U.S. v. Taigen & Sons, Inc., CV01-337-N-EJL.

• Decision Date: 29 September 2003
• Docket Number: No. CV01-337-N-EJL.,CV01-337-N-EJL.
• Parties: UNITED STATES of America, Plaintiff, v. TAIGEN & SONS, INC; et al., Defendants.
• Court: U.S. District Court — District of Idaho

303 F.Supp.2d 1129

UNITED STATES of America, Plaintiff, v. TAIGEN & SONS, INC; et al., Defendants.

No. CV01-337-N-EJL.

United States District Court, D. Idaho.

September 29, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Kathleen M. Pennington, Je Yon Jung, Alberto Ruisanchez, U.S. Dept of Justice, Civil Rights/Housing & Civil Enforcement, Washington, DC, for Plaintiff.

John F. Magnuson, Coeur d'Alene, Theresa L. Kitay, Coughlin & Kitay, Norcross, GA, Robert W. Sargent, Spokane, WA, Steven W. Arnold, Boise, ID, for Defendants.

ORDER

LODGE, District Judge.

This action was initiated by Plaintiff United States of America alleging that Defendants' construction and design of an apartment community in Post Falls, Idaho ("Centennial Trail") violates the accessibility requirements of the Fair Housing Act, as amended, 42 U.S.C. §§ 3601-3619 (the "FHA"), and Title III of the American with Disabilities Act, 42 U.S.C. §§ 12181-89 (the "ADA").¹ Defendants Taigen & Sons, Inc., Robert Taigen, and Jacklyne M. Taigen moved for summary judgment, and Plaintiff moved for partial summary judgment. The motions, which had been referred to a magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B), were heard by Chief Magistrate Judge Larry M. Boyle. On August 22, 2003, Magistrate Judge Boyle issued a Report and Recommendation, recommending that Defendants' Motion for Summary Judgment be granted in part and denied in part, and that Plaintiff's Motion for Partial Summary Judgment be granted.

Defendants object to Magistrate Judge Boyle's recommendation. Any party may challenge a magistrate judge's proposed recommendation regarding a dispositive motion by filing written objections within ten days after being served with a copy of the Report and Recommendation. 28 U.S.C. § 636(b)(1)(C). The district court must then "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id. The district court may accept, reject, or modify in whole or in part, the findings and recommendations made by the magistrate judge. Id; see also Fed.R.Civ.P. 72(b).

Summary judgment is appropriate if there is no genuine dispute of material fact and the moving party is entitled to judgment as a matter of law. Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997). Defendants contend that the magistrate judge erred in finding that (1) Plaintiff's claims raise an issue of "general public importance" sufficient to support the Plaintiff's action under 42 U.S.C. § 3614(a), (2) Plaintiff's claims for compensatory damages are timely under the applicable statute of limitations, and (3) there are no disputed issues of material fact regarding Defendants' liability under the FHA concerning location of toilets, lavatories and electrical outlets.

Discussion

1. General Public Importance

Section 3614(a) of the FHA provides the Attorney General with authority to file a civil action where (1) a person or group of persons has engaged in a pattern or practice of resistance to the rights granted by the FHA, and/or (2) a group of persons has been denied any rights granted by the FHA and such denial raises a matter of general public importance. With regard to the second theory, the magistrate judge concluded that the. Attorney General's determination as to whether a denial of rights raises an issue of general public importance is unreviewable by the Court. Defendants assert that the magistrate judge's conclusion is unfounded and that the determination of whether this case raises an issue of general public importance should go to a jury.

Having reviewed the case law, the Court finds that the magistrate judge reached the correct conclusion. The Attorney General's determination that a matter raises an issue of general public importance has been consistently recognized as unreviewable by the courts. See, e.g., United States v. Reece, 457 F.Supp. 43, 47 n. 10 (D.Mont. 1978) ("The Attorney General's power to bring suit under 42 U.S.C. § 361[4] may be triggered either by a pattern or practice or an issue of general public importance. While the existence of a pattern or practice is generally a question of fact, courts have generally held that the determination of when an issue of general public importance is raised is left to the discretion of the executive branch."). And therefore the Plaintiff need not demonstrate nor must the court require evidence that an issue of general public importance exists as a prerequisite to the liability determination. See, e.g., United States v. Northside Realty Associates, Inc., 474 F.2d 1164, 1168 (5th Cir.1973), after remand, 501 F.2d 181 (5th Cir.1974), cert. denied, 424 U.S. 977, 96 S.Ct. 1483, 47 L.Ed.2d 747 (1976); United States v. Bob Lawrence Realty, Inc., 474 F.2d 115, 125 n. 14 (5th Cir.1973), cert. denied, 414 U.S. 826, 94 S.Ct. 131, 38 L.Ed.2d 59 (1973); United States v. University Oaks Civic Club, 653 F.Supp. 1469, 1474 (S.D.Tex.1987); United States v. Housing Authority of City of Chickasaw, 504 F.Supp. 716, 726 (S.D.Ala.1980); United States v. Youritan Construction Company, 370 F.Supp. 643, 651 (N.D.Cal.1973).

