Borum v. Brentwood Village, LLC ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
:
ADRIANN BORUM, et al., : Civil Action No.: 16-1723 (RC)
:
Plaintiffs, : Re Document Nos.: 141, 143, 145,
: 146, 147, 148,
: 149, 150, 165,
v. : 166, 170, 175,
: 177
:
:
BRENTWOOD VILLAGE, LLC, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART
PLAINTIFFS’ MOTION FOR VOLUNTARY DISMISSAL; GRANTING DEFENDANTS’ MOTIONS TO
FILE UNDER SEAL; GRANTING PLAINTIFFS’ MOTIONS TO FILE UNDER SEAL; DENYING AS
MOOT DEFENDANTS’ MOTIONS TO EXCLUDE EXPERT TESTIMONY; DENYING AS MOOT
DEFENDANTS’ MOTION FOR EXTENSION OF TIME
I. INTRODUCTION
This long-running class action litigation pits a class of current residents of a housing
development in the Northeast quadrant of Washington, D.C., against the companies seeking to
redevelop the apartment complex. Plaintiffs allege that Defendants’ planned redevelopment will
disparately impact families, in violation of both the Fair Housing Act (“FHA”), 42 U.S.C. §§
3601–19 (2018), and the D.C. Human Rights Act (“DCHRA”), D.C. Code §§ 2-1401 to 2-1404
(2020), and further contend that Defendants made actionably discriminatory statements against
families that contravene these same two statutes. 1 After nearly two years of discovery,
1
The Court previously approved class representative Marita Moore to pursue Plaintiffs’
disparate impact claims. See Borum v. Brentwood Vill., LLC (Borum IV), No. CV 16-1723, 2019
WL 2437686 at *1 (D.D.C. June 11, 2019). The certified class is joined by the organizational
Defendants have moved for summary judgment. As set forth below, because Plaintiffs have
provided no evidence of a discriminatory disparate impact on the basis of “familial status,” as
defined by the controlling statutes, the Court grants Defendants’ motion for summary judgment
on Plaintiffs’ disparate impact claims. Moreover, because Plaintiff ONE DC has not established
standing to pursue the discriminatory statement claim, the court grants Defendants’ motion for
summary judgment on that claim, too.
II. BACKGROUND
A. Procedural History
This Court’s earlier opinions in this case have detailed the facts underlying Plaintiffs’
class claims. See Borum v. Brentwood Village, LLC (Borum I), 218 F. Supp. 2d 1 (D.D.C.
2016); Borum v. Brentwood Village, LLC (Borum II). 324 F.R.D. 1 (D.D.C. 2018); Borum v.
Brentwood Assocs., L.P. (Borum III), 329 F.R.D. 90 (D.D.C. 2019), Borum IV, 2019 WL
2437686; Borum v. Brentwood Vill., LLC (Borum V), 332 F.R.D. 38 (D.D.C. 2019). The Court
assumes familiarity with these dispositions and briefly reviews portions of the procedural history
to contextualize the pending motion for summary judgment.
On August 25, 2016, original plaintiffs Adriann Borum, Loretta Holloman, and ONE DC
filed suit against defendants Brentwood Village, LLC, Mid-City Financial Corporation, and
Edgewood Management Corporation alleging disparate impact discrimination and discriminatory
statements in violation of the FHA and DCHRA. Borum IV, 2019 WL 2437686, at *1. 2
plaintiff ONE DC, which, as the Court addresses infra Section IV.B, also separately pursues a
discriminatory statement cause of action. The Court’s references to “Plaintiffs” should be taken
to refer to both the class and to ONE DC, unless otherwise specified.
2
Although Borum IV cites to the original complaint, Plaintiffs have since filed an
amended complaint. “Once an amended pleading is interposed, the original pleading no longer
performs any function in the case.” 6 Charles A. Wright, Arthur R. Miller & Mary
Kane, Federal Practice and Procedure § 1476 (3d ed. 2019); see Pinson v. DOJ, 69 F. Supp. 3d
2
Plaintiffs initially alleged that the proposed redevelopment of the Brookland Manor apartment
complex would reduce the number of three-bedroom apartments and eliminate four- and five-
bedroom apartments in a way that discriminated against families. Borum IV, 2019 WL 2437686,
at *1; see also Am. Compl. ¶¶ 1–10, ECF No. 139. Plaintiffs also alleged that Defendants had
made statements that discriminated against families. Borum IV, 2019 WL 2437686, at *1; see
also Am. Compl. ¶¶ 163–78. On Plaintiffs’ motion, this Court certified the following class of
Brookland Manor plaintiffs to pursue both sets of claims under the FHA and DCHRA,
respectively:
All individuals who reside at Brookland Manor in a three-, four-, or five-bedroom
unit that houses one or more minor child and his or her guardian, and are at risk of
being displaced from a three-, four-, or five-bedroom unit at Brookland Manor as
a direct result of the proposed redevelopment.
Borum IV, 2019 WL 2437686 at *2 (quoting Borum II, 324 F.R.D. at 20). Thereafter,
Defendants moved to decertify the class, contending that the named representative, Ms. Borum, 3
could no longer adequately represent the interests of the class because she had been issued a
notice to vacate and faced possible eviction. Id. at *2 (discussing Borum III, 329 F.R.D. at 92–
93). The Court agreed that these developments with Ms. Borum created a conflict and made her
an inadequate class representative, yet declined to decertify the class and instead granted
108, 113 (D.D.C. 2014) (citing Owens v. Republic of Sudan, 412 F. Supp. 2d 99, 117 (D.D.C.
2006), aff’d and remanded on other grounds, 531 F.3d 884 (D.C. Cir. 2008). Thus, the Court
considers only the facts and allegations as stated in the amended complaint.
The Court notes that the operative, amended complaint includes individual claims by Ms.
Borum and Ms. Moore. The Court addresses Plaintiffs’ motion to dismiss (1) all claims brought
on behalf of Ms. Borum in her individual capacity and (2) Ms. Moore’s discriminatory statement
claims infra Part IV. See Plaintiffs Adriann Borum and Marita Moore’s Motion for Voluntary
Dismissal (“Pls.’ Mot. Volun. Dismissal”), ECF No. 177.
3
Ms. Holloway independently dropped her claim, making Ms. Borum the sole named
representative at the time that the motion to decertify the class was filed. See Borum IV, 2019
WL 2437686, at *2 (noting voluntary dismissal of claim).
3
Plaintiffs the opportunity to substitute another representative. Id. (citing Borum III, 329 F.R.D.
at 100–01).
On February 6, 2019, Plaintiffs moved to substitute Marita Moore as the class
representative. Id. This Court approved Ms. Moore to represent the class’s disparate impact
claim and decertified the class with respect to Plaintiffs’ discriminatory statements claim. Id. at
*12. Thus, only the individual named plaintiffs and organizational plaintiff ONE DC continued
to press the discriminatory statements claim. Id. Plaintiffs then filed an amended class action
complaint, see Am. Compl., ECF No. 139, and the parties completed discovery. Contending that
Plaintiffs have not established any viable claim for relief, Defendants now move for summary
judgment on all claims.
B. Plaintiffs’ Disparate Impact Claim 4
In their discriminatory disparate impact claim, Plaintiffs contest Defendants’ plan to
redevelop the approximately 465 apartment units that residents presently occupy at Brookland
Manor. Pls.’ Response to Defs.’ SUMF 3. This apartment complex, located in Ward 5,
Northeast, in Washington, D.C., id.; see also id. at 52, was home to 193 households with minor
children as of February 12, 2018, id. at 52. Many of these households include larger families,
most of whom reside in three-, four-, and five-bedroom apartment flats. Id. at 52. Defendants’
initial application to the D.C. Zoning Commission indicated plans to replace the existing
4
On a motion for summary judgment, the Court accepts the non-movant’s evidence—
here, Plaintiffs’—as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970) (“The evidence of the non-movant is
to be believed, and all justifiable inferences are to be drawn in his favor.”). Unless otherwise
indicated, the reporting of the facts here and throughout the Court’s opinion draws from portions
of Defendants’ statement of undisputed material facts that Plaintiffs have indicated are not in
dispute or evidence that Plaintiffs have put forth to be tried. See generally Am. Compl.; Pls.’
Combined (1) Response to Defs.’ Statement of Undisputed Material Facts and (2) Statement of
Genuine Issues to be Tried (“Pls.’ Response to Defs.’ SUMF”), ECF No. 165-3.
