Angelene Hardaway v. District of Columbia Housing , 843 F.3d 973 ( 2016 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 7, 2016 Decided December 16, 2016
No. 14-7144
ANGELENE HARDAWAY AND LENA HARDAWAY,
APPELLANTS
v.
DISTRICT OF COLUMBIA HOUSING AUTHORITY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-cv-01232)
Dina B. Mishra, appointed by the court, argued the cause
as amicus curiae in support of appellants. With her on the
briefs were Steven H. Goldblatt, appointed by the court, and
Sarah McDonough, Student Counsel.
Lena Hardaway and Angelene Hardaway, pro se, filed
the briefs for appellants.
Alex M. Chintella argued the cause for appellee. With
him on the brief were Frederick A. Douglas and Curtis A.
Boykin. Nicola Grey and Mashanda Y. Mosley entered
appearances.
Before: ROGERS, TATEL and GRIFFITH, Circuit Judges.
2
Opinion for the Court filed by Circuit Judge TATEL.
Opinion concurring in part filed by Circuit Judge
ROGERS.
TATEL, Circuit Judge: Appellants Angelene and Lena
Hardaway (“the Hardaways”) challenge the District of
Columbia Housing Authority’s (“the Authority”) denial of
approval for a live-in aide to care for Angelene. That denial,
they argue, violates provisions of the Americans with
Disabilities Act, 42 U.S.C. § 12132, Rehabilitation Act, 29
U.S.C. § 794, and Fair Housing Act, 42 U.S.C. § 3604(f)(1).
The district court dismissed the case on standing and
mootness grounds and, in the alternative, granted summary
judgment. Because these rulings were erroneous, we reverse.
And because the district court abused its discretion in
summarily denying the Hardaways’ motion to seal certain
medical records, we reverse that decision as well.
I.
Because this case arises from the district court’s grant of
a motion to dismiss and, in the alternative, summary
judgment, we take the factual allegations contained in the
complaint as true and draw all reasonable inferences in the
Hardaways’ favor. See Information Handling Services, Inc. v.
Defense Automated Printing Services, 338 F.3d 1024, 1029,
1032 (D.C. Cir. 2003). Moreover, we construe those
allegations liberally given that the Hardaways filed their
complaint pro se. See, e.g., Erickson v. Pardus, 551 U.S. 89,
94 (2007).
Under the Department of Housing and Urban
Development’s (HUD) Housing Choice Voucher Program
(“the program”), eligible families receive government
3
subsidies to pay for “decent, safe, and sanitary housing.” 24
C.F.R. § 982.1(a)(1); see also 42 U.S.C. § 1437f (authorizing
HUD to administer the program). State or local government
entities called public housing agencies administer the program
using funds HUD provides. 24 C.F.R. § 982.1(a)(1). Once a
public housing agency selects a family to participate in the
program, it issues that family a voucher based on the family’s
size. Id. § 982.402(a). A family of one, for instance, normally
receives a one-bedroom voucher. The program then works in
a three-step process: First, the family “select[s] and rent[s] [a]
unit that meet[s] program housing quality standards”; second,
the public housing agency approves the unit and tenancy; and
third, the public housing agency contracts with the unit’s
owner to make rent subsidy payments on the family’s behalf.
Id. § 982.1(a)(2).
In March 2013, the Montgomery County, Maryland
Housing Opportunities Commission (“the Commission”)
selected Angelene Hardaway to participate in the program.
Based on a medical form provided by Angelene’s doctor, the
Commission determined that Angelene has a disability and
requires a live-in aide to care for her. Because HUD
regulations mandate that “[a]ny live-in aide (approved by the
[public housing agency] to reside in the unit to care for a
family member who is disabled . . .) must be counted in
determining the family unit size,” the Commission issued
Angelene a two-bedroom voucher, rather than a one-bedroom
voucher. Id. § 982.402(b)(6). Lena Hardaway, Angelene’s
sister, served as Angelene’s live-in aide.
