Responding to Federal Fair Housing
Investigations: When the
DOJ Comes Calling
Wednesday, September 3, 2014 General Session; 1:00 – 2:45 p.m.
Toussaint S. Bailey, Richards, Watson & Gershon
DISCLAIMER: This paper is not offered as or intended to be legal advice. Readers and conference attendees should seek the
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2014 League of California Cities Annual Conference – City Attorneys’ Track
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2014 League of California Cities Annual Conference – City Attorneys’ Track
Los Angeles Convention Center, Los Angeles
RESPONDING TO FEDERAL FAIR
HOUSING INVESTIGATIONS:
WHEN THE DOJ COMES
CALLING
Toussaint S. Bailey
Richards | Watson | Gershon
In loving memory of my colleague, mentor, and dear friend Steven R. Orr (Nov. 3, 1962 July 2, 2014). Neither this paper nor my professional development would have been
possible without Steve’s invaluable contributions.
99904-0274\1737912v3.doc
I also gratefully acknowledge the insights and assistance provided by my colleague
Julie A. Hamill.
I.
INTRODUCTION
For even the most unflappable municipal lawyer, the thought of a client being
investigated for violations of the federal Fair Housing Act by the United States Department of
Justice (“DOJ”)—a department of the federal government that describes itself as “the world’s
largest law office” and happens to oversee the Federal Bureau of Investigations—can give rise to
uncharacteristic levels of anxiety. This paper aims to demystify DOJ investigations under the
federal Fair Housing Act and highlight some of the issues municipalities might face in
responding to such investigations. 1 The discussion that follows (1) provides a short background
on DOJ’s enforcement of federal law; (2) explains DOJ’s role in enforcing the Fair Housing Act;
and, finally, (3) describes DOJ’s primary areas of focus in investigations of alleged Fair Housing
Act violations by municipalities. The discussion is followed by two short practical sections: the
first provides insight into how a typical investigation might proceed and the second provides a
few general tips for dealing with investigations.
II.
DISCUSSION
A.
Background on DOJ Enforcement of Federal Law
Since the Enforcement Act of 1870 established DOJ as an executive department of the
United States government, the Attorney General has presided over the central department for
enforcement of federal laws. 2 DOJ is comprised of 40 components, which cover a variety of
responsibilities. 3 Enforcement of civil rights is one of DOJ’s chief responsibilities. DOJ’s Civil
1
For purposes of brevity and analytical efficiency, this paper does not endeavor to provide a
comprehensive analysis of the federal Fair Housing Act of 1968 and the Fair Housing
Amendments Act of 1988 (collectively herein, “Fair Housing Act”), 42 U.S.C. 3601 et seq. See
Schwemm, Housing Discrimination Law and Litigation, (West 2014), for an in depth analysis of
federal housing discrimination law.
2
http://www.justice.gov/crt/.
3
http://www.justice.gov/jmd/2011summary/pdf/overview.pdf.
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Rights Division, created by the enactment of the Civil Rights Act of 1957, 4 enforces federal
statutes prohibiting discrimination on the basis of race, color, sex, disability, religion, familial
status and national origin, including the Fair Housing Act, the Civil Rights Acts; the Voting
Rights Act; the Equal Credit Opportunity Act; the Americans with Disabilities Act; the National
Voter Registration Act; the Uniformed and Overseas Citizens Absentee Voting Act; the Voting
Accessibility for the Elderly and Handicapped Act; and additional civil rights provisions
contained in other laws and regulations. 5 The work of DOJ’s Civil Rights Division is carried out
by its 11 sections. 6 The Housing and Civil Enforcement Section is charged with enforcing the
Fair Housing Act. 7
B.
DOJ’s Role in Fair Housing Act Enforcement
1.
Fair Housing Act Enforcement Overview
The thrust of the Fair Housing Act is found in the provisions making it unlawful to deny,
or otherwise make unavailable, a dwelling because of race, color, religion, sex, familial status,
national origin, or disability. 8 In Trafficante v. Metropolitan Life Ins. Co., the United States
Supreme Court observed that the language of the Fair Housing Act is “broad and inclusive” 9 and
found that it carries out a “policy that Congress considered to be of the highest priority.” 10 The
Trafficante Court concluded that vitality can be given to this policy “only by a generous
construction” of the statute. 11
4
71 Stat. 634 (1957).
http://www.justice.gov/crt/about/; http://www.justice.gov/agencies/index-list.html.