4
apartment structures with approximately 1,646 to 2,200 new residential units. Id. at 54. The
final Zoning Commission Order reflected plans to construct 1,646 new units, id. at 96–97 (citing
Zoning Commission Order ¶ 52, ECF No. 141-4), without any stated plans to construct four- or
five-bedroom apartments at the redeveloped Brookland Manor, id. at 55. 5 Plaintiffs also state
that Defendants proposed reducing the number of three-bedroom units, id. at 55, a charge that
Defendants contest on the basis that they never specified the maximum number of three-bedroom
units that would be constructed, Defs.’ SMF 98 (“Defendants . . . committed to the Zoning
Commission on April 10, 2015 to build at least 64 three[-]bedroom units.” (emphasis removed)).
The final unit mix for the community remains undetermined. Pls.’ Response to Defs.’ SUMF 8.
Notwithstanding the fact that the unit mix could change, Plaintiffs urge that the initially proposed
changes in unit size, and especially the elimination of four- and five-bedroom flats, will
disparately impact the large families who have made Brookland Manor home. See id. at 40, 44–
45, 52. Plaintiffs’ references to “families” invoke families in the colloquial sense, as opposed to
tracking “familial status” as defined by the FHA and DCHRA. 6 Thus, Plaintiffs discuss families
as households with minor children, id. at 45, potentially including multiple generations under the
same roof, id. at 53–54 (suggesting benefits where multigenerational families reside together). 7
5
As Defendants mention many times in their motion for summary judgment and filings
in support thereof, Defendants “have committed to accommodating all current residents . . . and
constructing four- and five-bedroom apartment flats if those flats are needed to meet that
commitment.” Defs.’ Reply to Pls.’ Combined (1) Response to Defs.’ Statement of Undisputed
Material Facts and (2) Statement of Genuine Issues to be Tried (“Defs.’ SMF”) 97, ECF No.
175-3 (citing ECF No. 141-9; ECF No. 141-5; ECF No. 141-36). This abstract commitment
does not change the fact that there is no binding requirement to construct any such units, nor
does it alter the fact that none of the redevelopment plans state that any such units will be
constructed unless it expressly proves necessary.
6
The Court addresses this issue in detail infra Section IV.A.1.
7
The Court notes that Defendants have moved to exclude the expert testimony from
which these suggestions are derived as irrelevant and unreliable. See Defs.’ SMF 94 (citing
Defs.’ Mot. to Exclude Lance Freeman’s Expert Test., ECF No. 148). The Court mentions this
5
C. Plaintiffs’ Discriminatory Statements Claim
Plaintiffs also bring discriminatory statements claims based on certain statements that
Defendants made about the planned community while obtaining approval from the D.C. Zoning
Commission and while communicating with the residents of Brookland Manor. First, Defendant
Mid-City8 told the Zoning Commission that it “does not propose to construct four[-] or five[-]
bedroom units” because “housing very large families in apartment complexes is significantly
impactful upon the quality of life of households as well as their surrounding neighbors.” Pls.’
Response to Defs.’ SUMF 55–56 (quoting Apr. 10, 2015 Letter to D.C. Zoning Commission
(“Apr. 10, 2015 Letter”) 6, ECF No. 4-13). This same letter, as Defendants note, indicated
elsewhere that Mid-City was “committed to allow all households that reside at Brookland Manor
at the commencement of the redevelopment in early 2018 with the right to return to the new
Brentwood Village community.” Defs.’ SMF 100 (quoting Apr. 10, 2015 Letter 4).
Similar statements were also made in two communications with residents. In November
2014, Defendant Mid-City informed the Brookland Manor/Brentwood Village Residents
Association (“BM/BV RA”) that it did not propose constructing four- or five-bedroom units
because its “practical experience has demonstrated that it is not an ideal housing type for larger
families and there are adverse impacts on the remainder of the community.” Nov. 19, 2014
Letter to BM/BV RA (“Nov. 19, 2014 Letter”) 8, ECF No. 4-19. 9 This same letter, as
Defendants emphasize, also stated that Defendants’ “objective will be to assist large families that
point here only to indicate the manner in which Plaintiffs define a “family” and discusses this
issue more infra Section IV.A.1.
8
Defendant Mid-City Financial Corporation owns Brookland Manor Apartments. See
Pls.’ Response to Defs.’ SUMF 1–2.
9
Because this document includes both a paginated letter and an unpaginated enclosure,
the Court uses the ECF page numbers to refer to the document.
6
currently reside in four and five bedroom apartments by preparing them for homeownership
opportunities in the new townhomes,” and that the “renewed community” would be “family
friendly.” Defs.’ SMF 141–42 (quoting Nov. 19, 2014 Letter 3, 7). Later, in a letter written
directly to residents of Brookland Manor, Defendant Mid-City stated that the “new community
will not include new 4BR and 5BR apartment units as these large units are not consistent with
the creation of a vibrant new community.” Id. at 141 (quoting Jan. 20, 2015 Letter to Brookland
Manor Residents (“Jan. 20, 2015 Letter”) 1, ECF No. 4-20). Defendants again emphasize that
this letter reiterated a commitment to assist residents by “work[ing] through their personal
objectives and options[,] which may include housing qualified multi-generational families in two
units, down-sizing into a 3BR unit, or being provided the opportunity to acquire one of the ‘for
sale’ townhomes.” Id. at 142 (quoting Jan. 20, 2015 Letter 1–2). No other specific statements by
Defendants are described in Plaintiffs’ filings.
III. LEGAL STANDARD
Summary judgment is proper when “the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). A “material” fact is one capable of affecting the substantive outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is “genuine” if there is
enough evidence for a reasonable finder of fact to decide in favor of the non-movant. See Scott
v. Harris, 550 U.S. 372, 380 (2007). In addition, “the plain language of Rule 56(c) mandates the
entry of summary judgment” if, “after adequate time for discovery and upon motion,” the non-
movant “fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). Such a “complete failure of proof concerning an essential
7
element of the nonmoving party’s case necessarily renders all other facts immaterial,” and the
movant is therefore entitled to summary “judgment as a matter of law.” Id. at 323 (quoting
Anderson, 477 U.S. at 250).
More generally, summary judgment endeavors to streamline litigation by disposing of
factually unsupported claims or defenses and thereby determining whether trial is genuinely
necessary. See Celotex, 477 U.S. at 323–24. The movant bears the initial burden of identifying
portions of the record that demonstrate the absence of any genuine issue of material fact. See
Fed. R. Civ. P. 56(c)(1). In response, the non-movant must point to specific facts in the record
that reveal a genuine issue that is suitable for trial. See Celotex, 477 U.S. at 324. In considering
a motion for summary judgment, a court must “eschew making credibility determinations or
weighing the evidence[,]” Czekalski v. Peters, 475 F.3d 360, 363 (D.C. Cir. 2007), and all
underlying facts and inferences must be analyzed in the light most favorable to the non-movant,
see Anderson, 477 U.S. at 255. Nevertheless, conclusory assertions offered without any
evidentiary support do not establish a genuine issue for trial. See Greene v. Dalton, 164 F.3d
671, 675 (D.C. Cir. 1999).
IV. ANALYSIS
The Court first considers Plaintiffs’ disparate impact claim and then addresses Plaintiffs’
discriminatory statements claim. For the reasons set forth below, Plaintiffs cannot survive
Defendants’ motion for summary judgment on either claim.
8
A. Discriminatory Disparate Impact Claim
To situate the central arguments that both parties make, the Court will first provide a brief
overview of the relevant statutory provisions and then address the specific points at issue here. 10
1. Statutory Protections for Families
As mentioned previously, Plaintiffs bring their disparate claim pursuant to two statutes:
the FHA, 42 U.S.C. § 3601–19, and the DCHRA, D.C. Code §§ 2–1401 to 2–1404. The FHA
was enacted in 1968 to combat “the denial of housing opportunities on the basis of ‘race, color,
religion, or national origin,” and—as relevant here—was amended in 1988 to include “‘familial
status’ as a protected characteristic.” Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive
Communities Project, Inc. (Inclusive Communities), 135 S. Ct. 2507, 2516 (2015) (first quoting
Civil Rights Act of 1968, § 804, Pub. L. 90–284, 82 Stat. 83 (1968) (codified at 42 U.S.C. §
3604 (2018)), then citing Fair Housing Amendments Act of 1988, Pub. L. 100–430, 102 Stat.
1619 (1988) (codified at 42 U.S.C. § 3602 (2018)); see 42 U.S.C. § 3604 (2018) (prohibiting
discrimination on the basis of “race, color, religion, sex, familial status, or national origin”).
