[Federal Register Volume 59, Number 8 (Wednesday, January 12, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-691]


[[Page Unknown]]

[Federal Register: January 12, 1994]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity

24 CFR Part 104

[Docket No. R-93-1699; FR-3485-F-01]

 

Administrative Proceedings Under Section 812 of the Fair Housing 
Act

AGENCY: Office of the Assistant Secretary for Fair Housing and Equal 
Opportunity, HUD.

ACTION: Final rule.

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SUMMARY: This final rule revises the regulations involving discovery 
procedures in HUD administrative proceedings. The revision more clearly 
sets a standard whereby a party or a person in the custody or under the 
legal control of a party will not be required to submit to a physical 
or mental examination, except upon order of the presiding 
administrative law judge pursuant to a motion by the party requesting 
the examination and a showing by the moving party that the physical or 
mental condition of the person who is the subject of the request is in 
controversy and that good cause exists for the requested examination.

EFFECTIVE DATE: February 11, 1994.

FOR FURTHER INFORMATION CONTACT: Harry L. Carey, Assistant General 
Counsel for Fair Housing, Office of the General Counsel, Department of 
Housing and Urban Development, room 9238, 451 Seventh Street, SW., 
Washington, DC 20410-0500, telephone: (202) 708-0570. (This is not a 
toll-free number.) A telecommunications device for hearing impaired 
persons (TDD) is available at 1-800-543-8294.

SUPPLEMENTARY INFORMATION:

Background

    Part 104 of Title 24 of the Code of Federal Regulations contains 
HUD's regulations governing administrative proceedings under section 
812 of the Fair Housing Act. Under 24 CFR 104.500 and 104.540, any 
party may serve on any other party a request to submit to a physical or 
mental examination by a physician, specifying the time, place, manner, 
conditions, and scope of the physical or mental examination, and the 
person or persons who will make the examination. Relevancy is the only 
explicit requirement regarding all methods of discovery provided in the 
Fair Housing Act's implementing regulations, 24 CFR 104.500(b) (1992).
    The Department is revising 24 CFR 104.500 and 104.540 to conform 
more closely to Rule 35 of the Federal Rules of Civil Procedure, as 
interpreted in certain Federal court precedents. This regulatory 
revision is designed to further the already developed practice of 
Federal administrative law judges looking to Federal Rules of Civil 
Procedure in instances in which they construe HUD's regulations 
governing administrative filings and hearings. See, e.g., HUD v. 
Jerrard, Fair Housing-Fair Lending (P-H) para. 25,081 at 25,086 (HUDALJ 
Sept. 28, 1990) (Accepting analogy to Rules 41(b) and 8(c), Fed. R. 
Civ. P.); HUD v. Downs, HUDALJ 02-89-0322, Order at 2 (June 21, 1991) 
(Reliance on Rules 28(a), 30(b)(7), and 32(d)(3)(B), Fed. R. Civ. P., 
to reject respondents' claim that deposition was technically 
defective); and Downs, Memorandum Opinion at 2 (Nov. 22, 1991) (Finding 
Rule 24(a), Fed. R. Civ. P., to provide guidance for resolution of 
motion to intervene).

1. Rule 35 Standard

    Under Federal Rule of Civil Procedure 35, relevancy is not a 
sufficient basis for a court to order a physical or mental examination. 
Schlagenhauf v. Holder, 379 U.S. 104, 118 (1964). Rather, because such 
examinations are a more intrusive form of discovery than other 
available discovery methods, Rule 35 requires stringent standards for 
their use in Federal court litigation. Such examinations are only 
provided for by leave of court and in limited circumstances.

Rule 35 provides:

    When the mental or physical condition (including the blood 
group) of a party or of a person in the custody or under the legal 
control of a party, is in controversy, the court in which the action 
is pending may order the party to submit to a physical or mental 
examination by a suitably licensed or certified examiner or to 
produce for examination the person in the party's custody or legal 
control. The order may be made only on motion for good cause shown 
and upon notice to the person to be examined and to all parties and 
shall specify the time, place, manner, conditions, and scope of the 
examination and the person or persons by whom it is to be made.