6
http://www.justice.gov/crt/about/.
7
Id.
8
42 U.S.C. § 3604(a); 42 U.S.C. § 3604(f)(1), extending protection to persons with disabilities
under the Fair Housing Amendments Act; see also 42 U.S.C. § 3604(b), (f)(2), and § 3605;
but see 42 U.S.C. § 3604(f)(3), identifying certain types of behavior as illegal discrimination
based on disability and requiring only a showing that the defendant “refused” or “failed” to take
certain prescribed action.
9
409 U.S. 205, 211-12 (1972).
10
409 U.S. at 211-12.
11
409 U.S. at 212; see also City of Edmonds v. Oxford House, Inc., 514 U.S. 725 (1995)
(reaffirming the propriety of “generous construction” of the Fair Housing Act).
5
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Although the Trafficante Court was addressing private party standing issues, its principle
of “generous construction” has been more broadly applied by parties seeking to enforce the Fair
Housing Act’s substantive provisions, as well as lower courts interpreting the Act. Although
most of the Fair Housing Act’s substantive provisions ban discrimination “because of” race,
color, national origin, religion, sex, handicap, or familial status, 12 California federal district
courts and the Ninth Circuit have almost uniformly recognized Fair Housing Act liability for not
only discriminatory intent, but also based on discriminatory effects of facially neutral laws or
practices. 13 Last year, the United States Department of Housing and Urban Development
(“HUD”) adopted regulations formalizing the federal government’s long-held view that the Fair
Housing Act encompasses discriminatory effects liability. 14
The United States Supreme Court has twice within last three years agreed to resolve
whether a claim based solely on discriminatory effects, or “disparate impact,” is cognizable
under the Fair Housing Act. However, both cases were withdrawn before the justices could
rule. 15 In May, the question was presented to the Court in yet another Petition for a Writ of
Certiorari in Inclusive Communities Project v. Texas Dep’t of Housing. 16 Notwithstanding the
petition pending before the Court, municipalities should not expect DOJ to cease relying on the
12
See 42 U.S.C. §§ 3604(a), (b), (d), (f)(1), (f)(2), and § 3605.
See, e.g., Ojo v. Farmers Group, Inc., 600 F.3d 1205, 1207 (9th Cir. 2010), as amended, (Apr.
30, 2010) and amended, 2010 WL 1729742 (9th Cir. 2010) (en banc); Budnick v. Town of
Carefree, 518 F.3d 1109, 1118 (to establish a prima facie case a “plaintiff need not establish
discriminatory intent but the discriminatory impact must be proven; an inference of
discriminatory impact is not sufficient”).
14
See 78 Fed. Reg. 11482 (promulgating 24 C.F.R. § 100.500 (“Discriminatory effect
prohibited”)) (Feb. 15, 2013).
15
Twp. of Mount Holly, N.J. v. Mt. Holly Gardens Citizens in Action, Inc., cert. granted, 133
S.Ct. 2824 (2013) and cert. dismissed 134 S.Ct. 636 (2013); Magner v. Gallagher, cert. granted,
132 S. Ct. 548 (2011) and cert. dismissed, 132 S. Ct. 1306 (2012).
16
Docket No. 13–1371 (May 13, 2014).
13
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disparate impact theory of liability in Fair Housing Act investigations and settlement
negotiations. 17
2.
DOJ’s Enforcement of the Fair Housing Act
The Fair Housing Act authorizes enforcement of its substantive provisions by essentially
three mechanisms: (1) private party complaints to HUD 18; (2) private party lawsuits 19; and (3)
lawsuits by the United States Department of Justice (“DOJ”) 20. Although this paper focuses on
the third method of enforcement, the three methods, as a general rule, are not exclusive of one
another. Thus, a defendant who violated one of the Fair Housing Act’s substantive provisions
could be subject to a lawsuit by DOJ, even if that defendant is also the subject of a complaint to
HUD and a defendant to a private court action. 21
DOJ does not involve itself in every violation of the Fair Housing Act. Violations of the
Fair Housing Act’s substantive provisions must be of a particular nature or severity to trigger
DOJ’s enforcement authority. 42 U.S.C. § 3614(a) authorizes DOJ to initiate its own lawsuits in
response to significant Fair Housing Act violations; 42 U.S.C. § 3614(b) authorizes DOJ to file
suit in certain types of cases referred to DOJ from HUD; and 42 U.S.C. § 3614(c) authorizes
17
See “DOJ’s Quid Pro Quo with St. Paul: How Assistant Attorney General Thomas Perez
Manipulated the Rule of Law,” Joint Staff Report, United States Congress (April 15, 2013)
(discussing DOJ’s role in withdrawal of Magner v. Gallagher).
