PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JACOB SCOGGINS, an individual; 

DAN SCOGGINS; DEBBIE SCOGGINS,

Plaintiffs-Appellants,

v.

LEE’S CROSSING HOMEOWNERS  No. 11-2202

ASSOCIATION, a Virginia

corporation and Property Owner’s

Association; JACK H. MERRITT, JR.,

an individual,

Defendants-Appellees. 

JACOB SCOGGINS, an individual; 

DAN SCOGGINS; DEBBIE SCOGGINS,

Plaintiffs-Appellees,

v.

LEE’S CROSSING HOMEOWNERS  No. 11-2373

ASSOCIATION, a Virginia

corporation and Property Owner’s

Association; JACK H. MERRITT, JR.,

an individual,

Defendants-Appellants. 

Appeals from the United States District Court

for the Eastern District of Virginia, at Alexandria.

Liam O’Grady, District Judge.

(1:10-cv-01157-LO-IDD)
Argued: March 20, 2013

Decided: May 17, 2013

Before NIEMEYER, MOTZ, and KEENAN, Circuit Judges.

Affirmed in part, vacated in part and remanded by published

opinion. Judge Keenan wrote the opinion, in which Judge

Niemeyer and Judge Motz joined.

COUNSEL

ARGUED: Charles Duke Ferguson, MARKO & MAGOLNICK, Miami, Florida, for Appellants/Cross-Appellees.

Michael Sterling Dingman, REED SMITH, LLP, Falls

Church, Virginia, for Appellees/Cross-Appellants. ON

BRIEF: J. Damian Ortiz, THE JOHN MARSHALL LAW

SCHOOL, Fair Housing Legal Clinic, Chicago, Illinois;

Miguel M. de la O, DE LA O, MARKO, MAGOLNICK &

LEYTON, Miami, Florida, for Appellants/Cross-Appellees.

Richard D. Kelley, REED SMITH, LLP, Falls Church, Virginia, for Appellees/Cross-Appellants.

OPINION

BARBARA MILANO KEENAN, Circuit Judge:

In this appeal, we consider the district court’s summary

judgment holding that the plaintiffs, Dan Scoggins, Debbie

Scoggins, and their son Jacob Scoggins (collectively, the

plaintiffs), were not entitled under the Fair Housing Amendments Act of 1988, 42 U.S.C. §§ 3601 through 3631 (the

FHAA), to an accommodation and a modification that they

2 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
requested from the Lee’s Crossing Homeowners Association

(the HOA). The plaintiffs had requested: (1) a modification to

add a ramp leading to the front door of their home for use by

Jacob, who requires the use of a wheelchair; and (2) an

accommodation to an HOA policy prohibiting the use of certain types of vehicles to allow Jacob to use an All-Terrain

Vehicle (ATV) within the Lee’s Crossing subdivision (Lee’s

Crossing or the community).

After the HOA failed to grant their requests, the plaintiffs

filed a complaint against the HOA and Jack Merritt, Jr., a

member of the HOA’s board of directors (together, the defendants). The district court granted the defendants’ motion for

summary judgment, but denied their request for attorneys’

fees and costs. The plaintiffs appeal from the district court’s

award of summary judgment to the defendants, and the defendants appeal from the court’s denial of their request for attorneys’ fees and costs.

Upon our review, we vacate the district court’s holding on

the merits of the modification request for the wheelchair

access ramp, because that claim is not ripe. We affirm the district court’s holding with respect to the accommodation

request for permission to use an ATV, because that request

was not "reasonable" within the meaning of the FHAA. We

also affirm the district court’s denial of the defendants’

request for attorneys’ fees and costs.

I.

Dan and Debbie Scoggins purchased a ten-acre lot in 2002

in Lee’s Crossing, a subdivision in Loudoun County, Virginia, where they built a home in which they have resided for

several years.1 Dan and Debbie live with their 22-year-old son

1We view the facts in the light most favorable to the plaintiffs as the

non-moving party. PBM Prods., LLC v. Mead Johnson & Co., 639 F.3d

111, 119 (4th Cir. 2011). 

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 3
Jacob, who requires the use of a wheelchair because he is partially paralyzed as a result of a car accident that occurred

when he was a child.