This 1988 addition aimed to “protect against familial status discrimination in light of an express
concern for the plight of single-parent families, young families with children, and poor families.”
10
Although Defendants’ arguments concerning this claim contest ONE DC’s standing,
for the following reasons, the Court does not discuss standing here. This disparate impact claim
was originally pursued by the class, by Ms. Borum in her individual capacity, and by
organizational plaintiff ONE DC. See generally Am. Compl. This Court previously found that
Ms. Moore may serve as the class representative for the class with respect to the disparate impact
claim, see Borum IV, 2019 WL 2437686, such that the certified class has standing to pursue this
claim. “To establish jurisdiction, the court need only find one plaintiff who has standing.”
Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. Cir. 2014) (citing Comcast Corp. v. FCC, 579
F.3d 1, 6 (D.C. Cir. 2009)). Thus, the Court need not consider ONE DC’s standing to assert any
of its claims, see Defs.’ Mem. in Supp. of Mot. for Summ. J. (“Defs.’ Mot.”) 47, ECF No. 143-
16, to resolve Defendants’ motion for summary judgment on Plaintiffs’ disparate impact claim.
The Court separately addresses ONE DC’s standing with respect to Plaintiffs’ discriminatory
statements claim, for which ONE DC is the sole claimant, infra Section IV.B.
9
Borum II, 324 F.R.D. at 12 (quoting United States v. Branella, 972 F. Supp. 294, 297 (D.N.J.
1997) (internal quotation marks omitted)). The 1988 amendment defines familial status as:
[O]ne or more individuals (who have not attained the age of 18 years) being
domiciled with[:] (1) a parent or another person having legal custody of such
individual or individuals; or (2) the designee of such parent or other person having
such custody, with the written permission of such parent or other person.
42 U.S.C. § 3602(k) (2018).
The DCHRA provides similar protections and aims to “secure an end in the District of
Columbia to discrimination for any reason other than individual merit, including, but not limited
to, discrimination by reason of race, color, . . . [or] familial status.” D.C. Code § 2-1401.01.
Under the DCHRA, “familial status” is defined as:
[O]ne or more individuals under 18 years of age being domiciled with: (1) a parent
or other person having legal custody of the individual; or (2) the designee, with
written authorization of the parent, or other persons having legal custody of
individuals under 18 years of age.
Id. at § 2-1401.02.11A. Thus, the definition of “familial status” under the FHA and DCHRA is
identical for all purposes relevant to the pending suit.
Disparate impact claims alleging a discriminatory impact on a protected class, such as
familial status, are cognizable under the FHA, see Inclusive Communities, 135 S. Ct. at 2525,
and recognized under the DCHRA. 11 Prevailing on a claim of discriminatory disparate impact
11
The DCHRA’s “effects clause” provides that “‘[a]ny practice which has the effect or
consequence of violating any of the provisions of this chapter shall be deemed to be an unlawful
discriminatory practice.” D.C. Code § 2-1402.68. Moreover, “[t]he D.C. Court of Appeals has
held that this ‘effects clause’ imports into the Act ‘the concept of disparate impact discrimination
developed by the Supreme Court in Griggs v. Duke Power Co.’” 2922 Sherman Ave. Tenants’
Ass’n v. District of Columbia, 444 F.3d 673, 685 (D.C. Cir. 2006) (quoting Gay Rights Coal. v.
Georgetown Univ., 536 A.2d 1, 29 (D.C. 1987)). Because Inclusive Communities specifically
noted that “[t]he logic of Griggs . . . provides strong support for the conclusion that the FHA
encompasses disparate-impact claims,” 135 S. Ct. at 2511, and because neither party argues that
the analysis under the FHA should depart from the analysis under the DCHRA, the Court
10
on a protected class such as “familial status” requires a plaintiff to “offer sufficient evidence to
support a finding that the challenged policy actually disproportionately affected a protected
class.” 2922 Sherman Ave. Tenants’ Ass’n, 444 F.3d at 681 (emphasis in original). The
Department of Housing and Urban Development (“HUD”) has promulgated regulations to carry
out its statutory “authority and responsibility for administering” the FHA. See 42 U.S.C. §§
3608(a), 3614a (2018); Mhany Mgmt., Inc. v. Cty. of Nassau, 819 F.3d 581, 618 (2d Cir. 2016).
In resolving the pending motion, “the Court ‘must defer to [HUD]’s reasonable interpretation’ of
the FHA with respect to its rules on disparate impact.” Borum I, 218 F. Supp. 3d at 21 (quoting
Mhany Management, 819 F.3d at 618) (citing Boykin v. Fenty, 650 Fed. Appx. 42, 44 (D.C. Cir.
2016) (expressing approval of Mhany Management)). HUD has set out a well-established
burden-shifting framework to apply to disparate impact claims. 12 See 24 C.F.R. § 100.500(c).
At the first step, the plaintiff has the “burden of proving that a challenged practice caused or
predictably will cause a discriminatory effect.” Id. § 100.500(c)(1). If the plaintiff makes such a
showing, then the burden shifts to the defendant, who must “prov[e] that the challenged practice
is necessary to achieve one or more [of its] substantial, legitimate, nondiscriminatory interests.”
Id. § 100.500(c)(2). Thereafter, even if the defendant carries this burden, the “plaintiff may still
prevail upon proving that the substantial, legitimate, nondiscriminatory interests supporting the
assumes arguendo that the disparate impact cause of action under these two statutes is identical
and discusses them together.
12
On August 19, 2019, HUD issued a proposed rule intended to, if adopted, “amend
HUD’s interpretation of the Fair Housing Act’s disparate impact standard to better reflect the
Supreme Court’s 2015 ruling in [Inclusive Communities].” HUD’s Implementation of the Fair
Housing Act’s Disparate Impact Standard, 84 Fed. Reg. 42854 (proposed Aug. 19, 2019) (to be
codified at 24 C.F.R. pt. 100). Because no final rule has been issued, the Court discusses and
applies the operative final rule that HUD promulgated in 2013.
11
challenged practice could be served by another practice that has a less discriminatory effect.” Id.
at § 100.500(c)(3).
As is the case here, disparate impact plaintiffs often rely on statistical analyses to
discharge their step one burden. Borum I, 218 F. Supp. 3d at 22 (citing R.I. Comm’n for Human
Rights v. Graul, 120 F. Supp. 3d 110, 124–25 (D.R.I. 2015); Gashi v. Grubb & Ellis Prop.
Mgmt. Servs., Inc., 801 F. Supp. 2d 12, 16–17 (D. Conn. 2011)). In attempting to meet this
burden, “[a] plaintiff who fails to . . . produce statistical evidence demonstrating a causal
connection [between a defendant’s challenged policy and the asserted discriminatory disparate
impact] cannot make out a prima facie case of disparate impact.” Inclusive Communities, 135 S.
Ct. at 2523; see also Boykin, 650 F. App’x at 45 (quoting Inclusive Communities, 135 S. Ct. at
2523). The Court next considers whether Plaintiffs have carried their burden at step one or
whether, as Defendants contend, their claim falters at this threshold stage. For the following
reasons, Defendants have the better argument. 13
2. Plaintiffs’ Allegations of Disparate Impact on Families 14
The statutory definition of what does and does not make up a “family” (and accordingly,
what does and does not represent disparate impact based on familial status) lies at the heart of the
13
Because the Court reaches this conclusion, it does not address the parties’ arguments
concerning subsequent steps of the disparate impact burden-shifting framework.
14
The amended complaint included both the certified class’s disparate impact claims and
disparate impact claims that Ms. Borum brought on her own behalf. Am. Compl. ¶ 1. Plaintiffs
have moved pursuant to Federal Rule of Civil Procedure 41(a)(2) to voluntarily dismiss with
prejudice all claims that Ms. Borum pursued in her individual capacity. Pls.’ Mot. Volun.
Dismissal 1. Defendants agree that the Court should dismiss these claims with prejudice,
though they contest Plaintiffs’ request for fees and costs. Defendants’ Mem. Part. Opp’n to Pls.
Adriann Borum and Marita Moore’s Mot. for Voluntary Dismissal (“Defs.’ Mem. Part. Opp’n”)
1, ECF No. 178.
