UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
NATIONAL COMMUNITY REINVESTMENT )
COALITION, )
Plaintiff, )
) Civil Action No. 07-1357(EGS)
v. )
)
ACCREDITED HOME LENDERS HOLDING )
COMPANY, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
In an August 28, 2008 Memorandum Opinion, the Court rejected
defendants’ claim that “disparate impact claims are not
cognizable under the Fair Housing Act [“FHA,” 42 U.S.C. § 3601 et
seq].” Nat’l Cmty. Reinvestment Coal. v. Accredited Home Lenders
Holding Co., 573 F. Supp. 2d 70, 77-78 (D.D.C. 2008).1 Rather,
the Court found that Smith v. City of Jackson, 544 U.S. 228
(2005), “does not preclude disparate impact claims pursuant to
the FHA.” Nat’l Cmty., 575 F. Supp. 2d at 79. The defendants
asks the Court to certify this issue for interlocutory appeal.
In granting a request for an interlocutory appeal, a
district court must certify that the order involves “a
controlling question of law as to which there is substantial
1
For a short and succinct discussion of the background of
this case, see Nat’l Cmty., 575 F. Supp. 2d at 73.
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ground for difference of opinion and that an immediate appeal
from the order may materially advance the ultimate termination of
the litigation.” 28 U.S.C. § 1292(b); see also Walsh v. Ford
Motor Co., 807 F.2d 1000, 1002 n.2 (D.C. Cir. 1986). “A party
seeking certification pursuant to § 1292(b) must meet a high
standard to overcome the ‘strong congressional policy against
piecemeal reviews, and against obstructing or impeding an ongoing
judicial proceeding by interlocutory appeals.’” Judicial Watch,
Inc. v. Nat’l Energy Policy Dev. Group, 233 F. Supp. 2d 16, 20
(D.D.C. 2002) (quoting United States v. Nixon, 418 U.S. 683, 690
(1974)). “‘Although courts have discretion to certify an issue
for interlocutory appeal, interlocutory appeals are rarely
allowed . . . the movant bears the burden of showing that
exceptional circumstances justify a departure from the basic
policy of postponing appellate review until after the entry of
final judgment.’” Id. (quoting Virtual Def. & Dev. Int'l, Inc.
v. Republic of Mold., 133 F. Supp. 2d 9, 22 (D.D.C. 2001)).
In an attempt to demonstrate that the there is a substantial
ground for difference of opinion, defendants argue that the D.C.
Circuit’s opinion in Garcia v. Johanns, 444 F.3d 625 (D.C. Cir.
2006), “reached a conclusion different from that reached by this
Court,” Defs’. Mot. for Interlocutory Appeal at 5-6. Defendants,
however, misread Garcia. In Garcia, which dealt with a similarly
worded provision of the Equal Credit Opportunity Act (“ECOA”), 15
2
U.S.C. § 1691 et seq., the D.C. Circuit specifically said, “[w]e
express no opinion about whether a disparate impact claim can be
pursued under ECOA,” Garcia, 444 F.3d at 633 n.9. This language
demonstrates that contrary to defendants’ representations, the
D.C. Circuit has not signaled that disparate impact claims under
ECOA or the FHA are not cognizable.2
Likewise, defendants have not demonstrated that there is a
split within this district on this issue. Defendants argue that
Brown v. Artery Organization, Inc., 654 F. Supp. 1106 (D.D.C.
1987), demonstrates a split on the D.C. District Court. This
Court explicitly rejected that claim in National Fair Housing
Alliance, Inc. v. Prudential Insurance Co., 208 F. Supp. 2d. 46,
59 (D.D.C. 2002). See id. (“Brown did not hold, as defendants
contend, that disparate impact claims were never available under
the FHA. Rather, Brown recognized that where there is evidence
of discriminatory effect, courts have required plaintiffs to
demonstrate varying degrees of discriminatory intent.”).
The Court finds that defendants have failed to meet the high
standard required for interlocutory appeal. This Court
considered defendants’ arguments in its Motion to Dismiss and
rejected them. “Mere disagreement, even if vehement, with a
2
Moreover, as this Court noted in its denial of
defendants’ Motion to Dismiss, “all eleven of the United States
Circuit Courts of Appeal to consider the issue have found that
the FHA does provide for a disparate impact cause of action.”
Nat’l Cmty., 573 F. Supp. 2d. at 78.
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court’s ruling does not establish a substantial ground for
difference of opinion sufficient to satisfy the statutory
requirements for an interlocutory appeal.” Judicial Watch, 233
F. Supp. 2d at 20 (internal citations and quotation marks
omitted). Defendants have simply reiterated their position that
disparate impact claims are not cognizable under the FHA, and
their Motion for Certification Pursuant to 28 U.S.C. § 1292(b) is
therefore DENIED. An appropriate Order accompanies this
Memorandum Opinion.
Signed: Emmet G. Sullivan
United States District Judge
February 19, 2009
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