HLD, v. 33, n. 1 (January 2005)
Ninth Circuit Says Plaintiff Sufficiently Alleged Disability Discrimination
Claims Under The FHAA And ADA
In 2000, an inspector from the City of Portland's (City) Office of Planning and Development
Review (OPDR) inspected the home of Richard McGary, who has AIDS. McGary's illness
impaired his ability to keep up his property. The inspector determined that
trash and debris in McGary's yard was a nuisance under Portland City Code �
29.20.010. OPDR sent McGary a letter dated February 1, 2000, directing him to
clean his yard by February 16, 2000. McGary attempted to remove all the debris
with the help of a patient advocate from the Cascades AIDS Project (CAP), who
also tried to contact OPDR because McGary was not able to complete the work.
On February 22, 2000 OPDR issued a Notice of Work Order directing
McGary to complete the cleanup because his efforts were insufficient, and the
CAP patient advocate asked the OPDR to give McGary additional time to clean
the yard based on his illness. The OPDR issued a Final Notice on March 2, 2000,
and on March 13 McGary was hospitalized with meningitis related to AIDS. The
CAP patient advocate informed the OPDR of McGary's hospitalization, but the
OPDR issued a warrant on March 21. On March 28, the City's contractor removed
the debris and the City sent McGary a bill for $1,818.83 for the cost of cleaning
the yard, and placed a lien for that amount on McGary's home. McGary later sold
his home and paid the lien.
McGary (plaintiff) sued the City (defendant) in March 2002 on claims
that defendant had violated the Fair Housing Amendments Act of 1988 (FHAA),
42 U.S.C. � 3601 et seq., the Americans with Disabilities Act (ADA),
42 U.S.C. � 12101 et seq. and state and local laws by discriminating
against him based on his disability by not allowing him extra time to clean
his yard. Plaintiff sought compensatory damages and attorneys' fees and costs.
Defendant filed a motion to dismiss on the ground plaintiff failed to state
a claim upon which relief could be granted. The district court granted the motion
and plaintiff appealed.
The Ninth Circuit reversed the district court's judgment and held
plaintiff sufficiently stated claims under the FHAA and the ADA. The appeals court first
addressed the FHAA issue and plaintiff's claim that under the FHAA defendant
had failed to respond to his request for a "reasonable accommodation" for additional
time to clean his yard. The FHAA provides that a disabled person cannot be discriminated
against by not allowing the disabled person a reasonable accommodation to use
their dwelling, which the appeals court characterized as an "affirmative duty."
To sufficiently allege a claim of a failure to reasonably accommodate a disability
under the FHAA the plaintiff must allege: (1) that he has a handicap within
the meaning of the FHAA; (2) that the defendant knew or should have known about
the handicap; (3) that the accommodation was necessary for the plaintiff to
use the dwelling; and (4) the defendant refused to make the accommodation. The
appeals court determined the dispute only involved the third requirement about
the necessity of the accommodation. Defendant argued plaintiff failed to sufficiently
allege any accommodation was necessary for him to use and enjoy his home. The
pleading threshold for FHAA claims is low, said the appeals court, and the courts
have applied liberal pleading requirements to FHAA claims. The appeals court
held plaintiff sufficiently alleged that defendant's decision to put a lien
on his home to pay for the yard cleaning impaired his ability to use and enjoy
his home by interfering with his ability to use the property as collateral.
The appeals court thus held plaintiff had sufficiently alleged a claim under
the FHAA upon which relief could be granted.
The appeals court then turned to the ADA claim and plaintiff's argument that defendant
failed to provide a reasonable accommodation by allowing him additional time
to clean his yard. The ADA
provides no individual with a qualified disability may be discriminated against
or excluded from any benefit or service based on the disability. Of the four
elements that are needed in order to state a claim for discrimination under
the ADA, the
only one at issue was the requirement that any exclusion or denial of benefits
was "by reason of" the disability. The district court held plaintiff failed
to sufficiently allege defendant acted by reason of his disability because other
residents were subject to the nuisance abatement ordinance. The appeals court
determined that, although the ordinance was facially neutral, the application
of the ordinance in this case unduly burdened a disabled person.
The district court erred in reasoning that the issue was about
disparate treatment, said the appeals court, when the issue was about a reasonable
accommodation. Here plaintiff sought an accommodation that was consistent with
his disability and the purpose of the ADA is to allow nondisabled and disabled people
to be treated as equally as possible while taking into consideration how the
disability affects the individual's ability to comply with a law or ordinance.
The appeals court held plaintiff had sufficiently alleged a claim under the
The appeals court also addressed plaintiff's claims under state
and local law. The district court dismissed the state and local law claims by
reasoning that they should be interpreted the same as the federal claims and
since the federal claims were dismissed the state and local law claims could
be dismissed for that reason. Because the district court erred in dismissing
the federal claims, the appeals court reversed the dismissal.
McGary v. City of Portland, No. 02-35668,
386 F.3d 1259 (9th Cir. Oct. 27, 2004). To read the case, go to http://www.ca9.uscourts.gov/ca9/newopinions.nsf/1BD6E45E04A4C20A88256F3B00686CD1/$file/0235668.pdf?openelement
Health Lawyers thanks Michael D. Roth, of the Law Offices of
Michael Dundon Roth, in Los Angeles,
California, for sending us a copy
of this decision.