Consolidated Case Nos. 05-35647 and 06-15042

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

NOLL GARCIA,Plaintiff-Appellant,

v.

DENNIS BROCKWAY, et al.,Defendants-Appellees,

Appeal from the United States District Court for the District of IdahoHonorable Mikel H. Williams, Magistrate Judge,

District Court Case No. CV-03-00193-MHW

BRIEF OF AMICI CURIAE NATIONAL MULTI HOUSING COUNCILAND NATIONAL APARTMENT ASSOCIATION

IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE

Order Taking Case En Bane: January 7, 2008En Bane Argument: Tuesday, March 25, 2008 (3:00 PM)

Christopher B. HanbackRafe PetersenElizabeth PhelpsHolland & Knight LLP2099 Pennsylvania Avenue, N.W.Washington, D.C. 20006(202)955-3000

Robert A. BleicherCounsel of RecordHolland & Knight LLP50 California Street, Suite 2800San Francisco, CA 94111(415)743-6900

Counsel for Amid Curiae National Multi Housing Council and NationalApartment Association

CORPORATE DISCLOSURE STATEMENT

In compliance with Rule 26.1 of the Federal Rules of Appellate Procedure,

Amid Curiae make the following disclosures:

The National Multi Housing Council ("NMHC"), a national non-profit trade

association that advocates on behalf of over 1,000 member firms, is not a publicly

held corporation or other publicly held company. Nor does it have any parent

corporations. No publicly held corporation or other publicly held entity owns ten

percent (10%) or more of NMHC.

The National Apartment Association ("NAA"), a non-profit federation

comprised of nearly 200 state and local affiliates and more than 51,000 multifamily

housing companies, is not a publicly held corporation or other publicly held

company. Nor does it have any parent corporations. No publicly held corporation

or other publicly held entity owns ten percent (10%) or more of NAA.

Dated: February 22, 2008 Respectfully submitted

Robert A. Bleicher, Bar No. 111334Counsel for Amid CuriaeHolland & Knight LLP50 California Street, Suite 2800San Francisco, CA 94111(415)743-6900

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT i

TABLE OF AUTHORITIES iii

STATEMENT OF AMICI CURIAE 5

SUMMARY OF ARGUMENT 9

ARGUMENT 10

I. The Completion Of Design And Construction Is TheDiscriminatory Housing Practice That Triggers The FHA'sStatute of Limitation 11

II. The Continuing Violation Doctrine Does Not Apply ToAllegations of Design And Construction Violations 16

CONCLUSION 21

CERTIFICATE OF COMPLIANCE 23

TABLE OF AUTHORITIES

FEDERAL CASES

Garcia v. Brockway, 503 F.3d 1092 (9th Cir. 2007) 11, 13, 20

Margraves v. Capital City Mortgage Corp., 140 F. Supp. 2d 7(D.D.C. 2000) 16

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) 17, 18, 19

Kuchmas v. Towson Univ., No. RDB 06-3281, 2007 WL 2694186(D. Md. Sept. 10, 2007) 12, 13, 16, 18, 19

Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007) 15, 20

Moseke v. Miller & Smith, Inc., 202 F. Supp. 2d 492 (E.D. Va. 2002) passim

Nat'lAdver. Co. v. City of Raleigh, 947 F.2d 1158 (4th Cir. 1991) 17

Shannon v. Babb, 103 Fed. Appx. 201 (9th Cir. 2004) 17

Perez v. Laredo Jr. College, 706 F.2d 731 (5th Cir. 1983) 17

Thompson v. Mountain PeakAssocs., LLC, No. 2:05-CV-145-BES-GWF,2006 WL 1582126 (D. Nev. June 5, 2006) 13, 17

Tobertv. Ohio Dep 't of Transport, 172 F.3d 934 (6th Cir. 1999) 17

United States v. Hallmark Homes, Inc., No. CV01-432-N-EJL,2003 WL 23219807 (D. Idaho Sept. 29, 2003) 13, 14

United States v. PNE, No. CV-01-019-S-BLW, 2003 WL 24573548(D. Idaho Nov. 20, 2003) 16