Two months after being selected for the program,
Angelene decided to move to the District of Columbia.
Federal law requires that program vouchers be portable: once
a family secures voucher assistance in one jurisdiction, it has
a right to receive such assistance if it moves to another. See
4
42 U.S.C. § 1437f(r)(1); 24 C.F.R. § 982.353(b). Relying on
this guarantee, Angelene obtained a two-bedroom voucher
from the Authority on June 6, 2013, and Angelene and Lena
moved into a two-bedroom apartment in the District three
weeks later.
The Hardaways were soon met with disturbing news. On
July 9, they received a letter from the Authority revoking
Angelene’s right to a live-in aide and, in turn, her legal
entitlement to a two-bedroom voucher. Two days later, the
Hardaways filed a complaint in district court seeking both
damages and injunctive relief. In the complaint, they alleged
that the Authority’s denial of Angelene’s request for a
reasonable accommodation of her disability violated
provisions of the Americans with Disabilities Act, 42 U.S.C.
§ 12132, Rehabilitation Act, 29 U.S.C. § 794, and Fair
Housing Act, 42 U.S.C. § 3604(f)(1). The Hardaways also
sought a temporary restraining order and moved to seal their
complaint, all medical records, and all “nondispositive
materials.” Hardaway v. DCHA, No. 13-1232, ECF No. 8, at
1 (D.D.C. Aug. 29, 2013). The district court denied both
motions. See Hardaway, No. 13-1232, ECF No. 5 (D.D.C.
Aug. 9, 2013) (denying temporary restraining order);
Hardaway, No. 13-1232, ECF No. 10 (D.D.C. Sept. 5, 2013)
(denying motion to seal).
On September 26, while the Hardaways’ case was
pending, the Authority sent another letter reaffirming that
Angelene’s “request for a live-in aide has been denied” on the
ground that “there was no documentation submitted with [her]
request to support [her] need for a reasonable
accommodation.” At the same time, however, the letter stated
that “this determination will not reverse the decision of the
[program] to provide [Angelene] with a two (2) bedroom
voucher.”
5
Shortly after sending this letter, the Authority moved to
dismiss or for summary judgment, asserting that the
Hardaways’ complaint failed to state a claim for which relief
could be granted and that their claims were moot. The district
court granted the Authority’s motion, holding on its own
accord that the Hardaways lacked standing because they had
alleged no injury in fact. “Nothing in plaintiffs’ Complaint,”
the court reasoned, “indicates that the [Authority] denied
[them] access to or participation in the [program] because of
Angelene’s disability.” Hardaway, No. 13-1232, ECF No. 18,
slip op. at 4 (D.D.C. July 30, 2014). And because, in the
court’s view, the Authority’s September 26 letter showed that
it had “acquiesced to plaintiffs’ desired living arrangement,”
the court determined that the Hardaways had suffered no
cognizable harm. Id. at 5. For that reason, too, it concluded
that their claims were moot. Id. n.3. The court dismissed the
case with prejudice, and the Hardaways appealed. In
considering the issues before us, we have been ably assisted
by a court-appointed amicus.
II.
We review dismissals for lack of Article III jurisdiction
de novo. See LaRoque v. Holder, 650 F.3d 777, 785 (D.C.
Cir. 2011) (standing); Schmidt v. United States, 749 F.3d
1064, 1068 (D.C. Cir. 2014) (mootness). We begin with
standing and then turn to mootness.
A.
Article III standing requires, among other things, an
injury in fact, which is “‘an invasion of a legally protected
interest’ that is ‘concrete and particularized’ and ‘actual or
imminent, not conjectural or hypothetical.’” Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1548 (2016) (quoting Lujan v.
6
Defenders of Wildlife, 504 U.S. 555, 560 (1992)). As the
Supreme Court has emphasized, when the plaintiff is herself
“an object of [government] action[,] . . . there is ordinarily
little question that the action . . . has caused [her] injury.”
