Fact Scenario: See details in assigning memo. Ms. Martin suffers from PTSD, depression and anxiety. Medication and psychotherapy did not improve her condition and at the suggestion of the therapist, she obtained Lassie. Lassie allows Ms. Martin to live alone comfortably and to go out in public by relieving her anxiety and providing a buffer from other people. Ms. Martin’s private landlord of her rental house has a no pet policy that he has not been willing to waive. Ms. Martin wants to attend her sister’s wedding in Charleston, but Cactus Air says it cannot accommodate Lassie on the flight from Tucson.
Preliminary Analysis Legal Issues: (1) Whether a private landlord of a single family home who rents the home through a rental listing service violates any federal antidiscrimination law by refusing to waive a no pets clause in the lease to accommodate the tenant’s disability? (2) Whether an air carrier violates any federal antidiscrimination law by refusing to allow a passenger’s service dog to travel in the cabin with her in order to accommodate her disability? (3) Whether a private right of action exists under these federal antidiscrimination laws? Relevant Facts: Lassie allows Ms. Martin to function comfortably at home and in public despite her psychiatric disabilities. Lassie has been trained to sense when Ms. Martin is having a panic attack and diverts Ms. Martin’s thoughts away from the anxiety source. Lassie also provides a buffer between Ms. Martin and other people in public. Private landlord used rental listing service to connect with Ms. Martin and so far refuses to waive a no pet policy. Air carrier Cactus Air claims not to be able to provide for Lassie to accompany Ms. Martin on flight. Jurisdiction: Federal District Court, Tucson, Ninth Circuit
1. Secondary Sources A. Article/source name(s) and citation(s): (Include brief description of how found and why cited.) Many sources are possible on each of the substantive issues involved here (housing rental, air travel,). Probably the best and most recent source that addresses these issues is: Rebecca J. Huss, Why Context Matters: Defining Service Animals Under Federal Law, 37 Pepp. L. Rev. 1163 (2010). Looks at how service animals are interpreted under, the Fair Housing Act, the Air Carrier Access Act and the Americans With Disabilities Act; provides explanation of coverage of each, with citations to case law, statutes, regulations, and more. Once the appropriate federal statutes are located (the Fair Housing Act and the Air Carrier Access Act) other secondary sources discuss whether a private right of action may be pursued under them. For Fair Housing Act: Schwemm, Housing Discrimination Law and Litigation § 12A:1—Standing to sue under the Fair Housing Act; explains provisions in act for direct court action (see below). For Air Carrier Access Act: Karnezis, Recovery for Discriminatory Conduct Under Air Carrier Access Act, 49 USC § 41705, 188 ALR Fed. 367 (originally published in 2003); §§ 3 & 4 of the annotation discuss cases that go either way on whether private right of action exists under the statute. B. Brief summary: From Huss article: While at first reading it might seem that the ADA would apply to all of Ms. Martin’s issues , careful reading notes that the ADA applies to publicly funded activities (eg public housing) and public accommodations (stores, theatres, etc.), so the ADA does not appear to apply to privately owned rental properties. The relevant law on privately owned rental properties is the Fair Housing Act; air transportation is excluded from the ADA, but the relevant antidiscrimination law is the Air Carrier Access Act (ACAA). From Housing Discrimination Law and Litigation § 12A:1: Clear that direct court action is permitted by Fair Housing Act for an “aggrieved person” which certainly includes the tenant. From ALR: Lays out a line of cases that hold that a private right of action is implied by the Air Carrier Access Act and another that it does not; notes that more recent cases question earlier
cases reliance on Supreme Court decision in Cort v. Ash, 422 U.S. 66 (1975) laying out four-part test to determine whether a private right of action exists; later Supreme Court cases have implicitly abrogated or overruled the Cort v. Ash decision.