All individuals purchasing property in Lee’s Crossing are

required to abide by the rules of the HOA and certain restrictive covenants (collectively, the covenants). The covenants

require that homeowners obtain approval from the Lee’s

Crossing Architectural Review Board (the review board) for

any changes that the owners seek to make affecting the external appearance of their property. During construction of their

home, the plaintiffs were granted permission from the review

board to build a walk-out basement to facilitate Jacob’s access

to the residence. The plaintiffs later installed a wheelchair

ramp in their garage, which is attached at the main level to

one end of their home, giving Jacob an additional means of

entering the residence in his wheelchair.

The covenants also contain rules governing activities conducted on the common grounds of Lee’s Crossing. These

rules include a policy prohibiting the use of off-road vehicles

such as ATVs on the common driveways and roads of the

community.

The plaintiffs requested an exception to the HOA’s policy

prohibiting the use of ATVs (the ATV request). They made

this request because the streets of Lee’s Crossing are unpaved,

making it difficult for Jacob to travel within the community

using either his manual or power wheelchair.2 The plaintiffs

asserted that Jacob’s use of an ATV would allow him to

2

Jacob also owns a hand-powered tricycle that he sometimes uses for

recreational purposes. The plaintiffs assert, however, that the tricycle is

not an appropriate substitute for an ATV because Jacob experiences pain

when he begins to operate the tricycle. Jacob also was issued a driver’s

license by the Commonwealth of Virginia, but the plaintiffs assert that it

is not practical for him to use an automobile for short trips within the

neighborhood. 

4 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
accompany his family and friends on walks within the community.

In May 2009, Debbie Scoggins sent an email to representatives of the HOA, in which she asked that Jacob be allowed

to use an ATV on the common roads of Lee’s Crossing. At

HOA meetings in July 2009 and September 2009, the members of the Lee’s Crossing board of directors (the board of

directors) discussed the ATV request, but "tabled" the request

on each occasion pending the receipt of further details. However, the board members did not contact the plaintiffs to

obtain these additional details. Further, although these board

meetings were open to the public, the plaintiffs were not notified that the ATV request was scheduled to be discussed and

they did not attend either meeting.

The ATV request remained dormant until August 26, 2010,

when Debbie Scoggins sent an email to the property manager

for Lee’s Crossing, renewing the ATV request and expressing

concern that the HOA had ignored the previous request. A

representative of the board of directors replied on September

11, 2010, 16 months after the plaintiffs’ initial ATV request,

seeking additional information concerning the request. The

plaintiffs did not respond to this inquiry.

About this same time, on September 20, 2010, the plaintiffs

submitted a written request to the review board seeking permission to construct a ramp leading to the front door of their

home (the ramp request).3 The covenants require that homeowners planning such external construction submit a written

application to the review board, containing "detailed plans

and specifications," including the size and materials for the

proposed construction.

3The plaintiffs had made verbal requests to Merritt in 2003 and 2007

seeking permission to construct the ramp, which Merritt immediately "denied" based on aesthetic concerns. 

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 5
Under the covenants, the review board is allotted 30 days

to respond to a written request.4 The covenants also grant the

review board "the unilateral right to request additional information as well as the right to reject any and all applications

which are not complete."

The plaintiffs did not wait for a denial or the expiration of

the 30-day period, but filed a complaint in the district court

on October 13, 2010, which included a claim based on the

"denial" of their ramp request. The review board later

responded to the plaintiffs’ ramp request in a letter dated

October 18, 2010, which stated that the board denied the

application "procedurally, as being incomplete." The review

board also identified "numerous missing items in the application," and asked that those items be submitted. Finally, the letter stated that the review board’s response was "not a

substantive denial of a request for a second ramp at your

house, but merely requires you to provide a complete application so the [HOA] can properly determine what you wish to

construct."

In their amended complaint filed under the FHAA, the

plaintiffs asserted that the defendants’ failure to allow a reasonable modification of the plaintiffs’ home, to add a front

ramp (the ramp request claim), violated 42 U.S.C.

§ 3604(f)(3)(A). The plaintiffs further alleged that the defendants’ refusal to permit a reasonable accommodation allowing

Jacob to operate an ATV within the community (the ATV

request claim) violated 42 U.S.C. § 3604(f)(3)(B). The plaintiffs sought monetary damages and injunctive relief directing

the defendants to grant permission for construction of the

front ramp and to approve the ATV request.

