United States District Court, E.D. Virginia, Alexandria Division
Ellis, III, Judge.
eight current or former residents of Waples Mobile Home Park
("the Park"), filed a six-count Complaint against
the Park's owners and operators' in response to
defendants' enforcement of a policy that, in
plaintiffs' view, (i) impermissibly discriminates on the
basis of race, national origin, alienage, and citizenship,
(ii) violates the terms of their lease agreements, and (iii)
violates Virginia law regulating mobile home parks.
Specifically, the Complaint alleges the following causes of
• Count I: Violation of the Fair Housing Act, 42 U.S.C.
§ 3601 et seq.;
• Count II: Violation of the Virginia Fair Housing Law,
Va. Code § 36-96.3 et seq.;
• Count III: Violation of the Manufactured Home Lot
Rental Act, Va. Code § 55-248.41 et seq.;
• Count IV: Violation of 42 U.S.C. § 1981;
• Count V: Breach of contract; and
• Count VI: Tortious interference with contract.
moved to dismiss Counts I, II, IV, and VI for failure to
state a claim pursuant to Rule 12(b)(6), Fed.R.Civ.P. The
motion has been fully briefed and argued orally, and the
motion is therefore now ripe for disposition.
in this action are Jose Dagoberto Reyes, Rosy Giron de Reyes,
Felix Alexis Bolanos, Ruth Rivas, Yovana Jaldin Solis,
Esteban Ruben Moya Yrapura, Rosa Elena Amaya, and Herbert
David Saravia Cruz. These eight individuals are the heads of
four households that currently reside or once resided in the
Park. All plaintiffs are non-citizen Latinos of Salvadorian
or Bolivian national origin.
Park is located in Fairfax, Virginia and provides a
relatively low-cost option for housing when compared to other
options in the surrounding area. This action focuses on a
policy ("the Policy") that defendants began
enforcing at the Park in 2015. Under the Policy, defendants
require as a condition of entering into or renewing a lease
at the Park that all adults living or seeking to live in the
Park present either (i) an original social security card or
(ii) an original passport, U.S. visa, and original
arrival/departure Form 1-94 or I-94W. Although defendants
once applied the Policy only to leaseholders, in mid-2015
defendants began applying the Policy to all residents over
the age of eighteen. As currently enforced, the Policy
provides that all tenants of a mobile home lot in the Park
must at the time of lease renewal (i) complete a new rental
application, (ii) submit the required documentation, and
(iii) pass a criminal background and credit check. Tenants
who cannot satisfy the Policy's documentation requirement
have attempted without success to use alternative means of
satisfying the Policy. For instance, some tenants have
attempted to provide alternative documents such as an
Individual Taxpayer Identification Number, an expired Form
1-94, or old criminal background check reports. Defendants
have declined to accept such documents as substitutes.
tenant cannot satisfy the Policy, defendants then issue a
letter to the tenant affording the tenant twenty-one days to
cure the deficiency; tenants who cannot do so are then given
thirty days to vacate the Park. If defendants determine that
a person who has not satisfied the Policy is living in the
Park, then defendants inform the leaseholder of the lot on
which the non-compliant tenant lives that the
leaseholder's year-long lease will not be renewed and
will instead convert into a month-to-month lease. Once the
lease is converted to a month-to-month tenancy, leaseholders
with non-compliant tenants are charged $300 per month above
their former monthly rental rates.
male plaintiff in this action satisfies the Policy, but each
female plaintiff does not. In fact, the Reyes household
vacated the Park under the threat of eviction because
plaintiff Rosy Giron de Reyes could not satisfy the Policy.
The remaining plaintiffs continue to reside at the Park, but
they fear eviction or that they will be unable to afford to
rent their lots because of the increased monthly charges
associated with any tenant's non-compliance with the
response to defendants' enforcement of the Policy,
plaintiffs filed this lawsuit on May 23, 2016.
Defendants' partial motion to dismiss attacks
plaintiffs' Fair Housing Act, Virginia Fair Housing Law,
and 42 U.S.C. § 1981 claims, each of which is addressed
alleges that defendants' enforcement of the Policy
violates the federal Fair Housing Act ("FHA"),
which provides that it is unlawful, inter alia,
[t]o refuse to sell or rent after the making of a bona fide
offer, or to refuse to negotiate for the sale or rental of,
or otherwise make unavailable or deny, a dwelling to any
person because of race, color, religion, sex, familial
status, or national origin.