    As stated in Guilford National Bank v. Southern R. Co., 297 F.2d 
921, 924 (4th Cir. 1962), ``Under Rule 35, the invasion of the 
individual's privacy by a physical or mental examination is so serious 
that a strict standard of good cause, supervised by the district 
courts, is manifestly appropriate.'' The Supreme Court, in 
Schlagenhauf, supra, emphasized the limited circumstances under which a 
court may order mental or physical examinations under Rule 35:

    Sweeping examinations of a party who has not affirmatively put 
into issue his own mental or physical condition are not to be 
automatically ordered * * * Mental and physical examinations are 
only to be ordered upon a discriminating application by the district 
judge of the limitations prescribed by the Rule. To hold otherwise 
would mean that such examinations could be ordered routinely * * * 
The plain language of Rule 35 precludes such an untoward result.

Schlagenhauf, 379 U.S. at 121-22. See also In re Mitchell, 563 F.2d 143 
(5th Cir. 1977) (Rule 35 order requires greater showing than general 
discovery under Rule 26).
    The requirements under Rule 35 differ from those imposed by other 
discovery provisions in the Federal Rules of Civil Procedure, such as 
the taking of oral and written depositions (Rules 26-32), 
interrogatories to parties (Rule 33), and the production of documents 
(Rule 34). None of these other discovery methods require that a matter 
be ``in controversy'' and only Rule 34 imposes a requirement that the 
moving party affirmatively demonstrate ``good cause.'' See 
Schlagenhauf, 379 U.S. at 117. In general, other discovery devices 
under the Federal Rules of Civil Procedure do not require leave of 
court.
    Rule 35 requires that the party requesting a physical or mental 
examination make a motion and meet notice requirements. For such a 
motion to be granted, the following standard must be met:
    1. The physical or mental condition of the person to be examined 
must be in controversy; and
    2. There must be a showing of good cause.
    These requirements are not met by ``mere conclusory allegations of 
the pleadings--nor by mere relevance to the case--but require an 
affirmative showing * * * that each condition as to which the 
examination is sought is really and genuinely in controversy and that 
good cause exists for ordering each particular examination.'' 
Schlagenhauf, 379 U.S. at 118. Precedent establishes that it is the 
moving party which has the burden of demonstrating that this standard 
is met. Id.
a. ``In Controversy'' Requirement
    Federal precedents have varied in their interpretation of the ``in 
controversy'' requirement. In negligence cases, courts generally have 
been receptive to defendants' requests for such examinations where 
physical or mental injury is claimed. See Brandenberg v. El Al Israel 
Airlines, 79 F.R.D. 543 (1978) (ordering psychiatric examination of 
plaintiff alleging negligent, careless and reckless treatment caused 
her ``physical, emotional, mental stress, and mental and psychiatric 
injuries''); Martin v. Tindell, 98 So.2d 473, cert. denied, 355 U.S. 
959 (negligence case indicating physical exams are granted as a matter 
of course in such cases). Even in negligence cases, however, 
examinations may not be ordered where damages only for past injury are 
alleged, rather than damages for present suffering. Winters v. Travia, 
495 F.2d 839 (2d Cir. 1974); Coca-Cola Bottling Co. v. Torres, 255 F.2d 
149 (1st Cir. 1958).
    In the civil rights cases, however, courts have demonstrated 
greater reluctance to order such examinations. In Cody v. Marriot 
Corporation, 103 F.R.D. 421, 422-23 (D. Mass. 1984), the court 
indicated that the standard for ordering such examinations in 
discrimination cases is more stringent than in tort cases involving 
negligence.
    The reported civil rights cases interpreting Rule 35 have generally 
involved requests by defendants for mental examinations of plaintiffs. 
A review of employment discrimination cases interpreting Rule 35 
demonstrates that mental examinations of plaintiffs are not routinely 
ordered in such cases simply because plaintiffs may claim damages for 
emotional distress. Furthermore, a claim of emotional distress is not 
considered to place automatically a plaintiff's mental condition in 
controversy.