18
42 U.S.C. §§ 3610-3612.
19
42 U.S.C. § 3613.
20
42 U.S.C. § 3614.
21
See Mitchell v. Cellone, 389 F.3d 86 (3d Cir. 2004) (filing of HUD complaint does not
constitute a private party’s election of remedies); U.S. v. Starrett City Associates, 605 F. Supp.
262 (E.D. N.Y. 1985) (DOJ’s failure to intervene in a private suit will not estop DOJ from
bringing its own subsequent action against the same defendant under 42 U.S.C. § 3614);
Huntington Branch, N.A.A.C.P. v. Town of Huntington, N.Y., 689 F.2d 391, 394 n.3 (2d Cir.
1982) (recognizing private party’s right to proceed directly to court with Fair Housing Act
lawsuit without first pursuing a HUD complaint). But see 42 U.S.C. § 3613(a) (imposing
restrictions on dual private lawsuits and HUD complaints).
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DOJ to enforce subpoenas issued in HUD administrative proceedings in the United States district
court. 22
a.
DOJ initiated lawsuits
Under 42 U.S.C. § 3614(a) DOJ, may initiate a civil action if there is:
“…reasonable cause to believe that any person or group of persons is engaged in
a pattern or practice of resistance to the full enjoyment of any of the rights
granted by this title, or any group of persons has been denied any rights granted
by this title and such denial raises an issue of general public importance…”
(Emphasis added.)
i.
“Pattern or practice” cases
The United States Supreme Court has interpreted “pattern or practice,” in the
employment context, to mean “more than a mere occurrence of isolated or ‘accidental’ or
sporadic discriminatory acts.” 23 A pattern or practice of employment discrimination requires
proof, by a preponderance of the evidence, that the discrimination is “standard operating
procedure – the regular rather than the unusual practice.” 24 Lower courts have applied a similar
definition of “pattern or practice” in Fair Housing Act cases. 25
22
See also 42 U.S.C. § 3613(e) (DOJ is authorized to intervene and seek appropriate relief in
private party lawsuits if the Attorney General certifies that the case is “of general public
importance”).
23
International Brotherhood of Teamsters v. United States, 431 U.S. 324, 336 (1977).
24
Id.
25
See United States v. West Peachtree Tenth Corporation, 437 F.2d 221, 269 (5th Cir. 1971)
(stating pattern or practice requirement was “intended to encompass more than an ‘isolated or
accidental or peculiar event.”); Schwemm, Housing Discrimination Law and Litigation, § 26:3
(West 2014).
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Among other things, a discriminatory statute, ordinance, or municipal policy may qualify
as a “pattern or practice” under 42 U.S.C. § 3614(a). 26 Neither willful nor even intentional
discrimination need be shown to establish a pattern or practice. 27 Each case examining the
pattern or practice issue must be decided on its own facts. 28
ii.
“General importance” cases
The DOJ can also proceed under 42 U.S.C. § 3614(a) by showing that a group of persons
has been denied rights granted by the Fair Housing Act and that such denial raises an issue of
“general public importance.” 29 To prevail in a “general public importance” case, DOJ must
prove that the defendant’s discriminatory conduct affected more than a single individual. 30
However, the group of persons affected need not be subjected to the type of “pattern or practice”
of discrimination discussed; even an isolated discriminatory act is sufficient to justify relief. 31
The group of persons has typically been a protected class of home seekers, but municipalities
have been subject to “general public importance” lawsuits on behalf of other groups, such as
current residents of an apartment complex or neighborhood that has been kept illegally
segregated by the defendant. 32
26
See, e.g. United States v. City of Black Jack, Missouri, 508 F.2d 1179 (8th Cir. 1974); United
States v. Parma, Ohio, 494 F. Supp. 1049, 1095 (N.D. Ohio 1980); see also United States v.
Housing Authority of City of Chickasaw, 504 F. Supp. 716, 727 (S.D. Ala. 1980) (“When, as
here, a [housing authority’s] policy of regular application is itself alleged to be discriminatory,
the pattern or practice requirement is satisfied.”).
