BORUM et al v. BRENTWOOD VILLAGE, LLC et al
MEMORANDUM OPINION granting in part and denying in part 43 Plaintiffs' Motion for Class Certification; granting 43 Plaintiffs' Motion for Appointment of Class Counsel. See document for details. Signed by Judge Rudolph Contreras on 02/12/2018. (lcrc1)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ADRIANN BORUM, et al.,
BRENTWOOD VILLAGE, LLC, et al.,
Civil Action No.:
Re Document No.:
GRANTING IN PART AND DENYING IN PART PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION;
GRANTING PLAINTIFFS’ MOTION FOR THE APPOINTMENT OF CLASS COUNSEL
Plaintiff Adriann Borum seeks to represent a putative class of residents of her apartment
complex, Brookland Manor, whom she alleges are at risk of being displaced should Defendants
proceed with their plans to redevelop the complex, or who have already been displaced in
anticipation of the redevelopment.1 The planned redevelopment will eliminate four- and fivebedroom apartments in the complex, and will reduce the number of three-bedroom apartments as
well. This policy, Ms. Borum claims, will have a disparate impact on hundreds of residents based
on their familial status in violation of the Fair Housing Act (“FHA”) and the D.C. Human Rights
Act (“DCHRA”). Additionally, Ms. Borum claims that Defendants have made discriminatory
One of Ms. Borum’s original co-plaintiffs and the second named representative of the
putative class, Lorretta Holloman, voluntarily dismissed her claims against Defendants on
November 22, 2017. ECF No. 55, 56. Ms. Borum’s other co-plaintiff, ONE DC, is a community
organization “comprised of members who include tenants of affordable housing properties that
are seeking to avoid displacement, preserve affordable housing, ensure fair housing, and further
equitable development in D.C.” Compl. ¶ 108, ECF No. 2. The Court found that ONE DC has
organizational standing to bring suit in its prior Memorandum Opinion. See Borum v. Brentwood
Village, LLC, 218 F. Supp. 3d 1, 19–20 (D.D.C. 2016).
statements based on familial status in violation of the FHA and the DCHRA. Therefore, she has
moved to certify a class of residents whom she believes have been harmed or are at risk of being
harmed by the proposed redevelopment and activities surrounding it, and for the appointment of
her lawyers as counsel for that class. Pls.’ Mem. P. & A. Supp. Mot. Class Cert. & Appointment
Class Counsel (“Pls.’ Mem.”), ECF No. 43-1. For the reasons set forth below, the Court grants in
part and denies in part her motion for class certification, and grants her motion for the
appointment of class counsel.
II. FACTUAL AND PROCEDURAL BACKGROUND
Defendants in this action—Brentwood Associates, L.P.; Mid-City Financial Corporation;
and Edgewood Management Corporation—plan to redevelop Brookland Manor, an affordable
housing complex in the Brentwood neighborhood of Washington, D.C. Brookland Manor
currently contains 535 units, which range in size from one- to five-bedroom apartments. See Pls.’
Mot. Class Cert. & Appointment Class Counsel (“Pls.’ Mot.”), Ex. 12 at 1–2, ECF No. 43-17.
Once Brookland Manor has been transformed into the new Brentwood Village development, the
complex will contain 2,235 rental apartments and for-sale homes. Id. at 1. While today
Brookland Manor contains 75 three-bedroom apartments, 113 four-bedroom apartments, and 21
five-bedroom apartments, once Defendants have completed the redevelopment, Brentwood
Village will have zero four- and five-bedroom apartments, and only 64 three-bedroom
apartments. See Pls.’ Mot., Ex. 4 at 5–6, ECF No. 43-9. It is this planned alteration in the
composition of the complex that Ms. Borum challenges. As a resident of a four-bedroom
apartment, which she occupies with her five children (two minor and three adult), she fears that
once the redevelopment takes place, she will be, at best, stuck competing with 117 other
families2 for 64 three-bedroom units, or at worst, displaced altogether. Pls.’ Mem. at 4.
Additionally, she fears that even if she were able to procure a three-bedroom apartment, it would
be too small for her family. See Decl. Adriann Borum (“Borum Decl.”) ¶ 8–10, Pls.’ Mot., Ex. 2,
ECF No. 43-7.
Defendants began the process of seeking approval for this redevelopment in October
2014, when they submitted their application for a First-Stage planned unit development (“PUD”)
approval. See Zoning Case Records, Case No. 14-18, available at
https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18. The application
was approved in 2015. Id. Defendants filed their application for Second-Stage PUD approval in
September 2016, one month after Ms. Borum had filed this action. That application is still
pending. See Zoning Case Records, Case No. 14-18A, available at
https://app.dcoz.dc.gov/Content/Search/ViewCaseReport.aspx?case_id=14-18A. Once that
application has been approved, Defendants will be able to begin redeveloping the property. See
generally 11 D.C. Mun. Regs. § 2408.1; see also Pls.’ Mem. P. & A. Supp. Mot. Prelim. Inj.
(“Pls.’ Mot. Prelim. Inj.”), ECF No. 4; Decl. William Merrifield ¶ 9, ECF No. 4-3.
Along with her complaint, Ms. Borum had filed a motion for a preliminary injunction
asking the Court to bar “Defendants from filing their second-stage PUD application with the
Zoning Commission.” Pls.’ Mot. Prelim. Inj. at 15. Since Defendants filed their Second-Stage
application before the Court ruled on Ms. Borum’s motion for a preliminary injunction, she
Ms. Borum’s expert, Dr. Andrew Beveridge, defines families in two ways in his
declaration: “(a) families including only head of household, co-head of household (when
applicable), and minor children; and (b) families including head of household, co-head of
household, minor children, and other non-minor family members.” Regardless of which
definition the Court adopts, there were 118 apartments in Brookland Manor housing minor
children and their parents or guardians in January 2017. Decl. Andrew Beveridge (“Beveridge
Decl.”) at 4, ECF No. 43-6.
amended the relief she sought in her reply brief and asked the Court to “preliminarily enjoin
Defendants from displacing families from their homes during the adjudication of these families’
fair housing rights in this action.” Pls.’ Reply at 3, ECF No. 20.
In response, Defendants filed a motion to dismiss on several grounds: lack of exhaustion
of administrative remedies; lack of jurisdiction under the Rooker-Feldman doctrine; the Younger
abstention doctrine; ONE DC’s lack of standing; and failure to state a claim. See Defs.’ Mem. in
Supp. Mot. Dismiss, ECF No. 16. The Court denied both motions, see Borum v. Brentwood
Village, LLC, 218 F. Supp. 3d 1 (D.D.C. 2016), and ordered the commencement of “limited
discovery for the purpose of exchanging information related to the demographics of Brookland
Manor residents as necessary to adjudicate a motion for class certification.” Scheduling Order,
ECF No. 34.