United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 112 (D. Idaho 2003) 13

FEDERAL STATUTES

42 U.S.C. § 3604(f) passim

42 U.S.C. § 3613(a)(l) passim

56 Fed. Reg. 9473 (Mar. 6, 1991) 8

MISCELLANEOUS

H. Rep. No. 100-711 100th Cong., 2d Sess. 1998, reprinted in 1988U.S.C.C.A.N. 2173,2179 6

Transmittal Letter from HUD Secretary Cuomo (April 1998) 8

IV

STATEMENT OF AMICI CURIAE

The Amid National Multi Housing Council ("NMHC") and National

Apartment Association ("NAA") together represent and advocate for a broad cross-

section of both public and private companies that design, construct, own and

manage multi-family housing throughout the United States.

Amid urge the Court to affirm the panel majority's opinion, and thus the

lower courts' opinions, which are the practical, mainstream interpretation of the

Fair Housing Act ("FHA") statute of limitations. Further, the majority's opinion is

well-reasoned and legally correct in view of the plain language of the FHA—

which clearly time bars suits filed two years after the discrete acts of design and

construction are completed.

Yet, other Advocacy groups are in fact seeking a legislative change in the

FHA that they should properly address to Congress. The Court should not be

misled by the alarmist statements of Advocacy groups that filed Amid briefs in

support of Appellants. These Advocacy groups baselessly claim that widespread

noncompliance with the accessible design and construction requirements of the

FHA exists and on that basis invite this Court to disregard the Congressionally

enacted FHA statute of limitations. The studies cited by the Advocacy groups

report on whether the multifamily developments conform to the specifications of

non-mandatory HUD guidelines or safe harbors, which provide for a level of

accessibility not specified by Congress in the FHA.1 Simply put, non-conformity

with any particular voluntary safe harbor does not necessarily equate with

nonconformity with the FHA.

The FHA makes it unlawful to "design and construct" covered multifamily

dwellings "for first occupancy" after March 13, 1991, in a manner that makes them

inaccessible to persons with disabilities. 42 U.S.C. § 3604(f)(3)(C). The FHA

itself sets forth general requirements to make "covered units" accessible, by

requiring the following elements: "accessible and usable" public areas; sufficiently

wide doors; and "features of adaptive design" such as an "accessible route into and

through the dwelling," placement of certain controls (e.g. light switches) "in

accessible locations," reinforcements in walls for grab bars, and "usable kitchens

and bathrooms such that an individual in a wheelchair can maneuver about the

space." 42 U.S.C. § 3604(f)(3)(C)(i)-(iii). In the words of Congress, these are

"modest requirements" designed to "result[] in features which do not look unusual

and will not add significant additional costs." H. Rep. No. 100-711 100th Cong.,

2d Sess. 1998, reprinted in 1988 U.S.C.C.A.N. 2173, 2179 ("House Report").

Thus, the FHA sets out an imprecise mandate of accessibility and

adaptability that is unlike, for example, a national building code. The lack of

specificity under the FHA makes clear that Congress intended that design

See Brief of Amici Curiae Silver State Fair Housing Council, Inc. et al. at 14-17.

professionals and builders would retain flexibility in designing apartments, and

could continue to achieve diversity in home design and construction while meeting

the basic accessibility and adaptability requirements of the FHA. In enacting the

FHA, Congress did not direct or empower the Department of Housing and Urban

Development ("HUD") to promulgate binding regulations setting forth mandatory

accessible design features. Rather, Congress empowered HUD only to issue

reports and technical guidance concerning accessibility. 42 U.S.C. §

3604(f)(5)(C). Lacking authority to create mandatory design standards, HUD

created or adopted guidance documents and "safe harbors" that contain technical

specifications, which if followed would protect a developer or design professional

from a challenge for alleged non-compliance with the FHA. These non-mandatory

safe harbors generally exceed the minimum requirements of the FHA and are at

times contradictory.

