[ PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

_______ _________________ No. 13

- 1 1805

________________________ D.C. Docket No. 6: 11

- cv - 00 085

- PCF

- DAB

J. R. HARDING , Plaintiff

- Appellant,

v ersus ORLANDO APARTMENTS, LLC, BEHRINGER HARVARD DISTRICT REIT, LLC, a Delaware limited liability company, Defendants

- Appellee s .

________________________ Appeal from the United States District Court for the Middle District of Florida

________________________ (April 14, 2014) Before HULL and BLACK, Circuit Judges, and WALTER, * District Judge.
PER CURIAM:

* Honorable Donald E. Walter, United States District Judge for the Western District of Louisiana, sitting by designation.

Case: 13-11805 Date Filed: 04/14/2014 Page: 1 of 122 This case arises from James Harding’s claims under the Fair Housing Act (FHA) , 42 U.S.C. § 3601 , et seq. , against Behringer Harvard District Reit, LLC (BHDR), which owns an apa rtment complex called the District Universal Boulevard Apartments (the District) in Orlando, Florida. Harding alleged that by failing to remedy certain flaws in the design and construction of the District, 1 BHDR discriminated against people with handicaps in violation of 42 U.S.C. § 3604(f)(1)

- (2). The district court granted BHDR’s motion for summary judgment , and Harding appealed. Upon review, we affirm. 2
I. BACKGROUND
A. Statutory Background Section 3604 of the FHA deals with discrimination in the sale or rental of housing, and § 3604 (f) deals with discri mination against people with handicaps in particular . Subsection (f) is divided in to ni ne sub parts , the first three of which are relevant to this appeal. The first two subparts make certain typ es of discrimination unlawful:

1 Harding also asserted claims against Orlando Apartments, LLC, the entity that designed and built the District, but those claims are not at issue in this appeal. BHDR was not involved in the District’s design or construction. 2 We note at the outset that our reasoning differs from that employed by the district court. However, it is well established that “we may affirm the district court’s decision [to grant summary judgment] on any adequate ground, even if it is other than the one on which the court actually relied.” Parks v. City of Warner Robins, Ga. , 43 F.3d 609, 613 (11th Cir. 1995).

Case: 13-11805 Date Filed: 04/14/2014 Page: 2 of 123 [It 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

— [(A)

- (C): the buyer/renter or any person associated with him.] (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 h andicap of

— [(A)

- (C): the buyer /renter or any person associated with him.] Subpart (3) then delineates three types of conduct included in the definition of discrimination for the purposes of subsection (f). The first two examples, (f)(3)(A) and (f)(3) (B), deal with an owner’s refusal to allow a handicapped person to make reasonable modifications and an owner’s refusal to make reasonable accommodations , respectively, while the third, (f)(3)(C), deals with discrimination in a dwelling’s design or constru ction: 3 (3) For the purposes of this subsection, discrimination includes

— (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 except that, in the case of a rental, the landlord may where it is reasonable to do so condition permission for a modification on the renter agreeing to restore the interior of the premises to the

3 We refer to the standards established by § 3604(f)(3)(C) as the “design

- and

- construction guidelines” or the “guidelines.”

Case: 13-11805 Date Filed: 04/14/2014 Page: 3 of 124 condition that existed before the modification, reasonable wear and tear excepted. (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 an d construction of [a covered dwelling], a failure to design and construct those dwellings in such a matter that

— (i) the public use and common use portions of such dwellings are readily accessible to and usable by handicapped persons; (ii) all the doors designed to allow passage into and within all premises within such dwellings are sufficiently wide to allow passage by handicapped persons in wheelchairs; and (iii) all premises within such dwellings contain the following features of adaptive design: (I) an accessible route into and through the dwelling; (II) light switches, electrical outlets, thermostats, and other environmental controls in accessible locations; (III) reinforcements in bathroom walls to allow later installation of grab bars; and (IV) usable ki tchens and bathrooms such that an individual in a wheelchair can maneuver about the space. Case: 13-11805 Date Filed: 04/14/2014 Page: 4 of 125 B. Factual Background Orlando Apart ments, LLC owned and built the D istrict in 2009. 4 In November 2010, while Orlando Apartments still owned the District, James Harding and Soy Williams visited the District to test its accessibility. They found a number of features they contend fall short of the design

