2922 Sherman Ave. Tenants' v. District of Columbia

• Citation: 444 F.3d 673
• Decision Date: 14 April 2006
• Docket Number: No. 04-7126.,No. 04-7127.,No. 04-7196.,No. 04-7174.,No. 04-7185.,04-7126.,04-7127.,04-7174.,04-7185.,04-7196.
• Parties: 2922 SHERMAN AVENUE TENANTS' ASSOCIATION, et al., Appellees/Cross-Appellants v. DISTRICT OF COLUMBIA, Appellant/Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

444 F.3d 673

2922 SHERMAN AVENUE TENANTS' ASSOCIATION, et al., Appellees/Cross-Appellants v. DISTRICT OF COLUMBIA, Appellant/Cross-Appellee.

No. 04-7126.

No. 04-7127.

No. 04-7174.

No. 04-7185.

No. 04-7196.

United States Court of Appeals, District of Columbia Circuit.

Argued January 12, 2006.

Decided April 14, 2006.

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Appeals from the United States District Court for the District of Columbia (No. 00cv00862).

James C. McKay, Jr., Senior Assistant Attorney General, Office of Attorney General for the District of Columbia, argued the cause for appellant/cross-appellee. With him on the briefs were Robert J. Spagnoletti, Attorney General, and Edward E. Schwab, Deputy Attorney General.

Philip M. Musolino was on the brief for cross-appellant Andrew J. Serafin.

Reed N. Colfax argued the cause for appellees/cross-appellants. With him on the briefs were John P. Relman, Eliza T. Platts-Mills, Bruce V. Spiva, and Hassan A. Zavareei. David W. DeBruin and Denise L. Gilman entered appearances.

Jeffrey T. Green and Joseph R. Palmore were on the brief for amici curiae National Fair Housing Alliance, et al. in support of appellees/cross-appellants. Virginia A. Seitz entered an appearance.

Before: TATEL, GARLAND, and GRIFFITH, Circuit Judges.

TATEL, Circuit Judge.

Charging that the District of Columbia targeted Hispanic neighborhoods when it decided to close certain apartment buildings for housing code violations, several tenants' groups brought both disparate treatment and disparate impact discrimination claims against the city under the Fair Housing Act (FHA) and D.C. Human Rights Act (DCHRA). The district court allowed only the FHA disparate impact claim to go to the jury, which then returned a verdict favoring the tenants with regard to one building. The city now appeals that verdict, while the tenants cross-appeal the district court's (1) order granting judgment as a matter of law to the city on their FHA disparate treatment claim, and (2) refusal to instruct the jury on their DCHRA claim. Because we agree with the city that the tenants failed to demonstrate that its actions had a disproportionate impact on Hispanics, we reverse and remand with instructions to set aside the jury verdict and grant judgment to the District on the FHA disparate impact claim. But because the tenants offered sufficient evidence of intentional discrimination to support their FHA disparate treatment claim, and because the district court should have instructed the jury on their DCHRA claim, we remand those claims for a new trial.

I.

Located just west of the border between northwest and northeast Washington, D.C., Columbia Heights is, by all accounts, a neighborhood in transition. A low-income and disproportionately Hispanic community for many years, Columbia Heights became the focus of multimillion dollar redevelopment efforts after a metro station opened there in September 1999. In April 2000, the tenants of several Columbia Heights apartment buildings sued the District of Columbia in U.S. District Court alleging that in attempting to gentrify the neighborhood — an effort that culminated in the closing or attempted closing of their buildings — the city violated federal and local fair housing laws. Both the tenants and the District filed cross-claims against the landlords. In April 2004, the tenants' claims regarding three buildings — 1512 Park Road, 1458 Columbia Road, and 2922 Sherman Avenue — went to trial. The following evidence was presented:

In early 2000, District officials launched a program, known as the "Hot Properties Initiative," to enforce the housing code aggressively in the city's "worst" multi-family apartment buildings. Supp.App. 24, 32-33. Administered by the District's Neighborhood Stabilization Program (NSP), the Initiative, according to District witnesses, was intended to protect the health and safety of building tenants. NSP officials began the Initiative by directing District housing inspectors to identify apartment buildings with the most dangerous and persistent housing code violations. This effort produced a list of approximately 75 buildings distributed evenly throughout the city (with the exception of its wealthiest neighborhoods, Dupont Circle, Georgetown, and upper Northwest). After "paring the list down," id. at 21, the NSP director passed it along to officials at NSP's overseeing agency, the Department of Consumer and Regulatory Affairs (DCRA). DCRA officials then made additional alterations to the list, removing many buildings and adding others. Soon after, NSP released a final "Hot Properties List" identifying what it said were the city's 27 worst buildings. On average, these buildings were located in neighborhoods where the percentage of Hispanic residents was 4.1 times the percentage of Hispanics in the city as a whole. Not one city witness was able to explain why the List concentrated so heavily on Hispanic neighborhoods.

