**IN THE UNITED STATES DISTRICT COURT**

**[FOR THE DISTRICT OF MARYLAND]{.underline}**

**PROJECT LIFE, INC. [et]{.underline} [al.]{.underline}, :**

**Plaintiffs, :**

**v. : Civil Action No. WMN-98-2163**

**PARRIS GLENDENING, [et]{.underline} [al.]{.underline}, :**

**Defendants. :**

**:**

**\...ooOoo\...**

**THE UNITED STATES OF AMERICA'S MOTION**

**[FOR LEAVE TO PARTICIPATE AS AMICUS CURIAE]{.underline}**

The United States of America, by its undersigned counsel, moves for
leave to participate as *amicus* *curiae* in the above-captioned case
and to file a memorandum of law, submitted herewith, briefing the issues
raised in Defendants\' Motion to Dismiss or, in the Alternative, to
Certify Questions for Interlocutory Review and for a Stay, currently
pending before the Court. The grounds for this motion are:

1\. Plaintiffs filed this action in the Circuit Court for Baltimore City
on or about June 9, 1998. Defendants subsequently removed this action to
the United States District Court for the District of Maryland on or
about July 6, 1998.

2\. Plaintiffs seek injunctive relief and monetary damages under the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, *et seq*.,
the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, *et seq*., and the
Maryland Discrimination in Housing Act, Md. Code Art. 49B § 22, based on
Defendants' denial of a long-term berth in Maryland's port for the
former U.S.S. Sanctuary, a decommissioned hospital ship upon which
Plaintiffs intend to operate a short-term residential, educational, and
training program for recovering substance abusers.

3\. Defendants moved to dismiss the complaint or, in the alternative,
for summary judgment, on or about July 31, 1998. Defendants maintained,
*inter* *alia*, that neither the ADA nor the FHA were applicable to the
facts as alleged by Plaintiffs.

4\. This Court denied Defendants' motion by Order dated November 30,
1998. The Court specifically declined to find, as Defendants had urged,
that the ADA and FHA were inapplicable based on the pre-discovery
factual record.

5\. Less than two months after the entry of the Court's November 30,
1998 Order, and before the commencement of discovery, Defendants now
move once again to dismiss the complaint. In the pending motion,
Defendants argue that this suit is not ripe for adjudication. In the
alternative, Defendants request that the Court certify the question of
the applicability of the ADA and FHA to the United States Court of
Appeals for the Fourth Circuit. Defendants also request that the Court
stay discovery and dismiss defendants David L. Winstead and Tay
Yoshitani.

6\. The United States has significant responsibilities for implementing
and enforcing the ADA and FHA, including, pursuant to statutory
directive, the promulgation of implementing regulations. Accordingly,
the United States has a strong interest in ensuring that the case law
developed in this suit is consistent with the United States\'
interpretation of the relevant statutes and the Department of Justice\'s
regulations implementing Title II of the ADA, 28 C.F.R. pt. 35, and the
FHA. Presently, the United States seeks leave to participate as *amicus*
*curiae* to address the issue of the applicability of the ADA and FHA to
the facts of this case.

7\. Permitting persons to appear as friends of the court through the
filing of *amicus* briefs "can contribute to \[a\] court's
understanding" of the issues involved in a particular lawsuit. *Harris
v. Pernsley*, 820 F.2d 592, 603 (3d Cir. 1987). The United States has
routinely filed *amicus* *curiae* briefs in both trial and appellate
courts in cases raising questions regarding the reach of the ADA and the
FHA. *See, e.g.,* *Havens Realty Corp. v. Coleman*, 455 U.S. 363 (1982);
*Gladstone Realtors v. Village of Bellwood*, 441 U.S. 91 (1979);
*Trafficante v. Metropolitan Life Ins. Co.*, 409 U.S. 205 (1972);
*Pinchback v. Armistead Homes Corp.*, 907 F.2d 1447 (4th Cir. 1990);
*Galloway v. Superior Court*, 816 F. Supp. 12 (D.D.C. 1993).

8\. The United States District Court for the District of Maryland has
been receptive to the filing of *amicus* briefs by the United States on
issues involving the interpretation of the ADA and FHA. *See*, *e.g.*,
*Baltimore Neighborhoods, Inc. v. T.R. Seven Oaks LLC.*, \_\_\_ F. Supp.
\_\_\_, Case No. B96-2071 (D. Md. April 4, 1997)(Black, J.); *Williams
v. Wasserman*, \_\_\_ F. Supp. \_\_\_, Case No. CCB-94-880 (D. Md. Jan.
12, 1999)(Blake, J.).

9\. The United States\' participation in this case is of significance
because the ultimate resolution of this case has important implications
for the interpretation of the ADA and FHA. The United States believes
that its interests may be affected by the outcome of this case because
it requires the interpretation of both statutes under a novel set of
facts. Furthermore, the United States believes its views will be of
assistance to the Court and the parties in addressing the issues raised
in the litigation, not only with respect to Defendants' pending motion
but also as to any subsequent motions, if any, filed in this suit.

**WHEREFORE**, the United States of America requests that this Court
grant it leave to participate as *amicus* *curiae* and to file the
accompanying Memorandum of Law. A proposed Order is attached hereto.

Respectfully submitted,

BILL LANN LEE LYNNE A. BATTAGLIA

Acting Assistant Attorney United States Attorney

General

Civil Rights Division

JOHN L. WODATCH By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Chief PERRY F. SEKUS

Disability Rights Section Assistant U.S. Attorney

Federal Bar No. 07379

BEBE NOVICH 6625 U.S. Courthouse

Trial Attorney 101 W. Lombard Street

Disability Rights Section Baltimore, Maryland Department of Civil Rights
21201

United States Department of Justice 410-209-4818

P.O. Box 66738

Washington, D.C. 20035-6738

202-616-2313

JOAN A. MAGAGNA

Chief

Housing and Civil Enforcement

Section

ISABELLE M. THABAULT

MYRON S. LEHTMAN

Attorneys

Housing and Civil Enforcement

Section

Department of Civil Rights

United States Department of Justice

P.O. Box 65998

Washington, D.C. 20035-5998

202-338-0959

**[CERTIFICATE OF SERVICE]{.underline}**

I hereby certify that on this \_\_\_\_\_ day of March, 1999, copies of
the United States of America's Motion for Leave to Participate as
*Amicus* *Curiae* were mailed, first class postage prepaid, to:

Andrew D. Levy, Esq.

Lauren E. Willis, Esq.

Brown, Goldstein & Levy, LLP

520 West Fayette Street

Baltimore, Maryland 21201

Counsel for Plaintiffs

**and to:**

Kathleen A. Morse, Esq.

