Case 3:08-cv-00557-JBA Document 3 Filed 04/15/08 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

REBECCA TAYLOR,

:

On behalf of herself and all others

:

similarly situated,

:

Plaintiffs

:

V.

:

THE HOUSING AUTHORITY OF THE :

CITY OF NEW HAVEN,

:

JIMMY MILLER, individually and in his :

official capacity as Executive Director, :

DAVID ALVARADO,

:

IIONA LEFFINGWELL,

:

LOUISE PERSALL,

:

ROBERT SOLOMON, and

:

JASON TURNER, individually and in their :

official capacities as members of the

:

Housing Authority Commission for the :

City of New Haven,

:

Defendants

:

DOCKET NO. __________ April 10, 2008

COMPLAINT

Plaintiff Rebecca Taylor has spina bifida and uses a wheelchair. This is an action to

require the defendants to help Ms. Taylor use her Section 8 subsidy to rent accessible housing.

Ms. Taylor participates in the federal Section 8 program, administered in New Haven by the

Housing Authority of the City of New Haven (“HANH”). Unable to navigate her wheelchair

down the steps to the apartment building where she now lives, Ms. Taylor is exposed to danger

from accidents or intruders whenever she is home alone.

Upon information and belief, her situation is similar to that of a significant number of

other Section 8 participants. The plaintiffs seek injunctive relief, declaratory judgment, and

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compensatory damages, and costs of litigation under the Fair Housing Act Amendments, Section 504 of the Rehabilitation Act, and the National Housing Act.
HISTORY OF NONCOMPLIANCE BY THE DEFENDANTS 1. HANH is a recipient of funding from the United States Department of Housing and Urban Development (“HUD”) with which it administers the Section 8 Housing Choice Voucher program in New Haven (“Section 8”). 2. Through 24 C.F.R. § 8.28, HUD requires recipient housing authorities to assist disabled individuals and their families who are attempting to use their Section 8 vouchers to find accessible dwellings. The regulation specifies, inter alia, that: “(a) . . . [A] recipient administering a Section 8 . . .housing voucher program shall: . . . . (3) When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the PHA and, if necessary, otherwise assist the family in locating an available accessible dwelling unit.” 3. Through 24 C.F.R. § 100.204, HUD additionally requires recipient housing authorities to reasonably accommodate disabled individuals and their families where necessary to allow them to participate in the Section 8 program. 4. In or about 1994, HUD reviewed HANH to assess its compliance with Section 504 of the Rehabilitation Act. As a result, HANH entered into a voluntary agreement with HUD addressing past non-compliance with their obligations to disabled persons in need of housing, including the obligations to help search for accessible apartments under 24 C.F.R. § 8.28 and 24 C.F.R. §
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100.204 (the “1994 Agreement”). In 2006, HUD again reviewed HANH to assess its compliance with Section 504 of the Rehabilitation Act. In 2007, HUD issued a report, stating that HANH was not in compliance with certain obligations to disabled persons in need of housing, including the obligations of 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204. See Exhibit A, Section 504 Report by Carl Harris. As a result, HANH agreed to enter into another Voluntary Compliance Agreement (the “2007 Agreement”). 5. On September 19, 2007, a federal court ordered HANH to provide a list of accessible, available apartments as required by 24 C.F.R. § 8.28(a)(3) to one Section 8 family. See Gaither v. Housing Authority of the City of New Haven, 2007 WL 3378533, D. Conn., November 2, 2007 (NO. 3:07-CV-667WWE). 6. As of April 9, 2008—a more than six months later—HANH still does not provide a list of available, accessible apartments to all Section 8 participants that include disabled persons. 7. Jimmy Miller currently serves as the Executive Director of HANH. At the direction of Miller, HANH “does not do searches for apartments.” See Exhibit B, Admission #1 from Plaintiffs’ First Request for Admissions from Jimmy Miller, dated July 18, 2007. 8. Each of the defendant members of the Commission personally knew that HANH was not in full compliance with 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204, yet each fraudulently voted to certify that HANH was in compliance with its fair housing obligations. 9. HANH has not been fully compliant with either 24 C.F.R. § 8.28 or 24 C.F.R. §100.204, at any time during the tenure of Miller. Instead, HANH has demonstrated a continuous pattern of non-compliance with its obligations under 24 C.F.R. § 8.28, 24 C.F.R. § 100.204, the Fair
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Housing Act Amendments and Section 504 of the Rehabilitation Act. Such pattern continues through the present.
THE NAMED PLAINTIFF’S REQUEST FOR SEARCH ASSISTANCE 10. Taylor family currently resides in a three-bedroom apartment at 205 Dover Street, 1st floor in New Haven. The family consists of Rebecca Taylor and her son and daughter. Although it is located on the first floor, the apartment is not wheelchair accessible, in that both the front and back entrances to the building must be reached by stairs. 11. Whenever she is alone in the home, Rebecca Taylor is endangered by the lack of any wheelchair-accessible way of exiting from her home. 12. Rebecca Taylor has searched via the newspaper for an accessible two or three-bedroom apartment, without success. 13. In early 2008, the Bank of America instituted foreclosure proceedings on the apartment building where the Taylor family resides. 14. Soon thereafter, Section 8 staff person Denise Senior conducted a recertification of the Taylor household. 15. During that recertification, Ms. Senior and Ms. Taylor discussed the fact that the 205 Dover Street apartment building was in foreclosure, and the strong likelihood that Ms. Taylor would have to move out of the building very soon. 16. Ms. Taylor asked Ms. Senior if HANH would help her search for an accessible apartment. 17. Ms. Senior responded by stating that searching for an apartment was Ms. Taylor’s responsibility under the Section 8 program.
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18. Ms. Senior’s response, described in paragraph 17, was a misrepresentation of the Section 8 program rules. 19. Ms. Senior’s response, described in paragraph 17, represents the policy, pattern and/or practice of HANH toward disabled persons on Section 8 who ask for HANH’s assistance in searching for an apartment. 20. On or about March 14, 2008 Ms. Taylor reiterated her concerns in a written request for a reasonable accommodation, which was received by HANH that same day. See Exhibit C, Reasonable Accommodation Letter from R. Taylor. To date, HANH has not responded in any way. 21. On April 3, 2008 the Superior Court for the district of New Haven granted a motion for default against the owner of the building, Ms. Taylor’s landlord, for failure to appear and defend the foreclosure proceedings against 205 Dover Street. See Exhibit D, Case Detail Docket for CV-08-5017975-S. Upon information and belief, the Taylor family is likely to be ejected from 205 Dover Street within the next sixty days.
CLASS MEMBERS 22. The proposed class definition is: “All current and future participants in the Section 8 Housing Choice Voucher program who, because of the disabilities and/or handicaps of themselves or someone in their household, need assistance in searching for suitable dwellings to lease under the program.”
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23. The proposed class is appropriate for certification under Rule 23 (b)(2) of the Federal Rules of Civil Procedure, because the Defendants have refused to act “on grounds generally applicable to the class,” and the plaintiffs seek primarily injunctive and declaratory relief. 24. The proposed class is “so numerous that joinder of all members is impracticable” within the meaning of Rule 23 (a)(1) of the Federal Rules of Civil Procedure. Upon information and belief, the Defendants’ policy, pattern and/or practice of refusing to assist disabled Section 8 participants in their searches for accessible housing pursuant to their obligations under 24 C.F.R. § 8.28 affects over three hundred current participants who hold Section 8 vouchers administered by HANH. Upon information and belief, HANH issues at least one hundred additional vouchers each year, and at least a third of those vouchers are issued to households that include a disabled member. Thus the class, while fluid, nevertheless comprises least four hundred voucher-holders and participants at any given point. 25. The proposed class has been subjected to identical or similar treatment by the Defendants, such that “there are questions of law or fact common to the class” within the meaning of Rule 23 (a)(2) of the Federal Rules of Civil Procedure. 26. The claims of named plaintiff Rebecca Taylor are “typical of the claims or defenses of the class” within the meaning of Rule 23 (a)(3) of the Federal Rules of Civil Procedure. 27. The named plaintiff Rebecca Taylor will “fairly and adequately protect the interests of the class” within the meaning of Rule 23 (a)(4) of the Federal Rules of Civil Procedure.
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JURISDICTION AND VENUE 28. Pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and 42 U.S.C. §1983, jurisdiction is proper in that plaintiff’s claims alleged herein arise under federal law. 29. Venue is proper in that the facts giving rise to the claims alleged herein occurred in New Haven, Connecticut, and all parties reside or have their business address in New Haven, Connecticut.
PARTIES 30. Named plaintiff Rebecca Taylor is a member of a household that participates in the Section 8 program, and has disabilities and handicaps, as those terms are defined in the Fair Housing Act Amendments and the Rehabilitation Act. 31. Defendant Jimmy Miller currently serves as the Executive Director of HANH. He is sued in his individual and official capacities. 32. Defendants David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner are Commissioners of the Housing Authority Commission of the City of New Haven, and as such are responsible for directing and supervising the actions of HANH. They are each sued in their official capacities. 33. Together, HANH, Miller, Alvarado, Leffingwell, Persall, Solomon, and Turner (the “Defendants”) are jointly and severally liable for the harms alleged herein.
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COUNT I The Fair Housing Act Amendments 42 U.S.C. § 3604(F)(3)(B)
and its implementing regulations at 24 C.F.R. Part 100 34. The plaintiffs incorporate paragraphs 1 through 33 of this Complaint as if repeated in this Count I. 35. The Defendants’ have intentionally discriminated against the plaintiffs on account of their disabilities, denying the plaintiffs the right to enjoy the benefits of participating in the Section 8 Program by refusing to provide search assistance to the plaintiffs that they routinely provide to non-disabled Section 8 households, including lists of available Section 8 apartments and mobility counseling services. 36. The Defendants have a policy and/or practice of discriminating against persons with disabilities and/or handicaps, as described in this Complaint. 37. The acts described in this Count I have injured and continue to injure the plaintiffs by making housing and services unavailable to them, or available only on different terms in violation of 42 U.S.C. §3604 et seq. 38. The acts described in this Count I have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair. 39. The acts and omissions described in this Count I were committed knowingly, intentionally, and with callous disregard for the rights of the plaintiffs.
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COUNT II Section 504 of the Rehabilitation Act (29 U.S.C. § 794 et seq.)
and its implementing regulations at 24 C.F.R. Part 8 40. The plaintiffs incorporate paragraphs 1 through 39 of this Complaint as if repeated in this Count II. 41. The plaintiffs are “otherwise qualified” to participate in the Section 8 program. 42. The plaintiffs requested that the defendants reasonably accommodate them by helping them to search for and lease a suitable unit under the Section 8 program. 43. The Defendants denied the plaintiffs’ requests for a reasonable accommodation, either directly or through unconscionable delay. 44. The acts described in this Count II have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair.
COUNT III Section 1983 and the United States Housing Act of 1937, as amended, and 24 C.F.R. § 8.28 45. The plaintiffs incorporate paragraphs 1 through 44 of this Complaint as if repeated in this Count III. 46. The Defendants’ policies, pattern and/or practices violated subpart (a)(3) of 24 C.F.R. § 8.28, which requires that housing authorities must: “When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the [housing authority] and, if necessary, otherwise assist the family in locating an available accessible dwelling unit.”
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47. The Defendants have been advised by HUD and others on numerous occasions from 1994 to the present that such policies, pattern and/or practices were unlawful. 48. The Defendants were further put on notice that their policies pattern and/or practices violated subpart (a)(3) of 24 C.F.R. § 8.28 by an Order issued by the Honorable Warren Eginton on September 19, 2007, enjoining HANH from its refusal to supply such listing. 49. The acts described in this Count III have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair. 50. The acts and omissions described in this Count III were committed knowingly, intentionally, and with callous disregard for the rights of the plaintiffs.
COUNT IV Preliminary and Permanent Injunctive Relief 51. The plaintiffs incorporate paragraphs 1 through 50 of this Complaint as if repeated in this Count IV. 52. The plaintiffs seek to preserve the status quo by enjoining the Defendants’ refusal to comply with 42 U.S.C. § 3604(F)(3)(B), Section 504 of the Rehabilitation Act and 24 C.F.R. § 8.28(a)(3). 53. Plaintiffs are likely to be irreparably harmed by the defendants’ continuing noncompliance, as demonstrated by the defendants’ failure to assist the named plaintiff, Rebecca Taylor, exposing her family to imminent homelessness and loss of her Section 8 benefits. 54. Plaintiffs are likely to prevail on the merits of their claims.
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55. The balance of hardships tips decidedly in the plaintiffs’ favor, inasmuch as the defendants

are being asked to provide a purely administrative remedy, whereas Rebecca Taylor may lose her

home, and her continued eligibility for a housing subsidy.

PRAYER FOR RELIEF

WHEREFORE, the plaintiff prays for relief from this Court, in the form of:

1. An injunction requiring the defendants to timely assist the plaintiffs in finding and

leasing an accessible or modifiable dwellings in New Haven County, by:

a. providing a list of the currently available, accessible apartments; and

b. using third party mobility counseling services or their own staff, if necessary, to:

i.

search for two-bedroom dwellings that are accessible or modifiable;

ii. visit such dwellings to determine whether they are truly accessible or

modifiable;

iii. make modifications for accessibility if necessary; and

iv. facilitate the leasing process.

3. A declaration that the defendants have violated their obligations under 24 C.F.R. § 8.28,

and the Fair Housing Act Amendments of 1988, Section 504 of the Rehabilitation Act of 1973.

4. An award of compensatory damages to the named plaintiff;

5. An award of costs of suit, and reasonable attorney’s fees pursuant to 42 U.S.C.

§3613(c)(2) and any other applicable statute that would permit such award; and

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6. Such other relief as the Court deems just. Respectfully submitted, THE PLAINTIFFS BY THEIR ATTORNEY: /s/_______________ Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 498-8223 Email: jenvickery400@hotmail.com
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 Case 3:08-cv-00557-JBA Document 12 Filed 04/22/08 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

REBECCA TAYLOR, et al

:

Plaintiffs

:

V.

:

THE HOUSING AUTHORITY OF THE :

CITY OF NEW HAVEN, et al

:

Defendants

:

DOCKET NO. 3:08-cv-557(JBA) APRIL 22, 2008

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTIVE RELIEF AND EMERGENCY MOTION FOR PARTIAL SUMMARY JUDGMENT Since 2006, the defendants have been aware of, and engaged in litigation upon, the claims made on behalf of the plaintiff class in this lawsuit. See Ex. 1, 2, and 3. No genuine issue of material fact or possible defense remains unexplored. Rather, a question of legal accountability is the sole issue to be resolved: Can the defendants be liable for failing to follow HUD’s directives to assist disabled Section 8 voucher holders who are unable to effectively search for accessible housing themselves? The attached documentary evidence in the form of public documents, signed correspondence and sworn statements made by the defendants’ own staff provides ample evidence that the defendants currently refuse to assist disabled families who request help locating apartments to lease under the section 8 program. In doing so, the defendants choose to operate in a manner that is at odds with HUD’s interpretation of the Fair Housing Act Amendments, the Rehabilitation Act, and 24 C.F.R. §8.28(a)(3). The plaintiffs suffering from this legal stand off desperately need to have it resolved as rapidly as possible.

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I. FACTUAL BACKGROUND The plaintiffs set forth all relevant facts in the attached Local Rule 56(a)(1)
Statement of Facts. II. LEGAL STANDARDS
A. Summary Judgment Summary judgment is available to fair housing plaintiffs where the defendants fail to raise a genuine issue of material fact concerning the existence of a “pattern and practice” discrimination claim. United States v. Incorporate Village of Island Park, 888 F.Supp. 419, 449 (E.D.N.Y. 1995). Summary judgment or partial summary judgment is permitted “if, when ‘[v]iewing the evidence produced in the light most favorable to the nonmovant ... a rational trier could not find for the nonmovant.’ Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir.1991).” Clarkson v. Coughlin, 898 F.Supp. 1019, (S.D.N.Y. 1995); Algie v. RCA Global Communications, Inc., 891 F.Supp. 875 (S.D.N.Y. 1994). All evidence must be viewed in the light most favorable to the nonmoving party, yet the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587(1986).
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B. Preliminary Injunction Preliminary injunctive relief is available to a plaintiff if she is “likely to suffer irreparable harm if the injunction is not granted and ‘either (1) likelihood of success on the merits of its case, or (2) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in favor’ of the party requesting preliminary relief.” K.P. v. Juzwic, 891 F. Supp. 703, 710 (D. Conn. 1995). Likelihood of success does not mean certainty of success; a greater than fifty percent probability of success is sufficient. Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). Housing discrimination “almost always results in irreparable injury.” Gresham v. Windrush Partners, Ltd., 730 F.2d 1417, 1424 (11th Cir.); Ruiz v. New Garden Township, 232 F. Supp. 2d 418, 428-29 (E.D. Pa. 1984). “[W]here a plaintiff demonstrates a likelihood of success on the merits of a fair housing claim, irreparable injury may be presumed.” Forest City Daly Housing, Inc. v. Town of Hempstead, 175 F.3d 144, 153 )2d Cir. 1999). Violation of a federal statute or regulation is irreparable harm as a matter of law. See Concerned Residents of Taylor Wythe v. New York City Housing Authority, 1996 WL 452432 at *3 (S.D.N.Y. August 9, 1996) (citing Hueblin, Inc. v. Federal Trade Comm’n, 539 F.Supp. 123, 128 (D. Conn. 1982)).
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III. ANALYSIS A. The Defendants Offer Less Housing Search Assistance to the Disabled Than
to the Non-Disabled, in Violation of 42 U.S.C. §3604(f). 1. Mobility Counseling Services. The defendants take the position that “The housing authority does not do housing searches.” See Exhibit B to Complaint. They have claimed repeatedly in legal pleadings that providing housing search assistance to Section 8 tenants is so contrary to the vision and purpose of the Section 8 program as to constitute a “fundamental alteration” of it: The plaintiffs are asking the Housing Authority to take an action which is outside the requirements of the Section 8 Program. As can be seen from the information contained in the administrative plan for the program, referred to in the Affidavit of Mr. Heinrichs and attached as an exhibit to the Affidavit, there is no requirement under the law that the Housing Authority find a place for any member of the Section 8 program and then move the family to that location.” Docket # 55, Gaither v. HANH, 3:07cv-667 (WWE). In fact, housing authorities have been assisting Section 8 tenants in with specialized housing searches or in finding hard-to-find types of housing for over two decades, with excellent success. See, e.g., Wallace v. Chicago Housing Authority, 298 F.Supp. 2d 710 (N.D. Ill. 2003) Walker v. HUD, 734 F.Supp. 1231 (N.D. Texas 1989). Search assistance is an important tool in helping the Section 8 program meet its goals of allowing families exercise the freedom to move to unfamiliar neighborhoods, become more fully integrated into mainstream society, and receive numerous benefits like decent quality housing and safer streets. HANH itself has commented on publicly on why Section 8 participants
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need search assistance. A 2003 study of local housing needs co-authored by HANH stated: “HANH needs additional housing search assistance resources to serve all section 8 participants who would benefit. HANH considers housing search assistance to be a critical tool for helping participant families to lease-up.” Ex. 8 at 44.
So many housing authorities now provide search assistance to certain participants in their Section 8 programs that private companies now exist that offer search assistance to housing authorities nation-wide. See Ex. 23. Yet HANH persists in claiming that providing search assistance to disabled households like Ms. Taylor’s would fundamentally alter the Section 8 program. Incredibly, not only do the defendants know very well that such organizations exist, but one mobility counseling company actually lists HANH as a star client on its web site. See Ex 23. The decision by Housing Opportunities Unlimited to feature HANH on its web site as a client reflects HANH’s history as a repeat client that has spent hundreds of thousands of dollars on such services between 2004 and 2007. Id. at p. 2; Ex. 9. Unfortunately, those services were rarely offered to disabled families Section 8 who needed to find accessible housing, and then only in response to litigation.
HANH’s position is not based on lack of funding. In addition to the $15,000,000 budget surplus currently enjoyed by HANH, see Ex. 10, it had entered into a contract with a mobility counseling firm, Housing Opportunities Unlimited. The contract provided for $100,000 per year to be spent on mobility counseling services for Section 8 participants, from June 2004 through October 2007. See Ex. 7. The existence of this
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search assistance contract shows that HANH was always in a position to assist the plaintiffs, and had long been receiving special funding from HUD for this purpose. Thus, the Housing Opportunities Unlimited contract was effective and the mobility counseling services available when the Gaither, Hampton, and Stokes-Hall households first sought a reasonable accommodation in 2006. See Ex. 1, 2, and 3.
Yet the defendants chose not to use the service to serve disabled household until nine months later, after a specific request to do so by a federal judge. On August 28, 2007, when the defendant Commissioners voted to extend mobility counseling services to the Gaither and Stokes-Hall families, each had filed actions against HANH at the Connecticut Commission on Human Rights and Opportunities (“CHRO”), HUD’s identified local clearinghouse for discrimination complaints. See Ex. 1 and 3. Ms. Gaither’s case had been the subject of three status conference calls with federal Magistrate Judge Holly Fitzsimmons during August of 2007 alone. Accordingly, the August 28, 2007 minutes for the Commission actually specify that this vote occurred because “HUD has directed HANH to provide immediate relocation services to a specifically named family.”1 Id. at p.1
1 Though referred to only indirectly in the August 28, 2007 minutes, at the time of this vote, the Gaither family had informed HANH of their intent to file a motion for preliminary injunction against HANH for failing to offer such services to a disabled household within the next week. They did so on September 4, 2007. The court ruled in the defendants’ favor on the issue of mobility counseling on September 19, 2007. Having received word that the Court had ruled in their favor, the defendants stopped providing mobility counseling services to the Gaither family. See Ex.6.
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This vote represented a calculated effort by the commissioners to offer the minimum of mobility counseling necessary to appear to have altered the defendants’ illegal practices. The minutes make clear that the commissioners did not merely ratify the course recommended by Executive Director Miller. Rather, the minutes include an exchange between Commissioner Solomon and the Reasonable Accommodations Coordinator William Heinrichs in which Heinrichs tries to convince the Commission to assist additional families that he has identified as needing the same mobility counseling services. Id. Even though these families have not taken any legal action against HANH, Heinrichs avers that he has obtained the approval of “management” to use the mobility counseling services to benefit them, and that the language of the resolution is open-ended enough to encompass such an approach. Id. Commissioner Solomon reacts by proposing to revise the resolution, saying “why don’t we assist the families specifically named by HUD.” Id. The Commissioners then vote in accord with Commissioner Solomon’s proposal to provide mobility counseling services only those who have commenced legal action against HANH. Id.
The vote to revise the resolution to exclude the additional families in need of assistance was unanimous, despite the fact that the discussion had already made clear that the mobility counseling contract had over $57,000 of unused capacity—funding already budgeted by HANH for such services . Ex. 9 at p. 1. According to the minutes, none of the Commissioners commented in supported of Henrichs’ effort to extend mobility counseling to disabled families who had not filed suit. Id. at p. 2. Instead, the
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commissioners chose to continue HANH’s decades-long practice of blatantly hoarding resources for the benefit of the politically vocal elderly at the expense of the disabled. See HUD 504 Investigative Report, attached as Ex. A to Complaint; Ex. 19.
2. Current Listing of Available, Accessible Apartments For over two years, the defendants have been told by HUD and numerous other advocates and agencies that they have an obligation to provide disabled Section 8 households with an apartment listing that is at least as complete and up-to-date as the list they routinely provide to non-disabled Section 8 households. Their answer each time has been the same: we will. Each time, HANH claims that they are in the midst of doing a survey of landlords that will finally provide them with an accessible apartment listing. Yet each time another judge or agency prods HANH to produce the results of said survey, they simply promise once again that they are about to complete it. In 2003, a study coauthored by HANH included the following bullet point in a list of actions that it intended to take to improve fair housing in New Haven: “development of an accurate listing of accessible and adaptable housing units available in the City . . . This listing should build upon the existing Housing Authority inventory listing.” See Ex. 8 at p. 7. Accordingly, on August 14, 2006, defendant Jimmy Miller represented to the City of New Haven Commission on Disabilities that HANH “will be conducting a survey” on the issue of accessible housing stock for Section 8 participants. See Ex. 19 at p. 2, fourth paragraph. On October 9, 2007, HANH reported to HUD as part of its obligations under the 2007 Voluntary Compliance Agreement that “HANH shall compile a list of units that are
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accessible to persons with disabilities. . . . The list will identify what features of such unit are accessible (i.e. wheelchair accessible). The HANH listing form for landlords to list available units has questions addressing this objective. . . We are reviewing this form to make improvements and will conduct a mailing to landlords.” See Ex. 13 at p. 2, last two paragraphs. Three months later, on January 30, 2008, William Heinrichs of HANH offered as an update that “I’ve also drafted and haven’t had time to put out yet a questionnaire to all Section 8 landlords asking as to what accessible units they own.” See Ex. 6 at p. 14, lines 14-17. And finally, five years after it was first mentioned, on March 27, 2008, the defendants issued Supplemental Compliance to Discovery Requests in which they note that “A copy of a survey sent to 1,444 owners and property managers in the New Haven in regard to rental units. The survey was sent out in February 2008 and as of this time, over 700 responses have been received.” See Ex.14 at p. 2, #6(3). Remarkably, after repeatedly claiming that the survey was necessary to create the listing, the defendants still do not offer any apartment listings based on the survey responses. See Ex. 5 and 16 at p. 5.
Ultimately, HANH’s empty promises to produce a listing in the future are irrelevant. As other courts have observed, there is a point at which delay in providing housing-related services turns into a denial of those services. Langlois v. Abington Housing Authority, 207 F.3d 43, 48 (1st Cir. 2000); Groome Resources, Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000); Matyasovszky v. Housing Authority of the City of Bridgeport, 226 F.R.D. 35, 45-46 (D.Conn. 2005). On two
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separate occasions in the past four months, HANH staff who were asked by members of the public for the accessible apartment listing responded that there is no such listing. See, e.g., Ex. 5. After two years, the defendants’ continual promises to provide a listing in the future have become no more than a technique for distracting from the reality that HANH does not and has never provided the required listing. 3. Repeated Discrimination Shows Sufficient Intent for Liability.
Intent to discriminate can be inferred from a pattern of conduct alone, for purposes of the Fair Housing Act Amendments of 1988. “Factors to be considered in evaluating a claim of intentional discrimination include: “(1) the discriminatory impact of the governmental decision; (2) the decision’s historical background; (3) the specific sequence of events leading up to the challenged decision; (4) departures from the normal procedural sequences; and (5) departures from normal substantive criteria.” Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 579-80 (2d Cir. 2003). In the present case, the defendants continue to violate the law until sued, and to repeatedly alter their policy only on a case-by-case basis. The defendants’ knowledge of the illegality of their policy, combined with a pattern of responses expressly aimed at neutralizing or settling lawsuits rather than adjusting the illegal policy, creates a strong basis for inferring intent to discriminate. Such knowledge is sufficient to show intent under §3604(f)(2)2 of the Fair
2 42 U.S.C. §3604(f)(2) provides that “. . . [I]t shall be unlawful— (f)(2) To discriminate against any person . . . in the provision of services or facilities in connection with [a] dwelling, because of a handicap of— (A) that person; or
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Housing Amendments Act, and a showing of intent is unnecessary to create liability under §3604(f)(3)3. See Id.; accord, Wisconsin Community Services, Inc. v. City of Milwaukee, 465 F.3d 737, 747-50, 753 (7th Cir. 2006). B. The Defendants Refuse Comply with 24 C.F.R. §8.28(a)(3).
HUD has asked HUD on three separate occasions by HUD to stop violating 24 C.F.R. §8.28(a)(3) by refusing to assist disabled Section 8 participants who need help locating an apartment to lease under the program. See, e.g., Ex. A to Complaint; Ex. 19 and 20. The defendants also openly admit their policy of refusing to provide accessible apartment listings to disabled families or perform housing searches, see Ex. B to Complaint. In light of the amount of energy that HUD and other agencies have put into informing HANH of the specific actions required by 24 C.F.R. §8.28(a)(3), these positions can only be described as willful noncompliance.
1. The Commissioners understand how to comply with 24 C.F.R. § 8.28(a)(3), but have chosen not to do so.
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available. . .”
3 42 U.S.C. §3604(f)(2) provides that“(f) (3) For purposes of this subsection, discrimination includes. . . . (B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling. . . ”
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The Second Circuit has consistently held that deference is due to the interpretation that a federal agency, such as HUD, gives its regulations. See, e.g., Shapiro v. Cadman Towers, 844 F. Supp. 116, aff’d, 51 F.3d 328, (2d Cir. 1995); see generally Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844, (1984). For example, in Liddy v. Cisneros, the court rejected a plaintiff who urged the court to interpret a regulatory interpretation in way that contradicted HUD guidance, stating:
A federal agency's interpretation of its own regulations is ‘ “of controlling weight unless it is plainly erroneous or inconsistent with the regulation.’ Udall v. Tallman, 380 U.S. 1, 16-17 (1965) ; . . . Soler v. G. & U., Inc., 833 F.2d 1104, 1108 (2d Cir.1987) (“Even if a court concludes that its alternative construction of the agency's regulation is ‘more equitable’ or ‘more reasonable,’ the agency's interpretation of its regulation is not thereby rendered invalid”) (citations omitted), cert. denied, 488 U.S. 832 (1988). 823 F.Supp. 164, 174 (S.D.N.Y. 1993).
The defendants regularly receive messages from HUD and other agencies attempting to correct HANH’s failure to comply with 24 C.F.R. §8.28(a)(3). See Ex. 6,9, 12, 13, 19, 20 and 21. Nevertheless, the defendant commissioners have shown no concern that HANH refuses to acknowledge HUD’s interpretation of 24 C.F.R. §8.28(a)(3), even going out of their way to keep HANH management from adopting a new policy of compliance on August 28, 2007. As discussed infra in section A.1 of this brief, the commissioners were presented with a resolution proposed by HANH’s management that would have authorized extending the services of a mobility counseling firm to all the Section 8 households with disabled members who needed it. See Ex.9. Without any case-by-case analysis or apparent concern for why the particular disabled
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families involved needed mobility counseling services, the commissioners rejected the plan. Id. Because HANH chooses not to devote any of its own manpower to providing search assistance, their vote was tantamount to a decision not to provide the disabled families with any search assistance at all. See Ex. 6 at p. 2. The August 28, 2007 vote demonstrates yet again that the defendants’ standard practice is to refuse all search assistance to disabled families, unless and until the family obtains legal assistance and notifies HUD. The named plaintiff is just the latest in a line of families that have experienced the human cost of this strategy.
2. Noncompliance with 24 C.F.R. § 8.28(a)(3) is politically expedient. In the absence of background information, HANH’s decision not to help the disabled Section 8 population to determine whether an accessible unit is available might seem so irrational that it could only be the product of some legitimate disagreement or ambiguity in the regulation. Why would HANH, whose mission is to help vulnerable populations such as the disabled choose to provide less assistance to persons with mobility disabilities than to the general population? The answer is because such a listing would show that there are only a handful of accessible units available to disabled people in New Haven. In turn, this lack of available units exposes the Housing Authority to an additional form of liability. A 2007 Investigative 504 Report by HUD explains the issue, having concluded that HANH is in violation of its responsibilities to the disabled, as follows:
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HUD is also concerned that a substantial amount of HANH’s accessible housing stock is grouped in developments that are subject to an elderlyonly Designated Housing Plan. While the plan calls for housing the nonelderly disabled with Section 8 vouchers, there is no evidence that the non-elderly disabled have been provided with such certificates. There were further questions raised regarding HANH’s provision of assistance to non-elderly disabled to assist in locating accessible properties eligible for Section 8 assistance that meet the needs of non-elderly persons with disabilities. . . . The Section 504 Regulations at 24 C.F.R. 8.28 govern the recipient’s obligations in administering Section 8 certificates or vouchers. The reviewer did not find evidence that HANH is fulfilling these obligations. See Ex. A to Complaint. In other words, HANH itself helped create to the shortage of privately owned accessible units available for rental by Section 8 households. HANH regularly asks HUD for permission to reserve even more public housing units exclusively for the elderly, see Ex. 8 at p. 33 and 52. These requests are made in spite of the fact that HANH itself acknowledges that “public units. . .are now experiencing vacancies and declining applications from elderly families,” and observes the opposite trend for its disabled client population. Id. Defendant Miller observed in 2006 that applications from persons with disabilities had been increasing, which suggests they now exceed the 35% mark reached in 2003. See Ex. 12 at p.2 ; Ex. 8 at p. 14. In order to obtain from HUD politically popular “elderly-only” designations for its public housing complexes, HANH repeatedly promises to make up the loss of the accessible public housing units to disabled persons by offering them Section 8 vouchers. See Ex. 8 at p. 9; Ex. 13; Ex. A attached to Complaint. Not only has HANH failed to follow through on providing these extra Section 8 vouchers, as HUD points out in the quoted paragraph above, but the existing Section 8
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vouchers have turned out to be meaningless to households that include mobility-impaired individuals who cannot find any available accessible units on the private market. In 2003, HANH participated in a HUD-required “Analysis of Fair Housing Impediments” which concluded that Section 8 vouchers are not effective in housing the disabled unless coupled with search assistance:
. . .A significant proportion of HANH’s Section 8 participants have mental health problems and other disabilities that limit their ability to effectively use their Section 8 assistance. HANH has sought HUD grant funding for housing search assistance , but, most recently in 2001, HANH’s grant application was denied because of a technical threshold requirement. Id. at 44. As HANH itself recognizes, absent search assistance services, Section 8 vouchers will not relieve the artificial drain on New Haven’s supply of accessible apartments that is imposed by HANH’s insistence on designating the majority of its accessible units as “elderly-only.” In sum, if HANH were to distribute a list of accessible units that included a column showing the date of availability, that list would show that there is no principled basis for HANH’s claims that it can justify reserving the vast majority of the accessible public housing in the City for the elderly by claiming that the needs of younger disabled persons are being met through the Section 8 vouchers. The listing would expose the defendants as having acted based on political pressure rather than in furtherance of their mission. Therefore, the defendants continue to refuse to provide a listing of accessible
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apartments that includes current availability information, even though their duty to do so could hardly be clearer under 24 C.F.R. § 8.28(a)(3).
3. The database is ready, but HANH refuses to create the listing. Since 1994, HANH has been promising to create a database to produce the current listings of available accessible units required by HUD. See Ex. 21. After fourteen years, HANH’s reasons for not yet having completed this task are neither technical nor fundingrelated. See Ex. 10. On January 30, 2008, HANH staff member William Heinrichs admitted under deposition that HANH already has such a database, and that the database already contains the necessary field for entering accessibility features. See Ex.6 at p. 3. Thus, the database could easily print out a listing of accessible apartments. In fact, HANH did so in response to a court order on September 21, 2007. See Ex. 18. However, in its most recently published Administrative Plan, HANH stated that it is still not ready to share the data on accessibility with the public or even internally with its own staff. See Ex. 16 at p.5; Ex. 24. 4. The Listing would help the plaintiff class. The named plaintiff’s circumstances illustrate why the absence of even the most basic form of assistance HANH could give in locating an apartment—a list of the type that the defendants readily provide to non-disabled Section 8 families—makes it harder for disabled families to use their Section 8 vouchers. See Ex. 4 at ¶ 9, 10 and 13-16. For Rebecca Taylor—a person who for whom even telephone service is not always affordable, much less access to the internet to perform online searches—an accurate,
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current listing of accessible apartments could make all the difference. But even disabled persons who have the ability to perform online searches need HANH’s listing in order to have an equal opportunity to lease an apartment through the Section 8 program. The reason that HANH, like every other urban housing authority in the nation, supplies its current apartment listings to non-disabled families is precisely because such lists are so effective in connecting tenants to landlords who are ready and willing to rent to Section 8 tenants. See Ex. 7, 8, 11 and 23. Simply put, the listings greatly cut down on the literal “leg work” it takes to find an apartment.
The timesaving component of the listings produced by housing authorities becomes even more crucial where the Section 8 voucher is in the hands of a disabled householder. Unable to leave her home, Rebecca Taylor cannot simply visit advertised apartments to determine whether they are accessible. Ex. 4, at ¶ 6, 8 and 9. Because accessibility features are rarely included in the limited space of a newspaper classified ad, her search for apartments becomes very much like the proverbial search for a needle in a haystack. Id. By the time she finally locates a viable apartment, it has invariably already been rented. See Ex. 4 at ¶ 10 and 11. A current listing of such apartments from HANH could by itself have eliminated much of this problem.
The best that can be said of HANH’s fourteen years of refusing to comply with 24 C.F.R. § 8.28(a)(3) is that HANH and its governing Commission evidence a deeply ingrained culture of deliberate indifference to the disabled. Injunctive relief in favor of the proposed class is necessary to overcome such a culture.
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C. The Defendants Denied Rebecca Taylor a Reasonable Accommodation. The Second Circuit enumerates the elements of a claim of denying a
reasonable accommodation under Section 504 of the Rehabilitation Act as follows: “(1) the plaintiffs are ‘handicapped persons’ under the Act; (2) they are ‘otherwise qualified’ to participate in the offered activity or program or to enjoy the services or benefits offered; (3) they are being excluded from participation or enjoyment solely by reason of their disability; and (4) the entity denying plaintiffs participation or enjoyment receives federal financial assistance.” Clarkson v. Coughlin, 898 F. Supp. 1019 (S.D.N.Y. 1995) (granting plaintiffs’ motion for summary judgment where civil rights violation was clear from the record). The standard for judging a denial of a reasonable accommodation under the Fair Housing Amendments Act is the same. Wisconsin Comm. Services, Inc. v. City of Milwaukee, 465 F.3d 737 (7th Cir. 2006) (en banc); Hovsons, Inc. v. Township of Brick, 89 F.3d 1096 (3rd Cir. 1996).
The Second Circuit has been followed by many others in using the burdenshifting analysis articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973) when a plaintiff claims that intentional discrimination occurred, but cannot provide direct evidence of such intent. 2922 Sherman Avenue Tenants’ Assoc. v. District of Columbia, 444 F.3d 673, 682 (D.C. Cir. 2006). “Plaintiffs must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of
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their choice.” Smith & Lee Assocs., Inc. v. City of Taylor,102 F.3d 781, 795 (6th Cir. 1996). The burden then shifts, such that “[t]he ultimate burden at trial of proving that a proposed accommodation is not reasonable or that plaintiffs cannot be accommodated rests with defendants.” Assisted Living Assoc. of Moorestown, L.L.C. v. Moorestown Township, 996 F. Supp. 409, 435 (D. NJ 1998).
As a victim of spina bifida, Rebecca Taylor is unquestionably handicapped and disabled within the meanings of Section 504 of the Rehabilitation Act and the Fair Housing Amendments Act. See Ex. 4. at ¶ 2. The second element is also established; as a current Section 8 program participant, it is clear that the named plaintiff is “otherwise qualified” for the program. See Ex. 4 at ¶ 3. Similarly, the fourth element— receipt of federal funding by HANH—has been admitted by HANH in numerous documents. See Ex. 16 at p. 1.
Proof of the remaining element comes from a series of events. The Taylor family asked for a reasonable accommodation twice. First, Ms. Taylor made her request orally, explaining in detail why she needs the assistance and her reasons for believing that foreclosure would force her to move very soon. This request was denied on the spot by a HANH staff person. See Ex. 4 at ¶ 13-14.
Ms. Taylor’s second attempt to request a reasonable accommodation has been constructively denied, through delay. “[D]elay for practical purposes may be denial.” Langlois v. Abington Housing Authority, 207 F.3d 43, 48 (1st Cir. 2000); Groome Resources, Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000). On
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March 14, Ms. Taylor tried again to explain her situation to HANH, this time in writing. Her request was successfully submitted to HANH that same day, as verified by the fax transmission report. See Ex. 17. More than thirty days later, HANH has made no response whatsoever to her plea. HANH’s own procedural manual, the Administrative Plan, states that it will respond to reasonable accommodation requests within thirty days. See Ex. 16, p. 2. In addition, it is obvious on the face of Ms. Taylor’s written request that waiting longer than thirty days could cause her family great harm. Together, these events establish the third and final element of her claim under Count II.
If a requested accommodation is necessary before a disabled individual can derive benefit from the program, then denying such request is a form of disability discrimination. Here, the Section 8 voucher cannot serve its purpose of saving Ms. Taylor from homelessness and integrating her into the community until someone helps her take the threshold step of leasing an accessible apartment. Failure to timely grant her reasonable accommodation request for assistance in finding an accessible Section 8 apartment has forced her to live in physical danger, and will very likely deprive her of a home altogether within the next month, absent this Court’s order. D. CLASS CERTIFICATION FOR PURPOSES OF INJUNCTIVE RELIEF
The proposed plaintiff class would include “All current and future participants in the Section 8 Housing Choice Voucher program who, because of the disabilities and/or handicaps of themselves or someone in their household, need assistance in searching for suitable dwellings to lease under the program.”
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The burden is on the plaintiff to properly allege the prerequisites for class certification, but a plaintiff has a right to class certification if the allegations contained in her complaint and associated filings meet the prerequisites. United States Parole Commission v. Geraghty, 445 U.S. 388, 403 (1980); Sirota v. Solitron Devices, Inc., 673 F.2d 566, 571 (2d Cir. 1982). “Federal Rule of Civil Procedure 23(a)(1)-(4) sets forth four prerequisites to a class action that are commonly referred to as: (1) numerosity, (2) commonality, (3) typicality, and (4) adequate representation. See Hanlon v. Chrysler Corp., 150 F.3d 1011, 1019 (9th Cir.1998) (citing Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997)).” Amone v. Aveiro, 226 F.R.D. 677, 68 (D. Haw. 2005). This action is appropriate for certification under Rule 23 (b)(2) of the Federal Rules of Civil Procedure, because the plaintiffs’ pleadings meet the four prerequisites, the defendants have refused to act “on grounds generally applicable to the class,” and the plaintiffs seek primarily injunctive and declaratory relief. In the Second Circuit, a Rule 23(b)(2) class may be certified even where certain plaintiff class members request compensatory or punitive damages, provided that injunctive relief predominates. Matyasovszky v. Housing Authority of the City of Bridgeport, 226 F.R.D. 35, 45-46 (D.Conn. 2005). Where “the interests of the class members in the liability phase of [a] case would be identical,” class certification may be provisionally granted during that phase of the action. Id.
1. Numerosity The proposed class is “so numerous that joinder of all members is impracticable” within the meaning of Rule 23 (a)(1) of the Federal Rules of Civil Procedure. Of the
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1,640 new Section vouchers that HANH issued from 2003 to 2006, 386 went to households that included a disabled person. See Supplemental Compliance dated April 4, 2008 at p. 2. These figures suggest that at least 24% of HANH’s total 4,500 population of Section 8 participants include a disabled person, yielding a class size of 1,080. HANH reported in 2003 that 35% of its applicants for public housing were disabled, a number that suggests that the true number of Section 8 participant families that include a disabled person might be closer to 1,575. In addition, the defendant’s records confirm that at least 75 new vouchers were issued to households that include a disabled member during each year from 2003 to 2006. Id. at p. 1. It is therefore likely that at least 75 new class members will be added to the class over the course of 2008. Thus the class, while fluid, nevertheless comprises between 1,466 and 1,961 voucher-holders and participants at any given moment. Moreover, the plaintiff class members are by definition persons who not only struggle to meet basic needs because of their low income levels, but also suffer from extreme isolation by virtue of living in non-accessible apartments or from other disability-related impediments. The impracticability and inefficiency of joinder as a method of adjudicating the claims of such persons is also a relevant consideration. Robidoux v. Celani, 987 F.2d 931, 936 (2d Cir. 1993).
2. Commonality The proposed class has been subjected to identical or similar treatment by the defendants, such that “there are questions of law or fact common to the class” within the meaning of Rule 23 (a)(2) of the Federal Rules of Civil Procedure. The plaintiff class
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alleges that they have been treated identically with respect to the two services mandated by 24 C.F.R. § 8.28(a)(3): apartment listings and mobility counseling. Each complainant to HUD and the CHRO called or wrote to her Section 8 worker requesting help finding an accessible apartment—a request, in lay person’s terms, for apartment listings and mobility counseling. See Ex. 1, 2 and 3. Each was ignored for months or years until they filed a CHRO complaint. Id. The glaring similarity between how the plaintiffs have been treated was highlighted on August 28, 2007, when the defendant commissioners met to discuss HUD’s order to provide mobility counseling to the Gaither household. Of the group of disabled families that HANH staff member William Heinrichs identified as needing mobility counseling, the commissioners would only agree to offer the service to the two who had pending CHRO suits. Rather than discussing the five based on their individual needs and characteristics, the defendant commissioners treated the group identically based on its well-established practice of only assisting disabled persons when necessary to evade legal scrutiny. See Ex. 9.
3. Typicality The claims of named plaintiff Rebecca Taylor are “typical of the claims or defenses of the class” within the meaning of Rule 23 (a)(3) of the Federal Rules of Civil Procedure. As described above and in detail in her affidavit, see Ex. 4, plaintiff Rebecca Taylor’s housing needs and experience with HANH is typical of the class. Cf. Ex. 1, 2 and 3. 4. Adequacy
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The named plaintiff Rebecca Taylor will “fairly and adequately protect the interests of the class” within the meaning of Rule 23 (a)(4) of the Federal Rules of Civil Procedure. The named plaintiff has diligently sought legal advice from appropriate sources, see Ex. 22 at ¶ 3-4, and Ex. 4 at ¶ 12, and has shown herself to be ready to vigorously protect the interests of the class. Id. E. NECESSITY OF EMERGENCY SUMMARY JUDGMENT AND/OR
PRELIMINARY INJUNCTIVE RELIEF 1. Irreparable harm to the named plaintiff.
The Housing Authority is well aware of the named plaintiff’s immediate need for assistance. See Ex. 4 at ¶ 13-16; Ex. 17. Prior to the events that triggered this lawsuit, HANH had been aware of Rebecca Taylor’s extremely dangerous current housing arrangement for years, inasmuch as its staff had inspected the apartment, and seen that it has stairs at all points of egress. The Section 8 worker assigned to Ms. Taylor has met on a yearly basis with Ms. Taylor, who is always confined to a wheelchair. While it is troubling enough that these staff members ignored Ms. Taylor’s obvious need for an accessible apartment, it is outrageous that Ms. Taylor’s Section 8 worker directly refused to help her find a new apartment before she is ejected due to foreclosure.
That Ms. Taylor’s fears of being ejected and put into a homeless shelter are grounded in reality is demonstrated by the existence of an uncontested motion for strict foreclosure pending against her landlord. See Exhibit D to Complaint. As the case detail printout demonstrates, the landlord for Ms. Taylor’s building has failed to even file an
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appearance in the proceeding. Id. This motion will likely be acted upon today, April 21, 2008. Foreclosure and ejection are virtually certain to follow. Ms. Taylor is suffering emotionally before this even occurs, because she believes that ejection and placement in a homeless shelter will put her at risk of losing custody of her daughter. See Ex. 3 at ¶ 7. These facts justify emergency summary judgment and preliminary injunctive relief.
2. Irreparable harm to the proposed class. Families who are headed by disabled persons, or preoccupied with the care of a profoundly disabled child, are more vulnerable to homelessness because resources they might otherwise be able to devote to locating appropriate housing are drained by dealing with the disability. Such families generally also lack the time, money, and energy to obtain the advice of counsel concerning their housing problems. The Taylor household exemplifies these issues. See Ex. 3. Requiring the defendants to retrain and monitor the Section 8 staff who interact with disabled families is justified, given the defendants’ long history of noncompliance with their obligations to this group. See Ex. 1,2,3,4,5,13,18,19, 20 and 21. Moreover, staff retraining is an efficient and low-cost way to require the defendants to begin preventatively meeting the needs of this group, as opposed to settling individual lawsuits as they are filed. Since 2003, the defendants are aware of having issued 386 Section 8 vouchers to families that include persons with disabilities. See Ex. 15 at p. 3. At least 75 additional persons with rights to search assistance are added to this number on a weekly basis, when Section 8 families’ circumstances change or new applicants obtain Section 8 vouchers.
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Id. at p. 1. These families are likely to need search assistance, whether currently or in the future. For most of them, Section 8 workers are their sole source of information about the program rules. It is both inhumane and a waste of judicial resources to force each of these families to confront the defendants to separately via a lawsuit. An injunction requiring the defendants to retrain and independently monitor their Section 8 staff on the issue of appropriately assisting disabled families in searching for apartments is necessary to adequately serve the public interests at stake in this case. F. WAIVER OF BOND FOR PRELIMINARY INJUNCTIVE RELIEF
The named plaintiff’s Motion to Proceed In Forma Pauperis was granted on April 15, 2008. Whether to require a bond from plaintiffs in this circumstance is within the discretion of this Court. See Doctor’s Ass’n, Inc. v. Stuart, 85 F.3d 975 (2d Cir. 1996). As a single parent with disabilities that prevent her from working, named plaintiff Rebecca Taylor’s income barely covers essentials. Paying a bond would be a hardship upon herself and her daughter. The plaintiffs therefore respectfully request waiver of the bond.
CONCLUSION The plaintiffs move this Court for summary adjudication of the above described issues, and/or preliminary injunctive relief, in recognition of the gravity of the risks they are exposed to by HANH’s continuing noncompliance with the Fair Housing Act Amendments, Section 504 of the Rehabilitation Act, and the National Housing Act as amended and its implementing regulation 24 C.F.R. §8.28(a)(3).
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Respectfully submitted, ATTORNEY FOR THE PLAINTIFFS /s/________________________ Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 498-8223 Email: jenvickery400@hotmail.com CERTIFICATION I hereby certify that the foregoing Memorandum in Support of Preliminary Injunctive Relief and Emergency Motion for Summary Judgment has been served by hand delivery on this 22nd day of April, 2008 in compliance with Fed. R. Civ. P. Rule 5, on the following persons, who constitute all counsel and pro se parties of record: Donn Swift, Esq. Lynch, Traub, Keefe and Errante, P.C. P.O. Box 1612 52 Trumbull Street New Haven CT 06509-1612 Fax (203) 782-0278
s/________________________ Jennifer C. Vickery
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 Case 3:08-cv-00557-JBA Document 47 Filed 08/07/08 Page 1 of 15

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

REBECCA TAYLOR,

:

On behalf of herself and all others

:

similarly situated,

:

Plaintiffs

:

:

V.

:

:

THE HOUSING AUTHORITY OF THE :

CITY OF NEW HAVEN,

:

JIMMY MILLER, individually,

:

DAVID ALVARADO,

:

IIONA LEFFINGWELL,

:

LOUISE PERSALL,

:

ROBERT SOLOMON, and

:

JASON TURNER, individually and in their :

official capacities as members of the

:

Housing Authority Commission for the :

City of New Haven, and

:

KAREN DUBOIS-WALTON, in her official:

capacity as Executive Director of the

:

Housing Authority of the

:

City of New Haven,

:

Defendants

:

DOCKET NO. 3:08-cv-00557(JBA) August 7, 2008

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

Pursuant to Rule 24 of the Federal Rules of Civil Procedure, plaintiff Rebecca

Taylor and proposed plaintiff-intervenor Karl Hunter move this Court to certify the

above-captioned lawsuit as a class action.

I. LEGAL STANDARD

Plaintiffs seeking certification of a class action under the Federal Rules of Civil

Procedure, “ must demonstrate that the . . . case (1) conforms to the four requirements of

Rule 23(a), and (2) fits into one of the three categories under Rule 23(b).” Amone v.