Given that the FHA is vague, the law is unsettled as to exactly what is

required of those engaged in the design and construction of multifamily residences

to design a unit that is "accessible." Consequently, litigation is underway

nationally by advocacy groups seeking to expand the law beyond that which is

required under a reasonable reading of the Act.

Appellees' cases are not unique. It has been Amici's experience that interest

groups have filed a large number of suits against both individual apartment owners

as well as large corporations with nationwide property portfolios alleging the

buildings do not comply with the FHA. Liability is alleged based on discrepancies

between the measurements and the Guidelines and Design Manual despite the fact

that both safe harbors state unequivocally that they are neither binding nor

mandatory. See 56 Fed. Reg. 9473 (Guidelines) (Mar. 6, 1991); Design Manual,

Transmittal Letter from HUD Secretary Cuomo (April, 1998).

As FHA design and construction cases become more prevalent, it is

imperative that the FHA's statute of limitations is correctly interpreted. The clear

and unambiguous reading of the FHA is that the statute of limitations begins to run

when the building subject to the FHA has been designed or construction has been

completed. This is the "termination" of the alleged discriminatory housing practice

upon which liability is based under the statute. 42 U.S.C. § 3613(a)(l)(A). Few

courts have extended the time period of the statute of limitations for completed

acts, such as construction of a physical building and the effects of that

construction, by adopting a "continuing violation" theory; this is the position of

the dissenting opinion. Indeed, under this flawed theory, as long as an apartment

unit is out of compliance with the FHA (e.g. there are discrepancies between the

design and any of the various safe harbors), the statute of limitations is never

triggered. The result is that the statute of limitations is rendered a nullity.

SUMMARY OF ARGUMENT

In both cases consolidated before this Court on appeal, the lower courts

dismissed the Appellants' design and construction claims as time-barred because

they were not filed within the two-year limitations period. These holdings were

affirmed by the panel majority, which reasoned that the FHA statute of limitations

for design and construction claims is triggered when design and construction is

completed, and that no other theory—including the continuing violations doctrine,

the "encounter" theory, and the discovery rule—can be used to resuscitate

Appellants' untimely claims.

Appellants, along with various groups who advocate for persons with

disabilities ("Advocacy Amid"), claim, in accordance with the dissent, that the

statute of limitations is ambiguous and that the limitations period is triggered when

someone, including a tester, is aggrieved or injured in the sale or rental of a

dwelling unit. Such an interpretation of the FHA renders the statute of limitations

a nullity. This effects-based interpretation ignores the fact that the FHA includes a

specific provision for design and construction claims that is separate from its

provisions on discriminatory sales and rentals. Simply put, it would be an absurd

result to have the statute of limitations concerning an alleged design or

construction violation not take into account when that action (i.e. the construction

or design) actually took place. Yet, that is exactly the erroneous interpretation the

Advocacy Amid seek to advance.

Appellants' reading ignores Congress's intent in enacting a statute of

limitations in the first place. At issue in this case is the design and construction of

a building. This is a discrete act that has a clear ending point. If the effects-based

view of the statute of limitations advanced by Appellants and Advocacy Amid

became law, there will be no repose for construction and design claims. Liability

would be triggered anew each time a tester encountered an alleged violation, no

matter when the unit was designed and constructed. Having developers, builders,

architects, owners, and managers subject to never ending liability thwarts the very

purpose of a statute of limitations. This Court should reject such a request for

extending the law beyond its enacted and intended meaning.

ARGUMENT

The governing statute of limitations for private FHA claims states: "An

aggrieved 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)(l)(A). For design and construction violations pursuant to section

3604(f)(3)(C), the panel majority and dissent interpreted this limitations provision

in conflicting ways, with the major differences being what is considered the

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triggering date for the limitation period and whether the continuing violation

doctrine can be applied.

I. The Completion Of Design And Construction Is The DiscriminatoryHousing Practice That Triggers The FHA's Statute Of Limitations.

The logical starting point for an interpretation and application of the FHA's

statute of limitations is the determination of what constitutes the triggering event

upon which the statute of limitations begins to run. The relevant provision of the

FHA states that the limitations period is triggered "after the occurrence or the

termination of an alleged discriminatory housing practice." 42 U.S.C. §

3613(a)(l)(A). Thus, the first issue in this inquiry is what is the discriminatory

housing practice as related to a design and construction violation.