Rule 41(a)(2) permits dismissal of an action by court order “on terms that the court
considers proper.” Fed. R. Civ. P. 41(a)(2). “Federal courts generally grant dismissals
under Rule 41(a)(2) ‘unless the defendant would suffer prejudice other than the prospect of a
12
parties’ dispute. Defendants contend, as they have from the onset of this litigation, that
Plaintiffs’ claims fail for a simple reason: Plaintiffs have not provided evidence of any disparate
impact based on “familial status” in the manner that the FHA and the DCHRA demand. Defs.’
Mot. 26 (“When the law is properly applied to the undisputed facts, Plaintiffs cannot demonstrate
that the redevelopment will have a disparate impact on families.”). Plaintiffs rebut that this
understanding reflects an improperly restrictive definition of a “family.” Pls.’ Corrected Mem.
P. & A. in Opp’n. to Defs.’ Mot. for Summ. J (“Pls.’ Opp’n”) 21, ECF No. 170-3 (“The FHA’s
definition of ‘family’ is broader than Defendants purport it to be.”). According to Plaintiffs, it is
a mistake to read the statutory definition of “familial status” in terms of a parent (or legal
custodian or designee) and associated minor in a way that excludes an intergenerational family.
Id. Rather, “[a] family consisting of a parent, a child, and a grandparent still qualifies as a
‘family’ under this definition.” Id. Thus, Plaintiffs argue that breaking up an intergenerational
family “harms the immediate family” in a way that is “actionable under the FHA.” Id.
Without expressing an opinion on Plaintiffs’ argument as a policy matter, the Court
begins by turning to the relevant law. In Borum I, 218 F. Supp. 3d 1, this Court considered
similar points made by the parties in the context of addressing Defendants’ opposition to
second lawsuit or some tactical disadvantage.’” Allen v. Mnuchin, No. CV 18-1214, 2019 WL
2581323, at *5 (D.D.C. June 24, 2019) (quoting Robinson v. England, 216 F.R.D. 17, 18 (D.D.C.
2003); see also Conafay v. Wyeth Labs., 793 F.2d 350, 353 (D.C. Cir. 1986); 9 Charles A.
Wright, Arthur R. Miller, Federal Practice and Procedure § 2364 (3d ed. 2019). Here, because
Defendants move for summary judgment on this same claim, there is no evidence that dismissal
of Ms. Borum, standing alone, would prejudice Defendants. To be sure, Plaintiffs’ motion for
voluntary dismissal mentions certain fee disputes between the parties, see Pls.’ Mot. Volun.
Dismissal 1, which Defendants argue would result in prejudice to Defendants, see Defs.’ Mem.
Part. Opp’n 4. The Court will consider any motions for fees and costs concerning these plaintiffs
if any shall be filed. At present, the Court finds it proper to dismiss Ms. Borum’s disparate
impact claims, and, accordingly, grants in part Plaintiffs’ motion with respect to this dismissal
while expressing no opinion concerning fees and costs. The Court thus considers only the
certified class’s disparate impact claims in the following analysis.
13
Plaintiffs’ motion for a preliminary injunction. As the Court explained therein, the structure of
the FHA and controlling precedent concerning its provisions bear heavily on resolution of this
suit:
It is important to note that the FHA is generally a repository of negative rights—it
does not affirmatively provide special privileges to parents living with minor
children, but rather protects them from discriminatory acts. For example,
the FHA does not entitle families to occupy units in excess of nondiscriminatory,
reasonable occupancy requirements that apply to the population in general.
Borum I, 218 F. Supp. 3d at 21 (first citing Inclusive Communities, 135 S. Ct. at 2522, then citing
Fair Hous. Advocates Ass’n, Inc. v. City of Richmond Heights, Ohio, 209 F.3d 626, 636 (6th Cir.
2000); City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 733 (1995)).
With this background point in mind, this Court previously expressed skepticism
regarding Plaintiffs’ ability to demonstrate the requisite disparate impact on families, as that term
is defined by the FHA. Although the Court found Plaintiffs’ theory plausible to survive the
motion-to-dismiss stage, it cautioned that the methodology that Plaintiffs used to allege a
disparate impact on families “comes up short in showing that ‘families’—as defined by the
FHA—will necessarily be forced to relocate away from the property at a disproportionate rate.”
Borum I, 218 F. Supp. 3d at 26 n.13. As the Court emphasized, a plain reading of the FHA
indicates that the statute protects only minor children living with parents (or similar guardians).
Id. (citing 42 U.S.C. § 3602(k)). The definition of “family” does not, for example, “encompass
groups of more than one family.” Id. (first citing 42 U.S.C. § 3602(k), then quoting Doe v. City
of Butler, 892 F.2d 315, 326 (3d Cir. 1989) (Roth, J., dissenting)). “Thus, a group of people
cannot talismanically receive protection under the FHA just because one of them happens to be a
parent domiciled with a minor child.” Id.
At this later stage of litigation, this Court holds Plaintiffs to a higher standard that the
evidence Plaintiffs provide does not clear. The fundamental issue is fairly straightforward:
despite pages and pages of briefings, Plaintiffs never offer any statistical analysis or other
14
evidence that indicates how the proposed development will disparately impact families when
family is construed in terms of the protected class defined by the FHA (e.g., in terms of familial
status). Instead, as indicated above, Plaintiffs’ evidence relies on a definition of a family that
diverges from the FHA’s definition of familial status. Specifically, the definition of a family that
Plaintiffs use to allege disparate impact is “families with minor children who reside in three-,
four-, and five-bedroom units,” as compared to non-families who reside in the same type of
housing.” Pls.’ Opp’n 22; see also id. (“Dr. Beveridge identified families (in various
configurations with respect to adult household members, but with the presence of at least one or
more minor children) as the protected group affected by the neutral policy—Defendant’s
redevelopment plan[.]”). This definition thus counts, in calculating who is part of a particular
family, individuals who cannot claim “familial status” under the FHA (which, again, is restricted
to minor children residing with a parent or other designated individual with legal custody).
Plaintiffs’ reliance on this broader, non-FHA definition of a family dooms their
argument. On the record before the Court, Plaintiffs’ statistical evidence of disparate impact
only uses this broader definition. See id.; Defs.’ Mem. P. & A. in Supp. of Mot. for Summ. J.
(“Defs.’ Mot.”) 36, ECF No. 143-16 (noting that Defendants’ expert used statutory definition of
“familial status” in calculations and contrasting to Plaintiffs’ analysis); Defs.’ Reply in Supp. of
Mot. Summ. J. (“Defs.’ Reply”) 9, ECF No. 175-1 (“Plaintiffs’ disparate impact analysis . . .
use[s] a broader definition of families.”). And because Plaintiffs’ definition does not require a
direct connection between parent (or legal guardian) and a minor child to establish familial
status, it sweeps in more individuals, “bring[ing] in all children” and other adults living under the
same roof, “regardless of custody arrangements and the head of household’s ‘partners’ and ‘live-
in-aids.’” Defs.’ Reply 9 (citing Expert Report of Andrew Beveridge (“Beveridge Report”) ¶ 11
15
& Ex. A, ECF No. 141-28). Thus, by way of example, in a household consisting of a
grandfather, an aunt, a great-grandmother, a mother and her minor child, a nephew from the
father’s side of the family, and the great-grandmother’s live-in aid, Plaintiffs’ disparate impact
analysis would include all seven individuals as part of the family. The FHA’s definition, in
contrast, would count only two individuals: the mother and her biological child. But increasing
the number of individuals in a family in the manner that Plaintiffs do has a problematic
consequence: in comparison to the observed effect on “families” for a statistical analysis that
applies the statutory definition as the relevant comparison group, Plaintiffs’ definition risks
“overstating the effect of any redevelopment on families” as compared to non-families residing
in otherwise similar units. Id. For instance, under the above hypothetical, Plaintiffs’ analysis
would include seven individuals in the affected protected class, whereas the FHA’s definition
would include just two individuals. Because Plaintiffs do not explain why the observed effect,
applying their definition, is not overstated or otherwise provide evidence that, applying the
statutory definition, the planned reduction in larger-sized apartments would require the relocation
of families in a way that creates a disparate impact, they never confront this problem directly.
Rather than provide such evidence, Plaintiffs rely on the contention that the alleged harm
to the “immediate family” (a term that the Court takes to refer to the narrower, FHA definition of
a family unit) from breaking up the intergenerational family is actionable under the FHA. 15 Pls.’
15
As mentioned previously, Plaintiffs’ argument here relies on expert testimony from
two individuals, Dr. Lance Freeman and Dr. Andrew Beveridge, see Pls.’ Opp’n 21–22.
