Of the Federal Circuit, sitting by designation. *

United States Court of Appeals

For the First Circuit

Nos. 09-2497

 09-2589

ASTRALIS CONDOMINIUM ASSOCIATION,

Petitioner, Cross-Respondent,

v.

SECRETARY, UNITED STATES DEPARTMENT OF HOUSING AND

URBAN DEVELOPMENT, ON BEHALF OF CARLOS GARCÍA-GUILLÉN AND SONIA 

VÉLEZ-AVILÉS, 

Respondent, Cross-Petitioner.

PETITION FOR REVIEW OF AN ORDER OF THE UNITED STATES

DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT AND CROSS-PETITION

FOR ENFORCEMENT

Before

 Thompson, Selya and Dyk,*

Circuit Judges.

José E. De La Cruz Skerrett, Rafael G. Rivera-Rosario, Ricardo

A. Piovanetti Döhnert, and De La Cruz Skerrett Law Office on brief

for petitioner.

Thomas E. Perez, Assistant Attorney General, Dennis J. Dimsey,

and Nathaniel S. Pollock, Attorneys, Appellate Section, Civil

Rights Division, United States Department of Justice, on brief for

respondent.

September 16, 2010
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SELYA, Circuit Judge. Ours is a society in which people

live, work, relax, and shop in apartment complexes, office towers,

industrial parks, stadia, and malls that stretch as far as the eye

can see. It is, therefore, unsurprising that a mundane artifact of

modern life — the parking space — has become a prized possession.

This case illustrates the point. The complainants,

believing themselves entitled to preferred parking spaces at their

residence by reason of their handicaps, filed an administrative

claim against the condominium association that controlled those

spaces. A federal administrative law judge (ALJ) awarded the

contested spaces (and other relief) to the complainants. The ALJ's

decision became the final order of the Secretary of Housing and

Urban Development (HUD). See 42 U.S.C. § 3612(h)(1). 

The condominium association petitioned for judicial

review, and the Secretary cross-applied for enforcement of the

order. See id. § 3612(i)(1), (j)(1); see also 28 U.S.C. § 2342(6).

We deny the petition for judicial review and enforce the order.

I. BACKGROUND

We briefly rehearse the factual and procedural

background. 

Carlos García-Guillén and Sonia Vélez-Avilés (the

complainants) are husband and wife. Along with their adult

children, they reside in Unit 318 at the Astralis condominium

complex in Carolina, Puerto Rico. They own their unit and two
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parking spaces, which are located approximately 230 feet from the

entrance to their unit.

In addition to the parking spaces owned by individual

residents, the Astralis Condominium Association (Astralis)

maintains a large number of unallocated parking spaces, including

ten handicapped spaces. Two of those handicapped spaces are

located forty-five feet from the entrance to the complainants'

unit. Under the condominium documents, unallocated parking spaces,

including handicapped spaces, are regarded as common elements to be

used by residents and visitors on a first-come, first-served basis.

The handicapped spaces are time-limited; that is, parking in these

spaces is permitted only for a certain number of hours before the

vehicle must be moved.

The complainants purchased their unit in 2005. From the

start, they experienced problems with mobility. García-Guillén

suffers from leg and knee pain and has at times needed a walker or

other appliance in order to ambulate. In 2007, he underwent hip

surgery and continues to use a cane or other aid. Vélez-Avilés

suffers from osteoarthritis of the knees, distal neuropathy, and a

prolapsed lumbar disc. She is being treated by several physicians.

These impairments make physical activity, including the

use of the complainants' assigned parking spaces, difficult. To

cope, each complainant obtained a handicapped parking placard from

the Commonwealth of Puerto Rico. 
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The same concerns prompted the complainants, in early

2006, to request that Astralis grant them the exclusive, non-timelimited use of the two handicapped parking spaces most proximate to

their unit. They discussed this proposed accommodation at various

times with members of Astralis's board of directors (the Board).

During these encounters, the complainants proffered medical

information, the sufficiency of which is disputed. Astralis claims

that the complainants failed to furnish proper documentation of the

severity of their alleged disabilities; the complainants vehemently

disagree.

