Garcia v. Brockway

Opinion by Chief Judge KOZINSKI; Dissent by Judge PREGERSON; Dissent by Judge FISHER.

ORDER

The three-judge panel decision, Garcia v. Brockway, 503 F.3d 1092 (9th Cir.2007), is adopted as the opinion of the en banc court. The opinion is amended as follows:

Replace < Defendant Michael Turk is the most recent owner. > with < Defendant Michael Turk is an officer of Rancho del Norte Villas, Inc., and of Gohres Constructions Page 1095, Column 1, Lines 22-24

Delete footnote 4 Page 1097, Column 2, Line 19

Replace <this> with <last> Page 1098, Column 1, Line 10

After <period expireds insert a new footnote stating: <Nothing we say precludes the application of equitable tolling if the requirements of the doctrine are met. For example, equitable tolling may be appropriate if the builder prevented testers or problem tenants from visiting the property after the issuance of a certificate of occupancy, or if a medical condition prevented a plaintiff from filing suit for some time after testing the property, see Brockamp v. United States, 67 F.3d 260, 263 (9th Cir.1995), rev’d on other grounds, 519 U.S. 347, 117 S.Ct. 849, 136 L.Ed.2d 818 (1997).> Page 1101, Column 1, Line 5

OPINION

We consider when the statute of limitations begins to run in a design-and-construction claim under the Fair Housing Act (FHA).

Facts

In these consolidated cases, plaintiffs appeal the district court’s determination that their FHA design-and-construction claim was time-barred by the two-year statute of limitations. The fact patterns in these cases (at summary judgment) differ in several significant respects:

Garcia v. Brockway, No. 05-35647: In 1993, Dennis Brockway built the South Pond Apartments in Boise, Idaho, and sold the last unit in 1994. In 1998, the Idaho Fair Housing Council filed an administrative complaint with the U.S. Department of Housing and Urban Development (HUD), and in 2001 Brockway entered into a conciliation agreement with HUD and the Idaho Fair Housing Council that resolved the complaint and provided a fund to pay for accessibility modifications to any unit for any resident with a disability.

In 2001, plaintiff Noll Garcia rented a unit at South Pond and resided there until 2003. Because of a disability Garcia uses a wheelchair for mobility. While at South Pond, his apartment did not comply with the design-and-construction requirements of the FHA. It lacked curb cuts from the parking lot to the sidewalk, it didn’t have a ramp to the front entrance door and the doorways were too narrow to allow clear passage of a wheelchair. Garcia’s requests that management make accessibility improvements were ignored, as was his request that management build a ramp to his door or that he be relocated to a more accessible unit. Within two years of leasing the apartment, Garcia sued the original builder and architect (Brockway and Robert Stewart, respectively), and the current owners and management (the Zavoshy defendants). The district court granted sum*460mary judgment in favor of Brockway and Stewart because Garcia’s design-and-eonstruction claim was not filed within the limitations period. The court denied the Zavoshy defendants’ summary judgment on the accommodations and interference claims, and they subsequently settled. Garcia appeals the summary judgment in favor of Brockway and Stewart.

Thompson v. Gohres Construction Co., No. 06-15042: In 1997, Gohres Construction built the Villas at Rancho del Norte in North Las Vegas, Nevada. Shortly thereafter, the Villas were issued a final certificate of occupancy, and the property was sold through foreclosure in 2001. Defendant Michael Turk is an officer of Rancho del Norte Villas, Inc., and of Gohres Construction. In 1997, the Disabled Rights Action Committee (DRAC) filed a complaint with HUD, and HUD terminated the complaint in 2001 because the complainants, as “testers,” lacked standing. We subsequently held that testers have standing to sue under the FHA. See Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097, 1104 (9th Cir.2004).

In 2004, plaintiff Tamara Thompson, a member of DRAC, “tested” the Villas and found discriminatory conditions — including an inaccessible building entrance, no curb cuts for the handicapped parking spaces and inadequate access to the pool. Within a year of Thompson’s inspection, plaintiffs Thompson and DRAC sued Turk, Marc Gohres and Gohres Construction, asserting an FHA design-and-eonstruetion claim. The district court granted defendants’ motion to dismiss because the claim was time-barred. We granted plaintiffs’ motion to voluntarily dismiss the appeal as to Gohres and Gohres Construction. Plaintiffs thus only appeal the district court’s order with respect to Turk.

