Espinoza v. Hillwood Square Mut. Ass'n

• Decision Date: 16 September 1981
• Docket Number: Civ. A. No. 81-0303-A.
• Citation: 522 F. Supp. 559
• Parties: Celia and Enrique ESPINOZA, et al., Plaintiffs, v. HILLWOOD SQUARE MUTUAL ASSOCIATION, et al., Defendants.
• Court: U.S. District Court — Eastern District of Virginia

522 F. Supp. 559

Celia and Enrique ESPINOZA, et al., Plaintiffs, v. HILLWOOD SQUARE MUTUAL ASSOCIATION, et al., Defendants.

Civ. A. No. 81-0303-A.

United States District Court, E. D. Virginia, Alexandria Division.

September 16, 1981.

Bradley S. Stetler, Norman A. Townsend, Graber, Stetler & Townsend, Alexandria, Va., for plaintiffs Espinozas.

Robert S. Blacher, Terris & Sunderland, Washington, D. C., for plaintiffs Espinozas and Rajpal.

Brian P. Gettings, Mark D. Cummings, Cohen, Gettings & Sher, Arlington, Va., for defendants Hillwood Square and Joan Fling.

MEMORANDUM OPINION

RICHARD L. WILLIAMS, District Judge.

This matter comes before the court on the plaintiffs' joint motion for partial summary judgment under Rule 56(a). See Fed. R.Civ.P. 56(a). The plaintiffs contend that no material issues of fact remain with respect to their section 1981 claims. See 42 U.S.C. § 1981 (1976). They, therefore, move for summary judgment on the liability issue of that portion of their suit. The defendants have countered with a joint motion under Rule 12(b)(6) to dismiss the plaintiffs' Fair Housing Act allegations for failure to state a cognizable claim. See Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the court denies both the plaintiffs' summary judgment motion and the defendants' dismissal motion.

I. STATEMENT OF FACTS

Defendant Hillwood Square Mutual Association (Hillwood) is a cooperative housing association incorporated in Virginia. It owns and manages a townhouse subdivision in Falls Church, Virginia. The residents of Hillwood's subdivision do not own the townhouses in which they live. They, instead, are members of the association, which in turn owns all of the dwelling units. Each member is entitled to perpetual use of a townhouse in accordance with a contract between the member and Hillwood. Since 1977, the association has maintained a policy of refusing membership to aliens. See Minutes of Special Meeting of Board of Directors, Hillwood Square Mutual Association, September 12, 1977, at 1. At all relevant times, defendant Joan Fling has been the manager of Hillwood's subdivision.

Celia and Enrique Espinoza, alien residents of the United States, attempted to apply for membership in Hillwood on April 7, 1980. Fling denied them an application. A few days later, Fling again refused to give the Espinozas an application. On April 19, 1980, the Espinozas filed a complaint with the Human Rights Commission of Fairfax County, Virginia. In that complaint, they alleged that Hillwood had denied them membership because of their citizenship.

Vinod Rajpal, an alien resident of the United States, first attempted to become a member of Hillwood on June 25, 1980. At that time, Fling allegedly told him that he could not become a member due to his foreign citizenship. Hillwood subsequently denied membership to Rajpal on three more occasions. These refusals occurred on October 16, 1980, December 10, 1980, and February 12, 1981.

On April 6, 1981, the Espinozas and Rajpal filed suit against Hillwood in this court. The plaintiffs claim that Hillwood's citizenship policy violates both section 1981, 42 U.S.C. § 1981 (1976), and the Fair Housing Act, id. §§ 3601-3619. In particular, they allege that Hillwood's conduct constitutes discrimination on the basis of alienage and national origin. See id. §§ 1981, 3604(a). The plaintiffs contend that their suit qualifies as a class action. See Fed.R.Civ.P. 23. They seek both injunctive relief and damages.

On July 31, 1981, the Espinozas and Rajpal moved under Rule 56(a) for partial summary judgment on their section 1981 claims. They argue that no factual issues material to these claims remain unresolved. They ask the court to hold as a matter of law that the association's citizenship policy violates section 1981. Hillwood has responded with two allegations: first, it contends that it denied membership to Rajpal for reasons unrelated to his citizenship; and, second, it argues that the Espinozas had no basis for applying for membership, because they had not entered into a valid contract to purchase a townhouse.