Defendants have moved to exclude the testimony of both of these experts. See Defs.’ Mot. to
Exclude Lance Freeman’s Expert Test., ECF No. 148; Defs.’ Mot. to Exclude Andrew
Beveridge’s Expert Test., ECF No. 146. For purposes of this analysis, the Court assumes
arguendo that this expert testimony is admissible. Because the Court ultimately concludes that
Plaintiffs’ evidence does not satisfy their burden at the first step of the disparate impact analysis,
this assumption does not prejudice Defendants. And in any event, by discussing Dr. Beveridge’s
16
Opp’n 21. This argument seems to rest on a causal chain wherein (1) because breaking up
multigenerational families will affect some of the individuals in those families who happen to
have “familial status,” (2) a showing of disparate impact on all of the members of the
multigenerational family suffices to sustain Plaintiffs’ claim.
However, Plaintiffs’ argument falters because it conflates two analytically distinct points:
the aggrieved class that has standing to sue and the protected class that is in fact covered by the
statute. Although this Court did look to the broader definition in determining Plaintiffs’ standing
to sue under the FHA, Borum II, 324 F.R.D. at 13 (noting the broad meaning of “aggrieved
person” in the familial status context), Defendants are correct in emphasizing that, at the merits
stage, the Court must consider the disparate impact on the “protected class,” Defs.’ Reply 9
(citing 2922 Sherman Ave. Tenants’ Ass’n, 444 F.3d at 681). At this summary judgment stage,
Plaintiffs’ case falls on their failure to provide statistical evidence of a disparate impact from the
proposed redevelopment on only the members of the protected class, as the Court just discussed.
See Beveridge Report ¶ 32 (analyzing effect of proposed redevelopment on broader category first
on “all household members” and then on “immediate family and aides only”). And without such
evidence, the Court cannot say that Plaintiffs have carried their threshold burden based on
submission of statistical evidence. 16
analysis in their own filings, see, e.g., Defs.’ Reply 9, Defendants open the door to consideration
of this expert report for the purpose of resolving the instant motion for summary judgment.
16
The Court notes that Plaintiffs’ argument that they have “demonstrated disparate
impact through statistical evidence” focuses primarily on the proper unit-size standard (i.e.,
occupancy standard) to use in the disparate impact analysis. See Pls.’ Opp’n 22–25. This
emphasis on how many rooms a given family requires elides the question of how to define the
family unit in the first instance. Only after settling this threshold point concerning the proper
unit of analysis is it possible to assess the disparate impact of applying any given occupancy
standard to that familial unit. Because the Court concludes that this antecedent point provides
sufficient grounds on which to resolve the pending motion, it expresses no opinion concerning
the proper occupancy standard.
17
Nor do Plaintiffs develop any legal argument explaining why the Court should apply a
different read of the FHA in assessing the statistical evidence that they present. Plaintiffs offer
only the conclusory assertion that “[a] family consisting of a parent, a child, and a grandparent
still qualifies as a ‘family’ under [the FHA’s] definition.” Pls.’ Opp’n 21. This gloss on the
statute, however, strikes the Court as particularly unconvincing in light of the FHA’s status as a
repository of negative rights that protects an enumerated category from discrimination based on
membership in that enumerated, protected category. See Inclusive Communities, 135 S. Ct. at
2522 (“The FHA is not an instrument to force housing authorities to reorder their priorities.
Rather, the FHA aims to ensure that those priorities can be achieved without arbitrarily creating
discriminatory effects[.]”). If Congress intended to apply the familial protected class category to
“a parent, a child, and a grandparent,” then it strikes the Court as unlikely that it would adopt an
express definition of “familial status” that is so at odds with this broader understanding. Thus,
although Plaintiffs have standing to pursue claims on behalf of those within the protected class,
see Borum II, 324 F.R.D. at 13 (citing Gladstone, Realtors v. Vill. of Bellwood, 441 U.S. 91, 103
n.9 (1979)), they have not (1) established that Defendants’ proposed policy would in fact
disparately impact the relevant protected class or (2) otherwise justified the use of a different
comparison group as the relevant protected class. Accordingly, Plaintiffs have not satisfied their
burden at step one of the disparate impact analysis, and the Court grants summary judgment on
this claim as a matter of law. See Celotex, 477 U.S. at 323 (quoting Anderson, 477 U.S. at 250).
B. Discriminatory Statements Claim
Although Plaintiffs’ disparate impact claims have been front and center for much of this
litigation, the Court also faces the question of whether to enter summary judgment on Plaintiffs’
18
discriminatory statements claims. 17 Before reaching the merits of Plaintiffs’ discriminatory
statements charge, the Court must confirm ONE DC’s standing, which Defendants continue to
contest. 18 See Defs.’ Mot. 47–54.
1. ONE DC’s Standing
Defendants have challenged ONE DC’s standing from the very start of this litigation.
Previously, in Borum I, the Court rejected Defendants’ argument that “ONE DC lacks a
sufficiently concrete injury-in-fact” to establish standing. 218 F. Supp. 3d at 19 (quoting Defs.’
Mem. in Supp. of Mot. to Dismiss 31–35, ECF 16-1). Pointing to ONE DC’s factual allegations
concerning investment of staff time and diversion of resources for “crisis organizing” and
17
Plaintiffs’ motion for voluntary dismissal pursuant to Federal Rule of Civil Procedure
41(a)(2) asks the Court to dismiss not only the claims that Ms. Borum brings in her individual
capacity, but also Ms. Moore’s discriminatory statement claims. Pls.’ Mot. Volun. Dismissal 1.
Defendants urge summary judgment on both Plaintiffs’ discriminatory statement claims, Defs.’
Mot. 45, and, in the alternative, agree with Plaintiffs that dismissal is proper so long as the Court
does not grant Plaintiffs’ request concerning the entry of fees and costs, see Defs.’ Mem. Part.
Opp’n 4 (“This Court should . . . partially grant Plaintiffs’ motion to dismiss Ms. Borum’s claims
and [the discriminatory statement claims] with prejudice, but deny [Plaintiffs’] motion to the
limited extent that it seeks entry of a dismissal order stating that the parties are to bear their own
costs and fees”). The Court will consider fees and costs concerning these Plaintiffs at a future
point, should any motion on this matter be filed, and presently addresses only the question of
whether dismissal is proper. As the Court concluded with respect to Ms. Borum’s disparate
impact claims, because Defendants are not prejudiced by the dismissal of the individual
plaintiffs’ discriminatory statements claims, dismissal is proper pursuant to Rule 41(a)(2). See
Fed. R. Civ. P. 41(a)(2); Robinson, 216 F.R.D. at 18; 9 Charles A. Wright, Arthur R.
Miller, Federal Practice and Procedure § 2364 (3d ed. 2019). With this dismissal, because the
Court previously decertified the class’s discriminatory statements claims, see Borum IV, 2019
WL 2437686, at *12, only ONE DC now brings this claim.
18
Because “standing is not dispensed in gross[,] . . . a plaintiff must demonstrate standing
for each claim he seeks to press and for each form of relief that is sought.” Town of Chester,
N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Federal Election
Comm’n, 554 U.S. 724, 734, 737 (2008) (citations omitted). Where there are multiple plaintiffs,
“[a]t least one plaintiff must have standing to seek each form of relief requested in the
complaint.” Id. at 1651. Thus, the Court considers here whether the sole Plaintiff pursuing this
claim—ONE DC—has standing for this specific discriminatory statement cause of action,
independent of Plaintiffs’ uncontested standing to bring their disparate impact claim as a class.
19
Brookland Manor-specific programming, id. at 20, the Court concluded that ONE DC had
organizational standing because the complaint sufficiently indicated how “Defendants’ alleged
actions frustrated ONE DC’s mission and ONE DC used resources to counteract that harm.” Id.
(citing Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1140 (D.C. Cir. 2011)).
Because this Court found that ONE DC had organizational standing, it did not address ONE
DC’s associational standing argument. Id. at 19. For the forthcoming reasons, the Court reaches
a different conclusion at this post-discovery stage and concludes that ONE DC has not
established either organizational standing either for itself or associational standing on behalf of
its members; accordingly, it grants Defendants’ motion for summary judgment on this claim. 19
a. Organizational Standing
“The Supreme Court has held that standing to bring a FHA claim is coextensive with
constitutional standing.” Nat’l Fair Hous. All., Inc. v. Prudential Ins. Co. of Am., 208 F. Supp.
2d 46, 52 (D.D.C. 2002); see also Havens Realty Corp. v. Coleman, 455 U.S. 363, 372 (1982).