- and

- construction guidelines

. 5 One month later, in December 2010, BHDR purchased the District. Harding subseque ntly filed a complaint against Orlando Apartments and BHDR based on these allegedly inaccessible features. In his first cause of action, Harding asserted a claim against Orlando Apartments for designing and constructing the District in a discriminatory ma nner,

4 The parties d o not dispute that the District qualifies as a multifamily dwelling under the FHA and is therefore subject to the FHA’s design

- and

- construction guidelines

. 5 Specifically, Harding alleged that Orlando Apartments failed to design and construct the D istrict according to the guidelines, which resulted in the following conditions: (a) no accessible parking at a Walgreen’s incorporated into the District, (b) no accessible parking at the District’s leasing office, (c) excessive surface slopes on access aisles to guest parking, (d) no “pull/latch side door maneuvering space for forward approach” in the leasing office’s women’s restroom, (e) inadequate knee space at the bar for wheelchair users in the “cyber lounge,” (f) inadequate knee space at tables for wheelcha ir users in the “ cyber lounge, ” (g) a portion of mailboxes at excessive heights, (h) an excessively high threshold at the entrance to the model unit, (i) an excessively narrow route within the model unit, (j) an excessively high threshold and inadequate do or width at the door to the patio in the model unit, (k) inadequate clearance in the model unit’s water closet, ( l ) inadequate floor space in the model unit’s bathtub, (m) an excessively high threshold at the door to the patio of the business center, (n) e xcessive closing speed of the door to the business center, (o) inadequate clearance at the water close t and insufficient knee space at the lavatory in the business center’s restroom, (p) protruding fire extinguishers in numerous corridors, (q) excessive th reshold heights in the two

- bedroom, one

- bath units designated as “handicapped units,” (r) inadequate width at patio doors in the two

- bedroom, one

- bath units designated as “handicapped units,” (s) an excessively narrow route in the two

- bedroom, one

- bath uni ts designated as “handicapped units,” (t) insufficient door maneuvering space at the pool restroom, (u) excessively high controls at the pool rinse shower, and (v) cross slopes that fail to provide an accessible route at the pool.

Case: 13-11805 Date Filed: 04/14/2014 Page: 5 of 126 citing the design

- and

- construction guidelines. In his second cause o f action, Harding asserted claims against BHDR under § 3604(f)(1)

- (2), alleging that BHDR “continued to allow the [design

- and

- construction violations] to exist.” Harding contended that by failing to remedy the violations, BHDR discriminated against people with handicap s in violation of the FHA

. Ultimately, the district court granted summary judgment to BHDR on this claim, and Harding appealed.
II. S TANDARD OF REVIEW

“ We review a district court’s grant of summary judgment de novo , applying the same legal standards used by the district court. ” Kingsland v. City of Miami , 382 F.3d 1220, 1225 (11th Cir. 2004). Summary judgment is appropriate when, viewing the evidence an d all factual inferences in the light most favorable to the

non - moving party, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III. DISCUSSION This case requires us t o determine whether the FHA’s design

- and

construction guidelines provide a standard for determining whethe r discrimination under subsections (f)(1) and (f)(2) exists outside of the design and construction
contexts . We hold that the guidelines do not

. Des pite the fact that BHDR was not involved in the design or construction of the D istrict, all of Harding ’s claims that
BHDR violated subsections (f)(1) and (f)(2) are alleged through the lens of the

Case: 13-11805 Date Filed: 04/14/2014 Page: 6 of 127 design

- and

- construction guidelines in subsection (f)(3)

. Harding allege d a series of inaccessible conditions resulting from Orlando Apartments’ initial failure to comply with the guidelines and argue d that BHDR’s failure to remedy th o se conditions constitutes an independent act of discrimination prohibited by th e FHA. Harding’s underlying premise is that § 3604(f)(3)(C) not only requires designers and builders to adhere to certain standards of accessibility but also imposes an ongoing duty on subsequent owners to ensure that a dwelling conforms to those standard s. As the FHA’s plain text demonstrates, this premise is erroneous. The design

- and

- construction guidelines are prefaced with the phrase “ in connection with the design and construction ” of a covered dwelling. 42 U.S.C. § 3604(f)(3)(C) (emphasis added). This phrase plainly sets a significant limitation on the guidelines’ application, and there are substantial justifications for this limitation . For instance , accessible designs that are easy to implement at the design

