          United States Court of Appeals
                     For the First Circuit

No. 13-1817

                       PRISCILLA BATISTA,

                      Plaintiff, Appellant

                               v.

     COOPERATIVA DE VIVIENDA JARDINES DE SAN IGNACIO, ET AL.

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                 FOR THE DISTRICT OF PUERTO RICO

          [Hon. Gustavo A. Gelpí, U.S. District Judge]


                             Before

                Torruella, Thompson, and Barron,

                         Circuit Judges.



     Guillermo F. DeGuzmán, with whom DeGuzmán Law Offices, was on
brief, for appellant.
     Luis A. Guzmán Dupont, for appellees.



                        January 13, 2015
           BARRON, Circuit Judge.            The appellant contends the Fair

Housing Act's requirement that landlords must make reasonable

accommodations for their disabled tenants entitles her to stay in

her apartment of many years, even though she had been told she was

no longer eligible for the federal subsidy on which she had been

relying   to   make     the    rent.    She     also    contends    her    landlord

impermissibly discriminated against her because of her disability

in other ways, and also that it retaliated against her for pursuing

her Fair Housing Act rights.           The District Court granted summary

judgment for that landlord, a private housing cooperative in San

Juan, Puerto Rico, and a number of the cooperative's board members,

whom the appellant had also named as defendants.                 For the reasons

discussed below, we affirm in part, reverse in part, and remand in

part.

                                        I.

           Since       1983,    Priscilla     Batista    has    leased     the   same

three-bedroom apartment at the Cooperativa de Vivienda Jardines de

San Ignacio, a San Juan, Puerto Rico housing cooperative.                   Her two

children used to live in the three-bedroom apartment with her, but

they moved out in 1997 and 2003, respectively.

           For     most    of    the   time    Batista     has     lived    at   the

Cooperativa,     she    received    benefits     under    the    federal    housing

assistance program known as Section 8, and these benefits enabled

her to cover the rent for her apartment.                  Under that program,


                                       -2-
government subsidies are available for "low-income families" so

they may "obtain[] a decent place to live."             42 U.S.C. § 1437f(a).

Those subsidies assist Section 8 recipients with the rent they owe

to private landlords.       See id. § 1437f(o).        Although the Section 8

program is a federal one, it is administered by so-called "public

housing agencies" at the state and local level.                    See id. §

1437f(b)(1).        In   Puerto   Rico,     the    entity   responsible    for

administering the Section 8 program is the Puerto Rico Housing

Finance Authority.

             One of the obligations of the Housing Finance Authority

is   to   conduct   a    management   review      of   buildings   that   house

recipients of Section 8 assistance.            During such a review of the

Cooperativa in October of 2007, the Puerto Rico Housing Finance

Authority observed that four units, including Batista's three-

bedroom Unit 1714A, were "over-housed" for Section 8 purposes.              By

"over-housed," the agency meant the tenants in those four units

were living in units larger than those they qualified for under

Section 8.    The Cooperativa accordingly sent Batista -- who was by

then living alone in the three-bedroom unit -- a letter later that

month informing her that, under Section 8, she was required either

to transfer to an appropriately sized unit (in which case she could

continue to receive Section 8 assistance) or to remain in her

three-bedroom Unit 1714A but pay the fair market rent without such

assistance.


                                      -3-
                  The    Cooperativa     sent    Batista      additional    letters      in

November      of        2008    and   February   of    2009     informing   her   that   a

two-bedroom apartment was available and advising her that, if she

chose to stay in Unit 1714A, she would have to pay market-rate rent

without the Section 8 assistance as of April 1, 2009.                       Batista did

not respond to any of the letters.

                  Three weeks before the April 1 deadline, however, Batista

submitted a request to the Cooperativa for reasonable accommodation

under       the    Fair        Housing   Act   on     account    of   her   disability.1

Batista's accommodation request stated that, in addition to a

bedroom, her disability requires that she have one room for

physical therapy and another room for reading and crafts -- and,

consequently, that moving to a smaller unit would compromise her

health.       The request further stated that in light of her hyper-

sensitivity to sounds, Batista could not move to the proposed two-

bedroom unit, which she claimed was noisier than her current unit.