Analysis

The FHA prohibits the design and construction of multifamily dwellings that do not have certain listed accessibility features. 42 U.S.C. § 3604(f)(3)(C). The statute provides three enforcement mechanisms. First, an administrative complaint may be initiated with HUD, see id. §§ 3610-3612, and remedies include actual damages to the aggrieved person, civil penalties and injunctive relief. See 24 C.F.R. § 180.670(b)(3). An aggrieved person — i.e., any person who “claims to have been injured by a discriminatory housing practice,” 42 U.S.C. § 3602(i)(l) — must file the complaint “not later than one year after an alleged discriminatory housing practice has occurred or terminated.” Id. § 3610(a)(l)(A)(i). HUD may also file a complaint sua sponte; it’s unclear whether HUD is subject to the same limitations period. See id.

Second, the Attorney General may bring a civil action if a defendant has “engaged in a pattern or practice of resistance” to FHA rights, or if a “group of persons has been denied any [FHA] rights ... and such denial raises an issue of general public importance.” Id. § 3614(a). The FHA does not provide a statute of limitations for these actions, and other courts have held that such actions seeking equitable relief are not subject to any time limit. See, e.g., United States v. Inc. Vill. of Island Park, 791 F.Supp. 354, 364-68 (E.D.N.Y.1992); United States v. City of Parma, 494 F.Supp. 1049, 1094 n. 63 (N.D.Ohio 1980). Actions seeking damages are subject to the general three-year statute of limitations, see 28 U.S.C. § 2415(b), and those for civil penalties must be “commenced within five years from the date when the claim first accrued.” Id. § 2462.

The third enforcement mechanism — the one at issue here — is a private civil action. The FHA provides that “[a]n *461aggrieved person may commence a civil action in an appropriate United States district court or State court not later than 2 years after the occurrence or the termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A). In other words, an aggrieved person must bring the lawsuit within two years of either “the occurrence ... of an alleged discriminatory housing practice” or “the termination of an alleged discriminatory housing practice.” Here, the practice is the “failure to design and construct” a multifamily dwelling according to FHA standards.1 Id. § 3604(f)(3)(C). The statute of limitations is thus triggered at the conclusion of the design-and-construction phase, which occurs on the date the last certificate of occupancy is issued. In both cases, this triggering event occurred long before plaintiffs brought suit.2

Plaintiffs advance three theories that would extend the limitations period to cover their lawsuits. We address each in turn.

1. Plaintiffs contend that an FHA design-and-construction violation is a continuing one that does not terminate until the building defects are cured. The Supreme Court has held that “where a plaintiff, pursuant to the Fair Housing Act, challenges not just one incident of conduct violative of the Act, but an unlawful prac*462tice that continues into the limitations period, the complaint is timely when it is filed within [the statutory period, running from] the last asserted occurrence of that practice.” Havens Realty Corp. v. Coleman, 455 U.S. 363, 380-81, 102 S.Ct. 1114, 71 L.Ed.2d 214 (1982) (footnote omitted). Congress has since codified this continuing violation doctrine by amending the FHA to include both “the occurrence [and] the termination of an alleged discriminatory housing practice” as events triggering the two-year statute of limitations. 42 U.S.C. § 3613(a)(1)(A) (emphasis added).

Plaintiffs claim Congress’s insertion of “termination” would be meaningless if it weren’t read as termination of the design- and-construction defect. HUD’s Fair Housing Act Design Manual supports this reading: “With respect to the design and construction requirements, complaints could be filed at any time that the building continues to be in noncompliance, because the discriminatory housing practice — failure to design and construct the building in compliance — does not terminate.” U.S. Dep’t of Hous. & Urban Dev., Fair Housing Act Design Manual: A Manual to Assist Designers and Builders in Meeting the Accessibility Requirements of the Fair Housing Act 22 (rev.1998).3

Plaintiffs and HUD confuse a continuing violation with the continuing effects of a past violation. “Termination” refers to “the termination of an alleged discriminatory housing practice.” The Supreme Court has “stressed the need to identify with care the specific [discriminatory] practice that is at issue.” Ledbetter v. Goodyear Tire & Rubber Co., — U.S. -, 127 S.Ct. 2162, 2167, 167 L.Ed.2d 982 (2007). Here, the practice is “a failure to design and construct,” which is not an indefinitely continuing practice, but a discrete instance of discrimination that terminates at the conclusion of the design-and-construction phase. This violation differs from the one Congress codified as “continuing” in light of Havens, where the claims were “based not solely on isolated incidents ..., but a continuing violation manifested in a number of incidents — including at least one ... that [wa]s asserted to have occurred within the [limitations] period.” 455 U.S. at 381, 102 S.Ct. 1114 (emphasis added).

