US v. Scott
| Citation | 788 F. Supp. 1555 |
| Decision Date | 24 March 1992 |
| Docket Number | Civ. A. No. 90-1374-T. |
| Parties | UNITED STATES of America, Plaintiff, v. Howard SCOTT, Vernita Scott, Robert Christians, Retha Christians, John Farrell, Laureen Farrell, Dennis Baxter, Sue N. Baxter, Palmer Cotten, Alice Cotten, Harry Bachman, Anna E. Bachman, Paul C. Anschutz, Helen A. Anschutz, Clarence H. Krug, Bryan L. Dinkel, Kay Dinkel, Kenneth Lahmann, Clarence Fowler, Leonard Fowler, Melvina C. Oswald, Michael Steponik, Virginia (Faith) Steponik, Dean L. Zimmerman, Helen I. Zimmerman, Stella Nesbitt, Robert L. Craig, Mary Craig, Austin L. Covalt, Betty Covalt, and Olive M. Davisson, Defendants. |
| Court | United States District Courts. 10th Circuit. United States District Courts. 10th Circuit. District of Kansas |
Emily B. Metzger, U.S. Atty.'s Office, Wichita, Kan. (Myron S. Lehtman, Joseph D. Rich, Eileen Penner, Housing and Civil Enforcement Section, Dept. of Justice, Civil Rights Div., Washington, D.C., on brief), for plaintiff.
Caleb Boone, Hays, Kan., John C. Woelk, Russell, Kan., for defendants.
The United States, on behalf of sellers of a residential property, brings this action against the various defendants for violations of the Fair Housing Act, 42 U.S.C. § 3601, et seq. The defendants move to dismiss, contending that the Secretary of Housing and Urban Development ("HUD") failed to meet the time requirements imposed by 42 U.S.C. § 3610(g). (Doc. 38). The United States responds with a motion for partial summary judgment on the issue of liability, pursuant to Fed.R.Civ.P. 56. (Doc. 54).
The United States filed this action on behalf of homeowners Donald and Patricia Haberer, alleging that the defendants violated the Fair Housing Act by interfering with the Haberers' sale of their home to Developmental Services of Northwest Kansas ("DSNWK"), an organization that operates group homes for disabled individuals.
The single-family residence at issue is located in the Larmer Addition subdivision in Russell, Kansas. Donald and Patricia Haberer were owners of this dwelling in early 1989. In March 1989, the Haberers attempted to sell their house, and showed the house to representatives of DSNWK. DSNWK is a non-profit Kansas organization committed to providing quality services to physically and mentally disabled individuals. DSNWK seeks to deinstitutionalize disabled persons and place them in group homes so as to enable these disabled persons to enjoy a normal home environment. Group homes established by DSNWK are physically integrated into the community and are architecturally comparable to residences in existing neighborhoods.
DSNWK decided to purchase the Haberer residence for the purpose of establishing a group home for six unrelated disabled persons. On June 20, 1989, the Haberers and DSNWK entered into a real estate sales contract for the purchase of the home. The closing date was set to take place on or before October 1, 1989. At the time of contracting, the Haberer residence was subject to a restrictive covenant that required the property to remain a detached single family dwelling solely for residential purposes.
The defendants named in this action are residents of the Larmer Addition subdivision. By their counsel's letter of June 30, 1989, the defendants notified the Haberers that if the DSNWK transaction were completed, they would bring a state action to enforce the terms of the restrictive covenants and to recover monetary damages for "the depreciation of the value of their homes by virtue of the use of said property to house mentally retarded people."
On August 16, 1989, the defendants initiated an action in district court of Russell County to enjoin the sale of the Haberer residence to DSNWK, alleging that the proposed sale "for the establishment of a care home for the mentally retarded ... constitutes a violation of the said restrictive covenants relating to single-family dwellings...." The state court dismissed the action against the Haberers on October 20, 1989, holding that the plaintiffs (defendants in the present action) had failed to state a claim. The state court granted DSNWK's motion to intervene, and the case continued with DSNWK as the sole defendant. The state court held that DSNWK's proposed use of the Haberer residence did not violate the restrictive covenants, and denied the request for injunctive relief. The state court, however, refused to assess attorney's fees on the plaintiffs, reasoning that the action was not frivolous or meritless.
Following the dismissal of the Haberers from the state suit, the Haberers and DSNWK closed the sale on the property on October 20, 1989, nineteen days later than the original closing date.