4Pursuant to the covenants, if the review board fails to act within the initial 30-day period, the homeowner may send a notice by certified mail to

the board requesting action. If the review board fails to act within 30 days

from receiving the certified notice, the request is deemed approved. 

6 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
Upon completion of discovery, the defendants filed a

motion for summary judgment.5 The district court granted the

defendants’ motion, concluding that the plaintiffs’ evidence

failed to show that the ramp was "necessary," within the

meaning of the FHAA. The court alternatively held that the

ramp request claim was premature because the review board

had not denied the ramp request but, rather, timely had

informed the plaintiffs that the ramp request would be considered if they completed the application process and filed the

necessary materials. With respect to the ATV request claim,

the district court held that the plaintiffs failed to produce evidence showing that the ATV request was either "reasonable"

or "necessary," within the meaning of the FHAA.6 The court

also held alternatively that the ATV request claim was premature.

After the district court entered final judgment, the defendants filed a motion seeking attorneys’ fees and costs. The

court denied the motion, holding that the lawsuit was not frivolous and that, therefore, an award of attorneys’ fees and costs

was not required under the FHAA. The court also declined to

apply a provision in the covenants requiring that a homeowner pay the HOA’s attorneys’ fees and costs if the HOA

substantially prevailed in litigation brought by the homeowner. The court concluded that such a provision was unenforceable in this action as being contrary to the public policy

interest of encouraging private parties to pursue potential

FHAA violations.

II.

We first address the issues presented in the plaintiffs’

5The plaintiffs filed a cross-motion for partial summary judgment,

which the district court denied, that is not at issue in this appeal. 

6The district court also held that the evidence failed to show that Merritt

acted with discriminatory intent in opposing the ATV request and the

ramp request. 

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 7
appeal. We review de novo the district court’s award of summary judgment in favor of the defendants, viewing the facts,

and all reasonable inferences that may be drawn from those

facts, in the light most favorable to the plaintiffs. See Bonds

v. Leavitt, 629 F.3d 369, 380 (4th Cir. 2011); S.C. Green

Party v. S.C. State Election Comm’n, 612 F.3d 752, 755 (4th

Cir. 2010). Summary judgment is appropriate only when

"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); Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986); Merritt v. Old Dominion Freight Line, Inc., 601 F.3d

289, 295 (4th Cir. 2010).

A.

We begin by addressing the plaintiffs’ ramp request claim.

The plaintiffs initially assert that the district court erred in

concluding that the ramp request claim was premature. They

argue that this claim was ripe for judicial consideration

because the defendants both actually and constructively

denied the ramp request before the present complaint was

filed in the district court. We disagree with the plaintiffs’

argument. 

The "ripeness" requirement originates in the "case or controversy" constraint of Article III, and presents a "threshold

question[ ] of justiciability." Lansdowne on the Potomac

Homeowners Ass’n, Inc. v. OpenBand at Lansdowne, LLC, __

F.3d ___, 2013 WL 1364274, at *4 (4th Cir. Apr. 5, 2013)

(Lansdowne); see also DaimlerChrysler Corp. v. Cuno, 547

U.S. 332, 341 (2006) (explaining that "[i]f a dispute is not a

proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so"). The

issue of ripeness entails an analysis considering the fitness of

the issues before the court, as well as the hardship that the

parties will experience if the court withholds consideration of

the dispute. Lansdowne, 2013 WL 1364274, at *7 (citing Miller v. Brown, 462 F.3d 312, 319 (4th Cir. 2006)).

8 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
"The doctrine of ripeness prevents judicial consideration of

issues until a controversy is presented in clean-cut and concrete form." Miller, 462 F.3d at 318–19 (citation and internal

quotation marks omitted). As explained by the Supreme

Court, the purpose of the ripeness doctrine is to require courts

to avoid taking premature judicial action, thereby preventing

them from becoming entangled in "abstract disagreements."

Abbott Labs. v. Gardner, 387 U.S. 136, 148 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99,

105 (1977). 

A case is fit for adjudication "when the action in controversy is final and not dependent on future uncertainties." Miller, 462 F.3d at 319; Franks v. Ross, 313 F.3d 184, 195 (4th

Cir. 2002). Stated alternatively, "[a] claim is not ripe for adjudication if it rests upon contingent future events that may not

occur as anticipated, or indeed may not occur at all." Texas v.