Assistant Attorney General

Office of the Attorney General

Civil Litigation Division

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

**and to:**

Wendy A. Kronmiller, Esq.

Office of the Attorney General

Department of Health and Mental Hygiene

300 W. Preston Street, Suite 302

Baltimore, Maryland 21201

**and to:**

Margaret W. Tindall, Esq.

Assistant Attorney General

Office of the Attorney General

Maryland Port Administration

World Trade Center, 20th Floor

401 E. Pratt Street

Baltimore, Maryland 21202

Counsel for Defendants

\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\-\--

Perry F. Sekus

Assistant U. S. Attorney

**IN THE UNITED STATES DISTRICT COURT**

**[FOR THE DISTRICT OF MARYLAND]{.underline}**

**PROJECT LIFE, INC. [et]{.underline} [al.]{.underline}, :**

**Plaintiffs, :**

**v. : Civil Action No. WMN-98-2163**

**PARRIS GLENDENING, [et]{.underline} [al.]{.underline}, :**

**Defendants. :**

**:**

**\...ooOoo**\...

**ORDER**

Upon consideration of the United States of America's Motion for Leave to
Participate as *Amicus* *Curiae*, any opposition thereto, and the
applicable law, it is this \_\_\_\_\_ day of March, 1999,

**ORDERED,** that the United States of America's Motion for Leave to
Participate as *Amicus* *Curiae* **BE**, and the same hereby **IS**,
**GRANTED**; and, it is further

**ORDERED**, that the Clerk of Court accept for filing the Memorandum of
Law of the United States of America as *Amicus* *Curiae*; and it is
further

**ORDERED**, that the Clerk of Court mail a copy of this Order to all
counsel of record.

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

William M. Nickerson

United States District Court Judge

**IN THE UNITED STATES DISTRICT COURT**

**[FOR THE DISTRICT OF MARYLAND]{.underline}**

**PROJECT LIFE, INC. [et]{.underline} [al.]{.underline}, :**

**Plaintiffs, :**

**v. : Civil Action No. WMN-98-2163**

**PARRIS GLENDENING, [et]{.underline} [al.]{.underline}, :**

**Defendants. :**

**:**

**\...ooOoo**\...

**MEMORANDUM OF LAW OF THE**

**[UNITED STATES OF AMERICA AS AMICUS CURIAE]{.underline}**

The United States of America, by its undersigned counsel, submits this
Memorandum of Law as *Amicus* *Curiae*.

**TABLE OF CONTENTS**

# PAGE

I. INTRODUCTION 1

II\. ARGUMENT 3

> A. Plaintiffs' Complaint is Ripe for Adjudication 3
>
> B. Defendants' Request for Certification under 28\
> U.S.C. § 1292(b) is Meritless 5
>
> 1\. Certification Under § 1292(b) is an\
> Exceptional Remedy Granted Only in\
> Rare Cases 6
>
> 2\. Defendants\' Request for Certification\
> Does Not Meet the Stringent Requirements\
> of § 1292(b) 8
>
> a\. Controlling Question of Law 9
>
> i\. The ADA Claim 9
>
> ii\. The FHA Claim 16

b\. Substantial Ground for Difference\
of Opinion 20

> 3\. The Legal Questions Presented for\
> Certification are Inextricably Inter-\
> woven with the Facts of this Case and Are\
> Therefore Not Appropriate for Immediate\
> Interlocutory Appellate Review 23

III\. CONCLUSION 25

**I. INTRODUCTION**

Plaintiffs bring this action seeking injunctive relief and monetary
damages under the Americans with Disabilities Act ("ADA"), 42 U.S.C. §
12101, *et seq*., the Fair Housing Act ("FHA"), 42 U.S.C. § 3601, *et
seq*., and the Maryland Discrimination in Housing Act, Md. Code Art. 49B
§ 22, based on Defendants' denial of a long-term berth in Maryland's
port for the former U.S.S. Sanctuary, a decommissioned hospital ship
upon which Plaintiffs intend to operate a short-term residential,
educational, and training program for recovering substance abusers.

Defendants moved to dismiss the complaint or, in the alternative, for
summary judgment, on or about July 31, 1998. Defendants maintained,
*inter* *alia*, that neither the ADA nor the FHA were applicable to the
facts as alleged by Plaintiffs. This Court denied Defendants' motion by
Order dated November 30, 1998. The Court specifically declined to find,
as Defendants had urged, that the ADA and FHA were inapplicable based on
the pre-discovery factual record.

Less than two months after the entry of the Court's November 30, 1998
Order, and before the commencement of discovery, Defendants once again
move to dismiss the complaint. In the pending motion, Defendants argue
that this suit is not ripe for adjudication. In the alternative,
Defendants request that the Court certify the question of the
applicability of the ADA and FHA to the United States Court of Appeals
for the Fourth Circuit. Defendants also request that the Court stay
discovery and dismiss defendants David L. Winstead and Tay
Yoshitani.[^1]

Defendants\' motion must be denied for several independent reasons. With
respect to Defendants\' ripeness challenge, their contention that this
case is not ripe for adjudication until the Maryland Port Administration
("MPA") decides whether to grant the Sanctuary a berth simply ignores
the many years of harm that Plaintiffs have endured as a result of
Defendants\' discriminatory denial of a long-term berth for the
Sanctuary. As for Defendants\' request for certification under 28 U.S.C.

§ 1292(b), Defendants have failed to demonstrate that exceptional
circumstances warrant an immediate interlocutory appeal. Moreover,
Defendants\' request for certification does not meet the stringent
requirements of § 1292(b). Finally, the legal questions presented for
certification are inextricably interwoven with the facts of this case
and are therefore not appropriate for interlocutory appellate review.

Accordingly, for the reasons set forth in greater detail below, the
United States, as *amicus* *curiae*, respectfully submits that this
Court should deny Defendants\' Motion to Dismiss, or in the Alternative,
to Certify Questions for Interlocutory Review and For a Stay.

**II. ARGUMENT**

**A. [Plaintiffs\' Complaint is Ripe for Adjudication]{.underline}**

Defendants contend that this case is not ripe for adjudication because
the "MPA has not yet decided whether to approve or reject Project
Life\'s proposal for berthing the Sanctuary at an MPA pier." *Memorandum
in Support of Defendants\' Motion to Dismiss or, in the Alternative, to
Certify Questions for Interlocutory Review and for a Stay* \[hereinafter
"*Defendants\' Memo."\]* at 2. Defendants claim that the Advisory
Council established to consider Plaintiffs' request for a berth will
make a recommendation to the MPA in April 1999, and the MPA will
sometime thereafter issue a final decision on Plaintiffs\' request.
*Id*. at 3. Thus, Defendants argue, "\[u\]ntil the Advisory Council
make\[s\] a recommendation and the MPA makes a final decision on
plaintiffs\' request, there is no ripe and justiciable claim for this
Court to consider." *Defendants\' Memo.* at 2-3.

