Special Attention of: Fair Housing and Equal Opportunity Field Office Directors, Headquarters Office Directors for Fair Housing and Equal Opportunity Staff, Office of Investigations
Expires: September 6, 1995
Subject: Administrative closures of cases under the Fair Housing Act
This Notice provides guidance to Fair Housing and Equal Opportunity (FHEO) Field Staff for their use in the processing of complaints for which an investigation cannot be completed. This guidance establishes nationwide standards and procedures to ensure consistency in the handling of such complaints; and instructs on the conditions and factors that must be assessed.
Administrative closures have been a significant problem throughout the Fair Housing Act enforcement system. There have been inconsistencies in the application of criteria for closures, and no comprehensive national approach to them. It is critical that cases not be closed administratively except in unusual circumstances. Administrative closures should be used neither casually nor routinely.
An administrative closure may be utilized, with or without the parties' consent, only when circumstances have revealed that further proceedings would be highly impracticable or incompatible with the complainant's wishes. Whenever possible, intake activities should be conducted which will avoid the need for a later administrative closure.
Administrative closures should be distinguished from a closure on the merits and may not be used instead of making a recommendation or a determination of reasonable or no reasonable cause. If the investigation is virtually complete, and there is insufficient evidence to support a determination of reasonable cause, the case should be closed with a no reasonable cause determination, rather than administratively.
There are only three circumstances where administrative closures should be used:
1. When an investigation cannot be completed (and there is inadequate information to make any determination) because the complainant cannot be located, the complainant has failed completely to cooperate with the investigation or the Department is unable to locate the sole Respondent despite its best efforts, or
2. The complainant has independently decided not to proceed, or has lost the right to proceed, with further actions. The Department should not encourage a complainant to take actions to withdraw a complaint or otherwise to give up a right to have a full investigation of the complaint.
3. Where a trial has commenced, pursuant to the provisions of the Fair Housing Act.
An administrative closure may not be threatened or used because the complainant fails to return an investigator's or conciliator's telephone call, fails or refuses to sign a proposed conciliation agreement, is hospitalized or otherwise temporarily unavailable to assist in the investigation. This Notice also discusses lack of jurisdiction and private settlements.
II. CIRCUMSTANCES FOR ADMINISTRATIVE CLOSURES
A. The Case Cannot Proceed
1. Inability to Locate Complainant:
The nature of housing discrimination is such that complainants are likely to relocate during the course of an investigation. However, a complaint may not be closed administratively because a complainant cannot be located, unless adequate steps are taken to locate that complainant before such a closure is made.
Always during intake a prospective complainant must be asked to provide the name, address and telephone number of a person or persons who will know at all times how to reach the complainant. This information must be documented and retained in the file. During investigation, the investigator should routinely confirm that this information is accurate and update the entries as necessary. Similarly, during intake a prospective complainant should always be advised of the need to keep the Department informed of any change of address or telephone number. The information regarding the complainant's address and telephone number should be updated routinely by the investigator as the investigation proceeds. Any change in the complainant's address should be entered in the case tracking system and recorded in the file. It is not necessary to amend the complaint to reflect changes in addresses and telephone numbers.
The following procedures should be used before closing a complaint because of inability to locate a complainant:
a. If correspondence has been returned after it was sent by regular mail, check the envelope to ascertain whether it identifies a forwarding address; verify that the letter was correctly addressed based on the most recent information; and attempt to reach the complainant by telephone at the last known residential and business numbers, making attempts during regular business hours for a business number and during nonbusiness hours for the residential number. If these efforts are unsuccessful, call and write the back up contact persons listed for the complainant; contact the post office to attempt to ascertain whether forwarding address is on file; attempt to locate a more current telephone number through directory assistance and check any other resources, such as complainant's witnesses who may know the most current information about the complainant. All efforts should be documented, and the documentation retained. If these efforts are unsuccessful, before the case may be closed administratively, a letter must be sent to the last known address by both regular and certified mail, advising the complainant of the Department's intent to close the case unless information regarding a current mailing address and/or telephone number is provided within 10 days. After the 10th day has elapsed without a response, the case may be closed administratively, with notice sent to all the parties, including the complainant at the last known address.
b. If a letter which has been sent by certified mail has been returned unclaimed, the address on the envelope should be verified, and the letter re sent by regular mail, along with a second letter asking the complainant to telephone the investigator upon receipt. If the complainant does not return the call, the procedures described above should be followed
2. Failure to Cooperate:
There are points in the investigation where information from the complainant is critical to the investigation Where the complainant is so uncooperative that the investigation cannot be completed, the case may be closed administratively for failure to cooperate. However, an administrative closure may not be used as a substitute for a determination if there is sufficient evidence for a determination to be made, or if the necessary information can be acquired from other sources.
A case may not be closed administratively for failure to cooperate because the complainant either does not respond to a request for information or fails to return a-telephone call within a given time period. A repeated history of complete failure to return calls or respond to requests for information may serve as the basis for such a closure if there is a documented history of these problems and the complainant has been given written warning that such failures might result in the closure of the case.