On August 11, 1981, Hillwood countered with a motion to dismiss the plaintiffs' Fair Housing Act claims under Rule 12(b)(6). The association argues that the 180-day limitation period of section 3612(a) bars these claims. See 42 U.S.C. § 3612(a) (1976). In addition, it contends that an allegation of alienage discrimination fails to state a cognizable claim under the Fair Housing Act.

II. THE PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THEIR SECTION 1981 CLAIM

The plaintiffs' summary judgment motion presents the issue of whether section 1981 reaches private discrimination based on citizenship. The court holds that an allegation of such discrimination does state a viable claim under section 1981. The court, however, must deny the plaintiffs' motion, because material factual issues remain unresolved.

Section 1981 provides:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981 (1976). In Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), the Supreme Court held that this section reaches purely private acts of racial discrimination. See id. at 168-72, 96 S.Ct. at 2593-95. While the court has ruled that section 1981 also prohibits alienage discrimination involving state action, see Takahashi v. Fish & Game Commission, 334 U.S. 410, 419, 68 S.Ct. 1138, 1142, 92 L.Ed. 1478 (1948), the courts are divided on the issue of whether the section applies to purely private alienage discrimination. The Fifth Circuit and several district courts have held that the section does encompass such private discrimination. See, e. g., Guerra v. Manchester Terminal Corp., 498 F.2d 641 (5th Cir. 1974); Ortega v. Merit Insurance Co., 433 F.Supp. 135 (N.D.Ill.1977). One district court, however, has ruled that the legislative history requires a contrary conclusion. DeMalherbe v. International Union of Elevator Constructors, 438 F.Supp. 1121 (N.D.Cal.1977).

Section 1981 is derived from section 1 of the Civil Rights Act of 1866 (1866 Act) and section 16 of the Civil Rights Act of 1870 (1870 Act). Section 1 of the 1866 Act provided:

That all persons born in the United States and not subject to any foreign power ... are hereby declared to be citizens of the United States; and such citizens, of every race and color, ... shall have the same right ... to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens ....

Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27. This section was passed under section 2 of the thirteenth amendment to eliminate the badges and incidents of slavery. It applied only to discrimination based upon race. See Runyon v. McCrary, 427 U.S. at 168-72, 96 S.Ct. at 2593-95.

In 1869, Senator Stewart of Nevada initiated legislation to extend the protection of the 1866 Act to aliens. He first introduced the following resolution, which the Senate unanimously approved on December 6, 1869:

Resolved, That the Committee on the Judiciary be requested to inquire if any States are denying to any class of persons within their jurisdiction the equal protection of the law, in violation of treaty obligations with foreign nations and of section one of the fourteenth amendment to the Constitution, and if so, what legislation is necessary to enforce such treaty obligations and such amendment, and to report by bill or otherwise.

Cong. Globe, 41st Cong., 2d Sess. 3 (1869). On January 10, 1870, Stewart introduced S. 365.¹ See id. at 323 (1870). In February, 1870, he moved for consideration of the bill and explained its relationship to section 1 of the 1866 Act:

The original civil rights bill protected all persons born in the United States in the equal protection of the laws. This bill extends it to aliens, so that all persons who are in the United States shall have the equal protection of our laws. It extends the operation of the civil rights bill, which is well known in the Senate and to the country, to all persons within the jurisdiction of the United States. That is all there is in the bill.

Id. at 1536.

On May 16, 1870, when the Senate commenced debate on S. 810, a bill to enforce the voting rights secured by the fifteenth amendment, Stewart offered S. 365 as an amendment. See id. at 3480. After the House passed H.R. 1293, a voting rights bill similar to S. 810, the Senate took up H.R. 1293 rather than S. 810. H.R. 1293 did not contain a provision equivalent to S. 365, so Stewart offered S. 810, with his amendment, as a substitute. See id. at 3561. On May 20, 1870, Senator Stewart explained the purpose of his amendment to S. 810:

We are inviting to our shores, or allowing them to come, Asiatics. We have got a treaty allowing them to come .... While they are here I say it is our duty to protect them .... It is as solemn a duty as can be devolved upon this Congress to see that those people are protected, to see that they have the equal protection of the laws, notwithstanding that they are aliens. They, or any other aliens, who may come here are entitled to that protection.

If the State courts do not give them the equal protection of the law, if public sentiment is so inhuman as to rob them of their ordinary civil rights, I say I would be less than a man if I did not insist, and I do here insist that that provision shall go on this bill; and that the pledge of this

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