**4-17 COMPLAINTS INVOLVING ZONING/LAND USE ISSUES**

Section 814(b)(1)(B) of the Act states that DOJ has a maximum of
eighteen (18) months after the occurrence or termination of an alleged
discriminatory housing practice in which to file a civil action in U.S.
District Court on behalf of an aggrieved person. Title VIII complaints
containing significant zoning or land use issues are potentially subject
to DOJ enforcement, and are therefore included in the 18-month statutory
deadline. Such complaints should therefore be identified at intake for
processing on a [priority]{.underline} basis. FHEO Regional Offices
should establish systems to track zoning and land use complaints once
they have been identified, to ensure that they are timely processed in
accordance with the 18-month statutory deadline. Investigations of
zoning/land use complaints should be completed no later than twelve (12)
months from the date of the alleged discriminatory practice, whenever
practicable, to allow sufficient time for DOJ processing if FHEO refers
the case.

Because of the eighteen-month time limit, it is imperative to determine
immediately when the last alleged act of discrimination occurred, which
is the date the eighteen-month statute of limitations begins to run. If
the violation is continuing in nature, then the time limits may not have
been triggered. Thus, at intake, it must be determined whether any
adverse actions by the respondent are still pending on administrative
appeal or other review process. In most circumstances, the decision to
deny a permit or request for reasonable accommodation will be the date
the statute of limitations begins to run. The EOS is to indicate the
last date of an occurrence of the discrimination and add the phrase "and
continuing," if appropriate.

Any complaint that challenges the legality of a State zoning or land use
law, or of a local zoning or land use ordinance, must be referred to
Headquarters, FHEO, O/E, for referral to the Attorney General (DOJ). The
MOU between HUD and DOJ authorizes HUD to conduct full investigations
(including conciliation efforts) of Title VIII complaints, which raise
\"significant\" issues relating to zoning and/or land use matters.
Completed investigations of complaints involving significant zoning
and/or land use issues for which the FHEO Regional Office Director would
recommend "reasonable cause" should be forwarded to FHEO Headquarters
for referral to DOJ.

Any complaint that alleges that a State zoning or land use law, or a
local zoning or land use code or ordinance violates the Act should be
identified at intake, and brought to the immediate attention of the
intake supervisor. This will permit an early assessment of the
significance of the land use related issues contained in the complaint.

The following are examples of actions involving zoning or land use
issues**:**

-   A municipality informs the purchasers of a single-family residence
    intended for use as a group home for disabled persons that the
    property will be classified as a boarding house under the local
    ordinance, and that they must, therefore, apply for a conditional
    use permit in order to operate in an area zoned for single-family
    residency;

-   A municipal building commissioner refuses to issue a building or
    occupancy permit to a developer of multifamily housing because of
    race, color, religion, sex, national origin, familial status or
    disability;

-   A municipality seeks an eviction order against a family with
    children under 18, to enforce a zoning ordinance permitting the
    establishment of a \"seniors-only\" residential district that does
    not meet the criteria for \"housing for older persons;\" and

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-   A city council denies a complainant\'s appeal of a municipal zoning
    board\'s refusal to grant a zoning variance for the construction of
    a non-profit group home for chronically mentally disabled persons in
    an area zoned for single-family residences, based on neighbors'
    objections to having such persons in their neighborhood.

**4-18 PROCEDURES FOR IMPLEMENTING THE MOU BETWEEN HUD AND THE FEDERAL
FINANCIAL INSTITUTIONS EXAMINATION COUNCIL (FFIEC) MEMBER AGENCIES**

On July 10, 1992, HUD issued the guidance on procedures for implementing
the MOU between HUD and the FFIEC Member Agencies, under the title of 92
TGM 54-8. This guidance can be found and retrieved on the HUD Web at
<http://hudweb.hud.gov/po/e/enforce/enforceguidance.html>.

A. Complaints Referred to HUD Headquarters by a Member Agency

1.  FHEO Headquarters will send an acknowledgment letter to the
    referring member agency within fourteen (14) calendar days of the
    day HUD receives the complaint.

2.  FHEO Headquarters will review the referred complaint to establish
    timeliness and the Department\'s jurisdiction over the matter.

3.  If FHEO Headquarters determines that the complaint is timely filed
    and the Department has jurisdiction, the complaint will be referred
    to the appropriate FHEO Regional Office for processing.

4.  If FHEO Headquarters determines that it has no jurisdiction to
    process the referred complaint, FHEO Headquarters will return the
    complaint to the referral agency with an explanation of the
    Department\'s position in the matter.

    B. Complaints Received by HUD against a Regulated Institution

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1.  When an FHEO Regional Office receives a complaint involving a
    residential real estate-related transaction and the primary
    regulator is a member agency, the Office should transmit a copy of
    the complaint and a transmittal letter to the Headquarters Office of
    the appropriate member agency, with copies to FHEO Headquarters and
    to the affected parties. Such complaints are not to be referred to a
    FHAP agency.

2.  When FHEO Headquarters receives a complaint involving a residential
    real estate-related transaction, the O/E will establish
    jurisdiction, timeliness, and standing, and refer the complaint to
    the appropriate FHEO Regional Office for processing. The O/E will
    notify the aggrieved persons and the appropriate member regulatory
    agency of the action taken involving the regulated financial
    institution.

    C. Complaint Processing

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1.  If a basis of the complaint is race, color, religion, national
    origin or sex, FHEO Regional Offices or FHEO Headquarters, as
    appropriate, will coordinate the dates, times, and places of any
    on-site investigation against a regulated financial institution with
    the FFIEC member agency and solicit its participation. The remaining
    bases of disability and familial status are not covered under the
    FFIEC\'S authorities and the member agencies normally do not
    investigate such matters.

2.  In accordance with the MOU, requests for information from the member
    agencies will be made in writing. In addition, requests for a member
    agency's examination-related documents will be made only to the
    member agency rather than directly to the financial institution.

    D. Intake Procedures for Lending Discrimination Complaints

In order to carry out HUD\'s obligations under the MOU between HUD and
the FFIEC Member Agencies, the EOS must prepare an Intake Memorandum for
each lending discrimination complaint processed under the Act. The
Memorandum must include the following information for each complaint:

1.  The names of all aggrieved persons, including all members of the
    aggrieved person\'s household. Adult aggrieved persons should sign
    the Housing Discrimination Complaint Form on behalf of themselves
    and any minor children in the household;

2.  The name, address and telephone number of the lending institution.
    If the transaction at issue occurred at a branch office, also obtain
    the address and telephone number of the Headquarters Office;

3.  The name(s) and position title(s) of any person(s) with whom the
    aggrieved person had contact;

4.  A detailed description of the specific act(s) which gave rise to the
    allegation(s) including relevant dates and the alleged
    discriminatory basis;

5.  The names, addresses and telephone numbers of any witnesses and/or
    similarly-situated persons known to the aggrieved persons;

6.  A list of any supporting documents in the aggrieved person's
    possession;

7.  The name of the member agency responsible for regulating the
    respondent institution; and

8.  The date on which HUD formally notified the appropriate member
    regulatory agency of the filing of the complaint.

**4-19 SYSTEMIC, PATTERN OR PRACTICE AND SECRETARY-INITIATED
COMPLAINTS**

For a discussion on intake procedures for processing Systemic,
Secretary-initiated and Pattern or Practice cases, see Chapter 5,
Systemic, Secretary-Initiated and Pattern or Practice Complaints.