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Aveiro, 226 F.R.D. 677, 682 (D. Haw. 2005). Courts should consider the allegations made by a proposed class in the class complaint as true for purposes of deciding the motion to certify. See Shelter Realty Corp. v. Allied Maintenance Corp., 574 F.2d 656, 661 n. 15 (2d Cir.1978) (“it is proper to accept the complaint allegations as true in a class certification motion”). “When deciding a motion for class certification, the only issue is whether the requirements of Rule 23 have been met, and not whether the plaintiffs have stated a cause of action or will prevail on the merits. Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177-78, 94 S. Ct. 2140, 40 L.Ed.2d 732 (1974).” Matyasovszky, v. Housing Authority of the City of Bridgeport, 226 F.R.D. 35, 40-42 (D. Conn. 2005).
“The four requirements of Rule 23(a) are as follows: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999), cert. denied, 529 U.S. 1107, 120 S. Ct. 1959, 146 L.Ed.2d 791 (2000).” Id.
Plaintiffs seeking certification must also demonstrate that they qualify under one of the subdivisions of subpart (b) of Rule 23. Subpart (b)(2) permits certification if the action is one that is “appropriate” for final injunctive relief or declaratory relief. 1 In the
1 Subpart (b)(2) of Rule 23 reads in its entirety: “(2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.”
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Second Circuit, injunctive relief must predominate in order for a class to be certified under Rule 23(b)(2). The District of Connecticut has specifically recognized that “the fact that monetary damages are an element of the relief sought does not preclude certification under Rule 23(b)(2). See, e.g., Duprey v. State of Connecticut Dept. of Motor Vehicles, 191 F.R.D. 329 (D. Conn. 2000).” Id. II. ARGUMENT
A. PROPOSED CLASS DEFINITION Plaintiffs propose the following class definition: All current and future participants in the Section 8 Housing Choice Voucher program who, because of the disabilities and/or handicaps of themselves or someone in their household, need assistance in searching for suitable dwellings to lease under the program.
1. Disabled Section 8 Participant Families All households that include a disabled person who currently participate in the Section 8 program should be considered members of the class for purposes whether or not they currently need to move, because many Section 8 households move multiple times during participation in the program. Even if a family does not need search assistance now, it is likely to need it in the future. They may move by choice, or because the unit they are occupying is in foreclosure, or has failed a Section 8 inspection due to lack of repairs to the building. The named plaintiffs offer some typical examples of this phenomenon. Karl Hunter currently hopes to move out of an inner city rooming house to an accessible one-bedroom apartment that has a stove. See Hunter Adffidavit, attached
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hereto as Exhibit E. Rebecca Taylor has just been forced to move due to a foreclosure, and is now in a suitable two-bedroom apartment. However, the Section 8 program will require Taylor to move to smaller unit in the future when her children move out of the house.
2. Disabled Applicant Families The plaintiff class also includes all disabled Section 8 applicants, because all of these households must move at least once—that is, when they first join the program. Thus, for purposes of certification under Count I, applicants and other individuals who have a future right to a Section 8 voucher administered by HANH should be considered members of the class. Disabled applicants are expressly included in the language of 24 C.F.R. § 8.28. Count III therefore alleges that HANH violated the National Housing Act by failing to comply with 24 C.F.R. § 8.28 by affirmatively offering the list and search assistance to all disabled Section 8 applicants and participants alike, and all of these applicants should be considered putative class members.
B. THE PROPOSED CLASS MEETS ALL RULE 23(a) REQUIREMENTS 1. Numerosity Of the 1,640 new Section 8 vouchers that HANH issued between 2003 and 2006,
the defendants indicate that 386,2 or 24%, went to households that included a disabled
2 The number of disabled families provided by the defendants errs on the low side, because it fails to include some households with disabled family members. For example, HANH’s computer records do not identify as disabled Destiny A., a severely asthmatic child, even though HANH admits that she has disabilities sufficient to justify a
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person. See Ex. 15 to Plaintiff’s Memorandum in Support of Preliminary Injunctive
Relief. Assuming for purposes of this motion that the percentage of HANH Section 8
households that include a person with disabilities remains constant from their receipt of a voucher onward,3 then HANH’s current total of 2,879 Section 8 households is likely to
include 691 households that include a person with disabilities. This number of potential
plaintiffs is so large that joinder of all claimants would impose a burden on both the court
system and the plaintiffs, further delaying resolution of their needs for assistance. For
this reason alone, joinder is impracticable. See, e.g., Diaz v. Hillsborough County
Hospital Authority, 165 F.R.D. 689, 693 (M.D. Fla. 1996) (finding joinder of 383
patients impracticable based on the number of putative class members).
Yet the putative class is far larger than the number of current participants. Current
and future applicants are also entitled to be given a list of available, accessible apartments
known to HANH, and advised that HANH will provide search assistance if necessary. As
reasonable accommodation and it ultimately granted her family such an accommodation. See Redacted File A at p. A-1 and A-8, attached hereto as Exhibit A. 3 This assumption is likely to be overly optimistic, given that 26% of HANH vouchers went unused last year—up from 13% in 2006. See HANH Annual Plans for FY 2006 and 2008, attached hereto as Exhibit B. Declining voucher utilization during a period when the rental market in New Haven was very tight suggests that some of the voucher underultilization could be attributable to HANH’s failure to assist disabled applicants in finding and leasing an apartment. In addition, some applicants may have been purged from HANH’s waiting list because they failed to respond during the years of waiting for a voucher, but who would have persevered had they known that they had the right to receive search assistance upon being issued a voucher. Likewise, if HANH had affirmatively offered search assistance, such assistance may have provided some nowterminated disabled Section 8 households the support needed to keep participating in the program. These factors indicate that the starting number of disabled households who were eligible for or were actually issued a Section 8 vouchers may have been significantly higher than the number of disabled participant households suggests.
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HANH has never offered either the list or the assistance to any new voucher holder, the number of class members affected by the civil rights violations alleged in Count III is simply equal to the total number of disabled applicants and potential applicants to whom HANH has, or will in the future, issue vouchers. The fact that it is impossible to tell how many of these disabled families newly admitted to the Section 8 program will need search assistance at the moment when they are issued the voucher mitigates in favor of certification. See Amone, 226 F.R.D. at 684-85 (finding numerosity requirement met where identifiable members of putative class were estimated at as few as 60 to 100, but joinder was rendered impracticable because defendant housing authority had failed to implement any “notice and procedure whereby tenants would be informed of their rights”).
Other courts have specifically noted that applicants for subsidized housing programs are likely to have characteristics, such as lack of financial resources and being at risk of becoming homeless, that make joinder especially impracticable. See, e.g., Matyasovszky at 40-41 (certifying class, based in part on finding that a class composed of disabled applicants for low-income housing is “necessarily fluid”). Robidoux v. Celani, 987 F.2d 931 (2d Cir.1993) (finding numerosity requirement met where plaintiffs showed evidence that at least 22 cases in which benefits were delayed occurred each month). Putative class members in government benefits cases, whether applicants or participants, are also poor candidates for joinder because they are in an especially vulnerable position.
In this case, most applicants and participants are aware that the Section 8 staff has a great deal of discretion over certain aspects of their cases, including whether they will
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be admitted to the program. They are therefore less likely to create work for the staff by asking for search assistance, even if they need it. Many disabled applicants are further impeded in their ability to make known their needs by the very disabilities that cause them to need search assistance, or by limited literacy skills. Some disabled applicants who suffer from severe depression or other disabilities with behavioral symptoms may have given up on the Section 8 application process altogether, abandoning their spot on the waiting list, because they doubted their ability to use the voucher to lease an accessible unit. Others may have persevered, waiting years to reach the top of the waiting list, receive their vouchers, and yet still fail to lease a unit without ever understanding that they were entitled to search assistance under 24 C.F.R. § 8.28.
2. Commonality Defendants have acted uniformly with respect to the proposed class, by refusing to provide either mobility counseling or a listing of accessible, available units. “[I]n a civil rights suit, . . .commonality is satisfied where the lawsuit challenges a system-wide practice or policy that affects all of the putative class members.” Armstrong v. Davis, 275 F.3d 849, 868 (9th Cir.2001).
a. Refusal to provide search assistance Prior to the start of this litigation, each disabled Section 8 participant who requested search assistance from HANH in writing received a similar letter from HANH’s Reasonable Accommodations Coordinator. The response letter neither denied nor granted the request, instead advising that: You do not need to request an accommodation in order to move to a different apartment that is better suited to your needs. As a Section 8
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participant, you may select to live in any eligible apartment in the private market. If you would like to move from your current apartment, you should contact your caseworker4 in the Service Center in order for HANH to issue you a new voucher for your apartment search. See Redacted File G, attached hereto as Exhibit G. As of August 2007, HANH had apparently started stating in its response letter that the request for a reasonable accommodation was “granted.” See Redacted File H, attached hereto as Exhibit H. Yet the primary instruction contained in the response letter remains the same, directing the household to contact its Section 8 specialist. Id. HANH’s Reasonable Accommodations Coordinator at that time, William Heinrichs, also confirmed under deposition what he stated in the letter: even where HANH had empowered him to communicate to a Section 8 participant that their request for search assistance had been granted, it was not his responsibility to personally provide this search assistance. However, when disabled households contact their Section 8 specialists, they find—as Rebecca Taylor did—that these specialists also believe that it is not their responsibility to provide search assistance. The recent testimony of a Section 8 specialist, Lashanda Jones, is extraordinarily clear on this point: Q: Have you ever personally used that available accessible units list to help find somebody housing? A: No. Q: That is because you don’t do that activity at all? You don’t find units for people? A: Yes. That’s correct. 4 The staff persons who currently serve the functions formerly provided by persons with the job title of “caseworker” now bear the job title “Section 8 specialist.”
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Q: Never have, even once? A: Never have. See Jones Depo. at p. 68, line 20 to page 69, line 2, attached hereto as Exhibit C. The testimony above is from a deposition taken July 25, 2008, in which Jones was asked to describe HANH’s present manner of providing search assistance to disabled Section 8 households. Jones went on to confirm that she was describing the practices of all HANH Section 8 specialists, not just her own practices: Q: Have you been told you should be doing that? A: No. Q: Do you know of any other Section 8 specialist who does that? A: No, no. Id., page 69, lines 8-13. Jones also stated these practices have remained unchanged throughout her five years of service as a HANH Section 8 specialist.
In sum, if HANH’s policy changed after being sued in 2007, it was only a superficial alteration. The evidence shows that all members of HANH staff have always disavowed any responsibility for actually providing search assistance. Whether or not the defendants claim to have adopted a new policy of providing search assistance to disabled households, it is clear that no one at HANH is actually providing it.
b. Refusal to provide a list of available, accessible units On May 6, 2008, the defendants promised this Court to provide an apartment listing in satisfaction of their obligations under 24 C.F.R. § 8.28(a)(3) within ninety days. On August 4, 2008, HANH provided counsel to the plaintiffs with a listing of building
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complexes that contain accessible units. See August 4, 2008 Accessible Apartment Listing, attached hereto as Exhibit D. It offers no clues whatsoever about the availability of the accessible units. In this manner, HANH continues its practice of refusing to comply with the regulation.
3. Typicality Proposed representative plaintiffs need not suffer from the same type of disability as each and every class member to be members of the same class. “The typicality inquiry is intended to assess whether the case can be efficiently maintained as a class action and whether the named plaintiffs have incentives that align with those of absent class members so as to assure that the absentees' interests will be fairly represented.” Matyasovszky, 226 F.R.D. at 42. In the context of class actions seeking access to governmental programs, the typicality requirement is “generally satisfied if the proposed named plaintiffs are “subject to the same statute, regulation or policy as class members.” Id. (citing 7 Newberg on Class Actions § 23:4 (4th ed.). The typicality requirement is met for Counts I and III of the Taylor Amended Complaint.5 With respect to Count I, Karl Hunter and Rebecca Taylor are each persons whose disabilities have caused them to experience extra difficulty making use of Section 8 vouchers. See Hunter Affidavit, attached hereto as Exhibit E; Taylor Affidavit, Ex. 4 to Plaintiff’s Memorandum in Support of Preliminary Injunctive Relief. They will continue to need mobility counseling each time they must move. They have each suffered from discrimination, as HANH provided mobility counseling and updated apartment listings to 5 Plaintiffs have moved for an enlargement of the deadline for moving for class certification with respect to Count II, based on the need to complete additional discovery.
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non-disabled households but refused to offer it to them. As to Count III, the defendants’ failure to affirmatively offer the apartment listing and search assistance opportunities required by 24 C.F.R. § 8.28(a)(3) affects all Section 8 participants in essentially the same way, including Hunter and Taylor. HANH’s noncompliance with the affirmative obligations declared by this regulation not only deprives currently participating disabled households of help, but also keeps potential Section 8 participants, like Karl Hunter, from becoming aware that they may be eligible for help that would give them a real chance of being able to lease an accessible apartment through the program.
Any permanent handicap or disability is likely to make searching for an apartment more difficult. While the specific difficulties created by the type of disability will surely vary, these differences do not divide the class in any relevant way because the defendants do not use disability-specific rules to determine whether to assist disabled families. Instead, HANH uniformly denies mobility counseling to all disabled families—unless they retain counsel. Even then, disabled households who have nominally been offered mobility counseling by HANH as a result of legal action are in fact denied it by HANH’s failure, for over a year, to hire a mobility counseling firm. See July 9, 2008 Quarterly Report at p. F-3, attached hereto as Exhibit F. Thus, in practice, HANH uniformly denies mobility counseling to all disabled Section 8 households.
Based on the above criteria, Rebecca Taylor and Karl Hunter are both typical of this class. Neither Taylor nor Hunter has been provided with a list of available, accessible units. See Hunter Affidavit, attached hereto as Exhibit E; Taylor Affidavit, Ex. 4 to Plaintiff’s Memorandum in Support of Preliminary Injunctive Relief. Both have
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experienced HANH’s failure to either offer or actually provide mobility counseling to those disabled Section 8 households who need it. Id.
4. Adequacy The adequacy inquiry focuses on whether the named representatives of the proposed class have interests antagonistic to those of the class. Diaz, 165 F.R.D. at 693. In this case, the plaintiffs interests do not conflict in any way with those of the rest of the putative class members. Moreover, by obtaining counsel, each of the proposed name plaintiffs has already demonstrated the capacity to vigorously pursue the vindication of the rights of the entire class. See Ex. 22 to Plaintiff’s Memorandum in Support of Preliminary Injunctive Relief at ¶2 - ¶4.
C. THE PROPOSED CLASS MEETS ALL RULE 23(b)(2) REQUIREMENTS The proposed plaintiff class falls squarely within the parameters for a traditional
(b)(2) class based on allegations that the defendants have acted or refused to act “on grounds generally applicable to the class,” by adhering to a discriminatory policy, pattern and/or practice of failing to provide the listing and mobility counseling services to disabled Section 8 households that HANH readily provides to non-disabled households. “Clarification of the meaning of the subpart (b)(2) . . . is provided by the Federal Rules Advisory Committee's Notes to the 1966 Amendments to Rule 23 under which subpart (b)(2) was created. The applicable note states that action or inaction is directed to a class within the meaning of [subpart (b)(2)] even if it has taken effect or is threatened only as to one or a few members of the class, provided it is based on grounds which have general
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application to the class.” Arnold v. United Artists Theatre Circuit, Inc., 158 F.R.D. 439, 453-54 (N.D. Cal. 1994).
Here, many members of the proposed class have been affected, although only a few may realize it. Some have engaged in the lengthy process of asking for mobility counseling as a reasonable accommodation, only to receive a patronizing denial of responsibility from HANH’s reasonable accommodations coordinators, in the form of a reminder that “you may select to live in any eligible apartment.” Others have been told that their request for search assistance was granted, only to inquire further and learn that no one was prepared to assist them. In essence, these letters show the disabled household that all they can expect from its Section 8 specialist is a voucher—the same paper work that housing authorities must produce when any Section 8 household moves. In the face of this record, whether or not HANH claims to have changed its official policy, see subsection II.B. 2, infra, any such change is so clearly motivated by a desire to avoid further liability that it has no bearing on class certification.
III. CONCLUSION The proposed class meets the prerequisites for certification. Proposed named
plaintiffs Hunter and Taylor respectfully ask the Court to be mindful that unusually high numbers of putative class members are being required to move or experiencing homelessness, due to the current turbulent housing market. For this reason, they urge the Court to certify their class at the earliest possible opportunity.
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Respectfully submitted by, ATTORNEY FOR THE PLAINTIFFS /s/________________________ Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 498-8223 Email: jenvickery400@hotmail.com
ORDER Order GRANTED/ DENIED at New Haven, Connecticut, this ____ day of __________, 2008. BY THE COURT ________________________ Judge
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CERTIFICATION I hereby certify that the foregoing Memorandum in Support of Motion for Class Certification has been served electronically on this 7th day of August, 2008 in compliance with Fed. R. Civ. P. Rule 5, on the following persons, who constitute all counsel and pro se parties of record: Donn Swift, Esq. Lynch, Traub, Keefe and Errante, P.C. P.O. Box 1612 52 Trumbull Street New Haven CT 06509-1612 Fax (203) 782-0278
/s/___________________________ Jennifer Vickery
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 Case 3:08-cv-00557-JBA Document 77 Filed 11/14/08 Page 1 of 12

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

REBECCA TAYLOR,

:

On behalf of herself and all others

:

similarly situated,

:

Plaintiffs

:

V.

:

THE HOUSING AUTHORITY OF THE :

CITY OF NEW HAVEN,

:

JIMMY MILLER, individually and in his :

official capacity as Executive Director, :

DAVID ALVARADO,

:

IIONA LEFFINGWELL,

:

LOUISE PERSALL,

:

ROBERT SOLOMON, and

:

JASON TURNER, individually and in their :

official capacities as members of the

:

Housing Authority Commission for the :

City of New Haven,

:

Defendants

:

DOCKET NO. 3:08-cv-00557(JBA) April 17, 2008

AMENDED COMPLAINT

Plaintiff Rebecca Taylor has spina bifida and uses a wheelchair. This is an action to

require the defendants to help Ms. Taylor use her Section 8 subsidy to rent accessible housing.

Ms. Taylor participates in the federal Section 8 program, administered in New Haven by the

Housing Authority of the City of New Haven (“HANH”). Unable to navigate her wheelchair

down the steps to the apartment building where she now lives, Ms. Taylor is exposed to danger

from accidents or intruders whenever she is home alone.

Upon information and belief, her situation is similar to that of a significant number of

other Section 8 participants. The plaintiffs seek injunctive relief, declaratory judgment, and

compensatory damages to the named plaintiff, attorney’s fees and costs of litigation under the

Case 3:08-cv-00557-JBA Document 77 Filed 11/14/08 Page 2 of 12
Fair Housing Act Amendments, Section 504 of the Rehabilitation Act, and the National Housing Act.
HISTORY OF NONCOMPLIANCE BY THE DEFENDANTS 1. HANH is a recipient of funding from the United States Department of Housing and Urban Development (“HUD”) with which it administers the Section 8 Housing Choice Voucher program in New Haven (“Section 8”). 2. Through 24 C.F.R. § 8.28, HUD requires recipient housing authorities to assist disabled individuals and their families who are attempting to use their Section 8 vouchers to find accessible dwellings. The regulation specifies, inter alia, that: “(a) . . . [A] recipient administering a Section 8 . . .housing voucher program shall: . . . . (3) When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the PHA and, if necessary, otherwise assist the family in locating an available accessible dwelling unit.” 3. Through 24 C.F.R. § 100.204, HUD additionally requires recipient housing authorities to reasonably accommodate disabled individuals and their families where necessary to allow them to participate in the Section 8 program. 4. In or about 1994, HUD reviewed HANH to assess its compliance with Section 504 of the Rehabilitation Act. As a result, HANH entered into a voluntary agreement with HUD addressing past non-compliance with their obligations to disabled persons in need of housing, including the obligations to help search for accessible apartments under 24 C.F.R. § 8.28 and 24 C.F.R. §
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100.204 (the “1994 Agreement”). In 2006, HUD again reviewed HANH to assess its compliance with Section 504 of the Rehabilitation Act. In 2007, HUD issued a report, stating that HANH was not in compliance with certain obligations to disabled persons in need of housing, including the obligations of 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204. See Exhibit A, Section 504 Report by Carl Harris. As a result, HANH agreed to enter into another Voluntary Compliance Agreement (the “2007 Agreement”). 5. On September 19, 2007, a federal court ordered HANH to provide a current list of accessible, available apartments known to it, as required by 24 C.F.R. § 8.28(a)(3) to one Section 8 family. See Gaither v. Housing Authority of the City of New Haven, 2007 WL 3378533, D. Conn., November 2, 2007 (NO. 3:07-CV-667WWE). 6. As of April 9, 2008—a more than six months later—HANH has failed to create the current list of available, accessible apartments known to it, as required by 24 C.F.R. § 8.28(a)(3), and therefore still does not provide such list when issuing a Section 8 voucher to a family which includes an individual with handicaps. 7. Jimmy Miller currently serves as the Executive Director of HANH. At the direction of Miller, HANH “does not do searches for apartments.” See Exhibit B, Admission #1 from Plaintiffs’ First Request for Admissions from Jimmy Miller, dated July 18, 2007. 8. Each of the defendant members of the Commission personally knows that HANH was not in full compliance with 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204, yet each has voted in favor of measures that violate such regulations, and fraudulently voted to certify that HANH was in compliance with its fair housing obligations.
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9. HANH has not been fully compliant with either 24 C.F.R. § 8.28 or 24 C.F.R. §100.204, at any time during the tenure of Miller. Instead, HANH has demonstrated a continuous pattern of non-compliance with its obligations under 24 C.F.R. § 8.28, 24 C.F.R. § 100.204, the Fair Housing Act Amendments and Section 504 of the Rehabilitation Act. Such pattern continues through the present.
THE NAMED PLAINTIFF’S REQUEST FOR SEARCH ASSISTANCE 10. Taylor family currently resides in a three-bedroom apartment at 205 Dover Street, 1st floor in New Haven. The family consists of Rebecca Taylor and her son and daughter. Although it is located on the first floor, the apartment is not wheelchair accessible, in that both the front and back entrances to the building must be reached by stairs. 11. Whenever she is alone in the home, Rebecca Taylor is endangered by the lack of any wheelchair-accessible way of exiting from her home. 12. Rebecca Taylor has searched via the newspaper for an accessible two or three-bedroom apartment, without success. 13. In early 2008, the Bank of America instituted foreclosure proceedings on the apartment building where the Taylor family resides. 14. Soon thereafter, Section 8 staff person Denise Senior conducted a recertification of the Taylor household. 15. During that recertification, Ms. Senior and Ms. Taylor discussed the fact that the 205 Dover Street apartment building was in foreclosure, and the strong likelihood that Ms. Taylor would have to move out of the building very soon.
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16. Ms. Taylor asked Ms. Senior if HANH would help her search for an accessible apartment. 17. Ms. Senior responded by stating that searching for an apartment was Ms. Taylor’s responsibility under the Section 8 program. 18. Ms. Senior’s response, described in paragraph 17, was a misrepresentation of the Section 8 program rules. 19. Ms. Senior’s response, described in paragraph 17, represents the policy, pattern and/or practice of HANH toward disabled persons on Section 8 who ask for HANH’s assistance in searching for an apartment. 20. On or about March 14, 2008 Ms. Taylor reiterated her concerns in a written request for a reasonable accommodation, which was received by HANH that same day. See Exhibit C, Reasonable Accommodation Letter from R. Taylor. HANH’s own Administrative Plan requires HANH to respond to such a request within thirty days. Over thirty days have passed and HANH has not responded in any way. 21. On April 3, 2008 the Superior Court for the district of New Haven granted a motion for default against the owner of the building, Ms. Taylor’s landlord, for failure to appear and defend the foreclosure proceedings against 205 Dover Street. See Exhibit D, Case Detail Docket for CV-08-5017975-S. Upon information and belief, the Taylor family is likely to be ejected from 205 Dover Street within the next sixty days.
CLASS MEMBERS 22. The proposed class definition is: “All current and future participants in the Section 8 Housing Choice Voucher program who, because of the disabilities and/or handicaps of themselves or
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someone in their household, need assistance in searching for suitable dwellings to lease under the program.” 23. The proposed class is appropriate for certification under Rule 23 (b)(2) of the Federal Rules of Civil Procedure, because the Defendants have refused to act “on grounds generally applicable to the class,” and the plaintiffs seek primarily injunctive and declaratory relief. 24. The proposed class is “so numerous that joinder of all members is impracticable” within the meaning of Rule 23 (a)(1) of the Federal Rules of Civil Procedure. Upon information and belief, the Defendants’ policy, pattern and/or practice of refusing to assist disabled Section 8 participants in their searches for accessible housing pursuant to their obligations under 24 C.F.R. § 8.28 affects over three hundred current participants who hold Section 8 vouchers administered by HANH. Upon information and belief, HANH issues at least one hundred additional vouchers each year, and at least a third of those vouchers are issued to households that include a disabled member. Thus the class, while fluid, nevertheless comprises least four hundred voucher-holders and participants at any given point. 25. The proposed class has been subjected to identical or similar treatment by the Defendants, such that “there are questions of law or fact common to the class” within the meaning of Rule 23 (a)(2) of the Federal Rules of Civil Procedure. 26. The claims of named plaintiff Rebecca Taylor are “typical of the claims or defenses of the class” within the meaning of Rule 23 (a)(3) of the Federal Rules of Civil Procedure. 27. The named plaintiff Rebecca Taylor will “fairly and adequately protect the interests of the class” within the meaning of Rule 23 (a)(4) of the Federal Rules of Civil Procedure.
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JURISDICTION AND VENUE 28. Pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and 42 U.S.C. §1983, jurisdiction is proper in that plaintiff’s claims alleged herein arise under federal law. 29. Venue is proper in that the facts giving rise to the claims alleged herein occurred in New Haven, Connecticut, and all parties reside or have their business address in New Haven, Connecticut.
PARTIES 30. Named plaintiff Rebecca Taylor is a member of a household that participates in the Section 8 program, and has disabilities and handicaps, as those terms are defined in the Fair Housing Act Amendments and the Rehabilitation Act. 31. Defendant Jimmy Miller currently serves as the Executive Director of HANH. He is sued in his individual and official capacities. 32. Defendants David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner are Commissioners of the Housing Authority Commission of the City of New Haven, and as such are responsible for directing and supervising the actions of HANH. They are each sued in their individual and official capacities. 33. Together, HANH, Miller, Alvarado, Leffingwell, Persall, Solomon, and Turner (the “Defendants”) are jointly and severally liable for the harms alleged herein.
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COUNT I The Fair Housing Act Amendments 42 U.S.C. § 3604(F) and its implementing regulations at 24 C.F.R. Part 100 34. The plaintiffs incorporate paragraphs 1 through 33 of this Complaint as if repeated in this Count I. 35. The Defendants’ have intentionally discriminated against the plaintiffs on account of their disabilities, denying the plaintiffs the right to enjoy the benefits of participating in the Section 8 Program by refusing to provide search assistance to the plaintiffs that they routinely provide to non-disabled Section 8 households, including lists of available Section 8 apartments and mobility counseling services, and by refusing to reasonably accommodate them. 36. The Defendants have a policy, pattern and/or practice of discriminating against persons with disabilities and/or handicaps, as described in this Complaint. 37. The acts described in this Count I have injured and continue to injure the plaintiffs by making housing and services unavailable to them, or available only on different terms in violation of 42 U.S.C. §3604 et seq., and by denying them reasonable accommodation that were necessary to allow them to enjoy Section 8 housing. 38. The acts described in this Count I have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair. 39. The acts and omissions described in this Count I were committed knowingly, intentionally, and with callous disregard for the rights of the plaintiffs.
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COUNT II Section 504 of the Rehabilitation Act (29 U.S.C. § 794 et seq.)
and its implementing regulations at 24 C.F.R. Part 8 40. Named plaintiff incorporates paragraphs 1 through 39 of this Complaint as if repeated in this Count II. 41. Named plaintiff Rebecca Taylor is “otherwise qualified” to participate in the Section 8 program. 42. Named plaintiff Rebecca Taylor requested that the defendants reasonably accommodate her by helping her to search for and lease a suitable unit under the Section 8 program. 43. The Defendants denied Rebecca Taylor’s requests for a reasonable accommodation, by one or more of the following acts:
a. orally refusing to grant her request for reasonable accommodation; b. failing to respond to her request for reasonable accommodation in writing
within the thirty-day period specified by HANH’s own Administrative Plan; c. responding to her request for reasonable accommodation in an unreasonable
manner, such as delaying action on it without regard to how such delay might endanger or harm her or her family. 44. The acts described in this Count II have injured and continue to injure Rebecca Taylor by causing her to suffer frustration, anxiety, emotional distress, and despair.
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COUNT III Section 1983 and the United States Housing Act of 1937, as amended, and 24 C.F.R. § 8.28 45. The plaintiffs incorporate paragraphs 1 through 44 of this Complaint as if repeated in this Count III. 46. The Defendants’ policies, pattern and/or practices violated subpart (a)(3) of 24 C.F.R. § 8.28, which requires that housing authorities must: “When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the [housing authority] and, if necessary, otherwise assist the family in locating an available accessible dwelling unit.” 47. The Defendants have been advised by HUD and others on numerous occasions from 1994 to the present that such policies, pattern and/or practices were unlawful. 48. The Defendants were further put on notice that their policies pattern and/or practices violated subpart (a)(3) of 24 C.F.R. § 8.28 by an Order issued by the Honorable Warren Eginton on September 19, 2007, enjoining HANH from its refusal to supply such listing. 49. The acts described in this Count III have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair. 50. The acts and omissions described in this Count III were committed knowingly, intentionally, and with callous disregard for the rights of the plaintiffs.
COUNT IV Injunctive Relief 51. The plaintiffs incorporate paragraphs 1 through 50 of this Complaint as if repeated in this Count IV.
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52. The plaintiffs seek to preserve the status quo by enjoining the Defendants’ refusal to comply with 42 U.S.C. § 3604(F)(3)(B), Section 504 of the Rehabilitation Act and 24 C.F.R. § 8.28(a)(3). 53. The plaintiffs are likely to be irreparably harmed by the defendants’ continuing noncompliance, as demonstrated by the defendants’ failure to assist the named plaintiff, Rebecca Taylor, exposing her family to imminent homelessness and loss of her Section 8 benefits. 54. The plaintiffs are likely to prevail on the merits of their claims. 55. The balance of hardships tips decidedly in the plaintiffs’ favor, inasmuch as the defendants are being asked to provide a purely administrative remedy, whereas Rebecca Taylor may lose her home, and her continued eligibility for a housing subsidy.
PRAYER FOR RELIEF WHEREFORE, the plaintiff prays for relief from this Court, in the form of: 1. An injunction requiring the defendants to cease their noncompliance with the law, by:
a. making available to all Section 8 applicants and plaintiff class members a list of currently available, accessible apartments known to HANH, and continuing to update and make available such list on a monthly basis;
b. notifying in writing all members of HANH staff who have direct contact with Section 8 applicants and participant household of the policy changes contained in this order, and contract with the Connecticut Fair Housing Center to randomly perform testing of the effectiveness of such notice upon the practices of HANH staff on at least three occasions over the next twelve months;
11

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c. using a mobility counseling service, or their own staff, if necessary, to timely assist

plaintiff class members who need to move by providing assistance with the following activities:

i.

searching for suitably sized dwellings that are accessible or modifiable;

ii. visiting such dwellings to determine whether they are truly accessible or

modifiable;

iii. applying for funding to make modifications for accessibility if necessary;

and

iv. facilitating the leasing process.

3. A declaration that the defendants have violated their obligations under 24 C.F.R.

§ 8.28, and the Fair Housing Act Amendments of 1988, Section 504 of the Rehabilitation Act of

1973.

4. An award of compensatory damages to the named plaintiff;

5. An award of costs of suit, and reasonable attorney’s fees pursuant to 42 U.S.C.

§3613(c)(2) and any other applicable statute that would permit such award; and

6. Such other relief as the Court deems just.

Respectfully submitted, THE PLAINTIFFS

BY THEIR ATTORNEY: /s/_______________ Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 498-8223 Email: jenvickery400@hotmail.com

12

 
 Case 3:08-cv-00557-JBA Document 81 Filed 11/19/08 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

REBECCA TAYLOR

:

and KARL HUNTER

:

On behalf of herself and all others

:

similarly situated,

:

Plaintiffs

:

V.

:

THE HOUSING AUTHORITY OF THE :

CITY OF NEW HAVEN,

:

KAREN DUBOIS-WALTON, individually :

and in her official capacity as

:

Executive Director,

:

JIMMY MILLER, individually and in his :

official capacity as former

:

Executive Director,

:

DAVID ALVARADO,

:

IIONA LEFFINGWELL,

:

LOUISE PERSALL,

:

ROBERT SOLOMON, and

:

JASON TURNER, individually and in their :

official capacities as members of the

:

Housing Authority Commission for the :

City of New Haven,

:

Defendants

:

DOCKET NO. 3:08-cv-00557(JBA) November 14, 2008

SECOND AMENDED COMPLAINT

Plaintiff Rebecca Taylor has spina bifida and uses a wheelchair. This is an action to

require the defendants to help Ms. Taylor use her Section 8 subsidy to rent accessible housing.

Ms. Taylor participates in the federal Section 8 program, administered in New Haven by the

Housing Authority of the City of New Haven (“HANH”). Unable to navigate her wheelchair

down the steps to the apartment building where she now lives, Ms. Taylor is exposed to danger

from accidents or intruders whenever she is home alone.

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Upon information and belief, her situation is similar to that of a significant number of other Section 8 participants. The plaintiffs seek injunctive relief, declaratory judgment, and compensatory damages to the named plaintiff, attorney’s fees and costs of litigation under the Fair Housing Act Amendments, Section 504 of the Rehabilitation Act, and the National Housing Act.
HISTORY OF NONCOMPLIANCE BY THE DEFENDANTS 1. HANH is a recipient of funding from the United States Department of Housing and Urban Development (“HUD”) with which it administers the Section 8 Housing Choice Voucher program in New Haven (“Section 8”). 2. Through 24 C.F.R. § 8.28, HUD requires recipient housing authorities to assist disabled individuals and their families who are attempting to use their Section 8 vouchers to find accessible dwellings. The regulation specifies, inter alia, that: “(a) . . . [A] recipient administering a Section 8 . . .housing voucher program shall: . . . . (3) When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the PHA and, if necessary, otherwise assist the family in locating an available accessible dwelling unit.” 3. Through 24 C.F.R. § 100.204, HUD additionally requires recipient housing authorities to reasonably accommodate disabled individuals and their families where necessary to allow them to participate in the Section 8 program.
2

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4. In or about 1994, HUD reviewed HANH to assess its compliance with Section 504 of the Rehabilitation Act. As a result, HANH entered into a voluntary agreement with HUD addressing past non-compliance with their obligations to disabled persons in need of housing, including the obligations to help search for accessible apartments under 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204 (the “1994 Agreement”). In 2006, HUD again reviewed HANH to assess its compliance with Section 504 of the Rehabilitation Act. In 2007, HUD issued a report, stating that HANH was not in compliance with certain obligations to disabled persons in need of housing, including the obligations of 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204. See Exhibit A, Section 504 Report by Carl Harris. As a result, HANH agreed to enter into another Voluntary Compliance Agreement (the “2007 Agreement”). 5. On September 19, 2007, a federal court ordered HANH to provide a current list of accessible, available apartments known to it, as required by 24 C.F.R. § 8.28(a)(3) to one Section 8 family. See Gaither v. Housing Authority of the City of New Haven, 2007 WL 3378533, D. Conn., November 2, 2007 (NO. 3:07-CV-667WWE). 6. As of April 9, 2008—a more than six months later—HANH has failed to create the current list of available, accessible apartments known to it, as required by 24 C.F.R. § 8.28(a)(3), and therefore still does not provide such list when issuing a Section 8 voucher to a family which includes an individual with handicaps. 7. Jimmy Miller currently serves as the Executive Director of HANH. At the direction of Miller, HANH “does not do searches for apartments.” See Exhibit B, Admission #1 from Plaintiffs’ First Request for Admissions from Jimmy Miller, dated July 18, 2007.
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8. Each of the defendant members of the Commission personally knows that HANH was not in full compliance with 24 C.F.R. § 8.28 and 24 C.F.R. § 100.204, yet each has voted in favor of measures that violate such regulations, and fraudulently voted to certify that HANH was in compliance with its fair housing obligations. 9. HANH has not been fully compliant with either 24 C.F.R. § 8.28 or 24 C.F.R. §100.204, at any time during the tenure of Miller. Instead, HANH has demonstrated a continuous pattern of non-compliance with its obligations under 24 C.F.R. § 8.28, 24 C.F.R. § 100.204, the Fair Housing Act Amendments and Section 504 of the Rehabilitation Act. Such pattern continues through the present.
REBECCA TAYLOR’S REQUEST FOR SEARCH ASSISTANCE 10. Taylor family currently resides in a three-bedroom apartment at 205 Dover Street, 1st floor in New Haven. The family consists of Rebecca Taylor and her son and daughter. Although it is located on the first floor, the apartment is not wheelchair accessible, in that both the front and back entrances to the building must be reached by stairs. 11. Whenever she is alone in the home, Rebecca Taylor is endangered by the lack of any wheelchair-accessible way of exiting from her home. 12. Rebecca Taylor has searched via the newspaper for an accessible two or three-bedroom apartment, without success. 13. In early 2008, the Bank of America instituted foreclosure proceedings on the apartment building where the Taylor family resides.
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14. Soon thereafter, Section 8 staff person Denise Senior conducted a recertification of the Taylor household. 15. During that recertification, Ms. Senior and Ms. Taylor discussed the fact that the 205 Dover Street apartment building was in foreclosure, and the strong likelihood that Ms. Taylor would have to move out of the building very soon. 16. Ms. Taylor asked Ms. Senior if HANH would help her search for an accessible apartment. 17. Ms. Senior responded by stating that searching for an apartment was Ms. Taylor’s responsibility under the Section 8 program. 18. Ms. Senior’s response, described in paragraph 17, was a misrepresentation of the Section 8 program rules. 19. Ms. Senior’s response, described in paragraph 17, represents the policy, pattern and/or practice of HANH toward disabled persons on Section 8 who ask for HANH’s assistance in searching for an apartment. 20. On or about March 14, 2008 Ms. Taylor reiterated her concerns in a written request for a reasonable accommodation, which was received by HANH that same day. See Exhibit C, Reasonable Accommodation Letter from R. Taylor. HANH’s own Administrative Plan requires HANH to respond to such a request within thirty days. Over thirty days have passed and HANH has not responded in any way. 21. On April 3, 2008 the Superior Court for the district of New Haven granted a motion for default against the owner of the building, Ms. Taylor’s landlord, for failure to appear and defend the foreclosure proceedings against 205 Dover Street. See Exhibit D, Case Detail Docket for
5

Case 3:08-cv-00557-JBA Document 81 Filed 11/19/08 Page 6 of 13
CV-08-5017975-S. Upon information and belief, the Taylor family is likely to be ejected from 205 Dover Street within the next sixty days.
CLASS MEMBERS 22. The proposed class definition is: “All current and future participants in the Section 8 Housing Choice Voucher program who, because of the disabilities and/or handicaps of themselves or someone in their household, need assistance in searching for suitable dwellings to lease under the program.” 23. The proposed class is appropriate for certification under Rule 23 (b)(2) of the Federal Rules of Civil Procedure, because the Defendants have refused to act “on grounds generally applicable to the class,” and the plaintiffs seek primarily injunctive and declaratory relief. 24. The proposed class is “so numerous that joinder of all members is impracticable” within the meaning of Rule 23 (a)(1) of the Federal Rules of Civil Procedure. Upon information and belief, the Defendants’ policy, pattern and/or practice of refusing to assist disabled Section 8 participants in their searches for accessible housing pursuant to their obligations under 24 C.F.R. § 8.28 affects over three hundred current participants who hold Section 8 vouchers administered by HANH. Upon information and belief, HANH issues at least one hundred additional vouchers each year, and at least a third of those vouchers are issued to households that include a disabled member. Thus the class, while fluid, nevertheless comprises least four hundred voucher-holders and participants at any given point.
6

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25. The proposed class has been subjected to identical or similar treatment by the Defendants, such that “there are questions of law or fact common to the class” within the meaning of Rule 23 (a)(2) of the Federal Rules of Civil Procedure. 26. The claims of named plaintiff Rebecca Taylor and Karl Hunter are “typical of the claims or defenses of the class” within the meaning of Rule 23 (a)(3) of the Federal Rules of Civil Procedure. 27. The named plaintiff Rebecca Taylor and Karl Hunter will “fairly and adequately protect the interests of the class” within the meaning of Rule 23 (a)(4) of the Federal Rules of Civil Procedure.
JURISDICTION AND VENUE 28. Pursuant to 28 U.S.C. §§ 1331 and 1343(a)(3) and 42 U.S.C. §1983, jurisdiction is proper in that plaintiff’s claims alleged herein arise under federal law. 29. Venue is proper in that the facts giving rise to the claims alleged herein occurred in New Haven, Connecticut, and all parties reside or have their business address in New Haven, Connecticut.
PARTIES 30. Named plaintiffs Rebecca Taylor and Karl Hunter are each heads of households that participates in the Section 8 program, and each have disabilities and handicaps, as those terms are defined in the Fair Housing Act Amendments and the Rehabilitation Act.
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Case 3:08-cv-00557-JBA Document 81 Filed 11/19/08 Page 8 of 13
31. Defendant Jimmy Miller formerly served as the Executive Director of HANH. He is sued in his individual and official capacities. Defendant Karen Dubois-Walton currently serves as the Executive Director of HANH. She is sued in her individual and official capacities.
32. Defendants David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner are Commissioners of the Housing Authority Commission of the City of New Haven, and as such are responsible for directing and supervising the actions of HANH. They are each sued in their individual and official capacities. 33. Together, HANH, Miller, Alvarado, Leffingwell, Persall, Solomon, and Turner (the “Defendants”) are jointly and severally liable for the harms alleged herein.
COUNT I The Fair Housing Act Amendments 42 U.S.C. § 3604(F) and its implementing regulations at 24 C.F.R. Part 100 34. The plaintiffs incorporate paragraphs 1 through 33 of this Complaint as if repeated in this Count I. 35. The Defendants’ have intentionally discriminated against the plaintiffs on account of their disabilities, denying the plaintiffs the right to enjoy the benefits of participating in the Section 8 Program by refusing to provide search assistance to the plaintiffs that they routinely provide to non-disabled Section 8 households, including lists of available Section 8 apartments and mobility counseling services, and by refusing to reasonably accommodate them. 36. The Defendants have a policy, pattern and/or practice of discriminating against persons with disabilities and/or handicaps, as described in this Complaint.
8

Case 3:08-cv-00557-JBA Document 81 Filed 11/19/08 Page 9 of 13
37. The acts described in this Count I have injured and continue to injure the plaintiffs by making housing and services unavailable to them, or available only on different terms in violation of 42 U.S.C. §3604 et seq., and by denying them reasonable accommodation that were necessary to allow them to enjoy Section 8 housing. 38. The acts described in this Count I have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair. 39. The acts and omissions described in this Count I were committed knowingly, intentionally, and with callous disregard for the rights of the plaintiffs.
COUNT II Section 504 of the Rehabilitation Act (29 U.S.C. § 794 et seq.)
and its implementing regulations at 24 C.F.R. Part 8 40. Named plaintiff incorporates paragraphs 1 through 39 of this Complaint as if repeated in this Count II. 41. Named plaintiff Rebecca Taylor is “otherwise qualified” to participate in the Section 8 program. 42. Named plaintiff Rebecca Taylor requested that the defendants reasonably accommodate her by helping her to search for and lease a suitable unit under the Section 8 program. 43. The Defendants denied Rebecca Taylor’s requests for a reasonable accommodation, by one or more of the following acts:
a. orally refusing to grant her request for reasonable accommodation; b. failing to respond to her request for reasonable accommodation in writing
within the thirty-day period specified by HANH’s own Administrative Plan;
9

Case 3:08-cv-00557-JBA Document 81 Filed 11/19/08 Page 10 of 13
c. responding to her request for reasonable accommodation in an unreasonable manner, such as delaying action on it without regard to how such delay might endanger or harm her or her family.
44. The acts described in this Count II have injured and continue to injure Rebecca Taylor by causing her to suffer frustration, anxiety, emotional distress, and despair.
COUNT III Section 1983 and the United States Housing Act of 1937, as amended, and 24 C.F.R. § 8.28 45. The plaintiffs incorporate paragraphs 1 through 44 of this Complaint as if repeated in this Count III. 46. The Defendants’ policies, pattern and/or practices violated subpart (a)(3) of 24 C.F.R. § 8.28, which requires that housing authorities must: “When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the [housing authority] and, if necessary, otherwise assist the family in locating an available accessible dwelling unit.” 47. The Defendants have been advised by HUD and others on numerous occasions from 1994 to the present that such policies, pattern and/or practices were unlawful. 48. The Defendants were further put on notice that their policies pattern and/or practices violated subpart (a)(3) of 24 C.F.R. § 8.28 by an Order issued by the Honorable Warren Eginton on September 19, 2007, enjoining HANH from its refusal to supply such listing. 49. The acts described in this Count III have injured and continue to injure the plaintiffs by causing them to suffer frustration, anxiety, emotional distress, and despair.
10

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50. The acts and omissions described in this Count III were committed knowingly, intentionally, and with callous disregard for the rights of the plaintiffs.
COUNT IV Injunctive Relief 51. The plaintiffs incorporate paragraphs 1 through 50 of this Complaint as if repeated in this Count IV. 52. The plaintiffs seek to preserve the status quo by enjoining the Defendants’ refusal to comply with 42 U.S.C. § 3604(F)(3)(B), Section 504 of the Rehabilitation Act and 24 C.F.R. § 8.28(a)(3). 53. The plaintiffs are likely to be irreparably harmed by the defendants’ continuing noncompliance, as demonstrated by the defendants’ failure to assist the named plaintiff, Rebecca Taylor, exposing her family to imminent homelessness and loss of her Section 8 benefits. 54. The plaintiffs are likely to prevail on the merits of their claims. 55. The balance of hardships tips decidedly in the plaintiffs’ favor, inasmuch as the defendants are being asked to provide a purely administrative remedy, whereas Rebecca Taylor may lose her home, and her continued eligibility for a housing subsidy. PRAYER FOR RELIEF WHEREFORE, the plaintiff prays for relief from this Court, in the form of: 1. An injunction requiring the defendants to cease their noncompliance with the law, by:
11

Case 3:08-cv-00557-JBA Document 81 Filed 11/19/08 Page 12 of 13
a. making available to all Section 8 applicants and plaintiff class members a list of currently available, accessible apartments known to HANH, and continuing to update and make available such list on a monthly basis;
b. notifying in writing all members of HANH staff who have direct contact with Section 8 applicants and participant household of the policy changes contained in this order, and contract with the Connecticut Fair Housing Center to randomly perform testing of the effectiveness of such notice upon the practices of HANH staff on at least three occasions over the next twelve months;
c. using a mobility counseling service, or their own staff, if necessary, to timely assist plaintiff class members who need to move by providing assistance with the following activities:
i. searching for suitably sized dwellings that are accessible or modifiable; ii. visiting such dwellings to determine whether they are truly accessible or
modifiable; iii. applying for funding to make modifications for accessibility if necessary; and iv. facilitating the leasing process. 3. A declaration that the defendants have violated their obligations under 24 C.F.R. § 8.28, and the Fair Housing Act Amendments of 1988, Section 504 of the Rehabilitation Act of 1973. 4. An award of compensatory damages to the named plaintiff;
12

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5. An award of costs of suit, and reasonable attorney’s fees pursuant to 42 U.S.C. §3613(c)(2) and any other applicable statute that would permit such award; and 6. Such other relief as the Court deems just.
Respectfully submitted, THE PLAINTIFFS BY THEIR ATTORNEY: /s/_______________ Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 498-8223 Email: jenvickery400@hotmail.com
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 Case 3:08-cv-00557-JBA Document 108 Filed 03/10/09 Page 1 of 17

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Rebecca Taylor and Karl Hunter, Plaintiffs,
v.
The Housing Authority of New Haven, Karen Dubois-Walton, Jimmy Miller, David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner,
Defendants.

Civil No. 3:08cv557 (JBA) March 9, 2009

RULING ON PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION [Doc. # 46], GRADY REYNOLDS AND PLAINTIFFS’ MOTION TO INTERVENE [Doc. # 83],
and PLAINTIFFS’ MOTION TO APPOINT CLASS COUNSEL [Doc. # 101] Plaintiffs Rebecca Taylor and Karl Hunter allege that the Housing Authority of New
Haven (“HANH”)1 discriminates against them and other disabled Section 8 tenants by failing to afford them certain accommodations to which they claim entitlement under the statutes and regulations governing HANH’s implementation in New Haven of the Section 8 Housing Choice Voucher Program (the “Section 8 Program”) of the U.S. Department of Housing and Urban Development (“HUD”). Plaintiffs now move for class certification on two of their claims, which Defendants oppose.

1 Plaintiffs also bring suit against HANH Executive Director Karen Dubois-Walton, former HANH Executive Director Jimmy Miller, and five members of the Housing Authority Commission for the City of New Haven (David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner).

