## Facts

- Dennis Brockway built the South Pond Apartments in Boise, Idaho in 1993; the last unit was sold in 1994.
- In 1998, an administrative complaint alleged accessibility violations at South Pond; in 2001 Brockway entered a conciliation agreement creating a fund for accessibility modifications.
- Noll Garcia, a wheelchair user, rented and lived at South Pond from 2001 to 2003 and alleged barriers such as missing curb cuts, lack of a ramp to his front door, and doorways too narrow for wheelchair access.
- Garcia sued the builder (Brockway), the architect (Robert Stewart), and the then-current owners under the Fair Housing Act (FHA) design-and-construction accessibility requirements; he later settled with the owners.
- In a consolidated companion case, Tamara Thompson, acting as a tester, visited a Nevada apartment complex in 2004, observed alleged FHA design-and-construction violations, and sued the responsible builder-related defendant within a year of her visit.
- The district courts dismissed both suits as time-barred under the FHA’s two-year statute of limitations.

## Issues

1. When does the FHA’s two-year limitations period for private design-and-construction accessibility claims begin to run: at completion of construction (last certificate of occupancy) or when a plaintiff encounters or discovers the noncompliance?
2. Does the continued existence or rental of a noncompliant building constitute a continuing violation that restarts the limitations period?
3. Is discovery-based accrual available for FHA design-and-construction claims, and what role (if any) does equitable tolling play?

## Decision

- The en banc Ninth Circuit affirmed the dismissals as untimely.
- The court held that an FHA claim for failure to design and construct accessible multifamily housing must be filed within two years of completion of the construction phase, defined as issuance of the last certificate of occupancy.
- The court rejected accrual based on a plaintiff’s encounter with, or discovery of, the alleged violations.
- The court rejected a continuing-violation theory based solely on the ongoing existence or rental of noncompliant conditions.
- The court noted equitable tolling could be available in appropriate circumstances, but found no basis to toll on the facts presented.

## Legal Principles

- For FHA design-and-construction claims, the “occurrence or termination” of the alleged discriminatory housing practice occurs when the design-and-construction phase ends, measured by the last certificate of occupancy.
- A completed noncompliant structure is treated as the consequence of a past discrete act, not an ongoing discriminatory practice for limitations purposes.
- The FHA limitations period for these claims does not begin when a particular plaintiff learns of, tests for, or experiences the noncompliance.
- Equitable tolling is not categorically barred, but requires a separate showing of qualifying circumstances beyond ordinary delayed discovery.

## Conclusion

The Ninth Circuit fixed accrual for FHA design-and-construction accessibility claims at construction completion (the last certificate of occupancy), foreclosing discovery-based and continuing-violation accrual theories while leaving open equitable tolling in exceptional cases.


Garcia v. Brockway, 526 F.3d 456 (9th Cir. 2008) (en banc)