Defendants\' ripeness challenge is easily dismissed because it ignores
the full breadth and scope of Plaintiffs\' complaint. As this Court
noted in its November 30, 1998 Memorandum, Project Life has been
negotiating with the MPA since 1994 to find a suitable permanent berth
for the Sanctuary. *November 30, 1998 Memorandum* at 2. Furthermore, the
Court correctly observed that the record as currently developed supports
a finding that the MPA has made it an express condition, imposed as "the
result of discrimination on the part of Defendants against recovering
substance abusers," that Plaintiffs obtain "community support" before
the Sanctuary can be given a permanent berth. *Id.* at 2-3. Finally, the
record establishes that Plaintiffs\' request for reasonable
accommodation, *Plaintiffs\' Opposition to Defendants\' Motion to
Dismiss or, in the Alternative, Motion for Summary Judgment*
\[hereinafter "*Plaintiffs\' Opp.*"\] at Exhibit 21, has been denied by
virtue of Defendants\' contention that Plaintiffs are not legally
entitled to relief under the FHA. These facts, when accepted as true, as
they must be, *Byrd v. Gate Petroleum Co*., 845 F.2d 86, 87 (4th Cir.
1988), firmly support Plaintiffs\' claim that the delay in locating a
berth, the denial of reasonable accommodation, and the imposition of the
community support requirement constitute past and on-going
discrimination that has harmed Plaintiffs. *See* *Complaint* at ¶¶ 46-48
(defendants\' actions have (a) injured and are injuring Project Life and
its clients; (b) resulted in monetary damages to Project Life due to its
inability to assure grantors that it has a permanent berth; and (c)
harmed Project Life\'s clients by preventing them from participating in
the program.). *See also Potomac Group Home Corp. v. Montgomery County,
MD*, 823 F. Supp. 1285, 1295 (D. Md. 1993) (holding "neighbor
notification" provision of Montgomery County ordinance violated FHA on
its face by creating explicit classification based on disability that
was unsupported by any legitimate justification). *Accord:* *Larkin*
*v.* *State of Michigan Dept. of Social Services*, 89 F.3d 285, 289
(6^th^ Cir. 1996).

With respect to Plaintiffs\' FHA claim, "numerous courts have stressed
that housing discrimination causes a uniquely immediate injury."
*Assisted Living Associates of Moorestown, L.L.C. v. Moorestown
Township*, 996 F. Supp. 409, 427 (D.N.J. 1998). The court in
*Moorestown* observed that "\[s\]uch discrimination, which under the FHA
includes a refusal to make reasonable accommodations, makes these
controversies ripe." *Id*. The Fourth Circuit itself has observed that a
violation occurs under the FHA when an individual or entity "is first
denied a reasonable accommodation, irrespective of the remedies granted
in subsequent proceedings." *Bryant Woods Inn, Inc. v. Howard County,
Maryland*, 124 F.3d 597, 602 (4th Cir. 1997).[^2] Thus, Defendants\'
denial of Plaintiffs\' request for reasonable accommodation makes this
case ripe for judicial review.

In short, the mere fact that the MPA has not yet decided whether to
lease a berth to the Sanctuary is merely evidence of continuing
discrimination and does not negate the many years of discrimination and
resultant injury that Plaintiffs have endured. Accordingly, Defendants\'
contention that this case is not ripe for adjudication must necessarily
fail.

**B. Defendants' Request for Certification under 28 U.S.C.\
[§ 1292(b) is Meritless                               ]{.underline}**

Defendants move, in the alternative, to amend this Court\'s November 30,
1998 Order to allow an interlocutory appeal to the United States Court
of Appeals for the Fourth Circuit under 28 U.S.C. § 1292(b). Section
1292(b) provides:

> When a district judge, in making in a civil action an order not
> otherwise appealable under this section, shall be of the opinion that
> such order involves a controlling question of law as to which there is
> a substantial ground for difference of opinion and that an immediate
> appeal from the order may materially advance the ultimate termination
> of the litigation, he shall so state in writing in such order. The
> Court of Appeals which would have jurisdiction of an appeal of such
> action may thereupon, in its discretion, permit an appeal to be taken
> from such order, if application is made to it within ten days after
> the entry of the order: *Provided, however*, that application for
> appeal hereunder shall not stay proceedings in the district court
> unless the district court or the Court of Appeals or a judge thereof
> shall so order.

28 U.S.C. § 1292(b)(emphasis in original).

There are several independent reasons why Defendants' certification
request must be denied. First, Defendants have failed to demonstrate
that this case presents exceptional circumstances warranting immediate
appellate review. Second, Defendants' request for certification does not
meet the stringent requirements of § 1292(b). Finally, the legal
questions presented for certification are inextricably interwoven with
the as yet not fully-developed facts of this case and are therefore not
suited to certification under § 1292(b).

1.  Certification Under § 1292(b) is an\
    [Exceptional Remedy Granted Only in Rare Cases]{.underline}

Section 1292(b) permits a district court to certify an interlocutory
order for immediate appeal under only exceptional circumstances.
*Coopers & Lybrand v. Livesay*, 437 U.S. 463, 475, 98 S. Ct. 2454, 2461,
57 L. Ed. 2d 351 (1978)(only "exceptional circumstances \[will\] justify
a departure from the basic policy of postponing appellate review until
after the entry of a final judgment."); *United States v. Hollywood
Motor Car Co.,* 458 U.S. 263, 265, 102 S. Ct. 3081, 3082, 73 L. Ed. 2d
754 (1982)(appeals under this section are a rare exception to the final
judgment rule that generally prohibits piecemeal appeals); *President
and Directors of Georgetown v. Madden*, 660 F.2d 91, 97 (4th Cir.
1981)(interlocutory appeals should be granted in exceptional
circumstances only); *Beck v. Communication Workers of America*, 468 F.
Supp. 93, 95 (D. Md. 1979)(Blair, J.)("Section 1292(b), a narrow
exception to the longstanding rule against piecemeal appeals, is limited
to exceptional cases.").

The legislative history of § 1292(b) "indicates that it \[is\] to be
used only in extraordinary cases where decision of an interlocutory
appeal might avoid protracted and expensive litigation. It \[is\] not
intended merely to provide review of difficult rulings in hard cases."
*United States Rubber Co. v. Wright*, 359 F.2d 784, 785 (9th Cir.
1966)(per curium).