With the materials from that discovery in hand, Ms. Borum has now moved for
certification of the following hybrid class under Rules 23(b)(2) and (b)(3):
All households who reside or have resided at Brookland Manor in a
three-, four-, or five-bedroom unit with one or more minor child,
and (i) have been displaced from a three-, four-, or five-bedroom
unit at Brookland Manor since October 1, 2014 (the date that
Defendants proposed their First Stage PUD to the Zoning
Commission), or (ii) are at risk of being displaced from a three-,
four-, or five-bedroom unit at Brookland Manor.
Pls.’ Mot. at 1, ECF No. 43. She also moved for the appointment of her legal team as class
counsel. Id. at 2. For the reasons set forth below, Ms. Borum’s motion for class certification is
granted in part and denied in part, and her motion for the appointment of class counsel is granted.
III. LEGAL STANDARDS
“A district court exercises broad discretion in deciding whether to permit a case to
proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C. Cir. 1994). However,
“Rule 23 does not set forth a mere pleading standard.” Wal-Mart Stores, Inc. v. Dukes, 564 U.S.
338, 350 (2011). Instead, a plaintiff “must affirmatively demonstrate [her] compliance with the
Rule—that is, [she] must be prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, etc.” Id. “Frequently that ‘rigorous analysis’ will entail some
overlap with the merits of the plaintiff’s underlying claim. That cannot be helped.” Wal-Mart,
564 U.S. at 351. However, “Rule 23 grants courts no license to engage in free-ranging merits
inquiries at the certification stage. Merits questions may be considered to the extent—but only to
the extent—that they are relevant to determining whether the Rule 23 prerequisites for class
certification are satisfied.” Amgen Inc. v. Conn. Retirement Plans & Tr. Funds, 568 U.S. 455,
When appropriate, district courts may redefine classes or subclasses sua sponte prior to
certification. See Rule 23(c)(5); In re General Motors Corp. Engine Interchange Litigation, 594
F.2d 1106, 1129 n.38 (7th Cir.), cert. denied sub nom. General Motors Corp. v. Oswald, 444
U.S. 870 (1979); Santillan v. Gonzalez, 388 F. Supp. 2d 1065, 1072 (N.D. Cal. 2005); Am. Fin.
Sys. Inc. v. Harlow, 65 F.R.D. 94, 107 (D. Md. 1974). Because it is the plaintiff, and not the
court, who bears the burden of fashioning appropriate class definitions and demonstrating that
the requirements of Rule 23 are met for each, it is left to the court’s discretion to choose whether
to intervene in this way. See U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 408 (1980).
Subclasses must also satisfy all of Rule 23’s requirements in order to be certified. See D.L. v.
District of Columbia, 713 F.3d 120, 129 (D.C. Cir. 2013); see also Bynum v. District of
Columbia, 214 F.R.D. 27, 41 (D.D.C. 2003).
Ms. Borum has moved for certification of the following hybrid class under Rules 23(b)(2)
All households who reside or have resided at Brookland Manor in a
three-, four-, or five-bedroom unit with one or more minor child,
and (i) have been displaced from a three-, four-, or five-bedroom
unit at Brookland Manor since October 1, 2014 (the date that
Defendants proposed their First Stage PUD to the Zoning
Commission), or (ii) are at risk of being displaced from a three-,
four-, or five-bedroom unit at Brookland Manor.
Pls.’ Mot. at 1. For the reasons set forth below, the Court grants certification of the following
class under Rule 23(b):
All individuals who reside at Brookland Manor in a three-, four-, or
five-bedroom unit with one or more minor child, 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.
A. Rule 23(a) Requirements
Rule 23(a) contains four requirements for the certification of any class. It provides that
“members of a class may sue or be sued as representative parties on behalf of all members only
if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are
questions of law or fact common to the class; (3) the claims or defenses of the representative
parties are typical of the claims or defenses of the class; and (4) the representative parties will
fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). These requirements
are often referred to as “numerosity,” “commonality,” “typicality,” and “adequacy of
Ms. Borum contends that she has satisfied each of Rule 23(a)’s four prerequisites for her
entire proposed class, and Defendants claim that she has satisfied none. As explained below, the
Court finds that Ms. Borum has not satisfied the four prerequisites for the entire class she
proposes, and therefore, her entire class cannot be certified. But once her original class definition
has been divided into two subclasses, Ms. Borum does satisfy each of the four prerequisites for
the subclass of individuals who “are at risk of being displaced from a three-, four-, or fivebedroom unit at Brookland Manor.” However, she has not yet satisfied the prerequisites for the
subclass of individuals who “have been displaced from a three-, four-, or five-bedroom unit at
Brookland Manor since October 1, 2014 (the date that Defendants proposed their First Stage
PUD to the Zoning Commission).” And as explained further below, this subdivision is
appropriate because it will allow members of the class that the Court is already able to determine
satisfies the Rule 23(a) prerequisites to proceed to the next stage of this litigation without undue
delay. See Yaffe v. Powers, 454 F.2d 1362, 1367 (1st Cir. 1972) (“[U]nless a claim is patently
frivolous, [a certifying] court should ask itself: assuming there are important rights at stake, what
is the most sensible approach to the class determination issue which can enable the litigation to
go forward with maximum effectiveness from the viewpoint of judicial administration?”)
1. Families displaced between October 1, 2014 and the conclusion of this litigation
Ms. Borum has moved to include in her class those “who have resided at Brookland
Manor in a three-, four-, or five- bedroom unit with one of more minor child and . . . have been
displaced from [those apartments] since October 1, 2014.” Pls.’ Mot. at 1. For those individuals
she seeks damages for “monetary costs related to moving services or apartment brokerage fees
and increased transportation costs to school and work.” Compl. ¶ 123. She also seeks an
injunction for them, so that they “will have a future opportunity to reside at Brookland Manor or
the redevelopment property in a three-, four-, and five-bedroom unit.” Id. For the other group of
individuals in her proposed class, those who “are at risk of being displaced from a three-, four-,
or five-bedroom unit at Brookland Manor,” she only seeks an injunction that would eradicate the
disparate impact she alleges the redevelopment plan will have on minors and their guardians.
Pls.’ Reply at 22, ECF No. 52.
“The underlying theme [of class certification] is flexibility; different cases call for
different approaches.” Lamphere v. Brown Univ., 553 F.2d 714, 719 (1st Cir. 1977). And while
the decision whether and how to certify a class is left to the district court, in some instances
“failure to limit overbroad cases by the use of appropriate subclasses may be an abuse of
discretion.” Marcello v. Regan, 574 F. Supp. 586, 591–92 (D.R.I. 1983) (citing Geraghty v. U.S.