C. Relevant code section(s) cited in article/source: (explain why it is relevant) [If none, write none] Fair Housing Act: 42 USC § 3601 et seq.; definition of handicap: 42 USC § 3602(h); single family homes may be covered by the act: 42 USC § 3603(b)(1); discrimination includes refusal to make “reasonable accommodations,” 42 USC § 3604(f)(3)(B); regulation does not define service animal but provides seeing eye dog as an example; 24 CFR § 100.204(b); 42 USC § 3613— Enforcement by Private Persons. Air Carrier Access Act (ACAA): 49 USC § 41705—regulation specifically addresses service animals: 14 CFR § 382.117—may require “current documentation” regarding mental illness disabilities; “current” means no more than one year from date of scheduled initial flight. There is no separate statutory section providing for a direct court action as with the Fair Housing Act; court decisions have implied one from the statute itself.
D. Relevant cases cited: (Explain why relevant.) [If none, write none] Fair Housing Act: Prindable v. Ass’n of Apartment Owners of 2987 Kalakaua, 304 F. Supp. 2d 1245 (D. Haw. 2003), aff’d, 453 F.3d 1175 (9th Cir. 2006)—district court decision would require dog to be an individually trained service animal, and animal must be “particularly suited to ameliorate the unique problems of the mentally disabled.”
Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133 (N.D. Cal. 2000)—genuine issue of material fact whether it was reasonable accommodation to allow tenant to keep two cats and two birds despite no pet policy where testimony showed the animals lessened the effect of the mental disability.
Air Carrier Access Act (ACAA): No cases on what animal qualifies as a service animal. ALR cites several cases on issue of whether private right of action exists under ACAA, including:
Adiutori v. Sky Harbor Intern. Airport, 103 F.3d 137 (9th Cir. 1996) which relied on the Cort v. Ash analysis to find a private right of action (note: while this case has a F.3d citation, it is an unpublished decision of no precedential value);
Shinault v. American Airlines, Inc., 936 F.2d 796 (5th Cir. 1991) which looked to intent of Congress to find a private right of action since at that time act did not have clear remedial provisions;
Tallarico v. Trans World Airlines, Inc., 881 F.2d 566 (8th Cir. 1989) examining four factors to determine that cause of action was implied in the statute; Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002) rejecting a private right of action because it found that statutory intent is paramount and that the Act and its regulations provide dispute resolution mechanisms; most importantly the Love court rejected Shinault and Tallarico because they preceded the Supreme court decision in Alexander v. Sandoval, 532 U.S. 275 (2001) which instructed that legislative intent was paramount and that the other factors considered before were important only as far as they provide evidence of Congressional intent;
Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011) also looking at administrative enforcement scheme and not finding Congressional intent to create private right of action; Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004) also finding no private right of action.
2. Statutes: A. Useful index or search terms: Much easier to find the main statutes from a secondary source; can also look in index or do keyword search in USC database but more likely to lead to less relevant statutes such as Rehabilitation Act of 1973.
B. Relevant code sections: (Don’t forget to check surrounding sections for definitions or other substantive information.)(explain why relevant) FHA: 42 USC § 3602(h)(1)—defines handicap as a physical or mental impairment which substantially limits one or more major life activities; 42 USC § 3603(b)(1)—single family rental not exempt if rental agency is used (so FHA would apply here); 42 USC § 3604(f)(3)(B)—discrimination includes refusal to make reasonable accommodation in rules where necessary to afford equal opportunity to use and enjoy a dwelling; 42 USC § 3613(a)(1)(A) – allows aggrieved person to commence civil action within 2 years of occurrence; 42 USC § 3602(i)(1) – defines aggrieved person as someone who claims to have been injured by discriminatory housing practice.
ACAA: 49 USC § 41705(a)(1)—same definition of handicapped as FHA;.
C. Relevant statutory history dates: (Session law dates of passage and citations, if relevant.)—Given that violations, if any, are just occurring now, the passage dates are not really important to these facts
D. Relevant Topic/Key Number(s) in annotation: FHA:
42 USC § 3602—Civil Rights 1019(3); 42 USC § 3603—Civil Rights 1077; 42 USC § 3604—Civil Rights 1083
ACAA: 49 USC § 41705—no relevant ones listed for service animal issue; For private right of action: Carriers 262.5 and 236(2)
E. Relevant cases in annotations (notes of decision): (Explain why relevant.) FHA:
42 USC § 3602— Prindable v. Association of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Haw. 2003), affirmed 453 F.3d 1175, cert. denied 549 U.S. 1216—no evidence dog was individually trained to provide assistance to resident means dog is not a service animal.; 42 USC § 3603— Singleton v. Gendason, 545 F.2d 1224 (9th Cir. 1976)—single family home listed for rent in multiple listing service removes exemption for single family home and makes FHA applicable; 42 USC § 3604— DuBois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006), cert. denied 549 U.S. 1216—requesting additional medical information from treating source while allowing resident to keep animal pending this information was not a denial of a reasonable accommodation (annotation also cites to district court decision in this case for the same point).
ACAA: No relevant cases in annotation on substantive service animal issue; For private right of action, mentions cases discussed above under secondary sources: o Boswell v. Skywest; Shinault v. American Airlines; o Tallarico v. TWA (should have noted these here if not found in secondary source).
F. Brief summary of law: The FHA covers single family private residence rentals when a rental agent or other third party is used in rental process. Both FHA and ACAA define handicap as a physical or mental impairment which substantially limits one or more major life activities; FHA makes it a violation to fail to waive rules as a reasonable accommodation; ACAA requires accommodation of person traveling with service animal but carrier can demand significant documentation for those with mental or emotional impairments; FHA contains specific statutory provision allowing for private action; ACAA does not contain a provision but courts have ruled both ways on whether a private cause of action exists. G. Update using KeyCite or Shepards: (Is there pending/recently enacted legislation or some other warning that affects the statute’s authority?) FHA:
42 USC § 3602—yellow flag for pending legislation—doesn’t affect part about handicapped discrimination; 42 USC § 3603—just green C for citing references; 42 USC § 3604—two yellow flags---one for Unconstitutional or Preempted, based upon a federal district court case from Missouri that deals with insurance redlining—not relevant to our facts; other yellow flag for pending legislation—doesn’t affect part about handicapped discrimination; ; 42 USC § 3613—yellow flag for pending legislation—doesn’t affect relevant portion of statute.
ACAA: 49 USC § 41705— just green C for citing references.
3. Regulations: A. Useful index or search terms: As with statutes, it is much easier to find the main regulations from a secondary source; can also look in index or do keyword search in CFR database but more likely to lead to less relevant regulations such as those related to Rehabilitation Act of 1973. B. Relevant administrative code sections: (Don’t forget to check surrounding sections for definitions or other substantive information.) (Explain why they are relevant.) FHA:
24 CFR § 100.201—provides extensive definition of handicap (includes any emotional or mental illness); major life activity includes “functions such as caring for one’s self . . . learning and working.” 24 CFR § 100.204—unlawful to refuse to make reasonable accommodation in rules when necessary to afford equal opportunity to use and enjoy dwelling; uses no pet policy and seeing eye dog as example.
ACAA: 14 CFR § 382.117—requires carrier to permit a service animal to accompany a passenger with a disability; allows carrier to require passenger traveling with emotional support or psychiatric service animal to provide documentation on professional letterhead from treating professional indicating passenger has a mental or emotional impairment recognized in DSM IV, passenger needs animal as accommodation for air travel and/or for activity at destination. 14 CFR § 382.27(c) and (d)—may require advance notice up to 48 hours notice for passenger travelling with emotional support or psychiatric service animal; if notice is provided must provide accommodation (presumably subject to documentation required in § 382.117). Also, relevant to the private right of action issue; 14 CFR Part 382, Subpart K—Complaints and Enforcement Procedures (14 CFR §§ 382.111 to 382.119) outlines the administrative complaint resolution process starting with the carrier and ending with a formal or informal complaint to the DOT.
