    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                           No. 10-360V
                                      Filed: February 2, 2015
                                        Not for Publication

*************************************
YAKETHA BROWN, as Parent and                   *
Natural Guardian of M.J.,                      *
                                               *
              Petitioner,                      *
                                               *
                                               *          Damages decision based on stipulation;
v.                                             *          diphtheria-tetanus-acellular pertussis (DTaP)
                                               *          vaccine; Hepatitis A (Hep A) vaccine;
SECRETARY OF HEALTH                            *          Guillain-Barré Syndrome (GBS)
AND HUMAN SERVICES,                            *
                                               *
              Respondent.                      *
                                               *
*************************************
F. John Caldwell, Jr., Sarasota, FL, for petitioner.
Ann D. Martin, Washington, DC, for respondent.

MILLMAN, Special Master

                              DECISION AWARDING DAMAGES1

        On February 2, 2015, the parties filed the attached stipulation in which they agreed to settle
this case and described the settlement terms. Petitioner alleges that her minor daughter, M.J.,
suffered Guillain-Barré Syndrome (“GBS”) that was caused by M.J.’s April 2, 2009 receipt of
diphtheria-tetanus-acellular pertussis (“DTaP”) and Hepatitis A (“Hep A”) vaccines. Petitioner
further alleges that M.J. suffered the residual effects of this injury for more than six months.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’s website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899,
2913 (Dec. 17, 2002). Vaccine Rule 18(b) states that all decisions of the special masters will be made
available to the public unless they contain trade secrets or commercial or financial information that is
privileged and confidential, or medical or similar information whose disclosure would constitute a clearly
unwarranted invasion of privacy. When such a decision is filed, petitioner has 14 days to identify and
move to delete such information prior to the document’s disclosure. If the special master, upon review,
agrees that the identified material fits within the banned categories listed above, the special master shall
delete such material from public access.
Respondent denies that DTaP and/or Hep A vaccines caused M.J.’s GBS or any other injury.
Nonetheless, the parties agreed to resolve this matter informally.

        The undersigned finds the terms of the stipulation to be reasonable. The court hereby
adopts the parties’ said stipulation, attached hereto, and awards compensation in the amount and
on the terms set forth therein. These payments represent reimbursement for all damages that
would be available under 42 U.S.C. § 300aa-15(a) (2006). Pursuant to the stipulation, the court
awards:

    a. a lump sum of $145,000.00. The award shall be in the form of a check payable to
       petitioner as guardian/conservator of M.J.’s estate; and

    b. a lump sum of $130,779.47, representing full satisfaction of any right of subrogation,
       assignment, claim, lien, or cause of action WellCare and/or the State of Georgia may have
       against any individual as a result of any Medicaid payments that WellCare and/or the State
       of Georgia has made to or on behalf of M.J. from the date of her eligibility for benefits
       through the date of judgment in this case as a result of her alleged vaccine-related injury
       suffered on or about May 5, 2009, under Title XIX of the Social Security Act. The award
       shall be in the form of a check payable jointly to petitioner and

                First Recovery Group LLC
                26899 Northwestern Hwy.
                Suite 250
                Southfield, MI 48033
                Attn: Bryan Cooley

        Petitioner agrees to endorse this payment to First Recovery Group LLC.

        In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of the
court is directed to enter judgment herewith.2

IT IS SO ORDERED.

Dated: February 2, 2015                                                            s/ Laura D. Millman
                                                                                Laura D. Millman
                                                                                Special Master

2
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                    2
               IN THE UNITED STATES COURT OF FEDERAL CLAIMS
                              OFFICE OF SPECIAL MASTERS
____________________________________
                                         )
YAKETHA BROWN, as parent and             )
natural guardian of M.J.,                )
                                         )
                      Petitioner,        )
                                         )    No. 10-360V
v.                                       )    Special Master Millman
                                         )    ECF
SECRETARY OF HEALTH AND                  )
HUMAN SERVICES,                          )
                                         )
                      Respondent.        )
____________________________________)

                                           STIPULATION

       The parties hereby stipulate to the following matters:

       1. On behalf of her minor daughter, M.J., petitioner filed a petition for vaccine

compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10

to 34 (the “Vaccine Program”). The petition seeks compensation for injuries allegedly related to

M.J.’s receipt of diphtheria-tetanus-acellular pertussis (“DTaP”) and/or Hepatitis A (“Hep A”)

vaccines, which vaccines are contained in the Vaccine Injury Table (the “Table”), 42 C.F.R.

§ 100.3(a).

       2. M.J. received DTaP and Hep A vaccines on April 2, 2009.

       3. The vaccines were administered within the United States.

       4. Petitioner alleges that M.J. suffered GBS as result of her DTaP and/or Hep A

vaccines. Petitioner further alleges that M.J. experienced the residual effects of her vaccine-

related injury for more than six months.

       5. Petitioner represents that there has been no prior award or settlement of a civil action

for damages on behalf of M.J. as a result of her condition.
          6. Respondent denies that DTaP and/or Hep A vaccines caused M.J.’s GBS or any other

injury.

          7. Maintaining their above-stated positions, the parties nevertheless now agree that the

issues between them shall be settled and that a decision should be entered awarding the

compensation described in paragraph 8 of this Stipulation.

          8. As soon as practicable after an entry of judgment reflecting a decision consistent with

the terms of this Stipulation, and after petitioner has filed an election to receive compensation

pursuant to 42 U.S.C. § 300aa-21(a)(1), the Secretary of Health and Human Services will issue

the following vaccine compensation payments:

          a. A lump sum of $145,000.00 in the form of a check payable to petitioner as
          guardian/conservator of M.J.’s estate; and

          b. A lump sum of $130,779.47, which amount represents full satisfaction of any
          right of subrogation, assignment, claim, lien, or cause of action WellCare and/or
          the State of Georgia may have against any individual as a result of any Medicaid
          payments that WellCare and/or State of Georgia has made to or on behalf of M.J.
          from the date of her eligibility for benefits through the date of judgment in this
          case as a result of her alleged vaccine-related injury suffered on or about May 5,
          2009, under Title XIX of the Social Security Act, in the form of a check payable
          jointly to petitioner and

                                      First Recovery Group LLC
                                      26899 Northwestern Hwy.
                                               Suite 250
                                         Southfield, MI 48033
                                          Attn: Bryan Cooley

          Petitioner agrees to endorse this payment to First Recovery Group LLC.

These payments represent compensation for all damages that would be available under 42 U.S.C.

§ 300aa-15(a).

          9. As soon as practicable after the entry of judgment on entitlement in this case, and after

petitioner has filed both a proper and timely election to receive compensation pursuant to

                                                   2
42 U.S.C. § 300aa-21(a)(1), and an application, the parties will submit to further proceedings

before the special master to award reasonable attorneys’ fees and costs incurred in proceeding

upon this petition.

        10. Petitioner and her attorney represent that compensation to be provided pursuant to

this Stipulation is not for any items or services for which the Program is not primarily liable

under 42 U.S.C. § 300aa-15(g), to the extent that payment has been made or can reasonably be

expected to be made under any State compensation programs, insurance policies, Federal or

State health benefits programs (other than Title XIX of the Social Security Act (42 U.S.C.

§ 1396 et seq.)), or by entities that provide health services on a pre-paid basis.

        11. Payments made pursuant to paragraph 8 and any amounts awarded pursuant to

paragraph 9 of this Stipulation will be made in accordance with 42 U.S.C. § 300aa-15(i), subject

to the availability of sufficient statutory funds.

        12. The parties and their attorneys further agree and stipulate that, except for any award

for attorneys’ fees and litigation costs, the money provided pursuant to this Stipulation will be

used solely for the benefit of petitioner as contemplated by a strict construction of 42 U.S.C.

§ 300aa-15(a) and (d), and subject to the conditions of 42 U.S.C. § 300aa-15(g) and (h).