Parole Comm’n, 579 F.2d 238, 253 (3d Cir. 1978), vacated on other grounds, 445 U.S. 388
(1980)); see also Fink v. Nat’l Sav. & Tr. Co., 772 F.2d 951, 960–61 (D.C. Cir. 1985) (“the
reviewing court may require the district court to consider on the record the possibility of
Here, it is appropriate to consider those residents who have already been displaced or will
displaced before the conclusion of this litigation as a separate subclass because without this
separation, the class Ms. Borum has proposed would be overbroad and ineligible for
certification. First, Ms. Borum has moved to include in the class those individuals who have been
displaced since October 1, 2014, without specifying whether individuals included in that group
need to have been displaced because of the redevelopment in order to be included. Therefore, it
is impossible to tell from her proposed definition whether those individuals have any claims in
common, as required by Rule 23(a)(2). See Wal-Mart, 564 U.S. at 350 (“Commonality requires
the plaintiff to demonstrate that the class members ‘have suffered the same injury.’” (quoting
Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157 (1982)). Second, at this point, none of the
large apartments on which putative class members rely to house their families have been
eliminated. Therefore, the cause of displacement for any of these putative class members will not
be the mere elimination of large apartments, which is the foundational cause of the other class
members’ claims. See Hartman v. Duffey, 19 F.3d 1459, 1472 (D.C. Cir. 1994) (“[T]here is more
to a showing of commonality than a demonstration that class plaintiffs suffered discrimination on
the basis of membership in a particular group . . . plaintiffs must make a significant showing to
permit the court to infer that members of the class suffered from a common policy of
discrimination that pervaded all of the [defendant’s] challenged  decisions.”). Third, Ms.
Borum seeks damages only for displaced individuals, in order to reimburse them for the costs of
their displacement. Those individuals will therefore have different interests than current
residents, including Ms. Borum, who only seek an injunction that would grant them a greater
likelihood of being able to remain on the property. See Amchem Prods., Inc. v. Windsor, 521
U.S. 591, 625 (1997) (“The adequacy inquiry under Rule 23(a)(4) serves to uncover conflicts of
interest between named parties and the class they seek to represent.”). Accordingly, the Court
denies Ms. Borum’s motion to certify the entire class she proposes.
As explained in Section IV.A.2, infra, once displaced individuals are removed from the
class, current residents who are at risk of displacement do satisfy each of Rule 23(a)’s four
prerequisites, including commonality and adequacy of representation. Therefore, in order to
allow those class members who do satisfy Rule 23(a)’s prerequisites the opportunity to proceed
with the litigation without undue delay, the Court exercises its discretion by separating Ms.
Borum’s proposed class into two subclasses. It does this even though the subclass of displaced
individuals does not meet the requirements of Rule 23(a) by itself, and therefore cannot be
certified at this time.
When deciding whether to certify subclasses, district courts must ensure that each
subclass satisfies the requirements of Rule 23. See D.L. v. District of Columbia, 713 F.3d 120,
129 (D.C. Cir. 2013). Ms. Borum’s briefing paid a great deal of attention to residents of
Brookland Manor who she worries are at risk of being displaced by the elimination of four- and
five-bedroom apartments and the reduction in the number of three-bedroom apartments.
However, her briefing paid very little attention to those residents who have purportedly already
been displaced by Defendants’ redevelopment plans. Indeed, Ms. Borum does not point to a
single individual who has been displaced due to the proposed redevelopment since Defendants
submitted their First Stage PUD to the Zoning Commission. As such, Ms. Borum has given no
indication of how many former residents of Brookland Manor have been displaced, preventing
the Court from performing any sort of numerosity analysis for that group. A class representative
“must be prepared to prove that there are in fact sufficiently numerous parties” to satisfy Rule
23(a)(1)’s numerosity requirement. Wal-Mart, 564 U.S. at 350. Ms. Borum has not done so here.
Because Ms. Borum has not met her burden under Rule 23(a)(1), residents who have been
displaced cannot be certified as their own subclass.
Ms. Borum would also like to include in her class individuals who are currently at risk of
being displaced, and are then displaced during the pendency of this litigation, so that they might
recover money damages just like former residents who have already been displaced. Compl. ¶
123. However, by definition, none of these individuals exist yet. Because these individuals do
not yet exist, and indeed may never exist, if, for example, Plaintiffs succeed in securing an
injunction that allows the entire class to remain on the property, this subgroup cannot satisfy
Rule 23(a)’s numerosity requirement either.
If, however, this group does come into existence following the Court’s class certification
order, or if Plaintiffs are subsequently able to identify individuals who have already been
displaced because of the redevelopment, Ms. Borum may renew her motion for certification of
this subclass. But it should be noted that unless Ms. Borum has also been displaced due to the
redevelopment plan by then, her injury (a risk of displacement) will not be typical to those
putative class members who have at that point already been displaced. Therefore, unless
Plaintiffs have added a new named plaintiff whose injury is typical of the proposed subclass, and
who will be able to fairly and adequately represent the interests of that class, Ms. Borum’s
renewed motion for class certification would likely be denied then as well.
2. Families still living in three-, four-, or five-bedroom apartments
The remainder of Ms. Borum’s proposed class qualifies for certification as a subclass. As
explained below, the Court finds that a class of individuals (rather than households) who are
living in three-, four-, and five-bedroom apartments that contain minor children and their
guardians and are at risk of being displaced solely due to the redevelopment’s elimination of
four- and five-bedroom apartments and its reduction in the number of three-bedroom apartments
satisfy the requirements of Rule 23(a).
Ms. Borum first contends that she has established that her proposed class is “so numerous
that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1); see also Pls.’ Mem. at 10.
“Typically, a class in excess of 40 members is sufficiently numerous to satisfy this requirement,”
Lindsay v. Gov’t Emps. Ins. Co., 251 F.R.D. 51, 55 (D.D.C. 2008), though “[t]here is no specific
threshold that must be surpassed in order to satisfy the numerosity requirement,” Taylor v. D.C.
Water & Sewer Auth., 241 F.R.D. 33, 37 (D.D.C. 2007).
Based on the most recently available data, Ms. Borum’s expert, Dr. Andrew Beveridge,
estimates that there were 118 families (totaling 543 people) in three-, four-, and five-bedroom
apartments in Brookland Manor in January 2017. Beveridge Decl. ¶ 9.3 Therefore, Ms. Borum
argues that the class she proposes is “so numerous that joinder would be impracticable.” Pls.’
Mem. at 10. Defendants object to Ms. Borum’s claim of numerosity on several grounds, which
the Court addresses in turn below.
i. Occupancy Standards
Defendants spend a large portion of their opposition brief attacking the analysis of Ms.
Borum’s expert, Dr. Andrew Beveridge, and his estimation of how many individuals are at risk
of being displaced by the redevelopment plan. See Defs.’ Opp’n Pls.’ Mot. Class Cert. (“Defs.’