- and

- construction phase may be excess ively costly and difficult to add once a dwelling h as been built

. Reading the design

- and

- construction limitation out of the guidelines would therefore result in requirements that are potentially far more burd ensome than Congress intended. In addition, extending the guidelines beyond the design and construction contexts imposes far harsher burdens on the trade of covered dwellings because subsequent owners would be subject to liability for another party ’s failure to follow the guidelines. Potential owne rs would need to

Case: 13-11805 Date Filed: 04/14/2014 Page: 7 of 128 thoroughly investigate compliance with the guidelines prior to purchasing a covered dwelling or risk liability. Congress could easily have written the design

- and

- construction guidelines to establish a general standard of discrimination ap plicable to all owners of covered dwellings , but instead it included a clear, significant limitation. We cannot read this limitation out of the guidelines. See Duncan v. Walker , 533 U.S. 167, 174,
1 2 1 S. Ct. 2120, 2125 (2001) (“It is our duty to give eff ect, if possible, to every clause and word of a statute.” (internal quotation marks omitted)). We therefore conclude that Harding cannot state a claim under the FHA against BHDR, which was not involved in the design or construction of the District, by ref erence to § 3604(f)(3)(C)

. The FHA’s plain text dictates the foregoing conclusion , and we need not look any further. Harris v. Garner , 216 F.3d 970, 972 (11th Cir. 2000) (en banc) (“We begin our construction of [a statute] where courts should always begi n the process of legislative interpretation, and where they often should end it as well, which is with the words of the statutory provision.”)

. Nonetheless, we note that the FHA’s legislative history , as well as administrative guidance provided by the Dep artment of Housing and Urban Development (HUD) , 6 support our conclusion

.

6 Congress has authorize d HUD to implement and administer the FHA, and its interpretations of the FHA are ordinarily entitled to deference. Meyer v. Holley , 537 U.S. 280, 287

- 88, 123 S. Ct. 824, 830 (2003).

Case: 13-11805 Date Filed: 04/14/2014 Page: 8 of 129 T he FHA’s legislative history reflects Congress’s understanding that the design

- and

- construction guidelines would not be applied in other contexts. In the report of the Committee on the Judiciary of the House of Representatives recommending passage of the provisions at issue in this appeal ( the House Re port), the Committee emphasized the comparative ease of incorporating accessible features into a dwelling at the design

- and

- construction stage. H.R. Rep. No. 100

- 711, at 27 (1988), reprinted in 1988 U.S.C.C.A.N. 2173, 2188 (“The Committee believes that th ese basic features of adaptability are essential for equal

access . . . as well as being easy to incorporate in housing design and
construction .” (emphasis added)); id. (“When reinforcements are installed as a part of new construction, there is no aestheti c change to the bathroom and it is of minimal expense. Having to add reinforcements later, however, can be a major structural undertaking with associated expense.”); id. at 18, 1988 U.S.C.C.A.N. at 2179 (noting that designing dwellings with accessible fea tures would allow occupants with handicaps to “install[] grab bars

. . . without major renovation or structural change”); id. (describing the statute’s “modest requirements” and noting it does “not add significant additional costs” and “does not require

. . . the renovation of existing units”). The House Report therefore demonstrate s Congress’s intent to mitigate the burdens of compliance with the guidelines by applying them only during design and construction when they can be implemented

Case: 13-11805 Date Filed: 04/14/2014 Page: 9 of 1210 more easily and w ith less expense. Adopting Harding’s more expansive reading would undermine Congress’s purpose in limiting § 3604(f)(3)(C) to design and construction and transform the FHA’s “modest requirements” into something far

more onerous. Harding cannot escape th e clear import of the FHA’s legislative history by pointing to the following statement in the House Report: “To the extent that terms, conditions, privileges, services or facilities operate to discriminate against a person because of a handicap, eliminatio n of the discrimination would be required in order to comply with the requirements of this subsection.” Id. at 23

- 24 , 1988
U.S.C.C.A.N. at 2184

- 85. This quote fails to bolster Harding’s claims because he has not shown the existence of discrimination by B HDR as the term is used in the FHA. Instead, Harding has relied on the design