27
See United States v. Security Management Co., Inc., 96 F.3d 260, 269 (7th Cir. 1996); United
States v. Quality Built Construction, Inc., 309 F.Supp.2d 756, 760 (E.D. N.C. 2003).
28
See West Peachtree, supra, 437 F.2d at 227.
29
See Schwemm, Housing Discrimination Law and Litigation, § 26:4 (West 2014).
30
U.S. v. City of Parma, Ohio, 494 F. Supp. 1049, 1095 (N.D. Ohio 1980), judgment aff’d, 661
F.2d 562 (6th Cir. 1981).
31
Id. at 1095; U.S. v. Hunter, 459 F.2d 205, 217–18, 22 A.L.R. Fed. 339 (4th Cir. 1972); see also
U.S. v. Taigen & Sons, Inc., 303 F. Supp. 2d 1129, 1139 (D. Idaho 2003) (holding, even if
defendants’ actions in violating the Fair Housing Act “do not amount to a ‘pattern or practice’ of
discrimination, they can nevertheless be liable for Fair Housing Act violations under the general
public importance prong of § 3614(a)”).
32
U.S. v. City of Parma, Ohio, 494 F. Supp. 1049, 1096 (N.D. Ohio 1980), judgment aff’d, 661
F.2d 562 (6th Cir. 1981). See generally Gladstone Realtors v. Village of Bellwood, 441 U.S. 91,
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The denial of rights must raise “an issue of general public importance,” but what
constitutes an issue of general public importance is a DOJ determination courts have generally
declined to review. 33
b.
DOJ lawsuits based on HUD Referrals
In addition to DOJ’s authority to initiate lawsuits discussed above, 34 42 U.S.C. § 3614(b)
authorizes DOJ to bring a civil action in two types of cases that grow out of administrative
complaints to HUD under 42 U.S.C. § 3610 that are subsequently referred to DOJ by HUD. 35 In
both situations, the statute provides that DOJ “may commence a civil action,” 36 which means that
DOJ has the same type of prosecutorial discretion with respect to these HUD-referred cases that
it does with “pattern or practice” and “general public importance” cases under 42 U.S.C. §
3614(a).
i.
HUD complaints regarding local land use laws
The first type of referral under 42 U.S.C. § 3614(b) requires that HUD refer to DOJ all
administrative complaints under 42 U.S.C. § 3610 involving “the legality of any State or local
zoning or other land use law or ordinance.” 37 If HUD determines that an administrative
complaint raised such a legal issue, HUD may not issue a charge but instead must “immediately
refer the matter to the Attorney General for appropriate action under [42 U.S.C. § 3614(b)(1)].” 38
The determination that a HUD complaint falls within this category is to be made by HUD’s
99 S. Ct. 1601, 60 L. Ed. 2d 66 (1979); Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205,
93 S. Ct. 364, 34 L. Ed. 2d 415 (1972).
33
See, e.g., U.S. v. Northside Realty Associates, Inc. 474 F.2d 1164, 1168 (5th Cir. 1973); U.S.
v. Yonkers Bd. of Educ., 624 F. Supp. 1276, 1291 n.9 (S.D. N.Y. 1985), judgment aff’d, 837 F.2d
1181 (2d Cir. 1987); U.S. v. City of Parma, Ohio, 494 F. Supp. 1049, 1095 n.64 (N.D. Ohio
1980), judgment aff’d, 661 F.2d 562 (6th Cir. 1981).
34
Section II.B.2.a, supra.
35
Schwemm, Housing Discrimination Law and Litigation, § 26:11 (West 2014)
36
42 U.S.C. § 3614(b)(1)(A), (2)(A).
37
42 U.S.C. § 3614(b)(1)(A), § 3610(g)(2)(C).
38
42 U.S.C. § 3610(g)(2)(C); see, e.g., U.S. v. City of Hayward, 36 F.3d 832, 835 (9th Cir.
1994).
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Assistant Secretary for Fair Housing and Equal Opportunity. 39 This determination may not
occur until after HUD has completed its investigation of the complaint. 40 Once the case is
referred to DOJ, it may commence a civil action challenging the discriminatory land-use law. 41
DOJ’s suit must be brought, if at all, not later than eighteen months after the occurrence or the
termination of the alleged discriminatory housing practice. 42
Note, this authority is in addition to DOJ’s authority to challenge exclusionary land-use
laws in “pattern or practice” and “general public importance” cases under 42 U.S.C. § 3614(a).