Opp’n”) at 9–10, 12–24, ECF No. 45. Dr. Beveridge analyzed two things in his declaration: 1)
“[t]he number of family households residing in three-, four- and five-bedroom apartments at
Brookland Manor and the family composition of those households,” and 2) “[t]he number of
family households living at Brookland Manor, their family composition, and the number of
bedrooms for those family compositions required by applicable law and regulation.” Beveridge
Decl. ¶ 3. In determining the appropriate number of bedrooms for these families, Dr. Beveridge
used the D.C. Housing Authority’s voucher size determination regulations, id. ¶ 6, and found that
in 2017, when excluding non-parent adults from the equation, 81 families totaling 419 people
required apartments with three bedrooms or more, and including non-parent adults, 96 families
totaling 486 people did. Beveridge Decl. tbls. 5 & 7. Defendants attack this analysis, arguing that
Defendants’ expert, Dr. William Clark, agrees that minor children and their guardians
resided in 118 of Brookland Manor’s 144 three-, four-, and five-bedroom apartments in January
2017. See Decl. William Clark (“Clark Decl.”) at 4, ECF No. 44-1 (sealed).
Dr. Beveridge used an incorrect standard in determining how many bedrooms each family
needed, thereby inflating the number of individuals who may be harmed by the redevelopment.
See Defs.’ Opp’n at 13. Defendants claim that Dr. Beveridge should have used the D.C. Housing
Code’s general occupancy standard, the DCHRA’s occupancy standard, or the FHA’s occupancy
standard (a statement of policy). See Defs.’ Opp’n at 14–19.
The question of what size apartment class members require based on their family size
will be crucial in determining whether Defendants’ redevelopment plan has a disparate impact on
residents based on their familial status. However, requiring a determination of which occupancy
standards apply to which families at this stage in the litigation amounts to a requirement that
each class member prove that they will prevail on the merits of their claim. “The concern of Rule
23(a)(1) . . . is membership in the class, not likelihood of success on the merits.” Coleman ex rel.
Bunn v. District of Columbia, 306 F.R.D. 68, 77 (D.D.C. 2015) (citing McLaughlin on Class
Actions § 4:5 (11th ed. 2014) (a determination under Rule 23(a)(1) “does not entail an
assessment of how many putative class members ultimately will have meritorious claims”)).
“Merits questions may be considered to the extent—but only to the extent—that they are relevant
to determining whether the Rule 23 prerequisites for class certification are satisfied.’” D.L. v.
District of Columbia, 713 F.3d 120, 125–26 (D.C. Cir. 2013) (quoting Amgen Inc. v. Conn. Ret.
Plans & Tr. Funds, 568 U.S. 455, 466 (2013)). But determining that numerosity cannot be
established because only a handful of class members will eventually prevail on the merits of their
claim “puts the cart before the horse.” Lightfoot v. District of Columbia, 246 F.R.D. 326, 336
(D.D.C. 2007). “[F]or purposes of class certification, the question is how many individuals fall
within the class as currently defined.” Id.
Defendants may be correct that Dr. Beveridge used the wrong standard in determining
how many bedrooms each family requires, thereby inflating the number of individuals who will
actually be forced to move should the redevelopment proceed unaltered. But such a standard is
not relevant to determining how many families are currently living in large apartments who are
at risk of displacement because they will not be able to move back into similarly large
apartments when the redevelopment is complete, as the class is “currently defined.” Id. At this
point in the proceedings, Ms. Borum has demonstrated that that group, so defined, is sufficiently
large to satisfy Rule 23(a)’s numerosity requirement.
ii. Non-Parental Adults
Next, Defendants argue that “[t]he class which plaintiff define[s] is overbroad and runs
contrary to this Court’s admonition because it seeks to include individuals not qualifying for
familial status under the FHA and the DCHRA.” Defs.’ Opp’n at 5. The admonition to which
Defendants are referring is the sentence in a footnote in the Court’s prior ruling on Plaintiffs’
motion for a preliminary injunction, in which the Court noted that “by a plain reading of the
statutory text, the FHA protects only minor children living with parents (or similar guardians).”
Borum, 218 F. Supp. 3d. at 26 n.13 (citing 42 U.S.C. § 3602(k)). It continued that “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. However, while those individuals may not
“talismanically” receive protection under the FHA, they do receive protection when they are
persons “aggrieved” under the statute, as explained below.
“[I]n order to maintain a class action, each member of the class must have standing to
assert her own claims against the defendant.” Fort Worth Emps.’ Ret. Fund v. J.P. Morgan
Chase & Co., 862 F. Supp. 2d 322, 331 (S.D.N.Y. 2012). The FHA provides that it shall be
unlawful to “refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate
for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because
of . . . familial status,” 42 U.S.C. § 3604(a), or to “make, print, or publish, or cause to be made,
printed, or published any notice, statement, or advertisement, with respect to the sale or rental of
a dwelling that indicates any preference, limitation, or discrimination based on . . . familial status
. . . or an intention to make any such preference, limitation, or discrimination.” 42 U.S.C. §
3604(c). Familial status is defined as “one 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).
One avenue of recourse for violations of 42 U.S.C. § 3604 is for “aggrieved persons” to
“commence a civil action in an appropriate United States district court or State court not later
than 2 years after the occurrence or the termination of an alleged discriminatory housing
practice.” 42 U.S.C. § 3613.4 An “aggrieved person” is defined as anyone who “(1) claims to
have been injured by a discriminatory housing practice; or (2) believes that such person will be
injured by a discriminatory housing practice that is about to occur.” 42 U.S.C. § 3602(i).
The current language of the “familial status” and “aggrieved person” provisions were
added to the Fair Housing Act in 1988. “Congress expanded the Fair Housing Act 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.” United States v. Branella, 972 F.
The DCHRA similarly provides that “[a]ny person claiming to be aggrieved by an
unlawful discriminatory practice shall have a cause of action in any court of competent
jurisdiction for damages and such other remedies as may be appropriate.” D.C. Code § 21403.16.
Supp. 294, 297 (D.N.J. 1997). And “[i]n amending the definition of ‘aggrieved person,’
Congress intended to extend broad standing principles to those seeking redress under the FHA.
The House Judiciary Committee commented that the term ‘aggrieved persons’ in the 1988
amendments ‘adopts as its definition language similar to that contained in . . . existing law, as
modified to reaffirm the broad holdings of [the Supreme Court’s decisions in Gladstone and
Havens Realty].’” Gorski v. Troy, 929 F.2d 1183, 1188 (7th Cir. 1991) (citing H.R. Rep. No.