Case 3:08-cv-00557-JBA Document 108 Filed 03/10/09 Page 2 of 17
I. Background HANH operates HUD’s Section 8 Program within the area of New Haven.2 Among
the participants in HANH’s Section 8 Program are the named plaintiffs in this suit: Ms. Taylor, who suffers from spina bifida and uses a wheelchair, and Mr. Hunter, who has used a wheelchair since 1989 when he became permanently disabled after breaking his neck. (2d Am. Compl. [Doc. # 81] at page 1 (Taylor); Affidavit of Karl Hunter, Ex. 2 to Hunter’s Mot. Intervene [Doc. # 45] (“Hunter Aff.”), at ¶ 2.) At the time suit was brought, both had sought to move from the apartments in which they lived, and both claim that HANH did not help them locate accessible residences and/or help them to move in the ways and to the extent to which it was obligated under federal law. Specifically, Plaintiffs assert that HANH failed to provide them with a listing of apartments that are both available and accessible to them (the “Accessible Unit List” or “AUL”) and failed to inform them of the availability of, or provide them with, “mobility counseling” (a service which includes helping them identify apartments accommodating their needs, transporting them during their apartment search, helping them complete and submit rental applications, physically moving them and their belongings to their new apartments, and providing other forms of support). Plaintiffs allege that HANH has a policy and/or practice of failing to maintain and provide an AUL, and of failing to offer or provide mobility counseling, to households including at least one disabled member to
2 Defendants admit that as the administrator of the Section 8 Program for this area, HANH is subject to the regulations under which Plaintiffs bring this suit: 24 C.F.R. §§ 8.28(a)(3) and 100.204. (Defs.’ Answer to 2d Am. Compl. [Doc. # 82] at ¶¶ 2 & 3.)
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which HANH has issued a Housing Certificate or Housing Voucher (“Disabled Section 8
Household”). In Counts I and III of their complaint,3 they allege that Defendants’ failure to
provide the AUL and offer and provide mobility counseling constitutes discrimination on
the basis of their disability4 in violation of the Fair Housing Act, 42 U.S.C. § 3604(f), violates
Defendants’ duty to provide Plaintiffs with “reasonable accommodations” under 24 C.F.R.
§ 100.204, and violates 24 C.F.R. § 8.28(a)(3). (2d Am. Compl. [Doc. # 81] at ¶¶ 34–39 &
45–50.)
At oral argument, the Court proposed5 a class definition which the parties agreed
encapsulated Plaintiffs’ claims and should be the basis for analyzing whether Plaintiffs’
Motion for Class Certification should be granted under Federal Rule of Civil Procedure
23(b)(2):
3 Plaintiffs do not seek to certify a class as to Counts II or IV of the Second Amended Complaint. (See Pls.’ Suppl. Mem. Supp. Mot. Class Cert. [Doc. # 67] at 2 n. 3.)
4 While in some cases Congress has replaced the term “handicapped” with “the more politically correct term ‘disabled,’” see Alison Nodvin Barkoff, Revisiting de jure Educational Segregation: Legal Barriers to School Attendance for Children with Special Health Care Needs, 8 Cornell J.L. & Pub. Pol’y 135, 141 n. 47 (1998), the terminology of the regulations at issue here refer to the “handicaps” of members of households participating in the Section 8 Program. See 24 C.F.R. 8.3 (defining “[h]andicap” and “[i]ndividual with handicaps” for purposes of, inter alia, § 8.28(a)(3)); id. § 100.201 (defining “handicapped” for purposes of, inter alia, § 100.204). The parties agree that the definition of “handicap” is the same for the purposes of considering the regulations and statutes at issue.
5 “It is well-established that a court has the inherent power and discretion to redefine and modify a class in a way which allows maintenance of an action as a class action.” In re Methyl Tertiary Butyl Ether (MTBE) Prods. Liability Litig., 241 F.R.D. 435, 438 (S.D.N.Y. 2007).
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All households including at least one handicapped person to which the Housing Authority of New Haven has issued a Housing Certificate or Housing Voucher, and:
(a) that did not receive a list of available, accessible apartments, as required under 42 U.S.C. § 3604(f), 24 C.F.R. § 100.204, and/or 24 C.F.R. § 8.28(a)(3); and/or
(b) that did not receive Mobility Counseling services, or offer thereof, as required under 42 U.S.C. § 3604(f), 24 C.F.R. § 100.204, and/or 24 C.F.R. § 8.28(a)(3).
For the reasons that follow, Plaintiffs’ motion for class certification will be granted. II. Standards for Class Certification
“It would seem to be beyond dispute that a district court may not grant class certification without making a determination that all of the Rule 23 requirements are met.” In re Initial Public Offering Sec. Litig., 471 F.3d 24, 40 (2d Cir. 2006) (“In re IPO”).
Plaintiffs moving for class certification must demonstrate that their proposed class meets the requirements of Rule 23(a) and (b). Rule 23(a) outlines “four familiar features” that must be present if a class is to be certified: numerosity, commonality, typicality, and adequacy of representation. McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 222 (2d Cir. 2008); see also Fed. R. Civ. P. 23(a). In addition to these four express criteria, there is an implicit but “fundamental” requirement under Rule 23(a) that a certified class be ascertainable, i.e., “[t]he class that plaintiffs seek to certify must be readily identifiable so that the court can determine who is in the class, and thus, who is bound by the ruling. A class is ascertainable when defined by objective criteria that are administratively feasible, without a subjective determination.” McBean v. City of New York, 228 F.R.D. 487, 492 (S.D.N.Y. 2005). Plaintiffs seek certification under Rule 23(b)(2), under which their action must allege that “the party opposing the class has acted or refused to act on grounds that apply generally
4

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to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
In the Second Circuit, although a court considering a motion for class certification must “assess all of the relevant evidence admitted at the class certification stage and determine whether each Rule 23 requirement has been met,” In re IPO, 471 F.3d at 42, it should avoid holding “a protracted mini-trial of substantial portions of the underlying litigation,” id. 41, as it seeks to obtain this evidence. It must consider the merits of the lawsuit to the extent necessary to determine whether the Rule 23 requirements have been met, but is precluded from considering any dispute about the suit’s merits unrelated to these requirements. Id. III. Discussion
A. Allegations of Unlawful Policies and/or Practices Plaintiffs allege that “HANH has failed to create [a] current list of available, accessible apartments known to it, as required by 24 C.F.R. § 8.28(a)(3),” and thus is unable to provide such list to households which include a disabled individual and to which it has issued a Housing Certificate or Housing Voucher. (2d Am. Compl. ¶ 6.) They further allege that Defendants have an unlawful a “policy, pattern and/or practice . . . toward disabled persons on Section 8 who ask for HANH’s assistance in searching for an apartment” of not providing mobility counseling and instead telling such persons that “searching for an apartment [is their] responsibility under the Section 8 [P]rogram.” (Id. ¶¶ 17–19.) In support of their class certification motion Plaintiffs submit a review of HANH in which a HUD analyst stated that HANH believed, incorrectly, that it did not have “the responsibility of locating accessible units” within its jurisdiction. (HUD Investigation
5

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Report, Ex. 1 to Pl.’s Original Compl. [Doc. # 3], at 2.) Plaintiffs also submit a three-page list Defendants provided on August 4, 2008, entitled “Accessible Housing in the New Haven area,” listing only street addresses with accessible apartments but not which specific units are accessible. (Accessible Housing in the New Haven area, Ex. D to Pls.’ Mem. Supp. Cert.) This list contains a disclaimer that HANH has not verified the information, which was selfreported by landlords, that it “is not comprehensive,” and that “it does not imply an endorsement nor a guarantee of quality or accessibility.” It directs readers to “[c]heck with [each apartment’s] Rental Office for information about pricing and availability.” In a short notice for “Families Who Require Accessible Housing,” HANH offers an extension of these families’ voucher terms as a method of “tak[ing] into account the special problem of ability to locate an accessible unit,” and states that it “will provide reasonable accommodations of our policies, procedures, practices, or services if necessary” for persons with disabilities. (Id.) Plaintiffs also point to the July 2007 admission of former HANH Executive Director Jimmy Miller that because HANH “does not do searches for apartments,” its staff “do[es] not know if any [four-bedroom units in the area] are currently available.” (Miller’s Resp. to Req. Adm., Ex. B to Pl.’s Original Compl., at No. 1.) In support of the class claim regarding the absence of mobility counseling, Plaintiffs submit an HANH report prepared in July 2008 in which it states that while it has published requests for proposals for mobility counseling services, it is “still unsuccessful in finding a vendor who is willing to service both for families needing accessible units and for families seeking to relocate to suburban areas” within its “newly defined service area,” and acknowledges that it has responded only to those Disabled Section 8 Households which have actually requested assistance searching for accessible units. (HANH 504 Voluntary Compliance Agreement, Four Quarterly Report, July 9, 2008, Ex. F
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to Pls.’ Mem. Supp. Cert., at 2.) Finally, Plaintiffs cite testimony of Lashanda Jones, a Section 8 Specialist with HANH who works with individual participant households, that neither she, nor any other staffer she knows of, assists Disabled Section 8 Households to locate accessible units. (Pls.’ Mem. Supp. Cert. at 8–9 (citing Jones Dep., Ex. C to Pls.’ Mem. Supp. Cert., at 68–69).)
Claiming lack of foundation for Plaintiffs’ claim of pattern and practice, Defendants point to Ms. Jones’s testimony that she responded to Disabled Section 8 Household members’ requests for reasonable accommodation made to her by assisting them in completing and submitting the paperwork necessary to formalize their requests, and that she has never heard a Section 8 participant state that HANH has not helped him or her seek accessible housing upon request. (Defs.’ Obj. Pls.’ Mot. Class Cert. [Doc. # 59] (“Defs.’ Obj. Cert.”) at 6–7 (citing Jones Dep., Ex. A, at 69–74).) However, Ms. Jones also testified that she does not “have any responsibility for granting or denying a reasonable accommodations request,” but instead “pass[es] it along” to another office. (Jones Dep., Ex. A to Defs.’ Obj. Cert., at 74:19–23.) Defendants also submit affidavits of Laura Woodie, HANH’s Acting Reasonable Accommodation Coordinator, and Iris Santiago, HANH’s Service Center Director, both of whom aver that they have assisted disabled Section 8 participants. (See Woodie Aff., Ex. 1 to Defs.’ 2d Suppl. Mem. Supp. Obj. Pls.’ Mot. Class Cert. [Doc. # 76] (“Defs.’ 2d Suppl. Obj.”), at ¶¶ 2–12; Suppl. Woodie Aff. [Doc. # 87] at ¶¶ 2–4; Santiago Aff., Ex. 2 to Defs.’ 2d Suppl. Obj., at ¶¶ 1–9.) Finally, Defendants provide examples of forms and letters that they argue “show the conduct of HANH in regard to the issue of addressing reasonable accommodation issues.” (Defs.’ 2d Suppl. Obj. at 2; see also id. at Exs. 3–6.)
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B. Class Certification under Rule 23(a) Requirements i. Ascertainability
Defendants argue that by any definition the class is not “ascertainable” because HANH has no policy discriminating against Disabled Section 8 Households (Defs.’ Obj. Cert. at 8), and because Defendants treat different individuals differently based on HANH staff members’ interactions with different Section 8 participants (id. 8–9). Defendants’ argument misses a critical distinction between considerations of ascertainability and the merits. A class is ascertainable if its members can be identified by reference to objective criteria and if such identifications can be made in an administratively feasible manner. McBean, 228 F.R.D. at 492. The questions of what HANH’s policy or practice is and whether it is lawful are the core merits questions of this lawsuit, and they need not be resolved to determine the ascertainability of the class. Therefore, Defendants’ argument that no ascertainable (or sufficiently numerous6) class exists because the challenged policy or practice does not exist is the argument foreclosed at the class certification stage by Eisen and In re IPO’s preclusion of consideration of merits questions unrelated to Rule 23 requirements. See In re IPO, 471 F.3d at 41 (explaining that Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177 (1974), “preclude[s] consideration of the merits . . . when a merits issue is unrelated to a Rule 23 requirement”).
6 Defendants make a similar argument regarding numerosity—namely, that a determination of numerosity would be speculative because the court would have to assume the existence of the alleged policy—and in fact conflate their arguments as to ascertainability and numerosity in their opposition to class certification. See infra. For the reasons articulated here, such argument must fail.
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Plaintiffs’ claims relate to Defendants’ alleged failure to provide two distinct items: an Accessible Units List and mobility counseling. In Count I of their Second Amended Complaint Plaintiffs allege that Defendants’ failure to provide these items violates 42 U.S.C. § 3604(f), a statute that bars discrimination on the basis of the disability of a person in a Section 8 Program participant’s household, as well as 24 C.F.R. § 100.204, a regulation that requires Defendants to provide “reasonable accommodation” including services such as an AUL and mobility counseling. In Count III they allege that this same failure violates 24 C.F.R. § 8.28(a)(3), a regulation specific as to the AUL and to the provision of other assistance “if necessary.” Defining the class as those who were eligible for but did not receive either or both of these items provides objective criteria whose applicability to a given household can be determined in an administratively feasible manner and thus sets forth a sufficiently ascertainable class.
ii. Numerosity. A proposed class may not be certified unless “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). The Court need not determine the precise number of people in the putative class in order to determine that the requirement of numerosity is satisfied. Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (“Courts have not required evidence of exact class size or identity of class members to satisfy the numerosity requirement.”). In the Second Circuit “numerosity is presumed at a level of 40 members.” Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995). The evidence here suggests that the class will consist of far more than 40 members. Plaintiffs show that of the 1,640 households to which HANH issued a Housing Voucher or Housing Certificate between 2003 and 2006, 386—approximately 24%—of them were
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Disabled Section 8 Households. (Pls.’ Mem. Supp. Mot. Class Cert. [Doc. # 47] (“Pls.’ Mem. Supp. Cert.”) at 4–5 (citing “Summary of New Vouchers” (spreadsheet provided to Plaintiffs by Defendants), Ex. 15 to Pl.’s Mem. Supp. Mot. Prelim. Inj. [Doc. # 12], at 2).) Plaintiffs argue that applying this percentage to the total number of households participating in the Section 8 Program through HANH yields approximately 691 Disabled Section 8 Households to which Defendants have not provided an acceptable AUL.
Defendants argue that Plaintiffs’ showing of numerosity is mere speculation which is insufficient under Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291 (D. Conn. 2001). Russo held that a plaintiff seeking to certify a class in his suit for injunctive and monetary relief for “alleged warrantless seizure of his private pharmaceutical records” from a pharmacy did not satisfy the numerosity requirement because “an individual civil rights case cannot be transformed into a class action simply by virtue of the ipse dixit that since it happened to the plaintiff, it must have happened to others, without some indication allowing the Court to make the ‘reasonable estimate’ that the law requires.” Id. 295. Russo is inapposite here. Plaintiffs offer HANH documents which list the number of Housing Vouchers that HANH issued as well as the number of such vouchers it issued to Disabled Section 8 Households. Unlike the speculation, conclusory assertions, and unreasonable assumptions offered by the plaintiff in Russo, here the Court is able to estimate that the size of the class exceeds 40 persons on the basis of Defendants’ own statistics.
In addition, to the large number of putative class members, joinder may be impracticable for other reasons. See Robidoux, 987 F.2d at 936 (“Determination of practicability [of joinder] depends on all the circumstances surrounding a case, not on mere numbers[, including] judicial economy arising from the avoidance of a multiplicity of
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actions, geographic dispersion of class members, financial resources of class members, the ability of claimants to institute individual suits, and requests for prospective injunctive relief which would involve future class members.”). Here, the putative class members—members of Disabled Section 8 Households—are definitionally people of limited financial means which would be further strained if they were required to institute individual suits or to join this lawsuit individually. Furthermore, since this action seeks only injunctive, and not monetary, relief, the putative class members are not financially incentivized either to join this suit or institute their own individual suits.
Plaintiffs’ evidence of the order of magnitude of putative class members, coupled with these other factors, show the class to be so numerous that joinder of all members is impracticable7 under Rule 23(a)(1).
iii. Commonality and Typicality A class may not be certified unless “there are questions of law or fact common to the class,” Fed. R. Civ. P. 23(a)(2), and “the claims or defenses of the representative parties are typical of the claims or defenses of the class,” Fed. R. Civ. P. 23(a)(3). As the Supreme Court has noted, these commonality and typicality requirements “tend to merge” because “[b]oth serve as guideposts for determining whether . . . the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n. 13 (1982).
7 Joinder only need be impracticable; it need not be impossible. Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 504 F.3d 229, 244–45 (2d Cir. 2007) (“The numerosity requirement in Rule 23(a)(1) does not mandate that joinder of all parties be impossible—only that the difficulty or inconvenience of joining all members of the class make use of the class action appropriate”).
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Here, plaintiffs allege discrimination arising from Defendants’ application of policies or practices, i.e., that Defendants acted towards all “[putative] class members in the same general fashion” by denying them an AUL and mobility counseling by virtue of a common policy or practice and in violation of the same regulations, preventing their full enjoyment of the Section 8 Program. See Attenborough v. Const. and Gen. Bldg. Laborers’ Local 79, 238 F.R.D. 82, 94 (S.D.N.Y. 2006) (“In discrimination cases commonality does not mandate that all class members make identical claims and arguments, but requires that ‘the gravamen of the [c]omplaint is that defendants discriminated against class members in the same general fashion.’”) (citation omitted, alteration in Attenborough).
Defendants argue that the proposed classes suffer from a lack of commonality and typicality because “each of the plaintiffs has a unique history, where placement decisions were made by a variety of different individuals considering the unique factors of each plaintiff’s situation.” (Defs.’ Obj. Cert. 14.) As a result, they argue, “[i]t would be difficult for this court to find either commonality among the named plaintiffs or with absent class members.” (Id. 14–15.) They further argue that there is no commonality or typicality because “the harm allegedly caused each member of the proposed class resulted from some separate, distinct act or incident involving these defendants,” such that “[t]he class members were not all injured as a result of one single act or event.” (Id. 15.) Defendants’ arguments misconstrue Plaintiffs’ allegations. While the circumstances and nature of each plaintiff’s and class member’s disability may differ, Plaintiffs allege that Defendants’ discriminatory policy or practice applies to them regardless of these differences, and that Defendants’ application of that policy or practice to them is unlawful for reasons unrelated to each person’s individual disability. See Robidoux, 987 F.2d at 936–37 (“When it is alleged that the
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same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of minor variations in the fact patterns underlying individual claims.”).
Plaintiffs’ and the putative class members’ theory of liability is based on Defendants’ alleged policy in relation to the fact of their disability, and not to the nature of their individual disabilities. Cf. Raymond v. Rowland, 220 F.R.D. 173, 180 (D. Conn. 2004) (certifying a class of plaintiffs challenging the failure of the Connecticut Department of Social Services (“DSS”) to reasonably accommodate disabled persons, and explaining that “the question of reasonable accommodations is common to the class as defined here since Plaintiffs are challenging acts and omissions of DSS that are not specific to any particular Plaintiff”). Thus, the fact that the named plaintiffs are disabled Section 8 tenants—and thus members of Disabled Section 8 Households—makes them typical of the class. They represent the universe of factual scenarios encompassed by their theories of liability in Counts I and III because both Ms. Taylor and Mr. Hunter are disabled and use wheelchairs and are “handicapped” for purposes of 42 U.S.C. § 3604(f) and 24 C.F.R. §§ 8.28 and 100.204, the statute and regulations under which they bring suit. Ms. Taylor sought help from an HANH staff member in searching for an accessible apartment, was refused, and was informed that searching for an apartment was her responsibility, reflecting a “policy, pattern and/or practice of HANH toward disabled persons on Section 8 who ask for HANH’s assistance in searching for an apartment.” (2d Am. Compl. ¶¶ 15–19.) Mr. Hunter was never provided an AUL by HANH, did not know that such a list was available, and never received any assistance searching for an apartment. He did not know that he could request either the AUL or assistance. (Hunter Aff. ¶¶ 9–11.)
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It may be, as Defendants argue, that no discriminatory policies exist, such that Plaintiffs cannot prevail on their theories of liability underpinning the two counts for which they seek class certification. This merits dispute, however, does not affect determination of whether the requirements of typicality and commonality have been met. These requirements having been satisfied, the Court next addresses the requirement of adequacy of representation.
iv. Adequacy of Representation A class may only be certified if “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). While the commonality and typicality requirements “also tend to merge with the adequacy-of-representation requirement, . . . the [adequacy-of-representation] requirement also raises concerns about the competency of class counsel and conflicts of interest.” Falcon, 457 U.S. at 158 n. 13. Although Defendants refer to Ms. Taylor’s changed circumstances after suit was commenced and a preliminary injunction requiring HANH to provide her with assistance was granted on joint stipulation (See Defs.’ Suppl. Mem. Supp. Obj. Class Cert. [Doc. # 65] at 8–9; Order Granting Pls.’ Mot. Prelim. Inj. [Doc. # 23]), they do not otherwise challenge the adequacy of representation that the named plaintiffs would provide to class members. HANH has not suggested that Mr. Hunter’s claim is moot. As to the effect of the preliminary injunction requiring HANH to assist Ms. Taylor, “[w]here class claims are inherently transitory, ‘the termination of a class representative's claim does not moot the claims of the unnamed members of the class,’” and in any event “[e]ven where the class is not certified until after the claims of the individual class representatives have become moot, certification may be deemed to relate back to the filing of the complaint in order to avoid mooting the entire
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controversy.” Robidoux, 987 F.2d at 938–39 (quoting Gerstein v. Pugh, 420 U.S. 103, 110 n. 11 (1975), and citing Sosna v. Iowa, 419 U.S. 393, 401–02 & n. 11(1975) and Cty. of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991)). As a result, and because Ms. Taylor and Mr. Hunter represent all factual scenarios encompassed by their class claims, the Court determines that Rule 23(a)(4) is satisfied here.
C. Class Certification under Rule 23(b) Requirement Plaintiffs seek certification of a class pursuant to Rule 23(b)(2). A class may be certified under this subsection when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Where, as here, plaintiffs allege discriminatory and unlawful systemic or policy-level actions, certification under Rule 23(b)(2) is proper, and in fact this case presents a “prime example[]” of the type of case for which Rule 23(b)(2) certification is particularly appropriate. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997) (“Civil rights cases against parties charged with unlawful, class-based discrimination are prime examples” of Rule 23(b)(2) cases.). On the claims for which they seek class certification, Plaintiffs seek injunctive and declaratory relief as well as costs and fees, but do not seek compensatory damages. (See 2d Am. Compl. at Prayer For Relief at ¶¶ 1 & 3 & 5.) Plaintiffs allege that Defendants engage in an unlawful and discriminatory policy, pattern and/or practice by which they deprive Plaintiffs and putative class members of their rights under federal statute and regulation. They allege that this policy, pattern and/or practice is triggered by their status as Disabled Section 8 Households, regardless of their particular disabilities, such that Defendants allegedly act on
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grounds generally applicable to all named plaintiffs and putative class members. On this basis, the Court determines that Rule 23(b)(2) is satisfied.
D. Conclusion as to Class Certification The Court concludes that all requirements for class certification under Rule 23(a) and (b) have been met, and that class certification is appropriate here.8 E. Appointment of Class Counsel If the Court certifies a class, it “must appoint class counsel.” Fed. R. Civ. P. 23(g)(1). In doing so, it “must consider” the counsel’s work “in identifying or investigating potential claims in the action,” her “experience in handling class actions, other complex litigation, and the types of claims asserted in the action,” her “knowledge of the applicable law,” and “the resources that the counsel will commit to representing the class.” Fed. R. Civ. P. 23(g)(1)(A). It may also consider “any other matter pertinent to counsel’s ability to fairly and adequately represent the interests of the class.” Fed. R. Civ. P. 23(g)(1)(B). Plaintiffs move to appoint their counsel, Jennifer C. Vickery, as class counsel (Pls.’ Mot. App’t Class Counsel [Doc. # 101]), to which Defendants have no objection. Attorney Vickery avers that she served as “appointed class counsel in a similar fair housing matter,” that she has “been involved in litigating civil rights, housing and discrimination claims for the entirety of [her] legal career,” and that she is “familiar with the problems experienced by persons with disabilities in trying to rent decent housing within the City of New Haven.” (Id. at Ex. 1 at ¶¶ 3–5.) See also Matyasovszky v. Bridgeport Housing Auth., 226 F.R.D. 35 (D.
8 At oral argument Plaintiffs agreed that if the Court were to certify a class the Motion to Intervene by Plaintiffs and Proposed Intervenor Grady Reynolds [Doc. # 83] should be denied. Because a class is certified, the Motion to Intervene is denied.
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Conn. 2005) (granting class certification to plaintiffs represented by Attorney Vickery and another attorney). On these bases, and absent objection, the Court concludes that Attorney Vickery will be able to fairly and adequately represent the interests of the class. III. Conclusion
For the foregoing reasons, Grady Reynolds and Plaintiffs’ Motion to Intervene [Doc. # 83] is DENIED, Plaintiffs’ Motion for Class Certification [Doc # 46] and Motion to Appoint Class Counsel [Doc. # 101] are GRANTED, and the following class is certified with Plaintiffs’ counsel, Jennifer C. Vickery, as class counsel:
All households including at least one handicapped person to which the Housing Authority of New Haven has issued a Housing Certificate or Housing Voucher, and:
(a) that did not receive a list of available, accessible apartments, as required under 42 U.S.C. § 3604(f), 24 C.F.R. § 100.204, and/or 24 C.F.R. § 8.28(a)(3); and/or
(b) that did not receive Mobility Counseling services, or offer thereof, as required under 42 U.S.C. § 3604(f), 24 C.F.R. § 100.204, and/or 24 C.F.R. § 8.28(a)(3).
IT IS SO ORDERED.
/s/ Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 9th day of March, 2009.
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 Case 3:08-cv-00557-JBA Document 240 Filed 03/29/10 Page 1 of 84

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Rebecca Taylor, Karl Hunter, and Heiwa Salovitz, Plaintiffs,
v.
The Housing Authority of New Haven, Karen DuBois–Walton, Jimmy Miller, David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner,
Defendants.

Civil No. 3:08cv557 (JBA) March 29, 2010

MEMORANDUM OF DECISION
I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 II. Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
A. Plaintiffs’ Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Class Certification.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 C. Private Right of Action to Enforce 24 C.F.R. § 8.28(a). . . . . . . 6 III. Legal Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 A. The Statutes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 B. Applicability of the FHA and FHAA to Plaintiffs’ Claims. . . 23 C. Claims under the FHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 D. Claims under the FHAA and Section 504. . . . . . . . . . . . . . . . . 26 IV. The Benefit Provided by the Section 8 Program. . . . . . . . . . . . . . . . 30 A. Principles. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 B. The Section 8 Program.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 C. HANH Policies Regarding Disabled Participants. . . . . . . . . . 43 V. General Findings of Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 VI. Discussion and Conclusions of Law. . . . . . . . . . . . . . . . . . . . . . . . . . 52 A. Decertification of the Class. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 B. Claim of Rebecca Taylor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 C. Claim of Karl Hunter. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 D. Claim of Heiwa Salovitz.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 E. Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 VII. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

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I. Introduction Plaintiffs Rebecca Taylor, Karl Hunter, and Heiwa Salovitz claim that the Housing
Authority of New Haven (“HANH”)1 discriminated against them and other disabled persons by failing to afford them certain accommodations to which they claim entitlement under the statutes and regulations governing HANH’s implementation in New Haven of the Housing Choice Voucher Program (the “Section 8 Program” or “HCV Program”) of the United States Department of Housing and Urban Development (“HUD”). They claim that HANH’s discrimination took place during a liability period of 2006 through April 22, 2008, the date on which Taylor filed a motion for a preliminary injunction,2 and they raise four claims related to HANH’s actions during this period.
After full trial on the merits, and for the reasons that follow, the Court concludes that Plaintiffs have not shown Defendants’ liability on any of the counts. While Plaintiffs alleged that Defendants programmatically applied a policy that either intentionally discriminated against disabled HCV Program participants or failed to afford them reasonable accommodations, the evidence shows no discriminatory policy or programmatic approach to disabled participants’ requests for reasonable accommodations. Therefore, the Court must decertify the class that it earlier certified. Plaintiffs also seek to enforce certain HUD
1 Plaintiffs also bring suit against HANH Executive Director Karen DuBois–Walton, former HANH Executive Director Jimmy Miller, and five members of the Housing Authority Commission for the City of New Haven (David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner).
2 See Tr. 7/29/09 (Pre-Trial Conf.) at 13. 2

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regulations, but they have no private right of action to enforce them. Finally, there is insufficient evidence that Defendants discriminated against the three named Plaintiffs, or that Defendants’ conduct toward them deprived them of meaningful access to the benefits of the Section 8 Program. II. Claims
A. Plaintiffs’ Claims In Count One, Plaintiffs allege that HANH violated the Fair Housing Act Amendments, 42 U.S.C. § 3604(f), by failing to provide them “mobility counseling” to assist them in searching for, finding, applying for, and moving into disabled-accessible housing, in some cases despite express requests for such assistance; failing to furnish them with a list of available accessible units (an “AAUL”), again in some cases despite express requests for such a list; and providing “grossly incompetent supervision of the staff responsible for responding to such requests.” (3d Am. Compl. [Doc. # 140] at ¶¶ 64–69.) In Count Two, they allege that HANH violated Section 504 of the Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a), by “den[ying] the plaintiffs’ requests for a reasonable accommodation through chaotic lack of adherence to their own procedures, repetitive and unnecessary procedural hurdles, unconscionable delays, or other acts of gross incompetence,” despite the plaintiffs’ need for such accommodations “in order to have equal access to the Section 8 [P]rogram.” (Id. at ¶¶ 70–76.) At summation, counsel for Plaintiffs stated that this claim “has sort of meta[morpho]sized during the course of this litigation,”
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and clarified that the claim was a “Rehabilitation Act claim that there was not a reasonable accommodation made.” (Tr. Vol. IX (9/9/09) at 34.)
Count Three raises a claim, through 42 U.S.C. § 1983, that HANH has violated two relevant HUD regulations, 24 C.F.R. §§ 8.28(a) and 100.204, by instituting, condoning, knowing about, and failing to correct “policies, pattern and/or practices” that violate Plaintiffs’ right to certain specific reasonable accommodations. (Id. at ¶¶ 77–83.)
Finally, in Count Four, Plaintiffs claim that HANH has violated Section 504 and 42 U.S.C. § 3604(d) and (f)(3) by failing to use “administrative fee[s],” which are provided by HUD under a Voluntary Compliance Agreement, to make its units accessible to persons with disabilities; by “refusing under any and all circumstances to use” these funds “to help permanently or temporarily modify privately owned units to make them accessible for rental by the plaintiffs”; by “failing to assist the plaintiffs in applying for other sources of funding for such modifications that are known to it”; and by “failing and/or refusing to include any information on applying for exception rents” or other sources of “additional amount of rent” for this purpose. (Id. at ¶¶ 84–92.)
B. Class Certification Plaintiffs moved under Federal Rule of Civil Procedure 23 for class certification as to their first and third counts, and on March 10, 2009 the Court granted the certification motion. See Taylor v. Hous. Auth. of New Haven, 257 F.R.D. 23 (D. Conn. 2009) [Doc. # 108]. Without “holding ‘a protracted mini-trial of substantial portions of the
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underlying litigation,’” the Court concluded that the requirements of Rule 23 were met. It first held that the proposed class was ascertainable:
Plaintiffs’ claims relate to Defendants’ alleged failure to provide two distinct items: an [AAUL] and mobility counseling. . . . Defining the class as those who were eligible for but did not receive either or both of these items provides objective criteria whose applicability to a given household can be determined in an administratively feasible manner and thus sets forth a sufficiently ascertainable class. Taylor, 257 F.R.D. at 27, 29 (quoting In re Initial Public Offering Sec. Litig., 471 F.3d 24, 41 (2d Cir. 2006) (“In re IPO”)). It next held that there was sufficient numerosity, because Plaintiffs alleged that no acceptable AAUL existed, so HANH could not have provided such a list to any of the “approximately 691” “households including at least one disabled member to which HANH has issued a Housing Certificate or Housing Voucher (‘Disabled Section 8 Household’),” and also because “the putative class members are not financially incentivized either to join this suit or institute their own individual suits.” Id. at 26, 29–30. It rejected Defendants’ argument that there was no commonality or typicality of class members due to the differences in disabilities, holding instead that “[w]hile the circumstances and nature of each plaintiff’s and class member’s disability may differ, Plaintiffs allege that Defendants’ discriminatory policy or practice applies to them regardless of these differences, and that Defendants’ application of that policy or practice to them is unlawful for reasons unrelated to each person’s individual disability.” Id. at 30; see also id. at 31. The Court certified the class under Rule 23(b)(2) because Plaintiffs “allege[d] that [HANH’s] policy, pattern and/or practice is triggered by their status as Disabled Section 8 Households, regardless of their particular disabilities, such that Defendants allegedly act on grounds generally applicable to
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all named plaintiffs and putative class members.” Id. at 32. The Court certified the following
class:
All households including at least one handicapped person to which the Housing Authority of New Haven has issued a Housing Certificate or Housing Voucher, and:
(a) that did not receive a list of available, accessible apartments, as required under 42 U.S.C. § 3604(f), 24 C.F.R. § 100.204, and/or 24 C.F.R. § 8.28(a)(3); and/or
(b) that did not receive Mobility Counseling services, or offer thereof, as required under 42 U.S.C. § 3604(f), 24 C.F.R. § 100.204, and/or 24 C.F.R. § 8.28(a)(3).
Taylor, 257 F.R.D. at 32–33.
C. Private Right of Action to Enforce 24 C.F.R. § 8.28(a)
Defendants argue that Plaintiffs do not have a private right of action to enforce the
regulations found at 24 C.F.R. § 8.28(a), which Plaintiffs invoke in their third count. The
Court agrees.
Part 8 of Title 24 of the Code of Federal Regulations contains a set of regulations
promulgated under Section 504. See HUD, Section 8 Certificate and Voucher Programs
Conforming Rule, 63 Fed. Reg. 23825, 23856 (Apr. 30, 1998) (Final Rule) (“Conforming Rulemaking”) (Pl.’s Ex. 3).3 Plaintiffs invoke 24 C.F.R. § 8.28(a)(2), (3), and (5), and seek
3 Plaintiffs argue that when it issued the Conforming Rulemaking in 1998, HUD reissued part 8 under both Section 504 and the United States Housing Act of 1937, as amended, 42 U.S.C. § 1437 et seq., and therefore part 8 is a “hybrid regulation.” This argument misreads the 1998 Rulemaking, which states that part 8 “implements [S]ection 504 of the Rehabilitation Act of 1973.” Conforming Rule, 63 Fed. Reg. at 23856; see also id. at 23849, 23851 (explaining that part 8 implements Section 504); id. at 23853 (noting that “[t]he citation authority for part 8 continues to” be Section 504 (emphasis added)); see also HUD, Nondiscrimination Based on Handicap in Federally Assisted Programs and Activities of the Department of Housing and Urban Development, 53 Fed. Reg. 20215, 20216 (June 2,
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to enforce these subsections through 42 U.S.C. § 1983. Defendants argue that there is no
private cause of action under § 1983 to enforce § 8.28(a). For the reasons that follow, the
Court concludes that although the subsections of § 8.28(a) may provide guidance on whether
a proposed accommodation would be reasonable under Section 504 itself, Plaintiffs do not
have a private right of action to enforce § 8.28(a) through § 1983.4
1988) (promulgating 24 C.F.R. pt. 8 and noting that “[t]he rule implements [S]ection 504 of the Rehabilitation Act of 1973, as amended.”); 24 C.F.R. § 8.1(a) (“The purpose of this part is to effectuate [S]ection 504 of the Rehabilitation Act of 1973.”). In fact, the Conforming Rulemaking stated that in promulgating 24 C.F.R. § 982.517(e), HUD was “add[ing] a new provision allowing the [housing authority] to establish a special higher utility allowance, on a case-by-case basis, as a reasonable accommodation for a disabled person,” and explained that the idea was to assist housing authorities to provide “a reasonable accommodation in accordance with 24 C.F.R. part 8 to make the program accessible to and usable by the family member with a disability.” 63 Fed. Reg. at 23846.
It also bears noting that in its September 2006 investigative report of HANH, HUD itself described part 8 as “the general regulatory provisions of Section 504.” (HUD Investigation Report Review No. 01-06-R001-4, Jt. Ex. 3, at 9.) Cf. Auer v. Robbins, 519 U.S. 452, 462 (1997) (giving deference to agency’s interpretation of its own regulation where it “is in no sense a ‘post hoc rationalizatio[n]’ advanced by an agency seeking to defend past agency action against attack” and “[t]here is simply no reason to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question”).
4 Plaintiffs argue that a difference exists between assertion of authority to enforce § 8.28(a) through § 1983, and assertion of authority to enforce these regulations through Section 504’s implied right of action. While Plaintiffs are correct that “the standards diverge” in “the implied cause of action doctrine” and “under [a] § 1983 analysis,” the difference is immaterial here, since the initial inquiry—beyond which this Court need not go in this case—is the same: “Under both tests, [a court] must initially decide if the statutory language ‘unambiguously confer[s] an enforceable right’ upon an identifiable class of beneficiaries.” Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 783 (2d Cir. 2002) (discussing Gonzaga and Sandoval); see also Gonzaga Univ. v. Doe, 536 U.S. 273, 285 (2002) (“A court’s role in discerning whether personal rights exist in the § 1983 context should . . . not differ from its role in discerning whether personal rights exist in the implied right of action context.”); accord Save Our Valley v. Sound Transit, 335 F.3d 932, 937 (9th Cir. 2003) (“The[] statements [in Sandoval] refer to the creation of implied rights of action, rather than to the
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Section 1983 “[i]s available to enforce violations of federal statutes by agents of the State” unless “the statute d[oes] not create enforceable rights, privileges, or immunities within the meaning of § 1983.” Wright v. City of Roanoke Redev. & Hous. Auth., 479 U.S. 418, 423 (1987) (explaining holdings of Maine v. Thiboutot, 448 U.S. 1 (1980) and Pennhurst State School & Hosp. v. Halderman, 451 U.S. 1 (1981)). Thus, “[i]n order to seek redress through § 1983, . . . a plaintiff must assert the violation of a federal right, not merely a violation of federal law.” Blessing v. Freestone, 520 U.S. 329, 340 (1997). A court
look[s] at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms. Id. at 340–41; accord Loyal Tire & Auto Ctr., Inc. v. Town of Woodbury, 445 F.3d 136, 149–50 (2d Cir. 2006). In invoking § 8.28(a), however, Plaintiffs seek a private right of action not under a statute (i.e., Section 504), but under a regulation promulgated pursuant to that statute. Neither the Supreme Court nor the Second Circuit has held that regulations can ever give rise to a private right of action distinct from the right of action conferred by the statute itself, and when confronted with the question whether federal regulations, as opposed to federal
creation of individual rights enforceable through § 1983. But the Court’s reasoning applies equally to both kinds of rights.”); Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth. of the City of Pittsburgh, 382 F.3d 412, 422 (3d Cir. 2004) (under Gonzaga, “Congress’s creation of a personal right is necessary to the existence of both an implied right of action and a right of action under Section 1983”).
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statutes, may provide a private right, the Supreme Court cast some doubt on the proposition. In construing the private right of action to enforce a regulation under Title VI, 42 U.S.C. § 2000d et seq., the Court held that “[l]anguage in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.” Alexander v. Sandoval, 532 U.S. 275, 291 (2001);5 accord Cent. Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 173 (1994) (a “private plaintiff may not bring a 10b-5 suit against a defendant for acts not prohibited by the text of § 10(b)”); see also Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 177–78 (2005) (recasting holding of Central Bank of Denver more generally to be that a “‘private plaintiff may not bring a suit based on a regulation against a defendant for acts not prohibited by the text of the statute’” (alterations in Jackson omitted)). Indeed, the Court has held that where regulations are valid and authoritatively construe a statute, it becomes “meaningless to talk about a cause of action to enforce the regulations apart from the statute.” Sandoval, 532 U.S. at 284. In Sandoval, the Court further explained that
when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up
5 In Sandoval the Supreme Court held that because Section 601 of Title VI (42 U.S.C. § 2000d)—which does provide for a private right of action—prohibits only intentional discrimination, and because Section 602 of that Title (§ 2000d-1) is directed at the agencies regulating the entities accepting federal funds rather than the entities themselves or the persons protected by Title VI, Department of Justice regulations promulgated under Sections 601 and 602 that prohibit disparate impacts cannot give rise to a private right of action under either section because the Section 601 private right of action is limited to actions for intentional discrimination, and because Section 602 does not provide a private right of action.
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a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself. 532 U.S. at 291. Section 504, the statute under which HUD promulgated § 8.28(a), provides a federal right that is “enforceable through [a] private cause[] of action,” Barnes v. Gorman, 536 U.S. 181, 184–85 (2002) (citing 29 U.S.C. § 794a(a)(2)), and Defendants do not contest that Plaintiffs have a cause of action to enforce the statute. However, Plaintiffs do not (and could not) argue that the Rehabilitation Act, which contains an implied right of action, “provide[s] a general authorization for private enforcement of regulations,” Sandoval, 532 U.S. at 291, so if Plaintiffs have any private right of action to enforce § 8.28(a), under Sandoval it cannot be any broader than the private right of action conferred on them by Section 504 itself. Thus the question arises as to the scope of Section 504’s implied private right of action, a question unaddressed by the parties aside from Defendants’ reliance on one Third Circuit case that does not squarely address the question. As 29 U.S.C. § 794a(a)(2) makes clear,6 a private plaintiff’s right of action to enforce Section 504 is derived from, and thus “coextensive with[,] the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964.” Gorman, 536 U.S. at 184–85 (citing 29 U.S.C. § 794a(a)(2)); see also Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 590 n.4 (1999) (“Section 505 of the Rehabilitation Act incorporates the remedies, rights, and procedures set forth in Title VI of the Civil Rights Act of 1964 for violations of § 504 of
6 This statute provides that “[t]he remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under [Section 504].” 29 U.S.C. § 794a(a)(2).
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the Rehabilitation Act. See 29 U.S.C. § 794a(a)(2).”); accord Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (“A plaintiff aggrieved by a violation of the [Rehabilitation Act] may seek all remedies available under Title VI”); Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth. of the City of Pittsburgh, 382 F.3d 412, 425 (3d Cir. 2004) (rights of action under the statutes are “contiguous”).
Because Title VI—and thus, derivatively, Section 504—contains “an implied right of action,” Gorman, 536 U.S. at 185 (citing Cannon v. Univ. of Chicago, 441 U.S. 677, 703 (1979)),7 the right of action can extend no further than to where “the statutory language ‘unambiguously confer[s] an enforceable right’ upon an identifiable class of beneficiaries,” Taylor v. Vermont Dep’t of Educ., 313 F.3d 768, 783 (2d Cir. 2002) (quoting and construing Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002) (alteration in Vermont Department of Education)); see also Three Rivers, 382 F.3d at 424 (under Sandoval, when considering the enforceability of a regulation promulgated under a statute containing an implied right of action, “a court is really looking more precisely at whether the agency rule is within the scope of—i.e., construes, fleshes out, or fills in the interstices of—a personal right that the enabling statute creates”). And Section 504, which speaks expressly to a disabled person’s right not
7 While “Congress has since ratified Cannon’s holding,” that ratification took the form of an “express[] abrogat[ion] [of] States’ sovereign immunity against suits brought in federal court to enforce Title VI,” Sandoval, 532 U.S. at 280 (citing 42 U.S.C. § 2000d-7), rather than the form of an express right of action, and is thus understood as “Congress [having] acknowledged this right,” Gorman, 536 U.S. at 185 (emphasis added), rather than having codified it. The private rights of action to enforce Title VI, and thus Section 504, therefore remain “implied right[s] of action.” Id. (emphasis in original); accord Three Rivers, 382 F.3d at 426 (“Section 504’s private right of action derives—through Congress’s use of parallel language, incorporation of Title VI’s remedies in the 1978 amendments, and ratification of Cannon—from the right of action that exists to enforce Title VI.” (describing holding of Gorman, 536 U.S. at 185)).
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to “be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance,” 29 U.S.C. § 794(a), provides to disabled persons the right to access benefits of a federally-funded program or activity. “The balance struck in [Southeastern Community College v.] Davis[, 442 U.S. 397 (1979) (interpreting Section 504)] requires that an otherwise qualified handicapped individual must be provided with meaningful access to the benefit that the grantee offers.” Alexander v. Choate, 469 U.S. 287, 301 (1985) (emphasis added); accord, e.g., Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir. 2004) (“the Rehabilitation Act . . . prohibit[s] discrimination against qualified disabled individuals by requiring that they receive ‘reasonable accommodations’ that permit them to have access to and take a meaningful part in public services and public accommodations.”).
The text of Section 504, like judicial construction of it, speaks broadly in terms of access to benefits. It does not, however, speak in terms of specific components of a benefit, program, or activity, or access to any specific components. See Loeffler, 582 F.3d at 276 (Section 504 “does not ensure equal medical treatment, but does require equal access to and equal participation in a patient’s own treatment” (citing Choate, 469 U.S. at 301)); Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) (similar); cf. Choate, 469 U.S. at 299 (Section 504 embodies “two powerful but countervailing considerations—the need to give effect to the statutory objectives and the desire to keep § 504 within manageable bounds”). Therefore, the statute cannot be construed to unambiguously provide a private right of action to obtain any such specific or tangible components of the benefits of a program or activity. Cf. Streck v. Bd. of Educ. of East Greenbush School Dist., 280 F. App’x 66, 68 (2d Cir. 2008) (“Under . . . the Rehabilitation Act, a demand for ‘reasonable accommodations to assure access to an
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existing program’ is cognizable; but a demand for ‘additional or different substantive benefits’ is not.” (quoting Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000)).
Since the regulation cannot provide a right that the statute does not, it follows a fortiori that no right to specific, distinct, tangible, or concrete things purportedly granted to disabled persons by regulation can be said to fall within the scope of the private right provided by the statute itself, and therefore no such regulation-based right may be enforced through § 1983. See Sandoval, 532 U.S. at 291; see also Three Rivers, 382 F.3d at 429 (if “the regulations . . . construe non-personal rights or obligations that Section 504 creates . . . [or] create distinct rights or obligations—either personal or non-personal—in addition to those that Section 504 creates,” then they are not privately enforceable); South Camden Citizens in Action v. New Jersey Dep’t of Envtl. Prot., 274 F.3d 771, 790 (3d Cir. 2001) (holding that under Sandoval, regulations do not create rights enforceable through a private right of action if the regulations, “though . . . valid, are not based on any federal right present in the statute.”). Since 24 C.F.R. § 8.28(a) speaks to specific components of the Section 8 Program, it cannot be said to confer rights that come within the scope of the right conferred by Section 504 itself. In the language of Sandoval, 532 U.S. at 284, the prohibitions and obligations imposed by § 8.28(a) are not “covered by the cause of action to enforce” Section 504. Therefore, § 8.28(a)’s provisions are not enforceable under Section 504 or through § 1983.
Even taken on its own, 24 C.F.R. § 8.28(a) does not speak with the clarity necessary to conclude that it unambiguously confers any enforceable rights on Plaintiffs.8 In Gonzaga
8 Notwithstanding its having concluded that § 8.28(a) does not confer rights that fall within the right conferred by Section 504, the Court undertakes an analysis of the regulation’s language given the lack of clarity in the case-law regarding whether, and when, a court must apply the Gonzaga analysis, which is applicable to statutes, to the text of a
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the Supreme Court “reject[ed] the notion that [its] cases permit anything short of an
unambiguously conferred right to support a cause of action brought under § 1983.”
Gonzaga, 536 U.S. at 283. The Second Circuit made clear in Vermont Department of
Education that under Gonzaga determination of whether “language ‘unambiguously
confer[s] an enforceable right’ upon an identifiable class of beneficiaries” must turn on “the
specific language” of the “provisions” on which the right of action is claimed to be based,
Vermont Dep’t of Educ., 313 F.3d at 784, and also emphasized that to be enforceable through
§ 1983 the right purportedly found in “the specific language” must be “‘unambiguously
conferred,’” id. at 785 (quoting Gonzaga, 536 U.S. at 283 (emphasis in Vermont Department
of Education)). If a provision “combines elements of both . . . language that . . . does not
regulation. It may be that no such analysis is appropriate, since in Sandoval the Court reiterated that “[l]ike substantive federal law itself, private rights of action to enforce federal law must be created by Congress,” 532 U.S. at 286, the Gonzaga analysis focuses on whether statutory text contain “the sort of ‘rights-creating’ language critical to showing the requisite congressional intent to create new rights,” 536 U.S. at 287 (quoting Sandoval, 532 U.S. at 288–89), and the argument that “regulations [may] contain rights-creating language . . . skips [the] analytical step” of first determining whether “Congress through statutory text created” a private right of action, Sandoval, 532 U.S. at 291 (second emphasis added).
On the other hand, where Congress has, through statutory text, created a private right of action (in this case, an implied one), Sandoval can be read to suggest that an examination of the regulation’s text might be appropriate to determine the scope of the purported regulation-created right so as to compare it with the statutory right, at least in circumstances where the right purportedly conferred by a regulation is less far afield from the statute than the relationship the Court confronted in Sandoval between the disparatetreatment statute, 42 U.S.C. § 2000d-1, and the disparate-impact regulation, 28 C.F.R. § 42.104(b)(2). See Sandoval, 532 U.S. at 291; see also Three Rivers, 382 F.3d at 424 (reaffirming precedent “extend[ing] Sandoval’s reasoning to the Section 1983 context” in light of Gonzaga, and explaining that “a regulation cannot create a right enforceable through section 1983 where the alleged right does not appear explicitly in the statute, but only appears in the regulation. A plaintiff can only enforce a regulation under Section 1983 if the regulation merely defines the specific right that Congress already has conferred through the statute” (internal quotations, citations, and alterations omitted)).
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confer an individual right” and “individually focused language that evidences an intent to create a right,” no right enforceable through § 1983 has been “unambiguously conferred,” and therefore no § 1983 action lies. See id. at 785.
Turning to the regulations at issue, Plaintiffs seek to enforce three subsections of § 8.28(a), which provide:
[A] recipient administering a Section 8 Existing Housing Certificate program or a housing voucher program shall: . . .
(2) In its activities to encourage participation by owners, include encouragement of participation by owners having accessible units;
(3) When issuing a Housing Certificate or Housing Voucher to a family which includes an individual with handicaps include a current listing of available accessible units known to the PHA and, if necessary, otherwise assist the family in locating an available accessible dwelling unit; . . . and
(5) If necessary as a reasonable accommodation for a person with disabilities, approve a family request for an exception rent under § 982.504(b)(2) for a regular tenancy under the Section 8 certificate program so that the program is readily accessible to and usable by persons with disabilities.
24 C.F.R. § 8.28(a). While HUD’s use of the word “shall” in § 8.28(a), which is directed at public housing
authorities (“PHAs”), is “mandatory”—rather than “precatory” or “hortatory,” see Pennhurst, 451 U.S. at 24 (where statutory provision is “hortatory, not mandatory,” no private right can be implied); Blessing, 520 U.S. at 340–41 (“the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms”)—examination of each subsection of § 8.28(a) reveals that at least two of the subsections are not enforceable through § 1983, and that, a fortiori, taken as a whole, § 8.28(a) cannot be read to “unambiguously confer[]” such a right. See Vermont Dep’t of Educ., 313 F.3d at 785.
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First, subsection (2) of § 8.28(a) does not speak in terms of individuals’ or beneficiaries’ rights. Instead, it addresses PHAs’ obligation to encourage participation of owners who can offer units that are accessible to disabled persons. Even assuming, arguendo, that PHAs’ compliance with § 8.28(a)(2) would necessarily increase the availability of accessible housing in the private market, and, further, would thereby strengthen the ability of people with disabilities to find opportunities to use the benefit provided by PHAs, the subsection’s language is directed at the relationship between PHAs and unit owners, and therefore does not evidence any intent to benefit Plaintiffs. In addition, any individual’s right under this subsection would be vague and amorphous because the regulation is devoid of an “objective benchmark,” see Wilder v. Virginia Hosp. Ass’n, 496 U.S. 498, 519–20 (1990), by which the judiciary could measure PHAs’ efforts and determine whether particular actions by the PHA are sufficiently “encourag[ing]” to satisfy the regulation. Thus, subsection (2) cannot be read to create any private right, let alone one that is within the scope of the right enforceable under Section 504 itself.
Subsection (5) speaks in terms of necessity without providing any benchmarks for when the “reasonable accommodation” of an exception rent would be necessary. Because the Supreme Court has implied a private right of action in Title VI, and because the Rehabilitation Act expressly invokes this implied right of action, the vagueness of the phrase “reasonable accommodation” cannot be understood to make the statute unenforceable. However, subsection (5), standing on its own without the Rehabilitation Act’s express invocation of another law’s private right of action analogous to 29 U.S.C. § 794a(a)(2), is too vague and amorphous for the Court to conclude that this regulation includes an implied private right of action. See, e.g., Suter v. Artist M., 503 U.S. 347, 363 (1992) (concluding that
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a statute requiring a State to make “reasonable efforts” “does not unambiguously confer an enforceable right upon the Act’s beneficiaries” because the language “is at least as plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary” pursuant to an administrative-enforcement scheme); Gonzaga, 536 U.S. at 281–83 (summarizing holdings in Suter and Blessing that rejected efforts to read implied private rights of action into statutes, and forcefully rejecting argument that the Court’s cases “establish a relatively loose standard for finding rights enforceable by § 1983”); cf. id. at 295 (Stevens, J., dissenting) (explaining that majority was rejecting a proposed right that “is more specific and clear than rights previously found enforceable under § 1983 in [Wright] and [Wilder], both of which involved plaintiffs’ entitlement to ‘reasonable’ amounts of money”).9
In addition, the first part of Subsection (3) contains language that could be read to give rise to a private right, but that right—to an accessible unit list, which is a particular document containing particular information, upon receipt of a housing voucher—is too specific and is directed at a particular object (i.e., a document listing certain apartments), and therefore falls outside the scope of the general right to meaningful access provided by Section 504. Assuming, arguendo, that this language creates a private right, it is a right to a concrete and tangible object—an AAUL. But Section 504 does not create rights to any specific components of any program or activity and cannot be construed to unambiguously provide a private right of action to obtain any such specific or tangible components. See, e.g., Streck, 280 F. App’x at 68 (“a demand for ‘additional or different substantive benefits’ is not”
9 It is also worth noting that Subsection (5) references another regulation, § 982.504(b)(2), that does not exist.
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cognizable under Section 504). Therefore, the private right to an accessible unit list, which arguendo arises under § 8.28(a)(3), is a right that extends beyond the enforceable right unambiguously conferred by the statutory language, and thus cannot be privately enforced. See Vermont Dep’t of Educ., 313 F.3d at 783.
Even if § 8.28(a)(3) and (5) could be construed to contain “individually focused language that evidences an intent to create an enforceable right,” those provisions are surrounded by language that “does not confer an individual right,” so, like the court in Vermont Department of Education, 313 F.3d at 785, this Court “cannot say that [§ 8.28(a)] creates . . . ‘unambiguously conferred right[s].” Bolstering the Court’s conclusion that § 8.28(a)(2), (3) and (5) are not enforceable directly through § 1983 is HUD’s description of the purpose of 24 C.F.R. part 8 and the fact that its regulations provide an administrativeenforcement scheme. HUD explains that
The policies and standards for compliance established by this part are established in contemplation of, and with a view to enforcement through, the Department’s administration of programs or activities receiving Federal financial assistance and the administrative procedures described in Subparts D and E (including, without limitation, judicial enforcement under § 8.57(a)). 24 C.F.R. § 8.1(b). In turn, the compliance provisions in Subpart D of part 8 (“Enforcement”) specify the contemplated enforcement scheme, which is primarily administrative. First, the regulation entitled “Compliance information” specifies, in pertinent part: “Cooperation and assistance. The responsible civil rights official and the award official shall, to the fullest extent practicable, seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients
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to help them comply voluntarily with this part.” Id. § 8.55(a).10 Second, the regulation
entitled “Procedure for effectuating compliance” provides:
(a) General. If there appears to be a failure or threatened failure to comply with this part and if the noncompliance or threatened noncompliance cannot be corrected by informal means, compliance with this part may be effected by the suspension or termination of or refusal to grant or to continue Federal financial assistance, or by other means authorized by law. Such other means may include, but are not limited to: (1) A referral to the Department of Justice with a recommendation that appropriate proceedings be brought to enforce any rights of the United States under any law of the United States, or any assurance or other contractual undertaking; (2) The initiation of debarment proceedings pursuant to 2 [C.F.R.] part 2424; and (3) Any applicable proceeding under State or local law.
Id. § 8.57(a). The regulations thus clearly contemplate an enforcement scheme in which a
public housing authority’s compliance with the regulations is to be enforced administratively
by HUD, first, through “informal means,” and second, by discontinuing, or threatening to
discontinue, federal funding. Where these administrative mechanisms do not achieve
compliance, the regulations contemplate both judicial and administrative proceedings,11 but
the only entity which the regulation contemplates will bring an action under federal law is
the Department of Justice, which is the only entity described in the regulations as having any
10 Other regulations make clear that the “responsible civil rights official” designates a set of HUD employees in Washington, DC who oversee PHAs and administrative complaints brought against them. See 24 C.F.R. § 8.56 (“Conduct of investigations”).
11 2 C.F.R. part 2424 concerns “Nonprocurement Debarment and Suspension” and prescribes the procedures to be followed when HUD seeks to stop funding a project. See 2 C.F.R. § 2424.220 (“this part applies to any contract . . . if the contract is to be funded or provided by HUD under a covered nonprocurement transaction and the amount of the contract is expected to equal or exceed $25,000”).
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“rights.” To the extent that § 8.57(a) could be construed as contemplating private enforcement by court action, such enforcement would be accomplished through “State or local law”—but not federal law or the regulations themselves.
While this administrative-enforcement scheme does not clearly foreclose the possibility that some of the regulations in 24 C.F.R. part 8 may be enforceable through § 1983, it further counsels in favor of the Court’s conclusion that § 8.28(a)(2), (3), and (5) are not so enforceable. Indeed, even if an administrative-enforcement scheme is not so comprehensive as to “preclude a finding of . . . intent to create a private right of action,” it may “tend to contradict a[n] . . . intent to create privately enforceable rights.” Sandoval, 532 U.S. at 290–91 (emphasis added). Indeed, the availability of “administrative procedures” to enforce regulations “further counsel[s] against [a court’s] finding a congressional intent to create individually enforceable private rights.” Gonzaga, 536 U.S. at 289–90.
For all these reasons, the Court concludes that Plaintiffs may not enforce any part of 24 C.F.R. § 8.28(a) through 42 U.S.C. § 1983. Nonetheless, Defendants do not challenge the validity of § 8.28(a), and regulations may be valid even if they do not create provide rights enforceable through § 1983. See Three Rivers, 382 F.3d at 429 n.18 (“Nothing here is meant to cast doubt on the validity of the HUD regulations themselves. But the validity of the regulations is a different question than whether they are privately enforceable.”). Consistent with the parties’ positions, the Court will assume that § 8.28(a) is valid and applicable to HANH, see Taylor, 257 F.R.D. at 26 n.2 (“Defendants admit that as the administrator of the Section 8 Program for this area, HANH is subject to the regulations under which Plaintiffs
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bring this suit.”),12 and therefore will construe them probatively, as providing interpretive meaning as to whether particular kinds of accommodations by a PHA such as HANH are reasonable. See, e.g., Telesca v. Long Island Hous. Partnership, Inc., 443 F. Supp. 2d 397, 410 (E.D.N.Y. 2006) (“The Court notes that any of the HUD regulations implementing the Rehabilitation Act may be relevant in determining whether the defendants are liable under Section 504, and what remedies are available to address such violation.”); see also Henrietta D. v. Bloomberg, 331 F.3d 261, 280 (2d Cir. 2003) (“We do not intimate that either the mere fact that [a city ordinance] was enacted or the fact that it was viewed as ‘access’ legislation per se makes it a reasonable accommodation under the relevant federal statutes. We find it to be a prima facie reasonable accommodation because we agree with the District Court that its provisions are consistent with its goal of serving as a reasonable accommodation, and it does not appear to impose costs that obviously outweigh its benefits.”).
Now that the Court has concluded that Plaintiffs cannot enforce § 8.28(a), and because they bring another claim under Section 504 itself—under which HUD promulgated § 8.28(a)—Plaintiffs’ third count is coterminous with the second count, which invokes Section 504 itself. III. Legal Principles
A. The Statutes The Fair Housing Amendments Act of 1988, Pub. L. 100-430, § 6(b), 102 Stat. 1619, 1622, amended the Fair Housing Act to prohibit discrimination on the basis of “handicap”
12 See also HANH Reply to HUD Section 504 Investigative Report, Jt. Ex. 4, at 2 (“In accordance with 24 CFR 8.28, HANH is obligated to provide specific assistance to Section 8 families that include persons with disabilities.”).
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or disability13 in advertising for or showing a “dwelling” for sale or lease. See 42 U.S.C. § 3604(c)–(e). Section 6(a) of the 1988 act amended the Fair Housing Act to prohibit discrimination on the basis of a “handicap” of a buyer/renter or anyone associated with or planning to live in the “dwelling,” in offering for sale or lease, or in crafting and construing the terms of sale or lease, of any “dwelling, or in the provision of services or facilities in connection with such dwelling.” See 42 U.S.C. § 3604(f).
Plaintiffs bring suit under § 3604(d) (the “FHA”) and § 3604(f)(3) (the “FHAA”). In relevant part, § 3604(d) provides: “[I]t shall be unlawful . . . [t]o represent to any person because of . . . handicap . . . that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.” § 3604(f), a longer provision, states in relevant part:
[I]t shall be unlawful . . . (f) (1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of— [“that buyer or renter,” anyone “associated with that person,” or anyone who is or will be the tenant or the subject dwelling; and]
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection with such dwelling, because of a handicap of— [“that person,” anyone “associated with that person,” or anyone who is or will be the tenant or the subject dwelling].
(3) For purposes of this subsection, discrimination includes—
13 The term “handicap” as used in the FHA has the same legal meaning as the now more generally accepted term “disability.” Bragdon v. Abbott, 524 U.S. 624, 631 (1998); see also Taylor, 257 F.R.D. at 26 n.4. The Court will use the latter except when quoting the statute.
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(A) a refusal to permit, at the expense of the handicapped person, reasonable modifications of existing premises occupied or to be occupied by such person if such modifications may be necessary to afford such person full enjoyment of the premises . . .
(B) a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling; or
(C) in connection with the design and construction of covered multifamily dwellings for first occupancy after [March 13, 1991 that does not provide accessibility for disabled persons]. 42 U.S.C. § 3604(f). Plaintiffs also bring suit under Section 504, which, as described above, provides that “[n]o otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” 29 U.S.C. § 794(a). B. Applicability of the FHA and FHAA to Plaintiffs’ Claims It is not entirely clear whether the FHA and FHAA apply to HANH’s administration of the Section 8 Program. Section 8 participants are tenants in privately-owned dwellings rather than dwellings owned by the federal government, state government, local municipality, or HANH, so HANH is not acting in the capacity of a “landlord,” “owner,” or “seller” when it administers the program. It appears that no court has addressed the question of whether the Fair Housing Act or its Amendments apply to the conduct of a public housing authority acting not as a dwelling owner (i.e., in the context of low income public housing), but instead as a provider of funds for use in renting privately-owned
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dwellings (i.e., in the context of administering a Section 8 Program). Some courts have addressed the merits of such claims, but in contexts where the issue of the statutes’ applicability has not been raised. See, e.g., Sierotowicz v. New York City Hous. Auth., 214 F. App’x 101, 102–03 (2d. Cir. 2007) (reversing, on other grounds, dismissal of Section 8 participants’ suit under 42 U.S.C. § 3604(f) against housing authority); Burgess v. Alameda Hous. Auth., 98 F. App’x 603, 605–06 (9th Cir. 2004) (same).
Nevertheless, Court will assume the applicability of the FHA and the FHAA for two reasons. First, no party has disputed the statutes’ applicability. Second, the Act states an extremely broad governmental policy—“to provide, within constitutional limitations, for fair housing throughout the United States,” 42 U.S.C. § 3601—that would be furthered by preventing public housing authorities administering Section 8 voucher programs from discriminating on the basis of disability. Indeed, “[t]he Supreme Court has repeatedly directed the courts to give a ‘generous construction’ to the Fair Housing Act.” Hack v. President and Fellows of Yale Coll., 237 F.3d 81, 87 (2d Cir. 2000) (opinion of Moran, J.) (quoting, inter alia, Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 211–12 (1972)), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); see also Thompson v. U.S. Dep’t of Hous. and Urban Dev., 348 F. Supp. 2d 398, 415–16 (D. Md. 2005) (“At least with respect to government defendants, the case law indicates that there can be a constructive illegal ‘denial’ of housing—i.e., a government entity may violate § 3604(a) by denying a plaintiff a housing opportunity (as opposed to an actual brick-and-mortar dwelling). . . . Indeed, in an era where housing authorities are transitioning from the provision of ‘hard units’ to the administration of more intangible housing programs involving vouchers etc., a broad reading of § 3604(a) is appropriate to continue to hold
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government entities accountable under the subsection.”). And courts, including the Second Circuit, have applied the Act to towns and zoning boards that similarly do not act in the capacity of owners, landlords, or sellers. See Tsombanidis v. West Haven Fire Dep’t, 352 F.3d 565, 573 (2d Cir. 2003) (noting, in the context of a challenge to a municipal zoning decision, that “the FHAA . . . prohibit[s] governmental entities from implementing or enforcing housing policies in a discriminatory manner against persons with disabilities”); see also, e.g., Reg’l Econ. Cmty. v. City of Middletown, 294 F.3d 35 (2d Cir. 2002); Lapid–Laurel, L.L.C. v. Zoning Bd. of Adjustment, 284 F.3d 442 (3d Cir. 2002).
The Court remains cognizant that there is authority suggesting that § 3604 applies only to landlords, owners, and others who offer dwellings for rent or sale, and therefore that the statute would be inapplicable to a PHA administering a Section 8 voucher program, since in that capacity the PHA does not own or otherwise offer a dwelling for rent or sale to a Section 8 participant. See Growth Horizons, Inc. v. Delaware County, Pa., 983 F.2d 1277, 1283 (3d Cir. 1993) (“As its text and legislative history evidence, the purpose of [§ 3604(f)] is to protect the housing choices of handicapped individuals who seek to buy or lease housing and of those who seek to buy or lease housing on their behalf. The conduct and decision-making that Congress sought to affect was that of persons in a position to frustrate such choices—primarily, at least, those who own the property of choice and their representatives.” (emphasis added)); see also Hack, 237 F.3d at 88 (opinion of Pooler, J.) (rejecting claim of religious discrimination under the FHA because “the FHA does not require a landlord or seller to provide a reasonable accommodation with respect to an individual applicant’s religion” (emphasis added)).
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C. Claims under the FHA “The framework of burdens fashioned in Title VII cases is fully applicable to [FHA] housing discrimination cases.” Cabrera v. Jakabovitz, 24 F.3d 372, 383 (2d Cir. 1994); see also id. 381–82 (describing “the three-step formulation of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248 (1981)” in the context of fashioning jury instructions). To establish a prima facie case under this familiar framework, a plaintiff must show that “(1) the plaintiff is a member of the class protected by the statute, (2) the plaintiff sought and was qualified for an apartment . . ., (3) the plaintiff was denied the opportunity to rent the apartment . . ., and (4) the apartment . . . remained available thereafter.” Id. at 381 (references to discrimination in employment omitted). After a plaintiff has made out a prima facie case, the burden shifts to the defendant “to produc[e] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiscriminatory reason. This burden is one of production, not persuasion; it can involve no credibility assessment.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000) (internal quotations omitted). At the third stage of the McDonnell Douglas test, “the sole remaining issue [is] ‘discrimination vel non,’” Byrnie v. Town of Cromwell, 243 F.3d 93, 101–02 (2d Cir. 2001) (citations omitted), and “the governing standard is simply whether the evidence, taken as a whole, is sufficient to support a reasonable inference that prohibited [retaliation] occurred,” James v. New York Racing Ass’n, 233 F.3d 149, 156 (2d Cir. 2000); see also Reeves, 530 U.S. at 150. D. Claims under the FHAA and Section 504 “To establish discrimination under . . . the FHAA . . . plaintiffs have three available theories: (1) intentional discrimination (disparate treatment); (2) disparate impact; and
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(3) failure to make a reasonable accommodation.” Tsombanidis, 352 F.3d at 573. Plaintiffs assert the first and third theories. The third theory, and the case-law governing it, also applies to Section 504.
1. Intentional Discrimination Under the intentional discrimination theory applicable to the FHAA, Plaintiffs must first show that their status as disabled persons was “a motivating factor behind the” Defendants’ actions. Tsombanidis, 352 F.3d at 579. “Factors to be considered in evaluating a claim of intentional discrimination include: (1) the discriminatory impact of the governmental decision; (2) the decision’s historical background; (3) the specific sequence of events leading up to the challenged decision; (4) departures from the normal procedural sequences; and (5) departures from normal substantive criteria.” Id. at 580. Thereafter, the court analyzes a claim under this theory pursuant to the McDonnell Douglas test described above. Reg’l Econ. Cmty., 294 F.3d at 48–49.
2. Reasonable Accommodation The reasonable accommodation theory of liability applies to both the FHAA and Section 504.14 Even before a plaintiff can bring suit for denial of a reasonable accommodation, she must request the accommodation she seeks directly from the governmental entity she sues: To prevail on a reasonable accommodation claim, plaintiffs must first provide the governmental entity an opportunity to accommodate them through the entity’s established procedures used to adjust the neutral policy in question[, because] [a] governmental entity must know what a plaintiff seeks prior to incurring liability for failing to affirmatively grant a reasonable accommodation. It may be that once the governmental entity denies such an
14 See infra note 14. 27

