BOYKIN et al v. FENTY

Filing 92

OPINION granting the defendant's motion to dismiss or, in the alternative, for summary judgment. An order consistent with this opinion will issue this same day. Signed by Judge Paul L. Friedman on September 30, 2013. (MA)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
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Plaintiffs,
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v.
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VINCENT GRAY,
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Defendant.
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___________________________________ )
WILLIAM BOYKIN, et al.,

Civil Action No. 10-1790 (PLF)

OPINION
This matter is before the Court on the District of Columbia’s motion to
dismiss, or, in the alternative, for summary judgment. 1 The plaintiffs are a group of
homeless men who claim that the District’s closure of La Casa Shelter, where they
frequently stayed, has caused a disparate impact on African Americans and Hispanics in
violation of the Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq. Based on this
alleged violation, the plaintiffs seek compensatory and punitive damages, as well as an
injunction requiring the District of Columbia to re-establish emergency shelter housing in

1

The papers reviewed in connection with this matter include the following:
the defendant’s motion to dismiss, or, in the alternative, for summary judgment (“MSJ”)
[Dkt. No. 78]; the plaintiffs’ opposition (“Opp.”) [Dkt. No. 85-2]; the defendant’s reply
(“Reply”) [Dkt. No. 89]; the defendant’s statement of material facts (“Def.’s Stmt. of
Material Facts”) [Dkt. No. 78]; the plaintiffs’ second amended complaint (“2d Am.
Compl.”) [Dkt. No. 74]; the plaintiffs’ exhibits to the second amended complaint [Dkt.
Nos. 74-1, 74-2]; additional exhibits submitted by plaintiffs [Dkt. Nos. 42-2, 84-1];
Declaration of Fred Swan, Nov. 29, 2010 (“Swan Declaration No. 1”) [Dkt. No. 27-1];
Declaration of Fred Swan, Oct. 19, 2012 (“Swan Declaration No. 2”) [Dkt. No. 78-2];
District of Columbia Draft FY 2011 Federal Payment Budget Justification (“Budget
Justification”) [Dkt. No. 27-3]; Special Warranty Deed [Dkt. No. 27-5]; and additional
exhibits submitted by both parties, though not cited in this Opinion.

the area where La Casa was located. 2d Am. Compl. ¶¶ 80-81, 94-99. In an earlier
decision denying the District’s motion to dismiss this claim, the Court concluded that the
plaintiffs had plausibly stated a prima facie claim for disparate impact based on race
under the FHA. See Boykin v. Gray, 895 F. Supp. 2d 199, 211-14 (D.D.C. 2012).
Having already analyzed the plaintiffs’ claim under Rule 12(b)(6) of the Federal Rules of
Civil Procedure, and no new arguments having been proffered supporting dismissal, the
Court will address only the defendant’s arguments for summary judgment.

I. LEGAL STANDARD
A motion for summary judgment must be granted if “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); see FED. R. CIV. P. 56(a), (c). A disputed fact is “material” if it
“might affect the outcome of a suit under governing law.” Holcomb v. Powell, 433 F.3d
889, 895 (D.C. Cir. 2006). A dispute over a material fact is “genuine” if it could lead a
reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris,
550 U.S. 372, 380 (2007); Holcomb v. Powell, 433 F.3d at 895. A court making this
determination must avoid making any credibility evaluations of its own and must weigh
the evidence presented by each party in the light most favorable to the opposing party.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Czekalski v. Peters, 475 F.3d 360, 363
(D.C. Cir. 2007).
An opposition to a motion for summary judgment must point to genuine
issues of material fact supported by competent evidence beyond mere supposition.

2

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see Smith
v. Janey, 664 F. Supp. 2d 1, 7 (D.D.C. 2009) (“The non-moving party’s opposition . . .
must consist of more than mere unsupported allegations or denials and must be supported
by affidavits, declarations or other competent evidence setting forth specific facts
showing there is a genuine issue for trial.”). If the non-movant’s evidence is “merely
colorable” or “not significantly probative,” summary judgment may be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50; see Scott v. Harris, 550 U.S. at 380
(“Where the record taken as a whole could not lead a rational trier of fact to find for the
nonmoving party, there is ‘no genuine issue for trial.’”) (quoting Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. at 587). “[S]ummary judgment is required ‘against a
party who 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.’” Paige v. DEA, 665 F.3d 1355, 1358 (D.C. Cir. 2012) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)).

II. DISCUSSION
A. Disparate Impact Under the Fair Housing Act
In its earlier decision analyzing the plaintiffs’ race-based disparate impact
claim under a Rule 12(b)(6) standard, the Court articulated the basic governing legal
framework. There, the Court noted that the D.C. Circuit is the only court of appeals that
has not yet decided on the availability of disparate impact claims under the FHA. Boykin
v. Gray, 895 F. Supp. 2d at 211. Each of the other eleven circuits has held that the statute
affords plaintiffs the ability to prove FHA violations on the theory of disparate impact.
2922 Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d 673, 679 (D.C. Cir.

