Liana Revock v. Cowpet Bay West Condominium As
66 V.I. 905
| 3rd Cir. | 2017Background
- Walters and Kromenhoek, condominium residents with disabilities, obtained emotional support dogs that violated Cowpet Bay West’s absolute "no dogs" rule; they submitted medical verification and certifications to the association.
- Neighbors Talkington and Felice publicly posted critical and harassing blog comments naming the women and their alleged "papers;" Cowpet’s board (through president Harcourt) emailed the women that they were in violation and moved to fine them $50/day (fines later waived when a new president granted accommodations).
- Walters sued under the Fair Housing Act (FHA) for denial of a reasonable accommodation (42 U.S.C. § 3604(f)(3)(B)) and interference with fair housing rights (42 U.S.C. § 3617); similar claims by Kromenhoek followed; supplemental territorial claims were also asserted.
- While the case was pending, Walters committed suicide; two individual defendants (Felice and Harcourt) also died during proceedings; the District Court dismissed Walters’ FHA claims as abated by death, applying 42 U.S.C. § 1988(a) and territorial law.
- The Third Circuit reversed in part: it held § 1988(a) does not govern survival of FHA claims, adopted a uniform federal common-law survival rule (remedial federal claims survive), reinstated Walters’ FHA claims, found genuine issues of material fact on both the accommodation refusal and § 3617 interference claims, and remanded for further proceedings including substitution issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Do FHA claims survive a plaintiff’s death? | FHA claims are federal and should survive; plaintiff urged application of federal common law to allow survival. | District Court: apply § 1988(a) and territorial (V.I.) survival rule to find abatement. | The Third Circuit: § 1988(a) does not apply; federal common law governs; remedial FHA claims survive death. |
| Does 42 U.S.C. § 1988(a) require application to the FHA survival question? | N/A (plaintiffs argued federal rule applies). | Cowpet argued § 1988(a) is the proper gap-filler and permits adoption of territorial law. | § 1988(a) does not apply to the FHA because its text refers to specific Revised Statutes’ titles; legislative history and precedents support limiting § 1988(a). |
| Was there a "refusal" to provide a reasonable accommodation under § 3604(f)(3)(B)? | Walters/Kromenhoek: board had notice (paperwork) and either reviewed it or had opportunity but fined/declined — constituting refusal (actual or constructive) or undue delay. | Cowpet: no refusal because plaintiffs were not deprived of dogs; any enforcement was rule application, not refusal; disputed whether board saw paperwork or was barred from review. | Reversed summary judgment: disputed facts (whether plaintiffs barred review; whether Harcourt reviewed files) create genuine issues whether Cowpet had opportunity and thus refused accommodation. |
| Did individual defendants’ conduct (Felice, Talkington, Harcourt) violate § 3617 (interference/hostile environment)? | Plaintiffs: repeated public harassment, naming, threats, calls to ostracize, and urging legal action interfered with enjoyment of housing and were sufficiently severe/pervasive. | Defendants: argued First Amendment or non-actionable expression and no actionable interference; District Court granted summary judgment. | Reversed in part: factual disputes exist; a reasonable jury could find harassment severe or pervasive enough to interfere under § 3617; Harcourt's summary judgment vacated pending substitution. |
Key Cases Cited
- Moor v. County of Alameda, 411 U.S. 693 (1973) (historical context of § 1988 and its original scope)
- Robertson v. Wegman, 436 U.S. 584 (1978) (use of § 1988 to determine survival under § 1983)
- Kimbell Foods, Inc. v. United States, 440 U.S. 715 (1979) (need to develop federal common law where statute is silent)
- Am. Elec. Power Co. v. Connecticut, 564 U.S. 410 (2011) (federal common law as exception and prudential adoption of state law absent federal need)
- Groome Res. Ltd. v. Parish of Jefferson, 234 F.3d 192 (5th Cir. 2000) (FHA refusal can be actual or constructive; undue delay may be refusal)
- Bhogaita v. Altamonte Heights Condo. Ass’n, Inc., 765 F.3d 1277 (11th Cir. 2014) (FHA reasonable-accommodation/constructive refusal principles)
- Astralis Condo. Ass’n v. Sec’y, U.S. Dep’t of Hous. & Urban Dev., 620 F.3d 62 (1st Cir. 2010) (undue delay or enforcement may constitute FHA refusal)
- Ex parte Schreiber, 110 U.S. 76 (1884) (distinguishing penal claims that do not survive from remedial claims that do)
- Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) (FHA’s broad remedial purpose and standing principles)