Second Circuit will hear a Fair Housing Act case en banc

The Second Circuit normally hears cases in three-judge panels drawn from 26 judges who sit on the Court. If an unsatisfied litigant loses in the Second Circuit, she sometimes asks the full court to hear the case, in which of the active judges hear the case en banc. The Second Circuit rarely hears cases en banc. The last time they did so in a civil case was in 2017, when the Court heard Zarda v. Altitude Express, 883 F.3d 100 (2d Cir. 2018), as a means to overrule a prior Second Circuit ruling on gay rights and employment discrimination. The Court has just announced that it will hear another case en banc, this time addressing housing discrimination.

The case is Francis v. Kings Park Manor, Inc., issued on February 10.What occasions this infrequent procedure is a ruling the three-judge panel issued in December 2019, found at 944 F.3d 370 (2d Cir. 2019), in which the Court held by a 2 to 1 majority that the Fair Housing Act holds landlords liable if they to stop known racial harassment in their buildings. Here is how the Court summarized the issues in this case:

Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968, 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the

we assume without deciding that intentional discrimination is an element of an FHA violation and conclude that Francis’s complaint, viewed in the light most favorable to Francis, plausibly and adequately alleges that the KPM Defendants engaged in intentional racial discrimination. Specifically, the complaint alleges that the KPM Defendants “discriminat[ed] against [Francis] by tolerating and/or facilitating a hostile environment,” even though the defendants had authority to “counsel, discipline, or evict [Endres] due to his continued harassment of [Francis],” and also had “intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law.” Joint App’x 19–20. In other words, Francis has, in our view, adequately and plausibly alleged both that the KPM Defendants were actually aware of Endres’s criminal racial harassment of Francis — harassment so severe that it resulted in police warnings and the arrest and eventual conviction of Endres — and that the defendants intentionally refused to address the harassment because it was based on race, even though they had addressed non-race–related issues in the past, including, it is reasonable to infer, tenant-on-tenant harassment. See Wetzel, 901 F.3d at 864. Accepting these allegations as true, the KPM Defendants “subjected [Francis] to conduct that the FHA forbids.”

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 379 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

FHA’s broad language and remedial scope.

 . . .

we assume without deciding that intentional discrimination is an element of an FHA violation and conclude that Francis’s complaint, viewed in the light most favorable to Francis, plausibly and adequately alleges that the KPM Defendants engaged in intentional racial discrimination. Specifically, the complaint alleges that the KPM Defendants “discriminat[ed] against [Francis] by tolerating and/or facilitating a hostile environment,” even though the defendants had authority to “counsel, discipline, or evict [Endres] due to his continued harassment of [Francis],” and also had “intervened against other tenants at Kings Park Manor regarding non-race-related violations of their leases or of the law.” In other words, Francis has, in our view, adequately and plausibly alleged both that the KPM Defendants were actually aware of Endres’s criminal racial harassment of Francis — harassment so severe that it resulted in police warnings and the arrest and eventual conviction of Endres — and that the defendants intentionally refused to address the harassment because it was based on race, even though they had addressed non-race–related issues in the past, including, it is reasonable to infer, tenant-on-tenant harassment. Accepting these allegations as true, the KPM Defendants “subjected [Francis] to conduct that the FHA forbids

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope. We therefore vacate the judgment of the United States District Court for the Eastern District of New York (Spatt, J.) dismissing Donahue Francis’s claims under the FHA and analogous New York State law, as well as his claims under 42 U.S.C. §§ 1981 and 1982, and remand for further proceedings.

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

Just over fifty years ago, spurred by the assassination of Dr. Martin Luther King, Jr., Congress enacted Title VIII of the Civil Rights Act of 1968, commonly referred to as the Fair Housing Act of 1968 (“FHA” or “Act”), 42 U.S.C. § 3601 et seq., a landmark piece of civil rights legislation that accompanied the Civil Rights Act of 1964 and the Voting Rights Act of 1965. The main question before us is whether a landlord may be liable under the FHA for intentionally discriminating against a tenant based on the tenant’s race. In this case, the landlord allegedly refused to take any action to address what it knew to be a racially hostile housing environment created by one tenant targeting another, even though the landlord had acted against other tenants to redress prior, non-race related issues. In holding that a landlord may be liable in those limited circumstances, we adhere to the FHA’s broad language and remedial scope. We therefore vacate the judgment of the United States District Court for the Eastern District of New York (Spatt, J.) dismissing Donahue Francis’s claims under the FHA and analogous New York State law, as well as his claims under 42 U.S.C. §§ 1981 and 1982, and remand for further proceedings.

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 373 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

The Second Circuit first issued an opinion in this case in March 2019. Then the opinion was withdrawn, and the same two-judge majority (Judges Lohier and Pooler) issued a new opinion with a revised analysis. In dissent, Judge Livingston argued that this holding represented an unwarranted expansion of liability under the Fair Housing Act. Judge Livingston dissented in both opinions. In the second case, she wrote:

The majority’s original opinion relied heavily on the HUD Rule and an analogy to Title VII case law in holding that the FHA imposes liability on landlords for “failing to take prompt action to address a racially hostile housing environment created by one tenant targeting another,” regardless of the landlord’s discriminatory intent. Francis v. Kings Park Manor, Inc., 917 F.3d 109, 114 (2d Cir.), opinion withdrawn, 920 F.3d 168 (2d Cir. 2019) (Francis I). That opinion and my original dissent were withdrawn within a month of their issuance.

Now, the majority offers a new opinion that again rejects the district court’s able analysis, but this time based on a theory not even relied upon by the Plaintiff in this case: that Francis has plausibly alleged intentional discrimination on the part of the KPM Defendants due to their failure to intervene in the ongoing police investigation following Francis’s notification that this investigation was underway. This is an untenable conclusion. Indeed, as outlined above, Francis himself does not argue that the KPM Defendants are liable because they acted with racial animus.

Francis v. Kings Park Manor, Inc., 944 F.3d 370, 383–84 (2d Cir. 2019), reh'g en banc granted sub nom. Donahue Francis, Plaintiff-Appellant, v. Kings Park Manor, Inc., Corrine Downing, Defendants-Appellees, Raymond Endres, Defendant., No. 15-1823, 2020 WL 610223 (2d Cir. Feb. 3, 2020)

Only "active" Second Circuit judges can hear the case en banc. Thirteen judges sit on the Second Circuit. (The rest are on senior status). If you are wondering, six of the active judges are Democratic appointees. Seven of the active judges are Republican appointees, four of them appointed by the current president.