Attorney General November 10, 1993 Memorandum on Fair Housing Litigation

November 10, 1993

MEMORANDUM FOR ALL UNITED STATES ATTORNEYS

FROM: Janet Reno
             Attorney General

SUBJECT: Fair Housing Litigation

As part of our efforts to improve and expand the enforcement of civil rights laws, I am asking United States Attorneys to assume responsibility for the litigation of some of the cases that our Department is required to file under the Fair Housing Act. These cases arise from investigations conducted by the Department of Housing and Urban Development.

The Fair Housing Act, 42 U.S.C. 3601 at seq., prohibits discrimination in housing on the basis of race, color, religion, sex, familial statue, nationa1 origin, or handicap. Our Department shares responsibility for enforcement of the Act with HUD. Within our Department the Civil Rights Division is responsible for enforcement. We have authority to implement a pro-active enforcement program by filing lawsuits that involve a pattern or practice of unlawful discrimination, or that involve a denial of rights to any group of persons protected by the Act. 42 U.S.C. 3614. HUD's primary role is to receive and investigate individual complaints from persons who believe that they have been victims of unlawful discrimination.

HUD must investigate each complaint that the agency receives and, if the complaint cannot be resolved in a conciliation process, HUD is required to determine whether there is reasonable cause to believe that the Act has been violated. 42 U.S.C. 3610. The issuance of a "Charge of Discrimination" by HUD begins an administrative proceeding before an administrative law judge, prosecuted by HUD lawyers, to seek a remedy for the complainant. The administrative remedy can include injunctive relief, compensatory monetary damages and civil penalties. 42 U.S.C. 3612.

The Act provides an alternative to the administrative litigation process which involves the Department of Justice. Within 20 days of the issuance of the Charge, the complainant, respondent, or aggrieved person on whose behalf the complaint was filed, may elect to have the claims asserted in the charge resolved in federal court rather than in the administrative proceeding. If such an election is made, the Department of Justice is required to file a lawsuit on behalf of the aggrieved person within 30 days. We can seek injunctive relief, compensatory monetary damages and punitive monetary damages. 42 U.S.C. 3612(a), 36l2(o).

Our Department also can be called to HUD's assistance during the investigative stage. The Prompt Judicial Action provision, set out in 42 U.S.C. 3610(e), provides that HUD may authorize our Department to file "a civil action for appropriate temporary or preliminary relief pending final disposition of the complaint [within HUD]." The design of this provision is to prevent an injury from occurring while the investigation is progressing. The provision has been used, for example, to enjoin temporarily an eviction when the initial information indicates that the eviction may be a violation of the Act.

Your offices can be of assistance in litigating both "election" lawsuits and "prompt judicial action" lawsuits. Both types of lawsuits were authorized, for the first time, by the Fair Housing Amendments Act of 1988, which became effective on March 12, 1989. The number of election and prompt judicial action lawsuits has increased each year as HUD has developed its enforcement program; the number of such lawsuits filed in FY-93 was 99. The election lawsuits generally involve individual victims of discrimination, HUD already has conducted an investigation, and the facts usually are not unduly complex. Of course the lawsuits require further factual development, interviews with witnesses, discovery, settlement negotiations and normal trial procedures. While the attorneys in the Civil Rights Division's Housing and Civi1 Enforcement section specialize in fair housing cases, our enforcement program can be improved, and our limited dollars stretched further, by involving your offices in the litigation of at least some of these nondiscretionary lawsuits.

Prompt judicial action lawsuits also seem well suited for United States Attorney offices. By nature, these cases are emergencies necessitating very quick action. Knowledge of local procedures for seeking temporary and preliminary relief is essential.

The increase in the number or election and prompt judicial action lawsuits has burdened our Civil Rights Division particularly since the entire Division operates out of our headquarters. I recognize that your resources also are thin, but I do not expect this assignment to tax you significantly. The cases arise from many areas of the country and the number to be filed in most federal judicial districts is very small. Also, some of the election and prompt judicial action lawsuits will continue to be litigated by the Civil Rights Division; when your office is responsible for litigation, the Civil Rights Division will provide assistance.

The Assistant Attorney General for the Civil Rights Division will continue to have responsibility for our enforcement of the Fair Housing Act and will, in consultation with the United States Attorneys, determine the litigation responsibility for each HUD case. The primary considerations for assignment will be whether the headquarters staff or the local office can litigate the case more efficiently and effectively and whether the assignment will unduly burden your offices. Accordingly, the Division will generally retain responsibility for certain types of lawsuits that experience has shown can be particularly time-consuming. These lawsuits include those that usually require extensive fact development or extensive briefing of legal issues because the particular area of the law has not yet been fully developed. Of course, if your office has a particular interest in handling a particular case or type of case, the Division will work with you in allocating some of these cases to your office. On a periodic basis the implementation of the case assignment program will be reviewed by the Attorney General's Advisory Committee and the Assistant Attorney General for Civil Rights.

This sharing of responsibility is designed to make the most effective use of the resources of our headquarters and local staffs, but it is not designed to limit your participation. If your staff develops the expertise in the fair housing area, your participation can be greater. Also, if you face serious resource limitations, you can request additional assistance from the Civil Rights Division.

The cases that I am asking you to litigate require prompt attention -- we are required to file the election lawsuit within 30 days of the election -- and we must implement procedures ensuring an orderly assignment and review of the casas. The Civil Rights Division receives notice of elections from the Chief Administrative Law Judge at HUD. I have directed the Division to make an immediate determination regarding litigation responsibility and to notify your office by telephone or facsimile that same day if possible. We expect that you will have notice of your responsibility no 1ater than two or three days of the election. You will also be informed immediately of any election cases that are proposed to be retained by the Civil Rights Division.

Division personnel will assist you in obtaining the HUD file. We ask that your staff prepare a brief memorandum addressed to the Assistant Attorney General for the Civil Rights Division describing the facts of the case and the legal basis for the lawsuit; you should also provide a copy of the complaint that you propose to file. The Assistant Attorney General must authorize the filing of the lawsuit, but it is not necessary that he or she sign the complaint. Of course, we are required by statute to file these lawsuits, but we also have an obligation to ensure that the filing would not contravene Rule 11 of the Federal Rules of Civil Procedure and would not otherwise contradict the litigation policies of the United States. If you believe that a filing would contravene Rule 11, you should immediately raise this concern with the Division. The primary purpose of Division review, however, is to ensure uniformity in the implementation of our enforcement program throughout the United States. For the same reasons, we ask that you notify the Division for any proposed settlement of the lawsuit.

As noted earlier, the Division can assist you in carrying out your litigation responsibilities. The Division has implemented the amended Fair Housing Act for four years, and likely has addressed many of the issues that will be presented to you for litigation. Model pleadings and briefs will be available, and in emergency situations Division personnel will be available to prepare pleadings or briefs to be filed in your eases. The Division's assistance may be particularly helpful in prompt judicial action matters since we must act very quickly, often within a day or two, to prevent an injury to be occasioned by an act of housing discrimination.

This delegation of litigation responsibility will be effective on December 1, 1993. An appropriate amendment to the United States Attorneys Manual will be delivered to you soon.

I thank you for your participation in our fair housing enforcement program. Congress has given us a strong fair housing law. National studies demonstrate that unlawful housing discrimination remains a serious problem in our country. We must use all tools available to us to erase this national disgrace, and we can do that most effectively if both our headquarters and local offices work together to address the issues.

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