The dissent interpreted the discriminatory housing practice to relate back to

the general provision of 42 U.S.C. § 3604(f)(l-2), which makes it unlawful to

"discriminate in the sale or rental, or otherwise make unavailable or deny a

dwelling to any buyer or renter." And on that basis, the dissent argued that "the

FHA's statute of limitations is triggered when someone is aggrieved by one of the

unlawful actions specified by § 3604(f)(l) or § 3604(f)(2), with the two-year

period running from the occurrence or termination of the offending practice."

Garcia v. Brockway, 503 F.3d 1092, 1102 (9th Cir. 2007), J. Fisher dissenting.

However, the better-reasoned interpretation—and the interpretation by the

panel majority—for design and construction violations is to interpret the

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discriminatory housing practice to relate back to section 3604(f)(3)(C), the

provision that makes it a discriminatory act to fail to design and construct

accessible dwellings.2 Based on section 3604(f)(3)(C), the actual discriminatory

practice is the act of designing and constructing dwellings in violation of the

requirements of the FHA, not making the units unavailable. See, e.g., Kuchmas v.

Towson Univ., No. RDB 06-3281, 2007 WL 2694186, *5 (D. Md. Sept. 10, 2007)

(holding that "the focus of the analysis must remain on the Defendant's acts (i.e.,

the design and construction of noncompliant buildings"). Accordingly, a plain

reading of section 3613(a)(l)(A) and section 3604(f)(3)(C) together show

Congress's intent that for design and construction claims, the statute of limitations

" Section 3604(f)(3)(C) states: in connection with the design and construction ofcovered multifamily dwellings for first occupancy after the date that is 30 monthsafter September 13, 1988, a failure to design and construct those dwellings in sucha manner that—

(i) the public use and common use portions of such dwellings are readilyaccessible to and usable by handicapped persons;(ii) all the doors designed to allow passage into and within all premises withinsuch dwellings are sufficiently wide to allow passage by handicapped personsin wheelchairs; and(iii) all premises within such dwellings contain the following features ofadaptive design:

(I) an accessible route into and through the dwelling;(II) light switches, electrical outlets, thermostats, and other environmentalcontrols in accessible locations;(III) reinforcements in bathroom walls to allow later installation of grabbars; and(IV) usable kitchens and bathrooms such that an individual in a wheelchaircan maneuver about the space.

12

begins to run when the design and construction is completed.3 This is the logical

interpretation because the "alleged discriminatory housing practice" is the

wrongful design and construction, which occurs when such design and

construction processes are begun and terminates upon their completion.

The final act that is considered for the date of completion for design and

construction varies among properties and jurisdictions, but many courts, including

the panel majority, have found that issuance of a certificate of occupancy is the

best indicator of such finality. See Garcia, 503 F.3d at 1096; United States v.

Taigen & Sons, Inc., 303 F. Supp. 2d 1129, 1144 (D. Idaho 2003); United States v.

Hallmark Homes, Inc., No. CV01-432-N-EJL, 2003 WL 23219807 (D. Idaho Sept.

29, 2003). This is logical given that at that point, all design and construction

decisions have been completed and the property can be lived in, whether in a sale

3 The panel majority is not alone it its interpretation of section 3613(a)(l)(A) asrelating back to section 3604(f)(3)(C). Various other courts, including those withinthe Ninth Circuit, have held that the discriminatory housing practice is the failureto design and construct in compliance with the FHA, and it is the completion ofthis act that triggers the statute of limitations. See Moseke v. Miller & Smith, Inc.,202 F. Supp. 2d 492, 507 (E.D. Va. 2002) (holding that "the alleged discriminatoryact occurred at the design and construction of the building"); Kuchmas v. TowsonUniv., No. RDB 06-3281, 2007 WL 2694186, *5 (D. Md. Sept. 10, 2007) (holdingthat the statute of limitations began running when the property in question wasconstructed); United States v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129, 1144 (D.Idaho 2003) (holding that for a FHA case, the alleged violation occurred on "thedate the design or construction was completed"); Thompson v. Mountain PeakAssocs., LLC, No. 2:05-CV-145-BES-GWF, 2006 WL 1582126, *2 (D. Nev. June5, 2006) (holding that "the last act of discrimination occurs upon the completion ofthe design and construction of the non-compliant structure or complex).