All failures to respond to requests for data or information should be documented, by written notes and then by letter, which should be retained in the file. Before a complaint may be closed administratively for failure to cooperate, the complainant must be given written notice hy certified and regular mail that the failure to cooperate will result in administrative closure unless the information is provided within 10 days. A copy of the letter must be sent to any person who has been properly identified as the complainant's representative. (Any person may be identified by a complainant as his or her representative, including attorneys, private fair housing groups, friends or family members. Your office should have or develop a form for the complainant's signature to identify such a representative. The representative should thereafter be provided copies of all critical correspondence which relate to proposed or actual final actions in the case, including administrative closures.) If the information is not provided, the case may be closed administratively by written notice by regular and certified mail to all parties.
If such a letter is returned by the post office, the procedures described for inability to locate the complainant should be followed, and, if there is no response, the case should be closed for inability to locate the complainant.
Supervisors have the discretion to contact a complainant (or his or her representative) to discuss and attempt to resolve a failure to cooperate a situation at any time before the case is closed.
3. Inability to Locate the Sole Respondent:
On rare occasions there may be circumstances where a complaint names as the only respondent an individual or entity that cannot be sufficiently identified to accomplish service of the complaint or conduct an investigation. If the complaint identifies several respondents and only one cannot be adequately identified, the complaint should not be closed administratively. Rather, the investigation should proceed and further efforts made to identify the unidentified or unlocatable respondent during the investigation. If the respondent is ultimately identified and/or located during the investigation, the complaint should be served at that time, using a corrected notification letter.
If a sole respondent cannot be located or identified even after further efforts to discuss with the complainant additional information which could result in identification or location, any other appropriate steps should be undertaken. For example, cris-cross directories or property tax records may identify the owner or prior resident of the property in question and provide enough information to serve the complaint and begin the investigation. In some situations, an on-site visit can locate and identify the respondent. At the discretion of a supervisor, a complaint maybe taken naming a "John/Jane Doe" respondent for purposes of beginning the investigation and serving the complaint, with the complaint to be amended and re-served as soon as the respondent is identified or located. The notification letter sent at that time should explain that the respondent was not notified within 10 days of the complaint's filing because this respondent could not be located or identified, specifying the date on which the location or identity was ascertained.
If all efforts to locate or identify a sole respondent are unsuccessful, a letter should be sent to the complainant, giving him/her ten days to provide information identifying the respondent. In the absence of sufficient further information, the case may be closed administratively with written notice by regular and certified mail to the parties, insofar as they are identifiable.
4. Decisions not to Proceed (Withdrawals Without resolution):
A representative of the Department should not attempt to encourage or persuade a complainant to withdraw a complaint without resolution.
There are a few circumstances in which a complainant may voluntarily decide to withdraw a complaint for personal or other reasons. For example, a complainant may come to believe, based on information provided after the investigation has commenced, that the actions which are the subject of the complaint resulted from a genuine mistake or miscommunication. A complainant may move from the state and decide not to proceed with the matter because to do so would be difficult.
However, in other situations, a respondent or other person may attempt improperly to persuade the complainant to withdraw a complaint. The Department's role in this process is to avoid behavior which could convince a complainant, directly or indirectly to withdraw a complaint, and to discourage (but not prohibit) withdrawals where they appear to be for improper reasons, due to coercion or intimidation, or to avoid a determination of no cause.
A withdrawal without resolution is inappropriate when a respondent, without entering into any form of an agreement, offers the complainant housing in exchange for withdrawal of the complaint. The complainant may accept the housing, but the case is not ended just because some relief has been offered or accepted. In this situation, the complainant has no protection from future adverse action and no written agreement to bar further investigation.
Every case involving a proposed withdrawal without resolution should be assessed to identify any public interest issues that might be addressed appropriately through a Secretary initiated complaint, including determining whether there were claimed to be discriminatory policies in effect and whether there are other potential victims of the alleged unlawful practice.
Before a case may be closed administratively because a complaint was withdrawn without resolution, a written statement which contains at least the following elements must be provided to the Department:
a. It is signed and dated by the complainant or his/her representative;
b. It identifies the respondents to whom the withdrawal applies and provides sufficient information to identify the case;
c. It explains the reasons for the withdrawal;
d. It indicates the complainant's awareness that the withdrawal will result in the termination of proceedings involving the matter;
e. It affirms that the withdrawal does not result from duress, intimidation, coercion, retaliation or fear of retaliation from any person (not just the respondent).
This information may be provided by letter or other writing. Until an acceptable statement is received by the Department, the investigation should continue. Enforcement Directors have the discretion to review such requests, and determine whether a withdrawal without resolution is appropriate, including conducting further discussions with the complainant. If the case is closed administratively because of a withdrawal, all parties must be notified by regular and certified mail.
5. Trial has Commenced:
Under the Pair Housing Act, a complaint may be closed once a civil trial of a lawsuit on the allegations in the complaint has begun. A complaint should not be closed merely because a lawsuit has been filed, because a trial date has been set, or because the case has been dismissed on a motion of a party, such as a motion for summary judgment.