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2006). On two occasions, our circuit has analyzed such claims under the assumption that
they are cognizable, without deciding the question. See Greater New Orleans Fair
Housing Action Ctr. v. U.S. Dept. of Housing & Urban Dev., 639 F.3d 1078, 1085-88
(D.C. Cir. 2011); 2922 Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at
678-82. 2
Other circuits have established a considerable body of case law analyzing
disparate impact claims based on race under the FHA. These cases have developed two
variants of disparate impact theory: “disproportionate effect” and “segregative effect.”
Boykin v. Gray, 895 F. Supp. 2d at 211-14. Under the first, “to prove a disparate impact
claim . . . a plaintiff must first demonstrate that the challenged policy or practice has a
disproportionate effect on a protected class.” Id. at 211 (quoting 2922 Sherman Ave.
Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 679). Under the second, “if [a decision]
perpetuates segregation and thereby prevents interracial association it will be considered
invidious under the Fair Housing Act independently of the extent to which it produces a
disparate effect on different racial groups.” Id. at 213 (quoting Graoch Assocs. # 33, L.P.
v. Louisville/Jefferson Cnty. Metro Human Relations Comm’n, 508 F.3d 366, 378 (6th
Cir. 2007)).
Demonstrating disparate impact under either framework, however, does
not lead immediately to a defendant’s liability under the FHA. Rather, after a plaintiff
2

On February 15, 2013, the United States Department of Housing and
Urban Development issued a final rule establishing that disparate impact claims are
cognizable under the FHA. 78 Fed. Reg. 11460 (Feb. 15, 2013) (codified at 24 C.F.R.
§ 100.500 (2013)). On June 17, 2013, the Supreme Court granted certiorari on this same
question. Petition for Writ of Certiorari, Township of Mt. Holly, N.J. v. Mt. Holly
Garden Citizens in Action, Inc., (No. 11-1507), granted in part by 133 S. Ct. 2824 (2013)
(granting certiorari on Question 1: “Are disparate impact claims cognizable under the
Fair Housing Act?”).
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has successfully proved a prima facie case, a court will then examine the defendant’s
conduct to determine whether there is sufficient justification for the disparate impact
caused. There are “two leading tests” for this second step of the disparate impact inquiry
under the FHA. See Greater New Orleans Fair Housing Action Ctr. v. U.S. Dept. of
Housing & Urban Dev., 639 F.3d at 1085. The Second Circuit has adopted a “burdenshifting framework: once the plaintiff demonstrates that the challenged practice has a
disproportionate impact, the burden shifts to the defendant to ‘prove that its actions
furthered, in theory and in practice, a legitimate, bona fide governmental interest and that
no alternative would serve that interest with less discriminatory effect.’” 2922 Sherman
Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 680 (quoting Huntington Branch,
NAACP v. Town of Huntington, 844 F.2d 926, 935-36 (2d Cir.), aff’d on other grounds,
488 U.S. 15 (1988)). Under the Seventh Circuit’s approach, the court engages in a “fourfactor balancing test” in which it considers “(1) the strength of the plaintiff’s showing of
discriminatory effect; (2) whether any evidence indicates discriminatory intent; (3) the
defendant’s interest in taking the challenged action; and (4) whether the plaintiff seeks to
compel the defendant to affirmatively provide housing to a protected class or merely to
restrain the defendant from interfering with individual property owners who wish to
provide such housing.” Id. (citing Metropolitan Housing Dev. Corp. v. Village of
Arlington Heights, 558 F.2d 1283, 1290 (7th Cir. 1977), cert. denied, 434 U.S. 1025
(1978)). “Our circuit has noted, however, that in some cases ‘the success of plaintiffs’
claim doesn’t turn on the details of the legal test’ because ‘either approach requires proof
of disproportionate impact, measured in some plausible way.’” Boykin v. Gray, 895 F.

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Supp. 2d at 211 (quoting Greater New Orleans Fair Housing Action Ctr. v. U.S. Dept. of
Housing & Urban Dev., 639 F.3d at 1085).
At the motion to dismiss stage, the Court concluded that the plaintiffs had
presented factual allegations that fell within the contours of a cognizable prima facie
claim under both variants of disparate impact theory. Boykin v. Gray, 895 F. Supp. 2d at
211-14. The District of Columbia now argues that the plaintiffs have not offered
evidence sufficient to support a reasonable jury’s finding that the closure of La Casa
Shelter caused a significant disparate impact — either disproportionate or segregative —
on African Americans and Hispanics. See MSJ at 13-18. In addition, the District argues
that even if the plaintiffs were able to make out a prima facie case, the District’s decision
to close La Casa does not violate the FHA under the tests of either the Second or the
Seventh Circuits. Id. at 18-23.

B. Disproportionate Effect
Our court of appeals has emphasized that success on a disparate impact
claim “requires proof of disproportionate impact, measured in some plausible way.”
Greater New Orleans Fair Housing Action Ctr. v. U.S. Dept. of Housing & Urban Dev.,
639 F.3d at 1085. With that said, “no single test controls in measuring disparate impact.”
Langlois v. Abington Housing Authority, 207 F.3d 43, 50 (1st Cir. 2000) (citing Watson
v. Fort Worth Bank & Trust, 487 U.S. 977, 995-96 n.3 (1988)); see also Hallmark
Developers, Inc. v. Fulton Cnty., Ga., 466 F.3d 1276, 1286 (11th Cir. 2006). The Court
has previously noted that, in this case, a seemingly applicable framework for analyzing
the plaintiffs’ claim derives from decisions that “have held that where the population
relying on or in need of housing assistance is disproportionately composed of racial

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minorities, a decision adversely affecting the availability of that assistance has a
disproportionate impact on a protected class.” See Boykin v. Gray, 895 F. Supp. 2d at
211-12 (citing cases from several courts of appeals); see also Gallagher v. Magner, 619
F.3d 823, 833 (8th Cir. 2010) (establishing a prima facie case “requires showing ‘that the
objected-to action[s] result[ed] in . . . a disparate impact upon protected classes compared
to a relevant population’”) (quoting Darst-Webbe Tenant Ass’n Bd. v. St. Louis Housing
Auth., 417 F.3d 898, 902 (8th Cir. 2005)) (alterations in original). In the specific context
of this case, then, the test becomes, “[i]f a disproportionately high percentage of the
homeless population in Washington, D.C., is minority, then action by the District
adversely affecting that population could [make out a prima facie] claim for disparate
impact.” Id. at 212.
Accordingly, the plaintiffs focus the Court’s attention on the fact that
African Americans and Hispanics are overrepresented in the District’s homeless
population, compared to these groups’ collective representation in the general population
of Washington, D.C. See Opp. at 5, 13. Although the plaintiffs fail to cite to portions of
the record on which this assertion is based, there is indeed evidence in the record to
support it. The defendant, in its statement of material facts as to which it asserts there are
no genuine issues, provides a relevant statistic, noting that “87.2% of the men served in
shelters within the District of Columbia from May through October 2010 were African
American or Hispanic.” Def.’s Stmt. of Material Facts ¶ 3. 3 This percentage is to be

