[00:00:02] Speaker 00: Case number 14-7144, Angeline Hardaway at L Appellants versus District of Columbia Housing Authority. [00:00:09] Speaker 00: Ms. [00:00:09] Speaker 00: Mishra for the amicus cari, Mr. Chintella for the appellate. [00:00:43] Speaker 01: Good morning. [00:00:44] Speaker 01: May it please the court. [00:00:45] Speaker 01: My name is Dina Mishra and I'm court appointed to make a supporting appellant. [00:00:50] Speaker 01: If I may, I'll reserve two minutes for a bottle on. [00:00:53] Speaker 01: The district court erred in dismissing this case on standing and mutinous grounds because it overlooked the Hardaway's sufficient allegations of injury in their complaint and TRO motion filed the same day. [00:01:04] Speaker 01: So your point is the district court had to look beyond the complaint. [00:01:09] Speaker 01: Yes, that's one of our arguments, Your Honor. [00:01:11] Speaker 01: Was obligated to do so? [00:01:13] Speaker 01: Yes, under Brown and Abdel Fattah and what follows naturally from those cases. [00:01:20] Speaker 01: That TRO motion specifically alleged that after move in, defendant DCHA acted to force. [00:01:25] Speaker 05: I'm sorry. [00:01:26] Speaker 05: That surprises me. [00:01:27] Speaker 05: I would have thought that your strongest argument would be for us to confine ourselves to the complaint, because you have an allegation of injury, your allegation of injury, dispute about that from the defendant, and then we have the district court [00:01:46] Speaker 05: treating it as a summary judgment and not doing it on the pleadings. [00:01:50] Speaker 05: But maybe I've thought incorrectly. [00:01:54] Speaker 01: Your Honor, to clarify, we believe the TRO motion is effectively an extension of the complaint. [00:01:59] Speaker 01: And the reason why is it was filed the same day. [00:02:01] Speaker 01: It has many overlapping allegations. [00:02:03] Speaker 01: The complaint has an attachment that also is to be considered this doctor's report. [00:02:08] Speaker 01: And so we actually believe as a package, it must be considered as part of the complaint. [00:02:13] Speaker 01: And you wouldn't mind adopting Judge Griffith's approach, would you? [00:02:17] Speaker 01: Well, we'd like to confine it to the complaint and not look beyond the complaint, because we believe that that's what's necessary at this motion to dismiss stage without. [00:02:25] Speaker 03: I mean, the complaint doesn't say, and I incorporate hereby my request for temporary release. [00:02:33] Speaker 01: Even if the TRO motion is not considered and it has only more specificity about allegations that are already in the complaint. [00:02:41] Speaker 01: So, for example, the complaint says that they made requests that included living aid and housing voucher requests and that there was a refusal of all reasonable accommodation requests. [00:02:51] Speaker 01: What the TRO says, just more specifically, is that- Wait, wait. [00:02:53] Speaker 04: Before you go there, why do you- I understand why you want to rely on the TRO, because it's clear. [00:02:58] Speaker 04: But isn't there enough in the complaint? [00:03:01] Speaker 04: Yes, Your Honor. [00:03:02] Speaker 04: Because if all the complaint says, which is what DC says it says, that they denied permission for a live-in aid, then under the statute, that means she's not entitled to a two-bedder apartment, right? [00:03:15] Speaker 01: That's correct, Your Honor, on these records. [00:03:17] Speaker 04: In other words, are you arguing the TRO because you doubt that the complaint is sufficient? [00:03:22] Speaker 01: No, Your Honor. [00:03:23] Speaker 01: It's simply because the TRO motion has such great quotes that I haven't even been able to get to. [00:03:28] Speaker 01: And if I can say them, no, I don't. [00:03:30] Speaker 03: But you understand our concern. [00:03:32] Speaker 03: Absolutely, Your Honor. [00:03:33] Speaker 03: All right. [00:03:34] Speaker 03: The district court has a complaint before it. [00:03:36] Speaker 03: Yes. [00:03:37] Speaker 03: And many other motions may have been filed. [00:03:40] Speaker 03: None on the same day. [00:03:41] Speaker 03: And so it doesn't matter. [00:03:43] Speaker 03: The district court is busy. [00:03:45] Speaker 03: Hundreds of motions are filed every day. [00:03:47] Speaker 03: Looking at the complaint, there's a motion before him to dismiss. [00:03:57] Speaker 03: And you've had three judges ask you now. [00:04:02] Speaker 03: And I think you have acknowledged the complaint is sufficient. [00:04:06] Speaker 01: Absolutely, Your Honor. [00:04:07] Speaker 01: We absolutely believe that the complaint alone is sufficient. [00:04:10] Speaker 03: Based on paragraphs 12 and 13. [00:04:12] Speaker 01: Especially 12 through 14. [00:04:13] Speaker 01: Yes, Your Honor. [00:04:14] Speaker 01: 12 through 14. [00:04:19] Speaker 01: The TRO motion, as I said, only says in more specific detail that they were taking back the two-unit voucher and forcing her into a one-unit voucher. [00:04:29] Speaker 01: forcing her to find a new apartment. [00:04:31] Speaker 01: But as we discussed, the complaint already says, refused all reasonable accommodation requests, and the district court understood that to be both the living aid and the housing voucher requests. [00:04:40] Speaker 