As this Court explained in Borum I, “[s]tanding based on an organization’s own injury—
‘organizational standing’—requires an organization, ‘like an individual plaintiff, to show actual
or threatened injury in fact that is fairly traceable to the alleged illegal action and likely to be
redressed by a favorable court decision.’” 218 F. Supp. 3d at 19 (quoting Equal Rights Ctr., 633
F.3d at 1138 (internal quotations omitted). The alleged injury in fact must be concrete, as
opposed to “a mere setback to [the organization’s] abstract social interests.” Equal Rights Ctr.,
19
Defendants also urge the Court to issue an adverse inference due to ONE DC’s
spoliation of evidence, Defs.’ Mot. 52, which the Court previously addressed in Borum V, 332
F.R.D. at 49–50. For the reasons set forth below, such an inference is unnecessary for
Defendants to prevail. The Court will address whether fees and costs associated with this issue
are appropriate, as Defendants contend, see Defs.’ Mot. for Reasonable Att’y Fees & Costs, ECF
No. 151, in a separate, forthcoming opinion.
20
633 F.3d at 1138 (internal citations and quotations omitted). Although “[a]n organization’s
expenditure of resources on a lawsuit does not constitute an injury in fact sufficient to establish
standing,” the organization can show an injury in fact “if the defendant’s allegedly wrongful
action prompts an organization to ‘increase[ ] the resources [it] must devote to programs
independent of its suit.’” Id. (alterations in original) (quoting Spann v. Colonial Vill., Inc., 899
F.2d 24, 27 (D.C. Cir. 1990)). That said, “if an injury is ‘self-inflicted as a result of the
organization’s own budgetary choices,’ the party cannot claim an injury-in-fact as a result of the
defendant’s behavior.” Borum I, 218 F. Supp. 3d at 19 (quoting Equal Rights Ctr., 633 F.3d at
1139 (internal quotations omitted)). To assess whether an injury is self-inflicted and thus
insufficient to claim injury in fact, the court must determine whether the party “undertook the
expenditures in response to, and to counteract, the effects of the defendants’ alleged
discrimination rather than in anticipation of litigation.” Equal Rights Ctr., 633 F.3d at
1140. Thus, “[i]n the housing context, using resources for a program to counteract a defendant’s
discriminatory advertisement constitutes an adequate injury-in-fact, because it is used for the
practical purpose of responding to allegedly illegal activity, not to prepare for litigation.” Borum
I, 218 F. Supp. 3d at 20 (citing Equal Rights Ctr., 633 F.3d at 1140); see also Spann, 899 F.2d at
27–29. Applying these principles in Borum I, this Court found that ONE DC had organizational
standing to maintain its cause of action. 218 F. Supp. 3d at 20. The Court did not address the
question to which this Court next turns: ONE DC’s standing to bring its discriminatory
statements claim, specifically.
21
Here, Defendants make two primary points in support of their argument that ONE DC
lacks organizational standing to pursue this claim. 20 First, Defendants allege that ONE DC did
not come to Brookland Manor with a public-minded purpose, but rather “sought to use
Brookland Manor as a revenue source, both by charging fees to the tenants” for conversion of the
private developments into tenant cooperatives and “by using its work there as a fund-raising
opportunity.” Defs.’ Mot. 49; see also id. at 50–51 (discussing how ONE DC has referenced
Brookland Manor work to raise funds). Second, Defendants contend that ONE DC did not need
to divert resources from other projects to support its work at Brookland Manor, id. at 51–52, but
rather “chose to get involved in Brookland Manor” and made the “budgetary choice . . . to
allocate earmarked resources to pre-planned activities” at the complex, Defs.’ Reply 22–23
(emphasis in original).
A bit of background is in order to situate the arguments and evidence that Plaintiffs
present in an attempt to rebut Defendants’ arguments. Although the parties characterize exactly
how ONE DC became involved in the Brookland Manor neighborhood differently, they seem to
agree that the organization was invited to the site by a third party to consult with and educate
Brookland Manor tenants. Pls.’ Response to Defs.’ SUMF 30. Defendants allege that
“somebody c[a]me to ONE DC to get ONE DC involved in the Brookland Manor development”
by “fighting the redevelopment” through tenant organization and “education” concerning the
Tenant Opportunity to Purchase Act (TOPA). Defs.’ SMF 58 (alteration in original) (quoting
20
The Court notes that both parties unhelpfully tend to discuss organizational standing
without much specificity as to whether the asserted arguments and supporting factual allegations
speak to Plaintiffs’ disparate impact claim, discriminatory statements claim, or both claims. In
parsing the parties’ filings, the Court endeavors, to the extent possible, to pinpoint the arguments
that are specific to this claim. See Town of Chester, N.Y., 137 S. Ct. at1650 (quoting Davis, 554
U.S. at 734, 737 (emphasizing that a plaintiff must establish standing with respect to each claim
for relief).
22
Dep. of ONE DC 30(b)(6) Corp. Designee Dominic Moulden (“Moulden Dep.”) 61:09–12, ECF
No. 143-3). Plaintiffs dispute the statement that they were fighting the redevelopment at the
start; rather, the BM/BV RA “and its attorney sought ONE DC’s assistance doing education
around tenant ownership” because the proposed redevelopment might “trigger the issuance of . . .
[TOPA] notices.” Pls.’ Response to Defs.’ SUMF 30 (citing Moulden Dep. 61:19–24; Decl. of
Dominic Moulden ¶¶ 12–13, ECF No. 165-57; Dep. of Rosemary Ndubuizu 19:17-20:4, ECF
No. 165-18); see also Pls.’ Opp’n 45–46 (describing ONE DC’s initial involvement at Brookland
Manor in 2014 at the request of the BM/BW RA and its attorney). On ONE DC’s account, then,
the discriminatory statements at issue here created a “concrete injury . . . because they were at
loggerheads with ONE DC’s mission-driven work.” Pls.’ Opp’n 43. To respond to the
statements, ONE DC needed “to divert resources away from educating the BM/BV RA about
communal forms of ownership to increasing efforts to strengthen the BM/BV RA to respond to
the redevelopment, organizing legal clinics, and conducting crisis counseling of resident families
concerned about their possible and imminent displacement.” Id. at 44.
A close read of the Circuit’s disposition in Spann, 899 F.2d at 27–31, reveals why
Plaintiffs’ claim falters on injury in fact grounds. The Spann court addressed the same FHA
provision 21 that is at issue here—42 U.S.C. § 3604(c)—and found that the plaintiffs (a black
21
The Court mentions only the FHA here and throughout the following analysis because
“District of Columbia courts interpreting the DCHRA ‘have generally looked [for guidance] to
cases from the federal courts” arising under federal civil rights statutes,’” Whitbeck v. Vital
Signs, Inc., 116 F.3d 588, 591 (D.C. Cir. 1997) (quoting Benefits Communication Corp. v.
Klieforth, 642 A.2d 1299, 1301–02 (D.C. 1994)). And as Defendants point out and Plaintiffs at
no point contest, “Courts interpreting the discriminatory statement provisions of the D.C. Human
Rights Act have interpreted them in the same way as” the parallel FHA provision. Defs.’ Mot.
46 n.17 (citing Adus-Sabur v. Hope Village, Inc., 221 F. Supp. 3d 3, 1617 (D.D.C. 2016); Equal
Rights Ctr. v. SCF Mgmt., LLC, No 2014 CA004800 B, 2016 WL 8604491, at *3 (D.C. Super.
Ct. Aug. 3, 2016)). Thus, the Court addresses these discrete statutory causes of action together.
23
resident of the District of Columbia and two non-profit corporations focused on equal housing
opportunity) had established injury in fact sufficient to survive a motion to dismiss their
discriminatory advertising claim. 22 Id. In Spann, the organizational plaintiffs submitted detailed
affidavits to the district court that established how the advertising at issue “impacts adversely on
the organizations’ real estate testing program by acting as a steering method which discourages
black home buyers and renters before they ever reach a particular complex, necessitating the
[organizations] to broaden the scope of [their] efforts in order to reach all forms of
discriminatory housing practices.” Id. at 28 (quotation marks and internal citations omitted).
Based on these factual allegations, the Spann court found that the alleged “drain[s] on the
organization[s’] resources” were “no less palpable or specific than the injuries asserted by the
organizational plaintiff in [Havens Realty Corp. v. Coleman, 102 S. Ct. 1114 (1982)].” Id.