United States, 523 U.S. 296, 300 (1998) (citation and internal

quotation marks omitted); see also Bryant Woods Inn, Inc. v.

Howard Cnty., Md., 124 F.3d 597, 602 (4th Cir. 1997) (in

determining whether a claim is ripe, we "decide whether the

issue is substantively definitive enough to be fit for judicial

decision and whether hardship will result from withholding

court consideration").

An issue becomes ripe for adjudication under the FHAA

when a disabled resident first is denied a reasonable and necessary modification or accommodation. See Bryant Woods,

124 F.3d at 602. As the parties bringing this FHAA action, the

plaintiffs have the burden of establishing that their claims are

ripe. See Miller, 462 F.3d at 319.

It is undisputed that the plaintiffs’ first written application

to construct the ramp was made on September 20, 2010.

Under the covenants, the review board was required to

respond to that application within 30 days. However, the

plaintiffs did not wait the full 30-day period for a response,

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 9
but instead initiated the present court action on October 13,

2010. 

Additionally, as developed in discovery in this case, the

review board sent the plaintiffs a letter on October 18, 2010,

stating that the application was "incomplete" and asking for

further information about the proposed ramp. Although the

plaintiffs do not dispute the board’s finding that the application was incomplete, they declined to supplement the application as requested by the review board. In light of these facts,

the defendants did not "deny" the ramp request, as would be

necessary to present a controversy in "clean-cut and concrete

form" appropriate for adjudication by a federal court. Miller,

462 F.3d at 318–19. Further, contrary to the plaintiffs’ argument, the defendants’ actions have not amounted to a constructive denial of the ramp request.

We also observe that the defendants stipulated during oral

argument before this Court that the review board will approve

the plaintiffs’ ramp request upon their submission of the specifications requested by the board. The fact that the defendants

will grant the ramp request upon the plaintiffs’ proper submission of that request is material to our analysis of the hardship

prong of the ripeness inquiry. See Abbott Labs., 387 U.S. at

149 (discussing hardship prong of the ripeness analysis);

Lansdowne, 2013 WL 1364274, at *7-8 (same). We further

observe that the ramp request claim is not time-sensitive, and

thus a holding that the claim is not ripe will not present an

immediate threat to the plaintiffs. See Lansdowne, 2013 WL

1364274, at *8 (stating that the hardship prong is analyzed by

considering the immediacy of any threat and the burden

imposed on a plaintiff) (citation omitted). Moreover, our holding encourages, rather than forecloses, the plaintiffs’ ability to

submit the information requested by the review board, and

thus withholding consideration of this claim does not impose

a significant burden on the plaintiffs. Therefore, we conclude

that the parties will not experience a significant hardship as a

result of our withholding consideration of the ramp request

10 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
claim. Accordingly, we hold that the ramp request claim is not

ripe for review, because final action on the request is still

forthcoming and is "dependent on future uncertainties." See

Miller, 462 F.3d at 319.

In reaching this conclusion, we agree with the district

court’s determination that the verbal inquiries made by the

plaintiffs in 2003 and 2007 are barred from consideration in

determining ripeness, because those requests were made outside the two-year statute of limitations. See 42 U.S.C.

§ 3613(a)(1)(A). Those oral requests also do not qualify for

consideration pursuant to the "continuing violation" doctrine,

under which acts occurring outside the statute of limitations

may be considered when there is a "fixed and continuing

practice" of unlawful acts both before and during the limitations period. Nat’l Advertising Co. v. City of Raleigh, 947

F.2d 1158, 1166-67 (4th Cir. 1991) (citation omitted); see

also Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81

(1982) (applying "continuing violation" doctrine to Fair

Housing Act claim).

Here, even if we assume that those two oral requests made

during a seven-year period qualified as valid applications for

the review board’s consideration, we conclude that the

board’s failure to act on them did not constitute a "fixed and

continuing practice." See Nat’l Advertising Co., 947 F.2d at

1166-67; cf. A Soc’y Without A Name v. Virginia, 655 F.3d

342, 348 (4th Cir. 2011) (noting that for purposes of continuing violation doctrine, plaintiff must show that illegal act "did

not occur just once, but rather in a series of separate acts")

(citation and internal quotation marks omitted). Thus, we hold

that the continuing violation doctrine is not applicable in this

case. Accordingly, because the ramp request claim is not ripe

for judicial review, we vacate the portion of the district

court’s judgment adjudicating the merits of that claim in favor

of the defendants. See Giovani Carandola, Ltd. v. Fox, 470

F.3d 1074, 1085 n.5 (4th Cir. 2006) (holding that portion of

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 11
plaintiff’s complaint was not ripe, and vacating that aspect of

the district court’s decision). 