01: That's sufficient at that point for the financial injuries that she alleged that support standing here. [00:04:45] Speaker 01: So the quote out of pocket losses, quote attorney fees, all of that appears in the complaint, and that's sufficient, Your Honors. [00:04:52] Speaker 01: The district court here also erred in relying on these post-case commencement documents for standing in mootness. [00:04:58] Speaker 01: That was wrong under Neil B. Kelly because the court only told these pro se plaintiffs that it would rule on the dismissal motion by considering their complaint and motion opposition, not that it would consider or that they should submit other evidence. [00:05:09] Speaker 01: Anyway, DCHA did not meet its, quote, heavy burden of proof for mootness by purported involuntary cessation. [00:05:17] Speaker 01: No later document absent the settlement would moot the damages claims in this case. [00:05:22] Speaker 01: And the documents, in fact, show the injuries are ongoing. [00:05:25] Speaker 01: I'd be happy to answer any questions directed to any of the specific documents. [00:05:29] Speaker 04: The district argues that, I'll ask the district about this when they're up here, but they say, [00:05:34] Speaker 04: I say the later letter, the September letter, that she's been allowed to keep the two bedroom apartment through, quote, administrative grace, right? [00:05:46] Speaker 01: That's not how we would say that the September letter should be read in light of the complaint allegation. [00:05:51] Speaker 04: Yeah, yeah, I totally understand that's not your view, but they say, they say, look, there's no problem here because we've let her stay there, correct? [00:05:59] Speaker 01: That's as I understand the argument as well. [00:06:02] Speaker 04: Well, if she's not disabled, can they legally allow her to stay there? [00:06:15] Speaker 04: Or are HUD regulations? [00:06:18] Speaker 04: They can't, right? [00:06:19] Speaker 01: So Lena, as the living aid, absolutely the only basis is that she's granted firm approval as a living aid, and that was firmly denied in the September letter. [00:06:28] Speaker 01: Angeline, as the tenant, you know, there are some other grounds listed, but those don't apply on this record. [00:06:34] Speaker 04: But not to have a two-bedroom apartment. [00:06:36] Speaker 04: I'm just asking the question about talking about moodness. [00:06:38] Speaker 04: In other words, they say it's mood because [00:06:42] Speaker 04: because – well, let me ask you, there's a phrase in your brief that I want to ask you about, okay? [00:06:48] Speaker 04: You say – at page 41 of your brief, you say that under federal regulations, [00:07:03] Speaker 04: A tenant is not entitled to have an unapproved live-in aid reside in the unit. [00:07:11] Speaker 04: So what I hear you saying there is that the district says this is moot because we've allowed her to live there. [00:07:20] Speaker 04: And I assume what you mean by this is, well, that's really nice. [00:07:23] Speaker 04: But legally, you can't even do that, right? [00:07:25] Speaker 01: Correct, Your Honor. [00:07:27] Speaker 01: On this record, yes. [00:07:28] Speaker 04: Yeah, right. [00:07:28] Speaker 04: OK. [00:07:30] Speaker 04: I just have one more question about your motion to seal our briefs here, you know, the appellate briefs and the appendix. [00:07:39] Speaker 04: I wasn't sure why we – I understand your argument about the record and the form that has information about her disability, but in terms of our briefs, aren't all the – isn't anything that's detailed about plaintiff's disability redacted already? [00:07:58] Speaker 04: Yes, so why do we need to seal the briefs? [00:08:01] Speaker 01: To clarify, the redaction was only ordered as part of an order that deferred the actual ruling, ultimately, on the appellate sealing motion. [00:08:10] Speaker 04: So we keep the redaction in place, you're satisfied? [00:08:12] Speaker 01: That is what we've asked for in the reply on that motion, yes. [00:08:15] Speaker 04: OK, fine. [00:08:15] Speaker 04: Great. [00:08:16] Speaker 04: OK, that's all I had. [00:08:17] Speaker 04: Thank you. [00:08:18] Speaker 01: I'd be happy to. [00:08:19] Speaker 03: So I just want to go back to the point Judge Tatel was exploring with you. [00:08:24] Speaker 03: Sure. [00:08:28] Speaker 03: And I'll ask counsel for the agency, because I'm not sure I understand counsel's status here. [00:08:36] Speaker 03: I understood them to say that under the D.C. [00:08:42] Speaker 03: program, essentially, since the Montgomery decision, Montgomery County decision, is portable, D.C.' [00:08:54] Speaker 03: 's willing to recognize it. [00:08:56] Speaker 03: And in fact, [00:08:58] Speaker 03: According to what's alleged in the complaint, your client has received everything that she has sought. [00:09:09] Speaker 03: And so you argue strenuously against the agency's interpretation. [00:09:17] Speaker 03: And Judge Taylor was exploring with you your argument on page 41, and I was concerned about that as well. [00:09:27] Speaker 03: What hasn't she obtained? [00:09:31] Speaker 03: And is it in the record? [00:09:37] Speaker 01: Yes, Your Honor. [00:09:38] Speaker 01: So there are a number of things she hasn't obtained. [00:09:41] Speaker 01: For