After DCRA's director informed NSP officials that he wanted the Hot Properties buildings closed, NSP posted closure notices at five buildings in and around Columbia Heights, where the percentage of Hispanic residents was 4.4 times the percentage of Hispanics in the city as whole. The tenants of several buildings, including 2922 Sherman Avenue and 1458 Columbia Road, filed a motion for a temporary restraining order. The District then postponed the closure dates and eventually abandoned its efforts to close the buildings.

Several months later, however, the District targeted another Hot Properties building, 1512 Park Road, for closure. Although almost a year earlier an inspector had reported electrical problems and a missing fire escape at the Park Road building, the District not only failed to make any effort to remedy these code violations, but also gave the tenants just "a few minutes" notice before evacuating the building. J.A. 159. The city declined to provide any relocation assistance, leaving the tenants homeless.

The tenants also presented evidence that in closing 1512 Park Road and attempting to close 2922 Sherman Avenue and 1458 Columbia Road, the District strayed from its general practice of considering alternatives to closure, such as (1) using a specially designated fund, the "5-513 fund," to abate the violations and (2) seeking civil penalties against or criminal prosecution of the landlords.

In their lawsuit, the tenants argued that the District's actions violated the Fair Housing Act, 42 U.S.C. §§ 3601-3631, which prohibits discrimination in housing on the basis of (among other things) race or national origin. See id. § 3604. Although the tenants articulated two theories of discrimination, disparate impact and disparate treatment — we shall say more about the difference later — the district court concluded at the close of the tenants' case-in-chief that they had failed to provide sufficient evidence to establish disparate treatment. Accordingly, the district court granted judgment to the city on that claim. The tenants also claimed that the city's actions amounted to "place of residence" discrimination in violation of the D.C. Human Rights Act, D.C.Code § 2-1402.21(a). But the district court, finding the DCHRA inapplicable to the form of discrimination the tenants alleged, refused to instruct the jury with respect to that claim.

Thus allowed to consider only the tenants' FHA disparate impact claim, the jury found the District liable for closing 1512 Park Road, but not for posting closure notices at either 2922 Sherman Avenue or 1458 Columbia Road. After hearing additional testimony regarding damages, the jury awarded a total of $181,500 to twelve former Park Road occupants, only two of whom were Hispanic.

The District now appeals the 1512 Park Road verdict, while the tenants cross-appeal the district court's refusal to instruct the jury on their DCHRA claim and its order granting judgment as a matter of law to the city on their FHA disparate treatment claim. The landlord of 1458 Columbia Road, Andrew Serafin, also appeals, arguing that the district court erred in denying his motion to dismiss the District's cross-claim against him.

II.

We begin with the tenants' FHA claims. As relevant here, the FHA makes it unlawful

(a) To . . . make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.

(b) To discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status or national origin.

42 U.S.C. § 3604(a)-(b). As noted above, the tenants rest their FHA claim on two distinct theories. First, they argue that the record reveals evidence of disparate treatment, i.e., that in adopting the Hot Properties Initiative and selecting their buildings for closure, the District intentionally discriminated against Hispanics. Second, they argue that even if unable to prove intentional discrimination, they can nonetheless prevail because the Hot Properties Initiative had a disparate impact on Hispanics. See Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987) (describing the difference between disparate treatment and disparate impact).

Although the Supreme Court has barred constitutional disparate impact claims, see Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), it has permitted such claims when brought pursuant to federal law. In the seminal case on this issue, Griggs v. Duke Power Co., 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), the Supreme Court considered whether, absent evidence of discriminatory intent, an employment test that had a disproportionate impact on black workers could violate Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, which bars employment discrimination "because of . . . race . . . or national origin." Answering yes, the Court...