B.

We next address the issue whether the district court erred

in awarding summary judgment to the defendants on the ATV

request claim. Initially, we observe that, contrary to the district court’s conclusion, the ATV request claim was not premature. A denial of a request need not be explicit, but rather

may be treated as a "constructive" denial based on the decision maker’s conduct. See Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir. 2000) (noting that a denial

under the FHAA may be "actual or constructive, as an indeterminate delay has the same effect as an outright denial"). 

It is undisputed that the plaintiffs made the ATV request in

writing in May 2009, and there is no suggestion that the manner in which they made their request violated the HOA’s procedures. The board of directors twice "tabled" the ATV

request pending a decision to seek additional information

from the plaintiffs, but the board did not ask the plaintiffs to

provide such information until more than 15 months later.

Under these circumstances, the HOA’s failure to take any

action for such an extended period operated as a constructive

denial of the ATV request.7See Groome Res., 234 F.3d at 199

(concluding that defendant’s failure to act for over three

months on an application for an accommodation constituted

a constructive denial of the accommodation request, and that

the issue therefore was ripe for review). Accordingly, we turn

to address the issue whether the HOA’s constructive denial of

the ATV request violated the FHAA. 

7Although not dispositive, we note that the defendants conceded during

oral argument before this Court that they would have denied the plaintiffs’

ATV request, even had the HOA received the additional information

sought. 

12 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
The FHAA forbids discrimination against any person

because of a handicap or disability in the provision of services

in connection with a dwelling.8See 42 U.S.C. §§ 3601–3631;

Bryant Woods, 124 F.3d at 602-03 (discussing the FHAA).

The FHAA defines "discrimination" in relevant part as "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." 42 U.S.C. § 3604(f)(3)(B); Bryant Woods,

124 F.3d at 603.

A party raising an accommodation claim under the FHAA

bears the burden of establishing that the proposed accommodation is "(1) reasonable and (2) necessary (3) to afford handicapped persons equal opportunity to use and enjoy housing."

Bryant Woods, 124 F.3d at 603-04 (citing 42 U.S.C.

§ 3604(f)(3)). For purposes of the ATV claim, we focus our

analysis on the "reasonableness" prong of this standard. In

determining whether a proposed accommodation is reasonable

under the FHAA, we undertake a fact-specific inquiry, considering, among other things, "the extent to which the accommodation would undermine the legitimate purposes and

effects of [the] existing [ ] regulations and the benefits that the

accommodation would provide" to the plaintiff. Id. at 604.

In enacting the FHAA, Congress made clear that the health

and safety of other persons are relevant factors in determining

whether a person or entity violated the FHAA. See 42 U.S.C.

§ 3604(f)(9) ("Nothing in this subsection requires that a

dwelling be made available to an individual whose tenancy

would constitute a direct threat to the health or safety of other

individuals.") (emphasis added).9 We join other courts that

8There is no dispute that Jacob is a person with a "handicap" or "disability," within the meaning of the FHAA. 

9Although the language of § 3604(f)(9) mentions a "dwelling [to] be

made available," the concern about a threat to the safety of others is also

relevant to a reasonable accommodation claim. See Dadian v. Village of

Wilmette, 269 F.3d 831, 840 n.6 (7th Cir. 2001) (citing School Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 288 n.16 (1987)). 

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 13
have recognized this principle, and hold that the potential for

personal injury is a relevant consideration in examining

whether a modification or accommodation request was reasonable. See Dadian v. Village of Wilmette, 269 F.3d 831,

840-41 (7th Cir. 2001) (analyzing 42 U.S.C. § 3604(f)(9) and

observing that a defendant may, in certain circumstances,

deny a plaintiff’s accommodation request if that request poses

a direct threat to safety of others)10; Howard v. City of Beavercreek, 108 F. Supp. 2d 866, 875 (S.D. Ohio 2000) (holding

that defendant was not required by the FHAA to grant plaintiff permission to construct a six foot fence to alleviate the

effects of post traumatic stress disorder, because the fence

posed a threat to pedestrian and vehicular traffic), aff’d on

other grounds, 276 F.3d 802 (6th Cir. 2002); Bangerter v.