Because interlocutory appeals are disfavored, "\[t\]he party seeking
certification has the burden of showing that exceptional circumstances
justify a departure from the \'basic policy of postponing appellate
review until after the entry of a final judgment.'" *Fukuda v. Los
Angeles County*, 630 F. Supp. 228, 229 (C.D. Cal. 1986)(quoting *Coopers
& Lybrand*, 437 U.S. at 475, 98 S. Ct. at 2461, 57 L. Ed. 2d 351);
*Clark-Dietz v. Associates-Engineers, Inc., v. Basic Constr. Co.*, 702
F.2d 67, 68-69 (5th Cir. 1983)("The basic rule of appellate jurisdiction
restricts review to final judgments, avoiding the delay and extra effort
of piecemeal appeals. Section 1292(b) appeals are exceptional.").
*Accord* *In re Cement Antitrust Litigation*, 673 F.2d 1020, 1026 (9th
Cir. 1982), *aff'd*, 459 U.S. 1190 (1983).

Defendants point to no exceptional circumstances favoring immediate
appellate review. Rather, Defendants seek to circumvent the normal
process of the District Court in hopes of obtaining a favorable decision
on appeal. Defendants contend that "\[i\]t would be helpful to the Court
and the parties to have a ruling on \[the legal issues involved\] before
proceeding with discovery and post-discovery motions in this case."
*Defendants\' Memo.* at 7. This is not the type of exceptional
circumstance warranting certification. *Coopers & Lybrand*, 437 U.S. at
475, 98 S. Ct. at 2461, 57 L. Ed. 2d 351; *Hollywood Motor Car Co.,* 458
U.S. at 265, 102 S. Ct. at 3082, 73 L. Ed. 2d 754*; Beck,* 468 F. Supp.
at 95.

> 2\. Defendants\' Request for Certification Does Not\
> [Meet the Stringent Requirements of § 1292(b)]{.underline}

Defendants' request for certification is also defective because it fails
to meet the stringent requirements of § 1292(b). Before a district court
may certify an order for interlocutory appeal under § 1292(b), the court
must find that the order satisfies three requirements: (1) the order
presents a controlling question of law; (2) substantial ground for
difference of opinion exists concerning that question; and (3) an
immediate appeal will materially advance the ultimate termination of the
litigation. 28 U.S.C. § 1292(b); *President and Directors of Georgetown
College v. Madden*, 660 F.2d 91, 96 (4th Cir. 1981); *Leading Edge Tech.
Corp. v. Sun Automation, Inc.*, \_\_\_ F. Supp. \_\_\_, 23 U.S.P.Q 2d
1161, 1173-74 (D. Md. 1991)(Harvey, J.). If any one of these criteria is
not met, the district court cannot certify the order for interlocutory
appeal. *Aparicio v. Swan Lake*, 643 F.2d 1109, 1110 n.2 (5th Cir.
1981); *In re Cement Antitrust Litigation*, 673 F.2d 1020, 1026 (9th
Cir. 1982), *aff'd*, 459 U.S. 1190 (1983).[^3]

> a\. [Controlling Question of Law]{.underline}

Defendants contend that whether the ADA and FHA apply to this case is a
controlling question of law as to which there is substantial ground for
difference of opinion. *Defendants\' Memo.* at 5. Defendants offer no
compelling support for their argument.

> i\. [The ADA Claim]{.underline}

Defendants maintain that because the MPA does not provide services of
the type Plaintiffs seek to any persons or organizations, regardless of
disability or non-disability, it cannot discriminate against Plaintiffs
if it refuses to provide such services to Project Life. *Defendants\'
Memo.* at 8. This argument, however, ignores the factual record, which
is at worst ambiguous as to whether Defendants provide to others the
services that Plaintiffs seek. Indeed, the record to date reveals that
the MPA does provide the services that Plaintiffs seek to
non-water-borne commerce such as the S.S. John Brown, a floating museum,
and to numerous layberthed naval vessels, all berthed at MPA piers.[^4]
Additional discovery may very well reveal that the MPA provides the
services Plaintiffs seek to other non-waterborne commercial vessels. In
any event, whether the MPA provides the services Plaintiffs seek is a
factual question that requires further development before appellate
review is appropriate. *See* Section II(B)(3), *infra*.

More importantly, Defendants have misconstrued the term "controlling
legal question," as that term is employed under § 1292(b). Defendants
claim that the "controlling legal question" ripe for certification is
whether the ADA is *applicable* to the facts as alleged in the
complaint. They contend that the berth that Plaintiffs seek does not
constitute a "program, service, or activity" subject to coverage under
Title II of the ADA because the Sanctuary\'s services are residential in
nature. Thus, Defendants conclude, the ADA is not applicable.

That the ADA is in fact applicable to the facts as alleged is made clear
by the Supreme Court\'s recent decision in *Pennsylvania Department of
Corrections v. Yeskey*, \_\_\_ U.S. \_\_\_, 118 S. Ct. 1952, 1954, 141
L. Ed. 2d 215 (1998)(applying ADA to prisons). In deciding whether
prisons are covered under the ADA, the Court in *Yeskey* held that the
nature of the particular service rendered by a public entity is
irrelevant for purposes of determining whether Title II of the ADA
applies. *Yeskey,* \_\_ U.S. at \_\_\_, 118 S. Ct. at 1954-55. The Court
had no trouble concluding that because state prisons fall squarely
within the statutory definition of a "public entity,", 42 U.S.C. §
12131(1)(B), the ADA plainly applies to the "services, programs, or
activities" provided by such entities. 42 U.S.C. § 12132.[^5] *See*
*also* *Gorman v. Bartch*, 152 F.3d 907, 912-13 (8th Cir.
1998)(post-arrest transportation of wheelchair user by police);
*Innovative Health Systems, Inc. v. City of White Plains*, 117 F.3d 37,
40-41 (2d Cir. 1997)(zoning); *Crowder v. Kitaqawa*, 81 F.3d 1480,
1483-84 (9th Cir. 1996)(state quarantine requirements relating to
carnivorous animals, including guide dogs). The same analysis applies
here: Because the MPA is a "public entity" involved in providing
"services, programs, or activities," i.e., the leasing of berths, the
ADA clearly covers the MPA.

Defendants do not dispute, and the Court has in fact held, that the
services that the MPA provides are the services of a public entity.
*November 30, 1998, Memorandum* at 4. What Defendants claim, however, is
that they have not violated the ADA because they do not lease berths for
residential purposes. That question, however, is not one involving the
*application* of the ADA, but instead goes to the merits of the case.
Thus, the actual issues to be resolved in this case are whether
Defendants have unlawfully imposed conditions upon Plaintiffs that have
not been imposed on other port tenants, and whether Defendants have
refused to provide a berth to the Sanctuary as a result of community
opposition. Because those questions go to the merits of the case and
require further factual exploration, interlocutory appellate review at
this stage of the proceedings is simply inappropriate.