                  Upon receiving this request, the Cooperativa asked the

Housing Finance Authority and the U.S. Department of Housing and

Urban Development ("HUD") for guidance on how to resolve the

matter. The Cooperativa also tabled any increase in Batista's rent

for Unit 1714A until it heard back.




        1
       Batista suffers from osteoporosis and fibromyalgia, as well
as severe fatigue, depression, migraines, blood anemia, colon
irritability, and hypersensitivity to sound.

                                               -4-
             The   Housing     Finance        Authority         responded     to      the

Cooperativa's inquiry on May 13, 2009.                      The Housing Finance

Authority's letter to the Cooperativa stated that the Cooperativa

"should offer a smaller unit to the member and require paying the

market rent if [Batista] refuses to transfer to another unit." The

letter also stated that when a tenant, such as Batista, "requests

a    reasonable      accommodation          for       medical     conditions,         the

[Cooperativa] must determine the eligibility of [the] applicant on

a case by case basis."

             After receiving the Housing Finance Authority's letter

and a separate response from HUD, the Cooperativa performed a

noise-level test for the two-bedroom apartment it had offered

Batista.      According   to     the    Cooperativa,        the    results       of   its

independent "noise pollution test" showed that the two-bedroom unit

it   had   offered    would    not     have   been      unsuitably       loud.        The

Cooperativa did not, however, analyze Batista's medical condition

itself.      Instead, the Cooperativa relied on findings HUD had

compiled after it had received the Cooperativa's letter seeking

assistance    in   responding     to    Batista's        request    for     reasonable

accommodation.

             The   Cooperativa       then   denied      Batista's       accommodation

request.    Batista nonetheless remained in her three-bedroom unit.

(She   stopped     receiving     Section          8   benefits     at     some     point




                                        -5-
thereafter.2)        And, while still residing there, she filed an

administrative complaint with HUD on April 12, 2010. The complaint

alleged the Cooperativa had violated the Fair Housing Act by

failing to provide the accommodation she sought.               The complaint

also alleged the Cooperativa had retaliated against her because she

had recently prevailed in a separate HUD proceeding against the

Cooperativa.          That    earlier     proceeding   arose    out   of     the

Cooperativa's failure to provide Batista with a key to the garbage

depository on her floor.

               In that earlier proceeding, the HUD Administrative Law

Judge found that the Coopertiva's failure in that regard had caused

Batista undue hardship in light of her disability and, on that

basis, issued a Consent Order sanctioning the Cooperativa.                  This

Consent Order required the Cooperativa to give Batista a key to the

depository, pay her $10,000, issue a written apology, and "[r]emove

any and all blemishes, sanctions, etc, arising out of this case,

from       [her]   record,   including    any   outstanding    fees   and    the

revocation of her voting privileges."



       2
       The Cooperativa contends that Batista's participation in
Section 8 was canceled as a consequence of her decision to remain
in an "over-housed" unit. Batista disputes this. She points out
that she received letters from the Cooperativa requesting that she
pick up "negative rent" checks through 2011, and -- although she
admits that neither the letters nor the checks reference "Section
8" specifically -- she claims that those checks identify her as a
Section 8 recipient through 2011.     Resolution of this factual
dispute is unnecessary to deciding this appeal, as there is no
dispute that Batista no longer receives the subsidy.

                                         -6-
          In    evaluating       the     reasonable        accommodation     and

retaliation claims in Batista's April 2010 complaint, HUD found in

favor of the Cooperativa as to each.             HUD concluded that Batista

had not submitted medical documentation stating that a three-

bedroom unit, as opposed to a two-bedroom unit like the one the

Cooperativa    had    offered,    was    necessary        to   accommodate   her

disability.     HUD further found that the Cooperativa had not

retaliated against Batista in violation of the Fair Housing Act.

