Professional Documents
Culture Documents
No. 15-1223
UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT,
OFFICE OF THE SECRETARY, ON BEHALF OF CARLO GIMNEZ BIANCO,
Petitioner,
v.
CASTILLO CONDOMINIUM ASSOCIATION,
Respondent.
____________________
CROSS-PETITION FOR ENFORCEMENT OF A FINAL ORDER OF THE
SECRETARY OF THE UNITED STATES DEPARTMENT OF
HOUSING AND URBAN DEVELOPMENT
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
May 2, 2016
it
turns
chiefly
on
the
standard
of
Like so many
review.
After
grant
the
Secretary's
cross-petition
We
for
As relevant here,
Under
(3)
being
regarded
as
having
such
an
impairment."
Id.
3602(h).
Pertinently,
the
Act
outlaws
discrimination
in
afford
such
dwelling."
II.
person
equal
opportunity
to
use
and
enjoy
Id. 3604(f)(3)(B).
PRIOR PROCEEDINGS
In
Association)
2010,
the
learned
Castillo
that
Carlo
Condominium
Gimnez
Association
Bianco
(the
(Gimnez),
anxiety
depression,
promptly
advised
the
board
of
- 4 -
the Association.2
The
See id.
four-day
administrative
law
evidentiary
judge
hearing
(ALJ).
ensued
Gimnez,
before
his
an
treating
evidence in opposition.
recommended
violated
decision
the
Act
concluding
because
that
Gimnez
the
had
Association
failed
to
had
prove
not
by
the
regulatory
regime,
the
ALJ's
recommended
Secretary
found
that
Gimnez
suffered
from
In the end,
a
cognizable
Secretary
determination
remanded
of
the
damages
case
and
to
civil
the
ALJ
for
penalties.
an
initial
See
id.
inter
alia,
that
since
the
Association's
culpable
acts
and
relief,
including
fair
housing
training
for
the
Association's
blameworthiness
intentional" conduct.
for
its
"egregious
and
available
and
penalty
strengthened
amount).
the
ALJ's
Finally,
the
Secretary
proposals
for
ancillary
relief.
Displeased by virtually every aspect of the Secretary's
final order, the Association filed a timely petition for judicial
review.
- 7 -
We consolidated
STANDARD OF REVIEW
Under
the
Administrative
Procedure
Act
(APA),
5 U.S.C. 706(2)(A).
Of course,
- 8 -
such a situation: though the ALJ was the initial decisionmaker and
the one who actually saw and heard the witnesses, the Secretary is
the ultimate decisionmaker.
C.F.R.
180.675(a);
180.675(b).
But
see
common
42
U.S.C.
sense
3612(h),
suggests
that,
24
C.F.R.
in
such
We agree
- 9 -
Labor, 10 F.3d 276, 280 (5th Cir. 1993); see also Earle Indus.,
Inc. v. NLRB, 75 F.3d 400, 404 (8th Cir. 1996) (noting that a
reviewing
court
"examine[s]
the
[Secretary's]
standard
of
review
in
mind
that
we
findings
more
It is with this
turn
to
the
DISCUSSION
We divide our analysis into three segments.
First, we
Second,
The Merits.
For present
Secretary's
decision
ultimately
rests
on
his
Though the
See 42 U.S.C.
reasonable
accommodation
constituted
discrimination
We explain briefly.
show
that
he
was
person
with
disability,
that
the
- 11 -
a reasonable accommodation.
at 67.
Third,
that the Association informed Gimnez that he could not keep his
dog in his unit.
findings,
the
Secretary
acted
well
within
the
scope
of
his
The
Secretary concluded that the ALJ lacked any sound basis for the
wholesale abrogation of this testimony.
To begin, the ALJ discounted Gimnez's own testimony,
apparently because he concluded that an individual cannot supply
key testimony verifying his own disability status.
research suggests the opposite.
Yet, our
Homes, Inc., 759 F.3d 140, 148, 157 (2d Cir. 2014) (explaining
that individual's testimony about his depression was competent to
put his disability status in issue).
Next, the Secretary disagreed with the ALJ's assessment
of Dr. Fernndez's testimony.
psychiatrist who had treated Gimnez for years and who strongly
confirmed the existence of the claimed disability.
Fernndez, the Secretary explained that HUD and DOJ have made
pellucid that verification of a person's disability can come from
any reliable third party who is in a position to know about the
individual's disability a category into which Dr. Fernndez
surely fit.
who does not charge for his services could never testify.
Carried
to its logical extreme, the ALJ's view might even mean that a
person who receives all of his medical treatment for free could
never establish a disability.
Dr.
The
- 15 -
that
substantially
activities.
limited
one
or
more
of
his
major
life
We
Res Judicata.
to
filing
his
complaint
with
HUD,
Gimnez
provision.
Both the
So do we.
the case decided by the sentence and that in which the same is
invoked, there be the most perfect identity between the things,
causes, and persons of the litigants, and their capacity as such."
P.R. Laws Ann. tit. 31, 3343. This definition encompasses, inter
alia, the doctrine of claim preclusion.
See Medina-Padilla v.
U.S. Aviation Underwriters, Inc., 815 F.3d 83, 86 (1st Cir. 2016);
R.G. Fin. Corp. v. Vergara-Nuez, 446 F.3d 178, 183 (1st Cir.
2006).
"A party asserting claim preclusion under Puerto Rico
law must establish that: (i) there exists a prior judgment on the
merits that is 'final and unappealable'; (ii) the prior and current
actions share a perfect identity of both 'thing' and 'cause'; and
(iii) the prior and current actions share a perfect identity of
the parties and the capacities in which they acted."
Garca-
- 17 -
The
and, accordingly,
Puerto
Rico
Condominium
Act
sets
out
an
in any way address (or give DACO the power to address) housing
discrimination.
the DACO proceeding and the HUD proceeding do not and, indeed,
could not share a perfect identity of both thing and cause.
Thus, the ALJ did not err in refusing to apply res judicata to
pretermit Gimnez's HUD charge.
C.
Motion in Limine.
This
challenge is futile.
To begin, the Association has waived this challenge by
failing to develop it in this court.
This
United States v.
See
in
determining
what
individuals
competent
to
- 19 -
CONCLUSION
We need go no further.9
above, we deny the Association's petition for review and grant the
Secretary's cross-petition for enforcement of his order.
Costs
So Ordered.