Orem City Corp., 46 F.3d 1491, 1503-04 (10th Cir. 1995)

(observing that the FHAA permits "reasonable restrictions on

the terms or conditions of housing [to disabled individuals]

when justified by public safety concerns," so long as those

concerns are not based on "blanket stereotypes" about persons

with disabilities). 

Without question, the plaintiffs established that use of an

ATV would make it easier for Jacob to travel on the unpaved

roads of Lee’s Crossing, and that it would be impractical for

him to use his power wheelchair for this purpose because of

the potential damage to the wheelchair’s electronic components. Accordingly, the plaintiffs established that the use of an

ATV would afford Jacob the benefit of easier transportation

within the community.

Nevertheless, the present record shows that such benefit to

10In Dadian, the court observed that it was the defendant’s burden to

show that the requested accommodation posed substantial safety concerns.

269 F.3d at 840. We need not determine in this case which party holds the

burden of proof because, as we explain later, the defendants produced substantial evidence establishing that the ATV request posed significant

safety concerns, and the plaintiffs failed to rebut this evidence. 

14 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
Jacob is outweighed substantially by the potential danger that

use of the ATV could cause to the residents of the community. The defendants produced overwhelming evidence showing that the use of an ATV as a general matter within Lee’s

Crossing, and Jacob’s use of such a vehicle in particular, present a significant threat to Jacob’s own safety as well as to the

safety of the other residents of the community. 

Among other items, the defendants included in the record

a copy of the owner’s manual (the manual) for the ATV

model that Jacob sought to operate. The manual emphasizes

that the use of the ATV is "FOR OFF-ROAD USE ONLY,"

and that the ATV does not conform to federal motor vehicle

safety standards. The manual contains the additional warning

that "the ATV does not have turn signals and other features

required for use on public roads." Separately, the manual

again states that "[y]ou should never ride your ATV on public

streets, roads or highways, even if they are not paved. Drivers

of street vehicles may have difficulty seeing and avoiding

you, which could lead to a collision." (Emphasis added.)

The evidence further showed that drivers traveling the

roads of Lee’s Crossing are permitted to operate their vehicles

at speeds up to 35 miles per hour, in excess of the speed limits

in effect on many public roads. Thus, it is of particular note

that the Code of Virginia prohibits, as a general matter, the

operation of any all-terrain vehicle "[o]n any public highway,

or other public property." Va. Code § 46.2-915.1. 

We also observe that the defendants’ expert witness, Gary

E. Kilpatrick, a certified professional engineer with experience in the operation of ATVs, submitted a report describing

the dangers inherent in operating an ATV in an area such as

Lee’s Crossing. In his report, Kilpatrick stated that "ATVs are

designed specifically for operation on off-road dirt terrain,"

and that the tires of an ATV "do not handle well on hard

packed dirt roads, graveled roads and hard surfaced paved

roads." Kilpatrick further opined that ATVs are difficult for

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 15
drivers of other vehicles to see and are not equipped with

headlights, brake lights, or other devices to make them visible

to other drivers on the road.

In addition to this evidence concerning the general dangers

of operating an ATV within Lee’s Crossing, the defendants

produced evidence showing the increased danger posed in

ATV use by persons who have physical impairments. In his

report, Kilpatrick stated that riding an ATV is physically

demanding, and that, to operate an ATV safely, a rider must

"have full use of his entire body, especially his hands, arms,

torso and legs." Kilpatrick, who examined Jacob’s medical

reports, opined that the physical limitations caused by Jacob’s

partial paralysis render his use of an ATV very dangerous,

and that the medication he takes to control spasms in his

lower extremities poses additional dangers. Accordingly, Kilpatrick concluded that "because of the hazards associated with

riding ATVs, the surrounding terrain and his physical limitations, [Jacob] is and will be a danger to himself, other drivers,

[and] pedestrians" if he were allowed to operate an ATV

within Lee’s Crossing.

