The Inclusive Communities Project Inc v. Texas Department of Housing and Community Affairs et al

Filing 258

MEMORANDUM OPINION AND ORDER granting in part 252 Motion to Supplement the Trial Record, filed by The Inclusive Communities Project Inc, and 254 Cross-Motion to Supplement the Record, filed by Juan Sanchez Munoz, Michael Gerber, C Kent C onine, Leslie Bingham-Escareno, Gloria L Ray, Dionicio Vidal Flores, Texas Department of Housing and Community Affairs, Tomas Cardenas, and adopting procedure for first round of merits briefing (plaintiff's prima facie case). (Ordered by Judge Sidney A Fitzwater on 12/10/2015) (Judge Sidney A Fitzwater)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
THE INCLUSIVE COMMUNITIES
PROJECT, INC.,
Plaintiff,
VS.
THE TEXAS DEPARTMENT OF
HOUSING AND COMMUNITY
AFFAIRS, et al.,
Defendants.

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§ Civil Action No. 3:08-CV-0546-D
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MEMORANDUM OPINION
AND ORDER
As permitted under the court’s October 8, 2015 memorandum opinion and order,
plaintiff The Inclusive Communities Project, Inc. (“ICP”) has filed a motion to supplement
the trial record, and defendants Texas Department of Housing and Community Affairs, its
Executive Director, and its board members in their official capacities (collectively,
“TDHCA”) have filed a response to ICP’s motion and a cross-motion to supplement the
record. Having considered the parties’ submissions, the court grants the motions in part as
set forth below, and adopts the following procedure for the first round of merits briefing
(ICP’s prima facie case).
I
A
As used in this procedure, the term “current trial record” means the testimony and
exhibits admitted at trial. The term “supplemental record” means (1) documents that are not

in the current trial record but were disclosed by ICP or TDHCA in disclosures or discovery,
or filed by ICP or TDHCA in making or opposing a summary judgment motion, and (2)
ICP’s appendix in support of its brief in opposition to Frazier Revitalization Inc.’s
(“Frazier’s”) motion to intervene.
B
No later than 28 days after this memorandum opinion and order is filed, ICP must file
a brief that cites the current trial record and the supplemental record and demonstrates that
it has proved a prima facie case of discrimination by showing that a challenged practice
causes a discriminatory effect, as defined by 24 C.F.R. § 100.500(a). See 24 C.F.R.
§ 100.500(c)(1).
The brief must not exceed 50 countable pages. Unless a document cited in the brief
is part of the current trial record or is otherwise already on file, it must be included in an
appendix that complies with N.D. Tex. Civ. R. 7.1(i). Documents that are part of the current
trial record or are otherwise already on file need not be refiled. When citing the evidence,
the brief must make clear whether the current trial record (including a specific trial exhibit),
a document otherwise already on file, or a document in the appendix is being cited, and
where it can be found.
C
No later than 14 days after ICP’s brief is filed, TDHCA and Frazier must file any
motion to further supplement the record. A motion to further supplement the record must
demonstrate the need for evidence not already in the current trial record or the supplemental
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record, either to rebut ICP’s claims or to offer a justification for the practice ICP challenges,
or must demonstrate other good cause for further supplementing the record. The filing of the
motion to further supplement the record suspends the obligation to file a response brief until
the court rules on the motion. If such a motion is filed, responses and replies regarding that
motion must be filed according to the deadlines prescribed by the local civil rules.
If TDHCA or Frazier does not file a motion to further supplement the record, its
response brief must be filed no later than 28 days after ICP’s brief is filed. The response
brief must address whether ICP has proved a prima facie case of discrimination. Regardless
whether TDHCA or Frazier files a motion to further supplement the record, it may include
objections to the evidence in the supplemental record on which ICP relies.
A brief must not exceed 50 countable pages. Unless a document cited in the brief is
part of the current trial record, is otherwise already on file, or is included in ICP’s appendix,
it must be included in an appendix that complies with N.D. Tex. Civ. R. 7.1(i). Documents
that are part of the current trial record, are otherwise already on file, or are included in ICP’s
appendix need not be refiled. When citing the evidence, the brief must make clear whether
the current trial record (including a specific trial exhibit), a document otherwise already on
file, or a document in an appendix is being cited, and where it can be found.
D
ICP may file a reply brief to a response brief no later than 21 days after the response
brief is filed. The brief must not exceed 25 countable pages. ICP may include objections to
the evidence in the supplemental record on which TDHCA or Frazier relies.
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E
If the court concludes after the first round of merits briefing that ICP has proved a
prima facie case of discrimination, it will then establish a briefing schedule under which
TDHCA (supported by Frazier’s separate brief, if it so desires) will be required to prove that
the challenged practice is necessary to achieve one or more substantial, legitimate,
nondiscriminatory interests. See 24 C.F.R. § 100.500(c)(2). ICP will be permitted to file a
response brief that challenges defendants’ asserted substantial, legitimate, nondiscriminatory
interests and shows that the defendants’ interests could be served by another practice that has
a less discriminatory effect. See 24 C.F.R. § 100.500(c)(3). Defendants (supported by
Frazier’s separate brief, if it so desires) will be permitted to file a combined reply in support
of the second factor (justification) and response to ICP’s brief on the third factor (less
discriminatory alternative). ICP will be permitted to file a surreply in support of its position
on the third factor (less discriminatory alternative). The court will set deadlines for each
permitted filing.
II
In its reply brief, ICP opposes allowing the parties to supplement the record to an
extent greater than what is included in the “supplemental record,” as defined in this
memorandum opinion and order. It emphasizes that this case has already been extensively
litigated, including through pretrial discovery, pretrial motions, a trial, an appeal to the Fifth
Circuit, and a decision by the Supreme Court of the United States. Although ICP is correct
in its description of these extensive proceedings, the reasoning in the court’s October 8, 2015
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memorandum opinion and order supports leaving open the possibility that TDHCA and
Frazier may have reasonable grounds to further supplement the record. As the court
explained:
The court also concludes that the parties should be permitted to
move to supplement the trial record. This is so because the
court by its partial summary judgment ruling removed the prima
facie element of the burden-shifting regimen from consideration
at trial; the HUD burden-shifting regimen is materially different
from the one the court applied originally; neither side had the
benefit of the Supreme Court’s guidance when it decided what
evidence to present at trial; and the court is for the first time
advising the parties that it will resolve this case on a trial record
rather than on trial and summary judgment records.
Oct. 8, 2015 Mem. Op. at 9-10. This reasoning supports including not only what is part of
the supplemental record—which consists of documents the parties produced or used before
the Supreme Court’s decision—but perhaps other evidence as well.
ICP also expresses concerns about the scope of such supplementation, asserting that
it could even entail a new round of expert reports with disclosures, depositions, rebuttal
experts, and reply experts, in addition to other new evidence that has not been already
produced or disclosed. But these concerns can be adequately addressed in the context of
deciding whether, and to what extent, to grant a motion to further supplement the record,
assuming one is even filed.

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Accordingly, ICP’s October 22, 2015 motion to supplement the trial record and
TDHCA’s October 22, 2015 cross-motion to supplement the record are granted as set forth
in this memorandum opinion and order, and the court adopts the foregoing procedure for the
first round of merits briefing (ICP’s prima facie case).
SO ORDERED.
December 10, 2015.

_________________________________
SIDNEY A. FITZWATER
UNITED STATES DISTRICT JUDGE

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