3

The District correctly points out, Reply at 3, that the plaintiffs have failed
to comply with Local Civil Rule 7(h), which requires that oppositions to motions for
summary judgment “be accompanied by a separate concise statement of genuine issues
setting forth all material facts as to which it is contended there exists a genuine issue
necessary to be litigated, which shall include references to the parts of the record relied
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compared to data from the 2010 U.S. Census showing that 61.3% of the District’s general
population self-identifies as either African American or Hispanic. Id. ¶ 5. Based on this
comparison, the plaintiffs argue that the closure of La Casa exerted a disproportionate
adverse impact on African Americans and Hispanics.
At first glance, the plaintiffs’ argument may bear similarity to the types of
disparities that have led to findings of disproportionate effect in some other cases. But
upon closer scrutiny, it becomes evident that their simple comparison — unaccompanied
by any further statistical evidence or analysis — does not provide the basis for such a
finding in this case. Cf. Gallagher v. Magner, 619 F.3d at 837 (“Statistics to prove
discrimination ‘come in infinite variety and . . . their usefulness depends on all of the
surrounding facts and circumstances.’”) (quoting Int’l Brotherhood of Teamsters v.
United States, 431 U.S. 324, 340 (1977)) (alteration in original). The fundamental defect
in the plaintiffs’ argument is that the adverse impact of which they complain was suffered
not by the entire homeless population in the District of Columbia, nor even by a
significant portion of its more than 6,000 members. See Def.’s Stmt. of Material Facts
¶ 4 (stating results of annual Point in Time count for 2010). Rather, the loss of La Casa
Shelter — which had just ninety beds — was felt by a much smaller subset of that
population. This sort of “analytical cherry picking” pushes the disparate impact doctrine
toward a level of granularity at which it loses its meaning. See Greater New Orleans Fair
Housing Action Ctr. v. U.S. Dept. of Housing & Urban Dev., 639 F.3d at 1087. As the
D.C. Circuit has explained in an analogous context:

on to support the statement.” LOC. CIV. R. 7(h). Accordingly, the Court may treat factual
assertions contained in the defendant’s statement as conceded. See McGaughey v. Dist.
of Columbia, 740 F. Supp. 2d 23, 30 (D.D.C. 2010).
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If the economic profiles of racial groups differ from parish to parish in the
parts of Louisiana affected by hurricanes Katrina and Rita, then a grant
formula that has non-disparate racial effects for Louisiana as a whole can
easily have a disparate impact on African-American residents in at least
some individual parishes (not to mention smaller geographic units). To
allow plaintiffs to pick a special subset of the affected localities to test for
disparate impact would, just like allowing them to single out [] the effects
of a single formula element, expose almost any grant formula to litigation.
Although plaintiffs focus much of their case on Orleans Parish, we must
consider the impact on Louisiana as a whole.
Id. at 1086.
Similarly here, the shuttering of La Casa Shelter cannot be considered in
isolation from its circumstances. To do so ignores a crucial characteristic of the law of
disparate impact, which is its focus on facially neutral policies that systematically exert
discriminatory effects within the population to which they apply. See, e.g., Gallagher v.
Magner, 619 F.3d at 834 (“The first component of [plaintiffs’] prima facie case is an
identifiable, facially-neutral policy or practice.”); Tsombanidis v. West Haven Fire Dept.,
352 F.3d 565, 574 (2d Cir. 2003) (“Disparate impact analysis focuses on facially neutral
policies or practices that may have a discriminatory effect.”); Oti Kaga, Inc. v. S.D.
Housing Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003) (a plaintiff “must show a facially
neutral policy has a significant adverse impact on members of a protected minority
group”).
The D.C. Circuit has usefully explained the distinction between discrete
acts that affect individuals or small groups, and policies that are generally applicable and
thus the more appropriate object of disparate impact analysis. In 2922 Sherman Ave.
Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 676-78, several tenants’ groups alleged
that the District, in executing a policy to aggressively enforce the city’s housing code —
dubbed the Hot Properties Initiative — subjected Hispanic residents to both disparate

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treatment and disparate impact in violation of the FHA. At trial, the tenants of one
building, located at 1512 Park Road, prevailed on their disparate impact claim. The court
of appeals, in articulating the plaintiffs’ theory of the case, clarified that “the policy the
tenants’ disparate impact claim challenges is not the closing of 1512 Park Road — hardly
a policy, in any event — but the Hot Properties Initiative, specifically the use of the Hot
Properties List to determine which buildings to close. Under the tenants’ theory of the
case, the closing of 1512 Park Road is significant because it constitutes the injury they
suffered as a result of the Hot Properties Initiative.” Id. at 680 (citation omitted).
The court analogized to the paradigm example of disparate impact in the
employment context, where an employer “refus[es] to hire a single individual based on
the results of an allegedly discriminatory test.” 2922 Sherman Ave. Tenants’ Ass’n v.
Dist. of Columbia, 444 F.3d at 680; see also id. at 679 (discussing Griggs v. Duke Power
Co., 401 U.S. 424 (1976), the “seminal case” on disparate impact). Such a plaintiff
would not be required to show that the employer’s refusal to hire her “disproportionately
affected her protected class,” as “such an inquiry would make little sense where the
employer’s action affected only one person.” Id. Rather, the plaintiff would have to
demonstrate that the policy that led to her individual injury — that is, the administration
of the test — caused a disparate impact on the protected class. Id.; cf. Huntington
Branch, NAACP v. Town of Huntington, 844 F.2d at 934 (“There is always some
discrete event . . . which touches off litigation challenging a neutral rule or policy.”).
Here, the plaintiffs have failed to offer evidence that proves the existence
of any more general policy or practice that has adversely affected the District’s homeless
population, of which the closure of La Casa was a constituent part. They have failed to