    Cody, referred to, supra, was one important employment 
discrimination case involving the application of Rule 35. Citing 
Schlagenhauf, Cody refused to order a mental examination of a plaintiff 
who claimed emotional distress as a result of employment 
discrimination. Cody indicated that the outcome might have been 
different had the plaintiff not merely ``made a claim of emotional 
distress'' but instead had made ``a claim of a psychiatric disorder 
requiring psychiatric or psychological counseling.'' Cody, 103 F.R.D. 
at 423. This distinction, based on the severity of the injury alleged, 
has also been applied in other tort contexts. See, e.g., Anson v. 
Fickel, 110 F.R.D. 184, 186 (N.D. Ind. 1986) (traffic accident case 
citing Cody and making same distinction).
    Cody also noted that the moving party had shown no authority for 
the proposition that ``emotional distress'' is synonymous with ``mental 
condition,'' as that term is used in Rule 35. Cody, 103 F.R.D. at 422 
n.2. Cody indicated that if, in contrast, the plaintiff were to use the 
services of a psychiatrist or psychologist at a later date for use at 
trial, the court would consider allowing the defendants to conduct the 
Rule 35(a) examination. Cody, 103 F.R.D. at 423.
    Thus, Cody suggested two factors that differentiate the 
circumstances in which the ``in controversy'' requirement would or 
would not be met.
b. ``Good Cause'' Requirement
    In addition to the ``in controversy'' requirement, an examination 
may only be ordered if ``good cause'' is also shown. The good-cause 
requirement is not a ``mere formality,'' but is a ``plainly expressed 
limitation on [Rule 35's] use * * *.'' Schlagenhauf, 379 U.S. at 118.
    Schlagenhauf noted with approval the discussion of the ``good 
cause'' requirement in Guilford National Bank v. Southern R. Co., 297 
F.2d 921, 924 (4th Cir. 1962). In Guilford, the court stated that ``the 
Rules indicate that there must be a greater showing of need under Rules 
34 and 35 than under the other discovery rules,'' and that the 
requirement would be ``meaningless'' if it could be established by 
``merely'' showing that the information sought is relevant. Guilford, 
297 F.2d at 924. Although the Guilford court discussed the ``good 
cause'' requirement in the context of the plaintiff's Rule 34 request 
for production of documents (which the court denied), it stated the 
policy reason for imposing the ``good cause'' requirement of Rule 35: 
``the invasion of an individual's privacy by a physical or mental 
examination is so serious that a strict standard of good cause, 
supervised by the district courts, is manifestly appropriate.'' Id. The 
court further stated, ``[R]elevancy is not the equivalent of good cause 
* * *.'' Guilford, 297 F.2d at 925.
    Other precedents establish that ``The ability of the movant to 
obtain the desired information by other means is also relevant'' to the 
determination of whether good cause is shown. Schlagenhauf, 379 U.S. at 
118. This principle has been applied in several subsequent reported 
decisions. In Anson, 110 F.R.D. at 186, a traffic accident case, the 
court considered the fact that the defendants had utilized other 
discovery procedures before seeking a mental examination of the 
plaintiff. In ordering a mental examination of the plaintiff, Anson 
considered the defendant's attempts first to obtain information through 
alternative means such as submitting the plaintiff's medical records to 
the defendants' own expert for analysis. Other tort cases have 
recognized that where medical reports are provided, good cause may no 
longer exist for ordering a mental examination. See Hughes v. Groves, 
47 F.R.D. 52, 57 (1969); Petition of Trinidad Corp., 238 F. Supp. 928, 
935 (1965).
    This principle has been applied as well in cases where the 
plaintiff seeks a mental examination of the defendant. For example, in 
Marroni v. Matey, 82 F.R.D. 371 (1979), a tort case involving a child 
injured in a boating accident, the plaintiff requested a psychological 
exam of the defendant boat operator to show that he was incapable of 
properly operating it and understanding safety rules. The court denied 
the request holding that the plaintiff first had to utilize less 
intrusive methods of discovery to attempt to obtain the desired 
information. Marroni, 82 F.R.D. at 372.