one, this court can take judicial notice of all of the regulations that have legal consequences that follow that cause her the injuries. [00:09:50] Speaker 01: Denying the live-in-aid status, that live-in-aid approval, means that there's no right for Lena to be in the apartment. [00:09:57] Speaker 03: Even if the agency says she has that right? [00:10:01] Speaker 03: So in other words, the agency interpretation here [00:10:06] Speaker 03: is saying that your client has asked for A, B, and C, we agree she's entitled to it. [00:10:15] Speaker 03: End of discussion. [00:10:16] Speaker 03: Why isn't the district [00:10:18] Speaker 03: bound by that concession. [00:10:21] Speaker 01: So we understand the district to be disputing about the live-in-aid status, but what we've pointed out is that the regulations require that approval, and that approval was firmly denied both in the July letter, also in the September letter. [00:10:36] Speaker 03: And so the district says, I just need to understand your position, because I know you were arguing against your client. [00:10:42] Speaker 03: The district says, or this agency says, essentially forget those letters. [00:10:49] Speaker 03: We're happy to let her sister live with her and act as her aid in a two-bedroom apartment that we've already identified and approved. [00:11:01] Speaker 01: So if it's not approval, it doesn't meet 24 CFR? [00:11:04] Speaker 01: No. [00:11:05] Speaker 03: I'm saying the District of Columbia is interpreting its authority to allow this to happen. [00:11:15] Speaker 03: And so far as I know, [00:11:19] Speaker 03: You've just cited the regulation. [00:11:21] Speaker 03: And the district said, this is our interpretation of the regulation. [00:11:24] Speaker 03: Now, maybe they're wrong. [00:11:25] Speaker 03: Maybe they're right. [00:11:26] Speaker 03: But that's what you want, isn't it? [00:11:29] Speaker 01: Two points, Your Honor. [00:11:30] Speaker 01: First, it's a federal regulation, not one that the agency, which isn't even the DC government, has any authority to interpret. [00:11:36] Speaker 03: Have you cited anything that bars the district from doing this beyond this regulation is what I'm guessing. [00:11:43] Speaker 01: So we didn't understand the district to be doing exactly what you described. [00:11:47] Speaker 01: We understood them to be just disputing whether approval is what's required by that regulation, which is a question of federal interpretation for this court. [00:11:57] Speaker 03: In other words, I could understand the argument if, in fact, there's some programs she's not receiving. [00:12:04] Speaker 03: There's some services she's not receiving. [00:12:07] Speaker 03: But the way I read appellee is she's receiving everything she asked for and ignore for the moment [00:12:14] Speaker 03: the TRO, and we're just talking about the complaint. [00:12:17] Speaker 01: Sure. [00:12:17] Speaker 01: So two points, Your Honor. [00:12:19] Speaker 01: The living aid approval, even to qualify under the DC regulations, would need to be in a particular form. [00:12:24] Speaker 01: So what's happened thus far doesn't meet that procedural form. [00:12:27] Speaker 01: And you can look to DC municipal regulations, Title 14. [00:12:30] Speaker 01: What is the form? [00:12:32] Speaker 01: The form, it needs to not only be in writing, but also in any form that the plaintiff requests. [00:12:36] Speaker 01: All right. [00:12:37] Speaker 01: That hasn't happened yet. [00:12:38] Speaker 01: That hasn't happened yet. [00:12:39] Speaker 03: Well, you've got this letter. [00:12:41] Speaker 03: saying it's okay for this sister to live there in this two-bedroom apartment. [00:12:46] Speaker 01: Right, but in addition, Your Honor, there's also the problem of the two-bedroom housing voucher. [00:12:51] Speaker 01: And when you deny approval for the living aid, the two-bedroom housing voucher under the regulations necessarily falls as well. [00:12:57] Speaker 03: No. [00:12:58] Speaker 03: Counsel, we get cases all the time where a statute says something, a regulation says something, and the agency interprets it [00:13:09] Speaker 03: in a manner. [00:13:10] Speaker 03: And you're saying that the District of Columbia could not lawfully interpret this regulation in the manner it has? [00:13:18] Speaker 03: And I thought that was the thrust of Judge Tatel's question to you. [00:13:21] Speaker 01: It has no authority to get deference for that interpretation. [00:13:25] Speaker 01: It's just like any other party litigant in this Court. [00:13:27] Speaker 01: The reason is because those are not actually its regulations. [00:13:31] Speaker 01: It's not the agency that issues them. [00:13:32] Speaker 01: They're [00:13:32] Speaker 01: federal regulations. [00:13:33] Speaker 03: But you just read me their own regulations. [00:13:35] Speaker 01: That's D.C.' [00:13:36] Speaker 01: 's regulation, the D.C. [00:13:37] Speaker 01: government. [00:13:37] Speaker 01: This is an independent authority of the D.C. [00:13:39] Speaker 01: government, you know, suits against it, don't even lie against the D.C. [00:13:42] Speaker 01: government for damages. [00:13:44] Speaker 01: This is not the agency that's tasked with anything that should resemble getting deference in this case. [00:13:49] Speaker 