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show, for example, that this event was representative of a general decrease in the
availability of shelter for homeless residents of the city; they have simply pointed to the
loss of ninety beds of shelter housing in one location, where they had been accustomed to
staying. In addition, many of the plaintiffs, in declarations submitted in support of their
claim, have acknowledged their having found lodging in other shelters in the city after La
Casa was shut down. See Pls.’ Exhs. 1-2 [Dkt. Nos. 74-1, 74-2].
The District, for its part, has argued that the closure of La Casa Shelter did
occur as part of a broader shift in the District’s policy toward its homeless citizens — but
that the effects of this policy for the disproportionately minority homeless population
have been, on the whole, positive rather than adverse. Specifically, it asserts that it has
been pursuing a transition toward placing Permanent Supportive Housing (“PSH”) —
rather than emergency shelters — at the center of its approach to serving homeless
residents. To support this assertion, it offers declarations from the District’s top official
in charge of homeless shelters, as well as an excerpt from the District’s budget
justification to the federal government for fiscal year 2011. See Swan Declaration No. 1;
Swan Declaration No. 2; Budget Justification. The defendant has also offered evidence
that between 2008 and 2010, the number of beds available to homeless persons in the
District actually increased, due to its placement of over 600 men into Permanent
Supportive Housing, balanced against its closure of two shelters, Franklin School and La
Casa, which removed 390 beds from the District’s shelter system. See Swan Dec. No. 1
¶ 7. Finally, the District describes its plans for future expansion of the PSH program,
which includes constructing 45 PSH apartments adjacent to the former location of La
Casa. Swan Dec. No. 2 ¶ 4.

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Although the plaintiffs have criticized the District’s implementation of the
PSH program on various grounds, they have not rebutted this evidence with evidence of
their own. In their Second Amended Complaint, for example, the plaintiffs state that the
PSH program has been operated without transparency, and that former residents of La
Casa have been placed in housing that is distant from necessary social services. 2d Am.
Compl. ¶¶ 69-71. In their opposition to the District’s motion for summary judgment,
however, they do not point to or proffer any evidence that counters the District’s
assertion, supported by a declaration from the responsible official, that the PSH program
has yielded a net increase in the availability of housing for the homeless population.
Instead, the plaintiffs repeatedly emphasize their disagreement with the analytical
approach offered by the defendant, and assert that they will be able to prove
disproportionate effect at some future time, perhaps with the aid of an expert. See Opp.
at 5, 9-14. But the standard for summary judgment requires the plaintiffs to put forth
competent evidence now, see Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. at 586, to make “a showing sufficient to establish the existence of an element
essential” to the proof of their case. Celotex Corp. v. Catrett, 477 U.S. at 322; see FED.
R. CIV. P. 56(c). As the Court has explained, the plaintiffs point to no evidence currently
in the record — other than the disproportionate representation of minorities in the
District’s homeless population — to demonstrate their ability to make such a showing.
Rather, they have shown only that a very small subset of the homeless population was
deprived of housing in one location.
As this Court noted in its earlier decision, the most relevant cases from the
courts of appeals “involve government action affecting all persons within a community

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who need low-income housing, and . . . these cases do not necessarily apply with equal
force to government action that affects a much smaller portion of the community.”
Boykin v. Gray, 895 F. Supp. 2d at 212 n.11. 4 The seminal Village of Arlington Heights
case, for example, involved a challenge to the defendant village’s refusal to rezone
property on which the plaintiffs intended to build low-income housing. Metropolitan
Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d at 1285-86. Although the
particular housing development at issue involved just 190 townhouse units, the village’s
zoning decision would violate the FHA, the court held, if it “effectively foreclose[d] the
construction of any low-cost housing within its corporate boundaries.” Id. at 1285-86.
The court’s decision was also based in part on the fact that the proposed development
“would create a substantial number of federally subsidized low-cost housing units” in a
village that “remain[ed] almost totally white in a metropolitan area with a significant
percentage of black people.” Id. at 1288. Similarly, in Keith v. Volpe, 858 F.2d 467 (9th
Cir. 1988), cert. denied, 493 U.S. 813 (1989), the district court had found that the
defendant city’s failure to construct two housing developments “seriously jeopardize[d]
the ability of a large number of minority residents to continue residing in [the City of
Hawthorne].” Id. at 483.
In Huntington Branch, NAACP v. Town of Huntington, 844 F.2d at 928,
the plaintiffs challenged the defendant town’s refusal to permit the construction of
subsidized housing outside of an “urban renewal area.” The particular controversy
involved just one proposed subsidized apartment complex, but the lawsuit implicated the
4