        13. Petitioner represents that she presently is, or within 90 days of the date of judgment

will become, duly authorized to serve as guardian/conservator of M.J.’s estate under the laws of

the State of Georgia. No payments pursuant to this Stipulation shall be made until petitioner

provides the Secretary with documentation establishing her appointment as guardian/conservator

of M.J.’s estate. If petitioner is not authorized by a court of competent jurisdiction to serve as

guardian/conservator of the estate of M.J. at the time a payment pursuant to this Stipulation is to

be made, any such payment shall be paid to the party or parties appointed by a court of

                                                     3
competent jurisdiction to serve as guardian/conservator of the estate of M.J. upon submission of

written documentation of such appointment to the Secretary.

       14. In return for the payments described in paragraphs 8 and 9, petitioner, in her

individual capacity, and as legal representative of M.J., on petitioner’s own behalf, and on behalf

of M.J., her heirs, executors, administrators, successors or assigns, does forever irrevocably and

unconditionally release, acquit and discharge the United States and the Secretary of Health and

Human Services from any and all actions or causes of action (including agreements, judgments,

claims, damages, loss of services, expenses and all demands of whatever kind or nature) that

have been brought, could have been brought, or could be timely brought in the Court of Federal

Claims, under the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10 et seq.,

on account of, or in any way growing out of, any and all known or unknown, suspected or

unsuspected personal injuries to or death of M.J. resulting from, or alleged to have resulted from,

the DTaP and/or Hep A vaccinations administered on April 2, 2009, as alleged by petitioner in a

petition for vaccine compensation filed on or about June 10, 2010, in the United States Court of

Federal Claims as petition No. 10-360V.

       15. If M.J. should die prior to entry of judgment, this agreement shall be voidable upon

proper notice to the Court on behalf of either or both of the parties.

       16. If the special master fails to issue a decision in complete conformity with the terms

of this Stipulation or if the Court of Federal Claims fails to enter judgment in conformity with a

decision that is in complete conformity with the terms of this Stipulation, then the parties’

settlement and this Stipulation shall be voidable at the sole discretion of either party.

       17. This Stipulation expresses a full and complete negotiated settlement of liability and

damages claimed under the National Childhood Vaccine Injury Act of 1986, as amended, except

                                                  4
as otherwise noted in paragraph 9 above. There is absolutely no agreement on the part of the

parties hereto to make any payment or to do any act or thing other than is herein expressly stated

and clearly agreed to. The parties further agree and understand that the award described in this

Stipulation may reflect a compromise of the parties’ respective positions as to liability and/or

amount of damages, and further, that a change in the nature of the injury or condition or in the

items of compensation sought, is not grounds to modify or revise this agreement.

       18. This Stipulation shall not be construed as an admission by the United States or the

Secretary of Health and Human Services that the DTaP and/or Hep A vaccines caused M.J. to

suffer GBS or any other injury.

       19. All rights and obligations of petitioner hereunder shall apply equally to petitioner’s

heirs, executors, administrators, successors, and/or assigns.

                                    END OF STIPULATION

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                                                 5


299 F.3d 1077
KING COUNTY, a political subdivision of the State of Washington, Plaintiff-counter-defendant-Appellee,v.John RASMUSSEN; Nancy Rasmussen, husband and wife, and their marital community, Defendants-counter-claimants-Appellants.
No. 01-35610.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 13, 2002.
Filed August 9, 2002.

COPYRIGHT MATERIAL OMITTED J. Jarrette Sandlin, Sandlin Law Firm, Zillah, WA, for the defendants-counter-plaintiffs-appellants.
Howard P. Schneiderman and Scott Johnson, King County Prosecuting Attorney's Office, Seattle, WA, for the plaintiff-counter-defendant-appellee.
Appeal from the United States District Court for the Western District of Washington; Barbara J. Rothstein, Chief District Judge, Presiding. D.C. No. CV-00-01637-BJR.
Before B. FLETCHER and GOULD, Circuit Judges, and MURGUIA, District Judge.1
OPINION
BETTY B. FLETCHER, Circuit Judge.

1
This case arises from a dispute over a 100-foot-wide strip of land running along a portion of the eastern shore of Lake Sammamish in King County, Washington, that was formerly used as part of a railway corridor. King County filed suit against the Rasmussens to quiet title over this strip of land, which bisects the Rasmussens' property, and to obtain a declaratory judgment that it is entitled to quiet enjoyment of the strip.

2
King County claims it owns a fee simple estate in the strip. The Rasmussens, in turn, claim that their predecessors in interest granted only an easement over the strip and that the rights in the easement have reverted to the Rasmussens so that they now have fee simple title to the strip. The district court granted summary judgment in favor of King County and dismissed the Rasmussens' counterclaims. Because we conclude that no genuine issues of material fact exist for trial and that King County holds the strip in fee simple, we affirm.

I.
Factual and Procedural Background

3
In 1876, homesteaders Bill Hilchkanum and Mary Hilchkanum claimed property along the eastern shore of Lake Sammamish in King County, Washington. They received their final ownership certificate in 1884 and their fee patent in 1888. On May 9, 1887, the Hilchkanums conveyed an interest in the strip to the Seattle Lake Shore and Eastern Railway Company ("the Railway"). The text of the "Right of Way Deed" is as follows:

4
In consideration of the benefits and advantages to accrue to us from the location construction and operation of the Seattle Lake Shore and Eastern Railway in the County of King in Washington Territory, we do hereby donate grant and convey unto said Seattle Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands in said County described as follows to wit

5
Lots one (1) two (2) and three (3) in section six (6) township 24 North of Range six (6) East.

6
Such right of way strip to be fifty (50) feet in width on each side of the center line of the railway track as located across our said lands by the Engineer of said railway company which location is described as follows to wit [legal description in metes and bounds].

7
And the said Seattle Lake Shore and Eastern Railway Company shall have the right to go upon the land adjacent to said line for a distance of two hundred (200) feet on each side thereof and cut down all trees dangerous to the operation of said road.

8
To have and to hold the said premises with the appurtenances unto the said party of the second part and to its successors and assigns forever.

9
The deed was handwritten by a notary public.

10
Mary Hilchkanum later conveyed lots 1 and 3 of the homestead property to her husband by quitclaim deed. The conveyance is "less (3) acres right of way of Rail Road." Bill Hilchkanum then conveyed lot 1 to Chris Nelson "less three (3) acres heretofore conveyed to the Seattle and International Railway for right of way purposes." The deed by which the Hilchkanums conveyed lot 2 of their homestead property did not contain an exception for the railroad right of way. The Rasmussens claim that the right of way bisects portions of lots 2, 3, and 5.2

11
The Railway, and its successor Burlington Northern, built a track on the strip of land and used the track regularly for rail service until approximately 1996. In 1997, Burlington Northern sold its railway corridor, including the Hilchkanum strip, to The Land Conservancy of Seattle and King County ("TLC").

12
On June 11, 1997, TLC petitioned the United States Surface Transportation Board ("STB") to abandon use of the corridor for rail service under the National Trail System Act, 16 U.S.C. § 1247(d) ("Rails to Trails Act"). The STB approved interim trail use of the corridor — called railbanking — by King County and issued a Notice of Interim Trail Use. The County then purchased the corridor from the TLC and obtained title to the right of way carved from the Hilchkanum property.3

13
The Rasmussens oppose King County's efforts to railbank the right of way and claim that King County has no right to use the right of way as a trail because the Railway and its successors held only an easement for railroad purposes. As a result, King County brought this action in state court to quiet title and to obtain a declaration of its rights in the strip. The Rasmussens removed the action to federal court and counterclaimed with allegations that King County violated their First, Second, Fifth, and Fourteenth Amendment rights and violated 16 U.S.C. § 1267(d), 42 U.S.C. § 1983, 28 U.S.C. § 1358, and Article 1, Section 16 of the Washington state constitution.