DOJ’s authority to act under one of these provisions is independent of its authority to act under
the other. 43 It follows that DOJ need not wait for a HUD-referral to challenge an exclusionary
zoning law that involves a pattern or practice of discrimination or raises an issue of general
public importance under § 3614(a), and, on the other hand, DOJ may bring a HUD-referred case
under § 3614(b) even if it would not be important enough to qualify for a § 3614(a) action. 44
The Fair Housing Act specifically authorizes courts to invalidate any state or local law that
would require or permit any action that would constitute a discriminatory housing practice under
the Act. 45
ii.
Enforcement of conciliation agreements
The second is a referral prompted by the breach of a conciliation agreement under 42
U.S.C. § 3610(c). “Whenever [HUD] has reasonable cause to believe that a respondent has
breached a conciliation agreement, [HUD] shall refer the matter to [DOJ] with a
39
24 C.F.R. § 103.400(a)(3), as amended by 59 Fed. Reg. 39956 (Aug. 5, 1994).
See 24 C.F.R. Part 103.
41
42 U.S.C. § 3614(b)(1)(A).
42
42 U.S.C. § 3614(b)(1)(B).
43
Schwemm, Housing Discrimination Law and Litigation, § 26:12 (West 2014).
44
Id.
45
42 U.S.C. § 3615; Astralis Condominium Ass’n v. Secretary, U.S. Dept. of Housing and Urban
Development, 620 F.3d 62, 70 (1st Cir. 2010) (the Fair Housing Act “manifests a clear
congressional intent to vitiate the application of any state law that would permit discrimination”).
40
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recommendation that a civil action be filed under [42 U.S.C. §] 3614” to enforce the
agreement. 46 DOJ’s suit must be filed within 90 days after the HUD referral, if at all. 47
c.
DOJ enforcement of HUD administrative subpoenas
The Fair Housing Act authorizes HUD to issue subpoenas in aid of its investigations and
administrative proceedings under 42 U.S.C. §§ 3610 to 3612. 48 Subpoenas may be issued on
behalf of HUD itself or on behalf of any party to a HUD proceeding. 49 The statute provides that
subpoenas may be ordered to the same extent and subject to the same limitations as would apply
in the federal district court where the investigation is taking place. 50 42 U.S.C. § 3614(c)
authorizes DOJ to bring a proceeding in the United States district court to enforce a Fair Housing
Act subpoena on behalf of HUD or the party at whose request the subpoena was issued.
C.
DOJ Fair Housing Act Investigations
1.
DOJ Fair Housing Act Investigation Triggers
Courts have opined that the “pattern or practice” and “general importance” requirements
under 42 U.S.C. § 3614(a) show that Congress did not intend DOJ to enforce private rights
provided by the Fair Housing Act “unless a specific violation has a measurable public impact.” 51
If neither a pattern or practice nor a group violation that raises an issue of general public
importance is shown, the defendant is entitled to judgment in a § 3614(a) case. 52 Unfortunately,
this limitation does not offer much help to a municipality at the investigation stage of a DOJ
enforcement action under the Fair Housing Act.
Although the courts do have responsibility for deciding the ultimate question of whether
a pattern or practice of resistance or a group denial raising an issue of general public importance
has been shown, DOJ need only have “reasonable cause to believe” such circumstances exist to
46
42 U.S.C. § 3610(c).
42 U.S.C. § 3614(b)(2)(B).
48
42 U.S.C. § 3611(a).
49
42 U.S.C. § 3611(a); 24 C.F.R. § 180.545.
50
42 U.S.C. § 3611(a)
51
U.S. v. Hunter, 459 F.2d 205, 217 (4th Cir. 1972).
52
Id.; see also U.S. v. University Oaks Civic Club, 653 F. Supp. 1469, 1476 (S.D. Tex. 1987).