13

or rental context. Regardless of what the courts ultimately use as an indicator of

the date of completion, however, it is clear that the date of completion as the

triggering date for the statute of limitations is the most rational interpretation of the

statute of limitations as applied to section 3604(f)(3)(C). Any other interpretation

of the statute of limitations for design and construction claims is illogical and is

contrary to Congress's intent in enacting a firm two-year statute of limitations for

private FHA claims.

Using the date that an individual renter, tenant, homebuyer, or tester first

encounters or is injured or aggrieved by the alleged discrimination, as is advocated

by the dissent, is not in accordance with the plain meaning of the statute and will

render the statute of limitations meaningless. First, the statute of limitations

clearly states that the two years are triggered from "the occurrence or the

termination of an alleged discriminatory housing practice" and not two years from

the date on which the plaintiff is aggrieved. See 42 U.S.C. § 3613(a)(l)(A).

Second, if the statute of limitations could be triggered anew each time an

individual encounters or is injured by the noncompliant design and construction of

a dwelling, then the parties responsible for design and construction could be held

forever liable for one single act of design and construction no matter how far in the

past that act occurred or was completed. Although the dissent and Advocacy Amid

recount Congress's intent that the FHA be construed broadly, broad construction

14

does not entail extending the law beyond the statutory limits Congress so carefully

crafted, and this Court must reject such a suggestion. See Ledbetter v. Goodyear

Tire & Rubber Co., Inc., 127 S. Ct. 2162, 2170 (2007) ("we have repeatedly

rejected suggestions that we extend or truncate Congress' deadlines").

The inability of a particular private plaintiff to maintain a lawsuit does not

necessarily mean that no remedy is available. Congress has empowered both

HUD and the Attorney General to commence civil proceedings to enforce the

FHA, which are not subject to the two-year statute of limitations. See 42 U.S.C. §

3612 and §3614.

Additionally, in arguing that the statute of limitations should not begin to

run until a plaintiff encounters or is injured by alleged discrimination, the dissent

ignores the circumstances of the most common FHA cases today—those brought

by fair housing advocacy groups based on "testers" who are not actually injured. If

the dissent's opinion were upheld, the statute of limitations could be triggered again

and again by mere visits to properties by "testers" and their advocacy groups.

Often, these FHA cases fail to include any allegations of individual plaintiffs who

have actually applied to reside or have resided in allegedly non-compliant

buildings and suffered real harm. Hence, the view consistent with Congress's

intent in enacting a statute of limitations and in drafting a section of the FHA

specific to design and construction claims, is that of the panel majority.

15

II. The Continuing Violation Doctrine Does Not Apply To Allegations ofDesign And Construction Violations.

The panel majority's rejection of the application of the continuing violation

doctrine to design and construction claims is equally well-reasoned and legally

correct. The continuing violation doctrine cannot be used to prolong the discrete

act of design and construction, which terminates at the completion of construction.

Kuchmas, 2007 WL 2694186, at *5. Instead, the continuing violation doctrine is to

be narrowly applied to only "a series of related and continuing discriminatory

acts," at least one of which occurred within the limitations period, Moseke, 202 F.

Supp. at 504, and in situations "where the type of violation is one that could not

reasonably have been expected to be made the subject of a lawsuit when it first

occurred because its character as a violation did not become clear until it was

repeated during the limitations period," Ear-graves v. Capital City Mortgage Corp.,

140 F. Supp. 2d 7, 18 (D.D.C. 2000). See also United States v. PNE, No. CV-01-

019-S-BLW, 2003 WL 24573548, *4 (D. Idaho Nov. 20, 2003) ("This 'failure' [to

design and construct] occurs and is complete at the time the particular dwellings

are designed and/or constructed. There is no basis, under the plain language of §

3604(f)(3) of the FHA for applying the continuing violation doctrine.").