HUD did not address whether the fact that Batista had been denied

Section 8 assistance for the apartment in which she continued to

reside was relevant to the reasonable accommodation claim.

          Batista then filed suit in federal court.               She named the

Cooperativa and a number of its past and present board members as

defendants.      In    addition    to        reasonable    accommodation     and

retaliation claims under the Fair Housing Act, Batista also alleged

a separate disparate treatment claim under that Act as well.                 The

District Court granted summary judgment for the defendants on May

15, 2013, finding in their favor on the merits of the reasonable

accommodation and disparate treatment claims and concluding that it

lacked jurisdiction to decide the retaliation claim.                    Batista

timely appealed that decision.

                                       II.

          We review a district court's decision granting summary

judgment de novo.     Geshke v. Crocs, Inc., 740 F.3d 74, 76 (1st Cir.


                                       -7-
2014).    In doing so, we evaluate "the record in the light most

favorable to the party opposing the motion"; we also "draw[] all

reasonable inferences in that party's favor."            Morrissey v. Bos.

Five Cents Sav. Bank, 54 F.3d 27, 31 (1st Cir. 1995).             Our review

"is not cabined by the lower court's rationale."          González-Droz v.

González-Colón, 660 F.3d 1, 9 (1st Cir. 2011).            Instead, we may

affirm the entry of summary judgment "on any ground made manifest

by the record," Geshke, 740 F.3d at 77, so long as the record

"reveals that there is no genuine issue as to any material fact and

that the moving party is entitled to judgment as a matter of law,"

Estate of Hevia v. Portrio Corp., 602 F.3d 34, 40 (1st Cir. 2010).

                                     A.

              We begin with Batista's reasonable accommodation claim.

The Fair Housing Act prohibits discriminatory housing practices

based    on   a   person's   handicap.    See   42   U.S.C.   §   3604(f)(2)

(prohibiting      discrimination    "in   the   terms,    conditions,    or

privileges of sale or rental of a dwelling, or in the provision of

services or facilities in connection with such dwelling, because of

a handicap" of an individual).       One type of discriminatory housing

practice is the "refusal to make reasonable accommodations in

rules, policies, practices, or services, when such accommodations

may be necessary to afford [handicapped persons] equal opportunity

to use and enjoy a dwelling."       Id. § 3604(f)(3)(B).




                                    -8-
          The   Cooperativa   conceded   that   Batista   qualifies   as

handicapped under the Act and that it either knew or should have

known that fact. See Astralis Condo. Ass'n v. Sec'y, U.S. Dep't of

Hous. & Urban Dev., 620 F.3d 62, 67 (1st Cir. 2010).           But the

District Court determined there was not a triable issue of fact as

to whether the Cooperativa had failed to provide a "reasonable and

necessary" accommodation, see id., and we agree.3

          According to Batista, she was simply "requesting to use

her HUD subsidy" under Section 8 to fund the rent for the three-

bedroom apartment that she believed she was entitled to stay in due

to the disability-based accommodation that she contends the Fair

Housing Act required the Cooperativa to make.      But while the Fair

Housing Act obliges private landlords to adjust their policies to

make reasonable accommodations for their tenants who otherwise

receive Section 8 subsidies, see 42 U.S.C. § 3604(f)(3)(B), the

Puerto Rico Housing Finance Authority, not the Cooperativa, is the

entity responsible for administering Section 8 benefits.      In doing

so, the Housing Finance Authority, not the Cooperativa, established

the over-housing policy that led to the former's revocation of

Batista's Section 8 benefits.   And so far as we are aware, Batista


     3
       Because we conclude Batista has not shown her requested
accommodation is a "reasonable" one, we need not address whether
she is right that the Cooperativa's decision to reject her
accommodation request was insufficiently particularized because it
failed to account for her emotional condition, osteoporosis,
fibromyalgia, or migraines in making its decision to deny her
request.