C. Relevant regulation history dates: (Federal Register citations to publication of final rules, summarize any relevant useful information) FHA:
24 CFR § 100.201—73 FR 63615, Oct. 24, 2008; 24 CFR § 100.204—54 FR 3283, Jan. 23, 1989; 60 FR 43327, Aug. 18, 1995; 61 FR 5205, Feb. 9, 1996. (none of these discuss service animals specifically);
ACAA: 14 CFR § 382.117—74 FR 11471, March 18, 2009; 73 FR 27665, May 13 2008—in preamble to final regs at 73 FR 27657 agency republished and expanded upon its guidance to carriers concerning service animals; relevant parts include: “Today, both the public and people with disabilities use many different terms to identify animals that can meet the legal definition of “service animal.” These range from umbrella terms such as “assistance animal” to specific labels such as “hearing,” “signal,” “seizure alert,” “psychiatric service,” “emotional support” animal, etc., that describe how the animal assists a person with a disability.” Id. at 27658. And: “Also, an animal used for emotional support need not have specific training for that function. Similar to an animal that has been individually trained, the definition of a service animal includes:
An animal that has been shown to have the innate ability to assist a person with a disability; or an emotional support animal.” Id. With required documentation for psychiatric service/emotional support animals, the guidance states: “Airline personnel may require this documentation as a condition of permitting the animal to accompany the passenger in the cabin. The purpose of this provision is to prevent abuse by passengers that do not have a medical need for an emotional support animal and to ensure that passengers who have a legitimate need for emotional support animals are permitted to travel with their service animals on the aircraft. Airlines are not permitted to require the documentation to specify the type of mental health disability, e.g., panic attacks.” Id. at 27659. 14 CFR § 382.27--75 FR 44887, July 30, 2010 (minor editorial corrections to 2008 publication); 74 FR 11471, March 18, 2009; 73 FR 27665, May 13 2008—see above
D. Brief summary of law: FHA regulations: Handicap defined to interfere with one or more major life activities (including caring for oneself, learning or working (and this seems to apply to Ms. Martin); must make reasonable accommodation in rules when necessary, including waiver of no pet rule ACAA regulations: Must transport service animal; may require advanced notice and special documentation for emotional support/psychiatric service animals; DOT Guidance states emotional support animals don’t need to have specific training for that function. Establishes complaint procedure starting with airline official and going up through a formal or informal complaint to the Department of Transportation.
E. Update using KeyCite or Shepard’s: (Is there pending/recently enacted regulation or some other warning that affects the regulation’s authority? Do any relevant cases cite to the regulation?) (Explain why relevant.) Nothing new uncovered. 4. Relevant Cases: A. After reading cases listed in 1D, 2E and 3E above, were any additional relevant cases cited? (Explain why relevant.) No, nothing new or different B. Were there any additional relevant Topic/Key Numbers? No, nothing new or different of any help
C. Were there any additional relevant secondary sources or statutes cited? (If so, explain why relevant and repeat the relevant checklist process for the additional material.) Not in cases above, but case found in updating below: Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp.2d 850 (S.D. Ohio 2009) refers to the HUD-DOJ Joint Statement on Reasonable Accommodations under the FHA—not cited in case but Google search finds it at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf - gives some examples of reasonable accommodation with service animals where need for animal is not apparent; says landlord can make inquiry into nature of disability and connection between the disability and the need for the requested accommodation. D. Using the Topic/Key Numbers listed in 2D and 4B above, look in the appropriate jurisdictional digest(s) on Westlaw for any additional relevant cases (explain why relevant): [If none, write none] Nothing new E. List any additional relevant cases you found using other case law finding methods (keyword/natural language searching, etc.) (briefly summarize how it is relevant): [If none, write none] Nothing new F. Update all cases listed in 1D, 2E, 3E, 4A, 4D, and 4E above: (Remember a flag/stop sign does not necessarily mean case is no longer good law on your point of law.)