At best, plaintiffs alleging design and construction violations may contend

that their time-barred allegations are the result of the continuing effects of the

initial discriminatory act of design and construction. See Moseke, 202 F. Supp. 2d

16

at 507 ("a 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"); Thompson, 2006 WL 1582126, at *2 (holding "that the

noncompliant building at issue in this case constitute[s] continuing effects of past

discriminatory acts, not continuing violations of the FHA"). However, continuing

effects cannot resurrect time-barred claims where the defendants discriminatory act

does not also continue. Moseke, 202 F. Supp. 2d at 507, 508 (holding that an FHA

claim cannot be sustained when a party fails to allege that defendants "have

repeated some discriminatory act of design and construction within the statutory

period").4

Despite this clear understanding of the continuing violation doctrine as

related to design and construction claims, the dissent and Advocacy Amid rely on

4 This view is consistent with case law rejecting the application of the continuingviolation doctrine where an effect is continuing but the defendant's act is not. SeeShannon v. Babb, 103 Fed. Appx. 201, 202 (9th Cir. 2004) (holding that "thecontinuing violations doctrine was inapplicable because defendants' subsequentwithholding of magazines was merely the continuing effect of their initialdecision); Nat'lAdver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir. 1991)(holding that "[a] continuing violation is occasioned by continual unlawful acts,not continual ill effects from an original violation"); Tobert v. Ohio Dep't ofTransp., 172 F.3d 934, 940 (6th Cir. 1999) (holding that in a complaint allegingdiscriminatory allocation of sound barriers along the highway, the continuing lackof such barriers constituted a "continuing ill effect," and was not the result ofcontinuing unlawful acts); Perez v. Laredo Junior College, 706 F.2d 731, 734 (5thCir. 1983) (holding that even though the damages resulting from the denial of theclaim for pay may have continued, the wrongful act itself did not and therefore didnot constitute a continuing violation).

17

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), to apply the continuing

violation doctrine to design and construction claims. This reliance is misplaced.

Although an FHA case where the Court upheld the application of the continuing

violation doctrine, the rationale of Havens is not properly applied in the context of

section 3604(f)(3)(C). The alleged FHA violation in Havens was racial steering, a

discriminatory act or practice that by definition continues over time. Havens, 455

U.S. at 380. Racial steering as a practice cannot be determined based on one event;

rather racial steering is based on several events over time. Id. at 381. Hence, the

Court found that the alleged racial steering constituted a continuing violation

because (1) it continued to occur within the limitations period, and (2) the nature of

racial steering is such that it is "manifested in a number of incidents." Id. In other

words, the practice of racial steering can only be fully determined after looking at a

series of alleged discriminatory acts.

Unlike racial steering, design and construction are discrete acts with a clear

ending point—the date on which construction or design is completed for an

individual unit. Kuchmas, 2007 WL 2694186 at *4; Moseke, 202 F. Supp. 2d at

506. The dissent and Advocacy Amid fail to recognize that the Court in Havens

indicated that there is a distinction between one-time events and continuing

practices, holding that the continuing violation doctrine did not apply to the

plaintiff tester's claims, which were based on "four isolated occasions" in which

18

she received false information as to housing availability. Havens, 455 U.S. at 381.

Accordingly, the rationale for applying the continuing violation doctrine in Havens

should have no applicability to design and construction cases.

This view is consistent with Congressional intent and legislative history.

The use of the words "occurrence or termination" of an alleged discriminatory

housing practice in the statute does not mean that Congress intended for Courts to

apply the continuing violation doctrine where it is otherwise legally inappropriate.

Section 3613(a)(l)(A) relates to all private causes of action under the FHA, some

of which, e.g., racial steering, are appropriate for the application of the continuing

violation doctrine. Design and construction claims, however, are not. Unlike

racial discrimination, one does not "continue" to design and construct a building.