14
King County moved for summary judgment on its claim to the property and moved to dismiss the Rasmussens' counter-claims for failure to state a claim and for lack of subject matter jurisdiction. In response to these motions, the Rasmussens filed two over-length briefs and a declaration from Mr. Rasmussen containing several additional pages of legal argument. King County filed its reply and moved to strike the over-length portions of the Rasmussens' briefs and the legal arguments in Mr. Rasmussen's declaration. They also moved to strike inadmissible evidence from the briefs and the declaration. The Rasmussens filed a brief in response to King County's motion to strike as well as a separate surrebuttal brief. King County moved to strike the surrebuttal brief.

15
In a published opinion, the district court struck the over-length portions of the Rasmussens' response brief as well as the legal arguments in Mr. Rasmussen's declaration. See King County v. Rasmussen, 143 F.Supp.2d 1225, 1227 (W.D.Wash. 2001). It also struck a paragraph in the response brief that indicated that Bill Hilchkanum was a Native American and was illiterate; the Rasmussens cited no evidence in support of this assertion in their brief to the district court. Id. at 1227-28. The district court also agreed to strike the surrebuttal brief. Id. at 1228. Finally, it granted King County's motion for summary judgment and dismissed the counterclaims. Id. at 1231. The Rasmussens appeal.

II.
Jurisdiction

16
The district court had jurisdiction over this removal action if King County could have brought the case in federal court in the first place. 28 U.S.C. § 1441(a). King County could have brought this action in federal court initially because the district court would have had federal question jurisdiction pursuant to 28 U.S.C. § 1331. King County's complaint included an allegation that it had a legal right to the strip of land in question even if the original deed conveyed only an easement. King County relied on 16 U.S.C. § 1247(d) as the source of this right. Thus, there was a federal question on the face of the well-pleaded complaint. See Patenaude v. Equitable Life Assurance Soc'y of United States, 290 F.3d 1020, 1023 (9th Cir.2002) ("The presence or absence of federal-question jurisdiction is governed by the well-pleaded complaint rule...." (quoting Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987)) (internal quotation marks omitted)).

17
This court has appellate jurisdiction over the district court's summary judgment pursuant to 28 U.S.C. § 1291.

III.
Motions to Strike

18
The Rasmussens argue that we should consider materials struck by the court below. The district court struck the over-length portions of the Rasmussens' briefs in response to King County's motions for summary judgment and to dismiss the counterclaims. It also struck legal arguments contained in John Rasmussen's declaration as well as the Rasmussens' surrebuttal brief.

19
The district court struck these materials on the basis of Western District of Washington Local Civil Rule 7, which limits the length of summary judgment briefs to twenty-four pages, limits the length of briefs relating to other motions to eight pages, and makes no allowance for surrebuttal briefs. Parties may file over-length briefs if they obtain prior permission from the court. The Rasmussens violated this rule by filing two thirty-four-page briefs without obtaining prior permission.4 Mr. Rasmussen's declaration added further briefing well beyond the twenty-four-page limit. Declarations, which are supposed to "set forth facts as would be admissible in evidence," should not be used to make an end-run around the page limitations of Rule 7 by including legal arguments outside of the briefs. Fed.R.Civ.P. 56(e). As for the surrebuttal brief, the Rasmussens claim that it merely contained a response to the motion to strike. This is not so. It contains legal arguments on the motion to dismiss the counterclaims. The Rasmussens filed a separate response to the County's motion to strike, which the district court considered. Thus, the district court acted properly in granting King County's motions to strike.

20
For the most part, however, the fact that this material has been struck will not affect our review. The final pages of the summary judgment response brief do not contain separate legal arguments that are waived because they were not raised in the first twenty-four pages of the brief. Instead, they contain comparisons between the facts of this case and the facts of a Washington Court of Appeals case dealing with a railroad right of way. We must consider the effect of any case relevant to the arguments raised, regardless of whether the Rasmussens briefed the particular case.

21
As for the counterclaims, the only claims not addressed in the first twenty-four pages of the brief opposing Rule 12(b) dismissal are the Rasmussens' takings claims. However, the district court did not consider these claims waived and instead dismissed them for failure to state a claim. Rasmussen, 143 F.Supp.2d at 1231 (disposing of Fifth Amendment and state constitutional takings claims). Thus, we will address all of the Rasmussens' counterclaims.

IV.
Summary Judgment

A. Standard of Review

22
A grant of summary judgment is reviewed de novo. Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.2001). This court must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id. All reasonable inferences from the evidence must be drawn in favor of the nonmoving party. Orin v. Barclay, 272 F.3d 1207 (9th Cir. 2001).

23

B. Validity of Conveyance Prior to Obtaining Fee Patent

24
The Rasmussens claim that Bill Hilchkanum did not have the power to convey anything more than an easement to the Railway because he had not perfected his title to the homestead when he made the conveyance in 1887. Under the Act of March 3, 1873, ch. 266, 17 Stat. 602 (1873),5 a homesteader could convey a right of way to a railroad before perfecting his title. The use of the term "right of way" in the statute may have limited a homesteader to conveying only an easement, not a fee simple, to a railroad.

25
However, we need not answer this question to decide this case because Bill Hilchkanum perfected his title to the homestead property in 1884, three years before he conveyed the interest in the strip of land to the Railway in 1887. He entered the subject property in 1876 and took up residence there. The Homestead Act of 1862 provided that he could receive a certificate or patent at the expiration of five years from the date of entry if he provided proof that he had resided or cultivated the land for these five years, that he had not alienated any of the land, and that he had borne true allegiance to the United States. See Homestead Act, ch. 75, 12 Stat. 392 (1862). Bill Hilchkanum submitted the necessary proof and obtained his certificate of ownership in 1884. Since he had fulfilled all the necessary conditions of ownership, his title was perfected in 1884. As a result, he did not need to act within the restrictions of the Act of March 3, 1873 to alienate his property nor did he need to include an after-acquired property clause in his conveyances; he had title free and clear and could convey to the Railway whatever he wished.

26
Although Hilchkanum did not obtain his patent deed until 1888, the Rasmussens cite no authority suggesting that the certificate of ownership did not perfect his title, and their own expert opined that Hilchkanum obtained "unqualified and perfect fee simple ownership" in 1884. Graddon Decl. Ex. 1, § 1 at 2. We affirm the district court's conclusion that there are no genuine issues of fact as to whether Hilchkanum had the power to convey a fee simple interest to the Railway in 1887.

C. Easement or Fee Simple

27
King County claims that under Washington state law the Hilchkanum deed conveyed a fee simple estate in the strip of land to the Railway. The Rasmussens argue that, even if Hilchkanum had the power to convey a fee simple estate to the Railway, he intended to convey only an easement. The district court agreed with King County, as do we.

28
A conveyance of a right of way to a railroad may be in fee simple, or it may be an easement. Veach v. Culp, 92 Wash.2d 570, 599 P.2d 526, 527 (Wash. 1979). The intent of the parties is of paramount importance in determining what interest the deed conveyed. Brown v. State, 130 Wash.2d 430, 924 P.2d 908, 911 (Wash.1996). It has been said that it is a factual question to determine the intent of the parties. Veach, 599 P.2d at 527. But the intent of parties to a deed as well as the legal consequences of that intent are in reality mixed questions of law and fact: legal rules of deed interpretation determine how the underlying facts reflect the intent of the parties. See Brown, 924 P.2d at 912 (determining intent from undisputed underlying facts on summary judgment). To ascertain the intent of the parties, one must look to the language of the deed as well as the circumstances surrounding the deed's execution and the subsequent conduct of the parties.6 Id. However, the parties must "clearly indicate" an intent to make a conveyance conditional. King County v. Hanson Inv. Co., 34 Wash.2d 112, 208 P.2d 113, 119 (1949) (cited in Brown, 924 P.2d at 912).