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accommodation, neither the FHAA nor [Section 504] require a plaintiff to exhaust the state or local administrative procedures. But a plaintiff must first use the procedures available to notify the governmental entity that it seeks an exception or variance from the facially neutral laws when pursuing a reasonable accommodation claim.
Tsombanidis, 352 F.3d at 579 (internal quotations omitted).15 A plaintiff must then make
out a prima facie claim:
To make out a claim of discrimination based on failure to reasonably accommodate, a plaintiff must demonstrate that: (1) he suffers from a handicap . . .; (2) defendants knew or reasonably should have known of the plaintiff’s handicap; (3) accommodation of the handicap ‘may be necessary’ to afford plaintiff an equal opportunity to use and enjoy the dwelling; and (4) defendants refused to make such accommodation.”
Bentley v. Peace and Quiet Realty 2 LLC, 367 F. Supp. 2d 341, 344 (E.D.N.Y. 2005) (citations
omitted).
A person is “otherwise qualified” for purposes of Section 504 if she “is able to meet
all of the programs’ requirements in spite of [her] handicap.” Doe v. Pfrommer, 148 F.3d 73,
82 (2d Cir. 1998) (citing Davis, 442 U.S. at 406). As the Supreme Court has construed it,
Section 504 “requires that an otherwise qualified handicapped individual must be provided
with meaningful access to the benefit that the grantee offers,” and the “benefit” must not “be
15 Tsombanidis addressed § 3604(f) and the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12131(2). However, its holding is fully applicable to Section 504 as well. Indeed, Tsombanidis relies on Shapiro v. Cadman Towers, Inc., 51 F.3d 328 (2d Cir. 1995), which held that “in enacting [§ 3604(f)], Congress relied on the standard of reasonable accommodation developed under section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794,” observed that “[t]he legislative history of section 42 U.S.C. § 3604(f) plainly indicates that its drafters intended to draw on case law developed under section 504,” and applied Section 504 case-law to interpret § 3604(f). Shapiro, 51 F.3d at 333–35; see Tsombanidis, 352 F.3d at 578 (citing Shapiro, 51 F.3d at 333–35). Therefore, the discussion in Tsombanidis regarding reasonable accommodations applies to Plaintiffs’ claims under § 3604(f) and Section 504.
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defined in a way that effectively denies otherwise qualified handicapped individuals the meaningful access to which they are entitled.” Choate, 469 U.S. at 301. “[T]o assure meaningful access, reasonable accommodations in the grantee’s program or benefit may have to be made,” id., but courts should be mindful that the statute prohibits “illegal discrimination against the disabled,” but not “the substance of the services provided to” them, Doe, 148 F.3d at 84.
“On the issue of reasonable accommodation, the plaintiff bears only the burden of identifying an accommodation, the costs of which, facially, do not clearly exceed its benefits.” Borkowski v. Valley Cent. School Dist., 63 F.3d 131, 139 (2d Cir. 1995) (discussing “reasonable accommodation” in the context of a Section 504 claim for employment discrimination); accord Henrietta D., 331 F.3d at 280 (applying Borkowski burdens to claim under Section 504 by disabled persons for reasonable accommodations in provision of cityadministered benefits programs). Indeed, “[i]t is enough for the plaintiff to suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Once the plaintiff has done this, she has made out a prima facie showing that a reasonable accommodation is available.” Borkowski, 63 F.3d at 138. The Second Circuit has held that the FHAA and Section 504
require that changes be made to such traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling. Plaintiffs must show that, but for the accommodation, they likely will be denied an equal opportunity to enjoy the housing of their choice. A defendant must incur reasonable costs and take modest, affirmative steps to accommodate the handicapped as long as the accommodations sought do not pose an undue hardship or a substantial burden. Tsombanidis, 352 F.3d at 579 (internal quotations omitted).
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After a plaintiff “has made out a prima facie showing that a reasonable accommodation is available, . . . the risk of nonpersuasion falls on the defendant.” Borkowski, 63 F.3d at 138. A defendant need not, “in attempting to meet [its] burden of persuasion on the reasonableness of the proposed accommodation and in making out an affirmative defense of undue hardship, . . . analyze the costs and benefits of proposed accommodations with mathematical precision. . . . [A] common-sense balancing of the costs and benefits in light of the factors listed in the regulations is all that is expected.” Id. at 140.
As this standard suggests, “[w]hether a requested accommodation is required . . . is highly fact-specific, requiring case-by-case determination. Ordinarily, the duty to make reasonable accommodations is framed by the nature of the particular handicap.” Bentley, 367 F. Supp. 2d at 344 (internal quotations omitted). This is because “‘[r]easonable is a relational term: it evaluates the desirability of a particular accommodation according to the consequences that the accommodation will produce. This requires an inquiry not only into the benefits of the accommodation but into its costs as well. . . . In short, an accommodation is reasonable only if its costs are not clearly disproportionate to the benefits that it will produce.” Borkowski, 63 F.3d at 138. IV. The Benefit Provided by the Section 8 Program
A. Principles The Rehabilitation Act prohibits the exclusion of disabled people from “the benefits of . . . any program or activity,” 29 U.S.C. § 794(a), states that “the term ‘program or activity’ means all of the operations of” HANH, id. § 794(b)(1)(B), and leaves the task of defining the relevant “benefit” to the courts, see Choate, 469 U.S. at 301. Thus, in order to consider
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Plaintiffs’ Section 504 claim, the Court must first define the “benefit that [HANH] offers”
through the Section 8 Program.
The critical issue in defining a “benefit” when considering a Section 504 claim is the
level of abstraction at which to answer the question. In Choate disabled Medicaid recipients
in Tennessee claimed that that state violated Section 504 when it reduced from 20 to 14 the
number of inpatient treatment days covered by its Medicaid program because disabled
Medicaid recipients needed longer inpatient care than non-disabled recipients, and therefore
the reduction had a disparate impact. 469 U.S. at 289–91. The Supreme Court rejected this
claim, holding that
The new limitation does not invoke criteria that have a particular exclusionary effect on the handicapped; the reduction, neutral on its face, does not distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having. . . .
To the extent respondents . . . suggest that their greater need for prolonged inpatient care means that, to provide meaningful access to Medicaid services, Tennessee must single out the handicapped for more than 14 days of coverage, the suggestion is simply unsound. At base, such a suggestion must rest on the notion that the benefit provided through state Medicaid programs is the amorphous objective of “adequate health care.” But Medicaid programs do not guarantee that each recipient will receive that level of health care precisely tailored to his or her particular needs. Instead, the benefit provided through Medicaid is a particular package of health care services, such as 14 days of inpatient coverage. That package of services has the general aim of assuring that individuals will receive necessary medical care, but the benefit provided remains the individual services offered—not “adequate health care.”
Id. at 302–03. The Supreme Court went on to explain that the Medicaid Act “makes . . .
clear” that the benefit Medicaid provides is “a particular package of health care services”
rather than “the amorphous objective of ‘adequate health care.’” See id. at 303. The Court
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further held that defining a benefit with specificity also accorded with the purpose of the Rehabilitation Act, since “Section 504 does not require the State to alter this definition of the benefit being offered simply to meet the reality that the handicapped have greater medical needs” and “does not . . . guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed.” Id. at 303–04.
Following the Supreme Court’s lead in Choate, the Second Circuit has declined to define benefits abstractly or broadly. Instead, a benefit should be defined as specifically as possible, keeping in mind that Section 504 prohibits discrimination but does not mandate the provision of new benefits. Specifically, the Second Circuit has warned against construing a “benefit” in a Section 504 case at an “incorrect level of generality.” See Rodriguez v. City of New York, 197 F.3d 611, 617 (2d Cir. 1999). In Rodriguez, mentally disabled Medicaid recipients charged the City of New York with discriminating on the basis of mental disability by “fail[ing] to include safety monitoring” as part of a constellation of “personal-care services” provided by the City pursuant to New York’s Medicaid plan. Id. at 613–14. They argued “that, because safety monitoring is ‘comparable’ to the personal care services already provided by New York” to physically disabled people, the City violated both the Medicaid law and Section 50416 by failing to provide the mentally disabled with safety monitoring, a service they need and that is “comparable” to a service the City does provide. Id. at 614–16.
16 The Rodriguez plaintiffs brought claims under both Section 504 and the ADA. Rodriguez, 197 F.3d at 613. The court held that “[b]ecause Section 504 . . . and the ADA impose identical requirements,” it would “consider these claims in tandem.” Id. at 618. For simplicity and relevance, this Court refers to the claims under Section 504 and the ADA in Rodriguez as simply a claim under Section 504.
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The court first rejected the argument that the non-provision of safety monitoring violated the Medicaid laws, holding that “[a] clear and legitimate distinction exists . . . between providing safety monitoring as an incidental benefit when the [personal-]care-giver is assisting with another task,” on the one hand, and “providing [safety monitoring] as an independent task, when the caregiver is present only to monitor the patient’s safety.” Id. at 616 (emphases added). The court then rejected the Section 504 claim. It rejected the plaintiffs’ argument that “the purpose of the personal care services is to enable recipients to reside in their homes,” and that they were denied meaningful access to that benefit because they need safety monitoring to remain in their homes, id. at 617, holding that that argument “fail[ed] to focus on the particular services provided by” the City and framed in too amorphous and broad a fashion the “benefit” at issue, id. at 618. The court concluded:
[Section 504] requires only that a particular service provided to some not be denied to disabled people. . . . [T]he services that New York provides to the mentally disabled are no different from those provided to the physically disabled. Neither group is provided with independently tasked safety monitoring. Hence, what appellees are challenging “is not illegal discrimination against the disabled, but the substance of the services provided.” Thus, New York cannot have unlawfully discriminated against appellees by denying a benefit that it provides to no one. Id. at 618 (quoting Doe, 148 F.3d at 83, 84). More generally, the Second Circuit has explained that “the central purpose of [Section 504] is to assure that disabled individuals receive ‘evenhanded treatment’ in relation to the able-bodied,” and has suggested that in light of its specific prohibition—it “mandate[s] only that the services provided . . . to non-handicapped individuals not be denied to a disabled person because he is handicapped”—the relevant inquiry in a Section 504 case is of the benefits provided to disabled people “as compared to the benefits given to non-[disabled]
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individuals.” See Doe, 148 F.3d at 83. As another circuit has recently framed it, Section 504 does not provide a right of action to bring “a challenge to the scope of a non-discriminatory program.” Am. Council of the Blind v. Paulson, 525 F.3d 1256, 1268 (D.C. Cir. 2008).
Following Choate, Doe, and Rodriguez, the Court will determine the “benefits” of the Section 8 Program primarily by reference to the laws and regulations that control HANH’s administration of the program: the United States Housing Act of 1937, as amended, 42 U.S.C. § 1437 et seq. (the “1937 Act”) and HUD’s implementing regulations. The Court is mindful that another court has construed the benefit provided by Section 8 in the context of a Rehabilitation Act challenge premised on the inability of “mobility disabled people . . . to locate and obtain accessible housing units.” That court held:
The benefits of the [Section 8] Program are a package of services that provide assistance to voucher holders in locating affordable housing. These benefits include: inspection of premises for compliance with quality standards, training for landlords, a service representative who may be contacted for questions, weekly landlord briefings to educate landlords interested in participating in [Section 8], a list of known available units, monthly housing fairs, and various other services. [Section 8] does not offer participants a place to live as a benefit. [Section 8] is not responsible for locating participant housing. Rather, the onus is on program participants to find their own rental units. Liberty Res., Inc. v. Phila. Hous. Auth., 528 F. Supp. 2d 553, 568, 568 (E.D. Pa. 2007). B. The Section 8 Program HUD administers the Section 8 Program under the authority of the 1937 Act. The first subsection of the Section 8 portion of the 1937 Act, 42 U.S.C. § 1437f, describes the purpose of the Section 8 Program. It provides: “For the purpose of aiding low-income families in obtaining a decent place to live and of promoting economically mixed housing,
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assistance payments may be made with respect to existing housing in accordance with the provisions of this section.” 42 U.S.C. § 1437f(a) (emphasis added). Under the Section 8 Program, in which Plaintiffs participated,17 HUD “may provide assistance to public housing agencies for tenant-based assistance using a payment standard established in accordance with [the statute]. The payment standard shall be used to determine the monthly assistance that may be paid for any family.” Id. § 1437f(o)(1)(A). There are two forms of assistance available under the voucher program: tenant-based and project-based assistance.
1. Tenant-Based Assistance Under the tenant-assistance portion of the voucher program, the PHA enters into “housing assistance payment contract[s]” with private landlords,18 and the Section 8 participant enters into a lease with the owner under that contract. Thus, in the statute’s terminology, the PHA–landlord document is a “contract,” and the tenant–landlord document is a “lease.” See generally id. § 1437f(o)(6), (7). The Act imposes certain requirements on PHA–landlord contracts. They must specify that except in certain circumstances, the tenant–landlord lease “shall be for a term of not less than 1 year,” id. § 1437f(o)(7)(A) (emphasis added),19 and that the tenant–owner
17 In 1998 Congress merged the then-existing Section 8 certificate and voucher programs, see generally Comer v. Cisneros, 37 F.3d 775, 782 (2d Cir. 1994) (describing these programs), into a single program, the Housing Choice Voucher Program, see Quality Housing and Work Responsibility Act of 1998, Pub. L. 105–276, Title V, 112 Stat. 2518–2670 (Oct. 21, 1998) (“QHWRA”).
18 The statute uses the term “owner,” which is synonymous with the term “landlord,” which term was used at trial. Consistent with the parties, the Court uses the term “landlord.”
19 A lease may be for a term of less than one year “if the [PHA] determines that such shorter term would improve housing opportunities for the tenant and if such shorter term is considered to be a prevailing local market practice.” Id. § 1437f(o)(7)(A).
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lease be one that is standard in the marketplace and “consistent with State and local law,” id. § 1437f(o)(7)(B). In addition, the contracts “may include any addenda required by the Secretary [of HUD] to set forth the provisions of” the HCV Program. Id. § 1437f(o)(7)(F). Moreover, once the PHA enters into a contract with an owner, it must annually “inspect the unit before any assistance payment is made to determine whether the dwelling unit meets” housing quality standards set either by the Secretary of HUD, or “by local housing codes or by [PHAs] that . . . (I) meet or exceed housing quality standards . . . and (II) do not severely restrict housing choice.” Id. § 1437f(o)(8)(B) (housing quality standards), (D) (inspections must be annual). HUD regulations further specify that the PHA must obtain HUD’s approval to “apply standards in local housing codes or other codes adopted by the PHA.” 24 C.F.R. § 382.401(a)(4)(ii). Finally, the statute implies that HUD may authorize grounds upon which a PHA “may elect not to enter into a housing assistance payments contract.”
As to the rent paid to a landlord, the 1937 Act requires that the rent paid pursuant to the Section 8 Program be reasonably comparable to “rents charged for comparable dwelling units in the private, unassisted local market.” 42 U.S.C. § 1437f(o)(10)(A). The PHA must assist the recipient, at her request, in negotiating the amount of rent for which the unit is leased:
A [PHA] . . . shall, at the request of a family receiving tenant-based assistance under this subsection, assist that family in negotiating a reasonable rent with a dwelling unit owner. A [PHA] . . . shall review the rent for a unit under consideration by the family (and all rent increases for units under lease by the family) to determine whether the rent (or rent increase) requested by the owner is reasonable. If a [PHA] . . . determines that the rent (or rent increase) for a dwelling unit is not reasonable, the [PHA] . . . shall not make housing assistance payments to the owner under this subsection with respect to that unit.
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Id. § 1437f(o)(10)(B). As these statutes suggest, using funds received from HUD, HANH provides eligible
families with vouchers to cover a portion of the cost of rent and utilities that such families incur by living in privately-owned housing. In the statutory language, HUD “provide[s] assistance to public housing agencies for tenant-based assistance using a payment standard.” Id. § 1437f(o)(1)(A). Or as HUD explains, “[i]n the HUD Housing Choice Voucher Program . . . HUD pays rental subsidies so eligible families can afford decent, safe and sanitary housing. Both programs are generally administered by State or local governmental entities called public housing agencies (PHAs).” 24 C.F.R. § 982.1(a)(1). See also Langlois v. Abington Hous. Auth., 207 F.3d 43, 45 (1st Cir. 2000) (the Section 8 Program “requires the PHA to pay the family’s landlord the difference between the gross rent or a ‘payment standard’ adopted by the PHA, and a lesser amount paid by the family”).
Each year, HUD establishes by publication in the Federal Register a “fair market rent[],” or “FMR,” for thousands of geographic areas across the country, 42 U.S.C. § 1437f(c)(1), and these FMRs provide the baseline for calculating the payment standard for the voucher program’s tenant-based assistance, which, unless the HUD Secretary otherwise provides, is to be between 90 and 110 percent of the FMR, id. § 1437f(o)(1)(B). The statutory scheme contemplates that the payment standard will be flexible. HUD may establish an “adjustment pool” of money from its budget allocation to use “to make adjusted payments to [PHAs] . . . to ensure continued affordability, if the Secretary determines that additional assistance for such purpose is necessary, based on documentation submitted by a [PHA].” 42 U.S.C. § 1437f(o)(1)(C). HUD may also authorize a payment standard that
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is more than 110 percent of the FMR—resulting in the so-called “exception rent.” Id. § 1437f(o)(1)(D). Once a payment standard has been determined for an area, a family that is deemed
eligible to participate in the Section 8 Program20 and whose application has been accepted by the PHA receives a voucher, during the term of which the family must find a unit to rent. Thereafter, the PHA provides the family financial assistance in the form of a “monthly assistance payment” calculated in one of two ways: (1) where the cost of rent plus tenantpaid utilities “does not exceed the applicable payment standard,” the payment is calculated as the difference between that sum and the family’s contribution;21 or (2) where the cost of rent plus tenant-paid utilities “exceeds the applicable payment standard,” the payment is calculated as the difference between the payment standard and the family’s contribution. A family’s contribution “may not exceed 40 percent of the monthly adjusted income of the family.” Id. § 1437f(o)(2)(A)–(C). HUD regulations explain that “[h]ousing assistance payments are paid to the owner.” 24 C.F.R. § 982.311(a). These payments are made under a housing assistance payment (“HAP”) contract.
2. Project-Based Assistance In the project-based assistance scheme, [a] [PHA] may use amounts provided under an annual contributions contract under this subsection to enter into a housing assistance payment contract with respect to an existing, newly constructed, or rehabilitated structure, that is attached to the structure, subject to the limitations and requirements of this paragraph.
20 Eligibility criteria are set forth at § 1437f(o)(4). 21 The family’s contribution is the greatest of “30 percent of the monthly adjusted income of the family,” or “10 percent of the monthly income of the family,” or the amount of welfare payments designated by the public welfare agency “to meet the housing costs of the family.” 42 U.S.C. § 1437f(o)(2)(A).
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42 U.S.C. § 1437f(o)(13)(A). A PHA may enter into a project-based assistance contract—which “may have a term
of up to 15 years,” id. § 1437f(o)(13)(F)—if “the contract is consistent with” both the PHA’s administrative plan and “the goal of deconcentrating poverty and expanding housing and economic opportunities.” Id. § 1437f(o)(13)(C). A PHA may apply up to “20 percent of the funding available [to it] for tenant-based assistance” to project-based assistance, id. § 1437f(o)(13)(B), and unless the contract is “for dwelling units that are” either “single family properties” or “specifically made available for households comprised of elderly families, disabled families, and families receiving supportive services,” a maximum of onequarter of the units in the structure receiving project-based assistance “may be assisted under a housing assistance payment contract for project-based assistance.” Id. § 1437f(o)(13)(D). A PHA–owner contract for project-based assistance “shall establish rents for each unit assisted in an amount that does not exceed 110 percent of the applicable fair market rental (or any exception payment standard approved by the Secretary pursuant to paragraph (1)(D)),” id. § 1437f(o)(13)(H), and reasonable rent adjustments are permitted, id. § 1437f(o)(13)(I). The PHA has discretion to “establish preferences or criteria for selection for a unit assisted under this paragraph that are consistent with” its administrative plan. Id. § 1437f(o)(13)(J).
3. Moving to Work In 1996 Congress created the Moving to Work (“MTW”) demonstration program, the purpose of which is to give [PHAs] and [HUD] the flexibility to design and test various approaches for providing and administering housing assistance that: reduce cost and achieve greater cost effectiveness in Federal expenditures; give
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incentives to families with children where the head of household is working, seeking work, or is preparing for work by participating in job training, educational programs, or programs that assist people to obtain employment and become economically self-sufficient; and increase housing choices for low-income families. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. 104–134, Title II, § 204, 110 Stat. 1321, 1321–281 to 282 (Apr. 26, 1996). The program is still in a demonstration phase, and has not been codified. See id. The PHAs selected by HUD to participate in the Moving to Work program (of which there may be up to 30) receive from HUD “training and technical assistance during the demonstration,” and HUD must “conduct detailed evaluations of up to 15 such agencies in an effort to identify replicable program models promoting the purpose of the demonstration.” Id. § 204(b). The benefit to a PHA participating in the Moving to Work program is that notwithstanding any provision of the United States Housing Act of 1937 except as provided in subsection (e), [the PHA] may combine operating assistance provided under section 9 of the United States Housing Act of 1937, modernization assistance provided under section 14 of such Act, and assistance provided under section 8 of such Act for the certificate and voucher programs, to provide housing assistance for low-income families, as defined in section 3(b)(2) of the United States Housing Act of 1937, and services to facilitate the transition to work on such terms and conditions as the [PHA] may propose and the Secretary may approve. Id. (emphases added). Thus, the idea of the MTW program is to grant PHAs additional flexibility in managing their funding and assets with the goals of both providing housing and facilitating participants’ transition to employment. Id. A PHA’s overall funding level “shall not be diminished by its participation” in the Moving to Work program. Id. at § 204(f). A PHA participating in the MTW program must administer its Section 8 Program in accordance with an agreement it executes with HUD.
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4. The Benefit of Section 8 Neither the 1937 Act nor implementing HUD regulations, nor the MTW legislation, state that as part of its administration of a Section 8 housing voucher program, a PHA must assist an eligible family in finding a unit; in fact they strongly suggest the contrary. The 1937 Act states only that “the term ‘tenant-based assistance’ means rental assistance . . . that provides for the eligible family to select suitable housing and to move to other suitable housing.” 42 U.S.C. § 1437f(f)(7) (emphasis added). HUD explains that “[w]ith tenant-based assistance, the assisted unit is selected by the family,” 24 C.F.R. § 982.1(b)(1) (emphasis added), and “[w]hen a family is selected [to participate in the program] or when a participant family wants to move to another unit, the PHA issues a voucher to the family. The family may search for a unit,” id. § 982.302(a) (emphasis added); see also id. § 982.1(b)(2) (“To receive tenant-based assistance, the family selects a suitable unit.”). When the family finds a suitable unit, it “must submit to the PHA a request for approval of the tenancy and a copy of the lease” pursuant to a PHA-set procedure. Id. § 982.302(c), (d); see also Liberty Res., 528 F. Supp. 2d at 568, 569 (holding that §§ 982.1(b)(1) and 982.302 demonstrate that “the onus is on program participants to find their own rental units” and that “[t]he regulations generally put the onus of locating an available unit in the marketplace wholly on the voucher holder”). Similarly, HANH’s Administrative Plans dated March 28, 2006 and May 27, 2008, which “establish[] local policies for administration of the program in accordance with HUD requirements” upon adoption by HANH’s Board of Commissioners, and under which HANH must administer its Section 8 voucher program, see 24 C.F.R. § 982.54(a)–(c), explain that when HANH selects a family from the waiting list, or when a family wants to move,
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“HANH issues a Housing Choice Voucher,” which “is the family’s authorization to search for housing” (March 2006 Admin. Plan, Jt. Ex. 2, at 5-13; May 2008 Admin. Plan, Jt. Ex. 16, at 56). The Plans state that the voucher’s initial term is 60 calendar days, during which a family must find a suitable unit and submit a request for tenancy approval. HANH states that it may extend the period if “[i]t is necessary as a reasonable accommodation for a person with disabilities.” (March 2006 Admin. Plan at 5-14; May 2008 Admin. Plan at 57.)
These sources make clear that the “individual services offered,” Choate, 469 U.S. at 303, constituting the “benefit” of HANH’s “program or activity,” includes the provision of a voucher to a participant to find a unit; monthly assistance payments to a landlord to cover some portion of the cost of renting a private dwelling; and, upon request, assistance in a family’s negotiation of a “reasonable rent.” But this benefit does not include help finding housing, the provision of housing, or a guarantee that a participant will find suitable housing. As the Liberty Resources court concluded, “[n]either the [1937 Act] nor the HUD regulation promise to provide housing to all eligible participants. Rather, they state that the purpose of [the Section 8 Program] is to aid families in locating and affording decent housing through the provision of rental subsidies. The [Section 8] Program facilitates the placement of low-income families in affordable housing by seeking the assistance of private sector landlords.” 528 F. Supp. 2d at 567. Congress’s statement of purpose bolsters this conclusion. In 1998 Congress amended the 1937 Act to explain that
It is the policy of the United States . . . that the Federal Government cannot through its direct action alone provide for the housing of every American citizen, or even a majority of its citizens, but it is the responsibility of the Government to promote and protect the independent and collective actions of private citizens to develop housing and strengthen their own neighborhoods.
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42 U.S.C. § 1437(a)(2), as amended by QHWRA, Pub. L. 105–276, sec. 505, 112 Stat. 2461, 2523; see also id. § 1437(a)(4). And as noted above, Congress has explained that the HCV Program’s purpose is to “aid[] low-income families in obtaining a decent place to live” by having PHAs make “assistance payments . . . with respect to existing housing.” Id. § 1437f(a).
C. HANH Policies Regarding Disabled Participants In a section entitled “Assistance to Voucher Holders,” HANH’s Administrative Plans state that Families who require additional assistance during their search may call HANH Office to request assistance. Voucher holders will be notified at their briefing session that HANH periodically updates the listing of available units and how the updated list may be obtained. HANH will assist families with negotiations with owners and provide other assistance related to the families’ search for housing. (March 2006 Admin. Plan at 5-16; May 2008 Admin. Plan at 59.) These Administrative Plans predate and postdate, and are not inconsistent with, a HUD investigative report of HANH, dated September 26, 2006, that explained, with reference to Section 504 and 24 C.F.R. § 8.28, that HANH “is obligated to aid persons with disabilities in locating accessible units in its Section 8 [P]rogram.” (HUD Sec. 504 Investigative Report # 1-06-R001-4, Jt. Ex. 3, at 9.) Similarly, HANH Executive Director Karen DuBois–Walton testified that while a participating family is using a housing choice voucher to search for an apartment, “[i]f a family requires assistance, [HANH] will offer assistance in identifying [a] unit,” and will also extend the voucher’s term “[i]f they’re having a hard time finding a unit.” (Trial Tr. Vol. II (8/18/09) at 348, 351 (emphasis added).)
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These services provided by HANH do not change the Court’s conclusions that the Section 8 Program’s benefit consists of the voucher, housing assistance payments, and, upon request, lease negotiation; and that the program’s benefit does not include search assistance, housing, or a guarantee of suitable housing. Indeed, as one court has explained them, “the regulations reflect an expectation by HUD that [Section 8] participants will select units that already meet individual needs and quality standards based on their existing state. . . . The regulations generally put the onus of locating an available unit in the marketplace wholly on the voucherholder.” Liberty Res., 528 F. Supp. 2d at 569. While HANH may help its Section 8 participants participate in the private housing market, the benefit—the very purpose—of the Section 8 Program is to provide recipients financial assistance necessary for them to participate in the private housing market. V. General Findings of Fact
HANH is a public housing authority created by the State of Connecticut and empowered by the City of New Haven to conduct its business within the jurisdiction of the New Haven–Meriden Metropolitan Statistical Area (“New Haven MSA”).22 HANH administers both the low-income public housing (“LIPH”) program and the Section 8 Program for the New Haven MSA. It now administers approximately 4,520 vouchers under the Section 8 Program (HANH Moving to Work Annual Plan for Fiscal Year 2008, Jt. Ex. 13,
22 See Conn. Gen. Stat. §§ 8-40, 8-41; see also March 2006 Admin. Plan, Jt. Ex. 2, at 1-2 (stating jurisdiction as “City of New Haven”); May 2008 Admin. Plan, Jt. Ex. 16, at 242 (stating jurisdiction as the New Haven MSA and listing towns in it); see also, e.g., HUD, Final Fair Market Rents for Fiscal Year 2010, 74 Fed. Reg. 50552, 50568 (Sept. 30, 2009) (listing this MSA and the towns in it, and assigning fair market rents to the area for Fiscal Year 2010).
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at 29 (Draft Rev. Jan. 25, 2008)), and in July 2006 it administered approximately 4,345 vouchers (HUD Investigation Report Review No. 01-06-R001-4, Jt. Ex. 3, at 9).
In 2001, HUD selected HANH to participate in the MTW program, and while Jimmy Miller was executive director, HANH, with the help of the mayor of New Haven and other officials, negotiated and executed a renewed MTW agreement with HUD to begin in the 2007–08 fiscal year. (Vol. I (8/17/09) at 161–65 (Miller).) As a MTW PHA, HANH was freed from the obligation to comply with many of the regulations covering non-MTW Section 8 programs, but it was required to submit an annual plan to HUD for approval. Under Miller’s direction, in 2008 HANH sought HUD’s approval to amend its plan to permit HANH to provide housing assistance payments of up to 150 percent of the HUDdetermined fair market rent without seeking approval from HUD, in part to permit it to provide higher payments to its disabled Section 8 participants as a reasonable accommodation without having to ask HUD for approval each time. (HANH Draft 2008 MTW Plan, Jt. Ex. 13, at 10, 74; HUD Letter to Jimmy Miller dated Jan. 28, 2008, Pls.’ Ex. 17 (approving HANH 2008 MTW Plan); see also, e.g., Tr. Vol. I at 163 (Miller); Tr. Vol. II at 383–88 (DuBois–Walton); Tr. Vol. III (8/19/09) at 656 (Barber); Tr. Vol. IV (8/20/09) at 715–16 (Miller); Vol. VI (8/24/09) at 1134 (Barber); Tr. Vol. VII (9/8/09) at 1257, 1272, 1374–76 (Heinrichs).) By way of explanation for why HANH did not earlier seek HUD’s approval for the higher pre-approved payment amount, William Heinrichs, HANH’s former Special Assistant to the Executive Director and Reasonable Accommodations Coordinator, testified that because the MTW program is in a demonstration stage, “being an MTW agency is akin to building an airplane while you fly it,” and HANH was one of the first agencies to consider asking for this specific form of pre-approval. (Tr. Vol. VII at 1387–88.)
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Miller, who had previously been a deputy director at the PHAs in Newark and New York City, became HANH’s executive director on December 5, 2005. He stayed in that position for over two and a half years, when on July 30, 2008 Karen DuBois–Walton replaced him as executive director. DuBois–Walton remains executive director today. (Tr. Vol. I at 42–43, 62–63 (Miller); Tr. Vol. II at 339–40 (DuBois–Walton).)
Maureen Novak began working for HANH in July 2001 as the Special Assistant to the Deputy Executive Director. On January 8, 2007, Miller named her Special Assistant to the Executive Director, in which position she worked until August 6, 2007, when she requested a leave of absence. Novak never returned to HANH. (Jt. Ex. 6.) Although Miller testified that at some point he recognized a “philosophical difference” between Novak and himself about “the scope of” HUD’s regulations under Section 504 and “the amount of services and nature of services” that the regulations obligated HANH to provide—including mobility counseling—and that he, unlike she, believed that HANH “should be doing that on a proactive nature” (Tr. Vol. I at 103–04 [sic]), no supervisor ever reprimanded Novak or otherwise unfavorably reviewed her work (see Jt. Ex. 6).
While Novak was working at HANH, the agency’s reasonable accommodation forms listed her as HANH’s Reasonable Accommodations Coordinator. (E.g., Defs.’ Ex. 300.) In February 2007 Miller hired William Heinrichs—who had previously served as Representative Rosa DeLauro’s congressional aide for housing, environment, homeland security, and veterans affairs—to serve as a Special Assistant to HANH’s Executive Director. When Novak left HANH in August 2007, Heinrichs also took on the position of Reasonable Accommodations Coordinator. He served in both positions until May 12, 2008, when he left HANH. (Tr. Vol. VI (8/24/09) at 1178–82.) Thereafter, Laura Woodie, who had been
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working at HANH in different capacities since February 2005, took over as Reasonable Accommodations Coordinator. (Jt. Ex. 29 at ¶ 6.)23
Before Miller became executive director, HANH had contracted with Housing Opportunities Unlimited (“HOU”) on June 9, 2004 to, inter alia, “[p]rovide individualized counseling and assistance to help referred families locate and lease up appropriate apartments in the private market,” including meeting with families to assess their needs, identifying available apartments, transporting families to see available apartments, assisting families to apply for the apartments, and coordinating with HANH so that HANH staff could complete inspections, pay security deposits, and “arrange moving services and transfers of utilities.” (Jt. Ex. 1, Contract No. AD-04-C-007, at 1–2.) The contract covered up to $100,000 worth of services to be completed by June 10, 2005, and permitted HANH, “at its option, [to] elect to renew th[e] contract for an additional consecutive 2-year period.”
23 Woodie began at HANH in February 2005 as a Quality Assurance Analyst. In October 2006 she became the Acting Service Center Supervisor, and then in February 2007 the Service Center Supervisor. In February 2008, Woodie became Acting LIPH Supervisor, a position she maintained until May 2008, when she became Acting Reasonable Accommodations Coordinator. Woodie was named the Reasonable Accommodations Coordinator in December 2008, a position she held until May 2009 when she requested a leave of absence. (See Jt. Ex. 29.)
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(Id. at 1, 4.)24 Miller testified that when he became executive director in December 2005 the
HANH–HOU contract had expired. (Tr. 8/17/09 at 43–46.)
On July 20 and 21, 2006, HUD began an investigation of HANH to determine
whether HANH’s programs complied with “the general regulatory provisions of Section 504,
program accessibility and employment policies,” and on September 26, 2006 reported to
HANH Board Chairman William DeMayo that HUD’s “preliminary finding [was] that
[HANH] is not in compliance with Section 504 regulations with respect to program
accessibility requirements.” HUD “did not find evidence that [] HANH is fulfilling [its]
obligations” under 24 C.F.R. § 8.28, a finding that HANH disputed.25 Nonetheless, a year
later, on June 27, 2007, HANH entered into a Voluntary Compliance Agreement (“VCA”)
24 On July 29, 2004 HANH and HOU amended the contract so that HANH could provide HOU with office space (id. at 6), and on June 17, 2005, HANH renewed the contract “for another consecutive two years or until required residents have been successfully relocated from the Brookside Community” (id. at 7). Brookside is a building operated by HANH as part of its LIPH portfolio. The original Brookside building had stairs and was not accessible, and therefore the people living there—whom HOU needed to relocate under the June 2005 contract addendum—were not disabled. (Tr. 8/20/09 at 818 (Woodie); see also HUD Investigation Report Review No. 01-06-R001-4, Jt. Ex. 3, at 7 (noting that Brookside was built in 1960 and that three of its 295 units (1 percent) were accessible in June 2006).) HANH has planned to re-build Brookside and include in it accessible units. Greg Brunson, one HOU employee who provided the relocation services, testified that Brookside’s tenants were relocated in “[e]arly 2000” (Tr. Vol. V (8/21/09) at 1037 (Brunson)), but that does not accord with the 2005 contract addendum date. In any event, at this point no one lives in Brookside, and construction on the new Brookside building was set to begin in October 2009 and be completed in February 2012. (Defs.’ Ex. 290; Tr. Vol. II at 410 (DuBois–Walton).)
25 HUD Investigation Report Review No. 01-06-R001-4, Jt. Ex. 3, at 1, 4, 9; HANH Reply to HUD Section 504 Investigative Report, Jt. Ex. 4, at 2–3 (“HANH believes that we are compliant with the requirements of 24 CFR 8.28. . . . We are concerned that statements in the report may be understood as a representation that HUD has determined that HANH is not compliant with 24 CFR 8.28.”).
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with HUD, under which HANH “voluntarily” agreed to settle its differences with HUD regarding HUD’s view of HANH’s compliance with Section 504 and 24 C.F.R. § 8.28 without admitting “any violation of Section 504 . . . or any other Statute, Regulation or Executive Order.” (VCA, Jt. Ex. 5, at 2.) The VCA primarily addressed HANH’s obligations to construct or modify its own LIPH buildings to make them accessible, but also included some provisions regarding the Section 8 Program. HANH agreed to “compile a list of units that are accessible to persons with disabilities and otherwise eligible for participation in its housing choice voucher program so that persons with disabilities may participate in the program,” including identification of what features in the unit are accessible—and to submit that list to HUD. (Id. at 7, 8.) HANH also agreed to improve its recordkeeping of its participants’ requests for reasonable accommodations by “record[ing] each reasonable accommodation request, the date received, the action taken, and the date the action was taken,” and to train its staff on how to comply with Section 504. (Id. at 8, 10.) Finally, the VCA stated that HANH’s noncompliance “may serve as grounds for [HUD] imposing debarment” under 24 C.F.R. part 24 and 2 C.F.R. part 2424 (id. at 12), following the administrative-enforcement scheme described above in the discussion of a private right of action to enforce 24 C.F.R. § 8.28(a).
Privately-owned wheelchair-accessible apartments in New Haven are very scarce,26 and disabled Section 8 Program participants have particular difficulty finding and leasing accessible apartments because private landlords exhibit both bias against the disabled (see, e.g., Tr. of 5/7/08 Prelim. Inj. Hrg. at 35 (Taylor)) as well as “bias about people with Section
26 Tr. Vol. V at 1102–03 (Salovitz); see also Tr. Vol. III at 488 (Gaither) (agreeing that “four-bedroom accessible units were very hard to come by in New Haven”).
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8” (Tr. Vol. I at 133–34 (Runlet)). In August 2007 and under Miller’s direction, HANH published a Request for Proposals (“RFP”) to provide mobility counseling, including search assistance, for all of its Section 8 participants, including its disabled participants. (RFP, Jt. Ex. 9, at 5, 20–24.) Only one entity, Home, Inc., submitted a proposal, but negotiations between HANH and Home, Inc., broke down because Miller “wanted a performance-based contract that would have specific deliverables,” while Home, Inc. wanted to use almost 65 percent of the $250,000 in funds to pay for its salaries. (Tr. Vol. I at 59–61 (Miller).) Negotiations ended in early 2008, after which Miller re-published the RFP. HANH has not contracted with an outside entity to provide mobility counseling under a contract reached pursuant to this RFP. (Id. at 60–61.)
On April 25, 2007 Rhonda Gaither, a Section 8 participant whose 14-year-old son has cerebral palsy and uses a wheelchair, sued HANH to obtain assistance relocating her family to a wheelchair-accessible four-bedroom unit. Just over three months later, on August 3, 2007 and with the approval of HANH’s Board, Miller extended the expired HANH–HOU contract—under which $57,000 in services had not yet been rendered by HOU—so that an HOU employee could help Gaither find and move into an accessible unit.27
27 On August 7, 2007, Miller wrote to HUD’s Hartford field office to explain that he was “declaring an emergency so that I can engage the services of [HOU] to provide mobility counseling to the Gaither family,” that he would do so by extending the expired HANH–HOU contract for three months, and that under the extension “HOU will provide these services for the Gaither family and other families having similar needs for accessible units.” (Jt. Ex. 7.) To extend the contract Miller needed the approval of HANH’s Board of Commissioners, to whom he submitted a recommendation and draft resolution. On August 28, 2007 the Board of Commissioners met and discussed the language of the resolution. (See Minutes of the Meeting, Jt. Ex. 10, at 20.) Commissioner Robert Solomon suggested that the proposal “was totally unintelligible” and recommended clarifying the language by making “a grammatical change.” (Tr. Vol. III at 612–13 (Solomon); see also Jt. Ex. 10 at 21.) On
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That HOU employee, Greg Brunson, located at least one accessible unit (Tr. Vol. III
at 477–78 (Gaither); see also id. at 488–89 (noting that absent her direction, Brunson was
finding apartments in areas to which Gaither had no interest in moving)), but HANH did
not permit Gaither to rent the apartment because it was above the payment standard HANH
was authorized to provide to Gaither (Tr. Vol. V (8/21/09) at 1041–41 (Brunson)).
With assistance Gaither also located a local developer, Joseph O’Sullivan, who
expressed a willingness to purchase a building and retrofit it to make the units wheelchair-
accessible, and to lease one of these units to the Gaither family. He and HANH estimated
that once the Gaither family’s four-bedroom unit was constructed, its monthly rent would
be $1,994, and the monthly cost of utilities would be an additional $328 to $394. (Tr. Vol.
August 28, 2007, the Board approved and Miller signed a resolution that permitted him to extend the contract expend “funds to assist the [Gaither] family . . . and . . . to provide such assistance to other families in the Section 8 Program who . . . have the need for accessible rental units.” (Jt. Ex. 8 at 2.) Because the resolution passed pursuant to his emergency declaration, Miller felt uncomfortable extending services under the extension to more than two families:
[T]he broad issue was hopefully being addressed by request for proposal, which is the appropriate way to handle the procurement. I would not have done this for 10, 15, 20, 30 families because in my opinion that would have been violation of the procurement requirements. . . . As a matter of scope, and one can disagree, but the issue was we had those two families that I knew of that needed immediate assistance. We thought we were going to cure the other issue with the RFP that was already there and have a broad RFP to cover everyone. Again, this was me saying this is an emergency. If I’m saying it’s an emergency, then I’m saying it’s of a limited scope and of limited duration; otherwise, it negates the issue of being emergency. So it’s a matter of scope, it’s not a matter of me making up it. . . . There is no magic about the three or four or five, it’s just that I am rather conservative when it comes to procurement, and that’s all it is.
(Tr. Vol. I at 115–16.)
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III at 492–94, 518 (Gaither); id. at 639–40 (Barber); Tr. Vol. VI at 1155–56, 1165–72 (Barber); Tr. Vol. VII at 1265–66 (Heinrichs).) Because the total monthly cost—between $2,322 to $2,388—exceeded by 59 to 64 percent the FMR approved by HUD for that fiscal year ($1,238), and also exceeded the maximum payment HANH was authorized to make to a Section 8 participant without HUD approval, HANH sought approval from HUD’s field offices in Hartford and Boston to pay for this housing for Gaither. The HUD field office in Boston denied the request, explaining that Section 8 payments may only be made to existing units, and that this request sought too high an increase over the fair market rent. (See generally Jt. Ex. 7.)
Ultimately, Gaither herself found an accessible unit in Hamden, for which HANH would execute a HAP contract. Gaither executed the lease on June 20, 2008. (See Pls.’ Ex. 6 at 66–76; Tr. Vol. III at 482 (Gaither agreeing that she found the apartment by herself).) HANH had agreed to pay Brunson only if he found a unit into which Gaither actually moved; because Gaither did not move into a unit Brunson had located, Brunson was never paid for his work. (Tr. Vol. V at 1039–40 (Brunson).) VI. Discussion
A. Decertification of the Class It is the Second Circuit’s “longstanding view that the district court is often in the best position to assess the propriety of the class and has the ability . . . to alter or modify the class, create subclasses, and decertify the class whenever warranted,” In re Sumitomo Copper Litig., 262 F.3d 134, 139 (2d Cir. 2001), so long as it is “before final judgment,” see Fed. R. Civ. P. 23(c)(1)(C). Thus, “[i]f factual or legal underpinnings of the plaintiffs’ successful class certification motion are undermined once they are tested [on the merits], a modification of
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the order, or perhaps decertification, might then be appropriate.” In re Visa Check/MasterMoney Antitrust Litig., 192 F.R.D. 68, 89 (E.D.N.Y. 2000) (“Visa Check”), aff’d, 280 F.3d 124, 141 (2d Cir. 2001) (noting the existence of “a number of management tools available to a district court to address any individualized . . . issues that might arise in a class action, including” decertification), abrogated on other grounds, In re IPO, 471 F.3d at 39–40 (regarding scope of evidentiary inquiry district court must make when certifying class under Rule 23). Indeed, “courts are ‘required to reassess their class rulings as the case develops,’” and “‘[t]he district judge must define, redefine, subclass, and decertify as appropriate in response to the progression of the case from assertion to facts.’” Boucher v. Syracuse Univ., 164 F.3d 113, 118 (2d Cir. 1999) (quoting Barnes v. The Am. Tobacco Co., 161 F.3d 127, 140 (3d Cir. 1998) and quoting, in parenthetical, Richardson v. Byrd, 709 F.2d 1016, 1019 (5th Cir. 1983)).
The evidence at trial does not support the continued viability of a certified class. In particular, the Court based its conclusion that there was sufficient commonality and typicality on Plaintiffs’ allegation “that [HANH’s] policy, pattern and/or practice is triggered by their status as Disabled Section 8 Households, regardless of their particular disabilities, such that Defendants allegedly act on grounds generally applicable to all named plaintiffs and putative class members.” Taylor, 257 F.R.D. at 32 (alteration in original). The evidence at trial does not support a conclusion that HANH took any discriminatory action or a programmatic approach to Disabled Section 8 Households because of their disability. Therefore, the class cannot remain certified. In addition, judgment must enter for Defendants on any part of Count Three—in which Plaintiffs claimed the existence of such
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a policy—that survived the Court’s conclusion that Plaintiffs do not have a private right of action to enforce 24 C.F.R. § 8.28(a).
1. Findings of Fact The evidence showed that HANH’s Section 8 Program includes participants with a number of different disabilities in a number of different circumstances, who required myriad different accommodations. The evidence also does not support any conclusion that Defendants acted in a programmatic fashion. In some cases, such as that of the Taylor family, the head of the household, who must accept an apartment, submit to HANH a request for tenancy approval, and sign a lease, is mobility impaired, and therefore to reasonably accommodate the household HANH may be required to transport the head of household as part of its mobility counseling. In other circumstances, such as those of the Gaither family, the head of household is not mobilitydisabled, but another member of the household is. The services that an able-bodied head of household requires to find an accessible unit differs from the services that a disabled head of household needs. Cf. 24 C.F.R. § 8.28(a)(3) (applying not only when the voucher-holder is disabled, but also where “a family . . . includes an individual with [disabilities]”). Indeed, the evidence showed that while HANH contracted with HOU to provide Rhonda Gaither assistance in searching for accessible units, Gaither—who is able-bodied and whose son is confined to a wheelchair—was physically able to travel around to search for accessible units on her own, and in fact she herself found the unit in which she now lives. In addition, some HANH Section 8 voucher-holders seek to move—and thus may require mobility counseling—while others do not. For example, Taylor sought HANH’s services to help her family move to an accessible unit (see Tr. of 5/7/08 Prelim. Inj. Hrg.
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[Doc. # 43] at 36), but voucher-holder Alberto Oko requested, as a reasonable accommodation, a utility allowance increase to account for rising electricity costs associated with his powered wheelchair (see Pls.’ Ex. 41 at No. 71 at 2). In at least one other case, the voucher-holder, Patricia Borelli, did not want to move out of her non-accessible home, but HANH demanded that she move anyway because she required one bedroom but had a voucher entitling her to three bedrooms. (Pls.’ Ex. 40 at P.B. at 1–9; Tr. Vol. IV at 952–55 (Woodie).) And Salovitz reflects both circumstances. In April 2008, he requested a reasonable accommodation to increase his utility allowance in the apartment in which he then resided. (Pls.’ Ex. 39 at 15.) This was not a request for which HANH needed to provide Salovitz any mobility counseling. (See id. at 20.) In May 2009, by contrast, he wanted to move to another accessible unit, and in this circumstance sought HANH’s assistance with searching for units with accessibility features. (Id. at 21.)28
Moreover, different Disabled Section 8 Households had different needs, and HANH did not act programmatically in responding to different needs or requests of different Disabled Section 8 Households.
Many disabled voucher-holders sought, as a reasonable accommodation, an allowance in their vouchers for an extra bedroom to accommodate a live-in aide. (See, e.g., Pls.’ Ex. 40 at 25 (Borelli’s request for a live-in aide); Tr. Vol. V at 981 (Woodie) (stating that DuBois–Walton approved Borelli’s request); see also Tr. Vol. VII at 1404–06 (Heinrichs) (estimating that one-third of all reasonable accommodation requests were for an extra bedroom for a live-in aide, and they were routinely approved); March 2006 Admin. Plan at 15-4 to 5 (“HANH will approve a live-in aide if needed as a reasonable accommodation so
28 The facts pertaining to Salovitz’s claim are discussed in greater detail infra. 55