                                 -9-
has never challenged the Housing Finance Authority's determination

that, under its over-housing policy, she does not qualify for the

subsidy so long as she stays in the three-bedroom unit.

             Perhaps she could.       See Pub. Hous. Mgmt. & Occupancy

Div., U.S. Dep't of Hous. & Urban Dev., Public Housing Occupancy

Guidebook                64      (2003),            available              at

http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_10760.pdf

("Exceptions to the largest permissible unit size" for Section 8

purposes "may be made in case of reasonable accommodations for a

person with disabilities."); cf. 24 C.F.R. § 982.555(a)(1)(iii)

(public housing agency must give Section 8 participant family

opportunity for informal hearing to consider whether determination

of family unit size under applicable subsidy standards complies

with applicable laws and regulations); Colvin v. Hous. Auth. of

City    of   Sarasota,   Fla.,   71   F.3d   864,   866   (11th   Cir.   1996)

(recognizing right to challenge termination of Section 8 assistance

under certain circumstances). But Batista has sued the Cooperativa

instead.     And the Cooperativa is not responsible for the Section 8

subsidy determination.        Nor has the Cooperativa said it would

decline to make the current apartment available to Batista if she

were deemed eligible for a Section 8 subsidy to pay the market

rent.

             As a result, Batista must -- but has not -- explained why

a private landlord, like the Cooperativa, acts unlawfully in


                                      -10-
refusing to provide the subsidy itself.               See Howard v. City of

Beavercreek, 276 F.3d 802, 806 (6th Cir. 2002) ("An accommodation

is 'reasonable' when it imposes no 'fundamental alteration in the

nature of the program' or 'undue financial and administrative

burdens.'" (quoting Smith & Lee Assocs. v. City of Taylor, 102 F.3d

781, 795 (6th Cir. 1996))).         Indeed, not even Batista argues her

requested accommodation would be a "reasonable" one under the Act

if the subsidy she previously received were not reinstated.

           Seeing no way this suit against the private landlord

could result in an order to the administering agency for the

Section 8 program to reverse course and reinstate the rental

subsidy, we do not see how the requested accommodation could be a

reasonable one.     Its denial by the Cooperativa rested solely on

Batista's inability to pay, which she appears to concede arises

only from her need for federal rental support.                 See Salute v.

Stratford Greens Garden Apartments, 136 F.3d 293, 300 (2d Cir.

1998) ("impecunious people with disabilities stand on the same

footing   as   everyone   else");    cf.   id.   at    310   (Calabresi,   J.,

dissenting) (addressing a claim brought by Section 8-eligible

recipients who alleged they were in need of the assistance because

their disability had made them poor).            And thus, she does not

contend the denial of the accommodation resulted from any policy of

the Cooperativa that would prevent her from acquiring the funds

necessary to make the rent, which she does not contend must be


                                    -11-
lowered.    We accordingly affirm the District Court's decision to

grant the defendants summary judgment on this claim.

                                          B.

            In addition to her failure-to-accommodate claim, Batista

also alleged in her complaint that the Cooperativa had "engaged in

a definite pattern of discriminatory actions against [her]" in

violation of the Fair Housing Act.              The Cooperativa had done so,

Batista contends, by instituting multiple claims against her,

disallowing       her   from   voting      in   resident-member         assemblies,

attempting to prevent visitors from entering the premises to see

her, threatening to evict her from her unit, and more.

            The     District    Court      treated     these    allegations      as

presenting a disparate treatment claim under the Fair Housing Act,

see generally Astralis Condo. Ass'n, 620 F.3d at 66 (Fair Housing

Act   "contemplates        three     types      of     claims     for     perceived

discrimination: 'disparate treatment, disparate impact, and failure

to make reasonable accommodations'" (quoting Smith & Lee Assocs.,

102 F.3d at 790)), and so do we.                     Summary judgment for the

defendant is warranted on a disparate treatment claim "if the

plaintiff     cannot     produce     either      (a)     direct     evidence    of

discriminatory      intent     or   (b)    indirect     evidence    creating    an

inference of discriminatory intent." Gallagher v. Magner, 619 F.3d

823, 831 (8th Cir. 2010).




