Treece et al v. Harlan

Filing 377

ORDER AND REASONS - IT IS HEREBY ORDERED that Plaintiffs' 212 Motion for Partial Summary Judgment is DENIED. Defendants' 204 Motion for Partial Summary Judgment is GRANTED. Defendants are entitled to summary judgment that Plaintiffs have no claim against them under 42 U.S.C. § 3604(a) or under § 3617 based on a violation of § 3604(a). Signed by Judge Susie Morgan on 2/12/2021. (sbs)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DWAYNE TREECE, ET AL.,
Plaintiffs

CIVIL ACTION

VERSUS

NO. 17-10153

PERRIER CONDOMINIUM OWNERS
ASSOCIATION, INC., ET AL.,
Defendants

SECTION: “E” (3)

ORDER AND REASONS
Before the Court is Plaintiffs’ Motion for Partial Summary Judgment.1 In the
February 14, 2020 Order and Reasons partially deciding this motion, the Court
determined “Plaintiffs are entitled to summary judgment that there is a substantial
statistical disparity between the effect of Perrier Condominium’s 250 square foot per
person and 400 square foot per person occupancy limits on families with children and
households without children.”2 The last element of Plaintiffs’ prima facie case, “robust
causality,” is the only issue remaining to be decided on Plaintiffs’ summary judgment
motion. Specifically, the Court must determine whether Plaintiffs have completed the
elements of their prima facie case by offering evidence that Defendant Perrier
Condominium Owners Association’s (“PCOA”) 250 square foot per person occupancy
limit (hereinafter “250 square foot rule”) and 400 square feet per person occupancy limit
(hereinafter “400 square foot rule”) robustly caused a disproportionate impact on
families with children in violation of 42 U.S.C. § 3604(a) of the Fair Housing Act (“FHA”).

1
2

R. Doc. 212.
R. Doc. 332 at 42.

1

Also before the Court is Defendants’ cross Motion for Partial Summary Judgment
regarding Plaintiffs’ § 3604(a) disparate impact claim and § 3617 claim to the extent it is
based on the violation of § 3604(a).3 In the previous Order and Reasons dated February
14, 2020, the Court denied Defendants’ cross-motion for partial summary judgment on
the § 3604(a) claim in its entirety.4 On reflection, the Court’s February 14, 2020 order
decided only that there is a substantial statistical disparity between the effect of Perrier
Condominium’s 250 square foot rule and 400 square foot rule on families with children
and households without children. Whether Plaintiffs have established the robust
causation element of their § 3604(a) prima facie case remains before the Court. The better
course for the Court would have been to deny in part Defendants’ Motion for Partial
Summary Judgment on the § 3604(a) claim rather than denying it entirely. In the
February 14, 2020 Order, the Court also denied Defendants’ Motion for Partial Summary
Judgment on Plaintiffs’ § 3617 claim based on the violation of § 3604(a). The Court’s
denial was based on the Court’s assumption in the December 2, 2019 Order that the
Plaintiffs had underlying § 3604(a), (b), and (d) claims.5 The Court will now consider the
Defendants’ cross motion for partial summary judgment to determine whether it should
be granted as to Plaintiffs’ § 3604(a) claim and, if so, also as to Plaintiffs’ § 3617 claim to
the extent it is based on a § 3604(a) violation.
BACKGROUND
In August 2017, Plaintiffs Dwayne and Phallon Treece, along with their four
children, rented condominium Unit 6036 in a four-unit building located at 6032–6038

R. Doc. 204.
R. Doc. 332.
5 R. Doc. 174 at 17.
3

4

2

Perrier Street, New Orleans, Louisiana (“the Perrier Condominium”).6 Plaintiff Clifford
Harlan owns the unit the Treeces rented.7 Defendants Acuff, Jablonowski, and Haile
individually own the other three units.8 The four unit owners are the sole members of the
Perrier Condominium Owner’s Association (PCOA), which administers the Perrier
Condominium regime.9 Plaintiffs allege Defendants violated the FHA by enacting and
enforcing occupancy limits for the Perrier Condominium that have a disparate impact on
families with children, discriminating against the Treeces based on their familial status,
attempting to evict the Treeces based on their familial status, and attempting to force
Harlan to evict the Treeces based on their familial status.10
This Court already has determined Plaintiffs have shown Defendants’ policies have
a discriminatory effect on families with children and the statistical disparities are
substantial.11 In its previous Order and Reasons on Plaintiffs’ partial motion for summary
judgment, the Court held “Plaintiffs are entitled to summary judgment that there is a
substantial statistical disparity between the effect of Perrier Condominium’s 250 square
foot and 400 square foot occupancy limits on families with children and households
without children.”12
After issuing its Order and Reasons, the Court stayed this case and reserved ruling
on the element of robust causation pending grant or denial of a writ of certiorari to the
Supreme Court in the matter of Inclusive Communities Project, Inc. v. Lincoln Property

R. Doc. 16 ¶ 1; R. Doc. 49 ¶ 1.
R. Doc. 16 ¶ 13; R. Doc. 49 ¶ 13.
8 R. Doc. 16 ¶¶ 14–17; R. Doc. 49 ¶¶ 14–17.
9 Id.
10 R. Doc. 16. ¶¶ 2–3.
11 R. Doc. 332.
12 Id. at 42.
6
7

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Company et al. (hereinafter “Lincoln Property”).13 On October 14, 2019, the plaintiffs in
Lincoln Property petitioned the Supreme Court for a writ of certiorari.14 On March 23,
2020, the Supreme Court denied the writ15 and this Court lifted its stay.16
Following the Supreme Court’s denial of the writ and the lifting of the stay, the
Court allowed the parties to submit supplemental briefs and expert reports on the element
of causation.17 The parties both submitted supplemental memorandums, Plaintiffs
submitted two additional expert reports in support of their summary judgment motion
(the reports of Dr. John Logan and Dr. Allan Parnell),18 and Defendants submitted four
additional expert reports (the reports of Dr. Paul Jargowsky, Dr. Russell Robins, Dr.
Michael Eriksen, and Defendant Christopher Jablonowski).19 Plaintiffs filed a reply in
opposition20 to Defendants’ supplemental memorandum in support of their motion for
summary judgment. Defendants filed a reply in support of their motion for partial
summary judgment.21
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only “if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.”22 “An issue is material if its resolution could affect the outcome of the action.”23
When assessing whether a material factual dispute exists, the Court considers “all of the

920 F.3d 890 (5th Cir. 2019), petition for reh’g denied, 930 F.3d 660 (5th Cir. 2019), cert. denied, 140 S.
Ct. 2506 (Mar. 23, 2020).
14 Id.
15 Id.
16 R. Doc. 339.
17 R. Doc. 347.
18 R. Doc. 363.
19 R. Doc. 364.
20 R. Doc. 371.
21 R. Doc. 376.
22 FED. R. CIV. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986).
23 DIRECTV Inc. v. Robson, 420 F.3d 532, 536 (5th Cir. 2005).
13

4

evidence in the record but refrains from making credibility determinations or weighing
the evidence.”24 All reasonable inferences are drawn in favor of the nonmoving party.25
There is no genuine issue of material fact if, even viewing the evidence in the light most
favorable to the nonmoving party, no reasonable trier of fact could find for the nonmoving
party, thus entitling the moving party to judgment as a matter of law.26
“[A] party seeking summary judgment always bears the initial responsibility of
informing the district court of the basis for its motion, and identifying those portions of
[the record] which it believes demonstrate the absence of a genuine issue of material
fact.”27 If the dispositive issue is one on which the nonmoving party will bear the burden
of persuasion at trial, the moving party may satisfy its burden of production by either (1)
submitting affirmative evidence that negates an essential element of the nonmovant’s
claim, or (2) demonstrating there is no evidence in the record to establish an essential
element of the nonmovant’s claim.28
When proceeding under the first option, if the nonmoving party cannot muster
sufficient evidence to dispute the movant’s contention that there are no disputed facts, a
trial would be useless, and the moving party is entitled to summary judgment as a matter

Delta & Pine Land Co. v. Nationwide Agribusiness Ins. Co., 530 F.3d 395, 398 (5th Cir. 2008); see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51 (2000).
25 Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
26 Smith v. Amedisys, Inc., 298 F.3d 434, 440 (5th Cir. 2002).
27 Celtic Marine Corp. v. James C. Justice Cos., 760 F.3d 477, 481 (5th Cir. 2014) (quoting Celotex, 477 U.S.
at 323).
28 Celotex, 477 U.S. at 331–32 (Brennan, J., dissenting); see also St. Amant v. Benoit, 806 F.2d 1294, 1297
(5th Cir. 1987) (citing Justice Brennan’s statement of the summary judgment standard in Celotex, 477 U.S.
at 322–24, and requiring the movants to submit affirmative evidence to negate an essential element of the
nonmovant’s claim or, alternatively, demonstrate the nonmovant’s evidence is insufficient to establish an
essential element); 10A CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE
AND PROCEDURE § 2727.1 (2016) (“Although the Court issued a five-to-four decision, the majority and
dissent both agreed as to how the summary-judgment burden of proof operates; they disagreed as to how
the standard was applied to the facts of the case.” (internal citations omitted)).
24

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of law.29 When proceeding under the second option, the nonmoving party may defeat a
motion for summary judgment by “calling the Court’s attention to supporting evidence
already in the record that was overlooked or ignored by the moving party.”30 The burden
then shifts back to the movant to demonstrate the inadequacy of the evidence relied upon
by the nonmovant.31 If the movant meets this burden, “the burden of production shifts
[back again] to the nonmoving party, who must either (1) rehabilitate the evidence
attacked in the moving party’s papers, (2) produce additional evidence showing the
existence of a genuine issue for trial as provided in Rule 56(e), or (3) submit an affidavit
explaining why further discovery is necessary as provided in Rule 56(f).”32 “Summary
judgment should be granted if the nonmoving party fails to respond in one or more of
these ways, or if, after the nonmoving party responds, the court determines that the
moving party has met its ultimate burden of persuading the court that there is no genuine
issue of material fact for trial.”33
“[U]nsubstantiated assertions are not competent summary judgment evidence.”34
The opposing party must “identify specific evidence in the record and to articulate the
precise manner in which that evidence supports his or her claim. ‘Rule 56 does not impose
upon the district court a duty to sift through the record in search of evidence to support a
party’s opposition to summary judgment.’”35
UNDISPUTED FACTS

29 First Nat’l Bank of Ariz. v. Cities Service Co., 391 U.S. 253, 288–89 (1980); Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 249–50 (1986).
30 Celotex, 477 U.S. at 332–33.
31 Id.
32 Id. at 332–33 & fn.3.
33 Id.; see also First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968).
34 Ragas v. Tenn. Gas Pipeline Co., 136 F.3d 455, 458 (5th Cir. 1998) (citing Celotex, 477 U.S. at 324).
35 Id. (citing Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)) (quoting Skotak v. Tenneco Resins, Inc.,
953 F.2d 909, 915–16 & n.7 (5th Cir. 1992)).

6

On March 31, 2020, the Court allowed the Plaintiffs and Defendants to produce
additional expert reports and file supplemental memorandums.36 Because the Court
already had identified the undisputed facts relevant to the cross-motions for partial
summary judgment, the Court did not give the parties leave to submit additional
statements of undisputed fact. The Plaintiffs did not submit an additional statement of
undisputed facts with their supplemental memorandum.37 The Defendants, however, did
incorporate a discussion of what they claim are additional undisputed facts in their
supplemental memorandum, without leave of court.38 Plaintiffs, in a reply to Defendants’
supplemental memorandum, identified which of Defendants’ statements they dispute.39
Because the Court already had determined the undisputed facts relating to the pending
cross-motions for summary judgment, and did not give the parties leave to submit
additional statements of undisputed facts, the Court will not consider the Defendants’
additional list of undisputed facts40 or the Plaintiffs’ response.41
As mentioned above, in its previous Order and Reasons granting Plaintiffs’ Motion
for Summary Judgment in part, the Court determined the following facts are undisputed:
The Perrier Condominium contains four units. Plaintiff Harlan and Defendants
Acuff, Jablonowski, and Haile each own one of the units. The four unit owners are
the sole members of the Perrier Condominium Owners Association (PCOA), which
governs the Perrier Condominium regime. In August 2017, the Treeces, a family of
six, rented Unit 6036 from Plaintiff Harlan.
The Perrier Condominium is subject to a facially neutral use and occupancy rule
stated in the Condominium Declaration. The occupancy rule states “no unit shall
be occupied, even for permitted use, by more than one (1) person making such Unit
R. Doc. 347.
R. Doc. 363.
38 R. Doc. 364.
39 R. Doc. 371-1.
40 R. Doc. 364 at 2-4. The vast majority of the undisputed facts listed by the Defendants already were
included in the Court’s listing of the undisputed facts in its previous Order and Reasons. Most of the others
are quotes from expert reports, which the Court allowed the parties to provide in support of the motions.
41 R. Doc. 371-1.
36
37

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his or her residence for each two hundred fifty (250) square feet of floor area within
the Unit.” The occupancy rule allows up to five people to occupy Unit 6036. The
Treece family exceeds the occupancy limit as applied to Unit 6036.
The PCOA, in part, justifies the occupancy limit as necessary to reduce wear and
tear on the Perrier Condominium and its infrastructure. PCOA governing
documents empower the PCOA to make repairs to units at the expense of the unit
owners. The PCOA has not computed the maximum number of residents that the
Perrier Condominium’s infrastructure can handle.
The PCOA also justifies its occupancy rule based on “quality of life” concerns such
as street parking, backyard space, garbage can management, laundry use, and
noise. The Perrier Condominium does not have a parking lot. The Perrier
Condominium has four garbage cans. The PCOA rules include a rule governing
noise and nuisance. Harlan’s unit could be modified to ameliorate noise concerns.
On August 16, 2017, Harlan informed Acuff, Jablonowski, and Haile by email that
he had rented his unit to the Treeces. Acuff, whose unit abuts Harlan’s unit,
responded by email asking, “How long is their lease? And how many children do
they have? They are moving in as I write this and I am listening to a kid screaming
through the wall and running all over the floors.” Haile responded to Harlan’s
email and stated, “[t]his renter, Dwayne, had actually contact me in regards to
renting my unit the very first week I posted it. He came to look with his youngest
child. He is a nice guy but I decided the condo was not the best fit as they have 3
small children.” Acuff responded by stating “this could be a serious issue.
Reasonable limitations on occupancy are 2 people per bedroom. I don’t even know
that the systems in this building can handle that many people in one unit.”
The next day, Acuff emailed the unit owners and stated she had conducted a social
media search confirming the Treeces had three children, maybe four. Acuff then
texted Haile and Jablonowski a picture of the Treeces’ stroller parked in a common
area of the Perrier Condominium. Haile responded, “This is completely
unacceptable, they will not be storing strollers like that.” Soon after, Acuff shared
with Haile that she had suggested to Harlan he could evict the Treeces for lying on
their application by not listing all of their children. Haile said Harlan needed to get
this “sorted out” and that he should be able to break the lease. An hour later, Acuff
texted Harlan and Haile that “the bylaws also require 250 per square feet, which
means you need 1500” square feet to accommodate six people.
The next day, on August 18, 2017, Acuff texted Haile that she was going to propose
a change to the bylaws to limit occupancy to three people per unit. Five days later,
on August 21, 2017, Acuff emailed the other three owners to say she would like to
have a condominium association meeting “to discuss possible amendments to our
bylaws in light of recent events. In that same vein, I think we need to have our
bylaws reviewed and updated by an attorney.” Acuff also emailed Harlan
suggesting various bases on which Harlan could seek to terminate the Treeces’
lease, including violations of noise restrictions and the occupancy limit. Harlan
8

wrote back that “the fair housing act says one can’t be discriminated against based
on family status,” and he was concerned evicting a family for failing to list their
minor children on the lease might violate the Fair Housing Act. Acuff responded
on August 21, 2017, stating “[y]ou can’t discriminate on family status, but you can
reasonably restrict occupancy levels.”
On August 22, 2017, Harlan delivered to Dwayne and Phallon Treece a “Five (5)
Day Notice to Vacate Premises.” The notice stated,
PLEASE TAKE NOTICE that you have violated the following terms in
your lease agreement dated August 16, 2017: Section 4: USE OF PREMISES
Tenants have violated the lease agreement by occupying the premises with
six (6) individuals, rather than the two (2) individuals disclosed and named
on the lease agreement. Six (6) occupants is over the Landlord's
Condominium Owners’ Association Use and Occupancy Restrictions which
state “The Units are also restricted to occupancy by no more than one (1)
person per two hundred fifty (250) square feet of Unit floor space.”
That same evening the unit owners met and by a vote of three in favor and one
(Harlan) against, voted to change the occupancy restriction to read, “The Units are
also restricted to occupancy by no more than one (1) person per FOUR HUNDRED
(400) square feet of Unit floor space” (the “400 square foot rule”). The PCOA and
its members have not voted to rescind the 400 square foot occupancy standard.
The PCOA submitted the 400 square foot occupancy restriction to an attorney for
“review, advice, approval, and implementation.” The amendment was never
recorded on the public record.
Despite the notice to vacate, Harlan never evicted the Treeces, and on August 31,
2017, Acuff emailed Harlan stating, “If this isn’t resolved in a timely manner, we,
as an association, can also levy penalties for failure to observe the terms and
conditions of the rules. Any expenses we incur as an association can also be
assessed against the defaulting owner.” On September 8, 2017, Harlan informed
the condominium association members “I feel that I am being forced to evict by
the other members of the condo association.”
The other PCOA members then decided to pursue an eviction themselves.
Defendant Haile emailed the other PCOA members, “I believe we need to move on
with an eviction ASAP. If they sue us, they will sue us. But at least they will be out
. . . . I believe time for nice is over. It’s been over.” The PCOA members held a
special meeting on September 29, 2017. The owners voted, over Harlan’s objection,
to (1) impose a fine of $100 per day against Harlan beginning Monday, October 2,
2017 for his continued lease of his unit to Dwayne and Phallon and their family and
violating the occupancy limit; (2) pursue Dwayne and Phallon’s eviction; (3) assess
legal fees associated with such eviction against Harlan if the eviction were
successful; (4) retain the professional services of an attorney to represent the
Association; and (5) install a camera in the Perrier Condominium’s common
stairwell.
9

The following material statistics are not in dispute. Based on the United States
Census Bureau’s Public Use Microdata Sample, there are 82,003 renter
households in New Orleans. Of those renter households, 19,034 are families with
children, and 62,969 are households without children. Of the renter households
with children, 758 are households of six persons, and 7,844 are households of four
to six persons. Of the renter households without children, 24 are households of six
persons and 851 are households of four to six persons.”42
LAW AND ANALYSIS
I.

The Plaintiffs have not made a prima facie case that the 250 square foot
rule or the 450 square foot rule robustly caused families with children
to be the dominant group of affected renters.
At the Perrier Condominiums, Plaintiff’s unit number 6036 has 1,372 square feet

of living space.43 Five individuals are allowed to live in Unit 6036 under the 250 square
foot rule and three individuals are allowed to live in Unit 6036 under the 400 square foot
rule. The Court has determined there is a substantial statistical disparity between the
effect of Perrier Condominium’s 250 square foot rule and 400 square foot rule on families
with children and on households without children.44 The Court must now determine
whether Plaintiffs have established that Defendants’ 250 square foot rule or 400 square
feet rule robustly caused this disproportionate impact on families with children in
violation of § 3604(a) of the FHA. The Supreme Court and the Fifth Circuit have recently
provided guidance on this topic.
In Inclusive Communities Project, Inc. v. Texas Dept. of Housing and Community
Affairs (hereinafter “ICP I”), the Fifth Circuit held the FHA allows for disparate impact
claims and the burden-shifting standard set forth in the Secretary of Housing and Urban
Development (hereinafter “HUD”) regulations applies in disparate impact housing

R. Doc. 332 at 5-10 (internal citations omitted).
R. Doc. 363-2 at 4.
44 R. Doc. 332 at 6-7.
42
43

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discrimination cases.45 The Fifth Circuit’s decision was appealed to the Supreme Court.
The Supreme Court affirmed and remanded the case to the Fifth Circuit in Texas
Department of Housing & Community Affairs v. Inclusive Communities Project, Inc.
(hereinafter “ICP II”).46 While the appeal to the Supreme Court was pending, HUD issued
a regulation interpreting the FHA to provide disparate impact liability and establishing a
burden shifting framework for disparate impact claims.47 Under the HUD regulation, the
plaintiff “has the burden of proving that a challenged practice caused or predictably will
cause a discriminatory effect.”48 The Supreme Court in ICP II agreed with the HUD
regulation that both disparate treatment claims (claims asserting “discriminatory intent
or motive”) and disparate impact claims (claims asserting an “unjustified,
disproportionally adverse effect on minorities”) are cognizable under the FHA. The
Supreme Court went further than the HUD regulation and adopted the more stringent
causation requirement that a plaintiff must show, not just that a practice caused a
discriminatory effect, but the practice robustly caused the effect.49
The Supreme Court in ICP II explained, “[a] robust causality requirement ensures
that ‘[r]acial imbalance … does not, without more, establish a prima facie case of disparate
impact’ and thus protects defendants from being held liable for racial disparities they did
not create.”50 In other words, “a plaintiff challenging the decision of a private developer
to construct a new building in one location rather than another will not easily be able to

747 F.3d 275 (5th Cir. 2014).
135 S. Ct. 2507 (2015).
47 The HUD regulation requires that a plaintiff first make a prima facie showing of disparate impact. After
a plaintiff makes a prima facie showing of disparate impact, the burden shifts to the defendant to show the
challenged policy or practice is necessary to achieve one or more substantial, legitimate, nondiscriminatory
interests. 24 CFR 100.500(c)(1) (2014).
48 ICP II, 135 S. Ct. at 2514 (quoting 24 CFR 100.500(c)(1) (2014)) (emphasis added).
49 Id. at 2523.
50 Id. at 2523 (quoting Wards Cove Packing Co. v. Antonio, 490 U.S. 642, 653 (1989)).
45

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show this is a policy causing a disparate impact because such a one-time decision may not
be a policy at all. It may also be difficult to establish causation because of the multiple
factors that go into investment decisions about where to construct or renovate housing
units.”51 The Supreme Court emphasized:
[A] disparate-impact claim that relies on a statistical disparity must fail if the
plaintiff cannot point to a defendant's policy or policies causing that disparity. A
robust causality requirement ensures that “[r]acial imbalance ... does not, without
more, establish a prima facie case of disparate impact” and thus protects
defendants from being held liable for racial disparities they did not create.”
Without adequate safeguards at the prima facie stage, disparate-impact liability
might cause race to be used and considered in a pervasive way and would almost
inexorably lead governmental or private entities to use numerical quotas and
serious constitutional questions then could arise.
***
Courts must therefore examine with care whether a plaintiff has made out a prima
facie case of disparate impact and prompt resolution of these cases is important. A
plaintiff who fails to allege facts at the pleading stage or produce statistical
evidence demonstrating a causal connection cannot make out a prima facie case of
disparate impact.52
In 2019, the Fifth Circuit applied the new standard laid out by the Supreme Court
in ICP II in Lincoln Property.53 In Lincoln Property, the plaintiff, a fair housing nonprofit
organization, brought suit against owners and management companies of apartment
complexes, asserting claims of disparate treatment, disparate impact, and perpetuation
of racial stereotypes in violation of the FHA and 42 U.S.C. § 1982. The action arose from
the defendants’ refusal to accept Section 8 vouchers in apartment complexes in largely
White, high-opportunity areas in the metropolitan Dallas area.54 The plaintiff alleged the
defendants’ “policy of declining to negotiate with or rent to voucher holders disparately
impacted black households, as evidenced by statistics establishing that more than 80% of
Id. at 2523-24.
Id. (internal citations omitted) (emphasis added).
53 920 F.3d 890 (5th Cir. 2019).
54 Id. at 895.
51

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the voucher holders in the Dallas area are black.”55 The Fifth Circuit considered whether
defendants’ “no voucher policy” robustly caused Black people to be the dominant group
of voucher holders in the Dallas metropolitan area.56
The Fifth Circuit found it was bound to apply ICP II’s more demanding version of
the burden-shifting analysis for determining disparate impact claims under the FHA
rather than the HUD regulation.57 The Fifth Circuit explained the Supreme Court’s
decision in ICP II “undoubtedly announce[s] a more demanding test than set forth in the
HUD regulation.”58 The Fifth Circuit did acknowledge debate exists on whether the
Supreme Court adopted the HUD regulation’s approach or modified it,59 but the Fifth
Circuit “read the Supreme Court’s opinion in ICP [II] to announce a more demanding test
than that set forth in the HUD regulation.”60 In support of its interpretation that the
Supreme Court modified and strengthened the requirements of the HUD regulation, the
Fifth Circuit relied on the Supreme Court’s reasoning:
[A] disparate-impact claim that relies on a statistical disparity must fail if
the plaintiff cannot point to a defendant's policy or policies causing that
disparity. A robust causality requirement ensures that “[r]acial imbalance
... does not, without more, establish a prima facie case of disparate impact”
and thus protects defendants from being held liable for racial disparities
they did not create. Without adequate safeguards at the prima facie stage,
disparate-impact liability might cause race to be used and considered in a
pervasive way and “would almost inexorably lead” governmental or private
entities to use “numerical quotas,” and serious constitutional questions
then could arise.61
The litigation at issue here provides an example. From the standpoint of
determining advantage or disadvantage to racial minorities, it seems
difficult to say as a general matter that a decision to build low-income
Id. at 898.
Id. at 902.
57 Id.
58 Id.
59 Id.
60 Id.
61 ICP II, 135 S.Ct. at 2522-23.
55

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housing in a blighted inner-city neighborhood instead of a suburb is
discriminatory, or vice versa. If those sorts of judgments are subject to
challenge without adequate safeguards, then there is a danger that potential
defendants may adopt racial quotas—a circumstance that itself raises
serious constitutional concerns.
Courts must therefore examine with care whether a plaintiff has made out
a prima facie case of disparate impact and prompt resolution of these cases
is important. A plaintiff who fails to allege facts at the pleading stage or
produce statistical evidence demonstrating a causal connection cannot
make out a prima facie case of disparate impact. For instance, a plaintiff
challenging the decision of a private developer to construct a new building
in one location rather than another will not easily be able to show this is a
policy causing a disparate impact because such a one-time decision may not
be a policy at all. It may also be difficult to establish causation because of
the multiple factors that go into investment decisions about where to
construct or renovate housing units. And as Judge Jones observed below, if
the ICP cannot show a causal connection between the Department's policy
and a disparate impact—for instance, because federal law substantially
limits the Department's discretion—that should result in dismissal of this
case.62
After ICP II, a plaintiff must establish a prima facie case by showing that a
challenged practice robustly causes a discriminatory effect. Only if the plaintiff makes a
prima facie case, including robust causation, does the burden shift to the defendant to
show the challenged practice is necessary to achieve one or more of the defendant’s
substantial, legitimate, nondiscriminatory interests.63 If the defendant meets this burden,
the plaintiff must then show the defendant’s interests could have been served by another
practice or policy that has a less discriminatory effect.64
The Fifth Circuit makes it clear the Supreme Court’s decision in ICP II added
“purposeful” and “significant” safeguards to the burden shifting analysis, including a
“robust causality requirement” at the prima facie case stage, and, once the burden shifts,

ICP II, 135 S. Ct. at 2523-24 (internal citations omitted) (emphasis added).
Lincoln Property, 920 F.3d at 901-02.
64 Id.
62
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leniency must be given to defendants to explain the valid interest served by their policy.65
In discussing the robust causality requirement, the Fifth Circuit noted “a disparateimpact claim that relies on a statistical disparity must fail if the plaintiff cannot point to a
defendant’s policy or policies causing that disparity.”66 Further, “[i]f a statistical
discrepancy is caused by factors other than the defendant’s policy, a plaintiff cannot
establish a prima facie case, and there is no liability.”67
The Supreme Court in ICP II established the requirement of robust causation but
did not “clearly delineate its meaning or requirements.”68 Because no Supreme Court or
Fifth Circuit opinion had considered the robust causality requirement after ICP II, the
Fifth Circuit in Lincoln Property considered four approaches used by other circuits.69 The
first approach considered is the Eighth Circuit’s decision in Ellis v. City of Minneapolis
(hereinafter “Ellis”).70 In Ellis, plaintiffs, low-income housing landlords, alleged the city
targeted their properties through inspections, citations, and threats to revoke their rental
licenses and, as a result, hundreds of FHA-protected individuals were displaced.71 The
Eighth Circuit denied the plaintiffs’ claim, explaining the plaintiffs’ complaint lacked
“factually supported allegations that those provisions are arbitrary or unnecessary to
health and safety.”72 The Eighth Circuit construed ICP II to require that a plaintiff “point
to an ‘artificial, arbitrary, and unnecessary’ policy causing the problematic disparity.”73
To succeed under this test, the complaint “must … allege facts plausibly demonstrating

Id. at 902.
Id.
67 Id. (quoting ICP II, 135 S. Ct. at 2514).
68 Id. at 903.
69 Id. at 904.
70860 F. 3d 1106, 1114 (8th Cir. 2017).
71 Id. at 1109-09.
72 Id. at 1112.
73 Id. at 1114.
65

66

15

that the [policies] complained of are arbitrary and unnecessary under the FHA.”74 The
Fifth Circuit interpreted this decision as allowing an actionable FHA claim only if the
policy is “artificial, arbitrary, and unnecessary” and that a policy cannot be “artificial,
arbitrary, and unnecessary absent the existence of pertinent, contrary factual allegations
sufficiently rendering a plaintiff’s claimed entitlement to disparate impact relief
plausible.”75
The second approach considered is the Fourth Circuit’s majority decision in Reyes
v. Waples Mobile Home Park LP (hereinafter “Reyes”).76 In that case, a mobile home park
began enforcing a previously unenforced policy requiring all adult occupants of the park
to provide documentation showing they were legally present in the United States in order
to renew their leases, or face eviction.77 Plaintiffs brought suit, alleging the policy
disproportionately affected the Latino community, as Latinos comprised 64.6% of the
undocumented population in Virginia and were ten times more likely than non-Latinos
to be adversely affected by the policy.78 The Fourth Circuit majority required plaintiff to
plausibly allege “statistical disparities . . . sufficiently substantial that they raise [the
necessary] inference of causation.”79 The majority opinion held plaintiffs had properly
stated a prima facie disparate impact case by alleging the first-time enforcement of a
previously unenforced policy “caused a disproportionate number of Latinos to face
eviction … compared to the number of non-Latinos who faced eviction.”80 “The majority
concluded the statistical evidence that the plaintiffs provided satisfied the robust causality

Id. at 1112.
Lincoln Property, 920 F.3d at 907.
76 903 F.3d 415 (4th Cir. 2018).
77 Id. at 419-20, 428.
78 Id. at 421.
79 Id. at 426 (quoting Watson v. Fort Worth Bank and Trust, 487 U.S. 977, 994-95 (1988)).
80 Id. at 428.
74
75

16

requirement when considered in the context of the newly enforced policy.”81 The Fifth
Circuit interpreted the Reyes majority opinion as requiring the disparate impact to be
caused by a change in the defendant’s enforcement of a policy that increased the number
of Latinos facing eviction from the park than faced eviction before.
The third approach considered is Judge Keenan’s dissenting opinion in Reyes.
Judge Keenan explained “the defendants’ policy disproportionately impacts Latinos not
because they are Latino, but because Latinos are the predominant sub-group of
undocumented aliens in a specific geographical area.”82 Judge Keenan would require
plaintiffs to plausibly allege “defendants’ policy caused the statistical disparity” meaning
that “defendants’ policy … caused [the relevant minority group] to be the dominant
group” affected.83 The Fifth Circuit interpreted Judge Keenan’s dissenting view to mean,
“robust causation was not satisfied by pre-existing conditions (Latinos status as the
predominant sub-group of undocumented aliens) not brought about by the challenged
policy.”84 In other words, the Reyes dissent would require the plaintiffs to establish the
mobile home park’s policy caused Latinos to be the dominant group of undocumented
aliens in the park, which Judge Keenan found they had not done.
The fourth approach considered is the Eleventh Circuit’s unpublished per curiam
opinion in Oviedo Town Center, II, L.L.P. v. City of Oviedo, Florida (hereinafter
“Oviedo”).85 In Oviedo, plaintiffs, owners of an affordable housing complex, brought suit
against the city, challenging a utility rate increase. The Eleventh Circuit interpreted ICP
II as “promulgat[ing] detailed causation requirements as a means of cabining disparate-

Lincoln Property, 920 F.3d at 904 (internal quotations omitted).
Reyes, 903 F.3d at 434 (Keenan, J., dissenting).
83 Id. at 434-35.
84Lincoln Property, 920 F.3d at 905.
85 759 Fed. Appx. 828, 833-35
81

82

17

impact.”86 The Eleventh Circuit, quoting the Supreme Court, urged courts to “avoid
interpreting disparate impact liability to be so expansive to inject racial considerations
into every housing decision.”87 The Eleventh Circuit opined the Supreme Court imposed
“[a] robust causality requirement ensure[ing] that ‘[r]acial imbalance … does not, without
more, establish a prima facie case of disparate impact.’”88 The Eleventh Circuit found the
plaintiffs in Oviedo had not established a prima facie case because the data they submitted
did “not establish a disparate impact, let alone any causal connection between the 2012
Policy and the disparate impact.”89
In the end, the Fifth Circuit in Lincoln Property did not explicitly adopt any one
approach as controlling. The Fifth Circuit did affirm the district court’s finding the
plaintiffs had shown “a possible statistical imbalance with the amount of voucher
households in the census tract” but “had not provided facts linking the ‘no vouchers’
policy to the ‘possible statistical disparity.’”90 The Fifth Circuit found the plaintiffs had
not shown the no vouchers policy caused Latinos to be the dominant group affected in the
census tract.91 Instead, Latinos already were the predominant sub-group of
undocumented aliens in the census tract (pre-existing condition) rather than this
condition being brought about by the challenged no vouchers policy.92 The Fifth Circuit
found plaintiffs failed to allege facts sufficient to provide the robust causation necessary
for an actionable disparate impact claim under any of the enumerated approaches.93 The

Id. at 833.
Id. at 834 (quoting ICP II, 135 S. Ct. at 2524).
88 Id. (quoting ICP II, 135 S. Ct. at 2523).
89 Id. at 835.
90 Lincoln Property, 920 F.3d at 906.
91 Id.
92 Id. at 905.
93 Id. at 906.
86
87

18

Fifth Circuit held neither the “city-level data” nor the “census-level data” cited by the
plaintiffs supported an inference that the implementation of the blanket “no vouchers”
policy, or any change therein, caused Black people to be the dominant group of voucher
holders in the Dallas metropolitan area.94 The Fifth Circuit noted the plaintiffs pleaded
no facts showing Dallas’s racial composition before the defendants implemented their “no
vouchers” policy or how that composition changed, if at all, after the policy was
implemented.95
According to the dissent in Lincoln Property, the majority applies too stringent a
test for causation. The dissent stated that, “To require such proof for a plaintiff to establish
causation would render disparate-impact liability under the FHA a dead letter.”96 The
dissent explained the Second Circuit’s 1988 opinion in Huntington Branch, NAACP v.
Town of Huntington,97 a case of first impression, held that disparate impact claims are
cognizable under the FHA and recognized two types of discriminatory effect claims: (1)
“adverse impact on a particular minority group,” and (2) “harm to the community
generally by the perpetuation of segregation,” also known as “segregative-effect” claims.98
The dissent also explained Huntington Branch detailed the types of statistical data that
can be used to establish a prima facie case of segregative effect under the FHA:
Specifically, the data for a disparate-impact claim should indicate that the
group affected adversely by the challenged policy is predominantly
comprised of minorities, while the group unaffected is predominantly
White. The data for a segregative-effect claim, which may include censustract data, should indicate the existing locations of the predominantly White
and predominantly minority areas of the town or city and how the policy or
ordinance being challenged will continue the existing segregation.99
Id.
Id. at 907.
96 Id. at 924.
97 844 F.2d 926 (2d Cir. 1988).
98 Lincoln Property, 920 F.3d at 917-18.
99 Id.
94
95

19

The dissent points out that in ICP II the disparate impact claim was based on a
“novel theory of liability”100 and the Supreme Court found plaintiff did not identify a
specific policy or practice causing the segregated housing patterns. Because the plaintiff
had failed to identify a specific, facially neutral policy that caused the disparity in the
location of low-income housing, the district court on remand held the plaintiff could not
rely on this generalized policy of discrimination to prove disparate impact under the FHA.
The dissent pointed out that, in Lincoln Property, unlike in ICP II, the plaintiff clearly
identified a specific policy of not renting to voucher holders as causing a disparate impact
on Black persons.101
The dissent in Lincoln Property believed the statistical evidence offered by the
plaintiff was similar to that offered by the plaintiffs in Huntington Beach and the evidence
should have been sufficient to establish a disproportionate impact on Black people in
violation of the FHA. The dissent found the causal connection between the policy and the
resulting disparate impact on the Black renter population in the Dallas metropolitan area
to be “direct and robust.”102 According to the dissent, in a segregative-effect claim the
plaintiff is not required to prove the challenged policy caused the initial segregation, but
only that the policy will perpetuate it.103 The dissent argued a segregative-effect claim,
such as the one in Lincoln Property, requires a plaintiff to show existing patterns of
segregation and that the challenged policy will perpetuate that segregation, not that the
policy caused the segregation.104 The dissent found no indication the Supreme Court, by

Id. at 919.
Id.
102 Id. at 920.
103 The Plaintiffs do not bring a segregative-effect claim in this case. R. Doc. 363 at 23.
104 Id. at 922.
100
101

20

calling the causation requirement robust, intended to usher in a new requirement for
disparate impact claims under the FHA not required in the employment context. The
dissent argued the prima facie elements of a traditional disparate-impact claim under the
FHA do not require the plaintiff to prove a “before-and-after” effect of the challenged
policy.105
The application for rehearing en banc in Inclusive Communities Project v. Lincoln
Property Company was denied.106 Those judges dissenting from the denial of rehearing
en banc cautioned “the panel majority opinion [in Lincoln Property] now renders that
decision almost meaningless by crafting an impossible pleading standard.”107 First, after
praising the original dissent in Lincoln Property, the judges dissenting to the denial of
rehearing en banc expressed their concern that the majority opinion “expands and
overstates the Supreme Court’s requirement of ‘robust causation,’ as set forth in its
decision” in ICP II.108 Second, the dissenters found the majority’s opinion “makes a
plaintiff’s burden nearly insurmountable in the initial pleading stage in litigation by
requiring immutable proof rather than plausible allegations.”109 The dissenters point out
that various circuit courts disagree on the applicability of the HUD standard in FHA cases.
The dissenters believe ICP II rejected liability based solely on a showing of statistical
disparity:
Contrary to the majority opinion’s view, the Supreme Court’s Texas v. ICP
II opinion principally rejected liability “based solely on a showing of
statistical disparity.” In addition to statistical disparity, the Court required
there be “artificial, arbitrary, and unnecessary barriers”: in other words, a
policy. This is what the Court describes as a “robust causality requirement,”
a statistical disparity that is caused by the defendant’s policy. The Court
Id at 921.
Inclusive Communities Project, Inc. v. Lincoln Property Co. et al., 930 F.3d 660, denial of rehearing.
107 Id.
108 Id. at 663.
109 Id. at 662.
105

106

21

observed that a decision between two developments likely would not be
considered a policy, and therefore would not constitute a prima facie case
of disparate impact.110
In addition to showing a statistical disparity, the dissenters believe the Supreme Court
required only that there be an allegation the policy is “artificial, arbitrary, and [an]
unnecessary barrier.”111 “The majority opinion ‘imposes the burden on ICP [II] to show
that Defendants’ blanket ‘no voucher’ policy, or any change therein, caused black persons
to be the dominant group of voucher holders in the Dallas metro area.”112 This, in the
dissenters’ opinion, is requiring the impossible.
In August 2020, the Fifth Circuit again tackled robust causation in the FHA case
of Inclusive Communities Project, Inc. v. Heartland Community Association (hereinafter
“Heartland”).113 The Fifth Circuit stated that “to the extent Lincoln Property requires
alleging diminishment of rental opportunities for minorities to plead a disparate-impact
claim, such an allegation alone does not satisfy robust causality.”114 The Fifth Circuit again
discussed the four approaches reviewed in Lincoln Property for establishing robust
causality and noted Lincoln Property did not endorse any one test.115
In Heartland, the plaintiff argued “the current Fifth Circuit standard is not
justified by existing law and should be reversed or modified.”116 The Fifth Circuit declined
this invitation and restated that Lincoln Property “read ‘robust causation’ to require
either: ‘a change in the defendant’s enforcement of [a] policy’ caused a disparate impact;
or a challenged policy ‘caused [the relevant minority group] to be the dominant group’ of

Id. at 663.
Id.
112 Id. at 665 (quoting Lincoln Property, 920 F.3d at 907).
113 824 Fed. Appx. 210, 215 (5th Cir. 2020).
114 Id. at 218.
115 Id.
116 Id. at 217.
110
111

22

those affected by the policy.”117 The plaintiffs in Heartland argued they met the Lincoln
Property standard, which “required a showing that the policy … diminished rental
opportunities for Black tenants from those previously available.”118 Ultimately, the Fifth
Circuit found the plaintiff in Heartland had not met the requirement of Lincoln Property
for stating a prima facie disparate impact claim because “it fails to plausibly allege any
Heartland housing would be available to similarly situated renters after the policy’s
enactment because no voucher holders of any race will be able to rent in Heartland.”119 In
Heartland, the Fifth Circuit held the plaintiffs failed to satisfy “the fourth element120 of
the prima facie test” because those affected by the policy were dissimilar.121 Because the
Fifth Circuit’s decision that the plaintiff failed to demonstrate a prima facie case was based
on grounds other than the lack of robust causation, the Fifth Circuit again did not
determine which approach to proving robust causation prevails.
In this case, Plaintiffs identified “families with children” as the affected protected
class under the FHA.122 Plaintiffs have shown the 250 square foot rule and the 400 square
foot rule have a discriminatory impact on families with children and that the statistical
disparities in this case are substantial.123 The issue is whether, under Lincoln Property,
the proof provided by the Plaintiffs can support an inference that the 250 square foot rule

Id. at 218 (quoting Lincoln Property Company, 920 at 906 (emphasis omitted)).
Id.
119 Id. at 220.
120 The Fifth Circuit determined that in order to prove a prima facie case, the fourth element plaintiffs
needed to show was that “the housing thereafter remained open to similarly situated applicants after …
plaintiff was rejected.” Id. at 217.
121 Id. at 220.
122 42 U.S.C. § 3602 (“(K) ‘Familial status’ means 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 . . . .”). This is undisputed by the Defendants.
123 R. Doc. 332.
117

118

23

or the 400 square foot rule robustly caused a disproportionate impact on families with
children in violation of 42 U.S.C. § 3604(a) in light of Lincoln Property.
It is clear the dissent in Lincoln Property and the dissent to the denial of the
rehearing en banc in that case were quite concerned the majority opinion had decimated
disparate impact FHA cases. The dissent to the denial of rehearing en banc notes the FHA
allows for disparate impact claims and the Supreme Court has affirmed this—“[y]et the
panel majority opinion now renders that decision almost meaningless by crafting an
impossible pleading standard.”124 As expressed by the dissenters, establishing a disparate
impact case under the FHA in the Fifth Circuit will now be very difficult, if not impossible.
Apparently, the Fifth Circuit has taken the Supreme Court at its word that it did not intend
for it to be easy to establish robust causation in an FHA case and did not intend to hold a
defendant liable for a disparity it did not create.
The Fifth Circuit explained in Lincoln Property that the majority and dissenting
opinions in Reyes and the per curiam in Oviedo required the plaintiff’s statistical data to
support an inference that implementation of the “no vouchers” policy, or any change
therein, caused Black persons to be the dominant group of voucher holders in the Dallas
metro area.125 Applying the majority decision in Lincoln Property to the case now before
the Court, the Plaintiffs must show not only a substantial statistical imbalance but also
that the occupancy rules at issue caused the statistical imbalance. In other words, the
Plaintiffs must show the 250 square foot rule and the 400 square foot rule caused families
with children to be the dominant group of renters affected by the occupancy limit rules.126
The Plaintiffs and their experts have not argued the 250 square foot rule or the 400 square
Inclusive Communities Project, Inc. v. Lincoln Property Co., 930 F.3d 660 (5t h Cir. 2019).
Lincoln Property, 920 F.3d at 906.
126 Id.
124
125

24

foot rule caused households with children to have more members than households
without children. The statistical data they provided does not support an inference that
implementation of the 250 square foot rule or the 400 square foot rule, or any change
therein, caused families with children to be the dominant group of renters affected. The
Plaintiffs have provided no facts showing any change in statistical data after the 250
square foot rule was enforced or any argument there would be a change in statistical data
if the 400 square foot rule were enforced.127 In this case, families with children already
were the predominant sub-group of households with more members and therefore
affected by the rule (pre-existing condition) rather than this condition being brought
about by the challenged occupancy limits.128
Because of concern about the effect of Lincoln Property on this case, after the
Supreme Court denied the plaintiff’s writ of certiorari the Court allowed the parties to
submit additional briefing and expert reports addressing the Fifth Circuit standard for
proving robust causality in a disparate impact claim under the FHA.129 In their
supplemental briefing, Plaintiffs argue the Fifth Circuit requires either: (1) a change in
the defendant’s enforcement of a policy caused the disparate impact, or (2) a challenged
policy caused the relevant minority group to be the dominant group of those affected by
the policy.130 Plaintiffs’ first argument, that a change in policy—from the 250 square foot
rule to the 400 square foot rule—resulted in a substantial disproportionate effect, is
addressed in Section II below.

127Plaintiffs

have not shown the 400 square foot rule was enforced. See Section II below.
Lincoln Property, 920 F.3d at 905.
129 R. Doc. 347.
130 R. Doc. 363 at 8 (quoting Lincoln Property, 920 F.3d at 907).
128

25

Plaintiffs’ second argument is that the Defendants’ occupancy policies robustly
caused the identified disproportionate adverse effect on families “because there are no
material facts in dispute that a change in Defendants’ occupancy standard causes a change
in the resulting statistical disparities alleged.”131 Plaintiffs argue Defendants’ densitybased occupancy limits are single-qualification policies that operate to exclude certain
households based on only one qualification—in this case, the number of members in the
household.132 Plaintiffs argue the single qualification excluded all other factors, outside of
household size, and results in a “pass/fail outcome.”133 Plaintiffs’ expert Dr. Allen Parnell
notes “[t]he density-based occupancy restriction policy (the cause) directly precludes
families with a certain number of children from renting a Perrier Condominium (the
effect).”134 Plaintiffs argue that, because Defendants’ policies depend upon a singlequalification that leads directly to either acceptance or rejection, there can be no genuine
dispute of material fact that the identified discriminatory effect is caused by the
policies.135
Plaintiffs seek to distinguish this case from previous cases in which courts
determined there was no causation because there were multiple factors at play.136
Plaintiffs argue they satisfied the Lincoln Property standard in that “Plaintiffs’ (1)
statistical evidence coupled with (2) evidence of how the policies will operate to exclude
identifiable households has established that Defendants’ pass/fail single-qualification
occupancy policies robustly cause the ‘dominant group’ of those affected (denied housing

R. Doc. 363 at 3.
R. Doc. 363 at 10.
133 R. Doc. 363 at 10-11.
134 R. Doc. 363-2 at 7.
135 R. Doc. 363 at 11.
136 Inclusive Communities, 135 S. Ct. at 2524.
131

132

26

opportunities) to be families with children in proportional terms.”137 In light of this,
Plaintiffs argue the “multiple factors” that were present in the investment decisions about
where to construct or renovate homes in ICP II, or the many factors considered in Reyes
that contributed to segregated housing patterns, are not present in this case.138
Plaintiffs also argue the proportional disparities in this case are distinguishable
from “statistical imbalances.” Plaintiffs argue when the “operative disparity is a
proportional comparison rather than a statistical imbalance, the plaintiff does not need
to demonstrate Defendant’s policies caused an overrepresentation (in absolute numbers)
of the protected class in the group affected.”139 Citing Reyes, Plaintiffs state “robust
causation was satisfied where the proportional comparison demonstrated that the singlequalification policy (having legal status documentation) was likely to cause the protected
class ‘to be disproportionately subject’ to the adverse housing action (eviction) than
members of the non-protected class.”140 The Plaintiffs argue that, “[b]ecause a statistical
imbalance in absolute numbers is not the sole basis for their prima facie case, Plaintiffs
here do not need to demonstrate that Defendant’s policies caused families with children
to have generally larger households than non-families.”141
After consideration of the Plaintiffs’ arguments, the Court finds they have not met
the Fifth Circuit standard for establishing the causation element of their prima facie
case—that a challenged policy caused the relevant minority group to be the dominant
group of those affected by the occupancy limits. Plaintiffs failed to show Defendants’
occupancy limits caused families to be the dominant group of those affected, despite being

R. Doc. 363 at 13.
Inclusive Communities, 135 S. Ct. at 2524.
139 R. Doc. 363 at 20.
140 R. Doc. 363 at 21 (quoting Reyes, 903 F.3d at 429).
141 R. Doc. 363 at 21-22.
137

138

27

given every opportunity to do so. Instead, Plaintiffs point out that Defendants’ singlequalification policies operate to exclude certain households based on only one
qualification—in this case, the number of members in the household—resulting in a
“pass/fail outcome.” Plaintiffs argue that, because Defendants’ policies depend upon a
single qualification that leads directly to either acceptance or rejection, there can be no
genuine dispute of material fact that the identified discriminatory effect is caused by the
policies. Although interesting, this is not an approach endorsed by the Fifth Circuit in
Lincoln Property.
Plaintiffs have offered no evidence to support an inference Defendants’ policies
caused households with children to make up a larger percentage of households of six than
households without children. As a result, Plaintiffs have failed to establish the robust
causation necessary for an actionable disparate impact claim in the Fifth Circuit.
II.

The 400 square foot rule does not establish robust causation based on
a change in policy because it was never enforced.
Citing Heartland and Lincoln Property,142 Plaintiffs argue the Fifth Circuit also

endorsed establishing robust causation by showing “a change in the defendant’s
enforcement of a policy caused a disparate impact.” Plaintiffs argue that, even if they
have not established the robust causality element of their prima facie case by showing the
occupancy limits caused families with children to be the dominant group of people
affected by the policy, the Fifth Circuit has endorsed this alternative approach based on a
change in policy. Specifically, Plaintiffs argue the 400 square foot rule is a change in
Defendants’ enforcement of a policy robustly causing a disparate impact on families. The
250 square foot rule limited occupancy of Unit 6036 to five individuals. The 400 square

142

Heartland, 824 Fed. Appx. 210, 217 (emphasis added).

28

foot rule limited occupancy of Unit 6036 to no more than three people. The Plaintiffs
argue causation is robust because there is no dispute this change in Defendants’
occupancy rule from 250 square feet to 400 square feet caused a change in the statistical
disparities experienced by families.
It is undisputed that within one week of the Treece family moving in, the PCOA
voted to change the occupancy restriction to one person per 400 square feet of unit
space.143 On August 22, 2017, the Perrier Condominium unit owners met and, by a vote
of three in favor and one (Harlan) against, voted to change the occupancy restriction to
read, “The Units are also restricted to occupancy by no more than one (1) person per
FOUR HUNDRED (400) square feet of Unit floor space” (the “400 square foot rule”).144
The PCOA and its members have not voted to rescind the 400 square foot rule.145 The
PCOA submitted the four hundred square foot rule to an attorney for “review, advice,
approval, and implementation.”146 Nevertheless, the amendment was never recorded in
the public record.147 Defendants correctly point out the 400 square foot rule has never
gone into effect because the amendment has not been registered with the Conveyance
Office of Orleans Parish, Louisiana, as required by the Perrier Condominium
Declaration.148 Plaintiffs argue that, because a substantial statistical disparity has been
established, the amendment to the occupancy restriction, even though it never went into

R. Doc. 363 at 9.
R. Doc. 212-2 ¶ 70; R. Doc. 268-1 ¶ 70; R. Doc 128-10; R. Doc. 128-11. The Defendants do not deny this
vote and meeting occurred.
145 R. Doc. 212-2 ¶ 72; R. Doc. 268-1 ¶ 72; R. Doc. 128-19. Defendants do not contend they have voted to
rescind their previous vote.
146 R. Doc. 212-2 ¶ 73; R. Doc. 268-1 ¶ 73; R. Doc. 128-31, at 8. Defendants do not point to any evidence
denying the amendment was submitted to their attorney for implementation.
147 R. Doc. 204-1, at 8; R. Doc. 262-1, at 2. Plaintiffs do not point to any evidence showing the amendment
has been filed on the public record.
148 Section 14.3(c) of the Perrier Condominium’s Declaration states “[an] amendment shall be effective when
registered in the Conveyance Office of Orleans Parish, Louisiana.” R. Doc. 212-17, at 26.
143

144

29

effect, is a change in policy that robustly caused a substantial disproportionate effect on
families.
The Court agrees the Fifth Circuit in Lincoln Property149 endorsed the Reyes
majority holding that a policy-specific change, such as a change in enforcement of a
policy, may establish robust causality.150 The Fifth Circuit stated a statistical disparity
illustrating a disproportionate effect may establish robust causality when a policy-specific
change occurs, such as a change in enforcement of a policy. In Reyes,151 the plaintiffs
alleged the defendant mobile home park operator changed the enforcement of its policy
to require all residents present legal immigrant status documentation. The mobile home
park originally enforced the policy only against leaseholders, but subsequently enforced
the policy against all residents. To establish the changed policy had a disparate impact on
Latinos, plaintiffs showed Latinos were 64.6% of the undocumented population in
Virginia and that undocumented immigrants constituted 26.4% of the Latino population
compared to 3.6 of the non-Latino population. Under these facts, the majority in Reyes
held “Plaintiffs satisfied the robust causality requirement by asserting that the specific
policy . . . was likely to cause Latino tenants to be disproportionately subject to eviction
compared to non-Latino tenants at the Park.”152
The Defendants agree a claim relying on something more than just a statistical
disparity to show robust causation can succeed, citing Reyes, but argue Reyes may be
distinguished from this case because Reyes involved the enforcement of a policy when
that same policy had not previously been enforced.153

Lincoln Property, 920 F.3d at 907.
R. Doc. 363 at 7-8 (citing Lincoln Property).
151 Reyes, 903 F.3d at 428-429, 433-434.
152 Id. at 428.
153 R. Doc. 364 at 21.
149

150

30

The Defendants are correct. In this case, there has been no enforcement of a policy
that had not been previously enforced. The PCOA voted to change the occupancy limit to
the 400 square foot rule but the new rule never went into effect. No change in the
enforcement of an existing policy has been shown to have occurred in this case.154
III.

The Plaintiffs have no § 3617 claim based on a violation of § 3604(a).
In their first amended complaint, Plaintiffs allege Defendants unlawfully coerced,

intimidated, threatened, or interfered with Harlan, Dwayne, or Phallon Treece in the
exercise of, or on account of their having exercised or enjoyed, their rights granted or
protected by 42 U.S.C. § 3604 on the basis of familial status, in violation of 42 U.S.C. §
3617, and implementing regulations 24 C.F.R. § 100.400.155 42 U.S.C. § 3617 provides:
It shall be unlawful to coerce, threaten, or interfere with any person in the exercise
or enjoyment of, or on account of his having exercised or enjoyed, or on account of
having aided or encouraged any other person in the exercise or enjoyment of, any
right granted or protected by section 3603, 3604, 3605, or 3606 of this title.
Defendants argue, because there was no violation of 42 U.S.C. § 3604(a), Plaintiffs cannot
pursue a claim under 42 U.S.C. § 3617.
The Court previously declined to determine whether or not the Fifth Circuit
requires an underlying violation to bring a § 3617 claim because Plaintiffs had outstanding
§ 3604 claims that had not been decided.156 At that time, the Court assumed Plaintiffs had
underlying § 3604 claims and determined that Defendants were not entitled to summary
judgment on Plaintiffs’ § 3617.157 The Court has now determined that Plaintiffs have failed

154In

this action, the Plaintiffs are seeking only to enjoin the Defendants from taking any further action to
implement the 400 square foot rule because it allegedly will have a disparate impact on families with
children.
155 R. Doc. 16 at ¶ 78.
156 R. Doc. 174 at 17.
157 Id.

31

to show a prima facie case under § 3604(a) and Defendants will be granted summary
judgment on that claim.
In a previous order, the Court considered circuit court precedent as to whether the
FHA requires an underlying violation for a plaintiff to state a claim under § 3617.158 Circuit
courts disagree on whether § 3617 requires a plaintiff to first establish some underlying
violation of §§ 3603, 3604, 3605, or 3606 before proceeding under § 3617. At least six
federal appellate courts have rejected this requirement and held § 3617 claims may exist
even absent an underlying FHA violation.159
As the Court previously noted, however, the Fifth Circuit has held § 3617 claims do
require an underlying violation of §§ 3603, 3604, 3605, or 3606.160 In Hood v Pope, the
Fifth Circuit held a Plaintiff failed to state a claim under § 3604, and therefore, “[a]ny
subsequent harassment by any of the defendants did not violate § 3617.”161 Similarly, in
McZeal v. Ocwen Financial Corporation, the Fifth Circuit held “[b]ecause [plaintiff’s] §
3605 claim fails, [his] claim under § 3617 must also fail.”162
In arguing an underlying violation is not necessary to state a valid § 3617 claim,
Plaintiffs attempt to distinguish the Fifth Circuit’s holdings in Hood and McZeal from the

R. Doc. 174 at 16.
Bloch v. Frischholz, 587 F.3d 771, 781–82 (7th Cir. 2009) (“We know that the Association’s enforcement
of the Hallway Rule did not constructively evict the Blochs in violation of § 3604(a) or (b). But that does not
foreclose the possibility that the defendants ‘interfered’ with the Blochs’ enjoyment of their § 3604 rights
or ‘coerced’ or ‘intimidated’ the Blochs on account of their having exercised those rights. To hold otherwise
would make § 3617 entirely duplicative of the other FHA provisions; though its language is unique in the
FHA, § 3617 would have no independent meaning.”); Hidden Vill., LLC v. City of Lakewood, Ohio, 734 F.3d
519, 528 (6th Cir. 2013) (“[T]he defendants argue that they may not be charged with violating § 3617 unless
they separately violated at least one of the provisions in §§ 3603–3606. We disagree. Section 3617 nowhere
says that it comes into play only when a violation of one of these other sections has also occurred.”); Revock
v. Cowpet Bay West Condominium Association, 853 F.3d 96, 112 (3d Cir. 2017); U.S. v. City of Hayward,
36 F.3d 832, 836 (9th Cir. 1994); Sofarelli v. Pinellas County, 931 F.2d 718, 722 (11th Cir. 1991); Francis v.
Kings Park Manor, Inc., 944 F.3d 370 (2d Cir. 2019).
160 R. Doc. 174 at 16.
161 627 F. App’x 295, 300 (5th Cir. 2015).
162 252 F.3d 1355 (5th Cir. 2001).
158
159

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instant case.163 Plaintiffs argue the Fifth Circuit in Hood did not hold § 3617 cannot be a
freestanding claim, but rather dismissed the § 3617 claim because plaintiffs “have not
stated a claim that they at any point exercised or enjoyed any right granted under §
3604.”164 This holding is no different from the instant case, as the Court has now
determined Plaintiffs have not stated a claim under § 3604(a). Plaintiffs also argue
McZeal involved a pro se plaintiff who pleaded no set of facts that would make out a §
3617 violation, did not point to evidence that he engaged in a protected activity, and did
not argue that § 3617 can be a freestanding claim.165 Although the facts of McZeal differ
from the instant action, the Fifth Circuit’s holding remains the same—"[b]ecause
[plaintiff’s] § 3605 claim fails, [his] claim under § 3617 must also fail.”166
Plaintiffs separately argue, “in addition to their coercion and interference claim,
there is record evidence sufficient to support that Defendants retaliated against them in
violation [of] Sec. 3617.”167 Plaintiffs argue a retaliation claim does not require an
underlying violation of §§ 3603, 3604, 3605, or 3606.168 However, Plaintiffs do not state
a claim for retaliation in their amended complaint.169
Although some circuits have determined no underlying violation is necessary to
assert a claim under § 3617, the Court is bound by the Fifth Circuit’s precedent. In Hood,
the Fifth Circuit explained “[a]ny subsequent harassment by any of the defendant did not
violate § 3617, because [plaintiffs] have not stated a claim that they at any point exercised

R. Doc. 262 at fn. 12.
Hood, 627 Fed. App’x. at 300.
165 R. Doc. 262 at fn. 12.
166 252 F.3d 1355 (5th Cir. 2001).
167 R. Doc. 262 at 15.
168 Oxford House, inc. v. City of Baton Rouge, 932 F. Supp. 2d 683, 701 (M. D. La. 2013) (noting “the [HUD]
regulations indicate that retaliation for making a complaint under the FHA is unlawful conduct in itself,
and there is no requirement that the complaint prove underlying discrimination…”);
169 See R. Doc. 16.
163

164

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or enjoyed any right granted under § 3604.”170 Plaintiffs in this case have not asserted a
claim under § 3604(a). As a result, Plaintiffs cannot assert a claim that Defendants
unlawfully coerced, intimated, threatened, or interfered with Plaintiffs in the exercise of,
or on account of their having exercised or enjoyed, their rights granted or protected by §
3604(a).
CONCLUSION
IT IS HEREBY ORDERED that Plaintiffs’ Motion for Partial Summary
Judgment171 is DENIED. Defendants’ Motion for Partial Summary Judgment172 is
GRANTED. Defendants are entitled to summary judgment that Plaintiffs have no claim
against them under 42 U.S.C. § 3604(a) or under § 3617 based on a violation of §
3604(a).173
New Orleans, Louisiana, this 12th day of February, 2021.
________________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

Hood, 627 Fed. App’x. at 300.
R. Doc. 212.
172 R. Doc. 204.
173 Plaintiffs’ Motion to Strike Certain Expert Opinions (R. Doc. 367) and Defendants’ Motion to Strike the
Declaration of Clifford Harlan (R. Doc. 315) are denied.
170
171

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