03: So who pays the judgment against the agency? [00:13:52] Speaker 01: My understanding is that it lies against D.C.H.A. [00:13:54] Speaker 01: At least D.C. [00:13:54] Speaker 01: Code says that damages liability is not against the D.C. [00:13:58] Speaker 01: government. [00:13:58] Speaker 03: D.C. [00:13:59] Speaker 03: taxpayer? [00:13:59] Speaker 01: I do not know, Your Honor, but all I know is what I can tell you from seeing that legislation. [00:14:07] Speaker 01: But I'd like to also point out that, as we said, the two-bedroom housing voucher falls as a matter of federal regulations, which DC or any of DC's agencies clearly have no authority to interpret. [00:14:18] Speaker 03: Well, I didn't see all that in your brief. [00:14:20] Speaker 03: That's all I'm getting at. [00:14:21] Speaker 03: I don't want to extend this too far, but the point is, [00:14:24] Speaker 03: Who knows? [00:14:25] Speaker 03: Somewhere buried in those federal regulations is some authorization for the local housing authority to do certain things, and maybe DC's acting under that. [00:14:34] Speaker 03: I don't know. [00:14:35] Speaker 03: Why don't you save the rest of your time for rebuttal? [00:14:38] Speaker 01: I will, Your Honor. [00:14:39] Speaker 01: I'd just like to say, though, that they haven't raised it yet. [00:14:43] Speaker 01: Haven't raised what? [00:14:44] Speaker 01: They haven't raised any regulations that counteract this, and that's something that they would have potentially forfeited by this point. [00:14:52] Speaker 03: Oh, you have some questions? [00:14:54] Speaker 01: I'd be happy to answer any further. [00:14:56] Speaker 01: All right. [00:14:56] Speaker 03: Thank you. [00:15:04] Speaker 06: Good morning. [00:15:05] Speaker 03: Good morning. [00:15:06] Speaker 06: I would like to support Alex Centella for the District of Columbia Housing Authority. [00:15:09] Speaker 03: Do you know offhand the answer to my question who pays damages against the D.C. [00:15:14] Speaker 03: Housing Authority? [00:15:16] Speaker 06: Yes, Your Honor. [00:15:16] Speaker 06: That's what I was going to start with. [00:15:17] Speaker 03: Thank you. [00:15:18] Speaker 06: The D.C. [00:15:18] Speaker 06: Housing Authority is an independent authority of the District of Columbia Government. [00:15:22] Speaker 06: It's funded primarily by HUD. [00:15:25] Speaker 06: Also, certain programs are funded by the District of Columbia government. [00:15:29] Speaker 06: It would be the District of Columbia Housing Authority. [00:15:31] Speaker 03: That's right. [00:15:31] Speaker 03: It's a DC taxpayer. [00:15:32] Speaker 03: All right. [00:15:33] Speaker 03: So why don't you get to the other questions that the court had? [00:15:37] Speaker 03: Why isn't the complaint sufficient? [00:15:40] Speaker 06: The complaint is deficient, Your Honor, because it doesn't allege an injury. [00:15:43] Speaker 06: If we look at what's in the complaint, [00:15:49] Speaker 06: There's no injury alleged with respect to the Hardaway's ability to obtain the housing that they need. [00:15:54] Speaker 04: She alleges, well, let's get the doctrine straight, first of all, because I don't think the district court completely understood it. [00:16:03] Speaker 04: Do you agree that the question of standing is determined at the time of the filing of the complaint? [00:16:10] Speaker 04: Right? [00:16:12] Speaker 06: Well, Your Honor, yes, I believe that is the case. [00:16:16] Speaker 04: And at the time the complaint was filed here, she had just received the July 9 letter, correct? [00:16:23] Speaker 06: Yes, Your Honor, that's correct. [00:16:25] Speaker 04: And the July 9 letter, I mean, if you look at the TRO, it's very clear what the July 9 letter says. [00:16:36] Speaker 04: The July 9 letter says, [00:16:39] Speaker 04: it revokes the live-in aid permission, correct? [00:16:45] Speaker 06: Well, Your Honor, it doesn't actually say that. [00:16:48] Speaker 06: It doesn't? [00:16:48] Speaker 06: According, and I'm looking at page, the joint appendix, this is page 20, what it says is that there's a denial of a participant request for a reasonable accommodation. [00:16:58] Speaker 04: Well, isn't that what the live-in aid is? [00:17:00] Speaker 04: The live-in aid and the two- Remember, this is a complaint, post-a complaint, we interpret it in the light most favorable to the plaintiff. [00:17:07] Speaker 06: Yes, Your Honor, of course. [00:17:08] Speaker 04: OK, so she's saying her permission for a live-in aid was denied. [00:17:11] Speaker 04: And under federal law, that means she's untitled to a two-bedroom voucher. [00:17:18] Speaker 06: Well, at that point, Your Honor, yes. [00:17:19] Speaker 04: That's just the end of the standing issue, isn't it? [00:17:22] Speaker 04: I'm sorry, Your Honor? [00:17:23] Speaker 04: Why is the standing issue any more complicated than that? [00:17:27] Speaker 06: Well, as a result of the motion that DCHJ filed for mootness on a 12-B1 motion. [00:17:32] Speaker 04: But now you're relying on the September letter, correct? [00:17:36] Speaker 06: Yes, Ron. [00:17:37] Speaker 04: That has nothing to do with the situation that existed at the time the complaint was filed. [00:17:43] Speaker 04: This is why I said, it looks to me, and maybe I'm wrong about this, that