29
The Washington Supreme Court provided its most recent guidance on this issue in Brown.7 The Brown court identified various factors to consider in determining whether a deed conveyed a fee simple or an easement:

30
[W]e have relied on the following factors: (1) whether the deed conveyed a strip of land and did not contain additional language relating to the use or purpose to which the land was to be put, or in other ways limiting the estate conveyed; (2) whether the deed conveyed a strip of land and limited its use to a specific purpose; (3) whether the deed conveyed a right of way over a tract of land, rather than a strip thereof; (4) whether the deed granted only the privilege of constructing, operating, or maintaining a railroad over the land; (5) whether the deed contained a clause providing that if the railroad ceased to operate, the land conveyed would revert to the grantor; (6) whether the consideration expressed was substantial or nominal;8 (7) whether the conveyance did or did not contain a habendum clause, and many other considerations.

31
Brown, 924 P.2d at 912.

32
The Brown court further explained that whether the parties to a railroad right of way deed used a statutory form deed is a significant factor in determining their intent. Brown, 924 P.2d at 912; see Roeder Co. v. K & E Moving & Storage Co., 102 Wash.App. 49, 4 P.3d 839, 841 (Wash.Ct.App.2000). The court ruled that "where the original parties utilized the statutory warranty form deed and the granting clauses convey definite strips of land, we must find that the grantors intended to convey fee simple title unless additional language in the deeds clearly and expressly limits or qualifies the interest conveyed."9 Brown, 924 P.2d at 912.

33
In this case, however, the Hilchkanum deed did not follow the statutory warranty form. The statutory form is as follows:

34
The grantor (here insert the name or names and place of residence) for and in consideration of (here insert consideration), in hand paid, convey and warrant to (here insert the grantee's name) the following described real estate (here insert description), situated in the county of _______, state of Washington.

35
Laws of 1886, § 3, pp. 177-78. The Hilchkanum deed used a slightly different form:

36
In consideration of (here insert consideration), grantor (here insert name of grantor) does hereby donate grant and convey unto grantee (here insert name of grantee) the following described right of way (here insert description).

37
As a result, the Hilchkanum deed does not give rise to the presumption that the deed conveyed a fee simple. See Roeder, 4 P.3d at 843; Veach, 599 P.2d at 527 (no presumption that quitclaim deed conveyed fee simple). A failure to use the statutory warranty deed form, however, does not necessarily mean that the parties did not intend to convey a fee simple. The court must consider whether other factors indicate that the parties intended a fee simple.

38
Another factor on which the Brown court focused was if and how the deed uses the term "right of way." The court noted that use of the term in the granting clause as a limitation or to specify the purpose of the grant generally creates only an easement. Brown, 924 P.2d at 913. The term "right of way," however, can have two purposes: "(1) to qualify or limit the interest granted in a deed to the right to pass over a tract of land (an easement), or (2) to describe the strip of land being conveyed to a railroad for the purpose of constructing a railway." Id. at 914.

39
In Brown, the term "right of way" appeared only in each deed's legal description or in the description of the railroad's obligations, instead of in the granting or habendum clauses. The court concluded that "used in this manner,'right of way' merely describes a strip of land acquired for rail lines." Brown, 924 P.2d at 914. Since the term did not qualify or limit the interest expressly conveyed in the granting and habendum clauses of the deeds at issue, the court concluded it did not indicate an intent to grant an easement only.10

40
Here the term "right of way" appears in the granting clause as well as in the legal description.11 In this sense, the Hilchkanum deed suggests a possible intent to create only an easement in a way the deeds at issue in Brown did not. However, neither the granting nor the habendum clauses contains language clearly limiting the use of the land to a specific purpose. In virtually all cases where Washington courts have found only an easement, the granting or the habendum clauses contained such language. See Swan v. O'Leary, 37 Wash.2d 533, 225 P.2d 199, 199 (Wash.1950) (granting premises "for the purpose of a Railroad right-of-way"); Morsbach v. Thurston County, 152 Wash. 562, 278 P. 686, 687 (Wash.1929) (conveying a "right of way for the construction of said company's railroad"); Pacific Iron Works v. Bryant Lumber & Shingle Mill Co., 60 Wash. 502, 111 P. 578 (Wash.1910) (holding that deed providing "to have and to hold the said premises ... for railway purposes, but if it should cease to be used for a railway the said premises shall revert to said grantors" granted easement); Reichenbach v. Washington Short Line Ry. Co., 10 Wash. 357, 38 P. 1126 (Wash.1894) (construing deed which provided "so long as the same shall be used for the operation of a railroad" as an easement); King County v. Squire Inv. Co., 59 Wash.App. 888, 801 P.2d 1022, 1022 (Wash.Ct.App. 1990) (granting premises to railroad "so long as said land is used as a right-of-way by said railway Company, Expressly reserving to said grantors their heirs and assigns all their riparian rights...."). Without such additional language, the use of the term "right of way" merely "begs the question" since a railroad could own a right of way either as an easement or in fee. Brown, 924 P.2d at 914.

41
The Hilchkanum deed contained precatory language indicating that the parties expected that the right of way would be used to construct and operate a railroad, but it did not actually condition the conveyance on such use.12 Brown, 924 P.2d at 912-13. Also, in Brown, the court noted that identifying the general purpose of a conveyance, i.e., for railroad purposes, is not helpful in discerning intent because it does not clarify whether the right of way is an easement or a fee. Id. at 913.

42
One Washington case, Veach, supports the Rasmussens' contention that the mere use of the term "right of way" in the granting clause of the Hilchkanum deed, without additional language conditioning the use of the interest, creates an easement.. 599 P.2d at 527. In Veach, the 1901 deed stated: The said party of the first part, for and in consideration of the sum of Two Hundred and Twenty-five Dollars, ... do by these presents remise, release, and forever quit claim unto said party of the second part, and to its assigns, all that certain lot, piece or parcel of land situated in Whatcom County ... to-wit: "A right of way one hundred feet wide, being fifty feet on each side of the center line of the B.B. & Easter R.R..... To have and to hold, all and singular, said premises, together with the appurtenances unto the said party of the second part, and to its assigns forever."

43
Id. Like the Hilchkanum deed, the language in the Veach deed did not expressly limit the use to a particular purpose. However, the district court distinguished Veach on the basis of other language in the Hilchkanum deed and extrinsic evidence indicating an intent to convey a fee simple estate, neither of which was present in Veach. Rasmussen, 143 F.Supp.2d at 1230 n. 4.

44
First, the district court compared the Hilchkanum deed's language granting an interest in the strip of land with its language granting the Railway the right to enter the adjacent land to cut trees:

45
The deed grants a "strip" of land described in metes and bounds rather than merely a right "over" the land (as it does with the tree-cutting grant). The deed uses the word "convey" when granting the strip, which is associated with fee transfers (notably,"convey" is absent in the tree-cutting grant). See Hanson, 208 P.2d at 119.

46
Id. We agree with the district court that these factors indicate that Hilchkanum intended to convey a fee simple interest in the strip of land described. Furthermore, the fact that he explicitly limited the purpose of the Railway's right to enter the adjacent land demonstrates that he was aware of the distinction between an easement and a fee simple conveyance.13

47
The district court also looked to the behavior of the parties after the execution of the deed to the Railway, which bolsters the conclusion that the deed conveyed the right of way in fee. Rasmussen, 143 F.Supp.2d at 1230. Some of the deeds that the Hilchkanums subsequently used to convey the rest of their property explicitly excepted the strip of land belonging to the Railway. The deeds conveyed the surrounding property "less (3) acres right of way of Rail Road." By excepting the right of way in terms of acres of land, the conveyances betray an understanding that the Railway owned the strip of land and did not merely have a right to enter the strip.