47
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file a lawsuit under 42 U.S.C. § 3614(a). DOJ’s “reasonable cause” determination is not
reviewable by the courts. 53 Moreover, where HUD has referred a case involving legality of a
local land use law or a breached conciliation agreement, DOJ’s enforcement authority under 42
U.S.C. § 3614(b) is clear. If DOJ has broad discretion with respect to filing decisions, it has
complete discretion over the decision to investigate a municipality for Fair Housing Act
violations. It is difficult to determine, with certainty, precisely what triggers a particular DOJ
investigation. HUD administrative complaints under 42 U.S.C. § 3610 and private party lawsuits
under 42 U.S.C. § 3613 seem to be the most likely causes for DOJ investigations, but
investigations might be triggered by a number of other activities or events, such as a media
reports, statements or actions made by City representatives (even outside of their official
capacities), statements or actions of community residents, and, perhaps, even a municipality’s
reputation.
2.
Likely Focus of a DOJ Fair Housing Act Investigation
By the time DOJ notifies a municipality that it is under investigation for Fair Housing
Act violations, DOJ may have already formed strong opinions about the municipality’s
culpability. In practice, DOJ’s Fair Housing Act investigations seem to be more about proving
violations than trying to ascertain whether a violation has occurred. Thus, DOJ will likely focus
on evidence to make out a claim under the Fair Housing Act; not exculpatory evidence or
mitigating circumstances. Given that direct evidence of local officials’ animus against a
protected class is rarely available, 54 DOJ will not limit its examination to statements by a
municipality’s decision-makers.
53
E.g., U.S. v. City of Philadelphia, Pa., 838 F. Supp. 223, 227–28, aff’d, 30 F.3d 1488 (3d Cir.
1994); U.S. v. Housing Authority of City of Chickasaw, 504 F. Supp. 716, 726 (S.D. Ala. 1980);
U.S. v. City of Parma, Ohio, 494 F. Supp. 1049, 1095 n.64 (N.D. Ohio 1980), judgment aff’d,
661 F.2d 562 (6th Cir. 1981); see also U.S. v. Bahr, 856 F. Supp. 2d 1225, 1229 (M.D. Ala.
2012) (“For jurisdictional purposes, the statute does not require actual proof of the pattern or
practice of discrimination; the Attorney General need only [have] ‘reasonable cause’ to believe
that it occurred.”).
54
See, e.g., Atkins v. Robinson, 545 F. Supp. 852, 870 (E.D. Va. 1982), judgment aff'd, 733 F.2d
318 (4th Cir. 1984); Smith v. Town of Clarkton, N. C., 682 F.2d 1055, 1064–65 (4th Cir. 1982);
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With respect to claims based on discriminatory intent, DOJ will look to sources of proof
similar to those relied on in the context of equal protection claims. 55 The areas of examination
may include:
-
the discriminatory effect of the defendant’s action;
-
the historical background of the decision;
-
the specific sequence of events leading up to the decision;
-
departures from the normal procedural sequence;
-
departures from the normal substantive criteria; and
-
the legislative and administrative history of the decision. 56
A particularly disconcerting area of inquiry in DOJ Fair Housing Act investigations is the
desires of bigoted private citizens. Such private citizen desires have been relied on as
circumstantial evidence of discriminatory intent on the part of municipal decision-makers. In
United States v. City of Birmingham, Michigan, the district court, siding with DOJ, held:
In order to demonstrate a city's racially discriminatory intent, it is sufficient to
show that the decision-making body acted for the sole purpose of effectuating the
desires of private citizens, that racial considerations were a motivating factor
Metropolitan Housing Development Corp. v. Village of Arlington Heights, 558 F.2d 1283, 1290
(7th Cir. 1977).
55
See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252,
264–71 (1977) (articulating equal protection standard); see also Schwemm, Housing
Discrimination Law and Litigation, § 13:12 (West 2014) (“Fair Housing Act cases have adopted
the same standards that govern an equal protection claim as set forth by the Supreme Court in
Village of Arlington Heights v. Metropolitan Housing Development Corp.”).
56
429 U.S. at 266–68. Examples of Fair Housing Act cases following Arlington Heights include
U.S. v. Yonkers Bd. of Educ., 837 F.2d 1181, 1216–17 (2d Cir. 1987); U.S. v. City of
Birmingham, Mich., 727 F.2d 560, 565 (6th Cir. 1984); Greater New Orleans Fair Housing
Action Center v. St. Bernard Parish, 648 F. Supp. 2d 805, 809-19 (E.D. La. 2009); Atkins v.
Robinson, 545 F. Supp. 852, 870–71 (E.D. Va. 1982), judgment aff'd, 733 F.2d 318 (4th Cir.