the district court and now you have gotten standing and mootness mixed up. [00:17:53] Speaker 04: The question is, did the district court, did the plaintiff have standing? [00:17:58] Speaker 04: And our case law and the Supreme Court case law says that's determined at the time the complaint is filed. [00:18:04] Speaker 04: That's question number one. [00:18:06] Speaker 04: then the second constitutional jurisdiction question is mootness. [00:18:11] Speaker 04: And that turns on whether or not something after the filing of the complaint rendered the case moot. [00:18:16] Speaker 04: Is that wrong? [00:18:18] Speaker 06: No, Your Honor, that's correct. [00:18:19] Speaker 04: OK, so the September letter has nothing to do. [00:18:22] Speaker 04: Actually, the September letter maybe does have something to do with your interpretation of the complaint, because it reaffirms the denial of her two bedroom voucher, right? [00:18:33] Speaker 04: That's what it says. [00:18:35] Speaker 06: Yes, Your Honor. [00:18:36] Speaker 04: So that means the allegation and the complaint that in effect it denied a two-bedroom voucher must be totally accurate. [00:18:46] Speaker 04: So the question then is, is there anything in the September letter, right, that renders the case moot? [00:18:52] Speaker 04: Because that can't relate to standing. [00:18:54] Speaker 04: Do you agree with that? [00:18:55] Speaker 06: Well, mootness is a standing question, Your Honor. [00:18:57] Speaker 04: Mootness is not a standing question. [00:18:59] Speaker 04: Mootness is a jurisdictional question. [00:19:02] Speaker 06: Yes, Your Honor, it's a jurisdictional question. [00:19:03] Speaker 04: OK, so but do you agree with me that the September letter relates only to mootness and not to standing? [00:19:11] Speaker 06: As of the time the complaint was filed, yes, Your Honor, I agree with that. [00:19:15] Speaker 04: Well, OK, so now, all right, and so your only argument then with respect to standing is that you don't believe we can interpret the complaint to sufficiently allege the denial of this benefit, right? [00:19:29] Speaker 04: That's your argument. [00:19:31] Speaker 06: The argument, yes, Your Honor, the argument. [00:19:32] Speaker 04: OK, and if we don't agree with that, then she has standing, correct? [00:19:37] Speaker 06: That's correct. [00:19:37] Speaker 06: If the court determined. [00:19:39] Speaker 04: What? [00:19:40] Speaker 06: I'm sorry, Your Honor, please. [00:19:42] Speaker 06: I was going to say that if the court determined that the case was not, in fact, moot, then yes. [00:19:47] Speaker 04: Well, no, now I want to take you on the mootness, OK? [00:19:49] Speaker 06: OK. [00:19:49] Speaker 04: OK, so what is it about the September letter that renders his moot? [00:19:56] Speaker 06: Well, the September letter says that although the plaintiffs have not provided the information necessary to support Angeline's request for a reasonable accommodation, that they would nevertheless continue paying the two-bedroom housing assistance payments, as that determination had already been made by the Housing Choice Inventory Program. [00:20:14] Speaker 04: But DC is not legally obligated to allow [00:20:19] Speaker 04: her live-in-aid to be there, correct? [00:20:22] Speaker 04: It's done by grace, the administrative grace. [00:20:25] Speaker 04: Is that what you call it? [00:20:26] Speaker 06: Your Honor, the ADA 504 office at D.C.H.A. [00:20:29] Speaker 06: has an appeals process, and they're able to revisit the decisions. [00:20:32] Speaker 04: Wait, wait, wait. [00:20:33] Speaker 04: Yeah, but I was asking you a different question. [00:20:36] Speaker 04: My question was, could D.C. [00:20:40] Speaker 04: Housing Authority tomorrow change its mind with respect to allowing the live-in-aid to be in the apartment? [00:20:50] Speaker 06: I'm not sure what the regulatory basis for that would be. [00:20:53] Speaker 04: Oh, but DC has revoked her leave in aid permission, but said, we'll nevertheless allow her to stay there. [00:21:02] Speaker 06: There's the word revoked does not actually appear anywhere in DCHA's communications of plaintiffs. [00:21:09] Speaker 06: It doesn't appear in the complaint. [00:21:11] Speaker 06: There's no allegation that at any time the housing assistance payments for a two-bedroom voucher were terminated or reduced. [00:21:18] Speaker 04: No, that's not my question. [00:21:19] Speaker 04: My question is the [00:21:29] Speaker 04: Okay, the September 26 letter says the D.C. [00:21:43] Speaker 04: was again denying a request for a live-in aid because there was no documentation. [00:21:49] Speaker 06: That's correct. [00:21:50] Speaker 04: Okay, so they've denied [00:21:52] Speaker 04: the request for living aid. [00:21:54] Speaker 04: But they say you can stay there anyway, correct? [00:21:58] Speaker 04: That's correct. [00:21:58] Speaker 04: Okay, but the point is that D.C. [00:22:02] Speaker 04: is not legally obligated to continue that. [00:22:06] Speaker 04: It could change it tomorrow because it's said there's no documentation to support it. [00:22:12] Speaker 04: In fact, [00:22:14] Speaker 04: To get back to the question that Judge Rogers and I were asking, I don't see – I mean, I think the argument for mootness – for the absence of mootness