48
The Rasmussens point out that the Hilchkanums did not mention the railroad right of way in the deed conveying lot 2, which is where most of the strip to which the Rasmussens lay claim is located. However, this does not bring into dispute the fact that the Hilchkanums intended a fee simple. Had they used other language in conveying lot 2 that recognized the Railway's right of way as only an easement, then a factual finding reconciling the contradictory positions might be necessary. But the total failure to except the land subject to the right of way in the lot 2 deed is not significantly probative of whether or not the parties intended to convey a fee simple estate. Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir.2000) (noting that a scintilla of evidence or evidence that is not significantly probative does not present a genuine issue of material fact).

49
Finally, the district court properly looked to the circumstances surrounding the execution of the Hilchkanum deed and concluded that they confirmed the parties' intent to convey a fee simple estate. Rasmussen, 143 F.Supp.2d at 1230. Deeds to the Railway from other landowners executed in the same year as the Hilchkanum deed used the same form but contained additional language explicitly restricting the grant to railroad purposes and providing that the interest would revert to the grantor if the railroad ceased to operate. See Squire, 801 P.2d at 1023; Northlake Marine Works, Inc. v. City of Seattle, 70 Wash.App. 491, 857 P.2d 283, 286-87 (Wash.Ct.App.1993). The differences in these deeds reflected the common practice of the railroads of using fee simple form deeds and adding language to include limitations requested by landowners. See Danaya C. Wright & Jeffrey M. Hester, Pipes, Wires, and Bicycles: Rails-to-Trails, Utility Licenses, and the Shifting Scope of Railroad Easements From the Nineteenth to the Twenty-First Century, 27 Ecology L.Q. 351, 378 (2000). The deed in question here suggests that the Hilchkanums requested no such limitations.

50
In conclusion, "[t]he language of the deed, the behavior of the parties, and the circumstances converge to show the Hilchkanums' intent to convey a fee simple." Rasmussen, 143 F.Supp.2d at 1230-31. The underlying facts are undisputed, and, viewing these facts in the light most favorable to the Rasmussens, as we must on summary judgment, we conclude that King County, as the Railway's successor, possesses a fee simple in the strip of land.14 We, therefore, affirm the district court's summary judgment in favor of King County.

V.
Counterclaims

51
The district court dismissed all of the Rasmussens' counter-claims either for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) or for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1). We review these dismissals de novo, see Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001) (reviewing 12(b)(6) dismissal de novo); La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1024 (9th Cir.2001) (reviewing 12(b)(1) dismissal de novo), and we affirm.

A. Takings

52
The Rasmussens argue that they are entitled to just compensation for the taking of their land by the government under the state constitution and the Fifth Amendment. See Wash. Const., Art. 1, § 16. Their takings claim requires a finding that the Rasmussens own the strip of land. Because King County owns the strip of land in fee simple, the Rasmussens' land was not taken, and they can state no claim for which relief can be granted.

B. Spur Line Arguments

53
The Rasmussens argue that King County's title to the right of way is invalid because the STB lacked subject matter jurisdiction to order interim trail use over the railroad right of way. They claim the rail line in question is a spur line over which the STB has no jurisdiction. As the district court wrote, "[b]y challenging the STB proceedings, the Rasmussens are asking the court to reverse an STB order." The courts of appeals have exclusive jurisdiction over any proceeding "to enjoin or suspend, in whole or in part, a rule, regulation, or order of the STB...." 28 U.S.C. § 2321(a); Dave v. Rails-to-Trails Conservancy, 79 F.3d 940, 942 (9th Cir.1996) (finding that district court has no jurisdiction to hear claims that have the practical effect of seeking review of an ICC (now STB) order).

54
No authority supports the Rasmussens' proposition that, in spite of 28 U.S.C. § 2321, the district court had jurisdiction to consider the subject matter jurisdiction of the STB. The Rasmussens cite Powelson v. United States, 150 F.3d 1103, 1105 (9th Cir.1998), which holds that a statute may create subject matter jurisdiction yet not waive sovereign immunity. They then argue that, because it is not clear whether Congress has waived sovereign immunity of the STB deliberations, there must be subject matter jurisdiction. This argument has no merit. The non-waiver of sovereign immunity does not supply subject matter jurisdiction.

55
The Rasmussens also rely on 28 U.S.C. § 1336(b), which allows a district court to refer a question or issue to the STB and to exercise "exclusive jurisdiction of a civil action to enforce, enjoin, set aside, annul, or suspend, in whole or in part, any order of the STB arising out of such referral." This case involves no such referral, and § 1336(b) does not give the district court any power to refer a question that challenges the STB's jurisdiction to issue an order that it has already issued. The STB implicitly has answered this question by asserting jurisdiction over the rail line; judicial review of the order must be obtained directly from a court of appeals as provided by 28 U.S.C. § 2321(a).

C. First Amendment

56
The Rasmussens contend that their First Amendment right to petition the government for redress has been violated because King County refused to communicate with them. In the Rasmussens' Answer and Counterclaim and in their briefing to the district court, the Rasmussens also argued that King County had violated their right to free speech. They argued that a letter from King County officials threatening to bring criminal harassment charges against Mr. Rasmussen constituted an impermissible prior restraint on his ability to say that "he shall defend his life and his property, and that he shall arm himself." The letter apparently arose after Mr. Rasmussen threatened county employees who entered the railroad right of way bisecting his land. The Rasmussens now focus only on their right to petition the government for redress of grievances.

57
Counties are liable for constitutional violations under § 1983 only if the individual officer who committed the violation was acting pursuant to a local policy, practice or custom. Monell v. Dep't of Soc. Serv., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The Rasmussens have failed to allege any local policy, practice or custom here. They attempt no response to this argument in their briefing to this court. The First Amendment claim was properly dismissed for failure to state a claim.

D. Second Amendment

58
John Rasmussen contends that King County violated his Second Amendment right to bear arms when it obtained an order prohibiting Rasmussen from possessing a gun. This claim must fail for the same reason the First Amendment claim fails — the failure to allege that the violation occurred pursuant to a county custom or practice. Id.

59

E. Fourteenth Amendment Due Process and Eminent Domain

60
The Rasmussens argue that they have lost their property right in the railroad right of way without due process of law and that their property has been condemned by the government. They also claim that King County owes them compensation for the wrongful exercise of the federal government's power of eminent domain through the STB. These claims presume that the Rasmussens held a reversionary interest in the right of way because the original deed conveyed only an easement. Because we affirm the district court's holding that the original deed conveyed a fee simple, the Rasmussens have no rights in the subject property on which to base a due process or eminent domain claim. The district court properly dismissed these claims.

F. Violations of Local Ordinances

61
The Rasmussens contend that King County violated various local ordinances in using the railroad right of way. These claims do not appear in the Rasmussens' Answer, Affirmative Defenses and Counterclaims. The Rasmussens never amended their counterclaims to include these new claims. The district court did not consider them. Neither will we.

VI.
CONCLUSION

62
We affirm summary judgment in favor of King County because there are no genuine issues of fact that disparage King County's claim to a fee simple estate in the strip of land formerly used as a railroad right of way. Further, the district court properly dismissed the Rasmussens' counterclaims under Federal Rule of Civil Procedure 12(b).

63
AFFIRMED.

Notes:

1
 The Honorable Mary H. Murguia, United States District Court Judge for the District of Arizona, sitting by designation

2
 To the extent a portion of the right of way bisects lot 5, that portion is not at issue in this quiet title action. King County bases its claim on the Hilchkanum deed conveying a right of way bisecting lots 1, 2, and 3 to the Railway. The County presented no deed conveying a right of way across lot 5 to the Railway

3
 The Rasmussens contend that King County has not provided evidence that it has an interest in a significant portion of the strip of land bisecting the Rasmussens' property. They claim that the only evidence provided by the County is a title insurance document that refers solely to the portion of the strip on Government Lot 3; only 3% of the subject strip is on Government Lot 3. However, King County has also provided the quitclaim deed by which TLC transferred its interest to King County. This deed indicates that the portion of the strip on Government Lot 2 was also conveyed; the Rasmussens assert that 96% of the strip lies on Government Lot 2. Thus, King County has submitted undisputed evidence that it has an interest in the subject property

4
 The Rasmussens claim that their failure to obtain prior approval to file over-length briefs was due to a miscommunication with the district court's law clerk. However, Rule 7 unambiguously requires prior approval to file briefs exceeding the page limitations set forth in the rule

5
 The Act provides that:
[A]ny person who has already settled or hereafter may settle on the public lands of the United States, either by pre-emption, or by virtue of the homestead law or any amendments thereto, shall have the right to transfer by warranty, against his or her own acts, any portion of his or her said pre-emption or homestead for church, cemetery, or school purposes, or for the right of way of railroads across such pre-emption or homestead, and the transfer for such public purposes shall in no way vitiate the right to complete and perfect the title to their pre-emptions or homesteads.
Act of March 3, 1873, ch. 266, 17 Stat. 602 (1873) (emphasis added). This statute remains on the books, in slightly altered form, at 43 U.S.C. § 174.