711, 100th Cong., 2d Sess., reprinted in 1988 U.S. Code Cong. & Admin. News 2173, 2184
In Gladstone, the Court had held that, because Congress intended standing under the
FHA “to extend to the full limits of Art. III, the normal prudential rules do not apply[.] [A]s long
as the plaintiff suffers actual injury as a result of the defendant’s conduct, he is permitted to
prove that the rights of another were infringed.” Gladstone, Realtors v. Vill. of Bellwood, 441
U.S. 91, 103 n.9 (1979). For example, white homeowners could challenge two real estate
brokerage firms’ practice of “steering” black homebuyers and white homebuyers to different
neighborhoods based on their race, a violation of the FHA, even when the white homeowners
who sued had not been steered to a different neighborhood based on their race, but rather already
lived in the neighborhood to which black homebuyers were being steered. Id at 111–12. Their
standing was based in “the transformation of their neighborhood from an integrated to a
predominantly Negro community[,] depriving them of ‘the social and professional benefits of
living in an integrated society.’” Id. The Court was persuaded that the white residents had
alleged actual injury caused by the discrimination, including “the loss of social and professional
benefits,” as well as “economic injury” in the form of the “absolute or relative diminution in
value of the individual respondents’ homes.” Id. at 115.
As Ms. Borum points out in her reply, courts in other circuits have recognized the broad
meaning of “aggrieved person” in the familial status context, and have allowed other co-residents
to challenge policies that discriminate against families, similar to the way that white residents
may challenge policies that discriminate based on race, even when those white residents are not
the ones being discriminated against, but have still suffered a concrete injury. See Pls.’ Reply at
18, 18 n.14. Ms. Borum alleges that putative class members in this case, including non-parental
adults living in large apartments with minor children and their guardians, are “at risk of being
displaced from a three-, four-, or five-bedroom unit at Brookland Manor” by a policy that she
hopes to prove has a disparate impact on individuals based on their familial status. If proven,
such a risk would be a cognizable injury capable of conferring Article III standing. As such, the
Court finds that non-parental adults living with minor children and their guardians in three-,
four-, and five-bedroom apartments in Brookland Manor have standing to sue under the FHA.
And because they stand to suffer the same injury-in-fact as the parents and minors contained
within the class—displacement due to the Defendants’ redevelopment plan—and seek the same
relief—an injunction ordering Defendants to alter their redevelopment plan in a way that
eliminates its disparate impact on families—they are properly counted as members of the class
for the purposes of numerosity.
iii. Residents of Three-Bedroom Apartments
Defendants also argue that Ms. Borum’s “inclusi[on] in the headcount of families living
in 3BR apartments when the record is uncontradicted that the Redevelopment Plan will include
at least 64 3BR apartments” is another “glaring deficienc[y]” in her numerosity analysis. Defs.’
Opp’n at 7. Defendants contend that this is a deficiency because fewer than 64 families currently
occupy the 75 three-bedroom apartments at Brookland Manor, and therefore are at no risk of
being displaced. Id. However, as Ms. Borum points out, that contention will be incorrect if “there
are not enough larger apartments in the planned development to house appropriately all the
families currently living at Brookland Manor.” Pls.’ Reply at 5. In that case, “families in threebedroom apartments are at just as much risk of displacement as those in four- or five-bedroom
apartments.” Id. While some families currently living in three-bedroom apartments will likely be
able to stay in such apartments, and therefore will not be harmed by Defendants’ actions, others,
because they will be competing with families currently residing in four- and five-bedroom
apartments, will be unable to move into one of the 64 new three-bedroom apartments. Even
though, by Defendants’ estimate, there were only 31 families living in three-bedroom apartments
in 2017, the number of families that may be displaced from their four- or five-bedroom
apartments is far larger than 33. See Beveridge Decl. tbl. 1. Thus, when the families displaced by
the elimination of the four- and five- bedroom apartments are included in the equation, more than
64 families will be competing for three-bedroom apartments. Therefore, families in threebedroom apartments also currently suffer a risk of displacement, and are properly included in the
iv. Families Whose Minor Children Have Now Turned 18
Defendants next question Ms. Borum’s inclusion in her headcount of families whose
children were minors on October 1, 2014 (the date the First-Stage PUD application was filed) or
on August 26, 2016 (the date the Complaint was filed), but have now turned 18, or will before
2020, when the anticipated next phase of the redevelopment plan proceeds. Defs.’ Opp’n at 11.
Specifically, Defendants claim that 38% of the families occupying large apartments as of June
2017 will no longer qualify for familial status protection by 2020. Id. at 27. Ms. Borum does not
respond to the contention that households with children who have since turned 18 and no longer
include any minors should not be counted, but does point to the fact that her expert did in fact
calculate the number of families with minor children occupying large apartments with data from
January 2017. See Pls.’ Reply at 10. Ms. Borum explains that she could not calculate the number
of households more precisely because documents containing Brookland Manor residents’
birthdays were not released to her, and therefore her expert was not able to calculate the number
of apartments containing minor children in June 2017, or thereafter. Id. at 10 n.8.
Plaintiffs must have live claims at the time of class certification. See Sosna v. Iowa, 419
U.S. 393, 403 (1975). Individuals living in apartments that no longer have minor children no
longer fit within the class definition of people residing in large apartments with minor children
and their guardians who are at risk of displacement. Therefore, individuals in households that no
longer contain minor children cannot be counted as class members going forward. However,
Defendants have not argued that excluding the residents of households that recently housed
minor children, but no longer do, from the class member count decreases the number of putative
class members to a number below forty residents. See Barnes v. District of Columbia, 242 F.R.D.
113, 121 (D.D.C. 2007) (citing Consol. Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d
Cir. 1995) (numerosity presumed at forty class members). Additionally, the number of
households that aged out of the class definition between January 2017 and the certification of
this class is likely small, and according to Defendants’ expert, likely fewer than 45. See Clark
Decl. at 6. As such, with a count of 118 apartments housing 543 people as recently as last year,
the Court finds that Ms. Borum has established numerosity, even excluding those households,
which are likely few in number, that no longer contain minor children.
v. Impracticability of Joinder
In order to satisfy Rule 23(a)(1)’s numerosity requirement, a class must be so numerous
that joinder would be impracticable. Defendants have argued that joinder in this case would not
be impracticable because class members will be easily identifiable and all live in the same
apartment complex. See Defs.’ Opp’n at 43–44. In support of this argument, Defendants cite to
numerous cases in which courts held that joinder was practicable where class members lived near
each other and could be easily reached. However, Defendants’ argument regarding the
practicability of joinder for the most part relies on the contention that the plaintiff class is too
small, when properly calculated, for joinder to be impracticable. As explained above, the
plaintiff class contains hundreds of individuals—far more than the minimum of forty that creates
a presumption of the impracticability of joinder. Lightfoot v. District of Columbia, 246 F.R.D.
326, 335 (D.D.C. 2007) (“Courts in this District have generally found that the numerosity
requirement is satisfied and that joinder is impracticable where a proposed class has at least forty
members.”) (citing Bynum v. District of Columbia, 214 F.R.D. 27, 32 (D.D.C. 2003)).