                                        -12-
            We may assume the Cooperativa did what Batista alleges --

attempting to collect money from her she did not owe, stopping her

from voting in the resident-member assemblies, threatening to evict

her, and so on.       But even still, Batista has put forward no

evidence, nor pointed us to any, to suggest that an impermissible,

disability-based discriminatory purpose motivated the Cooperativa's

actions.

            In fact, Batista argued below (and did so again in her

brief on appeal) that the Cooperativa's "true intent was to

eliminate Section 8 beneficiaries from the housing cooperative,"

and thus one unrelated to her disabled status.        And while Batista

has tried on appeal to recast her argument by claiming that "[i]t

isn't hard to visualize how [her] position, as a handicapped person

protected    under   several   applicable   federal   laws   supporting

reasonable accommodation, was particularly troublesome for [the

appellees] in light of their 'intent to eliminate Section 8

beneficiaries' from Cooperativa," this argument still frames the

Cooperativa's actions as having been motivated by an "intent to

eliminate Section 8 beneficiaries" from the Cooperativa rather than

by her status as a disabled person protected by the Fair Housing

Act.   Thus, we affirm the District Court's decision to grant the

Cooperativa summary judgment on this claim as well.




                                  -13-
                                      C.

            Finally, Batista alleges that after the Administrative

Law Judge found in her favor in the proceeding about the garbage

depository issue, the Cooperativa "swift[ly]" retaliated against

her.    The Cooperativa did so, she claims, by (1) "initiating

collection proceedings against [her] for amounts she allegedly owed

since   1998"    and    (2)   "denying      her    request   for   reasonable

accommodations and ignoring her need to remain in her present three

bedroom apartment due to her multiple health conditions."

            Batista's    complaint   does    not    directly   refer   to   the

Consent Order the Administrative Law Judge issued at the close of

the garbage depository case, but the District Court interpreted

Batista's retaliation claim as if it were an effort to enforce that

Order. Consistent with that understanding, the District Court then

dismissed the claim without prejudice -- for, under 42 U.S.C.

§ 3612(m), only the First Circuit has jurisdiction to enforce such

an Order.      See 42 U.S.C. § 3612(m) ("[A]ny person entitled to

relief under the order may petition for a decree enforcing the

order in the United States court of appeals for the circuit in

which the discriminatory housing practice is alleged to have

occurred.").

            But the paragraph of Batista's complaint that sets forth

the retaliation claim does not cite to the provision for enforcing

consent orders, 42 U.S.C. § 3612(m). Instead, the paragraph refers


                                     -14-
to   section   813(c)(1)   of    the   Fair   Housing   Act,   42    U.S.C.

§ 3613(c)(1), which deals with private enforcement of the Act's

guarantees.    And one of those guarantees, of course, is freedom

from "coerc[ion], intimidat[ion], threat[], or interfer[ence] . . .

on account of [a person's] having exercised or enjoyed" the right

to seek redress for housing discrimination.        42 U.S.C. § 3617.

          Thus, although the complaint is less than clear as to its

target, Batista's retaliation claim is best understood as an

attempt to enforce not the Consent Order itself, but the right

against retaliation the Fair Housing Act secures -- a right the

District Court surely does have jurisdiction to enforce.            See id.

§ 3613(a)(1)(A) ("An aggrieved person may commence a civil action

in an appropriate United States district court or State court not

later than 2 years after the occurrence or the termination of an

alleged discriminatory housing practice . . . to obtain appropriate

relief . . . .").    Accordingly, we reverse the District Court's

decision to dismiss Batista's retaliation claim with prejudice, and

we remand for the District Court to decide the claim on the merits.

                                   III.

          For the foregoing reasons, we affirm in part, reverse in

part, and remand in part.       No costs are awarded.




                                   -15-