Lujan, 504 U.S. at 561–562. Indeed, this court has explained
that standing is “self-evident” when the plaintiff is herself
“the object of the challenged agency action.” Fund for
Animals v. Norton, 322 F.3d 728, 734 (D.C. Cir. 2003).
Critically for this case, the standing inquiry focuses on
whether the plaintiff has demonstrated an injury “at the outset
of the litigation.” Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), 528 U.S. 167, 180 (2000); see
also Wheaton College v. Sebelius, 703 F.3d 551, 552 (D.C.
Cir. 2012) (“[S]tanding is assessed at the time of filing . . . .”).
Applying these principles, we think it obvious that
Angelene has demonstrated injury in fact. The Hardaways’
complaint alleges that Angelene received a July 9 letter from
the Authority denying her “request for reasonable
accommodation.” Construed liberally, the complaint clearly
refers to a rescission of Angelene’s live-in aide approval. By
revoking that approval, the Authority extinguished
Angelene’s legal entitlement to a two-bedroom voucher
because only approved live-in aides may count toward family-
unit size. See 24 C.F.R. § 982.551(h)(2) (“No other person
[i.e., nobody but members of the assisted family] may reside
in the unit (except for a . . . live-in aide . . . .).”); id. §
982.551(h)(4) (“If the [public housing agency] has given
approval, . . . a live-in aide may reside in the unit.”). As a
result, Angelene instantly became vulnerable to losing both
her round-the-clock care and her home. The Hardaways filed
their complaint two days after receiving the letter.
At the outset of the litigation, then, the Authority had just
stripped Angelene of a government benefit to which she
7
claimed a legal entitlement. Because Angelene was thus the
“object” of government action, there should have been “little
question” that she suffered cognizable injury. See Lujan, 504
U.S. at 561. Said otherwise, by rescinding Angelene’s
claimed statutory entitlement to a live-in aide and two-
bedroom voucher, the Authority’s July 9 letter “inva[ded] . . .
a legally protected interest,” and that invasion was “concrete
and particularized” because it denied her care and could well
have led to her eviction. See Spokeo, 136 S. Ct. at 1548(quoting Lujan, 504 U.S. at 560); see also Yesler Terrace
Community Council v. Cisneros, 37 F.3d 442, 446 (9th Cir.
1994) (threatened eviction is concrete and particularized
harm). This analysis shows why plaintiffs have long been
empowered to challenge the rescission of government benefits
in federal court. See, e.g., Mathews v. Eldridge, 424 U.S. 319(1976); Goldberg v. Kelly, 397 U.S. 254 (1970); see also
Americans for Safe Access v. DEA, 706 F.3d 438, 445–46
(D.C. Cir. 2013) (holding that injury in fact was “clearly
establish[ed]” where a veteran challenged a Veterans
Administration policy denying him a benefit to which he
claimed an entitlement).
The district court confused standing and mootness. In
granting the Authority’s motion, the district court relied on
the Authority’s September 26 letter reaffirming the live-in
aide denial but “acquiesc[ing]” to Angelene’s retention of a
two-bedroom voucher. Hardaway, No. 13-1232, ECF No. 18,
slip op. at 5. But, as noted earlier, the standing inquiry trains
attention on whether a plaintiff has alleged cognizable injury
“at the outset of the litigation.” Friends of the Earth, 528 U.S.
at 180. The mootness inquiry, by contrast, asks whether
events subsequent to the filing of the complaint “have so
transpired that the decision will neither presently affect the
parties’ rights nor have a more-than-speculative chance of
affecting them in the future.” American Bar Association v.
8
FTC, 636 F.3d 641, 645 (D.C. Cir. 2011). Because the
Authority sent the September 26 letter after the Hardaways
filed their complaint, it should have played no role
whatsoever in the district court’s standing analysis. That
analysis should have turned exclusively on the July 9 letter, in
which the Authority rescinded Angelene’s live-in aide
approval.
