Tuesday, May 2, 2017
Yesterday SCOTUS released another important case involving the US Fair Housing Act: Bank of American Corp. et al v. City of Miami, Florida. I say "another" because the FHA has had a lot of action lately in light of the 2014 decision in Texas v. Inclusive Communities where the Court upheld the disparate impact theory in housing discrimination cases.
The Bank of America v. Miami case dealt with whether municipalities can bring claims under the Fair Housing Act (Title VIII of the Civil Rights Act of 1968). The question originates from a lawsuit filed by the City of Miami against Bank of America that was consolidated with another case where the city sued Wells Fargo. In both cases the city argued that these financial institutions had engaged in a long and targeted practice of making risky loans to minority borrowers (loans that were 5x more likely to result in a default than loans made to white borrowers). Further, the city alleged that in the wake of the 2008 crisis the banks refused to allow these distressed homeowners to refinance or engage in a loan modification, even through they routinely offered such deals to similarly situated white borrowers.
The scope of who can serve as a party under a Fair Housing Act claim raises interesting policy issues. The city argues that it is within the "zone of interest" for standing purposes because the discriminatory loan practices created large numbers of defaults and foreclosures, which in turn resulted in the proliferation of abandoned and blighted properties that hit hard the bottom line of cities when they needed resources the most.
The suit was initially filed against BoA in July 2013 and against Wells Fargo in July 2014, but both were dismissed by the district court for lack of standing and on the basis that the city had failed to prove that the bank's behavior was the proximate cause of the harm alleged. In September 2015, the 11th circuit remanded both of these cases for further proceedings on the proximate cause determination and held that the city did indeed have standing under the Fair Housing Act.
In deciding the case, Justice Stephen Breyer (writing for a 5-3 majority that was joined by Roberts, Ginsburg, Sotomayor, and Kagan) decided that Miami did have standing under the FHA to bring suit against these lenders. The Court stated that the FHA broadly authorizes a cause of action for anyone that has "been injured by a discriminatory housing practice" and that federal courts have and should construe this standard so as to allow the greatest possible access for potential plaintiffs (citing to Trafficante v. Metropolitan Life Ins. Co., 409 U. S. 205 (1972) and Congressional intent). Breyer also noted that in the past SCOTUS has allowed local governments to assert claims related to discrimination under the FHA, such as in Gladstone, Realtors v. Village of Bellwood, 441 U. S. 91 (1979) where the local government was allowed to bring suit for lost tax revenue that resulted from racial-steering practices.
However, although the Court opened the door for Miami to makes its FHA claim, it was not so positive when discussing the claim's viability on the merits. Specifically, one of the main reasons that the 11th circuit found for the city at the appellate level was based on the fact that, in satisfying the proximate cause element of an FHA claim, the harms caused by the actions of the lenders were "reasonably foreseeable." The foreseeability of the various municipal harms that would result from the subprime and race-based lending was enough to meet the proximate cause requirement. However, SCOTUS disagreed with the application of such a standard as held that: "In the context of the FHA, foreseeability alone does not ensure the close connection that proximate cause requires. The housing market is interconnected with economic and social life. A violation of the FHA may, therefore, 'be expected to cause ripples of harm to flow' far beyond the defendant’s misconduct."
The Court further stated that "[n]othing in the [Fair Housing Act] suggests that Congress intended to provide a remedy wherever those ripples travel. And entertaining suits to recover damages for any foreseeable result of an FHA violation would risk 'massive and complex damages litigation.'"
Rather, in order for the city to prevail the Court said the plaintiff had to show "some direct relation between the injury asserted and the injurious conduct alleged" which the court analogized to "a number of tort actions recognized at common law." Importantly, the Court declined to go any further in setting forth the details of such a needed "direct connection." Instead, the Court handed the question back to the circuit court, concluding that "[t]he lower courts should define, in the first instance, the contours of proximate cause under the FHA and decide how that standard applies to the City’s claims for lost property-tax revenue and increased municipal expenses."
Justice Thomas wrote separately, offering a partial dissent and a partial concurrence. This was joined by Kennedy and Alito (Gorsuch stayed out of it due to the fact that the case was heard prior to his confirmation). Thomas stated that the injury to the city (i.e., foreclosures, decreased property values, and blight) was not the kind of injury that Congress meant to be covered by the FHA (pointing rather to victims of discrimination themselves or their neighbors). He did agree, however, with the majority's articulation of the need to prove a strong direct connection between the harm and the violation, finding that the foreseeability analysis of the 11th circuit was not appropriate.
As others have recently observed, this opinion is in some ways one step forward and then two steps back. Like in Inclusive Communities, a threshold question of access was answered in the affirmative, only to be followed by limiting principles as to the chances of success. As one of my bright young law students wrote in his student comment last year (S. Lamar Gardner, #BlackLivesMatter, Disparate Impact, and the Property Agenda, 43 S.U. L. Rev. 321 (2016)), the robust causal requirement articulated in Inclusive Communities does much to limit the practical ability of FHA disparate impact plaintiffs to clear the summary judgment hurdle. The decision in Bank of American v. Miami seems to have a similar theme in that it opens the door for cities to bring suit, but potentially makes the bar to success so high that few local governments will be able to produce sufficient evidence to prevail. More than ever, strong empirical work will become an ever-important part of making out a viable claim under the FHA.