The parties struggled to reach an agreement as to the

complainants' use of the handicapped parking spaces. They came

close on several occasions but never succeeded. During this

interval, which lasted into 2007, the complainants occasionally

made use of the nearby handicapped parking spaces without regard to

the time limits and without authorization from the Board. Because

such use violated Astralis's parking policy, security guards cited

the complainants for these infractions.

Frustrated by the Board's inaction, the complainants

filed an administrative complaint with HUD on February 21, 2007.

See 42 U.S.C. § 3610(a); 24 C.F.R. § 103.10. The agency assigned

Diana Ortíz to investigate the matter. In an attempt to reach an

accord, Ortíz spoke with several Board members and, as a result,
 The FHAA extended Title VIII of the Civil Rights Act of 1968 1

to prohibit discrimination because of a person's handicap. See

FHAA, 102 Stat. 1619. 

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the Board held an extraordinary assembly on March 15, 2007, to

address the parking issue.

Ortíz offered to attend the meeting, but the Board

declined her offer. The complainants were present. The Board did

not ask for, nor did the complainants volunteer, any medical

information. The complainants moved that they be granted exclusive

use of the two handicapped parking spaces. The Board voted to deny

the accommodation. 

On September 11, 2008, HUD filed a charge of

discrimination against Astralis. An ALJ held a four-day

evidentiary hearing, at which the complainants, Ortíz, and several

Board members testified. The ALJ issued a written decision on

September 10, 2009, in which he found that Astralis had violated

the Fair Housing Amendments Act of 1988 (FHAA), Pub. L. No. 100-

430, 102 Stat. 1619 (codified as amended at 42 U.S.C. §§ 3601-3619,

3631), by refusing to grant a reasonable accommodation and by 1

unlawfully retaliating against the complainants. The ALJ directed

that the complainants receive exclusive use of the two handicapped

parking spaces at issue; provided, however, that they agree to

surrender their originally assigned spaces. In addition, the ALJ

awarded the complainants money damages for the retaliation,

assessed a civil penalty against Astralis, and enjoined Astralis
 Astralis makes no developed argumentation with respect to 2

the ALJ's finding of unlawful retaliation and the consequent award

of money damages. Accordingly, there is no need for us to discuss

these matters.

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and those acting in privity with it from any further interference

with the complainants' rights.

The ALJ's order ripened into the final order of the

Secretary of HUD. These timely cross-petitions followed.

II. DISCUSSION

We begin our analysis with the standard of review. We

then move to the merits of Astralis's arguments.2

A. Standard of Review.

A court inquiring into an agency's adjudicatory decision

can set it aside only if the decision is "arbitrary, capricious, an

abuse of discretion, or otherwise not in accordance with law." 5

U.S.C. § 706(2)(A); see, e.g., S. Shore Hosp., Inc. v. Thompson,

308 F.3d 91, 97 (1st Cir. 2002). The ALJ's factual findings are

binding as long as they are supported by substantial evidence in

the record as a whole. See E.C. Waste, Inc. v. NLRB, 359 F.3d 36,

42 (1st Cir. 2004); see also White v. U.S. Dep't of Hous. & Urban

Dev., 475 F.3d 898, 904 (7th Cir. 2007) (explaining that HUD

Secretary's final determination of an FHAA claim will be disturbed

only if it is "legally or procedurally unsound, or is unsupported

by substantial evidence") (internal quotation marks omitted).

Substantial evidence "is more than a mere scintilla. It means such
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relevant evidence as a reasonable mind might accept as adequate to

support a conclusion." Universal Camera Corp. v. NLRB, 340 U.S.

474, 477 (1951) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,

229 (1938)). In conducting this tamisage, the ALJ's credibility

determinations are entitled to great deference. See P. Gioioso &

Sons, Inc. v. OSHRC, 115 F.3d 100, 108 (1st Cir. 1997).