Status of Case
Any New Citing Cases on point
Prindable v. Assoc. of Apartment Owners of 2987 Kalakaua, 304 F.Supp.2d 1245 (D. Haw. 2003)
yellow flag for Some negative history but not overruled—
Overlook Mutual Homes—very good case—out of circuit, but points out that 9th Cir. affirmed the Prindable district court case on other grounds, so 9th Circuit did not address question of individual training of service animal
disagreed with by Overlook Mutual Homes, Inc. v. Spencer, 666 F.
DuBois v. Assoc, of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175 (9th Cir. 2006) Janush v. Charities Hous. Dev. Corp., 169 F. Supp. 2d 1133 (N.D. Cal. 2000) Singleton v. Gendason, 545 F.2d 1224 (9th Cir. 1976)
Overlook Mutual Homes, Inc. v. Spencer, 666 F. Supp.2d 850 (S.D. Ohio 2009)
Chew v. Hybl, 1997 WL 33644581 (N.D.Cal. 1997) Adiutori v. Sky Harbor Intern. Airport, 103 F.3d 137 (9th Cir. 1996) Shinault v. American Airlines, Inc., 936 F.2d 796 (5th Cir. 1991)
Tallarico v. Trans World Airlines, Inc., 881 F.2d 566 (8th Cir. 1989)
Supp.2d 850 (S.D. Ohio 2009) yellow flag for same Overlook case
green C for citing references
green C for citing references
Just unreported case: “Examined” in Chew v. Hybl, 1997 WL 33644581 (N.D.Cal. 1997)—cites Singleton and extends idea that using “listing” service, even non-profit one, removes single owner exemption from FHA no
Blue H for some history—affirmed 2011 WL 285253 (6th Cir. 2011)(reiterates point made in district court that 9th Circuit affirmed Prindable on other grounds than individual training) green C for citing references yellow flag for Love v. Delta Airlines yellow flag for Love v. Delta Airlines and Boswell v. Skywest yellow flag for Love v. Delta Airlines and Boswell v. Skywest
Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002)
Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011) Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004) Cort v. Ash, 422 U.S. 66 (1975)
Alexander v. Sandoval, 532 U.S. 275 (2001)
yellow flag— distinguished by another case on different issue Blue H for some history Blue H for some history
Red flag for implied overruling recognized by numerous cases, including Love yellow flag for declined to extend by other cases on unrelated issues
5. Brief summary of the law (no more than two pages): The Fair Housing Act (FHA) defines a handicap to include a “mental impairment which substantially limits one or more major life activities.” 42 USC § 3602(h)(1). The accompanying regulation states that major life activity includes “functions such as caring for one’s self . . . learning and working.” 24 CFR § 100.201. By statute, discrimination includes refusal to make “reasonable accommodations in rules, policies and practices . . . [that] may be necessary to afford [the handicapped tenant] equal opportunity to use and enjoy a dwelling.” 42 USC § 3604(f)(3)(B). As an example of a reasonable accommodation the regulation mentions waiving a no pet rule for someone with a seeing-eye dog. 24 CFR § 100.204(b). While the FHA exempts private landlords renting only a single family home, that exemption does not apply when the landlord uses a real estate or rental agent, 42 USC § 3603(b)(1). Case law in the Ninth Circuit holds that the exemption is removed when a rental listing service is used, Singleton v. Gendason, 545 F.2d 1224 (9th Cir. 1976). So, it appears that this rental is subject to the terms of the FHA: the use of a rental listing agency removes the exemption for single family homes; there is a good argument that Ms. Martin’s disability affects major life activities in hindering her ability to care for herself, and probably to learn and to work also (more details from the treating professionals should be obtained). We also may need more information about what kind of training Lassie received to assist Ms. Martin. A district court case from Hawaii has held that “individual” training of the service animal is necessary, Prindable v. Ass’n of Apartment Owners of 2987 Kalakaua, 304 F.