6
 A finding of ambiguity in the language of the deed is not required to consider extrinsic evidence of the surrounding circumstances and the subsequent conduct of the partiesBrown, 924 P.2d at 912; Roeder Co. v. K & E Moving & Storage Co., 102 Wash.App. 49, 4 P.3d 839, 841 (Wash.Ct.App.2000).

7
 TheBrown court examined deeds created from 1906 to 1910.

8
 The Washington courts in recent years have not given much weight to the amount of consideration in determining the intent of the parties, particularly if the record does not establish the consideration typically paid for easements as opposed to fee simple estates. For example, theBrown court did not give this factor much weight because it could not be ascertained from the record whether the consideration paid for the conveyances represented the value of an easement or a fee simple. Brown, 924 P.2d at 914. Likewise, in Roeder, 4 P.3d at 842, the Washington Court of Appeals noted that the fact that nominal consideration was paid did not reveal much because railroads paid significant amounts for both easements and fee simple purchases. In this case, the Hilchkanums received no monetary consideration for the conveyance to the railroad. However, like the nominal consideration in Roeder, the lack of monetary consideration here reveals little about the Hilchkanums' intent. Both an easement and a fee simple would have had monetary value, but the Hilchkanums declined to require any payment.

9
 Washington Revised Code § 64.04.030 states that every deed that follows the statutory warranty deed form "shall be deemed and held a conveyance in fee simple to the grantee, his heirs, and assignes...." This rule originated in 1886Roeder, 4 P.3d at 841 n. 8.

10
 In a previous case, the Washington Supreme Court had held that the legal description of the interest conveyed is part of the granting clauseVeach, 599 P.2d at 527. But Brown distinguished the language used in the legal description from the language used in the granting clause. Brown, 924 P.2d at 914.

11
 The Hilchkanum deed is also captioned as a "Right of Way Deed." However, theBrown court rejected the contention that use of the term "right of way" in the caption would preclude a holding that a deed conveyed a fee simple interest. Brown, 924 P.2d at 915.

12
 The deed provided: "In consideration of the benefits and advantages to accrue to us from the location construction and operation of the Seattle Lake Shore and Eastern Railway in the County of King in Washington Territory, we do hereby donate grant and convey unto said Seattle Lake Shore and Eastern Railway Company a right of way one hundred (100) feet in width through our lands...." DeGoojer Decl. Ex. 1 (emphasis added).

13
 The Rasmussens provided evidence to the district court that Hilchkanum could not read or write the English language, suggesting that he was not aware of the wording in the deed and its effect. While the district court struck this argument from their response brief, the evidence itself was not struck. We have considered the evidence since it is part of the district court record. Nevertheless, the evidence indicates that Hilchkanum relied on friends in transacting his business. With the help of his friends, he was able to comply with the Homestead Act and make numerous conveyances of property. There is no evidence that his friends did not assist him with the transaction with the Railway such that he understood the deed's language and could reflect his intent therein

14
 The Rasmussens argue that the Hilchkanum deed incorrectly describes the boundaries of the right of way on which the railroad tracks lie. This does not alter King County's right to the strip of land in question. According toDD & L, Inc. v. Burgess, 51 Wash.App. 329, 753 P.2d 561, 564 (Wash.Ct.App. 1988), "[t]hough the monument referred to in a deed does not actually exist at the time the deed was drafted, but is afterward erected by the parties with the intention that it shall conform to the deed, it will control." The Hilchkanum deed describes the location of the railroad right of way by referring to railroad tracks not yet erected but which were erected with the intention that the location of the tracks would conform to the deed. Thus, the location of the tracks bisecting the Rasmussens' property controls.


988 F.2d 1211
U.S.v.Barrios**
NO. 92-1591
United States Court of Appeals,Fifth Circuit.
Mar 17, 1993

1
Appeal From:  N.D.Tex.

2
AFFIRMED.

**
 Conference Calendar


60 P.3d 231 (2002)
204 Ariz. 91
Scott CANADY, an unmarried individual, Ralph and Margaret Canady, husband and wife, and Pamela Garapich, an unmarried individual, Intervening Plaintiffs-Appellants,
v.
PRESCOTT CANYON ESTATES HOMEOWNERS ASSOCIATION, Prescott Canyon Estates Homeowners Association Board of Directors, and Don Larson, President, Defendants-Appellees.
No. 1 CA-CV 02-0138.
Court of Appeals of Arizona, Division 1, Department D.
November 26, 2002.
As Amended and Redesignated as Opinion December 20, 2002.
Arizona Center for Disability Law, By Julianne H. Carter, Phoenix, Attorneys for Appellants.
James A. Simmons, Prescott, Attorney for Appellees.

OPINION
EHRLICH, Judge.
¶ 1 Prescott Canyon Estates Homeowners Association, its board of directors and its president (collectively "Association") refused to waive their community's minimum-age requirement so that a disabled person of less than that minimum age of 35 years, could reside with his parents. The trial court granted summary judgment in favor of the Association, ruling that the age restriction was lawful and did not discriminate based on *232 disability. For the reasons discussed below, we disagree, and accordingly reverse and remand for entry of judgment in favor of Ralph, Margaret and Scott Canady, and Pamela Garapich, and for such further proceedings as are necessary.

BACKGROUND
¶ 2 Prescott Canyon Estates ("Estates") is a residential community that requires at least one person fifty-five years of age or older to reside in each unit. In September 1999, Ralph and Margaret Canady, who met this age restriction, entered an agreement to buy an Estates home owned by Pamela Garapich. The Canadys' twenty-six-year-old son, Scott, who is severely developmentally disabled, lived with them because of his disability.
¶ 3 The Estates's covenants, conditions and restrictions ("CC & Rs") provide that no person less than the age of thirty-five years may reside in the community. Accordingly, when the president of the Association learned of the purchase agreement between the Canadys and Garapich, he informed Garapich that a person younger than thirty-five years could not live in the subdivision and that the restriction could not be amended or waived by the Association.
¶ 4 The Canadys and Garapich cancelled the sale, but they filed housing discrimination complaints against the Estates with the Arizona Attorney General's Office. An Assistant Attorney General concluded that there was reasonable cause to believe that the Association had unlawfully discriminated against the Canadys when it denied them the opportunity to purchase an Estates home due to their son's condition. ARIZ.REV.STAT. ("A.R.S.") § 41-1491.19 (1999). The State then brought this action against the Association, alleging that it had engaged in unlawful housing discrimination against a disabled person by failing to make a reasonable accommodation to allow Scott to live in an Estates home with his parents. The trial court allowed the Canadys and Garapich to intervene as plaintiffs.
¶ 5 The parties filed cross-motions for summary judgment based on a joint statement of stipulated facts. The trial court granted judgment in favor of the Association, finding the Estates's age restrictions to be a sanctioned form of discrimination. Although it acknowledged that the state and federal fair housing acts "require providers of housing to reasonably accommodate those with disabilities to allow them to enjoy housing on an equal basis with others," the court concluded that the Association's actions did not constitute a failure to reasonably accommodate Scott's needs because the purpose of the Estates's age restriction was lawful and did not discriminate based on disability. It further concluded that there was no disparate impact on persons with disabilities and that granting the relief requested would impede the Association's ability to protect the rights of the Estates's older residents.
¶ 6 The Canadys and Garapich appealed. In reviewing a summary judgment in a case such as this one in which there are no disputed material facts, we independently review the trial court's application of the law. Sherman v. First Am. Title Ins. Co., 201 Ariz. 564, 566 ¶ 2, 38 P.3d 1229, 1231 (App. 2002).