- and

- construction guidelines, but as we have explained, these guidelines are insufficient to establish the discrimination of a party uninvolved in the design or construction of a dwelling . Accordingly, the House Report does not conflict with our understanding of the FHA. HUD’s guidance similarly supports our interpretation of the design

- and

construction guidelines . HUD w as asked about the applicability of the design

- and

constru ction guidelines to subsequent purchasers and responded with a letter indicating that, subject to exceptions not at issue in the instant case, subsequent owners are not appropriate defendants for claims based on the design

- and

Case: 13-11805 Date Filed: 04/14/2014 Page: 10 of 1211 construction guidelines. HUD has also published a frequently

- asked

- questions page with a similar question and response

. In both cases, HUD’s interpretation of the design

- and

- construction guidelines is consistent with our own

. Harding concedes as much but disagrees with the amount o f deference to which HUD’s guidance is entitled on the design

- and

- construction issue. We decline to address these arguments because our independent reading of the stat ut e leads to the same conclusion HUD reached. Thus, whether we defer to and rely on HUD ’s guidance is of no consequence; our decision would be the same in either case. Suffice it to say that HUD’s interpretation of the design

- and

- construction guidelines could only strengthen our conclusion.
Because the guidelines have no bearing outside of the design and construction contexts, we affirm the district court’s grant of summary judgment to
BHDR. When, as in the instant case, a plaintiff attempts to establish a subsequent owner’s discrimination purely by reference to conditions that do not comp ly with the design

- and

- construction guidelines, his claims must fail. 7

7 We reject Harding’s argument that the design

- and

- construction violations he allege d are , on their own, sufficient to claim that BHDR, by failing to remedy them, has “made housing unavailable” on the basis of a handicap in violation of subsection (f)( 1 ). If any party has made the Dis trict “ unavailable ” within the meaning of subsection (f)(1) , it is Orlando Apartments, whose design and construction of the District actually produced the alleged violations. Moreover, Harding has not sufficiently alleged that the violations go so far as to render the District truly “unavailable” to him. At most, his allegations raise questions of habitability , not availability, and subsection (f)( 1 ) addresses only the latter. See, e.g. , Clifton Terrace Assocs., Ltd. v. United Techs. Corp. , 929 F.2d 714 , 719 (D.C. Cir. 1991) (“A lack of elevator services is a matter of habitability, not availability, and does not fall within the terms of [§ 3604(f)(1)].”); id.

Case: 13-11805 Date Filed: 04/14/2014 Page: 11 of 1212 IV. CONCLUSION In this appeal, Harding raises concerns to which we are not unsympathetic; namely, the difficulties people with handicap s can encounter in trying to find suitable, accessible housing. However, Harding complains of violations of the FHA’s design

- and

- construction guidelines without offering any explanation why the remedy the FHA provides for these violations

— i.e., an action against a dwelling ’s designer or builder

— is insufficient. Instead, Harding attempts to expand the guidelines to reach subsequent owners who have had nothing to do with a dwelling’s design or construction. The plain text of the FHA precludes such an expansion . We hold tha t an FHA plaintiff cannot establish the discrimination of a defendant who was uninvolved in the design or construction of a dwelling by reference to the guidelines at § 3604(f)(3)(C). T he district court therefore did not err in granting summary judgment t o BHDR. AFFIRMED.

at 719

- 20 (“Although the denial of certain essential services relating to a dwelling, such as mo rtgage financing, sewer hookups, zoning approval, or basic utilities, might result in the denial of housing, this interpretation

. . . does not extend [§ 3604(f)(1)] to questions of habitability.” (emphasis added)) ; see also Bloch v. Frischholz , 587 F.3d 7 71, 776

- 77 (7th Cir. 2009) (en banc) (suggesting a defendant could make housing unavailabl e in violation of the FHA through a “constructive eviction,” which ordinarily require s a plaintiff to show a dwelling is “unfit for occupancy, often to the point that she is compelled to leave” (internal quotation marks omitted)). While we do not resolve the question whether design

- and

- construction violations can ever render housing unavailable in violation of subsection (f)(1), Harding’s allegations are insufficient to make such a claim in the instant case. W e can infer from the design

- and

- construction violations Harding alleges that the District is less desirable to him, but the violations do not , on their own, support a claim that the District is “unfit for occupan cy.” See Bloch , 587 F.3d at 777.

Case: 13-11805 Date Filed: 04/14/2014 Page: 12 of 12