The plaintiffs have not refuted the defendants’ evidence

that any operation of an ATV for other than off-road uses is

inherently dangerous.11 Instead, the plaintiffs challenge Kilpatrick’s conclusion that Jacob’s physical limitations make

his use of an ATV exceptionally dangerous. The plaintiffs

11The plaintiffs, however, cite the provision in the covenants that allow

a homeowner to petition the HOA for permission to use an off-road vehicle such as an ATV within Lee’s Crossing. But the mere mention in the

covenants of that possibility, without evidence that such petitions are

sometimes or routinely granted, does not cast doubt on the safety concerns

underlying the general prohibition of such vehicles on the community’s

common roads. And, although the plaintiffs further assert that certain

maintenance workers employed by the HOA "use four-wheeled vehicles

similar to ATVs," the only evidence on this point cited by the plaintiffs

relates to a six-wheeled farm vehicle that, according to the testimony, is

not similar to an ATV. 

16 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
rely primarily on Jacob’s own testimony, in which he stated

that he could operate an ATV safely, and on a video recording

of Jacob operating an ATV on the plaintiffs’ property without

incident.12 Having considered this evidence alongside the

defendants’ evidence, we conclude that the plaintiffs have not

presented facts sufficient to create an issue for trial whether

Jacob could operate an ATV within Lee’s Crossing without

creating a danger to the residents of the community. Cf. Williams v. Giant Food Inc., 370 F.3d 423, 433 (4th Cir. 2004)

(plaintiff’s subjective belief about her abilities, absent sufficient objective corroboration, cannot defeat summary judgment). 

In light of this conclusion, we need not reach the other elements of the ATV request claim, including whether the

request would be "necessary" to afford Jacob an equal opportunity to enjoy the Lee’s Crossing community.13 Accordingly,

we affirm the district court’s award of summary judgment in

the defendants’ favor on the ATV request claim, because the

plaintiffs failed to establish that the proposed accommodation

is "reasonable," within the meaning of the FHAA. See Bryant

Woods, 124 F.3d at 604 (directing courts to consider the benefits of the proposed accommodation against the extent to

which the legitimate purposes and effects of the regulation

would be undermined by the accommodation).

III.

We next consider the defendants’ contention on crossappeal that the district court erred in declining to award them

12The self-selective nature of the video submitted by the plaintiffs,

along with its controlled environment, does not sufficiently constitute "objective corroboration" in this case. Cf. Williams v. Giant Food Inc., 370

F.3d 423, 433 (4th Cir. 2004) (citation omitted). 

13In light of our conclusion that the denial of the ATV request did not

constitute a violation of the FHAA, we need not consider whether Merritt

could be found individually liable for the HOA’s action in denying that

request. 

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 17
attorneys’ fees and certain additional costs incurred in defending this matter.14 The defendants filed a motion seeking an

award of attorneys’ fees and costs, relying on the attorneys’

fees and costs provision of the FHAA, 42 U.S.C.

§ 3613(c)(2), as well as on the language in the covenants providing for the payment of attorneys’ fees when the HOA is a

prevailing party. 

With respect to their motion, the defendants requested an

evidentiary hearing at which they could present evidence concerning the "reasonableness of [their] invoices, costs and

expenses." The record does not show the nature or the amount

of such costs at issue in the motion for attorneys’ fees and

costs, nor do the defendants argue on appeal the nature or

amount of those additional costs sought. 

We also observe that the defendants do not assert a separate

basis for entitlement to an award of these unspecified costs

independent from their asserted right to an award of reasonable attorneys’ fees. The district court considered the defendants’ motion without distinguishing the attorneys’ fees

request from the present request for costs, and the defendants

do not argue on appeal that the district court erred in considering those requests in tandem.

In analyzing the merits of the defendants’ contention that

they are entitled to attorneys’ fees and costs, we observe that

14Separately, in the district court, the defendants filed a bill of costs pursuant to 28 U.S.C. § 1920 and the Eastern District of Virginia’s Taxation

of Costs Guidelines (the guidelines). The defendants sought in the bill of

costs reimbursement of $8,413.81 for fees paid to court reporters, certain

printing costs, private process server fees and delivery costs, and allowances for the appearance of certain witnesses and their travel expenses.

The district court granted the bill of costs in the amount of $7,508.81,

declining to award the defendants any money for private process server

fees and delivery costs. The parties do not argue that the district court

erred in awarding the defendants $7,508.81 and, accordingly, the court’s

decision relating to the bill of costs is not at issue in this appeal. 