As explained in Coleman ex rel. Bunn, apart from the number of class members,
“additional factors that courts consider in assessing the practicability of joinder include: (1)
judicial economy arising from avoidance of a multiplicity of actions; (2) geographic dispersion
of class members; (3) size of individual claims; (4) financial resources of class members; and (5)
the ability of claimants to institute individual suits.” Coleman ex rel. Bunn v. District of
Columbia, 306 F.R.D. 68, 80 (D.D.C. 2015) (internal quotation marks omitted) (citing Newberg
on Class Actions § 3:12 (5th ed. 2014)).
This case involves two claims—disparate impact and discriminatory statements—which
can both be addressed through an injunction. As such, adjudicating each class members’ claims
together will save resources for both the parties and the Court. And while the class members in
this case are not dispersed—indeed, they are about as geographically concentrated as class
members can be—and can be easily identified, many of them lack the resources to bring a
complex civil rights suit on their own. In some cases in which class members are geographically
compact and not too numerous, joinder may not be impracticable. See Frazier v. Consol. Rail
Corp., 851 F.2d 1447, 1456 (D.C. Cir. 1988) (finding that district court’s decision not to certify a
class of 28 individuals who all lived “within a reasonable distance of the district court” was
soundly within its discretion). But in a case such as this, with hundreds of class members, where
many class members are low income, and many are minor children, the Court finds that to
proceed through joinder rather than class action would not only overly burden putative class
members, but also very likely waste judicial resources. As such, the Court finds that Ms. Borum
has demonstrated that the putative class is “so numerous that joinder of all members is
impracticable.” Fed. R. Civ. P. 23(a)(1).
Ms. Borum also contends that she satisfies Rule 23(a)’s commonality requirement
because she is challenging a single policy or practice that has a disparate impact on Brookland
Manor residents based on their familial status. Pls.’ Mem. at 11–14. Commonality requires a
finding that there are “questions of law or fact common to the class,” Fed. R. Civ. R. 23(a)(2). In
other words, such claims “must depend upon a common contention . . . that is capable of
classwide resolution—which means that the determination of its truth or falsity will resolve an
issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart Stores, Inc.
v. Dukes, 564 U.S. 338, 350 (2011). Ms. Borum argues that since the lawsuit in this case is
premised on the single policy of eliminating four- and five-bedroom apartments and reducing the
number of three-bedroom apartments, the question of Defendants’ liability based on disparate
impact analysis is conducive to class adjudication.
Defendants respond that Ms. Borum has not demonstrated that all of the putative class
members “suffer[ed] the same injury.” Defs.’ Opp’n at 38 (quoting Wal-Mart, 564 U.S. at 349).
They continue that “District of Columbia precedent establishes that the alleged policy or practice
must affect all members of the class in the same way to establish commonality, and plaintiff, at a
minimum, must offer evidence that the class members have in common the elements of those
claims.” Id. (citing Parker v. Bank of Am., N.A., 99 F. Supp. 3d 69, 80 (D.D.C. 2015)).
Defendants contend that Ms. Borum has not demonstrated that all members of the putative class
will be affected by the policy in the same way because the type of injury sustained by each
plaintiff will be “a product of numerous factual inquiries such as how many individuals within a
particular apartment enjoy familial status protection[;] which subsidy program, if any, applies to
the specific family[;] what occupancy standard applies to the family[;] what size apartment is
dictated by application or the correct occupancy standard[;] whether alternative apartment
configuration, such as adjoining units, represent an effective measure to avert injury[;] and
whether any particularized defenses (as are applicable to Plaintiff Holloman)5 apply.” Id. at 38–
Defendants claim that prior to her move from Brookland Manor and dismissal of her
claims, Ms. Holloman was “in default of her lease due to non-payment of rent 28 times during
her tenancy,” and had been “sent a Notice of Proposed Termination of Tenancy on June 6,
2017.” Defs.’ Opp’n at 30 n.27. They also claim that she was “in default of her lease (should her
Declaration be believed) because she [wa]s housing an alleged daughter who has not been
declared in her lease and in her certifications to the landlord.” Id. “Accordingly,” they claim,
“there are a myriad of potentially dispositive additional issues applicable to Plaintiff Holloman
but not common to the class which make her an inadequate class representative and may cause
her to not be a tenant when this Court reaches the merits of this controversy.” Id. The Court need
not address these issues, as Ms. Holloman is no longer a tenant and has withdrawn from this
lawsuit. ECF No. 55, 56.
“As is now well recognized, the class action commonality criteria are, in general, more
easily met when a disparate impact rather than a disparate treatment theory underlies a class
claim.” Garcia v. Johanns, 444 F.3d 625, 632 (D.C. Cir. 2006) (quoting Stastny v. S. Bell Tel. &
Tel. Co., 628 F.2d 267, 274 n.10 (4th Cir. 1980)). While some of the issues Defendants raise may
be relevant to determining whether the redevelopment does have a disparate impact on residents
based on their familial status, they would serve as components in the overall calculation of
whether the policy has a disparate impact. That does not change the fact that, if Ms. Borum’s
claim of disparate impact is proven, all class members will have suffered the same injury (the
risk of being displaced). See Wal-Mart, 564 U.S. at 349–350 (“Commonality requires the
plaintiff to demonstrate that the class members ‘have suffered the same injury.’” (quoting
Falcon, 457 U.S. at 157)). Class members need not be identically situated. “[F]or purposes of
Rule 23(a)(2) even a single a common question will do.” Id. at 359 (internal quotation marks and
citations omitted). Here, the question of whether this redevelopment will have a disparate impact
based on familial status is one such common question. As such, Ms. Borum has satisfied Rule
23(a)(2)’s commonality requirement.
Ms. Borum next contends that her claims are typical of all class members’ claims,
because she “assert[s] rights under both the FHA and DCHRA based on the systematic actions of
the Defendants.” Pls.’ Mem. at 15. Defendants claim that Ms. Borum’s claim is not typical
because she has yet to suffer any displacement and is not at risk of being displaced until at least
late 2020. Defs.’ Opp’n at 36–37. Additionally, Defendants argue that Ms. Borum’s claim is not
typical of the class’s because she has “non-protected individuals” (her adult children) living with
her, and the protected individuals in her apartment (Ms. Borum and her two minor children)
could be properly placed within a two-bedroom apartment, of which there will be plenty in the
redeveloped Brentwood Village. Id. at 37.
Rule 23(a)(3) requires a plaintiff to show that “the claims or defenses of the
representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3).