The Court added that, “[t]he smaller the affected population . . . the less
readily it can be said that a racially disproportionate effect within that population affects
housing options for the racial group as a whole.” Boykin v. Gray, 895 F. Supp. 2d at
212-13 n.11.
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validity of the restrictive zoning ordinance generally. See id. at 928-29, 937-38.
Accordingly, to determine disproportionate effect, the court considered town-wide
statistics showing that African Americans were much more likely to depend on affordable
rental housing. Id. at 929. A significant compounding factor in the court’s reasoning
involved the segregative effect of restricting low-income housing construction to an area
with a high concentration of minority residents, particularly given that the town of
200,000 people was 95% white. See id.
Although the precise number of affected individuals relevant to the inquiry
in this case is a matter of dispute between the parties, it is clear that the plaintiffs cannot
seriously contend that the closure of La Casa exerted an adverse impact on the full
homeless population of the city, let alone that it has significantly restricted housing
options for people of color more generally. 5 Indeed, as the District has argued, while the
plaintiffs and their fellow regulars at La Casa were adversely affected by the loss of this
particular shelter, other homeless residents of Washington, D.C. — also
disproportionately African American and Hispanic — had been afforded increased access
to housing due to the District’s policies. See Swan Dec. No. 1 ¶ 7 (describing net
increase in availability of housing for homeless persons between 2008 and 2010, despite
closure of La Casa in October 2010).

5

The District identifies 114 individuals for this part of the analysis, which
is the number of men who stayed at La Casa during the month preceding its closure. MSJ
at 14 (citing Swan Declaration No. 2 ¶ 2). The plaintiffs do not dispute the accuracy of
this measure, but they disagree with its materiality, arguing that the appropriate statistical
analysis would include the “hundreds if not thousands of minority . . . men” who were
served by La Casa during its existence, as well as an indeterminate amount of people who
might be affected currently and in the future by its loss. Opp. at 7-8.

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To summarize, although the plaintiffs’ claim seems to fall within the broad
outlines of disproportionate effect doctrine, given the disproportionately minority
homeless population in the District of Columbia at large and in its shelters, the plaintiffs
have not provided statistical information — or any evidence, for that matter — beyond
that which was available at the motion to dismiss stage. In particular, they have not
provided statistical argument or evidence to counter the District’s evidence;
consequently, there is nothing on which a reasonable jury could base a finding that the
closure of La Casa Shelter constituted or was representative of a broader adverse impact
suffered by the homeless population of Washington, D.C. See Frito-Lay, Inc. v.
Willoughby, 863 F.2d 1029, 1033 (D.C. Cir. 1988) (“[T]he Supreme Court has
unambiguously declared that the nonmoving party must ‘go beyond the pleadings and by
[its] own affidavits, or by the depositions, answers to interrogatories, and admissions on
file designate specific facts showing that there is a genuine issue for trial.’”) (quoting
Celotex Corp. v. Catrett, 477 U.S. at 324) (alteration in original) (internal quotation
marks omitted). The Court does not doubt that for the men who considered La Casa to be
their home, its removal was painful and disruptive to their lives; but this fact does not
constitute evidence that a protected class of persons has been disproportionately affected
in a manner cognizable under the FHA.

C. Segregative Effect
The plaintiffs have also stated a claim under an alternative method of
proving disparate impact, which requires demonstrating that a defendant’s action
“perpetuates segregation and thereby prevents interracial association.” Boykin v. Gray,
895 F. Supp. 2d at 213 (quoting Graoch Assocs. # 33, L.P. v. Louisville/Jefferson Cnty.

15

Metro Human Relations Comm’n, 508 F.3d at 378). As this Court has previously
explained, the plaintiffs’ basic argument is that the closure of La Casa fits into a pattern
of the District’s pushing homeless persons from the northwest quadrant of Washington —
which holds its highest concentration of white residents — into the northeast and
southeast quadrants of the city, which have predominantly African American populations.
Id. at 213. At the motion to dismiss stage, the plaintiffs made this claim without much
evidentiary support, apart from demographic information about the racial composition of
the District’s various neighborhoods, alongside assertions — supported by declarations
— that some former La Casa residents had been displaced to shelters located in areas
with high concentrations of minority residents. See id. at 213-14. Although these factual
allegations were sufficient to withstand a motion to dismiss for failure to state a claim,
the Court warned the plaintiffs that “[w]ith respect to any segregative effect theory,
proving the displacement of homeless persons will not suffice; rather, the plaintiffs will
need to demonstrate that the closure of La Casa had a measurable impact on the racial
composition of the city’s wards or neighborhoods.” Id. at 214.
As the District points out in its motion for summary judgment, however,
the plaintiffs have failed to produce evidence on which a reasonable jury could make
such a finding of measurable impact. MSJ at 15. The plaintiffs continue to rely primarily
on the bare fact that La Casa was closed, and that the remaining low-barrier shelters for
homeless men are located in predominantly minority areas. See Opp. at 5-9; Pls. Exh. 5
[Dkt. No. 84-1]. Although the Court considered this scenario sufficient to state a
plausible claim for segregative effect under a motion to dismiss standard, summary
judgment should be granted if the plaintiffs’ evidence is “merely colorable” or “not

16

significantly probative,” as is the case here. See Anderson v. Liberty Lobby, Inc., 477
U.S. at 249-50.
To be sure, the plaintiffs argue that La Casa’s closure took place within a
broader context of “displacement across the city,” Opp. at 7, which includes the District’s
closure of the Franklin School Shelter in 2008, the District’s placement of homeless
persons in Permanent Supportive Housing apartments located in predominantly minority
areas, as well as the shifting demographics of the city. See id. at 5-11; Pls.’ Exh. 5 [Dkt.
No. 42-2]. But the plaintiffs have failed to put forth the kind of supporting material that
would demonstrate an ability to prove that La Casa’s closure caused “a measurable
impact on the racial composition of the city’s wards or neighborhoods,” Boykin v. Gray,
895 F. Supp. 2d at 214, such as by, for example, “showing that the numbers of homeless
individuals in Wards 1 and 2 have significantly decreased, with a commensurate increase
in the number of homeless residents of Ward 8,” or “track[ing] . . . the dispersal of the
individuals who used to populate La Casa.” Opinion, Boykin v. Fenty, Civil Action No.
10-1790 (Dec. 17, 2010), at 9 (denying the plaintiffs’ motion for a preliminary
injunction). In addition, the District claims, with some evidentiary support, that it is
establishing PSH apartments in more integrated areas, including on a portion of the site
where La Casa used to stand. See Swan Declaration No. 2 ¶ 4.
In short, the plaintiffs have not supplemented the record with any
additional probative evidence since surviving the District’s motion to dismiss. Although
they continue to describe a scenario in which the District’s actions could plausibly
perpetuate segregation, they have failed to produce any evidence on the basis of which a
reasonable jury could find that such segregation has actually resulted from the closure of