2. Application of Rule 35 Standard to Fair Housing Cases

    Two recent Federal Administrative decisions, HUD v. Ocean Sands, 
Inc., HUDALJ 04-90-0231-1, Order (April 20, 1993); HUD v. Ocean Parks 
Jupiter Condominium Association, Inc., HUDALJ 04-90-0589-1 and 04-90-
0604-1, Order Denying Motion for Protective Order (December 8, 1992), 
appear to set a standard under which a defendant may obtain a mental 
examination of an aggrieved person simply because damages for emotional 
distress are being sought.
    The Secretary believes such a standard is inappropriate in fair 
housing cases. Rather, as provided for in this revised rule, fair 
housing cases are governed by a more restrictive standard, consistent 
with the standards that have been applied in other civil rights 
contexts. The Department, following the lead of courts, has commonly 
relied on civil rights cases in other contexts, especially employment 
discrimination precedents, for guidance in housing discrimination cases 
under the Fair Housing Act. See, e.g., Huntington Branch, N.A.A.C.P. v. 
Town of Huntington, 844 F.2d 926, 935 (2d Cir.), aff'd, 488 U.S. 15 
(1988); HUD v. Blackwell, Fair Housing-Fair Lending (P-H) para. 25,001 
at 25,005 (1989). This rule furthers that practice by looking to 
Federal court precedents construing Rule 35 to allow such examinations 
only in limited circumstances.
    Under the revised standard, the fact that the Secretary, on behalf 
of an aggrieved person, or an intervening aggrieved person, may request 
a large amount of monetary relief and/or significant relief for 
emotional distress, would not support an order requiring the aggrieved 
person to submit to a mental examination. Rather, the Department adopts 
a standard consistent with Rule 35 which requires that the moving party 
demonstrate that the aggrieved person's mental condition is ``in 
controversy'' and that ``good cause'' exists.
a. Application of ``In Controversy'' Requirement
    The Department believes that a claim of emotional distress is 
different from putting mental condition ``in controversy.'' See Cody, 
103 F.R.D. at 422 n.2. Rather, the Department adopts the two factors 
cited in Cody, to distinguish circumstances in which the ``in 
controversy'' requirement is met from those in which the requirement is 
not met, where the respondent is seeking a mental examination of an 
aggrieved person. In general, unless one or more of these factors is 
met, an aggrieved person should not be ordered to undergo a mental 
examination.
    The first factor that the Department will apply is whether the 
plaintiff has made ``a claim of a psychiatric disorder requiring 
psychiatric or psychological counseling'' or ``a claim of emotional 
distress.'' See Cody, 103 F.R.D. at 423. Generally, in the former 
circumstance, the ``in controversy'' requirement would be met, while in 
the latter circumstance it would not be met.
    The second factor that the Department will apply under the revised 
standard is whether the aggrieved person intends to introduce at 
hearing the expert testimony of a psychiatrist or psychologist to 
support a claim of mental or emotional injury. See Cody, 103 F.R.D. at 
423. In general, if so, the ``in controversy'' requirement will be met 
but if not, the ``in controversy'' requirement will not be met.
b. Application of ``Good Cause'' Requirement
    In determining whether the second requirement, ``good cause'' is 
met, the Department will require more than mere relevancy. Instead, 
where there is a claim of mental or emotional distress, the Department 
will consider whether the respondents have had and exercised the 
opportunity to obtain and present information about an aggrieved 
person's mental or emotional state through other less intrusive means. 
These alternatives may, in appropriate circumstances, include deposing 
the aggrieved person in advance of trial as to his or her injuries, 
using direct or cross examination of the aggrieved person at hearing as 
to such injuries, interrogatories, requests for production of 
documents, and, where aggrieved persons have consulted psychiatrists or 
psychologists, evaluation of those records by respondents' own experts. 
See Schlagenhauf, 379 U.S. at 118; Hughes, supra; Petition of Trinidad 
Corp., supra; Anson, 103 F.R.D. at 186. Where a mental examination is 
requested, the burden shall be on the moving party to establish why 
these alternative methods have not been used, or where used, why these 
alternative methods have proven insufficient.
    The Department believes that the same policy reason for applying 
strict standards in federal court litigation in civil rights cases 
applies equally to the administrative process, where litigants should 
not be forced to abandon their right to privacy by choosing the 
administrative forum rather than electing, pursuant to 42 U.S.C. 3612, 
to have the matter tried in Federal district court. The current 
administrative standard has been interpreted in a manner that may make 
it easier for respondents to obtain orders requiring aggrieved persons 
to submit to physical or mental examinations than would be the case in 
Federal court litigation. Such a situation, if allowed to continue, 
could lead HUD complainants to elect to have their matter heard in 
federal court, rather than in the administrative forum, since the 
differing standards would make federal courts better protectors of 
their privacy rights. This regulatory revision is intended to ensure 
that aggrieved persons who have been victims of alleged discrimination 
will not be victimized again by being made to undergo unjustified 
probing into their physical or mental condition by respondents while 
the Government endeavors to protect their civil rights. The regulation, 
however, still allows for examinations in those limited circumstances 
where such examinations are shown to be necessary.
    A further negative consequence of recent administrative rulings on 
this issue is less expeditious and more expensive discovery and 
hearings contrary to the dictates of 42 U.S.C. 3612(d)(1) and (2); 24 
CFR 104.500(b) (1992). See HUD v. Downs, 2 Fair Housing-Fair Lending 
(P-H) para. 25,234 at 25,235 n.1 (Nov. 22, 1991). The cost of expert 
psychiatric or psychological testimony is prohibitive in many 
administrative hearings. While expert testimony for both sides in Fair 
Housing Act cases might be necessary to the trier of fact in limited 
circumstances, in general the time and expense involved in their use 
would clash directly with Congress's mandate that discovery and 
hearings be conducted ``as expeditiously and inexpensively as 
possible''. 42 U.S.C. 3612(d)(1) and (2). See also 24 CFR 104.500(b); 
HUD v. Downs, 2 Fair Housing-Fair Lending at 25,235 n.1. Recent 
interpretations of the current regulation, which appear to order 
examinations without the need for the moving party to meet strict ``in 
controversy'' and ``good cause'' requirements, could lead to more time-
consuming and expensive administrative litigation.