B. The Merits.

The FHAA prohibits discriminatory housing practices based

on a person's handicap. 42 U.S.C. § 3604(f). The statute defines

"handicap" to mean "(1) a physical or mental impairment which

substantially limits one or more of [a] person's major life

activities, (2) a record of having such an impairment, or (3) being

regarded as having such an impairment." Id. § 3602(h). It outlaws

discrimination "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 an

individual. Id. § 3604(f)(2). Discrimination includes a "refusal

to make reasonable accommodations in rules, policies, practices, or

services, when such accommodations may be necessary to afford

[handicapped persons] equal opportunity to use and enjoy a

dwelling." Id. § 3604(f)(3)(B).

There is not much case law under the FHAA in this

circuit. Nevertheless, authority under the Americans with

Disabilities Act (ADA) 42 U.S.C. §§ 12101-12213, is generally
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persuasive in assessing handicapped discrimination claims under the

FHAA. See Tsombanidis v. W. Haven Fire Dep't, 352 F.3d 565, 573

n.4 (2d Cir. 2003) ("Due to the similarities between the statutes,

we interpret them in tandem."). 

The FHAA contemplates three types of claims for perceived

discrimination: "disparate treatment, disparate impact, and failure

to make reasonable accommodations." Smith & Lee Assocs. v. City of

Taylor, Mich., 102 F.3d 781, 790 (6th Cir. 1996); accord

Tsombanidis, 352 F.3d at 573. The adverse findings in this case

were premised on Astralis's failure to make reasonable

accommodations.

Astralis argues that our decision in Macone v. Town of

Wakefield, 277 F.3d 1 (1st Cir. 2002), requires a finding of either

discriminatory intent (disparate treatment) or disparate impact as

a predicate to FHAA liability. Astralis's reliance on Macone is

mislaid. 

Disparate treatment and disparate impact do not comprise

the entire universe of pathways to FHAA liability. As the Supreme

Court explained, "[d]iscrimination covered by the FHA[A] includes

a refusal to make reasonable accommodations." City of Edmonds v.

Oxford House, Inc., 514 U.S. 725, 729 (1995) (citing 42 U.S.C.

§ 3604(f)(3)(B)) (internal quotation marks omitted). Thus, the ALJ

correctly deduced that a failure to make reasonable accommodations

can pave the way to FHAA liability. 
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We move now to the particulars of the claim. To

establish a prima facie case of failure to accommodate under the

FHAA, a claimant must show that he is handicapped within the

purview of 42 U.S.C. § 3602(h) and that the party charged knew or

should reasonably have known of his handicap. Dubois v. Ass'n of

Apart. Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir.

2006); cf. Higgins v. New Balance Ath. Shoe, Inc., 194 F.3d 252,

264 (1st Cir. 1999) (enunciating similar prima facie case

requirement in claims brought under the ADA). Next the claimant

must show that he requested a particular accommodation that is both

reasonable and necessary to allow him an equal opportunity to use

and enjoy the housing in question. Bryant Woods Inn, Inc. v.

Howard Cnty., Md., 124 F.3d 597, 603 (4th Cir. 1997); cf. Reed v.

LePage Bakeries, Inc., 244 F.3d 254, 261 (1st Cir. 2001) ("[T]he

ADA's reasonable accommodation requirement usually does not apply

unless 'triggered by a request' from the employee.") (citation

omitted). Finally, the claimant must show that the party charged

refused to make the requested accommodation. 42 U.S.C.

§ 3604(f)(3)(B); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 336

(2d Cir. 1995).

The record in this case provides substantial evidence to

support the ALJ's serial findings that the complainants were

handicapped; that Astralis knew of their handicaps; that the

complainants requested a reasonable accommodation (exclusive use of
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the two handicapped parking spaces); and that Astralis refused to

honor their request.

Astralis mounts a no-holds-barred defense, disputing

these findings at every turn. On the first element, it asserts

that the complainants are not handicapped within the meaning of the

FHAA and that, in any event, it (Astralis) had no knowledge of

their handicaps. These denials do not withstand even the most

cursory scrutiny.

