GARCIA v. BROCKWAY
The Ninth Circuit Court of Appeals today released an opinion in GARCIA v. BROCKWAY, No. 05-35647, a federal appeal. The panel consisted of Alex Kozinski, Chief Judge, Harry Pregerson, Stephen Reinhardt, Andrew J. Kleinfeld, Barry G. Silverman, M. Margaret McKeown, Kim McLane Wardlaw, Johnnie B. Rawlinson, Richard R. Clifton, Carlos T. Bea and N. Randy Smith, Circuit Judges.
KOZINSKI, Chief Judge:
We consider when the statute of limitations begins to run in a design-and-construction claim under the Fair Housing Act (FHA). . . .
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: . . .
panel’s decision, Garcia v. Brockway, 503 F.3d 1092, 110111 (9th Cir. 2007) (Fisher, Circuit Judge, dissenting), which also appears immediately below, as the dissenting opinion of the en banc minority. We write additionally only to emphasize the extent to which the majority’s holding perverts the purpose and intent of the statute. Indeed, the majority’s decision well illustrates how statutes of limitations have been twisted by courts to limit the scope and thrust of civil rights laws. The majority takes an Act that was designed to protect disabled persons by mandating that multifamily housing be made accessible to them and construes its statute of limitations in a way that solely benefits the housing construction industry and renders the statute of far less use to disabled individuals than Congress intended. The Fair Housing Act (”FHA”) contains a 30 month grace period that gave developers building new multifamily housing clear notice of what was required to satisfy the statute’s accessibility standards. See 42 U.S.C. ยง 3604(f)(3)(C). There is no reason that a developer who fails to comply with these requirements should not be held accountable for such violations. Nevertheless, the majority holds that unless a disabled person happens to become aware of the developer’s failure to comply within two years after the certificate of completion is issued, the developer is home-free –completely immune from suit. Thus, a disabled person. . .
FISHER, Circuit Judge, dissenting:
I respectfully dissent. The majority erroneously treats a building’s improper design and construction as the event that triggers the Fair Housing Act’s (FHA) two-year statute of limitations. It does so by finding an ambiguity in the statute and then resolving that ambiguity contrary to the overall purpose and structure of the FHA and its legislative and judicial history. I believe instead that the most plausible reading of the statute is that the limitations period begins (at the earliest) when a disabled person actually experiences discrimination -either in attempting to buy or rent a noncompliant housing unit, in “testing” such a unit or upon moving in as a tenant. The majority contravenes the general rule that statutes of limitations are triggered by the accrual of a plaintiff’s cause of action. Under the majority’s approach, a real estate developer or landlord of a noncompliant building will often be immunized from suit long before a particular disabled individual has been injured and able to challenge the noncompliant features. Importantly, the majority’s position is at odds with the FHA’s legislative history, with Supreme Court precedent regarding the statute’s construction and with the longstanding interpretation of the government agency charged with administering the FHA. As a result of the majority’s reading, disabled persons -the statute’s actual intended beneficiaries — will be stripped of their ability to enforce the FHA’s most important protec. . .