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that the program is readily accessible to and usable by persons with disabilities.”); May 2008 Admin. Plan at 180 (same); id. at 51–53, 154; Spreadsheet of Reasonable Accommodation Requests as of Feb. 20, 2008, Pls.’ Ex. 41f (cataloging bases of requests).)
Salovitz also reflects this circumstance, since in early 2006 he requested a voucher that permitted him a three-bedroom apartment that would provide sufficient space for a live-in aide, his equipment, and himself. (See Pls.’ Ex. 39 at 2.) The evidence shows that these requests were generally granted after HANH received verification from the participant’s physician of the participant’s medical need for a live-in aide. This, for example, is how HANH handled Patricia Borelli’s and Karl Hunter’s requests for live-in aides. (Pls.’ Ex. 40 (Borelli); Tr. Vol. IV at 940 (Woodie) (describing her verification of Hunter’s medical need for a live-in aide).) And many disabled voucher-holders requested, as reasonable accommodations, that HANH extend the period of validity of their shopping vouchers so that they would have more time to find new apartments. The evidence showed that throughout the liability period, HANH routinely granted these requests for up to six months. (Tr. Vol. VIII (9/8/09) at 156 (Plaintiffs’ counsel stating that “I have never contested HANH never provided extensions”); see also Tr. Vol. I at 257 (Miller); Tr. Vol. VI at 1156–57 (Barber); Tr. Vol. VIII at 19–20 (Santiago).)
The evidence also reflects no programmatic decision by HANH not to request exception rents as a reasonable accommodation for Disabled Section 8 Households, even before January 2008, when HANH obtained HUD’s approval under the MTW program to make payments of up to 150 percent of FMR without seeking HUD’s approval each time. In June 2007, when Andre Knox filed a reasonable accommodation request for a barrier-free unit that was wheelchair accessible, HANH had authority to authorize payments of only up
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to 110 percent of FMR; to go above this amount HANH required approval from HUD. After obtaining verification of Knox’s need for accessible housing, Novak, on HANH’s behalf, requested from HUD’s Boston office permission to exceed the 110 percent threshold. (See Defs.’ Ex. 220 at 2.) And the reply from HUD’s Boston office to HANH’s request for an exception rent to pay for O’Sullivan’s proposed construction stated that the field office could only grant an exception up to 120 percent of the FMR, after which HANH would need to seek approval from the central office in Washington, DC. (See Jt. Ex. 7 (citing 24 C.F.R. § 982.503(c)(2)(ii)).)
Finally, the evidence shows that HANH did not, on a programmatic or policy-wide basis, deny mobility counseling to those who requested it, even during the claimed liability period of January 2006 through April 2008. Although Miller testified that he “d[id] not believe” that during the liability period HANH’s Section 8 specialists performed a “mobility counseling function for disabled individuals who asked for help moving” within the meaning of the RFP (Tr. Vol. I at 52–53), during this period HANH received and Miller approved a June 2006 request from Lona Mitchell, who has arthritis, for “mobility counseling to assist [Mitchell’s] family in finding an appropriate unit” on the first floor of a building or in a building with an elevator. (See Defs.’ Ex. 227.) In late 2007 Louis Eugene Morrison requested a unit on the first floor of a building without stairs, as well as help filling out necessary forms. Miller approved what HANH construed as Morrison’s request for mobility counseling services to help him locate a first-floor apartment as well as assistance in completing the relevant forms. (See Defs.’ Ex. 228.) Plaintiffs have proffered no evidence that HANH approved these requests but failed to provide the services promised.
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In addition, each of the two subclasses are unsustainable. Because Plaintiffs do not have a private right of action to enforce 24 C.F.R. § 8.28(a)(3), the first subclass no longer has legal relevance, since the Court certified that subclass on the assumption—which, as the Court has now concluded, supra, was incorrect—that its members had privately enforceable legal entitlement to an AAUL under § 8.28(a)(3). Assuming HANH did not provide an appropriate AAUL, that failure is not actionable by these plaintiffs.
Instead, as explained above, the regulation suggests what kind of accommodation would be reasonable for HANH to make for Disabled Section 8 Households. But neither the FHAA nor Section 504 itself specify that PHAs must provide AAULs to these households. Therefore, Plaintiffs’ action under Section 504 cannot proceed on the ground that they were injured by their inability to obtain the list. Instead, what the regulation reflects is that to make the Section 8 Program accessible to Disabled Section 8 Households, HANH must, when issuing vouchers to a family it has newly accepted into the Section 8 Program or to a family that wishes to move,29 give those households any information about “available accessible units known to [HANH].” 24 C.F.R. § 8.28(a)(3) (emphasis added).30 If subclass
29 Under HUD regulations, a PHA issues a voucher—the act that triggers its obligation under 24 C.F.R. § 8.28(a)(3) to provide “a current listing of available accessible units known to the PHA”—only “[w]hen a family is selected” by the PHA to participate in the Section 8 Program, or “when a participant family wants to move to another unit.” 24 C.F.R. § 982.302(a).
30 The other legal authorities cited in the definition of this subclass are not to the contrary. The cited regulation simply repeats the broad prohibition embodied in Section 504 and the Fair Housing Act. See 24 C.F.R. 100.204(a) (“It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common use areas”). The statute, 42 U.S.C. § 3604(f), speaks broadly of discrimination “in the sale or rental” or “the terms,
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(a) retains any viability, it must be based not on HANH’s failure to provide an up-to-date listing of all accessible available privately-owned units in New Haven, but rather on HANH’s failure to share with its Section 8 Disabled Households, when issuing them vouchers, information in HANH’s possession about available accessible units.
Plaintiffs, however, did not adduce any evidence at trial that HANH had any information about available accessible units that it failed to share with Disabled Section 8 Households. To the contrary, much of the evidence focused on HANH’s attempts to gather the very information necessary to compile an AAUL. Heinrichs designed a landlord survey and sent it out to approximately 1500 landlords in New Haven, but he left HANH just as the results were coming back in the Spring of 2008, so Tanya DeLoatch, a Program Clerk with HANH, completed the project in September 2008. (Tr. Vol. VII at 1261–63 (Heinrichs); Tr. Vol. II at 306, 316–17 (DeLoatch); Defs.’ Ex. 266 (blank survey form used by Heinrichs and DeLoatch).) Woodie testified that she, too, sought information about accessible units from landlords in order to compile a list of available accessible units at the same time that DeLoatch was compiling her list. (Tr. Vol. IV at 849–50.) Moreover, Woodie testified that she put her name down on waiting lists for units in buildings that were accessible, and that when landlords called her for units in those buildings, she would place a disabled family in the accessible unit. (Tr. Vol. IV at 887.) This evidence shows that to the extent HANH had information about accessible units, it obtained that information for the very purpose of
conditions, or privileges of sale or rental of a dwelling” on the basis of disability, including “a refusal to make reasonable accommodations” when “necessary to afford such person equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(1), (2), (3)(B). These authorities are therefore no more specific than Section 504 itself. Compare ibid., with 29 U.S.C. § 794(a).
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sharing it with, and benefitting, its Disabled Section 8 Households. Therefore, subclass (a) cannot stand.
The second subclass cannot survive in its breadth. “To prevail on a reasonable accommodation claim, plaintiffs must first provide the governmental entity an opportunity to accommodate them through the entity’s established procedures used to adjust the neutral policy in question[, because] [a] governmental entity must know what a plaintiff seeks prior to incurring liability for failing to affirmatively grant a reasonable accommodation.” Tsombanidis, 352 F.3d at 578–79. As certified, the second subclass includes all Disabled Section 8 Households “that did not receive Mobility Counseling services, or offer thereof.” Taylor, 257 F.R.D. at 33 (stating subclasses certified). But Tsombanidis teaches that a plaintiff does not have an actionable reasonable accommodation claim until she has requested, but failed to obtain, a specific accommodation. Therefore, subclass (b) cannot stand as-is. Plaintiffs have not shown any basis on which an entity may be liable for denying a specific reasonable accommodation to individuals who have not requested that specific accommodation because the entity has not offered that specific accommodation to its beneficiaries.
In addition, these fundamental problems with commonality and typicality also point to a third problem with the certified class: numerosity. Because at the class certification stage Plaintiffs argued that Defendants’ allegedly unlawful conduct applied programmatically to all Disabled Section 8 Households, the relevant number in determining numerosity was the total number of Disabled Section 8 Households who receive Section 8 vouchers from HANH. Relying on Defendants’ own statistics, the Court concluded that HANH served approximately 691 Disabled Section 8 Households. This number certainly reflected
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sufficient numerosity to satisfy Federal Rule of Civil Procedure 23, since “[i]n the Second Circuit ‘numerosity is presumed at a level of 40 members.’” Taylor, 257 F.R.D. at 29 (quoting Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995)).
But the discussion above shows that this calculation was based on an inaccurate premise, that is, that the same conduct by Defendants applied to all Disabled Section 8 Households. The facts in evidence simply do not support this contention. Instead, Plaintiffs have not shown the existence of any Disabled Section 8 Household to which HANH did not provide information known to it about available accessible units. It is also clear after presentation of the trial evidence that the relevant numerosity inquiry for subclass (b) is the number of Disabled Section 8 Households that requested, but did not receive, mobility counseling, and Plaintiffs have not adduced any evidence as to what this number is. To the contrary, the evidence showed that only a small number of disabled voucher-holders asked for mobility counseling. On cross-examination Miller testified that at the time he declared an emergency in order to extend HANH’s contract with HOU to provide Rhonda Gaither with mobility counseling, he knew of five instances in which Disabled Section 8 Households requested but had not received mobility counseling. (Tr. Vol. I at 113–18 (Miller).) Similarly, Heinrichs testified that during his tenure as Reasonable Accommodations Coordinator, which lasted from August 2007 through May 2008, he encountered only “three or four” cases of reasonable accommodation requests, all of which were approved. (Tr. Vol. VII at 1405–06 (Heinrichs).)
2. Conclusions of Law In this case, the “factual [and] legal underpinnings of the plaintiffs’ successful class certification motion [were] undermined once they [were] tested,” Visa Check, 192 F.R.D. at
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89, and decertification is now “appropriate,” id.; see also In re Sumitomo Copper Litig., 262
F.3d at 139, because it is clear that the certified class does not actually have three of “four
familiar features,” McLaughlin v. Am. Tobacco Co., 522 F.3d 215, 222 (2d Cir. 2008), that a
class must have to be certified: it does not meet the requirements of numerosity,
commonality, or typicality, see Fed. R. Civ. P. 23(a). Therefore, the March 10, 2009 Class
Certification Order is now vacated.31
31 On August 19, 2009 the Court discussed with the parties Plaintiffs’ Motion for Sanctions [Doc. # 193] for Defendants’ failure to timely provide in discovery e-mails to and from Maureen Novak between May and September 2007. In their motion Plaintiffs argued that the failure to timely produce the evidence warranted sanctions because it was done with “a culpable state of mind.” See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). It is Plaintiffs’ burden to establish the propriety of an adverse inference. Id.
Plaintiffs argued that “Mr. Miller would like to shift blame on to Ms. Novak for much of what happened” (Tr. Vol. II at 292) and sought, as an adverse inference, that Defendants “be deemed to have intended to discriminate during the period covered by these emails” (Pls.’ Mot. at 2). The Court determined to take the motion under advisement until after “the end of all of the evidence because the materiality of this may evaporate or not.” (Tr. Vol. II at 293.)
The Court has now concluded that the is evidence shows that HANH did not, in fact, have a policy or practice of denying disabled participants’ requests for reasonable accommodation on the basis of their disability. Moreover, to the extent Novak, the Reasonable Accommodations Coordinator until August 2007, believed that HANH did not have the obligation to provide mobility counseling as a reasonable accommodation, she was overridden by her direct supervisor, Miller, who believed HANH did have such an obligation. (Tr. Vol. I at 103 (Miller).) In addition, Plaintiffs’ counsel received a computer disk containing these e-mails in the week before trial and the Court permitted counsel to examine the emails after trial “to do some sort of random analysis of what you got” in that production in light of the Court’s inability “to come to a conclusion as to the disposition [of the motion] without further knowledge” (Tr. Vol. II at 279, 293–94), but Plaintiffs have not shown that the e-mails were material.
Therefore, the Court concludes that the materiality of the missing e-mails has “evaporate[d],” that Plaintiffs have not met their burden, and thus that no sanctions are appropriate. For these reasons, Plaintiffs’ Motion for Sanctions will be denied.
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B. Claim of Rebecca Taylor 1. Findings of Fact
Plaintiff Rebecca Taylor passed away on March 23, 2009, during the pendency of this litigation, and she is represented in this action by her cousin, who lives in Florida. (Pls.’ Suggestion of Death [Doc. # 120]; Pls.’ Am. Mot. to Substitute Rep. [Doc. # 197]; Order dated Aug. 26, 2009 [Doc. # 208] (granting amended motion to substitute).) On May 7, 2008, Taylor testified during a preliminary injunction hearing in this case that she had spina bifida, that she was confined to a wheelchair, and that she “ha[d] a hard time getting around.” (Tr. of 5/7/08 Prelim. Inj. Hrg. [Doc. # 43] at 30–31.) Taylor lived with her 25year-old son and 15-year-old daughter (id. at 30), and there is no evidence that either her son or daughter are mobility-impaired.32
At that time, Taylor lived in an apartment at 205 Dover Street,33 a building that was not wheelchair-accessible because there were three steps out front. To get out of the house, she would “usually sit on the steps and pull [her] wheelchair down” after her. (Id. at 30, 50.) In early 2008 Bank of America initiated a foreclosure action against her landlord (3d Am. Compl. at ¶ 16; Defs.’ Am. Answer [Doc. # 168] at ¶ 16), a fact of which Taylor became aware when she saw mail intended for her landlord but addressed to her (Tr. of 5/7/08 Prelim. Inj. Hrg. at 38). Taylor had had a previous experience having her home foreclosed
32 According to Taylor, her son has attention-deficit disorder. (Tr. of Prelim. Inj. Hrg. at 37.)
33 Taylor testified that for the most recent year she had lived on the first floor, and for the four years before that she lived on the second floor of a neighboring building, 207 Dover Street. (Tr. of Prelim. Inj. Hrg. at 50.)
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upon—in 2003 she was left homeless after a bank had foreclosed on her previous
landlord—and wanted to avoid a similar experience. (Id. at 38–40.)
Taylor testified that during her recertification interview with her Section 8 Specialist,
Denise Senior, she personally asked Senior for help searching for an accessible apartment,
in response to which Senior said that it was Taylor’s responsibility to find a new unit. (Id.
at 41, 42.) According to Taylor, Senior did not discuss Taylor’s right to request a reasonable
accommodation (id. at 43–47), but Taylor acknowledged receiving notice of her right to seek
a reasonable accommodation on July 7, 2006 and May 4, 2007 (Jt. Ex. 32; Defs.’ Ex. 208).
It is unclear when Taylor first asked Senior for assistance. Taylor testified that the
meeting took place earlier in 2008. However, HANH’s file for Taylor, which contains
documents dated as early as July 2006 and as late as July 2008,34 contains no notes of any
34 On September 30, 2009, Plaintiffs moved for an adverse inference against Miller and DuBois–Walton for what they characterized as Defendants’ “fail[ure] to preserve unquestionably relevant documents,” that is, HANH’s files for Taylor covering the time span 2006 through April 22, 2008, which files Plaintiffs sought by subpoena dated September 3, 2009. (Pls.’ Mot. Adverse Inference [Doc. # 227] at 1, 2.) Plaintiffs sought as sanctions an adverse inference that Miller and DuBois–Walton intended to discriminate against disabled Section 8 participants. (Id. at 2.) One week later, on October 7, 2009, Defendants produced HANH’s file for Taylor as well as files of three other Section 8 participants. An exhibit to Plaintiffs’ motion suggests that Defendants had produced this file to Plaintiffs before Plaintiffs moved for an adverse inference. (See id. at Ex. B (letter from Defendants’ counsel that is identical, except for date, to the letter accompanying Defendants’ production to the Court).) In all, these files total over 1,000 pages. (See Jt. Ex. 32 (Taylor); Jt. Ex. 33 (Ida Wilson); Pls.’ Ex. 58 (Dorothy Stokes–Hall); Pls.’ Ex. 59 (Rhonda Gaither).)
As described in the text, HANH’s file for Taylor covers the time-span addressed by Plaintiffs’ motion, including the time-span during which Taylor testified that she made a request for mobility counseling. (See generally Jt. Ex. 32.) The Court has examined this file—which totals approximately 500 pages—and has found no record of any request by Taylor for mobility counseling. In light of the Court’s review of Defendants’ October 7, 2009 production of Taylor’s file, Plaintiffs’ motion for an adverse inference is moot, and will be denied as such.
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meeting between Senior and Taylor in early 2008 (see generally Jt. Ex. 3235), Taylor testified
that she never saw Senior in person except at the recertification meetings (Tr. of 5/7/08
Prelim. Inj. Hrg. at 36–37), and Senior was on a medical leave of absence from HANH
between March and September 2008 (Tr. Vol. VIII at 132). HANH’s file for Taylor also
contains no indication that she requested mobility counseling or any other reasonable
accommodation from Senior, the spreadsheet in which Heinrichs tracked reasonable
accommodation requests through February 20, 2008 contains no entry for any request for
mobility counseling or other reasonable accommodation by Taylor (see Pls.’ Ex. 41f), and
Heinrichs testified that he did not receive any such request from Taylor (Tr. Vol. VII at
1275–76) even though, according to Senior, any request for a reasonable accommodation
would be routed to the Reasonable Accommodations Coordinator (Tr. Vol. VIII at 126, 130).
Pursuant to Federal Rule of Civil Procedure 11(c), Defendants seek sanctions against Plaintiffs for their having filed the Motion for an Adverse Inference. (Defs.’ Mot. Sanctions [Doc. # 232].) Defendants argue that Plaintiffs’ assertion that Joint Ex. 32 “did not state information as to whether or not Ms. Taylor had been recertified in May of 2007 or February of 2008” is incorrect, because “the truth of the matter is that Joint Exhibit 32 does establish that Ms. Taylor had her recertification done on May 4, 2007 at HANH.” (Id. at 1–2.) As the Court’s discussion reflects, Joint Exhibit 32 does not conclusively establish anything regarding when during the calendar year 2007 Taylor was recertified, and does not conclusively establish that the recertification was done on May 4, 2007. Although Taylor did sign a number of forms on May 4, 2007 related to her recertification, her file also shows that HANH had, the previous year, sent her a number of forms to complete in anticipation of her recertification, and it also indicates that Senior performed Taylor’s recertification on August 1, 2007. Taylor’s May 4, 2007 signatures therefore do not conclusively establish anything related to the timing of her 2007 recertification interview. Defendants’ motion will be denied.
35 Defendants produced this exhibit without pagination, bates-stamping, or other indication of page order. Therefore, the Court cannot cite precisely to the pages on which it relies.
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Moreover, Taylor’s file indicates that HANH conducted her annual recertification in August
of each year—not in the first few months of the year. Senior conducted Taylor’s 2007 annual
recertification on August 1, 2007, and consistent with a conclusion that Taylor’s annual
recertification was in August, Taylor submitted a number of forms and documents in July 2006 in anticipation for a recertification planned for August 2006. (See Jt. Ex. 32.)36
The Court concludes that Taylor’s first request was in late February or early March
2008 in light of Taylor’s testimony that she was motivated to request assistance because of
the potential foreclosure, which she learned about in early 2008: she testified that she asked
Senior for assistance finding another apartment “[b]ecause the landlord is going to lose the
apartment,” which Taylor determined was the case because the mail made it “seem[] like he
was being sued . . . because he[ was] not paying his mortgage” and “[was] being foreclosed
on.” (Tr. of 5/7/08 Prelim. Inj. Hrg. at 37–38.) In late February or early March 2008, Taylor
called Senior and left her a voicemail asking for mobility counseling, to which she did not receive any response.37 On March 14, 2008, Taylor wrote a letter to Senior asking Senior or
36 Having been shown Taylor’s May 4, 2007 acknowledgement of receipt of notification of her right to seek a reasonable accommodation, Woodie testified that Section 8 participants signed these forms during their annual recertifications, and therefore surmised that Taylor’s annual recertification “would have been” in May. (Tr. Vol. IV at 875.) Even if the recertification was in May, Taylor filed her motion for a preliminary injunction in April, the month before the date of what would have been her 2008 recertification.
37 Taylor’s testimony is unclear and inconsistent as to when she first asked Senior for assistance finding a new apartment. She testified that asked Senior in person at her most recent recertification, and that aside from her recertification meetings she never saw Senior. (Tr. of 5/7/08 Prelim. Inj. Hrg. at 36.) She also testified that she could not remember when she last met with Senior, but she thought it was earlier in 2008. (E.g., id. at 36–37.) Taylor’s most recent recertification prior to the preliminary injunction hearing was on August 1, 2007. (See Jt. Ex. 32.) Taylor also testified that she asked for assistance moving because she was concerned about the foreclosure action against her landlord. (Tr. of 5/7/08 Prelim. Inj.
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HANH to help her find “an apartment with a ramp or no stairs” because of her disability.
Counsel for Taylor faxed this letter to HANH the same day. (March 14, 2008 Letter from
Taylor to Senior, Ex. C to Compl. [Doc. # 3]; Fax Verification Form, Ex. 17 to Pls.’ Mot.
Prelim. Inj. [Doc. # 12].)38 In the meantime, Taylor conducted her search by examining
Hrg. at .) She did not learn about the foreclosure until the first few months of 2008. Taylor also averred that “[d]uring my last recertification, [Senior] and I talked about my landlord’s [foreclosure] problem” after she learned that her landlord was being sued in strict foreclosure. (See Taylor Aff. Dated April 10, 2008, Ex. 4 to Pls.’ Mot. Prelim. Inj. [Doc. # 12] at ¶¶ 12–13.)
Bank of America filed the foreclosure action against Taylor’s landlord on February 14, 2008 in New Haven Superior Court. (See Docket Report for Case No. NNH-CV-085017975-S, Ex. D to Compl. [Doc. # 3].) At the preliminary injunction hearing, counsel for Taylor represented that “Taylor has requested a reasonable accommodation three times in three different ways: First, she requested it in person at the beginning of this year to her worker, [Senior], and that was a verbal request; second, she . . . attempted to request by telephone, [but] was not able to get [Senior] by telephone; third, she faxed [a] written request for accommodation [on March 14, 2008].” (Tr. of 5/7/08 Prelim. Inj. Hrg. at 3.) Both Taylor’s March 14, 2008 letter and her April 10, 2008 affidavit suggest that the letter was a follow-up to a voicemail that Taylor had recently left for Senior, and therefore close in time. (See March 14, 2008 Letter from Taylor to Senior, Ex. C to Compl.; Taylor Aff. at ¶ 15.)
The Court concludes from this combination of Taylor’s testimony and documentation that Taylor first requested mobility counseling from Senior by voicemail in late February or early March 2008, and thereafter attempted to fax a request to Senior on March 14, 2008. In light of Taylor’s difficulty dating her requests or recalling the details of her oral request to Senior, and the fact that there is no evidence that Taylor had any meeting with Senior after her August 1, 2007 recertification, which meeting predated the foreclosure action by more than six months, the Court cannot identify the date—a material fact—on which Taylor orally asked Senior for mobility counseling. Absent this material fact, the Court cannot, in considering Taylor’s claim, rely on Taylor’s testimony that she orally requested mobility counseling from Senior.
38 Defendants claim that the number to which counsel faxed the letter was out of date and therefore neither Senior nor anyone else on HANH’s Section 8 staff received Taylor’s request. (See, e.g., Tr. Vol. VII at 1276 (Heinrichs).) The number to which counsel faxed the letter is located on a reasonable accommodation form produced by HANH and used as
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apartment listings provided by HANH and in the newspaper; the list she got from HANH did not list which apartments were accessible. (Tr. of 5/7/08 Prelim. Inj. Hrg. at 32–35, 40, 50.) She testified that she would call landlords, but they demurred because she was disabled and, she explained, they “don’t want to be responsible if something happens . . . if they don’t have the correct things for a handicapped person, like a ramp or whatever.”39 Taylor testified that she would call landlords rather than visit units because it was difficult for her to leave her house and travel to see the units. (Id. at 35.)
Taylor filed suit less than a month after faxing the letter, and on April 22, 2008 she moved for a preliminary injunction requiring HANH to provide her with mobility counseling and find her a new, accessible apartment. (See Pls.’ Mot. Prelim. Inj.) The Court approved and adopted the parties’ joint stipulated order for preliminary injunctive relief, Woodie provided Taylor mobility counseling and found her an accessible apartment in New Haven, Taylor signed a lease for a new apartment on July 22, 2008, and the lease term for the new apartment began on August 1, 2008. (See Proposed Stip. [Doc. # 24]; Order dated May 27, 2008 [Doc. # 27]; Jt. Ex. 32.) Plaintiffs agree that HANH provided Taylor with mobility counseling after she filed suit. (See, e.g., Tr. Vol. IV at 852–53; 3d Am. Compl. at ¶¶ 25–26.)
recently as January 2006. That form indicated that Maureen Novak, Heinrichs’s predecessor as HANH’s former Reasonable Accommodations Coordinator, received faxes sent to that number. (See, e.g., Pls.’ Ex. 39 at 2.) Absent evidence that Defendants ceased using the number altogether, informed Taylor (or anyone) of the change in fax number, or took steps to retract the form listing the outdated number, the Court concludes that the fax was received somewhere within the HANH bureaucracy.
39 If the landlords did discriminate against her on the basis of her disability, their actions may constitute violations of the FHA and FHAA. However, those landlords are not named in this action, and Defendants may not be held liable for others’ unlawful conduct.
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2. Conclusions of Law Plaintiffs assert that Taylor was constructively denied a reasonable accommodation by HANH’s failure to respond to her request for mobility counseling before she filed suit. Plaintiffs rely on three cases for the proposition that a delay can become a denial. Groome Res. Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000); Langlois, 207 F.3d at 48; Matyasovszky v. Hous. Auth. of the City of Bridgeport, 226 F.R.D. 35, 45–46 (D. Conn. 2005). These cases do not support Plaintiffs’ argument. In Matyasovszky, a court in this District certified a class of disabled persons eligible for low-income public housing in Bridgeport, members of which claimed that the housing authority’s designation of certain housing units as only for elderly participants constituted discrimination on the basis of disability. 226 F.R.D. at 36–38. The case did not address the delay-as-denial issue at all. In Langlois, the First Circuit addressed a claim that PHAs unlawfully discriminated in favor of Section 8 applicants within their jurisdiction. Those outside the jurisdictions claimed that although their applications were not technically denied, as a practical matter the applications would rarely be granted since most openings would be given to in-jurisdiction applicants. 207 F.3d at 46–47. The First Circuit recited the PHAs’ argument that the “residency preference does not permanently deny vouchers to any qualified person” but instead “merely delays them,” and summarily rejected it, holding instead that “given the limits on funding, the delays apparently stretch into years, so delay may for practical purposes be the equivalent of denial.” Id. at 48. Finally, in Groome the Fifth Circuit upheld a district court’s determination that a zoning board’s delay in acting on an application for a variance from zoning laws to be able to operate a group home for disabled patients constituted a denial. 234 F.3d at 196, 199. Before the plaintiffs filed suit in that case, their “full and complete
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application had been submitted and reviewed,” and had been pending for 95 days, notwithstanding the zoning board’s target of responding to applications within 45 days, the “officials in charge of the application could not provide any timetable or plan for acting on the application,” the fact that the plaintiff’s ability to close on a house it had purchased was contingent on obtaining a variance, and the fact that the application had already been unofficial approved. Id. at 199 & n.7. The defendant did not challenge on appeal the district court’s conclusion that its delay constituted a denial.
The Court does not intend to cast doubt on the proposition that delay may eventually become denial. Cf. United Techs. Corp. v. Am. Home Assur. Co., 118 F. Supp. 2d 181, 188 (D. Conn. 2000) (suggesting that an insurer may engage in a “procedural[ly] unfair practice[]” by failing to respond to insurance claims within a reasonable time). However, the Court cannot conclude from the evidence in this case that HANH’s delay in responding to Taylor’s request for a reasonable accommodation constituted a denial. Unlike the defendants in Langlois, where the delay lasted “years,” HANH’s delay in this case was approximately two months, only one of which predated Taylor’s filing suit. In addition to the fact that Taylor’s application was pending for one-third less time than the plaintiff’s application in Groome, HANH’s reasonable accommodation staff had not received or reviewed Taylor’s letter, let alone unofficially approved it and left her waiting for what was essentially a ministerial act.
In addition, there is no evidence that HANH delayed acting on Taylor’s application in order to prevent her from moving, or with any motive to prevent a disabled Section 8 participant from obtaining housing. If, as the evidence suggests, HANH failed to respond to Taylor’s request because of bureaucratic incompetence, that fact—unlike in Groome,
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where the zoning board’s delay “demonstrated an attempt to frustrate [the plaintiff’s] purchase and operation of a group home,” 234 F.3d at 199 n.7—does not show violations of Section 504 or the FHAA, which are “addressed to ‘rules . . . that hurt [people with disabilities] by reason of their handicap, rather than that hurt them solely by virtue of what they have in common with other people.’” Henrietta D., 331 F.3d at 276 (quoting Good Shepherd Manor Found., Inc. v. City of Momence, 323 F.3d 557, 561 (7th Cir. 2003) (emphasis in Good Shepherd)).
For these reasons, the Court concludes that Plaintiffs have not shown that HANH denied Taylor a reasonable accommodation by failing to respond to her request for mobility counseling or search assistance in the two months between when she first requested it and the date she moved for a preliminary injunction. In addition, because HANH did not deny Taylor her request, Plaintiffs cannot show that Taylor was subjected to intentional discrimination on the basis of disability in violation of the FHA or FHAA.
C. Claims of Karl Hunter 1. Findings of Fact
Karl Hunter is a 52-year-old man confined to a wheelchair who has lived in Fellowship Place, on the corner of Dwight Street and Whalley Avenue in New Haven, since 2005. (Hunter Aff., Defs.’ Ex. 257, at ¶¶ 1–3; Tr. Vol. VIII at 66, 67, 81 (Hunter).) Hunter resides there under a project-based voucher administered by HANH. (Id. at 65–66; see also Tr. Vol. IV at 868 (Woodie).) He does not like living there, since that area is dangerous, and he has been mugged. (Tr. Vol. VIII at 67–68.) In addition, his apartment has a kitchen area with a microwave and a sink, but no stove. (Id. at 66.) Hunter testified that there came a time when he sought help moving from Kristen Barber, a disability advocate with the City
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of New Haven, who advised him to contact HANH. He could not recall when that was. In an affidavit dated August 4, 2008, he averred that until earlier that month, when Barber told him, he did not know that HANH could help him search for apartments (Hunter Aff. at ¶ 9), but he later testified that he did not learn until his June 2, 2009 deposition that he could obtain assistance moving—mobility counseling—from HANH (Tr. Vol. VIII at 74). The documents in evidence show that Hunter received information about his right to request reasonable accommodations on June 13, 2007 and again on November 10, 2008. (Defs.’ Exs. 202, 206.)
The documents in evidence show that Hunter sought reasonable accommodations from HANH on December 8, 2008, at which time he requested, on a HANH reasonable accommodations form, a barrier-free apartment, accommodation for a live-in attendant, and mobility counseling. (Pls.’ Ex. 38 at 4.) Hunter testified that he did not personally complete the form, but instead it was filled out by staff at Fellowship Place. (Tr. Vol. VIII at 69–70.) He stated that he did not want a live-in aide, but that the Fellowship Place staff wanted him to request one anyway. (Id. at 96.)
Three weeks later, on December 29, 2008, Woodie sent Hunter a letter reciting his three reasonable accommodation requests, notifying him that HANH was “currently unable to process [his] application because it was incomplete,” sending him his application, and asking him to “complete the highlighted sections.” (Pls.’ Ex. 38 at 6; Defs.’ Ex. 205.) While Hunter thought Woodie’s request was redundant since it sought information already within HANH’s possession or knowledge such as his birth certificate and social security number (Tr. Vol. VIII at 71), Woodie testified that she pulled Hunter’s HANH files to gather what information HANH already had about Hunter, and in her letter she asked Hunter for
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information about his medical treatment so she could verify with Hunter’s physician Hunter’s medical need for a live-in aide (Tr. Vol. IV at 872–74), which was consistent with her approach to other requests requiring medical verification. When HANH received this information in calendar year 2009, Woodie sent a verification form to Hunter’s physician. (Id.)
2. Conclusions of Law Even if an apartment without a stove does not comply with the housing quality standards set by HUD regulation,40 that fact would not show any violation of Section 504 or the FHAA, since these statutes are “addressed to ‘rules . . . that hurt [people with disabilities] by reason of their handicap, rather than that hurt them solely by virtue of what they have in common with other people.’” Henrietta D., 331 F.3d at 276 (quoting Good Shepherd, 323 F.3d at 561). Hunter’s testimony regarding when he learned of his right to seek a reasonable accommodation was internally inconsistent, and it was also inconsistent with his signed acknowledgement that he received information about this right eighteen months before he first requested any reasonable accommodation. The evidence further shows that after receiving Hunter’s request, Woodie promptly followed up with him—within three weeks—to confirm Hunter’s need for a live-in aide, which need would affect the size of voucher to which Hunter would be entitled. Liability for failure to provide a reasonable accommodation cannot attach until the defendant has received and denied a request for
40 See 24 C.F.R. § 982.401(c)(2)(i) (“[a] microwave may be substituted for an ownersupplied oven and stove or range if the tenant agrees and microwave ovens are furnished instead of an oven and stove or range to both subsidized and unsubsidized tenants in the building or premises” (emphases added)).
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reasonable accommodation. Tsombanidis, 352 F.3d at 578–79. Here, there is no evidence that HANH has denied Hunter’s request for a reasonable accommodation, and indeed the evidence indicates that HANH has been working to approve Hunter’s request and provide the accommodations. Therefore, Defendants cannot be liable to Hunter under the FHAA or Section 504.
In addition, because Hunter has not shown that he “sought and was qualified for an apartment,” Cabrera, 24 F.3d at 381, or that he “was denied the opportunity to rent [an] apartment,” id., he cannot make out an intentional-discrimination claim against HANH.
D. Claim of Heiwa Salovitz 1. Findings of Fact
Heiwa Salovitz, a man with cerebral palsy who is confined to a wheelchair, has been a Section 8 participant since July 2001. (Pls.’ Ex. 39 at 2; Tr. Vol. V at 1045 (Salovitz).) When he became a Section 8 participant, he attended an orientation run by HANH, but he did not learn of his right to request an exception rent, search assistance, mobility counseling, or utility allowances. (Id. at 1047.) He testified that he did not learn about these possible accommodations at his recertifications, and learned about “these particular items” “recently,” when in 2007 he began serving on New Haven’s Commission for Persons with Disabilities. (Id. at 1048–49.) In 2003 Salovitz moved into the Residences at Ninth Square. Although he did not learn the term “exception rent” until later (id. at 1088), the rent at this building was above the FMR published annually by HUD, so to permit its Section 8 Program participants to live there HANH had to approve exception rents (e.g., Tr. Vol. IV at 885–86 (Woodie)).
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Salovitz also testified, however, that he was informed annually, during his recertification, of his right to request a reasonable accommodation. (Id. at 1081, 1120.) In late 2005, Salovitz completed a request for a reasonable accommodation on a HANH form that listed a revision date of January 2004.41 In his 2005 request, Salovitz represented as follows:
Currently I have a reasonable accommodation for 2 bedrooms. Originally I had a reasonable accommodation because I have a live-in aide. However, I have 2 powerchairs, a manual wheelchair, and a shower chair and there is not enough room for the live in aid[e] in my 2 bedroom unit. I am therefore requesting a voucher for a three bedroom, so I will have room for both my equipment and the live in aide. (Pls.’ Ex. 39 at 1.) Salovitz’s physician confirmed on January 10, 2006 that Salovitz suffers from cerebral palsy and required a wheelchair, a permanent live-in aide, and a threebedroom apartment to store his equipment. (Id. at 2.) Salovitz testified that HANH granted the request. (Tr. Vol. V at 1078–79.) Salovitz filed another reasonable accommodation request on April 30, 2008 for “a higher utility allowance” given his high electricity usage in charging batteries for his powered wheelchairs. (Id. at 15; see also Tr. Vol. V at 1082–86.) Two months later, on July 1, 2008, Woodie e-mailed Salovitz to inform him that she needed additional information regarding his batteries. (Cf. Tr. Vol. IV at 962 (Woodie) (explaining, in the context of Oko’s request, why specific verification of battery type and usage is required).) Salovitz then filed a CHRO
41 The form provided the following “type[s] of accommodation” from which a requester could choose: “physical modification to a unit”; “barrier-free unit (wheelchair accessible)”; “unit adapted for sensory impairments”; “[a]ssignment of a reserved parking space”; “provision of the property lease or program regulations”; “[l]ive in [a]ide”; “[h]ousekeeping [s]tandard”; and “[o]ther.” Salovitz determined that his request fell under the “[o]ther” category. (See Pls.’ Ex. 39 at 1 (emphasis in original).)
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complaint against HANH on July 18, 2008, alleging that HANH’s failure to act on his request constituted discrimination on the basis of disability. (Pls.’ Ex. 39 at 3–4 (Salovitz’s CHRO complaint); see also id. at 5–9 (HANH’s response to CHRO).) Woodie and Salovitz scheduled a home visit on August 11, 2008, but Woodie did not appear. (Id. at 18 (Salovitz letter).) HANH’s Reasonable Accommodations Committee met and considered Salovitz’s request on September 4, 2008, and on September 8th, DuBois–Walton informed Salovitz by letter that HANH had “approved an increase of $80.00 a month” in his utility allowance, and also “offer[ed] [him] Mobility Counseling which will include assisting [him] in [his] search for a new housing unit.” (Id. at 20.) According to Salovitz, DuBois–Walton’s letter “was the end of this particular issue” as far as he was concerned. (Tr. Vol. V at 1086.)
Salovitz had lived in the Residences at Ninth Square for six years, from May 2003 through May 2009, when there was a fire in his apartment and he was forced to relocate. (See id. at 35–37; see also Tr. Vol. V at 1087, 1099–1100.) He requested mobility counseling from HANH to assist him in his move. Salovitz testified that the mobility counseling, which had been provided by Woodie and then Jennifer DeJesus, was “successful.” He needed to move immediately, and HANH paid for Salovitz to stay at a hotel while DeJesus searched for apartments for him. HANH helped Salovitz travel around to, and view, different apartments during this search; with HANH’s help Salovitz found a new apartment in three weeks. (Tr. Vol. V at 1054, 1103–05.)42 With DeJesus’s assistance, Salovitz visited the new unit he would eventually lease, and saw that it was a barrier-free, wheelchair-accessible unit that lacked grab-bars in the bathroom. (Id. at 1106.)
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On May 27, 2009, HANH approved a monthly housing assistance payment to Salovitz’s landlord of $1210. (Pls.’ Ex. 39 at 30.) According to both Salovitz’s testimony and documents, the landlord promised both Salovitz and DeJesus to make the unit fully accessible. DeJesus and Salovitz discussed with the landlord’s agent Salovitz’s need for grabbars,43 and the agent represented to them that the landlord would install grab-bars in the bathroom at no cost to him or to HANH. (See id. at 1055–57, 1106–07; see also Pls.’ Ex. 39 at 26–29 (e-mails among Salovitz, DeJesus, and the new unit’s property manager).) However, after Salovitz signed the lease and picked up his keys—and, presumably, after HANH executed a HAP contract with the landlord—Salovitz requested that the landlord install the grab-bars, but the landlord informed Salovitz that he would have to pay for the installation by a contractor of his choice. (Tr. Vol. V at 1057–61; Pls.’ Ex. 39 at 26–29, 31–34.) The landlord repeated this position on August 10, 2009. (Pls.’ Ex. 39 at 38.) A contractor estimated the installation cost at $1,046.60. (Id. at 25.)
Salovitz turned to HANH for assistance. According to Salovitz, DeJesus advocated on his behalf with the landlord, but the landlord refused to pay for the installation. (Tr. Vol. V at 1062–63.) On July 7, 2009 Salovitz e-mailed DeJesus to ask if HANH could approve an exception rent to pay for the grab-bars, but DeJesus replied two hours later that “HANH has no control over” any agreement between Salovitz and his new landlord, that she had “no luck” in her negotiation with his landlord, and that the issue “is something that is out of my hands.” (Pls.’ Ex. 39 at 26.)
43 Salovitz testified at trial about the substantial difficulties, disruptions, and distress he suffers daily as a result of not having grab-bars to make the bathroom safely accessible to him. (See, e.g., Tr. Vol. V at 1050–53, 1122–23.)
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Miller testified, in connection with his handling of the Gaither matter, that HANH had a policy of not providing funds to modify privately-owned units. (See Tr. Vol. I at 77–78, 266–68 (concluding that such a policy would be a fundamental alteration to the program).) Rather than provide funds for individual modifications of privately-owned units attached to which were one-year HAP contracts that were not guaranteed to be renewed, Miller sought to use “other options,” including “a loan program,” to make capitalimprovement loans to landlords, along the lines of a program he had operated while working at the New York City housing authority. (Id. at 268.) The record is silent on whether HANH ever implemented a loan program.
2. Conclusions of Law Salovitz’s claim is that DeJesus’s rejection of his request for an exception rent to pay for the grab-bars constitutes HANH’s failure to provide a reasonable accommodation, in violation of Section 504 and the FHAA. He may also be claiming that this failure constitutes intentional discrimination under the FHAA. The facts show that Defendants have neither intentionally discriminated against him on the basis of his disability, nor failed to provide him a reasonable accommodation.44
44 Salovitz and his counsel have considered whether, in refusing Salovitz’s request to install the grab-bars, the landlord has violated Section 504 or the FHAA. In fact, Salovitz’s counsel informed HANH on June 4, 2009 that “Salovitz plans to take legal action against [his landlord], but this is unlikely to produce any solution in the short term.” (Defs.’ Ex. 212 at 3.) Nonetheless, on August 21, 2009, Salovitz testified that he “would prefer not to” sue his landlord to force them to install the grab-bars, and instead “to solve this in an amicable way” with the landlord because he recently moved in to the unit. (Tr. Vol. V at 1065; accord id. at 1112–13.) In any event, even if the landlord’s actions violated Section 504 or the FHAA, the landlord is not a party in this litigation, and the Defendants in this action cannot be held liable for others’ unlawful conduct. If Plaintiffs were to contend otherwise, they would be “asking [HANH], the public entity responsible for [the Section 8 Program,] to resolve a
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First, HANH’s refusal does not constitute a failure to provide a reasonable accommodation. As explained above, the “benefit” of Section 8 does not include housing, or a guarantee that a participant will find suitable housing. While HANH administers the the LIPH program—in which it does provide housing directly to participants—Salovitz testified that he preferred participating in the Section 8 Program because that program “allows [him] to have choice and options within the community that [he] choose[s].” (Tr. Vol. V at 1046–47). Even if HANH had the power to control private landlords and force or coerce them to provide accessibility features promised but not provided, the “benefit” of the Section 8 Program does not include a guarantee of suitable housing, or any housing whatsoever, and does not include the funding of modifications to units by private landlords. “A plain reading of HUD regulations governing Section 8 programs shows that funding modifications to privately-owned units is not a service offered by [Section 8] Programs.” Liberty Res., 528 F. Supp. 2d at 569.
The benefit of the Section 8 Program for its participants is that the program provides them financial assistance to afford units available in the private market. It is undisputed that HANH helped Salovitz find a unit that was available on the private market, and now provides him financial assistance to afford the monthly rent for that unit. Therefore, Salovitz has not been denied access to the benefit of the Section 8 Program, and he cannot make out a claim under Section 504 or the reasonable-accommodation theory of the FHAA.
Second, Plaintiffs have not sustained their burden to show that Defendants intentionally discriminated against Salovitz on the basis of disability. To the contrary,
difficulty experienced by disabled people that is the result of the actions of private individuals.” Liberty Res., 528 F. Supp. 2d at 569.
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HANH approved Salovitz’s previous two reasonable accommodation requests and provided him mobility counseling—by hosting Salovitz in a hotel, searching for accessible units for him, and helping him travel around with DeJesus to look at units—and contacted Salovitz’s landlord to request that it provide grab-bars, as Salovitz and DeJesus had understood the landlord to have promised. Moreover, the evidence suggests that HANH had already provided Salovitz with an exception rent to be able to afford to live in the unit.45 This “specific sequence of events leading up to the challenged decision,” Tsombanidis, 352 F.3d at 579, of DeJesus’s refusal to provide an exception rent to pay to install the grab-bars weighs against any conclusion that the refusal was based on DeJesus’s discrimination against Salovitz on the basis of his disability. Moreover, Plaintiffs adduced no evidence that HANH’s “normal procedural sequences,” id., included the offer or approval of an exception rent to pay for modifications to privately-owned units for which a disabled Section 8 participant had a one-year lease, or that the “normal substantive criteria,” id., that HANH applied when determined whether to provide an exception rent (or a Section 8 voucher itself) involved modification of privately-owned units—or that HANH departed from these sequences and criteria in refusing Salovitz’s request.46
45 In his request for a reasonable accommodation from his landlord, Salovitz represented that he lived alone. (Pls.’ Ex. 39 at 31.) If Salovitz had a two-bedroom voucher (cf. id. at 1 (stating he had a two-bedroom voucher)), the HUD-determined fair market rent was $1101 per month. See 73 Fed. Reg. 56638, 56649 (Sept. 29, 2008). The HUDdetermined fair market rent for a one-bedroom unit was $915 per month. Id. The $1210 per month approved by HANH represents 110 percent of the fair market rent for a twobedroom unit, or 132 percent of the fair market rent for a one-bedroom unit. The record does not contain any rent reasonable calculation for Salovitz’s current unit.
46 The evidence also does not show that Salovitz has made out a prima facie case under the FHA, since there is no evidence that he “was denied the opportunity to rent [an]
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Miller testified that HANH had a blanket policy of not funding any modifications of
privately-owned units, regardless of who asked for such funding. (Tr. Vol. I at 77–78; Tr.
Vol. IV at 719–20.) Whether or not this policy is countenanced by Section 8, there is no
evidence that HANH applied it in a discriminatory manner, and Plaintiffs may not rely on
Section 504 or the FHAA to “challenge . . . the scope of a non-discriminatory program,” Am. Council of the Blind, 525 F.3d at 1268.47
Moreover, in Count Four, Plaintiffs claim that to make the Section 8 Program’s
benefits equally accessible to participants with disabilities, HANH must fund modifications
to privately-owned units. Because the provision of any privately-owned housing, let alone
suitable housing, is not a benefit of the Section 8 Program, it would be a fundamental
alteration, not a reasonable accommodation, for HANH to fund modifications to units
apartment,” Cabrera, 24 F.3d at 381, at all, let alone that such denial was at the hands of HANH.
47 Miller testified that rather than use HANH funds to modify individual privatelyowned units, HANH used project-based vouchers to provide landlords with guaranteed income for a number of years—10 to 15 years—and in that manner “hopefully to encourage the owner to do the modification and development.” (Tr. Vol. I at 252.) He explained that he determined not to use HANH funds to “mak[e] a modification to a tenant-based unit” because under the tenant-based program, HANH could not obtain “any long-term . . . commitment from the landlord,” the Section 8 recipient could “leave[]” after one year, and therefore funding modifications was not “a fiscally prudent thing to do for a one-year lease unless [HANH] could find a way to recapture our investment.” (Tr. Vol. IV at 720–21.) Even if private unit modifications could be construed to be within the benefit HANH offered in the Section 8 Program, “[s]ensibly construed, the fundamental-alteration component of the reasonable-modification” obligation does not require an accommodation if, “in the allocation of available resources, immediate relief” by funding such modifications “would be inequitable, given the responsibility [HANH] has undertaken” to assist “a large and diverse population of persons with . . . disabilities” to participate in the private housing market. See Olmstead, 527 U.S. at 604 (plurality op.).
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owned by entities other than HANH who are not obligated to provide housing for Section 8 Participants. The Rehabilitation Act and the FHAA’s reasonable accommodation mandate require that programs be administered in a non-discriminatory manner, but do not support challenges to “the substance of the services provided to” the disabled, Doe, 148 F.3d at 84. Therefore, judgment must enter in favor of Defendants on Count Four.
E. Summary The evidence in this case leaves the Court with the firm conclusion that people with disabilities, and especially disabled recipients of Section 8 Program benefits, face severe hardships in finding apartments in New Haven that include the features necessary to make them accessible and safe. Taylor, for example, contacted private landlords who explicitly discriminated against her on the basis of her disability. Salovitz movingly described how the lack of grab-bars that would permit him to use the bathroom in a safe and efficient manner is deleterious and profoundly hinders his ability to go about everyday life activities. Hunter described how his disability left him subject to greater dangers on the streets outside his apartment. However, the evidence does not show that Defendants named in this litigation violated the rights that Section 504, the FHA, and the FHAA provide to Taylor, Hunter, or Salovitz. Therefore, judgment must enter in Defendants’ favor on all of Plaintiffs’ claims.48
48 After trial Defendants Jimmy Miller, Karen DuBois–Walton, and Robert Solomon moved for a judgment that they are not liable for punitive damages. (Defs.’ Mot. J. [Doc. # 212].) Because the Court has concluded that Plaintiffs have not proved Defendants’ liability under the FHA, FHAA, or Section 504, Defendants’ motion is therefore moot, and will be denied as such.
Plaintiffs’ Motion to Compel an Unredacted Tax Return from Jimmy Miller (Pls.’ Mot. [Doc. # 236]) is similarly directed to discovery relevant to punitive damages against Miller. The Court earlier ruled that Plaintiffs were entitled to attorney fees for their previous motion to compel Miller to disclose his tax returns. (See Order dated Aug. 26, 2009
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Case 3:08-cv-00557-JBA Document 240 Filed 03/29/10 Page 83 of 84
VII. Conclusion
For the reasons stated above, the Court concludes that, in administering the Section
8 Program and providing the benefits of that program to Rebecca Taylor, Karl Hunter, and
Heiwa Salovitz, Defendants did not violate the Fair Housing Act, the Fair Housing Act
Amendments, or Section 504 of the Rehabilitation Act.
In addition, for the reasons stated above, the Court’s Order Certifying a Class in this
case [Doc. # 108] is VACATED; Plaintiffs’ Emergency Motion for Sanctions [Doc. # 193] is
[Doc. # 208].) Plaintiffs seek attorney fees in the amount of $5,525, representing 22.1 hours at $250 per hour, for their attorney’s pursuit of this discovery (Pls.’ Mot. Atty Fees [Doc. # 230]), as to which the Court found that Miller was “out of compliance” for failing to produce his tax return (Tr. Vol. II at 278). Although Miller belatedly complied on October 5, 2009 (see Pls.’ Notice of Filing Under Seal [Doc. # 229]), his production contained none of the pertinent financial information that Plaintiffs’ discovery sought. Miller’s production of a redacted tax return defeated the purpose of the discovery Plaintiffs sought, and he therefore remains out of compliance. However, Plaintiffs’ purpose for seeking the tax return is now moot. Plaintiffs’ motion to compel will therefore be denied as moot.
Defendants object to Plaintiffs’ counsel’s fee application for 22.1 hours of work in connection with her efforts to obtain Miller’s compliance with his discovery obligations. They argue that Miller was not obligated to produce his tax return until this Court overruled his objections to Magistrate Judge Fitzsimmons’s ruling granting the Plaintiffs’ motion to compel. (Defs.’ Obj. [Doc. # 231].) Since Miller’s grounds for objecting to the discovery were meritless, his perpetuating his objection provides no grounds to reduce the attorney-fee award; rather, it substantiates the amount of time Plaintiffs’ counsel required to pursue the issue. Notwithstanding Miller’s unjustified opposition to the request for production, determined to be proper by both Magistrate Judge Fitzsimmons and this Court, the discovery issue is simple, and some reduction of compensable time is warranted (for example, for the 10.1 hours spent preparing and filing a sur-reply to Defendants’ objections). However, after Plaintiffs filed the motion for attorney fees, additional time was required to prepare and file the motion to compel an unredacted tax return. Although that motion to compel is moot, counsel is entitled to fees for her efforts to enforce Miller’s discovery compliance. To cover Attorney Vickery’s subsequent motion to compel after Miller continued his resistance, the Court will award total fees of $5,000.00, representing 20 hours at $250 per hour.
83

Case 3:08-cv-00557-JBA Document 240 Filed 03/29/10 Page 84 of 84 DENIED; Defendants’ Motion for Judgment Regarding Punitive Damages [Doc. # 212] is DENIED; Plaintiffs’ Motion for Sanctions [Doc. # 227] is DENIED; Plaintiffs’ Motion for Attorney Fees [Doc. # 230] is GRANTED IN PART, in the amount of $5,000.00; Defendants’ Motion for Sanctions [Doc. # 232] is DENIED; and Plaintiffs’ Motion to Compel Production of Unredacted Tax Return [Doc. # 236] is DENIED.
Pursuant to Federal Rules of Civil Procedure 52 and 58, the Clerk is directed to enter judgment for Defendants on all of Plaintiffs’ claims, and to close this case.
IT IS SO ORDERED. /s/
Janet Bond Arterton, U.S.D.J. Dated at New Haven, Connecticut this 29th day of March, 2010.
84

 
 Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF CONNECTICUT

REBECCA TAYLOR, et al

:

Plaintiffs

:

V.

