At an earlier stage in this case, OPA sought to preliminarily enjoin the Defendants from enforcing the independent-living and medical-record requirements at NHV. Laflamme v. New Horizons, Inc., 514 F. Supp. 2d 250, 252 (D. Conn. 2007). On a more limited record, the Court concluded that OPA had demonstrated "neither irreparable injury nor a clear showing of likely success on the merits" on its claim that the independent-living requirement has a disparate impact on severely disabled applicants to NHV.
The propriety of issuing a TRO is determined by the same standards governing a preliminary injunction, and are applicable to actions alleging a violation of the FHA. See, e.g., LaFlamme v. New Horizons, Inc., 514 F.Supp.2d 250, 254 (D.Conn. 2007). In the circumstances of this case, the injunctive relief Plaintiffs seek is prohibitory, rather than mandatory, and to obtain that relief Plaintiffs must demonstrate "(1) that [they] will be irreparably harmed in the absence of an injunction, and (2) either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits of the case to make them a fair ground for litigation, and a balance of hardships tipping decidedly in [their] favor."
The distinction between mandatory and prohibitory injunctions often seems ephemeral, depending more on the words used to describe the relief sought than on any meaningful difference between the classifications. See United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Regional Transit Authority, 163 F.3d 341, 348 (6th Cir. 1998) (“We . . . conclude that the distinction between mandatory and prohibitory injunctive relief is not meaningful.”); see also LaFlamme v. New Horizons, Inc., 514 F.Supp.2d 250 (D. Conn. 2007) (“[T]he difference between the two types of injunctions may be largely academic, and is further complicated by the fact that mandatory injunctions may use prohibitory language.”)
Requesting disclosure of disabilities is permissible "for the purposes of satisfying eligibility" for housing that is specifically accommodating to those with disabilities or specific needs. LaFlamme v. New Horizons, Inc., 514 F. Supp. 2d 250, 256-57 (D. Conn. 2007) (distinguishing between "necessary inquiries" and "improperly required disclosure"). Section 100.202(c), moreover, has been specifically interpreted as preempting state law that prevents all inquiries.
Where a plaintiff demonstrates a likelihood of success on the merits of a FHA claim, irreparable harm may be presumed. Laflamme v. New Horizons, Inc., 514 F.2d 250, 254 (D. Conn. 2007). Here, plaintiff has a likelihood of success on the merits because the Fair Housing Act ("FHA") prohibits discrimination on the basis of disability, which includes any "refusal to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling."