United States of America v. New Orleans City, et al
Filing
25
ORDER & REASONS denying 9 Motion to Dismiss Case. Signed by Judge Martin L.C. Feldman on 12/6/2012. (caa, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
UNITED STATES OF AMERICA
CIVIL ACTION
VERSUS
NO. 12-2011
THE CITY OF NEW ORLEANS and
THE LOUISIANA STATE BOND COMMISSION
SECTION: “F”
ORDER AND REASONS
Before the Court is the City of New Orleans motion to
dismiss the government’s complaint for lack of subject matter
jurisdiction under Federal Rule 12(b)(1), and for failure to
state a claim upon which relief can be granted under Rule
12(b)(6).
For the reasons that follow, the motion is DENIED.
Background
This case arises out of the proposed redevelopment of a
former nursing home into an affordable apartment complex.
Beginning in 2009, the Gulf Coast Housing Partnership
(“GCHP”), a nonprofit real estate development company whose
principal focus is providing affordable housing, began
redeveloping a building formerly used as a nursing home, located
at 2535 Esplanade Avenue in New Orleans.
GCHP, along with other
nonprofit organizations and developers, planned to convert the
Esplanade property into a forty-unit affordable housing
1
development.
Half of the proposed units would be reserved for
low-income individuals, and the other half of the units would
serve as “permanent supportive housing” for homeless persons with
mental and physical disabilities.
The Esplanade property would
also include an on-site case management office, which would
primarily involve assisting tenants in the transition from
homelessness to independent living.
The main source of funding for the redevelopment project was
to be provided by the Piggyback Program, which was created by the
State of Louisiana to assist in redevelopment efforts postHurricane Katrina.
Through the Piggyback Program, eligible
projects would receive funds from a combination of sources,
including state-issued bonds that require the approval of the
Bond Commission.
In August 2009, the Bond Commission adopted a
moratorium on approving bond financing under the Piggyback
Program for low-income housing projects, stating that it needed
to study the housing marking in New Orleans.
A final study was
released in March 2011, which concluded that the New Orleans’
housing market would support additional low-income affordable
housing; however, the moratorium has yet to be lifted.
To date, the Esplanade project has not received Piggyback
funding.1
The project has had a difficult history.
1
In its first amended complaint, the United States alleges
that the City engaged in actions to prevent the funding of
Esplanade. Specifically, the United States asserts that the City
2
According to the local zoning ordinance, the Esplanade
property is located in a RM-3 zoned district that allows for
apartment complex use; however, the ordinance also requires that
an apartment complex provide off-street parking for each dwelling
unit.
The original proposed apartment complex for the Esplanade
property included forty-two dwelling units, but the existing
parking lot only contained twenty-eight spaces.
As a result, in
January 2010, the developers applied to the Board of Zoning
Adjustments for a variance to waive the additional fourteen offstreet parking spots, and to allow the fourteen parking spaces to
be located on the streets.
Pursuant to the zoning ordinance,
notice of the developers’ application was provided to residents
of the surrounding neighborhood.
On March 8, 2010, the Board
is aware that it must request funding approval from the Bond
Commission, but the City refuses to do so because of the
prospective Esplanade tenants. The United States points to two
other low-income housing projects, neither of which provide
housing for persons with disabilities, as support for its
argument.
On August 4, 2010, the Mayor wrote to the Chairman of the
Bond Commission to request that a seventy-unit affordable housing
project known as the Oretha Castle Haley development be placed on
the August 2010 Bond Commission agenda and approved. The Bond
Commission subsequently placed this project on its August 2010
agenda and approved its financing. Similarly, on August 17,
2011, the Mayor wrote to the Chairman in support of bond
financing of the B.W. Cooper mixed-income housing development.
The Bond Commission placed the B.W. Cooper project on the August
2011 agenda and approved its financing.
Moreover, the complaint asserts that the Esplanade project
developers have repeatedly requested that the Mayor seek bond
financing approval from the Bond Commission, and on each occasion
the Mayor refused these requests and provided no explanation.
3
held a hearing on the first variance application, and neighbors
vocalized opposition, the extent to which is disputed, to the
proposed use of the property.2
At the end of that hearing, the Board denied the first
variance application.
The developers subsequently revised the
plan for the Esplanade property.
The number of units, it was
proposed, would be reduced to forty, twenty of which would be
supportive housing.
A portion of the building would be
demolished, and the parking lot would be reconfigured to provide
the required forty parking spaces.
Under the revised plan,
however, some of the parking spaces would be located less than
ten feet from Bell Street, the public right of way behind the
property, in violation of the zoning ordinance.
And so, the
developers submitted still a second variance application to the
Board, requesting a waiver of the setback requirement. On May 10,
2
In its amended complaint, the United States emphasizes the
amount of opposition expressed by the neighbors. Specifically,
the United States quotes an unsigned flier that was allegedly
circulated in the neighborhood and submitted to the Board.
According to the complaint, the flier states that the proposed
Esplanade apartments would be occupied by “the homeless, exoffenders, people with mental illness, HIV/AIDS, people with a
history of drug usage, and others similarly situated in a concept
described as “supportive housing.” . . . NO facility of this
nature should be located in a residential neighborhood,
particularly an Historic Residential Neighborhood!!!!!” (emphasis
in original). The United States’s complaint also cites a letter
opposing the variance, written by the president of the Esplanade
Ridge & Treme Civic Organization, which states that “[t]hese are
people who really need more intensive care. In truth, they
should be in an institutional setting.”
4
2010, the Board conducted a hearing on the second variance
application, and voted to deny the application.3
After the denial of the second variance application, the
developers again revised the plan for the Esplanade property.
The plan would still provide for forty dwelling units, twenty of
which would be for supportive housing, and a portion of the
building would be demolished.
The number of parking spaces were
increased to forty-three, but some of those spaces would still be
located within the required setback from Bell Street.
The
developers submitted a third variance application, again, asking
for a waiver of the setback requirement.
On November 8, 2010, after a hearing on the third variance
application, the application was denied without prejudice by an
equally divided vote of the Board members.
On the same day,
November 8, an attorney for the Esplanade Ridge & Treme Civic
Association (“ERTCA”) filed a motion to dismiss the developers’
variance application, alleging that the proposed use of the
Esplanade property had been improperly classified as an apartment
complex.
ERTCA asserted that the Esplanade property should be
considered a residential care center, which is not permitted in a
RM-3 zoned district.
The Board decided that it lacked
jurisdiction to consider the argument.
3
And the difficulties
Again, the government’s complaint alleges that numerous
neighborhood residents spoke out at the hearing in opposition to
the application.
5
continued.
Paul A. May, Director of the City’s Department of Safety and
Permits, sent a letter to the City Planning Commission dated
April 8, 2011, which stated that the proposed use of the
Esplanade property did not comply with the zoning ordinance,
because the proposed use involved a supportive service to the
tenants (the on-site office that assisted the homeless transition
into independent living), which he stated is not an allowed use
for a RM-3 zoned district.
The developers appealed the Paul May
letter to the Board.
On November 16, 2011, approximately seven months after the
letter was issued, the Board granted the appeal and rescinded the
Paul May letter.
On December 12, 2011, the Board, on its own
motion, finally granted to the developers a variance permitting
the Esplanade property to be redeveloped as low-income housing,
with an on-site case management office, and without additional
off-street parking spaces.
The United States Department of Justice filed suit in this
Court on August 6, 2012, alleging that the City of New Orleans
and the Louisiana Bond Commission violated the Fair Housing Act
and Title II of the American with Disabilities Act.
The United
States seeks injunctive relief to stop the City from continuing
to obstruct the Esplanade project, and retrospective relief for
the damages incurred by the developers due to the City’s delays.
6
The City now moves for dismissal under Federal Rules 12(b)(1) and
12(b)(6), asserting that the Court lacks subject matter
jurisdiction, and that the United States has failed to state a
claim upon which relief can be granted.
I. Legal Standards
A.
Motions filed under Rule 12(b)(1) of the Federal Rules of
Civil Procedure allow a party to challenge the Court’s subject
matter jurisdiction.
Fed. R. Civ. P. 12(b)(1).
The burden of
proof for a Rule 12(b)(1) motion to dismiss is on the party
asserting jurisdiction.
161 (5th Cir. 2001).
Ramming v. United States, 281 F.3d 158,
The Court may find a plausible set of facts
to support subject matter jurisdiction by considering any of the
following: “(1) the complaint alone; (2) the complaint
supplemented by undisputed facts evidenced in the record; or (3)
the complaint supplemented by undisputed facts plus the court's
resolution of disputed facts.” Barrera-Montenegro v. United
States, 74 F.3d 657, 659 (5th Cir. 1996).
B.
The City’s second ground for dismissal advanced here is
dismissal for failure to state a claim under Rule 12(b)(6).
The
standard of review applicable to motions to dismiss under Rule
12(b)(6) is similar to that applicable to motions to dismiss
under Rule 12(b)(1).
See Williams v. Wynne, 533 F.3d 360, 364-65
7
n.2 (5th Cir. 2008)(observing that the Rule 12(b)(1) and Rule
12(b)(6) standards are similar, but noting that applying the Rule
12(b)(1) standard permits the Court to consider a broader range
of materials in resolving the motion).
Rule 12(b)(6) of the Federal Rules of Civil Procedure allows
a party to move for dismissal of a complaint for failure to state
a claim upon which relief can be granted.
Such a motion is
rarely granted because it is viewed with disfavor.
See Lowrey v.
Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997) (quoting
Kaiser Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982)).
In considering a Rule
12(b)(6) motion, the Court “accepts ‘all well-pleaded facts as
true, viewing them in the light most favorable to the
plaintiff.’”
See Martin K. Eby Constr. Co. v. Dall. Area Rapid
Transit, 369 F.3d 464 (5th Cir. 2004) (quoting Jones v.
Greninger, 188 F.3d 322, 324 (5th Cir. 1999)).
But, in deciding
whether dismissal is warranted, the Court will not accept
conclusory allegations in the complaint as true.
Kaiser, 677
F.2d at 1050. Indeed, the Court must first identify allegations
that are conclusory and, thus, not entitled to the assumption of
truth.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A
corollary: legal conclusions “must be supported by factual
allegations.” Id. at 678.
Assuming the veracity of the well-
pleaded factual allegations, the Court must then determine
8
“whether they plausibly give rise to an entitlement to relief.”
Id. at 679.
“‘To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Gonzalez v. Kay, 577 F.3d
600, 603 (5th Cir. 2009)(quoting Iqbal, 556 U.S. at 678)(internal
quotation marks omitted).
“Factual allegations must be enough to
raise a right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).”
Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007) (citations and footnote omitted). “A claim
has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S.
at 678 (“The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.”).
This is a “context-specific
task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679.
“Where a complaint
pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and
plausibility of entitlement to relief.”
Id. at 678 (internal
quotations omitted) (citing Twombly, 550 U.S. at 557).
plaintiff’s obligation to provide the ‘grounds’ of his
9
“[A]
‘entitle[ment] to relief’”, thus, “requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do.”
Twombly, 550 U.S. at 555
(alteration in original) (citation omitted).
In deciding a motion to dismiss, the Court may consider
documents that are essentially “part of the pleadings.”
That is,
any documents attached to or incorporated in the plaintiff’s
complaint that are central to the plaintiff’s claim for relief.
Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th
Cir. 2004) (citing Collins v. Morgan Stanley Dean Witter, 224
F.3d 496, 498-99 (5th Cir. 2000)).
Also, the Court is permitted
to consider matters of public record and other matters subject to
judicial notice without converting a motion to dismiss into one
for summary judgment.
See United States ex rel. Willard v.
Humana Health Plan of Tex. Inc.,
336 F.3d 375, 379 (5th Cir.
2003).
II.
Discussion
The City of New Orleans contends that the United States’s
complaint should be dismissed for lack of subject matter
jurisdiction and for failure to state a claim upon which relief
can be granted.
The Court disagrees.
A.
The City first asserts that the Court lacks subject matter
10
jurisdiction because the Board ultimately approved the
developers’ requested variances, which therefore render the
issues here moot and not ripe for judicial review.
Although the
City refers to “mootness” and “ripeness” interchangeably
throughout its papers, it is important to note that they demand
distinct inquiries, and neither doctrine deprives the Court of
subject matter jurisdiction here.
“A court should dismiss a case for lack of ripeness when the
case is abstract or hypothetical.
The key considerations are
‘the fitness of the issues for judicial decision and the hardship
to the parties of withholding court considerations.’” Groome Res.
Ltd., L.L.C. v. Parish of Jefferson, 234 F.3d 192, 199 (5th Cir.
2000) (quoting New Orleans Pub. Serv., Inc. v. Council of New
Orleans, 833 F.2d 583, 586-87 (5th Cir. 1987)).
Under the first
prong of the ripeness inquiry, which examines the fitness of the
issues, the Fifth Circuit has expressly stated that “under the
Fair Housing Act . . . a violation occurs when the disabled
resident is first denied a reasonable accommodation, irrespective
of the remedies granted in subsequent proceedings.”
Id. (quoting
Bryant Woods Inn, Inc. v. Howard Cnty., 124 F.3d 597, 602 (4th
Cir. 1997))(internal quotation marks omitted).
Moreover, the
Fifth Circuit has elaborated that a “denial can be both actual or
constructive, as an indeterminate delay has the same effect as an
outright denial.”
Id.
11
The Court finds here that the issues seem fit for judicial
review.
Beginning with the first denial of the developers’
variance application in March 2010, the developers encountered a
series of moves that resulted in a considerable delay of nearly
twenty-one months, until December 2011 when the Board finally
granted the variances.
Included within this twenty-one month
time lapse is the seven-month period during which the developers
had to wait while they appealed the Paul May letter, which
completely obstructed and trumped the ability of the developers
to proceed with the Esplanade project; the letter opined that the
planned property use included a supportive service to the tenants
that was not allowed in a RM-3 zoned district.
Moreover, the
fact that the Board eventually approved the variance requests is
not dispositive here, because, as mentioned, the Fifth Circuit
has unqualifiedly held that denial (which can be actual or
constructive) is a violation under the FHA “irrespective of the
remedies granted in subsequent proceedings.”
Id. (affirming the
district court’s finding that the plaintiff’s suit, which
challenged a ninety-five day delay on a zoning ordinance
application, was ripe under the FHA); see also Bryant Woods, 124
F.3d at 602 (holding that the case was ripe because a FHA
violation occurs once the disabled resident is denied a
reasonable accommodation notwithstanding subsequent remedies);
Meadows of W. Memphis v. City of W. Memphis, 800 F.2d 212, 215
12
(8th Cir. 1986) (“[W]e have no doubt that the case is ripe for
adjudication.
The complaint alleges [under the FHA] that the
City . . . has blocked the plaintiff’s access to public financing
for at least a year. . . . The injury is real, definite, and
complete. . . . [E]ven if only a one-year postponement occurs,
and the project is ultimately built, a real economic loss has
still occurred, or at least the complaint so alleges.”).
These
precedents bind this Court.
The City adds for emphasis that the United States’s claim
that the City has taken action to prevent funding is merely
abstract or hypothetical because the City has no control over the
required funding.
However, the United States asserts that as a
matter of practice, the Bond Commission will not approve
financing unless and until the City requests that it do so, and
that the Esplanade developers have repeatedly asked the City for
help in securing bond financing, but all to no avail.
Based on
the amended complaint, which provides specific examples in which
the City requested that the Bond Commission grant funding for
low-income housing projects (that notably do not target persons
with disabilities), and the Bond Commission approvals of funding,
the Court finds that the complaint establishes a plausible set of
facts that is not so abstract or hypothetical to warrant
dismissal for lack of subject matter jurisdiction.
Under the second prong of the ripeness inquiry, which
13
assesses the “hardship to the parties of withholding court
consideration,” the Fifth Circuit has held that “housing
discrimination causes a uniquely immediate injury.”
Groome, 234
F.3d at 200 (internal quotation marks omitted); see also Assisted
Living Assocs. of Moorestown, L.L.C. v. Moorestown Twp., 996 F.
Supp. 409, 427-28 (D.N.J. 1998) (collecting cases that discuss
the injuries that make FHA discrimination issues ripe).
Moreover, the Fifth Circuit has noted that in addition to the
injury that may result from housing discrimination, there is also
“concrete economic hardship from continued delay.”
F.3d at 200.
Groome, 234
Here, the developers may well have incurred
specific economic damages from the delay in commencing operations
and the foregone use of the property (and having to revise the
Esplanade proposal several times).
The Court finds these claims
of hardships can conceptually frustrate the purpose of the FHA
and the ADA, and thus the issue is ripe for review.4
B.
The City also contends that this case is moot because the
Board has since granted the developers’ variance requests.
In general, a claim becomes moot “when the issues presented
are no longer ‘live’ or the parties lack a legally cognizable
interest in the outcome.”
La. Envtl. Action Network v. U.S.
4
The Court expresses no opinion about the merits of the claims
alleged.
14
Envtl Prot. Agency, 382 F.3d 575, 581 (5th Cir. 2004) (quoting
Murphy v. Hunt, 455 U.S. 478, 381 (1982) (per curium)).
The
United States’s case cannot be mooted simply because the Board
changed its position on the developers’ variances.
See
Buckhannon Bd. and Care Home, Inc. v. W. Va. Dept. of Health &
Human Res., 532 U.S. 598, 608-09 (2001) (noting that although the
defendant enacted legislation that would eliminate the FHA
violation, “so long as the plaintiff has a cause of action for
damages, a defendant’s change in conduct will not moot the
case”).
Moreover, the U.S. Supreme Court has counseled:
Irrespective of the issue of injunctive relief, [the
plaintiff] continue[s] to seek damages to redress alleged
violations of the Fair Housing Act. . . . Given
[plaintiff’s] continued active pursuit of monetary
relief, this case remains definite and concrete, touching
the legal relations of parties having adverse legal
interests.
Havens Realty Corp. v. Coleman, 455 U.S. 363, 371 (1982)
(internal quotation marks omitted).
The United States requests
monetary relief here for the costs it had to incur while the City
allegedly delayed the Esplanade project; the case has not been
mooted.
See Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S.
Ct. 2277, 2287 (2012) (“As long as the parties have a concrete
interest, however small, in the outcome of the litigation, the
case is not moot.”).
Mootness doctrine is also sensitive to requests, such as in
15
this case, regarding injunctive relief:
It is well settled that a defendant’s voluntary
cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of
the practice. . . . . If it did, the courts would be
compelled to leave the defendant . . . free to return to
his old ways.
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
528 U.S. 167, 189 (2000) (citations and internal quotation marks
omitted).
Therefore, in determining whether the United States’s
request for injunctive relief is moot, the defendant has the
“heavy burden of persuading the court” that it is “absolutely
clear that the allegedly wrongful behavior could not reasonably
be expected to recur.”
Id. (quoting United States v.
Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)).
The City fails to meet that burden here.
In its submissions
in support of dismissal, the City repeatedly emphasizes that the
Board approved the developers’ requested variances, and, in a
conclusory fashion, alleges that the claims are moot.
In what is
best characterized as an attempt to show that the alleged
wrongful behavior will not be repeated, the City submits that it
is currently defending the Board’s decision to grant the
developers’ variances in three state court lawsuits.
In those
suits, the City has asserted that it has obligations under the
FHA and ADA, which is why the City permitted the variances.
The
fact that the City is defending itself in lawsuits does nothing
16
to persuade this Court, as reasonable as the argument seems, that
the allegedly wrongful conduct could not reasonably recur, given
that the Esplanade project has yet to receive approved funding.
C.
The City also seeks the benefit of Rule 12(b)(6); it urges
that the United States has failed to state a claim for any
violation under the FHA or ADA because the Board has granted the
developer’s requested variances, and the City has no control over
the Bond Commission’s funding.
in motion practice.
The submission also lacks merit
The City’s reliance on the fact that the
Board eventually granted the variances is misplaced.
A violation
under the FHA and ADA occurs when the denial is first made,
“irrespective of the remedies granted in subsequent proceedings.”
Groome, 234 F.3d at 199.
Moreover, the fact that the City does
not expressly control the Commission’s funding does not defeat
the allegation that the City has prevented the funding of the
project.
See Twombly, 550 U.S. at 555 (“Factual allegations must
be enough to raise a right to relief above the speculative level,
on the assumption that all the allegations in the complaint are
true (even if doubtful in fact).”); see also Meadows of W.
Memphis, 800 F.2d at 215 (noting that the court must accept the
allegations as true when the complaint alleged that the City
blocked plaintiff’s access to public financing for an
impermissible reason); Bennett v. Slidell, 728 F.2d 762,
17
(5th
Cir. 1984).
Therefore, keeping in mind that the Court must
accept all well-pleaded facts as true and in a light most
favorable to the plaintiff, the Court finds that United States’s
complaint sufficiently states claims under the FHA and the ADA to
survive dismissal under Rule 12(b)(6).
The federal statutes are
far-ranging.
Under the Fair Housing Act, it is unlawful
[t]o discriminate in the sale or rental, or to otherwise
make unavailable or deny, a dwelling to any buyer or
renter because of a handicap of . . . a person residing
in or intending to reside in that dwelling after it is .
. . made available . . . or any person associated with
that buyer or renter.
42 U.S.C. § 3604(f)(1).
Similarly, Title II of the ADA
generously mandates that “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subject to
discrimination by such entity.”
42 U.S.C. § 12132.
statutes apply to municipal zoning decisions.
Both federal
See Greater New
Orleans Fair Hous. Action Ctr. v. St. Bernard Parish, 648 F.
Supp. 2d 805, 808 (E.D. La. 2009); see also Tsombanidis v. W.
Haven Fire Dept., 352 F.3d 565, 573-74 (2d Cir. 2003); Oconomowoc
Residential Programs v. City of Milwaukee, 300 F.3d 782-83 (7th
Cir. 2002).
The United States’s complaint pleads sufficient
facts, and the City does not contest, that the prospective
tenants of the Esplanade project are “disabled” within the terms
18
of both statutes, because addiction and mental illness are
considered disabilities under the law.
See, e.g., 24 C.F.R. §
100.201(a)(2) (noting that “handicap” under the FHA includes
emotional or mental illness, along with drug addition other than
addiction caused by current, illegal use of a controlled
substance); 28 C.F.R. § 41.31(b)(1)(ii) (same regulation under
the ADA).
Further, the United States alleges claims of intentional
discrimination under the FHA and ADA.5
To prove disparate
treatment under both statutes, one must show that the defendant
intended to discriminate or was improperly motivated in making
the discriminating decision.6
See, e.g., Hanson v. Veterans
Admin., 800 F.2d 1381, 1386 (5th Cir. 1986); Greater New Orleans
Fair Hous. Action Ctr., 648 F. Supp. at 808.
Fair Housing Act
cases have adopted the same standard for proving discriminatory
intent that governs an equal protection claim as articulated by
the Supreme Court in Village of Arlington Heights v. Metropolitan
5
The statutes are often interpreted in tandem. Again, the Court
expresses no opinion on the merits of this case.
6
With the exception of the Age Discrimination in Employment Act
(ADEA), the mixed-motive framework is still available for claims
under antidiscrimination statutes within the Fifth Circuit. See,
e.g., Smith v. Xerox Corp., 602 F.3d 320 (5th Cir. 2010)
(limiting the application of Gross v. FBL Fin. Servs., Inc. to
claims under the ADEA only).