3. Examination by Non-Physicians

    This final rule is revised to conform to Rule 35 in another respect 
as well. Federal Rule of Civil Procedure 35 was revised effective 
December 1, 1991, subsequent to the Department's promulgation of 24 CFR 
104.540 at 54 FR 3232 (Jan. 23, 1989). That revision authorized courts 
to require physical or mental examinations conducted by any person who 
is suitably licensed or certified, rather than limiting such 
examinations to those conducted by a physician, as under the literal 
language of HUD's current regulation.
    The Advisory Committee Notes to the 1991 Amendment to Rule 35 are 
particularly useful in understanding how this change to the revised 
rule shall operate. The Advisory Committee Note states:

    The rule was revised in 1988 by Congressional enactment to 
authorize mental examinations by licensed clinical psychologists. 
This revision extends that amendment to include other certified or 
licensed professionals, such as dentists or occupational therapists, 
who are not physicians or clinical psychologists, but who may be 
well-qualified to give valuable testimony about the physical or 
mental condition that is the subject of dispute.
    The requirement that the examiner be suitably licensed or 
certified is a new requirement. The court is thus expressly 
authorized to assess the credentials of the examiner to assure that 
no person is subjected to a court-ordered examination by an examiner 
whose testimony would be of such limited value that it would be 
unjust to require the person to undergo the invasion of privacy 
associated with the examination. This authority is not wholly new, 
for under the former rule, the court retained discretion to refuse 
to order an examination, or to restrict an examination. 8 Wright & 
Miller, Federal Practice & Procedure section 2234 (1986 Supp.). The 
revision is intended to encourage the exercise of this discretion, 
especially with respect to examinations by persons having narrow 
qualifications.
    The court's responsibility to determine the suitability of the 
examiner's qualifications applies even to a proposed examination by 
a physician. If the proposed examination and testimony calls for an 
expertise that the proposed examiner does not have, it should not be 
ordered, even if the proposed examiner is a physician. The rule does 
not, however, require that the license or certificate be conferred 
by the jurisdiction in which the examination is conducted.