:

THE HOUSING AUTHORITY OF THE :

CITY OF NEW HAVEN, et al

:

Defendants

:

DOCKET NO. 3:08-cv-557(JBA) April 7, 2010

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR ADDITIONAL FINDINGS
For the reasons described herein, plaintiffs move for additional factual findings material to their claims under the FHAA that defendants provided services to the nondisabled population that they denied to the plaintiffs. The evidence relevant to such additional findings is summarized below. A. LEGAL BASIS
“Rule 52(b) provides that “[o]n a party's motion filed no later than 10 days after entry of judgment, the court may amend its findings-or make additional findings-and may amend the judgment accordingly.” Fed.R.Civ.P. 52(b). “[A] party may move to amend the findings of fact even if the modified or additional findings in effect reverse the judgment. If the trial court has entered an erroneous judgment, it should correct it.” Golden Blount, Inc. v. Robert H. Peterson, 438 F.3d 1354, 1358 (Fed. Cir. 2006). “This directive to correct erroneous judgments appears particularly clear where, as here, the

1

Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 2 of 7
parties have not contributed to the court's error.” U.S. v. Texas, 572 F. Supp.2d 726, 730 (E.D. Texas 2008) (noting that the court’s duty to alter its findings where the evidence relied upon by the movant was admitted at trial). B. EVIDENTIARY BASIS
Plaintiffs have claimed since the commencement of these proceedings that the defendants’ refusal to provide a list of units to the disabled that is comparable to the list it provides to the non-disabled violates the FHAA. Thus, findings related to this issue are material. The claim and the facts to support it were presented by the plaintiffs in both pleadings1 and proposed findings of fact. At trial, plaintiffs produced a number of documents specifically related to these claims. See generally, Pl. Ex. 42-50. In addition, witnesses Calvin, Deloatch, and Salovitz gave live testimony relevant to the issue, and witnesses Ford, Jones and Taylor gave testimony admitted by agreement in the form of transcripts from other proceedings, depositions and/ or affidavit. Thus, there exists sufficient basis for the Court to issue specific factual findings on whether the defendants violated the FHAA by adhering to a policy of providing housing-related services to its non-disabled Section 8 participants that it refused to provide to the disabled. The
1 See Third Amended Complaint, ¶65: “The Defendants have intentionally discriminated against the plaintiffs on account of their disabilities and handicaps, discriminating against them in the provision of services and otherwise making dwellings unavailable to them by: a. refusing to maintain a current listing of the available, accessible apartments (“AUL”), such as HANH maintains for non-disabled Section 8 households;. . . ”
2

Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 3 of 7
Memorandum of Decision would be incomplete without specific findings of fact on this claim.
The following paragraphs in bold are quoted from plaintiffs’ pre-trial proposed findings of fact. 1. HANH generates a monthly listing of available apartments to give to Section 8 voucher holders (“Section 8 List”), but fails to provide a comparable monthly listing of available accessible apartments to give to disabled Section 8 voucher holders (“AUL”).
Testimony of Rebecca Taylor: Ex. 1, pp. 33-34.
Admissions of Defendants: Tr. Oral Argument May 7, 2008, p 20, lines19-25
4. In September of 2007, a federal court ordered HANH to produce an AUL pursuant to its obligations under 24 C.F.R. § 8.28(a)(3). However, the list did not include any information on availability.
Exhibit 43: List produced by Defendants in compliance with Gaither v. HANH, Docket No. 59.
5. In May of 2008, this Court entered a stipulated order that HANH would produce an AUL, update it monthly, and to make it continuously available to the public. In response to the August 7, 2008 deadline, HANH produced a list very similar to the Gaither list, again without availability information. However, HANH added to the Taylor List the following disclaimer, which is not present on the regular Section 8 List: “Check with the rental office for information about pricing and availability.”
Taylor v. HANH, Docket No. 24, ¶ 5: “HANH will provide a current list of available accessible units in New Haven within three months of May 6, 2008, to be updated on a monthly basis, and that list will be provided by HANH to individuals who request it.”
3

Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 4 of 7
Ex. 46: Example of Section 8 listing regularly produced by Defendants, dated July 1, 2008.
Ex. 47: List produced by Defendants in compliance with Docket No. 24, ¶ 5.
6. The Taylor List was personally reviewed, edited, and approved by Karen Dubois-Walton, as the current Executive Director of HANH. It did not use the same headings or format as the Section 8 List, and it was not produced using the same database or staff person.
Testimony of DeLoatch: Tr. August 18, 2009, pp.310-314. 7. As of July 2008, HANH Section 8 Specialists had not been trained to offer an AUL to disabled Section 8 households unless directly asked for it. EVIDENCE:
Testimony of Lashanda Jones: Joint Ex. 19, Depo. Tr. pp. 68-69 Testimony of Heiwa Salovitz: Tr. August 21, 2009, pp.1047-1048. Testimony of Iris Santiago: [Cite to be provided upon completion of transcript].
10. Until at least September 2008, HANH front desk receptionists, if asked by members of the public for an accessible unit listing, responded that there is no such listing. EVIDENCE:
Affidavit of Terri Ford: Ex. 44: In February of 2008, Terri Ford asked for a listing of accessible Section 8 housing. A HANH employee told her that there was no such listing. Testimony of Ed Calvin: Tr. August 18, 2009, pp. 300-303.
4

Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 5 of 7
Ex. 45: Documents provided to Ford and Calvin. C. ANALYSIS
The evidence overwhelmingly demonstrates that the defendants provided a valuable service to the non-disabled community that they refused to provide to the disabled community. This service is a listing of apartments whose owners are willing to rent to Section 8 participants, updated monthly. Such listing includes the date that the apartment is expected to become available, a piece of information that is obviously critical to the usefulness of the listing. See Ex. 46, July 1, 2008 Section 8 Listing. Defendants, in response to the plaintiffs’ lawsuits, have created separate lists for the disabled. Yet these lists have never included availability information, and as such are in the classic sense, “separate, but not equal.”
While the defendants managed to produce some confusion about which staff members produced which versions of the court-ordered lists, they ultimately offered no evidence to contradict plaintiffs’ showing that such lists were never distributed—despite this Court’s order (#24) requiring distribution to the public. Similarly, even the defendants concede that they do not update the disabled listing, in the same manner that they do the non-disabled listings. See Ex. 52 (DeLoatch Excel Spreadsheet, containing the notation “Last updated August 5, 2008”).
The defendants owe the plaintiffs at least the basic dignity of a comparable listing, and thereby a fighting chance to find an accessible Section 8 apartment.
5

Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 6 of 7
D. CONCLUSION Plaintiffs respectfully move this Court to make additional factual findings in
accord with the weight of the evidence, which has been summarized and cited above. ATTORNEY FOR THE PLAINTIFFS /s/________________________ Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 248-0223 Email: vickerylaw@me.com
6

Case 3:08-cv-00557-JBA Document 247 Filed 04/07/10 Page 7 of 7
CERTIFICATION I hereby certify that the foregoing Notice has been served electronically on this 7th day of April, in compliance with Fed. R. Civ. P. Rule 5, on the following persons, who constitute all counsel and pro se parties of record: Timothy Pothin, Esq. Donn Swift, Esq. Lynch, Traub, Keefe and Errante, P.C. P.O. Box 1612 52 Trumbull Street New Haven CT 06509-1612 Fax (203) 782-0278
/s/_____________________ Jennifer Vickery
7

 
 Case 3:08-cv-00557-JBA Document 248 Filed 07/14/10 Page 1 of 6

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT

Rebecca Taylor, Karl Hunter, and Heiwa Salovitz, Plaintiffs,
v.
The Housing Authority of New Haven, Karen DuBois–Walton, Jimmy Miller, David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner,
Defendants.

Civil No. 3:08cv557 (JBA) July 14, 2010

ORDER ON PLAINTIFFS’ MOTION FOR ADDITIONAL FINDINGS [Doc. # 245] On March 29, 2010, this Court issued a Memorandum of Decision concluding that
Plaintiffs Rebecca Taylor, Karl Hunter, and Heiwa Salovitz had not shown Defendants1 to have violated the Fair Housing Act (the “FHA”), the Fair Housing Act Amendments (the “FHAA”), or Section 504 of the Rehabilitation Act (“Section 504”). Taylor v. Hous. Auth. of New Haven, 267 F.R.D. 36 (D. Conn. 2010). Judgment entered the same day. On March 31, 2010 Plaintiffs filed a Notice of Appeal of the Judgment.2 Pursuant to Federal Rule of Civil Procedure 52(b), Plaintiffs now move for “additional factual findings” related to

1 Plaintiffs brought suit against the Housing Authority of New Haven (“HANH”) as well as HANH Executive Director Karen DuBois–Walton, former HANH Executive Director Jimmy Miller, and five members of the Housing Authority Commission for the City of New Haven (David Alvarado, Ilona Leffingwell, Louise Persall, Robert Solomon, and Jason Turner).
2 Familiarity with the factual and procedural background of this case is presumed. See Taylor v. Hous. Auth. of New Haven, 257 F.R.D. 23 (D. Conn. 2009) (Ruling on Plaintiffs’ Motion for Class Certification [Doc. # 108]); Taylor, 267 F.R.D. 36 (Memorandum of Decision [Doc. # 240]); Judgment [Doc. # 242]; Judgment Docket Entry Correction [Doc. # 243]; Notice of Appeal [Doc. # 244].

Case 3:08-cv-00557-JBA Document 248 Filed 07/14/10 Page 2 of 6
HANH’s production, content, and distribution of lists of apartments available for rent by
disabled participants in the Section 8 Program. (Pls.’ Mot. for Add’l Findings [Doc. # 245].)3
“The standard governing consideration of a motion for an amendment of findings
of fact under Fed. R. Civ. P. 52(b) mirrors the standard governing motions for
reconsideration.” Precision Stone, Inc. v. Arch Ins. Co., No. 04 Civ. 9996(RWS), 2007 WL
1975487, *1 (S.D.N.Y. Jul. 6, 2007), rev’d on other grounds sub. nom., Arch Ins. Co. v.
Precision Stone, Inc., 584 F.3d 33 (2d Cir. 2009); see also Nationwide Airlines (PTY) Ltd. v.
African Global, Ltd., No. 3:04cv768(MRK), 2007 WL 1201765, *2 (D. Conn. Apr. 23, 2007)
(construing Rule 52(b) motion as being “in the nature of a motion for reconsideration”
because it did not simply “seek[] to correct a mathematical calculation,” and noting that
“[t]he standard for granting a motion for reconsideration is strict”). This standard is “strict.”
Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). “The major grounds justifying
3 Although “[t]he Supreme Court has stated that ‘[t]he filing of a notice of appeal is an event of jurisdictional significance—it confers jurisdiction on the court of appeals and divests the district court of its control over those aspects of the case involved in the appeal,’” Motorola Credit Corp. v. Uzan, 388 F.3d 39, 53 (2d Cir. 2004) (quoting Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58 (1982)), the Court has jurisdiction to consider Plaintiffs’ timely Rule 52(b) motion under Federal Rule of Appellate Procedure 4(a)(4)(A)(ii), see Fed. R. App. P. 4(a)(4) Advisory Committee Note (1993) (“A notice [of appeal] filed before the filing of one of the specified motions or after the filing of a motion but before disposition of the motion is, in effect, suspended until the motion is disposed of, whereupon, the previously filed notice effectively places jurisdiction in the court of appeals.”); see also In re Johnson, Nos. 95–5337 & 95–7253, 1996 WL 174379, *1 (D.C. Cir. Mar. 12, 1996) (sua sponte holding appeal “in abeyance pending the district court’s disposition of . . . a motion to amend findings pursuant to Fed. R. Civ. P. 52(b)” because the “post–judgment motion filed in the district court suspends, rather than the destroys, the effect of the notice of appeal”).
2

Case 3:08-cv-00557-JBA Document 248 Filed 07/14/10 Page 3 of 6
reconsideration are ‘an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice,’” Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992) (quoting 18B C. Wright, A. Miller, & E. Cooper, Federal Practice & Procedure § 4478), and reconsideration should be granted only if “the moving party can point to . . . matters . . . that might reasonably be expected to alter the conclusion reached by the court,” Shrader, 70 F.3d at 257; accord Rafter v. Liddle, 288 F. App’x 768, 769 (2d Cir. 2008), or that “might have materially have influenced its earlier decision,” Building Serv. 32B–J Pension Fund v. Vanderveer Estates Holding, LLC, No. 00 Civ. 0364(RWS), 2001 WL 243534, *2 (S.D.N.Y. Mar. 7, 2001) (reciting standard specifically as to Rule 52(b) movant’s burden; internal quotations omitted).
Plaintiffs ask the Court to make factual findings regarding HANH’s provision to Section 8 Households of any list of available accessible units (an “AAUL”); a list HANH produced in response to a preliminary injunction entered in a related case, Gaither v. Housing Authority of New Haven, 3:07cv667(WWE) (D. Conn. Sept. 19, 2007); whether any list produced by HANH contained information about availability and accessibility; whether any individually–named Defendant participated in the production of the lists; and whether the lists were made available to the public.
The Court specifically declined to make any factual findings on the subject matter of the requested findings, all of which relate to questions regarding the existence and sufficiency of any AAUL produced by HANH, because those findings would have been
3

Case 3:08-cv-00557-JBA Document 248 Filed 07/14/10 Page 4 of 6
immaterial to the Court’s disposition of Plaintiffs’ claims. Plaintiffs had argued that HANH had an obligation to produce an AAUL under 24 C.F.R. § 8.28(a)(3) (a regulation promulgated under Section 504), and sought to enforce subsections (2), (3), and (5) of § 8.28(a) through 42 U.S.C. § 1983. But the Court “conclude[d] that although the subsections of § 8.28(a) may provide guidance on whether a proposed accommodation would be reasonable under Section 504 itself, Plaintiffs do not have a private right of action to enforce § 8.28(a) through § 1983.” Taylor, 267 F.R.D. at 40–41 (emphasis in original); see generally id. at 40–47.
A corollary of the Court’s conclusion was that “the private right to an accessible unit list . . . cannot be privately enforced” by Plaintiffs, id. at 46, who therefore could not “proceed on the ground that they were injured by their inability to obtain the list,” id. at 64. To the extent § 8.28(a)(3) guided the Court’s interpretation of Section 504 itself (which Plaintiffs undisputedly have a private right of action to enforce), see id. at 42, 64, the regulation suggested that Section 504 required HANH to give Plaintiffs’ households “any information about ‘available accessible units known to [HANH],’” and therefore to prove Defendants’ liability Plaintiffs would have to show “HANH’s failure to share with its Section 8 Disabled Households, when issuing them vouchers, information in HANH’s possession about available accessible units.” Taylor, 267 F.R.D. at 64–65 & n.30 (emphases in original).
In concluding that Plaintiffs had not done so, the Court found, as a factual matter, that
4

Case 3:08-cv-00557-JBA Document 248 Filed 07/14/10 Page 5 of 6
Plaintiffs . . . did not adduce any evidence at trial that HANH had any information about available accessible units that it failed to share with Disabled Section 8 Households. To the contrary, much of the evidence focused on HANH’s attempts to gather the very information necessary to compile an AAUL. . . . Th[e] evidence shows that to the extent HANH had information about accessible units, it obtained that information for the very purpose of sharing it with, and benefitting, its Disabled Section 8 Households. Id. at 65. The subject matter of the factual findings Plaintiffs now ask the Court to make—whether the AAULs that HANH provided complied with 24 C.F.R. § 8.28(a)(3), whether they contained up–to–date and accurate information about availability and details about accessibility, and whether were made available to the public—could not affect the Court’s determination that Plaintiffs did not show Defendants to be liable under Section 504. Combined with the legal conclusion that HANH’s AAUL–related liability under Section 504 could be shown only by its “failure to share . . . information in [its] possession about available accessible units,” the Court’s factual finding that Plaintiffs did not show “that HANH had any information about available accessible units that it failed to share with Disabled Section 8 Households” demonstrated Defendants’ non–liability and was the basis for the Court’s decision on that claim. The Court declined to make factual findings about the content and provision of any lists HANH actually produced precisely because its legal conclusions reflected that those findings could not alter its decision that Defendants are not liable. For these reasons, Plaintiffs have not shown that the proposed factual findings they ask the Court to make would “materially have influenced its earlier decision,” Vanderveer
5

Case 3:08-cv-00557-JBA Document 248 Filed 07/14/10 Page 6 of 6 Estates Holding, 2001 WL 243534 at *2, or “the availability of new evidence, or the need to correct a clear error or prevent manifest injustice,’” Virgin Atl. Airways, 956 F.2d at 1255, or other “matters . . . that might reasonably be expected to alter the conclusion reached by the court,” Shrader, 70 F.3d at 257. Accordingly, Plaintiffs’ Motion for Additional Findings [Doc. # 245] is denied.
IT IS SO ORDERED. /s/ Janet Bond Arterton, U.S.D.J. Dated at New Haven, Connecticut this 14th day of July, 2010.
6

 
 Case: 10-1144 Document: 103 Page: 1 02/15/2011 209692 44

10-1144-CV

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
REBECCA TAYLOR KARL HUNTER, and HEIWA SALOVlTZ, olblo Others similarly situated.
Pl a i n t i f fs-A ppe ll an t V. THE HOUSING AUTHORITY OF THE CITY OF NEW HAVEN, JIMMY MlLLER, individually, KAREN DUBOIS-WALTON, individually and in her official capacity as Executive Director, and DAVID ALVARADO, lIONA LEFFINGWELL, LOUISE PERSALL, and ROBERT SOLOMON in their official capacities as members of the Housing Authority Commission for the City of New Haven,
Defendants-Appellee

BRIEF OF PLAINTIFFS-APPELLANT

ON APPEAL FROM THE UNITED STATES DISTRICT COURT, DISTRICT OF CONNECTICUT

Briefed and argued by:

Jennifer C. Vickery (Fed. Bar No. CT24089) P.O. Box 1281 594 Prospect Street New Haven, CT 06505-1281 Tel (203) 809-0223 Fax (203) 498-8223

Case: 10-1144 Document: 103 Page: 2 02/15/2011 209692 44
TABLE OF CONTENTS
TABLE OF CONTENTS ........ .......... .. ... ... ... .... ... ........ .......... .. ... .............. ... ....... i
TABLE OF AUTHORITIES .. .............. ... ... ...... .. .............. ........ ... ........... ..... ..... iv
JURISDICTION .... ...... ... ......... ............................................. .... ... ............ .. .... ....v
ISSUES PRESENTED .............................. ..... ............ ... .. .... .... ... .......................vi
STATEMENT OF THE CASE ............... ............... .................................. ....... vii
FACTUAL BACKGROUND ............... .................................... ... ...................... 1
I. TAYLOR MAY ENFORCE 24 C.F.R. §8 .28(a) AND § IOO.204 THROUGH SECTION 1983 .................... ... .... ......... ..... ... ... ................. .. ........ .. .3
A. Legal Authority and Standard of Review .. .......... ....... ......... ............ .. ......... ..4
B . The District'Court' s Analysis Failed to Account for 24 C.F.R. §IOO.204, As Interpreti ve ofthe Fair Housing Act. ........................................................... .4
II. THE DISTRICT COURT ERRED BY USING THE REASONABLE ACCOMMODATIONS FRAMEWORK TO DECIDE CLAIMS UNDER 42 U.S.c. § 3604(f)(2) .......... .. .. ......................................................................... 6
A. The District Court Subsumed the § 3604(f)(2) Claim Into Its Analysis of the Reasonable Accommodation Claims ........................................................7
B. By Offering Mobility Counseling to Section 8 Participants for Other Purposes, Yet Denying It for the Purpose of Finding Wheelchair Accessible Apartments, Defendants Violated § 3604(f)(2).... .. .. ..:........ ..... ....... .. 9
C. HANH Denied Taylor Mobility Counseling By Failing to Inform Section 8 Participants That They Could Use the Service to Find a Wheelchair Accessible Apartment ......... ....... ................. .. ...... ......... ........ ... ....... ........ ......... 10
III. THE DISTRICT COURT'S FINDINGS ON MOBILITY COUNSELING MUST BE REVERSED IN LIGHT OF ADMISSION #1, AND THE RECORD AS WHOLE ................. ..... ........... ...................... ......... .................... 11
11

Case: 10-1144 Document: 103 Page: 3 02/15/2011 209692 44
A. Legal Authority and Standard ofReview .................................................. .11 B. Disregarding Admission # 1, Which States a Policy of Not Providing Mobility Counseling, Was An Abuse of Discretion ........................ .. .............. . 12 C. The Record as a Whole Compels A Finding That HANH Did Not Change Its Mobility Counseling Policy Until After This Lawsuit Was Filed ........ ........ 15 1. Page 57 ... ... ............ .. .. . ....................... .. ......... .. ..... .. ........... 16 2. Page61 .................... . ..... .. ... ... .. . .. .. . .. ... . . . .......... . ... ... . .. . ..... .18 3. Page 62, footnote 31 ....... " "" " .... " .......... ............ ................... 19 IV. HANH' S PATTERN OF REFUSING TO PRODUCE EITHER NOVAK OR HER COMPUTER FILES JUSTIFIES AN ADVERSE INFERENCE IN TAYLOR' S FAVOR ....................................................... ........ ... ..... ..... ... .. .... .. 22 A. Legal Authority and Standard of Review ............................ ............ .. ......... 23 B . Taylor's Evidence of the Timing and Exigent Circumstances of Her Requests Were Sufficient to Create a Prima Facie Case ............................25 C. The District Court's Refusals to Order Forensic Examination of Novak' s Hard Drive Prejudiced Taylor Severely ...........................................................29
III

Case: 10-1144 Document: 103 Page: 4 02/15/2011 209692 44

TABLE OF AUTHORITIES
2922 Shennan Avenue Tenants' Assoc. v. District of Columbia, 444 F.3d 673 , 682 (D.C. Cir. 2006) 999 v. C.LT. Corn., 776 F.2d 866, 870 (9th Cir.1985) Anderson v. Jackson, 2007 WL 458232, *4 (E.D. La. 2007) Assisted Living Assoc. of Moorestown, L.L.C. v. Moorestown Township, 996 F. Supp. 409 435 (D . NJ 1998) Bless in ~ v. Freestone, 520 U.S. 329, 343-44 (1997) Commoditx Futures Trading Comm 'n v. Int'I Financial Services (NY). Inc., 323 F. Sup]:>, 2d 482 (SD.N.Y. 2004). Connors v. Conn. Gen. Life Ins. Co.,272 F.3d 127, 135 (2d Cir.200 I) Cooke v. Allstate Ins. Co., 337 F.Supp.2d 1206, 1210 (C.D.Cal. 2004) Cooter & Gell v. Hartmarx COI'D., 496 U.S. 384, 405 (1990) Dopico v. Goldschmidt, 687 F.2d 644,651, n. 5 (2d Cir.1982) GonzaQa University v Doe, 536 U.S. 273, 281 Havens Realtv Corn. v. Coleman, 455 U.S. 363, 375-76 (1982) Kronisch v. United States, 150 F.3d 112, 126-28 (2d Cir.1998)
Libertx Resources, Inc. v. Philadelghia Housing Authuritx, 528 F. Supp. 2d 553, 568 (ED. Pa. 2007). McDonnell DoulZlas COI'D. v. Green, 411 U.S. 792, 802-04 (1973) Moosman v. Joseph P. Blitz Inc., 358 F.2d 686,688 (2d Cir.1966) Radecki v. Joura, 11 4 F.3d 115, 116 (8th Cir.1997) Residential Funding Corn. v. Degeorge Home Alliance, Inc. , 306 F.3d 99,57-59 (2d Cir, 2002) Selletti v. Carey, 173 F.3d 104, 110 (2d Cir.1999) Switchmusic.com, Inc. v. U.S. Music Corn., 416 F.Supp.2d 812, 818 (C.D.Cal. 2006) Telesca v. Long Island Housing Partnership. Inc., 443 F.Supp.2d 397,406 (E.D.N.Y. 2006) United States v. Kasuboski, 834 F.2d 1345 , 1249 (7th Cir.1987)

31
18 9, 12 31
9 18, 19
9
19
30 9 9,11,12 17 30 13, 14
31 18, 19 14,33 31
30 18
9
18

24 C.F.R. § 8.28(a)
24 C.F.R. § 100.204 42 U.S.C § 3604
Fed. R. Civ. P. 36(b)

10, ll , 12, 37 10, 12,37
12, 13, 14, 15,16,37 21,37

IV

Case: 10-1144 Document: 103 Page: 5 02/15/2011 209692 44
JURISDICTION Jurisdiction in the district court is based on 28 U.S.C. §§ 1331 and I343(a)(3). The plaintiffs claimed violations offederal civil rights statutes. Jurisdiction on appeal is based on 28 U.S.C. § 1292(a)(1). The plaintiffs appeal from a partial denial of a request for injunctive relief. On March 29, 2010, the United States District Court, District of Connecticut (the Hon. Janet Bond Arterton) issued final judgment denying relief on all claims and motions, except plaintiffs' motion for sanctions against defendant Jimmy Miller. On March 31, 2010, the plaintiffs noticed this appeal. Taylor, Docket #244. On April 2, 2010, Plaintiffs filed a Motion to Alter Judgment. The district court denied said Motion on July 14, 2010. Taylor, Docket #248.
v

Case: 10-1144 Document: 103 Page: 6 02/15/2011 209692 44
ISSUES PRESENTED I. MAY TAYLOR PRIVATELY ENFORCE 24 C.F.R. §100.204
AND 24 c.F.R. §8.28(a) THROUGH SECTION 1983? II. IS IT ERROR TO USE THE "SUBSTANTIAL BENEFIT" ASPECT
OF THE SECTION 504 FRAMEWORK TO DECIDE A CLAIM UNDER § 3604(t)(2)? III. MUST THE DISTRICT COURT' S FINDINGS ON MOBILITY COUNSELING BE REVERSED IN LIGHT OF ADMISSION #1 AND THE RECORD AS WHOLE? IV. DID HANH ' S PATTERN OF RESISTING DISCOVERY RELATED TO NOVAK JUSTIFY AN ADVERSE INFERENCE IN TAYLOR'S FAVOR?
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STATEMENT OF THE CASE Defendants are the Housing Authority of the City of New Haven ("HANH"), its current and former Executive Directors, Karen Dubois-Walton and Jinuny Miller, respectively, and its conunissioners. Plaintiffs are wheelchair-bound persons who need to move, but cannot search for accessible apartments effectively alone. They receive Section 8 rental subsidies administered by HANH. In 2006, three such persons sued HANH for assistance searching for wheelchair accessible apartments. PI. Ex. 5, 6 & 7. In 2007, one ofthese filed a federal lawsuit and obtained partial injunctive relief Gaither Docket #59. In 2008, Rebecca Taylor, in response to imminent foreclosure on the building where she lived, sought and won preliminary injunctive reliet: Taylor Docket # 1, 19,22 & 23. In 2009, the district courts certified a class under Rule 23(b)(2), and consolidated discovery with that ofthe Gaither case. Taylor Docket #108 & Gaither Docket # 109. By stipulation, the merged all issues from the related Gaither lawsuit, except for damages, into the instant case. Transcript, pp. 8, line 15 to 9, line 10. Both cases alleged violations of the Fair Housing Act, as amended, Section 504 of the Rehabilitation Act, and 24 C.F.R. §100.204 and 24 C.F.R. §8.28(a). Both sought injunctive relief in the form of independent monitoring, and compensatory and punitive damages.
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FACTUAL BACKGROUND
In July of2006, HUD conducted a Section 504 compliance audit of the Housing Authority ofthe City of New Haven ("HANH" or the "Housing Authority"). Joint Ex. 3. HUD found that the Housing Authority pervasively
noncompliant with HUD's Section 504 regulations. The 2006 report noted that the Housing Authority had not followed through on its promise to issue more Section 8 vouchers to disabled families, to make up for havi ng excluded them from its accessible public housing, and had failed to assist disabled Section 8 participants in lIsing the Section 8 program, by providing services such as a current listing of wheelchair accessible apaliments available for rent, assistance
finding funds to make modifications to non-accessible apartments, or mobility counseling. l Joint Ex. 3. One year after issuing the report, on July 30, 2007,
HANH and HUD executed a second Voluntary Compliance Agreement ("the VCA"). Joint Ex. 52 Executive Director Jimmy Miller did not inform the
1 "Mobility counseling" is a service provided by many large housing authorities to help Section 8 participants search for and ultimately lease a privately-owned apartment. 53:11-54:14. HANH provided such services for other purposes, but refused to do so for disabled families who needed help finding accessible units.
49:15-50:17 PI Ex. 6, p. 46; 51:13-53:5; 68:22-69:8
2 In1994, HUD had performed the same type of investigation on HANH, thereafter executing the same type of a Voluntary Compliance Agreement, which described the steps HANH would take to become compliant with disability laws . Subsequently, HANH did not perform many of the actions required by the first VCA. However, it suffered no consequences whatsoever from HUD as a result. Transcript p. 600, line 2 to p. 601, line 10.
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Housing Authority's Commission of either the 2006 Report or the 2007 VCA. Transcript p. 607, line 25 to p. 608, line 22.
From 1999 through 2007, the Housing Authority was categorized by
IDJD as a "troubled agency." Transcript p.546, lines 23-24. The troubled agency
designation a resulted in part from the fact that the Housing Authority was failing to distribute thousands of the Section 8 vouchers it had been granted. Transcript P. Ex. 30, pp. 166-196. Instead of issuing the vouchers to those who qualified for the Section 8 program, the Housing Authority repeatedly returned millions of dollars in unused Section 8 subsidies to the federal government. Transcript p. 549, lines 19-25. By January of 2008, I-IANH had amassed a $15,000,000 surplus of unused Section 8 funds, and was using just 1,300 of the 3,000 Section 8 vouchers aUotted to it by HUD. Transcript, p. 453, lines 14- 19; Joint 13 at p. 373
It was at this time that named plaintiff Rebecca Taylor learned that a judgment had entered against her landlord. Born witb spina bifida, Taylor
3 From 200 1 to tbe present I-IANH participated in a HUD pilot program called Moving to Work ("MTW" ). The program gives I-IANH flexibility in how it spends Section 8 funding, but does not affect HANH's obligations to comply with civil rights laws. From 2006 to 2008, HANH did not use that flexibility to create any type of housing specifically for the disabled, and added just I3 wheelchair accessible units to its public housing stock. Transcript p. 553, line 4 to 554, line 7; Transcript p. 551, lines 12-25, and p. 577, lines 8 to 24; Transcript p. 578, line 1 to 4.
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depended on a wheelchair, and yet lived in a building with stairways at all exits. Realizing she needed to move, but unable to look by herself, Taylor called her Section 8 Specialist, Denise Senior. Senior never returned the call. PI. Ex. 1. Taylor also sent a fax to HANH's Reasonable Accommodations Coordinator on March 14,2008, requesting help finding an apartment. [d. When 110 one responded, Taylor filed a federal lawsuit on April 15, 2008.'
The district court ordered HANH to give Taylor mobility counseling at a May 7, 2008 hearing. On May 13, 2008, HANH replaced its current Reasonable Accommodations Coordinator, and weeks later, Jimmy Miller stepped down as Executive Director six months ahead of hi s contract renewal date. Joint Ex. 3 1.
ARGUMENT 1. TAYLOR MAY ENFORCE 24 C.F.R. §8.28(a) AND §lUU.204
THROUGH SECTION 1983.

4 Plaintiffs documented at least six other disabled Section 8 participants who had

made the same type of request as Taylor, in written form. None was granted.

PI. Ex. 53, 58, 59,40, and 41. As the evidence about some of the individuals was seaIedto proteet the'lf pnvacy, It IS summarI. zedbel ow bDY th. e.lf.tn.l.tla1s:

Disabled S8 Date ofRequest DateofHANH Evidence of

Individual

Response

Response

L.D.

November 2005

October 2007 PI. Ex. 41, sec. 78

F.M.

December 2006

January 2007 PI. Ex. 40

D. Stokes-Hall

January 2006 December 2006 PI. Ex. 58

K. Gaither

September 2006 November 2006 PI. Ex. 59

R.M.
A.c.

June 2006 March 2007

August 2006 PI. Ex. 40 May 2007 PI. ex. 40

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A. Legal Authority and Standard of Review A district court's conclusions of law are reviewed by this Court de novo, Connors v. Conn. Gen. Life Ins. Co.,272 F.3d 127, 135 (2d Cir.200 1). The Fair Housing Act bas been determined to be privately enforceable, because, unlike the FERPA provisions under consideration in Gonzaga University. the Fair Housing Act carries an express right of action. See e.g..Anderson v. Jackson, 2007 WL 458232, *4 (E.D. La. 2007). Tfthe law sought to be enforced "focuse[s] on 'the aggregate services provided by the State,' rather than 'the needs of any particular person,' it confer[s] no individual rights and thus cannot be enforced by Section 1983. Gonzaga University v Doe, 536 U.S . 273 , 28 I(quoting Blessing v. Freestone, 520 U.S. 329, 343-44 (1997)). The Second Circuit had recognized the enforceability of Section 504 regulations prior to Gonzaga University. but has yet to revisit the issue in light of Gonzaga. Telesca v. Long Island housing Partnership. Inc. , 443 F.Supp.2d 397, 406 (E.D.N.Y. 2006) (citing Oopico v. Goldschmidt, 687 F.2d 644, 651 , n. 5 (2d Cir.1982) ("[P]laintiffs' private right of action under section 504 encompasses a right to allege violations of the [implementing] regulations. "). B. The District Court's Analysis Failed to Account for 24 C.F.R.
§100.204, which Interprets the Fair Housing Act.
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The district court recognized the possibility that 24 C.F.R. § 8.28(a) describes the types of reasonable accommodations that HUD requires a housing authority to grant. But it stopped short by applying this recognition to Section 504 alone, and failed to consider the same issue with respect to 24 C.F.R. §100.204. Plaintiffs contend on appeal that each regulation is independently enforceable, 24 C.F.R. § 8.28(a) implicitly, and 24 C.F.R. § I00.204 expressly. In addition, plaintiffs contend that because 24 C.F.R. §100.204 tracks the same ' "reasonable accommodation" language that appears the Rehabilitation Act, plaintiffs may use it to enforce the accommodations more specifically described in 24 C .F .R. § 8.28(a). Thus, the two regulations together, both of which were relied upon by plaintiffs' Count III, are privately enforceable.
Plaintiffs claimed in Count III that the defendants knowingly violated 24 C.F .R . § 100.204, a regulation issued in part 100 pursuant to the Fair Housing Act. The district did not perfOlm the private right of action analysis on it. However, if it had, the reasoning employed in the decision would have required recognition ofthe plaintiffs' right to privately enforce 24 C.F.R. §100.204.
To decide the 24 C.r-.R. § 8.28(a) claim, the district court first determined
that, after Gonzaga University. a court asked to enforce a regulation through Section 1983 must first answer, as a threshold question, whether the statute
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which the regulation interprets carries with it a private right of action. Next, the
district court evaluated the Rehabilitation Act, searching for language
demonstrating an unambiguous intent by Congress to create rights in a limited
. class of individual s. It found such language, and proceeded to deem the
Rehabilitation Act itself privately enforceable under Gonzaga University.
Nevertheless, the district court deemed 24 C.F.R. § 8.28(a) unenforceable,
because it concerned matters not covered by the language of the ·Rehabilitation
Act itself.'
Yet the above decision-making process trajectory leads to the opposite
conclusion if applied to 24 C.F.R. §100.204, because this regulation tracks
verbatim the language of the Rehabilitation Act, yet was issued in part 100,
pursuant to the FHA and FHAA. First, the district court's threshold question
S The district court arrived at its conclusion in two steps. First, it detennined that although neither the Second Circuit nor the Supreme Court have detennined whether a regulation may be enforced through Section 1983 o n its own, if such enforcement is available, it is only to the extent that the underlying statute already carries a private right of action, whe.ther expressed or implied.s Second, the di strict court reasoned that because all parties were in agreement that the Rehabilitation Act itself carnes an implied right of action, then the relevant question was whether the regulation at issue in this case goes beyond the "scope" of the Rehabilitation Act. The district court answered this question in the negative, apparently because the text of the Rehabilitation Act does not mention the specific things discussed in the regulation. It stated:
Since the regulation cannot provide a right that tbe statute does not, it follows a
fortio ri that no right to specific, distinct, tangible, or concrete things purportedly granted to disabled persons by regulation can be said to fall within the scope of the private right provided by the statute itself, and therefOre no such regulation-based right may be enfOrced through § 1983. [emphasis added].
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about the private enforceability of the statute would be answered affirmatively. Courts within and outside of the Second Circuit have uniformly held that the FHA and FHAA are privately enforceable, and continue to do so following Gonzaga University. See Anderson v. Jackson, 2007 WL 458232, *4 (E.D. La. 2007) (following the Second Circuit, and reviewing cases holding that § 3608 of the Fair Housing Act is not too vague to be privately enforceable against a housing authority). Second, because 24 C.F.R. §100.204 simply reiterates the text of the Rehabilitation Act, as confirm ed by the district court's own analysis, that text is unambiguously rights-creating. Thus, although the district court' s decision does not specifically render decision upon this claim, applying its reasoning to the regulation would compel a finding that 24 C.F.R. §100.204 is privately eniorceable through Section 1983 . ll. THE DISTRICT COURT ERRED BY USING THE
REASONABLE ACCOMMODATIONS FRAMEWORK TO DECIDE CLAIMS UNDER 42 U.S.c. § 3604(t)(2). Defendants argued they had no legal obligation to provide mobility counseling, and the district court adopted this view in its decision. The Decision reasons that mobility counseling is not a part of what it defines as the benefit of the Section 8 program, and therefore the defendants could never be liable for failing to provide it. This reasoning is legally flawed, however,.because (1) its restrictive definition of the benefit was not supported by the cited authority,
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Liberty Resources, and (2) the" benefit" concept, while relevant to claims under
subsection (f)(3) of 42 U.S.C. §3604, has no role in deciding a claim under
subsection (f)(2). Instead, (f)(2) requires that if a defendant chooses to provide
an optional service, such as parking space or mobility counseling, it must ensure
equal access to that same service by disabled persons.
A. The District Court Subsumed the § 3604(1}(2) Claim Into Its Analysis of the Reasonable Accommodation Claims.
The district court determined that, in ruling on the Section 504 claims, it
must first ask what did Congress intended to be the benefit of the Section 8
program. Decision, p. 30-31. Somewhat enigmatically, the district court then
answered its question by stating that "help findin g housing" is not a part of the
benefit, and immediately quoting a case that declares that "aid" in "locating"
housing is a part of the benefit:
These sources make clear that the "individual services offered," Choate, 469 U.S. at 303, constituting the "benefit" of HANH's "program or activity," inc1udes the provision of a voucher to a participant to find a unit; monthly assistance payments to a landlord to cover some p0l1ion of the cost of renting a private dwelling; and, upon request, assistance in a family' s negotiation of a "reasonable rent." But this benefit does not include help finding housing, the provision of housing, or a guarantee that a participant will find suitable housing. As the Liberty Resources court concluded, "[n]either the [1937 Act] nor the HUn regulation promise to provide housing to all eligible participants. Rather, they state that the purposeo[[the Section 8 Program] is to aid families in locating and affording decent housing through the provision of rental subsidies.
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The [Section 8] Program facilitates the placement of low-income families in affordable housing by seeking the assistance of private sector landlords." 528 F. Supp. 2d at 567. Decision, p. 42.
Tbe district court went on to appl y its determination tbat Section 8 does not include help finding housing not only to tbc Section 504 claims, but also to the claims under the FHA and FHAA. Decision, pp. 58 & 71.
Although this process resolves the claim under (1)(3), which contains the "reasonable accommodation" phrasing found in Section 504, it has no bearing on the (1)(2) claim. The federal courts have recognized that (1)(2) and (1)(3) are not co-extensive, in part because their textual differences make (1)(2) applicable to plaintiffs who have not requested a reasonable accommodation. See, ~ Radecki v. Joura, 114 F.3d 115, 116 (8th Cir.1997) (reversing dismissal of claim under § 3604(1)(1 )(A), even in the absence of evidence that plaintiff had alleged denial of a reasonable accommodation under 3604(1)(3)). The text of (1)(2) reads:
§ 3604. Discrimination in the sale or rental of housing and other prohibited practices (I)... [I]t shall be unlawful-
(2) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection witb such dwelling, because of a handicap of-
(A) that person; or (B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or (C) any person associated with that person.
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Plaintiffs alleged in Count I of their Amended Complaint a violation of all
sections of § 3604(f), and echoed the language of the both subsections, each in
separate parts of paragraph 65 of the Third Amended Complaint: 65. The Defendants have intentionally discriminated against the
plaintiffs on account of their disabilities and handicaps, discriminating against them in the provision ofservices and otherwise making dwellings unavailable to them by: a. refusing to maintain a current listing of the available, accessible apartments ("AUL"), such as HANH maintains for non-disabled Section
8 households;
b. refusing to provide the same mobility counseling services as HANH provides to non-disabled Section 8 households;Lemphasis added]. The "provision of services" language of subsection (f)(2) appears not only in the plaintiffs' pleadings and in their proposed Conclusions of Law, but throughout
the motions and memoranda submitted in the course of this case, including plaintiffs' motions for preliminary injunctive relief. In this context, it was an error not to decide the (f)(2) claim independently.
B. By Offering Mobility Counseling to Section 8 Participants for Other Purposes, Yet Denying It for the Purpose of Finding Wheelchair Accessible Apartments, Defendants Violated
§ 3604(f)(2).
It is undisputed that from 2006 to 2008 the Housing Authority had chosen to provide mobility counseling services to non-disabled Section 8 families . They did so in two ways, through outside consultants and in-house. In 2004, the
defendants had executed a contract with a consultant named HOU to provide up
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to $100,000 annually in such services. The parties renewed the contract twice, but by 2007, over half of the funds remained unused. Also, in 2006, defendants directed HANH staff to offer a limited form of mobility counseling to all Section 8 participants if they would agree to move to the subsurbs. Miller related that HANH was under "pressure" from HUD to help Section 8 families move out of high minority, high poverty neighborhoods. Miller testified that "anybody" could receive mobility counseling services as part of the latter effort. Nevertheless, Miller admitted that disabled Section 8 participants were not permitted to use either of these services for the purpose offmding a wheelchair accessible apartment. HANH's Section 8 Director and staff confirmed his testimony, stating that they had never been instructed to provide mobility counseling themselves to help disabled tamilies in need of accessible apaltments, as they did to the general population. Instead, these requests were sent "upstairs" to the Reasonable Accommodations Coordinator. There, the request would languish for months or years until it was ultimately denied per HANH policy, unless the requesting family retained counsel. This practice of refusing requests for mobility counseling to find a wheelchair accessible aprutment, but providing mobi lity counseling to families who wanted it for other reasons, amounted to intentional discrimination under §3604(t)(2).
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C. HANH Denied Taylor Mobility Connseling By Failing to Inform Her She Could Use the Service to Find a Wheelchair Accessible Apartment.
If the court had applied the legal standards relevant to subsection (1)(2), the plaintiffs would have prevailed on that claim. A claim that defendants hid the truth about a service offered in connection with renting housing is actionable. See Havens Realty Corp. v. Coleman, 45 5 U.S . 363 , 375-76 (1982) (holding testers have standing as persons "directly injured" by a defendant's untruthful statements about housing, even if they are not themselves suing for a denial of housing). Taylor herself ultimately received mobility counseling after winning preliminary injunctive relief as part of this lawsuit. Yet by previously hiding from Taylor the availability of mobility counseling, the Housing Authority caused her to remain in an unsuitable dwell ing. Throughout 2006 and 2007, Taylor lived in an apartment that was not wheelchair accessible. She was forced to essentially crawl down the front steps if no one was available to help her exit the building. From March of 2008 forward, Taylor endured extreme anxiety as she wondered whether she would be rendered homeless by the foreclosure proceedings against her landlord. Even assuming arguendo that the district court's conclusion that Taylor was not denied a reasonable accommodation is correct, the question of whether Taylor's rights to be
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informed of and provided mobility counseling were violated remains
unanswered.
III. THE DISTRICT COURT'S FINDINGS ON MOBILITY COUNSELING MUST BE REVERSED IN LIGHT OF ADMISSION #1, AND THE RECORD AS WHOLE. A. Legal Authority and Standard of Review A district court' s decision on the exclusion of evidence by reason of an
admission is reviewed by this Court for abuse of discretion. Commodity Futures Trading Comm ' n v. In!,1 Financial Services (NYl. lnc., 323 F. Supp. 2d 482 (S.O.N.Y.2004).
A matter admitted under Rule 36(a) is conclusively established, unless the court grants a motion to permit the admission to be withdrawn or amended. See fed.R.Civ.P. 36(b); United States v. Kasuboski, 834 f.2d 1345, 1249 (7th Cir.1987); Moosman v. Joseph P. Blitz, Inc., 358 F.2d 686, 688 (2d Cir. 1966). Any evidence that contradicts a binding Rule 36 admission is properly excluded. 999 v. C.l.T. Corp., 776 F.2d 866, 870 (9th Cir.1985); Switchmusic.com, Inc. v. U.S. Music Corp., 416 F.Supp.2d 812, 818 (C.O.Cal. 2006). An admission "cannot be rebutted by contrary testimony or ignored by the district court simply because it finds the evidence presented by the party against whom the admission operates more credible." Cooke v. Allstate Ins. Co., 337 F.Supp.2d 1206, 12 10 (C.O.Cal. 2004). While a court has discretion to permit withdrawal of an
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admission upon motion, such discretion should be exercised only "compelling circumstances," and where the party who obtained the admission will not be prejudiced. Moosman at 688; Commodity Futures, 323 F. Supp. 2d at 510-11 (S.D.N.Y. 2004).
B. Disregarding Admission #1, Which States a Policy of Not Providing Mobility Counseling, Was An Abuse of Discretion.
On July 18, 2007, defendant Jimmy Miller responded to plaintiffs Request for Admissions # 1 as follows: "The Housing Authority does not do searches for apartments." See PI. Ex. 21. The district court impermissibly altered the evidence by disregarding this conclusive admission. Pursuant to Rule 36(b), a matter admitted "is conclusively established" and a party may not introduce contradictory evidence. At the pretrial conference on July 29, 2009, the district court and the parties confirmed their mutual understanding that any evidence offered to regarding HANH's mobility counseling efforts would not be for the purposes of contesting liability on this issue, but solely for collateral purposes, such as proving punitive damages. 7-29-2009 Transcript, p. 27, lines 6-17.
However, throughout trial, defense witnesses attempted to contradict Admission #1. For example, under questioning from the district court, Miller tried again, first admitting that under his leadership, HANH mobility counseling
"
to disabled families, Transcript, p. 766, lines 1-19, but adding that he had read
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"records" indicating that HANH staff had nevertheless given mobility counseling all along, "although there was not authorization." Id. 6
Plaintiffs objected to two of the most blatant of these attempts. First, plaintiffs objected to relevance and lack of timeframe when HANH's newest reasonable accommodations coordinator as of May 13, 2008, Laura Woodie, testified that she had provided mobility counseling for disabled Section 8 participants before actually taking the job. Transcript, p. 862, line 15 to p. 866, linc 12. Thc district court permittcd the tcstimony. Transcript, p 864, line 16. Second, plaintiffs objected when defense counsel attempted to elicit trom HANH ' s former Section 8 Director, Iris Santiago, generalized assertions that she had performed mobility counseling on an ad hoc basis in 2006 and 2007. Transcript, pp. 1437-1438. Plaintiffs specifically pointed to Admission #1 as requiring that the testimony be excluded. The district court reserved judgment, see Transcript, p. 1439, but its subsequent finding that "HANH did not, on a programmatic or policy-wide basis, deny mobility counseling to those who
6 Miller's testimony shows that all of the two programs through which mobility counseling occurred during his tenure-Expanded Housing Opportunities and Brookside-served the general population, and were not available as a reasonable accommodation to disabled famili es who needed wheelchair accessihle apartments. Miller described that Laura Woodie worked in HANH's public housing department prior to becoming the Reasonable Accommodations Coordinator on May 13,2008, and part of her job was to relocate pubic housing families so that HANH could demolish the Brookside public housing complex. Transcript, pp. 36-37; It. Ex. 29.
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requested it, even during the claimed liability period" squarely contradicts Admission #1, and appears to credit the objected-to testimony. Decision at 57.
A court has discretion to permit an amendment to an admission if it "promotes the presentation of the merits" and will not prejudice the opposing party. See Fed. R. Civ. P. 36(b). The trial testimony by Laura Woodie about pre-2008 mobility counseling directly contradicted the admission. In addition, it contravened the pretrial conference ruling that any evidence about mobility counseling would not be admissible to contest liability. Moreover, the district court' s decision to pennit this testimony was a mid-trial reversal of its own prior rulings that defendants could not withdraw or supplement Admission #l. This ruling rewarded the defendants' strenuous efforts to shield Novak and from deposition and prevent plaintitls from discovering her correspondence, see Transcript, pp. 278, line 20 to 295 , line 8, at a time when plaintiffs could no longer do anything about it. In short, the district couri' s action in refusing to exclude this testimony from evidence, and failing to regard the matter in the admission as conclusively established, was an abuse of discretion that has severely prejudiced the plaintiffs.
C. The Record as a Whole Compels A Finding That HANH Did Not Change Its Mobility Counseling Policy Until April 2008, After This Lawsuit Was Filed.
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The bulk of the evidence and testimony offered at trial about individuals who received mobility counseling described events that took place after these lawsuits had commenced. Hence, it was irrelevant to liability. Such evidence did not contradict that, up until April 2008, HANH's policy was to deny mobility counseling based on disability. All of the individuals whom the evidence showed actually received mobility counseling prior to April 2008 had filed lawsuits against HANH.
Plaintiffs challenge the evidentiary basis of district court's findings of fact on the absence of a practice of denying mobility counseling to families seeking accessible apartments as unsupported by the record as whole, or even the court's own citations to the record. This brief addresses each such fmding in order of its appearance in the Decision.
1. Page 57 The district court placed great weight upon its finding that Jimmy Miller had provided mobility counseling for two disabled individuals, Lona Mitchell and Louis Morrison. It accurately stated that Mitchell and Morrison each had requested mobility counseling before April 2008, in June of2006 and November of 2007 respectively. The court then treated those dates as the dates when Miller approved the requests. However, such request dates do not show anything by themselves, because at HANH, such requests often sat for years unanswered.
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Mitchell's case is illustrative: her file shows that she received a letter stating she had been "approved" in September of 2007, but she was not actually provided mobility counseling until March of2009. Transcript, p. 983 , line 20 to p. 984, line 17.
The record as a whole shows that in August 2007, Mitchell and Morrison were part of the group of five families whose paperwork was submitted by the newly created Reasonable Accommodations Committee to the HANH Commission. The Committee recommended that they receive mobility counseling, but needed the Commissions approval to pay for the,services. The Committee 's written recommendation was then "edited" by HANH's Commission, and the resulting resolution was then approved. Although Commission Chair Solomon disputed the accuracy ofthe minutes, he admitted that as written they appear to record that two families were excluded from receiving mobility counseling, because they had not commenced litigation against HANH. After the vote, HOU in fact provided mobility counseling to just the three families (Rhonda Gaither, Shirley Hampton, and Dorothy StokesHall) who had filed .lawsuits. The services were provided using HANH's existing contract with HOU, through their consultant, Greg Brunson.
At trial, Heinrichs ac.lmitted under cross-examination that the two non-
litigant families were Mitchell and Morrison. Exhibits drawn from HANH's
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files showed that Mitchell and Morrison finally received their reasonable accommodation approval decision letters in 2009 and 2008, respectively. Laura Woodie, HANH's Reasonable Accommodations Coordinator from May 2008 forward, testified to having personally provided Mitchell the mobility counseling services in 2009, three years after her 2006 request. Thus, while Mitchell and Morrison did ultimately receive mobility counseling, each of them waited much longer to receive help than they would have ifHANH had used its existing contract with HOU to assist them in August of2007. The plaintiffs
submit that these additional parts of the record strengthen, rather than weaken,
the case that, at least until April 2008, HANH had an overall policy of refusing mobility counseling as a reasonable accommodation.
2. Page 61 The district court further found that "only a small number of disabled voucher holders asked for mobility counseling." Decision at 61. However, this finding ignores overwhelming evidence that the reason so few asked for mobility counseling is that the defendants had conveyed to disabled Section 8 participants that mobility counseling was not an option for them. First, in March of2006, when Miller himself revised HANH' reasonable accommodation forms- papers which defendants touted as their primary device for communicating the services available to Section 8 participants-he did not
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list mobility counseling as one of the options. PI. Ex. 34 & 36. Second, from 2006 thtough April 2008, Miller continued to sign or authorized pleadings and other representations that HANH would not provide mobility counseling to Section 8 participants. Admission # 1; PI. Ex. 5,6 and 7. For example, at Taylor 's hearing for prelim inalY injunctive relief on May 7, 2008, Miller was present and did not object when HANH's counsel answered the court's query about whether HANH would at that time give mobility counseling to Taylor by saying " [W]e can't provide that, we don't have a contract." PI. Ex. I , p. 20, lines 13-18. Third, HANH 's Section 8 staff confirmed that lbey were not instructed about lbe avai lability of mobility counseling to help lbeir disabled participants find Section 8 apartments until at least April of2008. Fourth, HANH's internal manual of Section 8 procedures says nothing about the availability of mobility counseling. Fifth, William Heinrichs, the Reasonable Accommodations Coordinator under Miller, testified in hi s January of 2008 deposition lbat neither he nor anyone else at HANH was currently providing mobility counseling as a reasonable accommodation. Sixth, every Section 8 participant who testified confirmed that prior to April of2008, no HANH employee had ever told them they could ask for or have mobility counseling. Seventh, and most significantly, HANH did not add mobility counseling to the list of available reasonable
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accommodations on its fonns for Section 8 participants until after this lawsuit commenced on April 22, 2008, PI, Ex. 35 & 37.
3. Page 62, footnote 31 The court cited page 103 of the transcript as evidence that even if Maureen Novak, the reasonable accommodation coordinator, did not believe the Housing Authority was legally obligated to provide mobility counseling as a
reasonab le accommodation, "she was overridden by her direct supervisor,
Miller, who believed he did have such an obligation." Decision, footnote 31. Page 103 confirms that Miller admits to a "philosophical" disagreement with Novak, but does not suggest that he actually overruled her decisions. The exchange goes on for five more pages, without any indication that Miller ovenuled any of Novak's decisions about mobility counseling requests. On the contrary, Miller testifies that he continued to sign off on the reasonable accommodations decisions made by Novak until thc day she resigned. Transcript, p.1 08, lines 1-14. Miller also stated that hi s disagreement with Novak about mobility counseling did not cause him to remove her from the position, or to reassign the reasonable accommodation decision-making function to another employee--even though he did reassign some of her other duties. Tnmscript, p.I07, lines 9-19. Thus, the section of the testimony provides no
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support for the finding that Miller had "overridden" Novak's anti-mobility counseling policy.
Moreover, the transcript as a whole compels the opposite conclusion. Mill er himself testified that HANH did not start offering mobility counseling as a reasonable accommodation until after he left the role of Executive Director in June of2008. See Transcript, p.759, lines 5-8; pp. 761, line 8 to 762, line I; p. 766, line I I. Miller's basic defense strategy at trial was to claim that he had wanted the Housing Authority to provide mobility counseling as a reasonable accommodation, but was prevented from following his better judgment. Miller also blamed many other things for stopping him from changing HANH's policies while he was Executive Director, including HUD, various mobility counseling companies, HANH's budget problems, the "state of disarray" at HANH prior to his arrival, and even a flood in Indiana. When Miller was presented with a June of2007 letter denying mobility counseling signed by Novak, see PI. Ex. 40, p. 4, he exclaimed, "[Y]ou should talk to her.'" While
7 Novak was an individual defendant in the Gaither litigation filed in May 0[2007. The plaintiffs sought and received an expedited discovery schedule in that case. 'When Novak "went on medicalleavc" to Nebraska in August of2007, plaintiffs sought and received assurances from defense counsel that she would be made available to be deposed, Thereafter, parties engaged in a two-year hattie over whether Novak would return to Connecticut. The plaintiffs' filed multiple motions to compel, sanction, and appoint a forensic computer expert to investigate the defendants' representations that Novak's computer hard drive had been accidentally erased. As to Novak's deposition, the motions were resolved by the parties' stipulation that neither side would call Novak as a witness at trial. The court denied the other motions in its Decision.
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Miller may well have been implying that Novak was to blame for the policy, he never testified that he corrected it. Thus, the district court's finding that any decisions by Novak to deny mobility counseling were "overridden" by Miller is plain error.
Ultimately, three facts can be derived from Miller's testimony affirming that he personally signed off on each of the reasonable accommodation decision letters denying requests for mobility counseling. First, Miller clearly knew that disabled families were requesting and being routinely denied mobility counseling. See PI. Exhibit 40. Second, Miller must have known, based on the absence of any specific facts articulated within the letters he was signing, that the requests were being denied in a blanket manner-i.e., not tor individualized reasons. Id. Whereas other denial letters signed by Miller typically included comments such as that the request was incomplete or did not seem to be necessary based on the severity ofthc disability, the mobility counseling denials did not include such comments. Id. Third, Miller's testimony admits that he was aware that he had the authority to order Novak to change the policy, but did not do so. In sum, regardless of whether these letters reflected the personal views of Novak or Miller, the evidence shows that, as an organization, HANH's practice was to deny requests for mobility counseling as a reasonable accommodation, until Novak's departure in August 0[2007.
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IV. HANH'S PATTERN OF REFUSING TO PRODUCE EITHER NOVAK OR HER COMPUTER FILES JUSTIFIES AN ADVERSE INFERENCE IN TAYLOR'S FAVOR THAT SHE REQUESTED MOBILITY COUNSELING AS A REASONABLE ACCOMMODATION. In the course of discovery, defendants at various points represented
that the computer hard drive used by Maureen Novak, HANH's Reasonable Accommodations Coordinator until August of 2007, was lost, or that it had been "wiped." Plaintiffs filed and renewed motions asking the district court to sanction the defendants by requiring them to pay for a forensic examination of the computer's hard drive, or to pay to transp0l1 Novak back to Connecticut from Nebraska to be deposed. Defendants then claimed the hard drive was not
lost and had not been erased, and complied with Order # 101 and #134 by
producing certain forms of electronic discovery in May and June 2009. A week before trial, defendants disclosed thousands more "newly discovered" emails from the time period when Novak worked at HANH. Plaintiffs immediately renewed their motions for sanctions, but asked that the district cgurt infer intent to discriminate from both the untimely emails and the misrepresentations about Novak's hard drive that defendants. The district court reserved judgment. Its Decision ultimately held that the onus was on the plaintiffs to have proven post· trial that the late email disclos ures contained relevant material. However, it did not analyze the result of the defendants pattern as a whole, or whether their false
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statements and/or failure to preserve the Novak hard drive justified the requested adverse inference.
A. Legal Authority and Standard of Review A district court's decision on a motion for discovery sanctions may be reviewed by this Court for abuse of discretion. See. lUb Selletti v. Carey. 173 F.3d 104, 110 (2d Cir.1999). "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Cooter & aell v. Hartmarx Com., 496 U.S. 384, 405 (1990). An adverse inference instruction serves the remedial purpose, "insofar as possible, of restoring the prejudiced party to the same position he would have been in absent the wrongful destruction of evidence by the opposing party." Kronisch v. United States, ISO F.3d 112, 126-28 (2d Cir.1998). "The party seeking an adverse inference must adduce sufficient evidence from which a reasonable trier of fact could infer that ' the destroyed [or
unavailable1evidence would have been of the nature alleged by the party
affected by its destruction' but Courts must take care not to ' hold[] the prejudiced party to too strict a standard of proof regarding the likely contents of
the destroyed [or unavailable1evidence,' because doing so 'would subvert the ...
purposes of the adverse inference, and would allow parties who have ...
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destroyed evidence to profit from that destruction.';.... Accordingly, where a party seeking an adverse inference adduces evidence that its opponent destroyed potential evidence (or otherwise rendered it unavailable) in bad faith or through gross negligence (satisfying the "culpable state of mind" factor), that same evidence of the opponent's state of mind will frequently also be sullicient to permit a jury to conclude that the missing evidence is favorable to the party (satisfying the "relevance" factor)." Residential Funding Com. v. Degeorge Home Alliance, Inc. , 306 F.3d 99, 57-59 (2d Cir, 2002).
The burden-shifting analysis articulated in McDonnell Douglas Com. v. Green, 41 1 U.S. 792, 802-04 (1973) requires the plaintiffs in this case to produce evidence of a prima facie case of reasonable accommodation. 2922 Sherman Avenue Tenants' Assoc . v. District of Columbia, 444 F.3d 673 , 682 (D.C. Cir. 2006). Under the FHAA, The burden then shifts, such that "[tlhe ultimate burden at trial of proving that a proposed accommodation is not
" reasonable or that plaintiffs cannot be accommodated rests with defendants." Assisted Living Assoc. of Moorestown, L.L.c. v. Moorestown Township, 996 F. Supp. 409, 435 (D. NJ 1998).
B, Taylor's Evidence of the Timing and Exigent Circumstances of Her Requests Was Sufficient to Create a Prima Facie Case of Discrimination Under the FHAA,
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The district court's subsidiary factual findings state a prima facie case for Rebecca Taylor. Nevertheless, the court refused to fmd that Taylor had met her burden, because it viewed the date of the request as a critical piece of evidence tbat was highly contested.
Because the voice mail request certainly would have fallen within a period of time when the defendants admit to not providing mobility counseling to the disabled, the precise date was wmecessary to establish Taylor's prima facie case. In fact, the testimony of William Heinrichs at the preliminary injunction hearing revealed that the Housing Authority had been aware of the named plaintiff' s immediate need for assistance for two weeks prior to the hearing, but had not done anything. See PI. Ex. I (Transcript of PI Hearing). At trial, Heinrichs answered differently, but then admitted again under crossexamination that he was advised of Taylor's dire need to move, but did not offer her mobility counseling: Q. Were you aware before the lawsuit that Rebecca Taylor was seeking
reasonable accommodation from HANH?
A. No, I was not. MR. SWIFT: I have nothing further, your Honor . THE COURT: All right, cross-examination. CROSS-EXAMINAnON BY MS. VICKERY: Q. Mr. Heinrichs, is it your testimony that you never spoke with me about Ms. Taylor, Rebecca Taylor, prior to attending her preliminaryinjunction hearing? A. No, it is not.
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Q. So you did in fact have communication with me between the time that Ms. Taylor's case was filed on April 22nd, 2008, and the time of the hearing on May 7,2008, correct? A. That is correct. Q. And it was about her needs and how to reasonably accommodate her,
correct?
A. Does that have to be a yes or no? Q. Yes. A. I don't remember. Q. It's possible that it was about her needs for reasonable accommodation, is it
not?
A. Yes.
Q. When you attended the actual preliminary injunction hearing, you testified--
you indicated through your attorney, correct, that you had in fact been communicating with me in trying to resolve Ms.Taylor's issue, correct? A. I guess so. I'm sorry if I'm not remembering it well.
Q. And, in fact, Ms. Taylor had not been assisted in any -- she had not been
given mobility counseling within that timeframe of April 22"' through May 7th, correct? A. She had not, to my knowledge.
Q. You hadn't given it to her?
A. That is correct.
Transcript, pp. 1277-78.
Given the fact that part of the infonnation HANH and Heinrichs had
received about Taylor on April 22, 2008 was a pleading that attached a default
judgment on a foreclosure against her landlord, Taylor's request for mobility
counseling as a reasonable accommodation was clearly an emergency request.
A defendant's actual knowledge that a disabled plaintiff needs a reasonable
accommodation trumps technical requirements. See Radecki v. Joura, 11 4 F.3d
115, 116 (8th Cir.1997) . In this case, it is undisputed that Taylor's needed to
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receive mobility counseling on an emergency basis had been clearly communicated to Heinrichs, the proper person at HANH, in several ways, and HANH chose to adhere to its policy of not providing mobility counseling until after the district court had announced it intended to order relief for Taylor on May 7, 2008.
Just as significantly, prior to the events that triggered this lawsuit, HANH had been aware of Rebecca Taylor's need for mobility counseling for years, inasmuch as its staff had in spected the apartment, and had undoubtedly seen that it has stairs at all points of egress. When D enise Senior met on a yearly basis with Ms. Taylor, she undoubtedly saw that Taylor is confined to a wheelchair. Whether or not Taylor's Section 8 worker directly refused to help her find a new apartment when she was faced with foreclosure, it should be troubling enough that HANH staff members had for years ignored Ms. Taylor's obvious need for a wheelchair accessible apartment.
C. The District Court's Refusals to Order Forensic Examination of Novak's Hard Drive Prejudiced Taylor Severely.
If the district court is correct in finding the exact date necessary, its absence must be construed in Taylor's favor, inasmuch as the defendants either failed to preserve Novak's hard drive . Taylor was intense ly fearful of becoming homeless and perhaps losing custody of her daughter-so much so that her testimony at the preliminary injunction hearing had to be stopped for a period in
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order to collect herself. PI. Ex. J. Extreme anxiety may have kept Taylor from recalling the date of her last Section 8 recertification, but she was certain she had called Denise Senior in March. Yet, defendants made no effort to contradict Taylor on this issue while she was alive. Despite having requested and received two weeks to prepare for Taylor's preliminary injunction hearing, defense counsel did not call the obvious witness, Denise Senior.
Instead, HANH waited until trial to put Senior on as a witness. Transcript, pp. 154 1 to 1572. Senior testified that that if Taylor had requested a reasonable accommodation her HANH file would not show it, because Senior would have sent the request to Novak, without keeping a copy in the Taylor file . Senior' s testimony shows that Novak's computer records could be expected to show Taylor's request. Pl. Ex. 32; Transcript, p. 1567, line 17- to p. 1568, line 14; Jt. Ex. 19, p.27. PI. Ex. 33. On this record, an adverse inference was justified.
CONCLUSION
Plaintiffs pray this Court will reverse the district court's conclusions that the plaintiffs lack a private right to enforce 24 C.F.R. § 8.28(a) through 24 C.F.R. § 100.204; decide the § 3604(f)(2) claim and recertify subclass (b) class as to mobility counseling. Alternatively, plaintiffs pray that this Court reverses the denial of plaintiff' Fed. R. Civ. P. Rule 37 motions, and imposes an adverse inference that Taylor requested mobility counseling.
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Respectfully Submitted,