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La Casa, even considered in concert with the closure of the Franklin shelter and the
implementation of the PSH program. This failure means that their claim cannot
withstand a motion for summary judgment, given that “a disparate impact claim . . .
require[s] plaintiffs to establish that the challenged policy actually had a disparate
impact.” 2922 Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 684; see
also Pfaff v. U.S. Dept. of Housing & Urban Dev., 88 F.3d 739, 746 (9th Cir. 1996) (“To
establish a prima facie case of discrimination without intent, the charging party must
‘prove the discriminatory impact at issue; raising an inference of discriminatory impact is
insufficient.’”) (quoting Palmer v. United States, 794 F.2d 534, 538-39 (9th Cir. 1986)).

D. The Seventh and Second Circuits’ Tests for Liability Under the FHA
Although the Court concludes that the plaintiffs have failed to provide
sufficient evidence on which a reasonable jury could find that they have proved their
prima facie case, the Court also determines that, even if they had done so, the District
would be entitled to judgment as a matter of law. “[T]he establishment of a prima facie
case, by itself, is not enough to establish liability under the FHA.” Mt. Holly Garden
Citizens in Action, Inc. v. Township of Mt. Holly, 658 F.3d 375, 385 (3d Cir. 2011), cert.
granted,133 S. Ct. 2824 (2013); see also Langlois v. Abington Housing Auth., 207 F.3d
at 50; Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d at
1290 (“[W]e refuse to conclude that every action which produces discriminatory effects
is illegal. Such a per se rule would go beyond the intent of Congress and would lead
courts into untenable results in specific cases.”). Accordingly, the courts of appeals have
developed analytical frameworks for examining practices that produce disparate effects,
to determine whether a defendant’s causing such an effect warrants liability under the

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FHA. As our own circuit has noted, there are “two leading tests,” emanating from the
Second and Seventh Circuits. See Greater New Orleans Fair Housing Action Ctr. v. U.S.
Dept. of Housing & Urban Dev., 639 F.3d at 1085. The District of Columbia, in its
motion for summary judgment, argues that it prevails under either approach. See MSJ at
18-23. The Court agrees.

1. The Second Circuit’s Burden-Shifting Test
In Huntington Branch, NAACP v. Town of Huntington, 844 F.2d at
935-39, the United States Court of Appeals for the Second Circuit drew from
employment discrimination jurisprudence, as well as from an earlier Third Circuit case
under the FHA, to establish a burden-shifting approach for determining ultimate liability
under the statute. The court held that, “once the plaintiff demonstrates that the
challenged practice has a disproportionate impact, the burden shifts to the defendant to
‘prove that its actions furthered, in theory and in practice, a legitimate, bona fide
governmental interest and that no alternative would serve that interest with less
discriminatory effect.’” 2922 Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444
F.3d at 680 (quoting Huntington Branch, NAACP v. Town of Huntington, 844 F.2d at
935-36).
Here, the District of Columbia advances two justifications for its
challenged conduct. First, the District claims that it had no choice other than to close La
Casa and vacate the premises, because the underlying land was owned by a private entity,
Donatelli Development. MSJ at 19-21. Second, it argues that closing La Casa was done
pursuant to the District’s implementation of its Strategic Action Plan to End
Homelessness, which, according to the defendant, represents the considered policy

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judgment of the District’s government as to how it can best serve its homeless
population. Id. at 21-22. The plaintiffs respond that “PSH programs were never intended
to be mutually exclusive with the existence of low barrier shelters,” and argue further that
the arrangement of PSH placements for some homeless persons does not mitigate the
need for low-barrier shelters to exist within the city. Opp. at 14-16. In addition, the
plaintiffs assert that the existence of “any less discriminatory alternatives the District may
have had remains a jury question.” Id. at 14.
The District’s first argument is not supported by the evidence in the
record. Although it is true that, at the time of La Casa’s closure in 2010, the land on
which the shelter stood was owned by Donatelli Development, the plaintiffs note —
correctly, it seems — that this situation stems from the District’s own sale of the land to
Donatelli in 2008. See 2d Am. Compl. ¶¶ 46-47; Special Warranty Deed (conveying
property to Donatelli for consideration of $10.00). Thus, viewing the evidence in the
light most favorable to the plaintiffs, a reasonable jury could find that the District’s first
justification fails as a “bona fide governmental interest,” as the District apparently chose
to sell the property with the knowledge that Donatelli intended to develop the land, which
would, of course, necessitate La Casa’s removal.
The District’s second justification — that it closed the shelter pursuant to
its broader policy on homelessness — has more merit. When a disparate impact claim
under the Fair Housing Act implicates government policy, the question is whether the
challenged action furthers a legitimate, bona fide governmental interest or policy and that
no alternative would further that interest or policy with less discriminatory effect. See
2922 Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 680 (citing