is even stronger because, as I read these regulations, what the D.C. [00:22:29] Speaker 04: government is doing is actually illegal. [00:22:32] Speaker 04: In other words, having revoked her live-in-aid certification, whatever you call it, the regulations seem to say – will not seem here. [00:22:43] Speaker 04: Let me read it to you. [00:22:45] Speaker 04: An HCVP tenant is not entitled to have an unapproved live-in aid reside in the unit. [00:22:57] Speaker 04: Oh, I'm sorry, that was a quote from the brief. [00:22:58] Speaker 04: Let me try this. [00:23:00] Speaker 04: Here, I'm sorry. [00:23:02] Speaker 04: A lesson approved to live in aid resides with the family. [00:23:05] Speaker 04: The family unit size for any family consisting of a single person must be either 0 or 1. [00:23:12] Speaker 04: I don't know who writes these regulations. [00:23:14] Speaker 04: But it's awfully clear, must be either 0 or 1. [00:23:19] Speaker 04: That's what the regulation says. [00:23:21] Speaker 06: Yes, Your Honor, that's correct. [00:23:22] Speaker 04: So in other words, the reason this case is not moot, and this is a question, isn't the reason this case is not moot is that DC is under no legal, not only is DC under no legal obligation to continue allowing the aid [00:23:38] Speaker 04: to live there and to permit the plaintiff to have a two-bedroom apartment. [00:23:44] Speaker 04: But it seems to me that, actually, if DC lawyers took a look at this, they'd say, wait a minute, this administrative grace is illegal. [00:23:51] Speaker 04: We can't do it. [00:23:52] Speaker 04: She's either got to be properly certified to need an aid, or the aid can't be there, and the plaintiff has to be in a one-bedroom. [00:24:00] Speaker 04: So a case is not moot under those circumstances. [00:24:03] Speaker 06: Well, I disagree, Your Honor. [00:24:04] Speaker 06: Tell me why. [00:24:05] Speaker 06: Because I believe the September 26 letter should be read as an approval of the live-in aid. [00:24:11] Speaker 06: In that letter, they say, the ADA 504 Office at DCHA says, although you've not provided the information we've denied to request, we will nevertheless not overturn the prior decision to grant you a two-bedroom voucher that has already been made. [00:24:26] Speaker 04: The letter goes on and say, [00:24:31] Speaker 04: So you think that this letter is a legally binding? [00:24:37] Speaker 04: They say, I don't see how you get there. [00:24:40] Speaker 04: They say, it says we're quote, it says we're denying it because there's no records. [00:24:54] Speaker 04: We contacted Dr. Lother. [00:24:59] Speaker 04: And the doctor stated that she's able to perform basic steps of normal living. [00:25:11] Speaker 03: So, yes. [00:25:12] Speaker 03: See, what we don't know in this case, all right, can I just, because I think we've got to be clear here, the District of Columbia has all kinds of funds, all right, that enable people who can't necessarily afford to pay the full amount [00:25:27] Speaker 03: to live in various places, discretionary funds, et cetera. [00:25:32] Speaker 03: We don't know if that's what's happening here or not based on this letter, all right? [00:25:38] Speaker 03: And just to follow up quickly on Judge Tatel's point, you know, a new administration comes in and what happens? [00:25:47] Speaker 03: Is she out on the street or does she have to move to a one-bedroom apartment? [00:25:52] Speaker 03: And you're suggesting, and that's why I was interested in your status here too, [00:25:58] Speaker 03: can you represent on behalf of the District of Columbia so they would be legally bound to continue for her foreseeable lifetime to allow her to have a decent, safe, and sanitary two-bedroom apartment in which her sister may live, or if her sister dies, someone else may live as a live-in aide. [00:26:22] Speaker 03: I mean, that's what's unclear here. [00:26:24] Speaker 03: And you're sort of arguing it's moot because [00:26:27] Speaker 03: Nothing will change from her circumstances. [00:26:31] Speaker 06: There are two parts to the answer to that question, Your Honor. [00:26:33] Speaker 06: The first is, no, I cannot make that representation. [00:26:36] Speaker 06: I'm not in the District of Columbia government because I don't represent them. [00:26:40] Speaker 06: The second answer to that question is that the housing... Can you make it on behalf of the Housing Authority? [00:26:45] Speaker 06: i can be housing for the housing authority program that's an issue in this case is a federal program the district of columbia government has no say over uh... over who participates uh... or who is a beneficiary of that program so you don't have to prepare to tell us i don't understand that the hcvp is funded totally by federal dollars but you just told me the dc government is going to dc taxpayer is going to pay the judgment no no you just told me that [00:27:15] Speaker 06: No, I said DCHA. [00:27:16] Speaker 06: I'm sorry, Your Honor. [00:27:16] Speaker 06: I said DCHA, the district committee. [00:27:18] Speaker 06: A housing authority would pay it. [00:27:20] Speaker 03: Hey, they don't have a judgment fund. [00:27:23] Speaker 06: They do. [00:27:24] Speaker 06: They do have funds, Your Honor. [00:27:25] Speaker 06: They do have funds. [00:27:26] Speaker 