    The Department is publishing this rule as a final rule without 
prior public notice and opportunity to comment because the rule's 
content is technical in nature and limited to the practices and 
procedures associated with administrative proceedings.

Other Matters

    An environmental finding under the National Environmental Policy 
Act (42 U.S.C. 4321-4347) is unnecessary because this rule relates to 
agency administrative procedures governing discovery of evidence.
    This final rule was determined to be non-significant and therefore 
was not reviewed by the Office of Management and Budget under Executive 
Order 12866, Regulatory Planning and Review, which was signed by the 
President on September 30, 1993.
    The Secretary, in approving the publication of this rule, certifies 
in accordance with 5 U.S.C. 605(b) (the Regulatory Flexibility Act), 
that this rule does not have a significant economic impact on a 
substantial number of small entities. The rule is a technical, 
procedural change which only affects operations within HUD. The rule 
does not affect substantive rights.
    The General Counsel, as the Designated Official under Executive 
Order 12606, The Family, has determined that this rule would have no 
significant impact on family formation, maintenance, and general well-
being.
    The General Counsel, as the Designated official under section 6(a) 
of Executive Order 12612, Federalism, has determined that this rule, if 
implemented, would have no significant impact on federalism.
    This rule was listed as item 1623 in the Department's Semiannual 
Agenda of Regulations published on October 25, 1993 (58 FR 56408, 
56445) under Executive Order 12866 and the Regulatory Flexibility Act.

(The catalog of Federal Domestic Assistance program number and title 
is 14.400, Equal Opportunity in Housing.)

List of Subjects in 24 CFR Part 104

    Administrative practice and procedure, Aged, Fair Housing, 
Individuals with disabilities, Mortgages, Penalties.
    Accordingly 24 CFR part 104 is amended as follows:

PART 104--ADMINISTRATIVE PROCEEDINGS UNDER SECTION 812 OF THE FAIR 
HOUSING ACT

    1. The authority citation for part 104 is revised to read as 
follows:

    Authority: 42 U.S.C. 3535(d) and 3600-3620.

    2. Section 104.500 is amended by revising paragraph (c)(3) and by 
adding paragraph (c)(5) to read as follows:


Sec. 104.500  Discovery.

* * * * *
    (c) * * *
    (3) Requests for the production of documents or other evidence, for 
inspection and other purposes.
* * * * *
    (5) Upon motion of a party, the presiding administrative law judge 
may issue an order requiring a physical or mental examination of a 
party or of a person in the custody or under the legal control of a 
party.
* * * * *
    3. Section 104.540 is amended by revising the section heading, by 
removing paragraphs (a)(3) and (b)(4), and by adding paragraph (d) to 
read as follows:


Sec. 104.540  Physical and mental examinations.

* * * * *
    (d) Upon motion of any party, when the mental or physical condition 
(including the blood group) of a party or of a person in the custody or 
under the legal control of a party, is in controversy, the presiding 
administrative law judge may order the party to submit to a physical or 
mental examination by a suitably licensed or certified examiner or to 
produce for examination the person in the party's custody or legal 
control. The order may be made only on motion for good cause shown and 
upon notice to the person to be examined and to all parties and shall 
specify the time, place, manner, conditions, and scope of the 
examination and the person or persons by whom it is to be made. A 
report of the examiner shall be made in accordance with Rule 35(b) of 
the Federal Rules of Civil Procedure.

    Dated: December 17, 1993.
Roberta Achtenberg,
Assistant Secretary for Fair Housing and Equal Opportunity.
[FR Doc. 94-691 Filed 1-11-94; 8:45 am]
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