Put differently, “[a] continuing violation is occasioned by continual unlawful acts, not by continual ill effects from an original violation.”4 Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir.1981) (citing Collins v. United Air Lines, Inc., 514 F.2d 594, 596 (9th Cir.1975)); see also Moseke v. Miller *463& Smith, Inc., 202 F.Supp.2d 492, 507 (E.D.Va.2002) (“[An] FHA non-compliant building which contains inaccessible features to disabled persons is more akin to a continuing effect rather than a continuing violation under the FHA.”). The Supreme Court last Term reiterated the distinction between a continuing violation and continual effects when it held that “current effects alone cannot breathe life into prior, unchanged discrimination; as we held in Evans, such effects in themselves have ‘no present legal consequences.’ ” Ledbetter, 127 S.Ct. at 2169 (quoting United Air Lines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977)). Although the ill effects of a failure to properly design and construct may continue to be felt decades after construction is complete, failing to design and construct is a single instance of unlawful conduct. Here, this occurred long before plaintiffs brought suit.5 Were we to now hold the contrary, the FHA’s statute of limitations would provide little finality for developers, who would be required to repurchase and modify (or destroy) buildings containing inaccessible features in order to avoid design- and-construction liability for every aggrieved person who solicits tenancy from subsequent owners and managers. Indeed, now that we have recognized tester standing, an aggrieved person wouldn’t even need to solicit tenancy, but merely observe the violation. See Smith, 358 F.3d at 1104. This is not what Congress provided in erecting a two-year statute of limitations for FHA design-and-construction claims. If Congress wanted to leave developers on the hook years after they cease having any association with a building, it could have phrased the statute to say so explicitly.

Nor may we ignore the statute of limitations to help an aggrieved person who suffers from the effects of such violation decades after construction. See Boise Cascade Corp. v. U.S. EPA, 942 F.2d 1427, 1432 (9th Cir.1991) (“Under accepted canons of statutory interpretation, we must interpret statutes as a whole, giving effect to each word and making every effort not to interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.”). As the Supreme Court has held, “[t]he limitations periods, while guaranteeing the protection of the civil rights laws to those who promptly assert their rights, also protect [defendants] from the burden *464of defending claims arising from ... decisions that are long past.” Del. State Coll. v. Ricks, 449 U.S. 250, 256-57, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980). “A discriminatory act which is not made the basis for a timely charge ... is merely an unfortunate event in history which has no present legal consequences.” Ledbetter, 127 S.Ct. at 2168 (quoting Evans, 431 U.S. at 558, 97 S.Ct. 1885).

2. Plaintiffs also argue that the statute of limitations should not begin to run until the aggrieved person encounters the design-and-construction defect.6 This novel legal theory was first articulated in a law review article. See Robert G. Schwemm, Barriers to Accessible Housing: Enforcement Issues in “Design and Construction” Cases Under the Fair Housing Act, 40 U. Rich. L.Rev. 753, 849-55 (2006).

There’s some support for this “encounter” theory: “A damages action under the [FHA] sounds basically in tort — the statute merely defines a new legal duty, and authorizes the courts to compensate a plaintiff for the injury caused by the defendant’s wrongful breach.” Curtis v. Loether, 415 U.S. 189, 195, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). Because an FHA damages action “sounds basically in tort,” plaintiffs claim the statute of limitations is not triggered until a disabled person is actually damaged by the practice. Plaintiffs contend that, upon completion of construction, no injury has yet occurred, and “the standard rule [for tort purposes is] that the limitations period commences when the plaintiff has a complete and present cause of action.” Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201, 118 5.Ct. 542, 139 L.Ed.2d 553 (1997) (internal quotation marks omitted). Under this theory, the statute of limitations did not begin to run until Thompson tested the Villas, which occurred within two years of filing suit.

Plaintiffs make too much of the Supreme Court’s observation that the FHA “sounds basically in tort.” The Court was not dealing with the statute of limitations but with the very different question of whether FHA plaintiffs are entitled to a jury trial. This passing reference to tort law cannot be read to trump statutory provisions that deal expressly with the statute of limitations. The FHA’s limitations period does not start when a particular disabled person is injured by a housing practice, but by “the occurrence or the termination of an alleged discriminatory housing practice.” 42 U.S.C. § 3613(a)(1)(A). Under the FHA, the ability to privately enforce the “new legal duty” thus only lasts for two years from the time of the violation, and the violation here is “a failure to design and construct.” Id. § 3604(f)(3)(C). Plaintiffs injury only comes into play in determining whether she has standing to bring suit. See id. §§ 3602(i)(l), 3604(f)(2). Some aggrieved persons may not encounter this violation until decades after the limitations period has run and thus will be unable to file a civil action, even though they have standing to raise the claim. However, “[i]t goes without saying that statutes of limitations often make it impossible to enforce what were otherwise perfectly valid claims. But that is their very purpose, and they remain as ubiquitous as the statutory rights or other rights to which they are attached or are applicable.” United States v. Kubrick, 444 U.S. 111, 125, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).