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Huntington Branch, NAACP v. Town of Huntington, 844 F.2d at 935-36); Langlois v.
Abington Housing Authority, 207 F.3d at 51 (applying a variant of the Second Circuit’s
burden-shifting test, which requires a showing “that a demonstrated disparate impact in
housing be justified by a legitimate and substantial goal of the measure in question”).
The present case exemplifies the difficulties inherent in such an inquiry.
The District of Columbia has argued that it is pursuing a long-term shift in its strategy for
addressing homelessness, and, specifically, that the core element of this movement is to
transition homeless persons away from reliance on emergency shelters and into
Permanent Supportive Housing placements. MSJ at 22; Swan Declaration No. 1 ¶¶ 5-8;
Budget Justification at 33-39 (describing “the District’s goal of ending homelessness, by
shifting from providing emergency services, in trailers, to the construction of homes
integrated with services to meet the needs of the resident population”). In addition, the
District has asserted that, given “limited fiscal resources for the homeless services
program,” any funds directed toward re-opening emergency shelter housing would
necessarily draw money away from “other critically needed homeless services programs
including the [PSH program].” Swan Declaration No. 1 ¶ 12. In sum, the District argues
that its elected officials and administrative agencies “are best positioned to make policy
judgments and to allocate resources to determine how best to meet the needs of their
constituents.” MSJ at 21.
The plaintiffs present a compelling point in response: placing some
homeless residents into Permanent Supportive Housing does not preclude the
maintenance of an adequate level of emergency shelter availability. Opp. at 14-16.
Assuming that any reduction in shelter space exerts a disparate impact on minorities, it

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follows that this adverse effect can be lessened by simply keeping all of the District’s
shelters open, while simultaneously expanding the PSH program. See id. At the very
least, the plaintiffs argue, whether a less discriminatory alternative exists is a factual
question, appropriate for resolution by a jury. Id. at 14. But the plaintiffs’ argument
directly implicates two main elements of the District’s homelessness policy: the shift
from emergency shelters to Permanent Supportive Housing, and the necessity of making
tradeoffs between various types of services for homeless citizens, given limited
resources. The District has submitted a declaration from Fred Swan, the official
responsible for overseeing the city’s shelter program, in which he asserts that low-barrier
shelters such as La Casa can perpetuate chronic homelessness, whereas by moving people
into Permanent Supportive Housing, the District can further its goal of helping them
escape homelessness and achieve self-sufficiency. Swan Declaration No. 1 ¶¶ 5-8. He
also states that budget concerns dictate tradeoffs between different services for the
homeless. Id. ¶ 12. The plaintiffs offer no evidence in response to Mr. Swan’s
declaration.
In cases where courts — applying the Second Circuit’s balancing test or
variants thereof — have found there to be genuine issues of material fact as to the
existence of a less discriminatory alternative, the plaintiffs have offered evidence to
support the existence of such alternatives. For example, in Mt. Holly Garden Citizens in
Action, Inc. v. Township of Mt. Holly, 658 F.3d at 377-81, a challenge was brought
against the defendant township’s execution of a redevelopment plan for a neighborhood
that, according to the township, had become blighted. Residents opposed the harsh
manner of the redevelopment plan, which involved the demolition of a large number of

22

homes, and argued that they were effectively being pushed out of their own
neighborhood. See id. The township justified its actions as necessary to alleviating
blight; the plaintiffs then produced evidence, in the form of a report from a planning
expert, “which stated that the ‘blighted and unsafe’ conditions could be remedied in a far
less heavy-handed manner that would not entail the wholesale destruction and rebuilding
of the neighborhood.” Id. at 386. Although the defendant countered with statements
from the township manager, the court of appeals held that “[t]hese contrasting statements,
as well as the parties’ continued arguments on appeal as to the cost and feasibility of an
alternative relying on rehabilitation, create genuine issues of material fact that require
further investigation.” Id. at 387.
Similarly, in Gallagher v. Magner, 619 F.3d at 828-30, the plaintiffs were
owners and former owners of rental properties, who alleged that the City of St. Paul’s
aggressive enforcement of its housing code led to increased costs for property owners,
which contributed to a shortage of affordable housing. The city argued that its
enforcement activities were justified by the goals of “providing minimum property
maintenance standards, keeping the City clean and housing habitable, and making the
City’s neighborhoods safe and livable.” Id. at 837. The court concluded that the city’s
conduct was “manifest[ly] relat[ed]” to these “legitimate, non-discriminatory objectives.”
See id. But at the third step of the analysis, the plaintiffs provided evidence of the
existence of a less discriminatory alternative by pointing to a progress report from the
city’s previous program to enforce the housing code, which, according to the plaintiffs,
“embodied a flexible and cooperative approach to code enforcement, which achieved the
goals of code enforcement while maintaining a consistent supply of affordable housing.”

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Id. at 837-38. The court of appeals concluded that, by providing evidence of the
possibility of a less discriminatory alternative, the plaintiffs had demonstrated the
existence of “a genuine dispute of fact regarding whether [the former program] was a
viable alternative to the City’s aggressive Housing Code enforcement practices.” Id. at
838.
As already noted, with respect to the existence of less discriminatory
alternatives, the defendant bears the burden of showing their unavailability. See Mt.
Holly Garden Citizens in Action, Inc. v. Township of Mt. Holly, 658 F.3d at 387. The
District of Columbia has put forth several persuasive arguments as to the necessity of
closing some emergency shelters as part of its transitioning policy on homelessness.
Unlike the plaintiffs in Mt. Holly and Gallagher, however, the plaintiffs here have not
produced any sort of substantive analysis or evidentiary material to counter the
defendant’s justifications. They have done no more than to assert their view that the
District could have kept La Casa Shelter open, while also expanding the availability of
Permanent Supportive Housing. Without more, the Court cannot conclude that a
reasonable jury would have anything on which to base such a finding. See Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 586 (a party opposing summary
judgment must raise genuine issues of material fact supported by competent evidence
beyond mere supposition).
Finally, the particular facts of this case place difficult policy judgments
directly in issue, and implicate decisions about how the District government allocates
benefits and burdens through its homelessness policy. As this Court stated in its Opinion
denying the plaintiffs’ original motion for a preliminary injunction, “the Court has no