The determination of whether legal action has been taken to bar further investigative action may require consultation with counsel. In some circumstances, the issue is not whether the trial has commenced but whether the action taken in an administrative or judicial proceeding itself bars further Departmental action under principles of res iudicata or collateral estoppel. Completion of an eviction proceeding, even if there has been a trial, may not be enough to bar further investigation. Similarly, administrative action by a State or local agency, even if it enforces rights and remedies which are substantially equivalent to those in the Act, may not be a bar. Even action by another federal agency, such as the Department of justice in a pattern and practice case, may not bar an individual action. Consult counsel in these and similar circumstances.
If trial has begun, an administrative closure must be supported by documentation that this is the case. A written affirmed statement from the complainant or attorney for the complainant is adequate, as is written information from the clerk of the court in which the case is being heard. Such a closure should include written notification to all parties by regular and certified mail.
III. LACK OF JURISDICTION:
Administrative closure is not appropriate for use when jurisdiction is found to be lacking under the Fair Housing Act after the complaint has been filed in the system. In most cases, issues relating to jurisdiction will be resolved at the intake process, before the complaint is filed in the system. In some cases, lack of jurisdiction will be established through investigation, for example, when housing is established to be "housing for older persons" under Section 807th) of the Act for purposes of discrimination on the basis of familial status. If the complaint is jurisdictional under another civil rights law that the Department enforces, it should be processed under that law. If, after investigation, the Department does not have jurisdiction over the claim under the Fair Housing Act, a finding of no reasonable cause should be made, following the appropriate procedures, including preparation of an abbreviated FIR.
Jurisdiction may be lacking for one or more of the following reasons:
a. Investigation shows that the complainant has not suffered the requisite legal harm to have standing;
b. Investigation reveals that the one year statute of limitations for filing an administrative complaint has expired;
c. After an investigation, it is determined that there is no jurisdiction over the respondent, because of the operation of some exemption contained in the Act;
Most questions regarding jurisdiction should be answered before a complaint is filed, thus avoiding the need for early closures. A prospective complainant may be queried regarding various jurisdictional matters, including when incidents occurred, (since the statute of limitations runs from the last reported incident of discrimination), the complainant's reasons for believing that the alleged discrimination resulted from a protected basis or bases, and facts relating to the respondent's coverage under the Act. If it appears that there is clearly no jurisdiction, the complaint should not be filed. However, the complainant does not hear the burden of proving jurisdiction. If jurisdiction is not clearly established from the information readily available from the prospective complainant (or from some non- respondent source, such as prior cases, property tax records or complainant's witnesses), the complaint should be filed and jurisdictional issues highlighted for early investigation.
IV. WITHDRAWAL WITH RESOLUTION:
Withdrawals with resolution are not favored, because they do not always reflect appropriate resolutions for the complainant or for the public interest. There is no mechanism for enforcement of agreements which the parties may enter into without the department as a signatory. A representative of the Department should not encourage the use of withdrawal with resolution but, rather, encourage the parties to reach an agreement which includes the Department as a signatory and which contains provisions which address the public interest issues as well as resolve the case for the complainant. Early discussions with the complainant regarding the advantages of conciliation through the department are encouraged.
Withdrawals with resolution are not considered to be administrative closures, but are treated under a separate category because they represent relief for a complainant or complainants. Nonetheless, there are important considerations in reviewing a request to close a case as a withdrawal with resolution.
This review is a two-part process: First, it should analyze the relief achieved, and, second, if the relief is not appropriate, it should evaluate whether the complainant retains any rights to proceed with the case.
The agreement should be requested, and, if provided, reviewed with respect to the relief which has been granted before closing the case. If the relief for the complainant is as good as relief which could have been accomplished through the conciliation process, the complaint may be closed. However, consideration of whether or not systemic relief should have been provided should also occur. This evaluation will differ from case to case, and should reflect an assessment of the respondents' policies or practices which may violate the Fair Housing Act and which have not been addressed through the individual relief. A Secretary-initiated complaint to address policy or practice issues unresolved by the individual settlement may be recommended as a result of this review.
If the relief for the complainant appears to be inadequate, the agreement should be evaluated also to determine whether it contains provisions by which the complainant gives up legal rights to pursue an administrative complaint. If the agreement contains such a provision, and if it is worded broadly enough to cover the events that are the subject of the complaint, it may bar further action even if the relief is clearly inadequate, unless it was fraudulently or illegally induced. Consult with counsel if there is any question regarding the effect of particular language. If the language serves as a bar, the case should be closed, using the same considerations described regarding withdrawals without resolution, including, specifically, the assessment of the case to determine whether a Secretary-initiated complaint may be appropriate to address matters that involve the public interest.
If the agreement does not contain such language, the investigation may continue. If the complainant is uncooperative, use the procedures described above for failure to cooperate.
Robe ta Achtenberg, Assistant Secretary of Fair Housing and Equal Opportunity