18 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
the defendants base the first part of their argument on the

FHAA provision granting district courts the discretion to

award attorneys’ fees and costs to a "prevailing party." See 42

U.S.C. § 3613(c)(2) (providing that "the court, in its discretion, may allow the prevailing party . . . reasonable attorney’s

fee[s] and costs"); Bryant Woods, 124 F.3d at 606. However,

the Supreme Court has held that when an action involves a

civil rights matter, and the prevailing party is a defendant,

attorneys’ fees may be awarded by a district court only "upon

a finding that the plaintiff’s action was frivolous, unreasonable, or without foundation, even though not brought in subjective bad faith." Christiansburg Garment Co. v. EEOC, 434

U.S. 412, 421 (1978) (construing § 706(k) of Title VII of the

Civil Rights Act of 1964). 

This Court held in Bryant Woods that the above standard in

Christiansburg also applies to attorneys’ fees requests for

claims brought under the FHAA. 124 F.3d at 606. We hold

that this standard is equally applicable to a request for an

award of costs pursuant to the FHAA. See Taylor v. Harbour

Pointe Homeowners Ass’n, 690 F.3d 44, 50-51 (2d Cir. 2012)

(analyzing prevailing defendants’ requests for attorneys’ fees

and costs together under the Christiansburg standard in Fair

Housing Act action).

Citing Christiansburg, the district court concluded that the

plaintiffs’ complaint was not "frivolous, unreasonable, or

without foundation," 434 U.S. at 421, and, accordingly,

declined to award attorneys’ fees to the defendants. After

reviewing the record and the parties’ arguments, we conclude

that the district court did not abuse its discretion in reaching

this conclusion and in denying the defendants’ request on this

basis.

The defendants argue separately, however, that they are

entitled to attorneys’ fees and costs based on a provision in

the covenants stating that, "[s]hould the Association, Board,

Architectural Review Board or the Declarant substantially

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 19
prevail in any litigation brought by or against an Owner, the

Owner shall be required to pay all attorney’s fees and costs

of the litigation, including expert witness fees, incurred by

any such entity." The defendants contend that the district

court was required under this provision to award them attorneys’ fees and costs, irrespective of the standard set forth in

Christiansburg and Bryant Woods. We disagree with the

defendants’ argument.

Congress’ decision to encourage private civil actions under

statutes such as the FHAA and the Civil Rights Act reflects

a legislative choice to allow aggrieved citizens to advance the

public interest. As the Supreme Court explained in Christiansburg with respect to the Civil Rights Act, "the plaintiff [in

such cases] is the chosen instrument of Congress to vindicate

a policy that Congress considered of the highest priority." 434

U.S. at 418 (citation and internal quotation marks omitted).

Further, as we observed in Bryant Woods, the FHAA’s prohibitions "draw on the same policies attending Title VII of the

Civil Rights Act." 124 F.3d at 606 (observing similarities

between the Civil Rights Act and the FHAA). We therefore

conclude that, like the Civil Rights Act plaintiff discussed in

Christiansburg, a plaintiff filing a lawsuit under the FHAA

acts to effectuate the intent of Congress to vindicate the policies underlying that Act.

In light of the public policy objectives inherent in encouraging private plaintiffs to seek redress of FHAA violations, it

would be incongruous to allow bodies such as the HOA to

enforce by contract an attorneys’ fees provision against a

plaintiff who has brought an FHAA action in good faith. Such

a provision, if enforced by the courts, would have the natural

and counterproductive effect of dissuading individuals from

filing an FHAA lawsuit when they have a reasonable basis on

which to assert their claims. Based on these considerations,

we conclude that the district court did not err in refusing to

award attorneys’ fees and costs to the defendants based on the

20 SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION
fee provision in the covenants. Accordingly, we affirm the

district court’s judgment in the defendants’ cross-appeal.

IV.

For these reasons, we vacate the district court’s summary

judgment holding on the ramp request claim, because that

claim is not ripe for judicial review, and we remand the claim

to the district court with instructions to dismiss this portion of

the complaint without prejudice. We affirm the district court’s

award of summary judgment in favor of the defendants on the

ATV request claim, and, with respect to the cross-appeal, we

affirm the district court’s judgment denying the defendants’

request for attorneys’ fees and costs.

AFFIRMED IN PART, 

VACATED IN PART AND REMANDED

SCOGGINS v. LEE’S CROSSING HOMEOWNERS ASSOCIATION 21