Generally, “[t]he commonality and typicality requirements . . . tend to merge.” Wal-Mart, 564
U.S. at 349 n.5. “Both serve as guideposts for determining whether under the particular
circumstances maintenance of a class action is economical and whether the named plaintiff’s
claim and the class claims are so interrelated that the interests of the class members will be fairly
and adequately protected in their absence.” Falcon, 457 U.S. at 158 n.13. Typicality, however,
derives its independent legal significance from its ability to “screen out class actions in which the
legal or factual position of the representatives is markedly different from that of other members
of the class even though common issues of law or fact are present.” 7A Charles Wright & Arthur
Miller, Federal Practice and Procedure § 1764 (3d ed. 2017).
Here, Defendants have not demonstrated that Ms. Borum’s claims differ significantly
from those of other class members who are still residing at Brookland Manor. The claims that
she brings, and the claims that the class as a whole will bring, are claims of disparate impact and
discriminatory statements under state and federal law, the resolution of which will be subject to
common proof (i.e. the policy will either have a disparate impact on residents based on their
familial status, or it will not). And, if Defendants’ argumentation regarding the numerosity and
commonality prongs of Rule 23(a) are any indication, the defenses that Defendants claim apply
to Ms. Borum will also be the defenses they use to defend against the claims of other class
members. Therefore, it is clear that Ms. Borum’s claims, and the defenses she will need to
address when this case is decided on the merits, will be typical of the class as a whole. As such,
she meets the requirements of Rule 23(a)(3).
d. Adequacy of Representation
Last, Ms. Borum contends that she and her attorneys “will fairly and adequately protect
the interests of the class.” Fed. R. Civ. P. 23(a)(4); see Pls.’ Mem. at 16–17. “The adequacy
inquiry under Rule 23(a)(4) serves to uncover conflicts of interest between named parties and the
class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citing
Falcon, 457 U.S. at 157–158, n.13). It “mandates an inquiry into the zeal and competence of the
representative’s counsel and into the willingness and ability of the representative to take an
active role in and control the litigation and to protect the interests of absentees.” Nat’l Ass’n for
Mental Health, Inc. v. Califano, 717 F.2d 1451, 1458 (D.C. Cir. 1983) (citing Horton v. Goose
Creek Indep. Sch. Dist., 677 F.2d 471, 488 (5th Cir. 1982)).
Defendants claim that Ms. Borum has not met the adequacy requirement for several
reasons. First, they claim that Ms. Borum has a conflict of interest with a substantial number of
putative class members because there is a “significant disagreement within the class” about
whether the redevelopment should go forward as currently planned. Defs.’ Opp’n at 32. In
support of this contention, Defendants submitted declarations from thirty putative class members
expressing “support of the Redevelopment Plan” and “disapproval of the instant litigation.” Id. at
33. Defendants also submitted a letter supporting the redevelopment plan signed by tenants of
large apartments, as well as individual letters of support. Id. at 33–34.
However, none of these declarations or letters make clear that the signatories or authors
knew that the redevelopment would not contain apartments as large as the ones they are currently
living in, or that that is why Ms. Borum and DC ONE have sued.6 Instead, the declarations
vaguely mention that the signatories support the redevelopment and oppose the litigation. See
Attach. to Ex. 5 to Decl. William Casano, ECF No. 47-4. These vague statements are consistent
with the natural sentiment that the signatories oppose litigation that will prevent them from
receiving a new apartment in a newly redeveloped neighborhood, not that they are opposed to
receiving a new apartment in a newly redeveloped neighborhood that also contains large
apartments. The declarations simply do not indicate a conflict between the signatories’ desires
and the actual relief sought by Ms. Borum. However, even if it were indisputably true that these
putative class members supported the redevelopment and elimination of large apartments, and
therefore opposed litigation attempting to secure a number of large apartments, these putative
class members’ positions would not necessarily doom the certification of this class.
Defendants cite to several cases to support their contention that courts should not certify
classes when some of the putative class members support the position of the defendant rather
than the plaintiff. See Defs.’ Opp’n at 35–36. However, in each of the cases cited, the interests of
the named plaintiffs were deemed to be in actual conflict with those of the dissenting class
members. For example, in Shulman v. Ritzenberg, forty-seven of fifty-three class members
submitted affidavits explaining, among other things, that “that they d[id] not believe plaintiff’s
conduct [wa]s consistent with the best interests of the joint ventures of which they [we]re
Ms. Borum has also raised other issues with these declarations, highlighting that “there
are serious questions about whether the declarants were provided accurate, unbiased information
when asked to sign declarations.” Pls.’ Reply at 19. She claims that some declarants now believe
that the lawsuit and the declarations were “inaccurately described to them,” and that “[o]ne
declarant even stated that she did not ever sign a declaration at all and had never seen the
declaration until presented to her by Plaintiffs’ counsel.” Id. at 19–20. While the Court is
troubled by these accusations, it need not determine the reliability of these declarations at this
time, as the declarations do not demonstrate a direct conflict between Ms. Borum and the
members.” 47 F.R.D. 202, 207 (D.D.C. 1969). In Schy v. Susquehanna Corp., 80.8% of
stockholders approved of the action, the issuance of preferred stock for use in effectuating a
merger, that plaintiff was challenging. 419 F.2d 1112, 1116–17 (7th Cir. 1970). And in Spano v.
Boeing Co., the court found that adequacy of representation had not been proven when the
proposed class was defined so broadly that it included individuals who would actually be harmed
by the relief plaintiffs sought. 633 F.3d 574, 587 (7th Cir. 2011). Mayfield v. Dalton was unique
among the cases cited by Defendants, as it approved of a district court’s decision to deny class
certification on adequacy grounds without proof of conflict when there may have been “people
among the broad class proposed  who did not oppose the [challenged policy], and who, in fact,
approved of it and wished the policies fully enforced.” 109 F.3d 1423, 1427 (9th Cir. 1997).
In response, Ms. Borum cites to examples where courts found that disagreement among
class members did not defeat a plaintiff’s claim of adequacy where the disapproving class
members’ interests were adequately represented by the defendants. See Pls.’ Reply at 21–22. The
Court need not decide which philosophy should prevail, as in this case there does not appear to
be any substantial conflict between Ms. Borum’s interests and the interests of other putative class
members, even the ones who submitted declarations supporting the redevelopment. As Ms.
Borum explains, she did not file suit in order to permanently impede the redevelopment of
Brookland Manor, but rather to ensure that she and other residents would not be displaced by the
redevelopment in a way that discriminated against them based on their familial status. See Pls.’
Reply at 19 n.16. As such, the only class members whose interests conflict with Ms. Borum’s
would be those currently residing in large apartments who wish for those large apartments to be
eliminated during the redevelopment. Since there is no evidence that any such resident exists, the
Court finds that there is no substantial conflict between Ms. Borum’s interests and those of the
Defendants also argue that Ms. Borum cannot serve as an adequate representative of the
class when she “lack[s] any real and immediate injury or threat of injury.” Defs.’ Opp’n at 28.