On August 3, 1989 — prior to the closing of the sale — the Haberers filed a housing discrimination complaint with the Department of Housing and Urban Development ("HUD"), pursuant to 42 U.S.C. § 3610(a)(1)(A), claiming that the defendants sought to block the sale of their home to DSNWK because of the handicaps of the prospective residents. HUD undertook the investigation of the Haberers' claim under the statutory requirements of § 3610(a)(1)(B). On December 1, 1989, HUD notified the complainants and twelve of the defendants that a determination had not yet been made and that the matter was still under investigation. Thereafter, HUD attempted unsuccessfully to conciliate the complaint, and prepared a final investigative report. On June 15, 1990 — more than one hundred days after the filing of the complaint — HUD issued a determination of Reasonable Cause, and filed a Charge of Discrimination with a HUD administrative law judge against the 31 defendants. The defendants, under § 3612(a), filed their election to proceed in federal district court. HUD, pursuant to § 3612(o), then authorized suit on behalf of the Haberers.
The defendants move to dismiss this action on the basis of the Secretary's failure to complete the investigation within the 100-day statutory period. The defendants argue that "the jurisdictional requirement" of 42 U.S.C. § 3610(g) mandates that the Secretary complete the reasonable cause determination within 100 days from the date of filing of the complaint or, in the alternative, notify the parties in writing of the reasons for not doing so. Because HUD failed to comply with the time requirements of the Act, argue the defendants, this action is time-barred, and the court is consequently without jurisdiction to adjudicate the case. Although the defendants frame their motion as a motion to dismiss, they rely on the affidavit of counsel and other external documentation to support their motion. In a R. 12(b)(6) motion, as the defendants' motion purports to be, the court cannot consider matters outside the pleading unless the motion to dismiss is converted into a summary judgment motion and all parties are given the opportunity to present pertinent material. Fed. R.Civ.P. 12(b); Franklin v. Oklahoma City Abstract & Title Co., 584 F.2d 964, 966-67 (10th Cir.1978). Because the affidavit and external documents are not necessary for the disposition of this motion, the court will confine its consideration to matters within the four corners of the pleading, and will not treat the defendants' motion to dismiss as a summary judgment motion.
Section 3610(a)(1)(B)(iv) of the Fair Housing Act provides that "the Secretary shall make an investigation of the alleged discriminatory housing practice and complete such investigation within 100 days after the filing of the complaint ... unless it is impracticable to do so." Similarly, section 3610(g) states that the Secretary "shall, within 100 days after the filing of the complaint..., determine based on the facts whether reasonable cause exists to believe that a discriminatory housing practice has occurred or is about to occur, unless it is impracticable to do so." 42 U.S.C. § 3610(g). If the Secretary is unable to complete the investigation or make the reasonable cause determination within the 100-day period, the Secretary "shall notify the complainant and respondent in writing of the reasons for not doing so." 42 U.S.C. § 3610(a)(1)(C) & (g).
The facts are undisputed that the Secretary failed to complete the investigation of the Haberers' complaint or make a reasonable cause determination within the 100-day statutory period. At issue, therefore, is whether the Secretary's failure to meet the time requirements of § 3610 of the Fair Housing Act warrants a dismissal of the action. This issue is one of first impression in the majority of the Circuits, including the Tenth Circuit.
The defendants, in their 3-page brief, rely on three cases in supporting their argument that the 100-day deadline should be interpreted as a jurisdictional prerequisite or a statute of limitations. These cases, however, are inapposite to the issue presented in this case because none of them involves the failure of a government agency in meeting statutory deadlines. Rather, these cases deal with statutes of limitations governing the filing of a cause of action by a private plaintiff. See James v. Hafler, 320 F.Supp. 397, 398-99 (N.D.Ga. 1970) (); Warren v. Norman Realty Co., 513 F.2d 730 (8th Cir.) (same), cert. denied, 423 U.S. 855, 96 S.Ct. 105, 46 L.Ed.2d 81 (1975).1
The court notes at the outset that the statutory deadline imposed by § 3610 is not a per se time limitation. It contains an important qualification that excuses noncompliance when complying with the statutory deadline is "impracticable." This language of qualification indicates that Congress did not intend to make the 100-day statutory period mandatory. Accord United States v. Curlee, No. CV 91-5743 WJR (Kx), slip. op. at 2-3, 1992 WL 125151 (C.D.Ca. filed Jan. 29, 1992) ("Congress' use of the term `impracticable' removes that time period from the realm of mandatory action under the Fair Housing Act."). This conclusion is further...
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