*465Plaintiffs’ theory is further undercut by our decision in Smith, in which we held that the harm of the violation occurs when a design-and-construction defect is observed. 358 F.3d at 1104. Under plaintiffs’ theory post-Smith, any individual with a disability who merely observes the design-and-construction defect could bring suit — even if the limitations period had long run for every tenant and/or owner. The author of plaintiffs’ encounter theory concedes that Smith creates serious problems for his theory: “[If] testers do have standing based on injury to their § (f)(1)-(2) rights caused by encountering such a building, they could presumably generate an endless series of such injuries by repeated visits to the building.... Eventually, the limitations periods would run on the claims based on the earlier encounters, but the tester could always start a new clock by returning to the building.” Schwemm, 40 U. Rich. L.Rev. at 859 (footnote omitted). The encounter theory thus “raise[s] serious equitable issues with respect to timeliness,” id., because it strips the statute of limitations of all meaning.

3. Garcia argues that the limitations period does not begin to run until the aggrieved person discovers the design-and-construction defect.7 Garcia advances this theory as both the discovery rule and the equitable tolling doctrine, but neither helps him.

The discovery rule serves to extend the time from which the limitations period starts to run until “the plaintiff knows both the existence and the cause of his injury.” Kubrick, 444 U.S. at 113, 100 S.Ct. 352. Garcia thus contends that the limitations period shouldn’t have started to run until he first visited South Pond in 2001. The discovery rule is strikingly similar to plaintiffs’ encounter theory, and thus fails for the same reasons. See pp. 464-65. supra. Holding that each individual plaintiff has a claim until two years after he discovers the failure to design and construct would contradict the text of the FHA, as the statute of limitations for private civil actions begins to run when the discriminatory act occurs — not when it’s encountered or discovered. See 42 U.S.C. § 3613(a)(1)(A).

“Equitable tolling may be applied if, despite all due diligence, a plaintiff is unable to obtain vital information bearing on the existence of his claim.” Santa Maria v. Pac. Bell, 202 F.3d 1170, 1178 (9th Cir.2000). This doctrine “focuses on a plaintiffs excusable ignorance and lack of prejudice to the defendant.” Leong v. Potter, 347 F.3d 1117, 1123 (9th Cir.2003). As Judge Posner has explained, “[e]quitable tolling is frequently confused ... with the discovery rule.... It differs from the [discovery rule] in that the plaintiff is assumed to know that he has been injured, so that the statute of limitations has begun to run; but he cannot obtain information necessary to decide whether the injury is due to wrongdoing and, if so, wrongdoing by the defendant.” Cada v. Baxter Healthcare Corp., 920 F.2d 446, 451 (7th Cir.1990).8

Here, Garcia doesn’t claim he was injured within the limitations period but was unable to obtain vital information concerning the existence of his claim until the period expired.9 Instead, he basically con*466tends that it would be inequitable not to allow him to bring a civil lawsuit. Fairness, without more, is not sufficient justification to invoke equitable tolling, and the district court properly refused to apply it. In his plea for a fairer outcome, Garcia fails to mention the extreme prejudice defendants would suffer if plaintiffs could indefinitely bring civil damages actions for buildings defendants no longer own and cannot fix without the cooperation of the current owners. This is hardly a situation where there is a “lack of prejudice to the defendant.” Leong, 347 F.3d at 1123.

In sum, application of the discovery rule or the equitable tolling doctrine, as the district court noted in Garcia, “would render the clear language of the statute meaningless and superfluous.” Both doctrines would have the same effect as the continuing violation doctrine by tolling the statute of limitations indefinitely and thus stripping it of all meaning. See pp. 461-64 supra. Even if we thought this interpretation were more equitable, we don’t have the authority to “interpret a provision in a manner that renders other provisions of the same statute inconsistent, meaningless or superfluous.” Boise Cascade, 942 F.2d at 1432.

* * *

As both district courts held, an aggrieved person must bring a private civil action under the FHA for a failure to properly design and construct within two years of the completion of the construction phase, which concludes on the date that the last certificate of occupancy is issued. Because neither plaintiff brought a timely suit, their cases were properly dismissed.

AFFIRMED.