This purported lack of a threat of injury is due to her household containing several non-parental
adults whom Defendants argue are not entitled to protection under the FHA or DCHRA. Id. at
28–29. By excluding the non-covered adults, Defendants argue that covered members of Ms.
Borum’s family would be able to fit into an apartment with two bedrooms or fewer, of which
there will be plenty in the redeveloped complex. Id. In support of this contention, Defendants cite
to E. Tex. Motor Freight Sys. Inc. v. Rodriguez, an employment discrimination case in which the
Supreme Court held that plaintiffs who had already been determined to lack the necessary
qualifications for the employment at issue could not have suffered any injury as a result of the
employer’s alleged discriminatory practices, and therefore could not adequately represent a class
of plaintiffs challenging the discriminatory policy. 431 U.S. 395, 403 (1977); Defs.’ Opp’n at
31–32. However, in that case, it had already been determined after a trial on the merits, which
was held prior to the debate over class certification, that the plaintiffs had not been harmed by
the challenged policy. See Rodriguez v. E. Tex. Motor Freight, Inc., No. SA-71-CA-302, 1973
WL 200, at *1 (W.D. Tex. Mar. 22, 1973). As such, no question of fact remained as to whether
they were appropriately members of the class being considered.
Here, Ms. Borum has alleged injuries under the FHA and DCHRA, both past
(discriminatory statements) and future (displacement that disparately impacts families). These
allegations are sufficient to make her an adequate representative. Whether she and the putative
class may succeed on the merits of their disparate impact and discriminatory statement claims are
questions to be determined on summary judgment or at trial, but not at the class certification
stage. For now, Ms. Borum has alleged the same type of injury to herself as she alleges will be
suffered by other members of the putative class. As such, she is an adequate representative to
bring these claims on behalf of the class. And because, as explained above, she has met each
requirement of Rule 23(a), the Court next turns to the question of whether she has satisfied the
requirements of Rules 23(b)(2).7 See Comcast Corp. v. Behrend, 569 U.S 27, 33 (2013) (“[A]
party must not only be prepared to prove that there are in fact sufficiently numerous parties,
common questions of law or fact, typicality of claims or defenses, and adequacy of
representation, as required by Rule 23(a),” but “must also satisfy through evidentiary proof at
least one of the provisions of Rule 23(b).” (internal citations and quotation marks omitted)),
B. Rule 23(b)(2)
Defendants argue that Ms. Borum has not demonstrated that her class meets the
requirements of Rule 23(b)(2), a type of class action that may be maintained when “the party
opposing the class has acted or refused to act on grounds that apply generally to the class, so that
final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a
whole.” Fed. R. Civ. P. 23(b)(2); see Defs.’ Opp’n at 39. “By virtue of its requirement that the
plaintiffs seek to redress a common injury . . . Rule 23(b)(2) operates under the presumption that
the interests of the class members are cohesive.” Lemon v. Int’l Union of Operating Eng’rs’,
Local No. 139, AFL–CIO, 216 F.3d 577, 580 (7th Cir. 2000). “The key to the (b)(2) class is ‘the
Ms. Borum also moved for class certification under Rule 23(b)(3) in order to obtain
damages for class members who have already been displaced or are displaced during the
pendency of this litigation. However, as explained above, the Court treats these putative class
members as a distinct subclass and denies certification of this subclass because it does not meet
the requirements of Rule 23(a). As such, the Court need not determine whether those groups
meet the requirements of Rule 23(b)(3).
indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct
is such that it can be enjoined or declared unlawful only as to all of the class members or as to
none of them.’” Wal-Mart, 564 U.S. at 360 (quoting Richard A. Nagareda, Class Certification in
the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 132 (2009)). “As a corollary to this principle,
certification is generally inappropriate in actions raising significant individual liability or defense
issues,” Lightfoot v. District of Columbia, 273 F.R.D. 314, 329 (D.D.C. 2011), or “when each
individual class member would be entitled to a different injunction or declaratory judgment
against the defendant.” Wal-Mart, 564 U.S. at 360. But “cases in the civil rights field are
illustrative of the types of class actions suitable for certification under (b)(2).” Taylor v. Dist. of
Columbia Water & Sewer Auth., 241 F.R.D. 33, 47 (D.D.C. 2007) (internal citation and
quotation marks omitted).
Defendants assert that Rule 23(b)(2)’s requirements have not been met because, in their
opinion, not all class members are similarly situated. For example, Defendants argue that,
occupants of three-bedroom apartments will not be impacted by the redevelopment in the same
way as residents of four- and five-bedroom apartments, nor will occupants of apartments that
contain multiple small families be impacted in the same way as apartments that contain one large
one. Defs.’ Opp’n at 39. Because these various class members are not identically situated,
Defendants claim that “it cannot be concluded that any single injunction or declaratory judgment
would provide relief to each member of the class.” Id.
However, as Ms. Borum explains in her motion for class certification, she is seeking an
injunction that would do two things: require “Defendants to modify their redevelopment plan in a
manner so as to eradicate disparate impact,” Pls.’ Reply at 22, and preclude “Defendants from
making further statements that discriminate against families.” Pls.’ Mem. at 19. Ms. Borum is
not requesting any particular remedy as to any particular family. Because Ms. Borum has
challenged a single policy and a single set of statements, whose harm, should liability be found,
could be remedied by court orders applicable to all class members, she has demonstrated that this
suit satisfies the requirements of Rule 23(b)(2).
C. Class Counsel
Ms. Borum also moves, unopposed, for the appointment for her legal team as class
counsel. See Pls.’ Mem. at 24–25. Rule 23(g) provides that a court must appoint
adequate class counsel to represent the class after considering: (1)
the work counsel has done in identifying or investigating potential
claims in this action, (2) counsel’s experience in handling class
actions, other complex litigation, and claims of the type asserted in
the action, (3) counsel’s knowledge of the applicable law, and (4)
the resources counsel will commit to representing the class.
Johnson v. District of Columbia, 248 F.R.D. 46, 58 (D.D.C. 2008) (internal quotation marks and
citation omitted). Ms. Borum’s legal team, comprised of multiple attorneys with experience in
complex civil and civil rights litigation, meets all of these requirements. See Decl. Maureen F.
Browne, ECF No. 43-3; Decl. Matthew Handley, ECF No. 43-4. As such, the Court grants Ms.
Borum’s motion to appoint her current legal team as class counsel.
For the foregoing reasons, Plaintiffs’ Motion for Class Certification (ECF No. 43) is
GRANTED IN PART AND DENIED IN PART, and Plaintiffs’ Motion for Appointment of
Class Counsel (ECF No. 43) is GRANTED. The following class is hereby CERTIFIED under
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
An order consistent with this Memorandum Opinion is separately and contemporaneously issued.
Dated: February 12, 2018
United States District Judge
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