06: They have funds that come from the federal government to administer the various federal programs. [00:27:31] Speaker 06: And they have funds that come from the District of Columbia to administer the District of Columbia sponsored programs. [00:27:36] Speaker 06: They do both. [00:27:37] Speaker 03: I understand administrative funds. [00:27:39] Speaker 03: I was talking about judgment funds, two different animals in any event. [00:27:43] Speaker 03: You say you cannot make this representation on behalf of the district government. [00:27:49] Speaker 03: So if a judgment is entered against the DC Housing Authority, we have no idea what the district government's position would be as to paying that judgment. [00:27:59] Speaker 06: Well, the District of Columbia has no obligation to pay judgments against the District of Columbia Housing Authority. [00:28:09] Speaker 02: I'd like to see some authority for that one. [00:28:13] Speaker 04: Can I take you back to your first answer to Judge Rogers' question? [00:28:16] Speaker 04: Sure. [00:28:16] Speaker 04: Which is, so you're representing to us here that this September 26 letter, that that is in fact not a revocation [00:28:40] Speaker 04: of her living aid permission or of her two-bedroom apartment voucher? [00:28:49] Speaker 06: I will concede, Your Honor, that the letter is perhaps inarticulately written. [00:28:54] Speaker 06: While it certainly says that the request for reasonable accommodation is denied, the ultimate conclusion of the letter is that the Housing Choice Voucher Program, that's a federal program, a federally funded program, [00:29:07] Speaker 06: will continue will continue to provide. [00:29:09] Speaker 05: You should look to look to what we do and not what we say. [00:29:15] Speaker 06: Well, Your Honor, it does say in the letter what's going to happen. [00:29:19] Speaker 06: And that's what I would ask the Court to look at, is the final conclusion, the final conclusion of what the housing choice action is. [00:29:27] Speaker 05: Given the way the letter is written, why isn't the best way to read this, that this is an act of administrative grace? [00:29:35] Speaker 05: And if that's the case, that's... [00:29:38] Speaker 05: That's not what they're entitled to. [00:29:41] Speaker 05: That's why the injury, the theory of the injury is ongoing because they're not assured that they'll be able to have, that she's not assured that she'll be able to have this happens. [00:29:52] Speaker 05: Why isn't that the best way to read this troublesome letter? [00:29:56] Speaker 06: Because that's not the ultimate conclusion that the letter comes to. [00:30:01] Speaker 03: So what if HUD does an audit and decides that these funds are being improperly [00:30:08] Speaker 03: What happens then to these plaintiffs? [00:30:16] Speaker 06: I can't answer that question, Your Honor. [00:30:17] Speaker 03: I know, because you can't speak on behalf of the district government and you cannot speak on behalf of the federal government either. [00:30:24] Speaker 06: Right. [00:30:25] Speaker 03: All you can do, as I understand it, is interpret on behalf of this agency what they meant in their letter. [00:30:35] Speaker 03: But you're not able to assure us that neither the federal government nor the district government will dispute this interpretation. [00:30:48] Speaker 06: Well, the district government would have no basis to dispute it, Your Honor, but I cannot make that representation on behalf of HUD. [00:30:53] Speaker 03: When the judgment comes in, all right, are they going to pay it, or are they going to say, look, you've been audited by HUD, and you have no authority to do this? [00:31:01] Speaker 03: I think this is very complicated, and we're talking about [00:31:05] Speaker 03: a complaint where allegations are made and a dismissal with prejudice. [00:31:13] Speaker 03: And if you could make all these commitments, that would be one thing, but how can you? [00:31:20] Speaker 06: Well, Your Honor, I would simply point out that the letter does endeavor to make that commitment, and that's why we believe it. [00:31:28] Speaker 04: Would you agree with us that, and I appreciate very much your effort to try to interpret this letter with us, but would you agree with us that if we believe we are limited by the language of the letter, that, and if we think that the letter can only be interpreted [00:31:50] Speaker 04: as a revocation of her permission to have a live-in aid, but a decision to allow her to keep it anyway, that if we read it that way, the case is not moot, because it could be changed any time, correct? [00:32:10] Speaker 06: Even in that circumstance, Your Honor, I'm not sure what – I think the injury in that case would be not concrete in the sense that it's speculated. [00:32:18] Speaker 04: No, no, wait, wait. [00:32:18] Speaker 04: We've resolved standing. [00:32:20] Speaker 04: This is a mootness question. [00:32:23] Speaker 04: What makes the case moot? [00:32:24] Speaker 04: In other words, if she's living there via a pursuant to the D.C. [00:32:29] Speaker 04: government's administrative grace. [00:32:32] Speaker 04: You know, they're being nice. [00:32:33] Speaker 04: They're letting her stay there. [00:32:35] Speaker 04: Isn't she still being injured because her position is that