The Authority argues that even if we focus on the time of
filing, the Hardaways’ complaint alleges no injury. Yet, as we
have explained, when construed liberally, the complaint
alleges a rescission of Angelene’s live-in aide approval
through its reference to the Authority’s “denial of participant
request for reasonable accommodation.” And without such
approval, Angelene lacked a legal entitlement to a two-
bedroom voucher. At the pleading stage, a plaintiff’s general
allegation that the government has denied or revoked a benefit
suffices to show injury in fact.
With injury in fact established, the other two
requirements for standing—causation and redressability, see
Lujan, 504 U.S. at 560–61—flow easily: Angelene’s loss of a
statutory entitlement traces directly to the Authority’s July 9
letter and would be redressed were we to direct the Authority
to officially approve her live-in aide request. Because we
conclude that Angelene has standing to bring this action, we
need not reach amicus’s alternative contention that Lena has
standing to sue under the Fair Housing Act. See Mountain
States Legal Foundation v. Glickman, 92 F.3d 1228, 1232
(D.C. Cir. 1996) (“For each claim, if . . . standing can be
shown for at least one plaintiff, we need not consider the
standing of the other plaintiffs to raise that claim.”).
9
B.
Having determined that Angelene had standing at the
time of filing, we turn to the question of mootness. As
explained already, whereas standing is measured by the
plaintiff’s “concrete stake” at the outset of the litigation,
mootness depends on whether the parties maintain “a
continuing interest” in the litigation today. See Laidlaw, 528
U.S. at 191–92. Pointing to the Authority’s September 26
letter—which stated that it would “not reverse the decision of
the [program] to provide [Angelene] with a two (2) bedroom
voucher”—the district court saw no such continuing interest.
Again, we disagree.
Although the Authority’s September 26 letter refrained
from revoking Angelene’s two-bedroom voucher, it expressly
reaffirmed the denial of her live-in aide request. As a result,
Angelene is legally entitled to only a one-bedroom voucher.
The Authority’s permission for Angelene to keep a two-
bedroom voucher thus amounts to an act of administrative
grace, and it retains authority to revoke that voucher at any
time. Indeed, as amicus points out, by permitting Angelene to
keep a two-bedroom voucher after denying her live-in aide
request (and without granting an official exception based on
Angelene’s handicap, see 24 C.F.R. § 982.402(b)(8)), the
Authority appears to be violating HUD regulations, which
allow only approved live-in aides to reside with an assisted
family, see id. § 982.551(h)(2) (“No other person [i.e. nobody
but members of the assisted family] may reside in the unit
(except for a . . . live-in aide . . . .).”); id. § 982.551(h)(4) (“If
the [public housing agency] has given approval, a . . . live-in
aide may reside in the unit.”). Angelene therefore continues to
suffer the same injury that she sustained at the outset of the
litigation: denial of a legal entitlement to a two-bedroom
10
voucher, which renders her perpetually vulnerable to having
that voucher revoked. Consequently, her claims are not moot.
Even if the Authority could lawfully allow Angelene to
retain the two-bedroom voucher and assured us that it would
not withdraw that accommodation in the future, Angelene’s
claim would still present a live controversy. For a case to be
rendered moot through the defendant’s voluntary cessation of
a challenged practice, it must be “absolutely clear that the
allegedly wrongful behavior could not reasonably be expected
to recur.” Laidlaw, 528 U.S. at 189 (quoting United States v.
Concentrated Phosphate Export Association, 393 U.S. 199,
203 (1968)). “The heavy burden of persuading the court that
the challenged conduct cannot reasonably be expected to start
up again lies with the party asserting mootness.” Id.Here, the Authority has failed to provide any evidence
that it will refrain from revoking Angelene’s two-bedroom
voucher in the future. Instead, attempting to foist its burden
onto the Hardaways, it argues that they have offered no
evidence to prove that the Authority will rescind the voucher.