Supp. 2d 1245 (D. Haw. 2003). However, on appeal the Ninth Circuit affirmed on other grounds, expressly stating that it did not reach the question of whether the animal must be individually trained. DuBois v. Association of Apartment Owners of 2987 Kalakaua, 453 F.3d 1175, 1179 (9th Cir. 2006). Although details concerning service animals are not spelled out in the FHA statute or regulations themselves, the agencies charged with enforcement of its provisions, the Department of Justice and the Department of Housing and Urban Development, in a Joint Statement explain that “in response to a request for a reasonable accommodation, a housing provider may request reliable disability-related information that (1) is necessary to verify that the person meets the Act's definition of disability (i.e., has a physical or mental impairment that substantially limits one or more major life activities), (2) describes the needed accommodation, and (3) shows the relationship between the person's disability and the need for the requested accommodation..” Joint Statement of the Department of Housing and Urban Development and the Department of Justice: Reasonable Accommodation Under the Fair Housing Act, Question 18 (issued May 1, 2004 and available at http://www.hud.gov/offices/fheo/library/huddojstatement.pdf ). Here it will be helpful to have a statement from the treating mental health professionals that explain her disability, what accommodation is needed, and how the disability and the accommodation are related. In the housing context the statement needs to address how Lassie’s assistance helps mitigate her handicap so that Ms. Martin may have an equal opportunity to use and enjoy her house. A similar statement would be helpful in the air travel context. The Air Carrier Access Act (ACAA) prohibits discrimination based upon a handicap. 49 USC § 41705(a). The implementing regulations allow the airline to request the same type of information as described for FHA purposes, including the need for “the emotional support or psychiatric service animal as an accommodation for air travel and/or for activity at the passenger’s destination.” 14 CFR § 382.117(e). The airline may also require advance notice up to 48 hours notice for passenger travelling with emotional support or psychiatric service animal. 14 CFR § 382.27(c). In a “guidance” document published with the final regulations, the Department of Transportation, states “an animal used for emotional support need not have specific training for that function.” 73 FR 27658. With proper documentation from treating mental health professionals, we should be able to convince both the landlord and the airline of Ms. Martin’s need for Lassie as a reasonable accommodation. The more specific information we can obtain demonstrating how Lassie’s actions mitigate her disability, the better. Then, if the accommodation continues to be denied by the landlord or airline, Ms. Martin will have a stronger claim for any administrative proceedings or litigation that might result. With regard to a private right of action should Ms. Martin wish to pursue her case in federal court, the FHA in clear statutory language permits such a claim. 42 USC § 3613(a)(1)(A). No statutory provision expressly provides a private right of action under the ACAA. Although a 9th Circuit case finding a private right of action exists, Adiutori v. Sky Harbor Intern. Airport, 103 F.3d 137 (9th Cir. 1996), examination of the case reveals that it is an unpublished opinion appearing in the Federal Reporter in a “Table of Decisions Without Reported Opinions”.
According to 9th Circuit Rule 36-3(a) “unpublished decisions and orders of this Court are not precedent…”. In fact, decisions in cases before January 1, 2007 may not be cited to the court in most circumstances. See 9th Circuit Rule 36-3(c). Therefore, it is necessary to examine reported decisions from other circuits on this issue. Early cases tended to find that a private right of action does exist. See Shinault v. American Airlines, Inc., 936 F.2d 796 (5th Cir. 1991) and Tallarico v. Trans World Airlines, Inc., 881 F.2d 566 (8th Cir. 1989). These cases relied heavily on the Supreme Court decision in Cort v. Ash in applying the four factors set out there to determine that a private right of action exists. Following the Supreme Court’s 2001 decision in Sandoval, which severely limited lower courts’ ability to infer a cause of action, no Court of Appeals has found a private right of action under the ACAA. See Love v. Delta Airlines, 310 F.3d 1347 (11th Cir. 2002), Boswell v. Skywest Airlines, Inc., 361 F.3d 1263 (10th Cir. 2004), and Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011)(this most recent case provides an excellent summary of the issue). Given the evolving case law it seems unlikely that the 9th Circuit would now find a private right of action exists under the ACAA.