Testimony by the complainants, the HUD investigator, and

Board members makes manifest that García-Guillén had significant

mobility problems stemming from hip, knee, and leg ailments. These

conditions made the walk to and from his car difficult. The

testimony painted much the same picture as to Vélez-Avilés. The

evidence of her mobility problems showed that she walked with great

difficulty and pain, resorting to using a cane or even a shopping

cart for support, and that locomotion around the common areas of

the condominium exhausted her.

In addition, the fact that the Commonwealth had issued

handicapped parking placards to both the complainants lends support

to the anecdotal evidence. Under Puerto Rico law, such placards

may be issued only for the benefit of persons with disabilities.

See P.R. Laws Ann. tit. 9, § 5022(c). 

Relatedly, the record offers ample support for the ALJ's

finding that Astralis knew or reasonably should have known of the
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complainants' handicaps. The complainants' difficulties in

ambulating were visible to the naked eye. Moreover, on several

occasions the complainants presented pertinent medical information

to members of the Board, thus documenting their conditions. In

fact, former presidents of the Board, although apparently acting

ultra vires, attempted to grant a parking space accommodation to

the complainants. Against this mise-en-scène, Astralis's protest

that it was unaware of the complainants' physical handicaps rings

hollow. 

As to the second element of the prima facie case,

Astralis offers no coherent counter-argument. It cannot be

gainsaid that the complainants, long and loudly, requested a

parking space accommodation. Moreover, we think it plain that, on

this record, a rational person could logically infer (and, thus,

plausibly find) that the requested accommodation was both

reasonable and necessary to allow the complainants equal use and

enjoyment of their residence. See Jankowski Lee & Assocs. v.

Cisneros, 91 F.3d 891, 895 (7th Cir. 1996) (upholding ALJ's finding

of FHAA violation where landlord was aware of individual's mobility

handicap yet denied request for a parking space accommodation); see

also 24 C.F.R. § 100.204(b) (illustrating reasonable accommodation

by citing example of a person with a mobility impairment who

requests a closer parking space).
 The HUD guidelines contemplate that parties may engage in an 3

"interactive process" to discuss the need for the accommodation and

possible alternatives if the housing provider refuses to grant a

requested accommodation on the ground that it is not reasonable.

Joint HUD/DOJ Statement, at 7; see, e.g., Huberty v. Wash. Cnty.

Hous. & Redev. Auth., 374 F. Supp. 2d 768, 775 (D. Minn. 2005).

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Indeed, an example in the HUD guidelines mirrors this

case: 

A resident with a mobility impairment . . .

requests an assigned accessible parking space

close to the entrance to her unit as a

reasonable accommodation. There are available

parking spaces near the entrance to her unit

that are accessible, but those spaces are

available to all residents on a first come,

first served basis. The provider must make an

exception to its policy of not providing

assigned parking spaces to accommodate this

resident.

Joint Statement of Dep't of Hous. & Urban Dev. & Dep't of Justice,

Reasonable Accommodations Under the Fair Housing Act 6 (May 17,

2004) [hereinafter Joint HUD/DOJ Statement]. 

Finally, we scrutinize the last element of the

complainants' prima facie case. Astralis tries to undermine the

ALJ's finding that it denied the accommodation by insisting that

the complainants obstructed the grant of the accommodation. This

came about, Astralis says, because the complainants failed to

participate in an interactive process. The ALJ's rejection of 3

this claim is supported by substantial evidence in the record.

The ALJ found that the complainants had been requesting

a parking space accommodation for at least a year prior to the
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commencement of the HUD investigation. Although Board

representatives had at times offered to grant the accommodation, it

never materialized. Astralis's suggestion that the complainants,

who pursued their request assiduously, needed to bring the matter

for a full vote of the condominium owners elevates hope over

reason. Among other things, the suggestion overlooks testimony,

credited by the ALJ, that such a vote was predestined to fail. The

complainants had no obligation to undertake a futile act in order

to vindicate their federally guaranteed rights. 

In sum, the circumstances permit a reasonable inference

that Astralis effectively short-circuited the interactive process.

See Calero-Cerezo v. U.S. Dep't of Justice, 355 F.3d 6, 25 (1st

Cir. 2004) (finding an actionable refusal to grant accommodation

where, as here, a factfinder could supportably conclude that

"defendants simply stonewalled").