Defendants also contend that their discussions with Project Life and
with community residents about the possibility of providing a long-term
berth for the Sanctuary cannot subject them to the ADA. *Defendants\'
Memo.* at 8. Again, Defendants\' argument misses the mark. It is not
that Defendants\' participation in discussions with community residents
subjects them to liability under the ADA. Rather, it is their imposition
of additional criteria and the denial of a long-term berth based on what
Defendants learned in those discussions that gives rise to liability
under the ADA.

The factual record establishes that over the many years of negotiation
with the MPA, Plaintiffs were denied a long-term berth for the Sanctuary
because of community opposition to the program that Plaintiffs seek to
operate. As the Court noted in its November 30, 1998 Memorandum,
Defendants "offered locations agreeable to Project Life, only to later
withdraw the offers in response to opposition from neighboring
co-tenants or community members." *November 30, 1998 Memorandum* at 2.
Indeed, several automobile importers voiced their opposition to a
long-term lease on the basis that Project Life's clients would disrupt
business in the Port. As one automobile importer stated:

> I am writing to express my grave concern at the possibility of the
> Sanctuary returning to berth at Childs Street. To put it simply, its
> reappearance and eventual use as a drug addiction treatment facility
> would be deeply damaging and possibly fatal to our business at the
> Atlantic and Chesapeake Terminals adjacent to it. . . .
>
> \[I\]f the Sanctuary returns, it has been made very clear to us both
> by Chrysler and our other car customers that they will not be able to
> use the Atlantic Terminal primarily for reasons of general marketing
> and security. . . . Also, at times there are up to 5,000 new cars
> parked at the facility with doors open and keys in the ignition. These
> cars have a value of up to \$40,000 each and will, by necessity, be
> parked within a few yards of the Sanctuary. . . . The risks are too
> high and the perception too negative.

*Plaintiffs\' Opp.* at 12 n.6.

Moreover, in a subsequent meeting with the relevant parties at the World
Trade Center in 1997, Defendants explained that they felt compelled to
adhere to the desires of their "customers," including the automobile
importers, and therefore deny the Sanctuary a berth. *Plaintiffs' Opp*.
at 12-13. As a result of this community opposition, Defendants have
demanded that Plaintiffs satisfy certain conditions before the Sanctuary
is afforded a long-term berth \-- conditions that Defendants have not
imposed on other port tenants.[^6] Thus, it is not just Defendants\'
denial of the berth based on community concerns, but also their decision
to impose additional, discriminatory eligibility requirements before
granting or denying the Sanctuary a long-term berth (e.g., requiring
Project Life to solicit community support, to agree to use a particular
entrance at Pier 6, etc.) that subjects Defendants to liability under
the ADA. *See* 42 U.S.C. § 12182(b)(2)(A)(i). Indeed, it is precisely
this type of repugnant discrimination that Congress had in mind when
enacting the ADA.[^7]

In fact, Congress provided that the ADA\'s remedies are available not
only to persons who are being subjected to discrimination on the basis
of disability but also to anyone "who has reasonable grounds for
believing that such person is about to be subjected to discrimination.
42 U.S.C. § 12188(a). In this case, then, Project Life can invoke the
ADA not merely on the basis of the imposition of discriminatory
eligibility criteria or actual denial of a berth; it also has the
opportunity to show that it has reason to believe that it will be denied
a berth and is therefore about to be subjected to discrimination.

Finally, Defendants argue that the General Assembly\'s recent
legislative enactments \-- specifically, House Bill 187 and Senate Bill
584 \-- cannot subject them to liability under the ADA. This court has
already determined, however, that whether Defendants are subject to
liability under the ADA rests upon whether Plaintiffs have been denied
services by reason of their disability. *November 30, 1998 Memorandum*
at 4. Because the Court has found that there exists a genuine dispute as
to why the Sanctuary has been denied a long-term berth, Defendants
cannot escape liability at this stage of the proceedings. Defendants\'
argument concerning the General Assembly\'s recent amendments,
therefore, is of no moment.

> ii\. [The FHA Claim]{.underline}

Defendants contend that whether the FHA applies in this case is also a
controlling question of law subject to immediate interlocutory appellate
review under § 1292(b). This Court properly determined based on closely
analogous legal precedent that the Sanctuary, if made operational, would
be a dwelling within the meaning of the FHA. *November 30, 1998
Memorandum* at 5 (citing *United States v. Southern Management Corp.*,
955 F.2d 914 (4th Cir. 1992)).[^8] The Court correctly determined that
there existed "no reasoned basis to distinguish this case from any other
\'services or facilities\' case." *November 30, 1998 Memorandum* at 6.
Consequently, the sole legal issue to be determined is whether leasing a
berth to a residential facility would involve more than a "reasonable
accommodation." *November 30, 1998 Memorandum* at 6. As discussed in
greater detail below, that inquiry is an inherently fact-specific one
that is not appropriate for interlocutory appeal. *See* Section
II(B)(3), *infra*; *Hovsons, Inc. v. Township of Brick*, 89 F.3d 1096,
1103 (3d Cir. 1996)("\'The reasonable accommodation inquiry is highly
fact-specific, requiring a case-by-case determination.\'")(quoting
*United States v. California Mobile Home Park Management Co.*, 29 F.3d
1413, 1418 (9th Cir. 1994)).

Defendants contend that the controlling legal issue with respect to
Plaintiffs\' FHA claim is "whether jurisdiction that is contingent upon
the Sanctuary\'s ultimate success in the litigation on the FHA claim can
be invoked under the FHA at the outset of the litigation, as the basis
for the suit\'s *current* jurisdiction." *Defendants\' Memo.* at 6
(emphasis in original).[^9] Although not a model of clarity,
Defendants\' argument appears to be that because the Sanctuary is not
operational, it is not a dwelling, and Plaintiffs therefore are not
entitled to protection under the FHA. This argument simply defies logic
as well as precedent.

Defendants\' argument, if accepted, would enable the MPA to deprive this
Court of jurisdiction to entertain Plaintiffs\' claim so long as it
continues to discriminate by denying the Sanctuary a long-term berth.
Put differently, the contingent nature of Plaintiffs\' FHA claim rests
solely in Defendants\' hands; so long as they deny the Sanctuary a
berth, it is not a dwelling subject to protection under the FHA. This is
not, and obviously cannot be, the law. *See*, *e.g.*, *Innovative Health
Systems v. City of White Plains*, 117 F.3d 37, 49 (2d Cir. 1997);
*Sullivan v. City of Pittsburgh*, 811 F.2d 171, 182 (3d Cir.), *cert*.
*denied*, 484 U.S. 849 (1987).