In fact, applying the continuing violation doctrine to alleged section

3604(f)(3)(C) violations, as advocated by the dissent, renders the statute of

limitations "meaningless." Kuchmas, 2007 WL 2694186 at *5; Moseke, 202 F.

Supp. 2d at 507, 508. In order to give full weight to the statute of limitations, the

alleged continuing effects of the initial discriminatory act of design and

construction cannot be relevant to the triggering date. See Moseke, 202 F. Supp.

2d at 507. Otherwise, as long as the building stands there is no relief from possible

liability.

19

In finding the continuing violation doctrine inapplicable to FHA design and

construction violations, the panel majority accounted for one of the underlying

purposes of the statute of limitations, which is "protect[ing] defendants from the

burden of defending claims arising from . . . decisions that are long past." Garcia,

503 F.3d at 1099 (quoting Del State. College v. Ricks, 499 U.S. 250, 256-57

(1980)). Amid NMHC and NAA are concerned that if the continuing violation

doctrine were to apply to FHA design and construction provisions, then "the

FHA's statute of limitations would provide little finality for developers." Id. at

1098. As the panel majority recognized, developers who retain their properties

would be forever liable, while developers who sell their properties "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." Id. If

Congress had intended the statute of limitations to be so easily overcome, it either

would not have included a statute of limitations at all or would have stated so

explicitly.

As the Supreme Court has recently held: "Statutes of limitations serve a

policy of repose." Ledbetter, 127 S. Ct. at 2170. They "represent a pervasive

legislative judgment that it is unjust to fail to put the adversary on notice to defend

within a specified period of time and that 'the right to be free of stale claims in

20

time comes to prevail over the right to prosecute them.'" Id. (quoting United

States v. Kubrick, 444 U.S. I l l , 117 (1979)). Both the dissent and Advocacy

Amid have recognized over and again that a design and construction violation of

the FHA is open, obvious, and easily determinable at the time of completion.

Thus, as time passes without any suits, and the two-year notice period for

multifamily developers, architects, builders, and owners expires, justice requires

that these parties be freed from stale claims. Statutes of limitations are enacted for

a reason, and the Supreme Court has observed that "experience teaches that strict

adherence to the procedural requirements specified by the legislature is the best

guarantee of evenhanded administration of the law." Ledbetter, 127 S. Ct. at 2171

(quoting Mohasco Corp, v. Silver, 447 U. S. 807, 826 (1980)).

CONCLUSION

For the reasons set forth herein and the Briefs of the Appellees, this Court

should affirm the decisions of the lower courts in these cases.

21

Dated: February 22, 2008 Respectfully submitted

Robert A. Bleicher, Bar No. 111334Counsel of RecordHolland & Knight LLP50 California Street, Suite 2800San Francisco, CA 94111(415)743-6900

Christopher B. HanbackRafe PetersenElizabeth PhelpsHolland & Knight LLP2099 Pennsylvania Avenue, N.W.Washington, D.C. 20006(202) 955-3000

22

CERTIFICATE OF COMPLIANCE

I hereby certify that this brief complies with the type-volume limitations set

forth in Rule 32(a)(7)(B) of the Federal Rules of Appellate Procure and in Ninth

Circuit Rule 29-2(c)(3). This brief contains fewer than 7000 words, including

footnotes, but excluding the parts of the brief exempted by Rule 32(a)(7)(B)(iii) of

the Federal Rules of Appellate Procedure.

I further certify that this brief complies with the typeface and type style

requirements of Rule 329a)(5)-(6) of the Federal Rules of Appellate Procedure and

32(a)-(b). This brief has been prepared in proportionally spaced typeface of 14

points.

Dated: February 22, 2008 Respectfully submitted

X)Robert A. Bleicher, Bar No. 111334Counsel of RecordHolland & Knight LLP50 California Street, Suite 2800San Francisco, CA 94111(415)743-6900

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CERTIFICATE OF SERVICE

I, the undersigned, certify that I am employed by a member of the bar of this

Court in good standing and counsel of record for Amici Curiae National Multi Housing Council

and National Apartment Association. I am a citizen of the United States, a resident of the State

of California, over the age of eighteen, and not a party to the within action.