19
Housing Development Corp., 429 U.S. 252 (1977).7
To assess
whether or not discriminatory intent exists, the Fifth Circuit,
faithful to Arlington Heights, has held the following
circumstantial factors to be both pertinent and non-exhaustive:
(1)
historical background of the decision;
(2)
the specific sequence of events leading up to the
decision;
(3)
departures from the normal procedural sequence;
(4)
substantive departures; and
(5)
legislative history, especially where there are
contemporary statements by members of the decisionmaking body.
Overton v. City of Austin, 871 F.2d 529, 540; see also Greater
New Orleans Fair Hous. Action Ctr., 648 F. Supp. 2d at 808
(applying the Arlington Heights factors to find that the Parish
discriminated in violation of the FHA).
Application of the Arlington Heights factors here
demonstrates that the discrimination claims of the federal
government are plausible on their face.8
Under the first and
7
For FHA cases adopting the Arlington Heights standards, see
United States v. Yonkers Bd. of Educ., 837 F.2d 1181, 1216-17 (2d
Cir. 1987); United States v. City of Birmingham, Mich., 727 F.2d
560, 565 (6th Cir. 1984); Greater New Orleans Fair Hous. Action
Ctr. v. St. Bernard Parish, 648 F. Supp. 2d 805, 809-19 (E.D. La.
2009); Greater New Orleans Fair Hous. Action Ctr. v. St. Bernard
Parish, 641 F. Supp. 2d 563, 568-77 (E.D. La. 2009); Atkins v.
Robinson, 545 F. Supp. 852, 870-71 (E.D. Va. 1982), aff’d, 733
F.2d 318 (4th Cir. 1984); In re Malone, 592 F. Supp. 1135, 1166
(E.D. Mo. 1984), aff’d, 794 F.2d 680 (8th Cir. 1986).
8
The United States need not plead a prima facie case to state a
plausible claim of discrimination. See Flores v. Select Energy
20
second Arlington Heights factors, the United States alleges that
the Board denied the developers’ variance applications on three
different occasions, in large part because of the community
opposition expressed at the hearings.
The City contends that the
public’s statements are irrelevant; however, several courts have
held that a city may be liable for responding to public
opposition.
See Greater New Orleans Fair Hous. Action Ctr., 648
F. Supp. at 811-12 (“[T]he public statements are relevant both as
expressing the general sentiment during the decision making
process and also insofar as public opinion was specifically
referenced by the decision-makers themselves.”); see also
Tsombanidis, 352 F.3d at 580 (“[T]he history of hostility of
neighborhood residents . . . and their pressure on the Mayor and
other city officials . . . supports the [district] court’s
finding that this hostility motivated the City in initiating and
continuing its enforcement efforts.”); Caron Found. of Fla., Inc.
v. City of Delray Beach, No. 12-80215, 2012 WL 2249263, at *10
(noting that the sequence of events suggests improper
discriminatory motive when the City denied a reasonable
accommodation request in light of “vocal community and planning
board opposition”).
These decisions recognize the reality of
such controversial proposals in the urban setting.
Servs., L.L.C., No. 11-11024, 2012 WL 3530911, at *2 (5th Cir.
Aug. 16, 2012) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506,
510 (2002)).
21
Moreover, regarding the third and fourth Arlington Heights
factors, the United States specifically alleges in its amended
complaint that the Board acted against its own recommendation and
provided no explanation for any of its three variance denials.
Finally, with respect to the fifth Arlington Heights factor, the
complaint alleges that the Board members have made statements
that demonstrated that they were aware of the community
opposition, and, as mentioned above, references by decisionmakers to public sentiment can be instructive in a discriminatory
intent analysis.
See Greater New Orleans Fair Hous. Action Ctr.,
648 F. Supp. at 811-12.
In sum, the United States’s complaint
contains sufficient factual matter, on the present record, which
accepted as true, states a claim to relief that is plausible on
its face.
Accordingly, IT IS HEREBY ORDERED that the motion to dismiss
by the City of New Orleans is DENIED.
New Orleans, Louisiana, December 6, 2012
______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
22
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