ANALYSIS
¶ 7 Pursuant to the federal Fair Housing Act of 1988, 42 U.S.C. § 3604(f)(1) (2000), it is unlawful
[t]o discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of
(A) that buyer or renter;
(B) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
(C) any person associated with that buyer or renter.
Discrimination includes "a refusal to make reasonable accommodations[1] in rules, policies, *233 practices, or services, when such accommodations may be necessary to afford such person equal opportunity to use and enjoy a dwelling." 42 U.S.C. § 3604(f)(3)(B). Similar provisions appear in Arizona's Fair Housing Act. A.R.S. § 41-1491.19(A), (D)(2) (1992). In addition, the Arizona Developmental Disabilities Act prohibits discrimination in housing based on developmental disability. A.R.S. § 36-551.01 (Supp.2001). See Westwood Homeowners Ass'n v. Tenhoff, 155 Ariz. 229, 236-37, 745 P.2d 976, 983-84 (App.1987)(restrictive covenant prohibiting residential facility for disabled individuals contrary to public policy established by Arizona Developmental Disabilities Act).
¶ 8 "Housing for older persons" is exempt from the familial status[2] anti-discrimination provisions in both the federal and state Fair Housing Acts. 42 U.S.C. § 3607(b) (2000); A.R.S. § 41-1491.04 (1999). Housing qualifies as "housing for older persons" if it is
intended and operated for occupancy by persons 55 years of age or older, and
(i) at least 80 percent of the occupied units are occupied by at least one person who is 55 years of age or older;
(ii) the housing facility or community publishes and adheres to policies and procedures that demonstrate the [requisite] intent ...; and
(iii) the housing facility or community complies with rules issued ... for verification of occupancy.
42 U.S.C. § 3607(b)(2)(C); see 24 C.F.R. § 100.305. There are similar provisions in the Arizona statute. A.R.S. § 41-1491.04(B). Neither the federal nor the state Act exempts housing for older persons from the provisions prohibiting discrimination against disabled persons.
¶ 9 The federal Fair Housing Act is "a broad mandate to eliminate discrimination against and equalize housing opportunities for disabled individuals." Bronk v. Ineichen, 54 F.3d 425, 428 (7th Cir.1995).[3] Because it is "a broad remedial statute," its provisions are to be generously construed and "its exemptions must be read narrowly." City of Edmonds, 18 F.3d at 804. See Massaro v. Mainlands Section 1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993), cert. denied, 513 U.S. 808, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994)("Exemptions from the Fair Housing Act are to be construed narrowly, in recognition of the important goal of preventing housing discrimination."). We thus consider whether the Association failed to make a reasonable accommodation for Scott "in rules, policies, practices or services if the accommodations may be necessary to afford the person equal opportunity to use and enjoy a dwelling." A.R.S. § 41-1491.19(D)(2). See 42 U.S.C. § 3604(f)(3)(B).[4]
¶ 10 The federal Fair Housing Act imposes an affirmative duty to reasonably accommodate disabled persons. City of Edmonds, 18 F.3d at 806. To reasonably accommodate a disabled person, an individual or group may *234 have to make an affirmative change in an otherwise valid policy, and so a reasonable accommodation may involve "changing some rule that is generally applicable so as to make its burden less onerous on the handicapped individual." Bangerter v. Orem City Corp., 46 F.3d 1491, 1501-02 (10th Cir.1995)(quoting Oxford House, Inc. v. Township of Cherry Hill, 799 F.Supp. 450, 462 n. 25 (D.N.J.1992)). A facially neutral requirement that affects disabled and non-disabled individuals alike implicates the reasonable accommodation section of the Act when it prevents a disabled individual from gaining access to proposed housing. Hill v. Cmty. of Damien of Molokai, 121 N.M. 353, 911 P.2d 861, 875-76 ¶ 45-46 (1996). The legislative history of 42 U.S.C. § 3604(f)(3)(B) suggests that
[t]he concept of "reasonable accommodation" has a long history in regulations and case law dealing with discrimination on the basis of handicap. A discriminatory rule, policy, practice or service is not defensible simply because that is the manner in which such rule or practice has traditionally been constituted. This section would require that changes be made to such traditional rules or practices if necessary to permit a person with handicaps an equal opportunity to use and enjoy a dwelling.
Shapiro, 51 F.3d at 333 (quoting H.R.REP. No. 711 (1978), reprinted in 1988 U.S.C.C.A.N. 2186 (footnotes omitted)). "One of the purposes behind the reasonable accommodation provision is to address individual needs and respond to individual circumstances." Horizon House Dev. Serv., Inc. v. Township of Upper Southampton, 804 F.Supp. 683, 699 (E.D.Pa.1992), aff'd, 995 F.2d 217 (3rd Cir.1993).
¶ 11 The reasonable accommodation requirement has been applied to zoning ordinances and other land use regulations and practices. Oxford House, Inc. v. Town of Babylon, 819 F.Supp. 1179, 1186 (E.D.N.Y. 1993)(cases cited). One example of a reasonable accommodation is to simply not enforce a restrictive covenant that operates to prevent a disabled person from living in a community. See Martin v. Constance, 843 F.Supp. 1321, 1326 (E.D.Mo.1994)("Even if there was a consistent policy and practice of enforcing the restrictive covenant against perceived violations, the Court finds that under the facts of this case the attempt to enforce the covenant constituted a refusal to make a `reasonable accommodation' necessary to afford plaintiffs an equal opportunity to use and enjoy a dwelling."); accord Hill, 911 P.2d at 876.
¶ 12 Equal opportunity gives handicapped individuals the right to choose to live in neighborhoods of their choice because that right serves to end their exclusion from mainstream society. Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 794-95 (6th Cir.1996). To succeed with their claim, aggrieved parties must show that, without an accommodation, "they likely will be denied an equal opportunity to enjoy the housing of their choice." Id. at 795. See Bronk, 54 F.3d at 429 ("concept of necessity requires at a minimum the showing that the desired accommodation will affirmatively enhance a disabled plaintiff's quality of life by ameliorating the effects of the disability"). Additionally, the accommodation must be reasonable, but an accommodation is reasonable unless it requires "`a fundamental alteration in the nature of a program' or imposes `undue financial and administrative burdens.'" Smith & Lee, 102 F.3d at 795 (quoting Southeastern Cmty. Coll. v. Davis, 442 U.S. 397, 410, 412, 99 S.Ct. 2361, 60 L.Ed.2d 980 (1979)).
¶ 13 The Association argues that it is not a reasonable accommodation to allow a person younger than the age of thirty-five years to live at the Estates because it would fundamentally alter the nature of its community. We reject this argument in conjunction with the Association's next contention.
¶ 14 The Association insists that the Estates would jeopardize its status as "housing for older persons" if it fails to uniformly enforce its CC & Rs by allowing Scott to live with his parents in an Estates home. First, allowing Scott to live with his parents in an Estates home would not have any impact on the statutory requirement that at least eighty percent of the occupied units be occupied by at least one person who is fifty-five years of age or older, see 42 U.S.C. *235 § 3607(b)(2)(C), because at least one of the senior Canadys was fifty-five years of age or older. Thus, the Canady household would be counted in the required eighty percent of units occupied by someone at least fifty-five years old even if twenty-six-year-old Scott lived in the household.[5]
¶ 15 Second, allowing Scott to live with his parents in a home in the Estates would not indicate that the Association had failed to publish and adhere to policies and procedures that demonstrate the intent that the Estates be housing for older persons. See 42 U.S.C. § 3607(b)(2)(C)(ii). By enabling Scott to live with his parents in order to avoid violating the Fair Housing Acts, the Association would not be abandoning its purpose for the community but, rather, would be acceding to compliance with federal and state laws. Such a "concession" to the law could hardly be interpreted as an intent to relinquish its status as "housing for older persons."
¶ 16 Finally, the Association argues that allowing Scott to live with his parents in an Estates home would open their community to a "flood" of other persons younger than the age of thirty-five desiring to live in the Estates. However, reasonable accommodations vary depending on the facts of each case. City of Edmonds, 18 F.3d at 806. What is reasonable in a particular circumstance is a "fact-intensive, case-specific determination." Janush v. Charities Housing Dev. Corp., 169 F.Supp.2d 1133, 1136 (N.D.Cal.2000). Thus, the Association's concern is unfounded. Indeed, the Act allows the Association to consider each request individually and to grant only those requests that are reasonable. See id. at 1136-37. Presumably, only a narrow group of persons would be entitled to the limited exception to the CC & Rs required by young persons who are disabled and whose disability requires housing with a person who is older than fifty-five years of age. See Majors v. Housing Auth. of DeKalb County Georgia, 652 F.2d 454, 458 (5th Cir. 1981)(even if "no pet" rule reasonable, reasonable inference that housing authority could make limited exception for narrow group of disabled persons who require canine companionship).