1984); In re Malone, 592 F. Supp. 1135, 1166 (E.D. Mo. 1984), judgment aff'd, 794 F.2d 680
(8th Cir. 1986).
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behind those desires, and that members of the decision-making body were aware
of the motivations of the private citizens. 57
DOJ might also try to make out a discriminatory effects claim by collecting statistical
proof to show a municipal practice either (1) actually or predictably results in a disparate impact
on a protected class or (2) perpetuates segregated housing patterns along lines of race or other
protected characteristics. 58 The key to each of these theories is statistical proof of effects rather
than a decision-makers’ intent.
III.
WHAT TO EXPECT DURING THE INVESTIGATION
 Expect to be treated like a suspect
As noted above, the aim of DOJ Fair Housing Act investigations seems to be finding
facts to prove a violation. A municipality should not expect that facts supporting potential
defenses or mitigating circumstances will persuade DOJ to walk away from its investigation.
 Expect broad information requests, even in the absence of subpoenas
Even without the force of an administrative subpoena or civil subpoena, 59 DOJ will likely
request (i.e., demand) a wide range documents and electronically stored information potentially
relevant to a Fair Housing Act claim. Do not expect DOJ to limit its requests to public records
municipalities are obligated to produce.
 Do NOT expect DOJ to consider city officials “off limits”
57
U.S. v. City of Birmingham, Mich., 538 F. Supp. 819, 828 (E.D. Mich. 1982), aff’d as
modified, 727 F.2d 560 (6th Cir. 1984).
58
24 C.F.R. 100.500(a).
59
Note, HUD may issue subpoenas in the context of administrative actions under 42 U.S.C.
§ 3610 and DOJ is charged with enforcing such subpoenas pursuant to 42 U.S.C. § 3614(c), but
the Fair Housing Act does not provide DOJ independent authority to issue subpoenas absent an
administrative proceeding under 42 U.S.C. § 3610 or litigation under 42 U.S.C. § 3614.
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DOJ will likely request to interview decision-makers and will likely cover a wide range
of topics in such interviews. As noted above, direct evidence of discriminatory intent is rarely
available. Thus, interviews may attempt to delve into circumstantial evidence of intent, such as
community opposition, past decisions and changes in position, findings supporting of a decision,
and events and actions surrounding a decision.
 Do NOT expect reciprocity in the exchange of information
Because a DOJ Fair Housing Act investigation occurs prior to litigation, a municipality
will not have tools of discovery or subpoena at its disposal. DOJ is not likely to volunteer
information regarding its legal theories or the supporting factual basis. Such information will
need to be obtained in the context of settlement negotiations and, perhaps, only if DOJ receives
something in return.
 Expect request(s) for tolling agreement(s)
Although some DOJ claims under 42 U.S.C. § 3614 have relatively short limitations
periods, 60 DOJ will likely request a tolling agreement and extensions while it conducts its
investigation.
 Expect informal contact
Much of a DOJ Fair Housing Act investigation will likely be conducted by informal
contact from the Assistant United States Attorney(s) responsible for the case. Do not expect an
outline of a formal process or significant written information from DOJ during over the course of
the investigation.
 Expect attempts to resolve the investigation by consent decree
60
For example, under 42 U.S.C. § 3614(b), DOJ must file action based on HUD-referred land
use cases within eighteen months of the alleged discriminatory housing practice and DOJ must
file action based upon breach of a conciliation agreement within 90 days of its referral from
HUD. However, where civil penalties are sought, the five-year statute of limitations contained in
28 U.S.C. § 2462 seems to control and monetary claims where the DOJ is suing in a
representative capacity for the benefit of private individuals appear to be governed by the threeyear limitations period provided in 28 U.S.C. § 2415(b).
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Consent decrees appear to be DOJ’s tool of choice for resolving Fair Housing Act claims,
whether after judgment or in the connection with a negotiated settlement. 61
IV.
A FEW PRACTICAL TIPS FOR SURVIVING INVESTIGATIONS
 Immediately begin collecting and organizing all potentially relevant evidence
At the investigation stage, attorneys and clients should marshal all facts and evidence
potentially relevant to any legal theory DOJ might raise. There are times when a municipality
may wish to focus its resources on challenging DOJ’s overarching legal positions (such as DOJ’s
reliance on discriminatory effect theories to support claims under the Fair Housing Act), but fact
collection at the investigation stage should be all encompassing. Proving and disproving
discriminatory effect theories can be particularly time consuming and complex because such
theories tend to involve broad demographic information and statistical analysis. Clients will be
well-served by addressing facts related discriminatory effect theories before an investigation
becomes litigation.