In addition, the statute itself defines an "aggrieved person" to include
not only those persons who have already suffered injury but also any
person who "believes that such person *will be injured* by a
discriminatory housing practice *that is about to occur.*" 42 U.S.C. §
3602(i)(2)(emphasis supplied).[^10] It also defines "dwelling" to
include not only structures which are presently "occupied" but those
"*intended for occupancy*" as well as any "*vacant land which is offered
for sale or lease for the construction or location thereon of any such
\... structure \...."* (emphasis supplied). Moreover, were Defendants\'
argument correct, the Act could not be applied in cases of
discriminatory zoning or land use practices where the housing has not
yet been built. Yet courts have long held that the FHA reaches such
discriminatory practices. *See* *Casa Marie, Inc. v. Superior Court of
Puerto Rico*, 988 F.2d 252, 257 n.6 (1st Cir. 1993) (\"The phrase
\'otherwise make unavailable or deny\' encompasses a wide array of
housing practices, and specifically targets the discriminatory use of
zoning laws and restrictive covenants\") (citations omitted);
*Huntington Branch, NAACP v. Town of Huntington*, 844 F.2d 926 (2d Cir.
1988), aff\'d, 488 U.S. 15 (1988); *Resident Advisory Board v. Rizzo*,
564 F.2d 126 (3rd Cir. 1977), *cert*. *denied*, 422 U.S. 1022 (1976);
*Smith v. Town of Clarkton*, 682 F.2d 1055, 1068 (4th Cir. 1982)
(withdrawal from multi-city low income housing authority); *Metropolitan
Housing Development Corp. v. Village of Arlington Heights*, 558 F.2d
1283 (7th Cir. 1977), *cert*. *denied*, 434 U.S. 1025 (1978); *United
States v. City of Black Jack*, 508 F.2d 1179 (8th Cir. 1974), *cert*.
*denied*, 422 U.S. 1022 (1975) (rezoning to prohibit apartments);
*Atkins v. Robinson*, 545 F. Supp. 852 (E.D. Va. 1982), *aff\'d*, 733
F.2d 318 (4th Cir. 1984) (veto by county board of proposed housing
project).[^11]

> b\. [Substantial Ground for Difference of Opinion]{.underline}

In addition to demonstrating that a controlling question of law supports
certification, which Defendants have failed to do, Defendants must also
show that there exists substantial ground for difference of opinion with
respect to Plaintiffs\' ADA and FHA claims. 28 U.S.C. § 1292(b);
*Madden*, 660 F.2d at 96. Significantly, Defendants have not cited any
conflicting legal authority that there exists substantial doubt about
the law as applied in this case. The lack of such a showing, which is a
staple of successful motions under § 1292(b), is a sufficient basis in
and of itself to deny Defendants' request for certification. *See,
e.g.*, *Genentech, Inc. v. Novo Nordisk A/S*, 907 F. Supp. 97, 100
(S.D.N.Y. 1995); *Shipping Corp. of India, Ltd. v. American Bureau of
Shipping*, 752 F. Supp. 173, 175 (S.D.N.Y. 1990).

In the absence of any conflicting legal authority, Defendants are left
to argue that "direction from the Court of Appeals on these legal issues
would shape the parties\' litigation and the Court\'s resolution of the
remaining issues throughout any continuation of the case." *Defendants\'
Memo.* at 6. Such an argument could be made by any unsuccessful movant
in the district court, and certainly does not warrant the exceptional
relief Defendants seek. In actuality, Defendants\' argument merely
evidences a disagreement with this Court\'s November 30, 1998 Memorandum
and Order.

In ruling on a § 1292(b) request for certification, it is not enough
that Defendants merely disagree with this Court's decision. "\[A\]
motion \[under § 1292(b)\] should not be granted merely because a party
disagrees with the ruling of the district judge." *Max Daetwyler Corp.
V. Meyer,* 575 F. Supp. 280, 282 (E.D. Pa. 1983); *United States v.
Grand Trunk Western R.R.*, 95 F.R.D. 463, 471 (W.D. Mich. 1981)(denying
certification because the moving party "merely questions the
correctness" of the court's ruling); *Clark-Dietz v.
Associates-Engineers, Inc., v. Basic Constr. Co.*, 702 F.2d 67, 68-69
(5th Cir. 1983)("An interlocutory appeal assuredly does not lie simply
to determine the correctness of a judgment of liability.").

Because a party's mere disagreement with a district court's ruling does
not constitute a "substantial ground for difference of opinion" within
the meaning of § 1292(b), the "difference of opinion" necessary to
support certification must arise out of genuine doubt as to the correct
legal standard applied in the particular case. *Cardona v. General
Motors Corp.*, 939 F. Supp. 351, 353 (D.N.J. 1996). Defendants have not
cited to any authority that casts doubt on this Court\'s holdings.

Defendants also argue that certification is warranted because the issues
presented in this case "raise issues of first impression that may occur
again in future cases." *Defendants\' Memo.* at 6. The mere fact,
however, that this case presents a novel factual scenario is not
sufficient to warrant certification under § 1292(b). The courts have
made clear that "the mere presence of a disputed issue that is a
question of first impression, standing alone, is insufficient to
demonstrate a substantial ground for difference of opinion." *In re
Flor*, 79 F.3d 281, 284 (2d Cir. 1996); *FDIC v. First National Bank of
Waukesha*, 604 F. Supp. 616, 622 (E.D. Wis. 1985).

In sum, "Section 1292(b) was not meant to substitute an appellate
court's judgment for that of the trial court." *Koehler v. Bank of
Bermuda Ltd.*, 101 F.3d 863, 866 (2d Cir. 1996). Defendants\'
disagreement with this Court\'s November 30, 1998 Memorandum and Order
is insufficient to warrant the exceptional relief that they seek under §
1292(b).

> 3\. The Legal Questions Presented for Certification are Inextricably
> Interwoven with the Facts of this Case and are Therefore Not
> Appropriate for Immediate [Interlocutory Appellate Review]{.underline}

The Supreme Court recently made clear that a court may not take an
interlocutory appeal under § 1292(b) when the appealed legal issues
involve factual determinations. *Johnson v. Jones*, 515 U.S. 304,
318-19, 115 S. Ct. 2151, 2159, 132 L. Ed. 2d 238 (1995). In *Johnson*,
the Supreme Court held that the defendants could not "appeal a district
court's summary judgment order insofar as that order determined whether
or not the pretrial record sets forth a \'genuine\' issue of fact for
trial." *Id.* In the present case, this Court ruled that the record
developed to date presents a genuine dispute of material fact. Because
the legal issues in this case are inextricably interwoven with the
facts, certification to the Fourth Circuit would be imprudent.
*Harriscom Svenska AB v. Harris Corp.*, 947 F.2d 627, 630 (2d Cir.
1991)(when the controlling issues are factual rather than legal, §
1292(b) certification is unavailable).