she's legally entitled to a two-bedroom voucher, which she can't have until the district reinstates her pertinent to have a living aid, right? [00:32:53] Speaker 06: The only way I can answer that question, Your Honor, is to say I believe that's what the letter does. [00:32:58] Speaker 04: Okay. [00:32:59] Speaker 04: One last question. [00:33:00] Speaker 04: Can you give us any reason why we don't have to set aside the district court's refusal to seal the administrative record? [00:33:12] Speaker 06: I'm sorry, with respect to the district court's decision? [00:33:20] Speaker 06: I don't believe there was anything prejudicial about it in this case. [00:33:25] Speaker 06: There was no medical document that was submitted. [00:33:28] Speaker 06: I mean, certainly if there was. [00:33:31] Speaker 04: Well, that's what he found. [00:33:35] Speaker 04: But what about there's a form in the record called Health Providers Verification of Need for Reasonable Accommodation. [00:33:51] Speaker 04: 1718. [00:33:52] Speaker 04: And it contains a detailed description of the plaintiff's doctor of her disability and explains a need for, why isn't that a medical record? [00:34:05] Speaker 06: I'm sorry, Your Honor. [00:34:07] Speaker 06: We're referring to the, we're referring to the, this is the medical form that was attached to the complaint. [00:34:13] Speaker 04: I found it in the record. [00:34:15] Speaker 06: Okay. [00:34:19] Speaker 04: A1718. [00:34:21] Speaker 06: OK. [00:34:23] Speaker 06: Well, Your Honor, my understanding is that there were no medical records. [00:34:26] Speaker 04: Well, let's assume that that's in the record and it's there. [00:34:29] Speaker 06: Well, in that circumstance, then I think that individual record would need to be redacted. [00:34:34] Speaker 04: Yeah. [00:34:34] Speaker 04: There's no prejudice to the district for redacting. [00:34:37] Speaker 04: No, there's no prejudice to the district for redacting. [00:34:39] Speaker 04: That's what I thought. [00:34:40] Speaker 04: That's what I thought. [00:34:41] Speaker 04: OK, great. [00:34:42] Speaker 04: Thank you. [00:34:43] Speaker 06: There's nothing further. [00:34:44] Speaker 03: Thank you. [00:34:45] Speaker 03: Thank you. [00:34:47] Speaker 03: Council for Appellant. [00:34:57] Speaker 01: I have three brief points, Your Honor. [00:34:59] Speaker 01: The first is, the question is whether she got all that she asked. [00:35:03] Speaker 01: She certainly didn't. [00:35:04] Speaker 01: We could talk about that. [00:35:05] Speaker 01: But even if she had, if there's any period during which she lacked it, which is what the question is for standing, and I think it's unequivocal now that that was true, she had damages claims that prevent this case from becoming moot. [00:35:16] Speaker 01: So at bottom, that has to be what allows this case to proceed and to avoid dismissal. [00:35:21] Speaker 01: But even beyond that, even if, as Judge Rogers had sort of described, DCHA was saying something more about the HOC voucher carrying over, in our brief at pages 34 to 36 and note 2, we explain how that would still be injury because that voucher would pay less than the DC voucher that she sought that was issued on June 6. [00:35:41] Speaker 01: And that was, quote, taken back, as the TRO motion says, or in the words of the complaint, refused all reasonable accommodation requests, which included, according to the district court itself, [00:35:51] Speaker 01: request for both the living aid and the two-bedroom housing voucher. [00:35:56] Speaker 01: I think another point that needs to be recognized on the September 26 letter is that this court really can't understand it the way that DCHA is alleging. [00:36:03] Speaker 01: The first thing is that on its face it says your request for a living aid has been denied. [00:36:07] Speaker 01: The second thing is that it is responding to a request of July 11, 2013, which is actually a subsequent date to the request described in the complaint. [00:36:16] Speaker 01: So it's actually a new denial of the live-in aid request. [00:36:20] Speaker 01: There can't be any other way to understand that language to do anything other than deny live-in aid approval. [00:36:25] Speaker 01: More importantly, even if they said that HCVP would continue to give the two-bedroom voucher, that wouldn't change the fact that Lena Hardaway as the live-in aid would not be able to live in whatever size apartment might be granted. [00:36:39] Speaker 01: So it's entirely beside the point what the size of the voucher would be for purposes of the live-in aid harms. [00:36:45] Speaker 01: But in terms of the two-bedroom housing vouchers, we've described the regulations mean that the two-bedroom housing voucher cannot follow once the live-in aid approval has been denied. [00:36:54] Speaker 01: Also, the standards here being a motion to dismiss, or even if it were summary judgment, the letter would have to be read in favor of the plaintiffs. [00:37:00] Speaker 01: Thank you. [00:37:01] Speaker 01: And they weren't informed they could put in evidence. [00:37:03] Speaker 03: You've been appointed by the court to represent the appellants, and we thank you for your service. [00:37:07] Speaker 03: Thank you so much, Your Honor. [00:37:11] Speaker 03: Take the case under advisement.