Appellee’s Br. 19. This tactic ignores the Supreme Court’s
command that “the party asserting mootness” must carry the
“heavy burden” of proving mootness through cessation.
Laidlaw, 528 U.S. at 189. At bottom, the Authority’s
argument amounts to a meager “promise not to” revoke the
voucher. See Kifafi v. Hilton Hotels Retirement Plan, 701
F.3d 718, 725 (D.C. Cir. 2012). Unfortunately for the
Authority, courts never permit parties to deprive them of
jurisdiction through a mere “wave of [the] hand.” Id. at 724.
III.
This brings us, finally, to amicus’s argument that the
district court erred in denying the Hardaways’ motion to seal
11
their complaint, all medical records, and all non-dispositive
materials. We review that denial for abuse of discretion.
EEOC v. National Children’s Center, Inc., 98 F.3d 1406,
1409 (D.C. Cir. 1996).
“The starting point in considering a motion to seal court
records is a strong presumption in favor of public access to
judicial proceedings.” Id. That said, in United States v.
Hubbard, 650 F.2d 293 (D.C. Cir. 1980), we set forth six
factors “that might act to overcome this presumption”:
(1) the need for public access to the documents at
issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the
strength of any property and privacy interests
asserted; (5) the possibility of prejudice to those
opposing disclosure; and (6) the purposes for which
the documents were introduced during the judicial
proceedings.
National Children’s Center, 98 F.3d at 1409 (citing Hubbard,
650 F.2d at 317–22).
In this case, the district court offered scarce explanation
for its denial of the Hardaways’ motion. It failed to consider
the Hubbard factors, simply stating that: “The disability is a
critical fact that must be alleged and proved in order for
plaintiffs to prevail. It alone is not information so sensitive
that all pleadings, discovery materials, and non-dispositive
motions must be filed under seal.” Hardaway, No. 13-1232,
ECF No. 10, slip op. at 2. The court also incorrectly assumed
that “none of the documents filed in this action is a medical
record,” id. n.1, when in fact a form containing a doctor’s
description of Angelene’s disability had been docketed, see
12
Hardaway, No. 13-1232, ECF No. 1 (D.D.C. Aug. 9, 2013).
By failing to weigh the six relevant factors and
mischaracterizing the record, the district court abused its
discretion. See National Children’s Center, 98 F.3d at 1410(“Without a full explanation, we are unable to review the
district court’s exercise of its discretion.”).
Because we are remanding to the district court, we could
instruct it to consider the Hubbard factors and decide whether
to seal the relevant documents. But given the clarity of the
issue, we think it best to weigh the factors ourselves. The
public has no need for access to documents that describe
Angelene’s disability; Angelene, the plaintiff, has objected to
their disclosure; and she possesses a strong privacy interest in
keeping the details of her disability confidential. For its part,
the Authority conceded at oral argument that it has no
objection to sealing or redacting Angelene’s medical
documents. Oral Arg. Rec. 34:33–39. As a result, the single
medical form currently in the record, and all future medical
records describing Angelene’s disability, must be sealed. In
addition, descriptions of Angelene’s disability contained in
any filing—including appellate briefs and appendices—
should be or remain redacted. Contrary to the concurrence’s
suggestion, nothing in this opinion limits the district court’s
discretion in determining whether to seal current or future
documents unrelated to Angelene’s disability.
IV.
For the foregoing reasons, we reverse the district court’s
grant of the Authority’s motion to dismiss or for summary
judgment, as well as its denial of the Hardaways’ motion to
seal as it pertains to medical records and descriptions of
Angelene’s disability. We also grant, in part, amicus’s
motion to seal appellate briefs and appendices: all
13
descriptions of Angelene’s disability should be or remain
redacted. We remand for further proceedings consistent with
this opinion.
So ordered.