42 U.S.C. § 3604(a). Under the FHA, "a
landlord's housing practice may be found
unlawful...either because it was motivated by a racially
discriminatory purpose or because it is shown to have a
disproportionate adverse impact on minorities."
Betsey v. Turtle Creek Assocs., 736 F.2d 983, 986
(4th Cir. 1984); see also Tex. Dep't of Horn. &
Cmty. Affairs v. Inclusive Cmties. Project,
Inc., 135 S.Ct. 2507, 2525 (2015) (affirming that
"disparate-impact claims are cognizable under the
[FHA]"). In other words, FHA plaintiffs may pursue
claims for either disparate treatment or disparate impact.
See Inclusive Cmties., 135 S.Ct. at 2525. The choice
between these two approaches is not inconsequential, as
"[t]he burden confronting defendants faced with a
prima facie showing of discriminatory impact is
different and more difficult than what they face when
confronted with a showing of discriminatory intent."
Betsey, 736 F.2d at 988. Specifically, whereas a
disparate treatment defendant can "overcome a prima
facie showing of discriminatory intent by articulating
some 'legitimate non-discriminatory reason for the
challenged practice, '" a disparate impact defendant
"must prove a business necessity sufficiently compelling
to justify the challenged practice." Id.
Moreover, the threshold for a prima facie case of
disparate impact is lower than the threshold for a prima
facie case of disparate treatment because in the former
the defendant's intent is not part of the plaintiffs
case. See Holder v. City of Raleigh, 867 F.2d 823,
826 (4th Cir. 1989).
these differences between disparate treatment and disparate
impact claims, plaintiffs unsurprisingly couch their FHA
claim primarily in terms of disparate impact. See
Comp. ¶¶ 114-15. Where disparate impact theory
properly applies, showing that a facially neutral policy
causes a statistical disparity adverse to protected
minorities is sufficient to make out a prima facie
case of discrimination "because of a plaintiffs
protected status. See Inclusive Cmties., 135 S.Ct.
at 2523; Holder, 867 F.2d at 826. In this regard, to
show that defendants' enforcement of the Policy-which
targets illegal aliens-made housing unavailable to plaintiffs
"because of race...or national origin,
" plaintiffs rely on statistics illustrating
that illegal aliens are disproportionately Latino.
See Comp. ¶¶ 58-63. In other words,
defendants' enforcement of the Policy allegedly
discriminates "because of race...or national
origin" because the Policy aims at illegal aliens, the
vast majority of whom are of Latino national origin, and thus
disparately impacts Latinos.
same time, a fair reading of the Complaint reflects that
defendants' enforcement of the Policy is also alleged to
constitute disparate treatment. This is so because (i) Count
I can be read to say as much, see Comp. ¶ 113,
(ii) the entire basis of plaintiffs' § 1981 claim is
that defendants are engaged in intentional discrimination,
and (iii) plaintiffs contend that the stated rationale for
the Policy is merely a pretext for a discriminatory intent,
see P. Opp. at 28. Nevertheless, the parties appear
to agree that the thrust of plaintiffs' claim is based on
the disparate impact theory, under which plaintiffs bear a
lighter burden to state a prima facie case and
defendants bear a heavier burden in justifying the Policy.
motion to dismiss Count I focuses chiefly on whether the
Complaint states a valid disparate impact claim.
Specifically, defendants attack plaintiffs' reliance on a
disparate impact theory on three grounds. First, defendants
argue that recognition of plaintiffs' disparate impact
claim would conflict with the policies of the United States
Department of Housing and Urban Development ("HUD")
and with certain criminal penalties under federal immigration
law. Second, defendants maintain that in the context of this
case, where the challenged Policy facially targets illegal
aliens, Latinos cannot state a valid FHA disparate impact
claim as a matter of law. And finally, defendants contend
that even assuming a disparate impact claim is appropriate in
this context, the allegations of a disparity alleged here are
insufficient to state a plausible claim for relief. These
arguments are addressed in turn.
first argue that recognizing plaintiffs' FHA claim
requires the recognition of "illegal immigrants as a
class" protected by the FHA, which would therefore
create a conflict among certain federal laws and policies. D.
Reply at 17. Specifically, defendants argue that (i)
accepting plaintiffs' view about the scope of disparate
impact liability under the FHA necessarily leads to the
conclusion "that the policies of the HUD also violate
the FHA because HUD explicitly excludes undocumented
immigrants from participation in many of its programs, "
D. Reply at 7, and (ii) protecting illegal aliens under the
FHA would be inconsistent with the ...