(alterations in original) (internal quotation marks omitted) (quoting Havens, 455 U.S. at 363)
(citing Saunders v. General Services Corp., 659 F. Supp. 1042, 1052 (E.D. Va. 1987); Pacific
Legal Foundation v. Goyan, 664 F.2d 1221 (4th Cir. 1981)). The plaintiffs thus claimed more
than mere “psychic[] injur[y] by witnessing noncompliance with the [FHA].” Id. at 29 (citations
omitted). Because the plaintiffs not only “adequately asserted depletion of resources,” but also
established that this injury was “fairly traceable to the alleged racially-preferential advertising
and likely to be redressed by court-ordered declaratory relief,” the plaintiff organizations had
Any reference only to the FHA should be taken to reference by implication the parallel DCHRA
provision, unless otherwise stated.
22
Because § 3604(c) makes unlawful any “notice, statement, or advertisement” that falls
within its provisions, and because the parties at no point argue that here is a distinction between
these forms of communication, the Court proceeds here on the assumption that there is no
meaningful difference between discriminatory statement claims like the ones that Plaintiffs press
and a discriminatory advertising claim like the one in Spann.
24
organizational standing to pursue their claim. Id. However, the Spann court also cautioned that
success at trial on this claim would require the plaintiffs to provide further (1) “proof that
defendants violated the Act, i.e., that to a ‘reasonable reader the natural interpretation of
defendants’ [statements] . . is that they indicate a preference’” on the basis of the protected
category “or an intention to make such a preference” and (2) proof “that this violation actually
caused them to expend resources or to suffer some other concrete injury.” Id. at 29–30 (quoting
Saunders, 659 F. Supp. at 1058) (citing Ragin v. Steiner, Clateman and Assocs., 714 F. Supp.
709, 713 (S.D.N.Y. 1989)).
Applying these principles to this case, ONE DC’s submissions fall short. To be sure,
ONE DC does not need to provide evidence at the summary judgment stage that would be bullet-
proof at trial. But ONE DC does need to point to specific facts in the record that reveal a
genuine issue that is suitable for trial, see Celotex, 477 U.S. at 324, and “on which the jury could
reasonably find for the plaintiff,” Anderson, 477 U.S. at 252. And at the summary judgment
stage, “the [claimant] can no longer rest on [the pleading stage’s] mere allegations, but must set
forth by affidavit or other evidence specific facts, which for purposes of the summary judgment
motion will be taken to be true.” United States v. Seventeen Thousand Nine Hundred Dollars
($17,900.00) in United States Currency ($17,900.00 in U.S. Currency), 859 F.3d 1085, 1090
(D.C. Cir. 2017) (internal quotation marks omitted) (quoting Lujan, 504 U.S. at 561); see also
Fed. R. Civ. P. 56(e).
Here, the fundamental problem for ONE DC is that it never points to specific evidence
that establishes how the alleged discriminatory statements “actually caused them to expend
resources or to suffer some other concrete injury.” Spann, 899 F.2d at 30. Plaintiffs attempt to
rebut Defendants by pointing to the deposition of Dominic Moulden, ONE DC’s Rule 30(b)(6)
25
corporate designee, to establish that the organization first became involved because “ONE DC
was asked to strengthen the BM/BV RA and respond to the redevelopment.” Pls.’ Opp’n 45
(citing Moulden Dep.). On Plaintiffs’ account, this initial involvement was distinct from the
later steps that ONE DC needed to take when it learned of the potential displacement of “dozens
of long-time District residents, . . . thus putting the redevelopment plan in direct conflict with
ONE DC’s mission.” Id.; see also id. at 50 (discussing ONE DC’s initial reticence to litigate,
until February 2016).
What is missing, though, is any evidence that connects up any of ONE DC’s specific
education, counseling, or advocacy efforts to Defendants’ alleged discriminatory statements.
Plaintiffs’ complaint alleges only that it was “forced to reallocate significant financial resources
and man power to community organizing and training efforts intended to empower Brookland
Manor residents.” Am. Compl. ¶¶ 170, 178. As the Court just noted, these bare allegations are
insufficient at the summary judgment stage of litigation. See $17,900.00 in U.S. Currency, 859
F.3d at 1090. The closest that ONE DC comes to providing further detail concerning the specific
discriminatory statements at issue is in the testimony of its 30(b)(6) deponent, Mr. Moulden. See
Moulden Dep. Therein, Mr. Moulden states that Defendants’ statements are discriminatory
because characterizing larger units as inconsistent “with the creation of a vibrant, new
community” is a “direct attack on family status, on family size and actually preserving the
culture of the people that [ONE DC] work[s] with in D.C.” Id. at 206.3–10. Mr. Moulden also
testifies that the injury “comes from the idea of the statement which is that ‘new’ and ‘vibrant’
does not include the people that live [at Brookland Manor now] and the other people that we
work with.” Id. at 207.6–9. In order to contend with the effects of these statements, ONE DC
states that it had to “conduct[] crisis counseling of resident families concerned about their
26
possible and imminent displacements” and to “increase[] efforts to strengthen the RA so it could
more effectively respond to the redevelopment.” Pls.’ Response to Defs.’ SUMF 74.
But none of these conclusory assertions, standing alone, provides evidentiary support
concerning the specific outlay of resources to contend with discriminatory statements. Indeed,
Defendants press this very point in moving for summary judgment. Id. (“Plaintiffs provide no
citation to support this statement.”); see also Defs.’ Mot. 45 (arguing that ONE DC has not
identified any harm to the organization as a result of the discriminatory statements); cf. Defs.’
Reply 24 (contending that ONE DC lacks organizational standing, in general, because it
“presents no evidence that it spent money dealing with” discrimination against families through
the elimination of four- and five-bedroom units). Plaintiffs’ omission is fatal to their claim:
without pointing to specific facts in the record that reveal a genuine issue that is suitable for trial,
see Celotex, 477 U.S. at 324, this Court cannot say that ONE DC has made a sufficient showing
to survive Defendants’ motion for summary judgment.
Moreover, even without focusing on a lack of evidence (though that is indeed what the
law requires), at a more general level, there is a missing link between the specific investments
alleged here and the discriminatory statements. Beyond the fact that the “statements . . . were at
loggerheads with ONE DC’s mission-driven work,” how, exactly, did these statements
themselves “force[] ONE DC to redirect its resources to counteract the[ir] impact”? Pls.’ Opp’n
43–44. Plaintiffs never say anything more to substantiate this bare allegation, instead directing
the Court to their general argument concerning ONE DC’s organizational standing. Id. at 44.
Without more, and especially without any declarations or other testimony from ONE DC
members or other Brookland Manor residents concerning the impact of the statements on them,
the Court can only speculate about the relationship between the discriminatory statements and
27
ONE DC’s diversion of resources to “educat[e] the BM/BV RA about communal forms of
ownership,” its “efforts to strengthen the BM/BV RA to respond,” or its “organiz[ation] of legal
clinics” and “crisis counseling of resident families concerned about their possible and imminent
displacement.” Id. This is not enough to survive summary judgment.
A comparison to Spann again underscores what is missing here. In the context of racially
discriminatory advertisements, the Spann court suggested that the plaintiff organizations might
show injury by, for instance, “prov[ing] that the [allegedly discriminatory] advertisements
discouraged potential minority home buyers from attempting to buy homes at defendants’
developments and forced the organizations to spend funds informing minority home buyers that
the homes are in fact available to them.” Spann, 899 F.2d at 30. Only with this sort of further
showing could the plaintiffs establish, at a later stage of trial, that they were entitled to go further
with their discriminatory statements claim. Id. at 29. Here, Plaintiffs have not made the
requisite further showing because they have not provided any evidence to connect the dots
between the allegedly discriminatory statements, the impact on any residents of the community,
and the subsequent alleged outlay of resources. Nor, as the Court just discussed, have they
submitted any other specific evidence at all concerning this claim. Thus, ONE DC has not
carried its burden to provide evidence that would permit a reasonable juror to conclude that the
alleged violation—the three discriminatory statements—“actually caused them to expend
resources or to suffer some other concrete injury.” Spann, 899 F.2d at 30 (citations omitted).
Accordingly, Plaintiffs have failed to establish organizational standing to bring ONE DC’s
discriminatory statements claim.
28
b. Associational Standing
ONE DC’s associational standing argument fares no better. “For an organization to sue
on behalf of its members through ‘associational standing,’ it must show that (1) ‘its members
would otherwise have standing to sue in their own right,’ (2) ‘the interests it seeks to protect are
germane to the organization’s purpose,’ and (3) ‘neither the claim asserted nor the relief
requested requires the participation of individual members in the lawsuit.’” Borum I, 218 F.