ATIORNEY FOR PLAINTIFFS-APPELLANT

REBECCA TA

, ET AL

/ s/----c+-<>~:-::-:_J'---::.~--=-----:-::
Jennifer C. Vicke ed. Bar No. CT24089) P.O. Box 1281 New Haven, CT 06505- 1281 Tel (203) 809-0223 Fax (203) 498-8223 Email : vickerylaw@me.com

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ADDENDUM TO BRIEF OF THE PLAINTIFFS-APPELLANT

TABLE OF CONTENTS

Document Description 24 C.F.R § 8.28 24 C.F.R § 982.504 24 C.F.R § 100.204 Fed. R. Civ. P. 36(b)

Paf!,e 33 34 35 36

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ADDENDUM TO BRIEF OF THE PLAINTIFFS-APPELLANT

TABLE OF CONTENTS

Document DescrilJ/ion

Tab

24 C.F.R § 8.28

A

24 C.F.R 982.504

B

24 C.F.R 100.204

C

Fed. R. Civ. P. 36

D

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§8.28

24 CFR Subti tle A (4- 1-03 Edition)

handicap requiring the accesstblllty feature8 of the vaca.nt unit.
(b) When offering an accessible unit to an applicant not having handicaps reQulrln!: the accessibility features of the unit, the owner or manager may re~ Quire t he applicant to agree (and may Incorporate this agreement In the lease) to move to a non-accessible unit wh en available.
f 8.28 HOUlling certificat e and h ousing vouch er programs.
(a) In carrying out the requirements or this Bubp&rt. a recipient. ILdlllllL~ Isterlng II. Section 8 Existing Housing Oertillca.te program or a. housing voucher program shall:
(1) In providing notice of the a.vaH~ ability and nature of hOUSing a5Slstance for low-Income Camilles under program requirements, adopt suitable means to assure tba.t the notice reaches eligible Individuals with handi-
caps: (2) In Its activities to encourage par-
ticipation by owners, Include encouragement of partlcipa.tion by owners h~vlng accessible uni ts:
(3) When Issuing a Housing Certificate o r Ho usIng Voucher to a family which Includes an individua.1 with ha.ndlcaps Include a current listing of available accessible units known to the PHA and. If necessary. otherwise assist the family In locating an available accessible dwelling unit:
(4) Take Into account the specIal p:'Oblem of ability to loe&te an accessible unit when considering requests by eligible Individuals with handicaps Co r extensions of Housing Certificates or HolUling Vouchers; and
(6) If necessary as a reasonable accommodation (or a person with disabilIties, approve a family request for an exception rent under §982.5CYI(b)(2) (or a regular tenancy under the Section 8 certlnca.te program so tba.t the program Is readily accessible to and usa~ ble by persons with disabilities.
(b) In order to ensure tbat PArtlcI~ 1J!'Ulljf OWIlIlr1! do /.Iut dh;crlmlIllj,1AI In the recipient's federally assisted program. a. recipient sha.11 enter Into a HUD-a.pproved contract wlt.h participating owners, which contract shall In-

clnde necessary assurances of non~ dlscrimlnatlon.
1M FR 2023:\, .In"" 2. 111l1li• .,. amllru".d at 63 FH.:&3853. Apr. 30. 19981
f 8.29 Hom eownership programs (sectio n, 235(1) and 285m, Turnkey m and lndia n h O\l, ing m\lt\lal selfhelp prOgrfUlI lI).
Any hOUSing unl ts newly constructed or rehablUtated for purchase or single family (including semi-attached and attached) units to be constructed or rehabilitated In a program or activity receIving Federal !lnanclal assistance shall be made a.cceulblo upon reques t of the prospecUVtl IJUYllf' tC t.be nature oC the handicap of an expected occu~ pant so requires. In such case, the 1JU.)'llr shall con~ul~ wIth the lStlller or bullder/sponsor regarding the specific cleslgn features to be provided.. If accesslbtJIty features selected at the option of the homebuyer are ones covered by the standards prescribed by IB.32, those features shall comply with the standards prescribed In IB.32. The buyer shall be permitted to clepart from particular specifications of these standards In oroer to accommodate his or her specillc handicap. The cost of making a facility accessible uncler this paragraph may be Included in the morttrage amount within the allowable mortgage limits, where applicable. To the extent s uoh costs exceed a.llowable mortgage limits. they may be passed on to the prospective homebuyer. SubJect to maximum sale8 price li.mltatlons (see 24 CFR ~.320.)
f 8.30 Rental rehabilitation p rogranl.
Each grantee or state recipient in the rental rehabilitation program sha.lI.
l:IulJJoo~ w \..be priority In 2.4 CFR
5U.IO(I) and in accordance with other requirements in 24 CFR pa.rt 511. give priority to the selection of projects that will result in dwelling uuits being made readily accessible to ancl usable by indiViduals With handicaps.
[$I yEt 20233, June 2, ~: 53 J1R 28.l15. July
2II. 11i118)
18.31 Historic proper tiu.
lC historic properties become s ubject to alterations to whlcb this part applies t he requirements of 14.1.7 of the standards or 18.32 of this pa.rt 'shall

146

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§ 100.204

24 CFIl Subtitle B, Ch. I (5-1-01 EdHlon)

par t of suCh a. ~storation agreement a provision requIring that the tena.nt pay In to an Interest bearing escrow a c-
count, over a reasonable pertod, a rea-
sonable amount of money not to exceed t!ie cost. of the restorations. The Interest In a ny such account shall accrue to t!ie benefit of the tenant.
(b) A landlord may condition permission for a modlflca.tlon on the renter providing a reasonable description of the proPOI:lOO modifications as well all reasonable assurances that the work wlll be done In a workmanlike man ner Illld that any requi red buUdlni" permtta
wUl be obtl\1ned. (c) The application of paragraph (a)
of this section may be Illustrated by the following examples:
£Zampl, (1J: A tenant with a handicap asks
hl8 or ber landlord for permls$lon to Install r.ab b&l1I In ~he bat.hroom at his or ber own expense. I~ 15 necessary to relntorce ~he:
walls with bl ookllll' between at.uds In order
to amI the rrab bars. I t Is unlawful l or the Iwdlord to refUse to permit the t.en&nt, at
the tenant'a own II.IpeDSe, from matiIII' t he
llIodtncaLlolIS necessary to add thlllrl1lb \.111.1'11, Hewever. tbe landlord may condition permlSaJon for the mOIU t1C~Hl0n on t.Ile tena nt all'reelnr to restore tlle bathroom to tlle cond~tl on that e:dsted before t he modtncatlon,
reasonable wear and tear IlIcept.cd. n would
be reasonable for tbll landlord to require the t.enant to remove tlle grab bars at the end of ~he tenaMY. 'l'he landlord may also reasonably require tbat the wall to which tile srllb
bllrs are to be attacbed be repaired and re~tOI'tlll 1.0 Its original wmllLlou, n!IlSOulI.ble wear and tear oIoopted. However, It would be
unreaaonabl o (or ~be l andlord to require t be tenant t.o remove t.he blooklng. ~Ince ~be 1'(:In(orced walls will not Interfere In any way wHh the land lord's or the nezt tenUlt" use an " AnJnym nnt or t hO! p....m lM" Ilnd m ay be needed by !lOme t\J.ture tenant..
Erampl~ (2): An appllcant for rental housIIlII' bas a cblld who uses a .. he~lebalr. 'l'be batbroom door In t.he dwelling unit Is too
nurow to permit t.he wheelchair to pass.. TIle applicant ulal the IUldloro for per mtsalon to widen the doorway at the applicant's own e,x-
pense. It Is unlawfUl for t.he landlord to flfu.se to permit t.be applicant to make the
rr_Odlnea~lon . F'urt.ber, ~ho landlord m.a,y II~,
In usual clnrumal.&nCell, condition prtrml...lon
fo r t.be mOllincatlon on the a pplicant paylna: fo r the doorway to he narrowed at the end of the 1 _ beeaWle a Wider doorway ....n not Interfere with the landlord's or the neIt tenant's use and enjoyment of t.be preml3e:l:.

1 100.204 Reasonable accommodations,
(a) It sha.ll be unla.wful for any person to refuse to make reasonable a ccommodations tn rwes, policies. practices. or services, wben such accommodations may he necessa.ry to affol"d a. handicapped person equal oppor tuni t y to use Md enjoy a dwelling unit, including public and common use a.reas.
(b) The a ppllca.tion of tJlls section may be ill ustrated by t he Collowing examples;
Ezomp/e (I); A bUnd applicant for rental bousllll' wants li vil In a dwelling unit with a _IUIf IIYII L1ow . 'l'btl bullLlhl1r hili II ng pcU" DOIICY. I~ " a violation of 1100.204 for the owner or man....er of the apar~ent comple..: to ret'u30 to pe r mit the applicant to live In the apartment with a _ Ing eye d.... because, w1tJiout the _IIII' eye d~, tbe bli nd person will not have an equal oDPOf1;unlty to U$6 and onJOY a dwelling.
£Zamp/e (2); Pror ress Cardens b a 300 Wli' apartmoM comple:r wltb @ parldng .paces
whleb are available to tenants and I'uests or
Pro&resa OtnJens on II /1"1 CO/Ife IIr.t IOWd
basis, Jobn applies for bOUSIIII' In Pf'O&"res5 Ganlens, Jobn l~ mobili ty Impaired and b unabla to walll: more than a short. dlst.ance and therefore requests tbat a parking space near his unit be reserved ror him !IO be 11'111 not have to walll: very tar to Iron to hiS apartment. It Is a Viola ti on of 1 100,:1)4 for the owner or manall'er or Prol"I"IIIS Gardens to ref'use to make t bls accomm odation . Wlebnut a rnllflrvad RfI'InO!, ,Joh n mi ght"" unahlp. to live In Proeress Gardens at all or, whlln hll h&8 to parll: In a space rar from his unit. mll"ht have ,reat dlffieulty Irettllll' (rom hIs car to bia apartme nt unit. '!'be accommodation thsreCore 18 nO(l~y to afford J ohn an equal opportunity to Ulle and enjoy a dwellIng. Tho accommodation IS reasonable becall$6 It Is flaslble and praeUcal under tbe c lroumstances.
I LOO.205 De.lgn and constru ction requirements,
(a) Covered multlf.amlly dwelHngs Co r nrst occupancy after Ma.rcb 13, 1991 sball be desIgned and constructed to have at least one building entrance on an accesstble route unless it Is Impractical to do so be¢a.use of the te rrain or unusual characteristics oCthe site. For purposes or this section , a covered multtramlly dwelling sbll be deeme<l to be dll5igned and constructed for first occupancy on or before March 13, 1991, If the dwelling Is occupied by that date, or If the last bundlng permit o r renewal t:.bereof Cor t:.be dwelling Is Issued by a

632

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§982.504

24 CFR Ch. IX (4-1-10 Edition)

more unit sizes In all or a designated pa.rt Of the FHA Jurisdiction within the FMR area,
(g) HUD review of PHA payment ;rond(ltd ICheduiel. (I) HUD w1ll monitor rent burdens of CamBles assisted In a. PHA's voucher program. HUD wi ll re-
view t h e PHA '5 paymen t standa.rd for a
particular unit size j{ HUD finds that 40 percent or more of such fam1l1es occupying units of that unit size curr ently pay more than 30 percent of ad-
jus ted monthly Income as the family
share. Such determination may be !>Moo on the most recent examinations of family Income.
(2) After snch review, HUD may, at Its discretion, require the PHA to modIfy payment standard amounts for any unit size on the PRA payment standa.rd schedule. HUD may require the PHA to establish an Increased payment standa."!I amount within the hastc range.
[64 FR 26648. Ma.y 14, 1999; 64 J'R 49658. Sept. It, 1999, as amended I t 64 FR 569lt, ~,. 21 , mill; GIl FR 16822. Mar. 30. 2000: 65 FR SB8'74.
();:t. 2, 2000; 66 FR 30568, June 6, 2001; 61 I>' R M688. Sept. 4. 200\1]
1982.504 VOl.lcher tenancy: Payment .landard for fam.ily in re~truchU'ed .ub sidized multifamily project.
(a.) This section applies to tenant;.. ba.sed assistance under the vOl.lche r p~gram If all the follOwing conditions are applicable:
( 1) S l.Ich tenant-based voucher assist-
a."l.Ce Is prOVided to a family pursuan t
to §401.421 of t h is title when HUD h as approved a restructuring plan, and the participating administrative entity has
approved the use of tenant-based as-
sistance to provide continued assistIL:::Ice for such families. Such tenantbased voucher assistance is provided for a family previously receiving p~oject-bued assistance In an eItgtble p!'Oject (as denned in 1401.2 of th is ttUe) at the time when the projectbased assistance terminates.
(2) The family chooses to remaJn In the restructured project with tenantbased assistance under the pl'Oll"ram &.:ld leases a unit that does not exceed the family unlt size;
(3) The lease for such assisted. ten&.:lcy commences during the first year a."ter the project.-based assistance terminates.

(b) The Initial payment ltandard. for the fa.mlly under such Initial lease Is the sum of the rea.wnable rent to owner for the uni t pll.ls the utlIJty allowance for tenant-pa.ld utilities. (Determination of ~uch Initial payment standard for the family Is not subject to paragr aph s (cXI) and (c)(2) of § 982.505. Except for dete rmi.Datlon of the Initial payment standard as speCifically provided In paragraph (b) of this section. the payment standard a nd housing assistance payment for the family during the HAP contract tenn shall be determined in accordance with 19B2.IiOb.)
l84 FR 2664lI. May 14. 1_1
1 982.505 Vou cher tenancy: How to cal· c ulate housing auistan ce payment.
(&) Uu of poument ;rondard. A payment stancl&rd. Is used to calculate the monthly housing assistance payment for a family. The "payment standard" Is the maximum monthly subsidy payment.
(b) Amowltt of monthly hounng a.uiJtana! paumant. The PHA !!hall pay a monthly housing assistance payment on behalf of the family that. is equal to the lower of:
(I) The payment standard for the family minus the total tenan t payment: or
(2) The gross rent minus the total tenant payment.
(c) Poyment $tandard for familll. (1) The paymen1.. sl.&.IIdard fut' Lhe family Is the lower Of:
(I) The payment standard amount for the fam1ly unit size: or
(11) The payment st.an<1ard a mount for the Site of the dwelling unit rented by the family.
(2) If tbe PHA has established a separate payment standard amount for a designated. part of an FMR &rea In accords..nce with 1982.503 (Including an 6.1:celltlon payment standard amount as determined In accorda.nce with 1982.503(b)(2) and 1982.503(0», and the dwellt ng unit Is located In such clesIrnl-ted part, the PHA must UB8 t he appropriate payment standard amount for such designated part to calculate the payment standard for the family. The payment standard for the family shall be calculated In accordance with

616

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Case: 10-1144 Document: 103 Page: 44 02/15/2011 209692 44
Rule 36. Requests for Admission
(b) Effect of an Admission; Withdrawing or Amending It.
A matter admitted under this ru le is concl usively established unless the court, on motio n, permits the ad mission 10 be withdrawn or amended. S ubject to Rille! tite), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded rnat it would prejudice the requesti ng party in maintaining o r defending the action o n the meri ts. An admission under this rule is not an admission for any other purpose and cannot be used againsl lhc pany in any other proceeding.
37

 
 Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 1 of 21
APPEAL, CLOSED, EFILE, HBF, REFCNF
U.S. District Court United States District Court for the District of Connecticut (New Haven)
CIVIL DOCKET FOR CASE #: 3:08−cv−00557−JBA

Taylor v. New Haven Housing Authority et al Assigned to: Judge Janet Bond Arterton Referred to: Judge Holly B. Fitzsimmons (Settlement) Case in other court: 8mc108 Cause: No cause code entered
Plaintiff

Date Filed: 04/15/2008 Date Terminated: 03/29/2010 Jury Demand: None Nature of Suit: 443 Civil Rights: Accommodations Jurisdiction: Federal Question

Rebecca Taylor o/b/o similary situated

represented by Jennifer C. Vickery PO Box 1281 New Haven, CT 06505−1281 203−809−0223 Fax: 203−248−0223 Email: vickerylaw@me.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Plaintiff Karl Hunter
Intervenor Plaintiff Grady Reynolds TERMINATED: 03/10/2009
Intervenor Plaintiff heiwa salovitz

represented by Jennifer C. Vickery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer C. Vickery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jennifer C. Vickery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant New Haven Housing Authority

represented by Donn A. Swift Lynch, Traub, Keefe &Errante 52 Trumbull St., Po Box 1612 New Haven, CT 06506 203−787−0275 Email: dswift@ltke.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy P. Pothin Lynch, Traub, Keefe &Errante 52 Trumbull St., Po Box 1612 New Haven, CT 06506 203−787−0275 Email: tpothin@ltke.com

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 2 of 21

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jimmy Miller I/O as Executive Dir

represented by Donn A. Swift (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
David Alvarado I/O as member of Housing Authority Comm for New Haven

represented by Donn A. Swift (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Iiona Leffingwell I/O as member of Housing Authority Comm for New Haven

represented by Donn A. Swift (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Louise Persall I/O as member of Housing Authority Comm for New Haven

represented by Donn A. Swift (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Robert Solomon I/O as member of Housing Authority Comm for New Haven

represented by Donn A. Swift (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Jason Turner I/O as member of Housing Authority

represented by Donn A. Swift (See above for address)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 3 of 21

Comm for New Haven

LEAD ATTORNEY ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Karen Dubois−Walton

represented by Donn A. Swift (See above for address) ATTORNEY TO BE NOTICED

Timothy P. Pothin (See above for address) ATTORNEY TO BE NOTICED

Date Filed 04/10/2008 04/15/2008
04/15/2008
04/15/2008 04/15/2008 04/15/2008
04/17/2008 04/21/2008 04/22/2008 04/22/2008 04/22/2008 04/22/2008

# Docket Text
1 MOTION for Leave to Proceed in forma pauperis by Rebecca Taylor. (Falcone, K.) (Entered: 04/11/2008)
2 ELECTRONIC ORDER granting 1 Motion for Leave to Proceed in forma pauperis. THIS IS THE ONLY NOTICE COUNSEL WILL RECEIVE FROM THE COURT. Signed by Judge Joan G. Margolis on 4/15/08. (Margolis, Joan) (Entered: 04/15/2008)
3 COMPLAINT against New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner, filed by Rebecca Taylor. (Attachments: # 1 ExhibitA, # 2 ExhibitB, # 3 ExhibitC, # 4 ExhibitD)(Brown, S.) (Entered: 04/17/2008)
4 MOTION for New Haven Judge Assignment re 3 Complaint, by Rebecca Taylor.Responses due by 5/6/2008 (Brown, S.) (Entered: 04/17/2008)
5 Order on Pretrial Deadlines: Motions to Dismiss due on 7/15/08. Amended Pleadings due by 6/14/2008 Discovery due by 10/15/2008 Dispositive Motions due by 11/14/2008. Signed by Clerk on 4/15/08. (Brown, S.) (Entered: 04/17/2008)
6 ELECTRONIC FILING ORDER − PLEASE ENSURE COMPLIANCE WITH COURTESY COPY REQUIREMENTS IN THIS ORDER. Signed by Judge Janet Bond Arterton on 4/15/08. (Attachments: # 1 PART2)(Brown, S.) (Entered: 04/17/2008)
USM 285 forms together with Summons/Notice of Lawsuit/Request for Waiver of Service of Summons and all instructions mailed to IFP plaintiff's counsel to complete and return to Clerk's office. (Brown, S.) (Entered: 04/17/2008)
7 ORDER finding as moot 4 Motion for Assignment to New Haven Courthouse. Signed by Judge Janet Bond Arterton on 4/21/2008. (Tooker, A.) (Entered: 04/21/2008)
8 MOTION for Preliminary Injunction by Rebecca Taylor.Responses due by 5/13/2008 (Vickery, Jennifer) (Entered: 04/22/2008)
9 MOTION to Amend/Correct 3 Complaint, by Rebecca Taylor.Responses due by 5/13/2008 (Attachments: # 1 Proposed Amended Complaint)(Vickery, Jennifer) (Entered: 04/22/2008)
10 PROPOSED ORDER re 8 MOTION for Preliminary Injunction by Rebecca Taylor. (Vickery, Jennifer) (Entered: 04/22/2008)
11 MOTION for Summary Judgment Conference by Rebecca Taylor. (Attachments: # 1 Proposed Motion, # 2 Statement of Material Facts)(Vickery, Jennifer) (Entered: 04/22/2008)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 4 of 21

04/22/2008
04/23/2008
04/29/2008 04/29/2008 04/29/2008 05/05/2008 05/06/2008
05/07/2008 05/07/2008
05/07/2008 05/08/2008 05/09/2008 05/12/2008 05/13/2008

12 Memorandum in Support re 8 MOTION for Preliminary Injunction filed by Rebecca Taylor. (Attachments: # 1 Exhibit 1, p.1−3, # 2 Exhibit 1, p.4−5, # 3 Exhibit 1, p.6−8, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, p.1−2, # 9 Exhibit 6, p.5−6, # 10 Exhibit 7, p.1−2, # 11 Exhibit 7, p.5−6, # 12 Exhibit 7, p.5−6, # 13 Exhibit 8, p.1−3, # 14 Exhibit 8, p.4−8, # 15 Exhibit 8, p.9−14, # 16 Exhibit 9, # 17 Exhibit 10, # 18 Exhibit 11, # 19 Exhibit 12, # 20 Exhibit 13, # 21 Exhibit 14, # 22 Exhibit 15, # 23 Exhibit 16, p.1−3, # 24 Exhibit 16, p.4−5, # 25 Exhibit 17, # 26 Exhibit 18, # 27 Exhibit 19, # 28 Exhibit 20, # 29 Exhibit 21, # 30 Exhibit 22, # 31 Exhibit 23, # 32 Exhibit 24)(Vickery, Jennifer) (Entered: 04/22/2008)
13 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephonic Scheduling Conference set for 4/24/2008 at 4:00 PM before Judge Janet Bond Arterton. Plaintiffs' counsel shall initiate the conference call. Chambers: 203−773−2456. (Tooker, A.) (Entered: 04/23/2008)
14 Endorsement ORDER granting 9 Motion to Amend Complaint; granting 11 Motion for pre−filing Conference. Signed by Judge Janet Bond Arterton on 4/28/2008. (Falcone, K.) (Entered: 04/29/2008)
Reset Deadlines as to 8 MOTION for Preliminary Injunction. Responses due by 5/6/2008 (Falcone, K.) (Entered: 04/29/2008)
15 ORDER TO SHOW CAUSE Show Cause Hearing set for 5/7/2008 09:00 AM in Courtroom Two, 141 Church St., New Haven. A Pre−Filing conference will be held concurrently, before Judge Janet Bond Arterton. Signed by Judge Janet Bond Arterton on 4/28/2008. (Falcone, K.) (Entered: 04/29/2008)
16 NOTICE of Appearance by Donn A. Swift on behalf of New Haven Housing Authority (Swift, Donn) (Entered: 05/05/2008)
17 Memorandum in Support re 8 MOTION for Preliminary Injunction Objection of the Defendants to the Plaintiffs' Motion for Preliminary Innjuctive Relief filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 05/06/2008)
18 AFFIDAVIT re 17 Memorandum in Support of objection Motion, Signed By William Heinrichs filed by New Haven Housing Authority. (Torday, B.) Modified on 5/22/2008 to creat link to Doc. #8 (Torday, B.). (Entered: 05/07/2008)
19 Minute Entry. Proceedings held before Judge Janet Bond Arterton: taking under advisement 8 Motion for Preliminary Injunction; Motion Hearing held on 5/7/2008 re 8 MOTION for Preliminary Injunction filed by Rebecca Taylor.Class discovery to close on 8/7/08, with Motion for Class Certification due on 8/7/08. Total Time: 2 hours and 10 minutes(Court Reporter S. Montini.) (Torday, B.) (Entered: 05/07/2008)
20 Marked Exhibit ans Witness List by Rebecca Taylor. (Torday, B.) (Entered: 05/07/2008)
21 PROPOSED ORDER re 19 Order on Motion for Preliminary Injunction,, Motion Hearing, by Rebecca Taylor. (Vickery, Jennifer) (Entered: 05/08/2008)
22 MOTION for Joint Stipulated Order for Preliminary Injunctive Relief on Counts II and III Order by New Haven Housing Authority. (Swift, Donn) (Entered: 05/09/2008)
Set Deadlines/Hearings: Telephonic conference set down for May 13, 2008 at 3:00 p.m. Attorney Swift shall initiate the conference call. Chambers: 203−773−2456. (Tooker, A.) (Entered: 05/12/2008)
23 ORDER granting 8 Motion for Preliminary Injunction in accordance with the parties' Joint Stipulated Order. Signed by Judge Janet Bond Arterton on 5/13/2008. (Tooker, A.) (Entered: 05/13/2008)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 5 of 21

05/15/2008
05/20/2008 05/22/2008 05/27/2008
06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/16/2008 06/17/2008 07/06/2008 07/06/2008 07/22/2008
07/22/2008

24 Proposed Joint STIPULATed Order for Preliminary Injunctive Relief on Counts II and III by Rebecca Taylor, New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Falcone, K.) (Entered: 05/19/2008)
25 ENTERED IN ERROR: NOTICE by New Haven Housing Authority of First Set of Interrogatories and Request for Production (Swift, Donn) Modified on 5/22/2008 (Falcone, K.). (Entered: 05/20/2008)
26 Docket Entry Correction, Document #25 Entered in Error − Per the local rules, discovery is not to be filed re 25 Notice (Falcone, K.) (Entered: 05/22/2008)
27 ORDER: APPROVED AND ADOPTED re 24 Stipulation for preliminary injunctive relief filed by Robert Solomon, Jimmy Miller, Jason Turner, Louise Persall, Rebecca Taylor, Iiona Leffingwell, David Alvarado, New Haven Housing Authority, DENIED AS MOOT 8 MOTION for Preliminary Injunction filed by Rebecca Taylor. Signed by Judge Janet Bond Arterton on 5/27/08. (Torday, B.) (Entered: 05/28/2008)
28 SUMMONS Returned Executed by Rebecca Taylor. David Alvarado served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
29 SUMMONS Returned Executed by Rebecca Taylor. Iiona Leffingwell served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
30 SUMMONS Returned Executed by Rebecca Taylor. Jimmy Miller served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
31 SUMMONS Returned Executed by Rebecca Taylor. New Haven Housing Authority served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
32 SUMMONS Returned Executed by Rebecca Taylor. Louise Persall served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
33 SUMMONS Returned Executed by Rebecca Taylor. Robert Solomon served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
34 SUMMONS Returned Executed by Rebecca Taylor. Jason Turner served on 5/2/2008, answer due 5/22/2008. (Vickery, Jennifer) (Entered: 06/16/2008)
35 MOTION for Default Entry 55(a) as to all defendants by Rebecca Taylor. (Attachments: # 1 Exhibit A)(Vickery, Jennifer) (Entered: 06/16/2008)
36 ANSWER to 3 Complaint, with Jury Demand by New Haven Housing Authority.(Swift, Donn) (Entered: 06/16/2008)
37 TEXT ORDER denying as moot as answer was filed on 6/16/08 35 Motion for Default Entry 55(a). Signed by Clerk on 6/17/08. (Torday, B.) (Entered: 06/17/2008)
38 MOTION to Consolidate Cases. Case to be consolidated with 3:07−cv−667 by Rebecca Taylor.Responses due by 7/27/2008 (Vickery, Jennifer) (Entered: 07/06/2008)
39 Memorandum in Support re 38 MOTION to Consolidate Cases. Case to be consolidated with 3:07−cv−667 filed by Rebecca Taylor. (Attachments: # 1 Exhibit A)(Vickery, Jennifer) (Entered: 07/06/2008)
40 OBJECTION re 38 MOTION to Consolidate Cases. Case to be consolidated with 3:07−cv−667 filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/22/2008)
41 MOTION for Extension of Time until September 1, 2008 Respond to Request for Admmissions by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon. (Swift, Donn) (Additional attachment(s) added on 7/23/2008: # 1 Motion for Enlargement) (Falcone, K.). (Entered: 07/22/2008)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 6 of 21

07/23/2008 07/25/2008
07/30/2008 08/07/2008 08/07/2008 08/07/2008
08/08/2008 08/14/2008
08/20/2008
08/22/2008 08/22/2008 08/25/2008 08/26/2008 08/27/2008 09/17/2008 09/17/2008 09/17/2008

42 Docket Entry Correction adding corrected PDF to document re 41 MOTION for Extension of Time until September 1, 2008 Respond to Request for Admmissions (Falcone, K.) (Entered: 07/23/2008)
43 TRANSCRIPT of Proceedings held on 5/7/08 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Transcript of Preliminary Injunction Hearing. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 8/15/2008. Redacted Transcript Deadline set for 8/25/2008. Release of Transcript Restriction set for 10/23/2008. (Montini, S.) (Entered: 07/25/2008)
44 ORDER granting 41 Motion for Extension of Time, over objection, to and including 9/1/2008. Signed by Judge Janet Bond Arterton on 7/29/2008. (Tooker, A.) (Entered: 07/30/2008)
45 MOTION to Intervene by Karl Hunter.Responses due by 8/28/2008 (Attachments: # 1 Intervenor Complaint, # 2 Affidavit)(Vickery, Jennifer) (Entered: 08/07/2008)
46 MOTION to Certify Class by Rebecca Taylor.Responses due by 8/28/2008 (Vickery, Jennifer) (Entered: 08/07/2008)
47 Memorandum in Support re 46 MOTION to Certify Class filed by Rebecca Taylor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Vickery, Jennifer) (Entered: 08/07/2008)
48 Consent MOTION for Extension of Time until January 6, 2008 Count II − Motion to Certify Class by Rebecca Taylor. (Vickery, Jennifer) (Entered: 08/08/2008)
49 Inasmuch as counsel are agreed that discovery in Taylor and Gaither should be consolidated, albeit for different reasons, plaintiff's motion to consolidated discovery, which is expected to achieve time and cost efficiencies 38 is GRANTED. Signed by Judge Janet Bond Arterton on 8/14/2008. (Tooker, A.) (Entered: 08/14/2008)
50 NOTICE OF E−FILED CALENDAR: A telephonic scheduling conference will be held September 25, 2008 at 4:00 p.m. before Hon. Janet Bond Arterton. Attorney Vickery shall initiate the conference call. Chambers: 203−773−2456. (Tooker, A.) (Entered: 08/20/2008)
51 RESPONSE First Request for Admissions dated July 1, 2008 filed by Iiona Leffingwell. (Swift, Donn) (Entered: 08/22/2008)
52 RESPONSE First Request for Admissions dated July 1, 2008 filed by Jimmy Miller. (Swift, Donn) (Entered: 08/22/2008)
Docket Entry Correction Per local rules discovery is not to be filed re 51 Response, 52 Response (Malone, P.) (Entered: 08/25/2008)
53 ENTERED IN ERROR: RESPONSE filed by Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) Modified on 8/27/2008 (Falcone, K.). (Entered: 08/26/2008)
54 Docket Entry Correction Docket entry 53 entered in error− Per the local rules, discovery is not to be filed re 53 Response (Falcone, K.) (Entered: 08/27/2008)
55 MOTION for Default Entry 55(a) as to all defendants by Karl Hunter, Rebecca Taylor. (Vickery, Jennifer) (Entered: 09/17/2008)
56 ORDER granting 45 Motion to Intervene. Intervenor Complaint shall be filed forthwith. Signed by Judge Janet Bond Arterton on 9/17/2008. (Tooker, A.) (Entered: 09/17/2008)
57 OBJECTION re 55 MOTION for Default Entry 55(a) as to all defendants filed by New Haven Housing Authority. (Attachments: # 1 Appendix Motion for Extension of Time to Respond to the Motion for Class Certification)(Swift, Donn) (Entered:

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 7 of 21

09/18/2008 09/22/2008 09/25/2008 09/25/2008 09/25/2008
09/29/2008 09/29/2008 10/02/2008
10/14/2008 10/14/2008 10/23/2008 10/23/2008 10/31/2008 11/03/2008 11/03/2008 11/04/2008

09/17/2008)
58 Intervenor COMPLAINT, filed by Karl Hunter.(Vickery, Jennifer) (Entered: 09/18/2008)
59 OBJECTION re 46 MOTION to Certify Class filed by the Plaintiffs filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon. (Attachments: # 1 Exhibit A)(Swift, Donn) (Entered: 09/22/2008)
60 ORDER denying 48 Motion for Extension of Time, on consent, as reflected in the record of colloquy with counsel dated 9/25/2008. Signed by Judge Janet Bond Arterton on 9/25/2008. (Rajendra, R.) (Entered: 09/25/2008)
61 ORDER denying 55 Motion for Default Entry 55(a), on consent, as reflected in the record of colloquy with counsel dated 9/25/2008. Signed by Judge Janet Bond Arterton on 9/25/08. (Rajendra, R.) (Entered: 09/25/2008)
62 Supplemental Scheduling Order: Defendants' supplementary opposition to 46 Plaintiffs' Motion for Class Certification shall be filed by October 2, 2008. Plaintiffs' reply shall be filed by October 13, 2008. The parties shall file status reports with the Court no later than November 3, 2008. A status conference is scheduled for November 10, 2008 at 3:00 p.m. Discovery shall conclude by November 15, 2008. Dispositive motions shall be filed by December 15, 2008. Signed by Judge Janet Bond Arterton on 9/25/2008. (Rajendra, R.) (Entered: 09/25/2008)
63 MOTION to Amend/Correct 46 MOTION to Certify Class, 47 Memorandum in Support of Motion by Karl Hunter, Rebecca Taylor.Responses due by 10/20/2008 (Vickery, Jennifer) (Entered: 09/29/2008)
64 MOTION Modify Protective Order re 49 Order on Motion to Consolidate Cases, by Karl Hunter, Rebecca Taylor.Responses due by 10/20/2008 (Attachments: # 1 Text of Proposed Order)(Vickery, Jennifer) (Entered: 09/29/2008)
65 Supplemental Memorandum in Support re 46 MOTION to Certify Class Certification filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Swift, Donn) (Entered: 10/02/2008)
66 OBJECTION re 64 MOTION Modify Protective Order re 49 Order on Motion to Consolidate Cases, filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 10/14/2008)
67 RESPONSE re 59 Objection, 65 Memorandum in Support of 46 Motion to Certify Class, filed by Karl Hunter, Rebecca Taylor. (Vickery, Jennifer) Modified on 10/15/2008 to create link to document (Falcone, K.). (Entered: 10/14/2008)
68 MOTION to Compel by Karl Hunter, Rebecca Taylor.Responses due by 11/13/2008 (Vickery, Jennifer) (Entered: 10/23/2008)
69 Memorandum in Support re 68 MOTION to Compel filed by Karl Hunter, Rebecca Taylor. (Attachments: # 1 Exhibit A, Requests, # 2 Exhibit B, 10−1−08 Email, # 3 Exhibit C, 10−16−08 Email, # 4 Exhibit D, Affidavit of Counsel, # 5 Exhibit E, Miller Depo)(Vickery, Jennifer) (Entered: 10/23/2008)
70 ENTERED IN ERROR: NOTICE by New Haven Housing Authority Notice of Compliance to Plaintiff''s Request for Production dated July l9, 2008 (Swift, Donn) Modified on 11/3/2008 (Bauer, J.). (Entered: 10/31/2008)
Docket Entry Correction re 70 Notice (Other): Pursuant to Local Rules, discovery is NOT to be filed. (Bauer, J.) (Entered: 11/03/2008)
71 STATUS REPORT by Rebecca Taylor. (Vickery, Jennifer) (Entered: 11/03/2008)
72 STATUS REPORT Re: Discovery and Class Certification by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall,

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 8 of 21

11/08/2008 11/10/2008
11/10/2008
11/10/2008
11/13/2008
11/14/2008 11/14/2008 11/14/2008 11/19/2008 11/19/2008 11/21/2008 12/02/2008

Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 11/04/2008)
73 OBJECTION re 68 MOTION to Compel Dated October 22, 2008 filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 11/08/2008)
74 ORDER setting forth schedule; granting absent opposition 63 Plaintiffs' Motion to Amend Proposed Class Definition; denying without prejudice to renew 64 Plaintiffs' Motion to Modify Protective Order to Notify Putative Class Members; and denying as moot on the representation of Defendants' counsel regarding electronic discovery 68 Plaintiffs' Motion to Compel. Signed by Judge Janet Bond Arterton on 11/10/2008. (Rajendra, R.) (Entered: 11/10/2008)
Set Deadlines/Hearings: Defendants' supplemental objection to 46 Plaintiffs' Motion for Class Certification shall be filed by November 17, 2008. Plaintiffs' reply shall be filed by December 1, 2008. The parties shall file a supplemental Rule 26(f) Report seven (7) days after the ruling on Plaintiffs' Motion for Class Certification. All discovery that is not dependent on certification of a class shall be concluded by January 15, 2009. Absent any class certification, the parties motions for summary judgment as to the individual Plaintiffs cases shall be filed by March 13, 2009. If no such motions are filed, the parties Joint Trial Memorandum shall be due March 27, 2009. (Rajendra, R.) (Entered: 11/10/2008)
75 Minute Entry for proceedings held before Judge Janet Bond Arterton: Motion Hearing held on 11/10/2008 re 63 MOTION to Amend/Correct 46 MOTION to Certify Class, 47 Memorandum in Support of Motion filed by Rebecca Taylor, Karl Hunter, 68 MOTION to Compel filed by Rebecca Taylor, Karl Hunter, 64 MOTION Modify Protective Order re 49 Order on Motion to Consolidate Cases, filed by Rebecca Taylor, Karl Hunter. Total Time: 1 hours(Court Reporter Sharom Montini.) (Torday, B.) (Entered: 11/12/2008)
76 Memorandum in Support re 46 MOTION to Certify Class filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Affidavit Laura Woodie, # 2 Affidavit Iris Santiago, # 3 Reasonable Accommodation Form #1, # 4 Letter dated July 9, 2008 from Karen DuBois−Walton, # 5 Letter dated August 11, 2008 from Karen DuBois−Walton, # 6 Reasonable Accom Req Form#2)(Swift, Donn) (Entered: 11/13/2008)
77 AMENDED COMPLAINT against all defendants, filed by Rebecca Taylor.(Vickery, Jennifer) (Entered: 11/14/2008)
78 MOTION to Substitute Party by Rebecca Taylor. (Vickery, Jennifer) (Entered: 11/14/2008)
79 MOTION to Amend re: 77 Complaint by Karl Hunter, Rebecca Taylor.Responses due by 12/5/2008 (Attachments: # 1 Exhibit Proposed Second Amended Complaint)(Vickery, Jennifer) Modified on 11/17/2008 to create link to document(Falcone, K.). (Entered: 11/14/2008)
80 ORDER granting 78 Motion to Substitute Party. ; granting 79 Motion to Amend/Correct. Second Amended Complaint to be filed forthwith. Signed by Judge Joan G. Margolis on 11/18/08. (Pesta, J.) (Entered: 11/19/2008)
81 AMENDED COMPLAINT (Second) against all defendants, filed by Karl Hunter, Rebecca Taylor.(Vickery, Jennifer) (Entered: 11/19/2008)
82 ANSWER to 81 Amended Complaint by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner.(Swift, Donn) (Entered: 11/21/2008)
83 MOTION to Intervene by Grady Reynolds, Karl Hunter, Rebecca Taylor.Responses due by 12/23/2008 (Attachments: # 1 Affidavit G. Reynolds, # 2 Exhibit Application to proceed in forma pauperis, # 3 Exhibit Proposed Intervenor Complaint)(Vickery, Jennifer) (Entered: 12/02/2008)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 9 of 21

12/16/2008 12/16/2008 12/17/2008 12/23/2008
01/06/2009 01/23/2009 01/29/2009
01/29/2009 01/29/2009 02/03/2009 02/03/2009 02/10/2009 02/11/2009
02/11/2009

84 Emergency MOTION for Preliminary Injunction by Karl Hunter, Rebecca Taylor, Grady Reynolds.Responses due by 1/6/2009 (Vickery, Jennifer) (Entered: 12/16/2008)
85 Memorandum in Opposition to Plaintiffs' re 84 Emergency MOTION for Preliminary Injunction filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 12/16/2008)
86 Order finding as moot 84 Motion for Preliminary Injunction, pursuant to plaintiffs' counsel. Signed by Judge Janet Bond Arterton on 12/17/2008. (Tooker, A.) (Entered: 12/17/2008)
87 Supplemental AFFIDAVIT re 59 Objection, 76 Memorandum in Support of Motion, 65 Memorandum in Support of Motion, re: 40 Motion to Certify Signed By Laura Woodie filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) Modified on 12/24/2008 to create link to document(Falcone, K.). (Entered: 12/23/2008)
88 OBJECTION re 83 MOTION to Intervene filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 01/06/2009)
89 MOTION for Extension of Time until 03/15/09 Discovery Set Deadlines/Hearings,, by Karl Hunter, Rebecca Taylor. (Vickery, Jennifer) (Entered: 01/23/2009)
90 MOTION to Appoint Expert, MOTION to Compel (Responses due by 2/19/2009, ), MOTION for Sanctions (Responses due by 2/19/2009, ) by Rebecca Taylor. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, pp.1−15, # 9 Exhibit 8, pp. 16−21, # 10 Exhibit 8, pp. 22−29, # 11 Exhibit 8, p.30, # 12 Affidavit)(Vickery, Jennifer) (Entered: 01/29/2009)
91 Memorandum in Support re 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions filed by Rebecca Taylor. (Vickery, Jennifer) (Entered: 01/29/2009)
92 PROPOSED ORDER re 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions, 91 Memorandum in Support of Motion by Rebecca Taylor. (Vickery, Jennifer) (Entered: 01/29/2009)
93 ORDER granting 89 Motion for Extension of Time, with consent. Signed by Judge Janet Bond Arterton on 2/2/2009. (Tooker, A.) (Entered: 02/03/2009)
Set Deadlines/Hearings: All discovery will close 3/16/2009; any dispositive motions will be filed by 4/16/2009; counsel are expected to be trial ready 10/1/2009. (Tooker, A.) (Entered: 02/03/2009)
94 NOTICE of Appearance by Timothy P. Pothin on behalf of New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner in addition to Attorney Donn A. Swift (Pothin, Timothy) (Entered: 02/10/2009)
95 ENTERED IN ERROR: OBJECTION of Defendant Housing Authority of the City of New Haven to the Plaintiffs' Second Interrogatories, Admissions and Requests for Production to the Housing Authority of the City of New Haven filed by New Haven Housing Authority. (Swift, Donn) Modified on 2/12/2009 (Falcone, K.). (Entered: 02/11/2009)
96 Objection re 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Memorandum in Support, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit)(Falcone, K.) (Entered: 02/12/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 10 of 21

02/12/2009 02/13/2009 02/16/2009 02/16/2009 02/16/2009 02/25/2009 02/25/2009 02/26/2009 02/26/2009
02/27/2009 03/04/2009
03/06/2009 03/10/2009 03/10/2009 03/10/2009

Docket Entry Correction entered in error− per the Local Rules, discovery is not to be filed re 95 Objection, (Falcone, K.) (Entered: 02/12/2009)
97 Oral Argument on Motions to Certify Class, to Appoint Expert, to Compel, and to Intervene has been set down for 2/26/2009 at 10:00 a.m. in Courtroom Two, 141 Church Street, New Haven, CT before Judge Janet Bond Arterton. (Tooker, A.) (Entered: 02/13/2009)
98 REPLY to Response to 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions filed by Rebecca Taylor. (Attachments: # 1 Exhibit A)(Vickery, Jennifer) (Entered: 02/16/2009)
99 MOTION for Protective Order by Rebecca Taylor.Responses due by 3/9/2009 (Vickery, Jennifer) (Entered: 02/16/2009)
100 Memorandum in Support re 99 MOTION for Protective Order filed by Rebecca Taylor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Affidavit of Counsel)(Vickery, Jennifer) (Entered: 02/16/2009)
101 MOTION to Appoint Counsel to Represent Class by Rebecca Taylor. (Attachments: # 1 Affidavit of Counsel)(Vickery, Jennifer) (Entered: 02/25/2009)
102 RESPONSE re 101 MOTION to Appoint Counsel to Represent Class filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Pothin, Timothy) (Entered: 02/25/2009)
103 ORDER granting 99 Motion for Protective Order, on consent, as set forth on the record 2/26/2009. Signed by Judge Janet Bond Arterton on 2/26/2009. (Tooker, A.) (Entered: 02/26/2009)
104 Minute Entry for proceedings held before Judge Janet Bond Arterton: Motion Hearing held on 2/26/2009 re 46 MOTION to Certify Class filed by Rebecca Taylor, 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions filed by Rebecca Taylor, 83 MOTION to Intervene filed by Grady Reynolds, Rebecca Taylor, Karl Hunter, 99 MOTION for Protective Order filed by Rebecca Taylor, 101 MOTION to Appoint Counsel to Represent Class filed by Rebecca Taylor. Total Time: 1 hours and 45 minutes(Court Reporter Sharom Montini.) (Torday, B.) (Entered: 02/27/2009)
105 ORDER REFERRING CASE to Magistrate Judge Holly B. Fitzsimmons for Discovery Purposes and for the Purpose of Conducting a Settlement Conference. Signed by Judge Janet Bond Arterton on 2/26/2009. (Garguilo, B) (Entered: 03/03/2009)
106 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing set as to 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions for 3/12/2009 10:00 AM in Courtroom Four−Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. (Milligan, C.) (Entered: 03/04/2009)
107 MOTION to Continue by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. Motions referred to Holly B. Fitzsimmons(Pothin, Timothy) (Entered: 03/06/2009)
108 ORDER granting 46 Motion to Certify Class; denying 83 Motion to Intervene; granting 101 Motion to Appoint Counsel Appointed Jennifer C. Vickery for Karl Hunter and Rebecca Taylor as Class Counsel. Signed by Judge Janet Bond Arterton on 3/9/09. (Torday, B.) (Entered: 03/10/2009)
109 ORDER granting 107 Motion to Continue Hearing set for 3/12/09. Signed by Judge Holly B. Fitzsimmons on 3/10/09. (Milligan, C.) (Entered: 03/10/2009)
110 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Hearing set as to 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions for 3/26/2009 10:00 AM in Courtroom Four−Annex, 915 Lafayette Blvd., Bridgeport,

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 11 of 21

03/11/2009 03/11/2009 03/12/2009 03/12/2009 03/17/2009 03/17/2009 03/24/2009 03/24/2009 03/24/2009
03/26/2009 03/30/2009 03/31/2009 03/31/2009 04/07/2009
04/08/2009

CT before Judge Holly B. Fitzsimmons. (Milligan, C.) (Entered: 03/10/2009)
111 Consent MOTION for Extension of Time until April 11, 2009 Responding to Discovery by Rebecca Taylor. Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 03/11/2009)
112 Consent MOTION for Extension of Time until April 27, 2009 Responding to Discovery by Rebecca Taylor. Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 03/11/2009)
113 MOTION to Compel by Rebecca Taylor.Responses due by 4/2/2009 (Attachments: # 1 Exhibit A, 11−19−08 Objections, # 2 Exhibit B, Vickery Email, # 3 Exhibit C, Aff. of Counsel, # 4 Exhibit D, Krug case)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 03/12/2009)
114 Memorandum in Support re 113 MOTION to Compel filed by Rebecca Taylor. (Vickery, Jennifer) (Entered: 03/12/2009)
115 ORDER granting 111 Motion for Extension of Time until 4/11/2009 to respond to discovery. Signed by Clerk on 3/17/2009. (Falcone, K.) (Entered: 03/17/2009)
116 ORDER granting 112 Motion for Extension of Time until 4/27/2009 to respond to discovery. Signed by Clerk on 3/11/2009. (Falcone, K.) (Entered: 03/17/2009)
117 Minute Entry. Settlement Conference held on 3/24/2009. Proceedings held before Judge Holly B. Fitzsimmons: taking under advisement 90 Motion to Appoint Expert; taking under advisement 90 Motion to Compel; taking under advisement 90 Motion for Sanctions. Total Time: 3 hours (Milligan, C.) (Entered: 03/24/2009)
118 ORDER the parties are directed to submit a joint non−waiver agreement to the Court by 3/27/09. Signed by Judge Holly B. Fitzsimmons on 3/24/09. (Milligan, C.) (Entered: 03/24/2009)
119 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Telephone Status Conference re: discovery set for 4/15/2009 2:00 PM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons. Counsel for the plaintiff is requested to initiate the call. Once all parties are on the line, contact chambers at (203)579−5640. (Milligan, C.) (Entered: 03/24/2009)
120 SUGGESTION OF DEATH Upon the Record as to Rebecca Taylor by Karl Hunter. (Vickery, Jennifer) (Entered: 03/26/2009)
121 Joint MOTION for Stipulated Non−Waiver Order Order by Karl Hunter. (Vickery, Jennifer) (Entered: 03/30/2009)
122 Motion Referral: 121 Joint Motion for Stipulated Non−Waiver Order is referred to Magistrate Judge Holly B. Fitzsimmons. (Rajendra, R.) (Entered: 03/31/2009)
123 ORDER granting 121 Joint Motion for Stipulated Non−Waiver Order. Signed by Judge Holly B. Fitzsimmons on 3/31/09. (Milligan, C.) (Entered: 03/31/2009)
124 TRANSCRIPT of Proceedings held on 2/26/09 before Judge Arterton. Court Reporter: S. Montni. Type of Hearing: Transcript of Oral Argument on Class Certfication. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 4/28/2009. Redacted Transcript Deadline set for 5/8/2009. Release of Transcript Restriction set for 7/6/2009. (Montini, S.) (Entered: 04/07/2009)
125 MOTION to Stay net worth discovery by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner.Responses due by 4/29/2009 Motions referred to Holly B. Fitzsimmons(Swift, Donn) Modified on 4/13/2009 to correct type of event docketed.(Falcone, K.). (Entered: 04/08/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 12 of 21

04/09/2009 04/13/2009 04/15/2009
04/27/2009
04/27/2009
04/28/2009 05/05/2009
05/11/2009 05/14/2009 05/28/2009 06/10/2009 06/10/2009 06/10/2009 06/10/2009

126 REPLY to Response to 113 MOTION to Compel, 114 Memorandum in Support of Motion filed by Karl Hunter. (Attachments: # 1 Pedroza v. Lomas Auto Mall, Inc.)(Vickery, Jennifer) Modified on 4/13/2009 to create correct link to underlying document(Falcone, K.). (Entered: 04/09/2009)
127 Memorandum in Opposition re 113 MOTION to Compel filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 04/13/2009)
128 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephonic Scheduling Conference held on 4/15/2009. 20 minutes. The deposition schedule set forth during the telephone conference is approved and adopted. Once there is a response from the Board the parties should contact the Court to schedule another settlement conference date. The parties may be heard on any discovery issues on May 14 at 10:00AM. The parties will meet and confer prior to bringing any issues before the Court. The parties will file a letter by April 30, 2009 outlining the discovery issues to be heard on May 14, 2009. Responses are due seven days later. (Esposito, A.) (Entered: 04/15/2009)
129 MOTION to modify Scheduling Order by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner.Responses due by 5/18/2009 Motions referred to Holly B. Fitzsimmons(Swift, Donn) Modified on 4/28/2009 to edit event chosen(Falcone, K.). (Entered: 04/27/2009)
130 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. Telephone Status Conference set for 4/28/2009 11:30 AM before Judge Holly B. Fitzsimmons. Counsel for the defendant is requested to initiate this call. Once all counsel is on the line please contact chambers at (203)579−5640. (Milligan, C.) (Entered: 04/27/2009)
131 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Status Conference held on 4/28/2009 (5 minutes). Parties are to agree on a new deposition schedule and submit it to the Court. (Milligan, C.) (Entered: 04/28/2009)
132 ORDER The following dates, having been agreed upon by the parties, are SO ORDERED by the Court. May 14 −DeLoatch at 2:00 pm, May 20−HANH at 9:00 am, May 28−Rebeiro at 9:00 am, May 28−Santiago at 2:00 pm, June 2−Hunter at 9:00 am, June 8−Woodie at 9:00 am, June 9−Miller at 9:00 am. Signed by Judge Holly B. Fitzsimmons on 5/5/09. (Milligan, C.) (Entered: 05/05/2009)
133 ORDER the parties have agreed and the Court SO ORDERS that the deposition of Karen Dubois−Walton take place on May 27th from 9:00am to 5:00pm. Signed by Judge Holly B. Fitzsimmons on 5/11/09. (Milligan, C.) (Entered: 05/11/2009)
134 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Discovery Conference held on 5/14/2009. 33 minutes (Milligan, C.) (Entered: 05/14/2009)
135 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Telephone Status Conference held on 5/28/2009. 7 minutes (Milligan, C.) (Entered: 05/28/2009)
136 MOTION to Amend/Correct 81 Amended Complaint by Karl Hunter, Rebecca Taylor.Responses due by 7/1/2009 (Attachments: # 1 Proposed Third Amended Complaint)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 06/10/2009)
137 MOTION to Intervene by Karl Hunter, Rebecca Taylor.Responses due by 7/1/2009 (Attachments: # 1 Affidavit H. Salovitz, # 2 Exhibit Intervenor Complaint)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 06/10/2009)
138 ORDER granting 113 Motion to Compel; denying 125 Motion to Stay. Signed by Judge Holly B. Fitzsimmons on 6/10/09. (Milligan, C.) (Entered: 06/10/2009)
139 ORDER finding as moot 129 Motion to Amend/Correct. Signed by Judge Holly B. Fitzsimmons on 6/10/09. (Milligan, C.) (Entered: 06/10/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 13 of 21

06/10/2009 06/10/2009 06/15/2009 06/16/2009 06/19/2009
06/22/2009 06/25/2009 06/25/2009 07/10/2009 07/10/2009
07/10/2009
07/10/2009 07/13/2009 07/13/2009 07/13/2009
07/14/2009

140 AMENDED COMPLAINT (Third) against all defendants, filed by Karl Hunter, Rebecca Taylor.(Vickery, Jennifer) (Entered: 06/10/2009)
141 ORDER denying without prejudice to renew 90 Motion to Appoint Expert; denying 90 Motion to Compel; denying 90 Motion for Sanctions. Signed by Judge Holly B. Fitzsimmons on 6/10/09. (Milligan, C.) (Entered: 06/10/2009)
142 OBJECTION re 138 Order on Motion to Compel, Order on Motion to Stay filed by New Haven Housing Authority, Jimmy Miller, Robert Solomon. (Swift, Donn) (Entered: 06/15/2009)
143 RESPONSE re 142 Objection re: 138 Order on Motion to Compel filed by Karl Hunter. (Vickery, Jennifer) Modified on 6/17/2009 to create link(Falcone, K.). (Entered: 06/16/2009)
144 RESPONSE re 138 Order on Motion to Compel, Order on Motion to Stay filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 06/19/2009)
145 RESPONSE re 144 Response, 138 Order on Motion to Compel, Order on Motion to Stay (Surreply) filed by Karl Hunter. (Attachments: # 1 Exhibit A−Walker)(Vickery, Jennifer) (Entered: 06/22/2009)
146 MOTION in Limine to Strike Supplemental Answer to Admission #1 by Karl Hunter.Responses due by 7/16/2009 (Attachments: # 1 Exhibit)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 06/25/2009)
147 Memorandum in Support re 146 MOTION in Limine to Strike Supplemental Answer to Admission #1 filed by Karl Hunter. (Vickery, Jennifer) (Entered: 06/25/2009)
148 REPLY to Response to 137 MOTION to Intervene filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/10/2009)
149 RESPONSE re 136 MOTION to Amend/Correct 81 Amended Complaint by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Notice in Regard to the Motion to Amend Complaint by Plaintiffs dated June 10, 2009)(Swift, Donn) (Entered: 07/10/2009)
150 MOTION to Strike 149 Response, Paragraph #80 or Answer re: 136 Motion to Amend Complaint by Karl Hunter.Responses due by 7/31/2009 Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) Modified on 7/13/2009 to create link (Falcone, K.). (Entered: 07/10/2009)
151 Memorandum in Support re 150 MOTION to Strike 149 Response, Paragraph #80 of Answer re: 136 Motion to Amend Complaint filed by Karl Hunter. (Vickery, Jennifer) Modified on 7/13/2009 to create link (Falcone, K.). (Entered: 07/10/2009)
152 MOTION for Protective Order by Karl Hunter.Responses due by 8/3/2009 (Attachments: # 1 Exhibit A− Swift email)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 07/13/2009)
153 Memorandum in Support re 152 MOTION for Protective Order filed by Karl Hunter. (Vickery, Jennifer) (Entered: 07/13/2009)
154 MOTION for Telephonic Conference with the Court by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. Motions referred to Holly B. Fitzsimmons(Swift, Donn) (Entered: 07/13/2009)
155 MOTION in Limine re: Solomon Deposition by Karl Hunter.Responses due by 8/4/2009 (Attachments: # 1 Exhibit A−6−17−09 email, # 2 Exhibit 6−18−09 email, # 3 Exhibit 6−5−09 email, # 4 Exhibit 6−8−09 email)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 07/14/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 14 of 21

07/14/2009 07/15/2009 07/15/2009
07/15/2009 07/15/2009 07/15/2009
07/15/2009 07/16/2009 07/17/2009 07/17/2009 07/17/2009 07/17/2009
07/17/2009 07/20/2009

156 Memorandum in Support re 155 MOTION in Limine re: Solomon Deposition filed by Karl Hunter. (Vickery, Jennifer) (Entered: 07/14/2009)
157 OBJECTION re 155 MOTION in Limine re: Solomon Deposition filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Exhibit email of July 9, 2009)(Swift, Donn) (Entered: 07/15/2009)
158 MOTION to Take Deposition from Daniel J. Weaver by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Exhibit Mapquest Direction)Motions referred to Holly B. Fitzsimmons(Swift, Donn) (Entered: 07/15/2009)
159 ORDER granting 154 Motion for Telephone Conference. A telephonic conference has been set down for July 17, 2009 at 11:00 a.m. Defense counsel shall initiate the conference call. Chambers: 203−773−2456. Signed by Judge Janet Bond Arterton on 7/15/09. (Tooker, A.) (Entered: 07/15/2009)
Set Deadlines/Hearings: Telephone Conference set for 7/17/2009 at 11:00 a.m. before Judge Janet Bond Arterton (Tooker, A.) (Entered: 07/15/2009)
160 RESPONSE re 151 Memorandum in Support re 150 Motion to Strike No. 80 of the Answer to the Third Amended Complaint filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) Modified on 7/16/2009 to create link(Falcone, K.). (Entered: 07/15/2009)
Set Deadlines/Hearings: Trial Brief due by 7/20/2009; Hearing set for 8/17/2009, 9:00 a.m. − 3:00 p.m. to and including 8/21/2009; Pretrial Conference set for 7/29/2009 at 3:30 p.m. in Courtroom Two, 141 Church Street, New Haven, CT. (Tooker, A.) (Entered: 07/15/2009)
Set Deadlines/Hearings: Telephone conference rescheduled to 1:30 p.m. on July 17, 2009. (Tooker, A.) (Entered: 07/16/2009)
161 MOTION to Withdraw of Supplemental Answer to Admission No. 1 Dated Jne 16, 2009 by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. Motions referred to Holly B. Fitzsimmons(Swift, Donn) (Entered: 07/17/2009)
162 OBJECTION re 152 MOTION for Protective Order Re: Out of State Deposition Dated July 12, 2009 filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/17/2009)
163 ORDER: Plaintiffs' 136 Motion to Amend Complaint and Plaintiffs' and Heiwa Salovitz's 137 Motion to Intervene are GRANTED absent objection. Signed by Judge Janet Bond Arterton on 7/17/2009. (Rajendra, R.) (Entered: 07/17/2009)
164 ORDER: Defendants' 138 Objection to Magistrate Judge Fitzsimmons's Ruling is overruled; Defendants' 161 Withdrawal of "Supplemental" Answer is granted, in light of which Plaintiffs' 146 Motion to Strike "Supplemental" Answer is moot; Plaintiffs' 150 Motion to Strike Paragraph 80 of Answer is granted on consent; Plaintiffs' 152 Motion for Protective Order is granted, and Defendants' 158 Motion for Deposition of Daniel J. Weaver is denied; and Plaintiffs' 155 Motion in Limine to Exclude Presentation of Solomon Testimony by Deposition is granted. Signed by Judge Janet Bond Arterton on 7/17/2009. (Rajendra, R.) (Entered: 07/17/2009)
165 SCHEDULING ORDER: Plaintiffs and Defendants shall each file a Trial Memorandum no later than July 20, 2009; responses and objections thereto shall be filed no later than July 24, 2009. Signed by Judge Janet Bond Arterton on 7/17/2009. (Rajendra, R.) (Entered: 07/17/2009)
166 TRIAL MEMO by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner Estimated trial time 5 days. (Attachments: # 1 Defendants' Proposed Findings of Fact, # 2 Defendants' Proposed Conclusions of Law, # 3 Defendants' List of Witnesses, # 4

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 15 of 21

07/20/2009 07/21/2009
07/22/2009 07/23/2009 07/23/2009 07/24/2009 07/27/2009 07/27/2009
07/27/2009
07/27/2009
07/27/2009
07/27/2009 07/27/2009 07/27/2009
07/28/2009 07/28/2009

Defendants' List of Exhibits)(Swift, Donn) (Entered: 07/20/2009)
167 TRIAL MEMO by Karl Hunter Estimated trial time 5 days. (Attachments: # 1 Proposed Conclusions of Law, # 2 Proposed Findings of Fact, # 3 Proposed Exhibit List, # 4 Proposed Witness List)(Vickery, Jennifer) (Entered: 07/20/2009)
168 AMENDED ANSWER to 140 third amended complaint dated June 9, 2009 by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) Modified on 7/22/2009 to add link (Garguilo, B). (Entered: 07/21/2009)
169 TRIAL MEMO Supplemental by Jimmy Miller, David Alvarado, Iiona Leffingwell, Robert Solomon, Jason Turner Estimated trial time 5 days. (Swift, Donn) (Entered: 07/22/2009)
170 TRIAL MEMO Supplemental by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner Estimated trial time 5 days. (Swift, Donn) (Entered: 07/23/2009)
171 MOTION for Extension of Time until July 27, 2009 Objections 165 Scheduling Order,, Set Deadlines/Hearings, by Karl Hunter. Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 07/23/2009)
172 ORDER: Plaintiffs' 171 Motion to Enlarge Deadlines is GRANTED. Signed by Judge Janet Bond Arterton on 7/24/2009. (Rajendra, R.) (Entered: 07/24/2009)
173 OBJECTION re 166 Trial Memo, filed by Karl Hunter. (Attachments: # 1 Exhibit 1−4)(Vickery, Jennifer) (Entered: 07/27/2009)
174 OBJECTION re 167 Trial Memo Defendants' Objection to Plaintiffs' Pretrial Witness List filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/27/2009)
175 MOTION to Amend/Correct Defendants' List of Exhibits by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner.Responses due by 8/17/2009 (Attachments: # 1 Defendants' Revised List of Exhibits)Motions referred to Holly B. Fitzsimmons(Swift, Donn) (Entered: 07/27/2009)
176 OBJECTION re 167 Trial Memo Plaintiffs' Pretrial List of Proposed Exhibits filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/27/2009)
177 OBJECTION re 167 Trial Memo to Plaintiffs' Proposed Conclusion of Law filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/27/2009)
178 OBJECTION re 166 Trial Memo, Defendants' Conclusions of Law filed by Karl Hunter. (Vickery, Jennifer) (Entered: 07/27/2009)
179 Proposed Findings of Fact and Conclusions of Law by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 07/27/2009)
181 Supplemental Exhibit List by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner re 166 Trial Memo. Redocketed to correct docket entry 175.(Falcone, K.) (Entered: 07/28/2009)
180 Proposed Findings of Fact and Conclusions of Law by Karl Hunter re 167 Trial Memo. (Vickery, Jennifer) (Entered: 07/28/2009)
182 Docket Entry Correction to add pdf of supplemental exhibits re 181 Supplemental exhibit list. (Falcone, K.) (Entered: 07/28/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 16 of 21

07/29/2009
07/29/2009 07/31/2009
08/04/2009 08/05/2009 08/05/2009 08/07/2009 08/08/2009 08/11/2009 08/12/2009 08/13/2009 08/13/2009 08/13/2009
08/14/2009 08/16/2009 08/16/2009

183 TRIAL MEMO JOINT TRIAL MEMORANDUM by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner Estimated trial time 5 Days. (Attachments: # 1 Reasonable Accommodation Committee Report)(Swift, Donn) (Entered: 07/29/2009)
184 Minute Entry for proceedings held before Judge Janet Bond Arterton: Pretrial Conference held on 7/29/2009. Total Time: 2 hours and 10 minutes(Court Reporter Sharon Montini.) (Torday, B.) (Entered: 07/30/2009)
185 SCHEDULING ORDER: A bench trial in Courtroom Two, 141 Church Street, New Haven, Connecticut before Judge Janet Bond Arterton, is set for the following dates and times: Aug. 17th, 9am−5pm; Aug. 18th, 12pm−5pm; Aug. 19th, 9am−3pm; Aug. 20th, 9am−5pm; Aug. 21st, 12pm−4pm. Signed by Judge Janet Bond Arterton on 7/31/2009. (Rajendra, R.) (Entered: 07/31/2009)
186 MOTION for Sanctions Against Jimmy Miller by Karl Hunter.Responses due by 8/25/2009 (Attachments: # 1 Affidavit of Counsel)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 08/04/2009)
187 MOTION for Protective Order by New Haven Housing Authority, Jimmy Miller, Robert Solomon.Responses due by 8/26/2009 Motions referred to Holly B. Fitzsimmons(Swift, Donn) (Entered: 08/05/2009)
188 ORDER: Defendants' 187 Motion for Protective Order is granted, on consent. Signed by Judge Janet Bond Arterton on 8/5/2009. (Rajendra, R.) (Entered: 08/05/2009)
189 TRIAL MEMO Defendants' Pretrial Brief by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner Estimated trial time 5 days. (Swift, Donn) (Entered: 08/07/2009)
190 MOTION Exclude Non−Party Witnesses by Karl Hunter.Responses due by 8/29/2009 Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 08/08/2009)
Set Deadlines/Hearings: Bench Trial set for 8/17−21/2008 09:00 AM in Courtroom Two, 141 Church St., New Haven, CT before Judge Janet Bond Arterton (Torday, B.) (Entered: 08/11/2009)
191 Amended Proposed Exhibit List by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 08/12/2009)
192 ENTERED IN ERROR: Emergency MOTION for Sanctions (Renewal of Docket #90) by Karl Hunter.Responses due by 9/3/2009 Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) Modified on 8/17/2009 (Falcone, K.). (Entered: 08/13/2009)
193 Emergency MOTION for Sanctions (corrected filing) by Karl Hunter.Responses due by 9/3/2009 Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) Modified on 8/17/2009, this was redocketed to correct docket entry 192.(Falcone, K.). (Entered: 08/13/2009)
194 OBJECTION re 192 Emergency MOTION for Sanctions (Renewal of Docket #90), 193 Emergency MOTION for Sanctions (corrected filing) filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Attachments: # 1 Affidavit Of Donn A. Swift)(Swift, Donn) (Entered: 08/13/2009)
195 REPLY to Response to 192 Emergency MOTION for Sanctions (Renewal of Docket #90), 193 Emergency MOTION for Sanctions (corrected filing) filed by Karl Hunter. (Vickery, Jennifer) (Entered: 08/14/2009)
196 MOTION to Seal Residential Address of Heiwa Salovitz by Karl Hunter. Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 08/16/2009)
197 MOTION to Amend/Correct 120 Suggestion of Death and Substitute Representative by Karl Hunter.Responses due by 9/6/2009 Motions referred to

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08/16/2009 08/17/2009 08/18/2009 08/19/2009 08/20/2009 08/21/2009 08/24/2009 08/25/2009 08/26/2009 08/26/2009
08/26/2009
08/26/2009 08/26/2009

Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 08/16/2009)
198 MOTION to Amend/Correct 167 Trial Memo Plaintiffs' Exhibit List by Karl Hunter.Responses due by 9/6/2009 Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 08/16/2009)
199 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/17/2009. Total Time: 7 hours(Court Reporter Sharon Montini.) (Torday, B.) (Entered: 08/18/2009)
200 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/18/2009. Bench Trial Continued Until 8/19/09 at 9am. Total Time: 5 hours(Court Reporter S. Montini.) (Torday, B.) (Entered: 08/19/2009)
201 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/19/2009. Bench Trial Continued Until 8/20/09 AT 9AM. Total Time: 5 hours(Court Reporter S. Montini.) (Torday, B.) (Entered: 08/19/2009)
202 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/20/2009. Bench Trial Continued Until 8/21/09 at 11:000am. Total Time: 7 hours(Court Reporter S. Montini.) (Torday, B.) (Entered: 08/21/2009)
203 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/21/2009. Bench Trial Continued Until 8/24/09 at 9am. Total Time: 4 hours(Court Reporter S. Montini.) (Torday, B.) (Entered: 08/24/2009)
205 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/24/2009. Bench Trial Continued Until 8/26/09 at 9am. Total Time: 3 hours(Court Reporter S. Montini.) (Torday, B.) (Entered: 08/26/2009)
204 MOTION to Amend/Correct 140 Amended Complaint, 180 Proposed Findings of Fact and Conclusions of Law by Karl Hunter.Responses due by 9/15/2009 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)Motions referred to Holly B. Fitzsimmons(Vickery, Jennifer) (Entered: 08/25/2009)
206 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 8/26/2009. Bench Trial Continued Until 9/8/09 AT 9AM. Total Time: 5 hours(Court Reporter Sharon Montini.) (Torday, B.) (Entered: 08/26/2009)
207 ORDER: Plaintiffs' 196 Motion to Seal Residential Address of Heiwa Salovitz is granted on consent and for the reasons stated on the record on 8/17/2009. The Clerk is directed to seal Plaintiffs' [136−1] Proposed Third Amended Complaint, Plaintiff Heiwa Salovitz's [137−1] Affidavit in Support of his Motion to Intervene, Plaintiffs' [137−2] Proposed Complaint in Intervention, Plaintiffs' 140 Third Amended Complaint, and Plaintiffs' 180 Proposed Findings of Fact and Conclusions of Law. Redacted versions of these documents are found as attachments to Plaintiffs' 204 Motion to Amend, which is granted. Signed by Judge Janet Bond Arterton on 8/26/2009. (Rajendra, R.) (Entered: 08/26/2009)
208 ORDER: As set forth on the record dated 8/17/2009: Plaintiffs' 186 Motion for Sanctions Against Jimmy Miller is granted. Plaintiffs' 190 Motion to Exclude Non−Party Witnesses is granted. Plaintiffs' 197 Amended Motion to Substitute Holly Wazyluk as Representative of the Deceased Plaintiff Rebecca Taylor is granted on consent, in light of which Plaintiffs' 120 Motion to Substitute Richard Taylor as Representative of the Deceased Plaintiff Rebecca Taylor is denied as moot. Plaintiffs' 198 Motion to Amend Exhibit List is granted nunc pro tunc. Signed by Judge Janet Bond Arterton on 8/26/2009. (Rajendra, R.) (Entered: 08/26/2009)
209 ORDER: That portion of the Court's 105 Order dated Feb. 26, 2009 referring this case to Magistrate Judge Fitzsimmons for discovery purposes is hereby vacated. The case remains referred to Magistrate Judge Fitzsimmons for purposes of holding settlement conferences. Signed by Judge Janet Bond Arterton on 8/26/2009. (Rajendra, R.) (Entered: 08/26/2009)
Judge Holly B. Fitzsimmons no longer assigned to case for discovery referrals only. (Inferrera, L.) (Entered: 08/27/2009)

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08/31/2009
09/01/2009 09/04/2009 09/08/2009
09/08/2009
09/08/2009
09/08/2009 09/09/2009 09/09/2009 09/09/2009 09/09/2009 09/09/2009 09/14/2009

210 NOTICE OF E−FILED CALENDAR: THIS IS THE ONLY NOTICE COUNSEL/THE PARTIES WILL RECEIVE. ALL PERSONS ENTERING THE COURTHOUSE MUST PRESENT PHOTO IDENTIFICATION. Settlement Conference set for 9/1/2009 11:00 AM in Chambers Room 266 − Annex, 915 Lafayette Blvd., Bridgeport, CT before Judge Holly B. Fitzsimmons (Milligan, C.) (Entered: 08/31/2009)
211 Minute Entry for proceedings held before Judge Holly B. Fitzsimmons: Settlement Conference held on 9/1/2009. Parties will report back by telephone on 9/2/09. Total Time: 4 hours (Larsen, M.) (Entered: 09/02/2009)
212 MOTION for Judgment on Behalf of the Claims against the Individual Defendants by Karen Dubois−Walton, by Jimmy Miller, Robert Solomon.Responses due by 9/25/2009 (Swift, Donn) (Entered: 09/04/2009)
213 TRANSCRIPT of Proceedings held on 8/17/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript, Volume I. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 9/29/2009. Redacted Transcript Deadline set for 10/9/2009. Release of Transcript Restriction set for 12/7/2009. (Montini, S.) (Entered: 09/08/2009)
214 TRANSCRIPT of Proceedings held on 8/18/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript, Volume II. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 9/29/2009. Redacted Transcript Deadline set for 10/9/2009. Release of Transcript Restriction set for 12/7/2009. (Montini, S.) (Entered: 09/08/2009)
215 TRANSCRIPT of Proceedings held on 8/19/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript, Volume III. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 9/29/2009. Redacted Transcript Deadline set for 10/9/2009. Release of Transcript Restriction set for 12/7/2009. (Montini, S.) (Entered: 09/08/2009)
216 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial held on 9/8/2009. Bench Trial Continued Until 9/9/09 AT 1PM. Total Time: 4 hours and 8 minutes(Court Reporter S. Montini.) (Torday, B.) (Entered: 09/09/2009)
217 Minute Entry for proceedings held before Judge Janet Bond Arterton: Bench Trial completed on 9/9/2009. Total Time: 4 hours(Court Reporter Sharon Montini.) (Torday, B.) (Entered: 09/10/2009)
218 Marked Witness List by Rebecca Taylor, New Haven Housing Authority. (Torday, B.) (Entered: 09/10/2009)
219 Marked Exhibit List by Rebecca Taylor. (Torday, B.) (Entered: 09/10/2009)
220 Marked Exhibit List by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon. (Torday, B.) (Entered: 09/10/2009)
221 Joint Marked Exhibit List by Rebecca Taylor, New Haven Housing Authority. (Torday, B.) (Entered: 09/10/2009)
222 NOTICE of Intent to Request Redaction by Jennifer C. Vickery re 215 Transcript,, 214 Transcript,, 213 Transcript,, (Vickery, Jennifer) (Entered: 09/14/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 19 of 21

09/14/2009
09/14/2009
09/14/2009
09/14/2009
09/30/2009 09/30/2009 10/07/2009 10/07/2009 10/07/2009 10/09/2009 10/09/2009

223 TRANSCRIPT of Proceedings held on 8/20/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript Volume IV. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/5/2009. Redacted Transcript Deadline set for 10/15/2009. Release of Transcript Restriction set for 12/13/2009. (Montini, S.) (Entered: 09/14/2009)
224 TRANSCRIPT of Proceedings held on 8/21/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript Volume V. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/5/2009. Redacted Transcript Deadline set for 10/15/2009. Release of Transcript Restriction set for 12/13/2009. (Montini, S.) (Entered: 09/14/2009)
225 TRANSCRIPT of Proceedings held on 8/24/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript Volume VI. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/5/2009. Redacted Transcript Deadline set for 10/15/2009. Release of Transcript Restriction set for 12/13/2009. (Montini, S.) (Entered: 09/14/2009)
226 TRANSCRIPT of Proceedings held on 8/26/09 before Judge Arterton. Court Reporter: S. Montini. Type of Hearing: Trial Transcript Volume VII. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.ctd.uscourts.gov. Redaction Request due 10/5/2009. Redacted Transcript Deadline set for 10/15/2009. Release of Transcript Restriction set for 12/13/2009. (Montini, S.) (Entered: 09/14/2009)
227 MOTION for Sanctions by Karl Hunter.Responses due by 10/21/2009 (Attachments: # 1 Exhibit A, Tr. Woodie, # 2 Exhibit B, Swift Letter)(Vickery, Jennifer) (Entered: 09/30/2009)
228 Memorandum in Support re 227 MOTION for Sanctions filed by Karl Hunter. (Vickery, Jennifer) (Entered: 09/30/2009)
229 NOTICE by Karl Hunter Filing Plaintiffs' Ex. 9 (Tax Returns) Under Seal (Vickery, Jennifer) (Entered: 10/07/2009)
230 MOTION for Attorney Fees re: Docket #186 by Karl Hunter.Responses due by 10/28/2009 (Attachments: # 1 Exhibit Timesheet)(Vickery, Jennifer) (Entered: 10/07/2009)
238 Sealed Document: Exhibit 9 by Karl Hunter, Rebecca Taylor re 229 Notice of Filing Exhibit 9, re 219 Marked Exhibit List. (Attachments: # 1 Part 2, # 2 Part 3, # 3 Part 3)(Malone, P.) (Entered: 10/15/2009)
231 OBJECTION re 230 MOTION for Attorney Fees re: Docket #186 filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 10/09/2009)
232 MOTION for Sanctions by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner.Responses due by 10/30/2009 (Swift, Donn) (Entered: 10/09/2009)

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 20 of 21

10/09/2009 10/12/2009 10/12/2009 10/12/2009 10/12/2009 10/26/2009 03/29/2010
03/29/2010
03/29/2010

233 OBJECTION re 227 MOTION for Sanctions filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 10/09/2009)
234 REPLY to Response to 232 MOTION for Sanctions and 233 Obj. to Sanctions filed by Karl Hunter. (Attachments: # 1 Exhibit A, p.1 of Recert Packet)(Vickery, Jennifer) (Entered: 10/12/2009)
235 AFFIDAVIT re 230 MOTION for Attorney Fees re: Docket #186, 231 Objection Signed By J. Vickery filed by Karl Hunter. (Vickery, Jennifer) (Entered: 10/12/2009)
236 MOTION to Compel Unredacted Tax Return from Jimmy Miller by Karl Hunter.Responses due by 11/2/2009 (Vickery, Jennifer) (Entered: 10/12/2009)
237 Memorandum in Support re 236 MOTION to Compel Unredacted Tax Return from Jimmy Miller filed by Karl Hunter. (Attachments: # 1 Exhibit A)(Vickery, Jennifer) (Entered: 10/12/2009)
239 Memorandum in Opposition re 236 MOTION to Compel Unredacted Tax Return from Jimmy Miller filed by New Haven Housing Authority, Jimmy Miller, David Alvarado, Iiona Leffingwell, Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 10/26/2009)
240 MEMORANDUM OF DECISION: For the reasons set forth herein, the Court VACATES its 108 Order Certifying a Class; the Court concludes that, in administering the Section 8 Program and providing benefits of that program to Plaintiffs, Defendants did not violate the Fair Housing Act, the Fair Housing Act Amendments, or Section 504 of the Rehabilitation Act; and the Court finds in favor of Defendants on all of Plaintiffs' claims. Signed by Judge Janet Bond Arterton on 3/29/2010. (Rajendra, R.) (Entered: 03/29/2010)
241 ORDER: As set forth in the 240 Memorandum of Decision, Plaintiffs' 193 Emergency Motion for Sanctions is DENIED; Defendants' 212 Motion for Judgment Regarding Punitive Damages is DENIED; Plaintiffs 227 Motion for Sanctions is DENIED; Plaintiffs' 230 Motion for Attorney Fees is GRANTED IN PART, in the amount of $5,000.00; Defendants' 232 Motion for Sanctions is DENIED; and Plaintiffs' 236 Motion to Compel Production of Unredacted Tax Return is DENIED. Signed by Judge Janet Bond Arterton on 3/29/2010. (Rajendra, R.) (Entered: 03/29/2010)
242 JUDGMENT entered in favor of New Haven Housing Authority, David Alvarado, Iiona Leffingwell, Jason Turner, Jimmy Miller, Karen Dubois−Walton, Louise Persall, Robert Solomon against Karl Hunter, Rebecca Taylor, heiwa salovitz.

03/29/2010

For Appeal Forms please go to the following website: http://www.ctd.uscourts.gov/forms.html. Signed by Clerk on 3/29/10. (Torday, B.) (Torday, B.). (Entered: 03/29/2010)
JUDICIAL PROCEEDINGS SURVEY: The following link to the survey requires you to log into CM/ECF for SECURITY purposes. Once in CM/ECF you will be prompted for the case number. Upon entering the survey, all responses are completely anonymous.

03/30/2010 03/31/2010 04/02/2010 04/07/2010

https://ecf.ctd.uscourts.gov/cgi−bin/Dispatch.pl?survey (Torday, B.) (Entered: 03/29/2010)
243 Docket Entry Correction re 242 Judgment, to correct pdf (Torday, B.) (Entered: 03/30/2010)
244 NOTICE OF APPEAL as to 242 Judgment, by Karl Hunter, Rebecca Taylor, Heiwa Salovitz. (Kelsey, N.) (Entered: 03/31/2010)
245 MOTION to Alter Judgment by Rebecca Taylor.Responses due by 4/23/2010 (Vickery, Jennifer) (Entered: 04/02/2010)
246 OBJECTION re 245 MOTION to Alter Judgment filed by David Alvarado, Karen Dubois−Walton, Iiona Leffingwell, Jimmy Miller, New Haven Housing Authority,

Case: 3:08-cv-00557-JBA As of: 05/22/2011 03:49 PM EDT 21 of 21

04/07/2010 07/14/2010 12/29/2010 12/29/2010
01/11/2011

Louise Persall, Robert Solomon, Jason Turner. (Swift, Donn) (Entered: 04/07/2010)
247 Memorandum in Support re 245 MOTION to Alter Judgment filed by Rebecca Taylor. (Vickery, Jennifer) (Entered: 04/07/2010)
248 ORDER denying 245 Motion to Alter Judgment. Signed by Judge Janet Bond Arterton on 7/14/10. (Torday, B.) (Entered: 07/14/2010)
249 ENTERED IN ERROR: Index to Record on Appeal by Rebecca Taylor re 244 Notice of Appeal. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Vickery, Jennifer) Modified on 12/30/2010: Docket Entry Does Not Contain Links to Docket Entries Necessary for Record on Appeal (Kelsey, N.). (Entered: 12/29/2010)
250 Index to Record on Appeal by Rebecca Taylor re 244 Notice of Appeal. Document No. 249 Redocketed to Correctly Link to Document Entries Necessary for Record on Appeal including: 245 MOTION to Alter Judgment, 74 Order on Motion to Amend/Correct, Order on Motion for Miscellaneous Relief, Order on Motion to Compel, 161 MOTION to Withdraw of Supplemental Answer to Admission No. 1 Dated Jne 16, 2009, 49 Order on Motion to Consolidate Cases, 92 Proposed Order, 215 Transcript,, 124 Transcript,, 108 Order on Motion to Certify Class, Order on Motion to Intervene, Order on Motion to Appoint Counsel, 164 Order on Motion in Limine, Order on Motion to Strike, Order on Motion for Protective Order,, Order on Motion to Take Deposition, Order on Motion to Withdraw, 242 Judgment, 27 Order, 98 Reply to Response to Motion, 240 Order, 47 Memorandum in Support of Motion, 248 Order on Motion to Alter Judgment, 219 Exhibit List, 221 Exhibit List, 184 Pretrial Conference, 120 Suggestion of Death, 226 Transcript,, 213 Transcript,, 73 Objection, 46 MOTION to Certify Class, 20 Exhibit List, 69 Memorandum in Support of Motion, 68 MOTION to Compel, 18 Affidavit, 146 MOTION in Limine to Strike Supplemental Answer to Admission #1, 38 MOTION to Consolidate Cases. Case to be consolidated with 3:07−cv−667, 241 Order on Motion for Sanctions, Order on Motion for Judgment,, Order on Motion for Attorney Fees,, Order on Motion to Compel, 90 MOTION to Appoint Expert MOTION to Compel MOTION for Sanctions, 12 Memorandum in Support of Motion, 214 Transcript,, 224 Transcript,, 43 Transcript, 204 MOTION to Amend/Correct 140 Amended Complaint, 180 Proposed Findings of Fact and Conclusions of Law MOTION to Amend/Correct 140 Amended Complaint, 180 Proposed Findings of Fact and Conclusions of Law, 208 Order on Motion for Sanctions, Order on Motion for Miscellaneous Relief, Order on Motion to Amend/Correct, 220 Exhibit List, 180 Proposed Findings of Fact and Conclusions of Law, 194 Objection, 23 Order on Motion for Preliminary Injunction, 141 Order on Motion to Appoint Expert, Order on Motion to Compel, Order on Motion for Sanctions, 147 Memorandum in Support of Motion, 96 Response, 3 Complaint, 225 Transcript,, 8 MOTION for Preliminary Injunction, 91 Memorandum in Support of Motion, 193 Emergency MOTION for Sanctions (corrected filing), 195 Reply to Response to Motion, 223 Transcript. For docket entries without a hyperlink, contact the court to arrange for the document(s) to be made available to you. (Kelsey, N.) (Entered: 12/30/2010)
251 NOTICE of Substitution of Memorandum of Decision to Reflect Final Transcript Pagination re 240 Memorandum of Decision. Signed by Judge Janet Bond Arterton on 1/11/2011. (Attachments: # 1 Memorandum of Decision with Final Transcript Pagination)(Kelsey, N.) (Entered: 01/14/2011)

 
 lO-1144-cv Taylor v. Housing Authority of the City of New Haven

(Argued:

UNITED STATES COURT OF ApPEALS FOR THE SECOND CIRCUIT

August Term 2010

April 11, 2011

Decided:

May 4, 2011)

Docket No. 10-1144-cv

REBECCA TAYLOR, deceased, by and through Holly Wazyluk, her personal representative,
KARL HUNTER, and HEIWA SALOVITZ,
Plaintiffs-Appellants,
v.
THE HOUSING AUTHORITY OF THE CITY OF NEW HAVEN, JIMMY MILLER, individually, KAREN DUBOIS-WALTON, individually and as
Executive Director of the Housing Authority, DAVID ALVARADO, ILONA LEFFINGWELL, LOUISE PERSALL, ROBERT SOLOMON, and
JASON TURNER, as officials and board members of the Housing Authority,
Defendants-Appellees."

Before:

KEARSE, MINER, and CHIN, Circuit Judges.

Appeal from a judgment entered March 29, 2010, in

the United States District Court for the District of

Connecticut (Arterton, J.) finding in favor of defendantsappellees on all claims and decertifying the class.
AFFIRMED .

•

The Clerk of the Court is directed to revise the

official caption to conform to the above.

JENNIFER CHILDRESS VICKERY, Law Office of Jennifer Vickery, New Haven, Connecticut, for PlaintiffsAppellants.
DONN A. SWIFT, Lynch, Traub, Keefe & Errante, New Haven, Connecticut, for Defendants-Appellees.
PER CURIAM: Plaintiffs-appellants, Rebecca Taylor, Karl
Hunter, and Heiwa Salovitz ("plaintiffs"), commenced this action, alleging that defendants-appellees, the Housing Authority of the City of New Haven ("HANH") and a group of HANH officials ("defendants"), discriminated against them in administering New Haven's Housing Choice Voucher ("Section 8") program, in violation of plaintiffs' rights under the Fair Housing Act, 42 U.S.C. § 3604(d); the Fair Housing Amendments Act of 1988 (the "FHAA") , 42 U.S.C. § 3604(f); and § 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794; and regulations promulgated thereunder, 24 C.F.R. §§ 8.28, 100.204. After a nine-day bench trial, the district court entered judgment on March 29, 2010, finding in favor of defendants on all claims and vacating its earlier class certification order. See Taylor v. Hous. Auth. of New Haven (Taylor II), 267 F.R.D. 36, 75-76 (D. Conn. 2010), vacating Taylor v. Hous. Auth. of New Haven (Taylor I), 257 F.R.D. 23 (D. Conn. 2009). The facts and procedural history of this
-2-

case are fully set forth in the district court's opinion in Taylor II, familiarity with which is assumed.
On appeal, plaintiffs challenge the district court's (1) conclusion that 24 C.F.R. §§ 8.28 and 100.204 may not be privately enforced through 42 U.S.C. § 1983; (2) analysis of Taylor's intentional discrimination claim under the FHAA; (3) factual findings regarding the provision of Section 8 services to the class; (4) rulings on certain discovery issues; and (5) decertification.
This Court has not addressed the private enforceability of the Department of Housing and Urban Development ("HUD") regulations at issue here or the private enforceability of agency regulations generally since the Supreme Court's decision in Alexander v. Sandoval, 532 U.S. 275 (2001). The Sandoval Court held that a regulation may be privately enforced if it "invoke[s] a private right of action that Congress through statutory text created." Id. at 291. In other words, a right of action "can extend no further than" the personal right conferred by the plain language of the statute. Taylor II, 267 F.R.D. at 42-43; see Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002); Sandoval, 532 U.S. at 291 ("Agencies may play the sorcerer's apprentice but not the sorcerer himself."); see also Mark H. v. Lemahieu, 513 F.3d 922, 935 (9th Cir. 2008) ("Sandoval instructs that whether the § 504 regulations are privately
-3-

enforceable will turn on whether their requirements fall within the scope of the prohibition contained in § 504 itself. " ) .
We adopt the district court's carefully considered and thorough discussion of these issues. See Taylor II, 267 F.R.D. at 40-47, 52-54; see also Three Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth. of Pittsburgh, 382 F.3d 412, 418-32 (3d Cir. 2004) (reaching analogous conclusions with respect to HUD regulations at 24 C.F.R. §§ 8.22, .23, and .26).
We have considered plaintiffs' remaining arguments and conclude that they are without merit, for the reasons articulated in Taylor II. Accordingly, the judgment of the district court is AFFIRMED.
FOR THE COURT: CATHERINE O'HAGAN WOLFE, CLERK
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