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means of arriving at an answer” to the question of “[w]hat type of system best provides
‘meaningful services and shelter’” to the homeless citizens of Washington, D.C.
Opinion, Boykin v. Fenty, Civil Action No. 10-1790 (Dec. 17, 2010), at 12-13 (quoting
the plaintiffs’ motion). Although it is undoubtedly true that the District government is
bound to uphold the Fair Housing Act in all its activities, including as it pertains to
homelessness policy, the Court concludes that in this case, given the particular decision at
issue and the District’s asserted justification for taking it — and, most importantly, the
plaintiffs’ failure to offer evidence sufficient to raise a genuine issue of fact as to the
existence of viable alternatives to the closure of La Casa — the District is entitled to
summary judgment.

2. The Seventh Circuit’s Four-Factor Balancing Test
In an early disparate impact case under the FHA, the United States Court
of Appeals for the Seventh Circuit set forth its own four-factor test for determining
liability under the FHA, given a plaintiff’s success in proving its prima facie case. This
test balances: “(1) the strength of the plaintiff’s showing of discriminatory effect; (2)
whether any evidence indicates discriminatory intent; (3) the defendant’s interest in
taking the challenged action; and (4) whether the plaintiff seeks to compel the defendant
to affirmatively provide housing to a protected class or merely to restrain the defendant
from interfering with individual property owners who wish to provide such housing.”
2922 Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 680 (citing
Metropolitan Housing Dev. Corp. v. Village of Arlington Heights, 558 F.2d at 1290).
Here, with respect to the first factor, the District of Columbia argues that
given the small number of people affected by the closure of La Casa, any disparate

25

adverse impact would be negligible. MSJ at 20. With respect to the second factor, the
District asserts that there is no evidence of discriminatory intent. Addressing the fourth
factor, it admits to a lack of clarity in its understanding of the plaintiffs’ desired remedy.
Id. The central focus of the District’s argument is placed on the third factor — its interest
in taking the action at issue. Unsurprisingly, it offers two justifications for its conduct:
first, that it was obligated to vacate the property on which La Casa stood, which was
privately owned; and second, that closing La Casa was in keeping with the District’s
transition toward a PSH-focused homelessness policy. The plaintiffs’ basic response
remains that the closure of La Casa was not necessary to the implementation of the
District’s new homelessness plan, and that the need for emergency shelter is still acute.
The Court has already explained why the plaintiffs’ prima facie case must
fail under either a disproportionate effect or segregative effect theory. For much the
same reasons, the Court concludes that even if the plaintiffs have made some showing of
disparate impact, it is exceedingly weak. With respect to the second factor, this Court has
previously determined that the plaintiffs’ evidence could not justify an inference of
discriminatory intent, and therefore dismissed their claim for disparate treatment based on
race. Boykin v. Gray, 895 F. Supp. 2d at 207-09. Since that dismissal, the plaintiffs have
not supplemented the record with any new evidence that would change this
determination.
The third factor in the analysis requires the Court to evaluate the quality
and strength of the District’s interest in closing La Casa. As already noted, supra at 20,
the District’s contention that it had no choice but to close La Casa is undermined by
evidence showing that the District itself sold the underlying land to Donatelli

26

Development in 2008. But as also discussed, the District has described its conduct as a
necessary element of its broader policy on homelessness. It has argued that the decision
to close La Casa was part of an ongoing transition away from emergency shelters and
toward Permanent Supportive Housing. Weighing the District’s interest in taking the
particular action at issue here would require the Court to pass judgment on this policy and
the allocation of costs and benefits it entails. Moreover, as explained supra at 24, the
plaintiffs have not offered any evidentiary support for their argument that La Casa’s
closure was not necessary to the District’s implementation of its plan. In sum, the
District has offered persuasive support for the proposition that its interest in moving
resources from emergency shelters to Permanent Supportive Housing is strong, that
decreasing people’s dependence on emergency shelter housing is a part of that effort, and
that the specific decision to close La Casa occurred as an element of this broader
governmental policy. The Court concludes, on the basis of the record before it, that the
District’s interest in closing La Casa, viewed in the context of its decision to make a shift
in its approach to homelessness, outweighs any disparate impact the closure might have
caused.
Finally, although the defendant expresses confusion as to what remedy the
plaintiffs seek, it is clear that, beyond compensatory and punitive damages, the plaintiffs
request an injunction requiring the re-establishment of low-barrier shelter housing in the
neighborhood where La Casa was located. 2d Am. Compl. ¶¶ 80-81, 94-99. Thus, they
seek “to compel the defendant to affirmatively provide housing,” rather than merely to
prevent the defendant from impeding the private development of such housing. See 2922
Sherman Ave. Tenants’ Ass’n v. Dist. of Columbia, 444 F.3d at 680. This factor, of

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course, is also embedded in the preceding point about policy choices and the necessity of
making difficult tradeoffs in allocating resources to the District’s homelessness program.
It weighs in favor of the defendant, and, ultimately, strengthens the Court’s conclusion
that the District is entitled to judgment as a matter of law.

III. CONCLUSION
For the foregoing reasons, the Court will grant the defendant’s motion to
dismiss, or, in the alternative, for summary judgment.
An Order consistent with this Opinion will issue this same day.
SO ORDERED.

/s/___________________________
PAUL L. FRIEDMAN
United States District Judge
DATE: September 30, 2013

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