ATTORNEYS' FEES
¶ 17 The Canadys and Garapich request an award of their costs and attorneys' fees incurred in both this court and the trial court pursuant to A.R.S. § 41-1491.36 (1999). Section 41-1491.36 provides that a court in a fair housing action "shall award reasonable attorney fees and costs to a prevailing plaintiff." Accordingly, we grant the Canadys and Garapich their costs and attorneys' fees incurred in this appeal; the amount will be determined once they comply with Arizona Rule of Civil Appellate Procedure 21. Upon remand, they may apply for an award of fees in the trial court for attorneys' fees and costs incurred in that court.

CONCLUSION
¶ 18 In summary, we find that the Association violated the fair housing laws by failing to make a reasonable accommodation for Scott. We therefore reverse the judgment in favor of the Association and remand for entry of judgment in favor of the Canadys and Garapich plus such further proceedings as are necessary to determine an appropriate award of costs and attorneys' fees to the prevailing parties.
CONCURRING: WILLIAM F. GARBARINO, Presiding Judge and JON W. THOMPSON, Judge.
NOTES
[1]  The concept of reasonable accommodation was borrowed from section 504 of the Rehabilitation Act of 1973, codified at 29 U.S.C. § 794. City of Edmonds v. Washington State Bldg.Code Council, 18 F.3d 802, 806 (9th Cir.1994) (citing 1988 U.S.C.C.A.N. 2186), aff'd, 514 U.S. 725, 115 S.Ct. 1776, 131 L.Ed.2d 801 (1995); Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 334 (2d Cir. 1995).
[2]  Both Acts prohibit housing discrimination on the basis of familial status, defined in part as one or more individuals younger than the age of eighteen years domiciled with a parent or another person having legal custody of the minor or minors. 42 U.S.C. §§ 3602(k)(2000)(definition), 3604(a)-(e)(prohibition against discrimination based on familial status); A.R.S. §§ 41-1491.01 (definition), 41-1491.14 (1999)(discrimination prohibition).
[3]  Because the provisions of Arizona's Fair Housing Act involved in this appeal are virtually identical to those provisions of the federal Act, federal case authority is persuasive in interpreting Arizona's statute. Cf. Div. of Occupational Safety & Health of Indus. Comm'n of Arizona v. Chuck Westenburg Concrete Contractors, Inc., 193 Ariz. 260, 267 ¶ 28, 972 P.2d 244, 251 (App.1998) (recognizing that federal case law is persuasive in interpreting Arizona's occupational safety and health statutes); Francini v. Phoenix Newspapers, Inc., 188 Ariz. 576, 582, 937 P.2d 1382, 1388 (App.1996)(stating that, because Arizona's civil rights laws are modeled after federal laws, federal case law is persuasive in applying the Arizona statutes).
[4]  An aggrieved party alleging violations of 42 U.S.C. § 3604(f) may proceed under any or all of three theories: disparate treatment, disparate impact and failure to make reasonable accommodation. Smith & Lee Assoc., Inc. v. City of Taylor, 102 F.3d 781, 790 (6th Cir.1996). Because we decide this case based on the Association's failure to reasonably accommodate Scott, we decline to reach the disparate impact issue otherwise raised.
[5]  Indeed, we can posit the situation of a member of an Estates household of age fifty-five years or older with a spouse of an age younger than thirty-five years.


749 F.2d 32
Thompson (William Lee)v.Alexandria Correctional Center, Deputy Macdean, Deputy Clarke
NO. 84-6130
United States Court of Appeals,fourth Circuit.
NOV 01, 1984

1
Appeal From:  E.D.Va.

2
DISMISSED.


     Case: 15-50258      Document: 00514229770         Page: 1    Date Filed: 11/08/2017

           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                Fifth Circuit

                                    No. 15-50258                                FILED
                                  Summary Calendar                       November 8, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
MICHAEL S. ALEXANDER,

                                                 Plaintiff-Appellant

v.

SHERIFF GREG HAMILTON; DEPUTY PARKER; SERGEANT HARRISON;
DEPUTY BURKHART,

                                                 Defendants-Appellees

                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:14-CV-654

Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
       Michael S. Alexander, Texas prisoner # 1929892, filed a pro se civil-
rights lawsuit under 42 U.S.C. § 1983 against four employees at the Travis
County Correctional Complex (TCCC) regarding two incidents that occurred
while he was held there as a pretrial detainee. He now appeals from the
district court’s grant of summary judgment to the defendants and dismissal of

       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
    Case: 15-50258     Document: 00514229770    Page: 2   Date Filed: 11/08/2017

                                 No. 15-50258

his claims with prejudice. He also requests appointment of counsel on appeal.
His motion for appointment of counsel is DENIED.
      On appeal, Alexander argues that (1) Sheriff Greg Hamilton was liable
for his failure to supervise the other prison officials adequately, (2) TCCC’s
custom and policy caused the alleged violations, (3) Deputy Burkhart and
Deputy Parker retaliated against him, (4) the defendants’ refusal to permit
him to shower for five days created unconstitutional conditions of confinement,
and (5) Deputy Burkhart and Deputy Parker used excessive force against him.
      To the extent that Alexander sued the defendants in their official
capacities, we treat those claims as a suit against Travis County. Similarly,
Alexander’s suit against Hamilton is based on his role as a supervisory official
and not based on Hamilton’s personal involvement in the alleged violations.
Due to Alexander’s failure to provide any specific facts showing that an official
custom or policy caused the alleged constitutional violations, he cannot
establish liability for either Travis County or Hamilton. See James v. Harris
County, 577 F.3d 612, 617 (5th Cir. 2009); Thompkins v. Belt, 828 F.2d 298,
303 (5th Cir. 1987).
      Alexander’s retaliation claim fails due to the lack of direct evidence of
retaliatory motive or a chronology of events from which retaliation could
plausibly be inferred. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Similarly, Alexander’s claim regarding his alleged inability to shower for five
days fails because he has not shown that any of the defendants acted with
deliberate indifference in that regard. See Hare v. City of Corinth, 74 F.3d 633,
647-48 (5th Cir. 1996).    Moreover, examination of the summary-judgment
evidence shows that Alexander cannot show that any of the defendants used
excessive force under the circumstances in either of the incidents at issue. See
Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473-74 (2015).
      Accordingly, the district court’s judgment is AFFIRMED.

                                       2