I hereby certify that on February 22, 2008,1 served documents in Noll Garcia v.

Dennis Brockway, Nos. 05-35647 and 06-15042 entitled: BRIEF OF AMICI CURIAE

NATIONAL MULTI HOUSING COUNCIL AND NATIONAL APARTMENT

ASSOCIATION IN SUPPORT OF APPELLEES AND URGING AFFIRMANCE

on all parties to this action, by placing a true and correct of the same in a sealed package

to be picked up by Federal Express, with whom this firm has an ongoing account and

placed the package for collection for overnight delivery to the following parties: SEE

ATTACHED SERVICE LIST

I declare under penalty of perjury under the laws of the United States of America

that the foregoing is true and correct of my own personal knowledge, that I am employed

in an office of a member of the Bar of this Court at whose direction this service was

made, and that this Certificate was executed in San Francisco, California on February 22,

2008.

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SERVICE LIST

Ken NagyKeeton and Tait312 Miller StreetLewiston, Idaho 83501Tel: (208) 743-6231Attorneys for plaintiff-appellant Noll Garcia

Maria E. AndradeHuntley Park, LLP250 S. 5th Street, Suite 660Boise, Idaho 83701Tel: (208) 388-1230Attorneys for plaintiff-appellant Noll Garcia

Candy W. DaleHall, Farley, Oberrecht & Blanton, P.A.702 W Idaho St # 700Boise, ID 83702Tel: (208) 395-8500Attorneys for defendant-appellee Dennis Brockway

Kirtlan G. Naylor and Carlton R. Ericson950 W. Bannock St., Suite 610Boise, ID 83702Tel: (208) 383.9511Attorneys for defendants-appelleesRobert Stewart and Stewart-Miles & Associates

Jed W. ManwaringEvans Keane LLP1405 W Main StBoise, ID 83702Tel: (208) 384-1800Attorneys for amicus curiae Idaho Association of Realtors

J. Nick CrawfordBrassy, Wetherell, Crawford & McCurdy203 West Main StreetBoise, ID 83701-1009Tel: (208) 344-7300

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SERVICE LIST (Continued)

Richard Armknecht, 111Armknecht & Cowdell, P.C.,364 West 120 SouthLindon, UT 84042Tel: (801) 796-0901Attorneys for plaintiffs-appellants Tamara Thompsonand Disabled Rights Action Committee

William P. Curran and Joshua H. ReismanBallard Spahr Andrews & Ingersoll, LLP300 South Fourth Street, Suite 1201Las Vegas, NV 89101Tel: (702) 471-7000Attorneys for defendant-appellee Michael E. Turk

Thomas H, Keeling, Esq.Freeman D'Aiuto Pierce CurveAnd Keeling1818 Grand Canal BoulevardStockton, CA 95207Tel: (209) 474-1818Attorneys for Amicus The California Building Industry Association, California Chamber ofCommerce, Calif. Business Properties Assoc.,

Joan Sylvester Wise, Esq.AARP Foundation Litigation60 IE Street, NWWashington, DC 20049Tel: (202) 434-2060Attorneys for Amicus National Fair Housing Alliance, Paralyzed Veterans Of America

John RelmanMichael Allen, Esq.Relman & Dane, Pile1225 19th Street, NWWashington, DC 20036Tel: (202)728-1888Attorneys for Amicus AARP Foundation Litigation

26

SERVICE LIST (Continued)

Stephen M. Dane, Esq.RELMAN & DANE PLLC1225 Nineteenth Street, N.W.Washington, DC 20036Tel: (202) 728-1888Attorneys for Amicus AARP Foundation Litigation

Elizabeth N. Brancart, Esq.Christopher Brancart, Esq.Michael Evans, Esq.Brancart & Brancart8205 Pescadero RoadLoma Mar, CA 94021Tel: (650) 879-0141Attorneys for Silver State Fair Housing Council, Inc., Michael Evans and Michael Seng, etc.Law Professors

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