Supp. 3d at 19 (quoting United Food & Commercial Workers Union Local 751 v. Brown Grp.,
Inc., 517 U.S. 544, 553 (1996)); see also Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S.
333, 343 (1977). But ONE DC makes none of these showings for a very straightforward reason:
ONE DC never speaks to associational standing with respect to the discriminatory statements
claim at all. In fact, all of ONE DC’s arguments concerning associational standing center on
allegations that the redevelopment “would harm [ONE DC members] by way of displacement
and an inability to find other suitable housing if forced to leave their communities,” Pls’ Opp’n
53, creating a “discriminatory impact” on “low-income resident families,” id. at 54, including
ONE DC members. In short, ONE DC at no point so much as mentions the discriminatory
statements at issue in the context of developing its associational standing argument. Without
more, though, to indicate how ONE DC is endeavoring to proceed on behalf of particular
identified members for this claim, the Court is left guessing on central matters such as whether
ONE DC’s members would have standing in their own right or whether their participation is
required to pursue the relief requested.
With respect to the requested relief, moreover, Defendants maintain that ONE DC’s
associational standing argument fails, without distinguishing between the discriminatory impact
and discriminatory statements claims, because “the lawsuit seeks compensatory damages that
29
cannot be awarded without the participation of [ONE DC’s] members.” Defs.’ Mot. 54. More
specifically, because the complaint itself seeks damages to the extent authorized by the FHA and
DCHRA, see Am. Compl. 35, and because ONE DC at no point addresses why the involvement
of individual members is not required to pursue this claim for damages, Defendants press that the
organization’s associational standing theory must fail. Defs.’ Mot. 54 (citing Telecomms.
Research & Action Ctr. on Behalf of Checknoff v. Allnet Commc’n Servs., Inc., 806 F.2d 1093,
1095 (D.C. Cir. 1986) (“[F]ederal courts have consistently rejected association assertions of
standing to seek monetary, as distinguished from injunctive or declaratory, relief on behalf of the
organization’s members.”)).
Although the Court agrees with Defendants that ONE DC at no point discusses damages,
for the reasons previously articulated, the Court declines to enter judgment concerning ONE
DC’s overall associational standing for all of its claims. Turning to the specific discriminatory
statements claim at issue, the Court disagrees that the failure to address damages is dispositive in
the manner that Defendants appear to assert. Defendants’ argument risks conflating an element
of the claim with the form of relief available to a meritorious plaintiff in a discriminatory
statements claim. It is true that “[t]he successful plaintiff in an action under 42 U.S.C.A. §
3604(c) may be granted various types of relief,” including, inter alia, an award of compensatory
damages to “[a]n equal housing opportunity organization . . . for the impairment of its objectives
and diversion of its resources caused by the defendant’s discriminatory advertisements.”
William H. Danne, Jr., Validity, Construction, and Application of § 804(c) of Civil Rights Act of
1968 (Fair Housing Act) (42 U.S.C.A. § 3604(c)) Prohibiting Discriminatory Notice, Statement,
or Advertisement With Respect to Sale or Rental of Dwelling, 142 A.L.R. Fed. 1 (1998) (citing
Saunders, 659 F. Supp. 1042); see Spann, 899 F.2d at 26 (addressing standing of organizational
30
plaintiffs who pursued both compensatory and injunctive relief pursuant to FHA § 3604(c)). But
the availability of such forms of relief does not mean that compensatory damages are a necessary
element of the claim. See Mayers v. Ridley, 465 F.2d 630 (D.C. Cir. 1972) (addressing suit for
declaratory and injunctive relief pursuant to FHA § 3604(c)).
Here, ONE DC’s briefs asserting associational standing state only that the organization
“seeks injunctive relief for . . . discriminatory statements claims on behalf of its members and
their minor children who reside in units targeted for elimination.” Pls.’ Opp’n 54. The
organization indeed says nothing at all about damages, just as Defendants note. Instead, ONE
DC contends that it can stand in for its members with respect to the claim for injunctive relief
because its “claims are co-extensive with the claims of class members and accordingly rely on
common issues, including ‘whether th[e] redevelopment will have a disparate impact based on
familial status.’” Id. (quoting Borum II, 324 F.R.D. 1 at 16). Yet, as this assertion itself
indicates, ONE DC never says anything to (1) establish how its interests are co-extensive with its
organizational members (as opposed to a now-decertified class) or (2) indicate why the
participation of its members is not necessary for the relief requested with respect to this specific
claim. Accordingly, ONE DC again fails to sustain its claim of associational standing with any
specificity, and cannot carry its burden to establish standing. See Spokeo, Inc. v. Robins, 136 S.
Ct. 1540, 1547 (2016), as revised (May 24, 2016) (citing FW/PBS, Inc. v. Dallas, 493 U.S. 215,
231 (1990)) (“The plaintiff, as the party invoking federal jurisdiction, bears the burden of
establishing” standing).
31
Thus, the Court finds that ONE DC has not established standing to pursue its
discriminatory statements claim and grants summary judgment on this claim as a matter of law. 23
C. Motions to File Under Seal
One final procedural matter remains: both parties have moved to file a number of
documents under seal, citing privacy interests in confidential information. 24 See Defs.’
Unopposed Mot. Leave to File Docs. Under Seal, ECF No. 143; Defs.’ Mot. Leave to File Ex.
Relating to Mot. to Exclude Expert Test. of Andrew Beveridge Under Seal, ECF No. 147; Defs.’
Mot. Leave to File Exs. Relating to Mot. to Exclude Expert Test. of Jonathan Stern Under Seal,
ECF No. 150; Pls.’ Mot. Leave to File Under Seal Pls.’ Mem. Opp’n Defs.’ Mot. Summ J. &
Materials in Supp. Thereof, ECF No. 165; Pls.’ Mot. Leave to File Under Seal Pls.’ Mem. Opp’n
Defs.’ Mot. to Exclude Expert Test. of Andrew Beveridge & Exs. in Supp. Thereof, ECF No.
166; Pls.’ Mot. Leave to File Under Seal Pls.’ Errata & Corrected Mem. P. & A. in Opp’n to
Defs.’ Mot. Summ. J., ECF No. 170; Defs.’ Mot. Leave to File Documents Under Seal, ECF No.
175.
All motions for leave to file under seal are unopposed. All of the underlying documents
include information that the parties designated as confidential pursuant to the Court’s December
23
Because it reaches this conclusion, the Court need not address, and reaches no
conclusion regarding, the parties’ arguments concerning the merits of the discriminatory
statements claim, including whether or not the statements fall within the scope of the relevant
statutory provisions or how an “ordinary reader” would construe them.
24
Plaintiffs have also submitted an unopposed motion for leave to file under seal certain
other materials associated with the parties’ respective motions for attorneys’ fees and costs. See
Pls.’ Mot. Leave to File Under Seal Ex. in Supp. of Plaintiffs’ Mot. for Attys.’ Fees and Costs,
ECF No. 154, Pls.’ Mot. Leave to File Under Seal Exs. 1 and 2 in Supp. of Pl. ONE DC’s Opp’n
Defs.’ Mot. Attys.’ Fees and Costs, ECF No. 156. The Court will address these pending motions
in a forthcoming opinion, along with its resolution of the parties’ motions for fees and costs. See
Defs.’ Mot. Reasonable Attys.’ Fees & Costs, ECF No. 151; Pls.’ Mot. Reasonable Attys.’ Fees
& Costs, ECF No. 153.
32
15, 2016, Protective Order, ECF No. 36, and all involve significant privacy interests that
outweigh the need for public access. See Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980
(D.C. Cir. 2016). Accordingly, the Court grants the above-referenced motions for leave to file
under seal.
V. CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED;
Plaintiffs’ motion for voluntary dismissal is GRANTED IN PART; Plaintiffs’ motions for leave
to file under seal are GRANTED; Defendants’ motions for leave to file under seal are
GRANTED; Defendants’ motions to exclude expert testimony are DENIED as moot; and
Defendants’ motion for extension of time is DENIED as moot. 25 An order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Dated: March 30, 2020 RUDOLPH CONTRERAS
United States District Judge
25
Although Defendant requests a hearing and oral argument concerning several of its
pending motions, the allowance of oral hearings is “within the discretion of the Court.” LCvR
7(f). Because the parties’ written briefings are sufficient to resolve the instant motions, the Court
declines to conduct oral hearings.
33