Astralis also complains that it should not be held

responsible because it never expressly refused to accommodate the

complainants. In voicing this plaint, Astralis mistakenly relies

on Dubois. Unlike in this case, the condominium association in

Dubois granted a temporary exemption pending an inquiry into the

accommodation request. 453 F.3d at 1178. That exemption — a

reasonable accommodation for the perceived medical necessity — was

in place when the administrative claim was instituted, and the

condominium association "thus never refused to make the requested
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accommodation." Id. at 1179. That is a far cry from the instant

case, in which Astralis never granted the complainants permission

to park in the handicapped spaces nearest to their unit. In fact,

when the complainants unilaterally parked in those spaces, they

received violation notices. Dubois is, therefore, readily

distinguishable. 

In a last-ditch effort to snatch victory from the jaws of

defeat, Astralis argues that portions of Puerto Rico's condominium

law, P.R. Laws Ann. tit. 31, §§ 1291i to 1291l-1, legitimize its

actions. To the extent that Astralis claims that it could not be

guilty of intentional discrimination because its actions were in

seeming compliance with that law, its argument is a red herring.

The ALJ never found intentional discrimination to be a basis for

Astralis's liability under the FHAA.

In a variation on this theme, Astralis claims that the

ALJ's order cannot stand because local law contains explicit

prerequisites for the transfer of common elements in condominium

developments, which have not been satisfied here. This amounts to

a claim that the FHAA cannot trump local law because it does not

evince a congressional intent to preempt or displace local law,

such as the Puerto Rico condominium law, regarding the transfer of

common elements. We reject this argument not only because it turns

the Supremacy Clause, U.S. Const. art. VI, § 2, on its head, but

also because there is no meaningful conflict between the FHAA and
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Puerto Rico's condominium law. As the ALJ recognized, compliance

with both the FHAA and the condominium law is possible. We

explain. 

Under Puerto Rico condominium law, the transfer of common

elements after the construction of a property requires the

unanimous consent of the condominium owners. P.R. Laws Ann. tit.

31, § 1291i(b)(4). Even though this provision conceivably could be

construed to preclude compliance with the Secretary's order — after

all, there has been no affirmative vote of all the condominium

owners — Astralis is duty bound not to enforce a statutory

provision if doing so would either cause or perpetrate unlawful

discrimination. Cf. Gittleman v. Woodhaven Condo. Ass'n, 972 F.

Supp. 894, 899 (D.N.J. 1997) (enunciating similar prohibition with

regard to a discriminatory master deed provision). In other words,

to the extent that state statutes or local ordinances would

undercut the FHAA's anti-discrimination provision, the former

cannot be enforced. See Trovato v. City of Manchester, N.H., 992

F. Supp. 493, 498, 499 (D.N.H. 1997) (finding FHAA violation and

enjoining enforcement of a conflicting zoning code provision).

Thus, Astralis must regulate the use of common elements in

compliance with the FHAA's anti-discrimination policies, regardless

of local law. 

This conclusion is buttressed by two additional

considerations. First, contrary to Astralis's importunings, the
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language of the FHAA itself manifests a clear congressional intent

to vitiate the application of any state law that would permit

discrimination based on physical handicap. See 42 U.S.C. § 3615

(expressly commanding that "any law of a State . . . that purports

to require or permit any action that would be a discriminatory

housing practice under this subchapter shall to that extent be

invalid") (emphasis supplied). Second, adopting Astralis's view

would create a sinkhole that would swallow the general rule and

cripple the effectiveness of the FHAA. To say that private

agreements under a state's condominium statute are capable of

trumping federal anti-discrimination law verges on the ridiculous.

We disavow that proposition. See, e.g., Shelley v. Kraemer, 334

U.S. 1, 11 (1948) ("It is . . . clear that restrictions on

[housing] of the sort sought to be created by the private

agreements in these cases could not be squared with the

requirements of the Fourteenth Amendment if imposed by state

statute or local ordinance.").

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we deny Astralis's petition for judicial review and grant HUD's

cross-application for enforcement of the Secretary's final order.

So Ordered.