2. Statute of Limitations for Compensatory. Damages

The three-year statute of limitations applicable to compensatory damages under the FHA is subject to an explicit discovery rule. See 28 U.S.C. § 2415(b). Pursuant to 28 U.S.C. § 2416(c), the three year limitations period established by § 2415(b) shall exclude "all periods during which ... facts material to the right of action are not known and reasonably could be known by an official of the United States charged with the responsibility to act in the circumstances."

This case originated as a result of an administrative complaint filed with the United States Department of Housing and Urban Development ("HUD"). Pursuant to the FHA, when a complaint of discrimination is filed, HUD is required to investigate. Further, HUD "shall make an investigation of the alleged discriminatory housing practice and complete such investigation within 100 days after the filing of the complaint." 42 U.S.C. § 3610(a)(1)(B)(iv). HUD is to determine "whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur." 42 U.S.C. § 3610(g). If HUD has reason to believe that a basis may exist for the Attorney General to commence an action pursuant to § 3614(a), HUD shall "transmit the information upon which such belief is based to the Attorney General." 42 U.S.C. § 3610(e)(2).

Here, the administrative complaint was filed on February 6, 1998. HUD informed the Department of Justice of a possible referral during the week of August 14, 2000. The Attorney General brought this action on July 7, 2001. The magistrate judge determined that pursuant to the provisions controlling the statute of limitations, the Attorney General first reasonably knew of this matter no earlier than the week of August 1, 2000, and that the action for compensatory damages was timely.

Defendants contend that because HUD did not refer this matter to the Attorney General until approximately two years after the expiration of the 100-day period, Plaintiff's claim is untimely. The magistrate judge disagreed, noting that courts had determined that the 100-day provision is not mandatory and does not amount to a statute of limitations. (Report and Recommendation at 24). Defendants concede that the 100-day period is not jurisdictional but assert that "the Justice Department should have known of the facts material to the right of action' by ... the expiration of 100 days following the filing of the complaint with HUD" and therefore the claim for compensatory damages should be deemed time-barred. (Objections at 10-11).

However, the Court finds nothing in the record to support Defendants' assertion that HUD could have completed its investigation and referred this matter within the 100-day time-frame. And given that the 100-day period is not mandatory and/or jurisdictional there is no authority for the Court's imposition of the same as a statute of limitations. For this reason, the Court concludes that the magistrate judge correctly applied the case law to the record and that his recommendation on this issue is correct.

3. Defendants' Liability

Defendants argue that the magistrate judge erred in concluding that no issues of material fact exist to preclude summary judgment on Defendants' liability under the FHA concerning the accessibility of toilets, lavatories and electrical outlets. Having reviewed the record, the Court agrees, and finds that Defendants have raised issues of material fact which preclude the entry of summary judgment as to these matters. (See, e.g., Objections at 14-15).

ORDER

Having conducted a de novo review of the objected to portions of the Report and Recommendation, this Court finds that, with the exception noted above, Magistrate Judge Boyle's Report and Recommendation is well founded in law and is consistent with this Court's own view of the evidence in the record. Acting on the recommendation of Magistrate Judge Boyle, and this Court being fully advised in the premises, IT IS HEREBY ORDERED that except where inconsistent with the Court's analysis above, the Report and Recommendation entered on August 22, 2003, (docket no. 80), should be, and is hereby, INCORPORATED by reference and ADOPTED in its entirety.

IT IS FURTHER ORDERED that Defendants' Motion for Summary Judgment (docket no. 30) is GRANTED in part and DENIED in part as follow:

1. Plaintiffs claims for civil penalties are DISMISSED as to all Defendants; and

2. In all other respects, Defendants' Motion for Summary Judgment is DENIED.

IT IS FURTHER ORDERED that Plaintiffs Motion for Partial Summary Judgment (docket no. 36) is GRANTED in part and DENIED in part as follows:

1. Summary Judgment is GRANTED in favor of Plaintiff and against Defendants on the question of whether violations of the FHA...