ROGERS, Circuit Judge, concurring in part. I join the
court’s opinion save in two respects.
First, I concur in holding that appellant Angelene Hardaway
has standing under Article III of the Constitution, and that
appellants’ claims arising out of denials of requests for
accommodation under the Housing Choice Voucher Program –
a federally funded program administered locally by the D.C.
Housing Authority, see 42 U.S.C. § 1437f(b)(1) – are not moot.
Due to her disability, Angelene had received approval in
February 2013 from Montgomery County, Maryland for her
sister Lena to serve as her live-in aide, entitling Angelene to a
two-bedroom housing voucher. When she subsequently moved
to the District of Columbia, she was issued a two-bedroom
voucher by the D.C. Housing Authority pursuant to the voucher
program’s portability requirements. See id. § 1437f(r)(1); 24
C.F.R. §§ 982.353(b), 982.355. A month later, however, the
Authority, by letter of July 9, 2013, denied Angelene’s request
for a live-in aide. See Compl. ¶ 13. That letter provided
grounds to find that rescission of live-in aide approval
jeopardized Angelene’s entitlement to a two-bedroom apartment
under the voucher program. See 28 C.F.R. § 982.402(b)(7).
This was sufficient to establish the requisite injury-in-fact under
Article III, and Angelene otherwise meets the causation and
redressibility requirements. See Lujan v. Defenders of Wildlife,
504 U.S. 555, 560–61(1992).
The Authority’s September 26, 2013, letter, which affirmed
the denial of a live-in aide but did not rescind the two-bedroom
voucher, did not moot appellants’ claims. See Already, LLC v.
Nike, Inc., 133 S. Ct. 721, 726-27 (2013). That letter did not cite
authority under which Angelene remained entitled to a two-
bedroom unit once the Authority had disapproved her live-in
aide. Neither did it indicate that Lena Hardaway qualified as a
family member under 24 C.F.R. § 982.551(h)(2). Nor did it
2
otherwise establish that Angelene’s legal entitlement to a two-
bedroom apartment was unaffected by the live-in-aide denial.
It thus appears that the Authority’s September 26 letter amounts
to nothing more than “an act of administrative grace.” Op. at 9.
Because it is unnecessary, at this stage of the proceedings,
for the court to decide more, and the matter has not been fully
briefed, however, I would defer opining on whether appellants
faced eviction or whether the Authority could lawfully acquiesce
to appellants remaining in the two-bedroom apartment.
Second, I concur in holding that the district court abused its
discretion in denying appellants’ motion to seal because it failed
to apply the factors in United States v. Hubbard, 650 F.2d 293,
317-22 (D.C. Cir. 1980), and erred in finding no medical record
had been filed, see Order at 2 n.1 (Sept. 5, 2013). Appellants
moved to seal in part because public disclosure of Angelene’s
medical records relating to her disability could adversely affect
her employment prospects. Mot. to Seal at 2. In the district
court, the Authority did not dispute her assertion about adverse
impact on her employment prospects, and on appeal expressed
no objection to such sealing, Oral Arg Rec. 34:33–39.
Regardless, notwithstanding the strong presumption that the
public shall have access to judicial proceedings, see Nixon v.
Warner Commc’ns, Inc., 435 U.S. 589, 597-98 (1978);
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 573
(1980), I concur in holding that Angelene’s medical records
relating directly to her disability that are currently in the record
on appeal, and the redacted portions of the joint appendix on
appeal, appellee’s brief, and the opening brief filed on her behalf
by amicus, should be sealed.
3
As regards additional sealing, the court has decided to opine
regarding certain documents that may be presented in future
proceedings. Op. at 12. I would leave that question to the
district court to decide, in the first instance, upon applying the
Hubbard factors, and taking into account appellants’ pro se
status. See Order at 2 n.1 (Sept. 5, 2013). It is not
inconceivable that future distinctions may be appropriately
drawn, even as to types of medical records.