As the courts have made clear, "\[i\]t does not serve § 1292(b)'s
intended purpose to rule on an ephemeral question of law that may
disappear in the light of a complete and final record." *Koehler v. Bank
of Bermuda Ltd.*, 101 F.3d 863, 864 (2d Cir. 1996); *Slade v. Shearson,
Hammill & Co., Inc.*, 517 F.2d 398, 400 (2d Cir. 1974)(declining to
resolve legal question on undeveloped factual record, noting that "an
abstract answer to an abstract question is the least desirable of
judicial solutions."); *Arnett v. Gerber Scientific, Inc.*, 575 F. Supp.
770, 771 (S.D.N.Y. 1983)(legal question "must arise in a sufficiently
developed factual context to \'sharply define the legal issues
raised.\'")(quoting *Dewitt v. American Stock Transfer Co.*, 440 F.
Supp. 1084, 1088 (S.D.N.Y. 1977)). For example, in declining to grant
certification under § 1292(b), the court in *Koehler v. Bank of Bermuda
Ltd.*, 101 F.3d 863, 864 (2d Cir. 1996)**,** noted that "we are
reluctant to rely on what may turn out to be an incomplete record to
clarify legal doctrine for the district court's guidance." *Id*. *See
also Oneida Indian Nation v. County of Oneida*, 622 F.2d 624, 628 (2d
Cir. 1980)(declining to decide issues that might vanish upon full
development of the factual record).

In the present case, this Court specifically held with respect to
Plaintiffs\' ADA claim that "there is a genuine dispute of material fact
as to why the Sanctuary has been denied a permanent home." November 30,
1998 Memorandum at 4. The Court correctly determined that "\[b\]ased on
the record currently before the Court, a jury could reasonably conclude
that it was the Port \[Administration's\] illegal deference to co-tenant
and community prejudices against recovering substance abusers that has
delayed the lease of a berth." *Id.* at 4-5. In light of this factual
dispute, and the need for further development of the record, it would be
inappropriate to saddle the Court of Appeals with an interlocutory
appeal at this stage of the proceedings.

Similarly, with respect to Plaintiffs\' FHA claim, this Court held that
"it remains a disputed question of fact as to whether leasing a berth to
a residential facility would involve more than a "\'reasonable
accommodation.\'" *November 30, 1998 Memorandum* at 6. Because
"\'\[t\]he reasonable accommodation inquiry is highly fact-specific,
requiring a case-by-case determination,\'" *Hovsons, Inc. v. Township of
Brick*, 89 F.3d 1096, 1103 (3d Cir. 1996)(quoting *United States v.
California Mobile Home Park Management Co.*, 29 F.3d 1413, 1418 (9th
Cir. 1994)), resolution of Plaintiffs\' FHA claim requires the further
development of the factual record before the Court of Appeals can
properly render a decision.

In sum, premature appellate review at this stage of the proceedings
would risk the development of unsound precedent in areas of significant
importance. *Johnson*, 515 U.S. at 318-19. Here, the circumstances do
not warrant a departure from the basic policy of postponing appellate
review until after the entry of a final judgment in the district court.

**III. CONCLUSION**

For the foregoing reasons, the United States, as *amicus* *curiae*,
submits that the Court should deny Defendants\' Motion to Dismiss or, in
the Alternative, to Certify Questions for Interlocutory Review and for a
Stay.

Respectfully submitted,

BILL LANN LEE LYNNE A. BATTAGLIA

Acting Assistant Attorney United States Attorney

General

Civil Rights Division

JOHN L. WODATCH By:\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Chief PERRY F. SEKUS

Disability Rights Section Assistant U.S. Attorney

Federal Bar No. 07379

BEBE NOVICH 6625 U.S. Courthouse

Trial Attorney 101 W. Lombard Street

Disability Rights Section Baltimore, Maryland

Department of Civil Rights 21201

United States Department of Justice 410-209-4818

P.O. Box 66738

Washington, D.C. 20035-6738

202-616-2313

JOAN A. MAGAGNA

Chief

Housing and Civil Enforcement

Section

ISABELLE M. THABAULT

MYRON S. LEHTMAN

Attorneys

Housing and Civil Enforcement

Section

Department of Civil Rights

United States Department of Justice

P.O. Box 65998

Washington, D.C. 20035-5998

202-338-0959

**[CERTIFICATE OF SERVICE]{.underline}**

I hereby certify that on this \_\_[1st]{.underline}\_\_\_ day of March,
1999, copies of the United States of America's Memorandum of Law as
*Amicus* *Curiae* were mailed, first class postage prepaid, to:

Andrew D. Levy, Esq.

Lauren E. Willis, Esq.

Brown, Goldstein & Levy, LLP

520 West Fayette Street

Baltimore, Maryland 21201

Counsel for Plaintiffs

**and to:**

Kathleen A. Morse, Esq.

Assistant Attorney General

Office of the Attorney General

Civil Litigation Division

200 Saint Paul Place, 20th Floor

Baltimore, Maryland 21202

**and to:**

Wendy A. Kronmiller, Esq.

Office of the Attorney General

Department of Health and Mental Hygiene

300 W. Preston Street, Suite 302

Baltimore, Maryland 21201

**and to:**

Margaret W. Tindall, Esq.

Assistant Attorney General

Office of the Attorney General

Maryland Port Administration

World Trade Center, 20th Floor

401 E. Pratt Street

Baltimore, Maryland 21202

Counsel for Defendants

\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_

Perry F. Sekus

Assistant U. S. Attorney

[^1]: ^/^ This *amicus* Memorandum does not address the latter two
    issues.

[^2]: ^/^ The Fourth Circuit noted in *Bryant Woods* that FHA claims are
    "unlike takings claims, which do not ripen until post-decisional
    procedures are invoked without achieving a just compensation."
    *Bryant Woods*, 124 F.2d at 602. Thus, the taking cases cited in
    support of Defendants\' ripeness argument are simply inapposite.

[^3]: ^/^ The Supreme Court has observed that "even if the district
    judge certifies an order under § 1292(b), the appellant still \'has
    the burden of persuading the court of appeals that exceptional
    circumstances justify a departure from the basic policy of
    postponing appellate review until after entry of a final judgment.'"
    *Coopers & Lybrand*, 437 U.S. at 475, 98 S. Ct. 2461, 2461 L. Ed. 2d
    (quoting *Fisons, Ltd. v. United States*, 458 F.2d 1241, 1248 (7th
    Cir. 1972)).

[^4]: ^/^ This of course assumes that the MPA\'s statutory mandate is to
    lease berths only for the purpose of increasing "waterborne
    commerce," a proposition advanced by Defendants that is not at all
    clear from a reading of MPA\'s empowering statute.