 Prepare litigation hold letters concerning the investigation and continue to confirm
compliance
Since DOJ Fair Housing Act investigations tend to be about finding evidence to support
an alleged violations rather than determining whether violations have occurred, 62 notice of the
investigation may, in itself, be sufficient to trigger a duty to preserve evidence. 63
 Request information from DOJ, repeatedly if necessary
DOJ is not legally obligated, at the investigation stage, to share information with a
municipality the basis for a Fair Housing Act investigation or what facts the investigation has
yielded. Still, this should not stop the municipality from requesting information about the
61
See “Recent Accomplishments of the Housing and Civil Enforcement Section” (updated June
3, 2014), available at http://www.justice.gov/crt/about/hce/whatnew.php.
62
Section III, infra, “Expect to be treated like a suspect.”
63
In re Napster, Inc. Copyright Litig., 462 F.Supp.2d 1060, 1067 (N.D. Cal. 2006) (“a litigant is
under a duty to preserve evidence which it knows or reasonably should know is relevant to the
action”). Apple Inc. v. Samsung Electronics Co., Ltd., 881 F.Supp.2d 1132, 1136 (N.D. Cal.
2012) (The duty attaches “from the moment that litigation is reasonably anticipated”).
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investigation. Despite any protestations to the contrary, DOJ generally seems motivated to settle
rather than litigate Fair Housing Act cases. 64 When requesting information about the
investigation, remind DOJ that city staff and officials need investigation information to
appropriately analyze, and make informed decisions about, potential settlement terms.
 Prepare city staff and officials for press inquires and public comments
The record for Fair Housing Act litigation is created, in large part, during DOJ’s
investigation. Because direct evidence of discriminatory intent is rarely available, DOJ will rely
heavily on circumstantial evidence. City staff and officials should expect that any press
statements or public comments made by them or attributed to them will be scrutinized by DOJ
and potentially used as evidence of discrimination. 65 Discriminatory admissions and other
incriminating statements made by a defendant’s agent are attributable to the principal. 66
 Notify insurers or joint powers authorities of potential claim and examine
availability of coverage
DOJ often seeks significant monetary penalties in Fair Housing Act settlements. It is
wise to notify insurers and begin exploring the availability of insurance coverage for potential
Fair Housing Act violations well before DOJ completes its investigation. Complex coverage
issues can arise, particularly where there are “pattern and practice” allegations spanning several
years and touching on a variety of municipal functions.
 Carefully consider the costs of litigation, including attorneys fees and appeals
Although damage awards in the housing discrimination field have generally been quite
modest, a client can incur significant cost from its own attorneys’ trial preparation and from the
plaintiff’s fees in the event of a loss. Ironically, many defendants have been badly served by
64
http://www.justice.gov/crt/about/hce/whatnew.php
See, e.g., U.S. v. Big D Enterprises, Inc., 184 F.3d 924, 930 (8th Cir. 1999); Thronson v.
Meisels, 800 F.2d 136, 142 (7th Cir. 1986).
66
See, e.g., Hobson v. HSC Real Estate, Inc., 483 Fed. Appx. 332, 333 (9th Cir. 2012); cf.
Daniels v. Brooklyn Estates & Properties Realty, 413 Fed. Appx. 399, 401 (2d Cir. 2011)
(discriminatory statement by one defendant’s employee was not admissible against another
defendant because this employee was not shown to be an agent of the second defendant).
65
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winning the case at the trial court level on a questionable ground, because a successful appeal by
the plaintiff eventually comes to be paid for by the defendant. Settlement should be carefully
considered at the investigation stage. 67
 Tell your story to an influential audience
The DOJ attorneys leading an investigation might not have authority to settle a case or a
complete understanding of all the factors driving the decision to undertake the investigation.
Municipal attorneys and their clients should do everything in their power to get an audience with
an ultimate decision maker at the DOJ.
 Support fair housing
67
See Schwemm, Housing Discrimination Law and Litigation, § 33:13 (West 2014).
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2014 League of California Cities Annual Conference – City Attorneys’ Track
Los Angeles Convention Center, Los Angeles