[^5]: ^/^ The Court observed that "the fact that a statute can be
    \'"applied in situations not expressly anticipated by Congress does
    not demonstrate ambiguity. It demonstrates breadth"\'". *Yeskey*,
    \_\_ U.S. at \_\_\_, 118 S. Ct. at 1954-55 (quoting *Sedima,
    S.P.R.L. v. Imrex Co.*, 473 U.S. 479, 499, 105 S. Ct. 3275, 3286, 87
    L. Ed. 2d 346 (1985)).

[^6]: ^/^ In early April 1998, the Maryland Port Administration
    indicated that it would consider leasing a long-term berth to the
    Sanctuary provided two preconditions were met: (1) Project Life must
    obtain a determination under HB 149 by the ADAA that the berth is
    appropriate and safe for public access; and (2) Project Life must
    obtain community support for any such location. In late April 1998,
    the Maryland Department of Transportation imposed additional
    conditions on Project Life for leasing a berth: (3) the Advisory
    Council must approve the use of a pier by Project Life; and (4)
    Project Life's clients and staff must use the Hull Street entrance
    to the North Locust Point Terminal to get to Pier 6, not the main
    Key Highway entrance used by all other entities leasing berths at
    North Locust Point. *Plaintiffs\' Opp.* at 16-17.

[^7]: ^/^ In enacting the ADA, Congress made express findings about the
    status of people with disabilities in our society and determined
    that they were subject to continuing "serious and pervasive"
    discrimination that "tended to isolate and segregate individuals
    with disabilities." 42 U.S.C. § 12101(a)(2). Evidence before
    Congress demonstrated that persons with disabilities were sometimes
    excluded from public services for no reason other than distaste for
    or fear of their disabilities. *See* S. Rep. No. 116, 101st Cong.,
    1st Sess. 7-8 (1989) (citing instances of discrimination based on
    negative reactions to sight of disability) (Senate Report); H.R.
    Rep. No. 485, Pt. 2, 101st Cong., 2d Sess. 28-31 (1990) (same)
    (House Report). Indeed, the United States Commission on Civil
    Rights, after a thorough survey of the available data, documented
    that prejudice against persons with disabilities manifested itself
    in a variety of ways, including "reaction\[s\] of aversion,"
    reliance on "false" stereotypes, and stigma associated with
    disabilities that lead to people with disabilities being "thought of
    as not quite human." U.S. Commission on Civil Rights, *Accommodating
    the Spectrum of Individual Abilities*, 23-26 (1983); *see* *also*
    Senate Report, *supra*, at 21. The negative attitudes, in turn,
    produced fear and reluctance on the part of people with disabilities
    to participate in society. *See* Senate Report, *supra*, at 16;
    House Report, *supra*, at 35, 41-43. Congress thus concluded that
    persons with disabilities were "faced with restrictions and
    limitations . . . resulting from stereotypic assumptions not truly
    indicative of the individual ability of such individuals to
    participate in, and contribute to, society." 42 U.S.C. §
    12101(a)(7).

[^8]: ^/^ This Court\'s holding is consistent with other cases that have
    ruled that a variety of analogous structures are \"dwellings\" under
    the Act, including a nursing home for elderly residents, *Hovsons,
    Inc. v. Township of Brick*, 89 F.3d 1096, 1102 (3d Cir. 1996) and
    *United States v. Commonwealth of Puerto Rico*, 764 F. Supp. 220
    (D.P.R. 1991); seasonal vacation bungalows, *United States v.
    Columbus Country Club*, 915 F.2d 877, 881 (3d Cir. 1990), *cert.
    denied*, 501 U.S. 1205 (1991); a home for orphans and other
    children, *Hughes Memorial Home*, 396 F. Supp. at 549; a residential
    school for emotionally disturbed children, *United States v.
    Massachusetts Industrial Finance Agency*, 910 F. Supp. 21, 26 n.2
    (D. Mass. 1996); a facility for people with HIV, *Baxter v. City of
    Belleville*, 720 F. Supp. 720 (S.D. Ill. 1989); a homeless shelter,
    *Woods v. Foster*, 884 F. Supp. 1169 (N.D. Ill. 1995); housing for
    migrant farm workers, *Lauer Farms, Inc. v. Waushara County Board of
    Adjustment*, 986 F. Supp. 544 (E.D. Wis. 1997); *Hernandez v. Ever
    Fresh Co.*, 923 F. Supp. 1305 (D. Ore. 1996) and *Villegas v. Sandy
    Farms, Inc.*, 929 F. Supp. 1324, 1328 (D. Ore. 1996); and a
    time-share apartment complex, *Louisiana Acorn Fair Housing v.
    Quarter House, Oak Ridge Park, Inc.*, 952 F. Supp. 352 (E.D. La.
    1997).

[^9]: ^/^ Defendants phrase their interpretation of the controlling
    question of law differently at page 7 of their Memorandum: "whether
    jurisdiction can be premised upon a contingency that has not yet
    occurred, and will not occur unless the Court takes jurisdiction and
    the plaintiffs prevail." *Defendants\' Memo.* at 7.

[^10]: ^/^ As already noted, the same is true of the ADA. *See* 42
    U.S.C. § 12188(a)(1)(remedies are available to any person who is
    being subjected to discrimination or who has reasonable grounds for
    believing that discrimination is about to occur).

[^11]: ^/^ The legislative history of the 1988 amendments to the FHA,
    which made it unlawful to discriminate on the basis of handicap,
    confirms that Congress intended these holdings to apply with equal
    force to zoning actions that discriminate on such a basis. The
    report of the House Judiciary Committee on the legislation states:

    \[Section 804(f)\] would also apply to state or local land use and
    health and safety laws, regulations, practices or decisions which
    discriminate against individuals with handicaps. While state and
    local governments have authority to protect safety and health, and
    to regulate use of land, that authority has sometimes been used to
    restrict the ability of individuals with handicaps to live in
    communities. This has been accomplished by such means as the
    enactment or imposition of health, safety or land-use requirements
    on congregate living arrangements among non-related persons with
    disabilities. Since these requirements are not imposed on families
    and groups of similar size of unrelated people, these requirements
    have the effect of discriminating against persons with disabilities.

    > The Committee intends that the prohibition against discrimination
    > against those with handicaps apply to zoning decisions and
    > practices. *The Act is intended to prohibit the application of
    > special requirements through land-use regulations, restrictive
    > covenants, and conditional and special use permits that have the
    > effect of limiting the ability of such individuals to live in the
    > residence of their choice in the community*.

    H.R. Rep. 100-711, *Fair Housing Amendments Act of 1988*, House
    Committee on the Judiciary, at 24 (June 17, 1988) (\"House
    Report\"), reprinted in 1988 U.S.C.C.A. N. 2173.